Court File and Parties

COURT OF APPEAL FOR ONTARIO

DATE: 20220629 DOCKET: C68382

van Rensburg, Nordheimer and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Hassan Khalid Appellant

Counsel: Adam Weisberg and Samiyyah Ganga, for the appellant Sunil Mathai, for the respondent

Heard: March 9, 2022 by video conference

On appeal from the conviction entered by Justice Peter K. Doody of the Ontario Court of Justice on May 17, 2019, and from the sentence imposed on October 31, 2019.

van Rensburg J.A.:

A. Introduction

[1] The appellant appeals his convictions for firearms offences after a judge-alone trial. He also seeks leave to appeal his sentence of eight years in prison.

[2] The appellant was charged in the wake of the shooting of his girlfriend at her home by her ex-partner. A handgun (not the gun used in the shooting) was found, loaded, cocked and with a round in the chamber, under the passenger seat of a car parked in the vicinity of the townhouse. The only issue at trial was whether the Crown had proven that the appellant, who was at his girlfriend’s townhouse when she was shot, was in possession and control of the gun that was found.

[3] The appellant raises two arguments on the conviction appeal: (1) the trial judge reversed the burden of proof when he used a 911 call to corroborate Crown evidence and to prove his guilt; and (2) the trial judge erred by taking judicial notice of how long it would take to stash the firearm, move the vehicle and return to the townhouse on foot. On the sentence appeal, the appellant argues that the trial judge double-counted his breach of weapons prohibition orders when he considered them both as an aggravating factor and in imposing consecutive sentences. The appellant seeks a new trial or, in the alternative, a reduction of his sentence to six years.

[4] For the reasons that follow, I would dismiss both the conviction appeal and the sentence appeal.

B. Facts

[5] On March 27, 2016, at approximately 5 a.m., Christina Voelzing was tragically shot and killed by her ex-partner, Benham Yaali, at the front door of her townhouse. Mr. Yaali came to the door and fired multiple shots into the residence, one of which hit Ms. Voelzing. The appellant, who was Ms. Voelzing’s boyfriend at the time, was at the townhouse, along with her two housemates and two others. Before the shooting, the appellant had an angry conversation with Mr. Yaali by phone, during which the appellant kept repeating “Moodie and Robertson” (which is the nearest major intersection to the townhouse).

[6] The Crown’s theory was that, after Mr. Yaali fled the scene, and while Ms. Voelzing was bleeding to death, the appellant took the car keys belonging to another occupant of the townhouse (Ariane Bourgon), hid his gun in Ms. Bourgon’s car, and moved the car to a nearby parking lot. He then returned to the townhouse on foot. Later, at the hospital where Ms. Voelzing had been taken, the appellant, using Ms. Voelzing’s cell phone, contacted Chris Russett, an acquaintance who had not been at the townhouse, and, after he came to the hospital, asked him to retrieve his “shoes” (which the Crown asserted was code for “gun”) from Ms. Bourgon’s car. Mr. Russett, who went to the car, looked through its windows and saw nothing, received a number of communications from the appellant asking if he “got it”.

[7] The gun was found by police under the front passenger seat of the car, with five centimeters of the handle protruding from under the seat. It was loaded and cocked with a round in the chamber. There was fixed red staining on the top of the gun and handle, as well as on the door grip, the underside of the steering column, the gearshift, and the side of the driver’s seat. Ms. Bourgon and two others testified that they had not seen the gun or stains when they were in the car earlier that evening. An unfired round that fit the gun was found on the floor in the townhouse. Under a blanket on Ms. Voelzing’s bed, there was also a gun cleaning kit with used patches. There was a container of gun oil on the bedside table, unspent rounds in her dresser drawer, a spent round on the bedroom floor, and an iPhone box in the bathroom containing unspent rounds.

[8] After Ms. Voelzing was shot, the appellant had given the iPhone box to another person who was at the townhouse, Amel Kebic, and told him to flush it. Mr. Kebic did not do so, and instead left it in the bathroom.

[9] The appellant testified that the gun and ammunition belonged to Ms. Voelzing, and that he told Mr. Kebic to flush the ammunition in order to protect her. He said that, while he was trying to stop Ms. Voelzing’s bleeding, he told one of the other people in the townhouse, his friend Nick Vandenbosch, to take his bag from his car and to put it in Ms. Bourgon’s car. The bag contained cocaine and a scale. The appellant denied having left the townhouse at any time before the police arrived. Mr. Vandenbosch called 911 at 5:09:37 a.m., a call that lasted until 5:24:22 a.m. The appellant testified that his voice could be heard at several points during the 911 call, including in the background during a 7 minute and 31 second period between two occasions when his voice could clearly be identified. He also testified that, when speaking to Mr. Russett about his “shoes”, he was referring to the bag of drugs.

[10] Mr. Vandenbosch testified for the defence. He asserted that, when the appellant asked him to get rid of the bag, he took it from the appellant’s car, put it in Ms. Bourgon’s car, and then, not knowing what the bag contained, he threw it out the window into some bushes while moving Ms. Bourgon’s car to the parking lot it was found in. It was only after he returned to the townhouse that he called 911.

C. The Trial Judge’s Reasons for Conviction

[11] The trial judge began by setting out the principles from R. v. W.(D.), [1991] 1 S.C.R. 742. He found the evidence of the appellant to be implausible and contradictory. For example, the appellant testified that he was concerned about Ms. Voelzing, but did not call 911 himself or ask anyone else to call 911 until after Mr. Vandenbosch had returned from moving the drug bag. The trial judge similarly found the evidence of Mr. Vandenbosch implausible and contradicted both by his own evidence and that of other witnesses. He was not left with a reasonable doubt by the defence evidence.

[12] The trial judge found that the testimony of Mr. Kebic and Ms. Bourgon (both of whom testified that they saw the appellant with the gun) did not, on its own, establish guilt beyond a reasonable doubt due to various frailties in their evidence. However, he concluded that certain aspects of their evidence were corroborated by physical evidence, such as the presence of the firearm and red stains in the car which were not there before the shooting, the fact that the car had been moved, the appellant’s attempts to have the firearm removed from the car after the shooting, and his knowledge of and access to the firearm, and motive to use it against Mr. Yaali.

[13] The trial judge also found that the 911 call recordings were consistent with the appellant having left the townhouse. He accepted that, at the beginning of the call, which was placed by Mr. Vandenbosch, the appellant had responded to a question about the nearest intersection, and that 7 minutes and 31 seconds into the call, it was the appellant who said, “Why are they (unintelligible)”, in a panicky voice. The trial judge found that the 7 minutes and 31 seconds of relative calm and silence in the background of the 911 call, punctuated by the panicky voice saying “Why are they (unintelligible)”, corroborated Mr. Kebic’s evidence that the appellant left the townhouse and was away for most of the 911 call. The trial judge also concluded, from examining an aerial photograph showing the townhouse and the parking lot where the vehicle was located, that the two points were close enough that a person would have been able to leave the townhouse, get into the car parked out front, drive to the parking lot, and come back to the townhouse in less than six minutes.

[14] The trial judge convicted the appellant of (1) careless storage of a firearm (contrary to s. 86(3) of the Criminal Code); (2) possession of a restricted firearm without a licence (s. 91(3)); (3) possession of a restricted firearm knowingly without a licence and registration (s. 92(3)); (4) possession of a loaded restricted firearm without being the holder of a registration certificate (s. 95(2)); (5) possession of a firearm knowing it was obtained by the commission of an offence (s. 96(2)); (6) possession of a weapon for a purpose dangerous to public peace (s. 88(2)); and (7) and (8) two counts of possession of a firearm while subject to a prohibition order (s. 117.01(3)).

D. The Trial Judge’s Reasons for Sentence

[15] The trial judge conditionally stayed counts 2, 3, and 6 pursuant to R. v. Kienapple, [1975] 1 S.C.R. 729. The Crown sought a ten-year global sentence, with eight years for the s. 95(2) count and one year consecutive for each s. 117.01 count. The defence sought a global six-year sentence, allocated five years for the s. 95(2) count, with six months consecutive for each s. 117.01 count.

[16] The trial judge noted a number of aggravating factors, including the appellant’s 15 prior convictions (including two related to firearms, one of which was a s. 95(2) offence for the illegal possession of a loaded restricted firearm); the fact that the gun was fully loaded and placed in a public area; that the appellant’s possession of the gun, and his enticement of Mr. Yaali to come fight him, was part of a chain of circumstances that concluded with Ms. Voelzing’s death; that the appellant put his own self-interest in hiding the gun above administering help after Ms. Voelzing was shot; and that the appellant was subject to two weapons prohibitions at the time of the offences. He found that there were “almost no mitigating circumstances” but noted that it had been five and a half years since the appellant was last convicted of an offence and that, while he was not remorseful at trial, he might have been remorseful at the time of sentencing.

[17] Ultimately, the trial judge sentenced the appellant to a global sentence of eight years, which he allocated as: six years’ imprisonment for possession of a loaded restricted firearm, one year consecutive for each count of possession of a firearm contrary to a prohibition order (for two years total), and six months concurrent for careless storage of a firearm and possession of a firearm knowing it was obtained by the commission of an offence.

E. Issues and Discussion

(1) The Conviction Appeal

[18] The appellant acknowledges that there was ample evidence that there was a firearm in the townhouse. The issue at trial was whether the Crown proved beyond a reasonable doubt that he was the person who took the gun and placed it in the vehicle, which depended on whether he had the opportunity to leave the residence with the gun, to drive the vehicle to where it was found, and to return home by foot. The only witnesses who claimed to have seen the appellant with the gun had credibility problems, such that the trial judge properly concluded he could not rely on their evidence alone. The appellant contends that the trial judge’s conclusion that the offences were proven beyond a reasonable doubt revealed two errors, which I address in turn.

a) First Alleged Error: The Trial Judge’s Use of the Recording of the 911 Call

[19] The first error, according to the appellant, is a Villaroman error: R. v. Villaroman, 2016 SCC 33. The appellant says that the trial judge relied on circumstantial evidence to convict, when an alternate inference that was inconsistent with guilt was available. The appellant focuses on the trial judge’s use of the 15-minute recording of the 911 call. The trial judge concluded that the 7 minutes and 31 seconds of the recording during which no “panicky voice” could be heard was “consistent with [the appellant], who was clearly panicking”, being absent from the townhouse. But the appellant notes that the trial judge did not reject his testimony that his voice could be heard in the background during this 7 minutes and 31 seconds. Rather, the trial judge merely said that the “recording [was] not clear enough for [him] to be able to determine from the recording alone whether or not it [was the appellant’s] voice”. According to the appellant, the trial judge erred by using this equivocal evidence to support an inference of guilt, and he failed to consider such evidence as raising a reasonable doubt. In effect, this was a reversal of the burden of proof, requiring the appellant to prove that his voice could be heard throughout the audio recording.

[20] I would not give effect to this argument.

[21] The trial judge made findings with respect to each of the witnesses who testified at trial, including the witnesses who testified that they saw the appellant with a gun. He accepted some, but not all, of their evidence. He looked for corroboration, which he found in the evidence, including the 911 call.

[22] The trial judge fairly concluded that he was unable to determine whether or not the appellant’s voice could be heard in the background of the 911 call during the 7 minute and 31 second period between the instances when his voice could be clearly identified. That said, he observed that there was a “distinct difference in the background chatter for the 7 minute 31 second interval … from the [appellant] saying ‘yeah we gotta go’ to [his] saying ‘Why are they (unintelligible)’” (at para. 97), and he concluded that this evidence corroborated Mr. Kebic’s evidence that the appellant left the townhouse and was away for most of the 911 call.

[23] The trial judge was not required to evaluate the 911 call, in isolation, on a reasonable doubt standard. The question, according to Villaroman, 2016 SCC 33, is not whether each piece of circumstantial evidence gives rise to a reasonable inference other than guilt, but whether the circumstantial evidence as a whole is consistent only with guilt: Villaroman, at para. 30; see also R. v. Charron, 2022 ONCA 394, at paras. 22-24; R. v. Staples, 2022 ONCA 266, at paras. 102, 109, leave to appeal to S.C.C. requested, 40200.

[24] While the possibility that the appellant’s voice might have been heard in the background during the interval in question may well have raised a reasonable doubt if this had been the only evidence implicating the appellant, it was not capable of raising a reasonable doubt in this case because of all of the evidence the trial judge accepted. He referred to the cumulative effect of the evidence, including the physical evidence that the gun had been in the bedroom the appellant was in, with evidence it had been cleaned recently; the appellant’s admission that Ms. Voelzing had not taken the gun downstairs; the cartridge in the living room, giving rise to an inference that the gun had been there; the appellant’s evidence that he knew where Ms. Bourgon normally parked her car; the evidence of his animus toward Mr. Yaali and his recent aggressive argument with him, culminating in what amounted to a challenge to a fight; and his attempts to have the gun removed from the car after the shooting. In this case, the trial judge concluded that the only reasonable inference that could be drawn from the totality of the evidence – not solely the 911 call – was that the appellant was guilty.

b) Second Alleged Error: Judicial Notice of a Disputed Fact

[25] The second error, according to the appellant, is that the trial judge improperly took judicial notice of a disputed fact. There was no evidence at trial of how long it would take to drive from the townhouse to the parking lot where Ms. Bourgon’s car was found and to walk back to the townhouse. The trial judge independently examined an overhead or aerial photograph of the area, and concluded that six minutes was enough time for the appellant to drive to the parking lot and return to the townhouse on foot. The appellant contends that the trial judge’s judicial notice of this fact affected the overall trial fairness, because defence counsel was “blindsided” by this conclusion and had not had the opportunity to address this issue in closing submissions.

[26] I disagree.

[27] It is an error for a trial judge to take judicial notice of a controversial fact, and it is particularly problematic when this happens without giving the parties the opportunity to make submissions on the issue: R. v. J.M., 2021 ONCA 150, 154 O.R. (3d) 401, at paras. 37-38.

[28] In this case, however, the trial judge did not take judicial notice of the time it would take for the appellant to drive to the parking lot and return to the townhouse. Rather, he relied on an aerial photograph that was in evidence before him and marked as an exhibit at trial to conclude that the distance (which had been estimated by a police witness at the trial as “a couple hundred meters”) could be travelled there and back in six minutes. Trial judges are entitled to draw inferences based on their assessment of the totality of the evidence. This was an inference from the evidence that was reasonably open to the trial judge.

[29] I also note that defence counsel at trial did not dispute that six or seven minutes could suffice to complete the round-trip. The live issue was not whether the distance could be travelled in six or seven minutes, but whether there had been an opportunity for the appellant to stash the gun, move the car and walk back to the townhouse after the shooting occurred. The Crown’s theory was that the window of opportunity was six or seven minutes, which would have been enough time, while the defence position was that it was no more than a couple of minutes, which meant the car could not have been moved by the appellant because his voice could be heard in the background of the 911 call. This live issue was the subject of both witness testimony and submissions at trial, and no unfairness was occasioned by the trial judge drawing the reasonable inference he did from the evidence before him.

(2) The Sentence Appeal

[30] The appellant contends that the trial judge erred by relying on the appellant’s breaches of weapons prohibition orders as both an aggravating factor and to impose consecutive sentences for those offences. Citing this court’s decision in R. v. McCue, 2012 ONCA 773, 299 O.A.C. 14, at para. 22, he asserts that, while the trial judge could have relied on the breaches for either purpose, it was an error to double-count the breaches in arriving at his sentence.

[31] I would not give effect to this argument. In McCue, in overturning a sentence imposing concurrent sentences for possession of a loaded firearm and breach of a prohibition order, this court noted that the sentences ought to have been consecutive and stated, at para. 22:

We think the trial judge had two options in considering the impact of the breach of the prohibition order. She could have taken the breach into account as a significant aggravating factor when fixing the appropriate sentence on the possession of a loaded firearm charge, and then imposed a concurrent sentence on the charge alleging a breach of the prohibition order. Alternatively, the trial judge could have ignored the prohibition order in fixing the appropriate sentence on the possession of the weapon charge and then imposed a consecutive sentence on the charge alleging the breach of the prohibition order. Clearly, the trial judge could not do both. Unfortunately, she did neither.

[32] In the present case, rather than fixing the sentences for each of the offences and then considering the principle of totality, the trial judge considered the aggravating circumstances in determining a fit global sentence, and then imposed individual sentences adding up to the total: see R. v. Friesen, 2020 SCC 9, 391 C.C.C. (3d) 309, at para. 157. In doing so, he included the breaches of weapons prohibitions in his list of aggravating factors. There is nothing to suggest that he double-counted the effect of the weapons prohibitions by first considering them to be aggravating in relation to the six-year sentence for the possession of a loaded firearm conviction, and then imposing separate consecutive sentences for the breaches themselves. Indeed, in R. v. Johnson, 2013 ONCA 177, 297 C.C.C. (3d) 87, at para. 67, this court described the appellant’s breach of three court orders prohibiting possession of a firearm as one of multiple aggravating factors in respect of the overall sentence. This court upheld the appellant’s sentence of seven and one-half years for the possession of a loaded firearm and three six-month terms for the breaches, to be served consecutively to the firearm possession offence and to one another: Johnson, at para. 57.

[33] Finally, I note that the appellant’s sentence was fit in all the circumstances. The offences for which the appellant was convicted involved his illegal possession of a loaded firearm in a public place at a time when he was bound by two lifetime prohibition orders. He was a repeat offender with a substantial criminal record. His global sentence was within the appropriate range considering the seriousness of the offences, the objectives of sentencing for firearms offences and the aggravating factors: see, for example, R. v. Brown, 2010 ONCA 745, 277 O.A.C. 233; Johnson, 2013 ONCA 177; R. v. Chambers, 2013 ONCA 680, 295 C.R.R. (2d) 314; and R. v. Claros, 2019 ONCA 626.