



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Callaghan, 2018 ONCA 969

DATE: 20181130

DOCKET: C63843

Rouleau, Watt and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Andre Callaghan

Appellant

Anil K. Kapoor and Ian B. Kasper,
    for the appellant

Jill Cameron, for the
    respondent

Heard and released
    orally: November 26, 2018

On appeal from the convictions entered by Justice Nola
    Garton of the Superior Court of Justice on July 29, 2016, with reasons reported
    at 2016 ONSC 2764, and from the sentence imposed on March 24, 2017, with
    reasons reported at 2017 ONSC 1853.

REASONS FOR
    DECISION

[1]

The appellant was convicted of various firearm and driving offences
    after he discharged a handgun on a residential street and later led police on a
    high-speed chase. He appeals from his firearm convictions and his sentence of
    10 years.

[2]

On the conviction appeal, the appellant argues that the trial judge
    erred in her approach to the evidence. In the appellants submission, she
    approached the evidence in a piecemeal fashion, misapprehended parts of that
    evidence, and engaged in improper speculation to account for dissimilarities
    between the description of the shooter and the appearance of the appellant. The
    appellant further submits that the trial judge used her disbelief of his
    videotaped statement as circumstantial evidence of guilt.

[3]

We reject this ground of appeal. We see no basis for the appellants
    suggestion that the trial judge erred in her approach to and assessment of the
    evidence or that she engaged in speculation to bridge evidentiary gaps. In
    effect, the appellant seeks to have this court retry the case.

[4]

The trial judges extensive reasons demonstrate a meticulous and
    detailed review of all the evidence. She carefully weighed the competing accounts
    conveyed in the trial witnesses testimony and the appellants statement to
    police. The trial judge addressed the inconsistencies in the evidence and
    concluded, based on the record as a whole, that they did not raise a reasonable
    doubt that the appellant was the shooter. Her findings in this regard disclose
    no error.

[5]

We also reject the suggestion that the trial judge used her disbelief of
    the appellants statement to police as circumstantial evidence of guilt. Her
    assessment of the credibility and reliability of the appellants statement to
    police was made in the context of a
W.(D.)
analysis. In that portion
    of her reasons, the trial judge explains why she rejected the exculpatory
    aspects of the appellants statement and why the statement did not raise a
    reasonable doubt.

[6]

The appellant further argues that the verdict was unreasonable. We
    disagree. Although this was a circumstantial case, there was substantial
    evidence pointing to the appellant as the shooter. The critical evidence tying
    the appellant to the shooting was the evidence of an independent witness who
    saw a person put something into the bushes after apparently discharging a
    firearm, compounded with the subsequent recovery from those bushes of a bag
    containing a gun and the appellants identification and cellphone. The
    appellant did not testify.

[7]

We see no basis to interfere with the trial judges conclusion that the
    appellants guilt was the only reasonable inference to be drawn from the
    totality of the evidence.

[8]

On the sentence appeal, the appellant argues that the sentencing judge
    misapprehended the evidence in two respects. First, she found that the
    appellant attempted to fire a third shot but was prevented from doing so because
    the gun jammed. This, in the absence of evidence suggesting that the gun in
    fact jammed. Second, the sentencing judge found that the appellants denial of
    gang involvement affected his rehabilitative prospects when, in the appellants
    submission, there was no evidence that he was in fact a gang member.

[9]

The appellant also argues that the two counts of possessing a firearm while
    prohibited  each of which was particularized to a distinct prohibition order 
    should not have been sentenced consecutively. Assuming without deciding that
    the sentencing judge committed the alleged errors, we consider the overall
    sentence imposed to be clearly fit given the serious nature of the offences and
    the appellants criminal record. As a result, we see no basis to interfere with
    the sentence imposed by the sentencing judge.

[10]

In
    conclusion, therefore, the conviction appeal is dismissed. Leave to appeal
    sentence is granted but the sentence appeal is also dismissed.

Paul Rouleau J.A.

David Watt J.A.

Grant Huscroft J.A.


