



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ticzon, 2018 ONCA 198

DATE: 20180227

DOCKET: C63404

Pepall, Benotto and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Anthony Ticzon

Appellant

Jessica Zita, for the appellant

Sarah Shaikh, for the respondent

Heard and released orally: February 22, 2018

On appeal from the conviction entered on June 29, 2016 and
    the sentence imposed on December 1, 2016 by Justice F.L. Myers of the Superior
    Court of Justice, sitting without a jury.

REASONS FOR DECISION

[1]

The appellant appeals from his conviction for possession of
    methamphetamine for the purposes of trafficking and possession of a weapon for
    a purpose dangerous to public safety.  He also seeks leave to appeal his
    sentence.

Conviction Appeal

[2]

His conviction appeal rests on three grounds: the trial judge erred in
    his credibility findings; misapprehended the evidence; and erred in drawing an
    adverse inference against the appellants exercise of his right to remain
    silent.

[3]

We would not give effect to these submissions.

[4]

First, credibility findings are the province of the trial judge.  Here
    he considered the frailties in the evidence of the police officers but
    explained why he accepted their evidence.  For instance, he reasoned that
    Officer Grahams misdescription of the size of the knife was attributable to
    the fast paced, high stress situation confronting him.  The difference in the
    officers description of the appellants walking pace reflected the different
    timing of the two officers entry into the stairwell and their observations of
    the appellant.  Furthermore, the trial judge was entitled to accept some, none
    or all of the police officers testimony.  On the crucial issue of the
    appellants brandishing the knife, the trial judge was able to rely on the
    evidence from Officer Liddy.

[5]

There is no basis on which to conclude that the trial judge applied a
    lower standard of scrutiny to the evidence of the Crown over that of the
    defence.  Based on the record before him, it was open to the trial judge to make
    the findings he did and to rely on his common sense in making those
    determinations.

[6]

We also reject the appellants contention that the trial judge
    misapprehended the evidence by applying a theory not advanced by the defence. 
    During cross-examination, the appellant denied that he had a knife and his
    counsel put that theory to the police in cross-examination.  The trial judges
    reference to the police planting the knife in the appellants knapsack was
    reasonable in that context.

[7]

Lastly, the trial judge did not draw an adverse inference from the
    appellants silence, he simply stated that there were no inconsistencies in the
    appellants evidence because he gave no prior statements.  This was a statement
    of fact from which no inference was drawn.

[8]

The conviction appeal is dismissed.

Sentence Appeal

[9]

Turning to the sentence appeal, the trial judge sentenced the appellant
    to four years less time served of 19.5 months.  He described this as a sentence
    of four years in the aggregate for both offences.  Although the reasons do not
    expressly apportion the time between the two offences, the indictment reflects
    a sentence of four years for each offence, concurrent, less time served.

[10]

At
    trial, the Crown had sought three years for the trafficking offence (64.1 grams
    of methamphetamine) and one year consecutive for the weapons offence.

[11]

Before
    this court, the Crown fairly acknowledged that there was an error in the
    structure of the sentence.

[12]

We
    accept the Crowns submission on appeal that a sentence of three years on the
    trafficking offence and one year on the weapons offence concurrent less time
    served of 19.5 months, is a fit sentence.  We particularly note that the
    appellant was 28 years of age at the time of sentencing and had a criminal
    record consisting only of a suspended sentence for two counts of fraud under.

[13]

For
    these reasons, leave to appeal sentence and the sentence appeal are granted.

S.E.
    Pepall

M.L.
    Benotto J.A.

Fairburn
    J.A.


