R. v. MacLeod (J.M.) et al., (2013) 294 Man.R.(2d) 90 (CA)

• Judge: Hamilton, Beard and Cameron, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: March 12, 2013
• Jurisdiction: Manitoba
• Citations: (2013), 294 Man.R.(2d) 90 (CA);2013 MBCA 48

R. v. MacLeod (J.M.) (2013), 294 Man.R.(2d) 90 (CA);

      581 W.A.C. 90

MLB headnote and full text

Temp. Cite: [2013] Man.R.(2d) TBEd. JN.034

Her Majesty The Queen (respondent) v. Justin Miles MacLeod (accused/appellant)

(AR 12-30-07736)

Her Majesty The Queen (respondent) v. Destiny Diane Irene Powell (accused/appellant)

(AR 12-30-07878)

(2013 MBCA 48)

Indexed As: R. v. MacLeod (J.M.) et al.

Manitoba Court of Appeal

Hamilton, Beard and Cameron, JJ.A.

June 13, 2013.

Summary:

The Manitoba Provincial Court, in a decision reported at (2012), 276 Man.R.(2d) 1, found the accused (MacLeod and Powell) guilty of possession of a restricted weapon without a licence, possession of a firearm with the serial number defaced, and breach of recognizance (MacLeod only). The offences related to the possession of a loaded, semi-automatic handgun found buried in the snow in a dog run in the backyard of their residence. The case against the accused was based solely on circumstantial evidence. The accused appealed their convictions on the basis that they were unreasonable. They asserted that the trial judge erred in finding that the only rational inference to be drawn from the evidence was that they were in joint possession of the gun.

The Manitoba Court of Appeal allowed the appeals, quashed the convictions and substituted acquittals with respect to each of the accused.

Criminal Law - Topic 1137

Offences against public order - Restricted weapons - Possession of - The two accused were convicted of possession of a restricted weapon without a licence, possession of a firearm with the serial number defaced, and breach of recognizance (one accused only) - The offences related to a loaded, semi-automatic handgun found buried in the snow in a dog run in the backyard of their residence - The case was based solely on circumstantial evidence - The accused appealed, asserting that the trial judge erred in finding that the only rational inference to be drawn from the evidence was that they were in joint possession of the gun - The Manitoba Court of Appeal allowed the appeals, quashed the convictions and substituted acquittals - The court stated that "it was open to [the trial judge] to infer, as she did, that one or more of the residents in the house (that is, the accused) had control of the dog and, therefore, had knowledge of, and control over, the gun. She was clearly inferring possession from the ability to control the dog and the dog run. However, the statement by the trial judge that, 'one or more occupants of the residence' ... could control the dog and the dog run demonstrates that she was uncertain as to whether one, or both of the accused had that control and, if only one, which one. In this case, the inference that one or more of the residents had possession of the gun cannot lead to the conclusion that both possessed it, because there was an equally rational inference that only one of them possessed it ... evidence of joint possession of the residence was not sufficient to infer that each accused had control of the dog, the dog run and, ultimately possession of the gun" - See paragraphs 29 to 48.

Criminal Law - Topic 4358

Procedure - Charge or directions - Jury or judge alone - Directions regarding circumstantial evidence - [See Criminal Law - Topic 1137 ].

Criminal Law - Topic 5320.2

Evidence and witnesses - Inferences - From circumstantial evidence - [See Criminal Law - Topic 1137 ].

Criminal Law - Topic 5553

Evidence and witnesses - Proof of particular matters - Possession - [See Criminal Law - Topic 1137 ].

Criminal Law - Topic 5553

Evidence and witnesses - Proof of particular matters - Possession - The Manitoba Court of Appeal stated that "in order to prove knowledge, there must be some evidence that allows for an inference to be drawn that there was awareness on the part of an accused that the impugned item was present. In cases where joint possession is alleged, that awareness must be proven with respect to each accused. The application of the law involving constructive and/or joint possession is heavily dependent on the facts of each case. A review of the jurisprudence shows that, in cases of non-exclusive occupation, there must be some evidence from which knowledge can be inferred on the part of each accused. Furthermore, mere occupancy is not necessarily sufficient to infer knowledge" - See paragraphs 32 to 33.

Evidence - Topic 306

Circumstantial evidence - Rule in Hodge's case - Whether evidence consistent with other rational conclusions - [See Criminal Law - Topic 1137 ].

Practice - Topic 8807

Appeals - General principles - Duty of appellate court regarding inferences - The two accused were convicted of possession of a restricted weapon without a licence, possession of a firearm with the serial number defaced, and breach of recognizance (one accused only) - The offences related to a loaded, semi-automatic handgun found buried in the snow in a dog run in the backyard of their residence - The case was based solely on circumstantial evidence - The accused appealed - The accused stated that the trial judge erred in the inferences she drew with respect to the manner in which the gun was wrapped (i.e., to protect it and keep it at the ready) and the difficulty accessing the dog run - The Manitoba Court of Appeal stated that "Based on the evidence presented, the trial judge was entitled to draw the inferences she drew from the facts as she found them. These inferences, like findings of fact, are entitled to deference on the standard of review of palpable and overriding error. ... The accused have failed to show that the trial judge committed any palpable and overriding error in the inferences that she drew" - See paragraphs 15 to 16.

Cases Noticed:

R. v. C.L.Y., [2008] 1 S.C.R. 5; 370 N.R. 284; 225 Man.R.(2d) 146; 419 W.A.C. 146; 2008 SCC 2, refd to. [para. 14].

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 16].

R. v. Griffin (J.) et al., [2009] 2 S.C.R. 42; 388 N.R. 334; 2009 SCC 28, refd to. [para. 18].

R. v. Wu (W.Y.) (2010), 298 B.C.A.C. 84; 505 W.A.C. 84; 2010 BCCA 589, refd to. [para. 21].

R. v. Biniaris (J.), [2000] 1 S.C.R. 381; 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161; 2000 SCC 15, refd to. [para. 26].

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351, refd to. [para. 26].

R. v. Dhillon (G.S.) (2001), 157 B.C.A.C. 124; 256 W.A.C. 124; 2001 BCCA 555, refd to. [para. 26].

R. v. Robinson (C.L.) (2003), 184 B.C.A.C. 97; 302 W.A.C. 97; 2003 BCCA 353, refd to. [para. 26].

R. v. Antunes (P.G.), [2012] B.C.A.C. Uned. 21; 2012 BCCA 104, refd to. [para. 26].

R. v. Walle (A.J.) (2010), 493 A.R. 306; 502 W.A.C. 306; 2010 ABCA 384, refd to. [para. 26].

R. v. D.D.T. (2009), 257 O.A.C. 258; 2009 ONCA 918, refd to. [para. 26].

R. v. Shea (S.M.) et al. (2011), 309 N.S.R.(2d) 349, 979 A.P.R. 349; 2011 NSCA 107, leave to appeal refused (2012), 440 N.R. 385 (S.C.C.), refd to. [para. 26].

R. v. Henderson (H.A.) (2012), 317 N.S.R.(2d) 164; 1003 A.P.R. 164; 2012 NSCA 53, refd to. [para. 26].

R. v. Pham (K.T.) (2005), 204 O.A.C. 299; 77 O.R.(3d) 401 (C.A.), affd. [2006] 1 S.C.R. 940; 349 N.R. 387; 213 O.A.C. 399, refd to. [para. 31].

R. v. Haggarty, [1947] 3 D.L.R. 335, consd. [para. 34].

R. v. Grey (E.) (1996), 89 O.A.C. 394; 28 O.R.(3d) 417 (C.A.), consd. [para. 35].

R. v. Carpentier (R.J.) (2005), 201 Man.R.(2d) 1; 366 W.A.C. 1; 2005 MBCA 134, consd. [para. 36].

R. v. Drury (L.W.) et al. (2000), 150 Man.R.(2d) 64; 230 W.A.C. 64; 2000 MBCA 100, refd to. [para. 38].

R. v. Jenner (J.P.) (2005), 192 Man.R.(2d) 184; 340 W.A.C. 184; 2005 MBCA 44, refd to. [para. 38].

R. v. Singh (J.) (2004), 202 B.C.A.C. 283; 331 W.A.C. 283; 2004 BCCA 428, dist. [para. 39].

R. v. Lepage (J.P.), [1995] 1 S.C.R. 654; 178 N.R. 81; 79 O.A.C. 191, refd to. [para. 42].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 4(3) [para. 30].

Counsel:

D.V. Gunn, for the appellant, J.M. MacLeod;

J.A. Weinstein, for the appellant, D.D.I. Powell;

E.A. Thomson, for the respondent.

These appeals were heard on March 12, 2013, before Hamilton, Beard and Cameron, JJ.A., of the Manitoba Court of Appeal. The following judgment of the Court of Appeal was delivered by Cameron, J.A., on June 13, 2013.