COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Robins, 2013 ONCA 65

DATE: 20130130

DOCKET: C53497

Rosenberg, Blair and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kevin Robins

Appellant

Brigitte Gratl, for the appellant

Lucy A. Cecchetto, for the respondent

Heard: January 25, 2013

On appeal from the conviction entered on October 22, 2010 and the sentence imposed on March 10, 2011 by Justice Nancy Mossip of the Superior Court of Justice.

ENDORSEMENT

[1] Following the conclusion of oral argument, the court dismissed the appeal from conviction and sentence with reasons to follow. These are our reasons.

The Conviction Appeal

Severance

[2] The appellant submits that the trial judge erred in failing to sever the weapons offences from the child pornography offences. Whether to grant severance is a discretionary decision. The trial judge made no error in principle and her decision is not unreasonable. There was little, if any, prejudice from the joint trial. There was no suggestion that the appellant used the weapon or that it had anything to do with his use of his computer to make child pornography available. There was little likelihood that the jury would reason from the fact that the appellant was in possession of the gun that he was therefore more likely to have made child pornography available.

The statement

[3] The admissibility of the appellant’s statement turned on findings of fact. Those findings are entitled to deference. The appellant submits that it is clear from the transcript of the videotaped interview that the appellant began to speak about the charges in exchange for a promise concerning the weapons charges. Thus, he submits, the requisite quid pro quo was present. We disagree. The transcript supports the trial judge’s holding that in response to the appellant’s suggestions of same benefit, Constable McFadden made it clear that he could not promise anything to the appellant and that the appellant understood this. On the trial judge’s findings there was no quid pro quo. There was no error in her finding that the statement was voluntary.

[4] In oral argument, counsel did not pursue any argument concerning the appellant’s rights under s. 10(b). Based on the trial judge’s findings of fact, there was no violation of the Charter.

Disclosure

[5] In the middle of this jury trial, counsel for the appellant sought disclosure of the appellant’s computer and hard drives. In her reasons for dismissing this application, the trial judge noted the serious practical difficulties for this last minute request. She also held that Ms. Gratl had not provided any reason for needing the material sought. Again, this was a discretionary decision and we can see no error in principle. The core of the submission was that there were discrepancies between the screen-shot taken by one officer and the list of files provided by another officer. This discrepancy could be fully exploited in cross-examination, as it was. There was no need for the actual computer. Having the computer in court would not have advanced the defence case in any way that could not be done through cross-examination of the police witnesses.

Unreasonable verdict

[6] The appellant submits that when the various discrepancies are taken into account, the verdict is unreasonable. We do not agree. It was open to the jury to accept the evidence, especially the evidence of Detective Constable Purchas, that the appellant made the child pornography, admittedly stored on his computer, available to others through the file-sharing programs that were admittedly on his computer. It was for the jury to decide whether Constable Purchas should be believed. It was open to the jury to reject the appellant’s claim that at the relevant times the programs were set to prevent file sharing. In doing so, they could take into account the evidence of Purchas and the other officers and the appellant’s own admission that on some occasions the programs were set to permit uploading by other persons with file-sharing programs. It was pre-eminently a jury question whether the various discrepancies so undermined the police evidence as to raise a reasonable doubt.

Providing written copies of the jury charge

[7] The appellant submits that in the circumstances of this case, the trial judge should not have provided the jury with a copy of her charge. The argument appears to be that somehow the jury would give more weight to the recitation of facts in the charge than counsel’s jury address. There is no merit to this argument. In fact, Ms. Gratl conceded that the one example of the recitation of the evidence about which she complains in this court was accurate. She raised no objection to its inclusion during the pre-charge conference or at the conclusion of the jury charge.

Sentence

[8] The principal argument on sentence was that the trial judge erred in imposing more than the one year minimum for possession of a loaded restricted firearm and erred in making this sentence consecutive. We see no error in the trial judge’s approach. The appellant had a handgun in his possession for several years. The firearm was loaded and stored in a careless manner. The appellant had made unauthorized use of the firearm for target practice on prior occasions. On the facts, the trial judge was not bound to impose the minimum sentence. The firearms offences and the child pornography offences protect different interests and were properly made consecutive.

[9] In passing, counsel made some reference to the trial judge’s treatment of the Gladue report. We see no error in her treatment of the issue given the nature of the offences and the appellant’s background as disclosed in the report and the pre-sentence report.

Disposition

[10] The appeal from conviction is dismissed. While leave to appeal sentence is granted, the appeal is dismissed.

“M. Rosenberg J.A.”

“R.A. Blair J.A.”

“David Watt J.A.”