COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Walters, 2020 ONCA 825

DATE: 20201217

DOCKET: M52014 (C68871)

Brown J.A. (Motion Judge)

BETWEEN

Her Majesty the Queen

Respondent

and

Christian Walters

Applicant (Appellant)

Counsel:

George (Knia) Singh and Kyle Corbin, for the applicant

Katie Beaudoin, for the respondent

Heard: December 10, 2020 by video conference

REASONS FOR DECISION

[1] The applicant, Christian Walters, applies for bail pending appeal pursuant to s. 679(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46.

[2] On November 7, 2019, the applicant was convicted of six possession of firearms-related offences and one drug-related offence. On December 4, 2020, he was sentenced to 38-months incarceration with a reduction of 22 months for pre-sentence custody and restrictive bail conditions. The applicant appeals both his conviction and sentence.

THE CROWN’S BASIS FOR OPPOSING THE APPLICATION

[3] The Crown concedes that the applicant satisfies the first two grounds for bail pending appeal, set out at ss. 679(3)(a) and (b) of the Criminal Code.

[4] The Crown opposes the bail application on the third ground, submitting that the applicant has failed to demonstrate that his detention is not necessary in the public interest: Criminal Code, at s. 679(3)(c). The Crown submits that the nature of the applicant’s offences raises significant public safety concerns. Further, the enforceability interest outweighs the reviewability interest given the low strength of his grounds of appeal. On this basis, the Crown contends that the applicant has not established the third ground under s. 679(3).

ANALYSIS

[5] I am not persuaded by the Crown’s submission.

[6] Mr. Walters is 29 years old. He has no prior criminal record and complied with his pre-trial bail conditions. The surety who acted for his pre-trial bail is willing to act again. She has known the applicant for 15 years. The sentencing judge noted that the surety had not experienced any difficulty with the applicant.

[7] That said, I acknowledge that the offences for which the applicant was convicted are serious. As part of an investigation into other offences, on June 18, 2018, the police executed a search warrant at the apartment of the applicant’s then girlfriend. The applicant spent about 70% of his time at the apartment. In a laundry hamper in the bedroom closet, the police found a loaded .40 caliber handgun, a bag with 18 rounds of ammunition, and a digital scale. In a night table in the bedroom, the police found a magazine loaded with 15 rounds, a digital scale, and 2 baggies containing 7.8 grams of cocaine. The Crown submits that the applicant’s possession of a gun and ammunition in an apartment building indicates that his release would give rise to public safety concerns.

[8] However, the case against the applicant was one of constructive possession of the seized items based upon circumstantial evidence. There was no direct evidence from a witness that the applicant placed the items in the laundry hamper or night table or knew that they were there. Nor was there any forensic DNA or fingerprint evidence that linked the seized items to the applicant or his girlfriend.

[9] As well, there was evidence that third-party suspects had access to the apartment. The applicant’s girlfriend testified that on June 12, 2018 – two days before she and the applicant went to his mother’s cottage – she had done a thorough cleaning of the apartment, including the laundry hamper and the shelf of the night table, but had not seen the items. The applicant and his girlfriend were at the cottage from June 14 until June 16, 2018. On their return, they found the applicant’s brother and his girlfriend asleep in the apartment. There was also internet-based evidence that the suspect in a June 14, 2018 shooting, T’Quan Robertson, had been in the apartment during the applicant’s absence on June 15 and 16. Video files showing Mr. Robertson holding a gun identical to the one seized were filed in evidence.

[10] The trial judge gave extensive reasons. But the applicant submits, citing R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, that the trial judge erred in concluding that the applicant’s guilt was the only reasonable inference available on the totality of the circumstantial evidence. The applicant points to the following to support this submission:

(i) the absence of the applicant and his girlfriend from the apartment for several days;

(ii) the presence of third parties in the apartment during their absence, one of whom was the suspect in a shooting and was shown to have had possession of a gun identical to that found in the apartment; and

(iii) the circumstantial nature of the evidence.

[11] I am satisfied that the applicant has demonstrated that his release would not pose a substantial risk to public safety: R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 39. He has complied with his pre-trial bail conditions, his surety is prepared to act once again, and the case against him was one of constructive possession based on circumstantial evidence.

[12] On the third ground, the merits of the applicant’s appeal fall to be assessed as part the final balancing of factors described in Oland, at paras. 47 to 49. The applicant’s grounds of appeal surpass the minimum standard required to meet the “not frivolous” criterion. The combination of the circumstantial nature of the case against the applicant and the presence of third parties in the apartment at material times afford arguable grounds of appeal with respect to the trial judge’s application of the Villamoran principle.

Conclusion

[13] There is no doubt that the offences for which the applicant was convicted are serious. But, as I have found, he does not pose a substantial risk to public safety. Balancing these factors, I conclude that the applicant has demonstrated that his detention is not necessary in the public interest.

DISPOSITION

[14] Accordingly, I grant the application for bail pending appeal.

[15] As to the terms of release, the parties have worked out a consent order. I am satisfied that the terms are reasonable, with one exception – the time in which to perfect the appeal.

[16] The applicant has approximately 16 months left to serve on his sentence. He was represented at trial. Just over a year elapsed between the date of the applicant’s conviction and the initiation of this application. Yet, no steps were taken to order the trial transcripts during that lengthy period of time. Given that circumstance, I am not prepared to approve the usual condition of pursuing the appeal with due diligence. A perfection date needs to be imposed so that this appeal will be heard well in advance of the expiration of the applicant’s sentence.

[17] Accordingly, I would vary condition 3 of the draft order to read: “You must perfect the appeal by April 30, 2021.”

“David Brown J.A.”