Ontario Court of Justice

Date: 2020-09-24 Location: Newmarket

Between:

Her Majesty the Queen

— and —

Merrick Barham

Judgment

Evidence and Submissions: 17, 21, 22, 24 September, 2020.

Delivered: 24 September, 2020.

Counsel:

• Mr. Martin Dionne — counsel for the Crown
• Ms. Eleanor Shaw — counsel for the defendant

KENKEL J.:

Introduction

[1] Mr. Leung was working in his bar when staff called his attention to an altercation. He assisted someone named Kyle who was injured, and he moved the other parties out the front door. He noted the vehicle in which three people left and he provided details including the license plate number to police. The vehicle was stopped, and two persons were found inside. A search of the vehicle incident to arrest revealed a safe in the trunk. A later search of the safe via warrant led to the seizure of a semi-automatic handgun with a magazine and ammunition, rolls of cash in large denominations and what appeared to be controlled substances.

[2] Mr. Barham was not in the car when it was stopped. The detailed and credible evidence of the bar owner showed there were three people in the car when it left the scene but only two remained by the time it was stopped. The Crown alleges that Mr. Barham committed the knife assault causing bodily harm, that he fled in the vehicle that was stopped by police, that DNA evidence shows he was in possession of the gun and other items found in the trunk, and that he was thereby breaching several terms of releases he was subject to at the time.

[3] For the reasons that follow, I find that the Crown has failed to prove all of the counts beyond a reasonable doubt.

The Assault Counts

[4] The bar owner assisted someone named Corey who appeared to have been stabbed. Mr. Leung didn't see Corey get stabbed but he did see the wounds. There's no evidence that the Corey who Mr. Leung helped was Corey Epton, the alleged victim in this case.

[5] The Crown's case on the counts related to the assault rests on a knife blade and handle examined by the Centre of Forensic Sciences (CFS). The Forensic Biologist Ms. Matte examined a knife blade and was able to identify blood from a Corey Epton. [1] Ms. Matte also examined a knife handle and found traces of DNA from "at least three people" one of whom was Mr. Barham.

[6] There's no evidence where the knife blade and handle came from or if they relate at all to this case. We know from the brief evidence of PC Kinsinger that neither item was found in the trunk of the car he searched. There's no evidence explaining how the two items came to be examined separately or if they ever were at one time together as part of the same knife. There's no evidence linking the profile identified of Corey Epton to the "Corey" who was assisted by the bar owner.

The Possession Counts

[7] Ms. Jaimee Anderson testified that she did not drive Merrick Barham away from the bar on the evening in question and that she was not aware of the gun and other items in the safe in her trunk. She said she drove "so many people everywhere" and that people put things in her trunk and took them out. She gave no examples.

[8] Ms. Anderson's testimony on this point was not credible. Her denial was vague and she did not give even one example of recent rides she had given or any items ever left in her trunk. More importantly, a safe with a handgun, bundles of cash in large denominations and drugs is not something casually left in a car like an umbrella or a scarf. Persons in illegal possession of such items would be very careful to maintain close control over the valuable property. What is plain from Ms. Anderson's testimony is that only she drove her car. She alone could provide access to her trunk and she exercised that control over items put there.

[9] Ms. Anderson denied driving a second passenger from the scene of the altercation. This evidence was not credible given the detailed, credible observations of the independent witness Mr. Leung. The Crown submits that DNA evidence shows that Merrick Barham was in possession of the safe that night as the second passenger even though he was not in the vehicle by the time it was stopped.

[10] Even if one assumed that the safe examined by the CFS was the one seized from Ms. Anderson's trunk by PC Kinsinger, the swab from that safe revealed a mixture of DNA from "at least three people" including Mr. Barham. A swab of a magazine and cartridges that were linked to the semi-automatic firearm found in the trunk showed the DNA of "at least four people" including Mr. Barham. The analyst explained that the presence of DNA on these items cannot be linked to contact at a particular time or place. The identification of a particular profile does not mean that that person had more contact than the others who could not be specifically identified.

[11] There was further evidence regarding DNA analysis of blood found on a sweater, but that sweater was never linked to this case.

The Fail to Comply Counts

[12] The Crown called no evidence that Mr. Barham was on any recognizance. They called no evidence to show that he was in possession of controlled substances as alleged.

Conclusion

[13] The Crown has failed to prove that Mr. Barham was at the scene of the stabbing in the Newmarket bar. There is evidence that he may have had some contact with items found in Ms. Anderson's trunk at some time, but there's no evidence he was in possession of those items on the date alleged. No evidence was called on the Fail to Comply Counts.

[14] The Crown has failed to prove the counts alleged. The charges are dismissed.

Delivered: September 24, 2020.

Justice Joseph F. Kenkel

Footnote

[1] All of the DNA comparison results were properly expressed in terms of a Random Match Probability (RMP) – the probability that an unrelated person, picked at random would match the profile identified from the evidence. Here the RMP results were found to be greater than one trillion times more likely to match the named person than an unknown person picked at random.