Court File and Parties
Ontario Court of Justice
Date: 2017-08-16
Court File No.: Brampton 3111 998 16 10721
Between:
Her Majesty the Queen
— and —
Adrian Patterson
Before: Justice G.P. Renwick
Heard on: 14, 15 August 2017
Reasons for Judgment released on: 16 August 2017
Counsel:
- T. Sarantis, counsel for the Crown
- M. Mattis, counsel for the defendant, Adrian Patterson
Preliminary Hearing Reasons for Judgment
RENWICK J.:
Introduction
[1] The defendant was charged with four Criminal Code ("Code") offences alleging his possession of a non-restricted firearm which was described as a pump-action shotgun, and two breaches of judicial interim releases for possession of that weapon contrary to the terms of two separate bails. On the consent of all parties, the matter proceeded as a joint preliminary hearing with another individual on a separate Information for offences arising out of the same transaction. At the conclusion of the hearing of evidence the other individual conceded his committal to stand trial. There has been a publication ban for the evidence taken, which remains in effect for the other defendant. Accordingly, these reasons will make ample use of non-descriptive nouns and pronouns to honour the on-going publication ban in respect of that defendant.
[2] The prosecution sought committal of Mr. Patterson on all counts. After hearing submissions in favour of committal, I indicated that I did not need to hear from counsel for the defendant and I would not be committing Mr. Patterson to stand trial. I advised that I would release my reasons for discharging the defendant, and these are my reasons.
[3] Mr. Patterson was charged with possessing an unloaded Remington 870 Magnum shot-gun, which is conceded to be a non-restricted firearm. The firearm was discovered when officers of the Street Crime Unit of Peel Regional Police acting in concert with the Tactical Unit executed a search warrant at the townhouse of the other defendant.
[4] The prosecutor lead evidence from five police witnesses and filed several photographs, two videos, and a certificate of analysis proving that a weapon seized by the police was a firearm. The defendant called no evidence and made no statement at the conclusion of his preliminary hearing.
The Evidence
[5] Given the concessions made and the issues raised during this hearing, I do not propose to reiterate all of the evidence heard during this inquiry. Suffice it to say that I have reviewed and considered all of the evidence received and I will only reference those parts of the evidence that are necessary to understand the route to my findings.
[6] It is essentially agreed by the parties that after midnight in late August 2016, Peel Regional Police officers executed a search warrant at a particular unit of a townhouse complex, in the City of Brampton. That unit was the residence of the other defendant. Police had made observations of both defendants entering and leaving that townhouse unit through the back door leading to the rear of the townhouse complex over two consecutive days in August 2016. In the early morning after the second set of surveillance observations, police were granted a search warrant and entered that townhouse unit.
[7] Except for a pet canine, the townhouse unit was unoccupied upon police entry. It appeared that the other defendant was a resident and used one of the three upstairs bedrooms of the townhouse ("the secondary bedroom"). The master bedroom appeared to be used by that other defendant's Mother. The third bedroom appeared to be used as a child's playroom. The firearm was located by police under the bed in the bedroom that appeared to be used by the other defendant. There was no forensic evidence or any direct evidence to link this firearm to Mr. Patterson.
[8] It was not contested that the police observed Mr. Patterson entering and leaving the back door of the townhouse unit several times over the course of two consecutive days just prior to the execution of the search warrant. Sometimes Mr. Patterson entered and exited the back door of the townhouse unit with an unknown male, and on at least one occasion, Mr. Patterson was in the company of the other defendant in the back yard of that townhouse.
Position of the Prosecution
[9] The prosecutor urged the Court to find that Mr. Patterson exercised control over the townhouse based upon the following:
i. Mr. Patterson was observed to come and go at will into and from the townhouse, usually in the absence of the other defendant, demonstrating an element of control over the townhouse;
ii. Mr. Patterson permitted the unknown male from the Nissan motor vehicle to meet him at the townhouse;
iii. Mr. Patterson permitted the unknown male from the Nissan motor vehicle to enter into the townhouse on several occasions, demonstrating an element of control over access to the townhouse;
iv. Mr. Patterson appeared to have stored his personal effects within the townhouse (release papers in his name issued from another police service less than one week earlier were found in the kitchen); and
v. Mr. Patterson appeared to have left some clothing within the townhouse (during surveillance Mr. Patterson first appeared shirtless and at some point he entered the townhouse and subsequently exited wearing a shirt).
[10] The prosecution asks the Court to find that a jury could reasonably draw the following reasonable inferences:
i. Mr. Patterson was staying at the residence in the days leading up to the execution of the search warrant;
ii. Mr. Patterson had unrestricted access to the residence;
iii. Mr. Patterson either shared the second bedroom with the other defendant, or had access to that bedroom as a guest while the other defendant used the master bedroom in the apparent absence of his Mother who was not seen at the residence over the course of two days or during the execution of the warrant;
iv. Mr. Patterson would have been aware of the unknown substance [1] that was found in the bedroom and initially believed to be cocaine or a cutting agent to assist in the trafficking of cocaine; [2]
v. Mr. Patterson would have been aware of the firearm found by police under the bed; and
vi. Mr. Patterson was in joint possession with the other defendant of the firearm found by police under the bed.
[11] The prosecution did not ask the court to draw any inferences of knowledge on the part of Mr. Patterson of the other defendant's apparent drug dealing activity, as observed by the surveillance team during the first set of observations. [3]
The Law
[12] In this part, I will discuss my role as a preliminary hearing justice and the test for committal upon these offences.
[13] In order to commit Mr. Patterson to stand trial for these offences, I have to be satisfied that there is some evidence on each element of all offences, upon which a properly instructed jury could reasonably rely to find the defendant guilty of these crimes beyond a reasonable doubt.
[14] The two essential elements of the offence of possession are: control over the item; and knowledge of the presence of the item. Possession involves actual possession, constructive possession, or joint possession of the item by more than one person, with the other's consent.
[15] Actual possession means physical custody of something on one's person or within one's possessions. Constructive possession exists where an item is not physically on the person, but nonetheless the person has knowledge of where the item is kept and has an ability to access and control the possession of the item. Joint possession involves knowledge of the existence and location of an item by more than person, or possession of the item by one person on behalf of another person or persons.
[16] The element of knowledge can be inferred from evidence of actual possession, constructive possession, or joint possession, but becomes less likely the more remote the connection between the location of the item and the individual. Drawing inferences to establish knowledge "becomes more difficult if the contraband is hidden or not otherwise in plain sight." [4]
[17] Control over an item will not generally be inferred from mere knowledge of the existence or location of an item. Rather, control exists where there is a measure of access and authority to restrict or permit access, or to direct or restrain the use of the item.
[18] In R. v. Pinnock, [5] Mr. Justice Hill reviewed the jurisprudence of the role of the preliminary hearing justice, in the context of an application for certiorari to quash the defendant's committal to stand trial for murder. With respect to circumstantial evidence and the limited weighing function of the preliminary hearing justice, His Honour enumerated many of the governing principles, including the following:
A justice acting under Part XVIII of the Criminal Code pursuant to s. 548(1), "[w]here all the evidence has been taken" at the preliminary inquiry, "shall": ... if in his opinion there is sufficient evidence to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction, order the accused to stand trial ...
In forming an "opinion" as to the evidence's sufficiency to justify committal, the justice exercises a discretionary, but constrained, assessment of the evidence. The whole of the admissible evidence is to be considered.
If there is sufficient evidence upon which a reasonable and properly instructed jury could convict, the preliminary inquiry judge must commit to trial.
The preliminary hearing judge is obliged to determine whether there is some evidence reasonably supporting the existence of each of the elements of the offence charged - even if only a scintilla of evidence.
As a general rule, it is not open to a preliminary inquiry judge to assess the quality, credibility and reliability of evidence. In other words, the preliminary inquiry is not "a forum for litigating the merits of the case against the accused". Where more than one inference can be drawn from the evidence, "only the inferences that favour the Crown are to be considered." Because of the limited focus of a preliminary inquiry, the provincial court must commit for trial even if the defence proffers exculpatory evidence.
The prohibition against weighing evidence in assessing the committal question is narrowly modified where the prosecution adduces circumstantial evidence said to point toward guilt. Circumstantial evidence is "evidence that tends to prove a factual matter by proving other events or circumstances from which the occurrence of the matter at issue can be reasonably inferred." The preliminary inquiry judge, in determining whether the elements of the offence may be reasonably inferred from circumstantial evidence, is permitted to engage in a "limited weighing" of such evidence as there exists "an inferential gap beyond the question of whether the evidence should be believed." Determining whether "facts have been established by evidence from which [the matter in issue] may reasonably be inferred" does not require the court to ask whether facts ought to be inferred. The preliminary inquiry judge is not to choose among competing inferences arising from the primary facts in evidence.
Circumstantial inferences are ones which "can be reasonably and logically drawn from a fact or group of facts established by the evidence." Most cases "will involve hiatuses in the evidence which can be filled only by inference." "The process of drawing inferences from evidence is not, however, the same as speculating even where the circumstances permit an educated guess." …
Some inferences are strong and capable of creating practical certainty while others are weaker. A reasonable and logical inference to be drawn from circumstantial evidence need not be an easy one to draw or indeed the most obvious or compelling inference. The trier of fact, of course, assesses the evidence "in light of common sense and human experience." The justice is obliged to consider the cumulative effect of the evidence said to point toward guilt on the part of the accused. Especially in a case premised wholly or in large measure upon circumstantial evidence, it is improper to isolate a particular piece of evidence and to then discuss any probative force flowing therefrom without regard to the context of the totality of the evidence [references and citations omitted]. [6]
[19] It is trite to note that I need not actually draw factual inferences nor determine credibility or the inherent reliability of evidence in my limited role as a preliminary hearing justice: see R. v. Arcuri, 2001 SCC 54, [2001] S.C.J. No. 52, at paragraphs 23, 30, and 33, and R. v. Kamermans, 2016 ONCA 117, [2016] O.J. No. 685 (C.A.) at para. 15. As the trier of inference, I am required to perform a limited weighing of the circumstantial evidence to determine if the inferences sought by the prosecution are indeed capable of being drawn. [7]
[20] In order to commit Mr. Patterson to stand trial for these offences, I have to be satisfied that there is some evidence of each element of each charge, which if believed, would satisfy a properly instructed jury, acting reasonably, of the defendant's guilt beyond a reasonable doubt.
[21] Given the defence concessions and the sole issue raised during this preliminary hearing (could the prosecution satisfy a jury of the defendant's possession of the firearm seized by police, beyond a reasonable doubt) I need only consider the evidence in terms of whether or not knowledge of and control over the firearm could reasonably be found. Or put another way, is there some evidence which if believed could satisfy a jury beyond a reasonable doubt that Mr. Patterson possessed the firearm found heavily wrapped and concealed under the bed in the residence where Mr. Patterson had been observed in the days and hours preceding the judicially authorised search.
Analysis
[22] There is no direct evidence respecting Mr. Patterson's possession of the long gun found within the townhouse. The prosecutor relies upon the reasonable inferences which may be drawn from the circumstantial evidence to establish the defendant's knowledge and control. The prosecutor urges me to conclude that a jury could infer the defendant was in possession of the firearm from the circumstances of his repeated presence at the townhouse, his access thereto, his ability to bring another male into the residence, and his use of the unit to store his personal papers and at least one item of clothing.
[23] There are many reasonable inferences which may be drawn from the observations of the police which do not assist the prosecution, but the fact that there are other possible inferences that may be drawn by the trier of fact is moot. The law is clear that I need not consider competing inferences, and I am required to consider only those inferences favourable to the prosecution.
[24] The difficulty I have with drawing the inferences sought by the prosecution is the complete absence of evidence to establish Mr. Patterson's presence in any room or area of the residence beyond the kitchen, where documents recently issued in his name were found. There is a complete dearth of evidence with respect to his attendance on the upper floor of the townhouse, let alone within the secondary bedroom. Again, there is no forensic link between the defendant and the firearm, nor any evidence to suggest that Mr. Patterson was even aware of its presence, leaving aside his ability to exercise control over the item, which is found in the other defendant's bedroom in that person's residence, heavily wrapped, and hidden from view. There are simply too many hiatuses in the evidence to reasonably infer knowledge of and control over the firearm by Mr. Patterson.
[25] Notwithstanding that it was not suggested by the prosecutor, I accept that a reasonable jury could infer that Mr. Patterson and the other defendant were close associates or friends, [8] but anything beyond that type of relationship in terms of possibly jointly possessing the firearm is pure speculation. Not all guests in someone's home have complete access to every room, and every hiding spot in every room. Without even a scintilla of evidence to suggest that Mr. Patterson had ever been in that secondary bedroom, it is beyond the limits of reasonable inference to assume knowledge of and control over the concealed weapon recovered by the police.
Conclusion
[26] In light of the above, Mr. Patterson is discharged on all six counts on the Information before the Court.
[27] I am grateful for the professional manner in which counsel conducted themselves and advocated their positions, including counsel for the other defendant.
Released: 16 August 2017
Justice G. Paul Renwick
Footnotes
[1] I note that none of the police witnesses who testified gave a description of exactly where the unknown substance was located in the bedroom.
[2] Implicit in this submission is the inference that drugs (or items resembling drugs) and guns often exist together and if Mr. Patterson was aware of the unknown substance, it is likely that he would have been aware of the firearm as well.
[3] One police officer testified that the other defendant conducted a hand to hand transaction with an unknown male which had the hallmarks of a drug dealing transaction.
[4] R. v. Allen, [2015] ONSC 6656, unreported decision of B.A. Allen J., at para. 21.
[5] [2007] O.J. No. 1599 (S.C.J.).
[6] Pinnock, supra, at para. 42.
[7] Arcuri, supra, at paras. 1 and 23-30.
[8] There was evidence that on the wall of the other defendant's bedroom there was a photograph of Mr. Patterson, but again, there was no evidence that Mr. Patterson had ever entered that bedroom.