COURT OF APPEAL FOR ONTARIO
Roberts, Miller and Trotter JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Christopher Marcelo Claros
Appellant
Christopher Marcelo Claros, acting in person
Richard Litkowski, duty counsel
Jessica Smith Joy, for the respondent
Heard: August 12, 2020 by videoconference
On appeal from the convictions entered on January 26, 2018 by Justice Frederic M. Campling of the Ontario Court of Justice.
REASONS FOR DECISION
1The appellant was convicted of aggravated assault and various firearms offences, all related to the shooting of David Fafinski with a shotgun at an intersection in Hamilton, Ontario. The appellant was sentenced to imprisonment for slightly less than five years.
2The appellant appealed his convictions; the Crown appealed sentence. A differently-constituted panel of this court already allowed the Crown’s sentence appeal and substituted a global sentence of eight years’ imprisonment: see R. v. Claros, 2019 ONCA 626. The appellant pursues his appeal against conviction.
3By way of overview, we adopt the following factual summary from this court’s reasons in Claros, in which Paciocco J.A. wrote, at paras. 9-13:
On May 25, 2016, Mr. Claros had a mutual friend [Chantelle Tweddle] arrange a meeting with David Fafinski at 9:00 p.m. in Hamilton’s east end. Mr. Fafinski was asked to bring $14,000 worth of cocaine to that liaison. Mr. Fafinski thought he was meeting the mutual friend when he showed up, but Mr. Claros was there instead.
At some point after encountering Mr. Claros, Mr. Fafinski attempted to flee. As he ran down a Hamilton street near an intersection, Mr. Claros shot him with a sawed-off shotgun. The shotgun was loaded with buck shot, not bird shot.
Mr. Fafinski was lucky. His lower extremities were sprayed and he was knocked down, but his injuries were not serious.
Immediately after the shooting, Mr. Claros fled. As a result, he was not arrested at the scene. That arrest happened two days later after he and his girlfriend, Halley MacPhee, tried to outrun the police in the car Ms. MacPhee was driving near Thunder Bay. The chase ended when Ms. MacPhee stopped to avoid a spike belt, and the pair was arrested.
During the police chase, Mr. Claros threw the shotgun out of the moving vehicle. It seems the pursuing officers did not see this happen. The shotgun was found on the side of the road by a concerned citizen who called the police. The recovered shotgun proved to have been stolen. It also proved to have Mr. Claros’s DNA on its surface. As a result, Mr. Claros was charged with firearms offences related solely to the Thunder Bay incident.
4The appellant’s girlfriend, Ms. MacPhee, was jointly charged with numerous offences arising from the Hamilton shooting. She was acquitted on all counts.
5With the assistance of duty counsel, the appellant raises numerous grounds of appeal.
THE EVIDENCE OF CHANTELLE TWEDDLE
6The appellant made a number of submissions concerning the frailties of Chantelle Tweddle’s evidence, as well as shortcomings in how the trial judge evaluated her evidence.
7The case for the Crown hinged on Ms. Tweddle’s evidence. She had a child with the appellant. The appellant and Ms. MacPhee visited Ms. Tweddle on the day of the shooting. It was at the appellant’s urging that Ms. Tweddle arranged the fictitious drug transaction with Mr. Fafinski and led him to believe that he would be meeting her at the Hamilton intersection.
8In his oral reasons for judgment, the trial judge said that Ms. Tweddle was “the most important witness for the Crown”. He appreciated that her evidence had to be approached with caution. After all, she was an unindicted accomplice. She gave inconsistent statements to the police out of fear of being charged in the shooting. As the trial judge said:
And at the outset, I will say there are circumstances that required me to carefully scrutinize her evidence and to consider what other evidence was confirmatory of hers.
After doing that, and I arrived at the conclusion which I was inclined to when I first listened to Ms. Tweddle, and that she was telling the truth as best she could remember it roughly a year and a half after the fact.
9The trial judge also found that the police threatened to charge Ms. Tweddle if she did not tell the truth. He noted that these threats “are among the reasons I found it necessary, despite my initial inclination to believe Ms. Tweddle, to scrutinize her evidence more carefully and particularly to look for confirmatory evidence.”
10The appellant submits that, although the trial judge said he would “carefully scrutinize” Ms. Tweddle’s evidence, this approach is not borne out in his reasons. We disagree. In the course of recounting Ms. Tweddle’s narrative, the trial judge referred to other supporting evidence. This included cell phone records. The Crown also led the evidence of a witness, who the trial judge characterized as “an excellent witness with a good recall and a good attention to detail”. That witness made observations from his third-floor apartment close to the intersection. Although he did not see the actual shooting, this witness heard a loud bang and looked out of his window. He saw a man run to a silver Ford Mustang, a car that fits the description of the vehicle that the appellant and Ms. MacPhee were in when fleeing the police in Thunder Bay two days later.
11As discussed below, although the trial judge disbelieved Mr. Fafinski’s evidence concerning the identification of the shooter, he accepted other aspects of his evidence that confirmed Ms. Tweddle’s version of events.
12The appellant points to other aspects of Ms. Tweddle’s testimony that he says are problematic. Ms. Tweddle had deleted important text messages that she referred to in her evidence. It would appear that, outside of court, she refreshed her memory about a cellphone number from phone records that had yet to be authenticated; the trial judge had ruled that she could not refresh her memory from these unauthenticated records. The appellant also contends that the trial judge failed to assign sufficient weight to Ms. Tweddle’s prior inconsistent statements. Finally, the appellant claims that Ms. Tweddle had an animus towards him that coloured her testimony.
13We do not accept these submissions. The trial judge was keenly aware of the in-and-out-of-court circumstances that touched on Ms. Tweddle’s performance and credibility as a witness. In terms of refreshing her memory, the records in issue were subsequently authenticated. Moreover, there is no credence to the claim of animus. The evidence demonstrated that the appellant and Ms. Tweddle maintained a positive relationship around the time of the shooting; the appellant and Ms. MacPhee spent a couple of hours with Ms. Tweddle earlier that same day. As the trial judge said, “it appears that you [the appellant] and Ms. Tweddle had a reasonably civilized relationship as parents of the same child.”
14The appellant’s essential claim is that the trial judge erred in accepting Ms. Tweddle’s evidence and that he was unduly generous in overlooking the flaws in her testimony. The trial judge’s credibility assessments are entitled to deference on appeal. There is no basis to intervene on appeal.
15We dismiss this ground of appeal.
THE EVIDENCE OF DAVID FAFINSKI
16The appellant submits that the trial judge erred in the way he dealt with the evidence of Mr. Fafinski. The Crown did not call him as a witness; the defence did. Mr. Fafinski testified that he knew who shot him and it was not Mr. Claros. However, Mr. Fafinski would not say who it was. If it had been the appellant who shot him, he would not have said so.
17The trial judge rejected Mr. Fafinski’s evidence on this point. The appellant submits that the trial judge failed to provide proper reasons for doing so. We disagree. The trial judge said the following:
Mr. Fafinski is a man with a significant criminal record, but currently with a job as a tow truck driver. He appears to have left the criminal life….
It was very clear to me that he was lying, and he was lying for a very understandable reason, and he did not want to “finger” you. He had not done so throughout the investigation, and there are obvious reasons why he would not do so. One is fear of retaliation and opprobrium which greets a “rat” or “an informer.” And in my view, he would not have said anything to harm your case. For that reason, when he said, he and you had no animosity, contrary to the evidence of Ms. Tweddle, I disbelieve Mr. Fafinski on that as well.
18We see no error in the trial judge’s approach. His explanation for rejecting Mr. Fafinski’s evidence on this point is entitled to deference on appeal.
19We reject this ground of appeal.
THE INJURY AND THE SHOTGUN
20The appellant submits that the trial judge erred in finding that Mr. Fafinski’s injury was caused by the same shotgun recovered by the police in the aftermath of the Thunder Bay offences. The trial judge held that “there is no expert evidence about that gun, but I am satisfied beyond a reasonable doubt on the other evidence that it was the gun that you used to shoot Mr. Fafinski.” The trial judge referred to hospital records that were admitted into evidence. He also considered evidence of holes in a window near the shooting scene. The trial judge then made the following findings:
That’s consistent with the weapon being a shotgun, but other than the circumstantial evidence, there is no other proof that it was the gun found in your possession.
I examined Exhibit 4 as closely as I could. It’s the spent 12-gauge shell. I am not an expert, of course, but there was nothing about it that told me whether it had contained buckshot or some other type of projectile.
So simply, on the physical evidence, leaving aside the circumstantial evidence, Mr. Fafinski’s wound could have been caused by Exhibit 3. It was not caused by an ordinary bullet from a rifle or a handgun. [Emphasis added.]
21The appellant submits that the trial judge erred in making these findings without expert evidence and that he improperly took judicial notice of these facts. We are satisfied that there was an evidentiary foundation for the trial judge to make the inferences that he did, in the absence of expert evidence, and without resort to judicial notice.
22First, the trial judge based his findings on the physical evidence, along with the circumstantial evidence related to the Thunder Bay incident. The police recovered a shotgun on the side of the road, wrapped in a shower curtain. The appellant’s DNA was found on the gun. The gun had been reported stolen in Alberta. The appellant traveled from Alberta to Hamilton to visit his son on the day of the shooting. After the shooting, it would appear that he was traveling back to Alberta with the shotgun when he was arrested. Accordingly, there was compelling evidence that it was the same gun.
23Second, although proof that the same shotgun was used in both sets of offences would have strengthened the identification of the appellant as the shooter, the appellant’s liability did not turn on the gun being the same. Moreover, the evidence identifying the appellant as the shooter was already compelling, if not overwhelming.
24We would dismiss this ground of appeal.
LATE DISCLOSURE AND CHARTER RELIEF
25There were disclosure problems in this case. It was not until the eve of trial that significant disclosure was made to the defence. After the trial was underway, a surveillance video and text messages between the appellant and Ms. MacPhee were disclosed. This resulted in two failed applications to stay proceedings under ss. 7 and 24(1) of the Canadian Charter of Rights and Freedoms. Still, the trial judge said he was “rather shocked by the shortcomings in disclosure” and felt that there should be some remedy. He rejected an award of costs as a remedy because the appellant was defended on a legal aid certificate. Consequently, he sought to remedy the Charter breaches through a sentence reduction.
26In Claros, on the sentence appeal, this court found that the trial judge erred in reducing the appellant’s sentence as a remedy for the Charter breaches. Applying the principles in R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, Paciocco J.A. said, at para. 75: “Here there is simply no link between the Charter breaches and the determination of a fit sentence. In my view, this is therefore not a case for a sentencing reduction.”
27The appellant submits that, as a result of this decision, he has been unfairly deprived of a remedy for Charter violations found by the trial judge. We disagree. The nullification of the sentence reduction as a remedy by the panel in Claros does not impact on the correctness of trial judge’s refusal to grant either of the other two remedies he considered (i.e., a stay of proceedings or a costs award). The appellant does not challenge the trial judge’s decision refusing to order a stay of proceedings. This signals an acceptance that the trial judge ensured that the fairness of the trial was not compromised by the late disclosure. Nor does the appellant ask this court to make a costs order, or grant any other remedy that is “appropriate and just.” There is no reason to believe that the appellant would be in any different position had the same panel heard the appeals against sentence and conviction at the same time.
28This ground of appeal is dismissed.
CONCLUSION
29The appeal is dismissed.
“L.B. Roberts J.A.”
“B.W. Miller J.A.”
“Gary Trotter J.A.”