Court of Appeal for Ontario

Citation: R. v. Henry, 2016 ONCA 873

Date: 2016-11-17

Docket: C60620

MacPherson, Blair and Watt JJ.A.

Between

Her Majesty the Queen

Respondent

and

Delroy Henry

Appellant

Counsel:

Anne Marie Morphew, for the appellant

Nick Devlin, for the respondent

Heard: November 16, 2016

On appeal from the conviction entered on August 12, 2014 and the sentence imposed on December 15, 2014 by Justice K. Barnes of the Superior Court of Justice, sitting with a jury.

Endorsement

[1] The appellant, Delroy Henry, was convicted of four firearms offences, one count of possession of cocaine for the purpose of trafficking, and one count of fail to comply with recognizance (he pleaded guilty to this count) following a jury trial presided over by Barnes J. of the Superior Court of Justice. He received a global sentence of eight years’ imprisonment less pre-trial custody on a 1.5:1 basis, leaving a total of 57 months to serve. The appellant appeals both conviction and sentence.

[2] The appellant’s first contention on the conviction appeal is that the trial judge erred by failing to instruct the jury with respect to the principles of R. v. W.(D.), [1991] 1 S.C.R. 742, as they applied to the evidence of Tennika Bryce, the appellant’s girlfriend, and Denney Henry, the appellant’s brother.

[3] We are not persuaded by this submission. Bryce testified that she could not say who possessed the gun, ammunition and cocaine found in her residence. Denney Henry testified that all these items belonged to him, not his brother (the appellant). In our view, the trial judge properly linked their testimony to the concept of reasonable doubt. Defence counsel did not seek an explicit W.(D.) instruction and made no complaints about its absence. In our view, such an instruction was not required in the circumstances of this case, especially in light of the fact that the testimony of Bryce (“I don’t know”) and Denney Henry (“it’s all mine”) did not conflict: see R. v. B.D., 2011 ONCA 51, at para. 114.

[4] The appellant’s second submission is that the trial judge erred in his ruling on the Charter s. 8 voir dire.

[5] All of the firearms and drug charges flowed from a search warrant that the police executed at 85 Teal Crest Circle in Brampton. Tennika Bryce lived at this address. The appellant stayed over several nights a week; however, he lived at his father’s home. He did not have his own key to the Bryce residence although he sometimes borrowed her car and used, with Bryce’s permission, the residence key on the car key ring to access the Bryce residence.

[6] Applying the leading case, R. v. Edwards, [1996] 1 S.C.R. 128, the trial judge held that the appellant did not have standing to challenge the search on the basis of s. 8 of the Charter. The appellant contends that the trial judge erred in his ruling. He submits that he was involved in a serious relationship with Bryce, he stayed overnight at the Bryce residence three or four nights a week, he had Bryce’s permission to enter the residence at any time, and he even had designated areas for his personal belongings in the master bedroom.

[7] We do not accept this submission. The trial judge carefully reviewed the relevant evidence on the standing issue. The appellant was not a tenant at the Bryce home. He did not have his own house key. He lived with his father. He used another address for mail. He was not present when the search took place. He did not testify on the voir dire about any privacy interest he might have in relation to the subject property or its contents. All of this led the trial judge to conclude:

The cumulative effect of all the evidence leads me to conclude that Mr. Henry was a very privileged visitor. Mr. Henry has provided no evidence to indicate that he has a reasonable expectation of privacy and neither can such an inference be made from the evidence tendered. The evidence is silent on his subjective expectation.

We agree with this conclusion; it is consistent with Edwards.

[8] On the sentence appeal, the appellant submits that the trial judge erred by not giving enhanced credit for pre-trial custody, beyond the 1.5:1 credit he gave, because the appellant was subject to particularly harsh conditions (extensive periods of lockdown) during his time at Maplehurst.

[9] We are not persuaded by this submission. In this case, very experienced counsel agreed that the appellant should receive credit for pre-trial custody on a 1.5:1 basis. Moreover, defence counsel explicitly submitted that the lockdown factor might be considered by the trial judge in the context of the possibility of imposing concurrent sentences. Finally, as in R. v. Duncan, 2016 ONCA 754, at para. 11, there was “no evidence of any adverse effect flowing from the locked down conditions”.

[10] The appeal from conviction and sentence is dismissed.

“J.C. MacPherson J.A.”

“R.A. Blair J.A.”

“David Watt J.A.”