His Majesty the King v. Calvin Cesar

2025 ONCA 798

DATE: 2025-11-20

DOCKET: COA-23-CR-0915

Sossin, Copeland and Gomery JJ.A.

BETWEEN

His Majesty the King — Respondent

and

Calvin Cesar — Appellant

Anne Marie Morphew, for the appellant

Jim Clark, for the respondent

Heard and rendered orally: November 19, 2025

On appeal from the conviction entered by Justice Michael Block of the Ontario Court of Justice, on January 27, 2023, and from the sentence imposed on August 31, 2023.

REASONS FOR DECISION

[1] The appellant appeals conviction and sentence on charges relating to possession of a loaded prohibited firearm in a vehicle, possession of MDMA, and possession of property obtained by crime.

[2] On the conviction appeal, the appellant argues issues related to the trial judge's Charter rulings, as well as that the verdicts are unreasonable.

[3] The appellant argues that the trial judge erred in finding that the appellant's arrest did not infringe his s. 9 right to be free from arbitrary detention and his rights under s. 7 of the Charter.

[4] We disagree. The arresting officer had reasonable and probable grounds to arrest the appellant for operating a motor vehicle in breach of a driving prohibition imposed for a criminal conviction in Quebec. The issue is not whether the officer was correct that the driving prohibition was still in effect, although it appears the trial judge was correct that it was, but rather, whether the officer reasonably believed that the driving prohibition was still in effect. We see no basis to interfere with the trial judge's finding that the investigation done by Constable Furfaro was sufficient to establish reasonable and probable grounds that the appellant was prohibited from driving.

[5] The appellant argues that the seizure of the satchel breached his s. 8 right to be free from unreasonable search and seizure. We disagree. The trial judge described the proximity of the firearm in the satchel to the appellant's leg as that "it could not have been closer to him unless it was actually strapped to his body or secreted in his clothing." The record, including the police evidence, supported the conclusion that the search was done for safety purposes to ensure that there were no dangerous items in the satchel. In the circumstances, there was no error in the trial judge's finding that the satchel was within the proper scope of a search incident to arrest: *R. v. Stairs*, 2022 SCC 11, [2022] 1 S.C.R. 169, at paras. 34-36.

[6] The appellant argues that, even if the trial judge made no errors in the Charter rulings, the verdicts were unreasonable. The appellant argues that the trial record disclosed that other people had access to the car in which the appellant was arrested with the firearm, the MDMA, and a significant amount of cash, and as a result, the finding that possession was proven is unreasonable.

[7] We do not agree. The record was sufficient to establish the knowledge and control required for possession on the part of the appellant. The trial judge relied on a constellation of factors to conclude that possession was proven beyond a reasonable doubt. At the time the appellant was arrested, he had been asleep in the vehicle, alone, observed by the police for approximately 40 minutes, with no-one else coming or going from the vehicle. The satchel containing the firearm and other items was against the appellant's right leg -- partially concealed between his leg and the centre console. As soon as the appellant awoke and became aware of the presence of the police, he reached for the satchel and then quickly moved the satchel from its place concealed beside his leg to the passenger seat. The trial judge found these acts to show the appellant reassuring himself of the location of the satchel and then attempting to distance himself from it. In addition, the trial judge inferred from the value of the items -- the firearm and the significant amount of cash -- that the satchel either belonged to the appellant or was entrusted to his control with his knowledge of the nature of the items in it.

[8] It was open to the trial judge to find that this combination of factors led to the conclusion that the defendant had knowledge and control of the satchel and its contents.

[9] The fact that the record could also be said to provide support for the conclusion that the appellant may have jointly possessed the firearm and other items does not detract from the reasonableness of the conclusion that at the time the appellant was arrested, he had knowledge and control of the satchel and its contents. The findings made by the trial judge were available on the record and are not unreasonable.

[10] On the sentence appeal, the appellant argues that the trial judge erred in failing to address the principles from *R. v. Morris*, 2021 ONCA 680, 159 O.R. (3d) 641, regarding consideration of the impact of anti-Black racism in sentencing. These principles were argued at the sentencing hearing.

[11] In the circumstances, while it would have been preferable if the trial judge had adverted to the principles from Morris, we are not persuaded that the failure to do so impacted the sentence imposed. The appellant had a prior conviction for possession of a restricted or prohibited firearm. The sentence imposed was at the low end of the range for cases involving a second offence of possession of a restricted or prohibited firearm.

[12] The conviction appeal is dismissed. Leave to appeal sentence is granted, but the sentence appeal is dismissed.

"L. Sossin J.A."

"J. Copeland J.A."

"S. Gomery J.A."