Accused knew of seized firearm in circumstantial case: Ontario court

The trial judge was entitled to reject the suggestion that others left the items seized under a search warrant without the knowledge of the accused person, the Ontario Court of Appeal said in a recent case.

In June 2018, two children suffered serious injuries when shots were fired at a playground in Scarborough. Police obtained a warrant to search the co-accused’s apartment for a firearm potentially used during the shooting.

The appellant and the co-accused were present during the search. Police found a handgun fully loaded with an overcapacity magazine, a plastic bag with 18 rounds of ammunition, a second overcapacity magazine loaded with 15 rounds of ammunition, a digital scale, and two baggies with around seven grams of cocaine.

The appellant and the co-accused were jointly charged with the following Criminal Code offences: unauthorized possession of a firearm under s. 91(1), possession of a loaded restricted firearm under s. 95(1), possession of a restricted weapon without a licence under s. 92(1), two counts of possession of a prohibited device without a licence under s. 92(2), and careless storage of a firearm under s. 86(1). They were also charged with unlawful possession of cocaine under the Controlled Drugs and Substances Act, 1996.

The Ontario Court of Justice tried them together. The appellant did not testify. The co-accused testified that she did not know about the items seized from her apartment and that all items at the night table belonged to the appellant.

Justice Maria Speyer acquitted the co-accused but found the appellant guilty of all charges. She sentenced the appellant to 38 months’ imprisonment, less 22 months to account for time spent in pre-sentence custody and on restrictive bail conditions. This left a sentence of 16 months.

The trial judge made the following findings:

• The appellant and his brother were friends or associates of a suspect in the shooting
• The appellant knew that the seized items were in the apartment, either because he himself put them there or was aware that either his brother or the suspect did so
• The brother or the suspect could not place the items at the night table and hamper without the appellant’s knowledge
• The co-accused did not have knowledge or control of the items
• The seized firearm was the same one that the suspect handled in a video

On appeal, the appellant challenged the verdict’s reasonableness, the correctness of the trial judge’s conclusions, and the adequacy of her explanation for finding him guilty.

Appellant had control of seized items

In R. v. Walters, 2023 ONCA 4, the Ontario Court of Appeal granted leave to appeal sentence and dismissed the conviction and sentence appeals.

Regarding the conviction appeal, the appellate court ruled that the verdicts were reasonable and consistent. The court said that it was not its role to step into the trial judge’s shoes and to freshly decide the issue of possession. While the case for possession was entirely circumstantial, this was usual for this type of proceeding, the court added.

The judge was entitled to conclude that the appellant had knowledge and control of the seized items and that the appellant either placed the items in the bedroom or knew that his brother or the suspect did so, the Court of Appeal ruled. The judge made no error by inferring the appellant’s guilt based solely on his occupancy of the apartment, the court said.

The judge cited the applicable authority for interpreting s. 4(3) of the Criminal Code, including a passage from R. v. Morelli, 2010 SCC 8 that emphasized the subjective mental element required for possession, the appellate court held.

Next, the Court of Appeal tackled the sentence appeal. The court decided that the judge gave thorough written reasons for the imposed sentence.

The appellate court rejected the appellant’s arguments that the sentence was excessive, that he had a low level of moral blameworthiness, and that the judge wrongly imposed a 12-month consecutive sentence for possession of the second loaded over-capacity magazine. Possession of a second magazine was a distinct legal wrong that deserved its own punishment, the court said.