Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20220304 DOCKET: C67420

Simmons, Pepall and Roberts JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Mohamed Bzezi Appellant

Counsel: Richard Litkowski and Myles Anevich, for the appellant Sunil S. Mathai, for the respondent

Heard: December 8, 2021

On appeal from the conviction entered by Justice Meredith Donohue of the Superior Court of Justice on January 10, 2018, with reasons reported at 2018 ONSC 170, and the sentence imposed on April 6, 2018, with reasons reported at 2018 ONSC 2058.

L.B. Roberts J.A.:

[1] The appellant appeals his conviction for one count of possession of a loaded prohibited firearm under s. 95(1) of the Criminal Code and seeks leave to appeal his six-year custodial sentence. He argues the trial judge failed to find numerous Canadian Charter of Rights and Freedoms infringements that should have led to the exclusion of the firearm from the evidence at trial and failed to consider reasonable inferences from the circumstantial evidence other than his guilt. He maintains his sentence was harsh and unfit.

[2] I do not agree. In my view, the appellant’s appeal cannot overcome the standard of appellate deference owed to the factual and credibility findings of the trial judge that were open to her and support her decision. These reasons explain why I would dismiss the appeal and not grant leave to appeal the sentence.

Brief Background Facts

[3] Early in the morning, in a known high crime area of Hamilton, Officer Starrs observed the appellant’s vehicle circling the area. He testified that he learned from running a CPIC plate search that the appellant’s vehicle was a rental vehicle and that he stopped the appellant’s vehicle to confirm that the driver was in fact licensed at that time. He checked the status of the appellant’s licence. He discovered that the appellant’s licence was suspended and that there was a caution for violence. He also discovered that the appellant was under an undertaking for several offences, including associating with an individual whose description the officer thought matched the passenger in the appellant’s vehicle. Officer Starrs called for backup.

[4] Shortly after the arrival of other police officers, and while the passenger of the car was being searched by police, the appellant fled on foot from the vehicle. The appellant ran through a parking lot and up a ramp near an alley with three officers in pursuit. Two of the three officers following him, Officers Park and Kersgens, testified that they saw the appellant stumble at one point. One of the other officers, Officer Miedzybrodzki, testified that the appellant dropped something when he stumbled. The appellant was apprehended and arrested as he tried to scale a fence.

[5] Officer Miedzybrodzki testified that he advised the appellant of his rights to counsel and cautioned him about seven or eight minutes after his arrest. Officer Miedzybrodzki had just arrived on the scene before the appellant fled and did not know the reason for the arrest. Therefore, he did not advise the appellant of the reason for his arrest.

[6] One of the officers who chased the appellant, Officer Park, returned to the scene of the chase. Officer Miedzybrovzki testified that around seventeen minutes after the appellant’s arrest, while the appellant was still on the scene, Officer Park observed a handgun in the alley near the ramp. The handgun was found around the location where the officers testified that the appellant stumbled and dropped something as he fled.

[7] Officer Miedzybrodzki testified that, upon learning about the discovery of the handgun, he advised the appellant about twenty-eight minutes after his arrest that he was arrested for possession of a firearm and re-read his rights and caution. Approximately an hour after his arrest, the appellant was provided with telephone access to counsel.

Judgment

[8] The trial judge concluded that, excepting s. 10(a), there was no breach of the appellant’s Charter rights. She rejected the appellant’s submissions that the traffic stop was a mere ruse and accepted Officer Starrs’s evidence that he stopped the appellant’s vehicle to check his licence. As such, she refused to find that the appellant’s ss. 9 and 10(a) Charter rights were violated by Officer Starrs [1]. The Crown conceded the s. 10(a) infringement by Officer Miedzybrovzki because of the twenty-eight-minute delay in advising the appellant of the reason for his arrest. The trial judge accepted the Crown’s submission that the appellant did not have any standing to seek a s. 24(2) Charter remedy because he denied possession of the handgun.

[9] However, the trial judge determined in any event that she would not have excluded the handgun under s. 24(2). She would not have excluded it because Officer Miedzybrodzki “acted in good faith and the breach was on the low end of the scale for seriousness” and because the appellant “was not in ignorance that he was facing consequences as a result of fleeing the traffic stop”. Further, the appellant was not questioned, the gun was not found as a result of the Charter breach, and the gun was crucial evidence for the Crown. The trial judge found that society “has a high interest in protection against and prosecution of cases involving firearms”. Therefore, the handgun would not have been excluded under s. 24(2).

[10] The trial judge rejected the appellant’s argument that the police failed to preserve and produce relevant surveillance video evidence from the auto body shop adjacent to the path of the chase. She accepted the evidence from the officer who attended the body shop to obtain the available exterior video evidence. This officer testified that only one camera was operable, and that he downloaded the video from that camera. The trial judge also accepted the evidence from the owners of the auto body shop that some of their surveillance cameras were very fuzzy and blurry and that the police were given the only video of any quality that showed the chase. She concluded that she was unable to find that there was relevant evidence lost and therefore that there was no breach of the appellant’s s. 11(d) Charter rights.

[11] Finally, the trial judge considered whether the appellant possessed the handgun later found by police. She was not persuaded by the appellant’s submissions that the officers’ evidence was suspect, that they had planted the handgun, or that the handgun was already there before the appellant’s altercation with police. Based on the evidence as a whole, the trial judge determined that the only reasonable conclusion from the entirety of the circumstantial evidence was that the appellant possessed the gun and threw it away along the path when he fled and where it was located minutes later by the police. As a result, she convicted the appellant of the offence of possession of a loaded prohibited firearm.

[12] With respect to sentence, the trial judge reviewed the appellant’s lengthy criminal record. His record includes previous convictions for robbery with a firearm and use of an imitation firearm during the commission of the offence, theft under $5,000, assault, dangerous operation of a motor vehicle, flight while pursued by a peace office, failure to comply with a recognizance, and failure to comply with probation orders. She noted he was subject to a ten-year firearms prohibition at the time he committed the offence at hand and that he had re-offended while on bail. She considered his intermittent employment history, his consistent pattern of criminal conduct, and that he was carrying a loaded firearm and discarded it in a public area which created a real and immediate danger to the public. She also took into account his difficult childhood and family difficulties, significant language barriers, and bullying when he immigrated to Canada. She considered that he was a youthful offender, had expressed sincere remorse and a decision to change his life’s path, and has a loving family and supportive girlfriend. The Crown sought a custodial sentence of seven years and defence proposed a three-year sentence, both less credit for pre-sentence custody. The trial judge imposed a six-year custodial sentence less pre-sentence custody credit of three years and 158 days.

Issues

[13] The appellant submits that the trial judge made several reversible errors. The appellant maintains that the trial judge erred in failing to find a violation of his ss. 7, 9, 10(b) and 11(d) Charter rights which should have led to the exclusion of the handgun. The appellant argues that the trial judge also erred in finding that he had no standing to pursue a s. 24(2) Charter remedy and in failing to exclude the handgun after finding the appellant’s s. 10(a) rights were infringed. Further, the appellant says that the trial judge erred by concluding that his guilt was the only reasonable inference to be drawn from the circumstantial evidence. Finally, he contends that his six-year sentence was harsh and unfit because the trial judge improperly relied on inapplicable cases involving aggravating factors absent in this case.

[14] As I shall explain, in substance, the appellant’s submissions amount to little more than an invitation for this Court to undertake afresh the trial judge’s assessment and weighing of the evidence that supported her dismissal of the appellant’s Charter arguments, her conclusion of the appellant’s guilt beyond a reasonable doubt, and the sentence that she imposed. I am not persuaded that the trial judge made any error that justifies appellate intervention.

Analysis

(a) Conviction Appeal

(i) Section 9 of the Charter

[15] The appellant submits that the trial judge erred by finding that there was no violation of the appellant’s s. 9 rights when his vehicle was stopped. According to the appellant, it was clear from the evidence that the traffic stop was an improper ruse to investigate the appellant for other more serious offences. As a result, his detention was arbitrary and unlawful.

[16] I disagree.

[17] As the trial judge stated, s. 216(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 allows a police officer “in the lawful execution” of his or her duties to require a driver of a motor vehicle, even at random, to stop for a routine traffic stop check. Section 216(1) also allows a police officer to require the driver to produce documents, such as a licence, that a driver is legally required to have: R. v. Gonzales, 2017 ONCA 543, 136 O.R. (3d) 225, at para. 55; R. v. Mayor, 2019 ONCA 578, at para. 6; Brown v. Durham Regional Police Force, 167 D.L.R. (4th) 672, at para. 24. That is what the trial judge found occurred in the present case.

[18] The trial judge was required to decide whether Officer Starrs actually formed a “legitimate intention” to make the detention for road safety purposes: Mayor, at para. 7 and Sandhu, 2011 ONCA 124, 268 C.C.C. (3d) 524, at para. 62. That is what she did here. The trial judge considered but rejected the appellant’s submission that the traffic stop was a mere fishing expedition. As she was entitled to do, the trial judge accepted Officer Starrs’s evidence and concluded that he “had no other agenda than to check the licence, as he was authorized to do under s. 216 of the Highway Traffic Act” and that the appellant understood that the licence check was the reason for his detention. This submission was repeated on appeal, but it has no merit. Those findings were open to the trial judge.

[19] The appellant argues that the trial judge’s conclusions are tainted by her error in requiring the appellant to establish that the traffic stop detention was unlawful. The appellant argues that this was a reversal of the legal burden of proof.

[20] I am not persuaded by this submission. Even assuming the trial judge made any such error in her review of the relevant principles, I do not agree that it was material to her ultimate conclusions because the trial judge found in the alternative that the Crown had established that the detention was lawful. As I earlier explained, her conclusion is founded on her acceptance of Officer Starrs’s evidence about the reason for the stop and her finding that the traffic stop was legitimate in accordance with s. 216(1) of the Highway Traffic Act. Again, these findings were open to her.

[21] I therefore see no basis to interfere with the trial judge’s determination of this issue.

(ii) Sections 7 and 11(d)

[22] The appellant argues that the trial judge erred in failing to find that his s. 7 and 11(d) rights were violated because the police did not recover and produce all the surveillance videos from the adjacent auto body shop that could have shown the appellant’s flight and his chase by police.

[23] While it may have been preferable for the police to have recovered and produced to the Crown all surveillance videos, I do not see any reversible error in the trial judge’s treatment of this issue. Again, as she was entitled to do, the trial judge accepted the evidence from the store owners and the police officer to find that only the video produced by the Crown was clear and the other videos showed nothing of value because of their poor quality. She concluded that no relevant evidence was lost and therefore that there was no breach. This conclusion was supported by the evidence that the trial judge was entitled to accept. There is no basis to intervene.

(iii) Section 10(a)

[24] The Crown conceded at trial that the appellant’s s. 10(a) rights were violated by the police’s twenty-eight-minute delay in advising him of the reason for his arrest. The trial judge agreed that the appellant’s s. 10(a) rights were violated. The appellant submits that the trial judge erred by 1) finding that the appellant had no standing to seek a s. 24(2) remedy; and 2) failing to grant a s. 24(2) remedy by excluding the handgun from the trial evidence.

[25] I agree that the appellant had standing to seek a s. 24(2) remedy. As the Crown conceded, there was a Charter breach and the requisite temporal connection between the breach and the handgun: see R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561, at para. 56; R. v. Pileggi, 2021 ONCA 4, 153 O.R. (3d) 561, at para. 101.

[26] However, I am not persuaded that the trial judge’s error made any difference to the outcome. Notwithstanding her conclusion about the appellant’s standing, she went on to consider whether the handgun should be excluded. Having properly balanced the factors set out in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, she determined the evidence should not be excluded for the reasons that I have already reviewed. I see no error with her determination of this issue.

(iv) Section 10(b)

[27] The appellant argues on appeal that his s. 10(b) rights were violated because he was not provided with immediate access to counsel upon his arrest. The appellant was permitted to speak to counsel once he was transported to the police station, about an hour after his arrest.

[28] The appellant did not raise this issue at trial. At trial, he argued that his s. 10(b) rights were infringed because Officer Starrs failed to give him his rights to counsel, caution, and access to counsel upon the initial detention to check his licence. The trial judge rejected this argument. The appellant does not renew this argument on appeal.

[29] I would decline to consider the new s. 10(b) argument on appeal. The appellant has not explained why the argument was not raised at trial or what miscarriage of justice would arise in its absence. In addition, a party who wishes to raise a new ground on appeal must satisfy the condition, among others, that the evidentiary record is sufficient to permit the appellate court to fully, effectively, and fairly determine the issue raised on appeal: R. v. Reid, 2016 ONCA 524, 132 O.R. (3d) 26, at para. 43. In my view, the evidentiary record is not adequate to permit a determination of this issue. No evidence was led by the Crown or the defence on what happened in the window of time when the appellant’s s.10(b) rights are said to have been violated.

[30] In any event, I see no real possibility that the handgun would have been excluded from trial evidence if any s. 10(b) breach was found. This is because of the dynamic circumstances of the appellant’s arrest, the short period of time between the appellant’s arrest and his access to counsel, and the absence of any material prejudice caused to the appellant by the delay.

(v) Circumstantial Evidence of Possession

[31] The appellant argues that the trial judge failed to turn her mind to inferences inconsistent with guilt, namely the theory that the gun was already there before the appellant’s flight. He argues that this failure makes the verdict unreasonable.

[32] I disagree.

[33] As the appellant acknowledges, the trial judge correctly instructed herself on the law as it relates to the assessment of circumstantial evidence. She specifically considered whether she could reasonably be satisfied that the appellant’s guilt was the only reasonable conclusion available on the totality of the evidence: see R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 55.

[34] The trial judge concluded that the appellant’s guilt was “the only reasonable, logical inference to be drawn” from all the evidence because of her findings that “the accused had the firearm on his person, fled the scene to avoid being searched, and dropped or threw the firearm on the ramp where he stumbled and where it was ultimately found”. This conclusion was open to her based on the evidence that she was entitled to accept.

[35] I reject the appellant’s contention that the trial judge failed to turn her mind to other reasonable inferences. It is clear from her reasons that she considered but was not persuaded by the appellant’s submission that the police had planted the handgun. Although the appellant did not make this submission at trial, the trial judge also assessed but rejected the possibility that an unknown third person may have left the handgun. Notwithstanding the absence of the appellant’s fingerprints or DNA on the handgun, which the trial judge took into account, it was nevertheless open to the trial judge to conclude that the appellant’s possession of the handgun was the only reasonable inference in the circumstances of this case.

[36] I therefore see no error that warrants appellate intervention.

(b) Sentence

[37] The appellant submits that the trial judge erred in imposing a six-year custodial sentence. He submits that the sentence was harsh and unfit because the trial judge relied on cases with much more aggravating factors than those present in his case. He argues that, while a penitentiary sentence was warranted in this case, the objectives of deterrence and denunciation could have been accomplished by a sentence in the three-year range less credit for pre-sentence custody.

[38] I disagree that there is any basis to interfere with the trial judge’s sentence. The trial judge’s decision on sentence is entitled to significant deference on appeal absent an error in principle that has an impact on the sentence or the sentence is demonstrably unfit: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 11 and 12. I see no such error in principle. Nor is the sentence imposed demonstrably unfit.

[39] No issue is taken with the appropriateness of the aggravating and mitigating factors that the trial judge reviewed or how she weighed them. Rather, the appellant’s argument challenges the trial judge’s reference to various sentencing cases involving offenders with previous convictions for more serious firearms offences that the appellant says are inappropriate comparators.

[40] I am not persuaded that the trial judge made any error in her approach. It is clear from her reasons that the trial judge considered all the cases presented by the parties. She did not rigidly follow the sentencing ranges set out in the cases. Rather, she properly considered them along with the other relevant sentencing principles and factors that she was required to review.

[41] The trial judge’s sentence properly reflects that this was a serious offence committed by a persistent recidivist who showed little respect for the public’s safety or court orders. The sentence also indicates that these circumstances were somewhat mitigated by the appellant’s personal circumstances, remorse, and positive familial support. The sentence appropriately furthered the sentencing goals of denunciation, deterrence, and protection of the public. It was appropriate and fit.

Disposition

[42] For these reasons, I would dismiss the appeal from conviction and deny leave to appeal sentence.

Released: March 4, 2022 “J.S.” “L.B. Roberts J.A.” “I agree. Janet Simmons J.A.” “I agree. S.E. Pepall J.A.”

[1] The trial judge also found there was no breach of the appellant’s s. 8 Charter rights. The appellant did not challenge that finding on appeal.