Court of Appeal for Ontario

Date: 2018-11-30 Docket: C63843

Judges: Rouleau, Watt and Huscroft JJ.A.

Between

Her Majesty the Queen Respondent

and

Andre Callaghan Appellant

Counsel

For the Appellant: Anil K. Kapoor and Ian B. Kasper

For the Respondent: Jill Cameron

Heard and Released Orally: November 26, 2018

Appeal Information

On appeal from the convictions entered by Justice Nola Garton of the Superior Court of Justice on July 29, 2016, with reasons reported at 2016 ONSC 2764, and from the sentence imposed on March 24, 2017, with reasons reported at 2017 ONSC 1853.

Reasons for Decision

[1] The appellant was convicted of various firearm and driving offences after he discharged a handgun on a residential street and later led police on a high-speed chase. He appeals from his firearm convictions and his sentence of 10 years.

[2] On the conviction appeal, the appellant argues that the trial judge erred in her approach to the evidence. In the appellant's submission, she approached the evidence in a piecemeal fashion, misapprehended parts of that evidence, and engaged in improper speculation to account for dissimilarities between the description of the shooter and the appearance of the appellant. The appellant further submits that the trial judge used her disbelief of his videotaped statement as circumstantial evidence of guilt.

[3] We reject this ground of appeal. We see no basis for the appellant's suggestion that the trial judge erred in her approach to and assessment of the evidence or that she engaged in speculation to bridge evidentiary gaps. In effect, the appellant seeks to have this court retry the case.

[4] The trial judge's extensive reasons demonstrate a meticulous and detailed review of all the evidence. She carefully weighed the competing accounts conveyed in the trial witnesses' testimony and the appellant's statement to police. The trial judge addressed the inconsistencies in the evidence and concluded, based on the record as a whole, that they did not raise a reasonable doubt that the appellant was the shooter. Her findings in this regard disclose no error.

[5] We also reject the suggestion that the trial judge used her disbelief of the appellant's statement to police as circumstantial evidence of guilt. Her assessment of the credibility and reliability of the appellant's statement to police was made in the context of a W.(D.) analysis. In that portion of her reasons, the trial judge explains why she rejected the exculpatory aspects of the appellant's statement and why the statement did not raise a reasonable doubt.

[6] The appellant further argues that the verdict was unreasonable. We disagree. Although this was a circumstantial case, there was substantial evidence pointing to the appellant as the shooter. The critical evidence tying the appellant to the shooting was the evidence of an independent witness who saw a person put something into the bushes after apparently discharging a firearm, compounded with the subsequent recovery from those bushes of a bag containing a gun and the appellant's identification and cellphone. The appellant did not testify.

[7] We see no basis to interfere with the trial judge's conclusion that the appellant's guilt was the only reasonable inference to be drawn from the totality of the evidence.

[8] On the sentence appeal, the appellant argues that the sentencing judge misapprehended the evidence in two respects. First, she found that the appellant attempted to fire a third shot but was prevented from doing so because the gun jammed. This, in the absence of evidence suggesting that the gun in fact jammed. Second, the sentencing judge found that the appellant's denial of gang involvement affected his rehabilitative prospects when, in the appellant's submission, there was no evidence that he was in fact a gang member.

[9] The appellant also argues that the two counts of possessing a firearm while prohibited – each of which was particularized to a distinct prohibition order – should not have been sentenced consecutively. Assuming without deciding that the sentencing judge committed the alleged errors, we consider the overall sentence imposed to be clearly fit given the serious nature of the offences and the appellant's criminal record. As a result, we see no basis to interfere with the sentence imposed by the sentencing judge.

[10] In conclusion, therefore, the conviction appeal is dismissed. Leave to appeal sentence is granted but the sentence appeal is also dismissed.

Paul Rouleau J.A. David Watt J.A. Grant Huscroft J.A.