COURT OF APPEAL FOR ONTARIO DATE: 20230316 DOCKET: C69167

Hoy, Thorburn and Favreau

BETWEEN

His Majesty the King Respondent

and

Subeer Bakal Appellant

Counsel: Diane Magas, for the appellant Andrew Hotke, for the respondent

Heard: March 8, 2023

On appeal from the convictions entered by Justice Jacqueline Loignon of the Ontario Court of Justice, dated December 19, 2019, and the sentence imposed on March 10, 2021.

Thorburn J.A.

Overview

[1] The appellant, Subeer Bakal was charged with various drug trafficking offences and possession of the proceeds of crime. He was also charged with careless storage of a firearm, possession of a prohibited firearm without being the holder of a licence, possession of a prohibited firearm knowingly while not being the holder of a licence, possession of a loaded prohibited firearm, breach of a firearm prohibition, and breach of an undertaking.

[2] The appellant was acquitted of the drug offences and possession of the proceeds of crime, but convicted of the firearm offences, breach of an undertaking and breach of a firearms prohibition.

[3] He appeals his conviction on the firearm offences, breach of an undertaking, breach of a firearm prohibition, and he seeks leave to appeal his sentence. He also seeks to introduce fresh evidence.

Relevant Evidence Adduced at Trial

[4] The relevant evidence regarding these convictions is as follows:

[5] The Ottawa Police Service conducted a drug investigation targeting the appellant and a co-accused. After nine days of surveillance, police obtained a warrant to search a multi-level townhouse which was executed on November 22, 2017, at 7:24 p.m.

[6] Upon making a dynamic entry using a distraction device, police found seven men in the townhouse. Two fled quickly. One was the appellant. He was on the second-floor balcony and tried to escape to adjacent balconies before being arrested on drug, gun and other related charges.

[7] Inside the townhouse, police found a large quantity of illegal drugs, drug paraphernalia, several cellphones, $525, a backpack with ammunition, and a loaded silver Ruger handgun.

[8] The evidence against the appellant in respect of the gun-related offences that are the subject of this appeal, includes the following:

a. The appellant was a frequent visitor to the townhouse and stayed overnight two or three times a week;

b. The police made a sudden and dynamic entry and apprehended the appellant within seconds;

c. He was apprehended near the second-floor balcony;

d. The balcony was close to the second-floor laundry room;

e. A loaded handgun was found in a pile of laundry in the laundry room;

f. Most of the laundry was the appellant’s;

g. The police found a closed backpack in the living room. Inside, they found ammunition of the same make and calibre as the bullets in the handgun. They also found Service Ontario paperwork and Drug Benefit Eligibility paperwork in the appellant’s name in the backpack; and

h. The police took swabs of the handgun grip. The swabs were analyzed by Ms. Melanie Richard, a forensic scientist and a qualified expert in DNA analysis and body fluid identification. She testified that a DNA profile was generated from the swab and that at least 70% of the DNA on the handgun, belonged to the appellant. This was consistent with amounts transferred by skin cells when handling the handgun. She opined that the possibility of the DNA coming from another source was approximately one in one trillion.

[9] Ms. Richard was also asked about the possibility of the DNA on the grip being the result of transfer from contact with clothing. She said this could not be ruled out, but that if a transfer were from contact with clothes, it would likely be because of the presence of bodily fluid on the clothes as body fluids are a rich source of DNA if the body fluids are wet. The possibility of transfer from dry clothes is low, although it increases in a scenario where someone rubs a gun with dry clothes on a spot where a bodily fluid has dried on the clothes.

[10] In this case, the expert opined that the amount of DNA detected on the handgun grip was not in line with what would be expected from the transfer of bodily fluids.

[11] Erica Marks, the appellant’s then-girlfriend, and her sister Miranda Marks, testified for the defence. Both lived in the townhouse. Erica Marks testified that the dirty laundry found in the laundry room included the appellant’s clothes and sheets from the bed. She also said she did not recognize the backpack or the letters addressed to the appellant contained in it (although she did confirm that the address noted was his). Miranda Marks said most of the clothes in the laundry room were the appellant’s. She also said she had seen government documents of the appellant similar to those found in the backpack on a table in the townhouse.

The Trial Judge's Decision

[12] The trial judge was “generally unimpressed” with both Marks sisters’ evidence. She found their evidence “not compelling in the least”. She found their evidence about who lived in the unit, the arrival of unknown occupants on the day in question, and who owned the belongings police found, was evasive. She also noted that the Marks sisters contradicted themselves on several points. She therefore concluded that even their evidence which she did not reject, should be treated with “great caution”.

[13] She held however, that the evidence of drug trafficking was weak as there was no evidence of the appellant conducting hand-to-hand transactions. She held that although the appellant was found with a large sum of cash and multiple cellphones on his person at the time of his arrest, these were not overwhelming factors. She held that there were other inferences that arose on the evidence, including that someone else brought the drugs to the unit. Similarly, she held that the appellant was not guilty of possession of the proceeds of crime as she did not draw the inference that the significant sum of money on the appellant’s person was the proceeds of crime absent evidence of drug trafficking.

[14] The appellant was therefore acquitted of possession of the proceeds of crime and possession of a Schedule I substance for the purpose of trafficking.

[15] However, the trial judge noted that the closed backpack in the living room contained ammunition and two government letters addressed to the appellant. She also noted that according to the expert, at least 70% of the DNA on the handgun was the appellant’s and that the possibility of the DNA coming from another source was one in one trillion.

[16] She dismissed the appellant’s theory that someone planted the appellant’s two pieces of identification and the ammunition in the backpack, and that in the midst of a dynamic tactical police entry, within seconds, someone ran upstairs to hide the gun (which was loaded with the same ammunition found in the backpack) and rubbed their own fingerprints off the grip thereby transferring the appellant’s DNA from the clothes to the gun, and then hid it in the pile of clothing in the laundry room.

[17] The trial judge convicted the appellant of careless storage of a firearm, possession of a prohibited firearm without being the holder of a licence, possession of a prohibited firearm while not being the holder of a licence, possession of a loaded prohibited firearm, breach of a firearms prohibition and breach of an undertaking.

[18] The trial judge imposed a sentence of 4 years and 51 days (the sentence for the gun-related offences was 3 1/2 years).

[19] In sentencing the appellant, the trial judge noted that denunciation and deterrence and protection of the public are the principal sentencing factors in relation to firearm offences. The trial judge highlighted that this court drew a distinction between those charged under s. 95 of the Criminal Code, R.S.C. 1985, c. C-46, for regulatory-type offences and those, like the appellant, charged with true crime-type offences, operating outside of the regulatory scheme and whose possession of a firearm is directly connected to criminal activity or poses a danger to others: see R. v. Nur, 2013 ONCA 677, 303 C.C.C. (3d) 474, at para. 52.

[20] The trial judge noted that the appellant had never had steady employment or completed high school and had a criminal record for breach of court orders, obstructing police, assault, theft and possession of drugs. She noted, however, that he had no drug or alcohol issues, and was an active volunteer in his community.

The Grounds of Appeal

[21] The appellant claims the verdict is unreasonable as he says the trial judge: (i) failed to apply the test from R. v. W.(D)., [1991] 1 S.C.R. 742 in her assessment of the evidence and therefore failed to consider whether the evidence led on behalf of the defence was capable of raising a reasonable doubt; and (ii) failed to apply the principles articulated in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000 as she should have, given that much of the evidence in this case is circumstantial, and shifted the burden of proof onto the appellant based on speculative reasoning. The appellant seeks to introduce fresh evidence from his co-accused, Mr. Yusuf, and his former girlfriend Ms. Marks, to address the reliability of the verdict.

[22] The appellant also appeals the sentence and claims that the sentence was imposed without consideration for the totality principle and was not sufficiently reduced for time spent on strict bail or to account for anti-Black racism.

Analysis

Appeal of Conviction

[23] The central issue in looking at an appeal of conviction is to decide whether the verdict was reasonable.

[24] The first ground of appeal of the appellant’s conviction is that the trial judge failed to apply the W.(D.) factors in her assessment, namely: (1) if she believes the evidence of the accused, she must acquit; (2) if she does not believe the testimony of the accused but is left in reasonable doubt by it, she must acquit; and (3) even if she is not left in doubt by the accused’ evidence she must nonetheless be convinced beyond a reasonable doubt of the accused’ guilt on the basis of the balance of the evidence which she accepts.

[25] The appellant takes the position articulated in his factum that,

The trial judge failed to consider whether the defence’s evidence was capable of raising a reasonable doubt as to the guilt of the Appellant even if she disbelieved part of the evidence from the Marks sisters, especially considering that Erica’s evidence provided proven facts which, analysed together with Ms. Richard’s evidence, supported the inference that the Appellant’s DNA on the firearm could have come from the Appellant’s dirty laundry surrounding the hidden firearm.

[26] I disagree. An experienced trial judge like this one is presumed to be conversant with legal principles routinely applied which include the W.(D.) principles and their application. The court is not obliged to self-instruct on those principles: R. v. Daguio, 2018 ONSC 1510 at para. 11.

[27] The trial judge carefully reviewed all of the evidence and, while she did not specifically refer to the case of R. v. W.(D.), reading her reasons as a whole and in context, she applied the principles therein.

[28] She first considered the evidence of the defence witnesses and found it was neither credible nor reliable. (In any event, neither defence witness offered direct evidence as to possession of the firearm or ammunition.) Second, she held that the defence evidence did not raise a reasonable doubt as to his guilt. In her words, “ I do not find [the defence] theory plausible, let alone reasonable.” Third, she considered whether she was satisfied of the appellant’s guilt beyond a reasonable doubt based on the evidence as a whole. In so doing, she considered the defence evidence and the evidence of the Crown, particularly the evidence in respect of the DNA on the grip of the firearm, the evidence regarding the backpack found in the townhouse, and the ammunition contained in the backpack along with two pieces of identification belonging to the appellant. She also considered the evidence of the police officers regarding the search and apprehension of the appellant. On the basis of the evidence as a whole that she accepted, she was satisfied beyond a reasonable doubt of the appellant’s guilt on the gun offences, breach of prohibition and undertaking.

[29] The trial judge’s findings of credibility are entitled to deference on appeal and, in any event, there was no evidence to dispute the evidence on the issue of possession of a loaded firearm and ammunition as summarized at paragraph 8 above.

[30] The second ground of appeal of the appellant’s conviction is that the trial judge failed to apply the principles in Villaroman, given that much of the evidence in this case is circumstantial.

[31] While the evidence was largely circumstantial, the evidence against the appellant on the firearms charges was overwhelming. The trial judge did not misapprehend that evidence, nor did she shift the burden of proof onto the appellant.

[32] The trial judge noted that this was a circumstantial case and that in such cases, the trier of fact must be satisfied that the appellant’s guilt is the only reasonable conclusion available on the totality of the evidence.

[33] She noted that she must consider other “plausible theories” inconsistent with guilt that are available on the evidence or absence of evidence, though the Crown need not “negative every possible conjecture”: Villaroman, at paras. 36-38, 55, citing, at para. 37, R. v. Bagshaw, [1972] S.C.R. 2, at p. 8. However, citing R. v. S.B.1, 2018 ONCA 807, 367 C.C.C. (3d) 22, at para. 134, she noted that “a trier of fact should not act on an inference that it considers unreasonable, and an alternative inference must be reasonable, not just possible”.

[34] In so doing, she understood that the basic question in reviewing circumstantial evidence is to decide whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty: Villaroman, at para. 38.

[35] A trial judge’s rejection of an alternative theory inconsistent with guilt does not necessarily mean that there was a Villaroman error; it may mean that there was no reasonable inference other than guilt, given the evidence or lack of evidence and in light of human experience and common sense: S.B.1, at para. 138.

[36] It is ultimately for the trier of fact to determine if a proposed inference is reasonable enough to raise a doubt: Villaroman, at paras. 42 and 56. Deference is owed to a trial judge’s conclusion that there are no reasonable alternative inferences other than guilt: R. v. Petrolo, 2021 ONCA 498, at para. 22, citing S.B.1, at para. 139. “An appellate court is justified in interfering only if the trial judge’s conclusion that the evidence excluded any reasonable alternative was itself unreasonable.”: R. v. Loor, 2017 ONCA 696, at para. 22.

[37] In this case, the trial judge noted that,

[C]ounsel for Mr. Bakal [the appellant] argues that the CFS expert agreed with the hypothetical that friction could transfer DNA and as a result, this other available inference, combined with the presence of other DNA contributors, do not support guilt. Though the expert did indeed agree with the proposition put to her, the evidence as it relates to the gun does not exist in a vacuum on its own. The other factors to be considered are the following:

The police entry was a dynamic one leaving a very short window for a person to bring the firearm to the laundry room and rub the grip;

There is a lesser likelihood of DNA transfer where the source of the DNA is dry clothing, though it cannot be ruled out;

The amount of DNA found on the grip is consistent with deposits from handling as evidenced by studies involving the handling of firearms and skin cell transfers;

The backpack found with Mr. Bakal's documents also contained ammunition which was the same make and caliber as the bullets in the firearm.

The theory that I am being asked to consider is: that in the window of time, recalling that tactical [police officers] was on the first floor within three seconds of deploying the [distraction] device, someone located and planted documents in the bag with the ammunition and the same or even a different person had a gun, loaded with the same ammunition as found in the bag, ran upstairs and rubbed their own fingerprints off the grip, using dry clothing or sheets. This action transferred Mr. Bakal's DNA to the grip. During this time, Mr. Bakal fled the unit across various balconies.

[38] After a careful review of the evidence, she dismissed the appellant’s theory and gave cogent reasons for doing so. She held that,

The amount of time necessary to accomplish all of this, in the window available and the coordination between various parties to implicate Mr. Bakal does not accord with logic and common sense. I do not find this theory plausible, let alone reasonable.

When considering the totality of the evidence, which I am required to do, I am satisfied that the only reasonable inference is one of guilt in relation to the firearm offences. This is based on the factors enumerated above in relation to timing, the backpack and its contents, the DNA evidence, the correlation between the ammunition in the bag and the ammunition loaded in the firearm.

[39] The trial judge also held that, given the appellant’s admission of the s. 109 firearm prohibition order and her conclusion that he was guilty of possession of a loaded firearm, the appellant should be found guilty of breaching the order and breach of his undertaking not to be in the townhouse.

[40] I see no error in her analysis of the evidence, or her conclusion that the alternative theory was not plausible and that “the only reasonable inference is one of guilt”. As such, I would dismiss this ground of appeal.

Request to Admit Fresh Evidence

[41] The appellant seeks to admit fresh evidence which he claims raises a reasonable doubt as to his guilt on the firearms charges.

[42] The proposed fresh evidence is an affidavit from the appellant’s co-accused Mr. Yusuf, who was acquitted on a directed verdict during the course of this trial. In his affidavit, Mr. Yusuf says that,

I was in the living room of the unit when I heard a loud bag [ sic ] and the word “police” being shouted and I got scared. There was ammunition on the table in front of me and I didn’t want that in front of me when the police were coming up the stairs. I threw the ammunition in the bag that was close by.

[43] The appellant contends that this evidence would “address the trial judge’s conclusion that the inference suggested by the defence of someone putting the documents in the bag with the ammunition was speculative” as it would “provide a witness to testify to putting the ammunition in the bag as opposed to having to rely on speculation”. The appellant claims as set out in his factum that,

considering the evidence of the [forensic] expert that the DNA on the gun could have come from a transfer from someone rubbing the gun with the Appellant’s dirty clothes, [this] can provide the trial judge the evidence necessary to suggest that other reasonable inferences existed other than the guilt of the Appellant.

[44] The appellant also seeks to introduce the affidavit of the appellant’s former girlfriend, Erica Marks. This affidavit explains how Mr. Yusuf came to understand that this evidence was important. Ms. Marks says she happened to meet Mr. Yusuf at a waterpark in August 2021 and that at that time, he told her that he placed the ammunition in the backpack at the time of the police dynamic entry.

[45] The appellant says that due to the non-communication order with Mr. Yusuf from the time of his arrest throughout the trial, he only found out about Mr. Yusuf’s evidence after the end of the trial.

[46] Section 683(1) of the Criminal Code allows an appellate court to receive fresh evidence on appeal “where it considers it in the interests of justice.” Admission of fresh evidence on appeal is discretionary and must be exercised having regard not only to the appellant’s interests in fully pursuing his appellate remedies, but also to the broader long-term interests of the administration of justice. As this court has stressed, “[w]hile it cannot be gainsaid that those interests are not served by maintaining verdicts that are shown to be unreliable through fresh evidence, those interests are also not served if the appellate process is routinely used to re-write the evidentiary trial record”: R. v. Snyder, 2011 ONCA 445, at para. 44.

[47] To introduce fresh evidence on appeal, the evidence must be:

Admissible under the operative rules of evidence [admissibility];
Sufficiently cogent that it could reasonably be expected to have affected the verdict [cogency]; and
If the first two criteria are met, there must be an explanation for the failure to adduce the evidence at trial which explanation affects the admissibility of the evidence [due diligence]: see R. v. O.F., 2022 ONCA 679, at para. 31, citing Re Truscott, 2007 ONCA 575, 225 C.C.C. (3d) 321, at para. 92.

[48] Assessing the cogency of the evidence requires the court to assess whether the proposed fresh evidence could reasonably make a difference to the outcome of the trial: R. v. Dudar, 2019 ONCA 115, 371 C.C.C. (3d) 232, at para. 31, citing Snyder, at para. 51. The cogency requirement addresses three questions: (i) does the evidence relate to a potentially decisive issue; (ii) is it reasonably capable of belief; and (iii) is it sufficiently probative that it could be reasonably expected to have affected the outcome?: Dudar, at para. 31, citing Truscott, at para. 99.

[49] The appellant claims that Mr. Yusuf’s evidence is relevant to a decisive issue at trial, it is reasonably capable of belief, and is sufficiently probative such that it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result. He further claims that due to the non-communication order, he could not have provided the evidence at the time of trial.

[50] I disagree with the appellant’s assertion that the proposed fresh evidence could reasonably be expected “when taken with the other evidence adduced at trial, be expected to have affected the result”: Truscott, at para. 99.

[51] First, the totality of the evidence strongly support’s the appellant’s guilt. That evidence includes the fact that the appellant’s DNA evidence was on the loaded firearm, it is a very remote chance it is anyone else’s, and the firearm was found near where the appellant was found, within seconds of the police dynamic entry into the townhouse. Moreover, the ammunition found in the closed backpack matched the ammunition in the gun, and was found alongside two letters from government bodies addressed to the appellant.

[52] Second, several of Mr. Yusuf’s claims are implausible:

a. He said he put the ammunition in the backpack but the police made a dynamic entry on the main floor of the townhouse within seconds, and it is implausible that Mr. Yusuf would think, within that time and under those circumstances, to take the ammunition from a side table (not in his line of sight as he said), put it in a backpack and zip the bag closed; and

b. It is also implausible that he happened to meet the appellant’s former girlfriend at the waterpark, as they had not spoken to one another in four years and did not know one another well. Moreover, the trial judge made adverse credibility findings about the former girlfriend who, together with Mr. Yusuf, recounted this chance encounter. This casts further doubt on his story about a chance meeting.

[53] Third, Mr. Yusuf’s evidence is suspect on several important points:

a. Mr. Yusuf was adamant in cross-examination that his nickname was “Zak” and denied the suggestion that he would have given any different name to Ms. Marks. Ms. Marks was adamant that she only ever knew Mr. Yusuf as “Bob”;

b. Mr. Yusuf and Ms. Marks’ evidence differed on the issue of how many times they had met;

c. Mr. Yusuf said he saw boxes of Winchester ammunition on the table and recognized what they were but later in cross-examination on the affidavit said “I don’t even know what a Winchester is”;

d. He was adamant that he arrived on his own to the townhouse between 5:00 and 6:00 p.m. through the front door, but the police evidence was that the front of the residence was under surveillance from 2:40 p.m. to 7:24 p.m., before the police made their dynamic entry. As such, he could not have entered through the front door between 5:00 and 6:00 p.m.; and

e. Mr. Yusuf maintained in cross-examination that the ammunition he threw into the backpack was “on the table in front of me” but later agreed, there was no table in front of the couch and the photograph of the room shows that there is only a side table.

[54] Fourth, Mr. Yusuf’s evidence is inconsistent with the evidence of Ms. Marks. He said he did not know before Ms. Marks told him that the trial judge had found that the backpack belonged to the appellant. However, Ms. Marks said she herself did not know when she met Mr. Yusuf what it was that the trial judge decided about the backpack.

[55] Given all these concerns, Mr. Yusuf’s evidence does not satisfy the cogency branch of the Truscott test.

[56] Moreover, as conceded by the appellant, Ms. Mark’s evidence about what Mr. Yusuf told her is hearsay and therefore inadmissible to support the truth of Mr. Yusuf’s evidence as it amounts to a prior consistent statement with no probative value: R. v. Khan, 2017 ONCA 114, 345 C.C.C. (3d) 419, at para. 25. The court’s power to admit fresh evidence does not permit it to dispense with the hearsay rule: R. v. G.M., 2011 ONCA 503, at para. 34, citing R. v. O’Brien, [1978] 1 S.C.R. 591, at p. 602.

[57] For these reasons, I would not admit the fresh evidence.

Sentence Appeal

[58] I also disagree with the appellant’s claim that the sentence imposed is manifestly unfit.

[59] Contrary to the appellant’s assertion, the trial judge noted the range for these offences, made express reference to the principle of totality, and considered “these offences and this offender.” She also considered: “the principles of proportionality, restraint and totality [and] … that any combined sentences are not unduly long or harsh and that while sufficient punishment is meted out, no more than what is called for is imposed.” She took into account the concerns of the pandemic and the need to avoid a sentence that was “so harsh as to be crushing”: see R. v. M. (C.A.), [1996] 1 SCR 500, at para. 42; R. v. Elenezi, 2021 ONCA 834, at para. 10; cf. R. v. Parry, 2012 ONCA 171, at para. 20; R. v. Nero, 2008 ONCA 622, at para. 12.

[60] Second, she properly considered the time the appellant spent under house arrest. She noted that the appellant had been on house arrest bail from November 2017 to May 2019 and that on May 29, 2019, his bail was varied to a curfew bail.

[61] She noted however, that the appellant breached his bail conditions in March 2020 by being out well after curfew, in the company of a co-accused he was prohibited from being in contact with. When he was stopped by police, he gave a false name. As a result, the appellant spent two weeks in jail. After pleading guilty to two counts of failure to comply, and one count of obstructing police, he was re-released on house arrest bail. His bail conditions were more stringent than they had been due to his breach of his bail conditions.

[62] The mitigating effect that bail considerations have on the sentence to be imposed falls within the discretion of the trial judge: R. v. C.C., 2021 ONCA 600, at paras. 4-5; R. v. Joseph, 2020 ONCA 733, 153 O.R. (3d) 145, at para. 108.

[63] This situation is akin to the situation in R. v. DiMichele, 2020 ONCA 48, at para. 10, where this court held that “while the trial judge did not give the appellant credit for time spent on restrictive bail conditions, this was because, as the trial judge noted, he had breached his bail conditions.”

[64] For the above reasons, I see no error in the trial judge’s decision to award a three-month reduction in sentence for time spent on bail.

[65] Third, although this court’s decision in R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641 had not yet been released, the trial judge recognized the issue of anti-Black racism, accepting that the appellant had likely been the victim of racism but holding that there must be some connection between the racism identified in the community and the circumstance or events said to explain or mitigate the criminal conduct. As noted in Morris at para. 97,

Absent some connection, mitigation of sentence based simply on the existence of overt or institutional racism in the community becomes a discount based on the offender’s colour. Everyone agrees there can be no such discount: [citations omitted].

[66] The trial judge observed that no pertinent background information was brought before the court to indicate how, if at all, the appellant’s race affected the commission of these offences.

[67] She noted that the appellant had a good childhood without abuse or addiction, and she was given insufficient information to consider how racism may have affected his moral blameworthiness in any meaningful way: Morris, at para. 97. Nor has that information been provided on this appeal.

[68] For these reasons, I would dismiss the sentence appeal.