Court of Appeal for Ontario

Citation: R. v. Clovis, 2013 ONCA 755

Date: 2013-12-12

Docket: C57650

Before: Cronk, Watt and van Rensburg JJ.A.

Between:

Her Majesty the Queen

Respondent

and

Myus Clovis

Applicant/Appellant

Counsel:

Richard Litkowski, for the appellant

Shawn Porter, for the respondent

Heard and released orally: December 6, 2013

On appeal from the judgment of Justice Nancy L. Backhouse of the Superior Court of Justice, dated June 11, 2013, dismissing the application for certiorari and upholding the order of Justice William P. Bassel of the Ontario Court of Justice, dated October 1, 2012, committing the appellant for trial.

Endorsement

[1] Mr. Clovis appeals pursuant to s. 784(1) of the Criminal Code the decision of Backhouse J. dismissing his motion to quash the decision of Bassel J. committing him for trial on four firearms offences.

[2] The central issue at the preliminary inquiry was whether there was some evidence which, if accepted by a properly instructed jury, could support the conclusion that the appellant had possession of a shotgun when it was located by the police in his residence approximately ten minutes after it had been fired on the street in front of his home.

[3] As the reviewing judge noted, the decision to commit the accused for trial could be set aside only if there was a jurisdictional error. She recognized that it is not the role of the reviewing court to weigh the evidence, but to decide if there was an evidentiary basis upon which the court below could form the opinion that the evidence was sufficient to justify a committal for trial. To the extent that there was circumstantial evidence, the preliminary inquiry judge was required to engage in a limited weighing of the whole of the evidence. No objection was taken by the appellant to the reviewing judge’s articulation of the relevant legal principles.

[4] The appellant submitted that the jurisdictional error in this case occurred when the preliminary inquiry judge committed the accused based on what the appellant asserted were inferences that could not be reasonably drawn from the evidence. The appellant submitted that the line between reasonable inference and speculation was crossed, and that there was not sufficient evidence upon which a jury could conclude beyond a reasonable doubt that the appellant had knowledge, consent and control over the firearm at the time it was located by the police. The appellant argued that the only reasonable inference from the location of the gun, and the presence of a number of people in the apartment, some of whom were not known to the appellant, is that the gun was thrown into his bedroom by someone without his knowledge or consent.

[5] We disagree. The evidence at the preliminary inquiry went beyond the fact that the gun was found in an apartment rented solely by the appellant, and that he was present in the apartment between the time the gun was used outside and some ten minutes later when the police entered the apartment and found the gun in his bedroom. There was evidence as to the size of the gun, the size and configuration of the apartment, the location and condition of the bedroom, as well as the evidence of the appellant’s friend, Mr. Aristide, who was present at the time, as to the appellant’s activities, the fact that the appellant did not like anyone going into his bedroom, and that he had told others to come in from the front porch earlier in the evening. This was evidence from which it could reasonably be inferred that the appellant was exerting some level of control over what was occurring at his apartment, and that he would have known of and consented to the presence in his bedroom of the shotgun (a large object even with the stock removed), whether he put it there himself or whether it was thrown into the room by someone else.

[6] It is not the role of the preliminary inquiry judge to resolve any competing inferences from the evidence. We agree with the assessment of the reviewing judge that there was evidence from which the appellant’s knowledge, consent and control in relation to the firearm could be inferred. Accordingly, the appellant was properly committed for trial on the firearms offences.

[7] For these reasons, the appeal is dismissed.

“E.A. Cronk J.A.”

“David Watt J.A.”

“K. van Rensburg”