



WARNING

The
    President of the panel hearing this appeal directs that the following should be
    attached to the file:

An order
    restricting publication in this proceeding under ss. 486.5(1), (2), (2.1),
    (3), (4), (5), (6), (7), (8) or (9) or 486.6(1) or (2) of the
Criminal
    Code
shall continue.  These sections of the
Criminal
    Code
provide:

486.5 (1)     Unless an order is made under section
    486.4, on application of the prosecutor in respect of a victim or a witness, or
    on application of a victim or a witness, a judge or justice may make an order
    directing that any information that could identify the victim or witness shall
    not be published in any document or broadcast or transmitted in any way if the
    judge or justice is of the opinion that the order is in the interest of the
    proper administration of justice.

(2)     On application of the prosecutor in respect
    of a justice system participant who is involved in proceedings in respect of an
    offence referred to in subsection (2.1), or on application of such a justice
    system participant, a judge or justice may make an order directing that any
    information that could identify the justice system participant shall not be
    published in any document or broadcast or transmitted in any way if the judge
    or justice is satisfied that the order is in the interest of the proper
    administration of justice.

(2.1) The offences for the
    purposes of subsection (2) are

(a) an
    offence under section 423.1, 467.11, 467.111, 467.12, or 467.13, or a serious
    offence committed for the benefit of, at the direction of, or in association
    with, a criminal organization;

(b) a
    terrorism offence;

(c) an
    offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the
Security
    of Information Act
; or

(d) an
    offence under subsection 21(1) or section 23 of the
Security of Information
    Act
that is committed in relation to an offence referred to in paragraph
    (c).

(3)     An order made under this section does not
    apply in respect of the disclosure of information in the course of the
    administration of justice if it is not the purpose of the disclosure to make
    the information known in the community.

(4)     An applicant for an order shall

(a) apply in writing to the presiding judge or
    justice or, if the judge or justice has not been determined, to a judge of a
    superior court of criminal jurisdiction in the judicial district where the
    proceedings will take place; and

(b) provide notice of the application to the
    prosecutor, the accused and any other person affected by the order that the
    judge or justice specifies.

(5)     An applicant for an order shall set out the
    grounds on which the applicant relies to establish that the order is necessary for
    the proper administration of justice.

(6)     The judge or justice may hold a hearing to
    determine whether an order should be made, and the hearing may be in private.

(7)     In determining whether to make an order, the
    judge or justice shall consider

(a) the right to a fair and public hearing;

(b) whether there is a real and substantial risk
    that the victim, witness or justice system participant would suffer harm if
    their identity were disclosed;

(c) whether the victim, witness or justice system
    participant needs the order for their security or to protect them from
    intimidation or retaliation;

(d) societys interest in encouraging the
    reporting of offences and the participation of victims, witnesses and justice
    system participants in the criminal justice process;

(e) whether effective alternatives are available
    to protect the identity of the victim, witness or justice system participant;

(f) the salutary and deleterious effects of the
    proposed order;

(g) the impact of the proposed order on the
    freedom of expression of those affected by it; and

(h) any other factor that the judge or justice
    considers relevant.

(8)     An order may be subject to any conditions
    that the judge or justice thinks fit.

(9)     Unless the judge or justice refuses to make
    an order, no person shall publish in any document or broadcast or transmit in
    any way

(a) the contents of an application;

(b) any evidence taken, information given or
    submissions made at a hearing under subsection (6); or

(c) any other information that could identify the
    person to whom the application relates as a victim, witness or justice system
    participant in the proceedings.
2005, c. 32, s.
    15; 2015, c. 13, s. 19

486.6 (1)  Every person who fails to comply with an
    order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is
    guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an
    order referred to in subsection (1) applies to prohibit, in relation to
    proceedings taken against any person who fails to comply with the order, the
    publication in any document or the broadcasting or transmission in any way of
    information that could identify a victim, witness or justice system participant
    whose identity is protected by the order. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Pettipas-Lizak, 2017 ONCA 963

DATE: 20171207

DOCKET: C62507

Laskin and Pepall JJ.A. and Gans J.(
ad hoc
)

BETWEEN

Her Majesty the Queen

Appellant

and

Shiloh Pettipas-Lizak

Respondent

Andrew Hotke, for the appellant

Nathan Gorham, for the respondent

Heard and released orally: November 28, 2017

On appeal from the acquittals entered on July 11, 2016 by
    Justice Anne Mullins of the Superior Court of Justice, sitting with a jury.

REASONS FOR DECISION

[1]

The Crown appeals directed verdicts of acquittal on three firearms
    charges. The narrow issue on the application was whether the respondents gun
    was operable. In granting the application the trial judge concluded that the
    evidence was insufficient for a properly instructed jury to consider whether
    the respondent had an operational firearm.

[2]

The Crown submits that in reaching her conclusion the trial judge made
    three errors in law: (1) she applied the wrong test; (2) she wrongly weighed
    competing references; and (3) she wrongly considered the respondents
    credibility.

[3]

We agree with the Crowns submission. And we also agree that there was
    evidence, which if believed, could reasonably support an inference of guilt.
    The following are our brief reasons on each of the three errors of law made by
    the trial judge.

(1)

The wrong test

[4]

At the beginning of her ruling, the trial judge said:

Here the narrow question for the jury would be whether such an
    inference is the only reasonable or rational inference to be drawn from the
    evidence.

[5]

Her statement captured the test a jury must apply in a case such as this
    one where the Crowns case depends at least in part on circumstantial evidence.
    But it is not the test on a directed verdict application. The test, instead, is
    the same test that a judge applies at a preliminary inquiry.

[6]

On a directed verdict application the judge must determine whether the
    circumstantial evidence is reasonably capable of supporting the inferences the
    Crown seeks to have the jury draw. The test is whether the evidence, if
    believed, could reasonably support an inference of guilt.

[7]

The trial judge never stated the correct test and, as it is evident from
    the remainder of her ruling, she applied the wrong test.

(2)

Weighing of competing inferences

[8]

On a directed verdict application, where the Crown leads circumstantial
    evidence, the trial judge must consider all the evidence and weigh it to a
    limited extent. This limited weighing means that the trial judge must assess
    the evidence in a way that is most favourable to the Crown: see
R. v.
    Arcuri
2001 SCC 54, at para. 23. The trial judge is not entitled to weigh
    the competing inferences available to the Crown and the accused. Yet that is
    what the trial judge did in this case.

[9]

In her ruling the trial judge relied on the respondents evidence of
    where the gun came from, the evidence of the gun falling apart, and the
    evidence about the likely age of the gun. She made no reference to the following
    evidence supporting the inferences favourable to the Crown:

·

the expert evidence that the gun was a real gun;

·

Millers evidence that the respondent acquired the gun for his
    protection;

·

the respondents evidence that he treated the gun as capable of
    being fired;

·

C.P.s evidence that she saw bullets;

·

the evidence that the respondent repeatedly inserted and took out
    the magazines, suggesting his familiarity with the gun;

·

and finally the experts evidence that there were reasons why the
    gun could be operable but fail to fire.

[10]

From
    her failure to refer to these pieces of evidence and the inferences that could
    be drawn from them, the trial judge showed that her conclusion inevitably
    rested either on weighing competing references or disregarding altogether the
    inferences favourable to the Crown. Thus in weighing the evidence as she did,
    the trial judge went well beyond the limited weighing permitted in a case of circumstantial
    evidence.

(3)

Consideration of the respondents credibility

[11]

The trial judge could only have reached the conclusion she did by
    accepting that the respondents evidence was credible. The law is well
    established that on a directed verdict application the trial judge is not
    entitled to assess the respondents credibility. It was an error of law for her
    to do so.

[12]

The errors of law made by the trial judge do not by themselves determine
    this appeal. We must still consider whether on the correct test there is
    evidence, which if believed, could reasonably support an inference of guilt. We
    are satisfied that there is such evidence on this record. That evidence is
    concisely summarized at para. 50 of the Crowns factum. This evidence is
    reasonably capable of supporting the inferences the Crown seeks to have the
    jury draw.

[13]

We allow the appeal, set aside the verdicts of acquittal and order a new
    trial on the firearms charges.

John Laskin J.A.

S.E. Pepall J.A.

Arthur Gans J.


