Court of Appeal for Ontario

Citation: R. v. Davis-Harriot, 2010 ONCA 161 Date: 2010-03-03 Docket: C47395

Before: Doherty, Laskin and Goudge JJ.A.

Between:

Her Majesty the Queen Respondent

and

Anthony Davis-Harriot Appellant

Counsel: Mark Halfyard, for the appellant Frank Au, for the respondent

Heard: March 3, 2010 On appeal from the convictions entered by Justice Shaughnessey of the Superior Court of Justice dated June 14, 2007.

APPEAL BOOK ENDORSEMENT

[1] We are prepared to grant leave to appeal. However, we would observe that delays in perfecting a leave application may well justify a refusal of leave to appeal.

[2] We agree with the Summary Conviction Appeal Court that both the statement given at the scene of the arrest and the later statement were taken in violation of s. 10(b) of the Charter.

[3] Even if we were to accept the submission that the Summary Conviction Appeal Court erred in law in failing to exclude the statements under s. 24(2) of the Charter, we are satisfied that the verdicts would necessarily have been the same. In coming to that conclusion, we note that on appeal (unlike at trial) the applicant concedes that the gun was properly admitted.

[4] In our view, even without the statements, a trier of fact would necessarily have concluded that the applicant knew the gun was in the back seat and that he was in possession of the gun. We observe that:

i. The car belonged to the applicant;

ii. The applicant was the only occupant in the car;

iii. The loaded gun was sitting on the back seat of the car underneath the applicant’s coat; and

iv. There was no evidence that could support any inference that was inconsistent with the applicant’s guilt. He did not testify.

[5] Leave to appeal is granted and the appeal is dismissed.