Court and Parties
COURT OF APPEAL FOR ONTARIO
DATE: 20230802
DOCKET: C70338
Fairburn A.C.J.O., Zarnett and George JJ.A.
BETWEEN
His Majesty the King Respondent
and
Rene Hamouth Appellant
Counsel: Alan D. Gold and Ellen C. Williams, for the appellant Jim Clark, for the respondent
Heard: June 28, 2023 by videoconference
On appeal from the pre-trial s. 8 Charter application by Justice Lawrence T. Feldman of the Ontario Court of Justice, dated August 19, 2020, with reasons reported at 2020 ONCJ 363, the s. 10(b) Charter application and convictions entered on August 24, 2021, with reasons reported at 2021 ONCJ 444, and from the sentence imposed by Justice Peter J. DeFreitas on February 28, 2022.
Fairburn A.C.J.O.:
1. Overview
[1] The appellant was charged with multiple firearm related offences, all of which arose from the execution of a search warrant at a residential address. The search warrant was obtained as part of an investigation into the appellant’s son.
[2] The Information to Obtain (“ITO”) the search warrant alleged that the appellant’s son was in unlawful possession of one or more firearms and that there were reasonable grounds to believe that evidence of the offence would be found at the residence searched. The execution of the search warrant resulted in the discovery of four loaded firearms with accompanying ammunition: (1) a .357 Magnum Taurus revolver; (2) a Kel-Tec 9 mm Luger handgun; (3) a .40 Glock 23 handgun; and (4) a 12-gauge Winchester shotgun.
[3] The loaded .357 Magnum Taurus was found under a pillow on the bed in the master bedroom. The loaded Winchester shotgun was leaning against the wall next to the bed, propped up in plain view. The appellant’s personal identification was found in the drawer of a nightstand table situated right beside that bed. His passport was located in the bedroom closet.
[4] The other two firearms were located in what appeared to be an uninhabited basement bedroom.
[5] The appellant was found guilty of three offences in relation to each of the four firearms: (a) unauthorized possession of a firearm pursuant to s. 91(1) of the Criminal Code (x4); (b) possession of a firearm knowing the possession is unauthorized pursuant to s. 92(1) of the Criminal Code (x4); and (c) possession of a prohibited firearm with ammunition pursuant to s. 95(1) of the Criminal Code (x4).
[6] As the trial judge retired before the sentencing proceeding occurred, another judge took over. He entered convictions on the four counts of possession of a prohibited firearm with ammunition pursuant to s. 95(1). All other counts were stayed. The appellant was sentenced to 30 months on the count involving possession of the loaded Magnum. He received 30-month concurrent sentences on the other counts.
[7] The appellant raises three grounds of appeal from conviction. He also appeals from sentence. For the reasons that follow, except in one respect that is conceded by the Crown, I would dismiss the conviction and sentence appeals.
2. Analysis
i. The Garofoli Issue
[8] The prosecution’s case against the appellant turned entirely on the lawfulness of the search of the home where the firearms were located.
[9] The ITO contained a significant amount of information provided by a confidential informant. That information was largely consolidated in an appendix at the end of the ITO. Prior to disclosure, the ITO was properly subjected to heavy redactions in order to cleanse it of any detail that could directly or indirectly tend to reveal the identity of the confidential informant.
[10] The appellant brought a pre-trial s. 8 Canadian Charter of Rights and Freedoms application, claiming that there were insufficient grounds contained in the ITO to support the search warrant that resulted in the seizure of the firearms and ammunition. It was a straight Garofoli application, where the appellant maintained that the information contained in the four corners of the ITO simply did not meet the statutory threshold test for issuance: R. v. Garofoli, [1990] 2 S.C.R. 1421. This meant that the trial judge, acting in his function as a reviewing justice, had to ask whether, based on the record that was before the issuing justice, the warrant could have issued: Garofoli, at p. 1452; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 51; and R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 40.
[11] Accordingly, the only question for the trial judge was whether there existed sufficient reliable evidence in the ITO, that could reasonably have been believed, upon which the warrant could have issued: Araujo, at para. 54. When applying this test, reviewing justices must remain mindful of the fact that affiants need not state the obvious reasonable inferences that arise from information in an ITO. This is because, whether spelled out or not, it is open to issuing justices to take these inferences into account. Therefore, when determining whether an authorization could have issued, reviewing justices must consider all of the information that was available to the issuing justice, as well as any reasonably available inferences that the issuing justice may have drawn from that information: R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657, at para. 16.
[12] The trial judge’s reasons in dismissing the s. 8 application demonstrate that he stayed true to his task as a reviewing justice.
[13] The trial Crown conceded that without the redacted information, the grounds in support of the ITO would have fallen short of the threshold required for issuance. Accordingly, the trial judge was asked to invoke the “step six” procedure outlined in Garofoli, meaning that he was able to consider the unredacted ITO when determining whether the Garofoli standard of review had been met.
[14] As is required when step six is invoked, a judicial summary was prepared and produced, one that the trial judge was satisfied was sufficient to allow the defence to challenge the redacted material by argument or evidence. There is no dispute on appeal about the trial judge having invoked step six or about the adequacy of the judicial summary produced.
[15] Based upon both the unredacted and redacted parts of the ITO, the trial judge was satisfied that there existed sufficient facts to support a reasonable inference that the appellant’s son was in unlawful possession of at least one if not more firearms. The trial judge was also satisfied that there existed sufficient information to support the reasonable inference that the appellant’s son was “at least a part-time occupant of [the residence searched].” This led to the reasonable inference that the son may have stored his firearm(s) at that location.
[16] While the trial judge noted that the affiant had relied upon “loose language” to describe the appellant’s son’s connection to the home where the firearms were located, the trial judge concluded that “on the available information, it was open to the [authorizing] justice to find that [the son] had a degree of residential attachment to it, on the basis of which a search warrant could issue” (emphasis added).
[17] The appellant contends that the trial judge’s conclusion that the son only had a “degree of residential attachment” to the home where the firearms were located, injects uncertainty into whether there were in fact sufficient grounds in the ITO to support the issuance of the warrant. In particular, the appellant disputes whether the ITO supported a sufficient connection between the appellant’s son and the home, such that it gave rise to a reasonably available inference that firearms would be found at that location. Accordingly, the appellant asks this court to consider the unredacted version of the ITO to assess whether the trial judge erred in saying he was satisfied that the Garofoli test had been met.
[18] The Crown respondent agrees that we should consider the unredacted ITO, but maintains that it supports the trial judge’s ultimate conclusion, namely, that the warrant could have issued. Accordingly, a sealed copy of the unredacted ITO was provided to the court, which we considered and then resealed.
[19] Having considered the complete ITO, I see no error in the trial judge’s reasoning or in the conclusion he reached. He accurately described the appellant’s son’s connection to the home. The ITO clearly establishes that the appellant’s son had a “degree of residential attachment” to that home. In fact, his attachment to that home is even made clear in the redacted ITO. For instance, the redacted ITO speaks to the fact of surveillance having been conducted at that home over a two-day period, when the appellant’s son was seen coming and going from the home with unimpeded access. He was also seen parking in the driveway and was even seen answering the door at one point and taking possession of a package that was delivered.
[20] The central question for the issuing justice was whether, based upon the information provided in the ITO, there existed reasonable grounds to believe that evidence of the firearm offences would be located at the home. This did not require proof beyond a reasonable doubt or even proof on a balance of probabilities that the appellant’s son was actually keeping firearms at the home. Rather, it required the application of a standard of “credibly-based probability”: Hunter et al. v. Southam Inc., [1984] 2 S.C.R. 145, at pp. 167-68. This threshold is met when reasonable inferences can be taken from the facts disclosed in the ITO: Vu, at para. 16; R. v. Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 421, at para. 81. In my view, having regard to all of the information, the trial judge did not err in reaching the conclusion that the issuing justice could have drawn a reasonable, common-sense inference that the appellant’s son was not only in possession of firearms, but that, based on his established connection to the subject residence, he may have been storing them at that location.
[21] In saying this, like the trial judge, I have had particular regard to unredacted paragraphs 24, 25, 29, 31, 34 and 35 of the appendix at the end of the ITO, all of which the trial judge specifically referenced as reinforcing his finding that it was open to the issuing justice to find a credibly-based probability that the son was “at least a part-time occupant” of the home.
[22] Accordingly, there is no error in the trial judge’s approach to this issue, nor in the conclusion that he reached, namely, that the issuing justice could have issued the warrant.
ii. The Section 24(2) Issue
a. Overview
[23] The appellant also brought a s. 10(b) Charter application, claiming that his right to counsel was infringed by the police. Although there was some disagreement around the edges of the s. 10(b) breaches, the trial Crown was in agreement that the appellant’s right to counsel had been infringed. So much so that the trial Crown conceded that the incriminating statements elicited from the appellant could not be adduced in evidence.
[24] With that Crown concession in mind, the trial judge was left to decide whether the s. 10(b) breaches were such that the firearms and ammunition should also be excluded from the evidence pursuant to s. 24(2).
[25] This Charter application was blended with the trial proper. Therefore, the reasons for judgment also contain the trial judge’s reasons on the ss. 10(b) and 24(2) issues.
[26] The trial judge described the s. 10(b) Charter breaches in detail. He then moved to his s. 24(2) analysis, providing reasons on each of the three prongs identified in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 71: the seriousness of the Charter-infringing state conduct (“prong 1”); the impact of the breach on the Charter-protected interests of the accused (“prong 2”); and society’s interest in the adjudication of the case on its merits (“prong 3”). The trial judge concluded that while the Charter-infringing conduct was “serious” and favoured exclusion under prong 1, the impact of the breaches on the appellant’s Charter-protected interests under prong 2 was only “moderate at best” and “weigh[ed] only slightly in favour of exclusion.” He then found that the societal interest in a trial on the merits under prong 3 was “high”.
[27] After balancing all factors together, the trial judge arrived at the conclusion that while it was a “close case”, the long-term repute of the justice system did not require the exclusion of the firearms and ammunition in the context of these very serious charges.
[28] The appellant argues that the trial judge’s s. 24(2) ruling is infected by three errors. I deal with each of them below.
b. Whether There was a Failure to Accurately Calibrate the Seriousness of the Charter-Infringing Conduct
[29] The appellant maintains that the trial judge erred by failing to properly calibrate the seriousness of the Charter-infringing conduct. While the appellant acknowledges that the trial judge described the police conduct as “serious” and said that it pointed toward exclusion of the firearms and ammunition, he maintains that the reasons still fall short of acknowledging the true seriousness of the egregious police conduct in this case.
[30] The appellant emphasizes that the police conduct involved multiple serious s. 10(b) breaches. He is right. Among them was an improper caution, where, in the immediate wake of the appellant expressing his desire to speak to counsel, the police went ahead and asked him if he wished to say anything in answer to the charge. This constituted a clear breach of the duty to hold off: R. v. G.T.D., 2018 SCC 7, [2018] 1 S.C.R. 220, at para. 2.
[31] There was also a more general failure to hold off on questioning until the appellant’s right to counsel had been facilitated. For instance, upon arrest, the police did not transfer him right away to the police station. Instead, he was detained for a couple of hours in the home being searched. During that time, he was asked by a fairly senior police officer why he had “all these guns”, to which the appellant provided an inculpatory answer. This was another clear breach of the duty to hold off.
[32] There was also a failure to implement the right to counsel without delay. While the parties disagree on when that failure commenced, there is no dispute that there was significant delay in facilitating the appellant’s right to counsel. This is evidenced by the fact that the appellant first asked to speak to counsel of choice at around 8:30 p.m. Very few efforts were made to implement that right, ultimately leaving him without any counsel contact until 3:20 a.m., in circumstances where the trial judge found that there was no justifiable reason for failing to facilitate the right to counsel for so long.
[33] While the respondent agrees that the s. 10(b) breaches were serious, the respondent argues that they were not quite as serious as the appellant describes (or as the trial judge found). For instance, the respondent takes issue with when the s. 10(b) implementation breaches actually commenced. Contrary to the trial judge’s finding, the respondent contends that the police were under no obligation to implement the right to counsel while the appellant was still detained at the residence where four loaded firearms had already been located and a search was continuing. Not only were there live safety concerns in facilitating a call in those circumstances, but it would have been difficult, if not impossible, to facilitate a private conversation between the appellant and his lawyer while still at the scene of the search: R. v. Pileggi, 2021 ONCA 4, 153 O.R. (3d) 561, at para. 77.
[34] Accordingly, while the respondent does not attempt to negate the seriousness of the Charter-infringing conduct in this case, counsel for the respondent maintains that it does not go as far as the appellant suggests.
[35] In my view, there is no need to resolve the outer edges of this s. 10(b) debate. I see no error in the trial judge’s approach to the first prong of Grant and the answer to this issue lies in deference.
[36] Essentially, what the appellant takes issue with is how the trial judge chose to characterize the breach as “serious” rather than, perhaps, as “extremely serious”. The terminology used to describe a breach is not the proper subject of review.
[37] Nor does it fall to this court to substitute its own views respecting the seriousness of state conduct for those of the trial judge: R. v. White, 2015 ONCA 508, 127 O.R. (3d) 32, at para. 63; R. v. Buchanan, 2020 ONCA 245, 150 O.R. (3d) 209, at para. 21. A trial judge’s assessment of the Grant factors in light of the facts must be afforded “considerable deference by an appellate court”: R. v. Mian, 2014 SCC 54, [2014] 2 S.C.R. 689, at para. 87. Where the trial judge has considered all proper factors and has not made any unreasonable findings, then appellate courts must show deference to the “ultimate determination”: Grant, at para. 86; R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at para. 44.
[38] When calibrating the seriousness of the Charter-infringing conduct, the trial judge took into account all proper factors and came to a conclusion on the facts. Leaving aside whether there is a descriptor that is more serious than “serious”, the fact of the matter is that the trial judge’s reasons make clear that he had a full comprehension of the depth of the Charter-infringing conduct. He described the breaches in some detail and did not shy away from expressing his strong views about the police conduct. For example, he said that the breaches were “rooted in ignorance”, constituted a “[failure] to take all reasonable steps to minimize the delay”, reflected a “paltry” effort to implement the right to counsel, and showed a failure to exercise any “reasonable effort” to facilitate contact with counsel of choice.
[39] The fact that he assigned the label “serious” and not something more than serious to that conduct is of no moment. The trial judge’s determination on prong 1 is owed deference.
c. Whether the Trial Crown’s Decision Not to Seek Admission of the Inculpatory Statements was an Appropriate Consideration
[40] The appellant argues that the trial judge erred when he found that the trial Crown’s decision not to seek the admission of the incriminating statements informed prong 2 of the Grant analysis, in the sense that it lessened the impact of the breaches on the appellant’s Charter-protected interests. As the trial judge put it: “The Crown does not seek admission of the utterances. This, in my view, tends to lessen the negative impact of the s. 10(b) violations.”
[41] The appellant argues that the trial Crown’s decision not to seek admission of the incriminating statements should have been of no moment to the s. 24(2) analysis. This is because, as the appellant contends, the trial Crown was really doing nothing more than conceding the inevitable. Even if it had not been inevitable, the appellant maintains that the fact that the statements were not admitted could not mitigate the serious impact that the breaches had on the appellant’s Charter-protected interests.
[42] In my view, it is open to application judges to take the exclusion of evidence arising from Charter breaches into account when determining whether other evidence should also be excluded pursuant to s. 24(2). Indeed, this court has recognized this to be so: R. v. Nguyen, 2023 ONCA 291, at para. 20. See also: R. v. Keshavarz, 2022 ONCA 312, 413 C.C.C. (3d) 263, at para. 117, leave to appeal to S.C.C. requested, 40213.
[43] In this case, the trial judge said that the fact that the trial Crown did not seek the admission of the incriminating statements lessened the “negative impact of the s. 10(b) violations.” That is true.
[44] One of the negative impacts of the failure to comply with s. 10(b) was that the appellant was denied the benefit of his “lifeline”, a lawyer who could have provided him with all manner of legal advice, including on how to protect himself against self-incrimination: R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135, at para. 45; R. v. Jarrett, 2021 ONCA 758, 498 C.R.R. (2d) 38, at para. 52.
[45] The fact that the state was not going to benefit from the self-incriminating statements that were elicited as a result of the breaches, did lessen the “negative impact of the s. 10(b) violations.” After all, the trial Crown’s decision not to seek the admission of the incriminating statements amounted to a state acknowledgement that it could not capitalize on the utterances made in the face of the appellant having been denied the opportunity to understand his right not to incriminate himself. In the end, the trial Crown’s decision not to attempt to capitalize on those statements placed the appellant in the place he would have been in had he remained silent in the first first place.
[46] In addition, the Crown’s acknowledgment that the statements should be excluded was entirely relevant to the third prong of the Grant analysis, society’s interest in the adjudication of the case on its merits. This line of inquiry explores “whether the vindication of the specific Charter violation through the exclusion of evidence extracts too great a toll on the truth-seeking goal of the criminal trial”: R. v. Kitaitchik (2002), 2002 ONCA 45000, 166 C.C.C. (3d) 14, at para. 47.
[47] Where a remedy is already available and directed at vindicating a specific Charter violation, such as in this case where the trial Crown essentially acknowledged that the incriminating statements could not achieve admission, also excluding the balance of the Crown’s case based upon the same Charter breach could extract too great a toll on the truth-seeking function of the trial.
[48] Therefore, the Crown’s concession with respect to the statements in this case allowed the court to avoid condoning admittedly very serious Charter breaches. It also ensured that the state would not be in a position to rely upon self-incriminating statements in circumstances where the appellant had been denied his right to counsel. At the same time, it allowed the importance of the firearms and ammunition seized from the appellant’s residence to be viewed in the context of the remainder of the prosecution’s case, a case that had gone from a powerful one built on admissions against interest, to one built entirely on circumstantial evidence: Grant, at para. 83.
[49] In my view, the trial judge properly took the trial Crown’s decision not to seek admission of the incriminating statements into account in his s. 24(2) analysis.
d. Whether the Trial Judge Erred in Taking into Account the Absence of a Causal Connection to the Firearms
[50] There was no dispute at trial, and there is no dispute in this court, that despite the fact that the firearms were discovered prior to the s. 10(b) breaches occurring, there was a sufficient temporal and contextual connection between the firearms and breaches to warrant a s. 24(2) analysis: R. v. Cuff, 2018 ONCA 276, 359 C.C.C. (3d) 415, at para. 30; Rover, at paras. 12-13, 35.
[51] Even so, in his s. 24(2) analysis, the trial judge took into consideration the fact that there was no causal connection between the s. 10(b) violations and the discovery of the firearms. As articulated by the trial judge, the lack of any causal connection between impugned evidence and a Charter breach can sometimes render exclusion “unnecessary to maintain the long-term repute of the justice system”.
[52] Applying that principle in this case, the trial judge concluded that the absence of a causal connection between the s. 10(b) breaches and the discovery of the firearms mitigated the “impact of the breach on the defendant’s Charter-protected interests” and weighed against exclusion.
[53] The appellant says that the trial judge erred in reaching the conclusion that the lack of a causal connection between the s. 10(b) breaches and the discovery of the firearms lessened the impact of the breaches on the appellant’s Charter-protected interests. The appellant contends that allowing a lack of a causal connection to play any serious role in the s. 24(2) analysis would encourage police enthusiasm for evidence-gathering in the face of serious Charter breaches and signal acceptance of police indifference to Charter rights. Ultimately, the appellant encourages this court to drop the causal connection language from our jurisprudence. After all, as the appellant points out, Charter breaches that do not result in the discovery of evidence can be just as serious as those that lead the authorities to evidence.
[54] The answer to this issue lies squarely in the law. Grant makes it clear that the doctrine of discoverability “retains a useful role” when assessing the “actual impact of the breach on the protected interests of the accused”: at para. 122. When it comes to self-incrimination and discoverability, Grant makes it clear that the more likely the subject evidence would have been obtained without the breach, “the lesser the impact of the breach on the accused’s underlying interest against self-incrimination”: at para. 122. Grant concludes on this point by reinforcing that if derivative evidence was independently discoverable, “the impact of the breach on the accused is lessened and admission is more likely”: at para. 125.
[55] This court’s jurisprudence has followed suit: see Rover, at para. 43; Keshavarz, at para. 115; and Pileggi, at paras. 107-8, 120.
[56] This does not mean that in some cases the impact of the breach on the Charter-protected interest cannot be serious even without a causal connection: see Rover, at para. 47. As this court said in Jarrett, at para. 53: “[N]either the fact that the police do not take a statement from the arrested person while violating the right to counsel, nor that there is no causal connection between the breach and evidence discovered, means that the breach will always lack a significant negative impact on the appellant’s Charter-protected rights”. However, it is proper to consider the lack of a causal connection as lessening the impact of the breach and as focussing the inquiry on the significance of the remaining impact.
[57] In this case, not only was the evidence discoverable without the s. 10(b) breaches, but it had no connection whatsoever to those breaches. To the contrary, the evidence was discovered as a result of a lawfully issued and executed search warrant, and the evidence was in state custody before the breaches took place.
[58] To the extent that the appellant takes objection to the weight that the trial judge placed upon the lack of a causal connection in his analysis, or the conclusion he reached about the significance of the remaining impact of the breach, these were matters of discretion and are owed deference by this court. The fact is that the trial judge took the proper factors into account and did not make any unreasonable findings.
iii. Possession of the Firearms
[59] The appellant also challenges the trial judge’s finding that he was in possession of the firearms. This ground of appeal is, for all intents and purposes, a challenge to the reasonableness of the verdicts. Accordingly, we must look to the entirety of the evidence to determine if a reasonable trier of fact, properly instructed and acting judicially, could have convicted. The answer is yes.
[60] The appellant’s personal items were found in the bedroom where two of the firearms were located, one under a pillow on the bed and the other within arm’s reach of the bed. The personal items found in the drawer of the nightstand table beside the bed included a driver’s licence with the appellant’s photo and name, and Visa cards in his name. Near the nightstand, there were also items that had been recently used, such as beverage containers. There was also a wastepaper basket in use. In the closet close by was the appellant’s passport. The closet where the passport was found was full of clothes. This was the only bedroom in the house that appeared to be in use.
[61] In these circumstances, it was open to the trial judge to conclude that the appellant had knowledge and control of the firearms. This is bolstered by the fact that the trial judge came to a factual conclusion, to which I defer, that the master bedroom where the two firearms were found was the appellant’s room. It is also bolstered by the fact that all firearms were on open display in the home, except the one that was under the pillow on the appellant’s bed.
[62] As to whether the appellant had knowledge of the fact that the firearms were loaded, it is correct that the trial judge did not specifically address this issue. However, he did not need to do so given the clear inference to be taken from all of the surrounding circumstances. By way of example, if the appellant in this case kept a firearm under his pillow, it is a common-sense inference that, if it were loaded, he not only knew that fact, but wanted it that way.
iv. Sentence
[63] By the time of sentencing, the trial judge had retired. Therefore, a new judge took over. A 30-month sentence was imposed. The appellant argues that this sentence is too high. Instead, he should have received a reformatory sentence and been permitted to serve it in the community.
[64] Starting with the standard of review, an appellate court may only vary a sentence if it is demonstrably unfit or where the sentencing judge made an error in principle that had an impact on the sentence: R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at paras. 25-26; R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 43-44.
[65] There is no basis to intervene in this case. The appellant points to no error in principle and certainly not one that impacted the sentence.
[66] The sentencing judge carefully explained how he arrived at his conclusion. While the appellant has medical challenges that continue to this day, the sentencing judge took them into account when fashioning a fit sentence. There is nothing to suggest that these medical issues cannot be addressed while the appellant is detained in custody.
[67] The trial judge understood and articulated the need to emphasize deterrence and denunciation in cases of this nature. His conclusion that a reformatory term was not available and that, even if it was, he would not have imposed a conditional sentence, was a reasonable one and is entitled to deference.
3. Conclusion
[68] The parties agree that a conviction under s. 95(1) of the Criminal Code was not available in relation to the Winchester shotgun as it is a non-restricted firearm. Accordingly, the respondent asks that the conviction under s. 95(1) (count 12) be set aside and substituted with a conviction under s. 92(1) (count 11). Both of these counts relate to the Winchester Shotgun. The appellant agrees with this manner of proceeding.
[69] Accordingly, the conviction on count 12 is set aside and an acquittal is entered on that count. The conditional stay on count 11 is set aside and a conviction is entered on that count.
[70] The conviction appeal is otherwise dismissed.
[71] Leave to appeal sentence is granted and the sentence appeal is dismissed.
[72] One copy of the sealed information will be kept in the court file. There will be no access to the sealed packet without prior order of this court.
Released: “August 2, 2023 JMF”
“Fairburn A.C.J.O.”
“I agree. B. Zarnett J.A.”
“I agree. J. George J.A.”
