Court of Appeal for Ontario

Date: 2022-09-21 Docket: C69025

Before: Benotto, Miller and Coroza JJ.A.

Between: His Majesty the King, Respondent And: Roger Mercury, Appellant

Counsel: Nate Jackson, for the appellant Sunil Mathai, for the respondent

Heard: September 15, 2022

On appeal from the convictions entered on December 5, 2019, and the sentence imposed on January 29, 2020, by Justice Gillian E. Roberts of the Superior Court of Justice.

Reasons for Decision

[1] The appellant was convicted of several drug and firearm related offences. He was sentenced to a total of nine years’ incarceration less 42 months of pre-trial custody. He appeals against his conviction and sentence.

[2] The police obtained search warrants for a car and an apartment unit associated with the appellant. The searches began around 1 p.m. on November 1, 2017. The appellant was the sole occupant in the unit at the time of the search and the trial judge found that he had been in the unit for approximately 12 hours before the search.

[3] During the search of the unit, the police found a fully loaded firearm, tucked into the couch inside the unit and loosely covered by a sheet, and drugs in the only bathroom in the unit.

[4] During the search of the car, the police found another firearm inside an eyeglass case underneath two bags of ammunition in the centre console.

[5] The appellant appeals his convictions on the basis that the trial judge’s findings of guilt were unreasonable and the product of a flawed assessment of the evidence that included misapprehending material facts and failing to consider other reasonable possibilities inconsistent with guilt.

[6] In particular, the appellant submits that the trial judge erred by concluding that the appellant had been in the unit for 12 hours before the execution of the warrant and failed to assess evidence from the car supportive of reasonable doubt.

[7] We do not agree.

[8] The trial judge’s finding that the appellant had been in the unit for 12 hours was open to her on the evidence about last time the key fob had been used and that he was awoken from sleep and in his underwear when the police arrived. There was also video surveillance to ground a finding of use of the car.

[9] In our view, the verdicts were reasonable and were the product of a careful assessment of the evidence. The appellant did not testify. The body of evidence tendered against him was formidable. Video surveillance and key fob records from the unit supported the Crown’s argument at trial that the appellant exercised control over the car and the unit. We do not accept the submission that the trial judge misapprehended the evidence.

[10] Nor do we accept that the trial judge failed to consider the absence of evidence and other reasonable possibilities inconsistent with guilt. In her thorough reasons, the trial judge cited the correct law on constructive possession and circumstantial evidence. She grappled with the appellant’s submissions that there were gaps in the evidence and flaws in the investigation that could not rule out the possibility that the guns and drugs belonged to someone other than the appellant. After considering these submissions, at paras. 61, 63, and 65 of her judgment, the trial judge listed several pieces of evidence that supported her conclusion that there was no reasonable inference or conclusion other than guilt. We see no basis to interfere with that conclusion.

[11] For these reasons, we dismiss the conviction appeal. The sentence appeal arises if any of the convictions are overturned. The sentence appeal is therefore dismissed.

“M.L. Benotto J.A.”

“B.W. Miller J.A.”

“S. Coroza J.A.”