COURT OF APPEAL FOR ONTARIO DATE: 20230621 DOCKET: C66289

Huscroft, Sossin and George JJ.A.

BETWEEN

His Majesty the King

Respondent

and

Tyrone Chambers

Appellant

Counsel: Richard Litkowski, for the appellant Alexander Alvaro, for the respondent

Heard: March 1, 2023

On appeal from the convictions entered on January 11, 2018 by Justice Antonio Skarica of the Superior Court of Justice, sitting with a jury, and from the sentence imposed on February 21, 2018.

Huscroft and George JJ.A.:

Overview

[1] The appellant was convicted following trial by a jury of the second-degree murder of Brandon Musgrave, the aggravated assault of Kauner Chinambu, and the aggravated assault of Ted Tsibu-Darkoh. The appellant’s co-accused, Joshua Warner, was found guilty of manslaughter in respect of Musgrave and the aggravated assault of Chinambu.

[2] This was their second trial. At the first, the appellant and Warner were each found guilty of second-degree murder and two counts of aggravated assault. They successfully appealed that decision and were granted a new trial, except with respect to Warner’s conviction for aggravated assault in relation to Tsibu-Darkoh: R. v. Chambers, 2016 ONCA 684, 342 C.C.C. (3d) 285. Warner conceded at the first trial that he shot Tsibu-Darkoh and did not appeal that conviction.

[3] Following his convictions at the second trial, the appellant was sentenced to life imprisonment with 18 years of parole ineligibility for second-degree murder, and 9 years on each of the aggravated assault counts, to be served consecutively to each other but concurrently with the life sentence.

[4] The appellant appeals against conviction and seeks leave to appeal sentence. On his conviction appeal, the appellant argues that the trial judge erred by: (1) holding that the appellant did not have standing to challenge the search warrant executed at the appellant’s girlfriend’s apartment; (2) admitting evidence of ammunition found at the appellant’s girlfriend’s parents’ home; (3) initiating and permitting the Crown to produce new expert evidence regarding the “lead fragment”; (4) admitting into evidence information about an event that transpired earlier during the evening in question (the “Austin incident”), and in how he instructed the jury about it; and (5) delivering an inadequate, unbalanced, and unfair jury charge. As for his sentence, the appellant submits that an 18-year period of parole ineligibility is harsh and excessive.

[5] We do not accept any of these arguments. We would dismiss the appeal for the reasons that follow.

Background

The house party

[6] The appellant relied on the facts summarized in this court’s decision ordering a new trial and most of the evidence at the second trial was the same as, or similar to, that at the first trial, apart from the lead fragment evidence discussed below.

[7] On March 12, 2010, the appellant and Warner attended a party in a home occupied by several international students. The appellant and Warner arrived at around 11:00 p.m.

[8] Approximately an hour after the appellant and Warner arrived, they approached one of the hosts, Yussuf Yanni. The appellant testified that he expressed an interest in supplying the alcohol for future parties and showed Yanni some money he had. Arthur Austin, who was intoxicated at the time, interjected by telling the appellant that, if he wanted to, he could take his money. The appellant responded by slapping Austin. Warner then placed Austin in a headlock. Another host, Armel Kamden, tried to intervene and stop the fight, but the appellant prevented him from doing so. Kamden testified that the appellant threatened to shoot him if he persisted. Following this altercation, some of the hosts turned the lights up, the music down, and declared the party over. They ultimately relented and the party continued. The appellant and Warner left the party at around 12:30 a.m. but returned about 15 minutes later.

[9] Shortly after their return, the appellant confronted Nicole Hamilton, who was controlling the music, and demanded that the music be changed. Hamilton testified that the appellant aggressively told her that “shit is going down tonight” or “shit is going to happen”, which prompted her to disconnect her device.

[10] Later, the appellant once again expressed dissatisfaction over the music being played. He asked the person then controlling the music, Wesley Adi, to stop playing it. Adi and other witnesses heard the appellant say that he could “end this fucking party right now”. The appellant suggested that he and Adi step outside, and Warner signalled the same. The appellant gripped the waistband of his pants to suggest that he was armed. Kamden cautioned Adi not to go outside with the appellant, as the appellant’s threat to Kamden earlier in the evening suggested he was carrying a firearm.

The shooting

[11] At some point during this incident, the appellant pulled out a gun from a black sock. Warner also pulled out a gun. Shots were fired, hitting three people: Chinambu and Tsibu-Darkoh were shot but survived; Musgrave was shot in the head and died. Warner admitted at the first trial that he shot Tsibu-Darkoh in the arm. All three victims were hit by .22 calibre ammunition.

The appellant’s version of events

[12] The appellant testified that he never discharged his firearm, which he said was a .380 calibre semi-automatic handgun (no forensic evidence linked any of the fragments to a .380 calibre weapon). The appellant said he pulled out his firearm because he felt threatened. He testified that, after he lowered his firearm, Warner shot all three victims. The appellant denied being a party to the offences committed by Warner. He testified that he did not know Warner was carrying a gun or was going to shoot anyone and did not intend to assist him.

[13] Both the appellant and Warner fled the scene. The appellant said he panicked and that he dropped his gun while leaving the home. He picked up the gun, continued running, and hid the gun in an evergreen bush on the front lawn of a nearby home. The appellant testified that he returned later, retrieved the gun, and dumped it in a sewer. He explained that he did so because he had previously been convicted of a firearm offence and was subject to a weapons prohibition.

[14] The appellant travelled to Nova Scotia after spending two nights at his girlfriend’s residence. He testified that he wanted to “lie low” until Warner was arrested, which he believed would afford him a better opportunity to clear his name.

Lead fragment

[15] During their investigation of the home, the police discovered a lead fragment and a mark on a nearby baseboard in the hallway. According to the Crown, this was relevant because Samuel Osunbunmi had testified that, while he was in that hallway, he saw the appellant point a gun at him and then heard a gunshot. The Crown sought to use this evidence to establish that the mark on the baseboard was caused by a ricocheted bullet fired by the appellant. This contradicted the appellant’s testimony that he did not discharge his firearm.

[16] The Crown tendered expert evidence about the fragment at the first trial. Given the extent of the damage to the fragment, the expert could not determine with any certainty that it was a bullet. He could say only that it was an item made of lead and could be from a bullet. Neither the police nor the Crown conducted any further investigation of the lead fragment after the first trial. The expert testified at the first trial that if a bullet were fired down the hallway, there would have to be some mark. On being shown a photograph of the mark on the baseboard, he agreed that if the bullet struck the baseboard at that location, the bullet could have ricocheted to the area where the lead fragment was found.

[17] This issue arose again at the second trial when, during a mid-trial voir dire, the trial judge suggested to the expert that he attend the scene nearby and conduct a further examination (which would include taking further measurements and photographs). After doing so, the expert testified that: (1) the mark on the baseboard was a bullet ricochet; (2) the bullet moved from left to right, travelling slightly upwards; (3) the bullet created damage to the baseboard; (4) the bullet struck the floor and ricocheted off the baseboard; and (5) it was possible for the bullet to have struck the baseboard, lose energy, and not damage the opposite wall.

Evidentiary rulings

(a) Admissibility of black socks found at girlfriend’s apartment

[18] The appellant sought to challenge the warrant that authorized the search of his girlfriend’s apartment, which is where the police seized black socks that tested positive for gunshot residue. The trial judge found that the appellant had neither a subjective nor an objective expectation of privacy, and as a result had no reasonable expectation of privacy in the apartment. Consequently, the appellant had no standing to challenge the warrant.

(b) Admissibility of ammunition located at girlfriend’s parents’ home

[19] Shortly after the shooting, police executed a search warrant at the home of the appellant’s girlfriend’s parents. Police seized several bags of ammunition, including bullets that were the same type as the fragments found at the scene of the shooting (i.e., .22 calibre). They also seized bullets that did not match – including .357 and .32 calibre – but no .380 calibre ammunition. The appellant argued that the prejudicial effect of admitting the entire ammunition cache outweighed its probative value.

[20] The trial judge ruled that the .22 calibre bullets could be introduced by the Crown. Although he did not allow the other ammunition to be introduced at the instance of the Crown, he determined that it was admissible at the instance of the co-accused. Warner intended to use the evidence to show that because the appellant was in possession of .22 calibre ammunition (the type of bullet that struck the victims), as well as other types, but not .380 calibre (which is what the appellant claims to have had that night), he was being untruthful. The trial judge concluded that the prejudicial effect of this evidence on the appellant did not substantially outweigh its probative value to Warner.

(c) The “Austin incident”

[21] Kamden, a Crown witness, was going to testify that he saw Warner assaulting Austin, and that the appellant threatened to shoot Kamden after he attempted to intercede. The appellant objected to this evidence going in, arguing that, as prior discreditable conduct, its prejudicial effect outweighed its probative value. The trial judge noted the high probative value of the evidence and reasoned that because there was minimal risk of moral and/or reasoning prejudice, and because this incident was “far less serious than the counts on the indictment”, the jury could hear about it. He also noted that this court did not, when it reviewed the first trial, raise any concern with the admission of this evidence.

Discussion

The appellant lacked standing to challenge the warrant

[22] The appellant argues that the trial judge erred in finding that he did not have standing to challenge the warrant executed at his girlfriend’s apartment. This argument must be rejected.

[23] Although the trial judge found that the appellant did not have a subjective expectation of privacy in the unit, the real question was whether, even if he did, this expectation was objectively reasonable. On this question, the trial judge cited the applicable law, considered the relevant factors, and found that, having regard to the totality of the circumstances, any such expectation was not reasonable. In coming to this conclusion, the trial judge found that the appellant (i) was not present at the time of the search, (ii) did not have possession or control of the unit, and (iii) had fled to Nova Scotia, thereby abandoning the unit. He found, further, that the tenant (the appellant’s girlfriend) had relinquished the unit to the landlord by the time the search was conducted.

[24] These findings were open to the trial judge and they amply support his conclusion that the appellant failed to demonstrate an objectively reasonable expectation of privacy in his girlfriend’s apartment at the time of the search. He had no standing to challenge the warrant.

The ammunition evidence was properly admitted

[25] The trial judge did not err in admitting, at Warner’s instance, the non-.22 calibre ammunition found at the home of the appellant’s girlfriend’s parents. The appellant testified that he had a .380 firearm at the party and that he had previously given .22 calibre ammunition to Warner. All of the victims were shot with a .22 calibre weapon. Because the ammunition seized included .22, .357, and .32 calibre ammunition, but not ammunition for a .380 firearm, it was capable of supporting Warner’s position and was important to his theory of the case.

[26] The trial judge relied on this court’s decision in R. v. Pollock (2004), 187 C.C.C. (3d) 213 (Ont. C.A.), leave to appeal refused, [2014] S.C.C.A. No. 262, which held that the balancing test for admitting evidence by a co-accused is different than for the Crown. At the instance of Warner, the evidence was admissible unless its prejudicial effect on the appellant substantially outweighed its probative value: Pollock, at para. 110.

[27] Absent an error of law, a trial judge’s assessment of probative value and prejudicial effect is entitled to deference. The trial judge clearly articulated the importance of this evidence to Warner’s defence and turned his mind to its potential impact on the appellant’s, acknowledging the risk of moral prejudice. The trial judge also provided the jury with an instruction on the impermissible uses of this evidence, which took into account the fair trial rights of each accused.

[28] This ground of appeal fails.

The expert opinion evidence was properly admitted

[29] This ground of appeal alleges unfairness concerning the procedure followed at trial. We begin with a brief discussion of the procedural context.

(a) Procedural context

[30] Shortly after the shooting, the police discovered a lead fragment and damage to a nearby baseboard of the hallway wall. The Crown’s theory was that the fragment was from a bullet discharged by the appellant that had ricocheted off the baseboard. The Crown’s expert, Benjamin Sampson, testified at the first trial that he could not determine with certainty whether the lead fragment was a fired bullet, that the baseboard damage could have been caused by a bullet, and that the bullet could have ricocheted and changed direction towards where the fragment was ultimately found. The appellant did not challenge Sampson’s qualifications at the first trial and did not challenge his opinion on that appeal.

[31] Pre-trial motions were heard for the second trial in August 2017. The appellant brought a motion to exclude evidence relating to the lead fragment, which was opposed by both the Crown and Warner. The trial judge admitted the lead fragment evidence, concluding that its probative value outweighed any prejudicial effect: R. v. Chambers and Warner, 2017 ONSC 5142, at para. 59. He also ruled that Sampson could give expert opinion evidence about the lead fragment given his experience and qualifications in the examination of firearms and ammunition, but that the opinions of three police officers were inadmissible: Chambers and Warner, at paras. 60, 65.

[32] In September 2017, one month prior to the second trial, the police attended the home where the shooting occurred and re-photographed the baseboard.

[33] The second trial began on October 24, 2017. After several weeks of evidence, the Crown and Warner sought to have the new baseboard photographs admitted into evidence. The appellant’s trial counsel (not Mr. Litkowski) was opposed, raising concerns about inadequate disclosure, some modifications that had occurred in the hallway since 2010, and the need for expert evidence to support any inference that the mark on the baseboard was a bullet ricochet. Addressing the latter concern, Crown counsel suggested that Sampson examine the new photographs. The trial judge agreed and indicated he would rule on the admissibility of the new photographs once that opinion was obtained.

[34] The Crown obtained reports on the new photographs from Sampson as well as Michael Plaxton, a forensic video analyst. On November 28, 2017, the trial judge ruled that the photographs of the mark on the baseboard, the evidence of the property manager (indicating that the baseboard had never been replaced), and the expert evidence of Sampson and Plaxton were admissible. He summarized the anticipated expert evidence as follows:

Mr. Plaxton's opinion is that the mark photographed in 2017 is the same mark photographed distantly in 2010. Mr. Sampson, after reviewing the 2017 photos, will indicate that the damage to the baseboard has the typical appearance of a bullet ricochet. However, Mr. Sampson cannot confirm or exclude that the mark on the wall is as a result of a bullet ricochet.

The trial judge concluded that the evidence had significant probative value and minimal prejudicial effect.

[35] During Sampson’s subsequent testimony about his qualifications, trial counsel objected, taking the view that the expert was not qualified to provide an opinion on whether the damage caused to the baseboard was from a bullet. In the course of the voir dire that ensued, the trial judge asked Sampson if it would be helpful for him to attend the house and see the mark on the baseboard. Sampson indicated that it would be better to attend and examine the baseboard in person rather than look at photographs. The trial judge acknowledged the passage of time since the incident but said Sampson could go to the house and examine the evidence, and that he would determine afterwards whether the evidence from the physical inspection should be admitted. Neither counsel objected and Sampson visited the scene.

[36] Following his visit to the scene, Sampson’s opinion was that the mark on the baseboard was a bullet ricochet. The trial judge ultimately qualified him as an expert in respect of “projectile strikes” and damage to the baseboard – a conclusion that is not challenged on appeal.

[37] After the ruling qualifying Sampson, the trial judge noted that he would give the defence until the following week to call any experts. The appellant’s counsel had previously indicated that the experts he would consider retaining were unavailable to attend trial during this timeframe. The appellant ultimately did not raise the issue again, nor did he call any expert evidence on this issue.

(b) The parties’ positions

[38] The appellant argues that the trial judge erred by asking the expert to attend the scene and by permitting the Crown to tender a new expert opinion about the lead fragment during the trial. The appellant submits that the trial judge failed to act as a neutral arbiter and gatekeeper of the evidence: R. v. Hamilton (2004), 72 O.R. (3d) 1 (C.A.), at para. 67, and that the late change in the Crown’s case violated the notice requirements in s. 657.3 of the Criminal Code, R.S.C. 1985, c. C-46 and was procedurally flawed and substantively unfair. Further, the appellant submits that he was prejudiced by not having time to respond to the new expert evidence. Lastly, he argues that the Crown had ample time to obtain a new expert opinion before the second trial and did not do so, instead taking advantage of the trial judge’s improper suggestion to the expert.

[39] The Crown argues that the trial judge’s intervention did not compromise the fairness of the trial, reminding the court that a trial judge has wide latitude in discharging his or her trial management duties: R. v. Ibrahim, 2019 ONCA 631, 147 O.R. (3d) 272, at para. 96. The Crown asserts that the appellant suffered no prejudice. It points out that the appellant did not object to the trial judge’s suggestion that the expert attend the scene of the shooting, a decision likely motivated by tactical considerations: the worst-case scenario for the appellant was that the expert’s opinion about the mark on the baseboard would not be affected, whereas the best-case scenario was that his opinion would change to the appellant’s benefit. Moreover, the trial judge offered the appellant’s counsel time to retain and prepare his own expert if needed.

(c) Analysis

[40] It is important to be clear about what is and is not being challenged here. The appellant is not challenging the trial judge’s rulings that the lead fragment evidence was admissible; that the new photographs of the baseboard taken shortly before the second trial were admissible; that Sampson and Plaxton could give opinion evidence about the new photographs; or that Sampson was qualified to give opinion evidence on “projectile strikes” and damage to the baseboard. Instead, he is challenging the fairness of what he characterizes as a change to the case he had to meet.

[41] We are not persuaded that the trial judge compromised the fairness of the trial. Sampson expressed the opinion at the first trial that the damage to the baseboard could have been caused by a bullet. Prior to Sampson’s testimony at the second trial, the trial judge ruled that the new photographs of the baseboard (which had not been changed or repaired since the first trial) as well as Sampson’s opinion evidence about those photographs were admissible. In the course of addressing a subsequent objection to Sampson’s testimony, the trial judge suggested that Sampson view the damaged baseboard rather than rely on the photographs. This was the context in which Sampson was permitted to visit the scene and examine the baseboard. Whether he could give an opinion about the mark on the baseboard had already been the subject of submissions by counsel and resolved by the trial judge’s admissibility ruling.

[42] Trial counsel did not object to the trial judge’s suggestion that Sampson attend the scene. The failure of trial counsel to object is not determinative, but it severely undermines the suggestion of unfairness now being raised on appeal. Counsel may have been motivated by tactical considerations in not objecting, as the Crown argues, anticipating that the “worst-case scenario [for the appellant] was that the expert’s opinion would not be affected”. If this is so, the appellant erred, for following his physical examination of the baseboard Sampson’s opinion changed in a manner adverse to the appellant. He testified that the mark on the baseboard was the result of a ricocheted bullet, instead of his anticipated testimony (consistent with his evidence at the first trial) that it could have been.

[43] The appellant says s. 657.3 of the Criminal Code was breached when the Crown tendered a new expert opinion without providing adequate notice to the defence. However, trial counsel did not request an adjournment, nor did he seek any additional time to retain and call a defence expert. After indicating that potential defence experts were unavailable during the two weeks that followed, he simply did not raise the issue again. The appellant does not say he was prevented from presenting evidence that would have undermined the Crown’s expert evidence, nor does he bring a fresh evidence application seeking to do so on this appeal. Again, this severely undermines the appellant’s unfairness argument.

[44] This is not a case involving the sort of actions by a trial judge during the course of a trial that typically attract appellate intervention on the basis of trial fairness. For example, the trial judge did not align himself with the case for the Crown, preclude the appellant from presenting his case, or invite the jury to disbelieve the appellant or his defence: see R. v. Murray, 2017 ONCA 393, 138 O.R. (3d) 500, at paras. 91-97. The trial judge’s actions occurred in the absence of the jury, permitting the expert to base his evidence on the actual baseboard rather than pictures of it. The trial judge’s actions occurred without objection from trial counsel. The circumstances were unusual, but in our view the strong presumption that a trial judge has not improperly intervened during a trial has not been displaced: R. v. Hamilton, 2011 ONCA 399, 271 C.C.C. (3d) 208, at para. 29, leave to appeal refused, [2011] S.C.C.A. No. 547; Murray, at para. 95. We are not satisfied that the trial was rendered unfair by the manner in which the expert evidence was handled.

[45] This ground of appeal fails.

The Austin incident was properly admitted

[46] The trial judge did not err in admitting evidence regarding the Austin incident. Although it was evidence of prior discreditable conduct, this incident was highly probative of several issues identified by the trial judge and was an integral part of the narrative. As the trial judge noted, the Austin incident involved the threat of shootings over trivial matters, as was alleged to have occurred in this case. It was open to infer that both accused were prepared to engage in intimidating behaviour and were prepared to use guns to suppress any opposition to their aggression. The events were close in time and place and involved aggressive actions towards some of the same partygoers, and so explained why they reacted as they did prior to the shootings.

[47] In short, the Austin incident had significant probative value in connection with the shooting and the trial judge reasonably concluded that it outweighed any prejudice to the appellant. The trial judge properly instructed the jury that they were not to use this evidence to engage in prohibited propensity reasoning and instructed them as to the limited use of the evidence. Nothing more was required.

[48] This ground of appeal fails.

The charge was not inadequate, unfair, or unbalanced

[49] The appellant argues that the jury charge was lengthy and simply recited much of the evidence, contrary to this court’s guidance in cases such as R. v. Newton, 2017 ONCA 496, 349 C.C.C. (3d) 508, and R. v. Barreira, 2020 ONCA 218, 62 C.R. (7th) 101. The appellant notes that the judge was the same trial judge as in Barreira and submits that he made the same mistake in this case: in essence, repeating the evidence as a whole without parsing it and relating it to the live issues.

[50] We do not accept this argument.

[51] In fairness to the trial judge, this court’s decision in Barreira was released subsequent to the jury charge given in this case. Nevertheless, the charge cannot be impugned on this basis. This was a lengthy trial and there was a significant gap in time between the testimony of the final witness and the jury charge – almost four weeks – as a result of the Christmas holidays and trial counsel’s preference to put the matter over to the new year. In these circumstances, the trial judge’s decision to include a relatively lengthy recitation of the evidence is not surprising, even if it might not otherwise have been appropriate. Significantly, the trial judge reduced the length of the charge in response to the appellant’s submission, based on Newton, that the first draft of the charge was lengthy.

[52] Moreover, unlike Barreira, there was no risk that the charge in this case would lead the jury to consider irrelevant issues or evidence not relevant to a live issue. In Barreira, by the end of the trial, the issues had narrowed largely due to one of the appellants admitting to shooting the deceased and causing his death. Under the first element of first-degree murder (causation), the trial judge in Barreira stated the evidence from start to finish instead of simply referring the jury to the appellant’s concession. Under the second element (whether the death was caused unlawfully), the trial judge invited the jury to consider all of the evidence reviewed under the first element rather than pointing the jury to the concession that the appellant had shot the deceased at close range. The third and fourth elements (state of mind for murder and planning and deliberation) were at issue in Barreira. The trial judge invited the jury to consider all the evidence previously summarized and only briefly highlighted a few pieces of evidence, much of which was not helpful given the issues the jury had to decide. That was the context in which this court held that the trial judge failed to isolate and relate the relevant evidence to each issue the jury had to determine.

[53] This case stands in contrast to Barreira. The identity of the shooter was very much at issue in the appellant’s trial. Whether the appellant was a party to Warner’s shooting of Tsibu-Darkoh was also at issue. With respect to the appellant’s conviction for the second-degree murder of Musgrave, under the first element (whether the particular accused caused Musgrave’s death by shooting him), the trial judge was required to review much of the relevant evidence from the witnesses at the party in order to assist the jury in deciding this issue. This evidence was also relevant to the second element (whether Musgrave’s death was caused unlawfully), and the trial judge highlighted that the unlawful act in this case was the alleged shooting. With respect to the third element (whether the particular accused had the state of mind for murder), although the trial judge referred the jury to the evidence he had previously summarized, he also specifically highlighted and repeated numerous pieces of evidence that were relevant to this issue with respect to each accused individually. This focused review of the evidence was not brief or irrelevant. The trial judge took a similar approach in the charge with respect to the elements of aggravated assault and the live issue of party liability. In the circumstances of this case, the charge was adequate and related the evidence to the issues: R. v. Gardner, 2021 ONCA 539, leave to appeal refused, [2021] S.C.C.A. No. 323; R. v. Alexis, 2020 ONCA 334, 388 C.C.C. (3d) 226.

[54] As to balance, we note that two drafts of the jury charge were distributed to counsel for comment. The appellant’s counsel offered several suggestions on the second draft, but at no point did he object on the basis of balance concerns. Again, while a failure to object is not determinative, in these circumstances it is a strong indication that the charge was balanced: R. v. Laforme, 2022 ONCA 395, at para. 31; R. v. Stubbs, 2013 ONCA 514, 300 C.C.C. (3d) 181, at para. 146. This ground of appeal fails.

The sentence was not unfit

[55] The appellant argues that the 18-year period of parole ineligibility was harsh and excessive, and that it should have been in the 12-14 year range. We do not agree.

[56] The trial judge considered all of the relevant mitigating and aggravating factors. He considered the appellant’s circumstances, including his difficult upbringing, his youth, his improved relationship with his father, and the length of time he had already spent in custody. The aggravating factors were extensive: the appellant concealed and ultimately discharged a loaded firearm, engaged in a series of unprovoked confrontations, threatened to use a weapon before the shooting, and shot unarmed victims. The appellant had a lengthy criminal record and was, at the time of the offence, prohibited from possessing a firearm.

[57] We see no error in principle, nor can it be said that the sentence is demonstrably unfit. It is entitled to deference: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089.

Conclusion

[58] For these reasons, we would dismiss the appeal from conviction. We would grant leave to appeal sentence but would dismiss the appeal.

Released: June 21, 2023 “G.H.” “Grant Huscroft J.A.” “J. George J.A.” “I agree. Sossin J.A.”