Court File and Parties

Court: COURT OF APPEAL FOR ONTARIO Date: 2024-07-15 Docket: COA-22-CR-0234

Before: Fairburn A.C.J.O., Roberts and Trotter JJ.A.

Between: His Majesty the King, Respondent and Brian Norman Vivian, Appellant

Counsel: Riaz Sayani, for the appellant Jim Clark, for the respondent

Heard: May 16, 2024

On appeal from the conviction entered by Justice Marc R. Labrosse of the Superior Court of Justice on December 1, 2021, sitting with a jury, and the sentence imposed on May 6, 2022.

Roberts J.A.:

[1] On December 1, 2021, a jury convicted the appellant of the offences of possession of firearms and a taser, breach of recognizance, and intentional discharge of a firearm. He appeals only from the conviction on Count 5, the intentional discharge of a restricted firearm under s. 244.2(3) [1] of the Criminal Code, R.S.C., 1985, c. C-46. The appellant challenges the trial judge’s W.(D.) instruction and his treatment of the defence expert evidence in the jury charge: R. v. W.(D.), [1991] 1 S.C.R. 742. Alternatively, he seeks leave to appeal the five-year custodial sentence imposed by the trial judge, arguing that the trial judge erred in principle by failing to consider a sentence below the five-year mandatory minimum.

[2] These reasons explain why I would dismiss the conviction and sentence appeals.

A. Background

(1) Underlying Facts

[3] On February 6, 2019, the appellant rented a hotel room in Ottawa. The receptionist noticed that the appellant appeared agitated and assigned him a room in an unoccupied area of the hotel so that he would not disturb other guests.

[4] Over the course of approximately two hours in the early morning of February 6, 2019, the appellant called the police five times. He told police that three male intruders had rappelled through the windows and shot at him. He said that this had happened to him at another hotel a couple of weeks back. On the third call, he said that the men were back and trying to kill him. On the fourth call, he mentioned there was a hole in the wall.

[5] The first two times that the police responded to the appellant’s calls, they saw nothing to substantiate his claims. The officers opined that no one had come through the windows; they did not observe any signs of damage to the windows or forced entry at the door. The appellant was pacing and speaking loudly. The police thought that the appellant may have been having a mental health crisis.

[6] The police came a third time, and the officers observed a handgun. The appellant showed them a bullet hole in the wall of his hotel room. The police traced the hole through the wall to the vacant, adjoining hotel room where they found a hole in the pillow and headboard of the bed. They observed another hole in the exterior wall of that room. They also found a handgun next to the coffee maker in the appellant’s hotel room and bullets strewn on his bed. On his arrest, the police searched the appellant’s hotel room and found other firearms, ammunition and a taser. At that time, the appellant was on a recognizance not to possess firearms. Later, cleaning staff found a bullet casing in the appellant’s hotel room, which the Crown expert opined corresponded to the appellant’s handgun.

(2) Proceedings Below

(a) Conviction on Count 5 – Intentional Discharge of a Firearm

[7] The defence ultimately agreed that the appellant had brought the firearms, taser, and ammunition into the hotel room and disavowed the appellant’s complaints of intruders in the 911 calls as the product of his delusions. As a result, the appellant’s possession of the firearms, taser, and ammunition, and his breach of the recognizance not to possess firearms, were not seriously in issue. Accordingly, the trial effectively centred around one issue: whether the Crown had proven beyond a reasonable doubt that the appellant had intentionally discharged the handgun.

[8] The Crown theory propounded that the appellant was angry at the police for disbelieving his claims about intruders and that he discharged a handgun from around the bathroom door, as he alleged the intruders had done, and planted the firearms and ammunition in the hotel room to stage a scene. The Crown’s case rested on the testimony given by the police officers who attended at the hotel room and interacted with the appellant, the physical evidence of the bullet hole, the presence of the firearms, ammunition, taser, and bullet casing that matched the handgun found in the appellant’s hotel room, and the expert evidence concerning firearms.

[9] While the appellant pleaded not guilty to all charges, the only issue on which the defence focused was the issue of whether the discharge of the handgun was accidental or deliberate. The defence theory proposed that the appellant was experiencing a mental health episode, potentially due to alcohol and/or drug consumption, and that, without admitting the appellant had pulled the trigger, the handgun had accidentally gone off when inside the appellant’s overalls. The appellant did not testify.

[10] In support of the defence theory that the discharge of the handgun was accidental, the appellant called the expert evidence of Liam Hendrikse, a forensic scientist, specializing in firearms and ballistics, who testified that a firearm had been discharged at some point from inside the appellant’s overalls based on soot patterns, and that, when this happened, the firearm was not inside the pocket, but rather down the pants of the appellant’s overalls. The expert opined that a bullet had exited around the left knee of the overalls. He could not, however, pinpoint what model of firearm was discharged, when the firearm was discharged, or state that the firearm was discharged when the overalls were worn.

[11] In his voir dire ruling allowing the defence expert evidence of Mr. Hendrikse, the trial judge indicated that he would reference the defence expert evidence that a firearm was possibly discharged from the appellant’s pants, either in the W.(D.) instruction or in the instruction related to the elements of the offences in the jury charge. The trial judge ultimately did not include the reference in the W.(D.) instruction but featured it in the instruction related to the mental element of intention on Count 5, intentional discharge of a firearm, [2] as follows:

The fourth question is whether Crown counsel has proven beyond a reasonable doubt that Brian Vivian intentionally discharged the firearm. To intentionally discharge a firearm means to fire it by intentionally pulling the trigger. Intentionally means on purpose or, in other words, not by accident. When people intend to do things, they do them deliberately. You may be wondering how you decide what someone intends. Intention is a state of mind and we cannot physically see inside other people’s minds to decide whether or not they intend to do something. Thus, you will have to use your common sense and infer from all the evidence you have heard, including anything you determine Brian Vivian said and did, to determine whether he intended to fire the gun.

In considering this question you will undoubtedly consider the evidence of Liam Hendrikse, who opined that a firearm was discharged from inside Mr. Vivian’s overalls. It is for you to decide if this evidence has an impact on your assessment of intention. In addition to Mr. Hendrikse’s evidence you will want to consider the evidence of Miss Dickinson and the agreed statement of fact (Exhibit 27). You may also want to consider the content of the 911 calls (Exhibit 11). If you answer no, you must find Brian Vivian not guilty of Count 5. [Emphasis added.]

[12] Defence trial counsel made no objection to this portion of the charge.

[13] The trial judge included the following W.(D.) instruction in the jury charge, which he had also vetted with trial counsel during the pre-charge conference:

You have heard Brian Vivian’s version of the events through the 911 calls and the evidence of the police officers who have testified as to what he said. When a person charged with an offence has his version before the court, you must assess that evidence as you would assess the testimony of any other witness, keeping in mind my instructions to you earlier about the credibility of witnesses. You may accept all, part, or none of Brian Vivian’s version of the events.

Of course, if you believe Brian Vivian’s version of the events, that his room was broken into and that the firearms offences were caused by someone else and that he did not commit the offences charged, you must find him not guilty. However, even if you do not believe Brian Vivian’s version of the events, if it leaves you with a reasonable doubt about his guilt or about an essential element of an offence, you must find him not guilty of that offence.

Even if the testimony of Brian Vivian does not raise a reasonable doubt about his guilt or about an essential element of an offence charged, if after considering all the evidence you are not satisfied beyond a reasonable doubt of his guilt, you must acquit. [Emphasis added.]

[14] When asked for his submissions concerning the proposed W.(D.) instruction, defence counsel responded as follows:

I take no issue with it if you wish to put it to them. I don’t know that – there’s not much – it assists in the sense that it gives them a tiered set of considerations, right? I mean, it just sort of explains the process when there’s evidence from the accused. I’m fine with you including it. I don’t think it’ll confuse things, anyway. That’s my view.

[15] In response to defence counsel’s views, Crown counsel added: “No, no. Based on your closing, I wouldn’t say it confuses it.”

[16] Defence counsel made no objection to the charge following its delivery to the jury.

[17] In his closing submissions, with respect to the issue of whether the firing of the handgun was intentional, Crown counsel stated that:

We all intend the natural consequences of our actions, unless we’re zombies. Since a firearm was discharged, the obvious inference is that it was done intentionally, unless the evidence as a whole convinces you otherwise. And you can’t end your analysis on just the mere possibility that [the appellant] just accidentally pulled the trigger. It forces you to ignore just too much evidence.

[18] Crown counsel went on to argue that the appellant’s “intending encompasses a whole spectrum of behaviour and actions that led up to his discharging of the firearm in the hotel room.” He concluded this part of his submissions with:

So are you to then conclude that just the pulling of the trigger was the accident? You need to accept this on the whole of the evidence. Do you? People don’t just do things for no reason. Everyone intends the natural consequences of their actions, and Mr. Vivian’s actions all flow consistently towards intentionally pulling the trigger.

[19] The appellant was convicted of all charges.

(b) Sentence

[20] The trial judge concluded that the appropriate sentencing range was five to seven years. He imposed a global five-year sentence. The sentence imposed for Count 5, the intentional discharge of a firearm, was five years. The sentences imposed on the other counts were between six months and a year, to be served concurrently with the five-year sentence on the intentional discharge offence. After credit for pre-sentence custody, the appellant’s effective sentence was two years and two months.

[21] The trial judge considered the following factors as mitigating: the appellant had a history of drug and alcohol addiction; he had become actively involved with a recovery centre after his arrest and detention and had turned to his faith for support; his criminal record is unrelated to the use or trafficking of firearms, and the firearms in question were not linked to other kinds of offences; the appellant appears to have been intoxicated at the time of the offence and suffering from a mental health episode; and, he expressed remorse.

[22] Aggravating factors found by the trial judge included: the appellant had a lengthy criminal record, including convictions relating to break and enter, theft, assault, and numerous breaches; the hotel was occupied at the time of the discharge and the shooting could have killed someone if there had been a person in the bed in the adjoining room; he was subject to a weapons ban at the time of the offence; and, the serial number on the handgun had been filed down.

[23] The appellant brought a s. 12 Charter of Rights and Freedoms challenge to the five-year mandatory minimum for intentional discharge of a firearm. The trial judge declined to consider it because he concluded that “[a] fair sentence for [the appellant] is at the lowest end of the range for prohibited or restricted weapons, being a five-year sentence”, namely, the mandatory minimum, and that the constitutional argument therefore “would not affect the sentence”.

B. Analysis

(1) Conviction Appeal

[24] The appellant submits that the trial judge erred in his W.(D.) instruction to the jury. First, it was inconsistent with the defence theory and confusing. Moreover, in light of the Crown’s closing submissions about intention that effectively reversed the burden of proof, the charge should have included the following modified W.(D.) instruction: even if the jury did not affirmatively accept the defence expert’s evidence, that evidence, along with the other evidence, could still leave them with a reasonable doubt about the appellant’s guilt. The appellant argues that the lack of any objection by defence counsel is of no moment because this was of no tactical or other benefit to the defence.

[25] I agree that the W.(D.) instruction did not appear to reflect the defence position in that the defence ultimately asserted that the contents of the 911 calls were not true but a manifestation of the appellant’s delusions. I am not persuaded, though, that the W.(D.) instruction undermined the defence or confused the jury, nor that the jury would have been unclear about the Crown’s burden or the presumption of innocence. Given the focus of the evidence at trial, the closing submissions, and the jury charge, the jury could not have been in any doubt that the principal issue was whether the Crown had proven beyond a reasonable doubt that the appellant deliberately fired the handgun in the hotel room.

[26] Justice Watt in R. v. Parris, 2013 ONCA 515, 309 O.A.C. 289, at para. 76, provided the following guidance in assessing the adequacy of a jury charge in the context of a challenged W.(D.) instruction:

Our obligation upon appellate review is to take a functional approach to the charge as a whole to determine whether the jury could have been left with any misunderstanding about the obligation of the Crown to prove an accused's guilt beyond a reasonable doubt on the evidence as a whole, not by simply choosing between the competing versions. [Citations omitted.]

[27] In applying the well-established functional approach to the jury charge, I conclude that the jury was provided with the tools it needed to decide the case. In addition to the general instructions about the Crown’s burden of proof and the presumption of innocence, the jury was repeatedly instructed that the Crown had the unwavering burden to prove beyond a reasonable doubt that the appellant had intentionally discharged the firearm. The jury was also instructed twice that the defence expert evidence that the firearm could have been discharged from inside the appellant’s overalls could be considered in relation to the question of the element of intention to discharge the firearm.

[28] I am not persuaded that the trial judge should have given a modified W.(D.) instruction in relation to the defence expert evidence in the form suggested by the appellant. Such an instruction would not have fulfilled the purpose of the W.(D.) instruction. As Watt J.A. stated in Parris, at para. 75:

The purpose of instructions such as those suggested in W. (D.) and their functional equivalents is to ensure that the jury understands that their verdict must be not based on a choice between the evidence of the accused and that tendered by the Crown, but on whether, based on the whole of the evidence, they are left with a reasonable doubt about an accused’s guilt. [Citations omitted.]

[29] In my view, the proposed instruction would have proved confusing to the jury. The underlying rationale for a W.(D.) instruction on the expert evidence was absent: as defence counsel observed during the pre-charge conference, there was no real conflict in the expert evidence and therefore no risk that the jury would assess it on an either/or basis. Moreover, if accepted, the defence expert evidence could only establish that at some point in time a bullet was fired through the knee of the appellant’s overalls, not necessarily while the overalls were worn by the appellant and not necessarily at the time of the offence. The proposed instruction does not make clear how the defence expert evidence, together with other unidentified evidence, could leave the jury with a reasonable doubt on the issue of whether the discharge was accidental or not. The jury could have accepted the defence expert evidence and still have concluded that the appellant deliberately fired the handgun into the wall.

[30] Rather, the trial judge’s reference to the defence expert evidence in the instructions on the elements of the offence was of the most assistance to the jury. It clearly focused the jury’s attention on the issue of intention to discharge the handgun and directed the jurors to consider the impact of the defence expert evidence on that issue. That instruction, together with the multiple instructions about the Crown’s burden and the presumption of the appellant’s innocence, provided the jury with the appropriate analytical means to assess the evidence and come to a verdict.

[31] Relatedly, the appellant submits that the proposed W.(D.) instruction or a corrective instruction was necessary in light of the above-referenced portion of the Crown’s closing about intention. He argues that Crown’s closing misled the jury about the relationship between circumstantial evidence and reasonable doubt and effectively reversed the burden of proof.

[32] I disagree. Crown counsel’s statements repeat a general presumption about intending one’s actions. I agree that Crown counsel’s apparent leap from the general presumption of intending one’s actions to the specific presumption that the appellant fired the handgun unless the evidence convinces the jury otherwise appears problematic. However, it occasioned no harm when considered in the context of the entirety of the Crown’s submissions. Moreover, the repeated reminders in Crown’s and defence closing submissions, and in the jury charge of the Crown’s burden and the presumption of innocence of the appellant, would have left the jury in no confusion.

[33] Finally, I do not accept that defence counsel’s failure to object to the charge is of no importance in this case. As Watt J.A. stated in Parris, at para. 83: “While failure to object is not fatal to a claim of error, it is of some significance in light of the opportunities for objection presented to counsel at trial.”

[34] Defence counsel did not make any objection to the now impugned portions of the charge during the several opportunities for objection presented to counsel at trial. Defence counsel took no issue with the W.(D.) instruction in the charge and, importantly, indicated that it would not be confusing. He made no objection to the instruction about the elements of the offence and the effect of the defence expert evidence on intention. There is no indication that the lack of objection and endorsement of the charge were anything but considered positions taken by defence counsel during trial. There is no suggestion of ineffective assistance of counsel. Indeed, the record demonstrates that defence counsel commendably represented the appellant in very difficult circumstances.

[35] For these reasons, I would dismiss the conviction appeal.

(2) Sentence Appeal

[36] The appellant argues that the trial judge erred by treating the sentencing range like a straight jacket and “baked” the mitigating factors into the bottom of the range, therefore failing to consider that the appropriate sentence could be below five years.

[37] I see no basis to intervene. There is no error in principle in the trial judge’s determination of the sentence, which is entitled to appellate deference: R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at paras. 25-26; R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 44.

[38] The appellant does not suggest that the trial judge was mistaken with respect to the applicable sentencing range, or that he erred in his identification of the predominant sentencing principles of deterrence and denunciation or in his enumeration of the mitigating and aggravating factors in this case. The trial judge’s reasons demonstrate that he was not constrained by the sentencing range and clearly explain why he concluded that five years was appropriate in the circumstances of this case.

[39] The sentence is not demonstrably unfit. It properly balances the applicable sentencing principles and is not excessive, given the seriousness of the offences and the potential of deadly harm to the public by the appellant’s firing of the handgun into the adjacent hotel room, as well as his lengthy criminal record, and his breach of the recognizance that could have resulted in a consecutive sentence.

[40] As there is no reversible error in the sentence, it is unnecessary to consider the appellant’s constitutional argument.

[41] I would therefore dismiss the sentence appeal.

C. Disposition

[42] I would dismiss the conviction appeal. I would allow leave to appeal sentence but dismiss the sentence appeal.

Released: July 15, 2024 “J.M.F.” “L.B. Roberts J.A.” “I agree. Fairburn A.C.J.O.” “I agree. Gary Trotter J.A.”

[1] The relevant portions of Count 5 read that the appellant “did intentionally discharge a firearm, namely a handgun, into or at a place, namely a hotel room …, knowing or being reckless as to whether another person was present in that place, contrary to Section 244.2, subsection (3) of the Criminal Code of Canada.” [2] The trial judge included the same reference to the defence expert’s evidence in his instructions about the included offence of careless discharge of a firearm.