COURT FILE NO.: CR-15-869

DATE: 2019 08 14

ONTARIO SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT

B E T W E E N:

HER MAJESTY THE QUEEN

R. Levan for the Respondent Crown

• and -

W. (M.)

R. Parker for the Appellant W. (M.)

HEARD: January 14 and May 13, 2019

REASONS FOR JUDGMENT

[On appeal from the judgment of Madam Justice Maresca dated December 23, 2014 and the sentence imposed by Justice Maresca on March 6, 2015]

D.E HARRIS J.

1The appellant, M.W. appeals his convictions for weapons dangerous and possession of a concealed weapon. He also appeals his five-month jail sentence for these convictions.

THE CONVICTION APPEAL

The Evidence

2Mr. W. was in custody on June 6, 2014 at the Roy McMurtry Correctional Facility. He was to appear that day at court in Toronto. As is routine, he was placed on a “ranger chair” before he was transported. This device is for the purpose of detecting metal objects. The alarm sounded indicating that he had metal in the area of his buttocks. The procedure was repeated several times with the same result.

3Mr. W. was then strip searched. Nothing was found. Mr. W. was then housed in a “dry cell”: a jail cell with no running water or toilet. After some time, Mr. W. called through his cell door asking for toilet paper and hand sanitizer. After this was provided, he returned soiled toilet paper to the staff. He asked to be placed on the ranger chair again and again the chair sounded.

4Before being taken for an x-ray procedure, Mr. W. was seen washing fecal matter off his hands in a staff sink. When he returned from the x-ray, he was placed on the ranger chair. This time the alarm did not go off.

5The dry cell Mr. W. had previously occupied was thoroughly searched. Feces was found smeared on the walls near the bench and on the door frame and wall. A snake camera was used to look at the narrow tunnel at the top of the doorframe where the door to the cell slides open. Hidden there and wrapped in plastic—the plastic covered in feces—was a folding knife with a three-inch blade.

The Issues at Trial and the Judge’s Reasons

6The trial was fought exclusively on the issue of whether the appellant was in possession of the folding knife found in the door frame. The defence attacked the credibility of the Crown witnesses from the institution, impugned the accuracy of the ranger chair and suggested that the knife could only have been placed where it was found when the cell door was open. It was argued that someone else could have put the knife in the opening.

7The trial judge found that the appellant secreted the knife in his bowels, removed it by defecating, and then hid it in the gap of the sliding door mechanism. He was therefore in possession of it. The trial judge said:

In my view there is no other reasonable or rational explanation for how the knife got into the gap other than Mr. W. put it there…

8This finding is not challenged upon appeal.

9The conviction appeal issues revolve around the obligation on the Crown on both the concealed weapon and weapons dangerous charges to prove that the knife was a weapon within the definition of weapon in Section 2 of the Criminal Code. This provision requires that the object in question must be used or intended to be used to injure or to intimidate.

10The defence at trial did not argue that the knife was not a weapon. The Crown in her closing submissions, however, raised the issue and argued that the knife had been proven to be a weapon.

11With respect to this issue, the trial judge found in her brief reasons that Mr. W. was on his way to court and,

.. would almost certainly have been placed in a cell with others while awaiting his appearance and returned to the Roy [McMurtry Correctional Facility].

12The trial judge recognized in her reasons that in order to constitute a weapon, it had to be proved the appellant intended to use the knife to cause injury or to intimidate. She concluded,

…the inference is clear that Mr. W. attempted to take the knife with him to Court in order to harm or intimidate someone…this element of the offence has also been proved beyond a reasonable doubt.

DECISION

13In her factum, amicus for the appellant argued that it was incumbent on the trial judge “to examine and reject all reasonable explanations” before concluding that the knife was possessed to injure or intimidate. It is only if it was possessed for this purpose that it could be a characterized as a weapon within the Criminal Code. The decision in R. v. Villaroman, 2016 SCC 33, 2016 CSC 33, [2016] 1 S.C.R. 1000, which had not yet been released at the time of the trial judge’s reasons, emphasizes the importance of examining gaps in the evidence and determining whether they result in inferences other than guilt. The trial judge was in error in not looking at alternative inferences.

14The appeal was argued by a different lawyer. She took a slightly different tack. Her submissions took aim at two factual conclusions from the reasons: 1. The appellant would “almost certainly” have been placed in a cell “with others” at court in Toronto; and 2. He would have been returned to the Roy McMurtry institution.

15With respect to these, it was argued that there was no evidence led concerning either the holding cell situation in Toronto or being returned to Roy McMurtry. These were assumptions with no evidentiary grounding.

16Dealing first with the main argument, according to counsel, the trial judge should have asked herself whether there was any other rational explanation other than guilt: see Villaroman at paras. 26, 38. Not to do so was a misapplication of the beyond a reasonable doubt standard and burden of proof. In addition, the verdict was unreasonable. Lastly, the possession of the weapon for a purpose dangerous to the public peace count was not made out.

17I reject these arguments. Crown counsel seizes on the fact the defence at trial did not argue the knife was not a weapon for the purpose of saying that the appellant is precluded from raising it on appeal, relying on cases like R. v. Reid 2016 ONCA 524, [2016] O.J. No. 3554 at paras. 37-40. This cannot be correct. The intention to use the knife to threaten or to injure is an element of the offence. If there was a flaw with respect to this element in the evidence or the trial judge’s reasons, it would be of a fundamental nature going to the Crown’s proof of the accusation. Errors with respect to an element of the offence will not generally be barred by the prohibition upon new arguments on appeal.

18The new issue can be raised. However, that it was not argued by the defendant at trial is not without importance. It is contextual background with significant ramifications for appeal scrutiny of the trial judge’s reasons. The content and quality of a trial judge’s reasons must be assessed in light of the issues raised by counsel: R. v. Sheppard, 2002 SCC 26, [2002] S.C.J. No. 30 at para. 55, points 6 and 8, R. v. M. (R.E.), 2008 SCC 51, [2008] 3 S.C.R. 3 at paras. 37-41.

19In this case, while it is true the trial judge did not spend a great deal of time on the weapons issue, this is understandable and does not suggest legal error. The reasons were responsive to the issues raised by the evidence and argued at trial. Central to this, there was no defence argument on this element of the offence.

20Second, the step between possession and a nefarious use was not difficult to bridge. Nor was the inference of intent to cause injury or to intimidate contradicted by any evidence to the contrary or by any argument made by counsel.

21Third, in a similar vein, it is difficult to conjure up innocuous, non-criminal uses of the knife which could have left a finder of fact in a reasonable doubt. Counsel mentioned at the appeal that the appellant may have been selling or trading the knife. This alternative, and other ones like it which can be imagined, may have been theoretical possibilities but there was no evidence led at trial to support them. They fell into the category of speculation.

22Fourth, the trial judge was not obligated to recite any particular mantra from Villaroman or any other case. Justice Cromwell said at para. 18:

It is now settled that no particular form of instruction to the jury is required where the evidence on one or more elements of the offence is entirely or primarily circumstantial.

23This goes even more so for a trial by judge alone. There was no need for the trial judge to say that threatening or harming a person or persons was the “only reasonable inference.” It is presumed that the trial judge was aware of the law: Sheppard para. 55, point 9. As said above, there were really no viable competing inferences that the trial judge ought to have referred to.

24Furthermore, in the quote from the trial judge above at paragraph 7, the trial judge found that there was no other “reasonable or rational explanation” for how the knife got to where it was found other than that the appellant put it there. This is an example of the trial judge applying the beyond a reasonable doubt standard to circumstantial evidence, albeit with respect to a different essential element than the subject of this appeal. It is safe to assume the trial judge applied the same legal standard with respect to the intention to injure or intimidate.

25Much is made of the trial judge’s comments that it is not known what the appellant intended. These comments, read in proper context, simply acknowledged that the specific details of what the appellant was going to do with the knife were unknown. From a factual perspective, this is unassailable. Moreover, in law, there is no need for the Crown to prove these details beyond a reasonable doubt. It would be impossible to do so. The Crown is only required to prove that the appellant was going to use the knife to injure or intimidate someone. Whether the use was going to be against a police officer, correctional staff member, fellow inmate, lawyer or judge is quite superfluous.

26In reference to the second charge, possession of the knife for a purpose dangerous to the public peace, the mental element requires an extra element beyond the concealed weapon count. If the possession of the knife was for a defensive purpose, then the possession was not for a purpose dangerous to the public peace: R. v. Kerr 2004 SCC 44, [2004] 2 S.C.R. 371.

27The need for the Crown to prove this extra element is of no avail to the appellant. In the absence of evidence to support a defensive purpose, the trial judge was entitled to find the appellant guilty.

28Lastly, the trial judge’s factual conclusions concerning the appellant being “almost certainly” housed in cells in Toronto and that he would return to the Roy McMurtry facility were both sound. Being purely factual findings, absent palpable and overriding error, they are immune from appellate scrutiny: Housen v. Nikolaisen 2002 SCC 33, [2002] 2 S.C.R. 235. Furthermore, both findings were of minimal relevancy to the issue of the intention to use the knife to intimate or injure.

29The trial judge did not commit an error of law. Furthermore, the verdict of guilty was one a reasonable jury, properly instructed, could properly have reached. It was fully supported by the evidence. The verdicts were not unreasonable: R. v. P. (R.), 2012 SCC 22, [2012] 1 S.C.R. 746 at para. 9, R. v. Biniaris, 2000 SCC 15 at paras. 36, 97, R. v. Yebes, 1987 17 (SCC), [1987] 2 S.C.R. 168 at p. 186.

THE SENTENCE APPEAL

30The five-month concurrent sentences, concurrent to each other and concurrent to the sentence he was already serving, was not challenged as either demonstrably unfit or as the product of an error in principle: see R. c. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089 at para. 41.

31Instead the appellant argued that there has been a material change of circumstances which now should lead to the substitution of either a conditional or an absolute discharge.

32These are the facts behind the argument. The appellant was a young person under the Youth Criminal Justice Act, S.C. 2002, c. 1 (YCJA) when housed at Roy McMurtry. He was being housed there with respect to an accusation of murder against him, an allegation he was eventually found guilty of. On the day of the commission of the offences now at issue, he was to be transferred to Toronto for the murder sentencing. By this time, he was 19 years old. When sentencing did ultimately take place on the murder conviction, an adult sentence was ordered by the trial judge.

33Subsequently, the Court of Appeal overturned the trial judge and found that the sentence should have been a youth sentence under the Youth Criminal Justice Act, S.C. 2002, c. 1 (YCJA): see R. v. W. (M.), 2017 ONCA 22, 134 O.R. (3d) 1. A 10-year youth sentence was imposed with an order for Intensive Rehabilitative Custody Supervision ("IRCS").

34As a result, the appellant had a youth record for murder. By reason of Section 119(2)(h) of the YCJA, a youth murder conviction record is “accessible” for five years after it is imposed. After this period, the use and access to the record is severely restricted: Section 128. The conviction must be removed by the RCMP from the criminal conviction records retrieval system (ss. 4). The record entry must be dealt with “in the same manner … as an offence committed by an adult for which a record suspension [was] ordered under the Criminal Records Act.” (ss. 5) This is equivalent to what used to be called a pardon and severely limits the use of the conviction.

35However, subsection 9 of Section 119 of the YCJA stipulates that if the young person within the five-year access period becomes an adult and is convicted of an “offence”, the youth record “shall be dealt with as a record of an adult”: ss. (b). For the purposes of the Criminal Records Act, the youth finding of guilt is deemed to be a conviction: ss. (c).

36Because of the convictions currently under appeal, the appellant’s youth record for murder was converted into an adult record and he lost the protection of the YCJA five- year access provision (more restrictive than the use to which an adult record can be put), and more importantly, lost the benefit of the highly restricted use afforded under Section128.

37The appellant argues that the conversion to an adult murder record is a disproportionate collateral consequence and renders the five-month sentence unfit. The sentence should be reduced to a discharge. Discharges are not convictions: Section 730(1) of the Criminal Code. If discharges were imposed, Section119(9) would not operate against the appellant. His record would remain a youth record.

38I agree that the Court of Appeal’s reduction of the appellant’s adult sentence to a youth sentence constitutes a material change in circumstance. If the appellant’s murder sentence had remained an adult record, this issue would not have arisen. However, I disagree that the five month sentences at issue should be reduced to discharges.

39The Crown did not argue that the conversion of the youth record to an adult record was not a collateral consequence. It clearly is. Any consequence which impacts an offender as a result of a criminal sentence must be taken into account in fashioning a proportionate sentence: see R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739 at para. 11. Frequently occurring collateral consequences are loss of employment, deportation, and negative repercussions for the accused’s family.

40An adult record, as contrasted with a youth sentence, carries a higher level of stigma and is usable by the authorities in an unrestricted manner. This is a collateral consequence of the sentence: i.e. something that increases the impact of the sentence on the appellant.

41However, imposing a discharge on the appellant would do violence to the proportionality concept at the core of our sentencing regime. It is true that there may be some situations where the offence which triggers the conversion to an adult record is so minor that it would be unfair not to grant a discharge. Section 119(9) of the YCJA can be harsh in its effect on an individual. Because the term “offence” defined in Section 2(1) of the Act encompasses any offence created by an Act of Parliament, a shoplifting conviction or other relatively minor criminal or even quasi-criminal infraction could lead to a youth record being converted to an adult record.

42The offences at issue here are far from minor, however. Their gravity needs little elaboration. The clandestine possession of a knife in a vehicle transporting the appellant to court, in the holding cells at court and potentially in court itself, is sinister and chilling. Intended or actual violence in these places is a harrowing prospect. The sentencing principles of general deterrence and denunciation are vital to protect the administration of justice and all the individuals who work in it. Other inmates must also be protected. Keeping custody safe for inmates and for staff is no easy task. It is of paramount importance however to the administration of justice and its public reputation.

43The crux of the difficulty faced by the appellant is that the sentence of a discharge needed to avoid the effect of Section 119(9) would be manifestly unfit and well outside of the range of permissible sentences for these offences. Moreover, the appellant has a previous record when 15 years old for possession of a prohibited or restricted firearm with ammunition and assault with a weapon. He received time served of 115 days and probation. This previous record further adds to the inappropriateness of a discharge.

44The Chief Justice said in Pham at paragraph 18,

where a sentence is varied to avoid collateral consequences, the further the [proposed] varied sentence is from the range of otherwise appropriate sentences, the less likely it is that it will remain proportionate to the gravity of the offence and the responsibility of the offender.

45A discharge would be markedly disproportionate to the offence and the offender. The sentence appeal is dismissed.

46For these reasons, the conviction and sentence appeals are both dismissed.

D.E. HARRIS J.

Released: August 14, 2019

COURT FILE NO.: CR-15-869

DATE: 2019 08 14

ONTARIO SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL

COURT

B E T W E E N:

HER MAJESTY THE QUEEN

R. Levan for the Respondent Crown

– and –

W. (M.)

R. Parker for the Appellant W. (M.)

REASONS FOR JUDGMENT