Court of Appeal for Ontario

Date: 20241010 Docket: COA-24-CR-0009

MacPherson, Favreau and Dawe JJ.A.

Between:

His Majesty the King Respondent

and

Trayvon Boreland-Goode Appellant

Counsel:

Trayvon Boreland-Goode, acting in person Amy Ohler, appearing as duty counsel Emily Marrocco, for the respondent

Heard: October 7, 2024

On appeal from the convictions entered on September 28, 2023, and December 8, 2023, by Justice Joan M. Barrett of the Superior Court of Justice, sitting with a jury.

Reasons for Decision

[1] The appellant was tried by a jury on a multi-count indictment. The jury acquitted him of most of the charges, but found him guilty of a single count of possessing a loaded prohibited firearm without a licence. This charge related to a sawed-off shotgun that the police had found in a parked vehicle. The Crown adduced evidence that the appellant was the vehicle’s owner and regularly drove it. The other charges against the appellant all depended entirely on testimony from his former girlfriend, who accused him of assaulting her, threatening her, and pointing a shotgun at her on two different occasions.

[2] The appellant was also charged on a separate indictment with possessing a firearm contrary to a s. 109 Criminal Code prohibition order. After the jury’s verdict on the charges on the first indictment, the trial judge also found the appellant guilty of this additional charge.

[3] The appellant appeals against his convictions only. At the conclusion of the hearing, we advised that the appeal was dismissed with reasons to follow. These are those reasons.

[4] The appellant’s first ground of appeal, which he advanced with assistance from duty counsel, arises out of how the trial judge handled a communication from a juror shortly before the jury delivered its verdict.

[5] A few hours into the jury’s deliberations, a juror sent the trial judge a note that read:

One of [the] jurors, number 12, as it turns out has significant experience with guns. It is swaying the conversation heavily and if possible we ask that the jury [sic] be either replaced or let go as it is preventing us from having an unbiased opinion.

[6] The trial judge convened counsel to discuss how she should respond. While she was still hearing submissions, the jury sent a further message that it had reached a verdict. The trial judge told counsel: “I don’t think it’s necessary for us to engage any more in terms of how to answer the question that was asked because the jury has reached a verdict.” She then recalled the jury and took the verdict. As noted, the jury found the appellant not guilty on all but one count. [1]

[7] The appellant argues that the trial judge erred by taking the jury’s verdict without first responding to the juror’s note.

[8] In R. v. Ellis, 2013 ONCA 9, 113 O.R. (3d) 641, this court held that in this situation it will usually be prudent for the trial judge, before taking the verdict, to confirm that the jury does not need its question answered: see paras. 65-69. However, Watt J.A. noted at para. 60:

I do not say … that receiving a verdict in advance of responding to an outstanding question from a deliberating jury, without express confirmation that no answer to the question is required, requires the verdict rendered to be set aside in all cases.

[9] For three main reasons, we are satisfied that in the circumstances here it was not necessary for the trial judge to obtain express confirmation that the jury did not need a response to the juror’s note before giving its verdict.

[10] First, the note did not contain any question about the law that the jury was required to apply. Rather, it can perhaps be best viewed as an expression of frustration by at least one juror about how another juror was dominating the deliberations, and how this was impeding the jury’s ability to reach a verdict. The fact that the jury reached unanimous verdicts on all counts a short while later suggests that the jurors had managed to work out their difficulties on their own, and no longer needed assistance from the trial judge. Indeed, the jurors were polled and all confirmed that they agreed with the verdict.

[11] Second, this was not a case “in which the jury's question reflects a legal misapprehension, or raises the prospect that, absent further instruction, the jury may be under a misapprehension about a governing legal principle”, such that the trial judge was required to “provide the appropriate correct instruction and provide jurors with the opportunity to retire to reconsider whether they require further time for deliberations”: Ellis, at para. 66.

[12] Third, the verdict that the jury ultimately reached – finding the appellant guilty of possessing the shotgun found in the parked vehicle, but not guilty on all the other counts – suggests that to whatever extent a juror with “significant experience with guns” may have been dominating the deliberations, this did not prejudice the appellant. It was an agreed fact that the police had seized two shotguns, one of which was operable, and also an agreed fact that the operable gun was a prohibited firearm. The police evidence that they had found the two shotguns in a duffle bag in the back seat area of the vehicle was uncontroverted. The sole disputed issue on this count was whether the appellant had been in constructive possession of the operable shotgun, which required the prosecution to establish a link between him and the vehicle where it was found. It is hard to imagine how one juror’s experience with firearms could have unduly influenced the jury’s deliberations on this count.

[13] In summary, we are satisfied that in the particular circumstances here, the trial judge did not err by taking the jury’s verdict without first inquiring whether the jury wanted a response to the juror’s note.

[14] The appellant also advanced a second ground of appeal.

[15] A Crown witness at trial, Mr. Tang, testified that in 2019 he purchased the vehicle where the shotguns were later found from a man he knew as “Trevor”, whom he identified as the appellant. Mr. Tang testified further that about a year and a half later he advertised the vehicle for resale, which led to “Trevor” repurchasing it from him. When the police searched the vehicle in November 2021 and found the shotguns, they also found registration papers in Mr. Tang’s wife’s name.

[16] The appellant argues that the reliability of Mr. Tang’s evidence was undermined by what the appellant says was his faulty memory of the date that he first purchased the vehicle from the appellant. According to the appellant, this happened in 2020, not in 2019.

[17] The appellant chose not to testify at trial. In any event, the exact date that Mr. Tang purchased the vehicle was of no real consequence. What was important was his evidence that he then resold the vehicle to the appellant in 2021, before the police searched it and found the shotguns. Mr. Tang’s testimony on this point was uncontradicted. There was also evidence that the appellant lived near the parking lot where the police found the vehicle, and that they had tracked it to the parking lot by following the GPS coordinates of a cell phone they believed was associated with him. The jury was entitled to infer from this evidence that the appellant had the required knowledge and control to have had constructive possession of the guns that the police found in the vehicle.

[18] The appeal is accordingly dismissed.

“J.C. MacPherson J.A.”

“L. Favreau J.A.”

“J. Dawe J.A.”

Footnotes

[1] The trial judge had previously directed acquittals on two counts, and the jury found the appellant not guilty on six of the remaining seven counts.