



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Walters, 2020 ONCA 825

DATE: 20201217

DOCKET: M52014 (C68871)

Brown J.A.
    (Motion Judge)

BETWEEN

Her
    Majesty the Queen

Respondent

and

Christian
    Walters

Applicant (Appellant)

George (Knia) Singh and Kyle Corbin,
    for the applicant

Katie Beaudoin, for the respondent

Heard: December 10, 2020 by video conference

REASONS
    FOR DECISION

[1]

The applicant, Christian Walters, applies for
    bail pending appeal pursuant to s. 679(1)(a) of the
Criminal Code
,
    R.S.C. 1985, c. C-46.

[2]

On November 7, 2019, the applicant was convicted
    of six possession of firearms-related offences and one drug-related offence. On
    December 4, 2020, he was sentenced to 38-months incarceration with a reduction
    of 22 months for pre-sentence custody and restrictive bail conditions. The
    applicant appeals both his conviction and sentence.

THE CROWNS BASIS FOR OPPOSING THE APPLICATION

[3]

The Crown concedes that the applicant satisfies
    the first two grounds for bail pending appeal, set out at ss. 679(3)(a) and (b)
    of the
Criminal Code
.

[4]

The Crown opposes the bail application on the
    third ground, submitting that the applicant has failed to demonstrate that his detention
    is not necessary in the public interest:
Criminal Code,
at s.
    679(3)(c). The Crown submits that the nature of the applicants offences raises
    significant public safety concerns. Further, the enforceability interest outweighs
    the reviewability interest given the low strength of his grounds of appeal. On
    this basis, the Crown contends that the applicant has not established the third
    ground under s. 679(3).

ANALYSIS

[5]

I am not persuaded by the Crowns submission.

[6]

Mr. Walters is 29 years old. He has no prior
    criminal record and complied with his pre-trial bail conditions. The surety who
    acted for his pre-trial bail is willing to act again. She has known the
    applicant for 15 years. The sentencing judge noted that the surety had not
    experienced any difficulty with the applicant.

[7]

That said, I acknowledge that the offences for
    which the applicant was convicted are serious. As part of an investigation into
    other offences, on June 18, 2018, the police executed a search warrant at the
    apartment of the applicants then girlfriend. The applicant spent about 70% of
    his time at the apartment. In a laundry hamper in the bedroom closet, the
    police found a loaded .40 caliber handgun, a bag with 18 rounds of ammunition,
    and a digital scale. In a night table in the bedroom, the police found a
    magazine loaded with 15 rounds, a digital scale, and 2 baggies containing 7.8
    grams of cocaine. The Crown submits that the applicants possession of a gun
    and ammunition in an apartment building indicates that his release would give
    rise to public safety concerns.

[8]

However, the case against the applicant was one
    of constructive possession of the seized items based upon circumstantial
    evidence. There was no direct evidence from a witness that the applicant placed
    the items in the laundry hamper or night table or knew that they were there.
    Nor was there any forensic DNA or fingerprint evidence that linked the seized
    items to the applicant or his girlfriend.

[9]

As well, there was evidence that third-party
    suspects had access to the apartment. The applicants girlfriend testified that
    on June 12, 2018  two days before she and the applicant went to his mothers
    cottage  she had done a thorough cleaning of the apartment, including the
    laundry hamper and the shelf of the night table, but had not seen the items.
    The applicant and his girlfriend were at the cottage from June 14 until June
    16, 2018. On their return, they found the applicants brother and his
    girlfriend asleep in the apartment. There was also internet-based evidence that
    the suspect in a June 14, 2018 shooting, TQuan Robertson, had been in the
    apartment during the applicants absence on June 15 and 16. Video files showing
    Mr. Robertson holding a gun identical to the one seized were filed in evidence.

[10]

The trial judge gave extensive reasons. But the
    applicant submits, citing
R. v. Villaroman
, 2016 SCC 33, [2016] 1
    S.C.R. 1000, that the trial judge erred in concluding that the applicants
    guilt was the only reasonable inference available on the totality of the
    circumstantial evidence. The applicant points to the following to support this
    submission:

(i)    the absence of the applicant and his girlfriend from the
    apartment for several days;

(ii)    the presence of third parties in the apartment during their absence,
    one of whom was the suspect in a shooting and was shown to have had possession
    of a gun identical to that found in the apartment; and

(iii)   the circumstantial nature of the evidence.

[11]

I am satisfied that the applicant has
    demonstrated that his release would not pose a substantial risk to public
    safety:
R. v. Oland
, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 39. He
    has complied with his pre-trial bail conditions, his surety is prepared to act
    once again, and the case against him was one of constructive possession based
    on circumstantial evidence.

[12]

On the third ground, the merits of the
    applicants appeal fall to be assessed as part the final balancing of factors
    described in
Oland
, at paras. 47 to 49. The applicants grounds of
    appeal surpass the minimum standard required to meet the not frivolous
    criterion. The combination of the circumstantial nature of the case against the
    applicant and the presence of third parties in the apartment at material times
    afford arguable grounds of appeal with respect to the trial judges application
    of the
Villamoran
principle.

Conclusion

[13]

There is no doubt that the offences for which
    the applicant was convicted are serious. But, as I have found, he does not pose
    a substantial risk to public safety. Balancing these factors, I conclude that
    the applicant has demonstrated that his detention is not necessary in the
    public interest.

DISPOSITION

[14]

Accordingly, I grant the application for bail
    pending appeal.

[15]

As to the terms of
    release, the parties have worked out a consent order. I am satisfied that the
    terms are reasonable, with one exception  the time in which to perfect the
    appeal.

[16]

The applicant has
    approximately 16 months left to serve on his sentence. He was represented at
    trial. Just over a year elapsed between the date of the applicants conviction
    and the initiation of this application. Yet, no steps were taken to order the trial
    transcripts during that lengthy period of time. Given that circumstance, I am
    not prepared to approve the usual condition of pursuing the appeal with due
    diligence. A perfection date needs to be imposed so that this appeal will be
    heard well in advance of the expiration of the applicants sentence.

[17]

Accordingly, I would
    vary condition 3 of the draft order to read: You must perfect the appeal by
    April 30, 2021.

David
    Brown J.A.


