Court File and Parties

Court File No.: CR-15-3423 Date: 2016-07-05 Ontario Superior Court of Justice

Between: Her Majesty the Queen, Respondent – and – Rene Blais, Applicant

Counsel: Jane Magri, for the Crown Laura Joy, for the Applicant

Heard: June 30, 2016

Before: Carey J.

Endorsement

[1] The applicant, Rene Blais (“Blais”), seeks an order in the nature of certiorari reviewing and setting aside the decision of Justice G. Campbell of the Ontario Court of Justice, who committed him to trial on various firearm charges.

[2] The issue was whether there was any evidence that a reasonably instructed jury could use to find the applicant had some knowledge of a firearm, an essential element of possession of the firearm, which was at the centre of all five charges.

Facts

[3] On May 1, 2012, Windsor Police officers under the authority of a search warrant made a dynamic entry into an apartment rented by Blais, approximately one hour after Blais had been observed by police surveillance leaving the apartment. He was arrested without incident a short time later entering a local restaurant.

[4] When the police officers entered the apartment, Lisa Lemieux was observed sitting in approximately the centre of the shorter portion of an ‘L-shaped’ sectional sofa. A loaded firearm was found under a cushion in the sectional sofa a short distance away from where Ms. Lemieux was seated at the time (scenes 11 and 12, Exhibit No. 4). Ms. Lemieux’s D.N.A. was located on the firearm.

[5] Ms. Lemieux did not dispute her committal to trial on the same charges.

[6] The preliminary hearing judge, having reviewed the photographic evidence, described the location of the firearm as follows:

“The observation by Officer Parker of Ms. Lemieux, who was seated in the sectional in an area of the couch, at least a couple of cushions away from where the handgun was found, we’ll call it on the other end of the “L”, that is to say, to her right there was another cushion in the corner of the “L” and then moving further down the longer side of the “L” under the window, the second cushion away, is where the handgun was found underneath the cushion. It was not in plain view.”

[7] Earlier in his reasons on the issue of the evidence of control over the apartment, an issue conceded on this hearing, the learned preliminary hearing judge concluded that the furniture in the apartment was put there by Blais.

[8] The preliminary hearing judge described a further search in the corner of the same room:

“Next to the sectional, a table, an end table with the chair and water bottle and other personal effects. In the corner there are a variety of other items including DVDs that would be used for the television that’s affixed to the wall, I believe, nearby. And in the middle of those DVDs there’s a jar with coins in it that was described by Officer Parker. And located within that jar was a single round, the same kind of round, to my mind, that is important that was found within the handgun at issue. There’s nothing to suggest that it was different and just a layperson’s view of it makes it clear it’s the same.”

[9] Photographs of the “jar with coins” are found at Exhibit Nos. 5 and 6, (scenes 19, 20 and 21) from the preliminary hearing. The preliminary hearing judge continues:

“A better view of those rounds is in the 540 notice of photographs from Jones. It includes a whole series of pictures including a single round that was found in the chamber in the clip with close-up views and all of the rounds spread out. I have no reasons to believe they are not the same and have every reason to believe, from what I have seen, that they are the same.”

[10] P.C. Jones was the forensic identification officer. His report was marked as Exhibit ‘A’ at the preliminary hearing. P.C. Jones took possession of the located firearm and the rounds found within it. Photographs of the handgun and the rounds found within it are found at Exhibit ‘B’ at the preliminary hearing and labelled “Lab 001” through “Lab 009”. Photograph labelled “Lab 005” includes a close-up of the base of one of the rounds showing the marking “WIN 9MM LUGER”. There was no evidence that P.C. Jones examined the 9mm round found in the jar containing coins, although the s. 540 statement of P.C. Campbell, who identified the single round as a “9mm Lugar (sic)”, indicates that it was turned over to P.C. Jones. The photographs of ammunition, as I understand from Crown and defence submissions and the report of P.C. Jones, are all of the 9mm ammunition found within the clip or the chamber of the Luger and do not include the single round found elsewhere. P.C. Jones’ report states, “The handgun was proved safe and found to be loaded. The handgun was turned over to me for further examination. An additional round of ammunition was found in a vase nearby on the floor.”

[11] At the preliminary hearing, P.C. Nathan Parker indicated that the handgun which was turned over to P.C. Jones was loaded with “one round in the chamber and seven more rounds in the magazine.” Exhibit ‘B’ photograph “Lab 006” shows a total of eight rounds lined up and beside what appears to be a ruler. P.C. Parker also indicated, in his evidence at the preliminary hearing, “The round of ammunition and the passport were turned over to Constable Campbell.”

[12] The learned preliminary hearing judge concluded that there was evidence upon which a reasonable jury properly could return a verdict of guilt, and therefore committed Blais to stand trial. In doing so, he summed up the evidence he was relying on:

“So the issue is whether there is evidence from which it can be inferred that Mr. Blais had knowledge and control of this handgun. I have already addressed the issue of control. I have addressed the issue of knowledge with reference to this particular round. As I said, the passport on the table, not far from the handgun under the cushion was some distance from Ms. Lemieux and had within it bullets that match the round that was in the change jar in the corner with the DVDs used for the television on the wall, all to my mind represent some evidence upon which a reasonable jury properly instructed could conclude that Mr. Blais had knowledge and control of that handgun being there. So the two elements of the offence have some evidence to support the necessary inferences.”

Analysis

[13] The case against Blais is entirely circumstantial. In these cases, the issue becomes whether the inferences made by the preliminary hearing judge were reasonable inferences on the evidence and constitutes sufficient evidence upon which a properly instructed jury acting reasonably could convict the applicant, based on the onus of proof beyond a reasonable doubt.

[14] The purpose of preliminary hearings is to protect an accused from a trial where the authorities are not in a position to provide sufficient evidence to warrant continuation of the process. An accused should not be committed to trial without evidence of an essential element of the offence. [1]

[15] A four stage process is succinctly set out for judges to follow when dealing with a circumstantial case by Hill J. in R. v. Franks, [2003] SKCA 70. It requires a justice to identify the essential elements of the offence and consider those elements separately in terms of the evidence and whether it is direct or circumstantial. Where the evidence is only circumstantial, a justice must engage on a limited weighing of the evidence to determine whether a jury could, where properly instructed, draw a reasonable inference for the proof of that element before concluding whether or not there is any evidence upon which a reasonable jury properly instructed could return a guilty verdict. Inferences must go beyond speculation and conjecture.

[16] It was clear on the evidence at the preliminary hearing that Blais had only recently leased the apartment. The apartment included both men’s and women’s clothing. The photographs entered into evidence shows three pairs of women’s shoes. There were pieces of identification for both Blais and Ms. Lemieux located in the apartment. The preliminary hearing judge concluded that because it was Blais’ apartment, “it was not a quantum leap to conclude the furnishings had been put there by him.” It appears that he extended that ownership and control finding to the container in which change and a single 9mm round were found. He then appears to have concluded there was evidence to put before a jury that the applicant Blais had knowledge of the 9mm round in the container. That conclusion of knowledge was used, it appears, to infer knowledge of the 9mm handgun hidden in the sectional sofa.

[17] There are several problems I see with this analysis. First, while the container itself was not hidden, I cannot agree that the 9mm round was in plain view, as the Crown urged. The photographs entered as exhibits show a deep container, described by at least one witness as a vase, in a cluttered corner of the living room. The photograph of the contents shows a small bullet surrounded by coins, at the bottom of a container that the photographs suggest is approximately six inches deep. The 9mm round does not stand out in the picture. There is no evidence of the ownership of the container or the coins. The applicant had been absent from the apartment for over an hour when the police found Ms. Lemieux sitting very close to where the handgun was hidden and her D.N.A. evidence was found on the handgun. The issue of her knowledge and possession of the handgun was moot on the preliminary hearing. There was, all the same, evidence which supported her occupancy of the premises in more than just a transient fashion. The evidence before the preliminary hearing judge did not, in my view, support an inference that Blais was in exclusive possession of the apartment. It is worth noting that the preliminary hearing judge heard evidence of a locked safe with a significant amount of money inside. Mr. Blais had the key to the safe in his possession.

[18] Even if the evidence had been clear about Blais’ ownership and knowledge of the container and its contents, there was nothing heard at the preliminary hearing which would link this particular round of ammunition to the hidden firearm. The evidence was that the firearm had a full magazine with one bullet in the chamber. It was not missing any rounds. There was photographic evidence of the stamp on the base of the bullets found in the firearm. There was no such evidence in relation to the round in the jar. There was no evidence of its age or even if it was a live piece of ammunition. The evidence at the preliminary hearing appears to have been equally consistent with the round being an unrelated, random bullet which could have just as easily been a blank cartridge, a souvenir or a found object.

[19] As in R. v. Grizzle, [2013] O.J. No. 6184 (S.C.J.), where Nordheimer J. concluded that the fact two guns were identical in terms of make and model does not allow for any inference they had a common source, there is absolutely no evidence of how common this ammunition is or how long ago the single bullet had been manufactured. The fact that the change jar was close to DVDs used for the television does not assist, in my view, in making the inference which was made.

[20] It goes without saying that evidence before the preliminary hearing judge about the contents of the search warrant or who the object of that search warrant was would not be admissible evidence before the trier of fact. Evidence of the control generally of the apartment at the time shortly before the police arrived does not, in my view, lead to a permitted inference of knowledge of the hidden handgun in the circumstances of this case. The evidence is equally consistent with the handgun being possessed and hidden by the co-accused without the knowledge and consent of the applicant Blais.

[21] For these reasons, the application for certiorari is granted and the committal of Rene Blais is quashed.

“original signed and released by Carey J.”

Thomas J. Carey Justice

Released: July 5, 2016