WARNING

The court hearing this matter directs that the following notice 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make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,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

File No.: 14-4563

Date: October 30, 2014

Ontario Court of Justice

Between:

Her Majesty the Queen

— And —

Kadeem Williamson, James Malcolm-Evans, Kenneth Lyttle

Before: Justice Patrice F. Band

Reasons for Judgment – Preliminary Inquiry

Released on: October 30, 2014

Counsel:

• Mr. C. Waite — counsel for the Crown
• Ms. M. Creamer — counsel for the accused Kadeem Williamson
• Ms. V. Sayed — counsel for the accused James Malcolm-Evans
• Ms. L. Burke — counsel for the accused Kenneth Lyttle

BAND J.:

1:0 INTRODUCTION

[1] Following a police investigation into a car accident scene where two firearms were located, Kadeem Williamson, James Malcolm-Evans and Kenneth Lyttle were each charged with a number of offences on a 24 count Information. These include a variety of firearms-related offences, as well as breaches of court orders.

[2] On September 25, 2013, at approximately 9:30 p.m., a dark gray Mazda 3 was involved in a single vehicle accident that resulted in the car rolling over and coming to rest upside-down on the grassy boulevard near 310 Mill Street South, North of Elgin Road, in Brampton. In the process, it had collided with and bisected a leafy tree, much of which came to rest along the passenger side of the car.

[3] It is agreed that the car had been traveling at 96 km/h in a 60 km/h zone at the time shortly before the accident. The collection of photographs (Exhibit 1) depict very significant damage to the driver's side of the car. Also, a witness saw the car collapsing on its roof, like an "accordion," and heard the sound of glass breaking.

[4] The testimony of a number of the civilian witnesses indicates that three black males got out of the car. One ran away toward a nearby path that leads down into a green, ravine-like space that runs between Mill Street South to the west and Main Street (also referred to as Hurontario Street and Hwy 10) to the east. The other two men were seen running around the car and back and forth between the car and the entrance to the path. One of them got down on his back to enter the car, head first, where he appeared to be rifling through it. At one point, one said "leave it, we gotta go." When a witness told them that police had been called and sirens could be heard, they both ran to the path and down into the ravine, where they appeared to join a third male. One witness ran after them from a distance for a few minutes before losing sight of them.

[5] Minutes later, Police Sgt. Duncan saw two black males running up from the ravine to Main Street near Nanwood Drive, where she detained them. Both were sweaty and out of breath. They were later identified as Mr. Malcolm-Evans and Mr. Williamson. Mr. Malcolm-Evans had blood on one or both of his hands. While both men were in possession of small amounts of marijuana, Mr. Williamson is said to have smelled strongly of that substance.

[6] Police also found two bullets in Mr. Williamson's clothing. (They did not match either the handgun or the rifle that were found at the scene).

[7] Mr. Lyttle was arrested several weeks later.

[8] PC Sagle, the first officer to arrive at the scene of the accident, found a handgun on the ground near the driver's side window of the car. It was loaded, with the hammer cocked.

[9] Once the handgun was secured and proved safe, firefighters undertook their work on the car to ensure that it did not pose any further risk. In doing so, they pried the trunk open with a hydraulic device.

[10] Once their work was completed, PC Sagle saw the butt of what was later identified as an assault rifle in the trunk of the car. It was in some state of disassembly.

2:0 ISSUES

[11] The presentation of the evidence in this preliminary inquiry unfolded over a period of six days between July 2 and September 1, 2014. During that time, 15 witnesses testified.

[12] The following are agreed facts or concessions made by counsel:

• The handgun and rifle are restricted firearms;
• One must be authorized or licensed in order to possess either of them;
• None of the accused possessed such an authorization or license;
• Pursuant to s. 117.01 of the Criminal Code, it is an offence to possess ammunition when one is bound by a s. 109 or 110 order;
• Mr. Williamson was subject to two orders prohibiting him from possessing firearms pursuant to s. 109 of the Criminal Code on September 25, 2013;
• Mr. Malcolm-Evans was subject to an order prohibiting him from possessing firearms pursuant to s. 110 of the Criminal Code;
• Mr. Malcolm-Evans was on a form of house-arrest bail; and
• Mr. Lyttle was bound by an undertaking that prohibited him from possessing cellular phones on September 25, 2013.

[13] All parties further agree that the issues in this preliminary inquiry are identity and possession. That is, were the three men charged, or any of them, in the car when it crashed? If so, did any or all of them know about the existence of the handgun and/or rifle in the car and exercise a degree of control over one or both firearms such that they could be found guilty of possessing one or both of them?

3:0 APPLICABLE LEGAL PRINCIPLES

3:1 The Test on a Preliminary Inquiry

[14] The test on a preliminary inquiry, as set out in USA v. Sheppard (1976), 30 C.C.C. (2d) 424, is whether there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty. Where there is any admissible evidence which could, if it were believed, result in a conviction, the preliminary inquiry judge must commit the accused for trial.

[15] The preliminary hearing judge is obliged to determine whether there is some evidence reasonably supporting the existence of each of the elements of the offense charged – even if only a scintilla of evidence: R. v. Martin, [2001] O.J. No. 4158 at para. 3 (C.A.)

[16] In R. v. Charemski, [1998] 1 S.C.R. 679, the Supreme Court of Canada elaborated on the meaning of the phrase "sufficient evidence" at para. 35. It means evidence sufficient to sustain a verdict beyond a reasonable doubt. The concept of sufficiency "always relates to the goal or threshold of proof beyond a reasonable doubt. This must constantly be borne in mind when evaluating whether the evidence is capable of supporting the inferences necessary to establish the essential elements of the case."

[17] With respect to the firearms offences, this case is based entirely on circumstantial evidence. That is, there is no direct evidence that any of the accused were in the car or that they were directly in possession of the firearms.

[18] As the Supreme Court of Canada stated in R. v. Cinous (2002), 2002 SCC 29, 162 C.C.C. (3d) 129 at para. 89, circumstantial evidence is "evidence that tends to prove a factual matter by proving other events or circumstances from which the occurrence of the matter at issue can be reasonably inferred."

[19] In such a case, the judge must engage in a limited weighing of the circumstantial evidence. In R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, at para. 23, the Chief Justice explained this process as follows [certain citations omitted]:

The question then becomes whether the remaining elements of the offence – that is, those elements as to which the Crown has not advanced direct evidence – may reasonably be inferred from the circumstantial evidence. Answering this question inevitably requires the judge to engage in a limited weighing of the evidence because, with circumstantial evidence, there is, by definition, an inferential gap between the evidence and the matter to be established – that is, an inferential gap beyond the question of whether the evidence should be believed….The judge must therefore weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw. This weighing, however, is limited. The judge does not ask whether she herself would conclude that the accused is guilty. Nor does the judge draw factual inferences or assess credibility. The judge asks only whether the evidence, if believed, could reasonably support an inference of guilt.

[20] In doing so, the justice must consider the cumulative effect of the evidence said to point toward guilt: R. v. Coke, [1996] O.J. No. 808 (S.C.J.).

[21] As Justice Hill stated in R. v. Anderson-Wilson, 2010 ONSC 489, [2010] O.J. No. 377 (S.C.J.) at para. 73 [citations omitted]:

• Most cases "will involve hiatuses in the evidence which can be filled only by inference";
• Whether the inference is a reasonable one to draw usually involves an application of "human experience and common sense";
• Circumstantial inferences are ones which "can be reasonably and logically drawn from a fact or group of facts established by the evidence";
• A trier of fact "cannot be invited to draw speculative or unreasonable inferences"; and
• "The process of drawing inferences from evidence is not, however, the same as speculating even where the circumstances permit an educated guess."

3:2 The Elements of Possession

[22] Neither of the firearms was found in the physical and actual possession of any of the accused. As result, the definition of possession in ss. 4(3) of the Criminal Code is applicable. It reads:

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 the actual possession or custody of another person, or

(ii) 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.

[23] In R. v. Anderson-Wilson, supra, Justice Hill collected and set out a number of principles relating to the law of possession, including the following (at paras. 68 to 78; citations omitted).

• Proof of possession requires the Crown to establish the two distinct elements of knowledge and control;
• Control refers to power or authority over the item whether exercised or not;
• In order to prove possession, the prosecution may establish actual or personal possession by an accused or possession as described in s. 4(3)(a)(i)(ii) of the Code;
• In other cases, the Crown may seek to prove constructive or attributed possession as defined in s. 4(3)(b) of the Code;
• In order to constitute joint possession pursuant to s. 4(3)(b) there must be knowledge, consent and a measure of control on the part of the person deemed to be in possession;
• In crimes of unlawful possession, it is "not necessary for the prosecution to prove the required knowledge by direct evidence ... it could be inferred from the surrounding circumstances";
• Frequently then, such cases are proven by circumstantial evidence;
• Allegations of unlawful possession of a firearm are no exception to this rule;
• Possession cases are fact-driven inquiries;
• In weapons prosecutions, the following circumstances have been considered relevant:
  • i. the physical proximity of the firearm to the accused
  • ii. the degree of visibility of the firearm
  • iii. the degree of communal use of a vehicle containing the firearm
  • iv. the size, nature and number of weapons in a particular space, and
  • v. the nature of other items located proximate to the firearm capable of providing context for inferences of knowledge and control;
• Not everyone who drives or rides in a car containing concealed illegal objects necessarily knows the presence or nature of those objects;
• In unlawful possession cases, where the prohibited item is concealed or not readily visible in a vehicle driven by the accused, the courts have generally required more than simply evidence of the proximity of the accused and the item.

[24] Ms. Sayed filed a number of cases, which I have reviewed. I make specific reference to R. v. Grey, [1996] O.J. No. 1106 (C.A.), R. v. Ho, 2010 ABPC 258, [2010] A.J. No. 1160 (Prov. Ct.) and R. v. Graham, 2012 ONCJ 638, [2012] O.J. No. 4915 (C.J.).

[25] In R. v. Grey, the Ontario Court of Appeal cited R. v. LePage, [1995] 1 S.C.R. 654 for the proposition that there is no firm rule for inferring knowledge from occupancy.

[26] At para. 178 of R. v. Ho, a number of useful principles are gathered. They include the following (citations omitted):

• In cases of joint possession, in addition to knowledge, some evidence of active concurrence of the accused in the possession of another, as opposed to mere passive acquiescence, is required;
• In order to constitute constructive possession, there must be knowledge extending beyond mere quiescent knowledge, and some measure of control;
• Some evidence of knowledge can be found where contraband is found in plain view; and
• In some cases, human nature tells us that the nature of the property found would simply not be the subject of unknowing possession.

[27] I pause here to indicate that I do not interpret this last proposition, or the cases that are cited as authority for it, to mean that anyone in a car containing a handgun necessarily knows it is there and is therefore in possession of it. I take it to mean, at least implicitly, that there are certain types of contraband, such as handguns which, by their nature, are unlikely to be mistaken for something else.

[28] At para. 23 of R. v. Graham, Justice Wong cited Justice Hill's decision in R. v. McClelland, [2004] O.J. No. 4236 (S.C.J.) for the proposition that control means power or authority over the object in question.

3:3 Evidence Bearing on the Issue of Committal

For the purposes of these reasons, it is not necessary to review the evidence of each of the witnesses, and I will not do so. My focus instead is on the evidence that bears on the two disputed issues: identity and possession.

3:3.1 Events at or Near the Scene of the Crash

[29] Ms. Shirley Hall, who lived near the scene of the accident, appears to have been one of the first to make observations and contact 911. She saw the car appear to crumple downward, like an accordion. She also heard glass breaking.

[30] She saw a total of three dark-skinned men come out of the car. She noticed the first man as he was in the process of coming out of the car. In one fluid motion, he got up and ran towards the path, never to return.

[31] The other two men came out of the car and appeared extremely distressed. They were trying to get back in the car and looking into its interior as if trying to get someone or something out of it. They were screaming at each other.

[32] When she told them that "police are coming" and sirens could be heard, they both ran toward the path.

[33] Tracey Borges also lived near the scene. At around 9:30 p.m., her boyfriend told her about the accident and she went outside to see two males run down the pathway. She remained on scene and pointed out the gun to an officer who was kneeling by the car. He responded that he was already aware of it.

[34] Brandon Costello and Carrissa McDaniel were parked in Mr. Costello's van approximately 200 metres from the scene when the accident took place. They decided to drive down to see if anyone needed assistance. This took a matter of seconds. When they arrived near the scene, Mr. Costello saw two males running back and forth from the car a few times and circling it. They also both touched it and bent down to look inside. Ms. McDaniel got out of the van. Mr. Costello called 911.

[35] Mr. Costello gave the following description of the two males: one had short hair and was wearing black clothing, a t-shirt and, he believes, jeans. He believes the other, who had cornrows, was wearing a blue and white jacket; it could have been a pullover or light jacket or sweatshirt.

[36] Ms. McDaniel explained that she heard a loud "pop" and squealing of tires. She and Mr. Costello arrived on scene within a few seconds from a distance of approximately four or five houses away.

[37] She saw two males with dark complexions running around. She was concerned that they were in shock or injured. One got on his back and entered into the car. She straddled over him and observed him to be rifling through the car, facing up and toward the dashboard.

[38] By this time, the other male was hiding near the mouth of the path.

[39] The man who had been rifling through the car got up and went to meet the other man near the path.

[40] Ms. McDaniel followed them, and saw a third man at the bottom of the path. The two males ran down the path and she pursued them from a distance of approximately 50 feet for 2-3 minutes. They appeared to meet with the third male in the clearing. She then lost sight of them.

[41] She described the two males as follows: the man who had been rifling through the car was a thinner male with thicker cornrows. He was wearing a jacket that was light blue, the colour of the Toronto Blue Jays. She believes he was wearing jeans. The other male, who had hidden at the mouth of the path, had a longer Afro-style hairdo and was wearing black clothing from head to toe. He had a gap between his front teeth. Both appeared to be in their early 20s. The third male was smaller in stature and frame than the other two.

[42] Gaabriel Echard was outside when he saw and heard the car. He saw three males exit the car.

[43] The first male out of the car went to the path first, and then back and forth to the car. Mr. Echard described this man as follows: he was taller than 172 cm, skinny with a long face. He was wearing a dark blue top with a light blue shirt underneath and "wearing jeans or something." He believes that he was also wearing a baseball cap.

[44] He described the second male who got out of the car as shorter, stubby, with more weight on him. He had a white round logo on his upper clothing. His hair was short and in "dreds". His beard had been shaven. He wore a parka with no sleeves.

[45] The third male was a bit taller than the second. He had short hair, was a bit taller and wore dark clothes.

[46] The two men ran back and forth. One said "leave it, we gotta go." He also heard someone screaming from across the street that police and ambulance were on their way.

[47] The men all ran to the path, with the second and third males running down the same path as the first.

[48] According to Mr. Echard, things appeared to be happening fast. The police arrived within 3 minutes of the incident. He also saw a woman running down the path after the men.

[49] Mr. Echard identified Mr. Williamson in court as someone he "recognized." He did not recognize the other two accused men.

[50] PC Sagle was the first officer to arrive on scene at 9:38 p.m. He had received a radio call at 9:36 p.m. He found the loaded handgun with the hammer cocked near the driver's side door of the Mazda. He later saw the butt-end of the assault rifle in the trunk of the car.

[51] A firefighter named David Lackey heard a call at 9:30 p.m. and was dispatched to the scene at 9:35 p.m. When he arrived at 9:40 p.m., police were already on scene. He saw the handgun approximately two feet from the car, right beside the driver's side window. Once an officer had proven the handgun safe, Mr. Lackey and his colleagues began their work under the command of Cpt. Ronald Horsley.

[52] For safety reasons, Mr. Lackey opened the trunk of the Mazda with a hydraulic device. In it, he saw a duffel bag but did not touch it so as to not interfere with evidence.

[53] He also noticed a skunky marijuana smell emanating from the car.

[54] Cpt. Horsley testified that it is his maxim to "try before you pry." The mechanism to open the trunk proved inoperable, so his men used the hydraulic device to open it.

[55] PC Lidstone attended the scene and took photographs. He helped remove the rifle from the trunk. He does not recall whether it was in a duffel bag.

[56] He testified that there was a noticeable odour of burnt marijuana emanating from the car. He also saw what he thought was blood on the car.

[57] I note at this point that one of PC Lidstone's photographs makes it clear that the broken tree covers the passenger side of the car to such an extent that it would appear unlikely or impossible for anyone to have exited the car from that side: see photo "jpeg 4851."

3:3.2 Circumstances of the Arrests of Mr. Malcolm-Evans and Mr. Williamson

[58] At 9:35 p.m., Sgt. Duncan was in her cruiser when she heard a radio call about an accident on Mill Street South. She began traveling slowly northbound on Hurontario Street near Elgin when she heard that males had run down the path into the park. She then saw two black males running out of the greenbelt area to the west side of Hurontario, near Nanwood. This area is east of the accident scene.

She did a U-turn, got out of her cruiser and approached the men. She asked them to show her their hands for safety reasons. They complied. One of them (later identified as Mr. Malcolm-Evans) was bleeding from both hands. She could not recall the number of lacerations on his hands. The blood was dry.

[59] Both men were out of breath and sweating.

[60] She made a call over the radio and maintained a safe distance while making them continue to show her their hands.

[61] Within what seemed like a couple of minutes, PC Michael Lunn and PC Nathan Ball arrived. She instructed each of them to arrest one of the two males.

[62] PC Lunn received a radio call at 9:38 p.m. As he was making his way to the scene from the east, he was directed to attend at Hurontario and Nanwood, where he arrived at 9:42 p.m. to find Sgt. Duncan speaking with two males. The males were both sweating and breathing hard, as if they had been running.

[63] He was told to arrest Mr. Malcolm-Evans, whom he described as having a thin build and black Afro-style hair. He was wearing dark jeans and a blue jacket with a black jacket underneath. He also described the jackets in the reverse order. Mr. Malcolm-Evans had lacerations or abrasions to one or both hands. They had a combination of fresh and dried blood on them. The blood was tacky, as though the wound was starting to heal.

[64] Among Mr. Malcolm-Evans' belongings, PC Lunn found several cell phones in different jacket pockets and two small baggies of marijuana weighing a total of approximately 1.85 grams.

[65] PC Lunn testified that the distance by foot from the accident scene to the area of Hurontario and Nanwood is approximately one kilometre and can be accessed via the pathways from Mill Street South.

[66] PC Ball arrived at Sgt. Duncan's location at 9:42 or 9:43 p.m., after PC Lunn. He indicated that their location was consistent with where the path ends.

[67] He took custody of Mr. Williamson. He saw what he believed were marijuana crumbs on Mr. Williamson's jacket, and noticed a strong odour of marijuana emanating from his person.

[68] Mr. Williamson was wearing black shoes, black jeans, a black baseball cap, a black Blue Jays jacket with a blue and red logo, a black Adidas jacket with white stripes, a black shirt and a black belt. One of the jackets was reversible: one side was blue, the other black.

[69] During the booking process, a cells officer found two bullets in the small, right front pocket of Mr. Williamson's pants and turned it over to PC Ball.

3:3.3 Evidence concerning the Mazda 3's Registered Owner and known Drivers

[70] That same night, Sgt. Meeker spoke with Ms. Desiree Stefan. She is the mother of Mr. Lyttle and the registered owner of the Mazda. She testified that while Mr. Lyttle usually drives the Mazda, she had not seen him or the car since a week prior and did not know if he had been driving it that evening. At times, she had also seen other people driving the Mazda and pull up to her house in it. One of them was Mr. Malcolm-Evans, and another was his cousin.

[71] Sgt. Meeker asked her to call Mr. Lyttle on his cell phone. When she did so, PC Lunn answered.

[72] Sgt. Meeker confirmed that PC Lunn did not attend the scene of the accident or interact with Mr. Lyttle that evening.

4:0 IDENTITY

4:1 The Second and Third Males to Exit the Car

[73] Taken in isolation, the eyewitness descriptions of the second and third males who exited the car are problematic. They suffer from varying degrees of vagueness from witness to witness and are not entirely consistent between witnesses. There is very little specificity in terms of facial features and of course there is no evidence before me of any positive identifications based on photo line-ups. Mr. Echard's "in-dock" identification of Mr. Williams as a male he "recognizes" is also vague.

[74] Whether, standing alone, they could amount to sufficient evidence upon which a properly instructed jury could base a finding that Mr. Williams and Mr. Malcolm-Evans are the second and third males is debatable.

[75] But they do not stand alone.

[76] In my view, the cumulative effect of the evidence pointing to identity is capable of supporting the inference that Mr. Williams and Mr. Malcolm-Evans were the second and third males to exit the car.

[77] First, there are consistencies between Ms. McDaniel's descriptions of the two dark-skinned males at the scene and the descriptions given by the officers who arrested them.

[78] Ms. McDaniel described both males as dark-skinned and in their early 20s. She described the male who rifled through the car as a thinner male with thicker cornrows. He was wearing a jacket that was light blue, the colour of the Toronto Blue Jays. She believes he was wearing jeans.

[79] She described the other male as having a longer Afro-style hairdo and wearing black clothing from head to toe.

[80] PC Lunn described Mr. Malcolm-Evans as having a thin build and black Afro-style hair. He was wearing dark jeans and a blue jacket with a black jacket underneath. The jacket was reversible.

[81] PC Ball described Mr. Williamson as wearing black shoes, black jeans, a black baseball cap, a black Blue Jays jacket with a blue and red logo, a black Adidas jacket with white stripes, a black shirt and a black belt. One of the jackets was reversible: one side was blue, the other black.

[82] Mr. Costello described one of the two males as wearing black clothing and the other, with cornrows, as wearing a blue and white jacket.

[83] David Lackey and PC Lidstone both noticed a smell of marijuana emanating from the car.

[84] Both men were carrying marijuana and Mr. Williamson is said to have smelled strongly of that substance.

[85] There is no doubt that the crash was very serious. It also resulted in glass breaking. Mr. Malcolm-Evans had lacerations and a combination of fresh and dried blood on his hands. PC Lidstone saw what he believed was blood on the car.

[86] The evidence suggests that the crash took place at approximately 9:30 p.m. and that witnesses called 911 almost immediately. David Lackey heard the call at 9:30 p.m. and officers heard it within the next 5 to 10 minutes. All three males had left the scene by the time the first officer arrived at 9:38 p.m.

[87] Minutes after the crash, the second and third males ran from the scene together. They ran eastbound into the ravine.

[88] At 9:35 p.m. or shortly thereafter, Mr. Williamson and Mr. Malcolm-Evans were seen by Sgt. Duncan running up the east side of the ravine at Hurontario near Nanwood. They were together. This location is approximately one kilometer from the accident scene, and both men were sweating and out of breath.

[89] Mr. Malcolm-Evans has a connection to the Mazda through his association with Ms. Stefan and/or Mr. Lyttle.

[90] When viewed in its entirety, this evidence is capable of supporting a reasonable inference that Mr. Williamson and Mr. Malcolm-Evans were the second and third males to exit the car.

[91] Setting aside the frailties in the eyewitness descriptions, this inference is available as a matter of common sense based on the timing of the arrests, the locations at play and Mr. Malcolm-Evans's connection with the car.

[92] Based on my findings concerning possession below, it is not necessary to determine which of them was the man who rifled through the car for the purposes of the preliminary inquiry. Nonetheless, in my view, a reasonable jury would likely infer that the male who rifled through the car was Mr. Williamson and that Mr. Malcolm-Evans was the male with the Afro-style hair who was dressed in black.

[93] The evidence does not have the same force against Mr. Lyttle. In my view, if Mr. Lyttle was involved in the crash, he was the first male to leave the car and the scene. At its highest, the evidence against him consists of flight, very vague descriptions, the fact that he is a habitual (but not exclusive) driver of the car and that Mr. Malcolm-Evans was in possession of his cellular phone.

[94] In its totality, this evidence clearly raises suspicions. However, I do not believe that it is sufficient to permit a reasonable inference that Mr. Lyttle was among the occupants of the car that evening.

4:2 Evidence of Possession of the Firearms

[95] In my view, based on the cumulative effect of the evidence in this case, a properly instructed and reasonable jury could infer that Mr. Williamson and Mr. Malcolm-Evans were in personal, constructive or joint possession of the firearms pursuant to s. 4(3) of the Criminal Code.

4:2.1 Knowledge

[96] The Crown submitted, and defence counsel did not disagree, that the fact that all three males ran away from the scene is admissible evidence that permits an inference that they knew that one or more firearms were in the car. In my view, while this inference is only one among many that may arise in these circumstances, it nonetheless constitutes at least a scintilla of evidence of knowledge for purposes of a preliminary inquiry.

[97] But again, there is more evidence against Mr. Williamson and Mr. Malcolm-Evans.

[98] Both men were running around the car and bending down to look inside. One of them (probably Mr. Williamson) was rifling around inside the car from the front driver's side facing the dashboard. One or both of them said "we gotta go we gotta go" and, more telling, "leave it we gotta go." Regardless of which man uttered them, these words were spoken to, and within earshot of, the other.

[99] These actions go beyond "mere quiescent knowledge" and would permit a reasonable jury to infer that both men knew about either or both firearms. For the purposes of this preliminary inquiry, I need not determine which.

[100] Nonetheless, in my view, combined with the inoperability of the mechanism to open the trunk, these facts lend strength to the inference that the males (also) knew about the rifle in the trunk.

[101] In addition, both men were occupants of the car and the handgun was found in plain sight. While neither of these facts is dispositive in law, both permit or contribute to reasonable inferences of knowledge.

[102] In Mr. Malcolm-Evans's case, the evidence of communal use of the Mazda only strengthens these inferences.

4:2.2 Control

[103] Taken cumulatively, the evidence of both men's actions is sufficient to ground a finding of control as that term has been defined in the authorities.

[104] Both men ran around the car and bent down to look inside it. One man rifled through it while the other ran back and forth nearby. One or the other of them uttered the words "we gotta go we gotta go" and "leave it we gotta go."

[105] This evidence extends beyond mere passive acquiescence and would permit a reasonable jury to conclude that both men actively exerted or attempted to exert a measure of power, authority or control over the firearms.

4:2.3 Consent

[106] There is at least a scintilla of evidence of consent to be found in the cumulative effect of the evidence. In particular, the words "leave it we gotta go" entail implicit consent to possession – at least up until the time they were uttered.

4:2.4 A Final Word about Mr. Lyttle

[107] If I am in error about the insufficiency of the evidence identifying Mr. Lyttle as one of the Mazda's occupants, in my view, that error is of no consequence. Even assuming that his flight and habitual use of the car constitute a scintilla of evidence of knowledge, a properly instructed jury could not reasonably conclude that he actively consented to the presence of the firearms in the car, or exerted authority or control over them.

5:0 CONCLUSION

[108] Mr. Lyttle is discharged in relation to all counts.

[109] Mr. Williamson and Mr. Malcolm-Evans are committed to stand trial on the following counts:

1. Careless storage of a restricted weapon (handgun): s. 86(1);
2. Careless storage of a restricted weapon (rifle): s. 86(1);
3. Possession of a firearm without a license (handgun): s. 91(1);
4. Possession of a firearm without a license (rifle): s. 91(1);
5. Being an occupant of a motor vehicle in which there was a firearm (handgun): s. 94(1);
6. Being an occupant of a motor vehicle in which there was a firearm (rifle): s. 94(1);
7. Possession of a loaded restricted firearm (handgun): s. 95(1);
8. Possession of a firearm knowing that they were not licensed (handgun): s. 92(1); and
9. Possession of a firearm knowing that they were not licensed (rifle): s. 92(1).

[110] Mr. Williamson is also committed to stand trial on the following counts:

1. Possession of ammunition while prohibited: s. 117.01(1);
2. Possession of a firearm while prohibited: s. 117.01(1); and
3. Possession of a firearm while prohibited: s. 117.01(1).

[111] Mr. Malcolm-Evans is also committed to stand trial on the following counts:

1. Fail to comply recognizance: s. 145(3);
2. Fail to comply recognizance: s. 145(3); and
3. Possession of a firearm while prohibited: s. 117.01(1).

Released: October 30, 2014

Justice Patrice F. Band