Court of Appeal for Ontario

Date: 2024-07-10 Docket: COA-22-CR-0225

Judges: MacPherson, Dawe and Madsen JJ.A.

Between:

His Majesty the King Respondent

and

Winward Saunders Appellant

Counsel: Christopher R. Murphy, for the appellant Emily Bala, for the respondent

Heard: July 5, 2024

On appeal from the conviction entered on June 28, 2022 by Justice J. Elliott Allen of the Ontario Court of Justice.

Reasons for Decision

[1] In January 2021, the police executed a warrant to search a building unit in which the appellant operated a music studio. In a cluttered storage room they found five hidden firearms, along with ammunition and a tactical vest.

[2] The appellant was tried and convicted of multiple firearms offences. He appeals against his convictions only, having abandoned his sentence appeal. At the hearing we advised that the conviction appeal was allowed insofar as we were setting aside the appellant’s conviction on Count 16 and entering an acquittal on that count, but was otherwise dismissed with reasons to follow. These are those reasons.

[3] The appellant raised two main grounds of appeal. First, he contended that the trial judge misapprehended certain evidence. Second, he maintained that the verdicts against him were unreasonable, arguing that the trial judge’s misapprehension of the evidence contributed to his unreasonably finding that the appellant’s knowledge of the hidden guns had been circumstantially proved beyond a reasonable doubt.

[4] The guns were found in a crowded storage room that contained multiple items “stacked on top of each other”. Three of the guns – two shotguns and a rifle – were found in an orange “Roots” bag, while two handguns and ammunition were found in shoeboxes that were inside a plastic tub.

[5] The police also found various items in the appellant’s name, including his passport, multiple driver’s licences, and a prescription medication bottle. However, the evidence adduced at trial did not establish exactly where these items were found. One officer testified that the driver’s licences were found in a black suitcase, and photos show the passport also in this suitcase. However, there were four different black suitcases in the room, and the officer could not specify which one had contained the licences and passport. One of the four suitcases was found sitting in front of a refrigerator in the storage room, rather than in the pile of containers that include the bag and the tub holding the firearms.

[6] The appellant’s first ground of appeal is that the trial judge misapprehended the evidence about whether the guns had been forensically tested for fingerprints and DNA. It was an agreed fact that “[t]here was no DNA or fingerprints found on any of the firearms”. Crown counsel then supplemented this agreed fact by advising the trial judge that the guns were “the only items that were swabbed or printed”, and that none of the other items were submitted for testing.

[7] However, in his reasons for judgment, the trial judge repeatedly stated that there was no evidence as to whether the guns had been forensically tested. The Crown acknowledges that the trial judge was mistaken about this, but argues that the error was not material.

[8] We agree that in the circumstances here the trial judge’s misapprehension of this evidence did not “play an essential part in the reasoning process resulting in a conviction”: R. v. Morrissey (1995), 22 O.R (3d) 514 (C.A.), at p. 541; R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at paras. 1, 2, 6; R. v. Kwok, 2023 ONCA 458, at para. 54.

[9] The issue for the trial judge to decide was whether the circumstantial evidence as a whole ruled out the possibility that some other person had hidden the guns in the storeroom, without the appellant’s knowledge. If the appellant’s fingerprints or DNA had been found on the guns, this would have strongly supported the inference that he knew they were there. Conversely, if some other person’s fingerprints or DNA had been found on the guns, this would have affirmatively supported the exculpatory inference that it was this other person who hid the guns in the storeroom, rather than the appellant.

[10] However, the agreed fact that testing revealed no fingerprints or DNA on the guns was exculpatory only up to a point. It did not make it more likely that the appellant was the person who hid the guns, but it also did not make this possibility any less likely. All it established was that the person who hid the guns, whoever it was, had managed to do so without leaving their fingerprints or DNA on the weapons.

[11] In substance, the effect of this agreed fact was not markedly different than the situation that would have existed if the guns had never been tested at all, as the trial judge mistakenly believed. In this latter scenario, the trial judge would have been obliged to consider whether the absence of evidence contributed to a reasonable doubt about the appellant’s guilt, because the possibility that someone else could have hidden the guns in the storeroom could not be eliminated.

[12] The appellant argues that because the trial judge referred several times in his reasons to his mistaken belief that the guns had not been forensically tested, this error must have played some part in his reasoning process, particularly since he also made comments during the course of the trial that alluded to the sloppiness of the police investigation and the associated frailty of the Crown’s case. The appellant places particular reliance on Zarnett J.A.’s comment in Kwok, at para. 55, that a verdict of guilt should be set aside if the trial judge’s “misapprehension could have affected the outcome” (underlining in original).

[13] Kwok does not go so far as to suggest that a miscarriage of justice can arise even when the impact of a misapprehension of evidence on the trial judge’s reasoning process cannot be plainly seen. To the contrary, Zarnett J.A. explained at paras. 54-55:

To overturn a conviction, the misapprehension must have played an essential part of the reasoning process that resulted in it. If a misapprehension of evidence was essential to the verdict, the verdict is not true, the trial has been unfair, and a miscarriage of justice will have occurred. This is a stringent standard. It does not apply to peripheral reasoning or matters of detail or narrative only.

A misapprehension ground of appeal can succeed even if the conviction, based on all the evidence, was not unreasonable. If a conviction was unreasonable, it must be set aside and an acquittal entered. If evidence was misapprehended in a way that was essential to the trial judge’s finding of guilt, the misapprehension could have affected the outcome, and, accordingly, the verdict should be set aside, even if the evidence properly before the trial judge was capable of supporting a conviction. [Citations omitted; underlining in original.]

[14] In short, Kwok simply reiterates the well-settled principle that a misapprehension of the evidence will give rise to a miscarriage of justice when it undermines the trial judge’s actual reasoning process, even if a different judge who did not made the error could still have reasonably convicted. Kwok does not suggest that a verdict can be set aside based on the purely hypothetical possibility that the trial judge’s mistake might have implicitly affected the verdict, even when the impact of the error on the judge’s actual reasoning process cannot be determined from the judge’s reasons.

[15] As the Crown correctly observes in its factum, in the case at bar “[t]he trial judge could not and did not rely on a perceived failure to swab and print the firearms as strengthening the Crown’s case.” Nothing in the trial judge’s reasons suggests that he made this error. Rather, his comments about how “one wonders why no testing occurred”, and how “it would be preferable to have documented the search more fully and to have tested the materials seized”, can be interpreted as merely observations about what he considered to be slipshod aspects of the police investigation, rather than as suggesting that he was improperly relying on the absence of evidence as a makeweight that favoured the Crown.

[16] We would accordingly not give effect to the appellant’s first ground of appeal. While the trial judge did misapprehend the evidence, we are not persuaded that this error “play[ed] an essential part in the reasoning process resulting in a conviction”: Morrissey, at p. 541.

[17] The appellant’s second ground of appeal is that the verdicts were unreasonable because the evidence as a whole did not eliminate the alternative possibility that some other person had hidden the guns in the storeroom without the appellant’s knowledge. He relies on this court’s observation in R. v. Lights, 2020 ONCA 128, at para. 50, that “occupancy does not create a presumption of possession”, and argues that in view of the evidence suggesting that other people sometimes used the appellant’s recording studio, the possibility that some other person had hidden the guns in the storeroom had not been disproved.

[18] As this court noted in R. v. Abdelrahman, 2022 ONCA 798, at para. 6:

[A] trial judge’s assessment of the evidence and … determination of the inferences to be drawn from circumstantial evidence attract considerable deference on appeal, subject to reversible error.

In his reasons, the trial judge properly recognized that he had to consider “the alternative hypothesis … that someone else hid the weapons without the knowledge and control of [the appellant]”. He concluded that this alternative possibility could be rejected.

[19] We are not persuaded that the trial judge’s conclusion that the appellant had knowledge and control over the guns hidden in the storage room was unreasonable, having regard to the evidence as a whole. It was undisputed that the appellant operated the music studio. He was the only person the police found there when they executed the search warrant, mail addressed to him was found on the floor, and various documents in his name were found in the storage room where the guns were found. Although there was some evidence that other people also sometimes used the music studio, and that some people continued to do so even after the appellant’s arrest and incarceration, it was a reasonably available inference that they did so only with the appellant’s permission.

[20] As the trial judge noted:

The weapons and gear found in the studio were of some considerable value and were a legal liability to most people who might possess them. They were clearly and deliberately hidden.

It was open to the trial judge to conclude that some other person would not choose to hide five guns in a place they did not control, in circumstances where they could not prevent the appellant from coming across them, unless they had the appellant’s permission to do so.

[21] In these circumstances, we are satisfied that it was reasonably open to the trial judge to conclude as he did that the only reasonable inference was that:

[The appellant] was in possession of the weapons as that term is defined by law, which is to say that he knew they were there and he was in control of the studio to the extent that he at a minimum consented to their presence.

[22] Finally, the parties agree that the trial judge erred by convicting the appellant on one of the careless storage of a firearm charges, Count 16. The evidence was that the police found a total of five firearms hidden in the studio: three long guns and two handguns. However, the appellant was charged with six counts of careless storage of a firearm, three of which were particularized to specify that the firearm was a handgun. The Crown agrees that the appellant could only properly have been convicted of two of these three counts, and that his conviction on Count 16 should be quashed.

[23] The appellant’s conviction on Count 16 is accordingly quashed and an acquittal is entered on that count. In all other respects the conviction appeal is dismissed, while the sentence appeal is dismissed as abandoned.

“J.C. MacPherson J.A.”

“J. Dawe J.A.”

“L. Madsen J.A.”