



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Henry, 2016 ONCA 873

DATE: 20161117

DOCKET: C60620

MacPherson, Blair and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Delroy Henry

Appellant

Anne Marie Morphew, for the appellant

Nick Devlin, for the respondent

Heard: November 16, 2016

On appeal from the conviction entered on August 12, 2014
    and the sentence imposed on December 15, 2014 by Justice K. Barnes of the Superior
    Court of Justice, sitting with a jury.

ENDORSEMENT

[1]

The appellant, Delroy Henry, was convicted of four firearms offences,
    one count of possession of cocaine for the purpose of trafficking, and one
    count of fail to comply with recognizance (he pleaded guilty to this count)
    following a jury trial presided over by Barnes J. of the Superior Court of
    Justice. He received a global sentence of eight years imprisonment less
    pre-trial custody on a 1.5:1 basis, leaving a total of 57 months to serve. The
    appellant appeals both conviction and sentence.

[2]

The appellants first contention on the conviction appeal is that the
    trial judge erred by failing to instruct the jury with respect to the
    principles of
R. v. W.(D.)
, [1991] 1 S.C.R. 742, as they applied to
    the evidence of Tennika Bryce, the appellants girlfriend, and Denney Henry,
    the appellants brother.

[3]

We are not persuaded by this submission. Bryce testified that she could
    not say who possessed the gun, ammunition and cocaine found in her residence.
    Denney Henry testified that all these items belonged to him, not his brother (the
    appellant). In our view, the trial judge properly linked their testimony to the
    concept of reasonable doubt. Defence counsel did not seek an explicit
W.(D.)
instruction and made no complaints about its absence. In our view, such an
    instruction was not required in the circumstances of this case, especially in
    light of the fact that the testimony of Bryce (I dont know) and Denney Henry
    (its all mine) did not conflict: see
R. v. B.D.
, 2011 ONCA 51, at
    para. 114.

[4]

The appellants second submission is that the trial judge erred in his
    ruling on the
Charter
s. 8
voir dire
.

[5]

All of the firearms and drug charges flowed from a search warrant that
    the police executed at 85 Teal Crest Circle in Brampton. Tennika Bryce lived at
    this address. The appellant stayed over several nights a week; however, he
    lived at his fathers home. He did not have his own key to the Bryce residence
    although he sometimes borrowed her car and used, with Bryces permission, the residence
    key on the car key ring to access the Bryce residence.

[6]

Applying the leading case,
R. v. Edwards
, [1996] 1 S.C.R. 128, the
    trial judge held that the appellant did not have standing to challenge the
    search on the basis of s. 8 of the
Charter
. The appellant contends
    that the trial judge erred in his ruling. He submits that he was involved in a
    serious relationship with Bryce, he stayed overnight at the Bryce residence
    three or four nights a week, he had Bryces permission to enter the residence
    at any time, and he even had designated areas for his personal belongings in
    the master bedroom.

[7]

We do not accept this submission. The trial judge carefully reviewed the
    relevant evidence on the standing issue. The appellant was not a tenant at the
    Bryce home. He did not have his own house key. He lived with his father. He
    used another address for mail. He was not present when the search took place.
    He did not testify on the
voir dire
about any privacy interest he
    might have in relation to the subject property or its contents. All of this led
    the trial judge to conclude:

The cumulative effect of all the evidence leads me to conclude
    that Mr. Henry was a very privileged visitor. Mr. Henry has provided no
    evidence to indicate that he has a reasonable expectation of privacy and
    neither can such an inference be made from the evidence tendered. The evidence
    is silent on his subjective expectation.

We agree with this conclusion; it is consistent with
Edwards
.

[8]

On the sentence appeal, the appellant submits that the trial judge erred
    by not giving enhanced credit for pre-trial custody, beyond the 1.5:1 credit he
    gave, because the appellant was subject to particularly harsh conditions
    (extensive periods of lockdown) during his time at Maplehurst.

[9]

We are not persuaded by this submission. In this case, very experienced
    counsel agreed that the appellant should receive credit for pre-trial custody
    on a 1.5:1 basis. Moreover, defence counsel explicitly submitted that the
    lockdown factor might be considered by the trial judge in the context of the
    possibility of imposing concurrent sentences. Finally, as in
R. v. Duncan
,
    2016 ONCA 754, at para. 11, there was no evidence of any adverse effect
    flowing from the locked down conditions.

[10]

The appeal from conviction and sentence is dismissed.

J.C. MacPherson J.A.

R.A. Blair J.A.

David Watt J.A.


