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make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,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

Ontario Court of Justice

Date: February 20, 2015

Court File No.: Brampton 14-6197; 14-6198

Between:

Her Majesty the Queen

— and —

Travis Robinson and Glenroy Simpson

Before: Justice Copeland

Heard: January 26, 2015 and February 12, 2015

Reasons for Judgment Released: February 20, 2015

Counsel:

• Mr. Morris — counsel for the Crown
• Mr. Dwyer — counsel for Travis Robinson
• Mr. Fahmy — counsel for Glenroy Simpson

COPELAND J.:

Introduction

[1] Travis Robinson and Glenroy Simpson are each charged with possession for the purpose of trafficking of marijuana and cocaine, as well as a number of weapons offences in relation to one loaded semi-automatic handgun. The offences arise out of a search pursuant to a warrant of a two bedroom apartment which was leased to Mr. Robinson, and which there was evidence was occupied by both Mr. Robinson and Mr. Simpson. The charges are contained in two Informations. The preliminary inquiry was conducted concurrently on both Informations by agreement of counsel.

[2] In addition to the counts charged in the two Informations, Crown counsel seeks committal pursuant to s. 548(1)(a) of the Criminal Code on the offences of conspiracy to possess for the purpose of trafficking both marijuana and cocaine.

[3] Counsel for Mr. Robinson concedes committal on the counts charged in the two Informations, but contests the Crown request for committal on conspiracy to possess for the purpose of trafficking marijuana and cocaine.

[4] Counsel for Mr. Simpson concedes committal on the two counts of possession for the purpose of trafficking. He contests the Crown request for committal on conspiracy to possess for the purpose of trafficking marijuana and cocaine. He also contests committal for all of the charges relating to the firearm.

[5] I will first address briefly the counts for which committal is not contested.

Counts Not Contested

[6] In relation to Mr. Robinson, I accept the defence concession, and I find based on the evidence I heard that there is evidence on which a reasonable jury, properly instructed could find that he possessed marijuana and cocaine for the purpose of trafficking, and could find that he is guilty of the offences he is charged with in relation to the handgun and ammunition. In particular, I find that those inferences are open to the jury based on the following evidence:

1. The apartment was leased to Mr. Robinson.

2. Mr. Robinson was found in one of the two bedrooms in the apartment at the time the search warrant was executed.

3. In the room in which Mr. Robinson was found, the police found quantities of marijuana and cocaine, three scales, and a loaded semi-automatic handgun. The drugs and the scales were inside a black safe in the closet. The gun was hidden in a closet, sandwiched within a pile of folded pairs of jeans, which I will address further in relation to Mr. Simpson. But counsel for Mr. Robinson did not contest at the preliminary inquiry that the inference was open to a jury that Mr. Robinson possessed the items in the room.

4. The defence does not contest that the amounts of the cocaine and marijuana were sufficient for it to be open to a jury to draw the inference that the possession was for the purpose of trafficking.

[7] For these reasons there is a committal for trial for Mr. Robinson on the two counts of possession for the purpose of trafficking and on all of the offences related to the firearm (i.e., all of the counts in the two Informations).

[8] In relation to Mr. Simpson, I accept the defence concession, and I find based on the evidence I heard that there is evidence on which a reasonable jury, properly instructed could find that he possessed marijuana and cocaine for the purpose of trafficking. In particular, I find that those inferences are open to the jury based on the following evidence:

1. In the second bedroom of the apartment and its ensuite bathroom, the police found marijuana and cocaine, and a scale of a type that, according to one of the officers, is commonly used to weigh drugs. In particular the drugs were found in a TV stand in the bedroom and in the vanity in the ensuite bathroom.

2. Just prior to the execution of the search warrant when the tactical unit arrived, Mr. Simpson was found in the hall approximately 5 or 6 feet from the doorway to the apartment unit, with the door ajar, apparently on his way towards the apartment. At the time, he was wearing track pants, a tank top, and socks but no shoes. This evidence, with the other evidence could reasonably support the inference that Mr. Simpson had just been in the apartment and was returning there.

3. It is open to a reasonable jury properly instructed to infer that this bedroom was occupied or under the control of Mr. Simpson, and that he had knowledge and control of the items in the room. In addition to his presence just outside the apartment in indoor clothes with the door ajar, I heard the following evidence which supports this inference. The cocaine found in the bathroom was in a box with the name "GLENROY" on the lid. And there is evidence that in the TV stand in the bedroom where drugs were found also found was a health card in the name of Glenroy Simpson, and a photo of Mr. Simpson with a mall Santa and two children.

4. The defence does not contest for purposes of the preliminary inquiry that the amounts of cocaine and marijuana found were sufficient for it to be open to a jury to draw the inference that the possession was for the purpose of trafficking.

[9] For these reasons, there is a committal for trial for Mr. Simpson on the two counts of possession for the purpose of trafficking.

[10] I turn now to the issues which are contested: 1) committal for conspiracy to possess marijuana and cocaine for the purpose of trafficking for both Mr. Robinson and Mr. Simpson; and 2) the offences in relation to the firearm for Mr. Simpson.

1. LAW IN RELATION TO THE TEST FOR COMMITTAL

[11] Section 548 of the Criminal Code mandates a committal if there is "sufficient evidence" to put the accused on trial. The test for sufficiency is the Shephard test: any evidence upon which a reasonable jury, properly instructed, could return a guilty verdict: United States v. Shephard, [1977] 2 S.C.R. 1067.

[12] Assessing the quality and the reliability of the evidence is not permitted at this stage of the proceedings; rather, the Crown's case is to be taken at its highest in those respects.

[13] The test for committal is the same whether the evidence is direct or circumstantial. However, the nature of the preliminary inquiry justice's task varies, depending on whether the Crown's case is based entirely on direct evidence or whether the Crown's case relies on circumstantial evidence. Where there is direct evidence of all of the essential elements of the offence, the task of the preliminary hearing justice is straightforward: there must be a committal for trial. The task is more complicated when the Crown relies on circumstantial evidence: R. v. Arcuri, 2001 SCC 54 at paras. 22-23.

[14] Where the Crown's case includes circumstantial evidence, the justice must engage in a limited weighing of the whole of the evidence, including any defence evidence, in order to determine whether a reasonable jury properly instructed could return a verdict of guilt of the charge alleged or of any lesser offence. While this weighing does not require consideration of the inherent reliability of the evidence itself, the preliminary inquiry justice must assess the reasonableness of the inferences that may be drawn from the circumstantial evidence. Where the Crown relies on circumstantial evidence, the question is whether the elements of the offence which the Crown has not proven by direct evidence may reasonably be inferred from the circumstantial evidence.

[15] To answer this question, the justice is required to engage in a limited weighing of the evidence, because with circumstantial evidence, there is, by definition, an inferential gap between the evidence adduced and the fact sought to be established. The issue is whether the evidence is rationally capable of supporting the inferences the Crown seeks to have drawn from it. It is for the jury to determine if the inferences should actually be drawn, but it is for the preliminary inquiry justice to determine whether the inferences alleged may reasonably be drawn.

[16] When determining if inferences may reasonably be drawn, the preliminary inquiry justice must weigh the evidence in a limited way. If the evidence is not rationally capable of supporting the inferences the Crown seeks to have drawn, it is not sufficient evidence to warrant committal.

[17] As noted by Ducharme J. in R. v. Munoz, [2006] O.J. No. 446 at para. 29, 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. At para. 31 he explains that "...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 a basis for a reasonably drawn inference."

[18] In R. v. Charemski, [1998] 1 S.C.R. 679, McLachlin J., as she then was, stressed the relationship of the sufficiency test to the principle of reasonable doubt. She explained at paragraph 30:

First, "sufficient evidence" must mean sufficient evidence to sustain a verdict of guilt beyond a reasonable doubt; merely to refer to "sufficient evidence" is incomplete since "sufficient" 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.

[19] The courts have also made clear that for an inference to be reasonable, the inference does not need to be "compelling" or "easily drawn": see R. v. G.W., [1996] O.J. No. 3075 at para. 62; R. v. Katwaru, [2001] O.J. 204 (Ont. C.A.) at paras. 39-41; Munoz, supra at para. 21.

[20] Moreover, any competing inferences are for the jury to resolve; it is jurisdictional error for a preliminary hearing judge to weigh competing inferences or choose among them: R. v. Campbell, [1999] O.J. 4041 at 165; R. v. Montour, [2002] O.J. No. 141 (Ont. C.A.) at paras. 3-5. Where more than one inference can be drawn from the evidence, "only the inferences that favour the Crown are to be considered": R. v. Sazant, 2004 SCC 77 at para. 18.

[21] In effect, in this case where committal is contested on some counts on issues relating to circumstantial evidence, I must decide whether the inferences the Crown seeks to rely on are speculative, in which case they are not open to a jury and I must discharge, or if the inferences are ones that a reasonable jury, properly instructed could draw, even if they may be viewed as perhaps weak inferences.

2. COULD A REASONABLE JURY, PROPERLY INSTRUCTED, FIND A CONSPIRACY TO POSSESS FOR THE PURPOSE OF TRAFFICKING MARIJUANA AND COCAINE OR A COMMON INTENTION TO DO SO?

[22] Crown counsel asks that I find that it is open for a reasonable jury, properly instructed, to find that the two defendants possessed a common intention to possess drugs for the purpose of trafficking, and asks for committal on two additional counts, conspiracy to possess marijuana and cocaine for the purpose of trafficking.

[23] On the evidence before me, a finding of common intention is not necessary for committal to trial for both accused on the two drug offences contained in the Information (i.e., the evidence would permit a jury to find that sufficient quantities of cocaine and marijuana were found in the room of each accused to draw the inference of possession for the purpose of trafficking, as outlined above at paragraphs 6-9). I understand the Crown to be pursuing the theory of common intention both to seek committal of Mr. Simpson on the firearm offences (discussed further below), and to seek committal on an additional two counts of conspiracy to possess for the purpose of trafficking of marijuana and cocaine (one count of each for each defendant).

[24] For the purposes of the preliminary inquiry in this case, based on the evidence before me, I see no difference between what the Crown would be required to prove for committal based on a common intention regarding possession for the purpose of trafficking or for committal on the additional requested counts of conspiracy to possess for the purpose of trafficking. The evidence before me does not relate to an alleged conspiracy where the substantive offence is not alleged to have been carried out. Although there are theoretical differences between common intention and conspiracy which may arise on different facts, in this case, if a reasonable jury could infer a common intention between the two defendants in relation to possession for the purpose of trafficking, it would equally be able to infer an agreement/conspiracy between them regarding possession for the purpose of trafficking, and vice versa.

[25] Crown counsel argues that a finding of common intention/conspiracy is open to a jury on the evidence before me based on the evidence that both Mr. Simpson and Mr. Robinson possessed amounts of cocaine and marijuana that a jury could infer were for the purpose of trafficking. The Crown's argument continues that since a jury could infer that each man was involved in similar conduct (possession of marijuana and cocaine for the purpose of trafficking), and they shared an apartment, from those first two inferences ((1) both men involved in similar activity, and (2) living together), the jury could draw the further inference that there was a common intention or conspiracy to engage in the possession of cocaine and marijuana for the purpose of trafficking. At its simplest, the Crown's argument is: because the jury could infer that the two men were each engaged in similar conduct (possession for the purpose), and they lived together, the jury can infer that they were engaged in the conduct together.

[26] Counsel for each of the defendants argues that the evidence would not allow a reasonable jury, properly instructed, to draw an inference of common intention or agreement to possess controlled drugs for the purpose of trafficking. They argue that such an inference would be speculative. In particular they note that the drugs found were found in the respective bedrooms of the two men. No drugs were found in the common areas of the apartment. Even though the defence concedes that the inference is open to a jury that the two men shared the apartment, the evidence is that they each had their own room. The only evidence of association between the two men is the inference that they were roommates, and that both were present at the time the search warrant was executed. But there is no evidence beyond that of the nature of their relationship, and no evidence of any conduct between the two men in relation to drugs or trafficking, apart from the drugs found in each bedroom in the apartment. Counsel for the defendants also note that there is no evidence that the men were in and out of each other's rooms such that they knew what the other was doing (I add parenthetically, that knowledge of each other's activities is not the test for common intention or conspiracy).

[27] I accept that it is possible as a matter of law for a trier of fact to draw an inference of a common intention or a conspiracy based on circumstantial evidence. Direct evidence of an agreement is not essential: R. v. Munoz, supra at para. 37. However, as with any inference based on circumstantial evidence, an inference of common intention or conspiracy must be based on the evidence, and must not be speculative. For purposes of the preliminary inquiry and committal, it must be an inference which a reasonable jury, properly instructed, could draw based on the evidence before me.

[28] Based on the evidence before me, I find that it would not be open to a reasonable jury, properly instructed to draw an inference of a common intention or conspiracy to possess marijuana or cocaine for the purpose of trafficking. Such an inference would be speculative. In coming to this conclusion I am mindful of the caution in the case law that an inference need not be compelling or easily drawn for it to be open to a jury. But there must be a basis in the evidence for a jury to draw the inference. A gap in logic or evidence cannot be filled by speculation.

[29] I have outlined much of the evidence I heard above. I find that the evidence would allow a jury to draw the inference that each of the defendants had in the respective bedroom under his control sufficient amounts of marijuana and cocaine to be for the purpose of trafficking. The evidence also would allow a jury to find that Mr. Robinson had a loaded semi-automatic weapon hidden in the closet in his room. In addition, the evidence places Mr. Robinson in the apartment at the time the warrant was executed. The evidence places Mr. Simpson just outside the apartment in indoor clothes with the apartment door ajar. In addition, certainly the inference could be drawn that Mr. Robinson and Mr. Simpson lived in the apartment together (each with his own room).

[30] This evidence unquestionably would allow a jury to draw the inference that each of Mr. Simpson and Mr. Robinson on his own possessed marijuana and cocaine for the purpose of trafficking. But in my view the further inference of a common intention or a conspiracy would be speculative.

[31] In coming to this conclusion I note, by way of example, that there are a number of areas where one sometimes sees evidence where common intention or conspiracy is alleged and which could support a finding of common intention, about which I have heard no evidence in this preliminary inquiry. In using these examples, I am not saying that evidence in any one of these categories would be necessary for it to be open to a jury to infer a common intention to possess controlled substances for the purpose of trafficking or to conspire to do the same. But I use these examples to highlight the limits of the evidence before me, and why I find that the inference of a common intention or a conspiracy would be speculative on the evidence before me.

1. Drugs were found in each of the bedrooms of the men and in the ensuite bathroom of the room which a jury could infer was Mr. Simpson's. No drugs were found in the common areas of the apartment, in particular none in the other bathroom, or the kitchen.

2. I heard no evidence from which a jury could draw the inference that the two men stored drugs together.

3. I heard no evidence of drugs changing hands between the two men (for example surveillance evidence or evidence of other witnesses). Indeed, I heard no evidence of any conduct between the two men prior to the date the search warrant was executed which could be used to support an inference of a common intention or agreement regarding possession for the purpose of trafficking.

4. There is no evidence of the nature of the relationship between the two men, apart from the fact a jury could draw the inference that they lived in the same two bedroom apartment, and a jury could draw the inference that they were both present at the apartment on the day the warrant was executed.

5. I heard no evidence of money changing hands between the two men.

6. I heard no evidence of any conduct by the two men related to drugs or drug trafficking engaged in together (apart from the evidence already referenced that a jury could draw the inference that each man had drugs in his own bedroom in the apartment, and a jury could draw the inference that they both lived in the apartment).

7. I heard no evidence of any conversations between the men – on any subject, but in particular none related to drugs or possession for the purpose of trafficking. Nor was there any evidence of conversation purported to be an agreement or show a common intention regarding possession for the purpose of trafficking.

[32] In summary, I reject the Crown's argument that because it is open to a jury to infer that each of the two men were engaged in the same type of conduct (possession of drugs for the purpose of trafficking), and there is evidence that they lived in the same apartment and were both there at the time the search was conducted, it is open to the jury, without more, to conclude that they were engaging in the conduct together as part of a common intention or agreement. Such an inference would be speculative in the absence of something more.

[33] For these reasons, I find that it would not be open to a reasonable jury, properly instructed to find a common intention or conspiracy between the two defendants to possess marijuana or cocaine for the purpose of trafficking. I dismiss the Crown's request for committal pursuant to s. 548(1)(a) on one count each of conspiracy to possess for the purpose of trafficking of marijuana and conspiracy to possess for the purpose of trafficking of cocaine.

3. FIREARM OFFENCES VIA S. 21(2) – COULD A REASONABLE JURY PROPERLY INSTRUCTED FIND THAT FIREARM OFFENCES ARE A PROBABLE CONSEQUENCE OF CARRYING OUT A COMMON INTENTION TO POSSESS CONTROLLED SUBSTANCES FOR THE PURPOSE OF TRAFFICKING?

[34] Crown counsel does not argue for committal for Mr. Simpson on the offences related to the gun on the basis that Mr. Simpson himself possessed the gun, but rather argues based on s. 21(2) of the Criminal Code. He argues that a reasonable jury properly instructed could find that there was a common intention on the part of Mr. Robinson and Mr. Simpson to engage possession for the purpose of trafficking (discussed above). Crown counsel further argues that possession of a firearm, and thus offences related to the firearm were foreseeable from the common intention of drug dealing, so that Mr. Simpson ought to have known that the firearms offences were a probable consequence of carrying out the drug offences.

[35] S. 21(2) of the Criminal Code requires proof of a common intention to pursue an unlawful act, and that the alleged party knew or a reasonable person in the circumstances of the party would know that the further criminal act is a probable consequence of carrying out the common intention.

[36] As I have found that a reasonable jury, properly instructed could not infer a common intention by the defendants to possess marijuana and cocaine for the purpose of trafficking, the first requirement of s. 21(2) is not an available inference to a jury on the evidence before me. For this reason it is not strictly speaking necessary for me to consider the second branch of the s. 21(2) analysis. However, for purposes of completeness, I will outline my conclusion that even if a reasonable jury could conclude on the evidence before me that there was a common intention between the two defendants to possess marijuana and cocaine for the purpose of trafficking, it would not be open to a reasonable jury properly instructed to find that the firearms offences were a probable consequence of carrying out a common intention to possess drugs for the purpose of trafficking.

[37] For the purposes of the preliminary inquiry, it is not in dispute that the evidence was that the gun and ammunition were found in the room which a jury could infer was Mr. Robinson's, in a closet, hidden in a pile of jeans. The evidence is also that all of the drugs were found in the respective bedrooms of each defendant (and also ensuite bathroom of Mr. Simpson), and not in the common areas of the apartment.

[38] Regarding the subjective knowledge branch of probable consequences, I did not understand Crown counsel to argue that a reasonable jury could find on the evidence before me that Mr. Simpson had actual knowledge of the gun or control such that the inference of possession directly via s. 4(3) of the Criminal Code would be open to a jury. Nor did I understand Crown counsel to rely on the subjective branch of s. 21(2). In any event, I find that such findings would not be open to a reasonable jury properly instructed, because they would rely on a speculative inference. As noted above, the gun was found hidden in the bedroom of the two bedroom apartment that for the purposes of the preliminary inquiry the jury could infer was Mr. Robinson's room. There is no evidence that Mr. Simpson was in that bedroom, or that his things were in that bedroom. I find it would be speculative a jury to conclude that Mr. Simpson had knowledge or control of the gun.

[39] Rather than argue that a jury could infer that Mr. Simpson had knowledge and control of the gun and thus find that he possessed it pursuant to s. 4(3), Crown counsel relies on an argument that an inference linking Mr. Simpson to the gun is available pursuant to the objective branch of s. 21(2) of the Criminal Code. He argues that it is open to a jury to find that a reasonable person involved in a common intention to possess drugs for the purpose of trafficking would know that it is a probable consequence of carrying out the drug possession offence that a firearm would be possessed or used.

[40] I find that the inference sought by the Crown would be speculative and not available to a reasonable jury, properly instructed. For me to find that it is open to a jury to find Mr. Simpson possessed the gun as a party under s. 21(2) (assuming at this point for the sake of argument that it is open to a reasonable jury to infer a common intention to possess controlled drugs for the purpose of trafficking), I would have to find that a reasonable jury, properly instructed, could infer that possession or use of a firearm (and the related firearms offences charged here) is probable consequence of carrying out the common purpose of possessing drugs for the purpose of trafficking. While I accept that a reasonable jury properly instructed could find that possession or use of a firearm is a possible consequence of carrying out a common intention to possess drugs for the purpose of trafficking, in my view it would be speculative for a jury to find that the firearms offences are a probable consequence of carrying out a common intention regarding drug offences. I note that there was no evidence led before me of the prevalence of use of firearms in drug trafficking.

[41] In coming to this conclusion, I have considered the reasons of Justice Gage in R. v. Cross, 2005 ONCJ 350 at paras. 52-61 on whether party liability for possession of a firearm and related offences can attach based on the argument that possession of a firearm is a probable consequence of the carrying out of a common intention to possess controlled drugs for the purpose of trafficking. I find that the facts of that case are similar with respect to this issue. Although I am not bound by Justice Gage's reasons, I find them persuasive. I find it would be speculative for a reasonable jury to find that possession of a firearm, and the related firearms offences that entails, is a probable consequence of carrying out a common intention to engage in drug dealing. Some people who engage in drug dealing use firearms and/or other weapons. However, I find this only raises the available inference to the level of a possibility that if two people have a common intention to engage in drug dealing, one of them may possess or use a firearm as part of the drug dealing. I find that it would not be open to a reasonable jury properly instructed on the evidence before me, assuming they could find a common intention to possession drugs for the purpose of trafficking, to make the further finding that possession or use of a firearm is a probable consequence of carrying out that common intention with respect to drugs. It is a speculative inference.

[42] The decision of the Supreme Court of Canada in R. v. Zanini, [1967] S.C.R. 715, referenced in R. v. Cross, is useful to contrast a non-speculative inference pursuant to s. 21(2) from a speculative one. In Zanini, the Supreme Court held that where there were facts from which a trier of fact could infer a common intention to commit break and enter of a dwelling house, it was also open to a jury to find pursuant to s. 21(2) that one of the accused ought to have known that possession of house-breaking instruments by another party to the common intention would be a probable consequence of carrying out the common intention to break and enter. This is a reasonable inference. If two people form a common intention to break into a house, a reasonable person would foresee that it is likely (probable) that one of the two would bring tools to carry out that intention. By contrast, firearms, or indeed any weapons, are not an instrument of drug possession in the same way that house-breaking instruments are tools to commit the offence of break and enter. While I am prepared to take notice of the fact that some people who engage in activities related to drug trafficking may possess or use firearms, that would only leave open to the jury the inference that possession or use of a firearm is a possible consequence of a common intention to engage in possession of drugs for the purpose of trafficking. An inference that possession or use of a firearm is a probable consequence of a common intention to possess controlled drugs for the purpose of trafficking would be speculative in the absence of some additional evidence (for example, evidence that a firearm was somehow discussed, or considered in the common intention). The evidence before me does not support that a reasonable jury could find that possession of a loaded firearm (and related firearm offences) is a probable consequence of a common intention to possess drugs for the purpose of trafficking. Such an inference would be speculative.

[43] I have considered Crown counsel's submissions based on R. v. Whervin, [2006] O.J. No. 443 (SCJ). Whervin concerns the application of the tertiary ground in the pre-trial bail context. It is not a case about the test for committal at a preliminary inquiry and what inferences can be drawn regarding possession of a firearm from evidence of a common intention to deal drugs. But even setting that aside, because the Crown argues the relevance of Whervin by analogy, Whervin does not support the Crown's argument that one can make an inference about probable involvement of a gun from proof of involvement in drugs.

[44] In Whervin, there was evidence that the accused was in possession of both drugs for the purpose of trafficking and a firearm. In Whervin the Crown was not arguing an inference of possession of a firearm based on s. 21(2) as a probable consequence of a common intention to traffic drugs. The evidence as presented at the bail hearing in Whervin was that the gun was found in the trunk of the car registered to the accused, which the accused drove daily, and the accused was driving the car at the time the car was stopped and the gun found in the trunk, and cocaine was found in the console of the driver-side door (Whervin at paragraphs 4-6 and 10). Thus, Justice Hill's comments at paragraphs 10, 13 and 14 about the availability of the inference that the gun was to be used in relation to drug trafficking were made in the context of evidence which appeared to show that the accused himself possessed the firearm and the drugs at the same time – thus, on the facts, raising concerns in relation to the tertiary ground. Justice Hill's comments simply do not address the argument made in this case by the Crown that one can infer that an individual ought to know a gun would probably be involved if the individual is involved a common intention to commit offences involving drugs.

[45] For these reasons, Mr. Simpson is discharged on all of the counts relating to the firearm and ammunition.

Released: February 20, 2015

Justice J. Copeland

Footnotes

[1] Although Justice McLachlin, as she then was, dissented in the result in Charemski, there was no disagreement between the majority and the dissent regarding the test for committal. The statements regarding the test for committal by the dissent in Charemski were subsequently approved by a unanimous Supreme Court in R. v. Arcuri, supra at paras. 27-28.

[2] The evidence was that drugs were found in each of the bedrooms, and in the bathroom that was ensuite to the bedroom in which the health card of Glenroy Simpson was found. There was evidence led that no drugs were found in the second bathroom (the non-ensuite one) or the kitchen. No evidence was led regarding whether there was a living room in the apartment.