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make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,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: 2017-04-27

Court File No.: College Park 17-75001645

Between:

Her Majesty the Queen

— And —

Van Hoang Le

Walter Long

Vishnuvarthan Srivaratharajah

Before: Justice J. W. Bovard

Heard on: April 10, 11, 12, 13, 2017

Reasons for Ruling released on: April 27, 2017

Counsel

Ms. E. Weis — counsel for the Crown

Mr. Fedorowicz — counsel for the defendant Van Hoang Le

Mr. Kovacs — counsel for the defendant Walter Long

Ms. Dresser — counsel for the defendant Vishnuvarthan Srivaratharajah

Decision

Bovard J.:

Introduction

[1] This is a ruling on committal to stand trial after a preliminary hearing. The accused are jointly charged with the following seven counts under the Criminal Code involving a Glock 10 mm semiautomatic pistol:

1. Use a firearm in a careless manner - s. 86 (1);
2. Possess a restricted firearm without a licence – s. 91 (1);
3. Possess a restricted weapon which was not a replica firearm without a licence – s. 91 (2);
4. Possess a prohibited firearm, a restricted firearm or a non-restricted firearm without a licence – s. 92 (1);
5. Occupy a motor vehicle knowing that there was a restricted firearm in the motor vehicle – s. 94 (1);
6. Discharge a firearm while being reckless as to the life or safety of another person, namely neighbourhood residents – s. 244.2 (1) (b);
7. Possess a weapon for a purpose dangerous to the public peace – s. 88 (1).

[2] The charges arise from an incident in which the accused were all driving around in a car in the early morning. A man named Bao Quach was with them. He had a Glock 10 mm semiautomatic pistol in the waist band of his sweat pants. When he got into the car, Mr. Quach told the others that he had the gun. At one point during their ride while they were in a residential neighbourhood Mr. Quach says that he pointed the gun through an open window of the car and fired about six rounds in the air. The Crown alleges that it was Mr. Srivaratharajah that fired the gun, not Mr. Quach.

[3] A neighbour called the police. An officer responded quickly to the call and saw a car on the street where the firing of the gun allegedly occurred. He saw another officer converging on the scene and signaled to him to follow the car. He did so and pulled them over. The accused were told to get out of the car. They were questioned and patted down. The police searched the car but did not find anything. Eventually, Mr. Quach told one of the officers that there was a gun in the car. They retrieved the gun from where Mr. Quach said it was.

[4] The police charged all of them with various offences related to the gun. All but Mr. Quach were released on bail. Mr. Quach pleaded guilty to possession of a firearm just before the preliminary hearing started. He testified against the accused at the preliminary hearing.

The Evidence

[5] Defence counsel made the following admissions for the purpose of the preliminary hearing:

1. Jurisdiction;
2. Identity – Specifically, the accused before the court (and Bao Quach) are those who were arrested in the vehicle stopped by the police;
3. The registered owner of the vehicle stopped by the police is the father of the accused, Vishnuvarthan Srivaratharajah;
4. Continuity of the exhibits;
5. SOCO photos may be adduced without a witness;
6. The CFO and CFR affidavits are admissible;
7. The firearms report is admissible;
8. The CFS reports regarding gunshot residue are admissible (though the expert Andrew Wolf is also being called at the request of some parties);
9. The expertise of the gunshot residue expert (Andrew Wolf) is admitted.

[6] On the day in question, at 6:36 a.m., Officer Elo responded to a call regarding gun shots in a residential area on East York Avenue at Mortimer Avenue. As he arrived on scene he saw a black car waiting to turn right at the corner of East York Avenue and Mortimer Avenue. It was the only car on the street. He described the area where the accused's car was as a "horseshoe of townhouses". He pulled alongside of the car while it was stationary. For a second or so he looked at a man who was seated in the rear passenger seat behind the driver. The man was a dark young male. He made eye contact with him. He said that he looked shocked. The car turned east bound on Mortimer Avenue and quickly headed towards Pape Avenue.

[7] Officer Elo got the license plate number and called it in. He saw another police cruiser approaching. He motioned to the officers by pointing to the black car. They pulled over the car. Then he took out a rifle and searched the area in case there were other culprits. He did not see anyone, nor find anything of interest.

[8] Mr. Bao Quach testified that he knows all of the accused. They picked him up at his residence at approximately 1:00 a.m. He sat in the front passenger seat. Mr. Le was driving. Mr. Srivaratharajah was in the back seat behind Mr. Le. Mr. Long was in the back seat behind Mr. Quach.

[9] Mr. Quach had a loaded 20 mm black Glock semiautomatic pistol in the waist band of his sweatpants under his clothes. As soon as he got into the car he took it out for about one minute and showed all of them the gun. Prior to this he had not told any of them that he had the gun. They were fascinated and nervous about it. None of the accused handled the gun.

[10] Between 1:00 a.m. and approximately 6:00 a.m., they drove around "where the wind took them" as he put it. Mr. Quach had drunk the equivalent of between 1 and 4 shots of cognac before he got into the car. He brought four Jack Daniels coolers with him. During the ride he drank all of them. Mr. Quach said two things about Mr. Srivaratharajah's sobriety when he, Mr. Quach, got into the car. He said that he was not sure if Mr. Srivaratharajah was drunk and that Mr. Srivaratharajah was drunk.

[11] During the ride only Mr. Quach and Mr. Srivaratharajah drank. Between 4:00 a.m. and 5:00 a.m., they went to Eggsmart to eat but it was closed.

[12] While they were driving around Mr. Quach was handling the gun both inside and outside of his clothing. However, they did not discuss the fact that Mr. Quach had the gun or whether it was loaded. During the ride Mr. Quach pulled out the gun two or three times and showed it to the accused. Mr. Quach said that during their drive none of the accused tried to leave the car, nor were any of them held in the car against their will. None of them tried to take the gun away from him.

[13] At around 6:00 a.m., Mr. Quach was on a "big buzz" from the alcohol, but he was not drunk. As they drove through the neighbourhood around East York Avenue he fired the gun six times in the air through an opening in the window. This made the accused paranoid and worried. The shell casings fell on him and he put them into his jacket pocket.

[14] Between five and six minutes later, the police pulled them over. Mr. Quach hid the gun in the front passenger area of the car close to the gear shift. This was his idea alone.

[15] During the investigation at the roadside, Mr. Quach told Officer Yuanidis that there was a gun in the car and where it was. The police retrieved the gun.

[16] Mr. Vladimire Gueorgviev testified that he lives close by to where Officer Elo saw the accused in the black car. He was about 100 meters away on his third floor balcony having a cigarette and a coffee between 6:00 a.m. and 6:20 a.m. The sun was just coming up. He knew the time because he looked at his watch when he heard the shots and he left for work at 6:35 a.m.

[17] He heard several gun shots. He glimpsed a black car for a couple of seconds on East York Avenue. The back window behind the driver was just more than half open. He saw a hand gun at the edge of the window, a bit above it. He could not tell if the gun was outside of the car. The car was dark inside. He vacillated with regard to the colour of the gun, going between black and gray.

[18] The car window was tinted, but he could tell that the person that held the gun had dark features and scruffy hair down to just below his ears. The dark features could have been from the tinted windows. The person was about 5 feet, eight inches tall, skinny, skinny face, and between 17 and 21 years old. He told the police that the person was Tamil. He looked at a photo lineup but he could not identify the person. In his evidence he said that he could not tell what his ethnicity was. The person had glowing eyes and a smirk on his face. He appeared intoxicated. He conceded that he saw the whites of the person's eyes, which could have made them seem to glow. He agreed that he did not have a clear opportunity to observe because he only saw the car for two seconds. Mr. Gueorgviev did not make the 911 call to which the police responded.

[19] Mr. Gueorgviev said that the car turned right onto Mortimer Avenue. The car was driving slowly. At 6:34 a.m., Officer Yuanidis and his partner, Officer Rauh-Wasmund, received a call regarding gun shots and headed to the area in question. As they arrived approximately five minutes later, Officer Yuanidis saw Officer Elo pointing to a black car waiting for the traffic light at Mortimer Avenue and Pape Avenue and gesturing to them to stop it.

[20] They pulled over the car on Pape Avenue. Mr. Quach was in the front passenger seat, Mr. Long was in the rear passenger seat. Officer Rauh-Wasmund said that Mr. Le was driving the car and that Mr. Srivaratharajah was in the back seat. Mr. Srivaratharajah was chatty, fidgety, and had glassy eyes. There was an open beer can by his feet. He was intoxicated.

[21] Officer Yuanidis said that when Mr. Quach got out of the car he fumbled with his jacket. Officer Yuanidis picked up the jacket and found six shell casings in the pocket.

[22] He put Mr. Quach in handcuffs. As he walked with him to his cruiser, Mr. Quach told him that there was a gun in the car. Officer Yuanidis told Officer Rauh-Wasmund who looked where Mr. Quach said it was and found it. The police arrested all of the accused for possession of a firearm.

[23] Through Officer Rauh-Wasmund, the Crown introduced as exhibits pictures of the car, the gun and of Mr. Srivaratharajah.

[24] Sergeant Thompson and Officers Stalk and Johnson testified but did not add anything of significance for the issues that I have to decide at the preliminary hearing.

[25] Mr. Andrew Wolf testified as an expert in the interpretation and analysis of gunshot residue (GSR). He examined various items to see if they had GSR. He provided a report that is exhibit 5. His conclusions are not in dispute. I will simply list what they are.

1. There was no GSR on the hands of any of the accused.
2. There was no GSR found in the car. Mr. Wolf testified that the whole car was not tested.
3. There was no GSR found on Mr. Srivaratharajah's clothing.
4. There was GSR found on Mr. Long's clothing. Mr. Wolf testified that it was found on the back of Mr. Long's t-shirt. But he could not say whether it got there by rubbing up against an object that had GSR on it.
5. There was GSR found on Mr. Le's clothing.

[26] Mr. Wolf's report states that "Finding GSR particles on a person is not proof that they discharged a firearm. The presence of GSR may be the result of activities such as discharging a firearm, being in proximity to a firearm during discharge, handling a firearm or a fired cartridge case, or contact with another surface bearing GSR".

[27] His report also states the converse, that "The absence of GSR particles is not proof that the person did not discharge a firearm". He lists a number of scenarios in which this could occur.

[28] His report also states that "People not exposed to firearms or discharged ammunition components are not expected to have GSR particles on their hands or clothing".

[29] With regard to his findings concerning the car, Mr. Wolf states in his report that "The absence of GSR particles is not proof that the item [car] has had no association with a firearm".

[30] The Crown adduced on consent of all counsel a Firearms Report written by Ms. Karen Dann of the Centre of Forensic Sciences. It states that the gun in question is a firearm as defined in s. 2 of the Criminal Code. Further, it is a restricted firearm as defined in s. 84 of the Criminal Code. The report states that the gun in question "was identified, within the limits of certainty 1", as having fired the cartridge cases found in Mr. Quach's jacket.

[31] The Crown adduced on consent of all counsel three affidavits (exhibits 9, 10, 11) that indicated that neither Mr. Quach nor any of the accused had a firearms acquisition certificate or licence, or a firearm registration certificate.

[32] The Crown also adduced on consent of all counsel an affidavit from Ms. Angie Mcklusky, who works for the RCMP as a senior registration analyst within the Canadian firearms registry in Ottawa. She states that she was unable to locate any record of a registration certificate issued for the gun in question.

The Charges in Issue

[33] When all of the evidence was in, Ms. Weis, the Crown, advised the court that she wanted to withdraw count 7 against all of the accused. Since the preliminary was held on all of the counts, I will discharge all of the accused on count 7, rather than record a withdrawal of that charge by the Crown.

[34] All of the accused consent committal on count 5. Therefore, all of the accused are committed to stand trial on count 5.

[35] With respect to Walter Long, count 5 is the only count on which the Crown seeks committal. Therefore, he is discharged on the rest of the counts.

[36] With respect to Vishnuvarthan Srivaratharajah, the defence contests committal only on counts 1 and 6. For the reasons stated below, I find that there is enough evidence to pass the Sheppard test on these counts. Therefore, he is committed to stand trial on counts 1, 2, 3, 4, 5, and 6.

[37] With respect to Van Hoang Le, the Crown seeks committal only on counts 2, 3, 4, 5. The defence consented to committal on count 5. The defence contests committal only on counts 2, 3, 4. For the reasons stated below, I find that there is enough evidence to pass the Sheppard test on these counts. Therefore, he is committed to stand trial on counts 2, 3, 4, 5.

Analysis with Regard to Van Hoang Le on Counts 2, 3, 4

[38] Counts 2, 3, and 4 are as follows:

Count 2: "without lawful excuse, possess a restricted firearm, namely a black Glock 10 mm semiautomatic pistol, without being the holder of a licence permitting such possession and the holder or registration certificate for the said firearm…" (s. 91 (1) Criminal Code)

Count 3: "without lawful excuse, possess a restricted weapon which was not a replica firearm, namely a black Glock 10 mm semiautomatic pistol, without being the holder of a licence permitting such possession…" (s. 91 (2) Criminal Code)

Count 4: "without lawful excuse, possess a prohibited firearm, a restricted firearm or a non-restricted firearm, namely a black Glock 10 mm semiautomatic pistol bearing serial number WV038, while knowingly not being the holder of a licence permitting such possession…" (s. 92 (1) Criminal Code)

[39] Defence counsel for Mr. Le, Mr. Fedorowicz, submits that control is the issue. He questions that Mr. Le had the requisite control in order to be in possession of the gun. The Crown relies on R. v. Savory and R. v. McIntosh in support of her argument that Mr. Le had sufficient control to be in possession. Mr. Fedorowicz submits that these cases are distinguishable from the case at bar and therefore, do not support the Crown's argument.

[40] Section 4 (3) of the Criminal Code states:

For the purposes of this Act,

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

(i) has it in the actual possession or custody of another person, or

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

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

[41] In Savory, the situation involved one party (Terrell) having "primary possession" of cocaine in Mr. Savory's van while they drove around. The jury asked the presiding judge "If Terrell had primary possession of cocaine and Savory (a) knew this and (b) allowed him to remain in his van and drive around, does that constitute control"?

[42] The learned judge answered that "control means that a person could exercise a directing or restraining power over the article…" The jury convicted Mr. Savory. The defence appealed. One of the grounds of appeal was that the trial judge erred in her "recharge on constructive possession and specifically, in her explanation of the meaning of consent".

[43] The Court of Appeal held that "Control for the purpose of constructive possession does not require that the accused did in fact exercise control over the object in question". The court pointed out that in R. v. Terrance, the Supreme Court "accepted that control means power or authority over the object in question". The Court of Appeal held that "control is established if there is the right to grant or withhold consent. It is not necessary that the consent in fact be granted or withheld".

[44] Mr. Fedorowicz argues that Savory is distinguishable because it was Mr. Savory's van. In the case at bar, the car did not belong to Mr. Le. It belonged to Mr. Srivaratharajah's father. Mr. Le was simply the designated driver for the night.

[45] In McIntosh, the accused was driving a car that another person rented and loaned to him. Mr. McIntosh was responsible for returning the car to the rental agency. There were two passengers with him.

[46] A police officer pulled him over and made a traffic stop. He ran a check on the accused and on one of his passengers. The dispatcher reported that Mr. McIntosh had outstanding charges for sexual assault and forcible confinement. He was subject to bail conditions that he not possess weapons and firearms. His passenger, Mr. Bonnick, was on bail for drug offences, and breach of recognizance. He was also prohibited from possessing firearms. He was on probation for "wrong delivery of firearm".

[47] While speaking with Mr. McIntosh, the officer saw an open bottle of liquor in the glove box and smelled the odour of fresh-burnt marijuana from inside the car. He concluded that the occupants were in joint possession of marijuana. He called for backup. Other officers arrived on scene and arrested Mr. McIntosh, and his two passengers for possession of marijuana. The police searched the car and found 52.27 grams of crack cocaine, a loaded handgun, a box of bullets and various other items.

[48] In discussing whether the officer had reasonable and probable grounds to arrest Mr. McIntosh for possession of marijuana Justice Hill stated in paragraph 43 that:

It is apparent on the sergeant's evidence that he entertained the belief that all three occupants of the Explorer were in joint or constructive possession of the marijuana he believed to be in the vehicle. Whether that belief was reasonably held with respect to all occupants, it was sustainable respecting the driver. A vehicle driver, here Mr. McIntosh, who had been loaned the Explorer, has actual and ostensible authority over the contents of the vehicle. Quite apart from actual possession, where, to his knowledge, an illicit drug is present in the vehicle and remains so with his consent, then the right to grant or withhold that consent can amount to the element of control. R. v. Savory.

[49] The principle distinction that the defence makes between Savory and McIntosh and the case at bar regarding Mr. Le, is that in Savory the accused was driving his own vehicle. In McIntosh, the accused was driving a car that was rented by another person and loaned to him. Mr. McIntosh was responsible for returning the car to the rental agency. In the case at bar, Mr. Srivaratharajah's father was the owner of the car. Mr. Le was simply the designated driver.

[50] The defence submission asserts that in the case at bar Mr. Le had less control and authority over the vehicle than the accused in Savory and McIntosh because Mr. Le was simply the designated driver.

How Much Power and Control Does a Designated Driver Have Over the Vehicle if He or She Has No Connection to the Vehicle Other Than Being the Designated Driver?

[51] Counsel did not refer me to any cases that addressed this question. Therefore, I searched myself. There appears to be a paucity of jurisprudence on the issue. I was able to find only two cases.

[52] In R. v. Phinney, the court stated "I infer that a 'designated driver' is a person who voluntarily agrees to restrict his or her alcohol consumption so that he or she may legally operate a motor vehicle and provide transportation to others who may then consume alcohol without being concerned about violating the criminal laws concerning alcohol consumption and driving".

[53] Monk v. Monk was a civil case for damages under the Family Compensation Act, R.S.B.C. 1979 Chapter 120 for the death of the plaintiff's relative in a car accident in which alcohol consumption was involved. The plaintiffs argued that the deceased took precautionary steps by appointing the defendant as the designated driver. The court doubted that this occurred and observed that the defendant did not comply with "the responsibility of a designated driver to be abstemious".

[54] In light of the dearth of cases on this topic, I turned to other sources to try to understand the significance of being a designated driver. Wikipedia states that "The terms 'designated driver' and 'designated driving' … refer to the selection of a person who remains sober as the responsible driver of a vehicle whilst others have been allowed to drink beverages. Thus as a practical and ethical matter a designated driver is a person who abstains from alcohol on a social occasion in order to drive his or her companions home safely as an alternative to driving under the influence". (Last emphasis added)

[55] The Merriam-Webster online dictionary gives the following definition: "a person chosen to abstain from intoxicants (as alcohol) so as to transport others safely who are not abstaining". (Emphasis added)

[56] I find that these cases and definitions indicate that a designated driver is a person who in a social setting agrees to restrict his or her consumption of alcohol or refrain totally from consuming alcohol in order to provide safe transportation to others who have been drinking.

[57] I find further that the concept of designated driver implies that the others are placing their safety in the designated driver's hands because their judgment and motor skills are going to be impaired by the consumption of alcohol, or perhaps other intoxicants. Therefore, with regard to the act of transporting the others in the vehicle, the designated driver is in charge.

[58] It follows that the designated driver is responsible for making all of the decisions regarding driving the vehicle to transport the others home safely. His or her judgment will hold sway over the other's judgment in all matters that have to do with their safe transport. I find that this responsibility necessarily includes having control over the vehicle, its contents, and what occurs within it if it pertains to the safe passage of the passengers.

[59] I find that actions within the car that affect or could affect the operation of the car and/or the safety of the passengers are within the ambit of this limited control. This control extends to control over items in the car that could affect the safe passage of the occupants.

[60] I find that in a situation like the one in the case at bar, where the car belongs to Mr. Srivaratharajah's father, his act of designating Mr. Le as the driver, per force surrenders a certain amount of control over the car to Mr. Le. However, the control surrendered is confined to what is required of Mr. Le to fulfill his responsibility to ensure the safe transport of his passengers.

[61] The evidence in this case is that Mr. Quach, one of the passengers, had a loaded pistol in the car. He showed it to all of the occupants, including Mr. Le. Everyone except Mr. Le was drinking alcohol as they drove around for several hours. The passengers' judgment would be affected by the alcohol that they consumed. I find that it was entirely possible in this situation that one of the passengers would discharge the fire arm inside or outside of the car either on purpose or by accident. Such an event would clearly endanger everyone in the car and possibly other motorists. I find that this clearly relates to the safe passage of the passengers, which is the responsibility that Mr. Srivaratharajah delegated to Mr. Le and which Mr. Le accepted when he agreed to be the designated driver.

[62] I find that the presence of the fire arm in the car presented a plausible potential danger to the occupants of the car and possibly to other motorists. It is not difficult to see that if the fire arm went off in the car it could have injured Mr. Le, or distracted him to the point that he could have had an accident. Consequently, the fire arm fell within Mr. Le's ambit of control as designated driver given that he was responsible for the safe passage of the occupants of the car.

[63] As stated above, Savory held that "Control for the purpose of constructive possession does not require that the accused did in fact exercise control over the object in question". And Terrance, "accepted that control means power or authority over the object in question". The Court of Appeal held that "control is established if there is the right to grant or withhold consent. It is not necessary that the consent in fact be granted or withheld".

[64] I find that given his responsibility to provide safe passage for his passengers as designated driver, Mr. Le had "power or authority" over the fire arm, which gave him the right to grant or withhold consent for it to remain in the car. Consequently, I find that he was in constructive possession of the fire arm pursuant to s. 4 (3) of the Criminal Code.

[65] Therefore, I find that the Crown adduced sufficient evidence to pass the Sheppard test regarding Mr. Van Hoang Le on the counts on which he contested committal; namely, counts 2, 3, and 4. He is committed to stand trial on these counts. In addition, on consent, he is committed to stand trial on count 5.

Analysis Concerning Vishnuvarthan Srivaratharajah with Regard to Counts 1 and 6

[66] Count 1: Use a firearm in a careless manner (s. 86 (1) Criminal Code).

[67] Count 6: Discharge a firearm while being reckless as to the life or safety of another person, namely neighbourhood residents (s. 244.2 (1) (b) Criminal Code).

[68] Ms. Dresser, counsel for Mr. Srivaratharajah, argued that for various reasons there is not sufficient evidence to pass the Sheppard test on counts 1 and 6.

[69] She first addressed the issue of Mr. Gueorgviev's evidence with regard to the time that he said that he witnessed the events. She points out that according to the police witnesses, the 911 call came in between 6:34 a.m. and 6:36 a.m.

[70] Mr. Gueorgviev said that he heard shots between 6:20 a.m. and 6:25 a.m. Shortly afterwards, he saw a black car stop at the corner of East York Avenue and Mortimer Street. Then he left for work between 6:30 a.m. and 6:35 a.m. Ms. Dresser said that Mr. Gueorgviev testified that he saw the police arrive, however, Officer Elo said that he arrived at 6:41 a.m. Ms. Dresser argued that "the conclusion is we know that the shots are fired. We don't know the exact time. We know some time passes. We again don't know how much time. Mr. Gueorgviev couldn't specify".

[71] I may have missed this, but my notes of Mr. Gueorgviev's evidence indicate that he said that he saw Officer Elo walking around searching the neighbourhood with his rifle, which according to Officer Elo, was after he signaled to Officers Yuanidis and Rauh-Wasmund to pull over the car, not that he saw him arrive on scene.

[72] In any case, Mr. Gueorgviev testified that he heard shots between 6:20 a.m. and 6:25 a.m. Therefore, there is evidence that the shots were fired between these times. There is no need to identify the "exact" time that they were fired. Mr. Gueorgviev's evidence is that they were fired within a range of five minutes. That is sufficient particularity for the purpose of this preliminary hearing. I do not see how not identifying the "exact" time that the shots were fired detracts from the Crown's case at the preliminary hearing.

[73] The next issue that Ms. Dresser referred to was that "we also don't know where the shots were fired at". She argues that there is no evidence that the shots were fired on East York Avenue as the Crown maintains.

[74] Again, I do not think that the Crown is required to adduce evidence with regard to the specific location where the shots were fired. I find that the evidence is sufficient to infer that they were fired within relatively close proximity of where Mr. Gueorgviev heard them. He said that he was on his balcony, approximately 100 metres from the corner of East York Avenue and Mortimer Avenue, where he saw Mr. Srivaratharajah and his companions in the black car.

[75] Ms. Dresser argued that "the information with respect to count six does particularize with 'reckless disregard to neighbourhood residents'. We don't have any neighbourhood residents who saw how it was discharged".

[76] I find that Officer Elo and Mr. Gueorgviev's evidence establishes for the purpose of the preliminary hearing that the area was a residential area. Officer Elo described the area where the accused's car was as a "horseshoe of townhouses". Further, based on this, there is a reasonable inference that there were "neighbourhood residents" living in this area and that some of them were present in the area when the shots were fired. The Crown does not have to adduce evidence that residents saw the gun being discharged for there to be evidence that by firing the gun in the neighbourhood, the shooter was being reckless as to the life or safety of another person.

[77] The next argument that Ms. Dresser advanced was the following:

Mr. Gueorgviev was unable to say where the shots were fired. He could not see anyone actually firing a gun. He did not see where the shots came from. There were no bullet strikes or other evidence suggesting a location of where the shots were fired…

…taking the Crown's evidence at the highest, we have some time after the shots are fired a car goes north on East York. Mr. Gueorgviev's house looks out onto -- south onto Mortimer, and he sees a window partially down and a male in the rear driver's seat holding what appears to be a handgun. That's at its highest. That doesn't get us -- doesn't permit us to make the inference that that individual fired the gun and discharged the gun. There are four people total in that car. And I think that the timing of the events in evidence, as well as the lack of actual observation are sufficient to show that -- that the inference isn't available.

But on top of that, there isn't any -- any other evidence that goes to it. There's no GSR on Mr. Srivarathajah's hands or clothing, unlike the other two who were seated closer to Mr. Quach. There's no GSR on the rear driver's door, which seems to be inconsistent with the Crown's theory that Mr. Srivaratharajah was the shooter. We have absolutely zero evidence as to how the firearm was discharged, if it was discharged on purpose or by accident, shots in succession. We have no information, aside from Mr. Quach's evidence, but I'm not considering that for the moment, as to how it was discharged; if it was shots fired in the air; aimed at something. We don't know anything about that.

[78] I do not agree that the Mr. Gueorgviev's evidence does not allow for a reasonable inference that the person that he saw holding the gun out of the window fired the shots that he heard. He saw the person with the gun moments after he heard the shots. The lack of evidence regarding "how the firearm was discharged, if it was discharged on purpose or by accident, shots in succession" does not detract from this inference.

[79] Perhaps the strongest argument that Ms. Dresser put forth was that no GSR was found on Mr. Srivaratharajah's clothing or body, or on the rear driver's door. However, Mr. Wolf's evidence was that "The absence of GSR particles is not proof that the person did not discharge a firearm". Therefore, this leaves the door open for a reasonable inference that the person that Mr. Gueorgviev saw holding the gun moments after he heard the shots was the shooter.

[80] Ms. Dresser argued that the fact that the police found the gun in the front seat where Mr. Quach was seated strengthens the conclusion that Mr. Quach fired the gun. She pointed out that Mr. Srivaratharajah was seated next to an apparent opening to the trunk area of the car but the gun was found in the front seat. The counter argument is that if Mr. Srivaratharajah was the shooter he would have wanted the gun to be as far away from him as possible. He would likely not hide it within close proximity to himself.

[81] I considered Mr. Quach's evidence that he fired the gun and that he had the shell casings in his possession when the police arrested him. Ms. Dresser stated that after he fired it he "showed it to Mr. Srivaratharajah by reaching across in the back seat". I am not sure what the import of that is. Mr. Quach said that he never handed the gun to any of the occupants of the car. In spite of Mr. Quach's evidence, I find that in light of all of the evidence and of the circumstances discussed above, one of the possible reasonable inferences is that Mr. Srivaratharajah was the shooter. At a preliminary hearing I am bound to consider all of the evidence in deciding if the Crown has met the Sheppard test.

[82] In Accuri v. The Queen, the court stated that the test is the same whether the evidence is direct or circumstantial.

[83] Ms. Dresser referred me to R. v. Lewis, at paragraphs 26, 27. This was a ruling on committal to stand trial after a preliminary hearing. The court stated:

26 In contrast, a jury cannot infer a fact constituting an element of the offence unless satisfied that fact has been proven beyond a reasonable doubt. My task is to ensure "there is evidence in the record upon which a properly instructed jury could rationally conclude that the accused is guilty beyond a reasonable doubt": R v Fontaine, 2004 SCC 27, [2004] 1 SCR 702, para. 53 [emphasis in original]. Writing for the full bench in Fontaine, Fish J. also cited with approval the following elaboration of this point in Charemski, [1998] 1 SCR 679, per McLachlin J. (as she then was), dissenting on other grounds, para. 35:

... "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. [Emphasis added by Fish J.]

Fontaine, para. 50; see also, paras. (sic)

27 As the Supreme Court recently re affirmed in R v Villaroman, 2016 SCC 33, a jury cannot infer guilt beyond a reasonable doubt on the basis of circumstantial evidence unless it is satisfied that guilt is the only reasonable inference to be drawn on the evidence. Accordingly, I cannot commit the accused for trial unless in my opinion a "trier of fact, acting judicially, could reasonably be satisfied that the accused's guilt was the only reasonable conclusion available on the totality of the evidence": Villaroman, paras. 26 to 30, 56; R v Biggs, 2016 ONCA 910, para. 17. It follows that I must consider the viability of alternative conclusions as part of the "limited weighing" exercise. (Emphasis in the original)

[84] Villaroman was an appeal from a conviction by a jury. In paragraphs 26 – 30 to which Lewis refers, the court was discussing the difference between the relationship between circumstantial evidence and proof beyond reasonable doubt. The court stated in paragraph 30 that:

It follows that in a case in which proof of one or more elements of the offence depends exclusively or largely on circumstantial evidence, it will generally be helpful to the jury to be cautioned about too readily drawing inferences of guilt. No particular language is required. Telling the jury that an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits will often be a succinct and accurate way of helping the jury to guard against the risk of "filling in the blanks" by too quickly overlooking reasonable alternative inferences.

[85] It is important to note that at this stage of the trial, all of the reasonable inferences produced by the evidence are available to the jury. It is their function to decide whether any one of the inferences allows for only one conclusion: proof beyond a reasonable doubt that the accused is guilty. I do not think that the preliminary hearing judge has the jurisdiction to decide that because the evidence yields a reasonable inference other than guilt, the accused cannot be committed to stand trial based on that evidence. That would rob the jury of its function of making the determination of whether the accused is guilty.

[86] It would be tantamount to invoking the Rule in Hodge's case at the preliminary hearing. The law is clear that the rule in Hodge's Case does not apply at a preliminary hearing. See: Mezzo v. The Queen and Monteleone v. The Queen.

In Monteleone, paragraph 8, the court stated:

The Shephard (sic) test for the giving of a directed verdict applies to a case resting solely on circumstantial evidence as well as one based on direct evidence. The question of whether circumstantial evidence meets the requirement of the so-called rule in Hodge's Case (1838), 2 Lewin 227, 168 E.R. 1136, is for the jury to determine. (Emphasis added) This was settled in Mezzo, at pp. 842-43, in these terms:

I am aware, of course, that in R. v. Knox, [1968] 2 C.C.C. 348, and R. v. Sawrenko, (1971), 4 C.C.C (2d) 338, the British Columbia Court of Appeal and the Court of Appeal for the Yukon Territory held that, when faced with a motion for a directed verdict in a case dependent on circumstantial evidence, it was the duty of the trial judge to decide whether the evidence satisfied the rule in Hodge's Case. Only if it did, was the case to the jury for determination of guilt or innocence. In this sense a weighing process or an assessment of quality was contemplated on the part of the judge. Those cases, however, were effectively overruled in this Court in R. v. Paul, [1977] S.C.R. 181, and Lavoie v. The Queen, [1977] S.C.R. 193, and even in circumstantial cases the law now is that any determination as to compliance with the rule in Hodge's Case would be left to the jury. (Emphasis added)

[87] Therefore, I must with the greatest respect disagree with the learned judge in Lewis when he found that at a preliminary hearing he "cannot commit the accused for trial unless in my opinion a 'trier of fact, acting judicially, could reasonably be satisfied that the accused's guilt was the only reasonable conclusion available on the totality of the evidence". (Emphasis added) It seems to me that is usurping the function of the jury.

[88] When the evidence at a preliminary hearing yields more than one inference other than guilt, the preliminary hearing judge must commit the accused to stand trial and let the jury decide whether they are convinced beyond a reasonable doubt whether the only reasonable inference from that evidence is that the accused is guilty. Otherwise, the preliminary hearing judge would in effect be deciding that the accused is guilty.

[89] I believe that I am supported in my finding by Accuri v. The Queen, where the court held that in cases involving circumstantial evidence at a preliminary hearing,

The judge must therefore weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw. This weighing, however, is limited. The judge does not ask whether she herself would conclude that the accused is guilty. Nor does the judge draw factual inferences or assess credibility. The judge asks only whether the evidence, if believed, could reasonably support an inference of guilt. (Emphasis added)

[90] Mr. Gueorgviev's evidence was that the car window was tinted, but he could tell that the person who was seated in the back seat behind the driver was holding a gun at the edge of the back window, which was partially open. He described this person as having dark features and scruffy hair down to just below his ears. He said that the dark features could have been from the tinted windows. Officer Elo said that he saw a dark young male seated in the rear passenger seat behind the driver. Of all of the accused and Mr. Quach, Mr. Srivaratharajah has the darkest complexion.

[91] I am satisfied that one of the reasonable inferences that can be drawn from this evidence is that Mr. Srivaratharajah was the person that Mr. Gueorgviev saw holding the gun at the window.

[92] Consequently, for all of these reasons I find that there is sufficient evidence to pass the Sheppard test for Mr. Srivaratharajah with regard to counts 1 and 6. In addition, on consent, he is committed to stand trial on counts 2, 3, 4, and 5.

Released: April 27, 2017

Signed: Justice J.W. Bovard