ONTARIO
SUPERIOR COURT OF JUSTICE
Toronto Region
COURT FILE NO.: M168/13
DATE: 20140116
B E T W E E N:
THILAKSHAN RAJARUBAKUMAR
J. Gold, for the applicant
Applicant
- and -
HER MAJESTY THE QUEEN
Respondent
M. Iny, for the respondent
HEARD: January 13, 2014
Reasons for Decision
Nordheimer J.:
[1] Mr. Rajarubakumar seeks an order in the nature of certiorari to quash the decision of Mr. Justice Merenda of the Ontario Court of Justice that committed the applicant to trial.
[2] The applicant was committed for trial on charges of kidnapping and various firearm offences including using a firearm while committing an indictable offence, namely the kidnapping.
[3] The facts underlying the charges begin with a shooting. An unknown person fired a large number of shots at the family home of the applicant. The applicant reported this to the police. Subsequently the applicant informed the police of two persons who he thought might have been involved in the shooting – one of which was the victim of the later kidnapping.
[4] A few weeks later, two witnesses observed two males forcing another male into a vehicle in a parking lot. This forms the basis of the kidnapping charge. The police attended at the scene and, in the parking lot, found a loaded magazine for a firearm.
[5] Further investigation located the vehicle that was believed to have been used in the kidnapping. DNA analysis established that blood found on the rear seat of the vehicle was that of the victim. The registered owner of the vehicle was the mother of the applicant.
[6] There were two witnesses to the kidnapping. Neither witness saw the entire event. Neither witness was able to identify the applicant as one of the males involved. Both witnesses gave descriptions of the perpetrators that would have included the applicant but only in a very generic way. Neither of the witnesses saw any firearm being used in the course of the kidnapping although one of the witnesses did observe the hands of the kidnappers.
[7] In addition to this evidence, the prosecution lead evidence that the applicant’s cell phone used cell phone towers in the area of the kidnapping in and around the time when the kidnapping occurred. However, those same cell phone towers cover an area that includes the applicant’s home. While there was cell phone evidence that suggested that the cell phone was moving during the time, that evidence would also be consistent with the applicant travelling to his home.
[8] Additional evidence relates to the magazine that was found. It was a magazine for a Beretta firearm. The applicant was the registered owner of three firearms, one of which was a Beretta firearm. After the shooting at his residence, the applicant turned his firearms over to the police for testing. The testing came back negative. After the kidnapping incident, the police again asked to see the applicant’s firearms and he again willingly turned them over. The police noted at this time that there was one less magazine in the applicant’s collection than had been the case on the early examination and also that there were many less rounds of ammunition. The magazine found at the scene of the kidnapping contained ten rounds of ammunition.
[9] The victim of the kidnapping gave evidence at the preliminary hearing. The victim denied that any kidnapping took place, denied that any gun was used against him and denied that he had been in any vehicle matching the description of the vehicle where his blood was found. The victim also said that he did not recognize the applicant nor had he ever seen the applicant before.
[10] At the conclusion of the preliminary hearing, the applicant was committed on all charges save for a charge of choking on which he was discharged. Two principal issues arise. One is whether there was some evidence regarding the identity of the applicant as a participant in the kidnapping and the other was whether there was some evidence that a gun was used in the kidnapping.
[11] The preliminary hearing judge gave brief reasons for his decision to commit the applicant to trial. Specifically, the preliminary hearing judge did not give detailed reasons on the issue of identity other than to refer to the cell phone evidence as giving rise to an inference that the applicant was in the area of the kidnapping at the time that it took place. The preliminary hearing judge also drew an inference that the accused was present because the accused was the only person with access to the guns and therefore to the magazines and ammunition.
[12] The preliminary hearing judge was, in fact, in error in the latter conclusion. While it is true that the accused may have been the only person who had access to the guns at the time that the applicant’s house was shot at, the evidence was that, at the time of the kidnapping, the accused (along with the rest of the family) had moved to other locations. Unlike the earlier occasion when the guns were kept in a locked safe to which the applicant had the key, by the time of the kidnapping incident, the accused’s guns were located under a mattress within the residence that he was then occupying. There is no clear evidence as to who else lived in that residence other than some other people did. It is not therefore correct to say that only the accused had access to the guns at that time.
[13] The applicant contends that there was insufficient evidence on identity to commit him for trial. In addition to the problems with the evidence that I have mentioned, including access to the guns, the applicant also points to his younger brother as being a likely, if not a more likely, candidate for being involved in the kidnapping. The applicant points to the fact that his younger brother not only shared the same alleged motive as the applicant (the shooting of the family home) but that he was known to the police as being involved with guns and was also known to be a member of a gang that was a rival gang to that to which the victim of the kidnapping belonged. The applicant points to the fact that the younger brother also had access to the guns that belonged to his brother and also would have had access to his mother’s car.
[14] This is an entirely circumstantial case. The issue is whether the inferences that the preliminary hearing judge said could be drawn are reasonable inferences on the evidence and constitute sufficient evidence that a properly instructed jury acting reasonably could convict the accused of the charges based on the onus of proof of beyond a reasonable doubt. This latter point was made in R. v. Charemski, 1998 819 (SCC), [1998] 1 S.C.R. 679 where McLachlin J. said (dissenting but not on this point), at p. 701:
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.
[15] In my view, the fact that there may be an alternate suspect does not equate to there being insufficient evidence regarding the applicant’s possible involvement. The evidence establishes that the applicant may have had a motive for the kidnapping. The magazine found at the scene matched the magazines that the applicant owned for one of his firearms and, by the time of the kidnapping, the applicant had one less magazine for that same firearm. While magazines are somewhat generic items, the fact that the applicant’s collection of magazines dropped from three to two just at this time gives the presence of the magazine at the scene more importance than it might usually attract. Further, the cell phone records place the applicant in the area of the kidnapping at the time of the kidnapping and, of course, the vehicle used in the kidnapping belonged to the applicant’s mother.
[16] While there may be other explanations for these matters, the prosecution is entitled to have the evidence taken at its best for their purposes: R. v. Sazant (2004), 2004 SCC 77, 208 C.C.C. (3d) 225 (S.C.C.). One cannot say that a jury could not possibly use this evidence to conclude that the applicant was involved in the kidnapping. While it may be a difficult road for the prosecution to travel, it is not an impossible one. The same can be said about the fact that the evidence can also point to the applicant’s younger brother. That is equally something with which the jury will have to contend but that fact does not mean that the jury could not conclude that the applicant was involved.
[17] I now turn to the firearm offences. With respect to those offences, in committing the applicant for trial, the preliminary hearing judge said, in part:
There could be alternate[sic] explanations but, in my view, it is reasonable to conclude that when you find a part of a gun at the scene of a kidnapping, that gun was used in the kidnapping, particularly when you find rounds of ammunition as well and that part of a gun and those rounds of ammunition, a jury could conclude could only come from the accused before the court.
[18] With respect, it is not reasonable to conclude that, just because a part of a firearm is found at a crime scene, a firearm must have been used in the offence. To begin with, it is difficult to conclude that the finding of a detachable part of a firearm is, by itself, sufficient to conclude that a gun was present. There is no basis in fact for a conclusion that if a magazine is present so must be the firearm. Experience demonstrates that magazines, just like ammunition, can be transferred completely separately from the firearms in which they are to be used. Further, even if one could conclude from the mere presence of a magazine that a gun was also present that is not the same thing as concluding that the gun was used in the commission of an offence.
[19] As is often the situation with circumstantial cases, the thorny issue of what reasonable inferences can be drawn from the evidence is raised. Inferences can be drawn from the evidence but they must be reasonable inferences. As noted in Watt’s Manual of Criminal Evidence, the line between an inference and speculation may often be difficult to draw. In terms of proper inferences to be drawn from the evidence, I repeat the observation of Doherty J.A. in R. v. Morrissey (1995), 1995 3498 (ON CA), 97 C.C.C. (3d) 193 at p. 109:
A trier of fact may draw factual inferences from the evidence. The inferences must, however, be ones which can be reasonably and logically drawn from a fact or group of facts established by the evidence. An inference which does not flow logically and reasonably from established facts cannot be made and is condemned as conjecture and speculation.
[20] One cannot infer from the mere fact that a magazine is found in a parking lot that a firearm was used in the commission of an offence. It is especially difficult to do so when, not only does the victim deny that any gun was used, neither of the eye witnesses observed any firearm being used in the course of the kidnapping. The prosecution’s assertion that when the victim was attacked as part of the kidnapping, he was beaten with the firearm and that is how the magazine came to be lost does not flow reasonably from the facts here especially in the absence of a single observation of that having occurred. It amounts to nothing more than guesswork.
[21] As a consequence, there is essentially no evidence upon which a jury acting reasonably could have concluded beyond a reasonable doubt that a gun was involved in the kidnapping. And it is important in this regard to remember that the burden of proof is proof beyond a reasonable doubt. Therefore, in order to commit a person to trial on any offence, the totality of the evidence taken as favourably as it can be in favour of the prosecution, must be capable of satisfying a jury of each of the elements of the offence beyond a reasonable doubt. The applicable test was stated in the following terms in R. v. Fontaine, 2004 SCC 27, [2004] 1 S.C.R. 702 by Fish J. at paras. 77-78:
Writing for the Court, McLachlin C.J. confirmed in that case that the test for committal to trial is the same as on a motion for non-suit or for a directed verdict.
In each instance, the decisive question is whether there exists an evidential foundation on the issue of guilt. The evidential burden, on that issue, as we have seen, is a function of the persuasive burden and the persuasive burden, which is borne by the Crown, can only be discharged by proof beyond a reasonable doubt.
The prosecution’s evidence on the firearms offences taken at its highest is not capable of meeting that standard. Consequently, the applicant ought not to have been committed on the firearms offences.
[22] For these reasons, the application is granted in part. The committal for trial on the various firearms offences is quashed. The committal for trial on kidnapping, assault causing bodily harm and unlawful confinement remains.
NORDHEIMER J.
Released: January 16, 2014
COURT FILE NO.: M168/13
SUPERIOR COURT OF JUSTICE
B E T W E E N:
THILAKSHAN RAJARUBAKUMAR
Applicant
- and -
HER MAJESTY THE QUEEN
Respondent
REASONS FOR DECISION
NORDHEIMER J.
RELEASED: