Court of Appeal for Ontario

Date: 20210519 Docket: C68582

Before: Hoy, Hourigan and Zarnett JJ.A.

Between:

Her Majesty the Queen Respondent

and

Kodie Johnston Appellant

Counsel: Kodie Johnston, acting in person Erin Dann, appearing as duty counsel Philippe Cowle, for the respondent

Heard: May 6, 2021 by video conference

On appeal from the convictions entered on November 14, 2019 and the sentence imposed on June 4, 2020 by Justice Kimberly E. M. Moore of the Ontario Court of Justice.

Reasons for Decision

[1] On May 18, 2018, Mr. Johnston’s roommate was shot in the chest, in the apartment he shared with Mr. Johnston.

[2] Mr. Johnston was convicted of a number of offences arising out of the May 18, 2018 incident, including aggravated assault, possession of a prohibited weapon while prohibited by court order, uttering threats, and obstructing police. Mr. Johnston was found not guilty of attempted murder.

[3] He was sentenced to a global period of imprisonment of 6.5 years, which, after credit for pre-sentence custody, resulted in a net sentence of 41 months.

[4] Mr. Johnston appeals both his conviction and sentence. On his conviction appeal, Mr. Johnston argues that: the Crown did not prove beyond a reasonable doubt that he was the person who shot the victim; the trial judge should not have relied on the fact that there was gun shot residue (“GSR”) on his hands because that evidence only came to light two weeks before trial and could have been fabricated and, in any event, there would have been more GSR on his hands if he had shot the victim; the trial judge should not have relied on his inculpatory statement to police because he was impaired at the time he gave the statement; and the trial judge relied too heavily on the evidence of the victim, who has mental health issues and might have been guessing that he was the shooter or been coerced into saying that he was the shooter. Mr. Johnston says that bikers who came from time to time to the apartment building might have shot the victim.

[5] On Mr. Johnston’s behalf, duty counsel argued that the trial judge erred by failing to consider whether Mr. Johnston had the requisite intent for the offences of uttering threats and obstructing police. Duty counsel also argues that the trial judge did not give adequate weight to Mr. Johnston’s mental health and addiction issues in sentencing him.

[6] We are not persuaded that we should interfere with conviction or sentence.

[7] We will address the above arguments in turn.

[8] In the trial judge’s words, the evidence that Mr. Johnston was the shooter was “overwhelming”. The evidence that led the trial judge to be satisfied beyond a reasonable doubt that Mr. Johnston was the shooter included that:

• Mr. Johnston was living with the victim at the time;
• the victim testified Mr. Johnston shot him;
• when the victim called 911 after he was shot, he described Mr. Johnston in detail and it was clear that Mr. Johnston was in the room with the victim at the time of the call;
• when the police arrived, the victim told them that Mr. Johnston was still in the apartment, with the gun;
• police located Mr. Johnston and the gun in the apartment and he was the only person in the apartment;
• no one went in or out of the apartment between the time the police arrived at the scene and the time they arrested Mr. Johnston;
• there were four GSR particles on Mr. Johnston’s hands;
• the recovered fired bullet was the same type of bullet as the five remaining bullets in the revolver found in its holster in the cushions of a couch in the apartment; and
• in the first of two recorded statements Mr. Johnston made to police, Mr. Johnston acknowledged multiple times that he shot the victim.

[9] As to the GSR, the trial judge noted that there was no suggestion by trial counsel that the GSR collection and sampling was flawed in any way, and the evidence of the forensic scientist at trial was that four particles of GSR is in fact a typical number of particles.

[10] Trial counsel was satisfied that Mr. Johnston’s inculpatory statement was voluntary and admissible. The trial judge found that Mr. Johnston was impaired to some degree at the time he shot the victim, but also that “his actions on [May 18, 2018] also demonstrate an ability to make conscious and deliberate decisions.”

[11] The appellant’s trial counsel noted that credibility was not a significant factor at trial, and, while counsel briefly adverted in his closing submissions to concerns about the reliability of the victim’s evidence, it was not the focus of the defence.

[12] The trial judge specifically considered and dismissed the possibility that the bikers could have shot the victim, noting that the person employed to do maintenance at the apartment building testified that the bikers did not attend at the building on May 18, 2018.

[13] Turning to the offence of uttering threats, when police officers were trying to arrest Mr. Johnston, he yelled, “you’re all going to die” and “don’t you know who I am, you’re all going to die.” The trial judge found that Mr. Johnston clearly threatened the officers and, in the circumstances, it could easily be understood why they took the threats seriously.

[14] Duty counsel argues that the trial judge had to be satisfied not just that the officers took the threats seriously, but that Mr. Johnston intended to intimidate the officers, or that he intended that the threats be taken seriously: R. v. McRae, 2013 SCC 68, [2013] 3 S.C.R. 931, at para. 29.

[15] A trial judge is presumed to know the law. That Mr. Johnston intended his threats to be taken seriously was not an issue at trial. The appellant’s trial counsel did not cross-examine on the threats as testified to by the police officers. Given the circumstances in which the threats were uttered, namely that Mr. Johnston made the threats while resisting arrest after shooting the victim, and the trial judge’s finding that Mr. Johnston had the “ability to make conscious and deliberate decisions”, the inference that he intended his threats to be taken seriously is clear. The trial judge’s failure to advert to this in her reasons does not reflect a substantial wrong and no miscarriage of justice has occurred.

[16] As to the obstructing offence, the trial judge accepted the evidence of all three officers that the appellant was resisting arrest by refusing to provide his hands, both when he was standing and when he was on the floor. Duty counsel argues that the trial judge erred by failing to consider whether the appellant intended to obstruct police. Obstruction requires wilful or intentional conduct: R. v. Gunn, 1997 ABCA 35, 113 C.C.C. (3d) 174, at para. 51; R. v. Yussuf, 2014 ONCJ 143, at paras. 49, 52. Intention can be inferred from context: Yussuf, at para. 49.

[17] At trial the focus was not on what Mr. Johnston intended. It was on whether he did what the officers testified that he did: refused to give his hands to the officers to be handcuffed. The appellant’s trial counsel argued that in this dynamic situation the court could not be sure that Mr. Johnston had indeed not produced his arms.

[18] Again, in the context of the defence’s theory at trial, what Mr. Johnston did, the circumstances in which Mr. Johnston did what he did, and the trial judge’s finding that Mr. Johnston had the “ability to make conscious and deliberate decisions”, the trial judge’s failure to specifically address whether the appellant intended to obstruct police does not reflect a substantial wrong and no miscarriage of justice has occurred. The clear inference from the context is that Mr. Johnston intended to obstruct the officers in the execution of their duty.

[19] Finally, with respect to the sentence imposed, the trial judge gave significant weight to Mr. Johnston’s mental health and addiction issues. The trial judge found that a sentence at the low end of the range indicated in R. v. Bellissimo, 2009 ONCA 49, at para. 3, for aggravated assault involving serious gun violence resulting in injury was appropriate “especially as I consider Mr. Johnston’s untreated addictions and mental health issues” (emphasis added). The trial judge then considered the collateral consequence of the COVID-19 pandemic and reduced Mr. Johnston’s sentence below the range from Bellissimo.

[20] A sentencing judge’s exercise of discretion in weighing relevant factors attracts deference on appeal: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 48-49. The weighing or balancing of factors only amounts to an error in principle if the sentencing judge exercises his or her discretion unreasonably: R. v. Friesen, 2020 SCC 9, 444 D.L.R. (4th) 1, at para. 26. The trial judge did not exercise her discretion unreasonably.

[21] Accordingly, the appeal is dismissed.

“Alexandra Hoy J.A.”

“C.W. Hourigan J.A.”

“B. Zarnett J.A.”