R v Kanak, 2016 ABQB 56

Court of Queen ’ s Bench of Alberta Citation: R v Kanak, 2016 ABQB 56 Date: 20160125 Docket: 141164210Q1 Registry: Edmonton Between: Crystal Kandice Kanak Applicant - and - Her Majesty the Queen Respondent _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice D.C. Read _______________________________________________________ Introduction [ 1 ] The indictment in this matter alleges offences against the Applicant including possession of an explosive substance contrary to s. 82 of the Criminal Code , RSC 1985, c C-46 (Count 2).

After a preliminary inquiry, the Applicant applied in this Court for certiorari to quash Count 2 on the basis that there was insufficient evidence on which to commit the Applicant to trial. Evidence at the Preliminary Inquiry [ 2 ] Cst. Nyszczuk testified that as he was searching a bedroom in relation to a drug investigation, he found a bag on the top shelf of the closet. It was heavy even though it was not full. As he opened it, he observed two items wrapped in a similar type of yellowy tea towel. He opened the tea towel on one item and observed a tube of what he initially thought was dynamite.

As he examined it, he saw an

inscription “60 seismic gel” on one side and “danger, explosive” on the other side. He left them on site until the bomb technician attended to seize them. [ 3 ] Cst. Dahlseide testified that while searching the residence in question, Cst. Nyszczuk asked him to come to the bedroom to take a look at several items which appeared to Cst. Dahlseide to be tubes of seismic gel. The tubes bore the words “60 seismic gel” and “kind of an explosive emblem”. He believed that they were explosive material. He advised the searching members not to handle them as he was no sure of possible volatility of the suspected explosives.

He contacted the watch commander and asked for the explosive device member to attend. [ 4 ] Another officer took a photograph of the items believed to be explosives, and this was entered as an exhibit at the preliminary hearing.

Committal Decision [ 5 ] The provincial court judge summarized the applicable legal test as being whether there was sufficient evidence to permit a properly instructed jury, acting reasonably, to convict, noting that the court must weigh the evidence in the limited sense of assessing whether it is capable of supporting the inferences the Crown asks the jury to draw. [ 6 ] He summarized defence counsel’s argument as being that even if there was evidence to support an inference of possession respecting the alleged explosives, there was no evidence that the two tubes were in fact explosives because they were not tested and have been destroyed such that further testing cannot be done. [ 7 ] The judge noted the evidence before him of two tubes marked “60 seismic gel” located in the residence.

He noted from the photograph that the tube appeared to have a manufacturer’s name on it as well as a marking indicating “explosive, danger”. The police bomb unit was called to the residence to handle and dispose of the two tubes and their contents.

The tubes were found in a residence with illicit drugs, drug paraphernalia, a stab vest, and a baseball bat with the inscription “Fuck You, Pay Me”. [ 8 ] He concluded that a reasonable jury, properly instructed, could conclude that the two tubes did, in fact, contain an explosive substance as marked on the exterior of the tube casing and that the accused did not possess them for a lawful purpose.

Parties’ Positions [ 9 ] Applicant’s counsel submitted that a jurisdictional error occurs when the judge commits a person without at least some basis in the evidence. [ 10 ] She argued that there was no evidence at all in this case regarding the nature of the tubes. The labelling on the tubes is hearsay which is inadmissible. Therefore, the court was obliged to consider them without the wording. [ 11 ] The judge did not expressly make a decision as to whether the wording was admissible evidence.

Applicant’s counsel argued that if the judge’s whole decision was based on inadmissible evidence, as opposed to one item of evidence among others, certiorari is available.

She submitted that, without the writing, there was, in effect, no evidence before the preliminary inquiry judge that the tubes were an “explosive substance” as defined in s 2 of the Criminal Code . [ 12 ] Crown argued that if the writing is hearsay, improper reliance on it by the judge would only be an error in law, which is not reviewable on certiorari . [ 13 ] As for the decision itself, Crown did not disagree that the labelling on the items could not be relied on for its truth. However, the officers and the judge were able to make observations of the evidence and to draw inferences.

Crown argued that the term “explosive substance” is widely defined in s 2. The items were labelled as one would expect and looked like explosives. The judge could infer from the shape of the items and the fact that the police officers thought they were dynamite; they called in the bomb squad that the tubes were or could be explosive substances. [ 14 ] Crown noted that although the judge stated that the substances were destroyed, this was not in the evidence. Crown advised this Court that the police did test the substance.

An explosive expert was subpoenaed for the preliminary inquiry but was excused by reason of a personal conflict.

Crown indicated an intention to call further evidence at trial. [ 15 ] Applicant’s counsel noted that expert evidence could have been called at the preliminary inquiry, and the Crown made a calculated decision to proceed in his absence. [ 16 ] In response to a question by the Court in the present application, Crown asserted that an object that looks like a gun may provide a basis to commit an accused for trial on a charge of possession of a weapon without the necessity of calling a firearms expert at the preliminary inquiry.

Applicant’s counsel responded that the evidence of the items in this case was more akin to a cardboard cut-out of something that looked like a firearm and had “firearm” written on it. Scope of Review [ 17 ] The Criminal Code provides: 548(1) When all the evidence has been taken by the justice, he shall

(

a) if in his opinion there is sufficient evidence to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction, order the accused to stand trial... [ 18 ] The question to be asked by a preliminary inquiry judge under s 548(1) is whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty. A preliminary inquiry judge must commit the accused to trial in any case in which there is admissible evidence which could, if it were believed, result in a conviction.

The preliminary inquiry judge does not draw inferences from facts, nor does s/he assess credibility. Rather, the judge’s task is to determine whether, if the Crown’s evidence is believed, it would be reasonable for a properly instructed jury to infer guilt. Therefore, the “limited weighing” never requires consideration of the inherent reliability of the evidence itself.

Rather, it is an assessment of the reasonableness of the Crown’s suggested inferences to be drawn from the circumstantial evidence: R v Arcuri , 2001 SCC 54 at paras 21 and 30 , [2001] 2 SCR 828. [ 19 ] The scope of review on certiorari regarding committal for trial is very limited. It permits review only where it is alleged that the tribunal has acted in excess of its assigned statutory jurisdiction or has acted in breach of the principles of natural justice which amounts to an excess of jurisdiction: R v Russell , 2001 SCC 53 at para 19 , [2001] 2 SCR 804.

Analysis [ 20 ] The judge clearly embarked on the task contemplated in s 548(1) and was within his jurisdiction to do so. He accurately stated the test for committal. [ 21 ] In my view, the question of whether the definition of “explosive substance” would encompass the items in question is a question of law and therefore not subject to review. [ 22 ] Applicant’s counsel argued that there was in fact no admissible evidence before the judge and therefore he could not have found that there was any evidence upon which a reasonable jury properly instructed could return a verdict of guilty.

This amounts to an error in jurisdiction. [ 23 ] I disagree. A decision to admit or exclude evidence or otherwise apply the rules of evidence is a question of law and not subject to review by way of certiorari : R.v. Arcuri , op cit at para 23 . The concept that a question of law is transformed into a question of jurisdiction by erroneous admission of evidence on a necessary element has been considered and rejected in various cases: see for example R. v. Auger , 2001 NWTSC 30 at paras 27-28 ; R. v.

Grewal , 2010 ABQB 748 , at paras 20-23 . [ 24 ] Even if I am wrong in finding that certiorari is not available, I would dismiss the application. [ 25 ] The Applicant is charged with possession of an explosive substance under s 82(1). The Criminal Code provides: 2 In this Act, ...“explosive substance” includes (

a) anything intended to be used to make an explosive substance, (

b) anything, or any part thereof, used or intended to be used, or adapted to cause, or to aid in causing an explosion in or with an explosive substance, and (

c) an incendiary grenade, fire bomb, molotov cocktail or other similar incendiary substance or device and a delaying mechanism or other thing intended for use in connection with such a substance or device. 82(1) Every person who, without lawful excuse, the proof of which lies on the person, makes or has in the possession or under the care or control of the person any explosive substance is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years. [ 26 ] The definition of “explosive substance” in s 2 includes not only an incendiary device, but extends to anything intended to be used or to aid in causing an explosion in or with an explosive substance. [ 27 ] In R v KDSA , 2010 NBCA 24 , 253 CCC (3d) 556, the Court considered the definition of “explosive substance” in s 2 and concluded that it is not necessary that the device function properly in order to meet the legal definition of “explosive substance”. [ 28 ] In this case, the evidence before the judge included the testimony of the officers and a photograph.

There was evidence as to the appearance of the items, the manner and location of storage of the items, as well as the presence in the residence of various illicit drugs, drug paraphernalia, a stab vest, and a baseball bat with the inscription described earlier. [ 29 ] Applicant’s counsel argued that the wording on the items is hearsay. However, in my view, the veracity of the wording on the items is not essential to the decision to commit for trial.

The wording, whether true or not, was part of the overall appearance of the items which could reasonably give rise to an inference as to what the Applicant intended to use it for. The case law supports the conclusion that a jury would not be required to go so far as to find that the items functioned properly as explosive devices in order to find the Applicant guilty under s 82(1). Conclusion [ 30 ] I find that the decision committing the Applicant for trial on Count 2 is not reviewable. Even if it were, the judge did not

exceed his jurisdiction in finding that there was some evidence upon which a reasonable jury properly instructed could return a verdict of guilty. Heard on the 20 th day of January, 2016. Dated at the City of Edmonton, Alberta this 25 th day of January, 2016. D.C. Read J.C.Q.B.A. Appearances: Anna M. Konye Sprake, Song & Konye for the Applicant Jared A. Bialowas Office of the Director of Public Prosecutions for the Respondent