Court Information

Date: September 25, 2012

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Aaron Thompson

Before: Justice Sandra Bacchus

Ruling on Committal for Trial: Released on September 25, 2012

Counsel:

• P. Clement, for the Crown
• B. Ross, for the Defendant

Bacchus J.:

Introduction

[1] The defendant is charged with thirteen counts relating to his alleged possession of four firearms located by the police during the execution of a search warrant on December 31, 2011, at 20 Hotspur, Unit 101 in the city of Toronto. Committal for trial is conceded in respect of these possession-related counts (1 to 13).

[2] The issue to be determined relates to counts 1, 5 and 9 on a second information before the court which charges the defendant with three counts of robbery with a firearm, arising from a home invasion which took place on December 24, 2011 at 100-39th Street in Etobicoke.

Background

[3] Carvell Harris-Brandt is a gun collector who resides at 100-39th Street in Etobicoke and who at the time of these events had 10 firearms stored in a specially prepared room, essentially a converted closet, in the bedroom of this residence. Danielle Cardoz, Mr. Harris-Brandt's girlfriend, testified that five minutes after she had posted something on Facebook at around 10:40 p.m. or 10:45 p.m., the back door of the residence was kicked in and at least 3 people entered the home. Ms. Cardoz described two of the assailants as black males and the third male as Spanish mulatto. Mr. Harris-Brandt testified that there were at least 5 assailants, all wearing disguises or masks, and all of whom he believed were of African-American descent. Both of the victims testified that the assailants were in possession of firearms. Ms. Cardoz and Mr. Harris-Brandt were threatened by the assailants; Mr. Harris-Brandt was beaten and stabbed.

[4] Ms. Cardoz testified that she observed the assailants empty out the gun safe putting the firearms into a duffle bag. The victims testified that in addition to the firearms both laptops were taken, along with jewellery and a substantial amount of cash. Ms. Cardoz testified that the perpetrators remained in the residence for about 5 or 10 minutes.

[5] The assailants also entered the downstairs apartment at the residence. Mark Thibodeau, the downstairs tenant, testified that between 10:30 and 11:00 p.m. he heard loud banging and then 4 or 5 males entered his residence. Mr. Thibodeau was also threatened and beaten and received a significant injury to his face as a result of a pistol whipping.

[6] Mr. Thibodeau testified that he believed the assailants were in his apartment for 5 or 6 minutes.

[7] On December 31, 2011, a search warrant was executed at the address of 24 Hotspur, Apartment 101, in the city of Toronto. At that time, 4 firearms from the home invasion robbery were located at this residence. There were 4 adults present at the time the search warrant was executed, one of whom was identified as Martel Anthony Francis. The defendant was not present.

[8] The following matters are conceded for the purpose of the preliminary inquiry:

1. That the defendant resided at least part of the week at 24 Hotspur, Apartment 101 and was in possession of the four firearms located during the execution of the search warrant at 24 Hotspur on December 31, 2011;

2. That Martel Francis is the defendant's step son and had been living at 24 Hotspur, Apartment 101 for approximately two years up until his arrest on December 31, 2011;

3. That the cell phone number (647) 466-2275 attributed to Martel Anthony Francis, was in the immediate area of 100-39th Street at the time of the home invasion robbery on December 24, 2011;

4. That at the time of the home invasion robbery the defendant's cell phone (416-206-8704) was in the area of 24 Hotspur and not in the area of the home invasion at 100-39th St., Etobicoke.

[9] On August 16, 2012, I ruled the defendant's unrecorded and recorded statement (Exhibit 7) to Detectives Mullen and Wauchope, dated December 31, 2011, were admissible at common law in these proceedings.

Position of the Parties

[10] The Crown submits that there is evidence upon which a reasonable jury properly instructed could find that the defendant was a party to the three counts of robbery with firearm. Although the Crown concedes that there is no evidence that the defendant was present during the commission of the home invasion robbery on December 24, 2011, the Crown points to the culmination of the following areas of the evidence in support of its position that the defendant was a party to the offense and indeed helped organize the robbery: the defendant's recent possession of the four firearms found during the execution of the search warrant on December 31, 2011; the content and the timing of text messages sent and received between the defendant with his stepson Martel Francis prior to the robberies on December 24, 2011. The Crown submits that based on the content of these calls a reasonable inference can be drawn that a robbery was being planned and that the defendant was involved in organizing the robbery by gathering people to conduct the robbery.

[11] The defense submits that there is no confirmatory or inferential evidence that Martel Anthony Francis was involved in the robbery. The defense submits that there is nothing of assistance on the issues to be determined by this court in the content of the text messages and that the content of the text messages is speculative at best. The defense submits that unaided, and without any expert testimony, the Court simply cannot draw the inferences the Crown seeks about the inculpatory nature of the text messages. In addition, the circumstances of the defendant's possession of the firearms do not lead to a reasonable inference that he was involved in the theft.

Applicable Legal Principles

[12] The test for committal requires that where there is direct evidence adduced on all elements of an offense the case must proceed to trial even if a defense exists on the evidence. In the instance of circumstantial evidence, the preliminary hearing judge may engage in a limited weighing of the evidence. However, this weighing of evidence does not apply to issues of credibility that remain the exclusive purview of a jury. If conflicts arise of a testamentary nature, they should be left to be resolved by the jury. (R. v. Sheppard, (1977), 2 S.C.R. 1067; R. v. Acuri (2001) 2001 SCC 54, S.C.J. No. 52 (S.C.C.))

[13] In assessing circumstantial evidence it is critical to distinguish between inference and speculation. In the 2011 edition of Watt's Manual of Criminal Evidence (Toronto: Carswell) at p. 43, Justice David Watt articulates the principles relating to the assessment of relevant circumstantial evidence:

Inference is a deduction of fact that may logically and reasonably be drawn from another fact, or group of facts found or otherwise established in the proceedings. There can be no inference without objective facts from which to infer the facts which a party seeks to establish. If there are no positive proven facts from which an inference can be drawn, there can be no inference only impermissible speculation and conjecture.

Analysis

[14] In respect of Exhibits 6a and 6b, there is no direct reference to a robbery being planned in the text messages. Though the frequent references by the defendant to "eat" and planning a big "move", is suspicious, there is no expert opinion evidence before this court regarding any other meaning which can be attributed to these phrases used by the defendant and other callers during these transmissions, other than their plain everyday meaning.

[15] At 15:31 p.m. on December 24, 2011, there is evidence that the defendant sent the following text message to the Martel Francis phone: "get ready cheesy at Yoskdale; I'll be there in 20 minutes". There are no other text messages between the phone attributed to Martel Francis and the defendant in the duration of messages captured in Exhibit 6b. In addition, although Martel Francis is a suspect in respect of this home invasion robbery, there is no confirmatory evidence linking Francis or any of other unknown persons in contact with the defendant in relation to these text messages, as a principal or a party to the home invasion.

[16] As such, standing alone, these messages afford no evidence upon which a court can reasonably infer the defendant's participation as a party to the home invasion robberies.

[17] However, there is evidence lead in these proceedings based on the doctrine of recent possession which avails the Crown of a presumption from which one can infer the defendant's participation as a party to the home invasion robbery.

[18] The evidence before me arising from both the defendant's unrecorded and recorded statements to the police, is that at approximately 2 a.m., in the early morning hours of December 25, 2011, and within hours of the commission of the home invasion robbery, the defendant was contacted by "Trey" the brother of someone named "Burns" who was one of the perpetrators of the home invasion. The available evidence, taken at its highest, is that within 1 to approximately 3 hours from the phone call, the defendant met "Trey" along with two other men who unloaded four of the firearms stolen from the home invasion into the defendant's truck.

[19] The doctrine of recent possession permits but does not require a trier of fact to draw an inference of guilt of theft, or offences incidental to the theft, from proof of the unexplained possession of recently stolen property. R. v. Gagnon (2006), 2006 MBCA 125, 214 C.C.C. (3d) 115 (Man. C.A.). As stated by the Supreme Court of Canada:

.....The strength of the presumption, which arises from such possession, is in proportion to the shortness of the interval which has elapsed. If the interval has been only an hour or two, not have a day the presumption is so strong, that is almost amounts to proof; ... R. v. Kowlyk, [1988], 2 S.C.R. 59

Based on the relatively short duration between the home invasion and the defendant's possession of the firearms there is an inference available to the Crown on the strength of the defendant's recent possession alone, that the defendant was a party to the robbery with firearm.

[20] In addition to the timing of the possession, the circumstances upon which the defendant came into possession of the stolen firearms, strengthens the inference of recent possession and the presumption available to the Crown. These circumstances include: that the defendant was contacted in the early morning hours by an individual connected with the robbery, proximate to the time of the robbery, and that the firearms were turned over to the defendant in a duffle bag, with trigger locks intact, consistent with the way in which they were removed by the victims' home.

[21] In addition, I find there is other circumstantial evidence capable of supporting an inference that the defendant had prior knowledge of the home invasion and was therefore a party to these offenses, when the totality of the evidence is considered.

[22] At 16:52 p.m. on December 24, 2011, the defendant sent the following text message to an unknown party:

"Yo I got smthn 2 do wit the van u better call me asap..."

[23] A reasonable inference from this message, particularly in the context of the series of messages before and after from which one can reasonably infer that the defendant was arranging to meet people at different locations quickly, is that at that time the message was sent the defendant was in actual possession of, or had access to a van.

[24] However, at the time the defendant meets "Trey" and the others for the purpose of receiving the stolen firearms in the early morning hours of December 25, 2011, after the home invasion robberies have been committed, the defendant is operating a truck later identified as the GMC truck he was arrested in on December 31, 2011. The defendant admits in his statement to the police (Exhibit 7) that he had been driving the truck for a week and was not in possession of a van.

[25] Given: the absence of the van in the defendant's possession at a time contemporaneous to the time when the parties to the robbery were in possession of a van, and the evidence that the defendant received the stolen firearms proximate to the home invasion, in conjunction with the tenor of the defendant's text messages during which the defendant references something "big" being planned involving the van, it is my finding that the totality of this evidence is capable of supporting the inference that the defendant had prior knowledge of the robbery and assisted the assailants by providing them with a form of transport either for themselves, the stolen property, or both.

Robbery Versus Robbery with Firearm

[26] I raised the issue with counsel of whether the defendant should properly be committed in respect of a robbery with firearm if there is no evidence that the defendant was in the residence at the time. In my view, the breadth of the doctrine of recent possession does allow for committal on robbery with firearm. As stated by the Supreme Court of Canada:

If a person is found in possession of property recently stolen and of which he can give no reasonable account a jury are justified in coming to the conclusion that he committed the robbery... And so it is of any crime to which the robbery was incident or with which it was connected as burglary, arson or murder. R. v. Kowlyk, [1988] 2 S.C.R. 59; also see R v. Y.N., [2005] O.J. No. 4388; R. v. Schuehlein, [2008] O.J. No. 5797

Conclusion

[27] In his statements to the police, the defendant denied prior knowledge of the robbery and stated that he thought the guns were from the gun store. Further, the defendant provided an explanation for his possession of the firearms stating that he was contacted by "Trey" after the robbery took place, who asked him to hold the guns as a favour. In addition, there are inconsistencies in the defendant's evidence regarding the actual day and time he came into possession of the firearms capable of extending this timeframe up to 24 hours from the time of the home invasion.

[28] The credibility of the defendant's explanation for his recent possession as well as the impact of any inconsistencies in the evidence which might raise a doubt about how recently the defendant came into possession of the firearms, are matters for the trier of fact. As stated by the Supreme Court of Canada in R. v. Kowlyk, supra, par 12:

Where the circumstances are such that a question could arise as to whether the accused was a thief or merely a possessor, it will be for the trier of fact upon a consideration of all the circumstances to decide which, if either, inference should be drawn…the inference of guilt is permissible not mandatory.

[29] It is well established that where reasonable inferences capable of supporting the Crown's theory are available on the evidence, it must be left to the trier of fact to consider that evidence. It is not for this court to engage in assessing the quality and reliability of the evidence or any possible defense. The Crown's case is to be taken at its highest in those respects at the preliminary inquiry stage. R. v. Charemski (1998), 123 C.C.C. (3d) 255 (SCC); R. v. Sazant (2004), 2004 SCC 77, 208 C.C.C. (3d) 225 (S.C.C.)

[30] In my view there is sufficient evidence to commit the defendant to stand trial and the defendant will be committed for trial in relation to the three counts of robbery with firearm, counts 1, 5 and 9 as charged.

Date: September 25, 2012

Signed: Justice Sandra Bacchus