Court File and Parties

CITATION: R. v. Parkes, 2008 ONCA 150

DATE: 20080229

DOCKET: C45975

COURT OF APPEAL FOR ONTARIO

GILLESE, ARMSTRONG and BLAIR JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

and

DAMIAN PARKES

Applicant/Appellant

Christopher Hicks for the appellant

Colleen Hepburn for the respondent

Heard and released orally: February 26, 2008

On appeal from the conviction entered on February 20, 2006 and the sentence imposed on March 10, 2006 by Justice Russell J. Otter of the Ontario Court of Justice.

ENDORSEMENT

[1] The appellant raises two grounds of appeal in respect of his convictions for eight firearm related offences: (i) the convictions are unreasonable, and (ii) the trial judge erred in his application of the principles articulated in W.(D.).

[2] The appellant was standing at the rear passenger side of a car leaning on an open window with one or more of his hands and head in the car. On the back seat of the car was a green canvas bag with black trim and a strap. It was placed immediately below the head of the appellant and was partially open. The car was approached by members of the Toronto Police Services on suspicion that the appellant and his companion were consuming alcohol in a public place. The search of the bag in the back seat revealed it contained a firearm and ammunition.

[3] The appellant was arrested and charged with the related firearms offences.

[4] At trial, the appellant’s companion testified for the Crown. He said that when he picked up the appellant, he was carrying a brown leather bag with a strap. He said that the green canvas bag entered as an exhibit at trial was not the bag he saw the appellant carrying into the car.

[5] On his first ground of appeal, counsel for the appellant sought to set aside the convictions on the basis that that there was no evidence that the green canvas bag was in the possession of the appellant as found by the trial judge. In our view, it was open to the trial judge on the evidence to conclude that the green canvas bag in the back seat was, in fact, the bag that the appellant brought into the car and that he continued in possession of the bag until the time of his arrest. We agree with the submission of counsel for the Crown in her factum at paragraph 3 where she summarizes the evidence that supports the trial judge’s finding:

The key evidence before the Court necessitating [the trial judge’s] conclusion included:

a) evidence of opportunity – the appellant and Mr. Ferreria [the companion of the appel-lant] were the only persons with possession, control and access to the car in which the bag with the firearm was found at the relevant time;

b) evidence that the appellant was seen wearing a bag with a strap, prior to getting in the car by the liquor store, and that he was not wearing the bag when he was drinking alcohol in the park;

c) evidence that the bag in which the firearm was found, and its contents did not belong to Mr. Ferreira or his sister;

d) evidence of the appellant’s behaviour and actions near the rear passenger side of the vehicle next to where the bag containing the firearm was found; and

e) the absence of evidence capable of pro-viding a factual basis from which reason-able exculpatory inferences could be drawn.

[6] Counsel did not press his second ground of appeal based on a failure of the trial judge to apply the principles in W.(D.). We see no merit in this ground of appeal. In the result, the appeal is dismissed.

“E.E. Gillese J.A.”

“Robert P. Armstrong J.A.”

“R.A. Blair J.A.”