Court Information

Information No.: 2013-311 Date: October 31, 2016 Ontario Court of Justice (at St. Catharines, Ontario)

Parties

Between:

HER MAJESTY THE QUEEN

• and -

BRIAN JULIAN

Counsel

Mr. D. King for the Crown

Mr. D. Paquette for Brian Julian

Judge

J.S. NADEL, J.

Introduction

[1] On July 15, 2011 police officers executed a search warrant at Brian Julian's home and property at 6398 Highway No. 3, Canfield, Ontario. The warrant authorized the officers to search the house and out-buildings for "firearms, ammunition and documents relating to the ownership or acquisition of found firearms."

[2] Constable Jeff Ordronneau searched Julian's bedroom on the second floor of the home. He found two long guns hidden under the king-sized mattress of the bed that Julian shared with his wife, Shari. He found a .30-30 Winchester rifle loaded with four shells, including one in the chamber, under the left side of the mattress. He then lifted the right side of the mattress and found a 12-gauge Savage model 820B pump action shotgun loaded with three shells.

[3] Other officers found various types and amounts of ammunition in Julian's kitchen and garage. The details of those discoveries will be related momentarily.

[4] Officer Trevor Pitts searched the large, cluttered and unfinished basement of the home. Abutting the wall behind the staircase from the kitchen down into the basement Pitts saw an air hockey table. Access to the air hockey table was blocked off, slightly, by an unhung door that had been leaned up horizontally against the front of the air hockey table. On top of the air hockey table was a sleeping bag and on top of the sleeping bag was a cardboard box that once held a piece of weight reducing equipment. Wrapped up in the sleeping bag that was sandwiched between the cardboard box and the air hockey table Pitts found an unloaded SKS "assault" rifle, together with a "banana" clip that contained 18 rounds of 7.62 mm ammunition. The assault rifle had a pistol grip with a wood stock. The ammunition clip was not seated into the rifle but both items were wrapped up together in the sleeping bag.

[5] As a result of these discoveries Mr. Julian was charged with the following offences upon which the Crown proceeded by indictment:

Count 1: careless storage of firearms contrary to Regulation s. 117(h) of the Firearms Act being an offence, contrary to s. 86(2) of the Code;

Count 2: possession of the shotgun without being the holder of a licence to do so, contrary to s. 91(1) of the Code;

Count 3: possession of the Winchester rifle without being the holder of a licence to do so, contrary to s. 91(1) of the Code;

Count 4: possession of a 7.62 mm rifle without being the holder of a licence to do so, contrary to s. 91(1) of the Code; and,

Count 5: possession of a prohibited firearm together with readily accessible ammunition capable of being discharged in the prohibited firearm without being authorized or licensed to possess the prohibited firearm in that place, contrary to s. 95(2) of the Code.

[6] Julian concedes his guilt on the first three counts. He controlled and managed a marijuana grow in buildings on his property under his own licence to do so. The legality of that enterprise is not a matter in issue at this trial. Julian had a few employees working for him as well as many hangers-on and volunteers about. So, there were often several people, other than family members, at the property. Hence, the existence of his "grow" was not a secret and he had to guard his business from poachers. Earlier in 2011 Julian had hired a night watchman who was attacked and badly injured by someone during his security shift.

[7] Julian and his wife testified that after that incident and at her behest Julian obtained the weapons found under his mattress for protection.

[8] His guilt on the first three counts notwithstanding, Julian, (and his wife,) denied any knowledge of the existence of the assault rifle and ammunition magazine found in their basement.

Ammunition Found in the Garage

[9] Ordronneau also searched Julian's garage, which was a large structure quite separate from Julian's home. There, abutting a stand-up multi-drawered, red, metal toolbox Ordronneau found a blue hard plastic case of the sort that might house a drill set. In that case he discovered:

• ten boxes each of which contained 50 rounds of 9 mm handgun ammunition;
• two boxes each of which contained five 12-gauge Winchester shotgun rounds; and
• two boxes each of which contained five 12-gauge Buck Federal shotgun rounds.

[10] In the second drawer up from the bottom of the red tool box Ordronneau found a plastic bag that contained 24 blue-papered sleeves. Each of these sleeves contained 10 rounds of 7.62 mm rifle ammunition.

Ammunition Found in the Home

[11] O.P.P. officer Lee Fulford was also one of the searchers. He searched in the kitchen. To the left of the stove, on the second shelf of an upper corner-angled kitchen cupboard, he found a large mug that contained 11 12-gauge shotgun shells. That same cupboard also housed four other boxes of ammunition.

[12] On the third and top shelf of the cupboard he found a box of 9 mm "Browning Court/.380 Auto" ammunition. According to the printing on the box, while it was designed to hold 50 rounds it only contained 18 live rounds.

[13] In the same cupboard he also found a full box of 20 "Norinco" 7.62 rifle rounds. Fulford did not note or recall that box's exact location in the cupboard.

[14] Finally, in the same cupboard, he found, what appears to be, a black men's toiletries case. It contained two boxes of "Remington Hi-Speed Centre Fire" .30-30 rifle cartridges. One of the boxes contained 13 live rounds and one spent round, while the other box was a complete box of 20 .30-30 rounds. As with the 7.62 ammunition, Fulford's notes and recollection were deficient. He was not able to orient or locate the spots in the cupboard where he found these various types of ammunition, other than testifying that they were all in the same cupboard as the cup of shotgun shells and the box of 9 mm ammunition.

[15] To recapitulate, Fulford found the following in Julian's kitchen cupboard:

• 11 12-gauge shotgun shells;
• 18 9 mm rounds in a box designed to hold 50, on the top shelf;
• a full box of 20 7.62 rifle rounds;
• a full box of 20 .30-30 rifle rounds;
• a partial box containing 13 live .30-30 rifle rounds and one spent cartridge.

Defence Evidence

Shari Julian

[16] Julian and his wife testified in his defence. They testified twice. They first testified on an application seeking to obtain the identity of confidential informants referred to in the Information to Obtain the search warrant and then again on the trial proper, (when counsel could not agree as to what evidence given on that application would be substantively admissible on the trial.)

[17] Shari and Brian Julian share five children from their blended families. While she testified that she was aware of the shotgun and .30-30 rifle she said that she had no knowledge of the assault rifle or its magazine. I accept that statement. Moreover, she said that she would not knowingly permit such a weapon to be in her home given that her children resided there, especially since some of them played in that basement.

[18] Her evidence was that she asked her husband to get some protection after the assault on the night watchman. She said that she knew that he had obtained two guns from his father but she did not know where they were in the home and she did not know they were under her mattress. I do not accept that portion of her evidence.

[19] Mrs. Julian testified that their king-sized mattress was so heavy that she could not lift a corner of it without help. Hence, she did not know about the weapons under the mattress. But, when Ordronneau searched her bedroom he asked, "Is there anything in the bedroom that we're going to find?" She nodded in the affirmative and Ordronneau then asked, "Can you elaborate a little more on that?" In response Shari Julian said, "Well, there may be something under the bed."

[20] Mrs. Julian also testified extensively about a number of individuals who may have felt aggrieved towards her husband. Those persons and the nature of their respective grievances were outlined by footnote in a prior ruling in this matter. I have appended the substance of that prior summary of this evidence in the next footnote.

Brian Julian

[21] Julian testified and denied any knowledge of the assault rifle and magazine found in his basement or of the 7.62 ammunition in the tool box in his garage or of any actual knowledge of the 7.62 ammunition in his kitchen cupboard.

[22] He testified that that tool box originally belonged to his father and he did not know of the presence of that ammunition in it. He did not say that that ammunition belonged to his father nor did he testify that his father had placed it in the tool box.

[23] So far as the ammunition found in his kitchen cupboard was concerned he testified that when he picked up the Savage 12-gauge shotgun and the .30-30 Winchester rifle from his father, his father also gave him a bag of ammunition which he did not sort through. He implied that the 9 mm ammunition likely was included in that bag of ammunition and possibly the 7.62 ammunition, as well. However, I note that the ammunition found in the kitchen cupboard was not gathered together in a bag. Hence, someone, at some time, must have taken it out of the bag that Julian said that he received from his father, if Julian's evidence on this point is accepted. In addition, one or more persons, at some point or points, must have put the various types of ammunition into the various spots that it was found in, in Julian's kitchen cupboard.

[24] Julian suggested another possibility to account for the 7.62 ammunition found in his kitchen cupboard. He testified to facilitating the proposed sale between two acquaintances of a rifle that used 7.62 ammunition. One of the two had such a gun and the other was interested in buying it. They met at Julian's property and shot off several rounds. The sale was never consummated as the parties could not agree upon a price. Julian surmised that the box of 7.62 ammunition found in his kitchen cupboard may have been brought to his home by one or another of the parties and simply left there when the deal was not consummated, though how it got into his kitchen cupboard was not detailed or explained.

[25] Ultimately, he testified that the items in the basement were not his. He did not know of their presence. He surmised that, given the number of people who had access to the basement via a basement door, many people had the opportunity to hide the rifle and magazine in his home without his knowledge or consent. Whether someone did so for their own use or benefit as a safe storage site or whether someone was trying to implicate him in a crime vengefully he could not say, (though the main thrust of the defence evidence was the later hypothesis.)

The Defence

[26] Mr. Paquette's actual submissions will be detailed momentarily. Several lines of defence to the allegations of possession respecting the assault rifle and magazine are advanced, beyond simply relying upon the presumption of innocence: namely,

1. that Julian's denial of knowledge should be believed and he should be found not guilty of the two offences that he denies committing;

2. that even if Julian's denial is not believed it ought not to be discounted and rejected so that once again, he should be found not guilty of the contested counts; and,

3. that, in any event, the Crown's case is a circumstantial one that fails to meet the criminal burden for a variety of reasons that Mr. Paquette detailed in his submissions. Hence, once again, Counts 4 and 5 ought to be dismissed.

4. By way of anticipation, those reasons stress that the evidence discloses a lack of exclusive access to the basement by Julian.

5. That lack of exclusivity is augmented by the number of other persons who may have resorted to hiding the weapon and ammunition in the basement unbeknownst to Julian.

6. That lack of exclusivity is further augmented by the large number of persons who may have acted on grudges against Julian in order to frame him.

The Submissions of Mr. Paquette

[27] After conceding that the Crown had met its burden of proof with respect to the Counts 1, 2 and 3 described in paragraph [5] Mr. Paquette stressed that Mr. Julian is presumed innocent and the burden of proof rests squarely with the Crown on the remaining two counts to adduce evidence of guilt on those counts to the exclusion of any reasonable doubt.

[28] Mr. Paquette reminds me that there is no obligation on Mr. Julian to prove his innocence. Notwithstanding, he submits that Mr. Julian has essentially done everything within his power, within the bounds of the law, to attempt to establish his innocence.

[29] Mr. Julian's position is simple: he acknowledges possession of the two long guns found under his mattress but denies any knowledge of the assault rifle and its magazine found hidden and out of sight down in the cluttered basement of his home.

[30] He asserts that the gun and magazine was put there by someone else and he has given testimony in support of that assertion and has exposed himself to cross-examination.

[31] Mr. Paquette underscores that this court does not need to determine how the items got into Mr. Julian's home, nor how it was put there or by whom. Further, the court need not determine why the items were put there or how long they had been there before being discovered.

[32] Rather, based upon all of the evidence, the court need only determine whether the Crown has proved to the exclusion of any reasonable doubt that the offences at issue were committed by Mr. Julian.

[33] Mr. Paquette submits that the court should focus on the issue of knowledge and ask whether or not the Crown has proven that Mr. Julian had knowledge of the presence of the assault rifle and magazine in his home to the exclusion of any reasonable doubt.

[34] To that end the court must be cognizant of the fact that any evidence of knowledge is, at best, circumstantial. As a result, in order to find guilt, inferring that Mr. Julian had knowledge of the presence of the items in the basement must be the only reasonable inference available to be drawn. In weighing the evidence, the court is required to consider the existence of other reasonable possibilities inconsistent with guilt.

[35] Mr. Paquette referred the court to paragraphs [37] and [38] of R. v. Villaroman, 2016 SCC 33 where the court provides instruction on how to proceed in a case such as this:

37 When assessing circumstantial evidence, the trier of fact should consider "other plausible theor[ies]" and "other reasonable possibilities" which are inconsistent with guilt: R. v. Comba, [1938] O.R. 200 (C.A.), at pp. 205 and 211, per Middleton J.A., aff'd, [1938] S.C.R. 396; R. v. Baigent, 2013 BCCA 28, 335 B.C.A.C. 11, at para. 20; R. v. Mitchell, [2008] QCA 394 (AustLII), at para. 35. I agree with the appellant that the Crown thus may need to negative these reasonable possibilities, but certainly does not need to "negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused": R. v. Bagshaw, [1972] S.C.R. 2, at p. 8. "Other plausible theories" or "other reasonable possibilities" must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation.

38 Of course, the line between a "plausible theory" and "speculation" is not always easy to draw. But the basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty.

[36] In addition, Mr. Paquette referred the court to R. v. Bui, [2014] O.J. No. 4003 (C.A.) as a "perfect example" of the application of these principles in circumstances that are factually similar to this case.

[37] Within this legal framework and on the evidence adduced Mr. Paquette submits a verdict of guilt cannot be made.

[38] Counsel submits that while the evidence may perhaps be capable of supporting an inference of knowledge of the basement items it is also capable of supporting an inference that the items were placed within Mr. Julian's household without his knowledge and without his consent.

[39] Counsel points to the evidence of Pitts, (reviewed above at paragraph [4],) who found the items. That evidence establishes that the items were not in plain view. They were out of the way, out of sight and well hidden in the large, unfinished and very cluttered basement.

[40] The defence submits that the location of the items make the inference, that it was entirely possible and reasonable that they could have been placed in that location and remained in that location without Mr. Julian's knowledge, cogent. This is particularly so when one considers the evidence given by Brian and Shari Julian that a number of individuals had the motive and opportunity to plant the items in that basement.

[41] Additionally, there was Julian's handful of employees as well as other "volunteers," (who wanted to learn about the business and who provided Julian with free labour as a result,) around the property. Any of these individuals had access to the basement. So, any of them could have placed the items in the basement, according to the defence evidence. Whether one of them did so to frame Mr. Julian or even for their own storage or hiding purposes is an available and reasonable inference, which precludes any finding of guilt.

[42] Mr. Paquette noted that, while there is a lockable door from the kitchen to the interior stairwell accessing the basement, there are double barn-style doors accessing the basement directly from the outside of the property. Further, those doors were habitually left unlocked during the day with their alarm disabled during that time so that they were insecure. This was a matter of convenience, as young plants were stored in a portion of the basement of Julian's home. As well, the barn doors were warped and it was very difficult for Shari Julian to manipulate their interior locking mechanism so they were left unlocked during the day.

[43] In addition to the uncontrolled access by workers and volunteers, Mr. Paquette points to the defence evidence about other named persons who had access to the basement and who had the basis for a motive to wish harm to be done to Mr. Julian and who therefore may well have acted on those motives by planting the basement items. A thumbnail of this evidence is set out at footnote 10.

[44] There are two other matters pointed to by Mr. Paquette in support of his submission that Julian's guilt is not the only reasonable inference to be drawn. First, Mr. Paquette points to Mr. Julian's admission of guilt with respect to the guns found under his own very heavy bedroom mattress. He argues that his client's evidence is credible; that he put the guns there so there would be no chance that the children could find and access them.

[45] Counsel invites me to ask myself whether it makes any sense that Mr. Julian would safely secrete the two guns away from his children and yet leave a much more dangerous and deadly weapon available to be discovered and potentially used to do harm to themselves in the basement; a place where the children sometimes played, including having a pellet gun range set up there.

[46] Further, Mr. Paquette argues that it does not make sense that Mr. Julian would leave these items in basement where any of the many people who could access it might find them and call the police.

[47] He argues that the juxtaposition of the locations where weaponry was found in the home is both inconsistent with the inference of knowledge in Mr. Julian and that this juxtaposition makes that inference illogical, (and therefore unreasonable,) too. The fact that the basement was used for storage, used by the children as a play area and used daily for laundry, given a household of seven, are factors that support this submission.

[48] Next, Mr. Paquette turned to the issue of the ammunition found. First, counsel notes that the 7.62 ammunition found in the kitchen is not identical to that found in the garage. The rounds found in the kitchen appear to be copper-jacketed while the ones found in the garage are of a different appearance, being dark, with a matte finish. Further, the rounds found in the garage were not in plain sight, being housed in the second from the bottom drawer of a red toolbox.

[49] Moreover, that garage was insecure, unlocked and routinely accessed by others and available to be accessed by any of the many people who attended Mr. Julian's property daily.

[50] While Mr. Paquette concedes the presence of this ammunition is concerning and suspicious, like the weapon itself there are alternative and reasonable explanations or inferences that can be drawn to account for it and those alternative inferences and explanations are inconsistent with Mr. Julian having knowledge of it in his garage.

[51] Counsel stresses that it is noteworthy that no fingerprint or other forensic evidence was tendered that connected Mr. Julian to the items in the basement or the 7.62 ammunition in the garage. That kind of investigation was within the sole prerogative of the police to undertake. Hence, the court should proceed on the basis that Mr. Julian's prints are not on any of the items in the basement or in the tool-box in the garage.

[52] As to an explanation for the presence of that ammunition, Mr. Julian gave evidence that Trevor Bomberry had a rifle that used 7.62 ammunition, though it only had a five-shot capacity. He testified that another acquaintance named David Grills was interested in buying it. About four months prior to July 15, 2011, Mr. Bomberry and two of his friends met up with Mr. Julian and Grills and Grills' son at Julian's property. Mr. Julian testified that Grills brought a box of ammunition to that meeting and several of the individuals present shot off rounds using Bomberry's rifle. However no deal was consummated between Bomberry and Grills since they could not agree on a price.

[53] Turning to the relevant case law, Mr. Paquette referred to R. v. Grey, [1996] O.J. No. 417 (C.A.); R. v. Do, and R. v. Turner, 2012 ONCA 570 in support of the proposition that occupancy or residency in and of itself is not determinative of knowledge of the contents within the residence. Making such a finding or drawing such an inference, merely from the fact of occupancy or residency, would impermissibly shift the burden of proof to the accused in a criminal proceeding.

[54] In addition to that principle, Mr. Paquette stressed its application in R. v. Bui, [2014] O. J. No 4003 (C.A.) arguing that Bui was essentially analogous to Mr. Julian's situation as it raised very similar issues. He argues that the facts in Bui provided the Crown with a much stronger basis to infer that Bui had knowledge of the handgun found in that grow house than does the evidence against Mr. Julian here. Yet, the Court of Appeal allowed Bui's appeal and dismissed the gun count against him on the basis that the evidence was open to other reasonable inferences other than that Bui had knowledge of the gun found in the grow house.

[55] As reviewed by Mr. Paquette, the facts in Bui were that a handgun was found in a property that Bui co-owned with his wife. The property housed a grow operation. Male and female clothing was found in the home along with pill bottles prescribed for a number of different persons, although one of the bottles was prescribed for Bui. Mail, including utility bills, addressed to Bui was found in the home and when Bui was arrested in the driveway of the property he had a key to the premises in his pocket.

[56] Mr. Paquette submits that in many ways the facts in Bui presented a much stronger case for the inference of knowledge in Bui because unlike Mr. Julian's situation, there was no direct evidence in Bui of other persons having access to the home. Moreover, the gun in Bui was found in Bui's bedroom, according to Mr. Paquette's submission.

[57] In these circumstances, the Ontario Court of Appeal found that the trial judge had erred in holding that inferences other than guilt could only arise from proven facts. The trial judge rejected the submission that the handgun could have been hidden in the mattress, where it was found, by someone other than Bui because there was no proof of other persons being involved in the grow operation.

[58] The Court of Appeal held that the trial judge erred by failing to consider that the inference that other persons were involved in the grow operation could come from the pill bottles and the male and female clothing found in the home. Moreover, the Court of Appeal held that in these circumstances the conviction for the firearm constituted an unreasonable verdict.

[59] In brief compass, Mr. Paquette urges that paragraph [36] of Bui is an answer to the Crown's contention that knowledge in Mr. Julian of the presence of the basement items should be inferred. As the court ruled in Bui, in the circumstances proved there, (and Mr. Paquette urges they are analogous to the proof here,) "in the absence of some specific evidence linking the appellant to the gun, I see no basis on which a trier of fact could exclude the possibility, founded on the evidence, that another person hid the handgun and ammunition in the bed without the appellant's knowledge."

[60] Applying Bui together with the guidance given by the Supreme Court of Canada in Villaroman Mr. Paquette submits that the Crown has not proven guilt beyond a reasonable doubt. Simply put, the rifle and magazine were found in a place where Mr. Julian would not have been aware of their presence. That place was an area where multiple parties had access to it on a regular basis. The same holds true with respect to the 7.62 ammunition found in the shed.

[61] Mr. Paquette went on to repeat the submissions that he made that are referred to at paragraph [40] and paragraph [24] above. He stressed that Mr. Julian's inability to explain the presence of the items in the basement does not detract from the Crown's burden to prove to the exclusion of any reasonable doubt that Mr. Julian had knowledge of the rifle and magazine found out of sight and hidden in the basement.

[62] In summation, Mr. Paquette contended that the circumstances proved in this case give rise to reasonable alternative inferences, other than that Mr. Julian had knowledge of the items in his basement and that the Crown has failed to negative those other reasonable inferences. Hence, Mr. Julian must be acquitted on Counts 4 and 5.

The Submissions of Mr. King

[63] Mr. King began by noting that there is a significant difference between the guns under the mattress and the gun in the basement. In his submission this difference suggests why a person might not want to be associated with the basement gun in 2011, as possession of such a prohibited weapon then attracted a substantial minimum mandatory sentence.

[64] Similarly, Julian's concession of guilt for the weapons under his mattress is merely an acknowledgment of the inevitable, since any suggestion that someone else could have been responsible for their presence would be incredible.

[65] According to Mr. King, Bui is distinguishable from Julian's situation because, there was really not much evidence in Bui linking that appellant to the grow operation where the handgun was found. Here, there is abundant evidence that this is Julian's house where he lives with his family. There is nothing tenuous about his connection to the property.

[66] Turning to the defence theory that somebody else put the assault rifle and magazine in the basement unbeknownst to Julian, Mr. King's ultimate submission was that this hypothesis evaporates upon examination. He submits that it makes no sense and is contrary to common sense that someone, other than Julian, would store their firearm in Julian's basement for a number of reasons:

• It is a valuable piece of property;
• It is a tool that has some use;
• It is of no use to anybody else when stored in Julian's basement;
• (It is of no use to anybody else when stored in Julian's basement except for Julian who was protecting his grow operation;)
• No one, other than Julian, would have ready access to the weapon;
• The gun is relatively large, with a unique shape;
• It would be impractical and it is unreasonable to think that an employee or "volunteer" would be able to bring a long gun to work and not be seen to do so or not be seen attempting to hide it in Julian's basement.

[67] Mr. King observed that the suggestion that many people had access to the basement would increase the likelihood of being seen. The suggestion that someone, other than Julian, (who had access to the basement at his leisure and convenience,) would attempt to avail themselves of his basement as a storage site is unreasonable. Moreover, such a person would have no control over the property.

[68] In the Crown's submission it makes no sense that somebody would store their valuable property in a place to which they would not have unrestricted access to it and in a place where they could easily be caught attempting to store or retrieve their property. It makes no sense that somebody would take the risk of hiding valuable property in a place over which they had no control. Such a person would not be able to access their property unconditionally. They would have to wait and take the chance of retrieving the item while others where about.

[69] The basement was part of the house proper and not some vacant building or rarely used building on the edge of the property into which one could sneak unobserved. Of course, Mr. King observed, that if you owned and lived in the house you would know who was there and when it was safe to hide something and retrieve it.

[70] Added to these comments Mr. King turned to the multiple rounds of ammunition stored in the garage. He submitted that it is illogical that one would store one's weapon in a basement that might not be accessible and also store the bulk of one's ammunition in a different spot. One would have to be able to get all of those rounds into the garage unseen and also get the gun into the basement unseen for a purpose that does not make any sense.

[71] The Crown observed that such a person would not have ready access to the gun or the ammunition being on someone else's property and in a place where Julian stored his motorcycles; a place replete with tools and other possessions of Mr. Julian. Such an individual could not expect such a quantity of ammunition to remain undiscovered in Julian's hobby-house.

[72] In sum, the Crown's submission was that there is no "air of reality" to the idea that someone other than Mr. Julian, somebody other than the person who had control over this property, (i.e., the home and buildings,) hid this ammunition in his garage and the assault rifle and magazine in his basement. To do so despite the inherent difficulties in effecting the hiding and in effecting a retrieval, also runs the risk of having your expensive weapon discovered and taken away. The hider's cache of ammunition is exposed to the same risks.

[73] Turning next to the theory of someone supposedly planting the rifle and magazine in the basement Mr. King submitted that this hypothesis, too, has no air of reality.

[74] Dealing with Mrs. Julian's evidence, Mr. King notes that she did not testify to Zenger going to the garage on July 13, 2011 so that his presence, according to her evidence, does not speak to how the hundreds of rounds of 7.62 ammunition got into the red toolbox. Equally, Mr. King submitted that it was "odd" to believe that Zenger would come to the house at night when people would likely be home and, according to her evidence, would come at a time when Zenger did not know that Julian was not at home. The Crown contends that it is unreasonable to credit Zenger with believing he would have an opportunity to hide those items in the basement in those circumstances.

[75] Further, Mr. King suggests that Mrs. Julian's behaviour, as recounted by her, was somewhat strange. First she testified that she thought it was her husband whom she heard in their basement. So she went outside to see who it was. Mr. King notes that if she thought it was her spouse in the basement since there is a door from the kitchen into the basement, it is odd that she would go outside to check who was inside, if Zenger actually was at the home as she alleged.

[76] There are many other "oddities" in the defence evidence called to support the framing hypothesis. For example, the Julians testified to a number of security issues including the attack on their night watchman and to several break and enters into that part of the grow operation housed in an outbuilding. So there is a history of a need for security according to the defence evidence.

[77] In addition, there is an important part of the grow operation pursued in their house basement – the plants which provide the cuttings for further propagation of the crop. Yet, despite these security concerns, the basement is left insecure essentially all day long and into the night until the door is locked and the alarm set.

[78] Mr. King submitted that leaving the basement where the items were found insecure, as testified to by the Julians, yet having the cuttings aspect of the operation insecure given the prior security breaches, does not make a lot of sense. Unless the assault rifle and readily available ammunition is the security system – available when you need it because you know where it is.

[79] Also odd, in Mr. King's submission, was the fact that the house was equipped with an electronic security system that included the barn-style doors leading into the basement. Despite having this security system in place, the Julians testified that it would be routinely disabled until 10:00 or 11:00 p.m. That was their practice even though their night watchman had been attacked at about the start of his shift at 10:00 p.m. Mr. King noted that this recitation of their evidence compared to their behaviour warranted another characterization of "oddity".

[80] Julian testified twice about a gun transaction and spoke to the facilitation of the acquisition of an SKS – the manufacturer of the assault rifle found in his basement. His testimony both on the voir dire and on the trial was inconsistent with his affidavit in that his testimony was that no sale transaction occurred while his affidavit implied a sale did take place. Further, Grills' name was not mentioned until Julian's second bout of testimony. Mr. King pointed out that Grills was the accused's surety when he testified on the first occasion but he was not Julian's surety on the second occasion of his testimony, which is when Mr. Julian first mentions Grills by name.

[81] Mr. King notes that Mr. Julian's evidence varied on the particulars of this purported event. At one point he testified that the gun belonged to Mr. Bomberry while on another occasion Julian testified that the weapon belonged to Bomberry's friend.

[82] The various peculiarities of Mr. Julian's evidence aside, the Crown submits that this evidence was designed to attempt to explain the presence of the 7.62 ammunition found in Julian's kitchen cupboard. That presence needed explaining as the same calibre of this ammunition was found with the rifle and in the garage. On Julian's evidence, Mr. Grills brings this calibre of ammunition to test the gun. Mr. King notes, in effect, the oddity of a purchaser bringing the fuel to test drive a used car for sale. But, the Crown says leave that oddity to one side because there is something even less reasonable about this tale. On his evidence, Mr. Julian asks one to accept that, for reasons left unexplained, after firing off some rounds the purchaser leaves a full box of ammunition that somehow makes its way into Julian's kitchen cabinet; a cabinet that is replete with ammunition for loading into and use in two other long guns that Julian admits to possessing.

[83] The Crown stresses that this is a full box of ammunition. So, says the Crown, it is not as though the owner of the box said to themselves, "Ah, there's just a couple of rounds left in this box; I'll just leave them here."

[84] The Crown submits that this story of a gun sale is an incredible attempt to account for the full box of 7.62 ammunition that was found in the accused's kitchen cupboard. In the Crown's view, this story of a left over box is incredible and not worthy of belief – that it is simply not true. Mr. King says squarely that this is untrue evidence that Julian has created out of whole cloth and tailored in an attempt to explain the box of 7.62 ammunition found in his kitchen.

[85] The Crown submits that the finding of this box is an important piece of circumstantial evidence that supports the inference that the accused knew about the gun and magazine found hidden in his basement. In the Crown's submission, the existence of the box of ammunition is particularly problematic for Mr. Julian because of the presence in the same cupboard of other rounds of ammunition that are used in the two long guns that he does admit to possessing: the 12-gauge shotgun and the .30-30 rifle.

[86] Respecting the fact that the basement magazine held shiny-tipped cartridges as opposed to darker matte-finished tips of the 7.62 ammunition in the garage, Mr. King noted that the nature of the tips of the 7.62 ammunition found in the kitchen were not identified by colour. The Crown professes to not understand the significance of the point given that Mr. Julian denies knowing about the ammunition in the magazine in the basement or about the ammunition in the garage. The difference in the look of the ammunition is irrelevant, given that position. So, for example, Mr. Julian does not say that he had 7.62 ammunition in the garage but it was of a different type than that found in his basement. If that was his position the difference in the appearance might be a relevant consideration. But, on Julian's position, the difference in look is irrelevant since Julian posits that the rounds in the magazine and the toolbox come from the same source, which is anybody other than him.

[87] Another oddity in the defence theory of a frame-up is that there were, as noted in footnote 16, quantities of 9 mm ammunition found in two different places in Julian's home. In addition, according to Mrs. Julian, one of the police searchers told her, in effect, that things would go easier if she would just produce "the" handgun to him. Mr. King observed that it seems odd that a police officer would be looking for a handgun, that ammunition for a handgun was found, and yet some "unknown" person – perhaps one of the persons named in footnote 11 – would plant an assault rifle.

[88] At the end of the day, the Crown submits that this case is resolved by a fact-driven analysis. Mr. King submits that Bui is distinguishable factually. Bui's possession of the grow house was much more tenuous than Julian's relationship to his home and grounds. The property in Bui was essentially a "grow" and nothing more and the Crown, in that prosecution, failed to establish Bui's control over the property. So, there was no basis for inferring knowledge of the gun found between the mattress and box spring. That, Mr. King urges, is not the situation in this case.

[89] Put simply the Crown submits that it is improbable that Mr. Julian could have control over three long guns, two of which were loaded and under his mattress, together with ammunition for all three weapons in two other spots under his control, (and three if one counts the ammunition in or very close to the weapons,) and not have knowledge of all three long guns. Knowledge of the assault rifle and magazine is the only reasonable inference available on the evidence. Any other inference is not "reasonable", given the senselessness of the proffered "storage" hypothesis and given the equally ephemeral "frame-up" hypothesis. This latter hypothesis is subject to many of the same frailties as the storage hypothesis. The Crown says that the defence "finger pointing" does not amount to another available reasonable inference. The only reasonable inference is that Mr. Julian had knowledge of the assault rifle and magazine, that he had control over them and that he was in possession of them.

[90] Ultimately, Mr. King reminds me that these weapons are situate within a marijuana grow operation that was subject to poaching. The loaded guns under the mattress speak to Mr. Julian's desire to be able to repel attacks on his home and family. The presence of the other hidden weapon in the basement – on a lower level of the home with access to the outside – is simply another line of defence that he developed, depending upon where he was in his home when he felt the need to mount a defence.

Mr. Paquette's Responding Submissions

[91] In brief responding submissions Mr. Paquette pointed out, once again, that the red toolbox in the garage was Mr. Julian's father's toolbox and that the 7.62 ammunition in that toolbox was not in plain view. Further that the 7.62 ammunition found in it was different in appearance from the ammunition in the magazine found in the basement.

[92] Mr. Paquette stressed that the Crown does not meet its burden by merely raising suspicion and that even heaping suspicion upon suspicion produces nothing more than suspicion. That is the nature of the Crown's case at its highest. Mr. Paquette submitted, once again, that Mr. Julian testified to his innocence and Mr. Julian has done all that he could do, within the limits of the law, to advance his assertion that the assault rifle and magazine were not his and he did not know they were in his basement.

[93] Mr. Paquette reminded the court, once again, that it is not the court's job to solve a puzzle. The case against Mr. Julian fails to exclude reasonable doubt and a verdict of not guilty on Counts 4 and 5 ought to be rendered.

The Law

Getting Oriented

[94] I have considered and applied the presumption of innocence and the burden and quantum of proof as demanded by the common law and as required and described in Lifchus and Starr and W.D., (which is how it is now commonly called.)

Alibi?

[95] This is not an alibi case and there is no onus or obligation on Mr. Julian to make any sort of answer, in a timely way or at all. (See R. v. Rohde, 2009 ONCA 463.)

Other Suspects

[96] The issue of "other suspects," which is raised by both the "framing" and the "storage" hypotheses is more complicated. Mr. Julian says that he is innocent; that he had no knowledge of the assault rifle and magazine hidden in his basement. He points to several other individuals that, he says, bear him ill will and who had the opportunity to plant the assault rifle and magazine in his basement. Alternatively, he suggests someone with access to his basement – an employee of his or perhaps a volunteer worker – may have stored those items in his basement without harbouring any ill will towards him, (though presumably to protect themselves from prosecution.) The defence position is that these same possibilities apply to the 7.62 rounds found in his garage.

[97] He urges that the possibility that one of these persons may have done so is a reasonable alternative inference to draw on the evidence, precluding any finding of guilt against him on the last two counts in the information.

[98] An accused may attempt to raise a reasonable doubt by adducing evidence that someone else is guilty of the offence charged. Evidence that someone other than the accused committed the offence charged is admissible if two conditions are met. First, the proposed evidence must be relevant and second, any prejudicial effect from admitting the evidence must be substantially outweighed by the probative value of that evidence. These principles originate in two leading cases: R. v. McMillan (1975) affirmed by the Supreme Court of Canada at (1977), and R. v. Williams (1985).

[99] The guiding principles are expressed by Mr. Justice Martin in McMillan as follows:

I take it to be self-evident that if A is charged with the murder of X, then A is entitled by way of defence, to adduce evidence to prove that B, not A, murdered X. A may prove that B murdered X either by direct or circumstantial evidence.

Evidence that a third person had a motive to commit the murder with which the accused is charged, or had made threats against the deceased is commonly admitted on this principle. Evidence directed to prove that the crime was committed by a third person, rather than the accused, must, of course, meet the test of relevance and must have sufficient probative value to justify its reception. Consequently, the Courts, have shown a disinclination to admit such evidence unless the third person is sufficiently connected by other circumstances with the crime charged to give the proffered evidence some probative value.

[100] This means that motive by itself or a prior threat made by another suspect by itself is not sufficient to make that motive or threat admissible. Justice Martin makes this patent at page 168, when he continued:

Obviously, unless the third person is connected with the crime under consideration by other circumstances, evidence of such person's disposition to commit the offence is inadmissible on the grounds of lack of probative value. For example, if A is charged with murdering X, in the absence of some nexus with the alleged offence, evidence that B has a propensity or disposition for violence, by itself, is inadmissible to prove B is the murderer because standing alone it has no probative value with respect to the probability of B having committed the offence.

[101] This guiding principle, which means that motive, animus, opportunity, disposition, prior record, etc., must be joined by admissible evidence of nexus to the crime before relevance is reached, was expressed by the Supreme Court of Canada in these terms:

There would be no probative value in the evidence that some other person quite unconnected with the circumstances surrounding the charge might because of his or her mental or emotional state be a more probable person to have committed the crime.

[102] In 1985 Mr. Justice Martin had occasion to re-state the point in R. v. Williams (1985) at 366.

It is beyond question that a person charged with the commission of an offence may adduce evidence tending to show that a third person committed the crime. The disposition of a third person to commit the offence in question is probative and admissible provided that there is other evidence tending to connect the third person with the commission of the offence.

[103] The applicant must demonstrate, for each proffered "other suspect", an evidentiary nexus beyond, motive, disposition, opportunity, prior record, animus or other impetus to commit the sort of crime being prosecuted. That evidentiary nexus must connect any proposed other suspect to the specific, known and provable circumstances of the particular crime being prosecuted.

[104] Beyond inclination, motivation or impetus to commit the crime being prosecuted, a demonstration of nexus to this specific crime must be made by way of admissible evidence for each proffered other suspect. (See R. v. Williams (1985) at 372)

[105] As stated in McMillan, the proffered evidence must meet the test of relevance. That is, it must rise above mere conjecture or speculation so that the evidence provides a rational connection between the other suspect and the crime.

[106] If there is no "sufficient" link between the other suspect and the specific offence, then the evidence is entirely devoid of probative value. In my view, that is the situation that obtains in Mr. Julian's case. His "finger-pointing," (as Mr. King characterized it,) does not rise above mere conjecture or speculation. Even accepting for the purposes of this analysis that several people wished to cause harm to Mr. Julian, there is a dearth of any evidentiary nexus beyond, motive, disposition, opportunity, prior record, animus or other impetus to commit the sort of crime being prosecuted. There is a dearth of any evidentiary nexus that connects any of the proposed other suspects to the specific, known and provable circumstances of Counts 4 and 5 in this information.

Circumstantial Evidence and Other Reasonable Inferences

[107] The most current statement of the "rule" in Hodge's Case is found in R. v. Villaroman, 2016 SCC 33 where Mr. Justice Cromwell delivered the unanimous judgment of the court. Justice Cromwell traced the original rule through its various iterations.

[108] Originally, a jury was obliged to be charged that not only must the circumstances be consistent with the accused having committed the act, but the jury was also told that it must also be satisfied that the facts are such as to be inconsistent with any other rational conclusion than that the accused was the guilty person.

[109] Over time the requirement for a charge in these terms was relaxed provided the jury was told that in order to convict they must be satisfied that the only rational inference that could be drawn from the circumstantial evidence was that the accused is guilty. A formulaic approach was rejected in favour of a charge that made the jury clearly aware of the necessity to find guilt only where it was established beyond a reasonable doubt.

[110] That clarity can be achieved in a number of different ways including:

• charging the jury in accordance with the traditional language of proof beyond a reasonable doubt;
• using the language of reasonable doubt and directing the jury to the other inferences that the defence says should be drawn from the evidence and directing the jury to acquit if any of those inferences raise a reasonable doubt; and,
• charging the jury that it must be satisfied beyond a reasonable doubt that the guilt of the accused is the only reasonable inference to be drawn from the proven facts.

[111] In the result, there is no longer any requirement for a particular form of mandatory instruction.

[112] Justice Cromwell also explained the difference in purpose between a charge on circumstantial evidence and one respecting proof beyond a reasonable doubt.

[113] An instruction about circumstantial evidence is designed to alert the trier of fact to the dangers involved in drawing inferences from circumstantial evidence. That instruction provides the fact-finder with a caution against filling in the blanks, jumping to conclusions or too readily drawing inferences of guilt. A fact-finder should be cautioned that the process of inferential reasoning must be undertaken with a consideration of all of the evidence and its absence so that any assessments of the evidence are arrived at logically, taking human experience and common sense into account.

[114] The instruction on reasonable doubt is directed to another purpose altogether. That instruction "describes a state of mind – the degree of persuasion that entitles and requires a juror to find an accused guilty. … Reasonable doubt is not an inference or a finding of fact that needs support in the evidence presented at trial: … The reasonable doubt instructions are all directed to describing for the jurors how sure they must be of guilt in order to convict." (Villaroman at [28])

[115] So, in cases where proof of one or more elements of the offence depends exclusively or largely on circumstantial evidence, the Supreme Court of Canada effectively directs that the fact-finder be cautioned to be alert to too readily drawing inferences of guilt. The Court approves of but does direct the following instruction to a fact-finder as a succinct and accurate way of helping the fact-finder guard against the risk of "filling in the blanks" too quickly and thereby overlooking reasonable alternative inferences: "an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits." (Villaroman at [29] and [30])

Must Non-Culpable Inferences Be Based on "Proven Facts"?

[116] Villaroman settles and confirms that in assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts. "The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferences other than guilt, the Crown's evidence does not meet the standard of proof beyond a reasonable doubt." (Villaroman at [35])

[117] A reasonable doubt or a theory alternative to guilt is not "speculative" merely because it arises from a lack of evidence. A gap in the evidence may result in inferences other than guilt. But, those inferences must be reasonable given the evidence and the absence of evidence assessed logically and in light of human experience and common sense. (Villaroman at [36])

[118] When assessing circumstantial evidence the trier of fact should consider other possible theories and other reasonable possibilities which are inconsistent with guilt. So, while the Crown may need to negative these reasonable possibilities, it certainly need not negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused. Other plausible theories or other reasonable possibilities must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation. (Villaroman at [37])

How to Distinguish Between a Plausible Theory and a Speculation

[119] While Justice Cromwell concedes that it is not always easy to distinguish between a plausible theory and speculation the litmus test is whether the circumstantial evidence, viewed logically and in the light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty. (Villaroman at [38]) He goes on to provide two statements of this principle, since in his view, where the line is to be drawn between speculation and reasonable inferences in a particular case cannot be described with greater clarity than it is in these two passages.

[120] The first passage is from the Australian case, (Martin v. Osborne, 55 C.L.R. 367, at page 375.) Cromwell states that the following quotation is a helpful expression of the principle that to justify a conviction the circumstantial evidence assessed in the light of human experience should be such that it excludes any other reasonable alternative. It is helpful because it assists one in identifying the line between plausible theory and speculation.

In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation. This means that, according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed. [Emphasis added by Justice Cromwell.]

[121] The second useful expression of the test to distinguish between plausible theory and speculation comes from the Alberta Court of Appeal's decision in R. v. Dipnarine, 2014 ABCA 328 at paragraphs [22], [24] and [25] which support the following propositions.

• Circumstantial evidence does not have to totally exclude other conceivable inferences.
• The trier of fact should not act on alternative interpretations of the circumstances that it considers to be unreasonable.
• Alternative inferences must be reasonable, not just possible.

Judgement Rendered

[122] If Mr. Julian's case was substantially analogous to the facts in Bui then the same result should obtain. However, in my view there is only a superficial resemblance between the fact-pattern in that case and the evidence before me. Superficially both cases deal with the owner of a property being charged with an offence after a firearm is found hidden on his property that is being used to grow marijuana. There are two essential differences between Bui and this case. First, there is a wealth of evidence in this trial as compared to the proof alleged against the homeowner in Bui. Second, the trial judge in Bui erred in his assessment of the evidence before him by failing to apply the principle that when dealing with circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts. If, as a result of lack of evidence or gaps in the evidence, reasonable inferences other than guilt are available then the Crown's evidence does not meet the standard of proof beyond a reasonable doubt and a verdict of acquittal must be rendered.

[123] As pointed out by the Court of Appeal, the evidence against Mr. Bui did not foreclose or preclude the reasonable inference that the handgun found beneath the mattress in the home that he owned could have been placed there without his knowledge by a male or female other than Bui. (A gardener of the grow comes readily to mind as a real and reasonable possibility.) The presence of both male and female clothing in the home and the presence of prescription pill bottles in the names of a number of other individuals made those alternative inferences reasonable. Hence, the inference that Mr. Bui had knowledge of and was in possession of the hidden weapon was not the only reasonable inference permitted by the evidence adduced in that prosecution.

[124] In this case, on the evidence adduced against Mr. Julian, I am of the view that the only reasonable inference available is that he had knowledge of and was in control of the assault rifle and magazine hidden in his basement. I arrive at that conclusion substantially on the basis of the submissions made by the Crown.

[125] To begin with, the hypothesis that someone other than Mr. Julian hid that weapon and magazine and the other ammunition for it in the basement and in the garage evaporates on inspection. The argument makes even less sense if different people coincidentally did the hiding. For the purposes of this analysis, I will posit the scenario that the same person hid the assault rifle and magazine in the basement and hid the ammunition for it, (all 240 rounds of it,) in the toolbox in the garage.

[126] As Mr. King observed, that scenario is contrary to common sense. It is an unreasonable theory and I reject it as being a reasonable possibility.

[127] Likewise, the hypothesis that some unknown person, (perhaps one of the individuals named in footnote 11,) planted the gun and magazine in the basement and the 240 rounds of 7.62 ammunition in the toolbox in the garage, is equally untenable and unreasonable; that scenario is not a plausible theory or a reasonable possibility.

[128] An alternative reasonable inference must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation. In my view the suggestion that one of the individuals named in footnote 11 framed Mr. Julian is completely speculative.

[129] On the other hand, the inference that Mr. Julian was in possession of the assault rifle and its magazine hidden in his basement as well as being in possession of the ammunition for that weapon, hidden in his garage, is compelling and indeed, irresistible on the evidence in this trial.

[130] Mr. Julian admits to being in possession of the 12-gauge shotgun and the .30-30 rifle. Ammunition for those weapons was found in the weapons that were hidden under his mattress. In addition, ammunition for those weapons was found in his kitchen cupboard and along with ammunition for the shotgun in his garage.

[131] Mr. Julian denies knowledge of the weapon and ammunition hidden in his basement and he denies knowledge of the cache of ammunition for that weapon hidden in the toolbox in his garage. I reject his denial of knowledge. It is incredible in the circumstances proved against him.

[132] To begin with, the scenario suggested for the box of 7.62 ammunition found in his kitchen is incredible. All of the ammunition in the kitchen was not bagged. It was in separate and discrete boxes or in a mug full of shotgun shells. Mr. Julian's evidence that he never checked what was in the bag of ammunition that he says his father gave to him is unbelievable and inconsistent with the finding of the various kinds of ammunition in his kitchen cupboard.

[133] His evidence that the box of 7.62 ammunition was left over somehow by Grills or someone else after the failed rifle sale incident is also incredible and does not make sense. But, having a full box of ammunition for a rifle that you possess does. Mr. King correctly observed that the finding of this box is an important piece of circumstantial evidence that supports the inference that the accused knew about the gun and magazine found hidden in his basement. The existence of the box of ammunition is particularly problematic for Mr. Julian because of the presence in the same cupboard of other rounds of ammunition that are used in the two long guns that he does admit to possessing: the 12-gauge shotgun and the .30-30 rifle.

[134] Mr. Julian was involved in a business that attracted poachers and people intent on breaking into his marijuana grow and stealing his crop. He needed protection. He obtained that protection by having a surveillance camera installed on his property. He had dogs on his property. He hired a night-watchman and his night-watchman was attacked by someone coming onto his property.

[135] Mr Julian admitted that he needed protection. He had two rifles that he admits to possessing. He had ammunition for those weapons and kept them loaded and under his mattress. Ammunition for those weapons was stored in his kitchen and in his garage. Mr. Julian had enemies in the nature of disgruntled business partners. He kept an important part of his marijuana business in the basement of his home, where the assault rifle and magazine were found.

[136] While that rifle and magazine were hidden away from view they were relatively accessible if one knew where to look for them. A substantial cache of ammunition for that weapon was found in his garage where he kept his motorcycles. A box of ammunition for that weapon was found in his kitchen cupboard, where he kept other ammunition for the two long guns that he possessed.

[137] I am of the view that the only reasonable inference to be drawn is that Mr. Julian knew of the assault rifle and magazine in his basement and that he was in possession of those items. I find that he knew of the 240 rounds of ammunition for that weapon, which was stored in "his" toolbox and he knew of the box of 20 rounds for that weapon that he stored in his kitchen cupboard. He may have gotten that toolbox from his father as he said but it was, in these circumstances, his toolbox.

[138] "Control" was not in issue in this trial.

[139] I am satisfied to the exclusion of any reasonable doubt that Mr. Julian is guilty of the five remaining counts in the information and I find him guilty of them.

Dated at St. Catharines this 31st day of October, 2016

J.S. Nadel, (O.C.J.)