Court File and Parties

Court of Appeal for Ontario Date: 2024-12-16 Docket: COA-23-CR-1358

Before: van Rensburg, Monahan and Madsen JJ.A.

Between: His Majesty the King Respondent

And: Austin Cubitt Appellant

Counsel: Austin Cubitt, acting in person Megan Stephens, appearing as duty counsel Erica Whitford, for the respondent

Heard: November 6, 2024

On appeal from the convictions entered on February 22, 2023, by Justice Ronald A. Minard of the Ontario Court of Justice.

Reasons for Decision

[1] On February 22, 2023, following a two-day trial in the Ontario Court of Justice, the appellant was found guilty of four firearms-related charges: unauthorized possession of a firearm (s. 91(1)); possession of a firearm knowing its possession was unauthorized (s. 92(1)); trafficking in a firearm (s. 99(2)); and possession of a firearm while subject to a s. 109(2) weapons prohibition order (s. 117.01(1)). He was sentenced to four years and six months.

[2] The appellant appeals his conviction only, arguing that the decision of the trial judge was tainted by the improper use of judicial notice to determine a key issue in dispute: whether he was in possession of a firearm as defined in s. 2 of the Criminal Code, R.S.C. 1985, c. C-46, and whether he transferred that firearm to someone else.

[3] For the reasons below, the appeal is dismissed.

A. Brief Background

[4] On September 6, 2020, the police were investigating a death on the Saugeen First Nation. The appellant was arrested and charged with second degree murder in relation to that death and held at the Central North Correctional Centre (CNCC). Over six months later, on March 30, 2021, the additional firearms-related charges were laid in relation to the events of September 6, 2020. On February 22, 2023, the trial for the firearms offences was held. The charge of second-degree murder did not form part of the underlying trial currently on appeal before this court.

[5] The case against the appellant was circumstantial. The evidence was that on the day of his arrest, the appellant had been depicted on CCTV video from the local library, carrying what appeared to be a long gun case in one hand and a smaller case in the other. When he was arrested shortly thereafter, he was not carrying those two cases. The alleged firearms were never recovered.

[6] While detained pending his trial on the murder charge, the appellant was found to have written three letters from prison, one of which referred to having buried two P-80 firearms at the home of his friend Courtney Nawash, which was located between the library and the location where the appellant was arrested. In that letter, the appellant directed the recipient, “Jacob”, to attend her home to retrieve them and re-bury them. The letters also contained what can only be described as obvious references to the selling of drugs and outstanding drug debts.

B. Position of the Appellant

[7] The appellant makes two arguments related to what he asserts was the improper use of judicial notice by the trial judge.

[8] First, he submits that the trial judge improperly took judicial notice of facts that are not properly the subject of judicial notice; notably, the fact that the letters included references to drug subculture, and the fact that those involved in the drug industry would have operational firearms. The appellant argues, relying on R. v. J.M., 2021 ONCA 150, 154 O.R. (3d) 401, at para. 31 (v), citing R. v. Mabior, 2012 SCC 47, [2012] 2 S.C.R. 584, at para. 71, that these facts are not so “notorious” or “accepted” as to not be “the subject of dispute among reasonable persons.” Further, he argues that the trial judge’s error in taking judicial notice was compounded as it went to a dispositive issue in the case: namely, whether the P-80 was operational and thus a firearm within the meaning of s. 2 of the Criminal Code.

[9] Second, the appellant argues that he was denied procedural fairness because the trial judge took this judicial notice on his own initiative without inviting submissions from counsel on how apparent references to drugs in the letters might relate to whether the appellant was in possession of an operational firearm at the relevant time.

C. Analysis

[10] We are unable to accept these arguments.

[11] In his thorough decision, the trial judge carefully reviewed the applicable framework given the circumstantial nature of the case, and turned his mind to the key issues to determine whether the evidence established: (1) that the appellant was in possession of the P-80 firearms at the relevant time, and specifically, whether it was reasonable to infer that the appellant was the person depicted in the CCTV video; and (2) that the items carried by the appellant in the video were in fact operable firearms that were buried at or near the Nawash residence.

[12] To determine these issues, the trial judge considered the video evidence, the arrest evidence, and the letter evidence.

[13] First, regarding the letters, he found that the only reasonable conclusion, in light of the totality of the evidence, was that the letters were written by the appellant while detained at CNCC. This was based on the fact that, among other things, the single envelope containing the three letters indicated on its face that it was from him; the envelope was addressed to a former surety with whom the appellant had previously lived; and the letters contained details consistent with the video evidence and the burying of the P-80’s at the Nawash residence.

[14] Second, the trial judge found that the appellant was the person depicted on the video, which was of good quality. He found that the person in the video bore a “compelling resemblance to the accused”, noting both his build and his attire. As a result, he further found that the person depicted in the video was the same person arrested on September 6, 2020.

[15] The trial judge then reviewed the three letters carefully, to determine whether the appellant was in possession of an operable firearm or firearms at the relevant time. In his review of the letter “to Jacob” in particular, he noted the “clear references to activity within the drug culture,” such as references to “purple candy” having a value of $2,400, “dark night” at $150 per ounce, and a reference to keeping customers happy. Though the trial judge did find these references to be probative and relevant, he also noted that they were “certainly not definitive in this case.” The trial judge also highlighted the following statements by the appellant in the letter to Jacob:

a. Jacob should drive up to the Res, and “grab [the appellant’s] shit Courtney buried for [him]”; b. “She [Courtney Nawash] has my big bang boomerang if you know what I mean”; c. Jacob should not go without protection; d. “[S]he [Courtney Nawash] has both P-80’s”; e. Jacob should bury the P-80’s in a safe place when he got them because they are worth $20,000; f. Jacob should “tell Vivian [the appellant’s grandmother] to message Reni (ph) saying Courtney has something of [the appellant’s]” and “[t]ell her she buried it right before [the appellant] was arrested”; and g. Jacob should “clean it and lube it and bury it in a freezer bag and wrap it in six garbage bags so it don’t [sic] corrode.”

[16] On the basis of those references in the letter, the trial judge found that it was reasonable to infer that:

a. the “shit” that was buried was the items being carried observed on the library CCTV; b. the “big bang boomerang” was a reference to an operable firearm; c. the stated value of the P-80’s was inconsistent with them being only part of a firearm that is inoperable; d. the fact that the firearms needed to be buried in a manner to ensure that the metal parts did not corrode also indicated these were complete, operable firearms; and e. the items were buried at the Nawash residence less than an hour before the appellant was arrested.

[17] Given the totality of these findings, the trial judge found that the only reasonable conclusion was that appellant was referencing complete and operable P-80 firearms that he had buried just minutes prior to his arrest. While the trial judge noted that the finding that the firearm was operative “[was] also consistent with the nature of the drug industry” and that “partial handguns that do not work are of no use in the drug industry”, these comments were at most peripheral to his reasoning. The finding that the appellant was found to be in possession of operable firearms rests squarely on the findings of fact set out in the decision and not on any comments about the relationship between drug culture and guns. We would, in any event, add this court’s observation that handguns and drug deals are “frequent companions”: see R. v. Simon, 2010 ONCA 754, 104 O.R. (3d) 340, at para. 1, leave to appeal to S.C.C. refused, [2010] S.C.C.A. No. 459.

[18] This case is distinguishable from R. v. J.M. cited by the appellant. In that case, the trial judge referred to extrinsic evidence, including his past experiences, expert evidence from a different case, and scientific evidence that was not filed in the matter. In this case, the trial judge made reference to obvious drug references in the appellant’s letter for which expert evidence was clearly not required. However, as shown above, the trial judge did not rely on that observation to reach his conclusions. He merely noted that his conclusions “were consistent with” the nature of the drug industry. Nor do we accept that the trial judge’s passing references to guns in the drug industry amounted to bad character evidence or that it posed a risk of moral or reasoning prejudice in this judge-alone trial.

[19] Reading the decision as a whole, it is clear that the trial judge did not infer that because of the appellant’s apparent involvement in the drug industry, he must have had an operable gun. To the contrary, the findings of fact of the trial judge are well anchored in the evidence. He concluded:

I have been satisfied beyond a reasonable doubt that in that letter the accused was referencing complete P-80 firearm or firearms that, with the assistance of Courtney Nawash and possibly Renita Nawash, he buried at that location within minutes of him subsequently being arrested by Office Lohr and Officer Lohr’s colleagues and that they were indeed firearms, they fit the definition of firearms in section 2 of the Criminal Code. And with the other concessions given and that I have referenced in this judgment I therefore conclude that the accused’s guilt on the four offences before me has been established to the exclusion of all reasonable doubt.

[20] We agree with the trial judge that the only reasonable conclusion on the totality of the evidence before the court was that the appellant was guilty of all four charges. This conclusion did not rest on the improper use of judicial notice.

D. Disposition

[21] For the reasons set out above, the appeal is dismissed.

“K. van Rensburg J.A.”

“P.J. Monahan J.A.”

“L. Madsen J.A.”