Court of Appeal for Ontario

Date: 2019-06-13 Docket: C64350

Justices: Doherty, Watt and Pardu JJ.A.

Between

Her Majesty the Queen Respondent

and

Ashley Fenton Appellant

Counsel

Cate Martell, for the appellant John A. Neander, for the respondent

Heard: June 12, 2019

On appeal from the conviction entered on July 28, 2017 by Justice A. Schreck of the Superior Court of Justice, sitting with a jury.

Reasons for Decision

1The appellant was convicted of possession of a firearm and threatening the complainant, Mr. Safranko. She submits that the trial judge erred in failing to allow the defence to advance a theory which could have raised a reasonable doubt as to her guilt.

2Destin Safranko had been friends with the appellant. He was homeless, and she had allowed him to stay at her home from time to time.

3Mr. Safranko testified that on November 16, 2015, he visited the appellant's home and slept over. He said the appellant showed him a shotgun which she retrieved from a black backpack kept in the laundry room. It is this possession by the appellant that formed the basis for the conviction on the possession count.

4Safranko was anxious to get some money, and finally admitted at trial that he had stolen some purses from the appellant's home and had planned to sell them to raise $100.00.

5According to Safranko, the next day, after discovering the theft of the purses, the appellant and her partner called him and threatened to kill him. Later that same day, the appellant and her partner went to Safranko's grandparents' home to confront him but he was not there.

6In the early morning of November 18, 2015, while Mr. Safranko was sleeping at his grandparents' home, someone fired a shotgun at the front door of that residence.

7The appellant was acquitted of charges related to use of the firearm on November 18, 2015.

8At trial, the Crown relied on photographs of a shotgun located on the appellant's phone, three text messages found on the appellant's cell phone which contained photographs of the shotgun, sent between November 9 and 13, and cell tower evidence putting the appellant's phone in the general area where the shooting occurred at the relevant time.

9The defence relied on the evidence of the appellant's daughter who testified that on November 17, two men came to her mother's residence looking for Mr. Safranko. She testified that they asked if he was there and asked to see where he kept his belongings. She took them to the laundry room and showed them a backpack. The men looked inside the backpack and shouted to her to make sure Destin has it (or all the rest of the stuff). The men left with the backpack.

10The defence theory at trial was that Mr. Safranko had possession of the firearm, needed money, was in trouble and had been using the appellant's phone to which he had liberal access to find a buyer for the gun.

11After the close of the evidence, without objection having been made when the evidence was led, the Crown objected to the evidence of the appellant's daughter on the ground that it should have been the subject of a third party suspect application in advance by the defence so the admissibility of that evidence could have been tested. The Crown sought a mistrial on that ground.

12The trial judge held that evidence intended to show that Mr. Safranko was guilty of some of the offences amounted to "third party suspect" evidence and that the defence had to "show that there is some basis upon which a reasonable, properly instructed jury could acquit based on the defence." (R. v. Grandinetti, 2005 SCC 5 at para. 48)

13The trial judge held that as there was no evidence as to the content of the backpack searched by the two men, there was no evidence connecting the shotgun to Mr. Safranko, other than his allegedly having seen it in the appellant's possession and that accordingly there was no evidentiary basis for a finding that the shotgun was in Mr. Safranko's possession, as opposed to the appellant's possession. He ruled the evidence of the appellant's daughter inadmissible in so far as it was tendered to show that Mr. Safranko was the one who had possession of the shotgun.

14He did however admit the evidence for the purpose of suggesting that it was the two unidentified men who shot at the door of the grandparents' home:

…it would be open to the jury to infer that the two men were upset with Mr. Safranko because he owed them something for some reason (Mr. Safranko admitted to having a history of theft). It would also be open to the jury to infer that they were looking for Mr. Safranko at a time proximate to the discharge of the firearm and that they had some awareness of the locations which Mr. Safranko frequented as they knew to look for him at Ms. Fenton's home. Based on these inference, it would be open to the jury to infer that the two men had a motive to harm Mr. Safranko.

15The trial judge addressed the potential prejudice to the Crown from the appellant's unsuccessful attempt to argue that Mr. Safranko was a suspect in the possession of the shotgun count by instructing the jury that there was no evidence about the contents of the backpack when it was searched by the two unknown men.

16At the close of the trial, defence counsel asked the trial judge about the limits of his ruling. He asked whether the effect of the ruling was that he could not suggest to the jury that Mr. Safranko was the owner of the firearm. The trial judge responded that defence counsel was correct, that there was "no evidence of that." The trial judge told defence counsel he could submit that Mr. Safranko was not a credible witness, but that he could not suggest to the jury that "at one point in time stole a firearm." The trial judge said "You can say he stole something and/or otherwise has things that somebody wants, because there is an evidentiary basis for that. But I don't think there's any evidence what it was."

Analysis

17The trial judge's conclusion that there was no direct evidence about the contents of the backpack searched by the two men is unassailable. The question is whether there was some other evidence sufficient to give the defence an air of reality, and which could have afforded a basis upon which a reasonable properly instructed jury could acquit.

18Evidence of an alternate suspect must be relevant. There must be a sufficient connection between the third party and the offence. Inferences must not be based on speculation or conjecture.

19Here there are elements of the evidence independent of the contents of the backpack which could have been laid out for the jury as follows:

• Mr. Safranko was a cocaine addict who was desperate for money.
• He was so desperate that he stole from someone who provided him with a place to stay, hoping to raise $100.00
• One could infer from the contents of the cell phone texts including pictures of the shotgun that the author of those texts was trying to sell the shotgun.
• Those texts were sent to persons known to both the appellant and Mr. Safranko
• Mr. Safranko stayed in the appellant's apartment and had liberal use of her phone.
• One could infer the two men believed Mr. Safranko had taken something of importance from them and were angry with him.
• One could infer that he may have been the one sending the texts about the shotgun to try to get money, and that he therefore had possession of the shotgun.

20All of these events occurred more or less contemporaneously. Mr. Safranko was intimately involved in these events and was a witness who had admittedly lied under oath. There were multiple inconsistencies in his evidence. None of the above need be necessary inferences, but they might raise a reasonable doubt in the mind of a juror as to whether the appellant had possession of the shotgun.

21Had the jury been allowed to consider this chain of reasoning, it could have affected their assessment of Mr. Safranko's credibility and hence their reasoning on the threatening count as well. We cannot be sure that the verdict would necessarily have been the same if defence had been permitted to make its proposed arguments. Both convictions are set aside and a new trial ordered.