DATE: 20061031

DOCKET: C44785

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) v. SHELDON HURLEY (Appellant)

BEFORE:

LASKIN, MOLDAVER and JURIANSZ JJ.A.

COUNSEL:

Michael Dineen

for the appellant

Joseph Perfetto

for the respondent

HEARD & RELEASED ORALLY:

October 19, 2006

On appeal from conviction entered November 7, 2005, and the sentence imposed on January 10, 2006, by Justice Donna G. Hackett of the Ontario Court of Justice.

E N D O R S E M E N T

[1] The appellant made three submissions on his appeal against his convictions and he also appealed his sentence.

A. The Conviction Appeal

[2] The appellant first submitted that the trial judge erred in failing to find a violation of ss. 11(b) of the Charter. We did not call on the Crown to answer this submission. This was a borderline case in which we deferred to the trial judge’s conclusion that the delay was not unreasonable.

[3] Second, the appellant submitted that the trial judge’s finding that he knew that the gun was loaded was tainted by a misapprehension of evidence and a failure to take account of material evidence. We agree with this submission.

[4] The trial judge’s finding rested on two planks: the in-court demonstration and the appellant’s answer to a question on cross-examination. On the first plank, the Crown acknowledges that the trial judge misapprehended the evidence. The in-court demonstration did not make it obvious that one could tell the gun was loaded from mere observation.

[5] On the second plank, the trial judge failed to advert to a key portion of the appellant’s evidence where he said that he did not know the gun was loaded. Admittedly, several of the Crown’s questions on cross-examination did elicit answers from which one could infer the appellant’s knowledge. In no instance, however, did the Crown ask the simple question “did you know the gun was loaded?” In the face of the appellant’s contrary evidence that he did not know the gun was loaded, we do not think that the second plank of the trial judge’s finding is supportable.

[6] For these reasons, the conviction for possession of a restricted loaded weapon must be set aside.

[7] Third, the appellant submitted that his conviction for possession of a weapon for a dangerous purpose cannot stand because the trial judge did not make an express finding of a dangerous purpose. We disagree.

[8] The appellant was carrying a restricted weapon. The trial judge found that he did not take possession of the gun out of panic or for self defence. Instead she found that he was prepared to use it. Implicitly, this must have been for a dangerous purpose.

[9] Therefore, on the conviction appeal, the conviction on count seven, possession of a loaded restricted weapon, must be set aside. In its place, we substitute a conviction for possession of a restricted weapon. However, in the light of the conviction on count six, possession of a restricted weapon in a motor vehicle, we apply Kienapple to count seven and stay this conviction.

B. The Sentence Appeal

[10] The appellant received a twenty-one month sentence. He has already served just over nine months. At this point, we do not think that it is in the interests of justice to impose a consecutive sentence for the weapon dangerous conviction. Accordingly, we allow the appeal against sentence and reduce the appellant’s sentence to time served.

“J.I. Laskin J.A.”

“M. Moldaver J.A.”

“R. Juriansz J.A.”