ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 12-A11799
DATE: 20140627
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
FRANTZY JEAN
Applicant
Tim Wightman, for the Crown
Dominique D. Smith, for the Applicant
HEARD in Ottawa: April 28, 2014
REASONS FOR DECISION ON MOTION ON DIRECTED VERDICT
r. smith j.
[1] The accused made a motion for a directed verdict seeking an order that acquittals be entered on all counts against him on the basis that there was no evidence upon which a reasonable jury properly instructed could return a verdict of guilty on any of the counts. His motion was dismissed and these are the reasons.
[2] The Crown submits that there was circumstantial evidence on which a reasonable jury properly instructed could return a verdict of guilty on all counts.
[3] In R. v. Charemski, 1998 819 (SCC), [1998] S.C.J. No. 23, [1998] 1 S.C.R. 679 the Supreme Court of Canada held that for there to be “evidence upon which a reasonable jury properly instructed could return a verdict of guilty” the Cown must adduce some evidence of culpability for every essential element of the crime.
[4] In R. v. Tomlinson, 2014 ONCA 158, [2014] O. J. No 930 (Ont. C.A.) at paragraph 153, the Ontario Court of Appeal held that where the evidence is circumstantial the test is the same, but the trial judge must engage in a limited weighing of the evidence. When conducting the limited weighing a trial judge is not permitted to draw factual inferences, to assess credibility or to consider the inherent reliability of the evidence adduced.
[5] In order to prove possession under section 4(3) of the Criminal Code of Canada, R.S.C. 1985, c. C-46, the Crown must prove both knowledge and control by the accused. Section 4(3)(a)(ii) is applicable and states that:
Possession
(3) For the purposes of this Act,
(a) a person has anything in possession when he has it in his personal possession or knowingly;
(i) has it in the actual possession or custody of another person, or;
(ii) 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 of another person; and
(b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.
[emphasis added]
[6] The accused acknowledged that the Crown has presented some circumstantial evidence from which an inference may be drawn that Mr. Jean had control over the contents of the residence at 367 Prince Albert St based on the following evidence:
i) The accused was in possession of a key to the residence where the restricted firearm and ammunition were found;
ii) Ms. Enticnap testified that Mr. Jean had frequented the residence on a daily basis and on the 31st day of July, 2012;
iii) men’s clothing said to belong to Mr. Jean was found in the bedroom where the restricted firearm and ammunition were found;
iv) an expired passport issued to Mr. Jean was located in the top drawer of a dresser with men’s socks in the master bedroom, where the restricted firearm and ammunition were seized by police;
v) a purple iPod, was observed in the master bedroom by Ms. Enticnap on the morning of July 31, 2012, indicating that Mr. Jean had been in the master bedroom, where the restricted firearm and ammunition were found, on the morning of July 31, 2012.
[7] While the accused acknowledged that there was evidence that he had control of the restricted firearm, he submitted that the Crown had not presented any evidence he had knowledge that the 9 mm Beretta handgun was stored in a shoe box under the bed in the master bedroom at 367 Prince Albert St.
ISSUE
Has the Crown introduced some circumstantial evidence on which a reasonable jury properly instructed could convict that the accused knew that the 9 mm Beretta handgun was stored under the bed in the master bedroom for his use or benefit?
[8] I find that there was circumstantial evidence that the accused knew that the restricted firearm and ammunition was located in the master bedroom at 367 Prince Albert St. for his use or benefit and that based on this evidence a reasonable jury properly instructed could return a verdict of guilty on the charges against the accused based on the following evidence:
a) the restricted firearm, namely a 9 mm Beretta handgun loaded with 12 rounds, was found in a box containing men’s dress shoes under the bed in the master bedroom. Ms. Enticnap confirmed that the accused was a daily visitor to 367 Prince Albert St. residence, including the morning of the day when the restricted firearm and ammunition were found by the police;
b) the master bedroom is a private area and not a common area, that was shared by only two individuals, namely the accused and Ms. Enticnap. Ms. Enticnap testified that she had never seen and was unaware that the restricted handgun was located in a shoebox under the bed, and she was also unaware that ammunition was stored in the top drawer of the dresser, which was used by the accused, and in the closet hidden under clothing. There was no evidence that anyone other than the accused and Ms. Enticnap and her very young children, occupied the master bedroom;
c) the accused kept some of his clothing in the top drawer of the dresser and in the closet of the master bedroom where the ammunition was located. The police officer conducting the search had to move clothing off the red cooler where ammunition, which was capable of being fired by the restricted handgun found under the bed, was located;
d) Ms. Enticnap observed a purple iPod in the master bedroom on the morning of July 31, 2012, which is evidence that the accused had entered the master bedroom during the morning of that day, after approximately 2 AM and before the search warrant was executed at approximately 3 PM on July 31, 2012; Ms. Enticnap testified that the accused had told her that he had obtained the purple iPod from Mr. Chamoun the previous evening;
e) the top drawer of the dresser containing ammunition also contained the accused’s expired passport, men’s socks and a white tank top similar to the white tank top the accused was wearing when he was arrested;
f) a white tank top, similar to the tank top the accused was wearing when he was arrested, was also one of the items of clothing found near the cooler containing the 9 mm ammunition, which could be fired by the restricted firearm stored under the bed;
g) Ms. Enticnap testified that in addition to the items of clothing, the accused kept one pair of black shoes and one pair of brown shoes in the master bedroom. She had never seen the dress shoes in the shoebox before. It was open to the jury to accept all, some or none of her evidence and the jury could draw an inference that the shoes in the shoebox, with the restricted firearm, belonged to the accused;
h) a shoulder holster, which fit the 9 mm Beretta handgun, was found just outside the master bedroom;
i) Ms. Enticnap and her father both denied any knowledge of and testified they had never seen the 9 mm Beretta handgun or the ammunition stored in the master bedroom. Mr. Jenven testified that his wife disliked firearms and it would be reasonable for the jury to infer that the accused was the only other adult in the residence who had access to the master bedroom shortly before the restricted firearm and ammunition were found in that location, and that he knew the restricted firearm was stored in that location;
j) Ms. Enticnap testified that she never carried on any relationship with Jeff Refuse or with David Marshall;
k) the same evidence that the accused conceded could be used to reasonably infer that he had control of the restricted firearm can also be used to infer that the accused had concealed the handgun in the shoebox and that he had the required knowledge that the 9 mm handgun was located in the shoebox under the bed in the master bedroom for his use and benefit.
[9] I am satisfied, based on the totality of the above evidence, that there was evidence upon which a reasonable jury properly instructed could draw the inference that the accused knew that the 9 mm Beretta handgun was stored in a shoebox under the bed in the master bedroom for his use or benefit.
Disposition
[10] For the above reasons the accused’s application for a directed verdict of acquittal on all counts is dismissed.
The Hon. Mr. Justice Robert J. Smith
Released: June 27, 2014
COURT FILE NO.: 12-A11799
DATE: 20140627
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
– and –
FRANTZY JEAN
Applicant
REASONS for DECISION ON MOTION FOR directed verdict
R. Smith J.
Released: June 27, 2014