R. v. Smith (P.A.), (2016) 345 O.A.C. 65 (CA)

• Judge: Watt, Lauwers and D. Brown, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: January 13, 2016
• Jurisdiction: Ontario
• Citations: (2016), 345 O.A.C. 65 (CA);2016 ONCA 25

R. v. Smith (P.A.) (2016), 345 O.A.C. 65 (CA)

MLB headnote and full text

Temp. Cite: [2016] O.A.C. TBEd. JA.015

Her Majesty the Queen (respondent) v. Paul Anthony Smith (appellant)

(C57174; 2016 ONCA 25)

Indexed As: R. v. Smith (P.A.)

Ontario Court of Appeal

Watt, Lauwers and D. Brown, JJ.A.

January 13, 2016.

Summary:

The accused was a passenger in a vehicle stopped by police. The police saw a handgun on the driver's side floor mat. The driver was arrested and handcuffed after a brief struggle. The accused, who was told at gunpoint to get down on the ground, fled on foot, but was later caught and arrested. The accused and driver were charged with, inter alia, firearms offences, possession of marijuana, and possession of marijuana for the purpose of trafficking. The driver was acquitted on all counts. The accused was convicted of multiple firearms offences, several offences arising from his resisting arrest and possession of cocaine. He was acquitted on the remaining counts respecting marijuana and possession of the proceeds of crime. The accused was sentenced to a total of seven years and three months' imprisonment, less credit for pre-trial custody on a 1.0 to 1.0 basis. The accused appealed against conviction on the grounds that (1) the trial judge erred in failing to decide his case separately from the case against the driver and (2) that the verdict was unreasonable, as it was based on impermissible speculation rather than permissible inference. The accused also appealed against sentence, arguing that the trial judge erred in failing to give him 1.5 to 1.0 credit for pre-trial custody.

The Ontario Court of Appeal dismissed the accused's conviction appeal, but allowed the sentence appeal to the extent of giving the accused 1.5 to 1.0 credit for pre-trial custody as per R. v. Summers (2014 SCC).

Criminal Law - Topic 4865

Appeals - Indictable offences - Grounds of appeal - Verdict unreasonable or unsupported by evidence - [See Criminal Law - Topic 5320.2 ].

Criminal Law - Topic 5211

Evidence and witnesses - Admissibility and relevancy - Flight and other post-offence behaviour of accused - [See Criminal Law - Topic 5320.2 ].

Criminal Law - Topic 5316

Evidence and witnesses - Inferences - Of guilt - From conduct - [See Criminal Law - Topic 5320.2 ].

Criminal Law - Topic 5320.2

Evidence and witnesses - Inferences - From circumstantial evidence - The accused was a passenger in a vehicle stopped by police - The police saw a handgun on the driver's side floor mat, propped up close to the accelerator - The trial judge acquitted the driver of all charges respecting the firearm, but found the accused guilty - They were tried jointly, but charged separately - The accused argued that the trial judge erred in failing to decide his case separately from the case against the driver (i.e., someone possessed the handgun, so if it was not the driver it must have been the accused) - The trial judge found that the driver was unaware of the presence of the handgun, which was not on the floor when he re-entered the vehicle after initially getting out when the vehicle was stopped - The trial judge found that the driver would not have gone out of his way to attract and maintain the attention of the police had he known there was a handgun plainly visible on the floor - The Ontario Court of Appeal rejected this ground of appeal - The trial judge considered the accused's guilt separate from that of the driver - The accused was the only other occupant of the vehicle - The gun was found within easy reach of where the accused sat and sitting in a position consistent with having been placed there by someone sitting in the passenger seat - The accused had the opportunity, arguably the exclusive opportunity, to place the handgun there without the driver seeing him do it - The trial judge also properly considered the accused's turning towards the centre console of the vehicle, his nervous state, and his fleeing from the scene when ordered to the ground - The court also rejected the argument that the verdict was unreasonable - Based on all of the evidence, the trial judge did not err in finding that the only reasonable inference from the circumstantial evidence was that the accused was in possession of the handgun, which he concealed from the driver and placed on the driver's floor mat after being stopped by the police - The accused's guilt was based on reasonable inference, not impermissible speculation - See paragraphs 28 to 88.

Criminal Law - Topic 5473

Evidence and witnesses - Joint or separate trials - Separation or "boxing" of evidence - [See Criminal Law - Topic 5320.2 ].

Cases Noticed:

R. v. Summers (S.), [2014] 1 S.C.R. 575; 456 N.R. 1; 316 O.A.C. 349; 2014 SCC 26, refd to. [para. 8].

R. v. Pickton (R.W.), [2010] 2 S.C.R. 198; 404 N.R. 198; 290 B.C.A.C. 264; 491 W.A.C. 264; 2010 SCC 32, refd to. [para. 47].

R. v. Mena (1987), 20 O.A.C. 50; 34 C.C.C.(3d) 304 (C.A.), refd to. [para. 47].

R. v. Rémillard (1921), 62 S.C.R. 21, refd to. [para. 48].

R. v. Hick, [1991] 3 S.C.R. 383; 130 N.R. 267; 4 B.C.A.C. 161, refd to. [para. 48].

R. v. Duong (T.D.) (2001), 152 O.A.C. 293; 160 C.C.C.(3d) 467 (C.A.), refd to. [para. 48].

R. v. Schell and Paquette (1977), 33 C.C.C.(2d) 422 (Ont. C.A.), dist. [para. 56].

R. v. A.K. (2002), 169 C.C.C.(3d) 313 (Ont. C.A.), refd to. [para. 58].

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351, refd to. [para. 71].

R. v. Biniaris (J.), [2000] 1 S.C.R. 381; 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161; 2000 SCC 15, refd to. [para. 71].

R. v. Burns (R.H.), [1994] 1 S.C.R. 656; 165 N.R. 374; 42 B.C.A.C. 161; 67 W.A.C. 161, refd to. [para. 72].

R. v. W.H., [2013] 2 S.C.R. 180; 442 N.R. 200; 335 Nfld. & P.E.I.R. 1; 1040 A.P.R. 1; 2013 SCC 22, refd to. [para. 73].

R. v. Beaudry (A.), [2007] 1 S.C.R. 190; 356 N.R. 323; 2007 SCC 5, refd to. [para. 75].

R. v. Sinclair (T.), [2011] 3 S.C.R. 3; 418 N.R. 282; 268 Man.R.(2d) 225; 520 W.A.C. 225; 2011 SCC 40, refd to. [para. 75].

R. v. Figueroa (N.) et al. (2008), 233 O.A.C. 176; 232 C.C.C.(3d) 51; 2008 ONCA 106, refd to. [para. 76].

R. v. Salah (G.) et al. (2015), 328 O.A.C. 333; 319 C.C.C.(3d) 373; 2015 ONCA 23, refd to. [para. 76].

R. v. Griffin (J.) et al., [2009] 2 S.C.R. 42; 388 N.R. 334; 2009 SCC 28, refd to. [para. 80].

R. v. Morin, [1988] 2 S.C.R. 345; 88 N.R. 161; 30 O.A.C. 81, refd to. [para. 81].

R. v. Uhrig (D.), [2012] O.A.C. Uned. 384; 2012 ONCA 470, refd to. [para. 81].

Côté v. R. (1941), 77 C.C.C. 75 (S.C.C.), refd to. [para. 82].

Counsel:

Paul Burstein, for the appellant;

Jason A. Gorda, for the respondent.

This appeal was heard on June 30, 2015, before Watt, Lauwers and D. Brown, JJ.A., of the Ontario Court of Appeal.

On January 13, 2016, Watt, J.A., released the following judgment for the Court.