COURT OF APPEAL FOR ONTARIO
Watt, Lauwers and Brown JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Paul Anthony Smith
Appellant
Paul Burstein, for the appellant
Jason A. Gorda, for the respondent
Heard: June 30, 2015
On appeal from the conviction entered on July 23, 2012 and the sentence imposed on April 30, 2013 by Justice Lois B. Roberts of the Superior Court of Justice, sitting without a jury.
1It was an early evening in August. A few years ago. In Scarborough. Two uniformed police officers in a marked police car signalled the driver of a red Honda Civic to pull over. The driver, Neville Devonish, complied.
2Paul Smith was a passenger in the red Honda. He sat in the front passenger seat. As soon as Devonish stopped the vehicle, he and Smith got out and began walking back towards the driver and passenger side of the police car. They left both doors of the Honda open.
3The police officers got out of their car and told Devonish and Smith to return to the Honda. Devonish, still yelling and gesticulating, returned to the driver’s side. Smith, as directed, returned to the passenger side.
4At the driver’s door, one of the officers saw a handgun on the floor of the driver’s side of the centre console. After a brief struggle, the officer arrested, subdued and handcuffed Devonish.
5The second officer confronted Smith. She pointed her handgun at him and issued the police challenge. Smith bolted. He was arrested on a nearby street a few minutes later by other police officers.
6In the red Honda, police found a loaded handgun, and a clear plastic bag containing brightly coloured pills. Both were in the driver’s side footwell in plain sight. Another plastic bag was tucked in the centre console. It contained marijuana.
7Devonish and Smith were tried together on a 22 count indictment. Devonish was acquitted of the nine counts with which he was charged. Smith was found guilty of 10 of the 13 counts on which he was tried.
8Smith appeals his conviction and applies for leave to appeal his sentence. These reasons explain why I would dismiss his appeal from conviction but allow his appeal from sentence to the extent required by R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575, which was not available to the trial judge at the time of sentencing.
THE BACKGROUND FACTS
9The circumstances that underpin the charges on which Paul Smith (“the appellant”) was tried fall within a narrow compass. In large measure, what happened before and after the vehicle stop is not controversial. Where the parties differ is in the inferences that may be drawn from those events.
The First Sighting
10Police Constables Dales and Stepanenko first encountered the red Honda at a stoplight at an intersection in Scarborough. The Honda was travelling in the same direction as the police car at a speed apparently in excess of the posted limit. Devonish stopped the Honda in the curb lane. Cst. Dales stopped the police car beside the Honda. Devonish then rolled the driver’s side window down and began waving at the officers before making an abrupt right turn.
11Cst. Stepanenko did a CPIC check on the licence plate number attached to the Honda. The vehicle was registered to a female. The officer also noticed a “spider” crack in the front windshield, and dark tinted windows.
The Second Meeting
12Moments later, a short distance away, the police car and red Honda arrived at a four-way stop on an adjacent street. Leaning out of his driver’s seat, Devonish pointed and yelled at Cst. Dales, who was still driving the police car.
13The officers decided to pull over the red Honda. They activated the emergency equipment on the police car to signal Devonish to pull over. He complied.
The Stop
14Devonish and the appellant got out of the Honda as soon as it stopped. Devonish exited from the driver’s side, the appellant from the passenger side. Each left the door open behind him. Their exits occurred at virtually the same time, at most only seconds apart. Each began to walk towards the police car as the officers were getting out of their vehicle.
15The officers directed Devonish and the appellant to return to the Honda. Devonish was belligerent, the appellant quiet. The appellant returned to the passenger side. Cst. Stepanenko followed. Cst. Dales ushered Devonish back to the driver’s side of the Honda.
The Handgun
16When Cst. Dales and Devonish got back to the open driver’s door of the Honda, the officer saw a handgun on the floor of the vehicle. It rested on the floor mat near the gas pedal in plain view. At that time, Cst. Dales said nothing about seeing the handgun.
17The appellant was sitting in the front passenger seat. Cst. Stepanenko was at the passenger side door. She could see into the vehicle through the door opening. She had a full view of the passenger side and the “further side” of the driver’s seat. She could not see to the driver’s footwell because the centre console obstructed her view.
The Arrest of Devonish
18Cst. Dales told Devonish to put his hands behind his back. The officer began to handcuff Devonish. Cst. Stepanenko saw the appellant “blading”, turning his body in the passenger seat towards the driver’s seat and away from the officer.
19Cst. Dales was only partly successful in handcuffing Devonish, who resisted the officer’s attempt to restrain him. Cst. Dales’ attempts to complete the handcuffing procedure and Devonish’s resistance carried on across the street. The appellant tried to step out from the passenger side of the vehicle. Cst. Stepanenko asked him to remain seated. The appellant complied.
20Cst. Stepanenko noticed that Cst. Dales continued to struggle with Devonish on the lawn across the street. She ran across the street to help her partner subdue Devonish.
The Gun Disclosure
21As Cst. Stepanenko approached the altercation between Cst. Dales and Devonish, Cst. Dales repeated to her: “gun in the car, gun in the car”. Cst. Dales said nothing about the location of the firearm.
22Cst. Stepanenko immediately went back across the street towards the red Honda. The appellant stepped out of the passenger side of the vehicle and walked towards her. The officer unholstered her gun, pointed it at the appellant and ordered: “Don’t move. Keep your hands visible. Get down on the ground”. The appellant hesitated. Then he turned and ran. The officer took up but soon abandoned the pursuit. She radioed for assistance and returned to the Honda.
The Vehicle Search
23In the red Honda, police found a handgun, and a clear plastic bag containing brightly coloured pills. The officers thought these pills were ecstasy or MDMA. Subsequent analysis confirmed this was not the case. In a plastic bag tucked behind the centre console they found marijuana in sufficient quantity for the purpose of trafficking.
24Devonish was searched incident to arrest. In his possession officers found a cellphone, a small digital scale, rolling papers and a marijuana roach.
The Arrest of the Appellant
25Within minutes of Cst. Stepanenko’s call for assistance, other officers located the appellant on a nearby street. After a brief foot pursuit and a struggle that resulted in several further charges, the appellant was arrested and taken into police custody. A later search of his clothing yielded some money and a small amount of cocaine.
The Trial Proceedings
26Devonish and the appellant were tried together by a judge of the Superior Court of Justice sitting without a jury. The indictment contained 22 counts, none charging Devonish and the appellant jointly. Each was charged separately with seven counts alleging the same firearms offences, as well as possession of marijuana and possession of marijuana for the purpose of trafficking.
27Neither the appellant nor Devonish testified at trial. Devonish was acquitted on all counts. The appellant was convicted of all the firearms offences, several offences arising out of his resistance to arrest, and possession of a small amount of cocaine. He was acquitted of the marijuana counts and of possession of the proceeds of crime.
THE GROUNDS OF APPEAL
28On the appeal from conviction, the appellant alleges two material errors in the reasons of the trial judge. I would paraphrase those errors as:
i. failing to decide the appellant’s case separately and independently from the case against Devonish; and
ii. rendering an unreasonable verdict through impermissible speculation rather than permissible inference.
29On the application for leave to appeal sentence, the appellant asks that the sentence imposed – seven years and three months – be reduced by an amount that would reflect the proper credit for time spent in pre-sentence custody under Summers.
THE APPEAL FROM CONVICTION
Ground #1: Failure to Decide the Appellant’s Case Separately and Independently from the Case of the Co-accused
30The first ground of appeal alleges error in the trial judge’s reasoning leading to her findings of guilt. The error begins with an incorrect framing of the issue to be decided. It continues to an erroneous conclusion of guilt based on the same inference that raised a reasonable doubt about the guilt of the co-accused Devonish.
31It is unnecessary to repeat the circumstances giving rise to the charges but helpful to begin with a brief tour through the reasoning process followed by the trial judge in reaching her conclusion.
The Reasons of the Trial Judge
32The trial judge characterized the issue she had to decide in these terms:
In issue are: who was in possession of the firearm, marijuana, and crack cocaine; and whether $913.08 were proceeds from marijuana trafficking.
33After summarizing the evidence adduced at trial, the trial judge turned to the firearms counts against Devonish and the appellant. She noted the admitted facts and framed the issue she was required to decide in these words:
As a result, the question to be determined with respect to those charges is whether or not the Crown has proven beyond a reasonable doubt that Mr. Devonish and or Mr. Smith were in possession of the firearm found in the Honda Civic on August 21, 2010.
34The trial judge acknowledged that neither Devonish nor the appellant was in personal possession of the 9mm handgun found by the accelerator in the Honda Civic. As a result, the trial judge recognized that proof of possession depended upon whether the circumstantial evidence, considered as a whole, could establish constructive possession as the only reasonable inference in the circumstances.
35The trial judge was satisfied that the handgun and the clear plastic bag containing pills were on the floor near the accelerator on the driver’s side of the centre console of the Honda Civic. Both items were in plain view of anyone seated in the driver’s seat, but not from the passenger seat unless the passenger leaned over slightly towards the driver’s side. The gun was resting on the top of its slide with its grip facing up.
36The trial judge considered first the case against the driver, Devonish. She recognized that the mere physical proximity of Devonish to the handgun did not establish possession any more than his occupancy of the driver’s seat could sustain the same conclusion. She concluded from Devonish’s behaviour in attracting the attention of the police and persisting in his aggressive conduct when stopped by the police that the gun was not in the position in which it was later found when Devonish got into, drove or got out of the car.
37In concluding that Devonish was not guilty of the firearms offences, the trial judge said:
The only reasonable inference to be drawn from the uncontroverted evidence of Mr. Devonish’s extraordinary behaviour is that Mr. Devonish did not have knowledge that the firearm was in the Honda Civic.
Based on the evidence before me, I find that Mr. Devonish did not put the firearm in the driver’s footwell, did not have knowledge that there was a firearm in the Honda Civic, and did not have possession of it.
38In turning to the case against the appellant, the trial judge reiterated her findings that the firearm was not on the driver’s side footwell when Devonish entered the car and that Devonish had not put the gun there. There were only two people in the vehicle – Devonish and the appellant. The appellant did not have control over the vehicle. His proximity to the gun was not enough to prove possession which required both knowledge and control.
39In reaching her conclusion of guilt in connection with the appellant, the trial judge considered the combined effect of evidence of:
opportunity;
contemporaneous conduct; and
post-offence conduct.
She concluded:
Based on all of the evidence before me, the only reasonable conclusion to be made is that Mr. Smith was in possession of the firearm which he had concealed from Mr. Devonish and that Mr. Smith had placed the firearm in the driver’s side of the Honda Civic.
As a result, I find that the Crown has proven beyond a reasonable doubt that Mr. Smith was in knowing possession of the firearm that was found in the Honda Civic.
The Arguments on the Appeal
40The appellant invokes fundamental principles governing criminal liability in support of his claim that the trial judge’s reasons reflect error. That this was a joint trial does not alter the bedrock principle that guilt is individual, to be proven both on evidence properly admissible against an accused, and independently and separately from conclusions reached in relation to a co-accused. Proof of the commission of a crime without more does not establish the guilt of any person charged with it. The evidence, taken as a whole, must establish an individual accused’s culpable participation in the offence to establish his or her guilt.
41In this case, the appellant continues, the trial judge got off on the wrong foot. She framed the issue as “who” – Devonish or the appellant – was in possession of the firearms and drugs, rather than “whether” the Crown had proven beyond a reasonable doubt that either was in possession. The trial judge compounded this initial error by using an inference that created a reasonable doubt about Devonish’s guilt as an item of evidence supportive of the appellant’s guilt. She failed to consider the possibility that neither was in knowing possession of the firearm, or to apply the principle that uncertainty about who was in possession required the acquittal of both.
42The respondent rejects any suggestion of error in the trial judge’s reasoning. The finding of guilt, according to the respondent, was grounded on three essential findings of fact:
i. the firearm was not in plain view in the driver’s side footwell when the driver entered the vehicle;
ii. the appellant had the opportunity to place the firearm in the driver’s footwell without the driver’s knowledge; and
iii. the appellant’s conduct during and after the vehicle stop, including fidgeting, turning his body, trying to get out of the car and flight, supported an inference of culpable conduct rather than accidental or non-culpable presence.
43The respondent contends that each of these three essential findings of fact is firmly rooted in the evidence adduced at trial and untainted by legal error.
44The consistently extraordinary behaviour of Devonish before and after apprehension belied not only the presence of the gun in the driver’s side footwell, but also his knowledge of it and control over it.
45The respondent submits that after finding Devonish not guilty on evidence that related to his conduct, the trial judge turned to the case against the appellant. She noted that mere proximity to the firearm did not establish either knowledge of its presence or control over it. Then she considered the evidence as a whole, finding that it established the appellant’s knowledge of and control over the firearm as the only reasonable inference available. In doing so, the trial judge did not convert evidence that raised a reasonable doubt about Devonish’s guilt into positive evidence of the appellant’s guilt.
The Governing Principles
46Recall that the indictment and trial of the appellant and Devonish were joint, but the liability of each was several.
47A person may participate in and be found guilty of a crime in any of several ways. As a principal, whether alone or together with another or other principals. Joint or co-principals may be liable even though each has not done every act that makes up the actus reus of the offence: R. v. Pickton, 2010 SCC 32, [2010] 2 S.C.R. 198, at para. 63; R. v. Mena (1987), 1987 CanLII 2868 (ON CA), 34 C.C.C. (3d) 304 (Ont. C.A.), at pp. 314-15. As an aider or abettor of one or more principals. Or as a participant in a common unlawful purpose under s. 21(2).
48In cases in which an accused’s participation in an offence is alleged to be as a principal, the acquittal of one principal determines nothing in respect of the other: R. v. Rémillard (1921), 1921 CanLII 584 (SCC), 62 S.C.R. 21, at pp. 23-24; R. v. Hick, 1991 CanLII 47 (SCC), [1991] 3 S.C.R. 383, at p. 386; R. v. Duong (2001), 2001 CanLII 21276 (ON CA), 160 C.C.C. (3d) 467 (Ont. C.A.), at para. 19.
The Principles Applied
49As I will explain, I would reject this ground of appeal.
50First, it was open to the trial judge to find, as she did, that the gun was not in the driver’s side footwell when Devonish entered the Honda. Had it been in the position in which the police found it – inches away from the accelerator and leaning against the centre console – it would not only have been clearly visible to Devonish but would equally have obstructed his access to the accelerator and thus his operation of the vehicle.
51Further, as the trial judge found, it beggars belief that Devonish, aware of the location of the gun, would go out of his way to attract and maintain the attention of the police who were in uniform, driving a marked police car and in plain sight. The appellant was the only other person in the Honda.
52Second, despite an initial mischaracterization of the issue she had to decide, the trial judge’s reasons, read as a whole, reveal that she considered the appellant’s liability as a principal separately from Devonish.
53The trial judge considered Devonish’s liability as a principal first. She found that the gun was not in the driver’s side footwell when Devonish got into the car. She concluded that this finding followed from Devonish’s unrelenting pursuit of the attention of uniformed police officers driving a marked car, a manifest improbability if Devonish had seen the gun on the floor inches away from the accelerator and his foot. Absent knowledge of the presence of the gun, and all the more so control over it, Devonish could not be found guilty of its possession on a constructive basis.
54The trial judge then turned her attention to the evidence relating to the appellant as principal. He was the only other person in the car. He occupied the front passenger seat, a position a short reach away from where the gun was found. The position of the gun – grip facing up and resting on its slide or barrel – was consistent with the position expected on placement from the passenger side of the vehicle. The appellant had the opportunity, arguably the exclusive opportunity, to put the gun where it was found.
55The trial judge also considered the appellant’s conduct following the vehicle stop, including his turning towards the centre console and driver’s side, as well as his flight from the scene. This evidence was relevant to negate the claim of non-culpable conduct advanced on his behalf, but unsupported but his own testimony.
56Third, the appellant’s reliance on R. v. Schell and Paquette (1977), 1977 CanLII 1939 (ON CA), 33 C.C.C. (2d) 422 (Ont. C.A.), is unavailing. There, the appellants were jointly charged and tried by a jury on a count of second degree murder arising out of the death of a child. They were the only two people who had custody and control of the child during all material times. Thus, they were virtually the only persons who had the opportunity to inflict the fatal injury. Both had severely mistreated the child on previous occasions.
57In his charge to the jury, the trial judge did not instruct on liability under s. 21(2). He also pointed out the practical inapplicability of ss. 21(1)(b) and (c) in those circumstances. This court held that the jury should have been instructed that they should convict one or the other, but if they could not decide whom to convict, then they should find both not guilty.
58The premise from which Schell and Paquette proceeds is that the jury had determined that one of the two accused was clearly innocent, but was unable to conclude, as between them, who was innocent and who was guilty: R. v. A.K. (2002), 2002 CanLII 45097 (ON CA), 169 C.C.C. (3d) 313 (Ont. C.A.), at para. 17. But the reasons of the trial judge in this case demonstrate that this case is different. Devonish was innocent, or at least not guilty. The trial judge then proceeded to consider whether the Crown had established the appellant’s guilt beyond a reasonable doubt. That decision was not contaminated by her finding in connection with Devonish.
Ground #2: Speculative Conclusions and Unreasonable Verdict
59The second ground of appeal from conviction requires no further reference to the evidence adduced at trial. A brief refresher about the basis upon which the trial judge found guilt established will afford an adequate foundation for consideration of this ground of appeal.
The Reasons of the Trial Judge
60The trial judge considered several features of the evidence in reaching her conclusion in connection with the firearms offences:
i. the appellant’s opportunity to put the gun in the driver’s footwell from his position in the passenger seat;
ii. the position of the gun, consistent with its placement there from the passenger side of the vehicle;
iii. the appellant’s conduct in the passenger seat when engaged by Cst. Stepanenko, in particular, turning away from her towards the driver’s seat and attempting to get out of the car;
iv. the appellant’s flight from the scene of the vehicle stop and resistance to arrest; and
v. the finding that the gun was not in the driver’s side footwell when Devonish got into the car.
61Based on all of the evidence before her, the trial judge reasoned that the only reasonable conclusion was that the appellant was in possession of the firearm, which he had concealed from Devonish, and that he had placed it in the driver’s side footwell of the vehicle.
The Arguments on Appeal
62The appellant says that the verdict reached by the trial judge is unreasonable, the product of impermissible speculation rather than permissible inference.
63The appellant submits that the trial judge erred by equating evidence of mere opportunity with the exercise of control over the firearm. The opportunity was brief. No one observed any movement by the appellant consistent with what would be required to put the gun in its final resting place.
64The appellant argues that the only evidence linking him to the firearm was his physical proximity to it. The trial judge recognized that such proximity was not enough to establish Devonish’s liability. She should have reached the same conclusion about the appellant. There was no other direct or circumstantial evidence linking the appellant to the gun. No DNA. No fingerprints. And no evidence that he brought anything into the car.
65The appellant says that evidence of his behaviour at and after the vehicle stop cannot satisfy or help to satisfy the burden of proof. The conduct was ambiguous. The appellant had just seen his friend arrested. And after all, he was in possession of contraband – cocaine – later found in his pants pocket at the hospital.
66The respondent rejects any claim that the verdict is unreasonable, whether as a result of legal error or otherwise.
67The respondent says that the trial judge did not equate the opportunity to commit the offence with its actual commission. Opportunity was only part of the trial judge’s analysis leading to her conclusion that guilt had been established. The opportunity in the case was coloured by the position in which the gun was found, a position consistent with its placement there by a person in the passenger seat, a mere arm’s length away. That the officers could not identify any particular movement is scarcely surprising since their principal focus was on Devonish and his aggressive conduct.
68The respondent submits that the trial judge made appropriate use of the conduct of the appellant after the Honda was pulled over and in fleeing when confronted by Cst. Stepanenko at gunpoint. This evidence negated any non-culpable presence on the appellant’s part and is not explainable by the small amount of cocaine or the money found in his pants pocket.
69The respondent says that the appellant’s piecemeal analysis of the circumstantial evidence fails to respect the principle that it is the cumulative effect of the various items of evidence that is to be considered in deciding whether guilt has been established. Isolated scrutiny of individual items of circumstantial evidence is contrary to binding precedent.
The Governing Principles
70This ground of appeal requires brief reference to the principles that apply on appellate review of verdicts impeached as unreasonable, the role of evidence of after-the-fact conduct in the demonstration of guilt, and the manner in which a trier of fact is to evaluate circumstantial evidence tendered in proof of guilt.
Unreasonable Verdicts
71The test for an appellate court to apply when a verdict is impeached as unreasonable is to consider whether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered: R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168, at p. 185; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36. The test imports not only an objective assessment, but also, to some extent at least, a subjective evaluation: Biniaris, at para. 36.
72The test requires us to determine what verdict a reasonable jury, properly instructed, could judicially have rendered. In doing so we are required to review, analyze and, within the limits of appellate disadvantage, weigh the evidence. We must examine the weight of the evidence, not its bare sufficiency: Biniaris, at para. 36. Our entitlement to review the evidence adduced at trial, to re-examine and reweigh it, is only to determine whether the evidence, as a whole, is reasonably capable of supporting the verdict rendered: R. v. Burns, 1994 CanLII 127 (SCC), [1994] 1 S.C.R. 656, at p. 663.
73In deciding whether the verdict is one that a properly instructed jury acting judicially could reasonably have rendered, we must ask not only whether there is evidence in the record to support the verdict, but also whether the jury’s conclusion conflicts with the bulk of judicial experience: Biniaris, at para. 40; R. v. W.H., 2013 SCC 22, [2013] 2 S.C.R. 180, at para. 28. We must ask whether a jury’s verdict is supportable on any reasonable view of the evidence and whether proper judicial fact-finding applied to the evidence precludes the conviction: W.H., at para. 2.
74The test and inquiries described above are expressed in terms of a verdict reached by a jury. They are equally applicable to cases such as this where the verdict under review is that rendered by a judge sitting without a jury. That said, the review for unreasonableness is different when the verdict is that of a judge accompanied by reasons for judgment. In judge alone cases, an appellate court may be able to identify some flaw in the evaluation of the evidence, or in the judge’s analysis, that will serve to explain the unreasonable conclusion the judge has reached: Biniaris, at para. 37.
75In cases tried without a jury, the unreasonableness analysis required under R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190, involves scrutiny of the logic of the judge’s findings of fact or inferences drawn from the evidence admitted at trial: R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at paras. 15, 44. Under this test, an appellate court can interfere where a trial judge draws an inference or makes a finding of fact that is:
i. plainly contradicted by the evidence relied upon by the judge for that purpose; or
ii. demonstrably incompatible with evidence that is not otherwise contradicted or rejected by the trial judge: Sinclair, at para. 16.
After-the-fact Conduct
76Evidence of after-the-fact conduct is a kind of circumstantial evidence that invokes a restrospectant chain of reasoning. The trier of fact is invited to infer from a subsequent act, state of mind, or state of affairs that a prior act was done or that a state of mind or of affairs existed at a material time in the past: R. v. Figueroa, 2008 ONCA 106, 232 C.C.C. (3d) 51, at para. 33; R. v. Salah, 2015 ONCA 23, 319 C.C.C. (3d) 373, at para. 225.
77The inferences drawn from evidence of after-the-fact conduct, as with any inference drawn from any item of circumstantial evidence, must be reasonable according to the measuring stick of human experience: Figueroa, at para. 33. The inferences drawn from evidence of after-the-fact conduct, once again as in all instances of circumstantial evidence, will depend on:
i. the nature of the conduct;
ii. the fact the proponent seeks to have inferred from that conduct;
iii. the positions of the parties; and
iv. the totality of the evidence.
Inference drawing is situation-specific, anathema to a set of prefabricated rules: Figueroa, at para. 33; Salah, at para. 226.
78It is for the trier of fact to choose among reasonable inferences available from the evidence of after-the-fact conduct. Among the inferences that may be available is that an accused’s conduct was culpable: Figueroa, at para. 35; Salah, at para. 227.
Circumstantial Evidence
79Two brief principles that govern proof by circumstantial evidence merit brief mention.
80The first has to do with the standard of proof required in cases involving circumstantial evidence. There is no legal requirement for a special self-instruction on circumstantial evidence. To convict, a trial judge must be satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is one of guilt: R. v. Griffin, 2009 SCC 28, [2009] 2 S.C.R. 42, at para. 33.
81The second principle assumes particular significance when, as here, arguments are advanced that individual items of circumstantial evidence are explicable on bases other than guilt. It is essential to keep in mind that it is the cumulative effect of all the evidence that must satisfy the criminal standard of proof, not each individual item which is merely a link in the chain of proof: R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345, at p. 361; R. v. Uhrig, 2012 ONCA 470, at para. 13.
82Often, individual items of evidence adduced by the Crown examined separately lack a very strong probative value. But it is all the evidence that a trier of fact is to consider. Each item is considered in relation to the others and to the evidence as a whole. And it is all the evidence taken together, often greater than the sum of individual pieces, that is to be considered and may afford a basis for a finding of guilt: Uhrig, at para. 13. See also: Côté v. The King (1941), 1941 CanLII 348 (SCC), 77 C.C.C. 75 (S.C.C.), at p. 76.
The Principles Applied
83For several reasons, I would not give effect to this ground of appeal.
84First, the trial judge did not equate opportunity with guilt. It is fundamental that we are to read the trial judge’s reasons as a whole to determine whether they reflect error. When this approach is followed, it is clear that evidence of opportunity was simply one of several items of circumstantial evidence, the cumulative effect of which the trial judge measured against the criminal standard of proof in reaching her conclusion that the appellant’s guilt had been proven beyond a reasonable doubt.
85Second, the trial judge recognized that mere proximity of the appellant to the firearm was not a sufficient basis upon which to find established the elements of knowledge and control essential to a finding of constructive possession of the gun. Nonetheless, proximity was a circumstance worthy of consideration in assessing the adequacy of the evidence as a whole to establish guilt.
86Third, it was an inevitable consequence of the finding that the gun was not in the driver’s side footwell when Devonish entered the car and, by necessary implication, was not there when he was driving, that it was put there after the vehicle was pulled over by police and before Cst. Dales noticed it when he ushered Devonish back to the driver’s door. On the findings of the trial judge, there was only one person in close proximity to the gun: the appellant. And the firearm was in a position consistent with having been placed there by the person who occupied the passenger seat: once again, the appellant.
87Fourth, the trial judge was entitled to consider the appellant’s conduct at the scene of the vehicle stop and his flight thereafter as supportive of culpability associated with the firearm.
88In the result, I am not satisfied that the verdict is the product of impermissible speculation rather than reasonable inference, or that it is cumbered by legal error or misapprehension of evidence. The verdict is not unreasonable.
89For these reasons, I would dismiss the appeal from conviction.
THE SENTENCE APPEAL
90It is common ground that, without the benefit of the decision of the Supreme Court of Canada in Summers, the trial judge did not award the appellant sufficient credit for the time spent in pre-sentence custody.
91The trial judge calculated the credit for pre-sentence custody – a total of two years eight months and nine days – on a 1:1 basis rather than on a 1.5:1 basis as mandated by Summers. As a result, she reduced the sentence she determined was fit – seven years three months – by a total of 32 months nine days, rather than by a total of 48 months 14 days.
92To give effect to the appropriate credit for pre-sentence custody, I would reduce the remanet of the appellant’s sentence by a further 16 months and 5 days.
CONCLUSION
93In the result, I would dismiss the appeal from conviction. I would grant leave to appeal sentence and allow the appeal from sentence by reducing the remanet by 16 months 5 days to reflect proper credit for pre-sentence custody.
Released: January 13, 2016 (DW)
“David Watt J.A.”
“I agree P. Lauwers J.A.”
“I agree David Brown J.A.”
