COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Thompson, 2020 ONCA 361

DATE: 20200610

DOCKET: C66298

Hoy A.C.J.O., MacPherson and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Adrian Thompson

Appellant

Breana Vandebeek, for the appellant

Andrew Hotke, for the respondent

Heard: In-writing

On appeal from the conviction entered by Justice Sandra Martins of the Ontario Court of Justice on August 16, 2018, and the sentence imposed on December 5, 2018.

REASONS FOR DECISION

[1] On November 24, 2017, the appellant was arrested following the execution of a search warrant on his vehicle. A loaded firearm, ammunition and drugs were located in a black bag (‘man purse’) on the floor of the rear passenger seat.

[2] Following a trial in the Ontario Court of Justice, Justice Martins convicted the appellant of several firearm and drug offences. She imposed a sentence of seven and a half years less time for pre-trial custody (just over a year and a half). She also imposed a victim fine surcharge of $1,600.

[3] The appellant appeals the conviction and the sentence.

[4] The central issue at trial was whether the appellant had knowledge of the firearm, ammunition and drugs in the black bag in the rear seat area of his car. The appellant testified that he did not know that these items were inside the black bag that he admitted belonged to him. He believed that his ex-brother-in-law, Jawara, had placed them in the vehicle.

[5] The trial judge disbelieved the appellant on this crucial point. In the course of extensive reasons for this disbelief, the trial judge said:

Further and even more telling, while Mr. Thompson is legally entitled to remain silent and have the Crown prove the charges beyond a reasonable doubt, when he chooses to testify, I am entitled to draw inferences from his evidence that are illogical and contrary to common sense.

In this case, the inference that Mr. Thompson is making in his testimony is that Jawara, the person who had access to the Honda while Mr. Thompson and his children were inside, must have put the loaded gun, the heroin and the MDMA in his man purse. If this were true, you would expect that Mr. Thompson would have been outraged that his daughter’s uncle and someone he trusted, placed a loaded firearm within reach of his six year old daughter in the backseat of the car. The fact that he made no comment about any outrage in this regard is another area of his evidence that causes me to disbelieve completely his story that Jawara put the drugs in the car in an area that he was completely unaware of. This portion of his evidence, again, was contrary to logic and I find it completely contrived to try and paint a period of time when someone may have planted a loaded firearm and drugs into his man purse; extremely valuable items for no apparent reason. [Emphasis added.]

[6] The appellant contends that the emphasized portion of this passage amounts to a judicial ‘ambush’ of the appellant because it criticizes him for something (i.e., his non-reaction to Jawara’s conduct) that was not put to him when he was testifying.

[7] We do not accept this submission. It is completely belied by the fact that the appellant testified that he trusted Jawara and that he specifically asked him to put cocaine in his car and did not feel any need to ask him where inside the car he had put it. Accordingly, the trial judge’s inference flowed logically from the appellant’s own testimony; he clearly had no concern about what was in a car in which his daughters were about to be passengers.

[8] The appellant’s second ground of appeal is that the trial judge erred in rejecting the appellant’s evidence because of the value of the drugs and firearm in the car.

[9] In her reasons, the trial judge said:

In this case, there is a large quantity of valuable drugs and a loaded firearm. I find it is a reasonable inference that nobody would leave these valuable items in Mr. Thompson’s man purse without him being fully aware of their presence.

One would not just place these valuable items in Mr. Thompson’s man purse for no reason.

Therefore, having rejected the inference that someone other than Mr. Thompson put those items in his man purse, I find that the Crown has proven beyond a reasonable doubt that Mr. Thompson had both the knowledge and control over these items in his man purse and as such, he was in possession of the loaded handgun and all of the drugs located during the search of his car.

[10] The appellant submits that there was no evidentiary basis for the trial judge’s conclusion that the drugs and firearm in the man purse were “valuable items” that a third party (Jawara) would not leave in the car without the appellant’s knowledge. The appellant asserts that there needed to be expert evidence about the value of the drugs and firearm if this inference were to be drawn.

[11] We disagree. In a case in which a loaded firearm was found in the back of a car after a traffic stop, this court held that it was open to the trial judge to rely on the common sense inference that “parties generally do not hide their valuables in someone else’s car, unless they know and trust the owner of the car to look after the valuables for them”: R. v. Bonilla-Perez, 2016 ONCA 535, at para. 16. Implicit in this holding is the Court’s acceptance that it is a matter of common sense that guns are valuable items. The same is true of drugs: R. v. Pannu, 2015 ONCA 677, at para. 157.

[12] The appellant’s third ground of appeal is that the trial judge erred in her assessment of the testimony of Constable Rondinelli who was one of the two police officers who searched the appellant’s car. The trial judge did not accept Rondinelli’s testimony that he found the appellant’s wallet in the man purse; rather she accepted the appellant’s evidence that he always put his wallet in the front seat console area. The appellant says that the trial judge should have gone farther and concluded that Rondinelli had in fact engaged in deliberate misconduct by planting the wallet in the purse with the firearm and drugs.

[13] We do not accept this submission. The trial judge heard Constable Rondinelli’s testimony. She accepted some of it (much of which was confirmed by physical and video evidence) and did not accept it with respect to the location of the appellant’s wallet. This is precisely the domain in which a trial judge is best positioned to evaluate the evidence.

[14] Finally, the appellant challenges the trial judge’s pre-trial Charter s. 8 ruling in which she held that although there were not reasonable and probable grounds for the warrant authorizing the search and seizure of the firearm, ammunition and drugs, this evidence was admissible under s. 24(2) on the basis of the Grant analysis: R. v. Grant, 2009 SCC 32.

[15] This final argument rests largely on the appellant’s argument that the trial judge erred in not finding that Rondinelli engaged in deliberate misconduct in the course of searching the appellant’s car by planting the wallet in the purse with the firearm and drugs The appellant submits that the trial judge should have found at trial that Rondinelli engaged in deliberate misconduct, and that finding should have caused him to revisit his pre-trial Charter ruling. We have rejected the appellant’s argument that the trial judge erred by not finding that Rondinelli engaged in deliberate misconduct. We can see no basis for interfering with the trial judge’s analysis and balancing of the Grant factors.

[16] The appellant appeals his sentence on two bases. First, he argues that the trial judge failed to regard the police infringement of his Charter s. 8 right as a mitigating factor warranting a reduction in the sentence she imposed.

[17] We do not accept this submission. The trial judge’s decision not to reduce the sentence in light of her findings on the Charter motion does not amount to an error in principle. She was entitled to find that they did not warrant mitigation. Her finding was reasonable given the lack of any clear connection between the Charter s. 8 breach and the circumstances of the offence and the offender: see R. v. Foster, 2018 ONCA 53, at para. 135.

[18] Second, based on fresh evidence filed on appeal, we understand the appellant to argue that his sentence should be reduced because of the COVID-19 pandemic. Based on the information about the appellant personally (he says only that he has asthma) and about the institution, Beaver Creek Medium Institution (where there are no indications about COVID-19 cases), we are not persuaded by the appellants evidence that the we should intervene and disturb an otherwise fit sentence. Moreover, this is an issue that can be considered effectively at the appellants parole hearing, for which he is eligible later this month.

[19] The appeal is dismissed on all issues but one. The victim surcharge of $1,600 is set aside: see R. v. Boudreault, 2018 SCC 58 and R. v. Stockton, 2019 ONCA 300.

“Alexandra Hoy A.C.J.O.”

“J.C. MacPherson J.A.”

“M. Tulloch J.A.”```