Court of Appeal for Ontario

Date: 20241028 Docket: C69566

Before: Hourigan, Madsen and Pomerance JJ.A.

Between:

His Majesty the King Respondent

and

Thomas Stephens Appellant

Counsel: Anne Marie Morphew, for the appellant Jim Clark, for the respondent

Heard: October 24, 2024

On appeal from the conviction entered on December 18, 2020, and the sentence imposed on April 23, 2021, by Justice Wendl of the Ontario Court of Justice.

Reasons for Decision

Overview

[1] The appellant, Thomas Stephens, was arrested by police when he was discovered in the driver’s seat of a stolen vehicle. Video surveillance established that he had been in possession of the car for at least a few days. Upon searching the vehicle, police found a loaded gun in plain view on the front passenger seat, and a black bag containing methamphetamine and cocaine at the base of the driver’s seat. The appellant was charged with various offences relating to possession of the stolen car, the gun, and the drugs.

[2] The trial judge directed verdicts of acquittal on some counts because the gun was an “antique firearm” and exempted from certain Criminal Code provisions. The trial judge did, however, find the appellant guilty on other counts, including possession of the stolen vehicle; possession of drugs for the purpose of trafficking; careless use of a firearm; and possession of a weapon for a purpose dangerous to the public peace. The appellant was sentenced to a total term of 10 years, minus pre-sentence custody, and 6 months’ credit for Covid related incarceration issues.

[3] The appellant challenges both his convictions and his sentence. We will deal with each in turn.

The Conviction Appeal

[4] The appellant alleges that the trial judge misapprehended the evidence in manner that materially affected the outcome. The argument rests on the trial judge’s finding about the location of the loaded firearm. The trial judge found, as a fact, that the gun was discovered in plain view on the front passenger seat. The appellant says that the trial judge misapprehended the evidence on this issue by failing to engage with inconsistencies and contradictions in the police evidence. The appellant cites, as one example, the fact that the seizing officer said the gun was in plain view, while another officer, who said he was the first to search, did not see the gun. The appellant argues that, while the trial judge referred to problems with the police notes in his reasons, he did not consider the inconsistencies in the testimony as between police witness. The appellant says that this amounts to a misapprehension of the evidence on a material issue at trial.

[5] We do not agree.

[6] There is no misapprehension of evidence on the face of the reasons. The trial judge correctly summarized the testimony that he relied upon in making findings of fact. The appellant’s complaint focusses more on what the trial judge did not say than what he did say. The trial judge, however, was not required to chronicle every step taken in the deliberative process. Absent evidence to the contrary, the trial judge is presumed to have considered the evidence as a whole.

[7] The trial judge was aware of the defence arguments. He engaged with those arguments during closing submissions, and he noted some of the evidentiary deficiencies in his reasons. It is true that the trial judge focussed more on the defects in the police notes than he did contradictions in the police evidence. However, this is because those defects prevented him from determining where certain items – the car key fob and an Esso gas receipt – were found. The evidentiary frailties did not prevent the trial judge from determining the locations of the gun and the drugs. As he reasoned, the seizing officers were quite certain of the locations, and the discovery of contraband would have made their experience more memorable. The officer who seized the firearm had never found one during a search before, and the seizure of the gun “made an impression on him”.

[8] As the trial judge explained in para. 28:

[28] On the issue of the note taking by Officer Francone, while I agree it was problematic at points, particularly in relation to the location of the key fob, he was consistent about the location of the handgun on the passenger seat. He identified where the gun was located with a photo of the passenger seat.[8] The gun was located between the cookies and the Gatorade bottle also found on the passenger seat. Officer Francone indicates that the gun made an impression on him since it was the first he had found in his career. He also indicated that after looking at it and calming down a bit, he put it in the gun locker. It is my view that it is the finding of handgun that explains some of his poor note taking in relation to the receipts and the key fob. Basically, he was focused on the gun, therefore I find that he was accurate about the gun’s location. The accuracy of his notes about the location of the receipt and the key fob has no bearing on whether he accurately recalls and documented the location of the gun.

[9] As it relates to the drugs, the trial judge explained his reasoning in para. 29:

[29] Constable Hall assisted in the search of Hyundai. He searched around the driver’s seat area of the vehicle. At the base of the driver’s seat he located a black bag, which Constable Hall qualified as a black shaving kit style bag. Inside this shaving kit were found two further black bags, one inside the other. In the last black bag, he located a large quantity of methamphetamine and two smaller plastic baggies containing cocaine. A total of 121 grams of methamphetamine and 50.3 grams of cocaine were in the black bag. The cocaine was in two separate baggies of 39.8 grams and 10.5 grams respectively. While Constable Hall’s note taking could have been better, for example he had no note as to where he found the ESSO receipt, he was extremely clear about the location of the black bag where the methamphetamine and cocaine were found. Under cross-examination he was not displaced about where the bag was located.

[10] We do not perceive any misapprehension of evidence. While the trial judge could have referred to the testimony of other officers, his reasons make clear why he found the testimony of officers Francone and Hall to be compelling.

[11] In sum, it was for the trial judge to determine what, if any, findings flowed from the evidence that he accepted. He had the advantage of seeing and hearing the witnesses. He was entitled to accept all, part, or none of their evidence. It is not for us to revisit the factual contours of the case, absent demonstration of palpable and overriding error. No such error has been established, and the conviction appeal is accordingly dismissed.

The Appeal Against Sentence

[12] The trial judge imposed a total sentence of 10 years, apportioned as follows:

• s. 88 possession of a weapon for a dangerous purpose: 8 years
• weapons prohibition breach: 1 year concurrent
• careless transportation of a firearm: 1 year concurrent
• possession of methamphetamine for the purpose of trafficking: 2 years consecutive to s. 88 offence
• possession of cocaine for the purpose of trafficking: 2 years concurrent to methamphetamine offence
• possession of stolen vehicle: 6 months concurrent
• breach of probation charges: 6 months concurrent on each, and concurrent to the weapons dangerous offence.

[13] Crown and defence counsel agreed that the appellant was entitled to credit for pre-sentence custody in the amount of 27 months (calculated on a 1.5 to 1 basis) and additional credit of 6 months for COVID-related incarceration issues. [1] While the reasons do not specify the precise use of the pre-sentence custody, the warrant of committal confirms that the 27 months was subtracted from the 8-year sentence on the weapons dangerous charge, resulting in 5 years and 8 months remaining to be served. The 6-month credit was subtracted from the two-year concurrent sentences imposed for the trafficking charges. In the result, the total 10-year sentence, less credit, resulted in a term of 7 years and 2 months to be served in custody.

[14] The appellant argues that the trial judge erred in failing to correctly apply the totality principle and in failing to apply the correct range of penalty. The appellant says that, while the offences are serious, the total sentence is crushing, failing to account for his rehabilitative potential, and the mitigating effect of his life struggles and addiction issues.

[15] Relying on the authorities, the trial judge posited that the range for recidivist firearms offenders was from 6 to 10 years. He referred to the decision of Code J. in R. v. Graham, 2018 ONSC 6817. The appellant says this reflects error. The trial judge did not have the benefit of the more recent decision of this court in R. v. Morris, 2023 ONCA 816, in which Roberts J.A. noted the range to be between 4 and 9 years. The appellant argues that, by referring to an erroneous range of penalty, the trial judge committed an error in principle which commands appellate review.

[16] We begin by noting that a range of sentence is not an inflexible construct. It is designed to offer some measure of fit but is not a straitjacket. In R. v. Parranto, 2021 SCC 46, [2021] 3 S.C.R. 366, the majority of the Supreme Court of Canada observed, at para. 30, that:

Unless a sentence is demonstrably unfit or the sentencing judge made an error in principle that impacts the sentence, an appellate court must not vary the sentence on appeal (paras. 11 and 67). The focus of the demonstrable unfitness inquiry is on whether the sentence is proportionate, not whether the sentencing judge applied the correct starting point, sentencing range or category within a range (Lacasse, at paras. 51 and 53; Friesen, at para. 162).

[17] In any event, the range identified by the trial judge could not amount to error on the facts of this case. Whether the range begins at 4 or 6 years, the appellant’s sentence was clearly destined for the upper end of the range, given the gravity of the offences and his moral blameworthiness.

[18] As it relates to the offences, the trial judge correctly identified general deterrence and denunciation as the paramount factors in the sentencing equation. Canadian courts have consistently decried the scourge of gun violence. To put it bluntly, guns kill. Antique guns that are operable are no exception. On the findings of the trial judge, the appellant placed the firearm in plain view and in “plain reach”. It was loaded, ready to fire, and readily accessible while the car was parked in a public place – a hotel parking lot. That this posed significant danger to the community is self evident.

[19] So too is the danger posed by the controlled substances. Methamphetamine and cocaine destroy the lives of those in the grips of addiction. Those who trade in these commodities perpetuate the misery of addiction for their own financial gain. The appellant was a drug user, but there was no evidence to place him in the more mitigating category of “addict trafficker”. The use of the firearm to facilitate trafficking elevated the level of threat to the community. The combination of guns and drugs is a potent recipe for loss of life.

[20] As it relates to the offender, he was 30 years of age at the time of sentence. He has faced various challenges in his life. His father was an abusive alcoholic and addict. When the appellant was two years old, his mother moved away and began a relationship with another man. This was a positive and healthy relationship, but it ended when the appellant was 13 years of age, leading him to effectively lose another father figure. At around the same time, a knee injury ended his athletic career. These events sparked his descent into the criminal and drug subcultures, a descent chronicled in his criminal record. Of the appellant’s past 29 convictions, the prior conviction for kidnapping with a firearm, a related offence, particularly supported the trial judge’s view that the principle of specific deterrence required emphasis in this case.

[21] The trial judge was not unsympathetic to the appellant’s life circumstances. Contrary to the appellant’s argument, the trial judge considered these circumstances in mitigation, and maintained a belief in the appellant’s capacity for rehabilitation. As he put it in the final words of his decision:

[20] Finally, the global sentence of ten years takes into account the mitigating factors, namely the social support he has in his family, his acknowledgement, provided to the Court through his reference letters that he has a substance abuse problem and the difficulties he faced growing up due to the relationship with his father. I also agree that given his support, acknowledgement of substance issues and his age that he has some prospects for rehabilitation and, therefore, a longer sentence would not be appropriate.

[22] We find that the trial judge did not err in his application of the totality principle. He gave effect to that principle, balancing the aggravating and mitigating factors. The sentence imposed is within the range of penalty and we cannot say it is demonstrably unfit. Leave to appeal sentence is granted, but the appeal against sentence is dismissed.

Disposition

[23] For the reasons set out above, the appeal against conviction is dismissed. Leave to appeal sentence is granted, but the appeal against sentence is dismissed.

“C.W. Hourigan J.A.”

“L. Madsen J.A.”

“R. Pomerance J.A.”

[1] The sentencing decision was released prior to this Court’s decision in R. v. Marshall, 2021 ONCA 344, which clarifies that COVID conditions represent collateral consequences and can reduce the quantum of sentence on that basis.