R. v. Flannigan, 2021 ONCA 174

COURT OF APPEAL FOR ONTARIO

DATE: 20210322 DOCKET: C65653

Rouleau, Pepall and Roberts JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Matthew Flannigan Appellant

Counsel: Laura Remigio, for the appellant Frank Au, for the respondent

Heard: March 16, 2021 by video conference

On appeal from the conviction entered on March 23, 2017 and the sentence imposed on June 22, 2017 by Justice J. Christopher Corkery of the Superior Court of Justice, sitting with a jury.

REASONS FOR DECISION

[1] The appellant appeals from his convictions for using a firearm in the commission of a robbery, using a firearm in the commission of an aggravated assault, and possession of a firearm while prohibited. He also seeks leave to appeal his sentence of 9 years less credit of 54 months and 21 days for pre-sentence custody.

[2] The appellant’s trial arose from a home invasion. It proceeded before a judge and jury. The key issue was identity and defence counsel advised the jury that the sole issue at trial “couldn’t be more simple.” The jury reached a verdict after four hours.

[3] After the jury had rendered its verdict, a Court Services Officer (“CSO”) reported to the presiding judge on comments made by a juror.

[4] The trial judge conducted a post-verdict inquiry at which that CSO and two other CSOs were questioned. Three days before the jury deliberations started, a juror had told the CSO that she did not want to stay overnight. She had plans for the weekend and she did not want to change them. The CSO replied that “It’s the process and it’s just the way it is. You come prepared to stay.” On Thursday, the juror came “prepared to stay”, carrying “an overnight bag” with her when she came to court. The trial judge declined to have any of the jurors testify at the post-verdict inquiry. Hearing from that juror would be of no assistance and the expanded inquiry ran the risk of “encroaching on the protected jury secrecy.”

[5] The appellant submits that the trial judge erred by failing to allow a fulsome post-verdict inquiry by declining to call the jurors. The comments of the juror were extrinsic and not intrinsic to the jury deliberations and gave rise to a reasonable apprehension of bias. In addition, he submits that this court ought to have a record to determine whether there was a reasonable possibility that the information provided by the juror had an effect on the verdict.

[6] We do not accept the appellant’s submission that any further inquiry was required. The trial judge concluded that the record was sufficient and we see no error in this determination.

[7] The appellant takes no issue with the conduct of the trial or the jury instructions. The law presumes that jurors will perform their duties impartially and according to their oath and follow the instructions given. As instructed, the juror did come to court prepared to stay and brought an overnight bag. The evidence disclosed no jury impropriety. The strong presumption of juror impartiality has not been rebutted. An informed person, viewing the matter realistically and practically and having thought the matter through, would not think that it was more likely than not that the juror, consciously or unconsciously, had failed to decide the case fairly. See Committee for Justice & Liberty v. Canada (National Energy Board) (1976) , [1978] 1 S.C.R. 369 (S.C.C.), at p. 394 and R. v. Dowholis , 2016 ONCA 801 at para. 19.

[8] For these reasons, we dismiss the conviction appeal.

[9] As for the sentence appeal, the appellant submits that the 9-year sentence was demonstrably unfit and was disproportionate relative to the sentences of his co-accused. He requests a sentence of 6.5 years less pre-sentence credit.

[10] This was a serious home invasion and the appellant shot the victim. The trial judge considered the appellant’s age of nearly 23 at the time of the offence, his criminal record and the gap between his last conviction and these ones, his family support, and his prospects for rehabilitation. He balanced the principles of sentencing, and his emphasis on deterrence and denunciation was not misplaced given the nature of the offences and the other factors he considered.

[11] The distinctions in sentences with the three other co-accused were justified given that, among other things, they all pleaded guilty and had played a lesser role in the crime than the appellant. Importantly, the appellant was the only one convicted of using a handgun to commit robbery and aggravated assault. Two of the others were sentenced on the basis that they did not know the appellant had a real firearm, and the third on the basis that the plan did not involve firearms. We also note that the appellant was in breach of a firearm prohibition order.

[12] Although the trial judge initially erred in his oral reasons by saying that the appellant had two prior robbery convictions, he subsequently corrected this and said this fact made no difference to his conclusion or reasons. The sentence was fit.

[13] The appeal is dismissed. Leave to appeal sentence is granted but the sentence appeal is dismissed.

“Paul Rouleau J.A.”

“S.E. Pepall J.A.”

“L.B. Roberts J.A.”