



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Thompson, 2020 ONCA 361

DATE: 20200610

DOCKET: C66298

Hoy A.C.J.O., MacPherson and
    Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Adrian Thompson

Appellant

Breana Vandebeek, for the appellant

Andrew Hotke, for the respondent

Heard: In-writing

On appeal from the conviction entered by
    Justice Sandra Martins of the Ontario Court of Justice on August 16, 2018, and
    the sentence imposed on December 5, 2018.

REASONS FOR DECISION

[1]

On November 24, 2017, the appellant was arrested
    following the execution of a search warrant on his vehicle. A loaded firearm,
    ammunition and drugs were located in a black bag (man purse) on the floor of
    the rear passenger seat.

[2]

Following a trial in the Ontario Court of
    Justice, Justice Martins convicted the appellant of several firearm and drug
    offences. She imposed a sentence of seven and a half years less time for
    pre-trial custody (just over a year and a half). She also imposed a victim fine
    surcharge of $1,600.

[3]

The appellant appeals the conviction and the
    sentence.

[4]

The central issue at trial was whether the
    appellant had knowledge of the firearm, ammunition and drugs in the black bag
    in the rear seat area of his car. The appellant testified that he did not know
    that these items were inside the black bag that he admitted belonged to him. He
    believed that his ex-brother-in-law, Jawara, had placed them in the vehicle.

[5]

The trial judge disbelieved the appellant on
    this crucial point. In the course of extensive reasons for this disbelief, the
    trial judge said:

Further and even more telling, while Mr.
    Thompson is legally entitled to remain silent and have the Crown prove the
    charges beyond a reasonable doubt, when he chooses to testify, I am entitled to
    draw inferences from his evidence that are illogical and contrary to common
    sense.

In this case, the inference that Mr. Thompson
    is making in his testimony is that Jawara, the person who had access to the
    Honda while Mr. Thompson and his children were inside, must have put the loaded
    gun, the heroin and the MDMA in his man purse.
If this were true, you would expect that Mr. Thompson would have been
    outraged that his daughters uncle and someone he trusted, placed a loaded
    firearm within reach of his six year old daughter in the backseat of the car.
    The fact that he made no comment about any outrage in this regard is another
    area of his evidence that causes me to disbelieve completely his story that
    Jawara put the drugs in the car in an area that he was completely unaware of.
This portion of his evidence, again, was contrary to logic and I find it
    completely contrived to try and paint a period of time when someone may have
    planted a loaded firearm and drugs into his man purse; extremely valuable items
    for no apparent reason. [Emphasis added.]

[6]

The appellant contends that the emphasized
    portion of this passage amounts to a judicial ambush of the appellant because
    it criticizes him for something (i.e., his non-reaction to Jawaras conduct)
    that was not put to him when he was testifying.

[7]

We do not accept this submission. It is
    completely belied by the fact that the appellant testified that he trusted
    Jawara and that he specifically asked him to put cocaine in his car and did not
    feel any need to ask him where inside the car he had put it. Accordingly, the
    trial judges inference flowed logically from the appellants own testimony; he
    clearly had no concern about what was in a car in which his daughters were
    about to be passengers.

[8]

The appellants second ground of appeal is that
    the trial judge erred in rejecting the appellants evidence because of the
    value of the drugs and firearm in the car.

[9]

In her reasons, the trial judge said:

In this case, there is a large quantity of
    valuable drugs and a loaded firearm. I find it is a reasonable inference that
    nobody would leave these valuable items in Mr. Thompsons man purse without him
    being fully aware of their presence.



One would not just place these valuable items
    in Mr. Thompsons man purse for no reason.

Therefore, having rejected the inference that
    someone other than Mr. Thompson put those items in his man purse, I find that
    the Crown has proven beyond a reasonable doubt that Mr. Thompson had both the
    knowledge and control over these items in his man purse and as such, he was in
    possession of the loaded handgun and all of the drugs located during the search
    of his car.

[10]

The appellant submits that there was no
    evidentiary basis for the trial judges conclusion that the drugs and firearm
    in the man purse were valuable items that a third party (Jawara) would not
    leave in the car without the appellants knowledge. The appellant asserts that
    there needed to be expert evidence about the value of the drugs and firearm if
    this inference were to be drawn.

[11]

We disagree. In a case in which a loaded firearm
    was found in the back of a car after a traffic stop, this court held that it
    was open to the trial judge to rely on the common sense inference that parties
    generally do not hide their valuables in someone elses car, unless they know
    and trust the owner of the car to look after the valuables for them:
R. v.
    Bonilla-Perez
, 2016 ONCA 535, at para. 16. Implicit in this holding is the
    Courts acceptance that it is a matter of common sense that guns are valuable
    items. The same is true of drugs:
R. v. Pannu
, 2015 ONCA 677, at para.
    157.

[12]

The appellants third ground of appeal is that
    the trial judge erred in her assessment of the testimony of Constable
    Rondinelli who was one of the two police officers who searched the appellants
    car. The trial judge did not accept Rondinellis testimony that he found the
    appellants wallet in the man purse; rather she accepted the appellants
    evidence that he always put his wallet in the front seat console area. The
    appellant says that the trial judge should have gone farther and concluded that
    Rondinelli had in fact engaged in deliberate misconduct by planting the wallet
    in the purse with the firearm and drugs.

[13]

We do not accept this submission. The trial
    judge heard Constable Rondinellis testimony. She accepted some of it (much of which
    was confirmed by physical and video evidence) and did not accept it with
    respect to the location of the appellants wallet. This is precisely the domain
    in which a trial judge is best positioned to evaluate the evidence.

[14]

Finally, the appellant challenges the trial
    judges pre-trial
Charter
s. 8 ruling in which she held that although
    there were not reasonable and probable grounds for the warrant authorizing the
    search and seizure of the firearm, ammunition and drugs, this evidence was
    admissible under s. 24(2) on the basis of the
Grant
analysis:
R.
    v. Grant
, 2009 SCC 32.

[15]

This final argument rests largely on the
    appellants argument that the trial judge erred in not finding that Rondinelli
    engaged in deliberate misconduct in the course of searching the appellants car
    by planting the wallet in the purse with the firearm and drugs The appellant
    submits that the trial judge should have found at trial that Rondinelli engaged
    in deliberate misconduct, and that finding should have caused him to revisit
    his pre-trial Charter ruling. We have rejected the appellants argument that the
    trial judge erred by not finding that Rondinelli engaged in deliberate
    misconduct. We can see no basis for interfering with the trial judges analysis
    and balancing of the
Grant
factors.

[16]

The appellant appeals his sentence on two bases.
    First, he argues that the trial judge failed to regard the police infringement
    of his
Charter
s. 8 right as a mitigating factor warranting a
    reduction in the sentence she imposed.

[17]

We do not accept this submission. The trial
    judges decision not to reduce the sentence in light of her findings on the
Charter
motion does not amount to an error in principle. She was entitled to find that
    they did not warrant mitigation. Her finding was reasonable given the lack of
    any clear connection between the
Charter
s. 8 breach and the
    circumstances of the offence and the offender: see
R. v. Foster
, 2018
    ONCA 53, at para. 135.

[18]

Second, based on fresh evidence filed on appeal,
    we understand the appellant to argue that his sentence should be reduced because
    of the COVID-19 pandemic. Based on the information about the appellant
    personally (he says only that he has asthma) and about the institution, Beaver
    Creek Medium Institution (where there are no indications about COVID-19 cases),
    we are not persuaded by the appellants evidence that the we should intervene
    and disturb an otherwise fit sentence. Moreover, this is an issue that can be
    considered effectively at the appellants parole hearing, for which he is
    eligible later this month.

[19]

The appeal is dismissed on all issues but one.
    The victim surcharge of $1,600 is set aside: see
R. v. Boudreault
,
    2018 SCC 58 and
R. v. Stockton
, 2019 ONCA 300.

Alexandra
    Hoy A.C.J.O.

J.C.
    MacPherson J.A.

M. Tulloch J.A.


