COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Francois, 2014 ONCA 234

DATE: 20140327

DOCKET: C55431

Doherty, Laskin and Feldman JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Aaron Nathan Francois

Appellant

Paul J.I. Alexander, for the appellant

Greg Skerkowski, for the respondent

Heard: March 20, 2014

On appeal from the convictions entered by Justice Kelly of the Superior Court of Justice at Toronto on July 15, 2011.

ENDORSEMENT

[1] The appellant was convicted of several offences, including possession of a loaded prohibited weapon. All of the charges arose out of the same incident. The appellant has completed his sentence and appeals conviction only. He raises three grounds of appeal.

(1) Was the Cross-Examination of the Appellant on a Draft Affidavit Improper?

[2] The appellant brought a Charter motion at trial. His counsel had provided the Crown with a “draft” unsigned affidavit of the appellant in support of the application. On the day of the trial, counsel gave the Crown an affidavit signed by the appellant. There were several differences between the contents of the two affidavits.

[3] At the appellant’s first trial, his lawyer asked him about the differences in the two affidavits with a view to establishing that the appellant was the person who had directed that the changes be made. In cross-examination, Crown counsel questioned the appellant at some length about the differences in the two affidavits. Eventually, a mistrial was declared for reasons that are unrelated to this issue.

[4] At the appellant’s second trial, this time over the objection of defence counsel, Crown counsel cross-examined the appellant about the differences in the two affidavits. He also cross-examined the appellant about the testimony he had given at his first trial about those differences in an effort to show that his testimony at the first trial was inconsistent with his evidence at the second trial.

[5] Ultimately, only one area of the cross-examination had any relevance to the outcome of the second trial. The appellant testified in cross-examination that one answer he had given at his first trial was in fact a lie and that he had told the lie to protect his lawyer at the first trial. In her reasons for judgment, the trial judge made reference to that answer:

What is clear from this inconsistency is that Mr. Francois was willing to lie under oath to protect his lawyer. One only wonders what he would do or say to protect himself.

[6] This is not a case for any general pronouncement about the propriety of cross-examining an accused on a draft version of his affidavit. Having regard to the entirety of the circumstances, we are satisfied that the cross-examination as it related to the single question that figured in the trial judge’s credibility assessment, was neither unfair nor inappropriate. The appellant was asked to explain two quite different answers, both given under oath, to the same question. Unfortunately, but not unfairly, for him, his answer shed considerable light on his trustworthiness as a witness. The trial judge properly took that answer into account.

(2) The Reasons for Judgment

[7] Counsel advances three arguments arising out of the trial judge’s reasons for judgment. He contends that she failed to consider the third branch of R. v. W.D., reversed the burden of proof, and exposed the defence evidence to a higher degree of scrutiny than the Crown’s evidence. Nothing in the reasons supports these contentions.

[8] The trial judge began her analysis with a specific reference to R. v. W.D. That reference included a specific articulation of the so called third branch of that test, which requires that the trier of fact consider all of the evidence to determine whether the Crown has proved the case against the accused beyond a reasonable doubt.

[9] Having set the stage for her consideration of the evidence by laying out the applicable principles from R. v. W.D., the trial judge addressed the evidence by reference to several specific factual issues that arose in the evidence. In doing so, she thoroughly reviewed the evidence, clearly appreciated where the defence and Crown evidence conflicted and, gave various reasons for accepting the Crown evidence in relation to those factual issues.

[10] For example, in accepting the victim’s evidence about the events that transpired during the physical encounter with the appellant, the trial judge relied on the partial recording of that encounter that was played at trial. She described the contents of that recording as “chilling” and fully supportive of the victim’s description of the relevant events and inconsistent with the appellant’s description. Similarly, the trial judge considered the inconsistencies in the evidence of the various police officers who described the melee that occurred when the police arrived on the scene and attempted to arrest of the appellant. The trial judge fully appreciated those inconsistencies, but explained, in some detail, why those inconsistencies did not undermine the credibility of the witnesses.

[11] Finally, we see nothing in the reasons to suggest an uneven scrutiny of the evidence. The reality is that several parts of the appellant’s evidence were, on their face, incredible. It hardly took any unwarranted degree of scrutiny to reject that evidence. This argument fails.

(3) The Mens Rea Required for the Offence of Possession of a Prohibited Loaded Firearm

[12] The offence created by s. 95 requires proof that the person in possession of the firearm knew that it was loaded or was wilfully blind to that fact. The trial judge did not refer to the mens rea component of the offence in her reasons for judgment.

[13] There are two issues raised by this ground of appeal. First, was there a basis upon which a reasonable trier of fact could conclude that the appellant had the requisite mens rea and, second, is the failure to specifically address that issue in the reasons fatal to the conviction?

[14] We are satisfied that there was a basis upon which the judge could conclude that the appellant knew or was wilfully blind to the fact that the gun was loaded. The appellant had possession of the gun in the context of carrying out his drug trafficking activities. He had gone to a stolen vehicle in the middle of the night, apparently to retrieve a considerable amount of cash. The appellant pointed the gun at the victim and threatened to kill him. While the trial judge was not satisfied that the Crown had proved an intention to kill, she did find that the appellant intended to threaten the victim.

[15] A trier of fact could reasonably conclude that it is more likely that a drug dealer going to collect a considerable amount of cash in the dead of night would arm himself with a loaded gun, and that it is more likely that the same person would threaten to kill another person with a gun that was loaded rather than a gun that was incapable of doing the harm threatened. There was an evidentiary basis from which a trial judge could find the requisite mens rea (knowledge or wilful blindness).

[16] It would have been preferable had the trial judge specifically addressed the mens rea issue. Her failure to do so may be explained by the absence of any evidence from anybody directed specifically at the mens rea issue and the absence of any argument by either counsel on that issue.

[17] The trial judge is presumed to know the law. Her failure to expressly refer to the mens rea issue does not, in these circumstances, justify the conclusion that she failed to consider it. We see no reason to think that the trial judge was not satisfied that the Crown had proved that the appellant knew the gun was loaded or was wilfully blind to that fact.

(4) Conclusion

[18] The appeal is dismissed.

“Doherty J.A.”

“John Laskin J.A.”

“K. Feldman J.A.”