COURT OF APPEAL FOR ONTARIO
DATE: 20210205 DOCKET: C66493
Strathy C.J.O., Gillese and Watt JJ.A.
BETWEEN
Her Majesty the Queen Respondent
and
Siaka Camara Appellant
Counsel: Siaka Camara, acting in person Erin Dann, duty counsel Benita Wassenaar, for the respondent
Heard: July 22, 2020 by videoconference
On appeal from the conviction entered by Justice Carole J. Brown of the Superior Court of Justice, sitting with a jury, on August 25, 2018, and from the sentence imposed on January 18, 2019 with reasons for sentence reported at 2019 ONSC 115.
Watt J.A.:
[1] Siaka Camara (the appellant) went to a club in the Distillery District with some friends.
[2] After last call, the appellant did not want to leave the club and got into a scuffle with one of the staff members. Other club staff and some of the appellant’s friends intervened. Some words were exchanged. The appellant and his friends left the club.
[3] Later that night, as club staff were leaving the building, they saw the appellant walking towards them. He was alone. A staff member noticed the appellant reaching towards the waistband of his pants. Staff members tackled the appellant to the ground. One of the them recovered a handgun. Police attended and arrested the appellant.
[4] The appellant was tried on a multi-count indictment containing several firearms, assaults, and related offences. The jury found the appellant guilty of the firearms offences and of one count of assault. The trial judge imposed a global sentence of imprisonment of nine years, less credit of four and one-half years for time spent in pre-sentence custody.
[5] The appellant appeals. He asks that we set aside his convictions because the trial judge erred in admitting hearsay and bad character evidence and excluding evidence of an exculpatory utterance he made. If his appeal from conviction fails, he asks that we reduce his sentence.
[6] These reasons explain my conclusion that the appeals against conviction and sentence should be dismissed.
The Background Facts
The Party
[7] On January 2, 2016, a party took place at a licenced club in the Distillery District in Toronto. Three men – J.K., R.M., and S.F. – worked as security at the club.
The First Altercation
[8] At 2:00 a.m., bar service ended. The music in the club was turned off, the lights on. Staff began to take the steps necessary to close up. By 2:45 a.m., most patrons had left the building.
[9] The appellant did not want to leave despite encouragement from his friends and club staff that he do so. He got into a scuffle with S.F. J.K. and R.M. went to assist their colleague. The appellant took a swing at J.K., but did not hit him. R.M. intervened to de-escalate the confrontation.
[10] J.K. did not hear the appellant say anything during this altercation. However, he recalled that some of the appellant’s friends said, “You don’t want to mess with this guy.” and “He’ll come back and shoot”, or something like that.
[11] J.K. asked another member of staff to call the police. When officers arrived, J.K. advised them about the comments indicating a return and a gun.
[12] R.M. gave evidence that he tried to intervene in the scuffle between the appellant and S.F., as did the appellant’s friends who pulled him away. The appellant described himself as a “bad boy”. He said that he would “get his thing and come back and settle this”. R.M. also heard comments from the appellant’s friends who described the appellant as a “bad boy”. These friends characterized him as “the real thing…like the real deal”. They added “You don’t know who he is” and said that the appellant would go get his “thing” and come back.
[13] S.F. did not testify at trial.
[14] The appellant left the club with his friends.
The Appellant Returns
[15] Later that night, as J.K., R.M., and S.F. were leaving the club, they saw the appellant approaching them. A security guard that provided services to businesses in the Distillery District was also around. R.M. characterized the appellant as walking towards them “aggressively”. R.M. started running towards the appellant yelling “Grab his hands”.
[16] R.M. recalled that when he grabbed the appellant’s hands, the appellant tried to reach down into his pants. The appellant and R.M. both fell. They continued to fight. S.F. yelled “There’s a gun”. R.M.’s focus was on the appellant’s hands. He did not see the gun until S.F. picked it up off the ground.
[17] According to J.K., as he approached, he saw the appellant reach towards the waistband of his pants. J.K., perhaps R.M. as well, reached for and grabbed the appellant’s hand. A brief tussle followed. The men grounded the appellant. S.F. came over. He reached towards the appellant, then said “I got the gun”.
[18] J.K. did not see how or where S.F. got the gun. But J.K. did see S.F. take the gun and put it on an outdoor table nearby. The others sat on the appellant until police arrived.
[19] The security guard recalled that he saw the butt or handle of a gun sticking out of the appellant’s pants. R.M. tried to grab the gun, but the guard could not tell which staff member removed the weapon from the appellant’s waistband. S.F. put the gun on a patio table. The security guard called 911.
The Appellant’s Utterances
[20] At the preliminary inquiry, J.K. testified that when S.F. yelled that he got the gun, the appellant said, “You guys are trying to set me up”.
[21] During the struggle, the security guard heard the appellant say “Get off of me. I didn’t do anything.”
[22] Trial counsel for the appellant (not counsel on the appeal) sought to elicit these remarks through the security guard under the res gestae exception to the hearsay rule. The trial judge declined to admit the evidence unless the appellant testified at trial, which he did not do.
The Grounds of Appeal
[23] On the appeal from conviction, the appellant alleges the trial judge erred:
i. in admitting inadmissible hearsay and bad character evidence; and
ii. in failing to admit the appellant’s exculpatory utterances when subdued by club staff and on recovery of the handgun.
[24] On the appeal from sentence, the appellant contends that the sentence imposed is excessive and should be reduced.
The Appeal from Conviction
[25] Both grounds of appeal raise issues about the admissibility of evidence at trial. The first has to do with evidence that was received without objection. The second relates to evidence proposed for admission, but excluded.
Ground #1: Hearsay and Bad Character Evidence
The Bad Character References
[26] During her case, the trial Crown (not counsel on appeal) elicited evidence from J.K. and R.M. about remarks made by the appellant and his friends as they were about to leave the club after the appellant’s first scuffle with the club staff.
[27] Experienced trial counsel for the appellant did not object to the admissibility of the appellant’s threats or to similar remarks attributed to his friends.
The Hearsay Comments
[28] The trial Crown also elicited evidence of words spoken by S.F. when he recovered the gun from the appellant. S.F. did not testify at trial.
[29] Trial counsel also did not object to the admissibility of any evidence about the recovery of the gun.
The Closing Addresses of Counsel
[30] In her closing address, the trial Crown referred to the appellant’s threat to get his “thing”, return, and settle “this”. She added, on one occasion, “And the people he was with warned the staff about him too”. She also mentioned the “I got the gun” remark J.K. attributed to S.F.
[31] In his closing address, defence counsel took the position that the evidence of threatening remarks R.M. attributed to the appellant was neither reliable nor credible. He submitted that the better evidence was that of J.K. who was well-positioned to hear anything the appellant said but heard nothing of the kind.
[32] Defence counsel acknowledged that the appellant’s friends made comments about not messing with the appellant, but noted that the appellant did not do so himself.
[33] In connection with the recovery of the handgun, defence counsel pointed to the failure of the Crown to call S.F. as a witness. There was no evidence about the origin of the gun, and no forensic evidence, such as fingerprints or DNA, connected it to the appellant. The case for the Crown fell well short of proving any of the gun charges beyond a reasonable doubt.
The Charge to the Jury
[34] In her charge to the jury, the trial judge included a review of the evidence of each witness who testified. She referred to J.K.’s testimony about the comments of the appellant’s friends as the first altercation ended. She pointed out that J.K. did not hear the appellant say anything. She also referred to J.K.’s recollection of having heard S.F. say “I have the gun” as the club staff subdued the appellant when he returned alone to the club.
[35] In her recital of the evidence of R.M., the trial judge referred to his testimony about the remarks of the appellant’s friends at the end of the first altercation and the “gun, gun” comment of S.F. at the conclusion of the second incident.
[36] In her discussion of the essential elements of possession of a weapon for a purpose dangerous to the public peace, carrying a concealed weapon, and threatening S.F., the trial judge briefly summarized the evidence of the appellant’s threats and similar remarks by his friends. She explained to the jury that the evidence was relevant for them to consider in deciding whether the Crown had proven the appellant’s guilt on those counts beyond a reasonable doubt. After an objection by trial counsel, she provided a curative instruction that the statements were for narrative or informative value only, and not for the truth of their contents.
[37] The jury found the appellant guilty of carrying a weapon for a purpose dangerous to the public peace and of carrying a concealed weapon, but not guilty of threatening S.F.
The Arguments on Appeal
[38] The appellant takes issue with the admissibility of his friend’s threatening remarks near the end of the first incident. He advances two principal challenges.
[39] First, these statements violate the hearsay rule. They were out of court statements made by persons not called as witnesses and tendered for the truth of what was said.
[40] Second, the substance of this evidence is that the appellant is a person of bad character who resorts to violence as a method of dispute resolution. The reception of this evidence undermined the fairness of the trial, not only by its introduction, but also because the trial judge instructed the jury that it could be used in proof of specific counts in the indictment. Further, the evidence of remarks by the appellant’s friends was not relevant to the appellant’s state of mind or whether he uttered a threat.
[41] The appellant says that the record reveals no application by the Crown to have this evidence admitted by exception to the applicable exclusionary rules. The failure of defence counsel to object to the admissibility of this evidence did not relieve the trial judge of her obligation to ensure that only relevant, material, and admissible evidence was received.
[42] The appellant reminds us that defence counsel did object to the charge on the ground that the jurors were invited to consider the threats uttered by the appellant’s friends as proof of the truth of what was said. The curative instruction of the trial judge, brief as it was, was an insufficient antidote to the prejudice created by the admission of the evidence, compounded by the original erroneous instruction. The curative instruction neither advised the jury that the earlier instruction about their use of the evidence was wrong, nor instructed them that the statements of the appellant’s friends were of no relevance or probative value in determining the appellant’s state of mind. Finally, the jury was not told that this evidence could not be used to infer that the appellant was the sort of person who would likely commit the offences charged.
[43] In connection with the statements attributed to S.F. about finding the gun, the appellant points to the critical nature of the issue to which this evidence was relevant: the origins of the gun S.F. took to the patio table. The Crown was entitled to not call S.F. But, having made that decision, the Crown should not have been permitted to lead evidence of his statements from other witnesses, neither of whom saw the gun before S.F.’s announcement of finding it. This evidence offended the hearsay rule and no effort was made to qualify it for exceptional admission.
[44] The respondent says that the statements of the appellant’s friends were properly admitted. They were relevant to show the state of mind of those involved in the altercations and informed the reaction of club staff to the appellant’s return. Additionally, they were invoked by defence counsel, ultimately successfully, to challenge the case for the Crown on the threatening counts.
[45] Further, the respondent continues, experienced trial counsel did not object to the admissibility of this evidence. When he did object to the instruction on the use of the evidence, the trial judge recalled the jury and made it clear that they were not permitted to use this evidence as proof of the truth of what was said. This eradicated any prejudice inherent in those statements.
[46] Turning to the statements of S.F. on recovery of the gun, the respondent begins with the observation that there was no dispute that a gun was found where the second altercation occurred. Nor was it controversial that S.F. picked it up and put it on a patio table where it was found by police. S.F.’s statement about the gun was contemporaneous with its finding and consistent with the uncontroverted facts. It was also supportive of the defence position at trial that S.F., not the appellant, could have been the source of the gun.
The Governing Principles
[47] The admissibility issues raised by the appellant invite an examination of the substance of the evidence in issue and the purpose for which it was adduced. As a result, my discussion implicates two rules of admissibility: character and hearsay. Each is, by nature, exclusionary. Evidence falling within the prohibitory sweep of each rule is inadmissible. But each is also subject to exceptions, by nature, inclusionary.
[48] I turn first to the substance of the evidence and the impact of the character rule.
[49] It is uncontroversial that, generally, the Crown is not permitted to use bad character evidence as circumstantial proof of conduct. We insist that, if guilt is to be established, it be by proof of conduct, not proof of character: R. v. Moo, 2009 ONCA 645, 247 C.C.C. (3d) 34, at para. 96, leave to appeal refused [2010] S.C.C.A. No. 152; R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 31; R. v. G. (S.G.), [1997] 2 S.C.R. 716, at para. 63.
[50] However, the character rule is subject to exceptions. Among those is where evidence revealing an accused’s bad character is relevant to an issue in the case, provided the probative value of the evidence on that issue exceeds its prejudicial effect: Moo, at para. 97; Handy, at para. 41; G. (S.G.), at para. 65.
[51] The categories of relevance are not closed. Relevance is relative and is assessed in the context of the case as a whole and the positions of counsel. Evidence of bad character may be exceptionally admitted where relevant to establish motive or animus, state of mind (such as fear on the part of a victim), narrative, or to provide context for other events: R. v. T. (J.A.), 2012 ONCA 177, 288 C.C.C. (3d) 1, at para. 54; R. v. Walker (1994), 90 C.C.C. (3d) 144 (Ont. C.A.), at pp. 152-3; R. v. MacDonald (2002), 170 C.C.C. (3d) 46 (Ont. C.A.), at para. 35.
[52] A judge presiding in a criminal jury trial has a duty to ensure that only relevant, material, and admissible evidence is received: T. (J.A.), at paras. 50, 92. Where evidence of limited relevance or admissibility is received, the judge has an obligation to instruct jurors about the permitted and prohibited use of that evidence: R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 113 per Martin J., (dissenting, but not on this point); R. v. Ball, 2019 BCCA 32, 371 C.C.C. (3d) 381, at para. 91; T. (J.A.), at para. 50.
[53] Turning next to the purpose of the evidence and the hearsay rule.
[54] Evidence of words spoken out of court by persons who are not called as witnesses may be adduced for either or both of two purposes; to establish that the words were spoken, or to establish that the words spoken were true. The application of the hearsay rule is not defined by the inherent nature of the evidence, but by the use the proponent seeks to make of it: R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 162; R. v. Maglior, 2003 NSCA 74, 178 C.C.C. (3d) 310, at para. 23.
[55] Narrative evidence is necessary to understand the unfolding of events surrounding the alleged offence. Because it is not tendered or received as evidence of the truth of what was said, it does not fall foul, rather beyond, the reach of the hearsay rule: Maglior, at para. 23. Likewise, evidence of threats: T. (J.A.), at para. 95; Subramaniam v. Public Prosecutor, [1956] 1 W.L.R. 965 (P.C.), at p. 970.
The Principles Applied
[56] I would not give effect to either aspect of this ground of appeal. I am not persuaded that the evidence was wrongly received. Further, even if it were, I am not satisfied that its reception caused the appellant any substantial wrong or a miscarriage of justice.
[57] First, the evidence of the remarks attributed to the appellant’s friends by the witnesses J.K. and R.M.
[58] Evidence of these remarks was relevant, material, and thus, prima facie admissible as part of the narrative of events leading up to the appellant’s return to the club. It was evidence necessary to understand the unfolding of events surrounding the offences the appellant was alleged to have committed. The remarks, especially when coupled with those of a similar kind by the appellant himself, were relevant and material on the threatening counts with which the appellant was also charged.
[59] Doubtless, especially if the evidence were offered to prove the appellant was, as advertised, a “bad boy”, it invited propensity reasoning, the use of character as proof of conduct. But, as we have seen, this is not the sole purpose of the evidence. Its value as evidence of narrative and to provide context for the appellant’s own similar statements outweighs any incidental prejudice it may have occasioned.
[60] Further, as characterized by the appellant himself, the evidence is not barred by the hearsay rule because threats are not tendered or admitted as evidence of the truth of what was said. Thus, they fall beyond the scope of the hearsay rule, rather than within its borders. No exception need be found to warrant their admission.
[61] Leaving to one side the issue of admissibility, several other factors warrant rejection of this ground of appeal.
[62] This evidence mirrors the appellant’s own words, spoken contemporaneously, the admissibility of which is beyond controversy. Experienced defence counsel not only did not object to the admissibility of this evidence but invoked it in support of his position on the counts charging threats against club staff. That the introduction of this evidence did not occasion the appellant prejudice is perhaps best illustrated by his acquittal on the threatening charges.
[63] Nor am I persuaded that admission of the brief remarks of S.F. on recovery of the gun reflects error.
[64] It is beyond controversy that, as they did, J.K., R.M., and the security guard could give evidence of their observations of S.F.’s recovery of the gun. In a similar way, they were entitled to testify about the appellant’s movements and any items observed on his person as he approached them.
[65] The brief remarks attributed to S.F., such as “I got the gun”, “There’s a gun”, or “Gun, gun”, were contemporaneous with recovery of the weapon. They were, by all accounts, spontaneous. They also explained a relevant act by S.F.– the finding of a gun. As such, they were properly admissible either as beyond the reach or within an exception to the hearsay rule: R. v. Sheri (2004), 185 C.C.C (3d) 155 (Ont. C.A.), at paras. 107-10.
[66] Even if not properly admitted, the remarks attributed to S.F. did not advance the case for the Crown beyond the evidence of J.K. and R.M. of their observations of S.F. with the gun. Defence counsel did not object to the introduction of the evidence about what S.F. is alleged to have said. Indeed, he wove these remarks into the fabric of the defence position that it was S.F. who planted the gun on the appellant. In further support of his position, defence counsel pointed out the absence of evidence linking the appellant to the gun, the failure of S.F. to testify, and the fact that only S.F. was wearing gloves.
[67] As I have said, I would reject this ground of appeal.
Ground #2: Wrongful Exclusion of Exculpatory Evidence
[68] The second ground of appeal alleges error in the exclusion of an exculpatory utterance by the appellant proposed for admission as part of the res gestae.
The Relevant Circumstances
[69] The evidence in issue consists of an utterance made by the appellant during the second struggle with club staff when the appellant returned alone. The security guard who was involved in the altercation heard the appellant say “Get off of me. I didn’t do anything”.
[70] In cross-examination of J.K., defence counsel suggested that when S.F. said, “I got a gun”, the appellant responded, “Hey that’s not mine” and “You guys are trying to set me up”. J.K. said that he recalled neither comment. He added: “It’s possible. You’d have to check the original testimony [sic] I gave to the police”.
[71] Defence counsel then directed J.K.’s attention to his testimony at the preliminary hearing where J.K. gave evidence that when S.F. said he had the gun, the appellant responded, “You guys are trying to set me up”, or something to that effect. Counsel then suggested that if J.K. said that at the preliminary inquiry, he was telling the truth. J.K. answered, “I don’t recall what he said exactly, but I would take that as I had a fresher mind back then for sure. Yeah.”
[72] In re-examination, J.K. denied having set up the appellant.
The Ruling of the Trial Judge
[73] Defence counsel sought to elicit from the security guard the appellant’s remarks when S.F. announced recovery of the gun: “Get off of me. I didn’t do anything.”
[74] Counsel sought admission of the evidence as part of the res gestae. The trial Crown relied on R. v. Edgar, 2010 ONCA 529, 260 C.C.C. (3d) 1, leave to appeal refused 263 C.C.C. (3d) iv (note) as a basis to exclude the evidence.
[75] The trial judge refused to admit the evidence. The essence of her reasons appears in the following paragraph:
I am of the view that the statement sought to be elicited is a self-serving, exculpatory, out of court statement made by the accused. I am further of the view that in the circumstances of this case there are no exceptions which would permit it to be elicited, unless the accused were to testify in this proceeding, which I understand that defence counsel will not determine until the crown’s case is in.
I do not permit the question or others of the same or similar nature to be asked.
The Charge to the Jury
[76] At the pre-charge conference, the Crown asked the trial judge to instruct the jury that they were not entitled to consider the evidence given by J.K. that the appellant said that the club staff were trying to set him up. The trial judge declined to give such an instruction. However, she did tell the jury that J.K. did not remember hearing the appellant make the utterance. She also reminded the jury that J.K. denied having tried to set up the appellant.
The Arguments on Appeal
[77] The appellant says that the trial judge erred in refusing to permit defence counsel to elicit the appellant’s utterances during the second altercation. These were spontaneous, made in the heat of the moment, contemporaneous with S.F.’s announced recovery of the gun, while the appellant was being held down by club staff. They formed part of the res gestae.
[78] Res gestae is a traditional exception to the hearsay rule. It permits the introduction of spontaneous statements made during a startling occurrence or excitement-provoking event.
[79] In this case, the appellant submits that his statement was part of the incident giving rise to several of the charges. The res gestae exception, unlike the Edgar exception which the trial Crown invoked to oppose introduction of the evidence, permits reception of the statement whether or not the declarant or accused testifies at trial.
[80] The appellant cites the authorities that permit introduction of spontaneous utterances by an accused when found in possession of freshly discovered contraband. Those statements, like these here, constitute part of the res gestae. They are necessarily admissible in any description of the circumstances under which the crime was committed. In addition, to exclude the appellant’s statements, yet admit the remarks of S.F. on discovery of the gun, creates the risk that the jury would draw an inference adverse to the appellant from his failure to provide an explanation when the circumstances seem to demand one. The imbalance that the trial judge’s ruling created resulted in an unfair trial.
[81] The respondent rejects any suggestion of error in the trial judge’s decision on admissibility. As a general rule, exculpatory out-of-court statements of an accused are inadmissible. The remarks do not qualify under the res gestae exception. The statement did not explain a relevant act. Any startling occurrence or excitement-provoking event was visited by, not upon, the appellant. Nor can the appellant invoke the Edgar exception because he failed to testify at trial.
[82] In any event, the respondent continues, defence counsel was able to rely on the appellant’s statement, “You guys are trying to set me up”. This statement was largely duplicative of “Get off of me. I didn’t do anything” and was more clearly aligned with the defence position that S.F., not the appellant, was the source of the gun. This evidence was left to the jury as relevant for them to consider. It follows, that even if the trial judge erred in excluding the statement in issue, its exclusion caused no prejudice to the appellant.
The Governing Principles
[83] Res gestae is a long-established concept in the law of evidence. Despite its antiquity, its precise doctrinal significance at common law eludes clarity and precision. In translation for forensic purposes, it approximates “the events at issue in the litigation”. This adds little to our basic concepts of relevance and materiality. Its passing would not be mourned. All the more so when we have substituted principle for shibboleth.
[84] Whether they are received as a true exception to the hearsay rule - thus as evidence of the truth of what was said - or as original evidence not reached by the hearsay rule, statements admitted under res gestae include:
i. spontaneous statements or excited utterances;
ii. statements accompanying and explaining an act which can be properly evaluated as evidence only if considered in conjunction with the statement; and
iii. statements relating to a physical sensation or mental state, such as intention or emotion.
See, Sheri, at paras. 107-10. See also, Criminal Justice Act 2003 (UK), s. 118(1), para. 4.
[85] The excited utterances aspect of res gestae posits a mind so dominated by the event that the statement can be regarded as an instinctive reaction to that event thus giving the declarant no real opportunity for reasoned reflection or concoction. Contemporaneity of the statement with the event is a matter of degree. For the statement to be spontaneous, it must be so closely associated with the event which has excited the statement that it can fairly be said that the declarant’s mind remained under the domination of that event. In other words, the trigger mechanism for the statement – the event – was still operative. Spontaneity and contemporaneity are guarantors of reliability: R. v. Andrews, [1987] A.C. 281 (H.L.), at pp. 300-1.
[86] In connection with statements accompanying and explaining an act, the act must be relevant in the absence of the statement. The justification for admitting the statement is that it may explain the precise significance of the act by showing its nature or the state of mind that accompanied it. See, for example, R. v. Kearley, [1992] A.C. 228 (H.L.), at p. 246.
The Principles Applied
[87] Although I am satisfied that the trial judge erred in failing to admit the proposed evidence, I would not order a new trial on this ground.
[88] The admissibility of this evidence was not governed by the principles elucidated in Edgar, as the trial Crown advanced and the trial judge appears to have held. Edgar involved exculpatory statements made to police shortly after arrest and about four hours later. It was in that context that this court decided that spontaneous exculpatory statements made on or shortly after arrest may be admitted as an exception to the general rule excluding prior consistent statements for the purposes of showing the reaction of an accused when first confronted with the accusation, provided they testify and thereby exposes themselves to cross-examination: Edgar, at para. 24.
[89] In this case, the admissibility of the evidence was warranted by the common law rules that permit reception of spontaneous statements or statements accompanying and explaining a relevant act. Here, unlawful possession of a firearm. It was also justified as a statement made by an accused upon first being found “in possession” in accordance with the reasoning in R. v. Graham, [1974] S.C.R. 206, at pp. 213-4 and R. v. McKenzie, [1974] S.C.R. 233, at p. 235.
[90] The defence position at trial was that S.F. was not simply the person who “found” the gun, but was its source. In cross-examination, defence counsel elicited from J.K. evidence that, when S.F. announced the finding of the gun, the appellant said, “You’re trying to set me up”. This evidence, which dovetailed with the defence position more so than the excluded words, was repeated by defence counsel in his closing address. It was also reiterated by the trial judge in her charge to the jury without any limitations imposed on its use.
[91] Evidence pointing to the appellant as the person in possession of the gun was substantial. After the first altercation, he said he would “get his thing” and “settle this”. He returned alone. One witness saw the appellant’s hands move towards the waistband of his pants. Another saw the butt of a gun at the same place. None of the club staff were armed. The gun was located at the site of the struggle where the appellant had been subdued.
[92] This ground of appeal fails.
The Appeal from Sentence
[93] On his own behalf, the appellant made brief submissions on the appeal from sentence. He says that the total sentence imposed – nine years less credit of four and one-half years for time spent in pre-sentence custody – is too long. He points to no error in principle, failure to consider a relevant factor, or erroneous consideration of an aggravating or mitigating factor that had an impact on sentence.
[94] The firearms offences of which the appellant was convicted by the jury attracted a sentence of six years. In separate proceedings before the trial judge, the appellant pleaded guilty to four counts of breaching a firearms prohibition. Each conviction related to a different prohibition and each attracted a sentence of imprisonment of six months. The sentences on these counts were ordered to be served consecutively to one another and to the six-year sentence. The final component of the aggregate sentence was a one-year consecutive term imposed after the appellant pleaded guilty to a count of impersonation.
[95] The appellant is a mature recidivist. He was 27 years old when he committed the offences and 30 when sentenced. He had previous convictions for extortion, assault, robbery, breaches of court orders, and weapons offences. At the time of these offences, he was bound by four separate firearms prohibitions. He was unlawfully in Canada, having returned illegally after being deported under escort.
[96] The sentence imposed reflects no error in principle. It sits comfortably within the applicable range of sentence and reveals no failure to consider any relevant sentencing objective, principle, or aggravating or mitigating factor. It satisfies the fundamental sentencing principle of proportionality in that it is proportionate to the gravity of the appellant’s offences and the degree of his responsibility for having committed them.
Disposition
[97] For these reasons, I would dismiss the appeal from conviction. I would grant leave to appeal sentence, but dismiss the appeal from sentence.
Released: “GRS” February 5, 2021
“David Watt J.A.”
“I agree. G.R. Strathy C.J.O.”
“I agree. E.E. Gillese J.A.”
