



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Claros, 2020 ONCA 519

DATE: 20200821

DOCKET: C65618

Roberts,
    Miller and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Christopher Marcelo Claros

Appellant

Christopher Marcelo Claros, acting in
    person

Richard Litkowski, duty counsel

Jessica Smith Joy, for the respondent

Heard: August 12, 2020 by videoconference

On appeal from
    the convictions entered on January 26, 2018 by Justice Frederic M. Campling of
    the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant was convicted of aggravated
    assault and various firearms offences, all related to the shooting of David
    Fafinski with a shotgun at an intersection in Hamilton, Ontario. The appellant
    was sentenced to imprisonment for slightly less than five years.

[2]

The appellant appealed his convictions; the
    Crown appealed sentence. A differently-constituted panel of this court already
    allowed the Crowns sentence appeal and substituted a global sentence of eight
    years imprisonment: see
R. v. Claros
, 2019 ONCA 626. The appellant
    pursues his appeal against conviction.

[3]

By way of overview, we adopt the following factual
    summary from this courts reasons in
Claros
, in which Paciocco J.A. wrote, at
    paras. 9-13:

On May 25, 2016, Mr. Claros had a mutual
    friend [Chantelle Tweddle] arrange a meeting with David Fafinski at 9:00 p.m.
    in Hamiltons east end. Mr. Fafinski was asked to bring $14,000 worth of
    cocaine to that liaison. Mr. Fafinski thought he was meeting the mutual friend
    when he showed up, but Mr. Claros was there instead.

At some point after encountering Mr. Claros,
    Mr. Fafinski attempted to flee. As he ran down a Hamilton street near an
    intersection, Mr. Claros shot him with a sawed-off shotgun. The shotgun was
    loaded with buck shot, not bird shot.

Mr. Fafinski was lucky. His lower extremities
    were sprayed and he was knocked down, but his injuries were not serious.

Immediately after the shooting, Mr. Claros
    fled. As a result, he was not arrested at the scene.
That
    arrest happened two days later after he and his girlfriend, Halley MacPhee,
    tried to outrun the police in the car Ms. MacPhee was driving near Thunder Bay.
    The chase ended when Ms. MacPhee stopped to avoid a spike belt, and the pair
    was arrested.

During the police chase,
    Mr. Claros threw the shotgun out of the moving vehicle. It seems the pursuing
    officers did not see this happen. The shotgun was found on the side of the road
    by a concerned citizen who called the police.
The
    recovered shotgun proved to have been stolen. It also proved to have Mr.
    Claross DNA on its surface. As a result, Mr. Claros was charged with firearms
    offences related solely to the Thunder Bay incident.

[4]

The appellants girlfriend, Ms. MacPhee, was
    jointly charged with numerous offences arising from the Hamilton shooting. She
    was acquitted on all counts.

[5]

With the assistance of duty counsel, the
    appellant raises numerous grounds of appeal.

THE EVIDENCE OF CHANTELLE TWEDDLE

[6]

The appellant made a number of submissions
    concerning the frailties of Chantelle Tweddles evidence, as well as
    shortcomings in how the trial judge evaluated her evidence.

[7]

The case for the Crown hinged on Ms. Tweddles
    evidence. She had a child with the appellant. The appellant and Ms. MacPhee
    visited Ms. Tweddle on the day of the shooting. It was at the appellants
    urging that Ms. Tweddle arranged the fictitious drug transaction with Mr.
    Fafinski and led him to believe that he would be meeting her at the Hamilton
    intersection.

[8]

In his oral reasons for judgment, the trial
    judge said that Ms. Tweddle was the most important witness for the Crown. He appreciated
    that her evidence had to be approached with caution. After all, she was an
    unindicted accomplice. She gave inconsistent statements to the police out of
    fear of being charged in the shooting. As the trial judge said:

And at the outset, I will say there are
    circumstances that required me to carefully scrutinize her evidence and to
    consider what other evidence was confirmatory of hers.

After doing that, and I arrived at the
    conclusion which I was inclined to when I first listened to Ms. Tweddle, and that
    she was telling the truth as best she could remember it roughly a year and a
    half after the fact.

[9]

The trial judge also found that the police
    threatened to charge Ms. Tweddle if she did not tell the truth. He noted that
    these threats are among the reasons I found it necessary, despite my initial
    inclination to believe Ms. Tweddle, to scrutinize her evidence more carefully
    and particularly to look for confirmatory evidence.

[10]

The appellant submits that, although the trial
    judge said he would carefully scrutinize Ms. Tweddles evidence, this
    approach is not borne out in his reasons. We disagree. In the course of
    recounting Ms. Tweddles narrative, the trial judge referred to other
    supporting evidence. This included cell phone records. The Crown also led the
    evidence of a witness, who the trial judge characterized as an excellent
    witness with a good recall and a good attention to detail. That witness made
    observations from his third-floor apartment close to the intersection. Although
    he did not see the actual shooting, this witness heard a loud bang and looked
    out of his window. He saw a man run to a silver Ford Mustang, a car that fits
    the description of the vehicle that the appellant and Ms. MacPhee were in when
    fleeing the police in Thunder Bay two days later.

[11]

As discussed below, although the trial judge
    disbelieved Mr. Fafinskis evidence concerning the identification of the
    shooter, he accepted other aspects of his evidence that confirmed Ms. Tweddles
    version of events.

[12]

The appellant points to other aspects of Ms.
    Tweddles testimony that he says are problematic. Ms. Tweddle had deleted
    important text messages that she referred to in her evidence. It would appear
    that, outside of court, she refreshed her memory about a cellphone number from
    phone records that had yet to be authenticated; the trial judge had ruled that
    she could not refresh her memory from these unauthenticated records. The
    appellant also contends that the trial judge failed to assign sufficient weight
    to Ms. Tweddles prior inconsistent statements. Finally, the appellant claims
    that Ms. Tweddle had an animus towards him that coloured her testimony.

[13]

We do not accept these submissions. The trial
    judge was keenly aware of the in-and-out-of-court circumstances that touched on
    Ms. Tweddles performance and credibility as a witness. In terms of refreshing
    her memory, the records in issue were subsequently authenticated. Moreover,
    there is no credence to the claim of animus. The evidence demonstrated that the
    appellant and Ms. Tweddle maintained a positive relationship around the time of
    the shooting; the appellant and Ms. MacPhee spent a couple of hours with Ms.
    Tweddle earlier that same day. As the trial judge said, it appears that you
    [the appellant] and Ms. Tweddle had a reasonably civilized relationship as
    parents of the same child.

[14]

The appellants essential claim is that the
    trial judge erred in accepting Ms. Tweddles evidence and that he was unduly
    generous in overlooking the flaws in her testimony. The trial judges
    credibility assessments are entitled to deference on appeal. There is no basis
    to intervene on appeal.

[15]

We dismiss this ground of appeal.

THE EVIDENCE OF DAVID FAFINSKI

[16]

The appellant submits that the trial judge erred
    in the way he dealt with the evidence of Mr. Fafinski. The Crown did not call
    him as a witness; the defence did. Mr. Fafinski testified that he knew who shot
    him and it was not Mr. Claros. However, Mr. Fafinski would not say who it was.
    If it had been the appellant who shot him, he would not have said so.

[17]

The trial judge rejected Mr. Fafinskis evidence
    on this point. The appellant submits that the trial judge failed to provide
    proper reasons for doing so. We disagree. The trial judge said the following:

Mr. Fafinski is a man with a significant
    criminal record, but currently with a job as a tow truck driver. He appears to
    have left the criminal life.

It was very clear to me that he was lying, and
    he was lying for a very understandable reason, and he did not want to finger
    you. He had not done so throughout the investigation, and there are obvious
    reasons why he would not do so. One is fear of retaliation and opprobrium 
    which greets  a rat or an  informer. And in my view, he would not have said
    anything to harm your case. For that reason, when he said, he and you had no
    animosity, contrary to the evidence of Ms. Tweddle, I disbelieve Mr. Fafinski
    on that as well.

[18]

We see no error in the trial judges approach.
    His explanation for rejecting Mr. Fafinskis evidence on this point is entitled
    to deference on appeal.

[19]

We reject this ground of appeal.

THE INJURY AND THE SHOTGUN

[20]

The appellant submits that the trial judge erred
    in finding that Mr. Fafinskis injury was caused by the same shotgun recovered
    by the police in the aftermath of the Thunder Bay offences. The trial judge
    held that there is no expert evidence about that gun, but I am satisfied
    beyond a reasonable doubt on the other evidence that it was the gun that you
    used to shoot Mr. Fafinski. The trial judge referred to hospital records that
    were admitted into evidence. He also considered evidence of holes in a window
    near the shooting scene. The trial judge then made the following findings:

Thats consistent with the weapon being a
    shotgun, but other than the circumstantial evidence, there is no other proof
    that it was the gun found in your possession.

I examined Exhibit 4 as closely as I could.
    Its the spent 12-gauge shell.
I am not an expert, of course, but there was
    nothing about it that told me whether it had contained buckshot or some other
    type of projectile
.

So simply, on the physical evidence,
    leaving aside the circumstantial evidence, Mr. Fafinskis wound could have been
    caused by Exhibit 3. It was not caused by an ordinary bullet from a rifle or a
    handgun
. [Emphasis added.]

[21]

The appellant submits that the trial judge erred
    in making these findings without expert evidence and that he improperly took
    judicial notice of these facts. We are satisfied that there was an evidentiary
    foundation for the trial judge to make the inferences that he did, in the
    absence of expert evidence, and without resort to judicial notice.

[22]

First, the trial judge based his findings on the
    physical evidence, along with the circumstantial evidence related to the
    Thunder Bay incident. The police recovered a shotgun on the side of the road,
    wrapped in a shower curtain. The appellants DNA was found on the gun. The gun
    had been reported stolen in Alberta. The appellant traveled from Alberta to
    Hamilton to visit his son on the day of the shooting. After the shooting, it
    would appear that he was traveling back to Alberta with the shotgun when he was
    arrested. Accordingly, there was compelling evidence that it was the same gun.

[23]

Second, although proof that the same shotgun was
    used in both sets of offences would have strengthened the identification of the
    appellant as the shooter, the appellants liability did not turn on the gun
    being the same. Moreover, the evidence identifying the appellant as the shooter
    was already compelling, if not overwhelming.

[24]

We would dismiss this ground of appeal.

LATE DISCLOSURE AND
CHARTER
RELIEF

[25]

There were disclosure problems in this case. It
    was not until the eve of trial that significant disclosure was made to the
    defence. After the trial was underway, a surveillance video and text messages
    between the appellant and Ms. MacPhee were disclosed. This resulted in two
    failed applications to stay proceedings under ss. 7 and 24(1) of the
Canadian Charter of Rights and
    Freedoms
.
Still, the trial judge said he was rather
    shocked by the shortcomings in disclosure and felt that there should be some
    remedy. He rejected an award of costs as a remedy because the appellant was
    defended on a legal aid certificate. Consequently, he sought to remedy the
Charter

breaches
    through a sentence reduction.

[26]

In
Claros
, on the sentence appeal, this
    court found that the trial judge erred in reducing the appellants sentence as
    a remedy for the
Charter

breaches. Applying the principles in
R. v. Nasogaluak
, 2010 SCC 6, [2010] 1
    S.C.R. 206, Paciocco J.A. said, at para. 75: Here there is simply no link
    between the
Charter
breaches and the determination of a fit sentence. In my view, this is therefore
    not a case for a sentencing reduction.

[27]

The appellant submits that, as a result of this
    decision, he has been unfairly deprived of a remedy for
Charter

violations
    found by the trial judge. We disagree. The nullification of the sentence
    reduction as a

remedy by the panel in
Claros
does not impact on the correctness
    of trial judges refusal to grant either of the other two remedies he
    considered (i.e., a stay of proceedings or a costs award). The appellant does
    not challenge the trial judges decision refusing to order a stay of
    proceedings. This signals an acceptance that the trial judge ensured that the
    fairness of the trial was not compromised by the late disclosure. Nor does the
    appellant ask this court to make a costs order, or grant any other remedy that
    is appropriate and just. There is no reason to believe that the appellant
    would be in any different position had the same panel heard the appeals against
    sentence and conviction at the same time.

[28]

This ground of appeal is dismissed.

CONCLUSION

[29]

The appeal is dismissed.

L.B.
    Roberts J.A.

B.W.
    Miller J.A.

Gary
    Trotter J.A.


