COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Marshall, 2015 ONCA 692

DATE: 20151015

DOCKET: C58541

Cronk, Epstein and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jahvar Marshall

Appellant

Janani Shanmuganathan, for the appellant

Amy Rose, for the respondent

Heard: September 16, 2015

On appeal from the conviction entered by Justice R.D. Cornell of the Superior Court of Justice, sitting without a jury, on June 12, 2013 and the sentence imposed by Justice Cornell on October 4, 2013.

Cronk J.A.:

[1] On October 6, 2011, after a police investigation into suspected drug trafficking in the City of Sudbury, the appellant Jahvar Marshall and two other individuals – Raymond Khan and Catherine Gagan – were arrested and jointly charged with possession of a loaded prohibited firearm. At the time, all three individuals were enmeshed in the world of drugs.

[2] Police surveillance established that the appellant and Khan, Gagan and others were at Gagan’s Sudbury apartment on October 6, 2011. Information provided by a confidential informant and police surveillance at the apartment suggested that the apartment was the site of ongoing drug deals. The appellant and Khan were both arrested during the course of the afternoon and early evening. At approximately 8:00 p.m., the police executed a search warrant for the apartment and discovered the gun in a black Lacoste bag in a closet near the back door of the apartment. Gagan and another individual, who were in the apartment, were then arrested.

[3] Photographs of Khan holding the gun were found on Khan’s cell phone following his arrest. However, Khan claimed that the gun belonged to the appellant. He said that, before his arrest, the appellant had given him the gun while they were at a shopping mall together. Khan took photographs of himself, holding the gun, with his cell phone. Khan said that he did so because it was “cool”. Khan maintained that, after the photographs were taken, he returned the gun to the appellant and never saw it again.

[4] Gagan also disavowed any knowledge or possession of the gun.

[5] Following negotiations with the Crown, Khan pleaded guilty to the lesser charge of possessing a prohibited weapon on October 6, 2011, in the City of Sudbury, while he was prohibited from doing so. This was the same day that the appellant was alleged to have possessed the same gun. Khan received a sentence of 90 days’ in jail – a significantly lower sentence than that faced by him on the original charge of possession of a loaded prohibited firearm.

[6] No DNA or fingerprint evidence connected the appellant to the gun. The Crown’s case against the appellant rested primarily on the evidence of Khan and Gagan, both of whom testified for the Crown. Their evidence linked the appellant to possession of the black Lacoste bag on October 6, 2011 and on prior occasions, and to possession of the gun.

[7] The appellant testified. He acknowledged ownership of the black Lacoste bag but denied any knowledge of the gun. The trial judge rejected his evidence and accepted the Crown’s evidence as credible and reliable.

[8] The trial judge convicted the appellant of possession of a loaded prohibited firearm and sentenced him to three and one-half years’ imprisonment, less credit for 18 months’ pre-sentence custody. On the same day, the appellant was also sentenced to one year in jail for an unrelated conviction for possession of cocaine for the purpose of trafficking, consecutive to his sentence on the firearm offence, and to 60 days’ imprisonment for two counts of breach of his recognizance of bail, concurrent to the other sentences imposed. In total, the appellant received a sentence of 36 months in jail, after 18 months’ credit for pre-sentence custody. A DNA and various other ancillary orders were also made.

[9] The appellant appeals from his conviction and sentence on his firearm conviction.

A. Conviction Appeal

[10] The appellant raises three grounds of appeal in support of his conviction appeal.

(1) Credibility Assessments – Crown Witnesses

[11] The appellant argues that the trial judge erred in his assessment of Gagan’s credibility by failing to apply a proper Vetrovec caution to her testimony: Vetrovec v. The Queen, 1982 CanLII 20 (SCC), [1982] 1 S.C.R. 811. In particular, the trial judge erred by failing to appreciate that Gagan, like Khan, had a motive to lie because she was also charged with possession of a loaded prohibited firearm. Gagan, therefore, had an incentive to distance herself from any knowledge of the gun, in order to gain advantage in respect of her own outstanding charge.

[12] I would reject this ground of appeal.

[13] The trial judge recognized that Khan had a “significant incentive to assist the Crown in return for a substantially reduced sentence.” He made no mention of such an incentive on Gagan’s part.

[14] However, the trial judge was aware that the charge against Gagan remained outstanding at the time of the appellant’s trial. Further, in contrast to Khan, there was no evidence of any plea arrangements between Gagan and the Crown or of any prospect for more lenient treatment of her by the Crown if she agreed to testify for the Crown at the appellant’s trial. The trial judge was also alert to Gagan’s limited prior criminal record.

[15] The trial judge’s reasons confirm that he appreciated that Vetrovec considerations applied to both Khan and Gagan’s evidence. He stated that: “[w]hen considering the evidence of Khan and Gagan, I am mindful of the concerns that were expressed in R. v. Vetrovec.”

[16] The trial judge was not obliged to expressly advert to all the reasons warranting a cautious evaluative approach to Gagan’s credibility. There is no requirement in a judge-alone trial, like this one, that the trial judge address Vetrovec concerns in the same manner as he or she would in instructing a jury. A Vetrovec caution is intended to alert a jury to the dangers of relying on the evidence of ‘unsavoury’ witnesses. Trial judges are well aware of these dangers.

[17] In this case, the trial judge expressly instructed himself to assess Gagan’s evidence in accordance with Vetrovec principles. In light of this explicit caution, I see no reason to conclude that, in assessing Gagan’s credibility, the trial judge then lost sight of Gagan’s potential self-interest or other possible frailties in her evidence.

[18] The trial judge found that Gagan’s evidence was credible and reliable, for reasons that are supported by the evidentiary record. His credibility-based findings regarding her testimony attract considerable deference from this court. I see no basis for appellate interference with them.

[19] The appellant also maintains that the trial judge erred by finding that aspects of Khan and Gagan’s evidence were confirmatory.

[20] I disagree.

[21] The trial judge made no finding that Khan and Gagan’s evidence was entirely confirmatory. Instead, he found that:

The evidence of Khan and Gagan with respect to collateral issues such as the presence of other individuals and the chronology of events was largely consistent. In all important aspects, the evidence offered by Gagan and Khan tended to confirm and support the evidence offered by the other. [Emphasis added.]

[22] These findings were open to the trial judge on the evidentiary record. Gagan testified that the appellant had expressed concerns, as a drug dealer, about his personal safety and need for protection. Khan also said that the appellant was concerned about his safety. This evidence was not peripheral. It bore directly on the appellant’s motive for acquiring a gun and bringing it into Gagan’s home, a location from which he admittedly sold drugs on the day in question and on prior occasions. On the evidence, it was also a venue from which various third parties came and went with apparent ease.

[23] Khan and Gagan also testified about the appellant’s connection to the Lacoste bag where the gun was discovered. Khan claimed that the appellant was carrying the bag on October 6, 2011 and that he had seen the appellant use the bag on many earlier occasions. Gagan testified to similar effect. She said that the appellant had the Lacoste bag with him when he attended at her apartment on October 6, 2011 and that he “always” carried it with him.

[24] This evidence was probative of the identity of the owner of the Lacoste bag and whether the appellant was in possession of it on the day in question. It also undercut the appellant’s claim at trial that, although he had the bag with him at Gagan’s apartment on October 6, 2011, he had simply left it there, for no apparent reason and without any settled intention of returning to Gagan’s apartment to retrieve it, when he and his girlfriend left the apartment for lunch.

[25] The appellant maintains that there were two significant discrepancies between Khan and Gagan’s evidence. First, he submits that, based on Gagan’s description of the timing of her discussion with the appellant about his self-protection concerns, the appellant had the gun for less than one month prior to his arrest. Khan, however, suggested that the appellant had the gun for at least several months.

[26] It was open to the trial judge to attach little weight to this discrepancy. Neither witness purported to know when the appellant had acquired a gun. Khan was uncertain of the exact time when the appellant showed him the gun. Gagan testified merely to her own belief that the appellant had not yet acquired a gun when they discussed his personal safety concerns. Further, the appellant did not tell her whether he had actually purchased a gun.

[27] The second alleged discrepancy stressed by the appellant concerns Khan and Gagan’s differing versions of when and how frequently they had met prior to the day of their arrests. Nothing material turns on this issue. Any inconsistency between Khan and Gagan’s testimony on this issue did not detract from their evidence that the appellant was selling drugs from Gagan’s apartment, that he owned the Lacoste bag, and that he was concerned for his safety.

(2) Alleged Misapprehension of Evidence

[28] The appellant’s second ground of appeal concerns the trial judge’s treatment of the evidence of Khan’s plea of guilty to the charge of possession of a prohibited weapon on October 6, 2011, in the City of Sudbury, while he was prohibited from doing so. The appellant submits that the trial judge misapprehended this evidence by failing to appreciate that Khan’s plea to this offence constituted a prior inconsistent statement. It was, the appellant says, an admission by Khan that he was in possession of the gun on October 6, 2011, the same day that the appellant was found to be in possession of the same gun, in contrast to Khan’s denial at the appellant’s trial of possession of the gun on that day.

[29] Again, I disagree.

[30] In pleading to the lesser charge of possession of a prohibited weapon while he was prohibited from doing so, Khan admitted the essential elements of that offence, as particularized by the Crown. These particulars included the date and place of possession of the prohibited weapon – October 6, 2011, in the City of Sudbury.

[31] However, no transcript of Khan’s plea proceeding or any details of the statement of facts on which Khan entered his plea were tendered as evidence at the appellant’s trial. Nor was Khan cross-examined on the details of what transpired at his plea proceeding. Instead, he was asked only whether he had pleaded guilty to the charge in question, as framed in the indictment against him. He replied in the affirmative. No cross-examination of Khan took place regarding whether he understood the significance of the date on his indictment, whether he accepted that the offence to which he was pleading took place on October 6, 2011, or as to any of the events at the plea proceeding.

[32] This gap in the evidence is critical to this ground of appeal. The issue at the appellant’s trial in relation to Khan’s prior plea was whether that plea had any significance to the assessment of Khan’s credibility in light of his denial, at the appellant’s trial, of possession of the handgun found in the Lacoste bag. In the absence of the transcript of Khan’s plea proceeding and any cross-examination of him concerning that proceeding, the significance of his prior plea was left entirely undeveloped. In that undeveloped state, the fact of the plea was uninformative regarding Khan’s credibility.

[33] There are many reasons why an accused may elect to plead guilty to a pending charge. On the evidentiary record before the trial judge, Khan’s reasons for doing so are unknown. Moreover, the transcript of Khan’s plea proceeding or further cross-examination of him regarding the events at his plea proceeding may have provided an explanation for the date of his admitted possession of the gun. They may also have disclosed an amendment to the particulars set out in the indictment against Khan. The record before the trial judge, however, was entirely silent on these issues. So is the record on appeal.

[34] It was incumbent on the appellant, as the person seeking to rely on an asserted prior inconsistent statement by Khan, to establish that the statement in question was, in fact, a prior inconsistent statement. In the circumstances here, the appellant failed to do so.

[35] The trial judge was aware of Khan’s guilty plea. On the state of the record before him, I can find no fault in his failure to treat Khan’s guilty plea as a prior inconsistent statement capable of detracting from Khan’s credibility. In the absence of further evidence on the issue, the trial judge was entitled to conclude that Khan’s guilty plea related to his possession of the gun at the time of his cell phone photographs, and not possession of the gun at Gagan’s apartment on October 6, 2011.

[36] In my opinion, this ground of appeal fails.

(3) Alleged Uneven Level of Scrutiny

[37] Finally, the appellant submitted in his factum that the trial judge erred by applying a harsher level of scrutiny to the appellant’s evidence than that applied to the Crown’s witnesses.

[38] The appellant did not press this submission in oral argument at the appeal hearing. In my view, this was prudent. While it is an error to subject defence evidence at a criminal trial to a stricter standard of scrutiny than that applied to the prosecution’s evidence, this court has repeatedly emphasized that it is difficult to make this argument successfully. For example, in R. v. Howe (2005), 2005 CanLII 253 (ON CA), 192 C.C.C. (3d) 480 (Ont. C.A.), Doherty J.A. explained, at para. 59:

It is not enough to show that a different trial judge could have reached a different credibility assessment, or that the trial judge failed to say something that he could have in assessing the respective credibility of the [Crown’s witnesses] and the accused, or that he failed to expressly set out legal principles relevant to that credibility assessment. To succeed in this kind of argument, the appellant must point to something in the reasons of the trial judge or perhaps elsewhere in the record that make it clear that the trial judge had applied different standards in assessing the evidence of the appellant and the [Crown’s witnesses].

[39] More recently, this court observed in R. v. Aird, 2013 ONCA 447, 307 O.A.C. 183, at para. 39:

The “different standards of scrutiny” argument is a difficult argument to succeed on in an appellate court. It is difficult for two related reasons: credibility findings are the province of the trial judge and attract a very high degree of deference on appeal; and appellate courts invariably view this argument with skepticism, seeing it as a veiled invitation to reassess the trial judge’s credibility determinations.

[40] In this case, the trial judge’s reasons reveal that he reviewed the core aspects of the appellant’s account of events, as well as the manner in which he testified and the import of the discrepancies, inconsistencies and contradictions that emerged in his testimony, in the context of the evidence as a whole. He noted the appellant’s attempts to minimize his culpability and his failure to testify in a forthright manner. The trial judge concluded that, in several instances, the appellant appeared to have been untruthful in his evidence. He provided cogent reasons for rejecting the appellant’s evidence and accepting that of the Crown’s witnesses.

[41] The trial judge’s credibility assessments were squarely within his domain. As I have said, his credibility findings attract considerable deference from this court. I see no basis upon which to conclude that his evaluation of the appellant’s evidence was less than even-handed or disproportionately rigorous.

(4) Disposition of Conviction Appeal

[42] For the reasons given, I would dismiss the conviction appeal.

B. Sentence Appeal

(1) Fitness of Sentence

[43] At the time of sentencing, the Supreme Court’s decision in R. v. Nur, 2015 SCC 15, 385 D.L.R. (4th) 1 had not been released. In Nur, the Supreme Court struck down, as unconstitutional, the three-year mandatory minimum sentence for the offence of possession of a loaded restricted firearm, as provided for in s. 95 of the Criminal Code, R.S.C. 1985, c. C-46. There is no dispute that, in light of Nur, this court is entitled to review the three and one-half years’ sentence of imprisonment imposed on the appellant.

[44] The appellant submits that, absent a statutory mandatory minimum sentence, a sentence of three and one-half years in jail is demonstrably unfit in this case. He contends that given his youth at the time of sentencing (23 years old), his lack of a criminal record, his candour at trial in acknowledging his involvement in the drug trade, and his positive rehabilitative prospects, a sentence of between two and one-half to three years in jail is appropriate.

[45] The appellant further submits that a sentence in the range he proposes would meet the sentencing goals of deterrence and denunciation, while giving proper effect to the parity principle and the considerations held by this court to govern the sentencing of a youthful first offender: see R. v. Borde (2003), 2003 CanLII 4187 (ON CA), 63 O.R. (3d) 417 (C.A.).

[46] I would not accept these submissions.

[47] In R. v. Nur, 2013 ONCA 677, 117 O.R. (3d) 401, at para. 206, this court held that, the s. 95 statutory mandatory minimum aside, offenders who engage in s. 95 offences at the “true crime end of the s. 95 spectrum of offences” should continue to receive exemplary sentences that emphasize deterrence and denunciation. Nur provides, at para. 206, that: “[i]ndividuals who have loaded, restricted or prohibited firearms that they have no business possessing anywhere or at any time, and who are engaged in criminal conduct or conduct that poses a danger to others” will still attract such sentences, regardless of the constitutionality of the three-year minimum penalty.

[48] The appellant falls within this category of offenders. By the appellant’s own admission, he was present in Sudbury at Gagan’s apartment on October 6, 2011 for the express purpose of trafficking in drugs. He sold at least 15 grams of cocaine that day. He was in possession of a prohibited loaded handgun at a location where drug deals were occurring, several individuals were present in addition to Khan and Gagan, and the potential for violence was high. On the trial judge’s findings, the appellant then left the loaded handgun in his Lacoste bag at Gagan’s apartment, while he and his girlfriend went out for lunch.

[49] There can be no doubt that this type of crime, in the circumstances described above, is an offence at the “true crime” end of the s. 95 spectrum of offences described by this court in Nur. Denunciation, deterrence and protection of the public are unquestionably the paramount principles of sentencing implicated for such a crime.

[50] Additional aggravating factors are also in play. The appellant’s pre-sentence report indicates that he “seems to minimize and rationalize” his weapons offence and that he sees no “need to make changes in his life nor is he open to counselling”. Further, while on bail for the predicate offence, he was arrested for and eventually pleaded guilty to one count of possession of cocaine for the purpose of trafficking (60 grams of cocaine having a street value of approximately $5,000 to $6,000), and two counts of breach of his recognizance of bail. It was for these additional offences that the appellant was also sentenced at his sentencing hearing on his firearm conviction.

[51] I agree with the Crown’s submission that the appellant’s commission of a serious drug-related offence while on bail for his weapons offence, coupled with his negative pre-sentence report, strongly undercut any claim that the sentence imposed will “crush” the appellant’s prospects for rehabilitation.

[52] Nor, in my view, does the sentence imposed offend the Borde first offender sentencing principle or parity considerations.

[53] The trial judge considered the appellant’s youthfulness. While the sentence imposed would be the appellant’s first penitentiary sentence, his crime was serious and committed in the course of his commission of other admitted drug-related crimes. Although the courts should impose the shortest possible sentence in cases involving a youthful first time offender, the sentence must be consistent with the relevant sentencing principles, including proportionality to the gravity of the offence. As I have already said, the appellant’s offence was on the true crime end of the s. 95 spectrum. A sentence of three and one-half years is fit in the circumstances.

[54] Further, any comparison to Khan’s sentence following his guilty plea for possession of a prohibited weapon is inapt. Khan was convicted of a different offence and testified for the Crown at the appellant’s trial. Importantly, as before the trial judge, the full factors taken into account on Khan’s sentencing are unknown on the record before this court. And, as the Crown emphasizes, disparate sentences, even for the same offence, do not violate the parity principle so long as they are justified in all the circumstances.

[55] I note that in Nur, both this court and the Supreme Court upheld a sentence of 40 months in prison for a 19-year old first offender who had pleaded guilty at trial and was found to have had good rehabilitative prospects.

[56] Finally, the sentence imposed is well within the range of sentences upheld by this court for weapons offences committed in association with drug crimes. The statutory mandatory minimum sentence aside, I regard the appellant’s three and one-half year sentence of imprisonment for his firearm conviction as entirely fit.

(2) Disposition of Sentence Appeal

[57] Accordingly, for the reasons given, I would grant leave to appeal sentence and dismiss the sentence appeal.

Released:

“EAC” “E.A. Cronk J.A.”

“OCT 15 2015” “I agree Gloria Epstein J.A.”

“I agree David Brown J.A.”