ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR13500002180000
DATE: 20140404
BETWEEN:
HER MAJESTY THE QUEEN
– and –
DARON THOMPSON and SIOBHAN ELLIS
Applicants
Jill Cameron, for the Crown/Respondent
Robert Richardson, for the Applicant Daron Thompson
Joel Hechter, for the Applicant Siobhan Ellis
HEARD: March 21 and 24, 2014
B. P. O’Marra j.
ruling on applications for directed verdicts
issue
[1] What is the test on a directed verdict application where the Crown’s case is entirely circumstantial?
background
[2] The police recovered a loaded handgun wrapped in track pants in a laundry hamper in an apartment leased by Siobhan Ellis in Brampton. Daron Thompson was arrested that evening and found in possession of a key to the apartment. Neither Applicant was present in the apartment when the gun was recovered. There is no forensic evidence linking either Applicant to the firearm. Ammunition for the firearm and a “stun gun” were also recovered from a hidden area of the bathroom.
[3] The Applicants face a series of firearm charges related to the loaded handgun. They are also jointly charged with possession of a weapon for a purpose dangerous to the public peace related to the stun gun. The trial was set to proceed with a jury.
[4] The Applicants applied for directed verdicts on all counts at the conclusion of the Crown’s case. It is agreed by all counsel that the prosecution case is entirely circumstantial.
[5] On March 24, 2014 I allowed the applications on the joint count of Weapons Dangerous related to the stun gun. I dismissed the applications related to the remaining counts. These are my reasons.
the crown’s case
[6] On April 13, 2012 Toronto Police Service executed a search warrant on a one bedroom apartment leased by Siobhan Ellis. They located a loaded handgun wrapped in track pants in a laundry hamper along with other clothes. They also retrieved ammunition for the handgun and a stun gun in a hidden compartment below the bathroom vanity.
[7] The police photographed and seized several items inside the apartment, including the following:
• men’s and women’s clothes on shelves and hanging in the bedroom closet
• men’s and women’s shoes in the bedroom.
• two toothbrushes in a jar on the bathroom sink
• several letters and documents related to Siobhan Ellis at that address. These documents were several months old and some were unopened
• a current Canadian passport issued to Daron Thompson
• an Ontario Driver’s Licence GI Application in the name of Daron Thompson at a Toronto address dated April 10, 2012
• a loaded handgun wrapped in track pants in the sole laundry hamper in the bedroom closet
[8] Police surveillance on March 20, 2012 had observed Daron Thompson to leave the apartment at 11:00 a.m. and lock the door behind him.
[9] On April 13, 2012 Daron Thompson was followed by police surveillance from a location near the target apartment building and arrested in Toronto. He was found in possession of a key to the apartment.
[10] Siobhan Ellis was arrested on April 27, 2012 at the apartment. She produced a key for her residence with a distinctive design (in the form of the Breast Cancer Awareness ribbon). The key recovered from Daron Thompson on April 13, 2012 had the same distinctive design.
the applications
[11] Both accused applied for directed verdicts on the basis that no reasonable jury could be satisfied beyond a reasonable doubt that the only rational inference available from the Crown’s evidence was guilty.
[12] On Count 6 both Applicants submit there is no evidence of a purpose dangerous to the public peace related to the stun gun.
the law
[13] The test on a directed verdict application is whether there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty. The question is whether there is admissible evidence which could, if believed, result in a conviction.
USA v. Sheppard (1976) 1976 8 (SCC), 30 C.C.C. (2d) 424 (S.C.C.), at para. 8.
[14] There must be evidence sufficient to enable a reasonable and properly instructed jury to find guilt beyond a reasonable doubt.
R. v. Charemski 1998 819 (SCC), [1998] 1 S.C.R. 679, at para 35.
[15] Where evidence relating to one or more elements of an offence is circumstantial the judge on a directed verdict application must engage in a limited weighting of the evidence to determine whether inferences sought by the Crown are reasonable.
R. v. Arcuri 2001 SCC 54, 2001 S.C.C. 54, at para. 23.
[16] The essential component of an instruction on circumstantial evidence is that in order to convict, the jury must be satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty.
R. v. Griffin 2009 SCC 28, 2009 S.C.C. 28, at para. 33.
[17] On a directed verdict motion the trial judge is to take the case for the Crown at its highest and resolve competing permissible inferences in favour of the Crown.
R. v. Masterson, 2008 ONCA 481, at para. 6.
R. v. Sazant, 2004 SCC 77, 2004 S.C.C. 77, at para. 18.
[18] The standard of reasonable doubt does not apply to individual pieces of evidence.
R. v. Morin 1988 8 (SCC), [1988] S.C.J. No. 80 at para. 21.
contructive and joint possession
[19] The Criminal Code s. 4(3) creates three types of possession:
(i) Personal or actual possession as outline in s. 4(3)(a);
(ii) constructive possession as set out in s. 4(3)(a)(i) and s. 4(3)(a)(ii); and
(iii) joint possession as defined in s. 4(3)(b).
[20] To constitute constructive or attributed possession there must be knowledge which extends beyond mere quiescent knowledge and discloses some measure of control over the item to be possessed.
R. v. Pham 2005 44671 (ON CA), [2005] O.J. No. 5127 (O.C.A.) at para. 15.
[21] In order to constitute joint possession there must be knowledge, consent, and a measure of control on the part of the person deemed to be in possession.
R. v. Pham, at para. 16.
[22] Proof of possession may be established by direct or circumstantial evidence. The Crown cannot succeed unless the only reasonable inference drawn from the proven facts is that the accused knew the item was present in the location over which he had control. The Crown of course is not required to negative every possible conjecture or speculation consistent with the innocence of the accused.
R. v. Singh, 2011 ONSC 4162 at para. 27 and 32.
[23] Personal papers are, as a general rule, maintained in a location to which a person has access and control. When documents such as income tax forms, invoices, cancelled cheques, leases, insurance papers and the like are located in a residential premise it is surely a fair inference that the person identified in the documents is an occupant with a significant measure of control. This is a matter of logic and common sense.
R. v. Emes 2001 3973 (ON CA), [2001] O.J. No. 2469 (O.C.A.), at paras. 8-10.
circumstantial evidence related to thompson
[24] Ms. Ellis was the sole lessee of the apartment but the following evidence links Mr. Thompson to those premises:
On March 20, 2012 he is observed leaving the apartment in the late morning and locking the door behind him.
On April 13, 2012 he is observed and followed by police from a location close to the apartment building. When he is stopped and arrested he is found in possession of a key to the apartment.
The appearance and contents of the apartment when the search warrant was executed on April 13, 2012 indicate that a man and a woman shared the living space.
Two documents with Mr. Thompson’s name were located in the apartment:
a) an Ontario GI Driver’s Licence form with a Toronto address dated April 10, 2012; and
b) a valid Canadian Passport with Mr. Thompson’s name and photo were found amongst the men’s clothes in the bedroom.
circumstantial evidence related to ellis
[25] Ms. Ellis signed a lease on April 1, 2010 and was listed as the tenant as of April 13, 2012.
[26] When the search warrant was executed on April 13, 2012 the police recorded and seized a number of documents in the name of Ms. Ellis at that address: These included:
(a) bank statements
(b) a drug eligibility card
(c) Ontario Tax Credit form
(d) bills from Rogers
(e) account summary from Virgin Mobile
[27] These documents were all dated several months before April 13, 2012 and some were in unopened envelopes. The only unopened mail was more than a year old.
[28] In an Incident Report dated April 25, 2012 Ms. Ellis provided the building manager with information, including the following:
(a) She knew Mr. Thompson as a friend for some six months.
(b) Mr. Thompson had visited her in her apartment.
(c) Mr. Thompson might have copied her key.
(d) Mr. Thompson visited quite often with another woman in another unit of the building.
[29] Ms. Ellis did not tell the building manager that she had not been staying in the unit for the days, weeks or months before the search warrant was executed on April 13, 2012.
[30] Ms. Ellis was arrested by police at her apartment on April 27, 2012. Before she was escorted away she asked and was permitted to change her clothes in the apartment.
location of loaded firearm
[31] This item was found wrapped in track pants in a laundry hamper in the bedroom. This was the only hamper in the apartment and was located in the closet near the men’s and women’s clothes.
competing inferences
[32] Counsel for both Applicants refer to other evidence that they say prevents this circumstantial case rising to the level of guilt as the only rational available inference.
[33] Counsel for Thompson refers to evidence that his client had only infrequent and transitory access to the apartment.
[34] Counsel for Ellis refers to evidence that she may not have occupied the apartment for several months preceding the finding of the loaded handgun on April 13, 2012.
analysis
[35] The following reasonable inferences were open to the jury at the close of the Crown’s case:
The apartment where the gun was found was shared by a man and a woman.
Both Applicants were connected to the apartment with no apparent limits on access.
The loaded handgun was found in the only laundry hamper in the apartment in the closet near the men’s and women’s clothes and shoes. This was a communal hamper and both occupants would have unlimited and routine access.
[36] The circumstantial evidence in this case was capable of supporting proof that the only rational inferences were that both accused had knowledge and a degree of control over the loaded firearm recovered on April 13, 2012.
careless storage of a firearm
[37] This is a joint charge in Count 5.
[38] If possession of the loaded handgun is proven the jury must then go on to consider whether it was stored in a careless manner. This latter element requires proof that the manner of storage showed a marked departure from the standard of care that a reasonable, prudent person would exercise in the same circumstances.
Criminal Code, s. 86(1).
R. v. Finlay (1993) 1993 63 (SCC), 23 C.R. (4th) 321, at para. 23.
[39] I have earlier referred to the circumstantial evidence that each accused was in possession of the loaded handgun.
[40] On the careless storage count there must be an evidential basis for proof of the following:
Possession of the item;
knowledge it was a loaded firearm; and
careless storage.
[41] The handgun was found with one bullet in the chamber and several more in the cartridge. The only remaining step to fire a shot would be to pull the trigger.
[42] Counsel for the Applicants do not concede but do not contest that the state in which this handgun was found could reasonably support a finding of careless storage beyond a reasonable doubt.
[43] Based on the connection of both accused to the apartment, the contents of the apartment and the location of the gun in the sole laundry hamper there is an evidentiary basis upon which a properly instructed jury could convict both accused on Count 5.
weapons dangerous count
[44] Count 6 alleges both Applicants possessed a weapon for a purpose dangerous to the public peace. This relates to a stun gun found in a hidden compartment below the bathroom vanity.
[45] The essential elements of this offence are:
(a) Possession of a weapon; and
(b) an intent to possess the weapon for a purpose dangerous to the public peace.
Criminal Code, s. 88.
R. v. Kerr 2004 SCC 44, [2004] 2 S.C.R. 371, at para. 23.
[46] A weapon means anything used, designed to be used or intended for use:
(a) in causing death or injury to any person; or
(b) for the purpose of threatening or intimidating any person.
Criminal Code, s. 2.
[47] Assuming there is some evidence that a stun gun is a weapon and even if there is some evidence that either accused possessed it there is no direct or circumstantial evidence that either accused had the essential mental element for this offence.
[48] There will be directed verdicts for both accused on Count 6.
result
[49] The applications for directed verdicts by both accused on Counts 1-5 inclusive are dismissed.
[50] The applications by both accused for directed verdicts on Count 6 are allowed.
B. P. O’Marra J.
Released: April 4, 2014
COURT FILE NO.: CR13500002180000
DATE: 20140404
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
DARON THOMPSON and SIOBHAN ELLIS
Applicants
RULING ON APPLICATIONS FOR DIRECTED VERDICTS
B. P. O’Marra J.
Released: April 4, 2014