ONTARIO
SUPERIOR COURT OF JUSTICE
Court File No.: CR-15-70000196-0000
Date: 20151208
B E T W E E N:
HER MAJESTY THE QUEEN
Elizabeth Jackson for the Crown
- and -
JAMES SCULLION AND
JESSICA PARBERRY
Christopher O’Connor for James Scullion
Martin Kerbel, Q.C. for Jessica Parberry
Heard: November 23 – 27, 2015.
REASONS FOR JUDGMENT
CORRICK J.
Introduction
[1] Mr. Scullion and Ms. Parberry are charged with a number of offences arising from their alleged possession on September 28, 2014 of a firearm and over-capacity magazine. Specifically, Mr. Scullion and Ms. Parberry are charged with possession of a loaded prohibited firearm, possession of a prohibited device, and possession of a prohibited firearm knowing that they were not the holder of a licence permitting such possession. Mr. Scullion is also charged with possessing a firearm while being prohibited to do so by a court order.
[2] They were tried by me without a jury. Defence counsel brought two applications – one for disclosure of the identity of a confidential informant, and another to present alternate suspect evidence. At the outset of the trial, counsel agreed that the application for disclosure of the identity of the confidential informant would be considered at the conclusion of the evidence and that the evidence heard on the trial would apply to that application. That application was ultimately abandoned. The evidence on the alternate suspect application was heard in a single blended trial and voir dire. I permitted the defence to present evidence of two alternate suspects.
The Crown’s Evidence
[3] The Crown’s case consisted of evidence from several police officers who executed a search warrant on Mr. Scullion and Ms. Parberry’s apartment on September 28, several photographs, and certain agreed facts.
[4] Mr. Scullion and Ms. Parberry testified on the voir dire to determine the admissibility of alternate suspect evidence. Their evidence was applied to the trial. In addition, the criminal records of two alternate suspects were filed as exhibits.
[5] Most of the facts are not in dispute. Counsel disagree about whether the only reasonable inference that can be drawn from the circumstantial evidence presented by the Crown is that Mr. Scullion and Ms. Parberry had knowledge and control of the firearm.
[6] The defence took no issue with the lawfulness of the warrant pursuant to which the police searched their apartment and seized the firearm in question. The following facts were admitted at the trial:
❏ the firearm seized was a prohibited firearm as defined in the Criminal Code;
❏ the over-capacity magazine seized was a prohibited device as defined in the Criminal Code;
❏ the firearm was loaded;
❏ no fingerprints or DNA evidence were found on the firearm;
❏ fingerprints and DNA evidence are rarely found on firearms;
❏ on September 28, 2014, Mr. Scullion was subject to a court order prohibiting him from possessing firearms; and
❏ on September 28, 2014, Mr. Scullion and Ms. Parberry lived at 65 Halsey Avenue, apartment #401 with their two children and no one else.
[7] The facts can be summarized as follows:
At 12:32 a.m. on September 28, 2014, a team of police officers executed a search warrant at Mr. Scullion and Ms. Parberry’s apartment. When they entered the apartment, Mr. Scullion and Ms. Parberry were asleep on a mattress in the dining room. No one else was in the apartment.
Officer Brind’Amour searched a bedroom that contained two beds without mattresses, and children’s toys strewn on the floor. The door to the closet in the room was open, and Officer Brind’Amour saw the grip of a handgun from underneath two pairs of men’s jeans on the far right-hand side of the top shelf of the closet. When he moved a shirt that was on a shelf, a single round of ammunition rolled off a piece of women’s lingerie that was on the left-hand side of the shelf.
Surveillance of 65 Halsey Avenue was conducted on September 26 and 27. There is no evidence about when the surveillance began on September 26. The team of surveillance officers began their shift at 4:00 p.m. that day. The following observations were recorded by the officers conducting surveillance on September 26:
❏ 5:45 p.m., Mr. Scullion and Ms. Parberry were seen entering the front door of the building;
❏ 5:50 p.m., loud music was heard coming from inside apartment 401;
❏ 6:30 p.m., Ms. Parberry and an unknown female left the building;
❏ 6:43 p.m., Ms. Parberry and the unknown female returned to the building;
❏ 8:31 p.m., Mr. Scullion met two men, who arrived by taxi, at the front of the building, and went into the building with them;
❏ 10:18 p.m., Mr. Scullion met a man, who arrived by car, at the front of the building, and went into the building with him; and
❏ 10:25 p.m. Mr. Scullion exited the building, walked west on Halsey Avenue, met a unknown male, and returned into the building at 10:28 p.m. with the unknown male.
Surveillance was discontinued at approximately midnight on September 26.
Police obtained a warrant to search 65 Halsey Avenue, apartment 401 at 2:45 p.m. on September 27, 2014.
[8] Officer Stolf was the supervising officer on September 26 and 27. He testified that a confidential informant informed him sometime prior to September 26 that Mr. Scullion was in current possession of a firearm at 65 Halsey Avenue, apartment 401. This hearsay evidence was received as relevant to the two applications. I have not considered it in determining whether the charges have been proven beyond a reasonable doubt. As a result of receiving this information, Officer Stolf instructed Officer Askin on September 26, shortly after 4:00 p.m., to prepare an information to obtain a search warrant for 65 Halsey Avenue, apartment 401.
[9] Officer Stolf testified that Officer Askin was unable to obtain the search warrant on September 26 due to a backlog of urgent warrants being considered by the justice of the peace. (Again, this hearsay evidence was received as relevant to the two applications.) As a result, he ordered the discontinuance of the surveillance on 65 Halsey Avenue at midnight on September 26.
[10] After the officers entered the apartment, and before they commenced their search, Officer Stolf took photographs. Those photographs are marked as Exhibits 3A - AA. Once the firearm was located, Officer Stolf took photographs of its location in the closet as Officer Brind’Amour found it. Those photographs are marked Exhibits 3O, 3P and 3Q.
Defence Evidence
[11] Mr. Scullion and Ms. Parberry testified. They denied any knowledge of the presence of the firearm in the closet.
[12] Mr. Scullion testified that he and Ms. Parberry had a get-together at their apartment on September 26. Their children were there at the beginning of the evening. Eight guests attended. Mr. Scullion testified that the buzzer in their apartment was not working that day, so he had to go downstairs to let people into the building. He identified the guests who were seen entering the building by the police officers conducting surveillance. Aaron Turpin and John Moore arrived at 8:31 p.m. by taxi. Errol Potvin arrived at 10:18, and Greg McNeil arrived at 10:25. The party lasted until about 3:00 or 3:30 a.m. at which time everyone had left the apartment. Mr. Scullion and Ms. Parberry went to bed around 4:00 a.m.
[13] According to Mr. Scullion, he was last in the closet where the firearm was found on Thursday, September 25 at 5:30 a.m. He went in there to get his work clothes. He did not see a firearm in the closet at that time. He also testified that the closet was not as messy when he last saw it as it is depicted in Exhibits 3P and 3X. He was, however, unable to say that all of the clothes on the shelf were folded neatly on Thursday morning.
[14] Mr. Scullion admitted that he has a criminal record, which includes offences of dishonesty. It ends in 2009, when he received a ten-month conditional sentence for possession of marijuana for the purpose of trafficking.
[15] Ms. Parberry testified that she did not know that there was a gun in her apartment and that she had never seen a gun in her apartment.
[16] She testified that the children did not sleep in the room in which the firearm was found. They slept in the den to be closer to where she slept, which was in the dining room. The closet in which the firearm was found was the only closet in the apartment. It contained her clothes, Mr. Scullion’s clothes and her two children’s clothes. She testified that the last time she had been in that closet prior to the party on Friday evening was that morning, when she got herself and her children dressed. She did not see a firearm in the closet that morning.
[17] She also testified that on Friday morning the top shelf of the closet was not in disarray as it is depicted in Exhibits 3P and 3X. According to Ms. Parberry, she kept only jeans and pants that were folded on the top shelf, with Mr. Scullion’s on the right, hers on the left, and the children’s in the middle. She also kept some lingerie folded underneath her jeans.
[18] Ms. Parberry agreed with the list of guests that Mr. Scullion testified had attended the get-together at their apartment on Friday night. She testified that there were six children at the party playing in the room where the firearm was found. Guests were going in and out of the room to be with the children. All of the guests that evening had access to all of the rooms in the apartment. Ms. Parberry testified that throughout the evening, she was clearing away dirty plates, pizza crusts, dipping sauces and beer cans. She took an empty pizza box to the garbage chute, washed the dishes, and put the empty beer cans on the balcony.
[19] When Ms. Parberry was shown Exhibit 3P, which depicts the top shelf of the closet where the firearm was found underneath two pairs of men’s jeans, she was unable to say that she could see a firearm. She agreed with Crown counsel that the firearm was obvious when one was close up to the closet, as shown in Exhibit 3Q.
[20] In cross-examination, Ms. Parberry conceded that she depended on Mr. Scullion financially and that she did not want to get Mr. Scullion in trouble, but that she would not lie.
Alternate Suspect Evidence
[21] Mr. Scullion and Ms. Parberry testified that Errol Potvin and John Moore attended their party on Friday night. I permitted the defence to adduce evidence pointing to these two men as alternate suspects.
[22] Mr. Scullion testified that he has known Mr. Potvin for 21 or 22 years. He met Mr. Moore, through Mr. Potvin, two and a half years ago. Both men have lengthy criminal records, including convictions for firearm offences.
[23] Mr. Moore was convicted in 2006 of possession of a firearm, possession of a prohibited or restricted firearm with ammunition, and delivery of a restricted weapon without a permit. In 2006, Mr. Potvin was convicted of various firearm offences, including possession of a loaded prohibited or restricted firearm, and in 2008, he was convicted of further firearm offences, including possession of a loaded prohibited or restricted firearm.
[24] Mr. Scullion testified that in 2006, police seized a rifle, a case of shells and a holster for a handgun from Mr. Scullion and Ms. Parberry’s residence that Mr. Potvin had admitted concealing there.
Positions of the Parties
[25] Ms. Jackson, on behalf of the Crown, argued that the evidence before the court is that the gun was in plain view under Mr. Scullion’s clothing in a closet used by both Mr. Scullion and Ms. Parberry, in an apartment that only they and their children occupied. She submitted that the evidence of Mr. Scullion and Ms. Parberry that there was a party in their apartment on Friday evening is a fabrication, crafted after they had received disclosure of the allegations against them. She pointed to the fact that the defence has not called any of the people who were at the party, and that the court is left with only the evidence of Mr. Scullion and Ms. Parberry that Mr. Potvin and Mr. Moore were there that night. She asked me to give the alternate suspect defence no weight, and to draw an adverse inference from the fact that it was not disclosed until the very last moment, just days before trial.
[26] Mr. O’Connor, on behalf of Mr. Scullion, submitted that there is ample evidence, including from the officers who conducted surveillance on 65 Halsey Avenue, that Mr. Scullion and Ms. Parberry had a party in the evening hours of September 26, and that any of the party guests had the opportunity to plant the gun, and at least two of them had a propensity for possessing firearms. He argued that I should accept Mr. Scullion’s evidence that he did not know the firearm was in the closet or be left with a reasonable doubt after hearing it, and acquit Mr. Scullion.
[27] Mr. Kerbel, on behalf of Ms. Parberry, submitted that there is no evidence that Ms. Parberry knew the firearm was in the closet, or that she had control of it. He argued that Ms. Parberry was a credible and reliable witness who was not shaken in cross-examination, and that I should accept her evidence that she did not know that the firearm was in the closet and acquit her.
Analysis
[28] My analysis of the evidence in this trial is governed by some fundamental principles that apply to all criminal trials.
[29] First, Mr. Scullion and Ms. Parberry are presumed to be innocent.
[30] Second, the Crown bears the burden of proving their guilt beyond a reasonable doubt. It is a very high standard, but does not require the Crown to prove their guilt with absolute certainty.
[31] Since Mr. Scullion and Ms. Parberry testified and denied knowledge of the firearm, I must apply the principles set out by the Supreme Court of Canada in R. v. W. (D.).[1]
[32] I am required to make my decision based on the whole of the evidence. I can accept some, none or all of the evidence of any witness.
[33] Proof of possession, personal or joint, requires the Crown to prove beyond a reasonable doubt that Mr. Scullion and Ms. Parberry had both knowledge and control of the firearm.[2]
[34] Possession may be established by either direct or circumstantial evidence. The case against Mr. Scullion and Ms. Parberry is entirely circumstantial. In order to convict either of them, I must be satisfied beyond a reasonable doubt that the only rational inference that I can draw from the circumstantial evidence is that they are guilty.[3]
[35] When I consider Mr. Scullion and Ms. Parberry’s testimony denying any knowledge of the firearm together with the evidence as a whole, I am not satisfied that the only rational inference I can draw is that Mr. Scullion and Ms. Parberry knew that the firearm was in the closet.
[36] I am satisfied that there was a party at Mr. Scullion and Ms. Parberry’s apartment on September 26. Their evidence in this regard is consistent with the observations of the police officers conducting surveillance on 65 Halsey Avenue, who saw Mr. Scullion meet several individuals at the front of the apartment building and escort them inside.
[37] Although Officer Brind’Amour testified that he saw the grip of the firearm in the closet from six feet away, that is not determinative of whether the firearm was in plain view. Officer Brind’Amour was in that bedroom looking for a firearm and his familiarity with firearms as a police officer with the Gun and Gangs Unit of the Toronto Police Service for the past 4½ years would allow him to easily recognize the grip of a firearm. He also testified that he was able to see the handle of the firearm because he was at eye level with it.
[38] I do not consider the firearm to be in plain view as it was discovered by Officer Brind’Amour, and depicted in the photograph marked as Exhibit 3P. Officer Stolf, who took the photograph, testified that once Officer Brind’Amour told him that he saw the handle of a firearm in the closet, he began to take closer photographs of the closet. Exhibit 3P is one of the photographs taken closer up and the grip of the firearm is not immediately noticeable.
[39] I have considered the evidence of Mr. Scullion and Ms. Parberry. Ms. Jackson submitted that I ought not to accept Ms. Parberry’s testimony because she has a strong motive to lie in order to protect Mr. Scullion because he is her spouse and the father of her children and she depends upon him financially. In my view, that is not a sufficient reason, standing alone, to reject Ms. Parberry’s evidence. Her evidence was internally consistent and was consistent with the other evidence presented in this trial. She testified that she did not see a firearm in that closet on Friday morning, that she did not know there was a firearm in that closet and that there were people in her apartment Friday night that had access to that room and to that closet. The firearm was concealed under two pairs of men’s jeans on the side of the closet shelf where Mr. Scullion’s pants and jeans were kept. I found her to be a credible witness. I am unable to reject her evidence that she did not know that there was a firearm in the closet, and I therefore find her not guilty.
[40] I have carefully scrutinized the evidence of Mr. Scullion, given his criminal record, which includes offences of dishonesty. His evidence was not always internally consistent and he tended to overstate what he observed or recalled.
[41] I do not accept Ms. Jackson’s submission that an alternate suspect defence is akin to an alibi defence, and that I should draw an adverse inference from its late disclosure. The Court of Appeal has recently addressed this issue directly. In 2015 ONCA 396, the court held that an alternate suspect defence is not an alibi defence. The court was reviewing the appellant’s convictions for impaired driving, possession of a stolen motor vehicle, and driving while disqualified. The Court of Appeal found that the trial judge "erred in characterizing the appellant’s defence that ‘Steve’ [someone other than the appellant] was the driver of the car, as an alibi, the late disclosure of which supported an adverse inference against the appellant and amounted to positive evidence of guilt." An alternate suspect defence is not an alibi and no adverse inference can be drawn against an accused person for the failure to disclose it in a timely manner.
[42] In addition, the alternate suspect defence was not raised at the last moment by the defence. It was noted by Justice Speyer, who conducted a pre-trial in this matter on April 27, 2015. On November 4, 2015, Mr. Kerbel provided Ms. Jackson with the names of the people who Mr. Scullion testified had attended the party.
[43] Ms. Jackson also submitted that I recall Officer Stolf’s evidence that he received the tip from the confidential informant prior to September 26, and therefore prior to the party, when considering the plausibility of the defence theory that the gun was planted by someone at the party. I am unable to accede to that submission. Even if there was specific evidence from Officer Stolf of what the tip was and when precisely he received it, I could not rely on this piece of hearsay evidence to establish that Mr. Scullion was in possession of a firearm prior to September 26.
[44] After considering Mr. Scullion’s evidence about the party, together with evidence of the surveillance officers and Ms. Parberry, and the evidence showing the propensity of two of the party guests, Mr. Moore and Mr. Potvin, to possess firearms, I am left with a reasonable doubt about Mr. Scullion’s knowledge of the presence of the firearm. Furthermore, I am not satisfied that the only rational inference that I can draw from the circumstantial evidence is one of guilt.
[45] For all of the above reasons, I find Mr. Scullion and Ms. Parberry not guilty of all of the charges before the court.
[46] I want to thank counsel for the way in which they shortened this trial and narrowed the issues for me to consider.
Corrick J.
Released: December 8, 2015
COURT FILE NO.: CR-15-70000196-0000
DATE: 20151208
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
JAMES SCULLION AND JESSICA PARBERRY
REASONS FOR JUDGMENT
Corrick J.
Released: December 8, 2015
[1] [1991] 1 S.C.R. 742 — https://www.canlii.org/en/ca/scc/doc/1991/1991canlii93/1991canlii93.html
[2] R. v. Escoffery, 1996 35 (ON CA) — https://www.canlii.org/en/on/onca/doc/1996/1996canlii35/1996canlii35.html and R. v. Pham, 2005 44671 (ON CA) — https://www.canlii.org/en/on/onca/doc/2005/2005canlii44671/2005canlii44671.html
[3] R. v. Griffin, 2009 SCC 28 — https://www.canlii.org/en/ca/scc/doc/2009/2009scc28/2009scc28.html
[4] 2015 ONCA 396 — https://www.canlii.org/en/on/onca/doc/2015/2015onca396/2015onca396.html