CITATION: R. v. Ngo, 2010 ONCA 760
DATE: 20101110
DOCKET: C49729-C49911
COURT OF APPEAL FOR ONTARIO
Doherty, Feldman and Gillese JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Thanh Ngo
Appellant
AND BETWEEN
C49911
Her Majesty the Queen
Respondent
and
Hamza Mohamed
Appellant
Joseph Di Luca and Kevin Tilley, for the appellant, Ngo
Dirk Derstine and Mariya Yakusheva, for the appellant, Mohamed
John Patton, for the respondent
Heard and orally released: November 3, 2010
On appeal from the convictions entered by Justice D. Bellamy of the Superior Court of Justice, sitting with a jury, on June 3, 2008 and the sentences entered on October 6, 2008.
By the Court:
[1] Mr. Ngo and Mr. Mohamed, the appellants, were charged with offences relating to the possession of three firearms and two over capacity pistol magazines. The firearms and magazines were found wrapped in a bundle of t-shirts (the "bundle") on the floor of the front passenger's side of an automobile. One magazine clip was inserted in the handle of one of the firearms. On the Crown's case, Mr. Mohamed and Mr. Ngo were in that automobile shortly before the confrontation with the police that eventually led to the search of the automobile and the discovery of the firearms and magazines. According to the Crown witness, Mr. Mohamed had been seated in the driver's seat and Mr. Ngo was seated in the front passenger's seat. What appeared to be part of one of the firearms (actually one of the magazines) was plainly visible from either the front passenger's seat or the driver's seat of the vehicle.
[2] The jury found the appellants guilty of the offences relating to the possession of the firearms, but not guilty of the offences relating to the possession of the over capacity magazines. Mr. Ngo, a youthful first offender, was sentenced to two years' incarceration. Mr. Mohamed, a repeat offender, received an effective sentence of nine years.
[3] Both appellants appeal their convictions. Mr. Mohamed also seeks leave to appeal sentence and appeals sentence if leave is granted. He submits that the sentence was excessive, particularly having regard to the sentence imposed on Mr. Ngo.
[4] Mr. Ngo advances four grounds of appeal. First, he submits that the jury's verdicts are inconsistent. Second, he submits that the trial judge erred in failing to seek clarification of and adequately respond to a question asked by the jury during its deliberations. Third, counsel submits that the trial judge erred in instructing the jury that it must choose between two conflicting versions of events given by two Crown witnesses. The appellant submits that this instruction undermined the previous W.(D.) instruction. Fourth, the appellant submits the trial judge erred by dismissing a mistrial application based on an allegedly improper cross-examination of Mr. Ngo by the Crown and an improper comment made by Crown counsel in the presence of the jury.
[5] Mr. Mohamed adopts the grounds of appeal advanced on behalf of Mr. Ngo and advances three additional grounds. He contends first that the jury's finding of guilt on the possession of firearms charges was unreasonable. Second, he argues that the trial judge's instructions on the drawing of inferences of knowledge from the circumstantial evidence concerning Mr. Mohamed's conduct was deficient and, finally, he argues that the trial judge erred in finding that Mr. Mohamed's s. 9 Charter rights were not violated and that the firearms seized from the automobile should have been excluded under s. 24(2).
[6] We called on the Crown to respond only to the submission in respect of inconsistent verdicts.
[7] For the reasons that follow, we would dismiss the appeal.
MR. NGO'S GROUNDS OF APPEAL
I
THE INCONSISTENT VERDICTS
[8] It is fair to say that the Crown and the defence proceeded on the basis that the jury would not, for the purposes of determining the question of possession, distinguish between the possession of the three firearms and the two magazines in the bundle. The trial judge, however, instructed the jury to address each count separately and instructed the jury on each count.
[9] We think it was open to the jury to infer that the appellants were in possession of the firearms, but still have a reasonable doubt on whether the Crown had proved that the appellants knew that the magazines were a distinct physical entity as opposed to simply part of the firearms. This view, while perhaps generous to the accused, was, in our view, available on the evidence and the instructions given.
[10] The appellants have not met the "difficult onus" of showing that the different verdicts cannot possibly be reconciled on any rational view of the evidence and the applicable law: see R. v. Pittimann, 2006 SCC 9, [2006] 1 S.C.R. 381 at para. 7.
II
THE RESPONSE TO THE JURY QUESTION
[11] The appellants submit that the jury asked an ambiguous question and the trial judge was obliged to seek clarification from the jury before responding to that question. We reject this ground of appeal.
[12] The trial judge discussed the question posed by the jury with counsel before answering it. The answer was given with the support of counsel. After answering the question, the trial judge offered to go over the definition of the word "possession". She had used that word in answering the jury's question. The foreperson asked her to do so and the trial judge repeated the definition of "possession" she had given in her charge. That definition was correct in law. The trial judge also told the jury that it could return with any further questions it might have after the supper break. In our view, the trial judge's handling of the question was flawless.
[13] This case is clearly distinguishable from R. v. Layton, 2009 SCC 36, [2009] 2 S.C.R. 540 where the trial judge concluded his answer to the jury's question by telling the jury that he could not assist them any further. That is not what happened in this case.
III
THE W.(D.) INSTRUCTION
[14] The trial judge gave the jury an unassailable W.(D.) instruction. The appellants submit, however, that later in her charge, the trial judge undermined this instruction by telling the jury that it was obliged to choose between the conflicting evidence of Constable Levesque and another police officer as to the location of the automobile in which the firearms were discovered. The appellants submit that the trial judge erred in telling the jury that it must decide which of the two Crown witnesses "was right".
[15] We think this portion of the instruction was intended to assist the jury in the assessment of Officer Levesque's credibility and reliability by focusing on the competing evidence as to the location of the car and, therefore, Officer Levesque's ability to see the occupants of the car as he testified. Officer Levesque was an important Crown witness. The trial judge explained to the jury that the location of the car was significant in assessing Officer Levesque's credibility and that if the jury could not be satisfied that the car was where Officer Levesque said it was, the jury would want to "seriously examine" whether it could rely on his evidence regarding the observations of where the various appellants were in the vehicle.
[16] We are satisfied that the impugned comments were not directed at the burden of proof and did not undermine the faultless W.(D.) instruction given earlier by the trial judge.
IV
THE MISTRIAL APPLICATION
[17] As indicated above, there was a conflict in the Crown evidence concerning the location where the car in which the appellants were seen was parked. In the course of cross-examining Mr. Ngo, the Crown asked him if his evidence as to the location of the car had been influenced by the evidence he had heard one of the police officers give earlier in the trial. The defence immediately objected. The trial judge allowed the question but as we read the record, it was not pursued by the Crown.
[18] Counsel for the appellant argues that the question put to Mr. Ngo was improper because it put Mr. Ngo in the position of having his obligatory presence when the Crown evidence was tendered, used to undermine the credibility of his subsequent testimony.
[19] The concern underlying this submission is a legitimate one. It would be unfair and improper to suggest that an accused should not be believed because he had had the opportunity to hear the witnesses who testified for the Crown. In our view, however, the single question asked here does not carry with it that improper implication. It may well be that the Crown was simply exploring the extent to which Mr. Ngo had any independent recollection of where the car was located as opposed to relying on what he had heard a police officer say. That is legitimate cross-examination.
[20] Whatever the intended purpose, the Crown did not proceed beyond a single question which was never answered. That question, standing alone, does not constitute improper cross-examination, much less improper cross-examination that would merit a mistrial.
[21] Immediately after the impugned question was asked, Crown counsel made an observation in the presence of the jury, that clearly signalled to the jury that the Crown had been surprised by and did not accept the evidence of one of the Crown witnesses concerning the location of the car. This was a comment by the Crown of his personal opinion of the veracity or reliability of certain evidence. That kind of comment is improper. The objection was appropriate. The trial judge admonished Crown counsel. Crown counsel apologized and no further reference was made to the matter. It is unfortunate that Crown counsel made the comment. However, we see no error in the trial judge's refusal to grant a mistrial based on this single, isolated and relatively minor misstep by Crown counsel.
V
GROUNDS ON BEHALF OF MR. MOHAMED
(a) Issue of Control
[22] Mr. Mohamed argues that the verdict was unreasonable because there was insufficient evidence on which a jury could infer the control requirement of a possession charge given that at the highest he drove Mr. Ngo's mother's car for a short time. We do not agree. The jury was entitled to infer control if they accepted that version of events.
(b) Knowledge from Circumstantial Evidence
[23] When the police initially spoke to the appellants, the appellants were with two men named Hau and Omar. While the police were questioning Mr. Hau, Mr. Mohamed complained loudly to the police that they had stopped the men because of their race. The trial judge told the jury that one inference to be drawn from Mr. Mohamed's outburst was that he was trying to distract the police from focusing on Mr. Hau because he knew Mr. Hau had a gun in his possession and that there were additional firearms in the motor vehicle. The appellant argues that this latter inference was speculative and not reasonably available from Mr. Mohamed's outburst, but rather amounts to improper speculation.
[24] We see no error in the way the trial judge addressed this matter. She introduced the concept of circumstantial evidence by telling the jury that speculation played no role in the judicial process. With respect to Mr. Mohamed's outburst, she explicitly cautioned the jury not to make a leap to guilt from evidence that could reasonably speak to innocence. In our view, the jury would clearly understand from this instruction that Mr. Mohamed's outburst had no evidentiary significance on its own and could not, on its own, be used to infer guilt, but that it was tendered as part of the entire evidentiary picture which the jury would consider in deciding whether Mr. Mohamed knew there were firearms in the car. The instruction as to the potential evidentiary use of Mr. Mohamed's comments was proper in the circumstances. We do not accept the submission that the evidence had no probative value and the jury should have been so instructed.
(c) The Charter Argument
[25] Mr. Mohamed submits that while his initial detention on the sidewalk immediately after Mr. Hau was arrested was lawful, his subsequent arrest and detention for several hours at the police station violated his rights under s. 9 of the Charter.
[26] Assuming there was an arbitrary detention after the initial lawful detention, as alleged by counsel, there is no connection between Mr. Mohamed's detention or anything he said or did while detained and the subsequent discovery and search of the car that led to the seizure of the weapons. There is no evidence that the keys used to locate the car were taken from the person of Mr. Mohamed or that he did or said anything while detained that assisted the police in locating the keys and eventually the car.
[27] After the police located the car parked on a public street, they observed the bundle containing the weapons by looking through the window with a flashlight. The officers could see part of one of the weapons (the magazine). Even if the looking into the window with a flashlight could be construed as a search, it also had no connection to the earlier arrest and detention of the appellant.
[28] Lastly, the search of the car that resulted in the seizure of the guns and magazines was conducted under the authorization of a search warrant. There is no suggestion that any of the grounds relied on to obtain the warrant were based on anything said or done by Mr. Mohamed after he was detained and taken to the police station. Put simply, Mr. Mohamed's arrest and detention had nothing to do with the discovery of the car, the search of the car, or the seizure of the guns. This ground of appeal cannot succeed.
VI
CONCLUSION
[29] For the reasons set out above, the conviction appeals must be dismissed.
VII
THE SENTENCE APPEAL
[30] In addition to the convictions for the firearm offences returned by the jury, Mr. Mohamed pled guilty to violating three separate prohibition orders. The trial judge had all of these matters before her at the time of sentencing.
[31] The trial judge set out the principles that govern sentencing. She considered in detail the issue of parity as between the two appellants. She recognized Mr. Mohamed's tragic and troubled background and gave careful reasons for her conclusion that disparate sentences were warranted for the two appellants. These reasons focused on Mr. Mohamed's persistent criminality and the fact that Mr. Ngo was a youthful first offender. Mr. Mohamed's persistent criminality included convictions for firearm offences that had resulted in a sentence of five years and seven months. Mr. Mohamed committed the current very serious firearm offences within about a month of his release following the significant sentences for the earlier firearm charges.
[32] We also note that in imposing an effective sentence of nine years, the trial judge imposed a sentence that was only marginally higher than trial counsel for Mr. Mohamed had suggested was appropriate. Counsel had argued for a seven or eight year sentence.
[33] We would grant leave to appeal the sentence, but would dismiss that appeal.
RELEASED: "DD" "NOV 10 2010"
"Doherty J.A."
"K. Feldman J.A."
"E.E. Gillese J.A."