Court of Appeal for Ontario

Date: 2022-08-16 Docket: C69769

Before: Doherty, Brown and Favreau JJ.A.

Between: Her Majesty the Queen, Respondent And: Emery McNichols, Appellant

Counsel: Chris Rudnicki and Theresa Donkor, for the appellant Peter Scrutton, for the respondent

Heard: August 9, 2022

On appeal from the conviction entered on March 10, 2020 by Justice Suhail A.Q. Akhtar of the Superior Court of Justice, sitting without a jury, and the sentence imposed on November 3, 2020, with reasons at 2020 ONSC 6499.

Reasons for Decision

[1] The appellant was convicted of five offences related to the possession of a loaded firearm and six breaches of firearms prohibitions. The appellant was sentenced to eight and a half years of custody, with a reduction of 3 years and 10 months for pre-sentence custody and 2 months of enhanced credit based on R. v. Duncan, 2016 ONCA 754.

[2] The appellant appeals his conviction on the basis that the trial judge failed to adequately address significant discrepancies between the evidence of the four police officers who were present at the time the firearm was found. The appellant also appeals his sentence on the basis that the trial judge failed to give him any credit for the conditions of incarceration related to the COVID-19 pandemic.

[3] At the end of the hearing, the panel advised that the conviction and sentence appeals are dismissed with reasons to follow. These are the reasons.

Conviction Appeal

[4] On June 1, 2018, four police officers in a marked police van were patrolling an area in Scarborough. Shortly after 9:00 p.m., they entered the parking lot of a strip mall. The appellant and another man were in the parking lot in the vicinity of three vehicles parked next to each other. The appellant was standing between two of the vehicles and the other man was sitting on the hood of the third vehicle. Three of the police officers saw the appellant move toward the back of the vehicles, one of which was a white van. Two of the police officers heard the sound of a metal object falling to the ground. The police officers got out of the police vehicle. One of them found a handgun on the ground behind the parked white van. The police officers then arrested the appellant. At the time of his arrest, the appellant was wearing a satchel with two pockets, both of which were empty.

[5] The only issue at trial was whether it was the appellant who placed the handgun where it was found in the parking lot. The Crown and the defence agreed that, if the evidence established beyond a reasonable doubt that it was the appellant who placed the handgun there, then the appellant was to be found guilty on all charges.

[6] The trial judge was satisfied beyond a reasonable doubt that the appellant placed the handgun where it was found. The trial judge acknowledged that all the evidence was circumstantial, but he was satisfied that the only reasonable inference from all the evidence was that the appellant placed the handgun where it was found. In reaching this conclusion, the trial judge recognized that there were discrepancies between the evidence of the four police officers who were in the parking lot at the time the handgun was found. The trial judge described some of those discrepancies as insignificant and others as significant.

[7] The appellant argues that the trial judge erred in law in his treatment of the discrepancies between the police officers’ evidence. He argues that the trial judge minimized the significance of the discrepancies, which had the effect of reversing the burden of proof. In making this argument, the appellant relies on a statement made by the trial judge during the hearing and in his reasons to the effect that “the police sometimes find themselves in an impossible position as witnesses”. The appellant says this statement demonstrates that the trial judge was predisposed to believe the police officers and to explain away the discrepancies in their evidence.

[8] We see no merit to this argument. The trial judge’s comment about the difficult position in which police officers find themselves cannot be looked at in isolation. The trial judge made this comment while addressing an argument made by defence counsel at trial that the police officers had colluded in their evidence. In the context of making the comment about the difficult position of police officers, the trial judge explained why he rejected the argument alleging collusion:

This brings me to Mr. Moriah's submission that the police had in some way communicated to each other after the fact and prior to trial their own viewpoints in an attempt to create a consistent testimonial backbone.

It appears to me the police sometimes find themselves in an impossible position as witnesses. If their testimony and notes are too similar or identical, they are attacked for having colluded with each other on evidentiary issues. On the other hand, if their versions are different they are accused of fabrication. Neither of these positions was, of course, ever suggested to the police at this trial. I find, however, that the police were not fabricating their evidence. If they had done so, their testimony – especially Nanton’s – would not be as disparate in as many areas as it is. I find that the officers were telling the truth as they recalled it from their perspective and their vantage point. (Emphasis added.)

[9] Looking at the reasons more broadly, the trial judge carefully addressed the discrepancies between the police officers’ testimony and explained what evidence he accepted and why he accepted it. Ultimately, he concluded that “there remains a core of consistency in the accounts”, which he described as follows:

All of the officers indicated that as soon as they turned in to the parking lot, Mr. McNichols headed towards the back of the car and nearer the van. Both Tippett and Allard said that Mr. McNichols was looking in their direction before he moved to the van; the inference being that he saw the police before he moved. Tippet also saw Mr. McNichols bend down behind the cars near the area where the gun was found. Both Nanton and Allard heard a sound resembling a metallic object hitting the ground after Mr. McNichols had walked to the area of the van.

All officers testified that Mr. McNichols was wearing a satchel, and three of the officers said that the top pouch was closed when they first noticed Mr. McNichols and before he reached the van. All four said the pouch was open when he returned to the front of the Ford Fusion.

The evidence is that there was no one else present in the area but Mr. McNichols and Mr. Mcalister, and only Mr. McNichols went to the back of the cars near the van.

Finally, when the satchel was seized it was empty. When the police searched Mr. McNichols incident to arrest, they located personal items such as his phone and his keys in his pants pocket.

[10] Taking the decision as a whole, it is evident that the trial judge did not reverse the burden of proof. He was aware of the discrepancies between the evidence of the police officers, but he considered all their evidence, including the common aspects of their evidence and other corroborating evidence, and he concluded that the only reasonable inference was that the appellant placed the handgun where it was found.

[11] Trial judges are entitled to significant deference in their assessments of credibility and their factual findings. We see no error in this case.

Sentence Appeal

[12] The appellant argues that the trial judge made an error in principle in failing to give him any credit for the conditions of his pre-sentence incarceration due to COVID-19. At the time of sentencing, the appellant sought 100 days of credit for the COVID-19 conditions. On appeal, he now seeks a reduction of one year in his sentence. We reject the argument that the trial judge made an error in principle for two reasons.

[13] First, it is evident that the two month Duncan credit given by the trial judge accounted for the adverse effects of lockdown included lockdowns caused by COVID-19. The trial judge gave the appellant two months of enhanced Duncan credit based on the lockdowns at the Toronto South Detention Centre and Toronto East Detention Centre during the appellant’s pre-sentence detention. The appellant’s period of pre-sentence detention included the period between the beginning of the pandemic, mid-March 2020, to the date of his sentencing, November 3, 2020. Two officers from the detention centres provided evidence about the lockdowns during the total period of pre-sentence detention, which included evidence that, during the relevant time period, some of the lockdowns were attributable to COVID-19.

[14] Second, it was open to the trial judge to reject the appellant’s argument that he should receive additional enhanced credit for the psychological stress of being incarcerated during the pandemic. There was no direct evidence of the psychological impact on the appellant of COVID-19 while he was in pre-sentence detention other than an unsworn letter from the appellant. In his letter, the appellant described the effects of not having direct contact with his mother and gave his very general observations about the effect of COVID-19 on the conditions in the detention centre. While the letter was not in the form of evidence, the trial judge considered the appellant’s concerns and found that they did not warrant enhanced credit because they were no different than the concerns of the population at large at that stage of the pandemic.

[15] The issue of whether a particular person should receive enhanced credit due to the effects of COVID-19 is within the discretion of the sentencing judge and is based on the available evidence and the particular circumstances of the individual inmate: R. v. Lariviere, 2020 ONCA 324, at para. 17; R. c. Dansereau, 2021 ONCA 580, at para. 27; R. v. Thompson, 2020 ONCA 361, at para. 18.

[16] Ultimately, the issue is whether the sentence imposed on the appellant was fit in all the circumstances: see R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 11; R. v. Brown, 2020 ONCA 196, at para. 13. Given the nature of the offences and the appellant’s prior record, we see no reason to intervene with the sentence imposed on the appellant in this case.