



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Robins, 2013
    ONCA 65

DATE: 20130130

DOCKET: C53497

Rosenberg, Blair and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kevin Robins

Appellant

Brigitte Gratl, for the appellant

Lucy A. Cecchetto, for the respondent

Heard: January 25, 2013

On appeal from the conviction entered on October 22, 2010
    and the sentence imposed on March 10, 2011 by Justice Nancy Mossip of the Superior
    Court of Justice.

ENDORSEMENT

[1]

Following the conclusion of oral argument, the court dismissed the
    appeal from conviction and sentence with reasons to follow. These are our
    reasons.

The Conviction Appeal

Severance

[2]

The appellant submits that the trial judge erred in failing to sever the
    weapons offences from the child pornography offences. Whether to grant
    severance is a discretionary decision. The trial judge made no error in
    principle and her decision is not unreasonable. There was little, if any,
    prejudice from the joint trial. There was no suggestion that the appellant used
    the weapon or that it had anything to do with his use of his computer to make
    child pornography available. There was little likelihood that the jury would
    reason from the fact that the appellant was in possession of the gun that he
    was therefore more likely to have made child pornography available.

The statement

[3]

The admissibility of the appellants statement turned on findings of
    fact. Those findings are entitled to deference. The appellant submits that it
    is clear from the transcript of the videotaped interview that the appellant
    began to speak about the charges in exchange for a promise concerning the
    weapons charges. Thus, he submits, the requisite
quid pro quo
was
    present. We disagree. The transcript supports the trial judges holding that in
    response to the appellants suggestions of same benefit, Constable McFadden
    made it clear that he could not promise anything to the appellant and that the
    appellant understood this. On the trial judges findings there was no
quid
    pro quo
. There was no error in her finding that the statement was
    voluntary.

[4]

In oral argument, counsel did not pursue any argument concerning the
    appellants rights under s. 10(b). Based on the trial judges findings of fact,
    there was no violation of the
Charter.

Disclosure

[5]

In the middle of this jury trial, counsel for the appellant sought
    disclosure of the appellants computer and hard drives. In her reasons for
    dismissing this application, the trial judge noted the serious practical
    difficulties for this last minute request. She also held that Ms. Gratl had not
    provided any reason for needing the material sought. Again, this was a
    discretionary decision and we can see no error in principle. The core of the
    submission was that there were discrepancies between the screen-shot taken by
    one officer and the list of files provided by another officer. This discrepancy
    could be fully exploited in cross-examination, as it was. There was no need for
    the actual computer. Having the computer in court would not have advanced the
    defence case in any way that could not be done through cross-examination of the
    police witnesses.

Unreasonable verdict

[6]

The appellant submits that when the various discrepancies are taken into
    account, the verdict is unreasonable. We do not agree. It was open to the jury
    to accept the evidence, especially the evidence of Detective Constable Purchas,
    that the appellant made the child pornography, admittedly stored on his
    computer, available to others through the file-sharing programs that were
    admittedly on his computer. It was for the jury to decide whether Constable
    Purchas should be believed. It was open to the jury to reject the appellants
    claim that at the relevant times the programs were set to prevent file sharing.
    In doing so, they could take into account the evidence of Purchas and the other
    officers and the appellants own admission that on some occasions the programs
    were set to permit uploading by other persons with file-sharing programs. It
    was pre-eminently a jury question whether the various discrepancies so
    undermined the police evidence as to raise a reasonable doubt.

Providing written copies of the jury charge

[7]

The appellant submits that in the circumstances of this case, the trial
    judge should not have provided the jury with a copy of her charge. The argument
    appears to be that somehow the jury would give more weight to the recitation of
    facts in the charge than counsels jury address. There is no merit to this
    argument. In fact, Ms. Gratl conceded that the one example of the recitation of
    the evidence about which she complains in this court was accurate. She raised no
    objection to its inclusion during the pre-charge conference or at the
    conclusion of the jury charge.

Sentence

[8]

The principal argument on sentence was that the trial judge erred in
    imposing more than the one year minimum for possession of a loaded restricted
    firearm and erred in making this sentence consecutive. We see no error in the
    trial judges approach. The appellant had a handgun in his possession for
    several years. The firearm was loaded and stored in a careless manner.  The
    appellant had made unauthorized use of the firearm for target practice on prior
    occasions. On the facts, the trial judge was not bound to impose the minimum
    sentence.
The firearms offences and the child pornography
    offences protect different interests and were properly made consecutive.

[9]

In passing, counsel made some reference to the trial judges treatment
    of the
Gladue
report. We see no error in her treatment of the issue
    given the nature of the offences and the appellants background as disclosed in
    the report and the pre-sentence report.

Disposition

[10]

The
    appeal from conviction is dismissed. While leave to appeal sentence is granted,
    the appeal is dismissed.

M.
    Rosenberg J.A.

R.A. Blair
    J.A.

David Watt
    J.A.


