Court of Appeal for Ontario

Date: 2018-02-27 Docket: C63404

Judges: Pepall, Benotto and Fairburn JJ.A.

Between

Her Majesty the Queen Respondent

and

Anthony Ticzon Appellant

Counsel

Jessica Zita, for the appellant Sarah Shaikh, for the respondent

Heard and released orally: February 22, 2018

On appeal from: the conviction entered on June 29, 2016 and the sentence imposed on December 1, 2016 by Justice F.L. Myers of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

Conviction Appeal

[1] The appellant appeals from his conviction for possession of methamphetamine for the purposes of trafficking and possession of a weapon for a purpose dangerous to public safety. He also seeks leave to appeal his sentence.

[2] His conviction appeal rests on three grounds: the trial judge erred in his credibility findings; misapprehended the evidence; and erred in drawing an adverse inference against the appellant's exercise of his right to remain silent.

[3] We would not give effect to these submissions.

[4] First, credibility findings are the province of the trial judge. Here he considered the frailties in the evidence of the police officers but explained why he accepted their evidence. For instance, he reasoned that Officer Graham's misdescription of the size of the knife was attributable to the fast paced, high stress situation confronting him. The difference in the officers' description of the appellant's walking pace reflected the different timing of the two officers' entry into the stairwell and their observations of the appellant. Furthermore, the trial judge was entitled to accept some, none or all of the police officers' testimony. On the crucial issue of the appellant's brandishing the knife, the trial judge was able to rely on the evidence from Officer Liddy.

[5] There is no basis on which to conclude that the trial judge applied a lower standard of scrutiny to the evidence of the Crown over that of the defence. Based on the record before him, it was open to the trial judge to make the findings he did and to rely on his common sense in making those determinations.

[6] We also reject the appellant's contention that the trial judge misapprehended the evidence by applying a theory not advanced by the defence. During cross-examination, the appellant denied that he had a knife and his counsel put that theory to the police in cross-examination. The trial judge's reference to the police planting the knife in the appellant's knapsack was reasonable in that context.

[7] Lastly, the trial judge did not draw an adverse inference from the appellant's silence, he simply stated that there were no inconsistencies in the appellant's evidence because he gave no prior statements. This was a statement of fact from which no inference was drawn.

[8] The conviction appeal is dismissed.

Sentence Appeal

[9] Turning to the sentence appeal, the trial judge sentenced the appellant to four years less time served of 19.5 months. He described this as a sentence of four years in the aggregate for both offences. Although the reasons do not expressly apportion the time between the two offences, the indictment reflects a sentence of four years for each offence, concurrent, less time served.

[10] At trial, the Crown had sought three years for the trafficking offence (64.1 grams of methamphetamine) and one year consecutive for the weapons offence.

[11] Before this court, the Crown fairly acknowledged that there was an error in the structure of the sentence.

[12] We accept the Crown's submission on appeal that a sentence of three years on the trafficking offence and one year on the weapons offence concurrent less time served of 19.5 months, is a fit sentence. We particularly note that the appellant was 28 years of age at the time of sentencing and had a criminal record consisting only of a suspended sentence for two counts of fraud.

[13] For these reasons, leave to appeal sentence and the sentence appeal are granted.

"S.E. Pepall" "M.L. Benotto J.A." "Fairburn J.A."