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make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,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: 2018-04-26

Court File No.: Central West 17-6595

Between:

Her Majesty the Queen

— AND —

Deandre Glaves

Before: Justice P.T. O'Marra

Heard on: April 4, 5, 6, 2018

Reasons for Judgment released on: April 26, 2018

Counsel:

• E. Norman, counsel for the Crown
• A. Alibhai, counsel for the accused Deandre Glaves

Introduction

[1] The accused is charged with the following firearm related offences:

(1) Did possess a firearm, to wit: a handgun, without being the holder of a licence under which he may possess it, contrary to Section 91(1) of the Criminal Code of Canada.

(2) And further that on or about the 3rd day of June, 2017, at the City of Mississauga, in the said region, did have in his possession a weapon to wit: a handgun, for a purpose dangerous to the public peace, contrary to Section 88(1) of the Criminal Code of Canada.

(3) And further that on or about the 3rd day of June, 2017, at the City of Mississauga, in the said region, did, without lawful excuse, store a prohibited weapon, to wit: a handgun, in a careless manner, contrary to Section 86(1) of the Criminal Code of Canada.

(4) And further that on or about the 3rd day of June, 2017, at the City of Mississauga, in the said region, did possess a loaded prohibited firearm and was not the holder of an authorization or licence under which he may possess said firearm in that place, contrary to Section 95(1) of the Criminal Code of Canada.

(5) And further that on or about the 3rd day of June, 2017, at the City of Mississauga, in the said region, did have in his possession a prohibited weapon, to wit: a handgun, without being the holder of a licence under which he may possess it, contrary to Section 91(2) of the Criminal Code of Canada.

(6) And further that on or about the 3rd day of June, 2017, at the City of Mississauga, in the said region, did have in his possession a prohibited device to wit: prohibited magazine, without being the holder of a licence under which he may possess it, contrary to Section 91(2) of the Criminal Code of Canada.

(7) And further that on or about the 3rd day of June, 2017, at the City of Mississauga, in the said region, did have in his possession prohibited ammunition, to wit: hollow point ammunition, without being a holder of a licence under which he may possess it, contrary to Section 91(2) of the Criminal Code of Canada.

(8) And further that on or about the 3rd day of June, 2017, at the City of Mississauga, in the said region, did possess a firearm, to wit: a handgun knowing that he was not the holder of a license under which he may possess it, contrary to Section 92(1) of the Criminal Code of Canada.

(9) And further that on or about the 3rd day of June, 2017, at the City of Mississauga, in the said region, did unlawfully have in his possession property, a quantity of Canadian currency, of a value not exceeding five thousand dollars knowing it or to have been obtained by the commission in Canada of an indictable offence, contrary to Section 354(1)(a) of the Criminal Code of Canada.

(10) And further that on or about the 3rd day of June, 2017, at the City of Mississauga, in the said region, did being at large on his recognizance entered into before a Justice and being bound to comply with a condition of that recognizance, to wit: Do not possess any weapons as define by the Criminal Code (for example, but not restricted to, a pellet gun, firearm, imitation firearm, cross-bow, prohibited or restricted weapon or device, ammunition or explosive substance or anything designed to be used or intended for use to cause death or injury or to threaten or intimidate any person. (name condition) without lawful excuse failed to comply with that condition by being a in possession of a firearm, contrary to Section 145(3) of the Criminal Code of Canada.

(10 – aka 11) And further that on or about the 3rd day of June, 2017, at the City of Mississauga, in the said region, did unlawfully possess a controlled substance included in Schedule II, to wit: Cannabis (Marihuana), its preparations, derivatives and similar synthetic preparations, in an amount not exceeding 30 grams, contrary to Section 4(1) of the Controlled Drugs and Substances Act.

Facts

[2] On June 3rd, 2017 a loaded handgun was located under a mattress in room 327 of the Motel 6, in Mississauga.

[3] At the close of the preliminary hearing the Crown asked that the accused be discharged on the following counts: Counts #2, 3, 9 and 11 (aka 10). Counsel argued that there was insufficient evidence to commit the accused to stand trial on the remaining seven (7) counts and argued that he should be discharged.

Evidence Presented at the Preliminary Hearing

[4] At approximately 2:45 am, on June 3rd, 2017, Peel Regional Police Service received a 911 call that a male was beating up a female in room #337 at the Motel 6 located at 60 Britannia Road East, in the City of Mississauga.

[5] The following four (4) officers attended the call: P.C. Riberio, P.C. Corona, P.C. Gies and P.C. Forsyth. They convened in the lobby of the hotel. A master room key was obtained. The officers attended the third floor.

[6] The officers attended and investigated a female in room #337. It was apparent that the 911 call did not involve this person as she was alone.

[7] All officers testified that in the past they have attended many calls for service at that location that involved Criminal Code, CDSA, Liquor Licence Act offences.

[8] P.C. Corona testified that he did not attend room #337 as he saw a female standing at the end of the hallway talking on the phone. P.C. Corona approached to find out if she had any information about the alleged assault. He explained to her the reasons for the police presence. P.C. Corona received further information from the female that she heard a female screaming at the other end of the hallway.

[9] P.C. Corona investigated a group of motel guests in a room that was close to the location where the female was on the phone. He was satisfied that there was no domestic assault that had occurred in that room.

[10] P.C. Corona decided to walk down to the other end of the hall. Just as he passed room #337, the accused walked around the corner towards P.C. Corona. P.C. Corona testified that the accused made eye contact with him. The accused appeared shocked and was wide eyed. P.C. Corona observed the accused immediately clenched the black satchel that he wore close to his waist area. P.C. Corona testified that the satchel was strapped across his chest and rested around his waist area. Based on his police experience and training P.C. Corona had a subjective belief that the accused's satchel contained a weapon. The accused swiped his room card and entered room #327. P.C. Corona heard female and male voices, and shuffling from within room #327. When he knocked on the door the voices and shuffling stopped. The accused opened the door and at this point, P.C. Corona felt that he had grounds for an investigative detention in relation to the assault complaint. P.C. Corona pushed open the door and took control of the accused. The accused was detained in the hallway, handcuffed and patted down. P.C. Riberio testified that when he took control over the accused from P.C. Corona, the accused seemed nervous, tense and his eyes darted around. The satchel was removed and searched. No firearm or ammunition were located. P.C. Corona advised the accused the reason for the detention and administered an abbreviated version of the rights to counsel. At 3:18 am P.C. Corona queried the accused's name.

[11] P.C. Corona testified that he believed that the accused hid the gun inside the motel room. P.C. Corona let himself into the room with the hotel master key. P.C. Corona testified that he saw two teenage girls, both partially clothed, sitting on two separate beds. The beds were unmade. D.H. was seated on the closest bed to P.C. Corona with her back to him. P.C. Corona noticed that she was seated at the top of the bed. He observed that her hand was down in the area that the bed was made and tucked in. This aroused P.C. Corona's suspicion. The other teenage girl, A.L. was lying on the other bed. P.C. Corona observed bags of clothing and food wrappers around the room. P.C. Corona testified that the room looked "lived in".

[12] P.C. Corona believed that the teenagers were involved in prostitution. He wanted to separate both teenage girls for questioning. P.C. Forsyth removed D.H. from the room. At 3:21 am P.C. Forsyth queried D.H.'s name. P.C. Corona felt that A.L. was being groomed by D.H. While he asked A.L. questions, P.C. Corona flipped over the mattress and found a loaded Springfield XD subcompact 9 mm. semi-automatic black handgun. The gun contained a magazine that had a 16 round capacity. Nine (9) rounds were in the magazine and one round in the chamber. These were hollow point bullets. He seized the gun, proved that it was safe and put it in his pants pocket.

[13] At 3:22 am P.C. Corona placed A.L under arrest for unauthorized possession of a firearm and directed P.C. Forsyth to arrest D.H. as well.

[14] After the accused was taken to 12 division, he was searched and a hotel key card was located along with a cellphone.

[15] A number of affidavits were filed on consent that confirmed that both the firearm, the magazine and the ammunition were prohibited under the Criminal Code of Canada. The accused was not a holder of a licence that would have given him lawful authority to possess a handgun, prohibited firearm loaded or otherwise, a prohibited magazine or prohibited ammunition.

The Issue Raised at the Preliminary Hearing

[16] The discrete issue that was articulated by counsel was the following: Was there any evidence that the accused was in fact in possession of the handgun found in the hotel room underneath the mattress? More precisely put, was there any evidence that the accused knew that the handgun was underneath the mattress and did he exercise some control over the handgun?

Analysis

Role of a Preliminary Hearing Judge

[17] It is a well-settled rule that a preliminary hearing judge must determine whether there is any admissible evidence in relation to each of the offence's essential elements to permit a properly instructed jury, acting reasonably, to convict. See: U.S.A. v. Sheppard, [1977] 2 S.C.R. 1067; R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828.

[18] I am also guided by the decision in R. v. Martin, [2001] O.J. No. 4158 at para. 3 wherein the Court of Appeal has indicated that the test is satisfied even where there is nothing more than a scintilla of evidence.

[19] In assessing whether or not the Crown has tendered "sufficient" evidence in respect of each essential element, it must be borne in mind to what sufficiency refers. As noted by McLachlin J. in R. v. Charemski, [1998] S.C.J. No. 23 at para. 35:

First, "sufficient evidence" must mean sufficient evidence to sustain a verdict of guilt beyond a reasonable doubt; merely to refer to "sufficient evidence" is incomplete since "sufficient" always relates to the goal or threshold of proof beyond a reasonable doubt. This must constantly be borne in mind when evaluating whether the evidence is capable of supporting the inferences necessary to establish the essential elements of the case.

[20] Direct and/or circumstantial evidence can support an order to stand trial. The evidence in this case is circumstantial. The Crown relies on police testimony and affidavits and certificates. Circumstantial evidence whether testimonial or real in nature, does not speak for itself. Instead one must apply logic, common sense and or human experience in determining whether a piece of circumstantial evidence on its own, or in combination with other evidence, is probative of a matter in issue. That application of logic, common sense and/or human experience may be summed up as "inference drawing".

[21] It is not within my purview as the preliminary hearing judge to assess the credibility or the reliability of the evidence before me. To do so would be to arrogate the function of the ultimate trier of fact. See Arcuri at para. 30.

[22] I am limited to a consideration of whether the evidence in question is capable of supporting or, to put it another way, could the evidence reasonably support, the inference sought by the Crown. See Arcuri at para. 30.

[23] My task is to assess the circumstantial evidence to determine that it supports the only possible inference to establish an element(s) of the offence. I must be satisfied that the inference sought is a reasonable one. Such inferences cannot be based on speculation, no matter how seemingly reasonable: See R. v. Munoz, [2006] O.J. No. 446 (SCJ) at para. 22. In order for me to avoid engaging in speculation I must be mindful of two important points that the court articulated in Munoz at para. 26 and 28:

The first step in inference drawing is that the primary facts, i.e. the facts that are said to provide the basis for the inference, must be established by the evidence. The second way in which inference drawing can become impermissible is when speculation occurs where the proposed inference cannot be reasonably and logically drawn from the established primary facts.

[24] Although I may be tempted to make an educated guess from a primary fact, based on common sense and human experience, I must resist and rely upon the evidence. See: U.S.A. v. Huynh, [2005] O.J. No. 4074 (C.A.).

[25] It is also necessary for me to consider the cumulative effect of the evidence that points towards the guilt of the accused. This is even more important when the Crown's case is premised wholly on circumstantial evidence and it is improper for me to isolate a particular piece of evidence and to then discuss any probative force flowing there from without regard to the context of the totality of the evidence. See: R. v. Coke, [1996] O.J. No. 808 (SCJ) at para. 9.

[26] The role of the preliminary judge is very limited. The preliminary hearing judge serves as a gate keeper to make sure where there is no evidence of an essential element of an offence that the case should not proceed to trial. If there is some evidence, no matter how weak and unlikely that the Crown's case is, the accused must not be committed to stand trial. (See: R. v. Thompson, [2013] O.J. No. 2019 para. 9).

Was There Any Evidence That the Accused Was in Possession of the Handgun Found in the Hotel Room Underneath the Mattress?

[27] The requisite elements of possession are knowledge and a measure of control. (See: R. v. Hess, 94 C.C.C. 48 (B.C.C.A.) and Beaver v. The Queen, [1957] S.C.R. 531 (S.C.C.)).

[28] In order for the court to commit the accused the Crown must lead some evidence that the accused knew that the handgun was in the hotel room under the mattress and that he had some degree of control over the handgun.

[29] The Crown submitted that in view of the fact that the accused entered the hotel room with a room key, I should infer that he had a degree of control over the room. The Crown suggested that if the accused did not have control over the room he would have knocked on the door in order to enter. Moreover, the accused would not have opened the door for P.C. Corona. Furthermore, the accused's shocked and wide eyed reaction coupled with clutching his satchel upon seeing P.C. Corona and P.C. Ribeiro demonstrated some degree of knowledge. Finally, evidence was led that the teenage girls exchanged nervous glances during P.C. Corona's presence in the bedroom.

[30] I do not believe that in the case at bar there was any evidence upon which a reasonable jury properly instructed could convict the accused for the following reasons:

(1) There was no evidence led that room #337 was registered to the accused or even that he was a frequent visitor.

(2) There was a complete lack of evidence that linked the accused to the room except for his presence on June 3rd, 2017.

(3) The fact that the accused had momentarily occupied the room, occupancy alone is generally insufficient to establish knowledge. (See: R. v. Escoffery, 28 O.R. (3d) 417, (C.A.) at paras. 16 and 22).

(4) There was no forensic evidence led that linked the accused to the handgun.

(5) There was no evidence led from third party witnesses that observed the accused handle the handgun let alone secreted the handgun under the mattress.

(6) Although the accused had a key card to the room and was observed using it in order that he gained access to the room, without more, this evidence did not indicate how he came into possession of the key card, or how often he was in the room or whether or not he had just entered the room for the first time.

(7) There was no evidence of men's clothing amongst the clothing that was observed in the room by any of the officers.

(8) There was no evidence that the accused entered the bedroom area after he accessed the hotel room.

(9) There was no admissible evidence that explained the adolescents' relationship or connection to the room.

(10) There was no admissible evidence, nor did the Crown assert there was, that the black satchel contained the handgun when the accused entered the hotel room. P.C. Corona's subjective belief that there was a handgun in the satchel only assisted him in his grounds to detain the accused for investigative purposes.

[31] In my view, there was no evidence that the accused had any control over the hotel room or the handgun located under the mattress. Based on the evidence that was before me, it was purely speculative that the accused was anything more than a one-time visitor to the hotel room.

[32] The accused is discharged on the remaining counts.

Released: April 26, 2018

Signed: Justice P.T. O'Marra