Court of Appeal for Ontario

Date: 2018-02-26 Docket: C60490

Judges: Feldman, Brown and Fairburn JJ.A.

Between

Her Majesty the Queen Respondent

and

Bashir Bokhari Appellant

Counsel

Michael McKee, for the appellant

Deborah Krick, for the respondent

Heard

February 9, 2018

Appeal Information

On appeal from the conviction entered on March 20, 2015, by Justice Elinore A. Ready of the Ontario Court of Justice.

Reasons for Decision

[1] Overview of Convictions and Grounds of Appeal

The appellant was convicted of unauthorized possession and careless storage of a sawed-off shotgun and possession of prohibited devices, including a silencer and three high capacity magazines. He appeals only from his convictions relating to the shotgun and silencer. The appellant's conviction appeal rests on two errors alleged to have been made by the trial judge.

[2] First Ground of Appeal: Reversal of Burden of Proof

First, the appellant maintains that the trial judge reversed the burden of proof. In support of this claim, he points to six passages in the reasons for judgment where the trial judge makes reference to the fact that he did not testify. The appellant argues that, by referring to his decision not to testify on so many occasions, it is clear that the trial judge drew an inference of guilt from his silence. We disagree.

[3] The Right to Silence and Uncontradicted Evidence

The testimonial silence of an accused cannot give rise to an inference of guilt: R. v. Noble, [1997] 1 S.C.R. 874, at paras. 79-82. Even so, once "uncontradicted evidence points to guilt beyond a reasonable doubt", the accused's silence will sometimes mean that he has failed to "provide any basis for concluding otherwise": Noble, at para. 82. See also: R. v. Ibrahim, 2014 ONCA 157, 318 O.A.C. 1, at para. 41.

[4] Caution Required When Referencing Accused's Silence

Although an error is not generated by simple reference to an accused's decision not to testify, making references to the accused's silence can run a real risk of implicitly or explicitly impinging upon the right to silence and reversing the burden of proof. Accordingly, trial judges should exercise caution when referencing the accused's silence at trial, lest they fall into error.

[5] Application to This Case

While it would have been preferable had the trial judge not mentioned the appellant's decision not to testify so many times, we are satisfied that, taken alone and as a whole, the trial judge did not fall into error by reversing the burden of proof in this case. At most, the references to the accused's decision not to testify can be taken as referring to the fact that the Crown's evidence stood uncontradicted. Read in context, the reasons for judgment demonstrate the trial judge's understanding that she had to consider the "whole of the evidence" that was before her. The reasons do not reflect any reliance on the appellant's silence to infer guilt. This ground of appeal must fail.

[6] Second Ground of Appeal: Unreasonable Verdict

As for the second ground of appeal, the appellant maintains that the verdict is unreasonable. We disagree.

[7] Facts: Discovery of Prohibited Weapons

During the execution of a Controlled Drugs and Substances Act, S.C. 1996, c. 19 search warrant, the police discovered an empty light-weight gun locker in the basement of the appellant's home. The appellant, his wife and son had lived in this home for at least six years. At some point in the previous six years his daughter had also lived in the residence.

[8] Discovery Behind Particle Board

When the gun locker was moved, the police discovered an obvious piece of particle board affixed to the wall. The particle board was removed with ease and the shotgun and silencer were discovered behind. It is this discovery that led to the convictions that are challenged on appeal.

[9] Testimony of Family Members

Both the wife and son testified. They denied any knowledge of the shotgun and silencer. The trial judge accepted their evidence on this point. She also accepted their evidence that they had little to do with the basement area in general. The appellant was the only other person living in the home at the time who may have had knowledge of the shotgun and silencer.

[10] Trial Judge's Reasoning: Rejection of Former Owner Theory

The trial judge's reasons amply support the circumstantial inferences drawn in relation to knowledge and control. While the defence posited the theory that the former home owner may have left the shotgun and silencer behind, the trial judge rejected this theory on the basis that: (a) the shotgun and silencer were valuable items and not easily replaceable; (b) one would not simply "forget" them and leave them behind; (c) the former home owner would know that the items would inevitably be discovered by the new home owner; and (d) when discovered, the police would be able to easily trace them back to the former home owner. For these reasons, the trial judge concluded that it made no sense that the former owner would have left the shotgun and silencer behind.

[11] Trial Judge's Holistic Assessment

The trial judge went on to consider the evidence as a whole and determined that she was satisfied beyond a reasonable doubt that the accused had knowledge and control of the shotgun and silencer. Among other things, she considered the fact that: (a) he had lived in the home for six years; (b) the wife and son did not know about the shotgun and silencer; (c) the gun locker placed in front of the particle board was easy to move; (d) the appellant was experienced with guns and would have looked in and around the gun locker; (e) the basement was well-maintained; (f) neither the wife nor son cleaned the basement; and (g) the particle board was obvious and easy to remove. The pictures of the location where the items were found provide support for these conclusions.

[12] Verdict Well-Supported by Evidence

The circumstantial inferences drawn by the trial judge were available on the evidence. This was a verdict that is well supported by the evidence. This ground of appeal must also fail.

[13] Sentence Appeal: Leave Granted

The appellant also seeks leave to appeal his sentence on the basis that the 14 months custody, less 21 days credit, should have been imposed as a conditional sentence. We disagree.

[14] Sentencing Principles and Deference

These were serious offences, directly affecting public safety. The trial judge focused on the correct sentencing principles. Although the appellant has some serious health issues, the trial judge satisfied herself that the correctional authorities could accommodate them. She carefully considered whether to impose a conditional sentence and declined to do so. The reasons disclose no error and are entitled to deference by this court.

[15] Disposition

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

"K. Feldman J.A." "David Brown J.A." "Fairburn J.A."