WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.5(1), (2), (2.1), (3), (4), (5), (6), (7), (8) or (9) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.5

(1) Unless an order is made under section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.

(2) On application of the prosecutor in respect of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection (2.1), or on application of such a justice system participant, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is in the interest of the proper administration of justice.

(2.1) The offences for the purposes of subsection (2) are

(a) an offence under section 423.1, 467.11, 467.111, 467.12, or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization;

(b) a terrorism offence;

(c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act; or

(d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c).

(3) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.

(4) An applicant for an order shall

(a) apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and

(b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies.

(5) An applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice.

(6) The judge or justice may hold a hearing to determine whether an order should be made, and the hearing may be in private.

(7) In determining whether to make an order, the judge or justice shall consider

(a) the right to a fair and public hearing;

(b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer harm if their identity were disclosed;

(c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation;

(d) society's interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process;

(e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant;

(f) the salutary and deleterious effects of the proposed order;

(g) the impact of the proposed order on the freedom of expression of those affected by it; and

(h) any other factor that the judge or justice considers relevant.

(8) An order may be subject to any conditions that the judge or justice thinks fit.

(9) Unless the judge or justice refuses to make an order, no person shall publish in any document or broadcast or transmit in any way

(a) the contents of an application;

(b) any evidence taken, information given or submissions made at a hearing under subsection (6); or

(c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings. 2005, c. 32, s. 15; 2015, c. 13, s. 19

486.6

(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

Court of Appeal for Ontario

Date: 2017-12-07

Docket: C62507

Panel: Laskin and Pepall JJ.A. and Gans J. (ad hoc)

Between

Her Majesty the Queen Appellant

and

Shiloh Pettipas-Lizak Respondent

Counsel:

• Andrew Hotke, for the appellant
• Nathan Gorham, for the respondent

Heard and released orally: November 28, 2017

On appeal from: The acquittals entered on July 11, 2016 by Justice Anne Mullins of the Superior Court of Justice, sitting with a jury.

Reasons for Decision

[1] The Crown appeals directed verdicts of acquittal on three firearms charges. The narrow issue on the application was whether the respondent's gun was operable. In granting the application the trial judge concluded that the evidence was insufficient for a properly instructed jury to consider whether the respondent had an "operational" firearm.

[2] The Crown submits that in reaching her conclusion the trial judge made three errors in law: (1) she applied the wrong test; (2) she wrongly weighed competing references; and (3) she wrongly considered the respondent's credibility.

[3] We agree with the Crown's submission. And we also agree that there was evidence, which if believed, could reasonably support an inference of guilt. The following are our brief reasons on each of the three errors of law made by the trial judge.

(1) The Wrong Test

[4] At the beginning of her ruling, the trial judge said:

Here the narrow question for the jury would be whether such an inference is the only reasonable or rational inference to be drawn from the evidence.

[5] Her statement captured the test a jury must apply in a case such as this one where the Crown's case depends at least in part on circumstantial evidence. But it is not the test on a directed verdict application. The test, instead, is the same test that a judge applies at a preliminary inquiry.

[6] On a directed verdict application the judge must determine whether the circumstantial evidence is reasonably capable of supporting the inferences the Crown seeks to have the jury draw. The test is whether the evidence, if believed, could reasonably support an inference of guilt.

[7] The trial judge never stated the correct test and, as it is evident from the remainder of her ruling, she applied the wrong test.

(2) Weighing of Competing Inferences

[8] On a directed verdict application, where the Crown leads circumstantial evidence, the trial judge must consider all the evidence and weigh it to a limited extent. This limited weighing means that the trial judge must assess the evidence in a way that is most favourable to the Crown: see R. v. Arcuri, 2001 SCC 54, at para. 23. The trial judge is not entitled to weigh the competing inferences available to the Crown and the accused. Yet that is what the trial judge did in this case.

[9] In her ruling the trial judge relied on the respondent's evidence of where the gun came from, the evidence of the gun falling apart, and the evidence about the likely age of the gun. She made no reference to the following evidence supporting the inferences favourable to the Crown:

• the expert evidence that the gun was a real gun;
• Miller's evidence that the respondent acquired the gun for his protection;
• the respondent's evidence that he treated the gun as capable of being fired;
• C.P.'s evidence that she saw bullets;
• the evidence that the respondent repeatedly inserted and took out the magazines, suggesting his familiarity with the gun;
• and finally the expert's evidence that there were reasons why the gun could be operable but fail to fire.

[10] From her failure to refer to these pieces of evidence and the inferences that could be drawn from them, the trial judge showed that her conclusion inevitably rested either on weighing competing references or disregarding altogether the inferences favourable to the Crown. Thus in weighing the evidence as she did, the trial judge went well beyond the limited weighing permitted in a case of circumstantial evidence.

(3) Consideration of the Respondent's Credibility

[11] The trial judge could only have reached the conclusion she did by accepting that the respondent's evidence was credible. The law is well established that on a directed verdict application the trial judge is not entitled to assess the respondent's credibility. It was an error of law for her to do so.

[12] The errors of law made by the trial judge do not by themselves determine this appeal. We must still consider whether on the correct test there is evidence, which if believed, could reasonably support an inference of guilt. We are satisfied that there is such evidence on this record. That evidence is concisely summarized at para. 50 of the Crown's factum. This evidence is reasonably capable of supporting the inferences the Crown seeks to have the jury draw.

[13] We allow the appeal, set aside the verdicts of acquittal and order a new trial on the firearms charges.

"John Laskin J.A."

"S.E. Pepall J.A."

"Arthur Gans J."