ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: S.C. No. 11/31
DATE: 20121120

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – JAYDEN BROWN Applicant

James McKeachie, for the Respondent
Saman Wickramasinghe, for the Applicant

HEARD: October 22, 2012

REASONS FOR JUDGMENT ON CERTIORARI APPLICATION

FUERST J.

Overview

[ 1 ] A home invasion robbery occurred in Markham, Ontario in 2010. On April 6, 2010, the police found a black and silver handgun allegedly used in that robbery, inside an apartment at E[…] Avenue East in Toronto. Seaton Brown, Syed Hashimi and Jayden Brown were in the apartment when the gun was seized.

[ 2 ] All three men were charged with various offences related to the gun, including possession of a loaded restricted firearm. The charges against Mr. Hashimi were later withdrawn.

[ 3 ] Seaton Brown and Jayden Brown elected to have a preliminary inquiry. At the outset, defence counsel told the preliminary inquiry judge that committal was in issue for both men.

[ 4 ] Crown counsel called one witness, Detective Don Cardwell. Part way through the evidence, Crown counsel said that he would not seek committal for Seaton Brown. Seaton Brown was discharged on all counts.

[ 5 ] After hearing argument at the conclusion of the evidence, the preliminary inquiry judge committed Jayden Brown to stand trial on six counts.

[ 6 ] Jayden Brown applies for certiorari to quash the committal to stand trial.

The Evidence at the Preliminary Inquiry

[ 7 ] Detective Cardwell testified that he and other officers went to the E[…] Avenue apartment on the afternoon of April 6, 2010, to execute a search warrant. He knocked on the door of the apartment. Seaton Brown answered. The officers told him about the warrant, then handcuffed him and put him on the couch in the living room.

[ 8 ] Detective Cardwell said that from the front door, the apartment opened into the living room, with the kitchen to the right. To the left was a hallway. Down it was a first bedroom that contained female clothing, a washroom, and a second bedroom at the end.

[ 9 ] Mr. Hashimi and Jayden Brown “came from down the hallway”. Detective Cardwell did not see from which room they came. They were brought into the living room. The officers then told Seaton Brown the circumstances of the warrant.

[ 10 ] Detective Cardwell said that he searched the bedroom at the end of the hallway, which “we identified as Jayden’s room”. In examination-in-chief he did not explain why the police attributed the bedroom to Jayden Brown.

[ 11 ] In the bedroom there was a mattress and a music mixing “box” on the floor. Inside the walk-in bedroom closet there were baseball hats and clothing, and on the floor a box for the music mixing equipment. Detective Cardwell opened the top of the box and saw a black nylon case inside with a loaded 9 millimetre silver and black handgun and loaded magazine, and a bag of bullets.

[ 12 ] During Detective Cardwell’s examination-in-chief, Crown counsel played the videotaped statement that Seaton Brown gave to the police, the voluntariness of which was admitted by Seaton Brown’s counsel. In that statement Seaton Brown said that Jayden Brown was his son and that the rear bedroom was occupied by Jayden and another son who was nine years old. Counsel for Jayden Brown confirmed with the preliminary inquiry judge that this statement was admissible in respect of Seaton Brown only.

[ 13 ] In cross-examination, counsel for Jayden Brown questioned Detective Cardwell about the basis on which he attributed the bedroom to Jayden Brown. Detective Cardwell said that he did so because of the videotaped statement made by Seaton Brown; utterances made to the police by Jayden Brown that he was a DJ, that he ran a recording studio in the bedroom, and that he lived in the bedroom with a much younger brother; and the nature of the men’s clothing in the closet and room. The officer said that the clothing was “very limited”, but that he looked through it and it was “more conducive towards a 20 year old as opposed to a middle-aged man”. It was not what Seaton Brown was wearing that day. The officer described it as “very large clothing” that “would fit Jayden”, whom he described as being “substantially bigger” than defence counsel who was 5’11” tall and 195 pounds. Detective Cardwell acknowledged that he had never dealt with Jayden Brown before, had not seen what type of clothing he wore, and was assuming the clothing would fit Jayden Brown.

The Preliminary Inquiry Judge’s Reasons

[ 14 ] The preliminary inquiry judge gave reasons immediately after hearing submissions at the end of the evidence. She identified the issue as whether there was some evidence that Jayden Brown had knowledge, consent and control of the handgun. She said, “I find that there is some evidence before the court from which it can be reasonably inferred that that bedroom belonged to Jayden Brown. I think that evidence is found in the testimony of Detective Cardwell in terms of his observations of the contents of that room and specifically the size and the type of clothing found in that room given the persons that were present at the time of the execution of [sic] search warrant.”

The Positions of the Parties on this Application

[ 15 ] On behalf of the applicant, Mr. Wickramasinghe submits that the preliminary inquiry judge committed jurisdictional error. He contends that there was no evidence admissible in respect of Jayden Brown that could give rise to a reasonable inference that Mr. Brown occupied the bedroom and so had knowledge and control of the handgun. There was no evidence admissible in respect of Jayden Brown as to who lived in the apartment, Jayden Brown’s age or physical size at the time of the search, or the ages and physical sizes of the other two men who were present. Detective Cardwell’s testimony about the clothing in the room was baseless opinion or conjecture.

[ 16 ] On behalf of the Crown, Mr. McKeachie submits that the application should be dismissed. Unlike the first bedroom which had female clothing in it, the second bedroom where the handgun was found contained male clothing. Detective Cardwell’s testimony that the clothing was of a large size and consistent with that worn by a 20 year old male rather than a middle-aged man is some evidence from which it could be reasonably inferred that Jayden Brown occupied that bedroom, and had knowledge and control of the handgun.

The Test for Committal at a Preliminary Inquiry

[ 17 ] The Supreme Court of Canada confirmed in R. v. Arcuri (2001), 2001 SCC 54 () , 157 C.C.C. (3d) 21, at para. 21 , that a preliminary inquiry judge must commit an accused to stand trial where there is “admissible evidence which could, if it were believed, result in a conviction”. The test is the same whether the evidence is direct or circumstantial. If there is direct evidence as to every element of the offence charged, the preliminary inquiry judge must commit the accused to stand trial. Where the evidence is circumstantial, however, there is an inferential gap between the evidence and the matter to be established. The judge must therefore weigh the whole of the evidence in the limited sense “of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw”: Arcuri , at para 23 . The court emphasized that the preliminary inquiry judge does not draw factual inferences, or assess credibility, or ask whether he or she would conclude that the accused is guilty. The judge asks only “whether, if the Crown’s evidence is believed, it would be reasonable for a properly instructed jury to infer guilt”: Arcuri , at para. 30 . The task of limited weighing is an assessment of “the reasonableness of the inferences to be drawn from the circumstantial evidence”: Arcuri , at para. 30 . In other words, the preliminary inquiry judge “must engage in a limited weighing exercise in order to determine whether a properly instructed jury could reasonably draw the suggested inferences”: R. v. Slessor, 2007 ONCA 336 .

[ 18 ] Where there are competing inferences to be drawn from circumstantial evidence, the preliminary inquiry judge does not choose among them. Only the inferences that favour the Crown are to be considered: R. v. Sazant, 2004 SCC 77 . As long as there is available a reasonable inference in favour of the Crown, then the preliminary inquiry judge must draw it, regardless of its strength: R. v. Sheardown, 2010 ONSC 4235 . However, “[s]uch inferences cannot be based on speculation, no matter how seemingly reasonable. If the committal of an accused depends on an inference or inferences that cannot be reasonably drawn from the evidence then the accused must be discharged as there would be an absence of evidence on an essential element” of the offence: Sheardown , at para. 19 .

The Standard of Review on an Application for Certiorari

[ 19 ] The Supreme Court of Canada reiterated in R. v. Russell, 2001 SCC 53 , that the jurisdiction of a reviewing court on an application for certiorari is very limited. It may overturn the decision of the preliminary inquiry judge only where the judge exceeded his or her jurisdiction. It may not overturn the decision of the preliminary inquiry judge merely because he or she made an error of law or reached a conclusion different from that which the reviewing court would reach.

[ 20 ] It is jurisdictional error for a preliminary inquiry judge to commit an accused to stand trial where there is no evidence on an essential element of the offence charged: R. v. Sazant , above; R. v. Deschamplain, 2004 SCC 76 .

[ 21 ] Further, it is jurisdictional error if the preliminary inquiry judge commits an accused based on an inference or inferences that cannot be reasonably drawn from the evidence. This was explained in R. v. Sheardown , above, at para. 21 : “To commit an accused on such a basis constitutes jurisdictional error as there is no evidence from which the inference or inferences reasonably can be drawn and thus, there would be an absence of evidence on an essential element of the charge.”

Analysis

[ 22 ] The preliminary inquiry proceeded on the basis that the various charges against Jayden Brown turned on his alleged constructive possession of the handgun (including the ammunition). Section 4(3) (a)(ii) of the Criminal Code provides that a person has anything in his possession when he knowingly “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 another person”. Constructive possession requires that the individual has knowledge of the presence of the item in the place beyond mere quiescent knowledge, and some measure of control over the item: R. v. Pham (2005), 2005 44671 (ON CA) , 77 O.R. (3d) 401 (C.A.), at para. 15 .

[ 23 ] The issue before the preliminary inquiry judge was whether there was some evidence that Jayden Brown had knowledge and control of the handgun concealed in the box in the bedroom closet. The evidence adduced was circumstantial. Crown counsel urged the preliminary inquiry judge to draw the inferences that the rear bedroom belonged to or was occupied by Jayden Brown and that he had the requisite knowledge and control.

[ 24 ] A committal for trial must be based on admissible evidence. In this case, the preliminary inquiry judge heard a significant body of evidence that was not admissible in respect of Jayden Brown. I refer to the statement to the police of Seaton Brown, which the judge acknowledged could not be used in respect of Jayden Brown; information the police gathered that led them to obtain and execute the search warrant, which the judge acknowledged she could use as narrative only; and utterances made by Jayden Brown to the police, which defence counsel pointed out were offered up by the officer in cross-examination without being tendered by the Crown for a voluntariness voir dire or waiver. This was not a situation in which the preliminary inquiry judge made rulings about admissibility, which cannot be challenged on a certiorari application. Although the evidence was adduced, it was undisputed that it was not part of the body of admissible evidence in respect of Jayden Brown that could found his committal to stand trial.

[ 25 ] Accordingly, while there was evidence that Jayden Brown was present in the apartment when the gun was found, there was no evidence admissible in respect of him that he lived in or stayed at the apartment, or of his relationship to Seaton Brown. To borrow the phrasing of the Court of Appeal for Ontario in R. v. Turner, 2012 ONCA 570 , at para. 21 , the mere presence of Jayden Brown in the apartment did not by itself raise the inference that the bedroom belonged to or was occupied by him and that he had the requisite knowledge and control of the gun concealed inside the box in the bedroom closet.

[ 26 ] There was no evidence admissible in respect of Jayden Brown that linked him to the music mixing equipment and so in turn to the bedroom. Leaving aside the clothing, there was nothing in the bedroom that raised the inference that the bedroom belonged to or was occupied by Jayden Brown and that he had the requisite knowledge and control of the gun.

[ 27 ] The preliminary inquiry judge found evidence from which it could be “reasonably inferred” that the bedroom belonged to Jayden Brown in “the testimony of Detective Cardwell in terms of his observations of the contents of that room and specifically the size and the type of clothing found in that room”.

[ 28 ] The testimony of Detective Cardwell, that the clothing was very large clothing that would fit Jayden Brown and was “more conducive towards” a 20 year old than a middle-aged man, was conclusory. The officer gave no description at all of the clothing. He gave no description of Jayden Brown at the time of the search, aside from saying that he was physically larger than 5’11” and 195 pounds. He gave no description of the physical appearance of the other two men in the apartment, or of their sizes relative to Jayden Brown. Non-expert opinion evidence is sometimes admissible, but there must be some basis for the opinion before it can be given any weight: R. v. Cuming (2001), 2001 24118 (ON CA) , 158 C.C.C. (3d) 433 (Ont. C.A.). No basis for the officer’s opinion about the clothing was adduced. His testimony was no more than speculation. An inference that the bedroom belonged to or was occupied by Jayden Brown, and in turn that he had knowledge and control of the handgun could not be reasonably drawn from the officer’s testimony about the clothing. That is so even when the officer’s testimony about the clothing is combined with the evidence of Jayden Brown’s presence in the apartment and the mixing equipment on the bedroom floor.

[ 29 ] There was no evidence from which the inference that the bedroom belonged to or was occupied by Jayden Brown could reasonably be drawn. In turn, there was no evidence from which the inference that he had knowledge and control of the handgun could reasonably be drawn. There was an absence of evidence that he was in possession of the handgun (including the ammunition), which was an essential element of the various offences charged. The preliminary inquiry judge exceeded her jurisdiction in committing him for trial.

Conclusion

[ 30 ] The application for certiorari is granted. The order of the preliminary inquiry judge committing Jayden Brown to stand trial on counts 1, 2, 3, 4, 5 and 7 is quashed. He is discharged on those counts.

Justice M.K. Fuerst

Released: November 20, 2012