



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Flannigan, 2021 ONCA 174

DATE: 20210322

DOCKET: C65653

Rouleau, Pepall and Roberts
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Matthew Flannigan

Appellant

Laura Remigio, for the appellant

Frank Au, for the respondent

Heard: March 16, 2021 by video
    conference

On appeal from the conviction entered on
    March 23, 2017 and the sentence imposed on June 22, 2017 by Justice J.
    Christopher Corkery of the Superior Court of Justice, sitting with a jury.

REASONS FOR DECISION


[1]

The appellant appeals from his convictions for
    using a firearm in the commission of a robbery, using a firearm in the
    commission of an aggravated assault, and possession of a firearm while
    prohibited. He also seeks leave to appeal his sentence of 9 years less credit
    of 54 months and 21 days for pre-sentence custody.

[2]

The appellants trial arose from a home
    invasion. It proceeded before a judge and jury. The key issue was identity and
    defence counsel advised the jury that the sole issue at trial couldnt be more
    simple. The jury reached a verdict after four hours.

[3]

After the jury had rendered its verdict, a Court
    Services Officer (CSO) reported to the presiding judge on comments made by a
    juror.

[4]

The trial judge conducted a post-verdict inquiry
    at which that CSO and two other CSOs were questioned. Three days before the
    jury deliberations started, a juror had told the CSO that she did not want to
    stay overnight. She had plans for the weekend and she did not want to change
    them. The CSO replied that Its the process and its just the way it is. You
    come prepared to stay. On Thursday, the juror came prepared to stay,
    carrying an overnight bag with her when she came to court. The trial judge
    declined to have any of the jurors testify at the post-verdict inquiry. Hearing
    from that juror would be of no assistance and the expanded inquiry ran the risk
    of encroaching on the protected jury secrecy.

[5]

The appellant submits that the trial judge erred
    by failing to allow a fulsome post-verdict inquiry by declining to call the
    jurors. The comments of the juror were extrinsic and not intrinsic to the jury
    deliberations and gave rise to a reasonable apprehension of bias. In addition,
    he submits that this court ought to have a record to determine whether there
    was a reasonable possibility that the information provided by the juror had an
    effect on the verdict.

[6]

We do not accept the appellants submission that
    any further inquiry was required. The trial judge concluded that the record was
    sufficient and we see no error in this determination.

[7]

The appellant takes no issue with the conduct of
    the trial or the jury instructions. The law presumes that jurors will perform
    their duties impartially and according to their oath and follow the
    instructions given. As instructed, the juror did come to court prepared to stay
    and brought an overnight bag. The evidence disclosed no jury impropriety. The
    strong presumption of juror impartiality has not been rebutted. An informed person,
    viewing the matter realistically and practically and having thought the matter
    through, would not think that it was more likely than not that the juror,
    consciously or unconsciously, had failed to decide the case fairly. See
Committee
    for Justice & Liberty v. Canada (National Energy Board) (1976)
, [1978]
    1 S.C.R. 369 (S.C.C.), at p. 394 and
R. v. Dowholis
, 2016 ONCA 801 at
    para. 19.

[8]

For these reasons, we dismiss the conviction
    appeal.

[9]

As for the sentence appeal, the appellant
    submits that the 9-year sentence was demonstrably unfit and was
    disproportionate relative to the sentences of his co-accused. He requests a
    sentence of 6.5 years less pre-sentence credit.

[10]

This was a serious home invasion and the
    appellant shot the victim. The trial judge considered the appellants age of
    nearly 23 at the time of the offence, his criminal record and the gap between
    his last conviction and these ones, his family support, and his prospects for
    rehabilitation. He balanced the principles of sentencing, and his emphasis on
    deterrence and denunciation was not misplaced given the nature of the offences
    and the other factors he considered.

[11]

The distinctions in sentences with the three
    other co-accused were justified given that, among other things, they all
    pleaded guilty and had played a lesser role in the crime than the appellant.
    Importantly, the appellant was the only one convicted of using a handgun to
    commit robbery and aggravated assault. Two of the others were sentenced on the
    basis that they did not know the appellant had a real firearm, and the third on
    the basis that the plan did not involve firearms. We also note that the
    appellant was in breach of a firearm prohibition order.

[12]

Although the trial judge initially erred in his
    oral reasons by saying that the appellant had two prior robbery convictions, he
    subsequently corrected this and said this fact made no difference to his
    conclusion or reasons. The sentence was fit.

[13]

The appeal is dismissed. Leave to appeal
    sentence is granted but the sentence appeal is dismissed.

Paul Rouleau
    J.A.

S.E. Pepall
    J.A.

L.B. Roberts
    J.A.


