COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lights, 2020 ONCA 128

DATE: 20200218

DOCKET: C64243

Watt, Huscroft and
    Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Michael Lights

Appellant

Christopher R. Murphy, for the appellant

Katie Doherty, for the respondent

Heard: August 19, 2019

On appeal from the conviction entered by Justice Susan G.
    Himel of the Superior Court of Justice on June 29, 2016, and from the sentence
    imposed on January 13, 2017.

Watt J.A.:

[1]

On a midwinter night a few years ago, Michael Lights (the appellant)
    had some friends over to the apartment he and his girlfriend, Kimberley
    Johnson, shared. The appellant, who had suffered a broken leg in a motor
    vehicle accident several weeks earlier, had just returned from a week in the
    Dominican Republic the previous day.

[2]

The appellant and his friends gathered in the living room. Four of them,
    including the appellant, sat on a couch. The other two sat on chairs or stood
    in a bar area adjacent to the living room. One of the men was smoking
    marijuana. Ms. Johnson remained in the bedroom.

[3]

Around 11:25 p.m. someone opened the apartment door with a key. Several
    men entered. They were armed. They identified themselves. Toronto Police.
    Search warrant. Raise your hands.

[4]

Six armed police officers took control of the apartment. All of its
    occupants were placed under arrest. The appellant was charged with several
    firearm and drug offences, as well as one count of possession of the proceeds
    of crime.

[5]

After a trial before a judge of the Superior Court of Justice, sitting
    without a jury, the appellant was convicted of each offence with which he was
    charged. He was sentenced to a term of imprisonment of 9.5 years, which the
    judge reduced to a net sentence of 64 months after awarding credit for
    pre-sentence custody.

[6]

The appellant appeals both conviction and sentence. These reasons
    explain why I have decided that the appeals should be allowed in part.

The Background Facts

[7]

The circumstances surrounding the offences of which the appellant was
    convicted lie within a narrow compass. They consist of the observations made by
    police on and after entry to the appellants apartment and the things they found
    and seized during the warranted search which followed.

The Warrant

[8]

Police obtained a telewarrant to search the appellants apartment for
    guns, ammunition, and magazines, together with documents linking the appellant
    to the apartment.

[9]

At trial, the appellant challenged the telewarrant as having been
    improvidently issued. He sought exclusion of the evidence obtained in execution
    of the warrant. The application failed. The ruling was not challenged in this
    court.

The Entry

[10]

Police entered the appellants apartment by opening the front door with
    a key. They were armed. In the living room and adjacent area leading to the
    kitchen, the officers encountered six men. Four were sitting on an L-shaped
    couch. Two occupied chairs or stood in the adjacent bar area.

[11]

The appellant was one of the men sitting on the living room couch. He was
    wearing shorts and a T-shirt. The officers instructed the men not to move and
    to raise their hands.

The Appellants Reaction

[12]

Despite the police commands, the appellant did not immediately raise his
    hands. He appeared to be putting a silver object under his buttocks or between
    his legs. None of the officers were able to determine the nature of this silver
    object. None of the officers described the object as a gun or something that
    looked like a gun.

The Appellants Apprehension

[13]

Although the first police officer who entered the apartment noticed the
    appellant pushing this silver object under his buttocks or between his legs, it
    was the third officer to enter the apartment who approached the appellant. The
    officer took the appellant to the ground and yelled Gun to alert the other
    officers in the apartment. The gun was a silver Ruger semi-automatic handgun.
    The officer proved the weapon safe by removing its magazine.

The Firearm

[14]

The firearm seized from the appellant was a Ruger .22 calibre
    semi-automatic handgun with an 11-shot detachable box magazine. It is a
    restricted firearm within s. 84(1) of the
Criminal Code
, R.S.C. 1985, c. C-46
. It was admitted
    at trial that this firearm was found together with readily accessible
    ammunition capable of being discharged in the firearm.

The Drugs and Related Paraphernalia

[15]

On a shelf in the bedroom closet, police found a vacuum sealer and a
    money counter. From a table by the bed, they recovered a black book containing
    numbers, but no dates or names. There was a bulletproof vest under the bed. A
    Tupperware container with a few leaves of marijuana sat on a set of scales in
    the kitchen.

[16]

A black duffel bag was on the floor near the entrance from the kitchen
    to the living room. None of the officers noticed this bag when they entered the
    apartment to execute the search warrant. The bag was away from the area of the
    couch where most of the men, including the appellant, were sitting, and the bag
    was equidistant from all of them. There was no identification in or attached to
    the bag.

[17]

Inside the duffel bag were several smaller bags. In one sealed bag was one
    kilogram of marijuana. Four smaller Ziploc bags also held marijuana. In two
    other bags were about two ounces of cocaine.

The Money

[18]

Police found a locked safe in the bedroom closet. On top of it was a
    lockbox. There was also a coke can with a hidden compartment. The appellant had
    a key to the safe in his pocket when he was arrested.

[19]

Police prised the safe open. Inside it was a brown pouch. And inside the
    brown pouch were some bills bundled together: $9,450 CAD and $442 USD. A gun
    and a magazine fit in the gun safe.

The Appellant and the Apartment

[20]

Several items bearing the appellants name, some including the address
    of the apartment, were found in the bedroom. A passport with a stamp from the
    Dominican Republic dated the previous day. A birth certificate. Prescription
    medication. A health card. Medical and dental appointment cards and reminders.
    Credit card and service provider statements. And a lease agreement for the
    apartment in the name of Paul Hibbert. There were similar documents for
    Kimberley Johnson.

The Admissions

[21]

Several formal admissions were made at trial under s. 655 of the
Criminal

Code
.

[22]

It was admitted that the appellant had been out of Canada from February
    9-16, 2014. The guns recovered in the apartment were all prohibited or
    restricted firearms. The ammunition was capable of being fired from these
    weapons. Ammunition capable of being discharged in the Ruger semi-automatic
    handgun was found together with it so that it was readily accessible for
    discharge from the weapon. None of the occupants of the apartment had an
    authorization, licence or registration certificate that permitted them to be in
    possession of any of the firearms recovered there. And the quantities of
    cocaine and marijuana found were sufficient for the purpose of trafficking.

The Grounds of Appeal

[23]

The appellant appeals both conviction and sentence.

[24]

On the appeal from conviction, the appellant advances a single ground of
    appeal. He contends that, except for the count charging him with possession of a
    restricted firearm without a registration certificate, contrary to s. 92(1) of
    the
Criminal Code
, the convictions entered at trial are unreasonable.

[25]

On the appeal from sentence, the appellant seeks a reduction in the term
    of imprisonment imposed by the trial judge. The extent of the reduction is
    dependent on the result of his appeal from conviction.

[26]

As I explain, I would allow the appeal in part, set aside the
    convictions and enter acquittals on counts 1, 3, 4, and 5, dismiss the appeal
    on counts 2 and 6, and vary the sentence to 5 years, the sentence imposed on
    count 2, to which the sentence imposed on count 6  3 years  is to be served
    concurrently.

The Appeal from Conviction

[27]

The convictions challenged here as unreasonable have three common features.
    In each case, the evidence relied upon to prove the offence is entirely
    circumstantial. The offences all allege possession of contraband and involve
    both constructive and actual physical possession. And each conviction is
    impeached as unreasonable largely, but not entirely, because of a lack of
    persuasive force in the evidence relied upon to prove it.

[28]

Before assessing each claim of error the appellant raised, it is helpful
    to recall the basic principles governing an unreasonable verdict that control
    our determination.

Unreasonable Verdicts

[29]

Under s. 686(1)(a)(i), an appellate court may set aside a trial verdict if
    the verdict is either unreasonable, unsupported by the evidence, or both.

[30]

A verdict is unreasonable if it is one that no properly instructed jury,
    acting judicially, could reasonably have rendered. This test requires not only
    an objective assessment of the evidence adduced at trial, but also, to some
    extent at least, a subjective evaluation of that evidence. To discharge this
    responsibility, we are required to review, analyse, and, within the limits of
    appellate disadvantage, weigh the evidence. This weighing is only to determine
    whether that evidence, considered as a whole, is reasonably capable of
    supporting the verdict rendered:
R. v. R.P
., 2012 SCC 22, [2012] 1 S.C.R.
    746, at para. 9;
R. v. Yebes
, [1987] 2 S.C.R. 168, at p. 186;
R. v.
    Biniaris
, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36;
R. v. Burns
,
    [1994] 1 S.C.R. 656, at p. 663.

[31]

A verdict may also be unreasonable where a judge has drawn an inference
    or made a finding of fact that is plainly contradicted by the evidence or is
    incompatible with evidence that is not otherwise contradicted or rejected:
R.P
.,
    at para. 9, citing
R. v. Sinclair
, 2011 SCC 40, [2011] 3 S.C.R. 3, at
    paras. 4, 16, 19-21.

[32]

Two further points warrant brief mention.

[33]

When the claim of an unreasonable verdict rests on the assertion that,
    based on the evidence, the trier of fact could not have reasonably rendered the
    guilty verdict, an appellate court is entitled to consider that the accused did
    not testify at trial or adduce other evidence to support any other reasonable
    inference consistent with innocence:
Corbett v. The Queen
, [1975] 2 S.C.R.
    275, at pp. 280-81;
R. v. Wu
, 2017 ONCA 620, at para. 16.

[34]

The remedy available to an appellant who successfully challenges a trial
    verdict as unreasonable depends on the circumstances of the case and the basis
    upon which the argument succeeds. Where the appellate court is satisfied that
    the verdict is unreasonable because no properly instructed jury, acting
    judicially, could reasonably have reached such a verdict, the appellate court
    should enter an acquittal. The same result would follow when the court determines
    that a finding or inference drawn by the judge contradicted by the evidence or
    incompatible with evidence not otherwise contradicted or rejected and the
    verdict is unavailable on the evidence. But when the verdict is unreasonable but
    available on the evidence, the remedy is a new trial:
Sinclair
, at
    para. 23 (Fish J. dissenting, but not on this point);
R. v. Beaudry
,
2007 SCC 5, [2007] 1 S.C.R. 190, at
    para. 97.

[35]

Having reviewed the legal principles governing unreasonable verdicts, I
    now briefly turn to those that concern circumstantial evidence; expert evidence;
    and proof of possession. Each helps us determine the reasonableness of the
    verdicts in this case.

Circumstantial Evidence

[36]

When the Crowns case consists wholly or substantially of circumstantial
    evidence, the standard of proof requires the trier of fact be satisfied beyond
    a reasonable doubt that the accuseds guilt is the only reasonable inference to
    be drawn from the evidence as a whole:
R. v. Villaroman
, 2016 SCC 33, [2016]
    1 S.C.R. 1000, at para. 20.

[37]

To determine if the circumstantial evidence meets the required standard
    of proof, the trier of fact must keep in mind that it is the evidence, assessed
    as a whole, that must meet this standard of proof, not each individual piece of
    evidence that is but a link in the chain of proof:
R. v. Smith
, 2016 ONCA
    25, 333 C.C.C. (3d) 534, at paras. 81-82;
R. v. Morin
, [1988] 2 S.C.R.
    345, at pp. 360-61;
Côté v. The King
(1941), 77 C.C.C. 75 (S.C.C.), at
    p. 76.

[38]

Inferences consistent with innocence need not arise from proven facts. Rather,
    they may arise from a lack of evidence:
Villaroman
, at para. 35. Accordingly,
    a trier of fact must consider other plausible theories and other reasonable
    possibilities inconsistent with guilt so long as these theories and
    possibilities are grounded on logic and experience. They must not amount to fevered
    imaginings or speculation. While the Crown must negate these reasonable
    possibilities, it need not negate every possible conjecture, no matter how
    irrational or fanciful, which might be consistent with an accused's innocence:
Villaroman
,
    at paras. 37-38. See also
R. v. Bagshaw
, [1972] S.C.R. 2, at p. 8.

[39]

When a verdict that rests wholly or substantially on circumstantial
    evidence is challenged as unreasonable, the question appellate courts must ask
    is whether the trier of fact, acting judicially, could reasonably be satisfied
    that the guilt of the accused was the only reasonable conclusion available on
    the evidence taken as a whole:
Villaroman
, at para. 55. Fundamentally,
    it is for the trier of fact to determine whether any proposed alternative way
    of looking at the case as a whole is reasonable enough to raise a doubt about the
    guilt of the accused:
Villaroman
, at para. 56.

The Admissibility of Expert Evidence

[40]

Three brief points on admissibility provide the appropriate framework to
    assess the expert evidence in this case.

[41]

First, determining admissibility. Decisions on the admissibility of
    expert opinion evidence require a two-step inquiry. At the first step of the
    inquiry, the proponent must establish the threshold requirements laid down in
R.
    v. Mohan
, [1994] 2 S.C.R. 9, at p. 20. See also,
White Burgess
    Langille Inman v. Abbott and Haliburton Co.
, 2015 SCC 23, [2015] 2 S.C.R.
    182, at para. 23. The second, gatekeeping step requires the judge to decide
    whether the benefits of the proposed evidence exceed the risks of admitting it:
White Burgess
, at para. 24.

[42]

Second, preserving admissibility. The trial judge must also ensure the
    expert remains within their field of expertise and that the content of their
    evidence itself is properly expert evidence:
R. v. Sekhon
, 2014 SCC
    15, [2014] 1 S.C.R. 272, at para. 47. This, of course, means the trier of fact cannot
    use expert evidence that extends beyond the witness expertise or is otherwise
    not within the scope of permissible expert evidence, for example, anecdotal
    evidence:
Sekhon
, at para. 50. See also,
R. v. Marquard
, [1993]
    4 S.C.R. 223, at pp. 242-44.

[43]

A final point concerns the admissibility and, in consequence, the trier
    of facts use of expert opinion evidence on the ultimate issue. No general or
    bright line rule prohibits either admission or trier of facts use of expert
    opinion evidence on the ultimate issue. But the proximity of the opinion to the
    ultimate issue requires that the evidence be given special scrutiny:
Mohan
,
    at p. 25;
R. v. J.-L.J
., 2000 SCC 51, [2000] 2 S.C.R. 600, at para.
    37;
R. v. Potts
, 2018 ONCA 294, at para. 47.

Proof of Possession

[44]

Section 4(3) of the
Criminal Code
defines possession. It
    includes:

·

personal
    possession;

·

constructive
    possession; and,

·

joint
    possession.

Our concern here is with personal possession and
    constructive possession. Knowledge and control are essential elements common to
    both:
R. v. Morelli
, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 15.

[45]

When personal possession is alleged, the knowledge element consists of
    two components. An accused must be aware that they have physical custody of the
    thing alleged. And an accused must be aware of what that thing is. These
    elements of knowledge must co-exist with an act of control:
Morelli
,
    at para. 16. See also
R. v. Beav
er, [1957] S.C.R. 531, at pp. 541-42.

[46]

When personal possession is not alleged or cannot be established on the
    evidence, the Crown may rely on constructive possession to prove its case.

[47]

Constructive
possession is established when an accused does not
    have physical custody of the thing but has it in any place for their own or
    another's use or benefit:
Criminal Code
, s. 4(3)(a)(ii). Constructive
    possession is complete where an accused:

i.

has
knowledge
of the character of the thing;

ii.

knowingly
puts or keeps the thing in a particular place,
    irrespective of whether the place belongs to or is occupied by the accused; and

iii.

intends
to have the thing in the place for the use or benefit
    of the accused or of another person.

Morelli
, at para. 17.

[48]

In many cases, the evidence relied upon to prove constructive possession
    is wholly or substantially circumstantial.

[49]

Two further points deserve brief mention.

[50]

When things are found in a premises or place occupied by an accused, no
    presumption of knowledge and control arises from proof of occupancy. Put
    simply, occupancy does not create a presumption of possession:
R. v. Watson
,
    2011 ONCA 437, at para. 13;
R. v. Lincoln
, 2012 ONCA 542, at para. 3.

[51]

We define knowledge as
true
belief:
United States of
    America v. Dynar
, [1997] 2 S.C.R. 462, at para. 41. It includes not only
    actual knowledge but also wilful blindness.

[52]

Wilful blindness involves a degree of awareness of the likely existence
    of the prohibited circumstances together with a blameworthy conscious refusal
    of self-enlightenment. A person, aware of the need for some inquiry, who declines
    to make that inquiry because they do not wish to know the truth, is wilfully
    blind:
R. v. Williams
, 2003 SCC 41, [2003] 2 S.C.R. 134, at paras. 27-28;
R. v. Briscoe
, 2010 SCC 13, [2010] 1 S.C.R. 411, at paras. 22-24;
Sansregret
    v. The Queen
, [1985] 1 S.C.R. 570, at p. 584.

[53]

With these general principles in mind, I turn now to consider the convictions
    on individual counts, each of which is said to be unreasonable.

The Loaded Restricted Firearm

[54]

The first count in the indictment alleged that the appellant possessed a
loaded
restricted firearm  a Ruger handgun  without the required
    authorization, licence and registration certificate.

[55]

I am satisfied that the verdict on this count is unreasonable. Before
    turning to my reasons, I will examine the background giving rise to this
    allegation; the trial judges reasons; the parties positions; and the
    governing legal principles.

The Essential Background

[56]

The firearm that is the subject of this count is a Ruger handgun. It is
    silver in colour and functions as a semi-automatic firearm. It was found fully-loaded
    with a detachable box magazine inserted into a receptacle in the grip of the
    gun. The magazine holds 11 cartridges.

[57]

The Ruger is a restricted .22 calibre firearm. The several boxes of .22
    calibre ammunition only suitable for use in the Ruger, one of the three
    handguns found in the apartment, were also found in the apartment during the
    search.

[58]

At trial, the Ruger handgun, and several photographs of it, were filed
    as an exhibit. Those photographs appear to show that when the magazine is in
    place it sits flush with the bottom of the handgrip. When the magazine is
    removed, however, it is not clear whether the bottom end of the receptacle
    remains open, not closed, as it is when the magazine is in place.

[59]

No firearms examiner testified at trial. Instead, a document containing
    several formal admissions was filed as an exhibit. The admissions included the
    contents of a Certificate of Analysis by a person designated by the Toronto Police
    Service as an examiner of weapons, prohibited devices, ammunition and
    prohibited ammunition, including their parts and components. It did not,
    however, establish any difference between the firearm being loaded or unloaded.

The Trial Judges Reasons

[60]

The trial judge accepted the evidence of the several police officers who
    saw and described the appellant's motions with the silver object while seated
    on the couch. It was uncontested that the silver object was, in fact, the Ruger
    semi-automatic handgun loaded with a full 11-shot magazine.

[61]

The trial judge then considered whether the Crown had proven the fault
    element required for this offence under s. 95(1) of the
Criminal Code
.
    On this issue, she concluded:

To satisfy the knowledge component of personal possession, the
    accused must: (1) be aware that he/she has physical custody of the thing in
    question; and (2) be aware of what that thing is: see
R. v. Morelli
,
    2010 SCC 8, [2010] 1 S.C.R. 253, at para. 16. In
R. v. Tyrell
, 2014
    ONCA 617, the Ontario Court of Appeal wrote at para. 30: [p]roof of knowledge,
    or of its close cousin, wilful blindness, demands a subjective inquiry. The
    question is what did the accused know and not what ought he to have known.

The mental element is made out in my view, by the inference
    that Mr. Lights had knowledge of the gun and deliberately moved it out of sight
    of the police. By manually handling the gun, it is implicit that the accused
    was aware that he had physical custody of the thing in question and
knew
    that it was a loaded firearm
. The facts of this case also suggest that the
    accused was subjectively aware of the guns criminal character: why else would
    Mr. Lights attempt to conceal the gun from the police if not for his
    recognition that the gun was an illicit item? To paraphrase, the Court of
    Appeal in
R. v. Williams
, 2009 ONCA 242, at para. 20, the accused knew
    the loaded handgun that he had in his possession was indeed a loaded handgun,
    the possession of which was contrary to the statute. [Emphasis added.]

The Arguments on Appeal

[62]

The appellant says that the conviction entered on this count is
    unreasonable. The evidence on this issue was entirely circumstantial and did
    not establish, beyond a reasonable doubt, the appellant knew the firearm was
    loaded. Other inferences were equally available on the evidence. The
    appellant's guilt does not follow from the rejection of Jahdel Myers' testimony
    about ownership of the gun and his placement of it between the cushions on the
    couch on which the appellant was sitting. And mere occupancy of the apartment
    does not establish an occupant's knowledge of all the things in that apartment,
    much less their inherent characteristics. On this basis, the appellant asks
    this court to set aside the verdict and enter an acquittal in its place.

[63]

The respondent accepts that the critical issue at trial was the adequacy
    of the evidence to establish the appellant's knowledge that the Ruger was
    loaded. But the respondent contends that, having found that the appellant handled
    the loaded Ruger, it was open to the trial judge in those circumstances to
    infer actual knowledge that the gun was loaded. That the trial judge drew this
    inference in the circumstances does not make her conclusion of guilt
    unreasonable in the absence of any other reasonable possibility or plausible
    theory.

The Governing Principles

[64]

Earlier in these reasons, I canvassed several general principles equally
    applicable to our determination of this claim of unreasonable verdict: the
    essential elements of possession; the standard to be applied in determining
    whether a verdict grounded on circumstantial evidence was unreasonable; and the
    admissibility of expert opinion evidence. I see no need to repeat this
    discussion of basic principles.

[65]

Instead, I focus my attention on the essential elements of the offence
    with which we are concerned  s. 95(1) of the
Criminal Code
 and more
    particularly, on its fault element.

[66]

Under s. 95(1), the Crown must prove beyond a reasonable doubt that the
    appellant
knew
that the firearm was loaded:
R. v. Eastgaard
,
    2011 ABCA 152, 276 C.C.C. (3d) 432, at para. 8, affd 2012 SCC 11, [2012] 1
    S.C.R. 393;
R. v. Hunter
, 2016 BCCA 94, at para. 25.

[67]

To prove this essential element of knowledge, the Crown may attempt to
    establish that the accused actually knew that the firearm was loaded. But the
    Crown is not restricted to proof of actual knowledge. The Crown could also
    establish knowledge by showing that the accused was wilfully blind that the
    firearm was loaded, explained in the section on general principles above.

[68]

One further point about wilful blindness.

[69]

Wilful blindness, perhaps better described as deliberate ignorance,
    involves a person who has become aware of the need for some inquiry but
    declines to make that inquiry because they would prefer to remain ignorant:
Sansregret
,
    at p. 584;
Briscoe
, at para. 22. The doctrine is narrow in scope lest
    it become indistinguishable from negligence in failing to acquire knowledge:
Briscoe
,
    at para. 23, citing
Glanville Williams,
Criminal Law
,
The General Part
,
    2nd ed.
(United Kingdom: Stevens & Sons Ltd., 1961), at p. 159.

The Principles Applied

[70]

As I will briefly explain, I am satisfied that this ground of appeal
    succeeds. In the result, I would set aside the conviction on this count and
    enter an acquittal.

[71]

I approach our task in connection with this ground of appeal mindful of
    basic principles. A verdict is reasonable if it is one that a properly
    instructed trier of fact acting judicially could reasonably have rendered. In
    our application of this standard, we are to re-examine and, to some extent,
    within the limits of appellate disadvantage, to reweigh and consider the
    cumulative effect of the evidence adduced at trial. In this case, where the
    evidence on the controverted issue of knowledge is entirely circumstantial, our
    task is to determine whether a trier of fact, acting judicially, could reasonably
    have been satisfied that the appellant's guilt was the only reasonable inference
    available on the evidence taken as a whole. And we must also have in mind that
    it remains fundamentally for the trier of fact to decide whether any proposed
    alternative way of looking at the case is reasonable enough to raise a doubt.

[72]

We begin by eliminating the uncontroversial.

[73]

The trial judge accepted the evidence of the police officers who
    executed the search warrant at the appellant's apartment. This evidence, taken
    as a whole, established that the appellant was in actual possession of the
    Ruger handgun, which he attempted to move beneath his buttocks as he sat on the
    couch in the living room area of the apartment. The gun, fully loaded with a
    box magazine containing 11 cartridges, is a restricted firearm. This evidence
    established the
actus reus
of the offence under s. 95(1).

[74]

In her analysis of the fault element required to establish personal
    possession, the trial judge was satisfied that by manually handling the gun,
    the appellant knew what he handled was a
loaded
firearm.

[75]

In my view, knowledge of the nature of the object he handled as a
    firearm, without more, does not establish knowledge, actual or imputed, that
    the firearm was loaded. The problem, as I see it, is twofold. I would
    characterize the conclusion as the product of speculation, not inference. And,
    in the circumstances of this case, even characterizing it as an inference does
    not meet the standard of proof required, that is to say, it is not the only
    reasonable inference available on the totality of the evidence.

[76]

The offence was possession of a
loaded
restricted firearm. Once
    again, the evidence falls short of what is required.

[77]

For these reasons, I am satisfied that the conviction on this count
    cannot stand. I would set it aside as unreasonable and enter an acquittal on
    that count.

The Drug Counts

[78]

The appellant was convicted of two separate drug counts: possession of
    marijuana and of cocaine for the purposes of trafficking. Like the possession
    of a loaded firearm offence, I conclude that these verdicts are unreasonable.

[79]

A brief discussion of the background, the expert evidence given at trial;
    the trial judges reasons; the parties positions; and the governing principles
    is the logical point of departure for our analysis.

The Essential Background

[80]

The drugs that were the subject-matter of these counts were those found during
    the search of the black bag found in the front hallway of the appellant's
    apartment. The bag was zipped closed. No identification was found attached to
    it, displayed on it or located inside it. Officers executing the search warrant
    did not see the bag when they entered the apartment. They only saw it after all
    the occupants had been arrested and secured and a more thorough search of the
    apartment had begun. The bag was equidistant from the various occupants.

[81]

Searching officers found several other things associated with drug
    trafficking at different places in the apartment. A vacuum sealer. A money
    counter. Scales. Baggies. Marijuana. A safe containing $9,450 in currency and
    two cellphones.

The Evidence of Detective Hutchings

[82]

The appellants trial counsel acknowledged that Detective Hutchings, a
    member of the Drug Squad of the Toronto Police Service, was qualified to
    provide expert opinion evidence about proceeds of crime and trafficking in
    marijuana and cocaine. This included evidence about the
modus operandi
of traffickers; the methods of payment for drug purchases; the association of
    drug trafficking with firearms; and the interpretation of documents associated
    with drug trafficking.

[83]

Det. Hutchings gave evidence that the amounts of drugs and cash,
    together with the presence of firearms reflected a mid-to-high-level
    trafficker. He explained that drug trafficking is a cash business. Drug
    traffickers use vacuum sealing to mask the smell of the drug and to keep it
    fresh for prospective buyers and use safes to store drugs and money to guard
    against robberies.

[84]

The presence of a large scale, placement of a Tupperware container with
    marijuana residue in it on the scale, and packaging of both the marijuana
    (smaller baggies insider larger sealed Ziploc) and the cocaine (ounce-level
    deals) confirmed this level of trafficking. As did a book found in the
    apartment, which contained numbers reflective of various amounts, but it was
    not a typical debt list.

[85]

Det. Hutchings also gave evidence that the person with the key to the
    safe that contained large amounts of currency consistent with the proceeds of
    trafficking was likely the person in charge of the trafficking operation.
    Absent the duffel bag and its contents, Det. Hutchings considered that the
    evidence revealed both current and future trafficking in marijuana from the
    apartment.

The Trial Judges Reasons

[86]

The trial judge considered at length whether the evidence adduced at
    trial proved the essential elements of the two counts alleging possession of
    marijuana and of cocaine for the purpose of trafficking. She itemized the
    evidence she considered relevant to the critical issue of knowledge and control
    of the drugs found in the duffel bag:

Mr. Lights was the main occupant of unit 1810 as demonstrated
    by his clothing, documents, medication and inhalers, and other personal items
    he kept at the apartment;

Mr. Lights had been in the Dominican Republic for one week,
    until February 16, 2014, but was back in Canada and living at his residence
    prior to his arrest;

While Mr. Lights occupied the apartment, there was evidence
    that Paul Hibbert was named as tenant on the lease and had articles with his
    name on it (the computer and the blank cheques) in the apartment and Kimberley
    Johnson had several articles of clothing and personal documents in the
    apartment and was present in the bedroom when police executed the warrant;

When police entered the apartment, they did not notice the bag
    until the warrant had been executed and the occupants had been removed from the
    premises. Even so, the black bag was located in full view in the hallway, in a
    common, high-traffic area of the apartment;

The black bag was zipped up and had no identifying information
    on or in it;

There is no direct evidence that Mr. Lights knew that the bag
    was in his apartment or that the contents of the bag were illicit;

The apartment was filled with drug paraphernalia including the
    vacuum sealer, money counter, scales, baggies, and a safe with $9,450 in
    bundled cash, as well as marijuana in other parts of the apartment and an odour
    of burnt marijuana;

There were other visitors in the apartment at the time the
    search warrant was executed.

[87]

On the issue of
control
, the trial judge concluded that this
    essential component of possession had been established on the basis of the
    appellant's occupancy of the apartment in which the bag containing the drugs
    was found:

Based on the above facts, I find that Mr. Lights had control of
    the bag in question. As noted above, the Crown must prove that the accused had
    a measure of control over the item in issue. Control refers to power or
    authority over the item whether exercised or not. I am satisfied that Mr.
    Lights had sufficient control for the purposes of making out the offence of
    possession. The existence of his clothing, photographs, medications and
    inhalers, and personal documents demonstrate that Mr. Lights was the main
    occupant of unit 1810. While Paul Hibbert was named as tenant on the lease and
    had articles with his name on it (e.g. the computer, the blank cheque book in
    the bedroom, the energy management bill and the insurance envelope), there is
    no evidence that he resided there. Kimberley Johnsons name was on her
    passports and other personal documents. She appeared to reside at the apartment
    for at least some time, and was there when the search warrant was executed;
    however, she was not a full-time occupant. In my view, the existence of the
    numerous personal effects of Mr. Lights, including the Rogers bill addressed to
    him at the apartment, demonstrates that he was the primary occupant of the
    residence. I find the evidence probative in determining Mr. Lights ability to
    grant or withhold consent to the duffel bag being in his apartment.

[88]

Turning to the requirement of
knowledge
, the trial judge
    recognized the fact-specific nature of this inquiry. She then examined several
    precedents in which courts in similar circumstances had considered whether the
    evidence was sufficient to prove knowledge. At the conclusion of her recital of
    these authorities, the trial judge reasoned that the required standard of proof
    had been met:

In conclusion, considering the cumulative effect of all the
    evidence led, and the fact that the evidence did not support any other
    reasonable inference other than that the accused had knowledge of and a measure
    of control over the duffle bag and its contents, I find that the Crown has
    established beyond a reasonable doubt the elements of knowledge of and control
    over the drugs found in the bag.

The evidence also demonstrates, and it is conceded, that the
    quantity of drugs would support the conclusion that, if possession were
    established, the possession was for the purpose of trafficking. Accordingly,
    the prosecution has proven beyond a reasonable doubt the offences of possession
    of the drugs for the purpose of trafficking.

The Arguments on Appeal

[89]

The appellant says the convictions on both drug counts are unreasonable
    because the evidence, taken as a whole, cannot establish his possession of the
    drugs as the only reasonable inference available on that evidence. The absence
    of any evidence specifically linking the appellant to the black bag containing
    both marijuana and cocaine gives rise to other available inferences. Five other
    people were present at the time the bag was found. It was found in the open, in
    an area not hidden away from view or together with other drug paraphernalia or
    proceeds of drug activity. And no evidence supports an inference of
    pre-concerted activity amongst those present.

[90]

The appellant continues, the trial judge reached her finding of guilt on
    these counts, at least in part, by relying on evidence of Det. Hutchings that was
    anecdotal and exceeded his expertise. Det. Hutchings testimony was, in other
    respects, speculative and should not have been used on the ultimate issue of
    the appellants guilt.

[91]

The respondent rejects any suggestion that the findings of guilt on the
    drug counts are unreasonable. The trial judge was well aware of the
    circumstantial nature of the evidence relied upon by the Crown and the standard
    of proof required to establish the appellant's guilt on the drug counts. The
    cumulative force of the evidence satisfied the burden of proof settled upon the
    Crown: the bag was in the hallway of the appellant's home; the contraband was
    not hidden away out of plain view; drug paraphernalia and the proceeds of
    commercial drug activity were all around; and the appellant had the key to the
    safe where the proceeds were located.

[92]

The respondent also says the trial judge did not err in her use of Det.
    Hutchings testimony. His qualifications were admitted. Trial counsel did not
    object to the admissibility of any part of his evidence. He was not
    cross-examined on the testimony he gave about the significance of possession of
    the key to the safe in determining who controlled the trafficking operation. And
    his evidence did not include anecdotal evidence in breach of the prohibition in
Sekhon
nor offend what little remains of the rule prohibiting expert
    opinion evidence on the ultimate issue.

The Governing Principles

[93]

Earlier in these reasons, I canvassed several general principles equally
    applicable to our determination of this claim of unreasonable verdict. Those
    principles, which had to do with the essential elements of possession; the
    standard to be applied in determining whether a verdict grounded on
    circumstantial evidence was unreasonable; and the admissibility of expert
    opinion evidence, need not be repeated here. I add two brief points to the
    previous discussion.

[94]

The first concerns anecdotal evidence included within otherwise
    admissible expert opinion evidence.

[95]

The rule against anecdotal evidence as part of an expert's opinion
    testimony originates in
Sekhon
. There, Moldaver J. held that anecdotal
    evidence while logically relevant, was not legally relevant. It should not be
    admitted because it says nothing about the appellants guilt: at para. 49.

[96]

The Supreme Court identified two further problems with the anecdotal
    evidence  its prejudicial effect and its tendency to require a response from
    the accused, which compromises the burden of proof:
Sekhon
, at para.
    50.

[97]

Second, the availability of inferences about the elements of possession
    from occupancy of or control over premises.

[98]

In some instances, occupancy of premises, more particularly, the
    authority to control access to them, may support an inference of control over
    drugs found there when coupled with evidence of knowledge:
Re Chambers and
    the Queen
(1985), 20 C.C.C. (3d) 440 (Ont. C.A.), at pp. 446-48. See also
R.
    v. Pham
(2005), 203 C.C.C. (3d) 326 (Ont. C.A.), at paras. 25-29.

The Principles Applied

[99]

As I will explain, I am satisfied this ground of appeal has merit and
    warrants an order setting aside the convictions of possession of cocaine and of
    marijuana for the purposes of trafficking and entering acquittals on those
    counts.

[100]

The appellant's
    liability on these counts cannot be established on the basis that he had the
    bag and its contents in his actual physical possession. Unlike the firearm the
    appellant handled while sitting on the couch and attempted to remove from the police
    view, the bag containing the drugs was in the hallway equidistant from the
    occupants of the living room and kitchen area, including, but not only the
    appellant.

[101]

Absent evidence
    of actual physical possession, the Crown was required to show that possession
    of the drugs in the bag could be attributed to the appellant under s. 4(3)(a)(ii)
    of the
Criminal Code
(constructive
    possession)
or that he was in joint possession of them under s.
    4(3)(b).

[102]

To establish
    constructive possession, the Crown was required to prove that the appellant
    knew the bag contained drugs, intended to possess them and had the necessary
    control over them. Because the evidence the Crown relied upon was entirely
    circumstantial, to establish the appellants guilt beyond a reasonable doubt the
    Crown was required to prove each essential element was the only reasonable
    inference available on the evidence taken as a whole.

[103]

I reject the
    appellant's claim that the trial judge was not entitled to rely on Det.
    Hutchings' expert testimony because it included anecdotal evidence and
    contravened the ultimate issue rule. The opinion offered consisted of two
    components. The first  that the apartment exhibited the characteristics of a
    premises from or in which drug trafficking was taking place  was a reasonable
    inference from the presence of several indicia of trafficking in the apartment.
    Scales. Packaging. A money counter. A vacuum sealer. Currency in denominations
    typical of proceeds of drug trafficking. The second  that the person who
    controlled the money was the person in charge of the scheme  was also a
    reasonable inference, untainted by any anecdotal elements as in
Sekhon
.

[104]

In this case,
    the evidence disclosed that, although he did not sign the lease, the appellant
    was a principal occupant of the apartment. And as the principal occupant, it is
    reasonable to infer that the appellant controlled access to the premises.

[105]

But the black
    duffel bag and its contents was in a common area near the entrance to the
    apartment, equidistant to all six male occupants in possession of three
    fully-loaded handguns. The duffel bag was closed, its contents not visible from
    its exterior. There was no identification in, on, or attached to the bag. No
    forensic evidence linked the appellant to the bag. There was no evidence of its
    origins or how it came to be in its location. In these circumstances, we simply
    cannot say that the only reasonable inference from the evidence as a whole is
    that the appellant was in possession of the bag and its cache of contraband.

[106]

In the result, I
    would set aside the convictions on the drug counts and enter verdicts of
    acquittal.

The Proceeds Count

[107]

The appellant
    also challenges as unreasonable his conviction of possession of the proceeds of
    crime. The allegation relates to $9,450 in currency found in a locked safe in
    the bedroom closet of the appellants apartment.

[108]

I am satisfied
    that the finding of guilt on this count is reasonable. A brief reference to
    some additional background provides the framework essential for an evaluation
    of this ground.

The Essential Background

[109]

When police
    searched the bedroom, they found a black bulletproof vest under the bed. They
    also found several items in the closet:

i.

a locked safe with a lockbox on top of it and a pouch containing bundled
    Canadian currency in the amount of $9,450, together with a small amount of
    United States currency, some jewellery and cellphones;

ii.

a coke can with a hidden compartment;

iii.

a box containing a vacuum sealer and money counter;

iv.

mens clothing and shoes;

v.

prescription medication.

[110]

Elsewhere in the
    bedroom police found the appellants passport and birth certificate, as well as
    various items of prescribed medication, medical appointment cards, a credit
    card statement, and a bill from a service provider all in the appellants name.
    The appellants passport showed an entry in the Dominican Republic on February
    16, 2014, the day before the search was conducted.

[111]

On arrest,
    police located a key to the safe in the appellants pocket.

The Trial Judges Reasons

[112]

The trial judge
    explained why she found the appellant guilty of possession of the proceeds of
    crime:

In my view, the evidence in this case including the presence of
    a digital scale with remnants of marijuana on the kitchen counter, evidence of
    smoking of marijuana, a locked safe with money where the key was found on Mr.
    Lights person and where the safe was in the bedroom occupied by Mr. Lights, a
    vacuum sealer, a money counter, magazines about marijuana and guns, the black
    bag containing packaged cocaine and marijuana, the presence of three firearms
    and a bullet proof vest in the apartment are all pieces of circumstantial
    evidence consistent with a drug trafficking operation being conducted by Mr.
    Lights from this apartment. In the opinion of Detective Hutchins who was
    qualified as an expert on proceeds of crime and drug trafficking, this type of
    evidence is characteristic of a drug trafficking operation and the manner in
    which the cash was stored and bundled was characteristic of proceeds of crime.
    In reaching this conclusion, I rely in no way on the presence of a black book
    with some numbers listed in it. That item cannot be said to be a debt book as
    suggested by the Crown. However, there are numerous other indicators of a drug
    trafficking operation. I am satisfied beyond a reasonable doubt that the money
    (more than $9,000) in the bundles locked in a safe was proceeds obtained by the
    commission of the offence of drug trafficking.

The Arguments on Appeal

[113]

The appellant says
    that the trial judge found him guilty on the proceeds count on the basis that:

i.

drug trafficking was taking place in the apartment;

ii.

the appellant had exclusive access to the safe, and thus had possession
    of its contents; and,

iii.

the appellant had failed to adduce any evidence to contradict the
    presumption arising from the possession of the currency and evidence of drug
    trafficking.

[114]

According to the
    appellant, the trial judges finding is unreasonable because of two errors she
    made in reaching her conclusion. She relied on the expert opinion evidence of
    Det. Hutchings to conclude that the appellant had exclusive access to the safe,
    thus was in the possession of its contents. The safe had a keypad. At least one
    other person  Kim Johnson  had access to the room in which the safe was
    located. And about one-third of the money in the safe was labelled Kim. At
    all events, the opinion expressed by Det. Hutchings was either anecdotal
    evidence or an opinion that exceeded the scope of the officers expertise. In
    addition, the trial judge erred by treating possession of the currency as the
    possession of the proceeds of crime as a presumptive conclusion based on the
    finding of guilt on the drug counts.

[115]

The respondent
    rejects any suggestion that the finding of guilt was grounded on impermissible
    use of the expert testimony of Det. Hutchings, or reliance upon a rebuttable
    presumption to ground the necessary findings of unlawful origin and knowledge
    of or wilful blindness about the origins of the currency. The respondent says
    that the necessary findings were the product of a reasoned consideration of the
    totality of the evidence. The trial judge drew the only reasonable inference
    available on the totality of that evidence.

The Governing Principles

[116]

Our decision on
    this ground of appeal involves application of principles already discussed in
    connection with the previous grounds of appeal. Their repetition is
    unnecessary.

The Principles Applied

[117]

As I will
    briefly explain, I am satisfied that this ground of appeal fails.

[118]

At its core, the
    appellants claim of unreasonableness alleges that the trial judge erred in
    relying on two items of evidence to find guilt established on the proceeds
    count:

i.

evidence of drug trafficking in the apartment; and,

ii.

evidence that the appellant had exclusive access to the safe containing
    $9,450 in cash and other items.

[119]

To establish the
    appellants guilt on the proceeds count, it was incumbent on the Crown to prove
    beyond reasonable doubt, among other things, that:

i.

the appellant was in possession of proceeds of property;

ii.

the proceeds were obtained by crime; and,

iii.

the value of the proceeds exceeded $5,000.

The count particularized the proceeds as Canadian
    currency of a value exceeding five thousand dollars but did not specify the
    offence punishable by indictment from which the proceeds were derived or
    obtained.

[120]

The proceeds
    alleged were the Canadian currency in the safe in the bedroom. The amount of
    currency exceeded $5,000. The appellant had a key to the safe. It was the only
    key located during the investigation. Other items in the bedroom and in close
    proximity to the safe were also linked to the appellant. The cumulative effect
    of this evidence supported the finding that the appellant was in possession of
    the currency found in the safe. Whether his possession was exclusive or joint
    with Kim Johnson was of no moment to proof of these essential elements.

[121]

It was also
    incumbent on the Crown to prove beyond a reasonable doubt the
unlawful
    origin
of the currency of which the appellant was in possession. As is the
    practice in this jurisdiction, the count did not specify the indictable offence
    from which the currency was derived. At trial, the Crown sought to establish
    the genesis of the funds was trafficking in controlled substances. To establish
    these origins, the Crown relied on the evidence located on search of the
    apartment and the opinion evidence of Det. Hutchings.

[122]

In my view, the
    cumulative effect of the evidence located on search of the appellants
    apartment and the properly admissible opinion testimony of Det. Hutchings fully
    supported a conclusion that drug trafficking was being carried on by the
    appellant. The instrumentalities of the offence were in abundance in the
    apartment. Scales. A vacuum sealer. Baggies. A money counter. Marijuana residue
    in a Tupperware container on a set of scales. The appellant lived there.
    Several items of his personal property were located in the bedroom, much of it
    in close proximity to the safe. Bundled cash in denominations typical of, albeit
    not unique to, the proceeds of drug sales in a locked safe to which the
    appellant had the only key. The evidence fully supported the trial judges
    conclusion that the nexus required to establish the origins of the currency had
    been proven.

[123]

Nor am I
    persuaded that the inferences drawn by the trial judge in reaching her finding
    of guilt on the proceeds count were tainted by reliance on anecdotal evidence
    from Det. Hutchings, or by presuming guilt from her prior finding of guilt on
    the possession for the purpose counts. The opinion testimony of Det. Hutchings
    did not fall foul of the prohibition against anecdotal evidence announced in
Sekhon
.
    The essence of the officers opinion was expressed in answer to a hypothetical
    question based on a premise which consisted of the findings on search of the
    appellants apartment. He did not, as in
Sekhon
,
offer an opinion about the appellants
    state of mind  in particular, his knowledge  on the basis of the states of
    mind of others.

[124]

Nor can it be
    said that the trial judge found guilt on this count established because she had
    earlier found the appellant guilty of possession of cocaine and of marijuana
    for the purposes of trafficking based on the contents of the black duffel bag
    found in the hallway. Read as a whole, the reasons of the trial judge do not
    reveal such presumptive reasoning or infidelity to the burden of proof.

[125]

As a result, this
    ground of appeal fails.

The Prohibited Device Count

[126]

The appellant
    also challenges his conviction on the count alleging possession of a prohibited
    device as unreasonable.

[127]

I am satisfied
    that the verdict on this count is unreasonable. Some additional background is
    required to better understand this ground of appeal.

The Essential Background

[128]

In count 3 in
    the indictment, the appellant was charged with possession of a prohibited
    device, to wit: an over-capacity magazine, knowing that he was not the holder
    of a licence under which he may possess it. No further description of the
    device was provided.

[129]

When police
    officers entered the apartment to execute the search warrant, they saw the
    appellant attempting to hide a silver object as he sat on the living room
    couch. The object was a .22 calibre Ruger semi-automatic handgun. The handgun
    was loaded with an 11-shot detachable box magazine.

[130]

No firearms
    examiner testified at trial. A Certificate of Analysis was filed as an exhibit.
    The only prohibited device described in that Certificate was a 15-shot detachable
    9 mm box magazine found in the 9 mm Luger calibre Glock semi-automatic handgun
    seized from Rohan Reid. In addition to the detachable 11-shot box magazine
    found in the .22 calibre Ruger semi-automatic handgun, police also found 350
    rounds of .22 calibre LR ammunition suitable for use in the Ruger handgun.
    These cartridges are described in the Certificate of Analysis as ammunition.

The Trial Judges Reasons

[131]

The trial judge
    referred to the section under which the appellant was charged, s. 92(2) of the
Criminal
    Code
, then described the ammunition found in the apartment. The reasons
    contain no reference to either a prohibited device or the prohibited device
    described in the count  the over-capacity magazine. After summarizing the
    essential elements of possession and the modes of participation described in ss.
    21(1)(b), (c) and 21(2) of the
Criminal Code
, the trial judge
    concluded:

I am satisfied beyond a reasonable doubt that Mr. Lights was in
    possession of ammunition found in the apartment.

The Arguments on Appeal

[132]

The appellant
    contends that the verdict on the prohibited device count is unreasonable. The
    only evidence of a prohibited device in the Certificate of Analysis related
    to a box magazine with capacity of 15-9 mm Luger cartridges found in the Glock
    9 mm semi-automatic handgun. There was no evidence that the appellant knew
    about the Glock or whether it was loaded with an over-capacity magazine, much
    less that he exercised any control over either. Nor was there any evidence that
    the appellant knew that the Ruger of which he had physical possession was
    loaded, or all the more so, that it was loaded with what the law characterizes
    as a prohibited device.

[133]

The respondent
    says that the prohibited device count referred to the over-capacity box
    magazine found in the Ruger of which the appellant had actual physical
    possession. There was no dispute that this box magazine was over-capacity. As a
    result, it was a prohibited device within s. 84(1) of the
Criminal Code
because
    it falls within s. 3(1)(b) in Part 4 of the Schedule under
Regulations
    Prescribing Certain Firearms and Other Weapons, Components and Parts of
    Weapons, Accessories, Cartridge Magazines, Ammunition and Projectiles as
    Prohibited, Restricted or Non-Restricted
, SOR/98-462. The appellant had
    physical possession of the Ruger. He knew it was loaded. This was a sufficient
    basis for a finding of guilt to be entered and the conviction recorded.

The Governing Principles

[134]

The term
    prohibited device is exhaustively defined in s. 84(1) of the
Criminal
    Code
for the purposes of Part III. Among other things, a prohibited
    device is a cartridge magazine that is prescribed to be a prohibited device.
    In SOR/98-462, as amended, Part 4  Prohibited Devices, in s. 3(1) provides:

Any cartridge magazine

.

(b) that is capable of containing more than 10
    cartridges of the type for which the magazine was originally designed and that
    is designed or manufactured for use in a semi-automatic handgun that is
    commonly available in Canada.

[135]

Section 84(1)
    defines ammunition, as well as prohibited ammunition. Prohibited device
    is not part of either definition.

The Principles Applied

[136]

Three reasons
    persuade me that this conviction cannot stand.

[137]

First, the
    reasons of the trial judge failed to record the findings of fact necessary to
    support a conviction on this count.

[138]

The appellant
    was charged with unlawful possession of a prohibited device. The prohibited
    device of which he was alleged to have been in unlawful possession was an
    over-capacity magazine. The device was not further described or particularized
    in the count.

[139]

But, with
    respect, the findings of the trial judge on this count are unclear. She does
    not identify the prohibited device which is the subject of the count, indeed nowhere
    uses the term prohibited device. The finding that the appellant was in
    possession of the ammunition found in the apartment cannot sustain a
    conviction under s. 92(2). Possession of ammunition is not possession of a prohibited
    device.

[140]

Second, my
    conclusion that the appellants conviction of possession of the Ruger, a
    restricted firearm, knowing that it was
loaded
, was unreasonable
    requires the same conclusion on the prohibited device count. The absence of
    evidence to support the finding of knowledge or wilful blindness that the gun
    was loaded requires the same conclusion for possession of the device with which
    it was loaded.

[141]

Finally, I can
    see no basis upon which the appellant can be found guilty on the prohibited
    device count in connection with the magazine contained in the Glock handgun in
    Rohan Reids possession. The absence of evidence to support the finding of
    actual knowledge or wilful blindness about whether that gun was loaded
    eliminates it as a basis for conviction on this count.

[142]

For these
    reasons, I would also set aside the conviction on this count and enter a
    verdict of acquittal.

The Sentence Appeal

[143]

The appellant
    also appeals his sentence. He sought a reduction in the length of the term of
    imprisonment  9.5 years  imposed at trial. Apart from seeking a reduction in
    quantum, to some extent dependent on success on the appeal from conviction, he
    made no specific submissions on sentence either in writing or in oral argument.

[144]

Following the
    appellants conviction, the trial judge imposed a global sentence of 9.5 years:

·

Possession of a loaded restricted firearm: 6.5 years

·

Possession of a firearm without a licence or registration
    certificate: 5 years (concurrently)

·

Possession of cocaine for the purposes of trafficking: 3 years
    (consecutively)

·

Possession of marijuana: 2 years (concurrently)

·

Possession of proceeds of crime: 3 years (concurrently)

[145]

The effect of the
    decision on the conviction appeal is that the sentence is reduced to a term of
    5 years. I see no basis upon which to reduce it further.

[146]

Having regard
    to
R. v. Boudreault
, 2018 SCC 58, [2018] 3 S.C.R. 599, the
    victim surcharge must also be set aside.

Disposition

[147]

For these
    reasons, I would allow the appeal from conviction on counts 1, 3, 4 and 5 of
    the indictment and enter acquittals on those counts. I would dismiss the appeal
    from conviction on counts 2 and 6.

[148]

I would grant
    leave to appeal sentence on counts 2 and 6 but dismiss the appeal from sentence
    on those counts. In the result, the sentence is 5 years. The victim surcharge
    is set aside.

Released: (DW) February 18, 2020

David Watt J.A.

I agree. Grant
    Huscroft J.A.

I agree. Gary
    Trotter J.A.


WARNING

The President of the panel hearing this
    appeal directs that the following should be attached to the file:

An order restricting publication in this
    proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2)
    of the
Criminal Code
shall continue.  These sections of
the Criminal
    Code
provide:

486.4(1)       Subject to subsection
    (2), the presiding judge or justice may make an order directing that any
    information that could identify the victim or a witness shall not be published
    in any document or broadcast or transmitted in any way, in proceedings in
    respect of

(a)     any of the following offences;

(i)      an offence under section 151,
    152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2,
    173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
    286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence under this Act, as
    it read at any time before the day on which this subparagraph comes into force,
    if the conduct alleged involves a violation of the complainants sexual
    integrity and that conduct would be an offence referred to in subparagraph (i)
    if it occurred on or after that day; or

(iii)     REPEALED: S.C. 2014, c. 25,
    s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)     two or more
    offences being dealt with in the same proceeding, at least one of which is an
    offence referred to in paragraph (a).

(2)     In proceedings in respect of the
    offences referred to in paragraph (1)(a) or (b), the presiding judge or justice
    shall

(a)     at the first reasonable
    opportunity, inform any witness under the age of eighteen years and the victim
    of the right to make an application for the order; and

(b)     on application made by the
    victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in
    proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice may make an order directing that any information that could identify
    the victim shall not be published in any document or broadcast or transmitted
    in any way.

(2.2) In proceedings in respect of an offence
    other than an offence referred to in subsection (1), if the victim is under the
    age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the
    victim of their right to make an application for the order; and

(b) on application of the victim or the
    prosecutor, make the order.

(3)     In proceedings in respect of an
    offence under section 163.1, a judge or justice shall make an order directing
    that any information that could identify a witness who is under the age of
    eighteen years, or any person who is the subject of a representation, written
    material or a recording that constitutes child pornography within the meaning
    of that section, shall not be published in any document or broadcast or
    transmitted in any way.

(4)     An order made under this section
    does not apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community.
2005, c.
    32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014,
    c. 25, ss. 22,48; 2015, c. 13, s. 18..

486.6(1)       Every person who fails to
    comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or
    (2) is guilty of an offence punishable on summary conviction.

(2)      For greater certainty, an order referred to
    in subsection (1) applies to prohibit, in relation to proceedings taken against
    any person who fails to comply with the order, the publication in any document
    or the broadcasting or transmission in any way of information that could
    identify a victim, witness or justice system participant whose identity is
    protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. MacMillan, 2020 ONCA 141

DATE: 20200219

DOCKET: M51246 (C67940)

MacPherson J.A.
    (Motions Judge)

BETWEEN

Her Majesty the Queen

Respondent

and

Gavin MacMillan

Applicant

Breana Vandebeek, for the applicant

Jennifer A.Y. Trehearne, for the respondent

Heard: February 12, 2020

REASONS FOR DECISION

[1]

The applicant Gavin MacMillan and his
    co-accused Enzo De Jesus Carrasco were found guilty, by a jury in a
trial
presided over by Dambrot J. of the Superior Court of
    Justice, of sexually assaulting and administering a noxious substance to a
    young woman in the College Street Bar, owned by the applicant.

[2]

The applicants and co-accuseds
    assault and violation of the complainant took place over approximately six
    hours. A great deal of it was captured by the bars surveillance camera. What
    the camera shows is profoundly troubling  substantial violence and nauseating
    degradation over the course of a prolonged physical and sexual assault on the
    complainant. For most of the time, the complainant was unable to resist due to
    severe intoxication by alcohol and cocaine the two men gave her.

[3]

On February 12, 2020, the applicant
    received a sentence of nine years imprisonment for the offences. He has
    prepared a draft Notice of Appeal. He seeks bail pending the hearing of the
    appeal.

[4]

The test for granting bail pending
    appeal is set out in s. 679(3) of the
Criminal Code
:

the judge of the court of appeal may order that the appellant
    be released pending the determination of his appeal if the appellant
    establishes that

(a) the appeal or application for leave to appeal is not
    frivolous;

(b) he will surrender himself into custody in accordance with
    the terms of the order; and

(c) his detention is not necessary in the public interest.

[5]

The Crown concedes that the appeal is not frivolous. The applicants
    principal ground of appeal is that the trial judge erred by determining, as did
    several other Ontario trial judges, that a recent federal law (Bill C-75)
    removing peremptory juror challenges applied retrospectively to criminal proceedings
    that had started, but not finished, before Bill C-75 came into force.

[6]

This argument is far removed from being frivolous. Indeed, it is almost
    the opposite; it is almost certain to succeed. That is because two months after
    this trial concluded, this court reached the opposite conclusion on the same
    issue. In
R. v. Chouhan
, 2020 ONCA 40, Watt J.A. said, at paras. 5 and
    217:

With respect to the
    temporal application of the amendments, I
decide that the abolition
    of the peremptory challenge applies prospectively, that is to say, only to
    cases where the accuseds right to a trial by judge and jury vested on or after
    September 19, 2019. But I conclude the amendment making the presiding judge the
    trier of all challenges for cause applies retrospectively, that is to say, to
    all cases tried on or after September 19, 2019.

[T]he abolition of peremptory challenges affected the
    substantive rights of the appellant, thus it should not have applied to the
    selection of the jury in his case
nor
    should it apply to the selection of the jury in other cases if the accused had
    a vested right before September 19, 2019 to a trial by judge and jury as it
    existed in the prior legislation
.
[Emphasis added.]

[7]

In terms of the relevant temporal factors, the present case is identical
    to
Chouhan
. It follows that, barring something unforeseen arising, the
    appeal in this case will almost certainly be allowed and a new trial will be
    ordered. Accordingly, this factor counts strongly in the applicants favour.

[8]

The Crown also concedes that the second factor in s. 679(3) of the
Criminal
    Code
is not in play on this appeal. The Crown says: It appears that any
    risk that the Applicant will flee the jurisdiction can be controlled pending
    appeal by the imposition of strict bail conditions.

[9]

I agree. The applicant complied with his bail conditions throughout the
    pre-trial and trial period. Moreover, he has agreed with the Crown that
    stringent bail conditions are appropriate. One of the bail conditions will be
    virtual house arrest:

5. You must reside
    with your surety [mother] at []

6. You must
    remain in your residence at all times except:

i. for medical emergencies involving you or a member of your
    immediate family (spouse, child, parent, sibling); or

ii. for purposes of travelling
    directly to, from and while at court appearances, or meeting with your lawyer,
    or for purposes of complying with this or any other order.

[10]

Taking
    these factors into account, it is highly unlikely that the applicant is a
    flight risk.

[11]

Turning
    to the third factor, the question for determination is whether the applicant
    has shown, on a balance of probabilities, that his detention is not necessary
    in the public interest: see
R. v. Oland
, 2017 SCC 17, at para. 19;
R.
    v. Iraheta
, 2018 ONCA 229, at para. 4.

[12]

The
    public interest factor in s. 679(3) of the
Criminal Code
has two
    components  public safety and public confidence in the administration of
    justice: see
Oland
, at para. 23, and
R. v. Farinacci
(1993),
    86 C.C.C. (3d) 32 (Ont. C.A.), at paras. 41-43. While public confidence in the
    administration of justice is rarely a central factor in the test, it ought to
    be considered when an offence is serious:
Oland
, at paras. 29 and 43.

[13]

The
    public confidence in the administration of justice factor is in play in this
    application. Public confidence requires a balancing of reviewability and
    enforceability. In determining whether public confidence requires detention,
    the relevant factors are: (1) the gravity of the offence; (2) the circumstances
    surrounding its commission; (3) the potential for a lengthy term of
    imprisonment; and (4) the strength of the appeal: see
Oland
, at paras.
    37-40.

[14]

The
    offences are grave. The applicant has been convicted of two serious offences
    sexual assault and administering a noxious substance.

[15]

The
    circumstances surrounding the commission of the offence are, in a word,
    appalling. The applicants treatment of the complainant  captured on camera
    was violent, degrading and prolonged.

[16]

The
    potential for a lengthy term of imprisonment is obvious  the applicant has
    been sentenced to nine years imprisonment.

[17]

However,
    and unusually on an application for bail, the applicants proposed appeal is
    beyond strong; it borders on certainty. On the issue of the jury selection
    process, the applicants case is identical to
Chouhan
. The jury
    selection process in the applicants trial was, therefore, defective. His
    appeal will likely be allowed and a new trial will likely be ordered.

[18]

The
    respondent disagrees, submitting that it is not almost certain that the
    applicants appeal will be allowed. The respondent makes two submissions in
    support of this position.

[19]

First,
    the respondent informed the court at the bail hearing that it has decided to
    seek leave to appeal
Chouhan
. The respondent submits that, because of
    the importance of
Chouhan
in the Ontario justice system (the
Chouhan
formula was followed in many trials), the Supreme Court is likely to grant
    leave. Then, the respondent submits, the Supreme Court might allow the appeal,
    rendering the applicants principal ground of appeal meritless.

[20]

The
    problem with this submission is that it is entirely speculative. On the ground
    now,
Chouhan
is the law in Ontario. It will be applied in this appeal.
    Almost certainly, that will mean a new trial in this case.

[21]

Second,
    the respondent submits that even if a
Chouhan
error is established
    in this case, a new trial will not necessarily be the remedy. In a similar
    Ontario case,
R. v. Esseghaier and Jaser
, 2019 ONCA 672, where this
    court ordered a new trial because of a fault in the jury selection process, the
    federal Crown is seeking leave to appeal to the Supreme Court of Canada and, if
    leave is granted, will argue that the curative proviso in s. 686 of the
Criminal
    Code
should be applied to save the trial result. The respondent contends
    that, if this becomes the result in
Esseghaier and Jaser
, then a
    similar result would likely follow in this appeal.

[22]

This
    submission suffers from the same defect as the previous one: it is entirely
    speculative. On the ground now,
Esseghaier and Jaser
is the law in
    Ontario. And in
Esseghaier and Jaser
, Zarnett J.A., speaking for a
    unanimous court, said, at para. 95:

In my view, the curative proviso cannot be applied in this
    case. As pointed out in
Noureddine
, beyond the issue of the curative
    provisos application to a question that affects the proper constitution of the
    jury, and thus of the court which tried the appellants, the curative proviso
    cannot be applied unless there was no prejudice to the accused. As in
Noureddine
,
    the question here is not actual prejudice, which in these kinds of
    circumstances is impossible to gauge, but prejudice to the due administration
    of justice flowing from the denial of a jury selection method which was in law
    properly invoked:
Noureddine
, at paras. 62-64.

[23]

Taking
    these factors together, I cannot say public confidence in the administration of
    justice would be offended if the applicant were released on bail pending his
    appeal. He has a very strong case on the appeal. He complied with all the
    conditions of his bail before and during his trial. And as stated above, the
    public confidence factor does not exhaust the public interest: the stringent
    conditions on the applicants interim release are adequate to protect public
    safety. In my view, these are the controlling factors on this application,
    against the backdrop of this courts decisions in
Chouhan
and
Esseghaier
    and Jaser
.

[24]

For
    these reasons, the application for bail pending appeal is granted. The Crown
    and the applicant have agreed on the terms of bail, including virtual house
    arrest. Order to go in terms of the draft Release Order filed.

J.C. MacPherson J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Nadarajah, 2020 ONCA 85

DATE: 20200204

DOCKET: C65091

Doherty, Watt and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Arun Nadarajah

Appellant

Breana Vandebeek, for the appellant

Sandy Thomas, for the respondent

Heard and released orally:
    January 31, 2020

On appeal from the conviction entered on
    July 12, 2017 by Justice Katarynych of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant was found in possession of 102
    grams of powder cocaine and was charged with possession for the purpose of
    trafficking, contrary to s. 5(2) of the
Controlled Drugs and Substances Act
,
    S.C. 1996, c. 19. After the trial judge dismissed the appellants applications
    under ss. 8 and 9 of the
Canadian Charter of Rights and Freedoms
, the
    appellant conceded the case against him and was convicted.

[2]

In her reasons for sentence, the sentencing
    judge accepted that there were several mitigating factors, including the
    appellants youthfulness; his first offender status; his concession of the case
    against him; his self-generated rehabilitation; and his family support.
    However, the sentencing judge rejected other circumstances that defence counsel
    had presented as mitigating factors. Ultimately the appellant received a
    sentence of 18 months incarceration.

[3]

On his sentence appeal, the appellant submits
    that the sentencing judge erred in finding that a custodial sentence was
    necessary and failed to give sufficient, if any, weight to the following
    mitigating circumstances: his history on bail; the fact that jail was not
    necessary to deter him; the fact that he was a drug-addicted trafficker; and
    the support available to him from his peer group. It is the appellants
    position that the sentencing judge overemphasized specific deterrence and
    denunciation in light of the evidence of rehabilitation.

[4]

We are not satisfied that the sentencing judge
    erred in finding that a custodial sentence was necessary in the circumstances.
    The submissions regarding deterrence, available peer support, and the
    appellants history on bail, were specifically considered and rejected by the
    sentencing judge, as she was entitled to do. The sentencing judge also found
    that there was an insufficient evidentiary basis to conclude that drug
    addiction was a mitigating factor. That finding was also available on the
    record, especially given that the appellant did not testify on the sentencing
    hearing.

[5]

In our view, the appellant has not met his onus
    under
R. v. Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089, of
    establishing that the sentencing judge erred in principle; failed to consider a
    relevant factor; or erroneously considered or placed undue emphasis on an
    aggravating or mitigating factor in determining the sentence. The sentencing
    judge properly balanced the competing factors in her careful and detailed
    reasons and imposed a sentence that is within the range of fit sentences in
    these circumstances.

[6]

Leave to appeal sentence is granted, but the sentence
    appeal is dismissed.

Doherty J.A.

David Watt J.A.

C.W. Hourigan J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Pathan, 2020 ONCA 108

DATE: 20200211

DOCKET: C64187

Rouleau, Benotto and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Wariskhan Pathan

Appellant

Breana Vandebeek, Mark Halfyard, for the appellant

Lisa Joyal, for the respondent

Heard and released orally: February 6, 2020

On appeal from the conviction entered on May 29, 2014 and
    the sentence imposed on July 29, 2014 by Justice W. Brian Trafford of the Superior
    Court of Justice.

REASONS FOR
    DECISION

[1]

The deceased was shot and killed in the lobby of an apartment building.
    Security cameras captured the following events. The appellant and the
    co-accused Patel entered the outer lobby of the main entrance of the building.
    Patel pulled on a locked door to the entrance of the inner lobby, but it did
    not open.

[2]

The deceased walked through the inner lobby towards the locked door, let
    Patel in but closed it before the appellant could enter. Patel and the deceased
    had an altercation and struggled for what appeared to be Patels gun. The
    appellant, still in the outer lobby took out a firearm. Patel opened the glass
    door to the outer lobby and the appellant shot through the glass door. The
    deceased fell to the ground and the appellant and Patel fled through the front
    door.

[3]

The appellant was convicted of second-degree murder and Patel was
    acquitted. The appellant submits that the trial judge erred by allowing, at the
    request of Patel, expert evidence about what happened on the security video.
    Patel sought to rely on this evidence to support his position that he did not
    fire a weapon. The appellant took the position that the expert evidence
    undermined his claim of self-defence, lack of
mens rea
and his claim
    that Patel had an operational firearm.

[4]

The parties agreed that there were defects in the video that required
    expert testimony, in particular, motion blur, pixilation and data-compression.
    However, the appellant submits that the trial judge allowed the testimony to go
    beyond permissible opinion evidence because the expert testified in a narrative
    fashion about what he saw in the video. The expert opined as to the direction
    of the apparent gun that Patel was holding, who was firing and the number of
    shots that were fired. It is submitted that this testimony usurped the function
    of the jury. We do not agree.

[5]

The trial judge had ruled that the expert could testify as to the area
    within his expertise. The trial judge recognized that it would be difficult for
    the expert to limit his testimony to the defects in the video without providing
    some narration that would have been within the jurys ability to assess.

[6]

In our view, the trial judge correctly exercised his gatekeeper function
    at the time of the ruling and throughout the evidence. We do not agree that the
    expert testimony went beyond the trial judges ruling. In any event if there
    had been extra-narrative, the trial judge gave three separate cautions to the
    jury. Prior to the evidence being given, the trial judge instructed the jury
    that it was up to the jury to interpret the video and that the jury should
    assess the experts credibility and reliability as it would assess the evidence
    of any other witness.

[7]

During the cross-examination of the expert, the trial judge gave another
    caution and told the jury that the expert was not here to tell us everything
    that he sees on the tape, but rather, the expert was there to help the jury
    interpret certain aspects of the video that are hidden to the lay mind.

[8]

Finally, the trial judge gave specific instructions in his final charge
    to the jury. He reminded the jury that it was the jurys responsibility to
    interpret the video and the jury was to interpret it themselves. In particular,
    he said: We do not need [the experts] help in the interpretation of much of
    the video, do not be affected by those parts of the opinion, interpret them on
    your own as you see fit in the context of the evidence as a whole.

[9]

In our view, the trial judges three separate instructions to the jury
    addressed the issues raised by the appellant.

[10]

With respect to the prejudice alleged, we note that the trial judge was
    alive to the potential prejudicial impact of the evidence. We defer to the
    exercise of his discretion in the weighing of the probative value and
    prejudicial impact of the evidence.

[11]

Given the careful ruling of the trial judge and the cautions in his
    charge to the jury, we do not accept the appellants position that the jury
    would have been overwhelmed by the expert testimony.

[12]

For these reasons the appeal is dismissed.

Paul Rouleau J.A.

M.L. Benotto J.A.

A. Harvison Young
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Raia, 2020 ONCA 132

DATE: 20200219

DOCKET: C66017 & C66019

Hoy A.C.J.O., Feldman and
    Gillese JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Salvatore Raia and Michael
    Vitello

Appellants

Salvatore Raia, acting on his own
    behalf

Amy Ohler for the appellant, Michael
    Vitello

Hannah Freeman, for the respondent

Heard and orally released:
    February 12, 2020

On appeal from the convictions entered by
    Justice C. McKinnon of the Superior Court of Justice, dated July 13, 2018.

REASONS FOR DECISION

[1]

Mr. Raia and Mr. Vitello appeal their
    convictions for conspiring to kidnap, sexually assault and murder Mr. Vitellos
    spouse, Sonia Bernard. Neither Mr. Raia nor Mr. Vitello testified on his own
    behalf at trial.

[2]

In convicting Mr. Raia and Mr. Vitello, the
    trial judge relied on the evidence of Chris Richards, an employee of Mr.
    Vitello, about the conspiracy. The trial judge found that there was elaborate
    corroborative evidence and that Mr. Richards was a credible witness. The trial
    judge considered that Mr. Richards evidence that he, Mr. Raia, and Mr. Vitello
    stopped in a parking lot for about two to three minutes on the planned date of
    the murder was clearly mistaken, but concluded that it was not a foundation
    for reasonable doubt about Mr. Richards evidence.

[3]

On appeal, Mr. Raia and Mr. Vitello argue that
    the trial judge erred in finding that Mr. Richards was a credible and reliable
    witness. They argue that the evidence that the trial judge relied on as
    corroborative was not corroborative of their alleged agreement to kidnap,
    sexually assault and murder Ms. Bernard.

[4]

Further, they say that the trial judge made
    several errors in his reasons. For example: 1) he wrote that Mr. Vitellos
    first wife called him in jail, whereas he called her; 2) he referred to Oscar Giroux
    looking at a photo lineup, but Oscar Giroux did not look at a photo lineup; 3)
    he wrote that Mr. Vitellos son, Nicholas, testified that Mr. Raia seemed
    drunk, when Nicholass evidence was only that Mr. Raia smelled of alcohol; and
    4) he wrote that, during his police interview, Mr. Raia stated that he did not remember
    going anywhere else on the morning of the planned date of the murder, whereas
    Mr. Raia testified that he could not remember where they went.

[5]

The trial judges finding that Chris Richards
    was a credible and reliable witness is entitled to deference on appeal barring
    palpable and overriding error. On this appeal, we do not consider afresh
    whether Chris Richards was a credible and reliable witness.

[6]

We are not persuaded that there is any basis for
    this court to interfere with the trial judges finding that Chris Richards was
    a credible and reliable witness. The trial judge was entitled to rely on the
    extensive corroborating evidence that supports Chris Richards account,
    including the text messages exchanged between Chris Richards and Sonia Bernard
    and a number of security surveillance videos that tracked the movements of Mr.
    Vitellos truck, essentially as Chris Richards described it. As noted by the
    trial judge, Chris Richards was unaware of this video surveillance when he gave
    his statements to the police.

[7]

In our view, the errors in the trial judges
    reasons identified by the appellants go to peripheral matters and had no impact
    on the trial judges credibility assessment. For example, while the trial judge
    referred, in one sentence at para. 90 of his reasons, to Oscar Giroux looking
    at a photo lineup, the significant part of para. 90 is that Oscar Giroux
    described the passenger in the front seat of Mr. Vitellos truck on the morning
    of the planned date of the murder, and his description matched Mr. Raia.
    Moreover, Chris Richards, who was also in the truck, testified Mr. Raia was in
    the front seat and, in his statement to the police, Mr. Raia said he was the
    passenger in the front seat of Mr. Vitellos truck that morning.

[8]

Accordingly, the appeals against conviction are
    dismissed.

Alexandra Hoy A.C.J.O.

K. Feldman J.A.

Eileen E. Gillese J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Shepherd, 2020 ONCA 133

DATE: 20200219

DOCKET: C67313

Hoy A.C.J.O., Feldman and
    Gillese JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Timothy James Shepherd

Appellant

Amy Ohler for the appellant

Hannah Freeman, for the respondent

Heard and orally released:
    February 13, 2020

On appeal from the sentence imposed by
    Justice Anderson of the Ontario Court of Justice on July 31, 2019.

REASONS FOR DECISION

[1]

The appellant pled guilty to assault causing
    bodily harm and was sentenced to a period of incarceration of two years, less a
    day. He appeals his sentence.

[2]

He makes two main arguments. First, he argues
    that, in finding in the course of the
Gardner
hearing that his attack
    on his spouse was unprovoked, the trial judge improperly considered that he had
    a propensity for violence and should have accepted his evidence that the attack
    was provoked. The appellant submits that the trial judges finding that the
    attack was unprovoked impacted the sentence imposed. Second, in imposing
    sentence, the trial judge mistakenly considered that the appellant had been
    previously convicted of assaulting his spouse.

[3]

We reject these arguments. First, at p. 9 in the
    reasons for judgment for the
Gardner
hearing, the trial judge
    specifically indicated that evidence of propensity to violence played no part
    in his analysis. Moreover, the trial judges assessment of the appellants
    credibility is entitled to deference. There is no basis to interfere with his
    rejection of the appellants version of events.

[4]

Second, what the trial judge considered as an
    aggravating factor in sentencing the appellant was that he was on probation
    for an offence that related at least to the complainant and a significant
    offence that related to the complainant. The appellant acknowledges that, at
    the time he committed this assault, he was on probation for an offence
    committed in 2015 as a result of a disturbance at the complainants parents
    residence at the time that the complainant was living there with their
    children. The trial judge correctly described the offence as relating to the
    complainant.

[5]

As the trial judge described, the assault was
    significant and the bodily harm substantial. On the appellants own version of
    events, he snapped and got carried away and became the aggressor. In our
    view, the sentence imposed in this case of domestic violence would have been
    fit, even if the assault were provoked, as the appellant submits.

[6]

With regard to the materials prepared for his
    parole hearing that the appellant handed up to the panel today, which speak to
    his prospects of rehabilitation, we note that the trial judge specifically
    considered that the appellant has family support, is intelligent, has employable
    skills, and was working on his mental health concerns. He noted the importance
    of rehabilitation in the appellants life.

[7]

Accordingly, the appeal is dismissed.

Alexandra Hoy A.C.J.O.

K. Feldman J.A.

Eileen E. Gillese J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Torcaso, 2020 ONCA 100

DATE: 20200210

DOCKET: C64170 & C66470

Rouleau, Benotto and Harvison
    Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Zachary Torcaso and Dereck
    Maione

Appellants

Michael Lacy and Bryan Badali, for the
    appellant Zachary Torcaso

Philip Norton, for the appellant Dereck
    Maione

Katie Doherty, for the respondent

Heard and released orally:
    February 5, 2020

On appeal
    from the convictions entered on January 26, 2017 (C64170 & C66470), and the
    sentence imposed on June 28, 2017 (C64170), by Justice Michael Varpio of the Superior
    Court of Justice.

REASONS
    FOR DECISION

[1]

The charges arose out of a home invasion. The
    two appellants were convicted of break and enter. The appellant Torcaso was
    also convicted of assault.

[2]

Both appellants submit that a letter sent to the
    trial judge apparently by a juror during the trial compromised the fairness of
    the trial. Torcaso argues that the trial judge erred his charge as to the
    identity issue.

The Reasonable Apprehension of
    Bias Issue

[3]

First, with respect to the letter sent to the
    judge, the appellants argue that the letter raised a reasonable apprehension of
    bias. We disagree.

[4]

The juror denied authoring the letter or having
    ever seen it. From our review of the evidence, the circumstances and the denial
    that she wrote the letter, we see no reason to look behind her denial. We note
    that nothing in the letter bears on the merits of the case. It complimented the
    Crown on his appearance and conduct during the case so far and indicated that
    she knew someone who would be a good match for him.

[5]

Moreover, even if she wrote the letter, it does
    not meet the high standard required to raise a reasonable apprehension of bias.
    Nothing in the letter suggested that she would not respect her oath and decide
    the case on the evidence.

[6]

The appellant also argues that the entire
    sequence of events, including the judges inadvertent delay in discovering the
    letter, the manner in which the inquiry was conducted and the treatment of the
    jurors communication with the Crown office just after the post-verdict inquiry,
    affects the appearance of fairness and risks bringing the administration of
    justice into disrepute.

[7]

We do not agree that the cumulative effects of
    these steps rose to the level that the fairness of the entire process was
    compromised. Nor do we find error with the inquiry process. The trial judge
    reviewed each step of the inquiry with counsel, and we see no basis for
    concluding that any of these steps compromised the appearance of fairness.

The Identity Issue

[8]

Identity was the central issue at trial. The
    appellant Torcaso submits that the trial judge failed to instruct the jury
    adequately on the identification evidence, in failing to include a separate
    section of his charge independently reviewing the evidence and pointing to
    specific weaknesses in the identity evidence. Again, we disagree.

[9]

This was a one issue trial. The trial judge
    directed the jury to be cautious regarding eye-witness testimony including the
    usual cautions about the frailties of eye-witness identification. In the
    circumstances of this case, the jury was given the tools they needed to do
    their job. The structure of the trial judges charge and the manner in which he
    set out the evidence discloses no legal error. Based on the totality of the
    instructions in the context of the entirety of this case, the jury would have
    understood that identity was really the issue they had to resolve. They were
    provided with the law that applied to that issue, the positions of the parties
    and the evidence relevant to the positions of the parties on the central issue
    of identity. Even if the charge could have been organized differently or more
    could have been said that does not indicate the instructions were flawed.

[10]

As conceded by the Crown, the sentence appeal of
    Torcaso is allowed to the extent of striking the victims surcharge. The
    appeals are otherwise dismissed.

Paul Rouleau J.A.

M.L. Benotto J.A.

A. Harvison Young J.A.