Court of Appeal for Ontario

CITATION: R. v. McIntosh, 2016 ONCA 370

DATE: 20160516

DOCKET: C56463

Epstein, Pepall and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Audley McIntosh

Appellant

Eva Taché-Green, for the appellant

Katie Doherty, for the respondent

Heard: May 9, 2016

On appeal from the conviction entered on March 23, 2012 and the sentence imposed on September 20, 2012 by Justice Alexander Sosna of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1] The appellant was charged and convicted of various offences arising out of events that occurred on September 28, 2010. He appeals his convictions for assault, uttering death threats and four firearm-related offences in relation to the complainant Jacqueline McCarthy. He does not appeal his convictions for dangerous driving and possession of cannabis. He seeks leave to appeal his sentence of nine years, less 18 months credit for pre-sentence custody.

[2] The appellant was a convicted drug trafficker. The complainant trafficked drugs for the appellant for several years. She testified that, while a passenger in the appellant’s SUV on September 28, 2010, she told him she no longer wanted to traffic drugs for him. He assaulted and threatened her, saying that someone was going to die that day. He drove her to the house where his partner, Shannon Butler, lived with their children. He ordered Butler and the children out of the house, took a gun from a shelf in the front hall closet, “racked” the pistol by sliding the mechanism back and forth, and pointed the gun at McCarthy, threatening to kill her and her mother. The incident ended after the complainant said “just kill me”. The appellant returned the gun to the closet. He then drove the complainant home after dropping Butler at work and their children at daycare.

[3] Later that day McCarthy went to the police. The appellant was arrested that evening as he entered an SUV in front of Butler’s residence. Charges and a conviction (not appealed) resulted from his attempt to drive through a police blockade. A few hours later, the police found a loaded gun on a shelf in the front hall closet and a bulletproof vest in Butler’s bedroom. Butler denied knowledge of the gun in her home.

[4] Two witnesses testified for the defence: Shannon Butler and Raza Khan (who was McCarthy’s boyfriend and a drug dealer). The defence theory was that McCarthy had a motive and the opportunity to lie. The defence contended that the complainant planted Khan’s gun in the closet and fabricated the events about which she testified, because she owed the appellant money, she wanted to make her own money trafficking drugs, and she wanted to send the appellant to jail for a long time to get him out of her life.

[5] Butler testified that she let the complainant stay at her house when she wanted to “stay away from drugs”, but she did not allow McCarthy to have visitors. Butler had previously told Khan to leave upon finding him and McCarthy together in her house. Both Butler and Khan testified that the previous day, September 27, Khan had been at Butler’s house with the complainant. Butler, who came home unexpectedly, saw Khan run out the back door. He identified the gun found in the closet as his own.

[6] The trial judge did not believe the defence witnesses’ testimony about McCarthy being at Butler’s house the previous day, and he found that it did not raise a reasonable doubt as to the appellant’s guilt. He accepted the complainant’s evidence, which he found to have been confirmed in material respects by other evidence.

[7] The appellant’s conviction appeal focuses on the trial judge’s assessment of the witnesses’ evidence. In particular, he contends that the trial judge applied a different level of scrutiny to the defence and Crown evidence, contrary to the principles in R. v. F. (J.), 2005 CanLII 253 (ON CA), [2005] O.J. No. 39 (C.A.) and in R. v. Gravesande, 2015 ONCA 774. The appellant says that his convictions depended on the credibility and reliability of the complainant’s evidence. In dealing with that central issue the trial judge glossed over or ignored inconsistencies in that evidence, such as the inconsistencies in her testimony about whether the appellant pointed the gun to her head or to her leg, and about how many times she had previously seen the firearm. The trial judge’s willingness to treat frailties in McCarthy’s evidence as defensible should be contrasted, argues the appellant, with his unwillingness to tolerate frailties in the testimony of Butler and Khan.

[8] We disagree. The trial judge conducted a careful and scrupulous review of the evidence of all three lay witnesses.

[9] He was alive to the frailties in the complainant’s evidence, including her motives to lie. He adverted to inconsistencies and weaknesses in McCarthy’s evidence, including her claim to forget certain details and retracting details she had provided earlier. He concluded that the complainant’s evidence was not so flawed or inconsistent as to destroy or raise a reasonable doubt about its reliability in relation to the material aspects of her evidence.

[10] Recognizing that the complainant was a Vetrovec witness, the trial judge looked for and found independent evidence to confirm the essential parts of her testimony: Butler’s evidence that the appellant was angry when he arrived at the house with McCarthy, and that he had ordered her and the children out of the house; the photo showing injuries to her face; her cell phone records that placed her in Scarborough, and not at Butler’s home on September 27; and the seizure of the loaded, racked gun from Butler’s residence where the complainant said the appellant had put it.

[11] As for his treatment of the defence evidence, we disagree that the trial judge drew unfair conclusions about that evidence and engaged in speculation when rejecting the evidence. In considering Butler’s and Khan’s testimony he drew reasonable inferences that were available to him on the evidence. These included his conclusion that it was unlikely that Butler would have said nothing in her statement about McCarthy’s showing up unannounced the previous day (as Khan had testified), and that it made no sense that Khan, who carried a gun for protection, would leave it in Butler’s closet, and then expect McCarthy to retrieve it after he ran from the house. Again, the complainant’s cell phone records were important to his rejection of the defence evidence.

[12] There is simply no basis to conclude that the trial judge applied different standards of scrutiny to the evidence of the witnesses or to interfere with the trial judge’s findings of credibility and reliability and his assessment of the evidence.

[13] For these reasons we dismiss the conviction appeal.

[14] In his sentence appeal, the appellant says that, following the decision of the Supreme Court of Canada in R. v. Nur, 2015 SCC 15, and the striking of mandatory minimum sentences for weapons offences, the sentence of nine years ignored the jump principle and was excessive (the appellant’s longest previous sentence was for two years less a day). He says that the trial judge ignored rehabilitation as a factor in sentencing. Finally, in light of R. v. Summers, 2014 SCC 26, the trial judge erred in awarding only 1:1 credit for pre-trial custody.

[15] We grant leave to appeal sentence and allow the sentence appeal in part.

[16] The respondent accepts that, because of Nur, it falls to this court to determine a fit sentence for the appellant with respect to the conviction under s. 95 of the Criminal Code.

[17] In our view, a five year sentence is fit for this offence. We agree with the Crown’s characterization of these offences as a “toxic combination of circumstances”. The sentence is warranted by the gravity and circumstances of the offences, considered in the light of the appellant’s significant criminal record (consisting of more than 20 convictions) that demonstrates a pattern of continuous criminal behaviour and violence. The record discloses nothing that would contradict the trial judge’s assessment that rehabilitation was not a realistic prospect. The appellant was subject to a number of weapons prohibitions, which were intended to protect the public, including his two young children. In these circumstances, the sentence does not offend the “jump” principle and was a fit sentence.

[18] Since we have dismissed the conviction appeal in respect of all offences, there is no basis to interfere with the concurrent two year sentences in relation to the assault and threatening convictions.

[19] The Crown acknowledges the Summers error. The appellant was entitled to enhanced credit at 1.5:1 for the entire period of his pre-sentence custody. The sentence appeal is allowed to the extent that the appellant is entitled to an additional 180 days credit. His sentence is therefore varied to nine years, less 720 days credit for pre-sentence custody.

[20] The sentence appeal is otherwise dismissed.

“Gloria Epstein J.A.”

“S.E. Pepall J.A.”

“K. van Rensburg J.A.”