



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Francois, 2014 ONCA 234

DATE:  20140327

DOCKET: C55431

Doherty, Laskin and Feldman JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Aaron Nathan Francois

Appellant

Paul J.I. Alexander, for the appellant

Greg Skerkowski, for the respondent

Heard: March 20, 2014

On appeal from the convictions entered by Justice Kelly
    of the Superior Court of Justice at Toronto on July 15, 2011.

ENDORSEMENT

[1]

The appellant was convicted of several offences, including possession of
    a loaded prohibited weapon.  All of the charges arose out of the same
    incident.  The appellant has completed his sentence and appeals conviction
    only.  He raises three grounds of appeal.

(1)

Was the Cross-Examination of the Appellant on a Draft Affidavit
    Improper?

[2]

The appellant brought a
Charter
motion at trial.  His counsel had
    provided the Crown with a draft unsigned affidavit of the appellant in
    support of the application.  On the day of the trial, counsel gave the Crown an
    affidavit signed by the appellant.  There were several differences between the
    contents of the two affidavits.

[3]

At the appellants first trial, his lawyer asked him about the differences
    in the two affidavits with a view to establishing that the appellant was the
    person who had directed that the changes be made.  In cross-examination, Crown
    counsel questioned the appellant at some length about the differences in the
    two affidavits.  Eventually, a mistrial was declared for reasons that are
    unrelated to this issue.

[4]

At the appellants second trial, this time over the objection of defence
    counsel, Crown counsel cross-examined the appellant about the differences in
    the two affidavits.  He also cross-examined the appellant about the testimony
    he had given at his first trial about those differences in an effort to show
    that his testimony at the first trial was inconsistent with his evidence at the
    second trial.

[5]

Ultimately, only one area of the cross-examination had any relevance to
    the outcome of the second trial.  The appellant testified in cross-examination that
    one answer he had given at his first trial was in fact a lie and that he had
    told the lie to protect his lawyer at the first trial.  In her reasons for
    judgment, the trial judge made reference to that answer:

What is clear from this inconsistency is that Mr. Francois was
    willing to lie under oath to protect his lawyer.  One only wonders what he
    would do or say to protect himself.

[6]

This is not a case for any general pronouncement about the propriety of
    cross-examining an accused on a draft version of his affidavit.  Having regard
    to the entirety of the circumstances, we are satisfied that the
    cross-examination as it related to the single question that figured in the
    trial judges credibility assessment, was neither unfair nor inappropriate. 
    The appellant was asked to explain two quite different answers, both given
    under oath, to the same question.  Unfortunately, but not unfairly, for him,
    his answer shed considerable light on his trustworthiness as a witness.  The
    trial judge properly took that answer into account.

(2)

The Reasons for Judgment

[7]

Counsel advances three arguments arising out of the trial judges
    reasons for judgment.  He contends that she failed to consider the third branch
    of
R. v.

W.D.
, reversed the burden of proof, and exposed the
    defence evidence to a higher degree of scrutiny than the Crowns evidence. 
    Nothing in the reasons supports these contentions.

[8]

The trial judge began her analysis with a specific reference to
R.
    v. W.D.
That reference included a specific articulation of the so called
    third branch of that test, which requires that the trier of fact consider all
    of the evidence to determine whether the Crown has proved the case against the
    accused beyond a reasonable doubt.

[9]

Having set the stage for her consideration of the evidence by laying out
    the applicable principles from
R. v. W.D.
, the trial judge addressed the
    evidence by reference to several specific factual issues that arose in the evidence. 
    In doing so, she thoroughly reviewed the evidence, clearly appreciated where
    the defence and Crown evidence conflicted and, gave various reasons for accepting
    the Crown evidence in relation to those factual issues.

[10]

For
    example, in accepting the victims evidence about the events that transpired during
    the physical encounter with the appellant, the trial judge relied on the
    partial recording of that encounter that was played at trial.  She described the
    contents of that recording as chilling and fully supportive of the victims
    description of the relevant events and inconsistent with the appellants
    description.  Similarly, the trial judge considered the inconsistencies in the
    evidence of the various police officers who described the melee that occurred
    when the police arrived on the scene and attempted to arrest of the appellant. 
    The trial judge fully appreciated those inconsistencies, but explained, in some
    detail, why those inconsistencies did not undermine the credibility of the
    witnesses.

[11]

Finally,
    we see nothing in the reasons to suggest an uneven scrutiny of the evidence. 
    The reality is that several parts of the appellants evidence were, on their
    face, incredible.  It hardly took any unwarranted degree of scrutiny to reject
    that evidence.  This argument fails.

(3)

The
Mens Rea
Required for the Offence of Possession of a
    Prohibited Loaded Firearm

[12]

The
    offence created by s. 95 requires proof that the person in possession of the
    firearm knew that it was loaded or was wilfully blind to that fact.  The trial
    judge did not refer to the
mens rea
component of the offence in her
    reasons for judgment.

[13]

There
    are two issues raised by this ground of appeal.  First, was there a basis upon
    which a reasonable trier of fact could conclude that the appellant had the
    requisite
mens rea
and, second, is the failure to specifically address
    that issue in the reasons fatal to the conviction?

[14]

We
    are satisfied that there was a basis upon which the judge could conclude that
    the appellant knew or was wilfully blind to the fact that the gun was loaded. 
    The appellant had possession of the gun in the context of carrying out his drug
    trafficking activities.  He had gone to a stolen vehicle in the middle of the
    night, apparently to retrieve a considerable amount of cash.  The appellant pointed
    the gun at the victim and threatened to kill him.  While the trial judge was
    not satisfied that the Crown had proved an intention to kill, she did find that
    the appellant intended to threaten the victim.

[15]

A
    trier of fact could reasonably conclude that it is more likely that a drug
    dealer going to collect a considerable amount of cash in the dead of night
    would arm himself with a loaded gun, and that it is more likely that the same person
    would threaten to kill another person with a gun that was loaded rather than a
    gun that was incapable of doing the harm threatened.  There was an evidentiary
    basis from which a trial judge could find the requisite
mens rea
(knowledge or wilful blindness).

[16]

It
    would have been preferable had the trial judge specifically addressed the
mens
    rea
issue.  Her failure to do so may be explained by the absence of any evidence
    from anybody directed specifically at the
mens rea
issue and the
    absence of any argument by either counsel on that issue.

[17]

The
    trial judge is presumed to know the law.  Her failure to expressly refer to the
mens rea
issue does not, in these circumstances, justify the
    conclusion that she failed to consider it.  We see no reason to think that the
    trial judge was not satisfied that the Crown had proved that the appellant knew
    the gun was loaded or was wilfully blind to that fact.

(4)

Conclusion

[18]

The
    appeal is dismissed.

Doherty J.A.

John Laskin J.A.

K. Feldman J.A.


