Court of Appeal for Ontario

Date: 20221021 Docket: C68856

Judges: Simmons, Paciocco and Zarnett JJ.A.

Between: His Majesty the King Respondent

And: Tyrell Stewart Appellant

Counsel: Maija Martin and Stephanie Brown, for the appellant Michael Dineen, for the respondent

Heard: October 7, 2022

On appeal from the convictions entered on January 3, 2020 by Justice Lawrence T. Feldman of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant appeals from convictions for unlawful possession of a firearm with ammunition and possession of a firearm while prohibited. [1] At the end of the oral hearing, we dismissed the appeal for reasons to follow. These are our reasons.

[2] On July 22, 2018, the appellant and Alexia Richardson were charged with a number of gun-related offences after police located a loaded handgun and ammunition while executing a search warrant at 35 Durant Crescent, Markham.

[3] The police obtained the search warrant after receiving information from a confidential source that the appellant was in possession of a firearm, involved with guns and drugs, was staying at 35 Durant Crescent, and had driven a Honda. They conducted surveillance at 35 Durant Crescent during the early morning of July 20, 2018 and the afternoon of July 22, 2018.

[4] On July 20, 2018, the police saw the appellant and Ms. Richardson leave from a side door of the garage at 12:50 a.m., drive away in a black Honda to a nearby McDonald’s restaurant, and then return and re-enter the residence through the same door at 1:38 a.m.

[5] On July 22, 2018, an officer saw the same black Honda in the driveway of 35 Durant Crescent in the early afternoon and then later observed the appellant come out the side door at 2:26 p.m. and drive away in the Honda.

[6] Search warrants were issued for the black Honda, 35 Durant Crescent, and 7 Portrush Crescent, Toronto, the address listed on the appellant’s driver’s licence.

[7] Soon after obtaining the warrants, police arrested the appellant with three other men at a plaza where the Honda had been spotted. Using keys found in the car, police obtained access to a basement apartment at 35 Durant Crescent via the locked garage side door and a locked interior door that led down some stairs to the basement.

[8] No one was present in the basement apartment when the warrant was executed. The basement apartment consisted of two individual units. Keys found in the Honda also fit the entrance doors to both units. It was agreed at trial that Ms. Richardson began renting the apartment in September 2017 and that, although she sublet unit 1 to a third party during the winter of 2018, the third party vacated unit 1 at the end of April 2018.

[9] The police found the gun and ammunition in a drawer of a television console in unit 1, which was unlocked when they entered. They also found an undated Players Advantage Card from Fallsview Casino in the appellant’s name at the back of an open shelf of the television console. Apart from the television console, a mattress, and some food and empty pizza boxes in the kitchen, unit 1 appeared to be uninhabited.

[10] Unit 2 of the basement apartment was locked when the police executed the search warrant. It contained a living room, kitchen, two bedrooms, furniture and appeared to be neatly maintained. During their search of one of the bedrooms in unit 2, police found male underwear in a drawer; male clothing on the floor and in a bin near the bed; female clothing throughout the room; and photographs of, and identification documents for, Ms. Richardson. The second bedroom of unit 2 appeared to be a child’s bedroom.

[11] Elsewhere in unit 2, police found a duffle bag containing banking documents in the appellant’s name with an address of 7 Portrush Crescent; correspondence addressed to the appellant at 7 Portrush Crescent and a London, Ontario address; many identification documents in the appellant’s name (for example, his driver’s license and passport); a gold chain with the initials “TY” engraved on it; and a framed photograph of the appellant. The police also found more than one pair of what appeared to be large male shoes; the appellant was described as being tall.

[12] An open area across from the two units housed a washing machine in which police found what appeared to be men’s, women’s and children’s clothing.

[13] The central issue at trial was whether the Crown had proven beyond a reasonable doubt that the appellant and/or Ms. Richardson were in possession of the handgun and ammunition.

[14] The trial judge found it reasonable to infer that the appellant and Ms. Richardson were in a dating relationship and that they shared the same bedroom when the appellant stayed over. While the nature and extent of their relationship was not entirely clear, the trial judge was satisfied that the appellant was more than “a casual visitor” and that he had “full access to the basement apartment and all its rooms” and “an element of control over” the television console where the handgun and ammunition were stored.

[15] While the trial judge acknowledged that it was “always possible … that a visitor stored the firearm under the noses of the prior tenant or [the appellant and Ms. Richardson]”, he found that was not a reasonable inference in the circumstances. He explained: “The basement apartment was well secured.… There is no evidence that other persons had access.… A loaded firearm is a significant possession.” The trial judge concluded the appellant stayed in the basement apartment at least some of the time, had unrestricted access to all its rooms and exercised a degree of control over all the rooms including unit 1 and the television console.

[16] In all the circumstances, the trial judge was satisfied that the appellant had both knowledge and control of the handgun and that there was “no plausible alternative theory of possession.” He accordingly made findings of guilt against the appellant. However, because there was no direct evidence Ms. Richardson made use of the television stand or that any of the items in unit 1 belonged to her, the trial judge dismissed the charges against her.

[17] Prior to the oral hearing, by Notice of Partial Abandonment, the appellant formally abandoned all of the grounds of appeal he had raised concerning the search warrants. He advanced five other grounds of appeal.

[18] First, the appellant argued that the trial judge misapprehended the evidence in a manner that led to a miscarriage of justice by making findings for which there was no evidence.

[19] At paragraph 41 of his reasons, the trial judge found that the appellant slept over at 35 Durant Crescent “on two consecutive nights.” It is undisputed that the surveillance evidence, conducted at that address during the early morning hours of July 20, 2018 and the afternoon of July 22, 2018, could not support that finding. While it was open to the trial judge to conclude based on the surveillance evidence that the appellant slept over on July 19-20, 2018, there was no evidence capable of supporting an inference that he slept over on either July 20-21, 2018 or July 21‑22, 2018.

[20] During oral argument, we raised an issue that there was no evidence capable of supporting the trial judge’s finding in the same paragraph that the appellant was “the last one to leave [35 Durant Crescent] on July 22”. The record indicates that the surveillance officer followed the appellant when he left the residence on July 22 at 2:26 p.m. and there was no evidence concerning Ms. Richardson’s whereabouts on that date.

[21] The appellant argued that these misstatements by the trial judge undermine the trial judge’s finding that the appellant was not “a mere casual visitor” to the home, which in turn undermines his findings that the appellant had “full access to the basement apartment and all its rooms” and, ultimately, knowledge and control of the handgun and ammunition.

[22] We did not accept this submission. Reading paragraph 41 of the trial judge’s reasons as a whole we are satisfied that two factors were central to his conclusion that the appellant was not a “mere casual visitor” to the basement apartment at 35 Durant Crescent. First, the appellant had keys to the premises. Second, the trial judge’s finding that there was a “lived-in quality” to the appellant’s possessions in the basement apartment:

By the presence of his photograph and location of his clothing, shoes and identifying documents, there was a lived-in quality to his possessions in the home.

[23] Given these factors, we are satisfied that the trial judge’s conclusion that the appellant was not a “mere casual visitor” was inevitable even absent the mistaken inferences.

[24] The appellant’s second argument was that the trial judge reversed the burden of proof by requiring him to lead evidence inconsistent with guilt and failed to recognize that reasonable doubt can arise from an absence of evidence. The appellant pointed to a number of statements in the trial judge’s reasons in which he observed there was no evidence of a particular matter. The appellant submitted that these statements demonstrate that the trial judge relied on the appellant’s failure to lead evidence inconsistent with guilt to improperly support the inferences he drew when in fact the absence of such evidence should have given rise to a reasonable doubt.

[25] For example, at paragraph 42 of his reasons, the trial judge pointed to the fact that there was no evidence that anyone other than the appellant and Ms. Richardson had keys to the exterior and interior door leading to the basement apartment before concluding that it was not a reasonable possibility that others had access to the unit. At paragraph 45 of his reasons, the trial judge reiterated that there was no evidence that others had access to the basement apartment before concluding there was no plausible alternative theory of possession.

[26] We did not accept these submissions. Reading the trial judge’s reasons fairly and as a whole, there were other factors he relied on to support his conclusion that it was not a reasonable possibility that others had access to the basement apartment. These factors included his statement that a “loaded fire-arm is a significant possession”, the fact that there was also a child living in the basement apartment where the loaded handgun was stored, and even his observation that the appellant’s possessions in the apartment had a “lived-in” quality about them. It was the totality of the evidentiary picture that drove the trial judge’s conclusion that it was not a reasonable possibility that others had access to the basement apartment. That evidentiary picture included the absence of evidence that others had keys to the exterior and interior doors to the basement apartment. While the absence of such evidence could have raised a reasonable doubt in other circumstances, we are satisfied that it was open to the trial judge to draw the conclusions he did.

[27] In his reasons, the trial judge carefully reviewed the principles involved in the assessment of circumstantial evidence. The fact that he referred to the absence of evidence of various matters in making his findings does not mean he reversed the burden of proof or did not understand that the absence of evidence can give rise to a reasonable doubt. Rather, the references formed part of his explanation of the evidentiary picture based on which he made his findings. He made case specific findings based on the totality of the evidence and absence of evidence in this particular case.

[28] The appellant’s third submission was that the guilty verdict was unreasonable. This submission was premised, at least in part, on the anticipated success of his first two arguments, which we rejected. But it also comprised a more general assertion that the trial judge erred in his assessment of the evidence and, in particular, the lack of evidence given the minimal investigation and surveillance that took place. The appellant submits that the trial judge erred in failing to recognize that, in the circumstances, other reasonable inferences were available – most notably that someone else may have had access to the basement apartment and may have placed the handgun and ammunition in the uninhabited unit, unit 1.

[29] We did not accept this submission. As we have said, in his reasons the trial judge carefully reviewed the principles involved in the assessment of circumstantial evidence. He was very aware of the need to satisfy himself beyond a reasonable doubt that the appellant’s guilt was the only reasonable inference to be drawn from the evidence as a whole. He also considered and rejected as speculative the alternative inferences posited by the appellant. That determination was not unreasonable and warrants deference. “[F]undamentally, [it is] for the trier of fact to draw that line in each case that separates reasonable doubt from speculation”, and that assessment can be set aside only where it is unreasonable: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at paras. 56, 71. We see no basis on which to interfere with the trial judge’s conclusion.

[30] The appellant’s fourth argument was that the conviction for unlawful possession of a firearm with ammunition was unreasonable because there was no evidence that the appellant knew, or was wilfully blind to the fact that, the firearm was loaded. We rejected this submission. The case against the appellant was based on circumstantial evidence. The evidentiary picture referred to above created a compelling inference that the appellant had knowledge and control of the firearm, including the fact that it was loaded. We note as well that this was not raised as a live issue in the submissions at trial.

[31] The final issue raised by the appellant was that he was not arraigned and that this rendered his trial unfair. We rejected this submission. The failure to arraign an accused person is a procedural irregularity that can be cured by s. 686(1)(b)(iv) of the Criminal Code, R.S.C., 1985, c. C-46, in appropriate circumstances: R. v. Mitchell, 36 O.R. (3d) 643, 121 C.C.C. (3d) 139.

[32] Here counsel for the appellant waived the formal reading of the charges. The appellant submits counsel did so in the mistaken belief that the appellant had been arraigned and put to his election earlier in the trial. Although the Crown did not contest this assertion, we see no evidentiary basis for it. In any event, the appellant was represented by experienced counsel and was present for at least part of the pre-trial motions [2] challenging the validity of the search warrants that led to the discovery of the loaded handgun. Prior to the commencement of the trial and before counsel waived the reading of the charges, the Crown clarified on the record on which charges and informations the Crown would proceed and specifically noted that the appellant had not been arraigned.

[33] Based on the record before us, we have no doubt that the appellant was made aware by experienced counsel of the nature of the charges he faced and suffered no prejudice because he was not formally arraigned.

[34] For the reasons set out above, we dismissed the appeal.

“Janet Simmons J.A.”

“David M. Paciocco J.A.”

“B. Zarnett J.A.”

[1] A finding of guilt on a charge of unauthorized possession of a prohibited firearm was conditionally stayed pursuant to R. v. Kienapple, [1975] 1 S.C.R. 729.

[2] The pre-trial motions involved a step-six Garofoli procedure and were conducted partially in camera: R. v. Garofoli, [1990] 2 S.C.R. 1421.