



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Clovis, 2013 ONCA 755

DATE: 20131212

DOCKET: C57650

Cronk, Watt and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Myus Clovis

Applicant/Appellant

Richard Litkowski, for the appellant

Shawn Porter, for the respondent

Heard and released orally: December 6, 2013

On appeal from the judgment of Justice
Nancy
    L. Backhouse
of the Superior Court of Justice, dated June 11, 2013, dismissing
    the application for
certiorari
and upholding the order of Justice
William P. Bassel
of the Ontario Court of Justice, dated October
    1, 2012, committing the appellant for trial.

ENDORSEMENT

[1]

Mr. Clovis appeals pursuant to s. 784(1) of the
Criminal Code
the decision of Backhouse J. dismissing his motion to quash the decision of
    Bassel J. committing him for trial on four firearms offences.

[2]

The central issue at the preliminary inquiry was whether there was some
    evidence which, if accepted by a properly instructed jury, could support the
    conclusion that the appellant had possession of a shotgun when it was located
    by the police in his residence approximately ten minutes after it had been
    fired on the street in front of his home.

[3]

As the reviewing judge noted, the decision to commit the accused for
    trial could be set aside only if there was a jurisdictional error.  She
    recognized that it is not the role of the reviewing court to weigh the
    evidence, but to decide if there was an evidentiary basis upon which the court
    below could form the opinion that the evidence was sufficient to justify a
    committal for trial.  To the extent that there was circumstantial evidence, the
    preliminary inquiry judge was required to engage in a limited weighing of the
    whole of the evidence.  No objection was taken by the appellant to the
    reviewing judges articulation of the relevant legal principles.

[4]

The appellant submitted that the jurisdictional error in this case
    occurred when the preliminary inquiry judge committed the accused based on what
    the appellant asserted were inferences that could not be reasonably drawn from
    the evidence.  The appellant submitted that the line between reasonable
    inference and speculation was crossed, and that there was not sufficient
    evidence upon which a jury could conclude beyond a reasonable doubt that the
    appellant had knowledge, consent and control over the firearm at the time it
    was located by the police.  The appellant argued that the only reasonable
    inference from the location of the gun, and the presence of a number of people
    in the apartment, some of whom were not known to the appellant, is that the gun
    was thrown into his bedroom by someone without his knowledge or consent.

[5]

We disagree.  The evidence at the preliminary inquiry went beyond the
    fact that the gun was found in an apartment rented solely by the appellant, and
    that he was present in the apartment between the time the gun was used outside
    and some ten minutes later when the police entered the apartment and found the
    gun in his bedroom.  There was evidence as to the size of the gun, the size and
    configuration of the apartment, the location and condition of the bedroom, as
    well as the evidence of the appellants friend, Mr. Aristide, who was present
    at the time, as to the appellants activities, the fact that the appellant did
    not like anyone going into his bedroom, and that he had told others to come in
    from the front porch earlier in the evening.  This was evidence from which it
    could reasonably be inferred that the appellant was exerting some level of
    control over what was occurring at his apartment, and that he would have known
    of and consented to the presence in his bedroom of the shotgun (a large object
    even with the stock removed), whether he put it there himself or whether it was
    thrown into the room by someone else.

[6]

It is not the role of the preliminary inquiry judge to resolve any
    competing inferences from the evidence.  We agree with the assessment of the
    reviewing judge that there was evidence from which the appellants knowledge,
    consent and control in relation to the firearm could be inferred. Accordingly,
    the appellant was properly committed for trial on the firearms offences.

[7]

For these reasons, the appeal is dismissed.

E.A.
    Cronk J.A.

David
    Watt J.A.

K.
    van Rensburg


