Court File and Parties

COURT FILE NO.: 773/15 DATE: 20160524 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – ANGELINA RATTU Applicant

Counsel: Roberta Bald, for the Crown. Renée E. M. Gregor, for the Applicant.

HEARD: May 19, 2016

R. D. GORDON, R. S. J.

Overview

[1] The Applicant seeks an order quashing the decision of the preliminary hearing judge to commit her on charges that she: (1) Was in possession of a firearm without being the holder of a licence under which she may possess it; (2) did without lawful authority transfer a firearm; (3) did steal certain chattels of Brian Glynn; (4) did, without lawful excuse enter the dwelling house of Brian Glynn; and (5) did have in her possession a firearm which was obtained by the commission of an offence.

Background Facts

[2] The Applicant and Brian Glynn are married spouses. When this incident is alleged to have taken place, they had been separated for about a year and a half but had taken no steps to have their separation formalized by way of a separation agreement or court order. They were the joint owners of the property at 2814 McKenzie Road in Chelmsford where they had lived together when married and where Mr. Glynn continued to reside.

[3] It is alleged that sometime between June 1 and July 10 in 2014 the Applicant entered the home and removed money and several chattels including a Ruger Semi-Automatic Rifle belonging to Mr. Glynn. It is her entry into the home and the removal of these items that form the basis of the charges against her.

[4] When the offences are alleged to have been committed the Applicant did not hold a licence that would allow her to possess a firearm. It is alleged that after taking the firearm she delivered it to a gentleman named Edgar Dunne who subsequently turned it over to the police.

Applicable Law

[5] The scope of review on an application such as this is limited to jurisdictional error. In this instance it was argued that the preliminary hearing judge committed jurisdictional error by committing the Applicant for trial in the absence of evidence on each essential element of the offences.

[6] In determining whether to commit an accused for trial, the test to be applied by the preliminary hearing judge is whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty. When the Crown has not presented direct evidence on an essential element of the offence the question becomes whether that element may be reasonably inferred from the circumstantial evidence. In making this determination it is not for the judge to draw factual inferences or assess credibility. Rather, it is for the judge to ask only whether the evidence, if believed, could reasonably support an inference of guilt. [See R. v. Arcuri, 2001 SCC 23].

[7] It is not my role to substitute my own views of the sufficiency of the evidence to justify committal. I need only consider whether there was any evidence before the preliminary hearing judge upon which he, acting judicially, could form an opinion that the evidence was sufficient to order the accused to stand trial. [See R. v. Scott and Delpeache, 2003 ONSC 90 affirmed [2003] O.J. No. 4072 (C.A.)].

Analysis

Counts 1 and 2

[8] The Applicant first contends that there is no evidence from which it can be reasonably inferred that the Ruger Semi-Automatic rifle in question was a firearm. Counsel argued that because this was not an admitted fact and there was no evidence that the gun was capable of being discharged, it cannot meet the definition of firearm set out in section 2 of the Criminal Code.

[9] Section 2 of the Criminal Code defines a firearm as a barrelled weapon from which any shot, bullet or other projectile can be discharged and that is capable of causing serious bodily injury or death to a person, and includes any frame or receiver of such a barrelled weapon and anything that can be adapted for use as a firearm.

[10] The Crown bears the burden of proving that the weapon in question meets this definition. That burden can be met by direct evidence or circumstantial evidence from which the appropriate inference may be drawn [see R. v. Charbonneau, 2004 ONCA 9527, R. v. Osiowy, 1997 ABCA 50, R. v. Roberts, 1998 NBCA 12247].

[11] In my view there is ample evidence upon which a reasonable jury properly instructed could find that the item in question was a firearm. This evidence includes:

1. The description of the item as a firearm by virtually all witnesses who testified.
2. The photographs of the item which would lead a reasonable observer to conclude it is a firearm.
3. The testimony of Jeffrey Wallace that he has used this gun for target practice.
4. The Firearms Registration Certificate issued for it.

[12] The Applicant further contends there was no evidence that the Applicant unlawfully transferred the gun to anyone. She points to the evidence of Mr. Glynn that the Applicant was, at least initially, the registered owner of the gun and that Mr. Dunne’s evidence was that the transfer to him from the Applicant took place in January of 2013 (confirmed by a bill of sale to him). The evidence also established that the Applicant was licenced to possess a firearm in January of 2013 and so it was argued that the transfer to Mr. Dunne had to have been lawful.

[13] In my view there was evidence before the preliminary hearing judge upon which a reasonable jury properly instructed could make the required finding. That evidence would include the following:

1. The evidence of Jeffrey Wallace that he was present when the gun was taken.
2. The evidence of Mr. Glynn and the police that the incident when the gun was reported taken was in June or July of 2014.
3. The evidence of Mr. Glynn that he returned home to find the gun gone and identified the gun as the same gun that was turned in by Mr. Dunne.

[14] A reasonable inference from this evidence is that the Applicant removed the gun in June or July of 2014 when she had no licence to be in possession of it and that she transferred possession of it to Mr. Dunne sometime after that. I acknowledge that this is not the only inference to be drawn from the evidence, but it need not be.

Count 3

[15] With respect to this count, the Applicant argued that the items she is alleged to have stolen were matrimonial property which had yet to be divided between her and Mr. Glynn by way of separation agreement or by a court of competent jurisdiction and therefore cannot be said to have been owned solely by Mr. Glynn.

[16] In my view this submission reflects an incorrect understanding of the ownership of matrimonial assets and how they are disposed of. A court dealing with family law proceedings does not divide the assets acquired during marriage between the parties. The court calculates the net family property of each party and orders the payment of money to equalize the parties’ net family properties. Unless and until the parties agree to the transfer of assets between them in satisfaction of such an equalization, any chattel owned by a party belongs to that party. Unless an item is purchased with joint funds or in the name of both parties, the item remains the sole property of the person who acquired it. Accordingly, money belonging to Mr. Glynn, even if it was accumulated during the marriage, was his and cannot be taken by the Applicant. The gun, if it was in fact given to him, was his and cannot then be taken by the Applicant. On the other hand, items that were acquired jointly and in which the Applicant had an ownership interest and items that were not owned by Mr. Glynn cannot form the basis of count 3. It follows that committal on count 3 was appropriate but only as to the money and the firearm. I understand the Crown will consent to an amendment to count 3 to reflect this.

Count 4

[17] The Applicant was a joint owner of the dwelling at 2814 McKenzie Road in Chelmsford. This was the matrimonial home in which she had possessory rights under the provisions of the Family Law Act. There was no separation agreement or court order under which Mr. Glynn was given exclusive possession of the home.

[18] A properly instructed jury would be told that the Applicant had the legal right to be in the dwelling at that time and therefore had a lawful excuse to be there. A reasonable jury so instructed could not find the Applicant guilty of this offence. It follows that the Applicant’s committal on this count must be quashed.

Count 5

[19] The Applicant submits that if she was not unlawfully in the dwelling count 5 must also fail. I disagree. Even if she was lawfully in the dwelling, the evidence could still lead a reasonable jury properly instructed to conclude that: (1) she had possession of the firearm; and (2) That such possession was acquired by the commission of the offence of theft.

Conclusion

[20] In conclusion, the Applicant’s committal on count 4 is quashed and count three shall be amended to reflect committal on the charges of theft under five thousand dollars relating only to the money and firearm.

R. D. GORDON, R. S. J.

Released: May 24, 2016