COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Elliott, 2020 ONCA 589

DATE: 20200921

DOCKET: C68209

Fairburn A.C.J.O., MacPherson and Coroza JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Shea Timothy Elliott

Appellant

Counsel:

Shea Elliott, acting in person

Nicole Rivers, for the respondent

Heard: September 8, 2020 by video conference

On appeal from the convictions entered on July 31, 2019 and the sentence imposed on February 21, 2020 by Justice Deborah J. Austin of the Ontario Court of Justice.

REASONS FOR DECISION

[1] In July 2019, the appellant was convicted of possession of a drug (fentanyl) for the purpose of trafficking, possession of drugs (x3), and four firearms offences by Austin J. of the Ontario Court of Justice following a trial in Sarnia.

[2] In February 2020, the appellant received a global custodial sentence of 660 days, less pre-trial credit of 140 days, plus one year of probation.

[3] The appellant appeals his convictions and the sentence.

[4] The charges arose from a search of the appellant’s residence of August 8, 2018. The evidence against the appellant was obtained in the course of the execution of a search warrant by Sarnia Police Services. At trial, the appellant admitted that the address searched was his residence. However, he testified that there had been a large party at the residence on the weekend preceding the search and that drugs had been consumed by many party attendees. The attendees must have left the dugs the police found several days later.

[5] The trial judge bluntly rejected the appellant’s testimony on this point:

[H]is evidence claiming no knowledge of the drugs found by the police during the search and his claim that they must have merely been items left over from a party held the weekend before the search, are simply not plausible, believable or capable of being true.

[6] On this appeal, the appellant raises the same issue. We agree with the trial judge. The amount of drugs and the locations inside the residence where they were found amply support the trial judge’s conclusion on the various drug charges.

[7] The appellant also claims that, as a self-represented litigant, he did not receive adequate assistance from the trial judge. The record does not support this claim.

[8] The appellant made no submissions about the convictions on the various firearms charges. Even so, the respondent concedes that the conviction on count 8 of the information cannot stand because it was particularized as involving a “prohibited weapon: to wit a gun” pursuant to s. 91(2) of the Criminal Code. On all the other firearms counts, we agree with the trial judge’s analysis and conclusions.

[9] On the sentence appeal, we see no basis for interfering with the global sentence of 660 days, less pre-trial credit of 140 days, plus one year of probation.

[10] The conviction appeal is allowed with respect to count 8 of the information and an acquittal is entered. On all the other counts, the conviction appeal is dismissed. The sentence appeal is dismissed.

“Fairburn A.C.J.O.”

“J.C. MacPherson J.A.”

“S. Coroza J.A.”