COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Al-Kazragy, 2018 ONCA 40

DATE: 20180119

DOCKET: C55728, C56431, C56570, C63611

Feldman, Fairburn and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent/

Appellant by way of
    cross-appeal

and

Mohammad Al-Kazragy,
    Payam Khastou and
Arash Arashvand

Appellants/

Respondent by way of
    cross-appeal

Erika Chozik, for the appellant Payam Khastou

Naomi Lutes, for the appellant, Mohammad Al-Kazragy

Richard Posner and Lance Beechener, for the appellant Arash
    Arashvand

Elise Nakelsky and Peter Scrutton, for the respondent
    Crown

Heard: December 11-13, 2017

On appeal from the convictions entered by Justice Michelle
    Fuerst of the Superior Court of Justice, sitting with a jury, on June 13, 2012.

CRIMINAL  First and second degree
    murder conviction appeals  Verdicts neither inconsistent nor unreasonable
    Trial judge did not err in post-offence conduct instructions  Trial judge did
    not err in circumstantial evidence instructions   Trial judge did not err
    in review of evidence in charge  Trial judge did not err in admitting expert
    evidence.

By the Court:

OVERVIEW

[1]

Mr. Al-Kazragy and Mr. Khastou appeal from their convictions for first
    degree murder. Mr. Arashvand appeals from his conviction for second degree
    murder. The appellants seek to have their convictions set aside and a new trial
    ordered. The Crown appeals against Arashvands acquittal on first degree murder.
    The Crown submits that the trial judge erred by failing to leave constructive
    first degree murder through unlawful confinement for the jurys consideration. The
    Crown only pursues this appeal, however, if Arashvands appeal from his second
    degree murder conviction succeeds.

[2]

The appellants raise a variety of grounds of appeal, most of which are
    directed at alleged errors in the trial judges charge to the jury. For the
    reasons that follow, we dismiss the appeals. In light of this conclusion, we do
    not reach the Crowns cross-appeal.

FACTUAL CONTEXT

[3]

The Crown led evidence that the appellants were close friends. Prior to
    the murder, each of the appellants expressed a dislike for the deceased. While
    their expressions of dislike varied in degree, Arashvand and Khastous
    statements included threats to kill. It appears that the appellants thought
    that the deceased had engaged in inappropriate behaviour with certain young
    women who were the appellants friends. These young women denied any such
    inappropriate behaviour by the deceased.

[4]

During the early evening of November 6, 2008, the deceased was last seen
    alive in north Toronto. A few hours later, his body was found burning in a
    ditch on a deserted road near Barrie. He had been stabbed over 20 times. Two of
    the stab wounds penetrated his heart and three pierced his lung.

[5]

A few hours after the deceaseds burning body was found, the appellants
    showed up, unannounced, at a friends home in the Toronto area in the middle of
    the night. Among other things, the friend testified about seeing blood on
    Al-Kazragys clothes, a knife, and Khastous car being cleaned. A few hours
    later, the appellants proceeded to an auto repair shop, where they were caught
    on video conducting a thorough cleaning of Khastous vehicle. This included
    burning items taken from the car. A few days later, the appellants fled to
    Vancouver. Over a week later, Khastou and Al-Kazragy were apprehended in
    Calgary. Arashvand returned to Toronto and eventually turned himself in to the
    police.

[6]

Given the amount and location of blood in Khastous vehicle, the Crown
    theorized that the deceased was stabbed multiple times in the front passenger
    seat of the car and his body was then placed into the trunk and transported to the
    deserted road where it was set on fire. Tire tracks found at the deserted road were
    consistent with Khastous vehicle. The cell towers used by Arashvand and
    Khastous cell phones show a pattern consistent with a route north from Toronto
    toward the Barrie area where the deceaseds body was found.

[7]

The Crown led evidence that Khastou purchased duct tape and a gas can
    only hours before the murder. Around the same time that Khastou made these purchases,
    Arashvand purchased a SIM card, apparently for his girlfriend, at a store less
    than 100 metres away. A short time later, Khastou and Al-Kazragy were caught on
    video at an Esso station where Khastou purchased ethanol gasoline.

[8]

The appellants were jointly tried for first degree murder. The jury
    trial took about six months to complete. The live issue at trial was the identity
    of the perpetrator or perpetrators of the murder. Each of the appellants
    alleged, in essence, that they did not participate in the murder but that the
    other two appellants likely did. Although they did not testify, each of the
    appellants claimed, through their counsels closing addresses, that they only
    assisted the others in their subsequent attempt to conceal the killing.

[9]

We now turn to the arguments on the appeals.

ISSUES AND ANALYSIS

(i)

Inconsistent verdicts

[10]

The
    appellants all rely on this ground of appeal. They submit that the convictions
    of two of them for first degree murder, and the third for second degree murder,
    are inconsistent and/or unreasonable verdicts. In particular, the appellants
    suggest that the jury reached an improper compromise verdict by convicting
    Arashvand of second degree murder when the evidence, properly considered, did
    not allow them to differentiate among the appellants in terms of their levels
    of participation in the murder. We do not agree.

[11]

For
    an appellate court to interfere with a verdict on the basis that it is
    inconsistent, the court must conclude that the verdict is unreasonable:
R.
    v. Pittiman
, 2006 SCC 9, [2006] 1 S.C.R. 381, at para. 6. Whether the
    result is properly characterized as an inconsistent or unreasonable verdict,
    the test to reach such a conclusion is high. In
Pittiman
, Charron J.
    said, at para. 7:

The onus of establishing that a verdict is unreasonable on the
    basis of inconsistency with other verdicts is a difficult one to meet because
    the jury, as the sole judge of the facts, has a very wide latitude in its
    assessment of the evidence. The jury is entitled to accept or reject some, all
    or none of any witnesss testimony. Indeed, individual members of the jury need
    not take the same view of the evidence so long as the ultimate verdict is
    unanimous. Similarly, the jury is not bound by the theories advanced by either
    the Crown or the defence. The question is whether the verdicts are supportable
    on any theory of the evidence consistent with the legal instructions given by
    the trial judge.

[12]

On
    this point, we also refer to
R. v. Catton
, 2015 ONCA 13, 329 O.A.C.
    354, where Doherty J.A. said, at para. 22:

Verdicts that may at first impression appear inconsistent can
    often be explained by distinctions in the essential elements of the different
    offences or in the quality of the evidence relevant to the different offences.

[13]

The
    differing verdicts in this case are explainable.

[14]

The
    evidence relating to Arashvand was different than the evidence relating to the
    other two, particularly in the period of time leading up to when the deceased
    was last seen alive. There was direct evidence connecting Khastou to the
    purchase of the gas can and duct tape and direct evidence connecting Khastou
    and Al-Kazragy to the purchase of the gas. Although he was nearby, Arashvand
    was not involved in these purchases. This was important evidence upon which the
    jury could draw an inference of planning and deliberation. It was evidence upon
    which the jurors, as the sole judges of the facts, may well have drawn a
    distinction between Arashvand and the others.

[15]

The
    verdicts are understandable in light of this different body of evidence. They
    are neither inconsistent nor unreasonable. This ground of appeal must fail.

(ii)

Post-offence conduct

[16]

Among
    other things, the post-offence conduct involved the burning of the deceaseds
    body; the clean-up of Khastous vehicle; the flight to Vancouver; and certain
    statements made on arrest. The appellants agree that the burning of the deceaseds
    body was relevant to the issue of planning and deliberation, and take no
    objection to the trial judges charge in this regard. Their objection relates
    to the trial judges treatment of the other post-offence conduct.

[17]

The
    appellants submit that the trial judge should have removed the post-offence
    conduct from the jurys consideration in determining whether any of them was a
    party to the murder. They maintain that because the post-offence conduct
    evidence is equally consistent with them being accessories after the fact to
    murder, as it is with them being parties to the murder, the jury should have
    been instructed to ignore the evidence as it related to the primary issue for
    determination: who committed the murder? The appellants take the position that,
    at a minimum, the post-offence conduct evidence relating to flight should have
    been taken from the jurys consideration on the issue of identity. The
    appellants rely upon
R. v. White
, 2011 SCC 13, [2011] 1 S.C.R. 433 (
White
    (2011)
), where Rothstein J. said, at para. 37:

Arcangioli
, and
    its successor case
White (1998)
,
    stand for the proposition that a no probative value instruction will be
    required when the accused's post-offence conduct is equally explained by or equally
    consistent with two or more offences (
White
    (1998)
, at para. 28;
Arcangioli
,
    at pp. 145 and 147).

[18]

We
    see no error in the trial judges approach to the post-offence conduct evidence
    in this case. She gave a careful ruling and correctly noted that in
White
    (2011)
, at para. 137, Binnie J. commented that it is generally for the
    jury to decide,

on the basis of the evidence as a whole, whether the
    post-offence conduct put in evidence against the accused is related to the
    commission of the crime before them rather than to something else, and if so,
    how much weight, if any, such evidence should be accorded in the final determination
    of guilt or innocence.

[19]

The
    trial judge correctly noted that while Binnie J. was in dissent in the result,
    his legal analysis on this point formed the majority view: see
White (2011)
,
    at para. 105.

[20]

The
    trial judge concluded that the live issue at trial was the identity of the
    perpetrators, specifically, whether the appellants caused the death. She found
    that the post-offence conduct had a tendency, as a matter of logic, common
    sense and human experience, to help resolve the live issue for the jurys
    determination. While the evidence may also have been informative of their
    involvement in the crime of accessory after the fact to murder, it was evidence
    that could be used by the jury on the issue of identity. It had nothing to do
    with the level of culpability.

[21]

In
R. v. White
, [1998] 2 S.C.R. 72 (
White (1998)
), the court
    observed that a no probative value instruction is not required where the
    accused denies involvement in the charged offence, and seeks to explain his or
    her conduct by an unrelated culpable act. In these circumstances, it will
    almost invariably fall to the jury to decide whether the evidence of
    post-offence conduct can be attributed to one culpable act rather than another:
White (1998)
, at para. 29. See also:
R. v. Kostyk
, 2014 ONCA
    447, 321 O.A.C. 256, at paras. 92-95. The trial judge did not commit any error
    in coming to a similar conclusion here.

[22]

The
    trial judge gave a clear instruction to the jury about the post-offence
    conduct. She said:

You must be very careful not to immediately conclude that what
    a particular defendant said or did after [the deceased]s death is related to
    the killing itself. The position on behalf of each defendant is that he did not
    participate in the killing itself but he was involved in steps to conceal the
    killing after it happened, which is itself a serious matter. The position of
    each defendant is that what he did or said after [the deceased]s death is
    related to his involvement in concealing the killing and not to the killing
    itself. Additionally, the position on behalf of Mr. Al-Kazragy is that lying
    about his identity to the police in Calgary is related to possession of drugs
    and not to the killing itself.

[23]

The
    jury was made aware of how to approach the evidence. We see no error in the
    trial judges conclusion on this point, nor any unfairness in the manner in
    which she instructed the jury on the post-offence conduct. The evidence was potentially
    all relevant to the issue of identity. It was up to the jury to decide whether
    they would draw the inference urged upon them by the Crown.

(iii)

R. v. Villaroman

[24]

Al-Kazragy
    and Khastou submit that the trial judges charge on circumstantial evidence
    does not comply with the requirements set out in
R. v. Villaroman
, 2016
    SCC 33, [2016] 1 S.C.R. 1000. In particular, the appellants claim that the
    trial judge should have provided the jury with an example, like the one set out
    in
Villaroman
, highlighting how to approach the circumstantial
    evidence in this case.

[25]

The
    decision in
Villaroman,
released
    subsequent to the jury charge,
did not establish any set
    instructions that must be included in a jury charge on the subject of
    circumstantial evidence. Justice Cromwell noted in
Villaroman
, at
    para. 22, that while it may be helpful for the jury to receive instructions
    that will assist them to understand the nature of circumstantial evidence and
    the relationship between proof by circumstantial evidence and the requirement
    of proof beyond reasonable doubt, no set instructions are required.

[26]

Justice
    Cromwell emphasized that there are various ways in which to provide assistance
    to the jury so that they understand the risk of jumping to conclusions, and
    that trial judges will provide this assistance in the manner they consider
    most appropriate in the circumstances:
Villaroman
, at para. 31.

[27]

We
    are satisfied that the trial judge provided the jury with the assistance
    necessary to understand how to approach this largely circumstantial case. The
    trial judge instructed the jury in accordance with the model jury instructions.
    The trial judge told the jury:

This case rests on circumstantial evidence. I will speak with
    you shortly about the difference between direct and circumstantial evidence. In
    order to convict a particular defendant in this case, you must be satisfied
    beyond a reasonable doubt that the only rational inference that can be drawn
    from the circumstantial evidence is that the particular defendant is guilty.
    Bear in mind that the standard of proof beyond reasonable doubt does not apply
    to the individual pieces of evidence that make up the Crowns case, but to the
    total body of evidence upon which the Crown relies to prove guilt.

[28]

The
    jury was clearly instructed on the difference between direct and circumstantial
    evidence. The jury was also instructed that they must not speculate. We are
    satisfied that the jury properly understood how to approach the use of
    circumstantial evidence and how it related to the issue of reasonable doubt.

(iv)

Functional approach in the jury charge

[29]

Al-Kazragy
    maintains that the case against him was much weaker than the case against his
    co-accused. He suggests that the trial judge erred in failing to specifically
    relate the weak evidence against him to the main issue to be decided: whether
    he participated in the killing. He places a particular emphasis on the fact
    that there was no evidence directly linking him to the purchase of the gas can,
    duct tape, or gas. On the latter point, while there was video evidence placing Al-Kazragy
    at the gas station shortly after Khastou bought the gas can, Al-Kazragy
    emphasizes that there was no direct evidence actually showing him present when
    the gas can was filled.

[30]

Al-Kazragy
    also emphasizes that, unlike his co-accused, his cell phone did not bounce off
    towers in a pattern indicative of a journey to Barrie, where the deceaseds
    body was found on fire. However, this was also consistent with him not using
    his cell phone during this period of time. Also, this submission must be seen
    in the context of the evidence that showed Al-Kazragy with the other accused
    before and after the murder. Since there was no evidence of there being any car
    other than the one belonging to Kastou (which was clearly implicated in the
    murder), there was nothing to detract from the available inference that
    Al-Kazragy was likely travelling with the other two.

[31]

We
    do not find any error on this ground. The trial judge thoroughly reviewed all
    of the evidence in this very lengthy trial. Indeed, all counsel commended the
    quality and thoroughness of the charge in this regard. We are satisfied that,
    at the completion of this review, the jury would have well understood any
    difference in the strength of the evidence as it related to each accused. With
    respect to the cell phone evidence, the trial judge specifically highlighted
    for the jurys attention that the Al-Kazragy cell phone did not make or receive
    calls during the time period when the body would have been transferred to
    Barrie. In addition, insofar as the jury needed a roadmap through the evidence,
    this was provided by the trial judge when she summarized counsels closing
    submissions.

[32]

This
    ground of appeal must also fail.

(v)

Blood expert

[33]

Al-Kazragy
    also takes issue with the expert evidence regarding whether the deceaseds
    blood found under a ring that he was wearing was diluted or not. The Crowns theory
    was that if the blood was not diluted, then it settled on the ring during the
    murder and not during the clean-up where water was used. An expert was
    permitted to testify about the non-diluted nature of the blood on the ring.

[34]

This
    challenge is based both on the alleged lack of qualifications of the expert and
    the methodology that he used in reaching his opinion. On the first point, the
    trial judge accepted that the expert was properly qualified. He had many years
    of experience as a forensic biologist with the Centre of Forensic Sciences. No
    suggestion was made as to what other qualifications the proposed expert would
    be expected to have to be qualified to give this opinion. Similarly, the
    methodology that the expert used to reach his opinion was not countered by any
    suggestion of a different or better methodology that ought to have been used.
    The trial judge concluded that the opinion was probative of an issue, and that
    its probative value exceeded any possible prejudicial effect. It was up to the
    jury to decide what use to make of it. The jury received a proper and detailed
    instruction about how to properly approach the expert evidence. Further, the
    conclusions of the trial judge on these matters are entitled to deference.

(vi)

The 9:27 telephone call from Mason to Arashvand

[35]

Arashvand
    takes issue with the trial judges instruction to the jury regarding a
    telephone call that took place at 9:27 p.m., between his phone and another
    phone that apparently belonged to an individual named Mason. The call was
    connected for one minute and 14 seconds. Mason did not give evidence at the
    trial. Arashvand submits that this telephone call had the potential to
    establish that he was not with the other two accused at the time that the
    deceased was killed. In particular, Arashvands trial counsel suggested to the
    jury that Arashvand would not have taken a telephone call if he was in the
    middle of participating in the murder. He also made a suggestion that there was
    some impropriety on the part of the Crown by failing to call Mason as a
    witness.

[36]

Both
    the Crown and counsel for Khastou took objection to the Mason comments made
    during the closing address of Arashvands counsel. The trial judge gave an
    immediate curative instruction, including telling the jury that the Crown was
    under no obligation to call Mason as a witness.

[37]

Arashvand
    does not take issue with the immediate curative instruction. Instead, he
    focuses on the trial judges charge related to the Mason call. The impugned
    instruction follows:

With respect to that call, there is no evidence before you that
    Mr. Arashvand took a call in the sense of speaking to anyone. There is no
    evidence of a conversation, or whether a conversation even took place, or of
    the relationship between Mr. Arashvand and the caller.

[38]

These
    observations are correct as they relate to the direct evidence. There was no
    direct evidence that Arashvand spoke to Mason. While it might have been
    preferable if the trial judge had used the expression direct evidence (since
    a circumstantial inference of a conversation might have been drawn from the
    length of the call), we do not accept that the jury would have been left in any
    confusion on this point. It would have been clear to the jury that the trial
    judge was referring to direct evidence of a conversation.

[39]

The
    charge must be read in context. In reviewing the closing address of Arashvands
    counsel, the jury was clearly told that Arashvands position was that there
    were five key pieces of evidence that led to the reasonable inference that
    Arashvand was not involved in the murder. In listing these five pieces of
    evidence, the trial judge specifically reviewed the phone records showing the
    Mason call. She went on to explain counsels position that [i]f Mr. Arashvand
    were involved in the killing, he would not have accepted this call at this
    critical time.

[40]

We
    are satisfied that the jury knew they could draw a circumstantial inference
    that Mason and Arashvand spoke for 1 minute and 14 seconds at 9:27 p.m. We
    would add the observation that, even if the jury was satisfied that this conversation
    had taken place, it was dispositive of nothing. The exact timing and location of
    the murder were unknown. The exact location of Arashvand at the time of the
    Mason call was unknown. Even if the conversation occurred, it did not preclude
    Arashvands participation in the murder.

[41]

We
    would not give effect to this ground of appeal.

(vii)

Khastous Objection to Arashvands Closing

[42]

Khastou
    objects to a number of aspects of Arashvands counsels closing address (not
    counsel on appeal), including: (a) commenting on Khastous failure to make out
    the defence of alibi; (b) attacking the credibility and integrity of opposing
    counsel; (c) raising a speculative alibi defence; (d) contravening agreements
    with other counsel and the direction of the trial judge; and (e) misstating the
    evidence. These arguments were advanced to varying degrees in oral argument. We
    do not accept them.

[43]

The
    alibi issue was canvassed ahead of counsels closing. With the input of
    Khastous counsel, parameters were placed on what Arashvands counsel could
    say. In the result, Arashvands counsel did not use the word alibi in his
    closing address.

[44]

It
    was entirely open to counsel for Arashvand to mention the failed effort by
    counsel for Khastou to distance Khastou from the murder, in a situation where
    all counsel knew that all of the appellants were advancing a cut throat
    defence. Further, if the issue was as serious as Khastou now portrays it to be,
    including the submission that the problem was not capable of being remedied by
    the trial judge, it should have been the subject of an application for a
    mistrial. Yet no such application was brought.

[45]

We
    would add that a suggestion by Arashvand that the evidence established Khastou
    was present for the murder was hardly surprising or prejudicial. The murder
    occurred in his vehicle.

[46]

As
    for the suggestion that Arashvands closing impugned the integrity of Khastous
    counsel, there was no objection taken. Trial counsel was in the best position
    to determine whether a curative instruction was necessary. His silence on the
    point is telling.

[47]

Khastou
    also complains that Arashvands counsel led what is characterized as a
    speculative alibi defence. This complaint again relates to the Mason call.
    We have addressed that issue above. We do not see any prejudice that could
    reasonably be said to have been occasioned to Khastou arising from the fact
    that Arashvand said he could not be involved in the murder because he was on
    the phone with Mason at the time. In any event, having convicted Arashvand of
    murder, the jury clearly rejected the suggestion put by his counsel.

[48]

Khastou
    maintains that Arashvands counsel undermined an agreement regarding the
    treatment of evidence of Arashvands blood in Khastous vehicle. Given the
    agreement in place, Khastou argues that he was the subject of unfair criticism when
    counsel for Arashvand suggested he failed to cross-examine on the point. To the
    extent that Arashvands counsel contravened any prior agreement, it was
    entirely remedied in the charge where the trial judge told the jury to take
    nothing from the failure to ask questions on this issue.

[49]

To
    the extent that Arashvands counsel may have misstated some evidence, or asked
    the jury to draw improper inferences, counsel was directed to correct his
    misstatements and the trial judge took corrective action in her charge. For
    instance, following upon Arashvands counsels suggestion that Khastou failed
    to cross-examine a witness about a matter that counsel later agreed upon, the
    trial judge instructed the jury that they were to take nothing from the fact
    that when [the witness] testified  he was not asked questions on this point.

CONCLUSION

[50]

None
    of the grounds of appeal succeed. The appeals against conviction are dismissed.
    In light of this conclusion, we do not reach the cross-appeal.

Released: January 19, 2018

K. Feldman J.A.

Fairburn J.A.

I.V.B. Nordheimer
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Bebonang, 2018 ONCA 30

DATE: 20180115

DOCKET: C61539

Laskin, Cronk and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Darryl Bebonang

Appellant

Paula Rochman, for the appellant

Amy Alyea, for the respondent

Heard: January 8, 2018

On appeal from the conviction entered on June 8, 2012 and
    the sentence imposed on January 13, 2015 by Justice R. Dan Cornell of the Superior
    Court of Justice, sitting with a jury.

REASONS FOR DECISION

[1]

There is no dispute that the appellant stabbed two people. He was
    prosecuted on two counts of attempted murder. He was acquitted on one count and
    convicted of aggravated assault on the other. He was declared a dangerous
    offender and received an indeterminate sentence.

[2]

The appellant raises two grounds on his conviction appeal.

[3]

First, he argues that the two verdicts are irreconcilable. We do not
    agree. There was a logical basis upon which the jury could arrive at the
    verdicts. Given the variances in the evidence as it applied between the
    victims, and considering the legal instructions given, the different verdicts
    were available. While the stabbings occurred generally at the same time, there
    was evidence that the appellant seemed unaware of the second victims presence
    and that he was simply lashing out. The jury may well have had a reasonable
    doubt about the appellants
mens rea
on this count or about whether the
    appellant acted in self-defence. This ground of appeal must fail.

[4]

Second, the appellant argues that the trial judge erred in failing to
    limit the use that could be made of bad character evidence. The impugned evidence
    relates to the appellants assault of the complainant over fifteen years prior
    to trial. The appellant maintains that the failure to give the jury guidance on
    the use of this evidence ran the risk that the jury engaged in improper
    propensity reasoning. For the following reasons, we do not agree:

(i)

The evidence of the prior
    assault lost almost all significance in the context of the entire trial.

(ii)

The appellant agreed to the
    admission of the evidence and did not ask for a mid-trial instruction.

(iii)

While not in relation to this
    specific piece of evidence, the jury was provided with an early mid-trial
    instruction about character evidence and the fact that [w]e do not determine
    guilt or innocence based on whether someone is a good or bad person. The jury
    was specifically instructed not to follow propensity reasoning.

(iv)

The jury was instructed during
    the charge to avoid propensity reasoning, specifically as it relates to the
    appellants criminal record.

[5]

We are satisfied that the jury would have understood how to and how not
    to approach the evidence relating to the prior assault. Moreover, the parties
    were in the best position to understand the impact of this evidence and whether
    it had any prejudicial effect. The charge was thoroughly vetted in advance and
    the appellant did not suggest any deficiencies on this point. No objection was
    taken following the charge. This ground of appeal cannot succeed.

[6]

The appellant also appeals from his designation as a dangerous offender.
    He maintains that the trial judge failed to make sufficient factual findings
    regarding the index offence. The appellant argues that the trial judges
    failure to do so deprived him of the ability to adequately assess whether the
    statutory criteria in s. 753(1)(a)(i) and (ii) of the
Criminal Code
were
    met.

[7]

We disagree. The trial judge made all factual findings necessary in the
    circumstances. He concluded that the appellant used a knife to commit a
    violent assault  and inflicted serious injury upon [the victim]. While the
    trial judge could have gone further, this factual finding was sufficient to
    establish the pattern of behavior necessary to make the dangerous offender
    finding. Even if the trial judge had made further factual findings, including
    that the appellant acted in self-defence but merely used excessive force in
    doing so, it would not have changed anything. On any version of the facts, the appellants
    conduct was part of a pattern of persistent conduct sufficient to meet the
    statutory criteria for a dangerous offender designation. The trial judges
    conclusion was reasonable.

[8]

The appeal from conviction and sentence is dismissed.

John Laskin J.A.

E.A. Cronk J.A.

Fairburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Dagenais, 2018 ONCA 63

DATE: 20180125

DOCKET: C62613

Strathy C.J.O., Doherty J.A. and McCombs J. (
Ad
    Hoc
)

BETWEEN

Her Majesty the Queen

Respondent

and

Jennifer Dagenais

Appellant

Michael Dineen and Mark Halfyard, for the appellant

Randy Schwartz and Erica Whitford, for the respondent

Heard: November 7, 2017

On appeal from the conviction entered on March 23, 2016
    by Justice Dale Parayeski of the Superior Court of Justice, sitting without a
    jury.

McCombs J.
(
ad
    hoc
):

[1]

On March 23, 2016, the appellant was convicted of three counts: being an
    accessory after the fact to murder, obstructing police, and public mischief.
[1]
She appeals only
    her conviction on the accessory charge.

[2]

For the reasons that follow, I would allow the appeal and enter an
    acquittal. In my view, a review of the trial record demonstrates that the
    appellants conviction was based on a theory of liability that fell outside the
    scope of the indictment.

Overview

[3]

Tyler Johnson was shot to death on November 30, 2013 in Hamilton,
    Ontario at about 3:00 a.m. Four men, Joshua Barreira, his brother Brandon
    Barreira, Chad Davidson, and Louis Rebelo, were later arrested for first-degree
    murder. The appellant and her friend Ashley Dore-Davidson were arrested for
    their alleged roles as accessories after the fact to the murder.

[4]

The appellant did not call any evidence at trial. Trial counsel conceded
    guilt on the obstruct police and public mischief charges, but argued that the
    Crown had failed to prove the charge of being an accessory after the fact to
    murder.

[5]

The focus of the appellants trial was on her conduct in trying to help
    her boyfriend Joshua Barreira avoid justice. Joshua Barreira was alleged to be
    one of three men guilty of murder as a party to the shooting carried out by his
    friend Chad Davidson.

[6]

On
May 11, 2017, more than a year after the appellants
    trial, t
hree of the men, Chad Davidson, Joshua Barreira, and Brandon
    Barreira, were convicted of first-degree murder. The fourth man, Louis Rebelo,
    was convicted of manslaughter.

[7]

Section 592 of the
Criminal Code

permits proceeding with
    an accessory after the fact charge prior to the principals trial. However,
    proceeding in this manner places an added burden on the Crown, because proof of
    guilt of the principal offender is an essential element of the crime of being
    an accessory after the fact:
R. v. Duong

(1998), 124 C.C.C.
    (3d) 392 (Ont. C.A.), at para. 27.  If the principals murder conviction
    precedes the
accessory after the fact trial, s. 657.2(2) of
    the
Criminal Code

permits evidence of the conviction to be
    admitted at trial as proof of the principals guilt. By proceeding with the
    appellants trial prior

to the murder trial, the Crown could not rely on
    this provision and was required to prove
that the principal was himself
    guilty of murder.

[8]

In addition to evidence concerning the murder and the identity and roles
    of the alleged murderers, the Crowns case against the appellant rested on two
    main bodies of evidence:

i)

About three
    hours after the murder, the appellant fled the city with Joshua Barreira in a
    car registered in her name. When the car was involved in an accident, they
    abandoned the accident scene. The next day the appellant falsely reported the
    car stolen.

ii)

About two weeks later, the
    appellant married Joshua Barreira in a joint wedding with the shooter Chad
    Davidson and his long-time girlfriend, Ashley Dore-Davidson. The couples each
    acted as witnesses to the others wedding. There was evidence that the
    marriages were for the purpose of invoking the then-existing spousal
    incompetency rule.
[2]

[9]

The trial judge found that the Crown had failed to prove that Joshua
    Barreira was guilty of murder. He found that only the shooter, Chad Davidson,
    had been proven guilty of murder. Since proof that the principal committed
    murder is an essential element of the charge faced by the appellant, she could
    not be convicted as an accessory after the fact to murder committed by Joshua
    Barreira.

[10]

Rather
    than acquitting the appellant, the trial judge proceeded to convict her on the
    basis that she had been
Chad Davidsons
accessory by serving as a
    witness to his wedding.

[11]

I
    have concluded that a review of the trial record reveals that the scope of the
    charge faced by the appellant was limited to her actions in relation to Joshua
    Barreira and did not encompass Chad Davidson as an alternate principal
    offender. The trial judge found that the Crown had not proven that Joshua
    Barreira committed murder. Therefore the Crown had failed to prove an essential
    element of the accessoryship charge faced by the appellant.

[12]

I
    would allow the appeal and enter an acquittal for the reasons that follow.

A.

THE GROUNDS OF APPEAL

[13]

The appellant advances four grounds of appeal:

1.

The trial judge
    erred in finding that witnessing a non-fraudulent wedding could constitute the
actus
    reus
for being an accessory after the fact;

2.

The trial judge
    erred by interpreting the accessory charge as applying to multiple
    transactions;

3.

The trial judge
    erred by convicting the Appellant on the basis of a theory of liability that
    fell outside the scope of the indictment and had not fairly been raised at
    trial; and

4.

The trial
    judges reasons for conviction were insufficient.

[14]

I
    would allow the appeal on the third ground.

[15]

To
    explain my conclusion, I will briefly review the trial record.

B.

THE APPELLANTS TRIAL

(1)

The Broad Wording of the Accessory Count

[16]

The accessory count was framed in the broadest
    of terms.  It alleged that the appellant, in the two and one-half months
    between the date of the murder on November 30, 2013, and her arrest on February
    14, 2014, in the City of Hamilton:

did commit accessory after the fact to murder, contrary to the
    provisions of Section 240 of the
Criminal Code
.

[17]

The
    indictment contained no information identifying how the appellant was alleged
    to have committed the offence, or the principal offender or offenders whom she
    was alleged to have helped.

(2)

The Crowns Opening Statement

[18]

Crown
    counsels opening statement referenced the appellants conduct only in relation
    to her boyfriend, Joshua Barreira. Although the Crown opening referred to the
    joint wedding, nothing in the opening statement signalled that the appellant
    was charged with assisting anyone other than her boyfriend, Joshua Barreira.

[19]

Unsurprisingly,
    in light of the Crowns opening statement, defence counsels focus throughout
    the trial was on Joshua Barreiras culpability for murder, and the appellants
    conduct in assisting Joshua Barreira.

(3)

The Evidence at Trial

The Murder

[20]

Homicide
    officer Detective Sergeant Jason Cattle testified that Tyler Johnson was killed
    by a single shot to the chest outside a restaurant in downtown Hamilton shortly
    after 3:00 a.m. on November 30, 2013.  The relevant events were captured on
    surveillance videos, some of which were played during Detective Cattles
    testimony. The footage showed Chad Davidson and Joshua Barreira walking
    together toward the victim. Brandon Barreira and Louis Rebelo are also seen in
    the vicinity of the victim. Davidson is seen holding a handgun at his side.
    After a brief struggle, Davidson fired a fatal shot into the victims chest.
    The four men then fled the scene.

Events Shortly After the Murder

(i)

Brandon Barreira Calls His Mother from Hamilton
    Asking to Be Picked Up

[21]

The evidence showed that about an hour after the
    murder, Brandon Barreira called his mother, Marta Leite, at her home in
    Cambridge, and asked to be picked up in Hamilton and driven back home.  Ms.
    Leite, with her common-law partner Howard Puterman driving, made the 30 to 45
    minute drive to Hamilton, and picked up Brandon Barreira as well as Louis
    Rebelo, who unexpectedly joined them.

(ii)

The Accident

[22]

The collective evidence of various witnesses
    established that about three hours after the murder, a Jaguar registered to the
    appellant was involved in an accident as it merged from a Hamilton on-ramp onto
    Highway 403.  The appellant and Joshua Barreira were observed standing on the
    shoulder. The badly damaged car was in the middle of the highway.

(iii)

The Drive Back to Cambridge

[23]

Mr. Puterman testified that shortly after they
    merged onto Highway 403 from Hamilton, they encountered the accident.  As he
    approached the accident scene, someone screamed out that that was Joshs car.
    Mr. Puterman pulled over just past the accident scene, got out, and walked
    back.  He saw the appellant standing by herself, and Joshua Barreira soon
    appeared. Mr. Puterman told them hed be in his vehicle whenever they were
    ready.  He returned to his vehicle, and within a few minutes, the appellant and
    Joshua Barreira got in. Mr. Puterman returned to their home in Cambridge.  The
    badly-damaged Jaguar was abandoned in the middle of the highway.

(iv)

The Appellants False Report That Her Car Had
    Been Stolen

[24]

Evidence was led that the appellant called 911
    shortly after 3:00 p.m. on December 30, to report that her car had been stolen.
    A recording and a transcript of the call were tendered in evidence.  The 911
    operator advised the appellant that the OPP had some involvement with her
    vehicle and she needed to contact the OPP. The appellant was given an OPP
    number to contact.  She called about an hour later and repeated her false claim
    to the OPP officer who was investigating the fail to remain collision involving
    the appellants Jaguar. She agreed to meet with the officer the following
    morning to provide a statement, but she did not attend. The officer made
    repeated efforts to contact the appellant but was unsuccessful.

[25]

The appellants false report led to the public
    mischief and obstruct police charges that were not contested at trial.

The Arrest of Brandon Barreira

[26]

Brandon Barreira was arrested on December 11,
    2013, at his mothers home in Cambridge.  Reports of his arrest were on the
    news along with video footage depicting Joshua Barreira, Chad Davidson, and
    Louis Rebelo.

The Double Wedding

i)

The overheard conversation about getting married

[27]

A casual friend of Ashley Dore-Davidson
    testified that on December 12, the day after Brandon Barreiras arrest, Ashley
    showed up unexpectedly with Chad Davidson and another couple she introduced as
    Jenn and Josh.  Ashley asked if it was okay if the four stayed overnight at her
    apartment and she agreed.

[28]

The witness testified that the following
    morning, December 13, she overheard parts of a conversation in which Ashley was
    suggesting that the four of them should get married: Ashley to Chad, and Jenn
    to Josh. The witness testified that Jenn and Josh were opposed to the
    suggestion, and Ashley said something like this is what we have to do and that
    the women wouldnt have to testify, or talk to the police if they were married
    to each other.

ii)

The wedding itself

[29]

That same day, on December 13, two days after
    Brandon Barreira was arrested, the appellant married Joshua Barreira in a joint
    wedding along with Ashley Dore-Davidson and Chad Davidson. The Crown position
    was that the couples hasty marriages were arranged because the arrest of
    Brandon Barreira and the news reports led them to fear that Joshua Barreira and
    Chad Davidsons arrests were imminent.

[30]

The court heard evidence that the appellant and
    Ashley Dore-Davidson each obtained rush marriage licenses that day.  Later
    that same day they were married in a joint ceremony.  No guests were present.
    They each acted as witnesses to the others wedding.

Evidence of Ashley Dore-Davidson

[31]

Ashley Dore-Davidson testified.  She was clearly
    a reluctant witness. Despite having recently pleaded guilty to being an
    accessory after the fact to the murder of Tyler Johnson committed by Chad Davidson,
    she denied knowing who shot the victim.  She claimed that she had not read the
    disclosure and had not listened as the facts were read in at her guilty plea.
    She refused to read a transcript of her guilty plea when invited to do so by
    the Crown, saying:

I dont want to. Cause as far as Im
    concerned, I pled guilty just to get out of jail. I pled to whatever, I didnt
    care, as long as it got me out of jail faster. So I dont want to read it. Im
    out in 10 days, so I dont care.

[32]

Ms. Dore-Davidson confirmed that she had
    suggested the joint wedding, but testified that she never discussed the
    shooting with the appellant. She agreed that the couples signed as witnesses to
    each others weddings, but was never asked whether there had been discussion about
    witnessing each others wedding.

Evidence of Lindsay Dagenais

[33]

Lindsay Dagenais, the appellants older sister,
    testified that she disapproved of the appellants relationship with Joshua
    Barreira. She testified that she learned that her sister had gotten married in
    a joint wedding with Ashley Dore-Davidson and Chad Davidson. She testified that
    on the advice of her sisters lawyer, she did not discuss the murder with her.
    She was asked whether she ever asked the appellant why Chad Davidson acted as a
    witness at her wedding and she said she did not.  She was not asked the key
    question upon which the appellants conviction was ultimately founded: whether
    she knew why the appellant had acted as a witness to the Dore-Davidson wedding.

The Focus of Crown and Defence Counsel in
    Examination of Witnesses at Trial

[34]

My review of the evidence at trial leads me to
    conclude that the appellants witnessing of Chad Davidsons wedding to Ashley
    Dore-Davidson was never on the radar as an alternate theory of liability.

[35]

On the contrary, the focus of both Crown and
    defence counsel was on the appellants conduct in relation to a single
    principal, Joshua Barreira.  Nothing in the evidence signalled that the Crown
    was relying on an alternate theory of accessoryship with Chad Davidson as the
    principal.

(4)

Closing submissions of Crown and defence counsel

Crown submissions

[36]

Crown counsels closing submissions focused upon
    the appellants efforts to help Joshua Barreira avoid justice.

[37]

Crown counsel supplemented her oral submissions
    with written submissions.  Crown counsel pointed out that the written
    submissions had been prepared using
Watts Manual of Criminal Jury
    Instructions
. Paragraph 12 stated:

Using Final Instructions for Accessory After the Fact from
    Watts jury instructions, the Crown must prove the essential elements beyond a
    reasonable doubt including:

(i)

That Brandon Barreira, Joshua Barreira, Chad Davidson and Louis Rebelo
    committed murder;

(ii)

That
    Jennifer Dagenais knew that
the principals
had committed murder;

(iii)

That
    Jennifer Dagenais provided assistance to
the principals
; and

(iv)

That
    Jennifer Dagenais provided assistance for the purpose of helping
the
    principals
to escape. (emphasis added)

[38]

The portion referred to above refers to the
    principals, and at other points in the written submissions, the principals
    are referred to as the men. However, as I will discuss shortly, when the
    written submissions reach the question contained in part (iv), the submissions
    no longer refer to the principals or the men, but instead refer only to a
    single individual, Joshua Barreira:

What is important here is Jennifer Dagenais purpose, not the
    effect of what she did.  Crown counsel must prove beyond a reasonable doubt
    that Jennifer Dagenais did what she did for the purpose of helping
Joshua Barreira
escape. Whether her conduct actually did help
Joshua Barreira
escape may
    help you decide what Jennifer Dagenais purpose was in giving assistance, but
    Crown counsel does not have to prove that what Jennifer Dagenais did actually
    achieved that purpose.

To determine Jennifer Dagenais state of mind, her purpose in
    providing assistance to
Joshua Barreira
you should consider:

·

What she did or did not do

·

How she did or did not do it; and

·

What she said or did not say about it.

All these things, and the circumstances in which they happened,
    may help you decide whether Jennifer Dagenais purpose in providing assistance
    to
Joshua Barreira
was to enable him to escape.  Use your good common
    sense. [Emphasis added.]

[39]

It can be seen by reference to the above passage
    from the Crowns written submissions that the focus of the appellants
    accessory charge shifted from the principals, to a single principal, namely
    Joshua Barreira.

[40]

The Crowns written submissions then turned to a
    discussion of the evidence concerning whether the appellant, with the requisite
    intent, provided assistance to Joshua Barreira.  In support of this discussion,
    the Crown listed 22 bullet-points. The 18
th
bullet-point states:

·

By being a witness to Ashley and Chad [
sic
] wedding, Jennifer
    Dagenais was also assisting in protecting Chad Davidson so Ashley would not
    have to testify against her now husband.

[41]

The context of this bullet-point reference makes
    it clear that the Crown was relying on the appellants witnessing of the
    Dore-Davidson wedding as a piece of
circumstantial evidence
supporting the Crowns position that the appellant was guilty of
    accessoryship in relation to Joshua Barreira, and not as a stand-alone
    alternate theory of liability in relation to Chad Davidson, an entirely
    different principal.

Defence Submissions

[42]

Defence counsels submissions addressed the case
    the appellant was required to meet: a charge of being an accessory after the
    fact to murder committed by the principal, Joshua Barreira. His submissions
    show that he recognized, correctly in my view, that the case against the
    appellant depended on proof that Joshua Barreira was guilty of murder; that she
    knew or was wilfully blind to his being a party to murder; and that she
    assisted him in trying to escape justice.

[43]

Defence counsel first argued that the Crowns
    case fell short of establishing an essential element of the offence: that
    Joshua Barreira was guilty of murder. He next argued that entering into a valid
    marriage for the purpose of invoking a legal right (spousal immunity) could not
    form the
actus reus
of the offence of
    accessoryship. In support of this submission, he relied on
R. v.
    Hawkins
(1996), 111 C.C.C. (3d) 129 (S.C.C.), and
R.
    v. Nguyen
,
2015 ONCA 278,
    125 O.R. (3d) 321.

[44]

Defence counsel made no submissions concerning
    the appellants conduct with respect to assisting Chad Davidson, but restricted
    his submissions to what he clearly regarded as the case to meet: whether the
    Crown had established the accessory charge against the appellant in relation to
    her conduct in assisting Joshua Barreira.

[45]

Defence counsel did not address the issue of
    whether witnessing

another principals wedding could support the
    charge.  His failure to address the witnessing issue as a basis for liability
    is understandable. Given this trial record, counsel reasonably understood that
    the appellant was charged only in relation to her conduct on behalf of Joshua
    Barreira.

[46]

When defence counsel completed his submissions,
    Crown counsel made no submissions in reply.  At no point did the trial judge
    say anything to counsel that could suggest that he was considering a theory of
    liability based on the appellants actions in relation to the shooter, Chad
    Davidson.

C.

THE TRIAL JUDGES REASONS FOR JUDGMENT

[47]

The trial judge reserved judgment. In delivering
    his oral reasons for judgment on the return date, he identified what he
    understood to be three bases of potential liability of the appellant:

1. That she was assisting Joshua Barreira to escape when a
    motor vehicle accident occurred on November 30, 2013;

2. That by marrying Joshua Barreira and thus creating her right
    to invoke the spousal incompetency rule relative to testimony, she was
    assisting Joshua Barreira to avoid criminal liability; and

3. That by serving as a witness to the marriage of Chad
    Davidson and Ashley Dore-Davidson, she assisted the former to avoid criminal
    liability by permitting the latter to invoke the spousal incompetency rule.

[48]

The trial judge commented on what he understood
    to be the third basis of liability by stating: if the third point sounds
    convoluted, that is because it is convoluted.

[49]

With respect, the trial judge erred in
    identifying the appellants actions in relation to Chad Davidson as an
    alternative theory of the Crown.  As I have stated, my review of the trial
    record reveals that the appellant was not facing a charge involving Chad
    Davidson as the principal to her accessoryship charge.

[50]

The trial judge held that the Crown has failed
    to prove beyond a reasonable doubt that Joshua Barreira was a party to the
    killing.  He concluded, however, that the evidence did establish Chad
    Davidsons guilt for murder. Since Joshua Barreira had not been proven guilty
    of murder, the appellant could not be convicted for her conduct in helping him
    escape justice:
Duong,
at para. 27.

[51]

The trial judge found, however, that by
    witnessing the Dore-Davidson wedding, the appellant provided assistance to Chad
    Davidson to avoid justice, and that at least part of her purpose was to help
    him avoid criminal liability. Based on those findings, he convicted the
    appellant of the accessory charge.

[52]

I note as well that in his reasons for sentence,
    on April 15, 2016, the trial judge acknowledged that the appellants conviction
    was founded on a theory of liability that had not been advanced by the Crown.
    He stated:  there is merit in defence counsels observation that
my route
    to the finding of guilt here was not one put forth by the Crown
 (emphasis
    added).

D.

DISCUSSION AND CONCLUSION

[53]

As will be clear by now, my review of the trial
    record has led me to conclude that the appellants charge of being an accessory
    after the fact to murder related to her conduct in relation to Joshua Barreira
    only, and not to Chad Davidson.

[54]

The trial judge founded the appellants
    conviction on a basis that was beyond the reach of the charge she faced. Once
    the trial judge found that Joshua Barreira had not been proved to have
    committed the murder, the Crown had failed to prove a necessary element of the
    offence:
Duong,
at

para. 27. The appellant was entitled to an
    acquittal.

[55]

It is well-established that, subject to due
    process concerns, a conviction may be founded on a theory of liability that has
    not been advanced by the Crown, provided that theory is available on the
    evidence:
R. v. Pickton
,
2010 SCC 32, [2010] 2. S.C.R. 198, at para. 19;
R. v.
    Khawaja

(2010), 273 C.C.C. (3d) 415 at paras.
    143-45 (Ont. C.A.);
R. v. Ranger

(2003),
    67 O.R. (3d) 1, at paras. 34-35 (C.A.);
R. v. Pawluk
,
2017 ONCA 863.

[56]

In this case, however, the appellants
    conviction was based on a theory of liability that was
not

founded in the evidence and never advanced at trial.

[57]

I would allow the appeal, set aside the
    conviction, and enter an acquittal.

[58]

Given my conclusions, it is not necessary to
    address the other grounds of appeal.

Released: January 25, 2018 (G.S.)

D. McCombs J. (ad hoc)

I agree. G.R. Strathy C.J.O.

I agree. Doherty J.A.

[1]
The obstruct police charge was stayed under the rule against multiple
    convictions for the same unlawful act:
R. v. Kienapple
,

[1975] 1
    S.C.R. 729.

[2]
The
Canada Evidence Act
was later amended and the spousal
    non-compellability provisions contained in s. 4 (4) and s. 4 (5) were repealed:
    2015, c.13, s. 52(2.1).  However, the spousal privilege provisions contained in
    s. 3 of the
Act
remain.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Degraw, 2018 ONCA 51

DATE: 20180124

DOCKET: C64268

Feldman, Fairburn and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Douglas Alan Degraw

Appellant

Robert Sheppard, for the appellant

Randy Schwartz, for the respondent

Heard: December 15, 2017

On appeal from the convictions entered by Justice Allan
    Maclure of the Ontario Court of Justice on May 2, 2017, and from the sentence
    imposed on July 17, 2017.

Fairburn J.A.:

Overview

[1]

While under a lifetime firearms prohibition
    order, the appellant allegedly made a threat to his girlfriend that included
    having access to a gun for sale at a store in a nearby town. The police
    attended at the store and discovered a high-powered rifle for sale under his
    name. The appellant was convicted of being in possession of a firearm while
    prohibited (s. 117.01(1) of the
Criminal Code
) and being in possession
    of a firearm while knowing that he was not the holder of a firearm licence (s.
    92(1) of the
Criminal
Code
).

[2]

The appellant testified at trial. While he
    acknowledged having been involved in putting the firearm up for sale, he
    disavowed any control over the firearm. The trial judge rejected the
    appellants evidence. Crown counsel on appeal concedes that, in the context of
    the entire case, the appellants evidence could have afforded him a defence. Accordingly,
    the trial judges credibility findings were central to the result in this case.

[3]

The appellant raises two issues in his
    conviction appeal. He claims that:

(1)

the trial judge erred
    in his approach to possession; and

(2)

the trial judge erred
    in his approach to the appellants failure to call certain witnesses to testify.

[4]

For the reasons that follow, I would allow the
    appeal on the second point.

Possession Issue

(i)

Constructive Possession

[5]

It was not in dispute at trial that: (1) the
    appellant was prohibited from being in possession of the rifle; (2) the
    appellant did not have a licence to possess the rifle; and (3) the appellant
    knew about the rifle on sale at the store. Consequently, the evidence at trial
    focused on the issue of control. Read in totality, the reasons for judgment
    suggest that the appellant was found to be in constructive possession of the
    firearm while it was at the store.

[6]

The appellant argues that the trial judge erred
    in his approach to constructive possession. When it comes to offences involving
    weapons prohibition orders, like the offences upon which the convictions rest
    in this case, the appellant argues that the Crown must prove that the accused
    was in physical control or, at a minimum, that he intended to take physical
    control of the item. The appellants position rests on what he says is the specific
    legislative purpose of offences rooted in weapons prohibition orders: keeping dangerous
    weapons out of the actual hands of dangerous people. As such, he maintains that
    unless the Crown proves that the accused physically possessed or intended to
    physically possess a weapon that is subject to a prohibition order, the harm at
    which the offence is directed is absent. On this basis, the appellant argues
    that, at a minimum, an intention to physically possess a weapon covered by a
    prohibition order is an element of the offence.

[7]

I disagree.

[8]

There are three routes to possession: personal,
    constructive, and joint possession. Regardless of the route, there must be
    knowledge and some level of control. Section 4(3)(a)(ii) of the
Criminal
    Code
was relied upon in this case:

(3) For the
    purposes of this Act,

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

(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 .

[9]

The three essential elements of constructive
    possession are:

(1)

did the person have
    knowledge of the character of the object;

(2)

did the person
    knowingly put or keep the object in a particular place, whether or not that
    place belongs to him; and

(3)

did the person intend
    to have the object in the particular place for his use or benefit or that of
    another person?

See:
R. v. Morelli
,

2010 SCC 8, [2010] 1 S.C.R.
    253, at para. 17.

[10]

To make out constructive possession, there is
    simply no requirement that the Crown prove that the accused had physical
    possession or intended to take physical possession of the subject item(s). The plain
    language of the
Criminal Code
makes it clear
    that constructive possession applies where the accused knowingly has an item in
    a place, for the use
or
benefit of [the
    accused]
or
of another person (emphasis added).
    There is no additional or different requirement when it comes to possession for
    offences involving weapons prohibition orders.

[11]

The legislative intent behind weapons
    prohibition orders is not simply to keep firearms and other dangerous weapons
    out of the actual hands of those at whom the orders are directed. People are
    not randomly targeted for weapons prohibition orders. They find themselves the
    subject of such orders on account of their prior conduct, conduct that
    typically suggests a future risk to public safety if weapons are possessed.

[12]

Although preventing personal possession is a
    critical aspect of the public safety goal served by prohibition orders, it does
    not stop there. People who are prohibited from possessing weapons should have no
    form of control over the weapons caught within the reach of the prohibition
    orders. While joint and constructive possession are more distant forms of
    possession than personal possession, there is no good policy reason to exclude
    these other forms of possession.

[13]

Joint and constructive possession also require
    knowledge and some level of control. When they come together, in any form of
    possession, the purpose of the prohibition order is defeated. In particular, a
    person who knowingly has [the firearm] in any place for his or anothers use
    or benefit, has some control over that firearm. Whether he intends to take
    physical possession of it in the future is not the point. It is the fact that
    he has some control over it. A person who is prohibited from possessing
    weapons, but maintains some level of control over them, is still dangerous.

[14]

There is no statutory, legal or logical reason
    to add a new or different element to possession when it comes to offences
    involving weapons prohibition orders.

(ii)

Facts Pointing Toward Possession

[15]

Standing on its own, the Crowns evidence
    clearly supported a finding of constructive possession.

[16]

After the appellant was charged with a number of
    offences in 2007, he sold all of his firearms to his brother-in-law, Doug
    Schweitzer, in order to comply with the terms of his bail. Legal ownership of
    the firearms was transferred to Schweitzer. The appellant was later convicted
    and a lifetime weapons prohibition order was imposed.

[17]

When out on parole in 2016, the appellant
    assaulted his girlfriend. During his guilty plea, he agreed that he told her
    his gun was only a town away in Rodney at a firearms dealer. The girlfriend confirmed
    this comment during her evidence at this trial.

[18]

The owner of the gun store could not recall
    whether the appellant carried the gun into the store, but recalls dealing with
    him when the gun was put up for sale. The appellant was listed on file as the
    person selling the gun and called a few times to inquire about whether anyone
    had shown any interest in purchasing the gun. Had the gun sold, the store owner
    testified that he would have given the money to the appellant.

[19]

This constituted both direct and circumstantial
    evidence of: (1) the appellants knowledge of the firearm; (2) the fact he was
    keeping it at the store; and (3) the fact he intended to benefit from the sale.
    Standing on its own, the Crowns evidence supported a finding of constructive
    possession.

[20]

The difficulty is that the Crowns evidence did
    not stand on its own because the appellant testified. Crown counsel concedes
    that if the trial judge erred in the assessment of the appellants credibility,
    then a new trial is required. I now turn to this issue.

The Appellants Failure to Call Certain
    Witnesses to Testify

(i)

The Appellants Evidence

[21]

The appellant testified that he needed money. Mr.
    Schweitzer was prepared to extend him a loan if the guns that the appellant had
    previously transferred to Schweitzer were sold. The appellant posted some for
    sale signs at sporting goods stores. A man from the town of Exeter responded
    to one of these postings and asked to see the guns. The appellant could not
    recall the mans name. I will refer to him as the Exeter man.

[22]

As Schweitzer could not be present when the
    Exeter man came to look at the guns, the appellant arranged for the attendance
    of someone with a firearms licence to facilitate the transaction: Dave Payne.
    According to the appellant, this was all done with Schweitzers approval. The
    Exeter man bought all of the guns except one rifle. A decision was made to sell
    that rifle at a gun shop in the town of Rodney. As the Exeter man had not been
    to the gun shop and wanted to see it, he agreed to drive the rifle there and
    drop it off. The appellant drove behind the Exeter man.

[23]

The appellant testified that he never touched
    the gun; the Exeter man took it into the store and left it on the counter. The
    appellant admits that he spoke to the owner of the store about the list price. According
    to the appellant, if the gun sold, the money would go to Schweitzer and then
    Schweitzer would advance him the loan.

(ii)

Reasons for Judgment: The Appellants
    Credibility

[24]

The trial judge correctly reviewed the
    principles in
R. v. W.(D.)
, [1991] 1 S.C.R. 742
,
specifically
    observing that if he believed the accuseds evidence or was left in a
    reasonable doubt by it, then he must acquit. He commenced his credibility
    findings with the following: Now, Mr. Degraw, you testified in your own
    defence, and, frankly, I found your story unbelievable, and Ill tell you why I
    do.

[25]

The trial judge first pointed to the fact that he
    found it unbelievable that the appellant did not know the name of the Exeter
    man. He next pointed to the fact that the Exeter man, Payne, and Schweitzer did
    not testify to support [the appellants] version of events. The trial judge
    found that their evidence would have been essential if the appellants
    evidence were to be accepted.

[26]

The trial judge next observed the Crowns position
    that the trial had been previously adjourned to facilitate Schweitzers
    appearance. The trial judge noted the Crowns position that Schweitzer had not
    attended to give evidence because he did not want to lie. The trial judge
    commented that he could not say for certain whether that is true, but it is
    certainly something that warrants consideration and may probably be true.
    Finally, he observed that, despite the importance of Payne and Schweitzer to
    the gun transaction, neither had attended at the store.

(iii)

Positions of the Parties

[27]

The appellant maintains that the trial judge
    erred in how he approached his credibility findings. He argues that the trial
    judge reversed the onus when he rejected the appellants evidence on the basis
    that the appellant failed to call certain witnesses in his defence. He also
    claims that the trial judge erred by suggesting that the witnesses were not
    called because they were not prepared to lie on the appellants behalf.

[28]

The Crown maintains that in some circumstances
    it is appropriate to draw an adverse inference from the failure of the defence
    to call certain witnesses. This will typically occur where witnesses are
    available to testify and the defence position cries out for their evidence.
    Crown counsel submits that this is one of those cases. He argues that, read in
    context, the reasons for judgment deal with this issue correctly and did not
    result in a reversal of the onus.

(iv)

Law

[29]

In some limited circumstances, a trier of fact
    may draw an adverse inference from the accuseds failure to call a witness. The
    adverse inference principle is derived from ordinary logic and experience. It
    is not intended to punish the accused for failing to call a witness:
R. v.
    Jolivet
,

2000 SCC
    29, [2000] 1 S.C.R. 751, at para. 24.

[30]

An adverse inference may only be drawn where
    there is no plausible reason for not calling the witness:
R. v.

Lapensee
,

2009 ONCA 646, 99 O.R. (3d) 501,
at para. 42. Even where it is appropriate to draw an adverse
    inference, it should not be given undue prominence and a comment should only
    be made where the witness is of some importance in the case:
R. v. Koffman
(1985), 20 C.C.C. (3d) 232 (Ont. C.A.),
at p. 237.

[31]

Commenting upon the failure of the defence to
    call a witness runs the clear risk of reversing the burden of proof:
R. v.
    Ellis
,

2013 ONCA
    9, 113 O.R. (3d) 641, at para. 49; and
Lapensee
,

at para. 45. As well, trial
    counsel will frequently make choices about not calling potential witnesses, the
    reasons for which are often entirely unrelated to the truth of any evidence a
    witness may give.  For instance, an honest person may have a poor demeanour,
    resulting in a strategic choice not to have the individual testify. Or, the
    evidentiary point to be made by a person may already have been adequately
    covered by others:
Jolivet
,

at para. 28. Allowing an adverse inference to be taken from the failure to
    call a potential witness runs the risk of visiting strategic litigation choices
    upon the accused. Accordingly, an adverse inference should only be drawn with
    great caution:
R. v. Zehr
(1980),

54 C.C.C. (2d) 65 (Ont. C.A.), at p. 68
;
R. v. Charrette
(1982),
    67 C.C.C. (2d) 357 (Ont. C.A.), at p. 359
;
Koffman
,
    at p. 237;
Lapensee
, at para. 45; and
Ellis,
at para. 49.

[32]

Where comment is appropriate, the only
    inference that can be drawn is not one of guilt, but an inference that, had
    the witness testified, his or her evidence would have been unfavourable to the
    accused:
Koffman,
at p. 238; and
R. v.
    Marshall
(2005), 200 C.C.C. (3d) 179 (Ont. C.A.), at para. 47. This
    inference can impact on an assessment of the accuseds credibility:
Koffman
,

at p. 238;
Charrette
,

at p. 359;
R. v. Dupuis
(1995), 98 C.C.C. (3d) 496 (Ont.
    C.A.), at p. 508; and
Marshall,
at paras. 44, 47-48.

[33]

I now turn to what I see as the difficulties
    with the reasons for judgment in this case.

(v)

Analysis

(a)
Overview

[34]

I am inclined to agree with Crown counsel on
    appeal that this was one of those rare cases where it was open to the trial
    judge to take into account the fact that the accused did not call the Exeter
    man, Payne or Schweitzer to testify. The relevance of these witnesses was only
    introduced when the appellant testified. They were inextricably woven into the
    appellants narrative about how the gun came to be at the gun shop, put up for
    sale, and the loan that would result if it sold. The appellant was the only one
    who could have located the Exeter mans actual name and address. He failed to
    do so. As well, leaving aside the reasons he provided for the absence of the
    witnesses, the appellant still had greater access to them than the Crown.

[35]

While this was one of those rare cases where it
    was open to the trial judge to exercise his discretion in favour of taking the absence
    of the witnesses into account, he erred in how he approached this delicate
    exercise.

(b)
Failure to consider explanation for
    absence of witness

[36]

The trial judge considered the appellants
    explanation for not being able to provide the Exeter mans name and quite reasonably
    rejected the explanation as unbelievable. In contrast, he failed to deal with
    the appellants explanation for why Payne was not present to testify:  that
    Payne had moved away, likely back to Cornwall where his girlfriend was from,
    and had not been found.  As an adverse inference can only be drawn where no
    plausible reason is given for not calling the witness, the trial judge should
    have considered the reason given for Paynes absence. While he may have
    rejected the reason given as also unbelievable, it should have been specifically
    considered.

(c)
Reasons relating to Schweitzer

[37]

As for Schweitzer, the trial Crowns position was
    summarized in the reasons for judgment as follows:

The Crowns submission on that point with respect
    to your brother-in-law was that Mr. Schweitzer, who also for whatever reason,
    couldnt appear at your first trial, and that that was one of the reasons for
    the adjournment of the first trial date, simply didnt want to lie on your
    behalf.

While the
    trial judge could not say for certain whether that [was] true, in arriving at
    his credibility findings, he held that it was certainly something that
    warrants consideration and may probably be true.

[38]

There are two difficulties with the trial
    judges approach.

[39]

First, there was no evidence that an original
    trial date was adjourned because Schweitzer couldnt appear. When this
    suggestion was put to the appellant in cross-examination, he specifically
    denied it. Indeed, the appellant insisted that it was actually the Crown who had
    asked for the adjournment of the original trial date. The appellant having
    denied the proposition put, the Crown was left without evidence that: (a) Schweitzer
    had failed to attend on an earlier trial date; and (b) Schweitzers failed
    attendance had caused the first trial date to be adjourned. Yet, the reasons
    for judgment suggest that the Crown proposition was treated as fact.

[40]

Read in context, the passage conveys the idea
    that Schweitzer had not attended on two different trial dates because he did
    not want to lie on [the appellants] behalf. This leads into the second
    problem with respect to how Schweitzers absence was dealt with in the reasons
    for judgment.

[41]

The trial judges suggestion that it may probably
    be true that Schweitzer did not appear because he did not want to lie for the
    appellant goes well beyond a mere inference that, had Schweitzer testified, he
    would have given evidence that was unfavourable to the defence. The above
    comment implies that the appellant may have tried to get Schweitzer to lie for
    him and Schweitzer refused. There was no evidence to support the inference that
    Schweitzer was absent because he was refusing to lie.

[42]

The lying absent witness theme was one that ran
    throughout the cross-examination of the appellant. The trial Crown (not Mr.
    Schwartz) repeatedly put variations of this theme to the appellant, including: that
    Payne and Schweitzer were not coming to lie for you today; he wont come to
    court to lie for you; Mr. Schweitzers not here because the Schweitzers are
    good, law-abiding people, and hes not coming to lie for you today; Mr. Payne
    is not here today either because he wont come to court to lie for you; and so
    on.

[43]

The cross-examination, focusing so repetitively
    on whether Payne and Schweitzer were absent because they did not want to lie
    for the appellant, was inappropriate and irrelevant. At best, the
    cross-examination suggested that the appellant wanted Payne and Schweitzer to
    lie to the court. At worst, it suggested that he attempted to get them to lie
    and they refused. There was no evidence to support either of these
    propositions.

[44]

Cross-examination on the failure of the defence
    to call a witness will only be appropriate in those rare circumstances where an
    adverse inference is open to be drawn. The inference is not one of guilt. Nor
    is it an inference that the person is refusing to lie for the accused, an
    inference infused with the improper suggestion that the accused wants or has
    encouraged the person to do so. The available inference is that, had the person
    testified, his or her evidence would have been unfavourable to the defence.

[45]

While there was a basis upon which to infer that
    Schweitzer would have provided unfavourable evidence had he testified, there
    was no basis upon which to infer that he refused to lie on the appellants
    behalf. The trial judge erred by concluding that this was an available
    inference to be drawn and may probably be true.

(d)
Reversal of the burden of proof

[46]

Most problematic, though, is the fact that the
    reasons reveal a reversal of the burden of proof. In rejecting the appellants
    evidence, the trial judge said: Given the magnitude of the importance of their
    evidence, their presence would have been essential if the court were to accept
    your version of events. Whether Payne, Schweitzer, and the Exeter man had
    important evidence to give or not, their evidence was not required to accept
    the appellants evidence. Corroboration was not essential before the
    appellants evidence could be accepted or raise a doubt. The effect of this
    comment was to place an onus on the defence to produce corroborative evidence.
    It reversed the burden of proof.

[47]

While Crown counsel acknowledges that, standing
    on its own, this sentence is awkward, he encourages the court to consider the
    impugned comment in context. In particular, he points to the passage following
    the comment as contextualizing what the trial judge meant:

And that is not to say that you have anything
    to prove here, you dont, but the court has to assess the evidence that youre
    offering, and your evidence was that these individuals could explain what
    occurred and provide you with a legal defence to what occurred, and yet none of
    them, notably your own brother-in-law, were either subpoenaed or attended court
    to testify on your behalf.

[48]

Although the trial judge correctly noted that
    the appellant had nothing to prove, he went on to emphasize that the witnesses
    could have provided a legal defence to what occurred, yet did not attend
    court to testify. With or without the evidence of the Exeter man, Payne and or
    Schweitzer, the appellants evidence could have been accepted or raised a
    doubt. This was not about whether the absent witnesses could provide a defence,
    but how their absence might have impacted the assessment of the appellants
    credibility because of the inference that could have been properly taken  that
    their evidence would have been unfavourable had they testified. Even when
    considered in context, the error in reversing the burden of proof is not alleviated.

Conclusion

[49]

The failure to consider the reason given for
    Paynes absence, considering an explanation for a previous adjournment that was
    unsupported on the facts, reasoning that it may probably be true that
    Schweitzer did not appear because he did not want to lie on the appellants
    behalf, and reversing the burden of proof, accumulate to give rise to
    reversible error. We are not asked to apply the proviso.

[50]

I would allow the appeal, set aside the
    convictions, and order a new trial. Accordingly, there is no need to consider
    the sentence appeal. At the appeal, we were informed that the appellant was to
    be released from custody within a few days of the hearing. The Crown will
    undoubtedly take into consideration the time that the appellant has already
    served in custody when determining whether to proceed with another prosecution.

Released: January 24, 2018

Fairburn J.A.

I agree K. Feldman
    J.A.

I agree I.V.B.
    Nordheimer J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Duffy, 2018
    ONCA 90

DATE: 20180131

DOCKET: C62950

Hoy A.C.J.O., MacPherson
    and Rouleau JJ.A.

BETWEEN

Her Majesty the
    Queen

Appellant

and

Patricia Duffy

Respondent

Melissa Adams, for the
    appellant

Leo Kinahan, for the respondent

Heard and
    released orally:  January 26, 2018

On appeal from the acquittal
    entered by Justice J.E. Ferguson of the Superior Court of Justice on October
    19, 2016.

REASONS FOR DECISION

[1]

The respondent was
    charged with aggravated assault and obstruction of justice. The Crown alleged
    that the respondent had pushed the complainant and caused him to fall down the
    exterior stairs to the bar where the respondent worked.

[2]

The Crown relied on
    circumstantial evidence, including video footage from the bar security cameras.
    One camera showed the respondent pushing the complainant backwards out the door
    to the bar. A second camera showed the respondent falling down the stairs. Neither
    camera captured what happened on the landing outside the door to the bar.

[3]

After the conclusion of
    the Crowns case, the trial judge granted the respondents motion for directed
    verdicts of acquittal. In her ruling, the trial judge wrote:

It is my role to analyze all of
    the evidence to determine all aspects of the charges have been met even
    inferentially. Ive done that.
I am not satisfied that as a result of this
    analysis, the Crown has met her burden of proof beyond a reasonable doubt as to
    the essential elements of these charges.
This is even allowing the most
    favourable inferences of the evidence heard and seen to the Crowns case.
    Inferences suggested by the Crown cannot be reasonably or logically drawn from
    the facts established by the evidence  The circumstantial evidence is in the
    unclear security video which does not record the
actus reus
of which
    the respondent is charged. I agree that the videos we saw are momentary and
    incomplete. [Emphasis added.]

[4]

The Crown appeals the
    trial judges ruling on the motion for directed verdicts, arguing that the
    trial judge erred in her application of the test for directed verdict by
    treating the issue as one of a determination of guilt or innocence based on the
    Crowns ultimate persuasive burden, rather than a determination of whether
    there was any evidence upon which a reasonable jury, properly instructed, could
    return a verdict of guilty. It further argues that the trial judge failed to
    resolve competing permissible inferences in favour of the Crown as she was
    required to do.

[5]

The respondent argues
    that, while the trial judge may have made an inadvertent misstatement in
    stating that the Crown had not met its burden of proof beyond a reasonable
    doubt, it is clear that she conducted the proper review and, after ruling out
    speculation and conjecture, found that there was no evidence upon which a
    reasonable jury, properly instructed, could return a verdict of guilty.

[6]

We agree with the Crown
    that the trial judge erred in her application of the test for directed verdict.
    As the Crown submits, the trial judge weighed the Crowns proposed inference
    that the respondent pushed the complainant and caused him to fall down the
    stairs against the opposing inference that the inebriated respondent tripped on
    the landing outside the door to the bar. We further agree with the Crown that
    the video footage it relied on at trial is some evidence to support the
    inference that the respondent pushed the complainant and caused him to fall down
    the stairs.

[7]

The appeal is accordingly
    allowed, the directed verdicts of acquittal are set aside, and a new trial is
    ordered before a different judge on both charges against the respondent.

Alexandra Hoy A.C.J.O.

J.C. MacPherson J.A.

Paul Rouleau J.A.