CITATION: R. v. Choquette, 2007 ONCA 571
DATE: 20070821
DOCKET: C44198
COURT OF APPEAL FOR ONTARIO
FELDMAN, GILLESE and ARMSTRONG JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
and
DANIEL CHOQUETTE
Appellant
Louis P. Strezos for the appellant
Daniel Choquette in person
Michelle Campbell for the respondent
Heard: February 13, 2007
On appeal from conviction and sentence by Justice Peter B. Hambly of the Superior Court of Justice dated August 17, 2005.
FELDMAN J.A.:
Overview
[1] The appellant and another man, Mr. Schmidt, were apprehended by the police in North Bay. The police were called by Scott McColman whose brother Jay McColman had been assaulted by Mr. Schmidt. The appellant and Mr. Schmidt were visiting Jay McColman when the assault occurred. Mr. Schmidt then drove the appellant and Jay McColman to Scott McColman’s residence. The police found two rifles in the SUV in which the men were travelling that had been stolen seventeen days earlier in Ottawa. There was evidence that the two men had travelled to North Bay because "something bad happened in Ottawa", which the accused wanted to keep from his mother. Mr. Schmidt and the appellant were charged with weapons offences including possession of stolen weapons, and Mr. Schmidt was also charged with further offences relating to the assault and a knife he used.
[2] After four days of evidence, Mr. Schmidt changed his plea to guilty on four charges, and on a joint submission, he received a total sentence of two years, ten months.
[3] The appellant was ultimately found guilty on five weapons charges including two counts of possession of prohibited weapons knowing they were stolen and was sentenced to two years following thirty months of pre-sentence custody calculated as two for one. The appellant appeals his convictions on the two counts of possession of stolen weapons with knowledge and he appeals his sentence.
Conviction Appeals
[4] Duty counsel acting on behalf of the appellant raised one issue on the conviction appeals: that the trial judge erred in his articulation and application of the doctrine of recent possession as proof that the appellant had knowledge that the firearms were stolen.
[5] The two relevant charges read as follows:
Possession of prohibited weapons consisting of two rifles less than 660 millimetres in length, knowing that they were stolen, contrary to s. 96(1) of the Criminal Code.
Possession of personal property of Walter Lanzinger of value not exceeding $5000, namely, two rifles, knowing that they were stolen, contrary to s. 354(1) of the Criminal Code.
[6] The appeal arises as a result of language used in the following paragraphs near the beginning of the reasons for judgment:
The Crown proved that the rifles in question were stolen on May 10, 2004 from Walter Lanzinger. When the guns were seized by the police on May 27 and May 28, 2004, the stocks and barrels had been shortened. I take judicial notice that the guns, when they came into possession of the police, were less than 660 millimetres in length.
Given the short time period between the date of the offence and the date when these items were stolen and Mr. Choquette was found to be in possession of these items, the doctrine of recent possession of stolen property results in his being deemed to have knowledge that they were stolen. [Emphasis added.]
[7] Crown counsel fairly conceded in argument that if by the word “deemed”, the trial judge meant that the doctrine is automatic, then that is an error requiring a new trial on those charges. However, if he meant that he had concluded that he would draw that inference based on the evidence, then there was no error. In order to assist in understanding the finding of the trial judge on this point, this court asked counsel if the submissions had been recorded and could be ordered. Those submissions were subsequently provided to this court.
[8] At trial, Crown counsel made no mention or reference to the doctrine of recent possession to prove knowledge that the rifles were stolen. He focussed his submissions on the issue of whether the Crown had proved possession by the appellant in some constructive or joint form. The issue of the doctrine of recent possession was raised by the trial judge with defence counsel during his submissions. The trial judge asked defence counsel whether the doctrine came into play because the Crown proved the rifles were stolen on May 10 and they were found on May 27. Noting that the appellant was in possession of a stolen item seventeen days after it was stolen, the trial judge specifically asked: “Can I infer from that he knows that it’s stolen?” [Emphasis added.]. Defence counsel responded “no”, that there was not a sufficient nexus between the dates or between the theft and the appellant because there were no fingerprints and no allegation that he was part of the theft. Defence counsel wished to focus, as did the Crown, on the issue of whether the Crown had proved possession by the appellant. He asked the trial judge whether he could address the law on the issue later in his submissions. Unfortunately, he never returned to the issue.
[9] The leading authority on the doctrine of recent possession is the Supreme Court of Canada decision in Kowlyk v. The Queen (1988), 43 C.C.C. (3d) 61. At p. 7, McIntyre J. explained the rule by quoting from a concurring judgment of Laskin J. in Regina v. Graham (1972), 1972 172 (SCC), 7 C.C.C. (2d) 93 at 108 (S.C.C.) as follows:
The use of the term “presumption”, which has been associated with the doctrine, is too broad, and the word which properly ought to be substituted is “inference”. In brief, where unexplained recent possession and that the goods were stolen are established by the Crown in a prosecution for possessing stolen goods, it is proper to instruct the jury or, if none, it is proper for the trial Judge to proceed on the footing that an inference of guilty knowledge, upon which, failing other evidence to the contrary, a conviction can rest, may (but, not must) be drawn against the accused.
McIntyre J. went on as follows:
He went on to point out that two questions, that of recency of possession and that of the contemporaneity of any explanation, must be disposed of before the inference may properly be drawn. He made it clear that no adverse inference could be drawn against an accused from the fact of possession alone unless it were recent, and that if a pre-trial explanation of such possession were given by the accused and if it possessed that degree of contemporaneity making evidence of it admissible, no adverse inference could be drawn on the basis of the recent possession alone if the explanation were one which could reasonably be true. Implicit in Laskin J.’s words that recent possession alone will not justify an inference of guilt, where a contemporaneous explanation has been offered, is the proposition that in the absence of such explanation recent possession alone is quite sufficient to raise a factual inference of theft.
[10] McIntyre J. concluded at pp. 12-13 that: “In all recent possession cases the inference of guilt is permissive, not mandatory, and when an explanation is offered which might reasonably be true, even though the trier of fact is not satisfied of its truth, the doctrine will not apply.”
[11] Clearly in this case, as no explanation was offered, once the trial judge was satisfied beyond a reasonable doubt that the appellant possessed the rifles, he was entitled to draw the inference that the appellant knew they were stolen, if he was satisfied that the theft was sufficiently proximate in time to the possession and if there was nothing else in the evidence that would cause him not to draw the inference. However, the inference is not mandatory and therefore an accused is never deemed to have knowledge based on the doctrine. It merely articulates a permissible inference that can be drawn based on circumstantial evidence.
[12] Although in his reasons for judgment, the trial judge used the term “deemed”, in his discussion of the issue with defence counsel, he used the correct word when he asked whether he could “infer” knowledge based on the theft seventeen days before the rifles were found in the possession of the appellant. Certainly it would have been better had the trial judge referred to case law and specifically stated why he concluded that seventeen days was sufficiently proximate in time for the application of the doctrine. However, a review of the record makes it clear that the issue of knowledge that the rifles were stolen was not the focus of the trial or of the submissions of either counsel, neither of whom provided any case law on the doctrine of recent possession.
[13] All of the circumstances of the record, including the evidence linking the accused to Ottawa prior to his arrest in North Bay, support the trial judge's inference that the accused did have knowledge of the rifles stolen in Ottawa. I am satisfied, based on my review of the submissions, and in particular the trial judge’s use of the term “infer”, as well as of the reasons for judgment, that the trial judge knew that the doctrine of recent possession was not mandatory. When the trial judge said the appellant was deemed to have knowledge that the rifles were stolen, that was his way of stating that he was drawing the inference of knowledge if possession were proved. I would not give effect to this ground of appeal.
Sentence
[14] Following delivery of the reasons for judgment, the appellant, through his counsel, asked that he be sentenced that same day. He had been in custody for fifteen months on these charges as well as other charges in Ottawa arising out of events that had occurred there that were referred to in the course of the trial. The trial judge acquiesced with that request, noting that he was doing so with no information about the appellant other than his criminal record and date of birth and with no case law.
[15] The facts relating to the appellant were that he and Mr. Schmidt drove together in an SUV that had stolen licence plates to North Bay. They called two brothers Mr. Schmidt had previously known, went to the home of one, a man in a wheelchair, and took him to the home of the other. The appellant and Mr. Schmidt were going back and forth to the vehicle, apparently taking drugs. Eventually, Mr. Schmidt became violent and assaulted the man in the wheelchair. The brother then turned on the television and saw news items suggesting that the appellant and Mr. Schmidt were wanted in Ottawa and called the police. In the meantime, the appellant was tired and went to the vehicle where he lay down in the back under a comforter. When the police arrived, they pulled him out of the vehicle and found a rifle loaded with one round, cocked and ready to fire, pointing out from the vehicle and positioned beside where the appellant had been lying down. The next day they searched the vehicle and found the other rifle in a gym bag. It was accepted that Mr. Schmidt was the person in control of the vehicle and of the weapons, but the trial judge found that the appellant was also in possession of them. The appellant was acquitted of possession of the stolen licence plate with knowledge, but was convicted of two counts of possession of stolen prohibited weapons, one count of careless storage, one count of possession of weapons while prohibited and one count of possession of weapons without a licence.
[16] The Crown asked for a sentence of two years in addition to pre-trial custody of fifteen months credited as thirty months, on the basis of imposing a sentence of parity with Mr. Schmidt. He submitted that the aggravating and mitigating circumstances in each case cancelled each other out. Defence counsel asked for time served. The appellant was thirty-three years old at the time of the verdict and sentencing. He has a lengthy criminal record dating back to 1991 including offences of theft, fraud, trafficking, assault, possession of explosives, driving offences, assault, obstruct police and fail to comply. His longest sentence appears to have been six months in custody.
[17] The trial judge noted several comparisons between Mr. Schmidt and the appellant. He noted that Mr. Schmidt pled guilty and was sentenced based on a joint submission. Although Mr. Schmidt was in possession of the same guns, the trial judge had concluded that the appellant had loaded and cocked the rifle beside him when he went out to the vehicle to lie down, and considered that a very aggravating factor. On the other hand, Mr. Schmidt was convicted of a serious attack on a disabled victim, for which the appellant was not responsible. On the basis of this comparison, the trial judge agreed with Crown counsel that the aggravating and mitigating factors were in balance. The trial judge noted that without evidence of the personal background of the appellant, he had no other mitigating factors to apply.
[18] The trial judge stated that the possession of the prohibited weapons, one of which was loaded and ready to fire, could attract a sentence of five years and that he would have been prepared to impose a sentence of five years less credit for pre-trial custody, leaving two and a half years to serve. However, because he was not prepared to jump the Crown’s submission, he imposed two years in addition to pre-trial custody.
[19] On the appeal, duty counsel submitted that the sentence was excessive and manifestly unfit. The appellant had never served time in the penitentiary before, and was essentially sentenced to four and a half years in prison for possession of two stolen sawed-off shotguns, while Mr. Schmidt got four years for the same offences plus a serious assault on a disabled victim. He submitted that it was accepted that the appellant was not the leader in the venture and that drugs were clearly involved in his behaviour. He relied on R. v. Ferguson (1985), 1985 3534 (ON CA), 20 C.C.C. (3d) 256 (O.C.A.) where, in somewhat similar circumstances, a sentence of two years was upheld. I note, however, that in that case, no gun was loaded and no ammunition was found. Finally, counsel submitted that the normal deference is not owed on this sentencing because the trial judge suggested a sentence of five years without reference to any case law.
[20] I agree with duty counsel that it certainly would have been preferable for the trial judge to have had a pre-sentence report and more fulsome submissions regarding sentence. However, it appears that the sentencing proceeded as it did based on the appellant’s wishes. The trial judge purported to apply the parity principle to the sentences of the two men, even though Mr. Schmidt committed an assault with a knife on a man in a wheelchair as well as possessing the stolen guns. He based his comparison of the culpability of the two men on the fact that the appellant had a loaded and cocked rifle pointed and ready to shoot. My concern is that it appears that the appellant’s sentence was longer than Mr. Schmidt’s, and not in parity with it. Defence counsel suggested in submissions that Mr. Schmidt’s total sentence was four years while the appellant’s was four and a half years. The only evidence on the record of Mr. Schmidt’s sentence is the trial judge’s statement that Mr. Schmidt was sentenced to two years and ten months.
[21] In my view, in this case where the only basis for the length of sentence was the parity principle, it was an error for the trial judge to impose a longer sentence on the appellant than on Mr. Schmidt while purporting to impose a sentence in parity with his. Based on duty counsel’s position that Mr. Schmidt received an effective sentence of four years, I would reduce the appellant’s sentence to four years, giving credit for thirty months of pre-trial custody. Therefore on each of counts 1 and 2, I would reduce the sentence imposed by the trial judge from two years to eighteen months. The sentences on the other counts remain the same.
[22] In the result, I would dismiss the appeal against conviction, grant leave to appeal sentence and reduce the sentence imposed to eighteen months from two years.
RELEASED: August 21, 2007 “KNF”
“K. Feldman J.A.”
“I agree E.E. Gillese J.A.”
“I agree R. Armstrong J.A.”