CITATION: R. v. Campbell, 2015 ONSC 2060
COURT FILE NO.: M111/14
DATE: 20150330
SUPERIOR COURT OF JUSTICE – ONTARIO
Toronto Region
RE: HER MAJESTY THE QUEEN v. ORVILLE CAMPBELL
BEFORE: NORDHEIMER J.
COUNSEL: L. Schwalm, for the Crown/applicant
B. Vandebeek, for the respondent
HEARD: March 30, 2015
E N D O R S E M E N T
[1] The applicant seeks an order, in the nature of certiorari, reviewing the decision of Mr. Justice Khawly of the Ontario Court of Justice that discharged the respondent on various firearm charges while committing him for trial on robbery and other charges.
[2] The only evidence before the preliminary hearing judge came from the complainant who gave evidence that the respondent had robbed him while using what he believed was a gun.
[3] In discharging the applicant on the firearm offences, the preliminary hearing judge found that the prosecution had failed to prove that the object used by the robber was, in fact, a firearm. In reaching that conclusion, the preliminary hearing judge said, at p. 24 of his reasons:
I have no evidence of any of this. The Crown in my view has fallen woefully short here of satisfying the Court that his[sic] was a firearm. No evidence whatsoever. The only evidence we have that it is a gun is the witness telling us it is a gun. We have nothing else.
[4] In my view, the preliminary hearing judge erred in finding that the evidence before him constituted “no” evidence that the object was a firearm. The complainant had given evidence of his belief that the object was a firearm by describing what the object looked like and his fear that he was in imminent danger of being shot by the manner in which the robber was using the object including putting the barrel against the complainant’s chest.
[5] The preliminary hearing judge clearly rejected the concept that the complainant’s evidence could provide circumstantial evidence proving that the object that the robber had was a firearm. In doing so, the preliminary hearing judge did not refer to a long line of authorities from the Court of Appeal that establish that such evidence can be sufficient to draw an inference that the object in question is a firearm. In particular, I refer to the decision in R. v. Wills, 2014 ONCA 178, [2014] O.J. No. 1069 (C.A.) where Doherty J.A. said, at para. 50:
I do not conclude from Parliament’s decision to criminalize the use of imitation firearms, an obviously dangerous activity, that the normal rules of proof do not apply to an allegation that an accused used a firearm, as defined in s. 2 of the Criminal Code. The Crown may prove that the alleged firearm fell within the definition by inference from the totality of the circumstances, even if the alleged firearm was not fired or recovered. This court has upheld trial decisions that have drawn that inference even though the firearm was not discharged or recovered: see R. v. Richards, 2001 CanLII 21219 (ON CA), [2001] O.J. No. 2286 (C.A.); R. v. Carlson, [2002] O.J. No. 1884 (C.A.); and R. v. Charbonneau, 2004 CanLII 9527 (ON CA), [2004] O.J. No. 1503 (C.A.).
[6] As the respondent accepts, it is jurisdictional error for a preliminary hearing judge to discharge a person in the face of some evidence. It is also jurisdictional error for a preliminary hearing judge to favour one possible inference over another. Here, the preliminary hearing judge did not engage in the limited weighing that is called for when circumstantial evidence is involved as set out in R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828. Rather, he clearly concluded that the evidence of the complainant regarding the object constituted “no” evidence on the issue of whether the object was a firearm. In that regard, he erred.
[7] The respondent attempts to support the preliminary hearing judge’s conclusion by asserting that there is a conflict between the decision in the Court of Appeal line of authorities, including Wills, and that of the Supreme Court of Canada in R. v. Covin, 1983 CanLII 151 (SCC), [1983] 1 S.C.R. 725, upon which the preliminary hearing judge did rely. I do not see that conflict. The decision in Covin addressed the elements that needed to be proved in order to establish that an object is a firearm. Of some importance, on that point, is the fact that in Covin there was evidence directly contrary to the assertion that the object was a firearm. The decision in Covin does not, however, deal with the issue of the manner in which the prosecution can prove that an object is a firearm. As Laycraft C.J.A. said in R. v. Robbie, [1989] A.J. No. 535 (C.A.):
We are all of the view that R. v. Covin and Covin does not stand for the proposition that the only way to prove that a device is a “firearm” as defined in the section, is to prove that it was fired during the commission of the offence or that it was test fired. The Covin case deals with what must be proved and not with the way in which it is to be proved. Whether the device is capable of being fired can be proven, like any other fact, by direct evidence or by the inferences to be drawn on all the evidence.
[8] Given the evidence of the complainant, there was some evidence upon which a jury, properly instructed and acting reasonably, could conclude that the object that the robber had and used was a firearm. That was sufficient for the prosecution to obtain a committal for trial on the firearm offences.
[9] The application is allowed and the matter is remitted back to the preliminary hearing judge along with an order, in the nature of mandamus, directing the preliminary hearing judge to commit Mr. Campbell for trial on the firearm offences.
NORDHEIMER J.
DATE: March 30, 2015