



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Fenton, 2019 ONCA 492

DATE: 20190613

DOCKET: C64350

Doherty, Watt and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ashley Fenton

Appellant

Cate Martell, for the appellant

John A. Neander, for the respondent

Heard: June 12, 2019

On appeal from the conviction entered on July 28, 2017 by
    Justice A. Schreck of the Superior Court of Justice, sitting with a jury.

REASONS FOR
    DECISION

[1]

The appellant was convicted of possession of a
    firearm and threatening the complainant, Mr. Safranko. She submits that the
    trial judge erred in failing to allow the defence to advance a theory which
    could have raised a reasonable doubt as to her guilt.

[2]

Destin Safranko had been friends with the
    appellant. He was homeless, and she had allowed him to stay at her home from
    time to time.

[3]

Mr. Safranko testified that on November 16, 2015,
    he visited the appellants home and slept over. He said the appellant showed
    him a shotgun which she retrieved from a black backpack kept in the laundry
    room. It is this possession by the appellant that formed the basis for the
    conviction on the possession count.

[4]

Safranko was anxious to get some money, and
    finally admitted at trial that he had stolen some purses from the appellants
    home and had planned to sell them to raise $100.00.

[5]

According to Safranko, the next day, after
    discovering the theft of the purses, the appellant and her partner called him
    and threatened to kill him. Later that same day, the appellant and her partner
    went to Safrankos grandparents home to confront him but he was not there.

[6]

In the early morning of November 18, 2015, while
    Mr. Safranko was sleeping at his grandparents home, someone fired a shotgun at
    the front door of that residence.

[7]

The appellant was acquitted of charges related
    to use of the firearm on November 18, 2015.

[8]

At trial, the Crown relied on photographs of a
    shotgun located on the appellants phone, three text messages found on the appellants
    cell phone which contained photographs of the shotgun, sent between November 9
    and 13, and cell tower evidence putting the appellants phone in the general
    area where the shooting occurred at the relevant time.

[9]

The defence relied on the evidence of the
    appellants daughter who testified that on November 17, two men came to her
    mothers residence looking for Mr. Safranko. She testified that they asked if
    he was there and asked to see where he kept his belongings. She took them to
    the laundry room and showed them a backpack. The men looked inside the backpack
    and shouted to her to make sure Destin has it (or all the rest of the stuff).
    The men left with the backpack.

[10]

The defence theory at trial was that Mr.
    Safranko had possession of the firearm, needed money, was in trouble and had
    been using the appellants phone to which he had liberal access to find a buyer
    for the gun.

[11]

After the close of the evidence, without
    objection having been made when the evidence was led, the Crown objected to the
    evidence of the appellants daughter on the ground that it should have been the
    subject of a third party suspect application in advance by the defence so the
    admissibility of that evidence could have been tested. The Crown sought a
    mistrial on that ground.

[12]

The trial judge held that evidence intended to
    show that Mr. Safranko was guilty of some of the offences amounted to third
    party suspect evidence and that the defence had to show that there is some
    basis upon which a reasonable, properly instructed jury could acquit based on
    the defence. (
R. v. Grandinetti
, 2005, SCC 5
    at para. 48)

[13]

The trial judge held that as there was no
    evidence as to the content of the backpack searched by the two men, there was
    no evidence connecting the shotgun to Mr. Safranko, other than his allegedly
    having seen it in the appellants possession and that accordingly there was no
    evidentiary basis for a finding that the shotgun was in Mr. Safrankos
    possession, as opposed to the appellants possession. He ruled the evidence of
    the appellants daughter inadmissible in so far as it was tendered to show that
    Mr. Safranko was the one who had possession of the shotgun.

[14]

He did however admit the evidence for the
    purpose of suggesting that it was the two unidentified men who shot at the door
    of the grandparents home,

it would be open
    to the jury to infer that the two men were upset with Mr. Safranko because he
    owed them something for some reason (Mr. Safranko admitted to having a history
    of theft). It would also be open to the jury to infer that they were looking
    for Mr. Safranko at a time proximate to the discharge of the firearm and that
    they had some awareness of the locations which Mr. Safranko frequented as they
    knew to look for him at Ms. Fentons home. Based on these inference, it would
    be open to the jury to infer that the two men had a motive to harm Mr.
    Safranko.

[15]

The trial judge addressed the potential
    prejudice to the Crown from the appellants unsuccessful attempt to argue that
    Mr. Safranko was a suspect in the possession of the shotgun count by
    instructing the jury that there was no evidence about the contents of the
    backpack when it was searched by the two unknown men.

[16]

At the close of the trial, defence counsel asked
    the trial judge about the limits of his ruling. He asked whether the effect of
    the ruling was that he could not suggest to the jury that Mr. Safranko was the
    owner of the firearm. The trial judge responded that defence counsel was
    correct, that there was no evidence of that. The trial judge told defence
    counsel he could submit that Mr. Safranko was not a credible witness, but that
    he could not suggest to the jury that at one point in time stole a firearm. 
    The trial judge said You can say he stole something and/or otherwise has things
    that somebody wants, because there is an evidentiary basis for that. But I
    dont think theres any evidence what it was.

Analysis

[17]

The trial judges conclusion that there was no
    direct evidence about the contents of the backpack searched by the two men is
    unassailable. The question is whether there was some other evidence sufficient
    to give the defence an air of reality, and which could have afforded a basis
    upon which a reasonable properly instructed jury could acquit.

[18]

Evidence of an alternate suspect must be
    relevant. There must be a sufficient connection between the third party and the
    offence. Inferences must not be based on speculation or conjecture.

[19]

Here there are elements of the evidence
    independent of the contents of the backpack which could have been laid out for
    the jury as follows:

·

Mr. Safranko was a cocaine addict who was
    desperate for money.

·

He was so desperate that he stole from someone
    who provided him with a place to stay, hoping to raise $100.00

·

One could infer from the contents of the cell
    phone texts including pictures of the shotgun that the author of those texts
    was trying to sell the shotgun.

·

Those texts were sent to persons known to both
    the appellant and Mr. Safranko

·

Mr. Safranko stayed in the appellants apartment
    and had liberal use of her phone.

·

One could infer the two men believed Mr.
    Safranko had taken something of importance from them and were angry with him.

·

One could infer that he may have been the one
    sending the texts about the shotgun to try to get money, and that he therefore
    had possession of the shotgun.

[20]

All of these events occurred more or less
    contemporaneously. Mr. Safranko was intimately involved in these events and was
    a witness who had admittedly lied under oath. There were multiple
    inconsistencies in his evidence. None of the above need be necessary
    inferences, but they might raise a reasonable doubt in the mind of a juror as
    to whether the appellant had possession of the shotgun.

[21]

Had the jury been allowed to consider this chain
    of reasoning, it could have affected their assessment of Mr. Safrankos
    credibility and hence their reasoning on the threatening count as well. We
    cannot be sure that the verdict would necessarily have been the same if defence
    had been permitted to make its proposed arguments. Both convictions are set
    aside and a new trial ordered.

Doherty
    J.A.

David
    Watt J.A.

G.
    Pardu J.A.


