ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 14-MO-10000255

DATE: 20151124

BETWEEN:

HER MAJESTY THE QUEEN

– and –

PETER BAILEY

Megan Petrie, for the Crown

Breana Vandebeek, for the Peter Bailey

HEARD: November 2, 2015

r.f. goldstein j.

REASONS FOR JUDGMENT ON CERTIORARI APPLICATION

[1] On September 13, 2013 the police executed a Controlled Drugs and Substances Act search warrant at 297 Atlas Avenue in Toronto. They seized a large brick of marijuana from the basement and a submachine gun and ammunition from a bedroom. The submachine gun and the ammunition were hidden in an unusual way – they were inside of a large blue barrel in a bedroom on the first floor. The Crown alleges that both the marijuana and the gun belonged to Peter Bailey, the Applicant.

[2] Mr. Bailey was charged with possession of the marijuana for the purpose of trafficking and the offences related to the possession of the gun and the ammunition. He had a preliminary inquiry before Justice Khawly of the Ontario Court of Justice. Justice Khawly found that the Crown had a weak case against Mr. Bailey on the submachine gun and no case against him on the marijuana. He discharged Mr. Bailey on the possession for the purpose charge and ordered him to stand trial on the offences related to the submachine gun and the ammunition.

[3] Mr. Bailey’s counsel, Ms. Vandebeek, argues that the preliminary inquiry judge exceeded his jurisdiction. Her position is that there was no evidence of the central elements of knowledge and control of the handgun and the ammunition. She argues that this Court should quash the committal for trial.

[4] I respectfully disagree. After the limited weighing conducted by Khawly J. he properly found that there was evidence upon which a reasonable jury, properly instructed, could convict Mr. Bailey. I see no jurisdictional error. For the reasons that follow, the application is dismissed.

BACKGROUND

[5] The police obtained a search warrant for what they believed was Mr. Bailey’s house at 297 Atlas Avenue. Just prior to the execution of the warrant the police arrested Mr. Bailey at a “booze can” just a short walk from the house. When Mr. Bailey was arrested he had a key to 297 Atlas Avenue on his key ring. The house consisted of a living room, dining room, kitchen, and bedroom on the first floor. There were also three bedrooms, a washroom, and a kitchen on the second floor. Mr. Bailey’s mother and an older man with mobility issues were on the second floor when the warrant was executed. Mr. Bailey’s brother walked into the house during the execution of the warrant.

[6] The police searched the bedroom on the first floor. It was a small room. There was a bed, a television on the floor, a desk, and a blue cylindrical barrel. The police seized a 9mm Ingram M10 submachine gun along with ammunition of several different calibres (including 9mm). The submachine gun, a magazine, and ammunition were concealed in clothing, towels, and a knapsack within the barrel.

[7] The police seized a small amount of marijuana that was on top of the desk. The police also seized documents from the desk. The documents included the following:

• An old Jamaican passport with Mr. Bailey’s photograph in it;

• A Canada Revenue Agency document dated December 6, 2010, in the name of Peter Bailey and with the address of 297 Atlas Avenue, Toronto on it;

• An Ontario government benefit document from 2012 in the name of Peter Bailey with an address of 297 Atlas Avenue;

• A Government of Canada document in the name of Peter Bailey; and

• A day-timer in the name of Peter Bailey (although the contents and dates are unknown).

[8] There were no documents in anyone else’s name seized from the room. The original documents were not entered into evidence. Rather, copies of the photographs were entered (without objection).

[9] A brick of approximately 3 pounds of marijuana was also found in the basement.

THE PRELIMINARY INQUIRY JUDGE’S DECISION

[10] The preliminary inquiry judge first noted that he was required to “take the Crown’s case its highest, hence anything that could augur to the benefit of the Crown, the Court must take that into consideration.”

[11] The preliminary inquiry judge next noted that he was not entitled to weigh the evidence, although “there has to be a certain amount of weighing done by the preliminary inquiry judge, I always did that in any event when it came to a circumstantial case. One had to.” The preliminary inquiry judge then delved into the test. He described it this way:

The only thing that is relevant, sitting as a preliminary inquiry judge, is whether there is some evidence that a proper jury, in weighing it, can arrive, beyond a reasonable doubt, that the Crown has proven its case on the counts. I cannot displace or interfere with that function.

[12] After his discussion of the law he was required to follow, the preliminary inquiry judge then voiced his opinion as to the strength of the Crown’s case:

I am saying this because if this case goes to a trial in the same manner it was presented to this Court, I think the Crown has a lot of difficulties. But, that is not the issue.

[13] The preliminary inquiry judge then evaluated the evidence relating to the gun in the bedroom. He analyzed the evidence tying Mr. Bailey to the room where the gun was found. He noted the presence of the documents and the old passport in Mr. Bailey’s name. He also noted the fact that Mr. Bailey had keys to the house on him when he was arrested. The trial judge spent some time as well analyzing the clothing found in the room and in the cylindrical drum. A police officer had found the clothing and described it as large male clothing. Although the preliminary inquiry judge did not necessarily accept that the description was accurate, he noted that it was up to the jury to draw conclusions from that evidence, or not.

[14] The preliminary inquiry judge ultimately determined that there was some evidence upon which a jury could convict Mr. Bailey of the gun offences. The marijuana, however, was located in a different room in the house with nothing specifically tying Mr. Bailey to it. The preliminary inquiry judge discharged him on the drug offence. The Crown does not seek a remedy in respect of the drug charges.

ANALYSIS

[15] Where the Crown’s case depends primarily on circumstantial evidence a preliminary inquiry judge is required to engage in a limited weighing of the evidence: R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828. That is because a trier of fact is required to draw inferences from circumstantial evidence. In the language of Arcuri, there is an inferential gap between the evidence and the fact or matter the Crown seeks to establish. A preliminary inquiry judge must engage in a limited weighing to determine whether the evidence is capable of bridging that gap. The judge weighs the evidence only to determine whether it is capable of supporting the inferences that the Crown seeks to draw: Arcuri, para. 23. The preliminary inquiry judge does not weigh competing inferences.

[16] Ms. Vandebeek argues that the preliminary inquiry judge drew conclusions on the issues of knowledge and control that were based on speculation and conjecture. She argues that the Crown failed to lead at least some evidence on those elements of the offence. She further argues that the preliminary inquiry judge failed to consider the whole of the evidence. Under those circumstances the preliminary inquiry judge exceeded his jurisdiction.

[17] I respectfully disagree. The preliminary inquiry judge correctly stated the applicable legal principles (as Ms. Vandebeek very fairly conceded in her factum). He noted that he was required to engage in a limited weighing of the evidence. He also correctly stated that the purpose of the limited weighing was to determine whether the evidence was capable of supporting the inferences sought by the Crown. Moreover, the preliminary inquiry judge made observations about the quality of the Crown’s evidence (he was not impressed) but nonetheless noted that his observations were irrelevant. He knew that he could not usurp the jury’s function. He clearly understood his role.

[18] The scope of review on a certiorari application is very limited: a superior court can intervene only where the lower court or tribunal has exceeded its jurisdiction: R. v. Russell, 2001 SCC 53, [2001] 2 S.C.R. 804 at paras. 19-21. Here, the preliminary inquiry judge would have exceeded his jurisdiction if he ordered Mr. Baily to stand trial in the absence of some evidence on the elements of knowledge and control. I am limited to determining whether there was evidence, either direct or circumstantial, upon which the preliminary inquiry judge could form the opinion that the evidence was sufficient to put Mr. Bailey on trial: R. v. Sparling, [1988] O.J. No. 1877, 31 O.A.C. 244 (C.A.).

[19] Ms. Vandebeek relies on a line of cases where the Crown failed to establish some evidence of knowledge and control at a preliminary inquiry. I will review some of them.

[20] In R. v. Brown, 2012 ONSC 6565, [2012] O.J. No. 5456 the police found a gun and ammunition in a bedroom that they “identified” as the accused’s. The only real evidence of his occupation of the room (other than an inadmissible statement erroneously relied on by the preliminary inquiry judge) was that the police found male clothing of about his size in it. The seizing officer opined that the clothing would fit the accused. There was no other evidence. Fuerst J. quashed the committal for trial. She found that there was no evidence that would meet the test.

[21] In my respectful view, the Brown case is distinguishable. Although it is true that the clothing evidence in that case has some similarities to the clothing evidence in this case, there was other evidence (the passport and the other documents) found in the room attributed to Mr. Bailey.

[22] In R. v. Turner, 2012 ONCA 570, 292 C.C.C. (3d) 69 the police found the accused in the doorway of a bedroom where a gun was found in the closet. His driver’s licence was on the floor. There was no evidence one way or the other as to the address on the licence. There were passports belonging to the other two occupants of the home found in the cupboard. There was some male clothing as well. The preliminary inquiry judge discharged the accused. The application judge found that the preliminary inquiry judge failed to consider the evidence as a whole and improperly focussed on evidence that was missing rather than the sufficiency of the evidence. The Court of Appeal overturned the application judge and restored the discharge. The Court noted that the evidence of the licence and the presence of the accused in the doorway was simply not some evidence of knowledge and control.

[23] I also think that Turner is also distinguishable from this case. Here, the documentary evidence is very different. The documents have Mr. Bailey’s name on them and the address of 297 Atlas Avenue. They were found in the bedroom where the gun was secreted. That is very different from one document, found on the floor, without any address in evidence.

[24] I agree with Ms. Petrie that this case is far more like R. v. Chambers, 1985 169 (ON CA), [1985] O.J. No. 143, 20 C.C.C. (3d) 440 (C.A.). The accused was present when the police executed a warrant at a residence. The police found cocaine in a bag on a shelf in the cupboard of a bedroom. The closet contained mostly women’s clothing although there was men’s clothing in the room as well. There were photographs of the accused in the room. The accused’s purse with identification papers was also found in the room. When the police were questioning the accused her boyfriend showed up at the house. He admitted that a gym bag containing some cocaine was his.

[25] The preliminary inquiry judge committed the accused for trial. The committal was quashed on a certiorari application. The Court of Appeal restored the committal. There was some question as to whether the accused had sufficient control over the room that she could “consent” to the presence of the cocaine (the basis for the statutory definition of possession in that case). Martin J.A. stated for the Court:

There was evidence that the room-in which the drug was found was the respondent's room and, consequently, she could give or withhold her consent to the drug being in her room. Mr. Code contended, however, that the respondent's control over the room where the cocaine was found cannot be equated with a measure of control over the drug itself which he said imports the right to the benefit of the drug or its proceeds. We disagree. In our view, the respondent's right to grant or withhold her consent to the drug being stored in her room gave her the necessary measure of control over the drug essential to constitute "consent" within s. 3(4)(b) of the Code.

[26] I agree with Ms. Vandebeek that in this case, the whole of the evidence also includes evidence that is capable of detracting from the Crown’s case. For example, there was a teddy bear on the bed in the room in which the gun was found. There was also evidence that Mr. Bailey’s brother walked into the residence while the police were present. That said, the preliminary inquiry judge understood that he was not to consider competing inferences and was required to take the Crown’s case at its highest.

[27] In my respectful view, the preliminary inquiry judge properly applied the law and considered all the evidence. The gun was found in a barrel in a bedroom. A barrel in a bedroom is, to put it mildly, unusual. There was evidence upon which a jury could infer that Mr. Bailey was a resident of 297 Atlas Avenue – he had a key, was arrested a short walk away, and documents bearing his name and the address were found. There was also evidence upon which a jury could infer that Mr. Bailey occupied the bedroom with the gun: his documents and his old passport were found there. There was clothing in the room that appears to have been male clothing. The preliminary inquiry judge recognized that the clothing evidence was equivocal but determined that it was another piece of evidence that was capable of supporting an inference that Mr. Bailey occupied the bedroom. In other words, there was evidence upon which the jury could find that Mr. Bailey occupied the bedroom. As the preliminary inquiry judge recognized, it was open to a jury to find that if Mr. Bailey occupied the bedroom, he had knowledge and control of a gun in a large blue barrel in the middle of the room.

DISPOSITION

[28] The application is dismissed.

R.F. Goldstein J.

Released: November , 2015

COURT FILE NO.: 14-MO-10000255

DATE: 20151124

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

PETER BAILEY

REASONS FOR JUDGMENT ON CERTIORARI APPLICATION

R.F. Goldstein J.