Court of Appeal for Ontario

Date: 2019-03-21

Docket: M50238 (C66597)

Motion Judge: Lauwers J.A.

Between

Her Majesty the Queen Respondent (Respondent)

and

Abadula Biya Applicant (Appellant)

Counsel

For the Applicant: Najma Jamaldin

For the Respondent: Christine Bartlett-Hughes

Heard: March 15, 2019

Reasons for Decision

Conviction and Sentencing

[1] The applicant, Abadula Biya, was convicted of two counts of careless storage of a firearm/ammunition, two counts of possession of a firearm/ammunition unauthorized, possession of a firearm knowing, possession as the occupant of a vehicle, possession of a loaded prohibited firearm, and possession of a Schedule 1 substance for the purpose of trafficking. He was sentenced to four years' imprisonment less time served on December 14, 2018. He appeals conviction and sentence.

Bail Compliance History

[2] The applicant was arrested and charged on September 11, 2015. He was released on bail on October 14, 2015 and complied with his bail for over three years without incident before sentencing on December 14, 2018. I am satisfied that he would surrender himself into custody in accordance with the terms of any bail order. I do not consider him to be a flight risk or a safety risk.

Crown's Position on Detention

[3] The Crown argues that the applicant's detention is necessary in the public interest. The Crown points to the seriousness of the offences on which the applicant was convicted and, particularly, his apparent willingness to use guns.

Alternate Suspect Theory

[4] The Crown argues that the appeal has no merit. The applicant argues that the trial judge failed to give adequate consideration to the defence's alternate suspect theory, which emerges on the following facts. At the time of his arrest, the applicant was seated in the driver's seat of a vehicle. Beside him in the passenger seat was Simeon George-McCool. In the rear seat immediately behind the driver's seat was the applicant's gym bag. Sitting in the back seat beside the gym bag was Jevon Moore.

[5] The applicant resisted arrest but was quickly subdued. The gym bag was retrieved from the car and searched. In it the officer found some personal items belonging to the applicant, a firearm, a magazine for the firearm containing several bullets and a pill bottle containing over 25 capsules of MDEA.

[6] At the time of the arrest the applicant had a few grams of marijuana in his pocket and $1,725 in cash. Mr. George-McCool had some cocaine and another Schedule 1 drug on him, along with $1,050 in cash. Mr. Moore had $1,080 in cash on him but no drugs or drug packaging.

[7] Mr. Moore was charged but charges were withdrawn, and he was not called as a witness at the trial of the applicant and Mr. George-McCool, both of whom were convicted.

Grounds of Appeal

[8] The applicant challenges the verdict on two grounds. First, he argues that the trial judge "erred on the issue of the legal test on circumstantial evidence and its application to the facts in the case." He asserts that she "made a bald ruling that there could be no other inference available from the evidence other than Biya had exclusive knowledge and control of the firearm, ammunition, and MDEA". The applicant submits that the trial judge "did not consider the facts of the case and did not apply the legal test for circumstantial cases recently outlined by the [Supreme Court of Canada] in R. v. Villaroman, 2016 SCC 33" (emphasis in original). The second ground is that the trial judge "erred on the issue of the admissibility of the either by the Crown or defence."

Criminal Record Evidence

[9] The defence tendered Mr. Moore's lengthy criminal record "as a 'business record' for its truth and for propensity evidence to support the defence theory that a reasonable inference on the facts was that Mr. Moore had exclusive knowledge and control of the loaded firearm and MDEA ultimately located in [the] gym bag." The applicant asserts that the trial Crown objected to the admissibility of the criminal record "on the grounds that the criminal record did not constitute a 'business record', and that amounted to unreliable hearsay." Alternatively, the trial Crown submitted that if the record were admitted into evidence, "little weight should attach to it because it was somehow unreliable." The ruling on the voir dire was deferred to the end of the case, but the reasons for judgment do not disclose whether the trial judge ruled the criminal record as admissible or not, although she did refer to Mr. Moore's record.

Trial Judge's Reasoning

[10] The applicant points to two excerpts from the trial judge's decision. First, she said:

I do not accept the arguments of counsel for Mr. Biya, which suggests that Mr. Moore had the opportunity and propensity to have had the firearm, ammunition, and drugs on his person and put them surreptitiously into the gym bag when the police approached the vehicle. There is no real evidence for this, and I find the proposition to be speculative.

[11] The difficulty with this statement is in the trial judge's apparent ambivalence about the admission of the lengthy conviction record of Mr. Moore. It showed he had a propensity to carry firearms and traffic in Schedule 1 drugs. The alternate suspect theory was not, the applicant asserts, mere speculation.

[12] Second, the trial judge said:

I am not satisfied that this raises a reasonable inference consistent with innocence. In fact, I am not satisfied that it would have been possible within the timeframe from the police approaching the vehicle to Mr. Moore and Mr. George-McCool exiting the vehicle, for Mr. Moore to have taken all of the items from his person and put them in the bag, and particularly taking the magazine out of the handgun and stowing the handgun, ammunition, and drugs at the bottom of the bag under all of the other contents. I do not find this to be feasible and reject this argument.

[13] The applicant asserts that "it is reasonably possible that the firearm, ammunition and pill bottle were slipped into the bag by Moore between the time Mr. Biya placed the gym bag on the rear seat and the time he is arrested." On this basis, the applicant asserts that the trial judge "wrongly concluded that the only reasonable conclusion available on all the evidence, was that Biya had knowledge and control of the firearm/ammunition and pill bottle located in the gym bag and that it was not possible for Moore to have put those items (unbeknownst to Biya) in the bag during the time that he sat alone next to the bag while in the rear of the vehicle" (emphasis in original).

Motion Judge's Analysis

[14] Based on the record that I have currently available to me, it cannot be said that the grounds of appeal are frivolous, particularly with respect to the application of the argument relating to R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, and the role of Mr. Moore. While the predicate offences are obviously serious, based on the applicant's history of bail compliance and the surety plan put forward, I am satisfied that he will comply with all terms of release. Standing on its own, the nature of the offence does not justify detention on public interest grounds: R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 20.

Decision

[15] In the circumstances the application for bail pending appeal is allowed on the conditions set out in the draft order agreed to by the parties.

P. Lauwers J.A.