Court and Parties

Court of Appeal for Ontario Date: 20220422 Docket: C69624

Judges: Doherty, Harvison Young and George JJ.A.

Between: Her Majesty the Queen, Respondent and Kimani Phillips, Appellant

Counsel: Mark C. Halfyard, for the appellant Samuel G. Walker, for the respondent

Heard and released orally: April 20, 2022

On appeal from: the convictions entered by Justice Michael R. Dambrot of the Superior Court of Justice on March 30, 2021.

Reasons for Decision

[1] The appellant was convicted of two firearms related charges. He appeals conviction only. The Notice of Appeal refers to an appeal from sentence, however, counsel advises there is no appeal from sentence.

[2] The police executed a search warrant early one morning at the apartment of Susan Sampson. The officers made a dynamic entry into the apartment. Ms. Sampson, her daughter, Kia Sampson, and Kia’s boyfriend, the appellant, were in the apartment. Ms. Sampson was in her bedroom, Kia and the appellant were in Kia’s bedroom.

[3] At the same time the police were making their entry, someone threw a loaded handgun out of Kia Sampson’s bedroom window. An officer stationed below saw the gun come out of the window and he retrieved the weapon. The weapon was loaded and operable.

[4] Although the defence made several arguments at trial suggesting the gun came from various places, on appeal, counsel concedes the loaded firearm was thrown out of the window of Kia Sampson’s bedroom as the police entered the apartment to execute the search warrant. Counsel accepted there were only two people in the bedroom when the gun was thrown out of the window – Kia Sampson and the appellant.

[5] Kia Sampson testified as a Crown witness. She said she was sleeping in her bedroom with the appellant when she heard the police entering the apartment. She and the appellant were still in bed when the police entered the bedroom. Kia testified she did not throw the gun out of the window and she did not see the appellant throw the gun out of the window.

[6] At trial, Kia was not cross-examined by counsel for the appellant on her claim that she did not throw the gun out of the window.

[7] The appellant did not testify.

Grounds of Appeal

[8] Counsel argues that the trial judge failed to adequately address the evidence of Constable Brunato, one of the officers who entered Kia’s bedroom. Counsel submits that, properly understood and considered, Constable Brunato’s evidence provided support for the argument that it was Kia, and not the appellant, who threw the gun out of the window.

[9] This submission rests on the premise that Constable Brunato testified he entered Kia’s bedroom before any of the other officers and, that by the time he entered the bedroom, Kia was already out of her bed and “near the window”. Counsel submits this evidence suggests that it was Kia who threw the gun out of the window.

[10] A review of the entirety of Constable Brunato’s evidence indicates he did not know whether he was the first officer to enter the bedroom. Initially, he testified that, based on his recollection, he was the first officer in the bedroom. He was then shown a video re-enactment of the entry and asked:

Q. Do you recall if there were other officers ahead of you or behind you in that hallway when you entered the bedroom?

A. I, in all honesty, I, I can’t recall who may have been in front of me at that time. It’s possible somebody was in front of me. It’s possible it may have … I don’t have a recollection of whether anybody was in front of me or not.

[11] Not surprisingly, the trial judge did not refer to Constable Brunato’s unclear and uncertain evidence when summarizing the evidence relevant to the entry into Kia’s bedroom. Furthermore, counsel, in her closing argument, did not suggest Constable Brunato was the first person into the bedroom. On the totality of the evidence, it is fair to say Constable Brunato did not know when he entered the bedroom in comparison to the other officers who were in the hallway.

[12] The trial judge did rely on the evidence of Constable Christodoulou. That evidence was much clearer and more detailed than the evidence of Constable Brunato insofar as it related to the entry of the police into Kia’s bedroom. On Constable Christodoulou’s evidence, he entered the bedroom first. Constable Brunato was right behind him. When Constable Christodoulou entered, he saw Kia on the bed under the covers and the appellant on the bed lying on top of the covers. He believed the appellant was awake. He then yelled, “police” and Kia rolled off the bed. Constable Christodoulou turned his attention to the appellant and Constable Brunato entered and took control of Kia, who by this time was off the bed and between the bed and the window.

[13] Constable Brunato’s evidence received the marginal attention it deserved in the trial judge’s reasons. There was no misapprehension of the evidence, or failure to consider material evidence given by Constable Brunato.

[14] Counsel next argues that the trial judge misapprehended the evidence about the temperature in Kia’s bedroom. With respect, counsel misapprehends the reasons of the trial judge.

[15] The trial judge accurately summarized Kia’s evidence. She testified that the evening was “a freezing cold night in December”. The trial judge next observed that the very cold weather made it more likely that, had the appellant been asleep when the police entered the bedroom, he would have been lying under the covers rather than on top of the covers.

[16] The trial judge concluded the appellant’s position on top of the covers supported an inference he was awake when the police entered and that he had just laid back into bed after getting up to throw the weapon out of the window.

[17] The inference drawn by the trial judge, based on the appellant’s position on the bed, did not go beyond the legitimate limits of common sense and human experience.

[18] Finally, the appellant submits the trial judge made an improper reference to Kia’s knowledge of her protection under s. 13 of the Charter when testifying. The appellant argues the trial judge used that knowledge to buttress Kia’s credibility in respect of her denial that she had thrown the gun out of the window.

[19] The parties agree that, when Kia testified she did not throw the gun out of the window, there was no evidence she had any knowledge of her rights under s. 13 of the Charter. She was advised of those rights during her cross-examination later in her testimony. Consequently, on the facts of this case, and apart from the broader jurisprudential issues alluded to by counsel, the trial judge was wrong to use Kia’s knowledge about her rights under s. 13 to buttress the credibility of Kia’s evidence that she did not throw the gun out of the window.

[20] We are satisfied, however, that the error was harmless and that a reasonable trial judge would inevitably have found Kia’s evidence credible as it related to the gun. Kia’s evidence favoured the appellant in every respect, except her denial that she threw the gun out of the window. That denial implicated the appellant by the process of elimination in that he was the only other person in the room.

[21] The trial judge found Kia’s evidence denying she threw the gun out of the window to be credible, largely because it implicated the appellant. She had a very close ongoing relationship with the appellant. The overall tenor of her evidence demonstrated that she was unequivocally disposed to favour the appellant in her testimony. The trial judge reasoned that evidence from her which could hurt the appellant’s case had a certain reliability.

[22] It was the relationship between Kia and the appellant which drove the trial judge’s acceptance of this one feature of her evidence that implicated the appellant. We see no error in that line of reasoning.

[23] There are two additional factors which render the error harmless. First, the evidence of Constable Christodoulou relating to the entry into the bedroom offered some confirmation of Kia’s evidence that she did not throw the gun out of the window. Second, and more importantly, Kia was never cross-examined on her evidence that she did not throw the gun out of the window. The suggestion that she may have thrown the gun out of the window first appeared, somewhat tenuously, in the closing argument of defence counsel. Counsel’s failure to challenge Kia’s evidence that she did not throw the gun out of the window significantly enhances the credibility of that evidence.

[24] For the reasons set out above, we are satisfied the reference to s. 13 of the Charter, while constituting an error in law, caused no substantial wrong or miscarriage of justice.

[25] The appeal is dismissed.

“Doherty J.A.”

“A. Harvison Young J.A.”

“J. George J.A.”