WARNING

The court hearing this matter directs that the following notice should be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 539(1) of the Criminal Code. This subsection and subsection 539(3) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows:

539. Order restricting publication of evidence taken at preliminary inquiry.—

(1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry

(a) may, if application therefor is made by the prosecutor, and

(b) shall, if application therefor is made by any of the accused,

make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,

(c) he or she is discharged, or

(d) if he or she is ordered to stand trial, the trial is ended.

(3) Failure to comply with order.— Every one who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction.

Court Information

Court File No.: Toronto Region, Metro North Court

Date: 2013-05-28

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Jubal Williams and Nicholas Robinson

Before: Justice Leslie Pringle

Heard on: May 1, 2 and 3, 2013

Reasons for Judgment released on: May 28, 2013

Counsel:

• Mr. J. Rinaldi for the Crown
• Mr. E. Ghebrai for the accused Jubal Williams
• Mr. E. Battigaglia for the accused Nicholas Robinson

PRINGLE J.:

1. Introduction and Overview

[1] On October 11, 2011 the police attended 211 Cedric Avenue in Toronto in response to a radio call about a break and enter in progress. When they arrived at the address, they found the doors to the basement apartment had been forced open, and they discovered Nicholas Robinson hiding in a closet in one of the bedrooms. The door to the other bedroom had also been forced open and a dresser in the room had two doors open. Inside the dresser, Cst. Gucbilmez saw a police vest on top of a safe, as well as a black duffle bag with a plastic gun case and a smaller ammunition case sticking out the top. After searching inside the duffle bag, Det. Jacob found a loaded Smith and Wesson handgun wrapped in a bandana. Some documents in the name of Jubal Williams were found on top of a speaker in that same room.

[2] Both Nicholas Robinson and Jubal Williams were charged with offences relating to possession and storage of the firearm and ammunition. Mr. Robinson was also charged with being unlawfully in a dwelling.

[3] The main issue at this preliminary inquiry is whether there is any evidence upon which a reasonable jury properly instructed could find that Mr. Robinson and/or Mr. Williams was in possession of that gun and ammunition. A further issue is whether there is any evidence that Mr. Robinson was unlawfully in the dwelling.

[4] I have determined that there is no evidence upon which a reasonable jury properly instructed could return verdicts of guilt in relation to Mr. Williams, and he will be discharged on all counts. In relation to Mr. Robinson, there is clear evidence upon which a jury could infer that he broke and entered the basement apartment, and some evidence upon which a jury could infer that he knew the gun and ammunition were there. Accordingly, he will be committed for trial on the charge of unlawfully in a dwelling, and on counts 1 to 6 and 8. There is no evidence in relation to count 7.

[5] In explaining my reasons for these conclusions, I will briefly review the evidence and then the law, as well provide an analysis of the issues.

2. The Evidence

2.1 Evidence Relating to an Eviction of the Tenant in the Basement Apartment

[6] When the police arrived, the landlord for 211 Cedric Avenue was waiting for them. He showed them some documentation indicating that the tenant of the basement apartment had been evicted that morning. The first document was an Order under Section 69 of the Residential Tenancies Act, 2006, indicating that the tenancy between the landlord, Derek Calliste and the tenant, Nicholas Robinson, was terminated: EX2A. The second document was a Sheriff's Notice indicating that the Sheriff had executed the order of the Landlord and Tenant Board and delivered vacant possession of the premises to the landlord at 10.45 a.m. that day: EX2B.

[7] The landlord did not testify at the preliminary inquiry. However, Sheriff's Officer Whittingham gave evidence and produced documentation from the Sheriff's Office relating to the eviction. These documents were the same as those given by the landlord to police or located at the scene, that is, EX2A and EX2B. Although Officer Whittingham had no independent recollection of this matter, he recognized the signature of his partner on the paperwork, and confirmed that his own initials and badge number indicated he had been present for this eviction.

[8] Officer Whittingham explained the process of delivering vacant possession to the landlord after an order of eviction has been made by the Landlord and Tenant Board. He said that after the Sheriff's Office is advised of an order, they send out a notice to the address in question to let the tenant know they will be attending to carry out the eviction after a certain date, which in this case was October 4, 2011. He and his partner Krause went to execute the order at 211 Cedric Ave on October 11, 2011. He said they were mandated to search the premises to be sure no people were present inside, and then required to ensure that the locks were changed. In cases of eviction, a Notice is posted on the door to inform the tenant of the eviction, and the Sheriff's Officers and the landlord sign a document to confirm that vacant possession has been delivered to the landlord. In this case, Officer Whittingham identified EX2B with his partner's signature and his initials and badge number, indicating that vacant possession had been delivered to the landlord at 10.45 a.m. on October 11, 2011.

[9] Cst. Madely recalled seeing the Eviction Notice on the door to the basement apartment when he arrived at 5.10 p.m. Cst. Daniels also recalled seeing the Notice when he entered shortly after 5.30 p.m.

2.2 Evidence of a Break-In

[10] Cst. Gucbilmez testified that when he arrived, the screen door at the entrance leading to the stairs down to the apartment was open and the cylinder spring for the door was broken and lying on the ground. The inner door was also damaged and appeared to have been kicked in. The door at the base of the stairs leading into the apartment was open, and the lock mechanism was damaged. He called out something to the effect of "Toronto Police, come out" several times, loudly, but there was no response.

[11] EX1C–E were photographs that showed damage to the doors and wood chips on the ground. When Cst. Gucbilmez entered the apartment and began to look for suspects in there, he heard a noise in the first bedroom and called out again, "Toronto Police, come out". No one responded, but as they entered the room, Cst. Gucbilmez found Mr. Robinson inside the closet in the room. Mr. Robinson was arrested.

[12] In the area where Mr. Robinson was standing, Cst. Gucbilmez found a passport in the name of Andrae Durel Campbell, and also a wallet. He quickly looked at the passport and left it where it was. He did not look in the wallet.

[13] For some reason, neither the wallet nor the passport appears to have been seized when the search warrant was executed.

2.3 Evidence Relating to the Second Bedroom

[14] EX1P was a photograph of the door to the second bedroom showing damage to the frame by the lock; Scenes of Crime Officer Rim confirmed this bedroom door had been forced open.

[15] Inside the room, the doors to the dresser were open and Cst. Gucbilmez saw a safe inside. On top of the safe was a police vest, and to the right of the safe he saw a black duffle bag with a plastic gun case and an ammunition case sticking out of the top. He opened the gun case and saw that it was empty, and shook the ammunition case and determined that there appeared to be bullets or something inside. He did not search inside the bag and did not see a gun. He put the cases back in the bag where he had first seen them.

[16] Later, Det. Jacob looked inside the bag and found a black and white bandana under the gun case and ammunition case. Wrapped inside the bandana he found a loaded Smith and Wesson 6 shot handgun with 5 bullets in the chamber.

[17] On a speaker in that bedroom, Det. Daniels located four documents:

1. a recognizance of bail for Jubal Williams of "NFA", dated June 16, 2011;
2. a dental receipt for Jubal Williams, 837 Roselawn Ave, dated December 13, 2010;
3. a Discount Car & Truck Rental agreement in the name of Jubal Williams, 837 Roselawn Ave, dated May 29 and 30, 2011; and
4. an expired Temporary Driver's Licence in the name of Jubal Arthur Williams, 837 Roselawn Ave, effective May 6, 2011 to August 4, 2011.

[18] Mr. Williams was not located on the premises on October 11, 2011. It was agreed that he later turned himself in to police in response to the charges.

3. Law and Analysis

3.1 Is the Order of the Landlord and Tenant Board Evidence that Nicholas Robinson Was a Tenant There?

[19] On behalf of Mr. Robinson, Mr. Battigaglia submitted that the Order of the Landlord and Tenant Board can't be used for the truth of its contents to show that Mr. Robinson was a tenant in that apartment. For the Crown, Mr. Rinaldi submitted that the order was identified as an official document acted upon by Sheriff's Officer Whittingham and pointed out that it was also provided to the police by the landlord. In those circumstances, Mr. Rinaldi suggested that the document is not hearsay.

[20] In Watt's Manual of Criminal Evidence 2012, Mr. Justice Watt states at p.100 that judicial and public documents are generally admitted as proof of their contents. A judicial document is one made in connection with judicial proceedings. At common law, judicial documents are generally admissible upon proof of an examined copy. A public document is one made for the purpose of public reference and use, and can be admitted without proof if the following conditions are satisfied:

a) it relates to a judicial or semi-judicial inquiry;

b) the object of the inquiry is made public;

c) the report is open to public inspection;

d) the statement relates to matters that it was the duty of the public officer conducting the inquiry to inquire about and report upon.

[21] Although the admissibility of such documents is now governed largely by the Canada Evidence Act, s.30(11) of the Act preserves the common law in relation to proof of these matters.

[22] In the circumstances of this case I find that EX2A satisfies the common law conditions of admissibility since it is authenticated on its face as a true copy of the order of the Landlord and Tenant Board dated August 12, 2011; it is a public document relied upon by a public official for the purpose of an eviction; and it was identified by Sheriff's Officer Whittingham as being the order he acted upon on October 11, 2011.

[23] Therefore, I find that EX2A provides some evidence that Nicholas Robinson was a tenant of the basement apartment of 211 Cedric Ave until he was evicted on October 11, 2011.

[24] For similar reasons, I find that EX2B provides some evidence that there was a Notice of Eviction in existence for that apartment. Officer Whittingham indicated that the Notice is usually posted in an obvious place for the tenant to see, and two police officers recalled seeing that Notice on the door to the basement.

3.2 Is There Any Evidence that Mr. Robinson Was Unlawfully on the Premises?

[25] I find there is a strong and compelling inference that Mr. Robinson was unlawfully on the premises. Although Mr. Battigaglia submitted that there was no evidence regarding the time of the original break in, even if someone else was responsible for kicking in the doors earlier in the day, there was evidence that the Sheriff's Notice was posted on the door. Moreover, the fact that Mr. Robinson did not come out when the officer called out to do so and that he was found hiding in the apartment in a closet speaks volumes about his knowledge that he was in there unlawfully.

[26] In addition, I believe it would be reasonable for a jury to infer that it was indeed Mr. Robinson who was the person who broke in to the apartment, based on the fact that he was the previous tenant before the locks were changed. Since there were numerous personal belongings still there, it's a reasonable inference that the evicted tenant would want to retrieve his belongings. Finally, when the police arrived, Mr. Robinson was the only person in the premises, the door was open, and there were still wood chips from the damaged doors lying on the floor.

[27] Bearing in mind that the locks had just been changed that morning, I find that it would be entirely reasonable for a jury to conclude that Mr. Robinson broke into what used to be his apartment and knew he was unlawfully on the premises when police arrived.

3.3 Is There Any Evidence of Possession of the Firearm and Ammunition by Robinson?

[28] Section 4(3) of the Criminal Code sets out:

4(3) For the purposes of this Act,

(a) a person has anything in possession when he has it in his personal possession or knowingly …

(i) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and

(b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them. (emphasis added)

[29] As the Court of Appeal pointed out in R. v. Chalk, 2007 ONCA 815 at para. 19, knowledge alone will not establish possession. The Crown must also prove that an accused with the requisite knowledge has a measure of control over the item in issue. Control refers to power or authority over the item, whether exercised or not.

[30] Here, Mr. Rinaldi submitted that it's reasonable to infer that Mr. Robinson broke into the apartment to retrieve his belongings, especially in light of the very recent eviction notice. He submitted that since there was evidence that Mr. Robinson broke into the room where the gun was found, he must have been looking for something. Mr. Rinaldi pointed out that the doors to the dresser were open, and the gun case and ammunition case were sticking out of the duffle bag in plain view. Therefore he submitted it is a reasonable inference that Mr. Robinson knew the gun was there, broke in to retrieve it, but was interrupted by the arrival of the police.

[31] On behalf of Mr. Robinson, Mr. Battigaglia urged me to find that even if Mr. Robinson was a former tenant, there was a gap in the evidence that would demonstrate that he had any knowledge of the gun. Mr. Robinson was not found in the room where the gun was located, and the gun itself was not in plain view.

[32] Where there is circumstantial evidence before the court, the preliminary inquiry judge has to engage in a limited weighing of the evidence in order to assess whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw: see R. v. Arcuri (2001), 2001 SCC 54 at paras. 22-23.

[33] Justice Ducharme explained the process of drawing inferences from circumstantial evidence in R. v. Munoz (2006). At paras. 29 and 31 he stated:

The courts have repeatedly cautioned against confusing a reasonable inference with mere speculation. Where an inferential gap exists, it can only be properly overcome by evidence....

…the requirement of reasonable or logical probability is meant to underscore that the drawing of inferences is not a process of subjective imagination, but rather is one of rational explication. Supposition or conjecture is no substitute for evidence and cannot be relied upon as the basis for a reasonably drawn inference. Therefore, it is not enough simply to create a hypothetical narrative that, however speculative, could possibly link the primary fact or facts to the inference or inferences sought to be drawn.

[34] Where there are logical but competing inferences supported by evidence, it is an error for the preliminary inquiry judge to discharge the accused if one of the inferences supports the charge before the court. When there are logical competing inferences, it is for the jury to decide which inference ought to be drawn: see examples of this well-known principle in R. v. Quinn, [2008] O.J. No. 3621 (C.A.) and R. v. Magno (2006).

[35] Mr. Battigaglia referred me to a number of cases with somewhat similar features to this one, where the preliminary inquiry judge discharged on the basis of no reasonable inference of knowledge. For example, in R. v. Turner, 2012 ONCA 570, the Court of Appeal restored the preliminary inquiry judge's finding of no evidence of knowledge of the firearm where the accused was found at 5 a.m. standing in a bedroom with his driver's licence on the floor, some cash lying around, and the gun was found in the closet in the room under some folded clothing.

[36] Similarly, in R. v. Graham, 2012 ONCJ 638, Justice Wong held that in the circumstances of that case there was no reasonable inference that the accused had knowledge of a firearm found in a large hole behind a bathroom mirror, and another firearm located in a hole in the wall behind the television. In that situation, Mr. Graham was found in the premises along with several others. He was sitting on a couch with two scales on a nearby coffee table, and a pair of jeans containing his wallet and some cash close by. There was no evidence that he was sleeping there or frequenting the space, and no evidence of his address. Although some documents with Mr. Graham's name on them were found in a safe in the home, there was no evidence as to the nature of the documents and Her Honour found no reasonable inferences could be drawn from them as a result.

[37] In R. v. Savoury, [2008] O.J. No. 2896 (S.C.J.), Karakatsanis J., (as she then was), held that it was open to the preliminary hearing judge to find that possession of a key to the premises as well as the finding of personal papers in one bedroom was insufficient to reasonably support an inference of knowledge of drugs and firearms hidden in the rest of the home, even though there was some evidence that the accused himself was a drug dealer.

[38] While these cases are helpful in highlighting the issues, ultimately it is clear that each situation will come down to its unique facts and the inferences that can reasonably be drawn from them.

[39] Here, the most telling inferences available in respect of Mr. Robinson arise from the potential findings that he was the person who broke into the apartment and then broke into the room that contained the gun. Since the doors to the dresser were open, it's a reasonable inference that he looked into the area where the duffle bag, the police vest and the safe were found. When the police shouted out their presence several times and Mr. Robinson was found, minutes later, hiding in a closet which was steps away, I believe it's also a reasonable inference that he was interrupted in whatever he was doing when the police arrived.

[40] In this context I agree with Mr. Rinaldi that a jury would be entitled to ask themselves these questions: why would Mr. Robinson break into that locked room? Why would he be interested in what was in that dresser? One reasonable answer is: because he knew the gun was there and he wanted to retrieve it.

[41] The kicked-in door to the bedroom and the open doors to the dresser make this case different than the mere presence of the accused in the premises where concealed guns were found in the cases of Turner, Graham and Savoury. Here, a jury could find that, in addition to Mr. Robinson's presence, there was evidence of his recent interest and involvement in the very area that the concealed gun was found.

[42] I appreciate that the inference of knowledge here may be slim. Moreover, the process of drawing reasonable inferences is made more difficult by the fact that the police appear to have meddled with the items found at the scene after Cst. Gucbilmez made his observations. In this regard, it appears clear that Det. Jacobs and possibly others removed items from the location they were originally found, and engaged in a search process before the search warrant ever arrived. As a result, reference to the photographic exhibits is of little assistance in understanding where the items were found or how they looked as Cst. Gucbilmez observed them.

[43] Nonetheless, putting aside any Charter concerns that may arise, and taking the evidence at its highest for the Crown at the preliminary inquiry as I am bound to do, I find a reasonable jury properly instructed could infer that Mr. Robinson knew the gun was there. If the jury found that he was about to retrieve it, they could also find that he had the necessary measure of control over it to establish possession.

3.4 Is There Any Evidence of Possession of the Firearm and Ammunition by Mr. Williams?

[44] Mr. Williams was not found on the premises, and there was no evidence that he had ever lived there or even been seen there. The only evidence that he was connected to the apartment was the paperwork found on the speaker in the same room where the gun was found.

[45] The Crown relied on the case of R. v. Emes, and submitted that the documents found provided a basis to infer occupancy of the room and knowledge of the gun.

[46] In Emes, the Court of Appeal agreed with the trial judge that certain personal papers of the accused found on the premises were relevant to an assessment of whether he knew of the hydroponics grow operation found at 7280 Darcel Ave, unit 240. The documents found in that case included:

• a document entitled tenancy renewal agreement referring to 1994 and R.E. Emes and apartment #240,
• cheques with the payee described as Darcel Condominium Apartments and signed by R. Emes with the number "240" on the face of the cheques,
• documents and receipts bearing the name of R. Emes or Raymond Emes and in one instance with reference to 7280 Darcel Ave., Unit #240,
• a document entitled Royal Insurance Renewal, referring to 7280 Darcel Ave. #240, and Raymond Emes, and December 15, 1996 to December 15, 1997,
• a document described on its face as a receipt, dated November 28, 1996, referring to $173.88 and tenant's insurance and R.E. Emes,
• documents bearing reference to Bell Canada, including a document dated November 28, 1996 referring to R. Emes and 7280 Darcel Ave., Apt. #240,
• other documents referring to R. Emes and, in some instances, to 7280 Darcel Ave., Apt. #240,
• lists of items associated with a hydroponics operation, a price list and invoices from Homegrown Hydroponics, notes regarding cuttings, roots etc., a book entitled The Original Authentic Forbiddden Bestseller – Dare to Grow Yer Own Store

[47] The appellate court upheld the trial judge's conviction of Mr. Emes, and also agreed with his analysis that:

The seized documents in this case have relevance to a material issue - whether Mr. Emes had a sufficient connection to the Darcel Ave. apartment to permit the court to be satisfied, beyond a reasonable doubt, that the accused was in possession of the marihuana.

The documents are effectively relevant for the fact of their existence as real or tangible evidence. The probative value relates to circumstantial inference-drawing apart from the truth of the contents of the seized documents: see Regina v. Lydon (1987), 85 Cr. App. R. 221 (C.A.) at 223-225 per Woolf L.J.; Regina v. Rice, [1963] 1 Q.B. 857 (C.C.A.) at 869-973 per Winn J., Ewart D., Documentary Evidence in Canada (1984), at pp. 20-21; Sopinka J., Lederman, S., Bryant, A., The Law of Evidence in Canada (1992), at p. 20.

….Personal papers are, as a general rule, maintained in a location to which a person has access and control. When documents such as income tax forms, invoices, cancelled cheques, leases, insurance papers and the like are located in a residential premise it is surely a fair inference that the person identified in the documents is an occupant with a significant measure of control. This is a matter of logic and common sense. While the existence of the papers at the location in question could be as a result of the documents being stolen, or simply stored there, or abandoned, such explanations do not, in my view, accord with the factual probabilities of the circumstances here.

[48] In that case, Justice Hill relied on numerous documents in the accused's name that on their face linked him to the address in question, and also linked him to an interest in the illegal items found in the premises. The situation is far different here.

[49] In this case, none of the documents in Mr. Williams' name contained the address of the premises where they were found. In fact, the only ones that included an address referred to another location at 837 Roselawn Ave, and the recognizance of bail referred to Jubal Williams of "No Fixed Address".

[50] The documents were not scattered throughout the room, which might have suggested occupancy of the entire room. Three of them were related to past events and were not current. While the recognizance of bail was still in effect, it had been issued and acknowledged months earlier. There was no condition to have it in his possession at all times. The finding of the documents here suggested little more than the fact that Mr. Williams had been in the premises at some point and left his documents there. It's possible that he might have stayed there. But in the absence of any other connection whatsoever, and not knowing his relationship to the lessee Mr. Robinson, there can be no logical inference of current occupancy.

[51] Further, none of the documents found in this case provided any link to the gun that was found in the premises, or suggested that the owner of those documents had any interest in the subject matter of guns. The gun was not in plain view, but rather was wrapped in a bandana and found inside a duffle bag.

[52] In my view, there is no evidence upon which a reasonable jury could make a finding of knowledge, consent or control of this handgun or ammunition by Mr. Williams.

4. Summary and Conclusion

[53] There is no evidence upon which a reasonable jury, properly instructed, could find that Mr. Williams was guilty of the offences charged. He is entitled to be discharged on all counts.

[54] There is clear evidence upon which a jury could infer that Mr. Robinson broke into the basement apartment at 211 Cedric Ave and was unlawfully in the premises. As requested by the Crown, he will be committed on a charge under s.349(1).

[55] There is some evidence upon which a jury could infer that Mr. Robinson knew that the gun and ammunition were in the dresser in the second bedroom. For the purpose of the preliminary inquiry, it is conceded that Mr. Robinson was not the holder of a licence for these items, and that the firearm and ammunition were prohibited. Accordingly there will be a committal on the possession and careless storage charges as set out in counts 1 to 6, as well as count 8.

[56] Count 7 requires knowledge that the gun was obtained by crime, and knowledge that possession of the gun was illegal is not sufficient: see R. v. Diagiacomo, 2008 ONCJ 105 (Green J.); and also R. v. Khan, where Mr. Justice Then held:

It is not sufficient that the accused have knowledge that his possession is illegal. What is required to establish "knowledge" on the part of the accused that he has "obtained" possession of the firearm by the commission of an offence is either that the accused himself commit an offence to obtain the firearm other than under s.91 or s.105. For example, it will be sufficient if the accused obtains possession by stealing the firearm. Alternatively, it will be sufficient that the accused obtain possession from another knowing that that person obtained the firearm by the commission of an offence. For example, the accused purchases the firearm from a person he knows stole the firearm.

[57] Here, there is no evidence where Mr. Robinson got the gun or how he obtained it. Accordingly, he will be discharged on Count 7.

Released: to the parties on May 14, 2013; in court on May 28, 2013.

Signed: "Justice Leslie Pringle"