COURT FILE NO.: CR-11-10000547-0000
DATE: 20131120
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Applicant
– and –
KEMAR CARROL and NICHOLAS DENNY
Defendants
Glenn Brotherston, for the Crown
D. Sid Freeman, for Kemar Carrol
R. Roots Gadhia, for Nicholas Denny
HEARD: October 21, 23, 24, 25, 28, 29, 30, 31, November 5, and 7, 2013
MOLLOY J.:
REASONS FOR DECISION (No. 1)
(Rulings on Pre-trial Motions and Directed Verdict)
A. INTRODUCTION
[1] Kemar Carrol and Nicholas Denny are jointly charged with possession of a loaded firearm. In addition, Mr. Carrol is separately charged with a number of related offences (breaches of three court orders not to be in possession of a weapon; obstructing justice; and two breaches of a probation order). Although originally scheduled to be before a jury, at the outset of trial, both accused re-elected before me to be tried by judge alone. At the same time, the defendant Nicholas Denny withdrew his application for severance.
[2] The main charges relate to a gun and ammunition found on May 13, 2010. Toronto police officers were executing a warrant for the arrest of Mr. Carrol. They found him in a detached garage of a townhouse unit in Scarborough, in the company of Mr. Denny. The garage was filled with bits and pieces of furniture (including a couch, some chairs, a television, and a Playstation-type gaming console) and appeared to have been set up as a hangout. According to police evidence, upon their entry into the garage, Mr. Carrol jumped up from where he had been sitting on the couch. A loaded .22 calibre handgun was found under the seat cushion of the couch. Further, it is alleged that Mr. Denny was standing next to a chair containing a backpack in which were found a number of rounds of .22 calibre ammunition and various documents bearing Mr. Denny’s name.
[3] As part of its case, the Crown sought to introduce evidence that, one month previously, Mr. Carrol had been in possession of the same gun found in the garage. The circumstances of that alleged possession involved the discharge of a firearm in London, Ontario and an eye-witness identification of Mr. Carrol as the shooter. As such, this would be evidence of prior discreditable conduct and was therefore the subject of a pre-trial application by the Crown. Mr. Carrol objected to the admission of this evidence. Counsel agreed that this application should proceed first, followed by the trial proper. Some of the evidence on the application was restricted to the application itself. Otherwise, the trial and various other applications proceeded on a blended trial and voir dire basis.
[4] There were two other pre-trial motions: (1) Mr. Carrol sought a ruling preventing the Crown from asking the eye-witness if he could recognize the person with the gun in the courtroom; and (2) Mr. Denny sought an order excluding all of the photographs taken of the contents of the Toronto garage following his and Mr. Carrol’s arrest.
[5] For reasons that follow, I admitted all of the evidence that was subject to the pre-trial motions, essentially because the objections to their admissibility related more to the weight of that evidence, than to its admissibility. I ruled as follows:
(a) The evidence identifying Mr. Carrol as a person who possessed the gun on an earlier occasion is admissible because its probative value outweighs any prejudicial effect. The frailties in the eye-witness identification are a matter of weight, not admissibility.
(b) The photographs taken at the crime scene are admissible in evidence because officers who were there testified as to their accuracy. Any contradictions in the testimony of those officers go to credibility and weight, not to the admissibility of the photographs themselves.
(c) The Crown may ask the eye-witness from the London incident whether he recognizes the person involved in that incident in the courtroom. If he identifies Mr. Carrol, who is the only person sitting in the prisoner’s dock, that identification can be given very little weight. However, if he is not able to identify Mr. Carrol, that is a circumstance that may be worthy of greater weight, and which would inure to the benefit of the defence.
[6] At the conclusion of the Crown’s case, Ms Freeman, counsel for Mr. Carrol, applied for a directed verdict under Count 7 with respect to the charge of obstructing justice. Count 7 is particularized as alleging that Mr. Carrol “did willfully obstruct Andrew Mavrou, a peace officer, to wit: a police officer of the Province of Ontario engaged in the execution of his duty, to wit: arresting Kevin Carrol, by providing a false name.” That charge was based on the fact that Mr. Carrol gave a false name to D.C. Mavrou when he was arrested in (or just outside) the Toronto garage on May 13, 2010. I granted that motion for brief oral reasons given at the time. Essentially, I was satisfied that Mr. Carrol gave a false name and that he did so in an attempt to hide his identity from the arresting officer. However, D.C. Mavrou merely noted the name and date of birth given by Mr. Carrol (both of which were false) and then proceeded with his investigation. The false information had no impact on anything D.C. Mavrou did. His investigation was not hindered or made more difficult and he took no extra steps as a result of the false information received. There was no evidence as to whether this conduct of Mr. Carrol created more work for the police after he was transported to the police station, and in any event, the particulars of the charge do not relate to anything other than the arrest by D.C. Mavrou. Since there was no actual obstruction of D.C. Mavrou, the essential elements of the offence are not met.[^1] Therefore, there was no evidence upon which it is possible, as a question of law, to reach the conclusion that this offence had been proven beyond a reasonable doubt. I found Mr. Carrol not guilty on Count 7.
[7] Ms Freeman also sought a directed verdict of acquittal in respect of the gun possession charges against Mr. Carrol. I dismissed that motion for reasons to follow, which are set out below.
[8] The trial then proceeded, at the conclusion of which I reserved my decision as to the guilt of the accused on the charges against them. My reasons on those issues will be the subject of a separate decision to be released later.
B. EVIDENCE OF PRIOR BAD CONDUCT
The Nature of the Evidence and the Test
[9] The Crown sought to prove in evidence at this trial that Mr. Carrol had been involved in an altercation in London, Ontario on April 14, 2010, in the course of which he fired a gun. London police officers recovered a shell casing at the scene of the shooting. The shell casing found in London in April 2010 and the handgun found in the garage in Toronto in May 2010 were sent to the Center for Forensic Science for testing. That analysis established that the gun under the seat cushion in the garage in May is the same gun that fired the bullet found in London in April. That fact is admitted. An eye-witness to the shooting, Sekou Kromah, was shown a photographic line-up from which he identified Mr. Carrol as the shooter. The Crown seeks to tender this evidence to establish that Mr. Carrol was in possession of this gun in London in April, and that therefore it cannot be a mere coincidence that he was found in a garage sitting on top of that same gun in Toronto one month later. He must have had knowledge of the gun’s presence.
[10] Possession of a restricted firearm is a criminal offence and therefore “bad” or “discreditable” conduct. If that evidence is relevant to an issue at trial, it is nevertheless admissible, but is subject to being excluded if its probative value outweighs its prejudicial effect.[^2]
Relevance
[11] The first question to be considered is whether the evidence is relevant. That test is easily met. There is no direct evidence as to how the gun in question came to be under the seat cushion of the couch in the Toronto garage. There is also no evidence that Mr. Carrol owned or had any proprietary rights over the garage. The issue is whether there is evidence from which it can be inferred that Mr. Carrol must have known about the gun under his seat cushion. This is not a situation in which the Crown is arguing propensity or similar fact. It is not said that Mr. Carrol had been seen with a gun in the past and it is therefore more likely that he knew about the gun under his seat. On the contrary, the issue is actual prior possession of this very gun. If the Crown can establish that Mr. Carrol was in possession of the very same gun one month earlier in a different location, that would be relevant to what rational inferences can be drawn with respect to the presence of the same gun with Mr. Carrol in the Toronto garage a month later.
Probative Value
[12] The next consideration is the probative value of the evidence. In my view, the evidence of possession by Mr. Carrol in London in April, if accepted, is highly probative. If Mr. Carrol is proven to have been in possession of the gun in April, that would go a long way to rebutting any possible inference that it was a mere coincidence that Mr. Carrol, when arrested a month later, was sitting on top of that same gun. The defence focus on this motion was on the frailty of the evidence identifying Mr. Carrol in relation to the London incident, rather than on the probative value of that evidence if believed. The defence pointed to various defects in the line-up procedure including: (i) a challenge to the array on the basis that Mr. Carrol’s photograph stood out from the others; (ii) the fact that the array was twice shown to Mr. Kromah (the eye-witness) before he finally selected Mr. Carrol’s photograph; (iii) the fact that Mr. Kromah’s physical description of the shooter shortly after the incident was lacking in particularity; (iv) the fact that other witnesses gave descriptions of the shooter that were inconsistent with distinguishing features of Mr. Carrol and different from the description given by Mr. Kromah; and (v) the gap of seven months from the time of the incident to the date of the photo line-up identification. The defence argument is that the defects in this evidence are so significant that the eye-witness identification has no probative value at all.
[13] The points raised by the defence are clearly relevant to a determination of the weight to be given to the eye-witness identification. However, there were also many positive features of the identification, for example: (i) Mr. Kromah had an extended period of time to observe Mr. Carrol before he was in a situation where panic or fear would have distorted his observations; (ii) the array was only shown to Mr. Kromah for the second time because he asked if that could be done; (iii) before asking to see the array for a second time, Mr. Kromah hesitated for a considerable period over the picture of Mr. Carrol and identified him definitively when the array was shown for the second time; (iv) the hesitation may be said to be equally consistent with being sure and careful, rather than uncertain of the identification; (v) the array was shown sequentially by an officer with no knowledge of the case; and (vi) although Mr. Carrol’s chin was down in the photograph and he was looking up slightly, in all other respects this was a fair array with photographs of individuals substantially similar to Mr. Carrol.
[14] Thus, there are pros and cons with respect to the identification evidence. It is difficult to determine the weight to be given to all of these factors and to assess the overall reliability of the identification evidence without hearing the evidence of Mr. Kromah, who did not testify on the voir dire.
[15] This is not a situation in which the evidence can be said to be so frail as to be virtually devoid of any probative value. It must be remembered that at this stage of the analysis my role is as a gate-keeper, not a final decision-maker. I do not need to be satisfied that the evidence against Mr. Carrol on this point is wholly conclusive as to his identity. Clearly, assessing probative value involves some degree of weighing evidence and determining credibility and reliability. However, the ultimate decision as to reliability is not to be made at this stage. In my view, the evidence is sufficiently strong that it might meet the ultimate test of proof beyond a reasonable doubt when considered in conjunction with other circumstantial evidence that is corroborative. That is a possible conclusion on the evidence. If the evidence is accepted, it is highly probative of a central issue on this trial. In these circumstances, I therefore find that the Crown has established that the evidence is highly probative. Any further analysis of weight and reliability should await the full evidence at trial.
Prejudice
[16] Next, it is necessary to consider the issue of prejudice. The focus of the defence on this application was almost entirely on probative value. However, it is also necessary to consider the issue of possible prejudice to the accused. In R. v. Handy,[^3] the Supreme Court of Canada identified two kinds of prejudice: moral prejudice and reasoning prejudice. Although that was a case involving the admissibility of similar fact evidence, it involved the same weighing of probative value and prejudicial effect as arises in this case. I consider those principles, therefore, to be relevant and applicable here.
[17] The risk of moral prejudice here is negligible. First, there is no jury. Second, there is no issue of similar fact or propensity reasoning. The purpose of the evidence is merely to establish possession of an item on a prior occasion, to rebut the suggestion that the presence of that same item with the accused a month later is merely coincidental. In this regard, the item could just have easily have been something innocuous like a one-of-a-kind jacket, or a particular motor vehicle. The only reason the issue of prior discreditable conduct even arises is because the item in question is a prohibited firearm and possession of it constitutes an offence. The offence, however, is not one that is more reprehensible than the one now charged. It relates to the possession of the same gun. As I consider this evidence, it will be necessary to remind myself of the limited purpose of the evidence and to refrain from engaging in a prohibited line of reasoning relating to bad character or propensity. I see no problem with that.
[18] The possibility of reasoning prejudice raises more of an issue. Mr. Carrol does not admit the alleged prior possession. Indeed, the London incident is itself the subject of charges against Mr. Carrol, which remain outstanding and for which a preliminary hearing has not yet been held. The concern here is that eliciting evidence in this case of Mr. Carrol having been in possession of the gun in London in April will essentially become a “trial within a trial” distracting the focus of this trial and consuming an inordinate amount of time on a “side issue.” Further, depending on Mr. Carrol’s opportunity to defend himself on the allegations and depending on any findings of fact that are made, his right to a full and fair trial may be jeopardized. In Handy, the Supreme Court held, at para. 146:
Further, there is a risk, evident in this case, that where the “similar facts” are denied by the accused, the court will be caught in a conflict between seeking to admit what appears to be cogent evidence bearing on a material issue and the need to avoid unfairness to the right of the accused to respond. The accused has a limited opportunity to respond. Logistical problems may be compounded by the lapse of time, surprise, and the collateral issue rule, which will prevent (in the interest of effective use of court resources) trials within trials on the similar facts.
[19] The Crown’s evidence at trial in respect of the London incident will essentially consist of the evidence of one witness: the eye-witness Sekou Kromah. The police witnesses involved in taking his statements have already testified on the application itself. Therefore, the amount of evidence to deal with this issue should not unduly prolong the trial.
[20] The defence has had full disclosure of the Crown’s case involving the London incident, and has had it for some time. In argument, counsel for Mr. Carrol submitted that the defence is prejudiced in responding to this allegation because she is not able to call any of the other witnesses who were present at the London incident in order to present conflicting versions of the incident and persons described by Mr. Kromah. I pointed out that I had no objection to the defence calling such witnesses and there was no evidence before me as to why such witnesses could not be called. There was, for example, no indication that counsel had made any attempt to even contact or interview those witnesses, nor had she requested any assistance from the police or the Crown in locating them. The trial date before me was the second trial date for these charges. The initial trial date was approximately one year ago, and was adjourned at the request of the defence. Prior to that adjournment, the Crown had already delivered its application to admit this evidence. Therefore, the defence had ample time to either obtain the responding evidence or present evidence as to how and why it is prejudiced by the inability to obtain it. I therefore find no reasoning prejudice or unfairness to the defence arising from the inability to counter or respond to the evidence of Mr. Kromah.
[21] Defence counsel further argued that the defence would be at a disadvantage in having to call witnesses who might not be favourable to the defence. In particular, she was concerned about the inability of the defence to cross-examine such witnesses. There is no evidence that such a prejudice would actually arise, as the defence has not contacted any of the witnesses. However, if it did arise, it could be alleviated by providing some flexibility as to the right of cross-examination. I do not see this as a basis for excluding the evidence of Mr. Kromah.
[22] I have also considered whether the defence is prejudiced by the fact that Mr. Kromah was not a witness at the preliminary hearing in this case. If the London incident was left to be determined solely in the charges arising from that event, Mr. Kromah would undoubtedly have been called as a witness at the preliminary and the defence would have the opportunity of cross-examining him on any inconsistencies between that testimony and his testimony at trial, if such should arise. However, the Crown is not obliged to call every relevant witness at the preliminary and was not obliged to call Mr. Kromah as a witness in the preliminary hearing in this case. The defence has had full disclosure of Mr. Kromah’s anticipated evidence including: a typed transcript of his initial statement to the police on April 15, 2010; a video-tape of his more detailed formal interview by the police on May 20, 2010; and a video-tape of the photo-line up identification conducted on November 16, 2010. I find no prejudice arising from the fact that Mr. Kromah did not testify at a preliminary hearing prior to testifying at this trial.
[23] Finally, I have considered whether Mr. Carrol could be prejudiced in respect of the London charges against him as a result of that incident being part of the evidence in this trial. I do not find that to be the case. I am mindful that specific factual findings that overlap the charges in London should be avoided, and should not be necessary. I do not see that anything determined in this proceeding would be binding against Mr. Carrol in subsequent proceedings arising from the London charges.
[24] Therefore, I find there is very little, if any, prejudice to Mr. Carrol arising from the identification evidence the Crown seeks to call in this case.
The Role of Legal Aid Ontario
[25] Mr. Carrol’s defence is being funded by Ontario Legal Aid. One of the submissions made in argument by his counsel was that she did not seek to interview any of the witnesses in the London incident because she did not believe that Legal Aid would fund it. I rejected that argument on the basis that counsel had made no attempt whatsoever to get funding for such steps and I was not prepared to speculate that it could not be obtained if sought.
[26] The next day, a lawyer employed by Ontario Legal Aid appeared in court, fully gowned, and sought to make submissions as to whether such investigations would have been funded by Legal Aid if approval had been sought. Whether or not funding would be provided is a factual matter, not a matter for legal submissions. I did not permit counsel to provide that factual information in the guise of submissions from the counsel table. However, I indicated that I would be prepared to have the lawyer sworn in as a witness (after changing out of her gown) and she could provide the information as evidence, which could then be tested by cross-examination. I was advised that this lawyer was not authorized to provide sworn testimony and that approval for that had to come from further up in the Legal Aid hierarchy. I confess to being somewhat chagrined by the willingness of Legal Aid to provide information to the court through a lawyer, but the refusal to have that lawyer swear to the truth of that information. It does not give me any degree of comfort as to the reliability of the information that would have been provided.
[27] Following this, there was a lull in the proceedings due to the unavailability of witnesses and the illness of one counsel. However, while the court was in recess, and before I had made any ruling on the Crown’s application to admit this evidence, counsel for Mr. Carrol made an urgent application to Legal Aid for funding to interview witnesses connected to the London incident. The next day in court, counsel for Mr. Carrol sought to file Legal Aid’s response to that application. I agreed that the Legal Aid letter could be filed as Exhibit 8 at trial. Essentially, the Legal Aid Regional Manager was of the view that funding should not be granted because it was unlikely that the Crown would be successful in its motion. One of the reasons for the conclusion that the Crown would be unsuccessful was because the whereabouts of the London witnesses was not known, circular reasoning indeed given that the alleged reason for the failure of the defence to locate the witnesses was the lack of Legal Aid funding. Another reason advanced was that “Mr. Carrol, if he is successful in finding these witnesses, may potentially prejudice his defence in the London allegations.” I am perplexed as to the meaning of that. The reason for seeking out those witnesses was to counteract the evidence of Mr. Kromah. The evidence of Mr. Kromah would be even more central to the London charges than in the case before me. It is hard to understand how seeking evidence helpful in rebutting Mr. Kromah’s evidence in this trial would prejudice the defence in the London trial.
[28] The decision of Legal Aid refusing funding did not affect my disposition of this motion. It does not change the fact that a timely application for funding was not made. If the application had been made and refused at an early stage, an appeal could have been brought, or a court order for funding could have been sought. There might also have been the possibility of cooperation between the London and Toronto charges and how Legal Aid would fund each. Alternatively, directions could have been sought from the court with respect to having the Crown’s motion as to the admissibility of the evidence determined at an earlier stage, so that Legal Aid would not be in the position of second-guessing what the court’s ruling might be. The fact that the defence found itself in this position at the eleventh hour is precisely because these earlier steps were not taken.
[29] It is not the role of Legal Aid to determine what evidence is, or is not admissible, at a criminal trial. Where the Crown seeks the admission of evidence at trial, it is incumbent on the defence to not only prepare for the motion, but to prepare for the trial as if that evidence may be admitted. I cannot countenance refusing to admit relevant evidence on the basis that Legal Aid has determined it would not be admissible and therefore would not provide appropriate funding to defend against it.
Conclusion
[30] Accordingly, in my view there is no, or virtually no, prejudice to the accused by the admission of the evidence. The evidence is relevant and potentially highly probative, depending on the weight to be given to it. In balancing these two factors, I find the probative value outweighs any potential for prejudice to the accused. Therefore, I held the evidence of Mr. Kromah to be admissible.
[31] In the result, upon my making that ruling, Legal Aid changed its position and provided funding to the defence. I heard nothing further about the issue from the defence. In particular, no adjournments were requested.
C. IN-DOCK IDENTIFICATION OF THE ACCUSED
[32] Ms Freeman submitted, on behalf of Mr. Carrol, that when the eye-witness from London, Mr. Kromah, testified at this trial, the Crown should not to be permitted to ask him whether the man who had the gun in London is present in the courtroom. She argued that such evidence is so devoid of weight that it should not be admissible at all.
[33] There is no need to review the case law on this issue in any depth. I agree entirely with the long-established principle that an in-dock identification of an accused is fraught with difficulty and should be given very little weight. I take no issue with any of the cases cited by the defence, but they do not support the proposition for which they are cited. I was not directed to a single case holding such evidence to be inadmissible; all of the case authority is directed to the frailty and unreliability of such evidence and how little weight should be given to it.[^4]
[34] Further, many of the cases cited deal with a situation in which the first identification of the accused by the witness was in the courtroom, which is not the case here. Mr. Kromah previously picked out Mr. Carrol’s photograph from a line-up.
[35] Before hearing the evidence of the witness, it is difficult to say how much weight to be given to it. Typically, the identification of the accused in the courtroom will be given virtually no weight. However, I note that Mr. Kromah did not testify at the preliminary hearing in this case and that the charges against Mr. Carrol in respect of the incident in London have not yet reached the preliminary hearing stage. The trial before me would therefore appear to be the first opportunity for Mr. Kromah to see Mr. Carrol in person, rather than in a photograph. It is possible that Mr. Kromah will be less certain of his prior identification upon seeing Mr. Carrol in person. It is even possible that Mr. Kromah may disavow his prior identification and take the position that Mr. Carrol is not the person he saw in London. That would be important evidence for the defence and should be heard.
[36] How much weight to give to any evidence from this witness as to his ability or inability to identify Mr. Carrol in the courtroom is a decision I can only make once the evidence has been given. It may well be that I ascribe little or no weight to it. However, that is a question of weighing the evidence and making findings of fact; it is not a question of admissibility. I therefore ruled that the Crown could ask Mr. Kromah whether the man who had the gun was in the courtroom.
D. PHOTOGRAPHS
[37] The Crown sought to tender a series of photographs taken by a police officer on May 13, 2010, depicting the interior of the garage in which Mr. Carrol and Mr. Denny were arrested and various items therein. Ms Gadhia, on behalf of Mr. Denny, submitted that the photographs should be excluded from the evidence at trial because they are hearsay and were not shown to be sufficiently reliable to be admitted into evidence.
[38] Photographs are typically introduced as a demonstrative aid to give a concrete illustration of a witness’ oral testimony. Thus, a witness may describe a particular room and then be shown a picture or diagram. If the witness confirms that the picture accurately reflects the room as he saw it at the relevant time, the visual aid is admissible to assist in understanding the witness’ evidence. In this context, a photograph is not hearsay. Therefore, when a photograph is used in this manner, it is not necessary for the person who took the photograph to be called as a witness. This is precisely the situation in this case. Police officers who were present at the scene described what they saw and testified that the photographs accurately reflected the garage in which the two accused were arrested at a time proximate to their arrest. The photographs are therefore admissible to assist in visualizing the scene as described by the officers who testified, as an aid to understanding their evidence.
[39] The main focus of Ms Gadhia’s application to exclude this evidence was the photograph of a chair on which is sitting an open backpack (Exhibit 7-7). Inside the backpack, boxes of ammunition can be seen along with a sheaf of folded papers. From the photograph, it is not possible to tell the nature of these documents, much less their content.
[40] Every officer who was present at the scene and who testified at trial said that the photographs were taken by Sgt. Ryan Russell, who has since died. No officer recorded this fact in his or her notes, and there is nothing in Sgt. Ryan’s notes about the photographs. Notwithstanding the lack of documentary confirmation, it is clear the photographs were taken and that they were taken at some time after the arrest and before the officers left the scene. I am completely satisfied on the evidence of the officers who testified that the photographs were in fact taken by Sgt. Russell.
[41] D.C. Thomas Steeves was one of the officers present at the time the garage was raided and the two accused were arrested. He testified that upon entering the garage, he first did a search to ensure that there were no other persons hiding there. He then did a closer search of the area of the garage where the two accused had been situated at the time of the police entry. He testified that he saw a partially open black and grey backpack on a dining room chair. He said he could see boxes that appeared to be ammunition and some documents. He examined the documents and found that several of them contained the name Nicholas Denny. He also confirmed that the boxes were in fact .22 calibre ammunition and that there was also a small plastic bag containing loose rounds of ammunition. According to D.C. Steeves, he then returned the items to the backpack and left the pack exactly where he had found it until after it had been photographed. He was not watching directly as the photographs were being taken, but was in the general area of the garage maintaining observations on the interior. D.C. Steeves looked at the photograph that was made Exhibit 7-7 and testified that this accurately reflected the backpack as he had seen it and as he had left it to be photographed. The bag was fully unzipped in the photograph and D.C. Steeves could not remember if he had done that when searching the bag, or if Sgt. Russell may have done it in the course of taking the photograph. D.C. Steeves also testified that after the photograph was taken, he seized the backpack and took it to the police station. He identified at trial the documents he took from the backpack and they were marked as Exhibit 9. The documents relate to a claim for accident benefits by Mr. Denny. Many of them are standard form blank documents. However, some bear Mr. Denny’s name and a claim number, and some others (although otherwise blank) also bear the claim number.
[42] In the course of her submissions in support of her application to exclude the photographic evidence, Ms Gadhia made extensive submissions as to the reliability of the evidence given by various police officers. She pointed to the absence of some things in their notes, and to the fact that one officer recorded in his notes that D.C. Steeves told him that he found the backpack on the couch (rather than on the chair). Obviously, the location of the backpack and the contents of the backpack are crucial evidence for the Crown’s case against Mr. Denny. Ms Gadhia submits that given the discrepancies in the officers’ evidence and the lack of evidence on some points, the prejudicial impact of the photographs outweighs their probative value and they should therefore be excluded.
[43] I found the photographs to be admissible. They provide a very useful visual overview of the scene from which to consider the evidence of the officers in context. They also record the state of the garage as at the time the photographs were taken. I put the probative value of the photographs no higher than that, but they are nevertheless useful, both for the Crown and the defence.
[44] Although the probative value of the photographs is not high, the prejudicial effect is virtually non-existent. The photograph of the chair containing the backpack does nothing more than confirm that at the time the photograph was taken the back pack was located on the seat of the dining room chair and it contained the ammunition and a sheaf of papers. Whether or not it was present in that location when the officers entered, and whether or not it contained the documents belonging to Mr. Denny, are issues that depend entirely on the testimony of D.C. Steeves. In deciding whether I accept his evidence, it will be relevant to take into account the various points made by Ms Gadhia as to the unreliability of his evidence. That has nothing to do with the admissibility of the photograph. Likewise, any inference I can draw from the photograph will depend on those same points. Again, the issue is not the admissibility of the photograph itself, but what inferences can be taken from it. That is a matter for argument at the end of the evidence.
[45] Therefore, I ruled the photographs to be admissible.
E. DIRECTED VERDICT
[46] At the conclusion of the Crown’s case, Ms Freeman sought a directed verdict of acquittal in respect of the firearm possession charges against Mr. Carrol.
[47] The test on a directed verdict is not controversial. I must consider if there is “some evidence” upon which a properly instructed jury, acting reasonably, “could” be satisfied of the accused’s guilt beyond a reasonable doubt. In a situation where there is direct evidence against the accused on each element of the offence charged, there would be no consideration of the truth or reliability of the evidence on a directed verdict application. However, in a circumstantial evidence case, some limited degree of weighing is necessary. The Supreme Court of Canada described that process in R. v. Acuri,[^5] as follows (at para. 23):
The judge’s task is somewhat more complicated where the Crown has not presented direct evidence as to every element of the offence. The question then becomes whether the remaining elements of the offence – that is, those elements as to which the Crown has not advanced direct evidence – may reasonably be inferred from the circumstantial evidence. Answering this question inevitably requires the judge to engage in a limited weighing of the evidence because, with circumstantial evidence, there is, by definition, an inferential gap between the evidence and the matter to be established – that is, an inferential gap beyond the question of whether the evidence should be believed: see Watt’s Manual of Criminal Evidence, supra, at §9.01 (circumstantial evidence is “any item of evidence, testimonial or real, other than the testimony of an eyewitness to a material fact. It is any fact from the existence of which the trier of fact may infer the existence of a fact in issue”); McCormick on Evidence, supra, at pp. 641-42 (“[c]ircumstantial evidence . . . may be testimonial, but even if the circumstances depicted are accepted as true, additional reasoning is required to reach the desired conclusion”). 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.
[48] There are two branches to the Crown’s case against Mr. Carrol: (1) the eye-witness identification of him as being in possession of the gun in London in April 2010; and (2) the circumstantial evidence connecting him to the gun in Toronto in May, 2010. I accept that in both respects, some limited degree of weighing of the evidence is required on this application for a directed verdict.
[49] Ms Freeman attacked the reliability of the eye-witness identification evidence. In respect of those frailties already raised in respect of the admissibility of that evidence, I rely upon what I have already set out in that section of my reasons above, and will not repeat that here. In addition, Ms Freeman argued that the identification of Mr. Carrol by Mr. Kromah was so defective as to amount to no identification at all. She referred in this regard to the fact that Mr. Kromah described the person with the gun as being 6’5” tall and that he testified that he did not have any marks or scars on his face. She submits that these descriptors are so flawed as to amount to a failure to identify Mr. Carrol.
[50] I accept that there can be situations in which eye-witness testimony is so weak that it could never support a conviction.[^6] However, I do not see this case as falling into that category. First of all, the eye-witness testimony does not stand alone; it is only one part of the overall circumstantial evidence case against Mr. Carrol.
[51] Second, there was no evidence as to how tall Mr. Carrol actually is. Mr. Kromah testified that he was “tall and skinny” and estimated his height at 6’5”. However, he said that this was an approximation and Mr. Carrol could be taller or shorter than that. Mr. Kromah is himself 5’8”. Although Mr. Carrol appears to me to be somewhat less than 6’5”, I am not going to measure him, nor am I prepared to hazard my own guess as to his actual height. For present purposes, suffice to say that he is “tall and skinny”. The 6’5” estimate of his height is not so far off his actual height as to amount to a description of a different person.
[52] Third, there does appear to be a slight scar on Mr. Carrol’s forehead. However, it was only visible to me when Mr. Carrol came into the witness box and, at about an arms-length away from me, actually showed me where it was. Assessing the extent to which this amounts to a complete mis-description by Mr. Carrol would, in my view, require me to weigh the overall weight of the eye-witness testimony to an extent that goes beyond the scope of my role on a directed verdict application.
[53] It is not necessary for me to determine at this stage whether the identification evidence, standing alone, would be sufficient to support a conviction. The Crown also relies upon the fact that, one month after the London incident, Mr. Carrol was found in Toronto sitting on a couch with the very same gun underneath his cushion seat.
[54] Ms Freeman submits that I must disregard the evidence of the gun under the sofa cushion because proximity to a weapon not in plain view is irrelevant in a case of possession and cannot support a conviction. She relies in that regard on the decision of the Ontario Court of Appeal in R. v. Green; R. v. Rawlins[^7] and in particular on the following two sentences contained therein:
The fact that the gun was loaded and cocked and was reasonably accessible to the occupants is not relevant to a finding of knowledge. The undisputed evidence was that the gun was not readily visible.
[Emphasis added]
[55] I do not accept that, as a principle of law, the physical proximity of a weapon to an accused is an irrelevant factor to take into account in determining whether an inference of knowledge and control can ever be drawn. Further, I do not take the Court of Appeal to have made such a definitive pronouncement in R. v. Green. That decision was an oral endorsement by the Court which, when transcribed, is 16 lines long. It involved two accused who were “found in” a motor vehicle in which a loaded gun was also found. The Court of Appeal held, quite understandably, that mere presence in a car in which a gun was concealed was not sufficient to establish possession. There was no other evidence in that case from which any inference of knowledge could possibly be drawn. In my view, that case stands only for the proposition that proximity to a weapon, standing alone, cannot support a finding of knowledge. Given the enormous weight of judicial authorities taking proximity into account as a relevant factor in determining knowledge, it is simply not reasonable or logical to read the Court of Appeal in this case as having overridden all of that case law by the use of one word (“relevant”) in an oral judgment. In my view, that decision is distinguishable from the case before me on its facts. In the case before me, the physical proximity of Mr. Carrol to the gun does not stand alone. He was also in physical proximity to ammunition, which according to police officers’ testimony would have been visible to him and there is also evidence that he was in possession of that very same gun on a prior occasion.
[56] In my view, a properly instructed jury, acting reasonably, could reach the conclusion that when the totality of the evidence is considered, the only reasonable inference is that Mr. Carrol knew the gun was under his seat and that he had control over it. That is all that is required on a directed verdict motion. It is not appropriate at this stage to determine whether, in fact, this is an inference I would necessarily draw, but rather whether such an inference would even be open to the jury.
[57] Therefore, I dismissed the motion for a directed verdict. The trial proceeded. Mr. Carrol called one witness (a police officer who took Mr. Kromah’s initial statement to the police); Mr. Denny testified in his own behalf. My analysis of the evidence as a whole and my conclusions as to disposition of the charges against both accused will be the subject of separate Reasons.
MOLLOY J.
Released: November 20, 2013
COURT FILE NO.: CR-11-10000547-0000
DATE: 20131120
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Applicant
– and –
KEMAR CARROL and NICHOLAS DENNY
Defendants
REASONS FOR DECISION (No. 1)
(Rulings on Pre-trial Motions and Directed Verdict)
MOLLOY J.
Released: November 20, 2013
[^1]: R. v. Tortolano (1975), 1975 CanLII 1248 (ON CA), 28 C.C.C. (2d) 562 (Ont. C.A.); R. v. Darlington, [2001] O.J. No. 3410 (O.C.J.); R. v. Welygan, [2000] O.J. No. 3069 (S.C.J.).
[^2]: R. v. B. (F.F.), 1993 CanLII 167 (SCC), [1993] 1 S.C.R. 697 at 730; R.v. G. (S.G.), 1997 CanLII 311 (SCC), [1997] 2 S.C.R. 716 at paras. 63-65; R. v. LePage, 1995 CanLII 123 (SCC), [1995] 1 S.C.R. 654 at paras. 35-36.
[^3]: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908 at paras.35, 37, 42, 55, and 139-146.
[^4]: R. v. Miaponoose, (1996), 1996 CanLII 1268 (ON CA), 30, O.R. (3d) 419, 110 C.C.C. (3d) 445, 2 C.R. (5th) 82 (C.A.); R. v. Reitsma (1997), 97 B.C.A.C. (C.A.), aff’d 1998 CanLII 825 (SCC), [1998] 1 S.C.R. 769; R. v. Williams (1982), 1982 CanLII 3729 (ON CA), 66 C.C.C. (2d) 234 (Ont.C.A.); R. v. Izzard (1990), 1990 CanLII 11055 (ON CA), 54 C.C.C. (3d) 252 (Ont.C.A.); R. v. Pelletier 2012 ONCA 566.
[^5]: R. v. Acuri, 2001 SCC 54; [2001] S.C.R. 828 at paras. 22-23.
[^6]: Counsel relied in this regard on R. v. Herrera, [2008] O.J. No. 3040 (S.C.J.) and R. v. Williams, [2012] O.J. No. 6002 (S.C.J.), in which the identification evidence was far more deficient than in the case before me.
[^7]: R. v. Green; R. v. Rawlins, [1993] O.J. No. 1346 (C.A.)