COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Jean, 2016 ONCA 137

DATE: 20160222

DOCKET: C58965

MacPherson, Tulloch and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Frantzy Jean

Appellant

Frantzy Jean, in person

Delmar Doucette, duty counsel

Robert Hubbard, for the respondent

Heard: February 10, 2016

On appeal from the conviction entered on May 2, 2014 by Justice Robert Smith of the Superior Court of Justice, sitting with a jury, and from the sentence imposed on January 20, 2015.

ENDORSEMENT

[1] The appellant raises two grounds of appeal against his convictions in connection with the possession of a restricted firearm. First, he argues that the verdict was unreasonable. Second, with the assistance of duty counsel, he submits that the trial judge erred in his response to a question from the jury on the offence of possession of a firearm obtained by the commission of a crime.

[2] His appeal against sentence is in two parts. One relates to credit for pre-sentence custody, the other is dependent upon the result of his conviction appeal. If the appellant is successful on the issue relating to the jury question, he submits that his sentence should be reduced.

The Conviction Appeal

[3] During the execution of a search warrant, police found a 9mm Beretta semi-automatic handgun under the bed in the master bedroom of an apartment leased by the appellant’s former common law spouse. The former spouse and the appellant were still dating at the time, though he no longer lived in the apartment. She is also the mother of two of the appellant’s children.

[4] The appellant was charged with four counts relating to the possession of the loaded Beretta handgun for which he had no licence. He was convicted of three of the four counts.

A. Unreasonable Verdict

[5] The evidence of the appellant’s possession was circumstantial. He submits that circumstantial evidence cannot form the basis of a conviction and the trial judge erred when he told the jury otherwise.

[6] This is incorrect. The trial judge’s charge to the jury with respect to circumstantial evidence was correct and the jury was properly instructed.

[7] There was evidence upon which the jury could conclude that the appellant was in possession of the Beretta. It was located in a shoebox containing men’s shoes under the bed in a small bedroom. He was at the apartment daily to assist with the care of his children. He kept clothes there. His expired passport was found in the dresser in the bedroom along with his possessions.

[8] This ground of appeal is dismissed.

B. Answer to the Jury Question

[9] Count four on the indictment – for which the appellant was convicted – was the possession of a weapon obtained by the commission of an offence, contrary to s. 96(2) of the Criminal Code, R.S.C. 1985, c. C-46. The appellant submits that the trial judge erred in his answer to a jury question.

[10] The trial judge properly instructed the jury with respect to count four when he explained that the Crown must prove the following beyond a reasonable doubt:

i. The appellant was in possession of a firearm – namely, a 9mm Beretta handgun;

ii. The firearm was obtained by crime; and

iii. The appellant knew that the firearm had been obtained by crime.

[11] The trial judge then correctly instructed the jury as to how to determine if the appellant knew the firearm had been obtained by crime. First, the Crown could prove that the appellant had actual knowledge that the handgun had been acquired directly or indirectly by crime. Alternatively, the Crown could prove that the appellant was aware of the need to make an inquiry about the origins of the handgun but deliberately failed to do so because he did not want to know the truth.

[12] During its deliberations, the jury asked the following question:

“Does the acquisition of a firearm without a proper licence constitute the firearm being obtained directly or indirectly by crime with respect to count number 4?”

[13] Following a discussion with counsel in the absence of the jury, the trial judge read the question and answered as follows:

“The short answer is yes … The acquisition of a firearm such as a 9-millimetre Beretta handgun without the purchaser holding a licence or authorization to possess a restricted firearm constitutes an offence by the vendor, and results in the firearm being acquired directly or indirectly by a crime.”

[14] The answer was incorrect. We adopt the analysis of Then J. in R. v. Khan (2007), 2007 CanLII 462 (ON SC), 217 C.C.C. (3d) 209 (Ont. S.C.), where, at paragraph 26, he said:

It is not sufficient that the accused have knowledge that his possession is illegal. What is required to establish “knowledge” on the part of the accused that he has “obtained” possession of the firearm by the commission of an offence is either that the accused himself commit an offence to obtain the firearm … For example ... by stealing. Alternatively, it will be sufficient that the accused obtain possession from another knowing that that person obtained the firearm by the commission of an offence. For example, the accused purchases the firearm from a person he knows stole the firearm.

[15] The key word in s. 96 is “obtained.” The accused must know that the firearm was obtained as a result of a crime. As this court held in R. v. Mohamed, 2014 ONCA 103, [2014] O.J. No. 574, at para. 1, that an accused committed any number of offences by being in possession of the firearm does not mean that it was “obtained” by the commission of an offence. The fact that the appellant did not have a licence for the firearm cannot form the basis for a conviction under this provision. The conviction on count four is quashed and an acquittal will be entered.

The Sentence Appeal

[16] The appellant raises two grounds of appeal with respect to his sentence: 1) the effect of an acquittal on count four, and 2) the trial judge’s calculation of credit for pre-sentence custody.

[17] The appellant submits that an acquittal on count four should result in a reduction of his global sentence of four and a half years. We disagree. All of the counts on the indictment, and the two resulting convictions, relate to the possession of the Beretta. The appellant has a long criminal record and the sentence imposed was well within the appropriate range, regardless of the success of his appeal on count four.

[18] Finally, the trial judge granted the appellant 25.5 months’ credit for pre-sentence custody at the rate of 1.5 to 1. However, he reduced the credit by two months to reflect the appellant’s “bad behaviour”. This behaviour resulted in an assault charge while the appellant was in custody.

[19] We accept the submissions of the appellant that the trial judge’s comments during the sentencing submissions indicate that he misunderstood the concept of earned remission. Earned remission applies to the provincial, not federal system. In the federal system, under which the appellant is currently serving his sentence, he is entitled to statutory release after a period determined under s. 127 of the Corrections and Conditional Release Act, S.C. 1992, c. 20. The statutory release date is generally the day on which he completes two thirds of his sentence: s. 127(3) of the Corrections and Conditional Release Act. Consequently, the credit for pre-sentence custody will be increased by two months.

Disposition

[20] The appeals as to conviction and sentence are allowed in part. There will be an acquittal entered on count four and the credit for pre-sentence custody will be increased by two months.

“J.C. MacPherson J.A.”

“M. Tulloch J.A.”

“M.L. Benotto J.A.”