COURT OF APPEAL FOR ONTARIO DATE: 20221129 DOCKET: C69301

Tulloch, van Rensburg and Coroza JJ.A.

BETWEEN

His Majesty the King Respondent

and

Jeffery Ferguson-Cadore Appellant

Jeffery Ferguson-Cadore, acting in person Chris Rudnicki, appearing as duty counsel Philippe Cowle, for the respondent

Heard: October 5, 2022

On appeal from the conviction entered on November 25, 2020 and the sentence imposed on January 28, 2021 by Justice Susan E. Healey of the Superior Court of Justice, sitting with a jury.

REASONS FOR DECISION

Overview

[1] A jury convicted the appellant of several firearm offences and assault related to an incident in Wasaga Beach that occurred in July of 2018. He was sentenced to a global custodial sentence of 5 years and 10 months less credit for pre-sentence custody.

[2] The appellant brought a handgun loaded with ammunition to a motel. The gun was concealed in the front of his pants. At the motel, the appellant drank and socialized with several others, including his domestic partner, Ms. O’Grady, for several hours. At some point during the evening, the appellant became jealous and angry because of another man’s interaction with Ms. O’Grady. He proceeded to intimidate this other man and assault Ms. O’Grady.

[3] The appellant pulled out the weapon and fired two shots recklessly, though not aimed at any person. There were several other individuals in the area at the time. The police were called, and the appellant was arrested moments later.

[4] With respect to the assault, the appellant was charged with assault with a weapon but was acquitted of this charge and found guilty of assault. In her reasons for sentence, the trial judge found that the jury obviously rejected the evidence that the appellant hit Ms. O’Grady in the face with a bottle, as he was acquitted of that count. However, she found that the jury’s assault conviction could have been based on the appellant aggressively grabbing Ms. O’Grady and he was sentenced on that basis.

[5] The appellant testified in his defence. His position was that he did not come to the motel with the gun. Instead, it was another man who had attacked him with a firearm, and he disarmed the man. The defence also called Ms. O’Grady to testify.

Conviction Appeal

[6] The appellant raises the following grounds of appeal:

The jury could not rely on the evidence of Ms. Dexter who provided prior inconsistent statements regarding the discharge of the gun.
The Crown improperly suggested to the appellant that he was not credible because he had a motive to secure an acquittal.

Issue 1: The jury could not rely on Ms. Dexter’s evidence

[7] The Crown’s main witness at trial was a motel employee, Ms. Dexter. The appellant argues that her evidence was so incredible and inconsistent that the jury should have been told that they could not rely on it. In support of his submission the appellant has painstakingly combed the record to provide several occasions where trial counsel highlighted for the court that Ms. Dexter’s testimony was inconsistent with her police statement and her testimony at the preliminary hearing.

[8] We do not accept this submission. We have reviewed the appellant’s references to the record. In our view, while we acknowledge that Ms. Dexter did provide several inconsistent statements to the police and during the preliminary hearing about her observations, the trial judge comprehensively outlined these inconsistencies in detail in her charge to the jury. It was for the jury to decide whether these inconsistencies mattered and whether they impacted Ms. Dexter’s credibility and reliability. We note that the trial judge specifically reviewed the inconsistent statements that Ms. Dexter had provided about her observations of the gun.

[9] This review of the evidence, accompanied by a strong Vetrovec caution in the charge, equipped the jury with the tools it needed to assess whether Ms. Dexter’s evidence was credible and reliable. Indeed, the jury did not accept all of Ms. Dexter’s evidence. It is obvious that they rejected her observations about the appellant assaulting Ms. O’Grady with a bottle because the appellant was acquitted of that charge.

Issue 2: The Crown’s improper cross-examination

[10] The appellant argues that the Crown crossed the line during cross-examination when the trial Crown suggested to the appellant that he was motivated by avoiding conviction and consequently less worthy of belief. We have reviewed the transcript of the cross-examination. We see nothing improper about the trial Crown’s questioning. Rather the trial Crown asked the appellant questions about his relationship with Ms. O’Grady. It is obvious that the trial Crown was laying the foundation to suggest to Ms. O’Grady that she was going to testify in a manner favourable to the defence.

[11] At the time the examination occurred there was no objection made by defence counsel. It is only when the pre-charge hearing was held that defence counsel suggested that a corrective instruction should be given to the jury to ensure that it did not view the appellant as having counseled Ms. O’Grady to lie to secure the appellant’s acquittal. Even if there was something improper about the Crown’s cross-examination, we are satisfied that any prejudice to the appellant would have been alleviated by the trial judge’s specific direction to the jurors that they could not “assume that [the appellant] would lie to secure his acquittal, as that would be contrary to the important presumption of innocence.”

[12] We reject this ground of appeal.

Sentence Appeal

[13] One of the gun offences the appellant was found guilty of – reckless discharge of a firearm – carried a minimum penalty of five years. During the sentencing hearing, the defence asked for a global sentence of five years. The Crown asked for a sentence between six to seven years. Ultimately, the appellant was sentenced to five years and six months less credit for pre-sentence custody for the firearm offences and four months for the assault to run consecutively.

[14] On behalf of the appellant, duty counsel argues that the trial judge erred in principle by approaching the sentencing minimum as a straitjacket, that could not be imposed unless there was an absence of aggravating factors. Duty counsel specifically argues that there were several mitigating factors, and that the appellant has significant rehabilitative prospects.

[15] The trial judge found that firing a gun twice in the presence of a group of people provoked only by jealousy was conduct that had to be deterred and denounced. Contrary to duty counsel’s submissions, the trial judge did not err in principle. Her reasons reveal a careful balancing of the aggravating and mitigating factors. Overall, the trial judge found that the presence of other individuals in the area was a serious aggravating factor. While the trial judge also recognized the appellant’s rehabilitative potential, an exemplary sentence was required to denounce the appellant’s conduct. We would defer to her sentence.