COURT OF APPEAL FOR ONTARIO DATE: 20230104 DOCKET: C68871

Tulloch, Benotto and Trotter JJ.A.

BETWEEN

His Majesty the King Respondent

and

Christian Walters Appellant

Counsel: Kyle Corbin and G. Knia Singh, for the appellant Emily Marrocco, for the respondent

Heard: December 1, 2022

On appeal from the conviction entered on November 7, 2019, and the sentence imposed on December 4, 2020, by Justice Maria Speyer of the Ontario Court of Justice.

REASONS FOR DECISION

Introduction

[1] As part of their investigation into a shooting at a playground, the Toronto police became interested in an apartment rented by Ashley Perry. When they executed a search warrant at the apartment, where Ms. Perry and the appellant were present, they located the following items:

In a hamper in a bedroom closet, a Taurus SKR handgun (with a laser pointer) that was fully loaded with an overcapacity magazine, a clear plastic bag containing 18 rounds of ammunition, and a digital scale.

In the night table in the same bedroom, a second overcapacity magazine loaded with 15 rounds of ammunition, a digital scale, and two baggies containing around 7 grams of cocaine.

[2] The appellant and Ms. Perry were jointly charged with the following offences: unauthorized possession of a firearm (Criminal Code, R.S.C, 1985, c. C-46, s. 91(1)); possession of a loaded restricted firearm (s. 95(1)); possession of a restricted weapon without a licence (s. 92(1)); two counts of possession of a prohibited device without a licence (s. 92(2)); careless storage of a firearm (s. 86(1)); and unlawful possession of a Schedule I substance (cocaine) (Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 4(1)).

[3] The appellant and Ms. Perry were tried together. Ms. Perry testified at trial; the appellant did not. Ms. Perry was acquitted; the appellant was not. He was found guilty on all charges. He was sentenced to 38 months’ imprisonment, which was reduced by 22 months to account for time spent in pre-sentence custody and on restrictive bail conditions.

[4] The appellant appeals his convictions and sentence. At the conclusion of the hearing, we dismissed the appeal with reasons to follow. These are our reasons.

Factual Background

[5] On June 14, 2018, shots were fired at a playground in Scarborough. Two children (sisters, ages five and nine) were seriously injured. One of the suspects in the shooting was T’Quan Robertson (“Robertson”). [1]

[6] With the assistance of the Technological Crimes Unit, the police learned that Robertson had logged onto his Instagram account at about 1:00 p.m. on June 15, 2018 with an IP address from Ms. Perry’s address: #2007-25 Town Centre Court. Surveillance footage showed Robertson leaving this address on June 16, 2018 around 1:00 a.m.

[7] The police obtained a warrant to search the apartment for a firearm that may have been used in the playground shooting. The warrant was executed at the apartment at 7:00 p.m. on June 18, 2018. The police entered what was described as a small one-bedroom plus den apartment. The appellant was standing in the bedroom by the closet, while Ms. Perry was in the living room.

[8] The police found the items described in para. 1, above, as well as other items, such as cell phones and cash. In the night table, they found personal papers in the appellant’s name, including a wallet containing his government documents. These were all in plain view. The police found the cocaine in a drawer and, among other things, two driver’s licences in the appellant’s name, an expired health card in the name of his brother, Darian Walters (“Darian”), and a set of apartment keys with a fob.

[9] At another location, the police seized the phone of another individual believed to have been involved in the playground shooting. On this phone was a video of Robertson in possession of three handguns, including a black Taurus handgun with a laser pointer, similar to the one found in Ms. Perry’s apartment. The video, which was “last modified” on June 8, 2018, also revealed ammunition similar to what was seized from Ms. Perry’s apartment.

[10] The police obtained a production order for Robertson’s phone records, commencing on June 13, 2018. The records showed calls/texts between Robertson’s number and a number registered to Ms. Perry at the Town Centre address. These exchanges occurred just before and after the schoolyard shooting.

[11] Ms. Perry testified at trial. She said that she had no knowledge of the items seized from her apartment. She had thoroughly cleaned the unit, including the laundry hamper, on June 12, 2018. She did not see the items that were seized.

[12] Counsel for both accused agreed that the appellant spent roughly 70% of his time (3 to 4 nights a week) at Ms. Perry’s apartment. Ms. Perry testified that he typically slept on the side of the bed next to the night table where the items were found. She said that all items found in the night table belonged to him. The phone used to communicate with Robertson, while registered in her name, was given to the appellant as a gift. He used it exclusively.

[13] According to Ms. Perry, she and the appellant went to a cottage shortly after the shooting and returned on June 16, 2018. On their way out of town, they stopped to give the appellant’s brother, Darian, the keys to the apartment so he could stay there while they were away. When they returned to the apartment on June 16, 2018, Darian and his girlfriend were asleep on the bed. The apartment was in disarray. Ms. Perry believed that there had been a party there and she asked the appellant to speak to Darian about it.

[14] The brothers had a private conversation on the balcony. Darian and his girlfriend left the apartment within the next couple of hours. After they left, Ms. Perry and the appellant spent little time in the apartment; they slept on the couch and not in the bed. Then the search warrant was executed.

The Trial Judge’s Reasons

[15] The trial judge provided thorough reasons for judgment. She gave a detailed account of the evidence. She instructed herself on the elements of possession in s. 4(3) of the Criminal Code, referring to the Supreme Court of Canada’s decision in R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253. Recognizing the case was entirely circumstantial, she referred to and quoted from R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000.

[16] The trial judge was not satisfied “to the requisite degree of certainty” that Ms. Perry had knowledge or control of the items in question. She said, “I come to this conclusion based on her evidence and the location of the items.” However, she did not accept all of her evidence.

[17] The trial judge accepted the evidence that Ms. Perry and the appellant went to a cottage on the afternoon of June 14, 2018 and stayed there until June 16, 2018. She accepted that the telephone registered in her name, the one used to communicate with Robertson, was used exclusively by the appellant. From this evidence, she found that the appellant and his brother were friends or associates of Robertson. The trial judge found that the Taurus firearm seized from Ms. Perry’s apartment was the same firearm handled by Robertson in the video. There was police evidence that established that handguns with laser sights are not very common.

[18] Turning to the evidence pointing to the appellant’s possession of the items seized, the trial judge said:

I am satisfied beyond a reasonable doubt that [the appellant] knew that the items in question were in the apartment, either because he had put them there himself or knew that either his brother or Mr. Robertson had done so. In coming to this conclusion, I have considered the location of the items and their close proximity to items belonging to [the appellant].

[19] The trial judge rejected the possibility that the gun, magazines, and drugs were placed in the night table and hamper by Darian or Robertson without the appellant’s knowledge. In doing so, she relied on the evidence that the appellant and Robertson were in contact shortly before and after the schoolyard shooting on June 14, 2018. The trial judge observed that the appellant’s decision to go to the cottage was impromptu, and made shortly after an exchange of text messages with Robertson. The trial judge said:

It is reasonable to infer from the proximity [in] time between the decision to go to the cottage and the communications between [the appellant] and Mr. Robertson that [the appellant] had opportunity to tell Mr. Robertson that he and Ms. Perry would not be at the apartment in the coming days.

[20] The trial judge accepted Ms. Perry’s evidence that it was at this time that the appellant asked her if Darian could stay at her apartment while they were away. She also accepted Ms. Perry’s evidence that Darian and his girlfriend had stayed at the apartment. Referring to the balcony discussion between the brothers, the trial judge found: “During this conversation, Darian Walters had an opportunity to tell his brother where the items were located.” She noted that, when Darian returned the keys upon departure with his girlfriend, “he had no further means of accessing the apartment or any item he may have left there”.

[21] The trial judge concluded that it was implausible that valuable items such as the firearm and magazines would be abandoned in someone else’s residence where they could easily be found. She found that either Darian, Robertson, or both of them trusted the appellant with these items. She said, “it is illogical and fanciful to conclude that Mr. Robertson or Darian Walters would leave valuable items in the apartment without [the appellant’s] consent and knowledge. They simply would not take the risk that [the appellant] or [Ms. Perry] would find the items and use them as their own or dispose of them as they saw fit, or report their discovery to the police.”

[22] The appellant was found guilty on all counts.

The Conviction Appeal

[23] The appellant raises numerous grounds of appeal. The underlying theme is that, given that there was a lack of direct evidence of the appellant’s possession of the items, the trial judge was wrong to have found that the appellant’s liability was established. Essentially, the appellant asks this court to step into the shoes of the trial judge and determine the issue of possession afresh. This is not our role.

[24] We do not accept the appellant’s submission that the trial judge erred by inferring the appellant’s guilt based solely upon his occupancy in Ms. Perry’s apartment: R. v. Grey (1996), 28 O.R. (3d) 417 (C.A.). The brief summary of the trial judge’s reasons above reveals that her analysis went much further: the appellant’s occupancy was just one component in a broad and thorough analysis of all of the evidence, which included the relationships and communications between the principal players in this scenario (i.e., the appellant, Robertson, Darian, and Ms. Perry), as well as the appellant’s historical use of the apartment and his precise location (in the bedroom by the closet) when the police entered.

[25] More broadly, the appellant challenges the reasonableness of the verdict, the correctness of the trial judge’s conclusions, and the adequacy of her explanation for finding the appellant guilty. We do not accept these submissions.

[26] The trial judge did not merely inquire into what the appellant ought to have known, as opposed to his actual knowledge or subjective awareness of the circumstances, as the appellant contends. As already noted, the trial judge cited the applicable authority interpreting s. 4(3) of the Criminal Code, including a passage from Morelli, in which Fish J., at para. 17, stressed the subjective mental element required for possession.

[27] It was open to the trial judge, on the totality of the evidence, to conclude that the appellant had knowledge and control of the items seized from the hamper and the night table. It is true that the case for the appellant’s possession was entirely circumstantial, but this is not unusual for this type of case. As Watt J.A. said in R. v. Lights, 2020 ONCA 128, 149 O.R. (3d) 273, at para. 39:

When a verdict that rests wholly or substantially on circumstantial evidence is challenged as unreasonable, the question appellate courts must ask is whether the trier of fact, acting judicially, could reasonably be satisfied that the guilt of the accused was the only reasonable conclusion available on the evidence taken as a whole: Villaroman, at para. 55. Fundamentally, it is for the trier of fact to determine whether any proposed alternative way of looking at the case as a whole is reasonable enough to raise a doubt about the guilt of the accused: Villaroman, at para. 56. [Emphasis added.]

See also R. v. Fauder, 2021 ONCA 226, 403 C.C.C. (3d) 43, at paras. 84-87.

[28] In our view, the trial judge did just that. It was open to her to conclude beyond a reasonable doubt that the appellant placed the items in the bedroom, or that either Robertson and/or Darian did so with the appellant’s knowledge.

[29] Approaching the evidence with the benefit of human experience and common sense, it was open to the trial judge to reject the suggestion that the items may have been left in the bedroom by others, without the appellant’s knowledge. In R. v. Desmond-Robinson, 2022 ONCA 369, this court rejected a similar submission, at para. 7:

The trial judge's reference to the gun being abandoned was made in the context of her consideration of whether it would be reasonable, on all of the evidence, to infer that someone would effectively discard a sawed off rifle by leaving it in a backpack in someone else's bedroom with no intention of maintaining any control over it. The trial judge rejected that possibility. She then went on to consider whether an owner would hide the weapon in the appellant's bedroom without telling the appellant, while intending to maintain possession of the weapon. She concluded that the only reasonable inference was that the owner would not hide the gun in the appellant's closet without his knowledge. The trial judge gave reasons for that conclusion. There is no error in her reasoning.

[30] We reach the same conclusion here. There was no error in the trial judge’s reasoning, which was fully explained, as summarized above. The verdicts were not unreasonable.

[31] The appellant submits that Ms. Perry’s acquittals are inconsistent with the appellant’s guilt, rendering the verdicts unreasonable. We disagree. The trial judge analyzed the evidence as it applied to each of them separately, as she was required to do in the circumstances. Ms. Perry’s acquittals are easily explained in a single line from the trial judge’s reasons (set out above in para. 16 and repeated here): “I come to this conclusion based on her evidence and the location of the items.” The appellant did not testify. The evidence against the two of them was not identical. The verdicts are not inconsistent.

[32] The conviction appeal is dismissed.

The Sentence Appeal

[33] The trial judge imposed a total sentence of 38 months’ imprisonment, less credit for pre-sentence custody and time spent subject to bail conditions. The remaining sentence left to be served was 16 months. The trial judge gave thorough written reasons for the sentence imposed.

[34] The appellant submits that the sentence was excessive. He contends that his level of moral blameworthiness was low because he did not place the items in the locations where they were found. We do not accept this submission.

[35] First, it was never determined exactly how the items came to be where they were found. The trial judge convicted on the basis of alternative theories, as discussed above.

[36] Second, even if Robertson or Darian had placed the items in the bedroom, the appellant’s knowledge of the presence of a fully loaded handgun with an overcapacity magazine, along with another overcapacity magazine nearby, in addition to cocaine, could not possibly lead to an assessment of “low moral blameworthiness.” As the trial judge said in her reasons for sentence: “How he came to possess the items does not reduce his moral culpability. I found that he had knowledge and control over the items at the time in question. He knew they were there and chose to keep them. For that, he bears the moral responsibility of these crimes.”

[37] This was a serious cluster of offences. The sentence imposed was in line with sentences typically imposed for this type of offending: R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641, at para. 151. Denunciation and deterrence must assume centre stage especially where both firearms and drugs are involved: R. v. Omoragbon, 2020 ONCA 336, at paras. 22-23.

[38] The appellant submits that the trial judge erred in imposing a 12-month consecutive sentence for the appellant’s possession of the second loaded over-capacity magazine. We do not agree.

[39] The decision of a sentencing judge to impose consecutive rather than concurrent sentences is entitled to deference on appeal: R. v. McDonnell, [1997] 1 S.C.R. 948, at para. 46; R. v. Abbasi, 2016 ONCA 219, at paras. 17-18. The possession of a second magazine was a distinct legal wrong, deserving of its own punishment. Had the sentence not been imposed consecutively, possession of the second magazine would have been a serious aggravating factor that would have justified an increase in the global sentence imposed on the appellant.

[40] Leave to appeal sentence is granted, but the appeal is dismissed.

Disposition

[41] As announced at the hearing of this appeal, the appeal against conviction and sentence is dismissed.

“M. Tulloch J.A.”

“M.L. Benotto J.A.”

“Gary Trotter J.A.”

[1] Neither the appellant nor Ms. Perry was a suspect in the shooting.