



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Biya,
    2019 ONCA 227

DATE: 20190321

DOCKET: M50238 (C66597)

Lauwers J.A. (Motion Judge)

BETWEEN

Her Majesty the Queen

Respondent (Respondent)

and

Abadula Biya

Applicant (Appellant)

Najma Jamaldin, for the applicant

Christine Bartlett-Hughes, for the respondent

Heard: March 15, 2019

REASONS FOR DECISION

[1]

The applicant, Abadula Biya, was convicted of two counts of careless
    storage of a firearm/ammunition, two counts of possession of a
    firearm/ammunition unauthorized, possession of a firearm knowing, possession as
    the occupant of a vehicle, possession of a loaded prohibited firearm, and possession
    of a Schedule 1 substance for the purpose of trafficking. He was sentenced to
    four years imprisonment less time served on December 14, 2018. He appeals
    conviction and sentence.

[2]

The applicant was arrested and charged on September 11, 2015. He was
    released on bail on October 14, 2015 and complied with his bail for over three
    years without incident before sentencing on December 14, 2018. I am satisfied
    that he would surrender himself into custody in accordance with the terms of
    any bail order. I do not consider him to be a flight risk or a safety risk.

[3]

The Crown argues that the applicants detention is necessary in the
    public interest. The Crown points to the seriousness of the offences on which
    the applicant was convicted and, particularly, his apparent willingness to use
    guns.

[4]

The Crown argues that the appeal has no merit. The applicant argues that
    the trial judge failed to give adequate consideration to the defences
    alternate suspect theory, which emerges on the following facts. At the time of his
    arrest, the applicant was seated in the drivers seat of a vehicle. Beside him in
    the passenger seat was Simeon George-McCool. In the rear seat immediately
    behind the drivers seat was the applicants gym bag. Sitting in the back seat
    beside the gym bag was Jevon Moore.

[5]

The applicant resisted arrest but was quickly subdued. The gym bag was
    retrieved from the car and searched. In it the officer found some personal
    items belonging to the applicant, a firearm, a magazine for the firearm
    containing several bullets and a pill bottle containing over 25 capsules of
    MDEA.

[6]

At the time of the arrest the applicant had a few grams of marijuana in
    his pocket and $1,725 in cash. Mr. George-McCool had some cocaine and another
    Schedule 1 drug on him, along with $1,050 in cash. Mr. Moore had $1,080 in cash
    on him but no drugs or drug packaging.

[7]

Mr. Moore was charged but charges were withdrawn, and he was not called
    as a witness at the trial of the applicant and Mr. George-McCool, both of whom
    were convicted.

[8]

The applicant challenges the verdict on two grounds. First, he argues
    that the trial judge erred on the issue of the legal test on circumstantial
    evidence and its application to the facts in the case. He asserts that she
    made a bald ruling that there could be no other inference available from the
    evidence other than Biya had exclusive knowledge and control of the firearm,
    ammunition, and MDEA. The applicant submits that the trial judge did not
    consider the facts of the case and did not apply
the legal test for
    circumstantial cases
recently outlined by the [Supreme Court of Canada] in
R
    v Villaroman
, 2016 SCC 33 (emphasis in original). The second ground is
    that the trial judge erred on the issue of the admissibility of the either by
    the Crown or defence.

[9]

The defence tendered Mr. Moores lengthy criminal record as a business
    record for its truth and for propensity evidence to support the defence theory
    that a reasonable inference on the facts was that Mr. Moore had exclusive
    knowledge  and control of the loaded firearm and MDEA ultimately located in [the]
    gym bag. The applicant asserts that the trial Crown objected to the
    admissibility of the criminal record on the grounds that the criminal record
    did not constitute a business record, and that amounted to unreliable hearsay.
    Alternatively, the trial Crown submitted that if the record were admitted into
    evidence, little weight should attach to it because it was somehow
    unreliable. The ruling on the
voir dire
was deferred to the end of the
    case, but the reasons for judgment do not disclose whether the trial judge
    ruled the criminal record as admissible or not, although she did refer to Mr.
    Moores record.

[10]

The
    applicant points to two excerpts from the trial judges decision. First, she
    said:

I do not accept the arguments of counsel for Mr. Biya,
    which suggests that Mr. Moore had the opportunity and propensity to have had
    the firearm, ammunition, and drugs on his person and put them surreptitiously
    into the gym bag when the police approached the vehicle. There is no real
    evidence for this, and I find the proposition to be speculative.

[11]

The
    difficulty with this statement is in the trial judges apparent ambivalence
    about the admission of the lengthy conviction record of Mr. Moore. It showed he
    had a propensity to carry firearms and traffic in Schedule 1 drugs. The
    alternate suspect theory was not, the applicant asserts, mere speculation.

[12]

Second,
    the trial judge said:

I am not satisfied that this raises a reasonable
    inference consistent with innocence. In fact, I am not satisfied that it would
    have been possible within the timeframe from the police approaching the vehicle
    to Mr. Moore and Mr. George-McCool exiting the vehicle, for Mr. Moore to have taken
    all of the items from his person and put them in the bag, and particularly
    taking the magazine out of the handgun and stowing the handgun, ammunition, and
    drugs at the bottom of the bag under all of the other contents. I do not find
    this to be feasible and reject this argument.

[13]

The
    applicant asserts that it is reasonably possible that the firearm, ammunition
    and pill bottle were slipped into the bag by Moore between the time Mr. Biya
    placed the gym bag on the rear seat and the time he is arrested. On this
    basis, the applicant asserts that the trial judge wrongly concluded that the
    only reasonable conclusion available on all the evidence, was that Biya had
    knowledge and control of the firearm/ammunition and pill bottle located in the
    gym bag
and
that it was not possible for Moore to have put those items
    (unbeknownst to Biya) in the bag during the time that he sat alone next to the
    bag while in the rear of the vehicle (emphasis in original).

[14]

Based
    on the record that I have currently available to me, it cannot be said that the
    grounds of appeal are frivolous, particularly with respect to the application
    of the argument relating to
R.
v. Villaroman
, 2016 SCC 33, [2016] 1 S.C.R. 1000,
and
    the role of Mr. Moore. While the predicate offences are obviously serious,
    based on the applicants history of bail compliance and the surety plan put
    forward, I am satisfied that he will comply with all terms of release. Standing
    on its own, the nature of the offence does not justify detention on public
    interest grounds:
R. v. Oland
, 2017 SCC 17, [2017] 1 S.C.R. 250, at
    para. 20.

[15]

In
    the circumstances the application for bail pending appeal is allowed on the
    conditions set out in the draft order agreed to by the parties.

P. Lauwers J.A.


