Court File and Parties

Court File No.: Toronto Region Ontario Court of Justice

Between:

Her Majesty the Queen

T. Edwards, for the Crown

— And —

Anthony Nakhla

D. Bayliss, for the defendant

Heard: June 4, 5, 6, 2014, January 30, 2015

FELDMAN J.:

Introduction

[1] On Sunday, February 3, 2013, Anthony Nakhla was arrested in apartment 504 at 1250 Bridletown Circle in Toronto. Earlier on that day, police executed a search warrant at that address. They located a .32 calibre silver revolver along with three live rounds of ammunition. A spent shell casing was also found on a nearby table.

[2] Mr. Nakhla was charged with possession of a prohibited weapon without authorization, two counts of possession of a prohibited weapon, careless storage of a firearm, careless storage of ammunition, possession of a firearm obtained by an indictable offence and possession of a firearm with its serial number defaced. At this preliminary inquiry, he has elected to be tried by a judge and jury.

[3] The defendant challenges committal for trial on the basis that there is insufficient evidence of his possession of the weapon and ammunition, for which the elements of knowledge and control are essential. He concedes the element of control. However, he says that in this case there is insufficient circumstantial evidence of knowledge in relation to which no reasonable jury properly instructed could convict.

[4] The defence admits that shortly after 6:25 p.m., during the execution of the search warrant, police found Mr. Nakhla's health card in the second "guest" bedroom, at 6:51 p.m., his resume in the foyer beside the front door and at 6:59 p.m., his student identification and European passport in the main "master" bedroom.

The Evidence

[5] Mr. Nakhla's mother owned Apt. 504. The defendant was the primary resident, but often away. For example, he was in London, England from May to September 2011 and December to January 2012. During this latter period, Talha Saeed, a good friend of the accused had a key to the apartment. Mr. Saeed slept over a lot and, as well, invited others to the apartment, some who spent the night, without the defendant's permission.

[6] Solaiman Ali was one of the persons arrested during the police operation. He had been sleeping at the apartment with his fiancée, Nicole Ignacio, over the weekend. Mr. Nakhla, who had been home since Saturday and Mr. Saeed, staying there since Friday, slept in another room. Solaiman had also stayed there in January at the behest of Mr. Saeed when the defendant had returned from London.

[7] Mr. Ali told the court that every time he visited the apartment as a guest, Anthony was present. He was made aware that Mr. Saeed and the defendant's cousin, Mina, had keys and that since the defendant's mother moved out it had became a hangout while Mr. Nakhla was away. Solaiman had attended a New Year's party there while the accused was in London.

[8] While all those present were under arrest and sitting around the dining room table, Mr. Ali observed an officer lift up a red couch and pull out a bag, seemingly from under it, that contained a firearm. As well, another officer held up a used shell casing from beneath some papers on the table that included identifying documents belonging to the accused.

[9] Criminal charges against Mr. Ali and Ms. Ignacio were withdrawn after each provided a statutory declaration denying knowledge of the prohibited items.

[10] Idid Adan has a criminal record for violent offences. He is charged with Mr. Saeed for conspiracy to commit kidnapping. He has known Mr. Nakhla for about one year. He has slept over at the apartment once, but not the night before the arrests, arriving on the Sunday around 11 a.m. He says he has never been there in the defendant's absence. Mr. Adan told the court that he observed an officer pick up a white bag from the area of the red couch. He also saw an officer find a shell casing on the dining room table. He provided a statutory declaration denying knowledge of the firearm.

[11] Nicole Ignacio had visited the apartment once previously and had also attended the Dec 31 party hosted by Tahal. She was invited by him to stay over the weekend of the arrests. Ms. Ignacio did not see Det. Robert Stolf pick up a shell casing from the table. She says she did observe Det. Const. Brian McGee open up a zipper at the bottom of the couch and pull out the bag containing the firearm and ammunition. There is objective inferential support for her evidence in a photograph that shows an unzipped flap hanging down underneath the red chair.

[12] By contrast, Det. Const. McGee testified that he found the bag at the back of what he described as a red leather lounger tucked behind the back of the chair at the foot of the wall. He said he saw the bag without moving the chair by looking over and behind it. He described finding 3 live rounds inside the bag, as well as 2 spent casings in some shirts covering the revolver. The firearm was not visible until he removed the clothing from the bag. There were 2 rounds in the cylinder of the weapon. The defendant's passport was seen on the couch.

[13] Det. Const. Todd Storrey testified that the accused told him he had just cleaned the apartment and that his family lived overseas.

Positions of the Parties

Defence Position

[14] Mr. Bayliss submits the evidence establishes that Tahal Saeed was a de facto resident of the apartment and at least in as much control over it as the defendant, inviting others over as he pleased while Mr. Nakhla was often out of the country.

[15] He says that in this respect there is no circumstantial evidentiary basis upon which to distinguish between equally plausible inferences of knowledge on the part of either man so that in the result there is insufficient evidence of a material element of possession upon which a reasonable jury properly instructed could convict beyond a reasonable doubt.

Position of the Crown

[16] Mr. Edwards submits that viewed in its best light for the prosecution the evidence permits the inference of joint possession by both men. He says, in addition, that the evidence supports a strong inference of knowledge on the part the accused.

[17] He points out that Mr. Nakhla was the apartment's legal occupant, was present when the firearm was discovered and that the shell casing found on the table that matched the firearm was located near some of his identifying papers. He submits it is open to the trier of fact to conclude to the requisite standard that this inference of knowledge carries more weight than one in relation to Mr. Saeed, so that the rule in Hodge's case is met.

The Authorities

Committal for Trial

[18] In assessing the evidence, the preliminary inquiry judge must determine whether there is sufficient evidence to permit a properly instructed jury, acting reasonably, to convict: U.S.A. v. Shephard (1976), 30 C.C.C. (2d) 424 (S.C.C.).

[19] The evidential burden at this stage in relation to 'sufficient evidence' for committal appears to have evolved in the authorities to mean sufficient evidence to sustain a verdict of guilt beyond a reasonable doubt: R. v. Fontaine, 2004 SCC 27, [2004] S.C.J. No. 23 (S.C.C), per Fish J., adopting the analysis on this issue by McLachlin J. (as she then was), dissenting on other grounds, in R. v. Charemski, [1998] 1 S.C.R. 679, later implicitly affirmed by the Chief Justice in R. v. Arcuri, 2001 SCC 54, [2001] S.C.J. No. 52. More recently, Armstrong J.A. in R. v. Turner, 2012 ONCA 570, affirmed the linking of sufficiency of evidence to the ultimate burden of proof on the Crown.

[20] Where the prosecution's case is circumstantial, the court must weigh the whole of the evidence, including exculpatory evidence, in the limited sense of "assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw", bearing in mind that "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".

[21] As part of this assessment, the judge does not engage in drawing factual inferences or in assessing credibility. The judge only asks whether the evidence, if believed could reasonably support an inference of guilt: see Arcuri, at paras. 29-32.

[22] To be clear, this traditional rule that the preliminary inquiry is not the proper forum for weighing competing inferences or for selecting from among them applies to both direct and circumstantial evidence. In this regard, any doubt as to inferences to be drawn from the evidence must be resolved at this stage in the Crown's favour: R. v. Coke, [1996] O.J. No. 808 (S.C.J.); Dubois v. The Queen, [1986] 1 S.C.R. 366, referred to in R. v. Sazant, 2004 SCC 77, 2004 S.C.C. 77.

The Rule in Hodge's Case

[23] In relation to the limited weighing of circumstantial evidence, more recent authority would appear to support the application of the Rule in Hodge's Case (1838), 168 E.R. 1136, which holds that to convict, the evidence must not permit of any other rational conclusion but that the accused is guilty.

[24] As noted earlier, in her dissenting judgment in Charemski, McLachlin J. supported the principle that in a directed verdict application (analogous to the issue of committal at a preliminary inquiry) the judge may be required to engage in a limited weighing or evaluation of reasonable inferences to be drawn from the circumstantial evidence as an essential step in determining whether the evidence is rationally capable of supporting a conviction or whether "hypothetically, a guilty verdict is possible", a position the Chief Justice affirmed in speaking for the majority in Arcuri.

[25] In relation to this issue, I said in R. v. Petraitis and Rinella, [2005] O.J. No. 6449, at para. 33, that while the Chief Justice did not specifically discuss the application of the rule in Hodge's Case in Arcuri, the ascendancy of her minority position in Charemski, as well as her focus on the reasonableness of the inferences to be drawn, would appear by implication to involve that rule in her analysis.

[26] Arising from this, it was my view that a conclusion on a directed verdict application in relation to a circumstantial case that two competing, but equally supportable inferences would not "hypothetically" support a guilty verdict is no different than one that there are no reasonable inferences of fact left to support committal following the "limited weighing" of near equally supportable, but conflicting, evidence on material facts in issue. While this result would likely be a rare occurrence, it contemplates the situation where "…it would seem to be wrong to let a case go to the jury if the trial judge believed that no reasonable jury could be satisfied beyond a reasonable doubt": see statement of Professor Ron Deslisle in Evidence, Principles and Problems (3d ed. 1993) at p. 178, referred to with approval by McLachlin J. in Charemski.

[27] Further in this regard, in R. v. Seth (2001), 157 C.C.C. (3d) 189 (Ont. C.A.), at p. 215, Feldman J.A. accepted as a correct statement of law in the dissenting reasons of McLachlin J. in Charemski, reference to a directed verdict motion, not as a process of weighing the evidence, but [one] of testing its "legal sufficiency" to permit a jury to be satisfied of the guilt of the accused beyond a reasonable doubt, a legal concept to which the rule in Hodge's Case would have practical application.

[28] Subsequently, in R. v. Collins, [2003] O.J. No. 820 (S.C.J.), Justice Molloy was clear in interpreting Chief Justice McLachlin's analysis of this issue in both Charemski and Arcuri to mean that "circumstantial evidence that does not comply with the rule in Hodge's Case is no evidence at all of guilt and cannot be left to the jury", a conclusion with which I respectfully agree.

[29] This principle has application in the circumstantial case at bar.

Drawing Inferences in Circumstantial Cases

[30] In his Manuel of Criminal Evidence, 2003 edition, at p. 44, Justice David Watt noted that where the evidence is circumstantial, "it is critical to distinguish between inference and speculation". He defined an inference as "a deduction of fact, which may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the proceedings".

[31] Justice Watt went on to say that, "there can be no inference without objective facts from which to infer facts, which a part 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".

[32] Justice Doherty was mindful of this distinction in R. v. Huynh, [2005] O.J. No. 4074, unreported, Sept. 9, 2005, Ont. C.A. There, the evidence permitted the inference that the cash discovered was the proceeds of illicit activity. The Crown advocated the drawing of a further inference that one possible source was drug trafficking.

[33] In rejecting this submission, Justice Doherty said: "The process of drawing inferences from evidence is not…the same as speculating even where the circumstances permit an educated guess. The gap between the inference that the cash was the proceeds of illicit activity and the further inference that the illicit activity was trafficking in a controlled substance can only be bridged by evidence. The trier of fact will assess that evidence in light of common sense and human experience, but neither are a substitute for evidence".

[34] Dawson J. applied the Rule in Hodge's Case by implication in R. v. Bisson, [2004] O.J. No. 59 (Ont. S.C.), in an application for certiorari on committal for trial. There, he found that evidence said to permit the circumstantial inference of confinement in a first-degree murder charge was consistent with many explanations.

[35] Justice Dawson followed the reasoning of Wilson J. in State of Washington et al. v. Johnson (1988), 40 C.C.C. (3d) 546 (S.C.C.) that, "when a number of inferences are equally consistent with the proven circumstances, as a matter of law, there is no affirmative evidence of any one of those inferences which happens to match the Crown theory of the case". In effect, at the preliminary inquiry stage, where circumstantial evidence is equivocal, it is not possible to "bridge the inferential gap" without speculation or choosing from among inferences and a discharge should follow.

Application to this Case

[36] The evidence here pointing to the defendant's knowledge of the firearm is circumstantial and sparse. This is not a strong case.

[37] Mr. Nakhla was the primary resident of the apartment, although he spent considerable time out of the country. In his absence, Talha Saeed, had a key and full access, inviting others over at his discretion. It appears he spent a great deal of time there. He organized a New Year's party at Bridletown Circle while the defendant was away. Others also had access.

[38] Mr. Nakhla was present during the execution of the warrant. Mr. Saeed was not, although he had slept over the night before and was present in the building at some point during the search. Three others who were visiting overnight and arrested denied knowledge of the firearm in statutory declarations.

[39] The firearm was probably found under or behind a red couch in the living room positioned against one wall. The evidence permits an inference, as well, that it was taken from inside a zippered pouch under the couch.

[40] A shell casing matched to the firearm was located under some papers on the dining room table that included identification of the accused.

[41] As Mr. Bayliss points out there is no direct evidence of his client's knowledge of the firearm, nor was it in plain view. Several others frequented the apartment and Mr. Saeed had regular access in Mr. Nakhla's absence, often sleeping over.

[42] It is open to be inferred on this evidence that the primary resident, present at the time of the search, had possession of the firearm under the couch or secreted in a zippered pocket of the couch. However, an inference of knowledge and control is also available in relation to Mr. Saeed who was a friend of the accused and at least a part-time occupant of the apartment. He was not called as a witness, nor has he denied knowledge of the weapon, as did the others.

[43] It would be speculative, without more direct evidence, to conclude that he and the defendant were in joint possession of the firearm. As well, on this evidence, without more, it would be akin to an "educated guess" to choose from among near-equivocal inferences of knowledge on the part of each, control being conceded by Mr. Nakhla and reasonably inferred in relation to Mr. Saeed.

[44] In this evidential context, I am unable to conclude that there is sufficient evidence of an essential element of the offences that would permit a properly instructed jury, acting reasonably, to find guilt to the requisite standard. The accused will be discharged.

Released: March 30, 2015

Signed: "Justice L. Feldman"