R. v. MacLeod (J.M.) et al., 2013 MBCA 48

Citation: R. v. MacLeod (J.M.) et al., 2013 MBCA 48 Date: 20130613 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Barbara M. Hamilton Madam Justice Holly C. Beard Madam Justice Diana M. Cameron Docket: AR 12-30-07736 ) BETWEEN : ) ) HER MAJESTY THE QUEEN ) ) D. V. Gunn Respondent ) for the Appellant ) J. M. MacLeod - and - ) ) JUSTIN MILES MACLEOD ) J. A. Weinstein ) for the Appellant (Accused) Appellant ) D. D. I. Powell ) - and - ) ) E. A.

Thomson Docket: AR 12-30-07878 ) for the Respondent BETWEEN : ) ) HER MAJESTY THE QUEEN ) Appeal heard: ) March 12, 2013 Respondent ) ) - and - ) Judgment delivered: ) June 13, 2013 DESTINY DIANE IRENE POWELL ) ) (Accused) Appellant ) CAMERON J.A. Introduction 1 Following a joint trial before a Provincial Court judge, Justin MacLeod and Destiny Powell were convicted of the offences of possession of a restricted weapon without a licence, possession of a firearm with the serial number defaced, and breach of recognizance (MacLeod only).

All of 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. 2 The case against the accused was based solely on circumstantial evidence. They have appealed their respective convictions on the basis that they are unreasonable.

They assert 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. 3 For the reasons that follow, I agree that, given the evidence in this case, the trial judge erred in finding that possession was proven beyond a reasonable doubt. Facts 4 At the trial, the Crown called one witness, Cst. Evans. He testified that, in February 2010, the Winnipeg Police Service executed a search warrant for the residence of the accused. At the time of the search, three adults, MacLeod, Powell and a male

identified as Mr. Godfrey, were in the house. A Manitoba Hydro bill in the names of MacLeod and Powell for the month of December 2009 was located inside the house. MacLeod and Powell agreed that they resided at the house at the time of the search, but they did not agree to the length of time that they had been residing there. 5 Constable Evans testified that he was at the scene to assist in the search. He said that he originally intended to search the dog run located outside, and to the rear, of the house. However, he was unable to do so because there was a vicious 100-pound Rottweiler dog in the run.

He described the run as being located between a deck (accessible from the house) and the back lane. The run was “L” shaped, enclosed by a six-foot fence at the back lane. On the other side (the side adjacent to the neighbor’s property) it was enclosed by a three and one-half-foot chain link and lattice fence. Large shrubs and debris ran along the chain link fence. All of the ground was covered in snow, and inside the run, there was a considerable amount of urine and feces. There were dog prints in the snow in the run, but no human prints.

A shelter had been constructed of bales of hay at one end of the run. 6 Constable Evans testified that he enlisted the aid of the canine unit to remove the dog from the run, thereby allowing him to search it. In the run, he located a loaded nine-millimetre, semi-automatic handgun that was wrapped tightly in a plastic bag and secured with packing tape. The gun was located approximately one foot inside the rear fence and buried under three inches of packed snow. Constable Evans testified that he had to dig in the snow to remove the gun.

Later examination showed that there was a bullet loaded in the chamber of the gun, and the serial number had been removed. Decision of the Trial Judge 7 The trial judge reviewed the jurisprudence respecting possession. She acknowledged that, in this case, the evidence of possession was wholly circumstantial.

She stated that, in order to convict, it was necessary for her to be satisfied beyond a reasonable doubt that the only rational inference that could be drawn from the evidence was that “either or both” (at para. 22) of the accused had knowledge of, and control over, the gun. 8 After reviewing the evidence, the trial judge made the following observations (at paras. 23-25): …. The officer’s evidence and the pictures provided of the dog run, the condition of the run and the amount of dog feces in the run suggest that at least one dog spent significant time in the run.

The aggressive reaction by the dog when the officer tried to reach into the run also suggests that not just anyone could enter the dog run without some jeopardy. It would need to be someone who could control the dog. .… The manner in which it [the gun] was wrapped and sealed suggests an attempt to protect the gun from the elements while still leaving it at the ready. The care with which it was wrapped and where it was located is not something one might expect to see if someone had been running down the back lane and threw the gun away in a quick effort to get rid of it.

There was no surveillance of the house and the dog run to determine whether or not this particular dog was the one which spent the most time in the run and how long he did on any particular occasion, whether there were regular times that the dog run was empty. But as referenced above, the dog run was well-used. The bales of hay appear to have been put there for, and used as, shelter. There was no evidence of any other dogs on the property.

The Rottweiler was occupying it when the officers executed the search warrant. 9 Appropriately, in my view, at the hearing of this appeal, the above statements were treated by counsel as inferences drawn by the trial judge. 10 Based on all of the evidence, the trial judge concluded (at para. 27): In considering the evidence, in particular the location of the gun, the manner in which it was wrapped and the difficulty accessing it, I am satisfied the accused had knowledge of the gun’s presence.

Rationally, the only inference to be drawn, absent any other evidence, is that one or more occupants of the residence would have the ability to control the dog and therefore have access to the dog run where the gun was buried. Whether or not the gun was for their use or it was on their property for the convenience of someone else, they had the ability to control access to it. Whoever controlled the dog controlled access to the gun. As a result, I find they were jointly in “possession” of the gun. [emphasis added]

Grounds of Appeal 11 The accused raised the following four grounds of appeal: 1. The verdict was unreasonable and unsupported by the evidence. 2. The trial judge misapprehended pieces of evidence central to the reasoning process which gave rise to a miscarriage of justice. 3. The trial judge erred in finding that the Crown had proven its case beyond a reasonable doubt. 4. The trial judge erred in failing to consider the evidence and arrive at a verdict separately in regard to each accused. Grounds One and Two 1. The verdict was unreasonable and unsupported by the evidence. 2.

The trial judge misapprehended pieces of evidence central to the reasoning process which gave rise to a miscarriage of justice. 12 The first two grounds were dealt with by the accused in support of their argument that the trial judge misapprehended the evidence. These grounds do not require substantial analysis and will be dealt with together. 13 At the outset, the accused state that the verdict was unreasonable because the trial judge mentioned twice in her written decision that Cst. Evans testified that he was told where to look for the gun.

They say that this evidence constituted impermissible hearsay and that the trial judge misapprehended its nature by relying on it to convict them. They say that this material misapprehension was central to her decision to convict. 14 The Supreme Court of Canada dealt with the effect of a material misapprehension in R. v. C.L.Y. , 2008 SCC 2 , [2008] 1 S.C.R. 5 , stating that “the misapprehension must ‘play an essential part not just in the narrative of the judgment but “in the reasoning process resulting in a conviction”’” (at para. 19).

A review of the trial judge’s decision, in its entirety, shows that her reference to Cst. Evans’ testimony on this point was in no way germane to the reasons she gave for convicting the accused. That is, it did not play an essential

part in her reasoning process resulting in the conviction. Therefore, the accused’s argument on this point cannot succeed. 15 Next, the accused state 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. In this regard, they say that she gave no weight to their arguments that:

a) it was possible that someone other than the owners of the residence put the gun on the property;

b) there was no forensic evidence as to how much time the dog spent in the dog run;

c) there was no evidence regarding how long the accused had occupied the premises; and,

d) another person was present in the residence when the warrant was executed who could have put it there. 16 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. See R. v. Grant , 2009 SCC 32 at para. 129 , [2009] 2 S.C.R. 353 . The accused have failed to show that the trial judge committed any palpable and overriding error in the inferences that she drew. Grounds Three and Four 3.

The trial judge erred in finding that the Crown had proven its case beyond a reasonable doubt. 4. The trial judge erred in failing to consider the evidence and arrive at a verdict separately in regard to each accused. 17 Unlike grounds one and two, the final two grounds of appeal are more substantial. They are somewhat intertwined and, therefore, will be dealt with together.

Position of the Parties The Accused’s Position 18 Regarding their argument that the evidence presented was insufficient to support the finding of guilt, the accused state that the mere existence of any rational, non-guilty inference is sufficient to raise a reasonable doubt. For this proposition they rely on R. v. Griffin , 2009 SCC 28 at paras. 33-35 , [2009] 2 S.C.R. 42 . 19 The accused contend that, in circumstances such as these, where there is non-exclusive occupation of a residence or property, the jurisprudence confirms that it is unsafe to infer knowledge from that occupancy alone.

Rather, something more is required, such as the impugned object being in plain view or in an area where the accused can be presumed to have knowledge of it. 20 Furthermore, the accused contend that the trial judge erred when she failed to consider the evidence against each of them separately. In doing so, she failed to recognize that a rational explanation for each accused was that the other was in possession of the gun. Absent some evidence to prove that each had knowledge of the gun, possession of it could not be proven.

The Crown’s Position 21 The Crown emphasizes that review by this court does not involve second guessing the trial judge. Furthermore, relying on R. v. Wu (W.Y.) , 2010 BCCA 589 at paras. 26-27 , 298 B.C.A.C. 84 , it states that this court ought not to require a standard of proof of

certainty, such that every potential competing possibility could potentially negate the trial judge’s finding. 22 The Crown agrees that occupancy does not necessarily equate to possession. However, it emphasizes thatcircumstantial cases require an assessment of the cumulative effect of all of the evidence, as opposed to looking at individual pieces ofevidence in isolation. The Crown says that, in this case, the trial judge considered all of the evidence when she found the accused guilty.

The Crown contends that the residents of the home were easily implicated in possession of the gun. 23 In response to the contention that a finding of joint possession could not be made against the accused, the Crown relieson the fact that the dog run was a shared, yet restricted, area of the residence where both parties could be inferred to have knowledge ofits contents. 24 The Crown maintains that a prima facie case was established. It argues that each of the accused had the opportunity toprovide evidence that the other, and not him or her, controlled the dog and/or dog run, but chose not to do so.

Therefore, it says that aconsideration of all of the evidence pointed to joint possession and that such an inference was not unreasonable.

Standard of Review 25 In Griffin, the Supreme Court of Canada stated that, with respect to circumstantial evidence, “in order to convict, [thetrier of fact] must be satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantialevidence is that the accused is guilty” (at para. 33). 26 The arguments raise the issue of whether the trial judge erred in concluding that the guilt of the accused was the onlyrational inference to be drawn from the circumstantial evidence.

Appellate courts across the country have held that the standard ofreview to be applied in this circumstance is the same as that for an unreasonable verdict; that is, the test set out by the Supreme Court ofCanada in R. v. Biniaris, 2000 SCC 15 at para. 36, [2000] 1 S.C.R. 381; and, R. v. Yebes, (SCC), [1987] 2 S.C.R. 168 atparas. 22-26. Specifically, the role of an appellate court, in this context, is to determine whether a properly instructed jury, actingjudicially, could have reasonably concluded that the only rational conclusion was the guilt of the accused. See R. v.

Dhillon (G.S.), 2001BCCA 555 at para. 102, 157 B.C.A.C. 124; R. v. Robinson (C.L.), 2003 BCCA 353 at para. 38, 184 B.C.A.C. 97; R. v. Antunes, 2012BCCA 104 at paras. 42-43 (QL); R. v. Walle (A.J.), 2010 ABCA 384 at para. 4, 493 A.R. 306; R. v. D.D.T., 2009 ONCA 918 at paras.12-13, 257 O.A.C. 258; R. v. Shea (S.M.) et al., 2011 NSCA 107 at para. 35, 309 N.S.R. (2d) 349, (leave to appeal to S.C.C. refused,[2012] S.C.C.A. No. 298 (QL)); and, R. v.

Henderson (H.A.), 2012 NSCA 53 at paras. 17-18, 317 N.S.R. (2d) 164. 27 In the context of circumstantial evidence, some courts have stated that the above standard of review includes anelement of correctness. For example, in Shea, Farrar J.A. stated (at para. 35): The standard of review with respect to circumstantial evidence was addressed in R. v.

Dhillon, 2001 BCCA 555, where the Court held at¶ 102: 102 Since the Crown’s case is entirely circumstantial, it seems to me that this court must determine whether a properly instructed jury,acting judicially, could have reasonably concluded that the only rational conclusion to be reached from the whole of the evidence is thatthe appellant murdered the victim.

Within such an inquiry, the standard of review for an error is correctness. …. 28 In this case, I conclude that the trial judge’s decision was unreasonable in that a properly instructed jury could not havereasonably concluded that the only rational conclusion was the guilt of each accused. Therefore, I need not consider whether thecorrectness standard has a place within the unreasonableness analysis. I leave that determination to another day. Analysis 29 In this case, there is no direct evidence of personal possession.

Therefore, reliance must be placed on theconstructive possession provision found in s. 4(3)(a)(ii) of the Criminal Code and/or the joint possession provision found at s. 4(3)(b). 30 Possession is defined in s. 4(3) of the Criminal Code as follows: Possession

(3) For the purposes of this Act, (

a) a person has anything in possession when he has it in his personal possession or knowingly

(

i) has it in the actual possession or custody of another person, or (ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person;and (

b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall bedeemed to be in the custody and possession of each and all of them. [emphasis added] 31 In R. v. Pham (2005), (ON CA), 77 O.R. (3d) 401, leave to appeal to S.C.C. refused, [2005]S.C.C.A.

No. 363 (QL), Kozak J. (sitting ad hoc), stated as follows regarding the basic principles of constructive and joint possession ins. 4(3) (at paras. 15-16, 18): In order to constitute constructive possession, which is sometimes referred to as attributed possession, there must be knowledge whichextends beyond mere quiescent knowledge and discloses some measure of control over the item to be possessed. See R. v. Caldwell(1972), 1972 ALTASCAD 33 , 7 C.C.C. (2d) 285, [1972] 5 W.W.R. 150 (Alta. S.C. (A.D.)); R. v. Grey (1996), (ON CA), 28 O.R. (3d) 417, [1996] O.J. No. 1106 (C.A.).

In order to constitute joint possession pursuant to s. 4(3)(

b) of the Code there must be knowledge, consent, and a measure of control onthe part of the person deemed to be in possession. See R. v. Terrence, (SCC), [1983] 1 S.C.R. 357, 147 D.L.R. (3d) 724;R. v. Williams (1998), (ON CA), 40 O.R. (3d) 301, [1998] O.J. No. 2246 (C.A.); R. v. Barreau, (BCCA), [1991] B.C.J. No. 3878, 19 W.A.C. 290 (C.A.); and R. v. Chambers, (ON CA), [1985] O.J. No. 143, 20 C.C.C.(3d) 440 (C.A.). The onus is on the Crown to prove beyond a reasonable doubt, all of the essential elements of the offence of possession.

This can beaccomplished by direct evidence or may be inferred from circumstantial evidence. In R. v.

Chambers, supra, at p. 448 C.C.C., MartinJ.A. noted that the court may draw “appropriate inferences from evidence that a prohibited drug is found in a room under the control ofan accused and where there is also evidence from which an inference may properly be drawn that the accused was aware of the presenceof the drug”. 32 It must be emphasized that, in order to prove knowledge, there must be some evidence that allows for an inference to bedrawn 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. 33 The application of the law involving constructive and/or joint possession is heavily dependent on the facts of eachcase. A review of the jurisprudence shows that, in cases of non-exclusive occupation, there must be some evidence from whichknowledge can be inferred on the part of each accused. Furthermore, mere occupancy is not necessarily sufficient to infer knowledge. 34 For example, in R. v.

Haggarty, (BC CA), [1947] 3 D.L.R. 335, a mould capable of being used in themanufacture of counterfeit coins was found in an ice-cream freezer buried in a rose garden of the home occupied by the accused, hiswife, his mother and his brother. In that case, the British Columbia Court of Appeal held that the trial judge erred when he instructed thejury that, when considering the circumstances in which the mould was found, it would be open to them to conclude that it was buriedthere with the accused’s knowledge and that it was in his custody, absent any other evidence. Rather, the court held that the reverse wastrue.

It stated (at p. 336): …. In my view the mere finding of an

article buried in the garden of a householder does not, in itself, and in the absence of someevidence indicating his knowledge of its existence, or consent to its remaining in that place, or some other surrounding circumstancesfrom which a reasonable inference could be drawn inculpating the householder, discharge the burden of proof of possession resting uponthe Crown and thrust upon him the necessity of furnishing evidence of his own innocence. 35 The Haggarty decision was followed by the Ontario Court of Appeal in R. v. Grey (1996), (ON CA),28 O.R. (3d) 417.

In Grey, the accused was a frequent visitor to his girlfriend’s apartment. Police executed a search warrant and foundcrack cocaine hidden in her bedroom. Others also lived at the apartment. In overturning the decision of the trial judge, Laskin J.A.,writing for the court, referred to Haggarty with approval and ultimately concluded (at p. 423):

I would not prescribe a firm rule for inferring knowledge from occupancy: cf. R. v. LePage, (SCC), [1995] 1 S.C.R.654, 36 C.R. (4th) 145. In the present case no other evidence connected the appellant to the drugs, there was no direct evidence ofknowledge, the drugs were hidden, the apartment was rented by the co-accused, other persons frequented the apartment, and theappellant was not a permanent occupant. The circumstantial evidence does not therefore support a finding that the appellant hadknowledge of the crack cocaine.

Accordingly, the finding that the Crown had proved possession was unreasonable. 36 In Manitoba, the concept of constructive possession was considered by this court in R. v. Carpentier (R.J.), 2005MBCA 134, 201 Man.R. (2d) 1. In that case, the accused was subject to an order terminating a conditional sentence on the basis that hebreached it by possessing a weapon. During the course of the execution of a warrant for the accused’s brother, who was thought to behiding out at the residence, the police seized a shotgun hidden under a mattress in one of the bedrooms of the house.

The police assumedthe bedroom belonged to the accused because it contained only a mattress and box spring, condom wrappers and cigarette packages. The other bedrooms in the house appeared to be occupied by the accused’s cousin and her children. In finding that the Crown had notproven, on a balance of probabilities, that the accused was in constructive possession of the gun, Steel J.A. reviewed s. 4(3) of theCriminal Code and stated (at para. 21): Knowledge must co-exist with some act of control. It is not enough that he knew the gun was there; the Crown must show someintention to exercise control over the gun.

In these circumstances, it might have been sufficient if it were shown on the balance ofprobabilities that it was his bedroom and he knew the gun was hidden under the mattress. See R v. Chambers (1985), (ON CA), 9 O.A.C. 228; 20 C.C.C. (3d) 440 (C.A.), and R. v. Terrence, (SCC), [1983] 1 S.C.R. 357; 47 N.R. 8. 37 She went on to observe that the accused’s brother was present in the house during at least part of the period of time thatthe gun was stored under the mattress.

Therefore, she concluded (at para. 26): Based on that evidence, it was impossible to state with any probability in reference to the possible use of or manipulation of the shotgunthat the accused was the only other person in the house using the bedroom or that he knew of the shotgun. 38 Often the fact that an item is in plain view in a residence is sufficient to infer knowledge. See R. v. Drury (L.W.) et al.,2000 MBCA 100, 150 Man.R. (2d) 64; R. v.

Jenner (J.P.), 2005 MBCA 44, 192 Man.R. (2d) 184; and, Wu. 39 Sometimes, even if the impugned item is hidden, the area in which it is hidden is one commonly used by the accused;therefore, it can be inferred that he or she had knowledge of the item hidden there. For example, in R. v. Singh (J.), 2004 BCCA 428,202 B.C.A.C. 283, the court held that it was reasonable to draw an inference of joint possession of a gun found hidden in a toolbox in theliving room and of ammunition found in shared areas (including the master bedroom) of a suite shared by the accused and his wife.

Specifically, the court concluded (at paras. 12-13): …. The submission that the weapon might have been placed there by a visitor to the suite seems to me purely speculative. This was notsome remote outbuilding on a large property nor was it a separate part of an occupied home as was the case in Egresits [2002 BCCA163, 165 B.C.A.C. 63].

Rather, this was the central living area of a rather small residential premises. …. .… While it might be considered that the gun discovered in the toolbox could perhaps be more naturally linked to the appellant sincemales are somewhat more likely than females to be concerned with such an item as a toolbox, the shells which were found in variouslocations in the living room and the master bedroom might be thought to be less exclusively linked to the male appellant.

As regardsthese items, it seems reasonable to me that they could be considered on the facts in this case to have been in the joint possession of bothhusband and wife. That will not necessarily be the case for any item found in premises shared by two persons. …. [emphasis added] 40 Indeed, the Crown encouraged us to rely on Singh to find that both accused had knowledge of the gun. However, Singhcan be distinguished on the basis that, in that case, the gun and ammunition were found in areas that were shared living areas of a smallsuite. In this case, the gun was buried outside in a dog run.

There is no evidence with respect to whether one, or both, of the accusedentered the dog run. I do not agree that the dog run, where the gun was found, can be equated with an area such as a living room or abedroom shared by a husband and wife, where knowledge of the contents of the room can be inferred based on its common use by thoseexercising control over it. 41 In reaching her decision, the trial judge referred to jurisprudence wherein this court has stated that, in some cases,circumstantial evidence can be so overwhelming that it “cries out for an explanation.” For example, in Jenner, the accused was

convicted as a result of the police discovering a significant amount of cocaine in a storage locker that he rented. The accused had beenunder police surveillance and had been observed carrying a duffle bag while entering the secured property where the locker was located. Aside from the owner, he was the only person with access to the locker, and the activity log for the password assigned by the storagefacility to the accused to enter the secured property showed a pattern of regular entry over a period of time. The accused had previouslybeen observed going to the locker on a number of occasions.

The locker was locked with a combination lock and to access it thecombination was required. Aside from the drugs, the police found a duffle bag of the same description as the one they observed theaccused carrying when he earlier entered the secured property. In that case, this court quoted with approval the following statement ithad earlier made in Drury (at para. 94) (at para. 17): …. There are cases, and we think this is one of them, where the mere physical control of the money and the weapons leads to an inference ofknowledge on the part of both accused.

That inference might be displaced if an explanation is offered which raises a reasonable doubt orif inferences consistent with innocence may be drawn from the proven circumstances. But in this case, no explanation was offered andno rational inference consistent with innocence is possible. 42 In this case, the trial judge similarly concluded that guilt was the only reasonable inference to be drawn, absent anyother evidence. However, the phrase “absent any other evidence” refers to a body of case law commenting on the tactical practicality ofthe defendant calling evidence in certain circumstances.

It does not displace the Crown burden to prove its case beyond a reasonabledoubt. Before reference can be made to the accused’s failure to call evidence, the Crown must first must prove on a prima facie basis,that possession by each accused was the only rational inference to be drawn. See R. v. Lepage, (SCC), [1995] 1 S.C.R.654 at para. 29.

Conclusion 43 In this case, the trial judge drew an inference that the accused had joint knowledge of the existence of the gun andcontrol over it for the reasons quoted in para. 10 of this decision. 44 Given that I have sustained all the factual inferences made by the trial judge, it was open to her to infer, as she did, thatone 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 trialjudge that, “one or more occupants of the residence” (at para. 27) could control the dog and the dog run demonstrates that she wasuncertain 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 ormore 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. 45 To consider this further, a finding of possession of the gun by one person might have been supportable on the facts ofthis case if there had been exclusive possession of the residence by that one person. That was not the case here, as the evidence was thatthe two accused were in joint possession of the residence.

Given that the two accused were in joint possession of the residence,something more than possession of the residence was required to attribute possession of the gun to each individual accused. 46 Evidence linking a person (or both) to the dog, such as evidence that that person fed, walked or cared for the dog, couldprovide a sufficient link to the dog to infer possession of the gun in the dog run. Further, evidence linking a person (or both) to the dogrun, such as footprints in the snow, could provide a sufficient link to the dog run to infer possession of the gun found in the dog run.

Aswell, evidence linking a person (or people) to a gun could be a sufficient link to infer possession of the gun by that person (or people). However, there was no such evidence in this case pointing to either of the accused. At the end of the day, evidence of joint possession ofthe residence was not sufficient to infer that each accused had control of the dog, the dog run and, ultimately possession of the gun. 47 The trial judge erred when she concluded that both of the accused had the knowledge and control required to provepossession of the gun.

As in Carpentier, the evidence was insufficient to prove possession. Therefore, no jury properly instructed,acting judicially, could have reasonably concluded that the only rational conclusion to be reached from the whole of the evidence wasthat both accused were guilty beyond a reasonable doubt. 48 In the result, I would allow the appeals, quash the convictions and substitute acquittals with respect to each of theaccused. ___________________________ J.A. I agree: ___________________________ J.A. I agree: ___________________________ J.A.