Youth Criminal Justice Act Warning

WARNING THIS IS AN APPEAL UNDER THE YOUTH CRIMINAL JUSTICE ACT AND IS SUBJECT TO:

110(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

(2) Subsection (1) does not apply (a) in a case where the information relates to a young person who has received an adult sentence; (b) in a case where the information relates to a young person who has received a youth sentence for a violent offence and the youth justice court has ordered a lifting of the publication ban under subsection 75(2); and (c) in a case where the publication of the information is made in the course of the administration of justice, if it is not the purpose of the publication to make the information known in the community.

(3) A young person referred to in subsection (1) may, after he or she attains the age of eighteen years, publish or cause to be published information that would identify him or her as having been dealt with under this Act or the Young Offenders Act , chapter Y-1 of the Revised Statutes of Canada, 1985, provided that he or she is not in custody pursuant to either Act at the time of the publication.

111(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

138(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the Young Offenders Act , chapter Y-1 of the Revised Statutes of Canada, 1985,

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or (b) is guilty of an offence punishable on summary conviction.

Court of Appeal for Ontario

DATE: 20220729 DOCKET: C69377

Roberts, Paciocco and Favreau JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

O.A., a young person Appellant

Counsel: Maija Martin and Stephanie Brown, for the appellant Katherine Beaudoin, for the respondent

Heard: June 28, 2022

On appeal from the convictions entered by Justice Manjusha Pawagi of the Ontario Court of Justice (Youth Justice Court) on November 27, 2020.

REASONS FOR DECISION

[1] The appellant, O.A., was found guilty of six firearms offences, including discharging a firearm with intent to endanger a life.

[2] The convictions arose from an incident that occurred at a community centre in Toronto on October 17, 2019. That evening, following a basketball game, a group of young people were involved in an altercation in a hallway of the community centre. The group of young people then followed the coach of the losing team, S.H., as he went to his car into the parking lot. There is no dispute that the appellant was one of the young people at the community centre. Surveillance video outside the community centre showed a person pointing what looked like a handgun at S.H.’s car as S.H. pulled his car out of the parking lot. One witness heard what sounded like a gunshot. The video shows the crowd dispersing quickly after S.H. pulled out of the parking lot. When S.H. got home, he found a mark on the door of his car that had not been there previously. No firearm or bullets were ever recovered.

[3] The trial judge found that the Crown had proven the firearms charges against the appellant beyond a reasonable doubt. In reaching this conclusion, the trial judge acknowledged that all the evidence against the appellant was circumstantial. However, she concluded that the only reasonable inference was that the appellant was in possession of a firearm as defined in s. 2 of the Criminal Code , R.S.C. 1985, c. C-46, and that he shot at S.H.’s car using that firearm.

[4] The appellant argues that the trial judge misapprehended the evidence regarding the marks on S.H.’s car and that the verdict was unreasonable because there were other available reasonable inferences. We do not give effect to these grounds of appeal.

No misapprehension of the evidence

[5] The appellant argues that the trial judge misapprehended the evidence regarding the marks on S.H.’s car in two respects: (1) she mischaracterized the marks as “two perfectly round dents” and (2) she improperly took judicial notice that the dents were caused by bullets.

[6] With respect to the first issue, in our view, the appellant places undue emphasis on the specific words used by the trial judge in describing the dents on the car. Looking at the photos of the dents, which were made exhibits at the trial, one of the dents is round and the other one could arguably be described as an oval rather than perfectly round. However, they are both rounded. Even if the trial judge erred in characterizing the dents as “ perfectly round” (emphasis added), this is not a material misapprehension of the evidence, and it did not play an essential role in her reasoning. No doubt the trial judge based her inferences on her direct observation of the dents in the photos, not on her description of the dents. Ultimately, the specific words the trial judge used to describe the dents are less important than the issue of whether she misapprehended the evidence in concluding that the dents were caused by bullets.

[7] On this second issue, the appellant argues that the trial judge impermissibly took judicial notice that the dents on the car door were caused by bullets. He argues that the trial judge should not have reached this conclusion without expert evidence. We reject this argument. First, it is important to note that, contrary to the appellant’s submission, the trial judge did not specifically find that the shape of the dents on the car established that they were necessarily caused by bullets. Rather, in the context of considering alternative explanations for the dents that the appellant offered, including that they could have been caused by someone kicking or punching or throwing an object at the door, she stated that “the dents are perfectly round which is more consistent with something like the impact of a bullet” (emphasis added). More significantly, the trial judge did not rely exclusively on her observation of the shape of the dents to conclude that they had been caused by bullets. Rather, she based this conclusion on a consideration of all the evidence, including the following:

1. There was security video footage showing the appellant reaching for his waistband, walking toward S.H.’s car, trying to open the doors of the car, and then aiming “what appears by its outline to be a gun” at the side of the car as it pulled out of the parking lot.
2. One of the other coaches that night, K.M., testified that he followed the young people out of the community centre. K.M. saw the young people surrounding S.H.’s car. He also saw them kicking and hitting the car, and trying to get S.H. out of the car. K.M. then heard “one single shot” as the car was driving away. The sound was close to where he was standing, which the video shows is close to where the appellant was standing. K.M. did not see anyone holding a weapon, but he had heard gunshots before. After the gunshot sound, everyone ran off. K.M.’s evidence on this point is confirmed by the video that shows everyone scattering as S.H.’s car pulls out of the parking lot.
3. S.H. did not hear a gunshot, but his ears were ringing as he drove away.
4. When S.H. got home that night, he noticed “a little dent” on his car door that had not been there before. The police took photos of the car door following the incident. The photos show two dents. S.H. testified that it was the larger of the two dents that he noticed the night of the incident, but that both dents had not been there previously.

[8] The trial judge explicitly recognized that she did not have the benefit of expert evidence but, again, found that, in all the circumstances of the case, the dents were “more consistent with something like the impact of a bullet”. In doing so, the trial judge was clearly making two observations about the character of the dents: (1) they do not have the appearance one would expect of damage caused by kicks, punches or thrown objects, and (2) they do not appear to be inconsistent with damage that could have been caused by the impact of a bullet. Significantly, the conclusion that the dents were “more consistent with something like the impact of the bullet” was also supported by the other evidence in the trial of an act – the apparent firing of a gun by the appellant – that if it occurred could be expected to have left damage to the vehicle in the location where this damage was observed. Simply put, the inference that the dents were “more consistent with something like the impact of the bullet” was a common sense inference available to the trial judge based on the character of the dents and the other the evidence at trial, and was not tantamount to judicial notice: see e.g., R. v. Tweneboah-Koduah, 2018 ONCA 570, 48 C.R. (7th) 288, at para. 27. There is no basis for concluding that the trial judge misapprehended the evidence.

The verdicts were reasonable

[9] The appellant argues that the verdicts were unreasonable because there were other inferences available to the trial judge. In particular, the appellant argues that the trial judge should have considered other ways in which the dents could have been caused, or that the appellant used a replica firearm or a BB gun rather than an unlawful firearm. On this last point, the appellant emphasizes that no firearms or shell casings were recovered from the scene.

[10] As held in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 55, where a verdict is based on circumstantial evidence, the question on appeal is “whether the trier of fact, acting judicially, could reasonably be satisfied that the accused’s guilt was the only reasonable conclusion available on the totality of the evidence”. There are other cases in which this court has upheld a finding that an accused used or was in possession of a firearm, even where the firearm was never recovered. In such cases, the court looked at whether the trial judge assessed the totality of the evidence, and whether the trial judge could have been reasonably satisfied that the accused’s guilt was the only reasonable conclusion available on that evidence: see e.g., R. v. Dillon, 2018 ONCA 1085, at paras. 17-18, referring to R. v. Richards, at para. 4, and R. v. Charbonneau, at para. 3; R. v. Carlson (2002), 159 O.A.C. 342 (C.A.), at paras. 15-17, leave to appeal refused, [2002] S.C.C.A. No. 363.

[11] Here, in assessing the evidence, the trial judge considered and rejected several alternatives to the appellant’s guilt. First, she dismissed the possibility that there was another shooter. Although the video appears to show another person throwing something overhand at S.H.’s car as it pulled out of the parking lot, the trial judge found that the person used a hand gesture that is inconsistent with the firing of a gun and that the person did not appear to be holding a handgun. Second, as described above, the trial judge rejected the suggestion that the dents on the car were caused by the young people kicking and hitting the car. She found, as referred to above, that “[w]hile there was no expert evidence regarding what could have caused the dents in the car door, the dents are perfectly round which is more consistent with something like the impact of a bullet”. Finally, she rejected the possibility that the appellant was holding a “starter’s pistol”. The trial judge found that there would have been no reason for the appellant to aim a starter’s pistol at S.H.’s car and that the use of a starter’s pistol is inconsistent with the fact that there were dents on the car.

[12] On appeal, the appellant renews his argument that the dents on the car could have been made by the people kicking and hitting the car. However, as we have explained, the trial judge considered this possibility and rejected it on the basis of all the available evidence, including the fact that the shape of the dents is inconsistent with kicks and punches. We see no error in the trial judge’s rejection of this suggested inference.

[13] The appellant also now argues that the trial judge failed to consider that the appellant may have been holding a replica firearm or a BB gun. We note that this argument was not made at trial. The trial judge cannot be faulted for failing to respond, in her decision, to arguments that were not made. In any event, common sense alone suggests that, if a replica firearm or a BB gun could have caused the dents in the car that the trial judge observed, replica firearms and BB guns would no doubt satisfy the definition of “firearm” in s. 2 of the Criminal Code . This argument does not provide a pathway to acquittal. Given the evidence that was available before the trial judge, including that the appellant aimed what looked like a handgun at the car and the shape of the marks that were discovered on the car, we are satisfied that it was open to the trial judge to conclude that the appellant’s guilt was the only reasonable inference.

Disposition

[14] The appeal from conviction is dismissed.

[15] Prior to the beginning of the appeal, the appellant abandoned his sentence appeal. The sentence appeal is therefore dismissed as abandoned.

“L.B. Roberts J.A.”

“David M. Paciocco J.A.”

“L. Favreau J.A.”