COURT OF APPEAL FOR ONTARIO DATE: 20221130 DOCKET: C66409

Tulloch, Lauwers and Paciocco JJ.A.

BETWEEN

His Majesty the King Respondent

and

Kevin Hanse Appellant

Counsel: Gregory Lafontaine and Julia Kushnir, for the appellant Katie Doherty, for the respondent

Heard: May 26, 2022

On appeal from the convictions entered on November 6, 2018 and the sentence imposed on March 21, 2019 by Justice Anne M. Molloy of the Superior Court of Justice, sitting with a jury.

REASONS FOR DECISION

A. OVERVIEW

[1] The appellant was found guilty by a jury of two related firearm offences: (1) attempting to obtain possession of a firearm; and (2) transferring or offering to transfer ammunition (collectively, the “firearm offences”).

[2] A third charge, conspiring to traffic marijuana (the “marijuana offence”), was severed and proceeded as a judge-alone proceeding. The appellant later plead guilty to this charge.

[3] At the sentencing hearing for all three offences, the trial judge sentenced the appellant to 4 years and 9 months’ imprisonment, less 5 months credit, resulting in a sentence of 4 years and 4 months’ imprisonment.

[4] The appellant appeals his convictions for the firearm offences. He is also seeking to appeal his sentence.

[5] At the end of the oral hearing, we dismissed both the conviction and sentencing appeals with reasons to follow. These are the reasons.

B. FACTS

[6] Officers of the Toronto Police Service first saw the appellant on February 4, 2016, while investigating another man. At that time, the appellant’s identity was unknown. The police photographed and videotaped the appellant and continued with their investigation.

[7] On February 25, 2016, the police saw the appellant again. This time, they identified him as Mr. Kevin Hanse.

[8] The appellant was surveilled on April 27, April 28, April 29, May 3, and May 7, 2016. Over the course of this investigation, police observed the appellant driving to meet various individuals.

[9] The police also wiretapped the appellant’s phone. At trial, the legality of these wiretap interceptions was not challenged. It was conceded that the phone belonged to the appellant, and that the speaker on the calls was, in fact, him.

[10] The appellant had numerous calls in which there were discussions relating to obtaining a "car'' and "gas" for that "car." Sometimes the “car” was referred to as a ''whip".

[11] In one set of text exchanges with a person identified only as "T'', there were messages about getting a “car”. The person using the appellant’s phone texted, "Find car and I will buy it for us to drive." A couple of days later, the appellant’s phone texted, "Can he get to [sic] cars", to which T answered, ''Two of the same one snub and one isn't".

C. DECISIONS BELOW

(1) Conviction for Firearm Offences & Evidentiary Voir Dire

[12] The jury ultimately found the appellant guilty of the two firearm offences.

[13] The Crown's case was based almost entirely on the wiretap interceptions of the appellant’s cellphone. The following evidence was adduced at trial regarding the meaning of these intercepted messages:

(a) Evidence of D.C. McLane

[14] The Crown's theory was that "car" and "whip" were used as code words for firearms, and that "gas" and "containers of gas" and "lug nuts" referred to ammunition.

[15] The Crown’s expert firearms analyst, D.C. Kristine McLane, testified that in the context of firearms, "snub" is a term referring to a snub-nosed revolver, which has a very short barrel.

[16] D.C. McLane also said that she looked on the Internet for the purchase prices of certain legal handguns and ammunition listed by Remington and Winchester. She provided these prices to the court.

[17] The trial judge admitted D.C. McLane’s evidence as expert evidence. Defence counsel did not object to this.

(b) Evidence of Ms. Pillai

[18] The defence called Ms. Keiisha Pillai, who was an articling student at the defence counsel’s office. Ms. Pillai testified that she had done a Google search of the phrase “snub nose kush”, which led her to a website “weedmaps.com”. She downloaded a page from the website describing “AAAA OG Snub Nose Kush” as a form of marijuana. In addition, defence counsel tendered a webpage retrieved from “www.wikileaf.com”, which described “gas” as an informal term for quality marijuana.

[19] The Crown objected to the admissibility of Ms. Pillai’s evidence. The trial judge conducted a voir dire and ruled Ms. Pillai’s testimony and the online articles inadmissible.

[20] In her reasons, the trial judge explained that, unlike D.C. McLane, Ms. Pillai is not an expert witness with knowledge of the terms used for strains of marijuana. Ms. Pillai had no information about the source or accuracy of the information contained in the online articles. Calling her as a witness was no different than tendering the articles themselves, which would constitute inadmissible hearsay.

[21] Moreover, the trial judge also concluded that the information would not qualify for judicial notice. The evidence was not so notorious or generally accepted as to not be subject to debate among reasonable persons, nor was it capable of being tested before the jury: R. v. Find, 2001 SCC 32, [2001] S.C.R. 863, at para. 48.

(c) Evidence of Mr. Hadi

[22] The defence called another witness, Mr. Abdul Wasi Hadi, who testified that he and the appellant were in the business of selling marijuana in April 2016.

[23] Mr. Hadi stated that there are hundreds of different strains of marijuana with different names. Some of the names were ‘gas’, ‘quads’, ‘Triple A’, ‘buds’, ‘snubs’, ‘triple A snubs’, ‘triple A buds’, ‘long’, and ‘golden nugs’. Mr. Hadi would communicate with the appellant over the phone and would use these slang words. He explained that many of the terms that they used were from rap videos.

[24] The admissibility of Mr. Hadi’s testimony was not challenged by the Crown.

(2) Conviction for Marijuana Offence

[25] As noted above, the appellant plead guilty to the marijuana offence, which had been severed from the other charges. Following a Gardiner hearing, the trial judge found the accused to be a mid-level dealer.

(3) Sentencing

[26] The trial judge found the appropriate global sentence required to reflect the seriousness of the firearm offences to be 4 years. The trial judge imposed 9 months for the marijuana offence, to be served consecutively. Against the total sentence, the trial judge allowed a total credit of 5 months, leaving 4 years and 4 months to be served.

[27] The trial judge noted that the most significant mitigating factor was the appellant’s strong relationship with his family. He also had extended periods of legitimate and stable employment, as well as the skills to continue such employment in the future. The guilty plea to the marijuana offence was also seen as a mitigating factor, as were the concessions made in the firearm offences.

[28] However, the appellant’s criminal record was a “seriously aggravating” factor. It included one count of manslaughter (the appellant had shot a man with an illegal firearm in a rooming house for cocaine users) and other offences involving both drugs and guns. Further, at the time of his arrest for the current offences, the appellant was under two weapons prohibition orders for life.

[29] The trial judge also found that the appellant was actively engaged in obtaining firearms and different kinds of ammunition for more than one person, and he had already actually trafficked ammunition to one individual. As such, the appellant’s current offences are not “one-off” incidents, but rather part of a “business enterprise”.

[30] In this context, denunciation and deterrence were “paramount concerns”. Accordingly, the totality of the evidence warranted a sentence closer to the upper end of the range of sentences for firearm and ammunition offences.

D. ISSUES ON APPEAL

[31] The appellant appeals his convictions for the firearm offences on the basis that the trial judge erred in: (1) ruling Ms. Pillai’s evidence inadmissible; and (2) admitting D.C. McLane’s evidence as expert evidence.

[32] The appellant also appeals his sentence on the basis that: (1) there is post-sentencing evidence regarding his health which renders the original sentence unfit; (2) the trial judge erred in assessing the aggravating factors for the firearm offences; and (3) the sentence imposed for the marijuana offence was demonstrably unfit.

E. ANALYSIS

(1) Firearms Conviction Appeal

(a) Assessment of Ms. Pillai’s Evidence

[33] The appellant submits that the online articles tendered by Ms. Pillai are not subject to the hearsay rule because they were not being tendered for the truth of their contents. Furthermore, the appellant submits that Ms. Pillai’s evidence was admissible because it is analogous to the evidence about the teardrop tattoo in R. v. Abbey, 2009 ONCA 624, 97 O.R. (3d) 330.

[34] We disagree with the appellant’s submissions and would dismiss this ground of appeal.

[35] Pursuant to the rules of hearsay, out-of-court statements being tendered for the truth of their content are presumptively inadmissible. The appellant asserts that it is immaterial whether the contents of the online documents are true or not; what matters is that others have used “snub” and “gas” to describe marijuana.

[36] However, this reasoning is circular. In order for the documents to demonstrate this, one must first assume that it is true that “snub” and “gas” have, at times, been used to mean strains of marijuana. Without verifying the truth of these statements, the online evidence tendered loses all utility, and is inadmissible as irrelevant. While the appellant may have implicitly accepted the truth of these documents, absent proof that the documents meet a traditional or principled exception to the hearsay rule, they are inadmissible.

[37] We are also not persuaded by the appellant’s argument that the use of the terms, “snub” and “gas” in reference to strains of marijuana ought to be accepted in a manner analogous to the evidence in Abbey.

[38] In Abbey, this court admitted the testimony of three gang members on the meaning of a teardrop tattoo. None of the members were put forth as experts, nor did any of them have a teardrop tattoo: Abbey, at para. 157. However, Doherty J.A. reasoned that their evidence was admissible because it was based on their knowledge gleamed from being immersed in the gang community to which the accused belonged. As such, “the witness’s ability to speak to the common understanding of a symbol comes not from the reliability of any particular source of knowledge, but from their day-to-day living within the culture”: at para. 159.

[39] The facts in Abbey are entirely distinguishable from the present case. Unlike the three witnesses in Abbey, there is no evidence that Ms. Pillai possessed the necessary lived experience to be able to testify on the use of “snub” or “gas” as terms for marijuana. Instead, at the voir dire, it was found that Ms. Pillai only came across such information after doing a Google search. She has no first-hand knowledge of the website, “weedmaps.com”, nor of the product it sold. We agree with the trial judge that calling Ms. Pillai to file these documents is no different than filing the documents themselves. As explained above, this would constitute inadmissible hearsay.

[40] Finally, we note that evidence about the meaning of “snub” and “gas” was ultimately provided by the defence’s other witness, Mr. Hadi, who testified that he used these terms with the appellant to refer to marijuana. The Crown did not object to the admission of this evidence at trial.

[41] Nevertheless, the appellant submits that since Mr. Hadi has an extensive criminal record, Ms. Pillai’s evidence should be admitted to bolster the credibility of his testimony. We reject this argument for two reasons. First, this claim does not remedy the admissibility hurdles with Ms. Pillai’s evidence addressed above. Second, Ms. Pillai’s evidence was not capable of bolstering Mr. Hadi’s evidence in the way the appellant now claims. Ms. Pillai’s credibility and reliability as a witness does not alter the underlying evidentiary issues regarding the relevance and materiality of the information she retrieved from the Internet.

(b) Assessment of D.C. McLane’s Evidence

[42] We would also dismiss the appellant’s alternative argument that the evidence of D.C. McLane was inadmissible.

[43] D.C. McLane was qualified as an expert on the nature and classification of firearms and ammunition. Part of her evidence included the price ranges for obtaining firearms and ammunition. While these were obtained from the webpages of Canadian retailers, D.C. McLane’s reference to those webpages was informed by her expert experience in dealing with firearms. She knew these to be reputed retailers, providing accurate pricing on their online stores. Consulting marketing information on retail websites is no different than visiting brick and mortar retail stores to determine the market price of a commodity. This consulting of retail webpages by an expert to identify marketing information is markedly different from the evidence proffered by the defence’s witness, Ms. Pillai, for the reasons discussed above.

[44] Consequently, we find no reversible error in the trial judge’s decision to admit D.C. McLane’s evidence as expert evidence.

(2) Sentence Appeal

[45] An appellate court may only vary a sentence imposed where the trial judge has erred in principle, failed to consider relevant evidence, misapprehended a material fact, or imposed a sentence that is demonstrably unfit: R. v. Friesen, 2020 SCC 9, 444 D.L.R. (4th) 1, at paras. 25-26; R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 11, 41 and 44. Otherwise, the decision of the sentencing judge is owed a high degree of deference.

[46] The appellant appeals his sentence of four years and four months (with pre-sentence custody credit applied) on three bases. First, in light of fresh post-sentencing evidence regarding his health, the appellant submits that his original sentence is now unfit. Second, even if the fresh evidence is not admitted, the appellant submits that the trial judge erred in her assessment of the aggravating factors for the firearms offence. Third, the appellant submits that the marijuana offence sentence is demonstrably unfit.

[47] As we will explain below, we see no basis on which to interfere with the decision of the trial judge.

(a) Post-Sentencing Evidence Regarding Appellant’s Health

[48] On May 23, 2022, the appellant filed an affidavit explaining how he sustained a workplace injury in December 2020. While working as a sanitary cleaner at a poultry manufacturing plant, the appellant’s hand was caught in a conveyor belt. This accident resulted in a long-term disability and post-traumatic stress disorder.

[49] The appellant has been unable to work since the accident and has undergone surgery nine times. He is currently receiving benefits from the Workplace Safety and Insurance Board. In addition, his partner has recently undergone surgery to her reproductive organs.

[50] The Palmer test governs the admissibility of fresh evidence in this context: R. v. Palmer, [1980] 1 S.C.R. 759. In order to be admitted by this court, the proposed fresh evidence must meet four criteria: due diligence, relevance, credibility, and the ability to affect the result.

[51] The appellant submits that the fresh evidence should be admitted as it renders the original sentence demonstrably unfit. The appellant still needs to undergo a great deal of medical treatment in order for his hand to return to normal functionality. This will require surgery and specialists. The appellant’s previous incarceration experiences have informed him that he will not receive the same level of treatment in a penitentiary setting as compared to an individual in the community.

[52] We would dismiss the fresh evidence application. The appellant’s workplace injury was, undoubtedly, very unfortunate. Despite this, we are of the opinion that the fresh evidence tendered would not change the outcome of his sentence. The appellant has expressed a fear that he will be unable to access the necessary medical resources while serving his sentence. However, we note that there are sufficient medical facilities within the penitentiary that can treat him. We are not persuaded that the level of care provided by these facilities are, by virtue of operating in a penitentiary setting, below that which would be provided in the community.

(b) Aggravating Factors for Firearm Offences

[53] The appellant also submits that the trial judge erred in finding that the following aggravating factors were proven beyond a reasonable doubt: (1) the appellant actively engaged in obtaining more than one firearm and different kinds of ammunition for more than one individual; and (2) the appellant trafficked ammunition and a firearm to an individual.

[54] We find that the trial judge did not err in her assessment. In R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at paras. 17-18, McLachlin C.J. summarized the two applicable principles where a sentencing judge must make factual findings to facilitate sentencing following a jury trial:

First, the sentencing judge “is bound by the express and implied factual implications of the jury’s verdict”: R. v. Brown, [1991] 2 S.C.R. 518, at p. 523. The sentencing judge “shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty” (Criminal Code, s. 724(2)(a)), and must not accept as fact any evidence consistent only with a verdict rejected by the jury: Brown; R. v. Braun (1995), 95 C.C.C. (3d) 443 (Man. C.A.).

Second, when the factual implications of the jury’s verdict are ambiguous, the sentencing judge should not attempt to follow the logical process of the jury, but should come to his or her own independent determination of the relevant facts: Brown; R. v. Fiqia (1994), 1994 ABCA 402, 162 A.R. 117 (C.A.). In so doing, the sentencing judge “may find any other relevant fact that was disclosed by evidence at the trial to be proven” (Criminal Code, s. 724(2)(b)). [Emphasis added.]

[55] In our view, the sentencing judge appropriately applied the principles from Ferguson to find the two aggravating factors above.

[56] In relation to the first aggravating factor, the trial judge determined it was clear from the jury’s verdict of guilty that they were satisfied beyond a reasonable doubt the appellant had discussed firearms and ammunition in the intercepted calls. Moreover, the fact that the appellant had multiple conversations with two individuals showed that these were not merely isolated instances of supplying guns and ammunition. There were also numerous calls about obtaining ammunition for various kinds of firearms, and the evidence showed that the appellant had contacted more than one supplier. As such, there was sufficient evidence on the record to support the trial judge’s finding that the appellant was actively engaging in obtaining firearms and ammunition for more than one person.

[57] We are also satisfied that the sentencing judge did not err in finding that the appellant trafficked ammunition and a firearm to an individual. In light of the numerous intercepted communications between the appellant and Mr. Hadi, there is sufficient evidence to support the conclusion that the appellant had, at some point, possessed a handgun and ammunition and provided it to Mr. Hadi.

(c) Consecutive Sentence for Marijuana Offence

[58] Finally, the appellant submits that the marijuana trafficking sentence should be decreased to time served. However, this ground of appeal was contingent on this court allowing the appellant’s appeal on the firearm offences. Since that appeal has been denied, this ground of appeal is similarly dismissed.

F. DISPOSITION

[59] We would dismiss the appellant’s conviction appeal. Leave to appeal the sentence is granted, but the appeal of the sentence is dismissed.

“M. Tulloch J.A.”

“P. Lauwers J.A.”

“David M. Paciocco J.A.”