Court of Appeal for Ontario

Date: 2025-04-17
Docket: COA-23-CR-1318
Coram: MacPherson, Sossin and Monahan JJ.A.

Between

His Majesty the King
Respondent

and

Emmanuel Pinard
Appellant

Appearances:
Emmanuel Pinard, appearing in person
Peter Copeland, as duty counsel
Kevin Pitt, for the respondent

Heard: 2025-04-09

On appeal from the conviction entered on March 31, 2023 and the sentence imposed on May 18, 2023 by Justice Robert Maranger of the Superior Court of Justice, sitting with a jury.

Reasons for Decision

1The appellant appeals his conviction by a jury for possession of a firearm knowing it to be unauthorized. The jury acquitted the appellant of other more serious charges, including attempted murder.

2Duty counsel raises a number of grounds of appeal on behalf of the appellant, focusing primarily on alleged errors in the trial judge’s charge to the jury relating to the elements required to establish possession.

3First, duty counsel argues that the trial judge erred by instructing the jury on constructive possession when the Crown’s theory of the case did not rely on that mode of possession. This error was complicated by the fact that the trial judge failed to adequately explain the requirements of constructive possession, and then did not sufficiently relate the law to the evidence.

4As the Supreme Court of Canada emphasized in R. v. Abdullahi, 2023 SCC 19, 483 D.L.R. (4th) 1, at paras. 35-37, appellate review of jury instructions should proceed on the basis of a functional approach. It is the substance of the charge that matters, not adherence to a prescribed formula. Appellate courts need to read the charge as a whole and determine whether the overall effect of the charge was to properly equip the jury to decide the case according to the law and the evidence.

5Viewed through this lens, we see no error in the trial judge’s instructions on the law of possession. The trial judge included an explanation of personal, constructive and joint possession. The distinctions he drew between these various modes of possession were legally correct and properly explained. We see no risk of confusion on the part of the jury.

6Nor do we agree that the trial judge failed to relate the law to the evidence. The trial judge told the jury that their finding on joint possession would depend on their verdicts on the other counts because the joint possession theory derived from the same set of evidence as the other counts. The brevity of the trial judge’s explanation of the evidence related to the mode of joint possession is not an error, especially considering that crafting of these instructions was a challenging task with three co-accused and nine different counts. Read as a whole, the trial judge’s instructions properly equipped the jury to decide the many live issues before them, according to the law and the evidence.

7Finally, duty counsel argues that the trial judge failed to provide adequate assistance to the appellant, who was self-represented, by failing to ensure that he understood the legal meaning of possession. We do not agree. In fact, the trial judge went to great lengths to assist the appellant. In addition to the fact that s. 486.3 counsel was appointed to cross-examine the two main Crown witnesses, the trial judge appointed that same lawyer as amicus curiae for the purpose of preparing memoranda of law for the appellant relating to the more complex legal issues raised by the charges. While no such memorandum was provided in relation to the legal definition of possession, that appears to be because that concept was not as complex as others that arose during the trial. Trial judges are best positioned to determine the scope of an amicus appointment based on the specific needs of the case: R. v. Kahsai, 2023 SCC 20, 483 D.L.R. (4th) 199, at para. 59. We see no error in the trial judge’s approach. To the contrary, he is to be commended for the efforts he made to assist the appellant.

8The appellant also made oral submissions to the court. He explained that he had difficulty accessing Crown disclosure during the trial, and objects to the introduction of evidence of discreditable conduct that was not the subject of the offences with which he was charged. He argues that the trial judge improperly permitted the Crown to admit evidence of prior discreditable conduct.

9We would not give effect to these latter grounds of appeal. While there were evidently challenges in providing the appellant with timely disclosure, the trial judge and the Crown made considerable efforts to address these issues throughout the trial and, in any event, we see no prejudice to the appellant in relation to the possession charge on which he was convicted. As for the admission of prior discreditable conduct evidence, the trial judge expressly instructed the jury on the proper and improper uses of any such evidence that was admitted, and we see no error in that instruction.

10The appellant filed a notice seeking leave to appeal his sentence of three years and four months. However, no submissions were made on the fitness of the sentence and we see no error in the trial judge’s sentencing analysis.

11Accordingly, the conviction appeal is dismissed, and we deny leave to appeal sentence.