



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Smith, 2016 ONCA 25

DATE: 20160113

DOCKET: C57174

Watt, Lauwers and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Paul Anthony Smith

Appellant

Paul Burstein, for the appellant

Jason A. Gorda, for the respondent

Heard: June 30, 2015

On appeal from the conviction entered on July 23, 2012
    and the sentence imposed on April 30, 2013 by Justice Lois B. Roberts of the Superior
    Court of Justice, sitting without a jury.

Watt J.A.:

[1]

It was an early evening in August. A few years ago. In Scarborough. Two
    uniformed police officers in a marked police car signalled the driver of a red
    Honda Civic to pull over. The driver, Neville Devonish, complied.

[2]

Paul Smith was a passenger in the red Honda. He sat in the front
    passenger seat. As soon as Devonish stopped the vehicle, he and Smith got out
    and began walking back towards the driver and passenger side of the police car.
    They left both doors of the Honda open.

[3]

The police officers got out of their car and told Devonish and Smith to
    return to the Honda. Devonish, still yelling and gesticulating, returned to the
    drivers side. Smith, as directed, returned to the passenger side.

[4]

At the drivers door, one of the officers saw a handgun on the floor of
    the drivers side of the centre console. After a brief struggle, the officer
    arrested, subdued and handcuffed Devonish.

[5]

The second officer confronted Smith. She pointed her handgun at him and
    issued the police challenge. Smith bolted. He was arrested on a nearby street a
    few minutes later by other police officers.

[6]

In the red Honda, police found a loaded handgun, and a clear plastic bag
    containing brightly coloured pills. Both were in the drivers side footwell in
    plain sight. Another plastic bag was tucked in the centre console. It contained
    marijuana.

[7]

Devonish and Smith were tried together on a 22 count indictment.
    Devonish was acquitted of the nine counts with which he was charged. Smith was
    found guilty of 10 of the 13 counts on which he was tried.

[8]

Smith appeals his conviction and applies for leave to appeal his
    sentence. These reasons explain why I would dismiss his appeal from conviction
    but allow his appeal from sentence to the extent required by
R. v. Summers
,
    2014 SCC 26, [2014] 1 S.C.R. 575, which was not available to the trial judge at
    the time of sentencing.

THE BACKGROUND FACTS

[9]

The circumstances that underpin the charges on which Paul Smith (the
    appellant) was tried fall within a narrow compass. In large measure, what
    happened before and after the vehicle stop is not controversial. Where the
    parties differ is in the inferences that may be drawn from those events.

The First Sighting

[10]

Police
    Constables Dales and Stepanenko first encountered the red Honda at a stoplight
    at an intersection in Scarborough. The Honda was travelling in the same
    direction as the police car at a speed apparently in excess of the posted
    limit. Devonish stopped the Honda in the curb lane. Cst. Dales stopped the
    police car beside the Honda. Devonish then rolled the drivers side window down
    and began waving at the officers before making an abrupt right turn.

[11]

Cst.
    Stepanenko did a CPIC check on the licence plate number attached to the Honda.
    The vehicle was registered to a female. The officer also noticed a spider
    crack in the front windshield, and dark tinted windows.

The Second
    Meeting

[12]

Moments
    later, a short distance away, the police car and red Honda arrived at a
    four-way stop on an adjacent street. Leaning out of his drivers seat, Devonish
    pointed and yelled at Cst. Dales, who was still driving the police car.

[13]

The
    officers decided to pull over the red Honda. They activated the emergency
    equipment on the police car to signal Devonish to pull over. He complied.

The Stop

[14]

Devonish
    and the appellant got out of the Honda as soon as it stopped. Devonish exited
    from the drivers side, the appellant from the passenger side. Each left the
    door open behind him. Their exits occurred at virtually the same time, at most
    only seconds apart. Each began to walk towards the police car as the officers
    were getting out of their vehicle.

[15]

The
    officers directed Devonish and the appellant to return to the Honda. Devonish
    was belligerent, the appellant quiet. The appellant returned to the passenger
    side. Cst. Stepanenko followed. Cst. Dales ushered Devonish back to the
    drivers side of the Honda.

The Handgun

[16]

When
    Cst. Dales and Devonish got back to the open drivers door of the Honda, the
    officer saw a handgun on the floor of the vehicle. It rested on the floor mat
    near the gas pedal in plain view. At that time, Cst. Dales said nothing about
    seeing the handgun.

[17]

The
    appellant was sitting in the front passenger seat. Cst. Stepanenko was at the
    passenger side door. She could see into the vehicle through the door opening.
    She had a full view of the passenger side and the further side of the
    drivers seat. She could not see to the drivers footwell because the centre console
    obstructed her view.

The Arrest of Devonish

[18]

Cst.
    Dales told Devonish to put his hands behind his back. The officer began to
    handcuff Devonish. Cst. Stepanenko saw the appellant blading, turning his
    body in the passenger seat towards the drivers seat and away from the officer.

[19]

Cst.
    Dales was only partly successful in handcuffing Devonish, who resisted the
    officers attempt to restrain him. Cst. Dales attempts to complete the
    handcuffing procedure and Devonishs resistance carried on across the street.
    The appellant tried to step out from the passenger side of the vehicle. Cst.
    Stepanenko asked him to remain seated. The appellant complied.

[20]

Cst.
    Stepanenko noticed that Cst. Dales continued to struggle with Devonish on the
    lawn across the street. She ran across the street to help her partner subdue
    Devonish.

The Gun Disclosure

[21]

As
    Cst. Stepanenko approached the altercation between Cst. Dales and Devonish,
    Cst. Dales repeated to her: gun in the car, gun in the car. Cst. Dales said
    nothing about the location of the firearm.

[22]

Cst.
    Stepanenko immediately went back across the street towards the red Honda. The
    appellant stepped out of the passenger side of the vehicle and walked towards
    her. The officer unholstered her gun, pointed it at the appellant and ordered:
    Dont move. Keep your hands visible. Get down on the ground. The appellant
    hesitated. Then he turned and ran. The officer took up but soon abandoned the
    pursuit. She radioed for assistance and returned to the Honda.

The Vehicle Search

[23]

In
    the red Honda, police found a handgun, and a clear plastic bag containing
    brightly coloured pills. The officers thought these pills were ecstasy or MDMA.
    Subsequent analysis confirmed this was not the case. In a plastic bag tucked behind
    the centre console they found marijuana in sufficient quantity for the purpose
    of trafficking.

[24]

Devonish
    was searched incident to arrest. In his possession officers found a cellphone, a
    small digital scale, rolling papers and a marijuana roach.

The Arrest of the Appellant

[25]

Within
    minutes of Cst. Stepanenkos call for assistance, other officers located the
    appellant on a nearby street. After a brief foot pursuit and a struggle that
    resulted in several further charges, the appellant was arrested and taken into
    police custody. A later search of his clothing yielded some money and a small
    amount of cocaine.

The Trial Proceedings

[26]

Devonish
    and the appellant were tried together by a judge of the Superior Court of Justice
    sitting without a jury. The indictment contained 22 counts, none charging
    Devonish and the appellant jointly. Each was charged separately with seven counts
    alleging the same firearms offences, as well as possession of marijuana and
    possession of marijuana for the purpose of trafficking.

[27]

Neither
    the appellant nor Devonish testified at trial. Devonish was acquitted on all
    counts. The appellant was convicted of all the firearms offences, several
    offences arising out of his resistance to arrest, and possession of a small
    amount of cocaine. He was acquitted of the marijuana counts and of possession
    of the proceeds of crime.

THE GROUNDS OF APPEAL

[28]

On
    the appeal from conviction, the appellant alleges two material errors in the
    reasons of the trial judge. I would paraphrase those errors as:


i.

failing to decide the appellants case separately and independently from
    the case against Devonish; and


ii.

rendering an unreasonable verdict through impermissible speculation
    rather than permissible inference.

[29]

On
    the application for leave to appeal sentence, the appellant asks that the
    sentence imposed  seven years and three months  be reduced by an amount that
    would reflect the proper credit for time spent in pre-sentence custody under
Summers
.

THE APPEAL FROM CONVICTION

Ground #1: Failure to Decide the Appellants Case Separately
    and Independently from the Case of the Co-accused

[30]

The
    first ground of appeal alleges error in the trial judges reasoning leading to
    her findings of guilt. The error begins with an incorrect framing of the issue
    to be decided. It continues to an erroneous conclusion of guilt based on the
    same inference that raised a reasonable doubt about the guilt of the co-accused
    Devonish.

[31]

It
    is unnecessary to repeat the circumstances giving rise to the charges but
    helpful to begin with a brief tour through the reasoning process followed by
    the trial judge in reaching her conclusion.

The Reasons of the Trial Judge

[32]

The
    trial judge characterized the issue she had to decide in these terms:

In issue are: who was in possession of the firearm, marijuana,
    and crack cocaine; and whether $913.08 were proceeds from marijuana
    trafficking.

[33]

After
    summarizing the evidence adduced at trial, the trial judge turned to the
    firearms counts against Devonish and the appellant. She noted the admitted
    facts and framed the issue she was required to decide in these words:

As a result, the question to be determined with respect to
    those charges is whether or not the Crown has proven beyond a reasonable doubt
    that Mr. Devonish and or Mr. Smith were in possession of the firearm found in
    the Honda Civic on August 21, 2010.

[34]

The
    trial judge acknowledged that neither Devonish nor the appellant was in
    personal possession of the 9mm handgun found by the accelerator in the Honda
    Civic. As a result, the trial judge recognized that proof of possession
    depended upon whether the circumstantial evidence, considered as a whole, could
    establish constructive possession as the only reasonable inference in the
    circumstances.

[35]

The
    trial judge was satisfied that the handgun and the clear plastic bag containing
    pills were on the floor near the accelerator on the drivers side of the centre
    console of the Honda Civic. Both items were in plain view of anyone seated in
    the drivers seat, but not from the passenger seat unless the passenger leaned
    over slightly towards the drivers side. The gun was resting on the top of its
    slide with its grip facing up.

[36]

The
    trial judge considered first the case against the driver, Devonish. She
    recognized that the mere physical proximity of Devonish to the handgun did not
    establish possession any more than his occupancy of the drivers seat could
    sustain the same conclusion. She concluded from Devonishs behaviour in
    attracting the attention of the police and persisting in his aggressive conduct
    when stopped by the police that the gun was not in the position in which it was
    later found when Devonish got into, drove or got out of the car.

[37]

In
    concluding that Devonish was not guilty of the firearms offences, the trial
    judge said:

The only reasonable inference to be drawn from the
    uncontroverted evidence of Mr. Devonishs extraordinary behaviour is that Mr.
    Devonish did not have knowledge that the firearm was in the Honda Civic.

Based on the evidence before me, I find that Mr. Devonish did
    not put the firearm in the drivers footwell, did not have knowledge that there
    was a firearm in the Honda Civic, and did not have possession of it.

[38]

In
    turning to the case against the appellant, the trial judge reiterated her
    findings that the firearm was not on the drivers side footwell when Devonish
    entered the car and that Devonish had not put the gun there. There were only
    two people in the vehicle  Devonish and the appellant. The appellant did not
    have control over the vehicle. His proximity to the gun was not enough to prove
    possession which required both knowledge and control.

[39]

In
    reaching her conclusion of guilt in connection with the appellant, the trial
    judge considered the combined effect of evidence of:

·

opportunity;

·

contemporaneous conduct; and

·

post-offence conduct.

She concluded:

Based on all of the evidence before me, the only reasonable
    conclusion to be made is that Mr. Smith was in possession of the firearm which
    he had concealed from Mr. Devonish and that Mr. Smith had placed the firearm in
    the drivers side of the Honda Civic.

As a result, I find that the Crown has proven beyond a
    reasonable doubt that Mr. Smith was in knowing possession of the firearm that
    was found in the Honda Civic.

The Arguments on the Appeal

[40]

The
    appellant invokes fundamental principles governing criminal liability in
    support of his claim that the trial judges reasons reflect error. That this
    was a joint trial does not alter the bedrock principle that guilt is
    individual, to be proven both on evidence properly admissible against an
    accused, and independently and separately from conclusions reached in relation
    to a co-accused. Proof of the commission of a crime without more does
not
establish
    the guilt of any person charged with it. The evidence, taken as a whole, must
    establish an individual accuseds culpable participation in the offence to
    establish his or her guilt.

[41]

In
    this case, the appellant continues, the trial judge got off on the wrong foot.
    She framed the issue as who  Devonish or the appellant  was in possession
    of the firearms and drugs, rather than whether the Crown had proven beyond a
    reasonable doubt that either was in possession. The trial judge compounded this
    initial error by using an inference that created a reasonable doubt about
    Devonishs guilt as an item of evidence supportive of the appellants guilt.
    She failed to consider the possibility that neither was in knowing possession
    of the firearm, or to apply the principle that uncertainty about who was in
    possession required the acquittal of both.

[42]

The
    respondent rejects any suggestion of error in the trial judges reasoning. The
    finding of guilt, according to the respondent, was grounded on three essential
    findings of fact:


i.

the firearm was not in plain view in the drivers side footwell when the
    driver entered the vehicle;


ii.

the appellant had the opportunity to place the firearm in the drivers
    footwell without the drivers knowledge; and


iii.

the appellants conduct during and after the vehicle stop, including
    fidgeting, turning his body, trying to get out of the car and flight, supported
    an inference of culpable conduct rather than accidental or non-culpable
    presence.

[43]

The
    respondent contends that each of these three essential findings of fact is
    firmly rooted in the evidence adduced at trial and untainted by legal error.

[44]

The
    consistently extraordinary behaviour of Devonish before and after apprehension
    belied not only the presence of the gun in the drivers side footwell, but also
    his knowledge of it and control over it.

[45]

The
    respondent submits that after finding Devonish not guilty on evidence that
    related to his conduct, the trial judge turned to the case against the
    appellant. She noted that mere proximity to the firearm did not establish
    either knowledge of its presence or control over it. Then she considered the
    evidence as a whole, finding that it established the appellants knowledge of
    and control over the firearm as the only reasonable inference available. In
    doing so, the trial judge did not convert evidence that raised a reasonable
    doubt about Devonishs guilt into positive evidence of the appellants guilt.

The Governing Principles

[46]

Recall
    that the indictment and trial of the appellant and Devonish were joint, but the
    liability of each was several.

[47]

A
    person may participate in and be found guilty of a crime in any of several ways.
    As a principal, whether alone or together with another or other principals.
    Joint or co-principals may be liable even though each has not done every act
    that makes up the
actus reus
of the offence:
R. v. Pickton
,
    2010 SCC 32, [2010] 2 S.C.R. 198, at para. 63;
R. v. Mena
(1987), 34
    C.C.C. (3d) 304 (Ont. C.A.), at pp. 314-15. As an aider or abettor of one or
    more principals. Or as a participant in a common unlawful purpose under s.
    21(2).

[48]

In
    cases in which an accuseds participation in an offence is alleged to be as a
    principal, the acquittal of one principal determines nothing in respect of the
    other:
R. v. Rémillard
(1921), 62 S.C.R. 21, at pp. 23-24;
R. v.
    Hick
, [1991] 3 S.C.R. 383, at p. 386;
R. v. Duong
(2001), 160
    C.C.C. (3d) 467 (Ont. C.A.), at para. 19.

The Principles Applied

[49]

As
    I will explain, I would reject this ground of appeal.

[50]

First,
    it was open to the trial judge to find, as she did, that the gun was not in the
    drivers side footwell when Devonish entered the Honda. Had it been in the
    position in which the police found it  inches away from the accelerator and
    leaning against the centre console  it would not only have been clearly visible
    to Devonish but would equally have obstructed his access to the accelerator and
    thus his operation of the vehicle.

[51]

Further,
    as the trial judge found, it beggars belief that Devonish, aware of the
    location of the gun, would go out of his way to attract and maintain the
    attention of the police who were in uniform, driving a marked police car and in
    plain sight. The appellant was the only other person in the Honda.

[52]

Second,
    despite an initial mischaracterization of the issue she had to decide, the
    trial judges reasons, read as a whole, reveal that she considered the
    appellants liability as a principal separately from Devonish.

[53]

The
    trial judge considered Devonishs liability as a principal first. She found
    that the gun was not in the drivers side footwell when Devonish got into the
    car. She concluded that this finding followed from Devonishs unrelenting
    pursuit of the attention of uniformed police officers driving a marked car, a
    manifest improbability if Devonish had seen the gun on the floor inches away
    from the accelerator and his foot. Absent knowledge of the presence of the gun,
    and all the more so control over it, Devonish could not be found guilty of its
    possession on a constructive basis.

[54]

The
    trial judge then turned her attention to the evidence relating to the appellant
    as principal. He was the only other person in the car. He occupied the front
    passenger seat, a position a short reach away from where the gun was found. The
    position of the gun  grip facing up and resting on its slide or barrel  was
    consistent with the position expected on placement from the passenger side of
    the vehicle. The appellant had the opportunity, arguably the exclusive
    opportunity, to put the gun where it was found.

[55]

The
    trial judge also considered the appellants conduct following the vehicle stop,
    including his turning towards the centre console and drivers side, as well as
    his flight from the scene. This evidence was relevant to negate the claim of
    non-culpable conduct advanced on his behalf, but unsupported but his own
    testimony.

[56]

Third,
    the appellants reliance on
R. v. Schell and Paquette
(1977), 33
    C.C.C. (2d) 422 (Ont. C.A.), is unavailing. There, the appellants were jointly
    charged and tried by a jury on a count of second degree murder arising out of
    the death of a child. They were the only two people who had custody and control
    of the child during all material times. Thus, they were virtually the only
    persons who had the opportunity to inflict the fatal injury. Both had severely
    mistreated the child on previous occasions.

[57]

In
    his charge to the jury, the trial judge did not instruct on liability under s.
    21(2). He also pointed out the practical inapplicability of ss. 21(1)(b) and
    (c) in those circumstances. This court held that the jury should have been instructed
    that they should convict one or the other, but if they could not decide whom to
    convict, then they should find both not guilty.

[58]

The
    premise from which
Schell and Paquette
proceeds is that the jury had
    determined that one of the two accused was clearly innocent, but was unable to
    conclude, as between them, who was innocent and who was guilty:
R. v. A.K.
(2002), 169 C.C.C. (3d) 313 (Ont. C.A.), at para. 17. But the reasons of the
    trial judge in this case demonstrate that this case is different. Devonish was
    innocent, or at least not guilty. The trial judge then proceeded to consider
    whether the Crown had established the appellants guilt beyond a reasonable
    doubt. That decision was not contaminated by her finding in connection with
    Devonish.

Ground #2: Speculative Conclusions and Unreasonable Verdict

[59]

The
    second ground of appeal from conviction requires no further reference to the
    evidence adduced at trial. A brief refresher about the basis upon which the
    trial judge found guilt established will afford an adequate foundation for
    consideration of this ground of appeal.

The Reasons of the Trial Judge

[60]

The
    trial judge considered several features of the evidence in reaching her
    conclusion in connection with the firearms offences:


i.

the appellants opportunity to put the gun in the drivers footwell from
    his position in the passenger seat;


ii.

the position of the gun, consistent with its placement there from the
    passenger side of the vehicle;


iii.

the appellants conduct in the passenger seat when engaged by Cst. Stepanenko,
    in particular, turning away from her towards the drivers seat and attempting
    to get out of the car;


iv.

the appellants flight from the scene of the vehicle stop and resistance
    to arrest; and


v.

the finding that the gun was not in the drivers side footwell when
    Devonish got into the car.

[61]

Based
    on all of the evidence before her, the trial judge reasoned that the only
    reasonable conclusion was that the appellant was in possession of the firearm,
    which he had concealed from Devonish, and that he had placed it in the drivers
    side footwell of the vehicle.

The Arguments on Appeal

[62]

The
    appellant says that the verdict reached by the trial judge is unreasonable, the
    product of impermissible speculation rather than permissible inference.

[63]

The
    appellant submits that the trial judge erred by equating evidence of mere
    opportunity with the exercise of control over the firearm. The opportunity was
    brief. No one observed any movement by the appellant consistent with what would
    be required to put the gun in its final resting place.

[64]

The
    appellant argues that the only evidence linking him to the firearm was his
    physical proximity to it. The trial judge recognized that such proximity was
    not enough to establish Devonishs liability. She should have reached the same
    conclusion about the appellant. There was no other direct or circumstantial
    evidence linking the appellant to the gun. No DNA. No fingerprints. And no
    evidence that he brought anything into the car.

[65]

The
    appellant says that evidence of his behaviour at and after the vehicle stop
    cannot satisfy or help to satisfy the burden of proof. The conduct was
    ambiguous. The appellant had just seen his friend arrested. And after all, he
    was in possession of contraband  cocaine  later found in his pants pocket at
    the hospital.

[66]

The
    respondent rejects any claim that the verdict is unreasonable, whether as a
    result of legal error or otherwise.

[67]

The
    respondent says that the trial judge did not equate the opportunity to commit
    the offence with its actual commission. Opportunity was only part of the trial
    judges analysis leading to her conclusion that guilt had been established. The
    opportunity in the case was coloured by the position in which the gun was
    found, a position consistent with its placement there by a person in the
    passenger seat, a mere arms length away. That the officers could not identify
    any particular movement is scarcely surprising since their principal focus was
    on Devonish and his aggressive conduct.

[68]

The
    respondent submits that the trial judge made appropriate use of the conduct of
    the appellant after the Honda was pulled over and in fleeing when confronted by
    Cst. Stepanenko at gunpoint. This evidence negated any non-culpable presence on
    the appellants part and is not explainable by the small amount of cocaine or
    the money found in his pants pocket.

[69]

The
    respondent says that the appellants piecemeal analysis of the circumstantial
    evidence fails to respect the principle that it is the cumulative effect of the
    various items of evidence that is to be considered in deciding whether guilt
    has been established. Isolated scrutiny of individual items of circumstantial
    evidence is contrary to binding precedent.

The Governing Principles

[70]

This
    ground of appeal requires brief reference to the principles that apply on
    appellate review of verdicts impeached as unreasonable, the role of evidence of
    after-the-fact conduct in the demonstration of guilt, and the manner in which a
    trier of fact is to evaluate circumstantial evidence tendered in proof of
    guilt.

Unreasonable Verdicts

[71]

The
    test for an appellate court to apply when a verdict is impeached as
    unreasonable is to consider whether the verdict is one that a properly
    instructed jury, acting judicially, could reasonably have rendered:
R. v.
    Yebes
, [1987] 2 S.C.R. 168, at p. 185;
R. v. Biniaris
, 2000 SCC
    15, [2000] 1 S.C.R. 381, at para. 36. The test imports not only an objective
    assessment, but also, to some extent at least, a subjective evaluation:
Biniaris
,
    at para. 36.

[72]

The
    test requires us to determine what verdict a reasonable jury, properly
    instructed, could judicially have rendered. In doing so we are required to
    review, analyze and, within the limits of appellate disadvantage, weigh the
    evidence. We must examine the
weight
of the evidence, not its bare
    sufficiency:
Biniaris
, at para. 36.  Our entitlement to review the
    evidence adduced at trial, to re-examine and reweigh it, is only to determine whether
    the evidence, as a whole, is reasonably capable of supporting the verdict
    rendered:
R. v. Burns
, [1994] 1 S.C.R. 656, at p. 663.

[73]

In
    deciding whether the verdict is one that a properly instructed jury acting
    judicially could reasonably have rendered, we must ask not only whether there
    is evidence in the record to support the verdict, but also whether the jurys
    conclusion conflicts with the bulk of judicial experience:
Biniaris
,
    at para. 40;
R. v. W.H.
, 2013 SCC 22, [2013] 2 S.C.R. 180, at para.
    28. We must ask whether a jurys verdict is supportable on
any
reasonable
    view of the evidence and whether proper judicial fact-finding applied to the
    evidence
precludes
the conviction:
W.H.
, at para. 2.

[74]

The
    test and inquiries described above are expressed in terms of a verdict reached
    by a jury. They are equally applicable to cases such as this where the verdict
    under review is that rendered by a judge sitting without a jury. That said, the
    review for unreasonableness is different when the verdict is that of a judge accompanied
    by reasons for judgment. In judge alone cases, an appellate court may be able
    to identify some flaw in the evaluation of the evidence, or in the judges
    analysis, that will serve to explain the unreasonable conclusion the judge has
    reached:
Biniaris
, at para. 37.

[75]

In
    cases tried without a jury, the unreasonableness analysis required under
R.
    v. Beaudry
, 2007 SCC 5, [2007] 1 S.C.R. 190, involves scrutiny of the
    logic of the judges findings of fact or inferences drawn from the evidence admitted
    at trial:
R. v. Sinclair
, 2011 SCC 40, [2011] 3 S.C.R. 3, at paras. 15,
    44. Under this test, an appellate court can interfere where a trial judge draws
    an inference or makes a finding of fact that is:


i.

plainly contradicted by the evidence relied upon by the judge for that
    purpose; or


ii.

demonstrably incompatible with evidence that is not otherwise
    contradicted or rejected by the trial judge:
Sinclair
, at para. 16.

After-the-fact Conduct

[76]

Evidence
    of after-the-fact conduct is a kind of circumstantial evidence that invokes a
    restrospectant chain of reasoning. The trier of fact is invited to infer from a
    subsequent act, state of mind, or state of affairs that a prior act was done or
    that a state of mind or of affairs existed at a material time in the past:
R.
    v. Figueroa
, 2008 ONCA 106, 232 C.C.C. (3d) 51, at para. 33;
R. v.
    Salah
, 2015 ONCA 23, 319 C.C.C. (3d) 373, at para. 225.

[77]

The
    inferences drawn from evidence of after-the-fact conduct, as with any inference
    drawn from any item of circumstantial evidence, must be reasonable according to
    the measuring stick of human experience:
Figueroa
, at para. 33. The
    inferences drawn from evidence of after-the-fact conduct, once again as in all
    instances of circumstantial evidence, will depend on:


i.

the nature of the conduct;


ii.

the fact the proponent seeks to have inferred from that conduct;


iii.

the positions of the parties; and


iv.

the totality of the evidence.

Inference drawing is situation-specific, anathema to a
    set of prefabricated rules:
Figueroa
, at para. 33;
Salah
, at
    para. 226.

[78]

It
    is for the trier of fact to choose among reasonable inferences available from
    the evidence of after-the-fact conduct. Among the inferences that may be
    available is that an accuseds conduct was culpable:
Figueroa
, at para.
    35;
Salah
, at para. 227.

Circumstantial Evidence

[79]

Two
    brief principles that govern proof by circumstantial evidence merit brief
    mention.

[80]

The
    first has to do with the standard of proof required in cases involving
    circumstantial evidence. There is no legal requirement for a special
    self-instruction on circumstantial evidence. To convict, a trial judge must be
    satisfied beyond a reasonable doubt that the only rational inference that can
    be drawn from the circumstantial evidence is one of guilt:
R. v. Griffin
,
    2009 SCC 28, [2009] 2 S.C.R. 42, at para. 33.

[81]

The
    second principle assumes particular significance when, as here, arguments are
    advanced that individual items of circumstantial evidence are explicable on
    bases other than guilt. It is essential to keep in mind that it is the
    cumulative effect of all the evidence that must satisfy the criminal standard
    of proof, not each individual item which is merely a link in the chain of
    proof:
R. v. Morin
, [1988] 2 S.C.R. 345, at p. 361;
R. v. Uhrig
,
    2012 ONCA 470, at para. 13.

[82]

Often,
    individual items of evidence adduced by the Crown examined separately lack a
    very strong probative value. But it is all the evidence that a trier of fact is
    to consider. Each item is considered in relation to the others and to the evidence
    as a whole. And it is all the evidence taken together, often greater than the
    sum of individual pieces, that is to be considered and may afford a basis for a
    finding of guilt:
Uhrig
, at para. 13. See also:
Côté v. The King
(1941), 77 C.C.C. 75 (S.C.C.), at p. 76.

The Principles Applied

[83]

For
    several reasons, I would not give effect to this ground of appeal.

[84]

First,
    the trial judge did not equate opportunity with guilt. It is fundamental that
    we are to read the trial judges reasons as a whole to determine whether they
    reflect error. When this approach is followed, it is clear that evidence of
    opportunity was simply one of several items of circumstantial evidence, the
    cumulative effect of which the trial judge measured against the criminal
    standard of proof in reaching her conclusion that the appellants guilt had
    been proven beyond a reasonable doubt.

[85]

Second,
    the trial judge recognized that mere proximity of the appellant to the firearm
    was not a sufficient basis upon which to find established the elements of
    knowledge and control essential to a finding of constructive possession of the
    gun. Nonetheless, proximity was a circumstance worthy of consideration in assessing
    the adequacy of the evidence as a whole to establish guilt.

[86]

Third,
    it was an inevitable consequence of the finding that the gun was not in the
    drivers side footwell when Devonish entered the car and, by necessary
    implication, was not there when he was driving, that it was put there after the
    vehicle was pulled over by police and before Cst. Dales noticed it when he
    ushered Devonish back to the drivers door. On the findings of the trial judge,
    there was only one person in close proximity to the gun: the appellant.  And
    the firearm was in a position consistent with having been placed there by the person
    who occupied the passenger seat: once again, the appellant.

[87]

Fourth,
    the trial judge was entitled to consider the appellants conduct at the scene
    of the vehicle stop and his flight thereafter as supportive of culpability
    associated with the firearm.

[88]

In
    the result, I am not satisfied that the verdict is the product of impermissible
    speculation rather than reasonable inference, or that it is cumbered by legal
    error or misapprehension of evidence. The verdict is not unreasonable.

[89]

For
    these reasons, I would dismiss the appeal from conviction.

THE SENTENCE APPEAL

[90]

It
    is common ground that, without the benefit of the decision of the Supreme Court
    of Canada in
Summers
, the trial judge did not award the appellant
    sufficient credit for the time spent in pre-sentence custody.

[91]

The
    trial judge calculated the credit for pre-sentence custody  a total of two
    years eight months and nine days  on a 1:1 basis rather than on a 1.5:1 basis
    as mandated by
Summers
. As a result, she reduced the sentence she
    determined was fit  seven years three months  by a total of 32 months nine days,
    rather than by a total of 48 months 14 days.

[92]

To
    give effect to the appropriate credit for pre-sentence custody, I would reduce
    the
remanet
of the appellants sentence by a further 16 months and 5
    days.

CONCLUSION

[93]

In
    the result, I would dismiss the appeal from conviction. I would grant leave to
    appeal sentence and allow the appeal from sentence by reducing the
remanet
by 16 months 5 days to reflect proper credit for pre-sentence custody.

Released: January 13, 2016 (DW)

David
    Watt J.A.

I
    agree P. Lauwers J.A.

I
    agree David Brown J.A.


