



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Marshall, 2015 ONCA 692

DATE: 20151015

DOCKET: C58541

Cronk, Epstein and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jahvar Marshall

Appellant

Janani Shanmuganathan, for the appellant

Amy Rose, for the respondent

Heard: September 16, 2015

On appeal from the conviction entered by Justice R.D.
    Cornell of the Superior Court of Justice, sitting without a jury, on June 12,
    2013 and the sentence imposed by Justice Cornell on October 4, 2013.

Cronk J.A.:

[1]

On October 6, 2011, after a police investigation into suspected drug
    trafficking in the City of Sudbury, the appellant Jahvar Marshall and two other
    individuals  Raymond Khan and Catherine Gagan  were arrested and jointly charged
    with possession of a loaded prohibited firearm.  At the time, all three
    individuals were enmeshed in the world of drugs.

[2]

Police surveillance established that the appellant and Khan, Gagan and
    others were at Gagans Sudbury apartment on October 6, 2011.  Information
    provided by a confidential informant and police surveillance at the apartment
    suggested that the apartment was the site of ongoing drug deals.  The appellant
    and Khan were both arrested during the course of the afternoon and early
    evening.  At approximately 8:00 p.m., the police executed a search warrant for
    the apartment and discovered the gun in a black Lacoste bag in a closet near
    the back door of the apartment.  Gagan and another individual, who were in the
    apartment, were then arrested.

[3]

Photographs of Khan holding the gun were found on Khans cell phone
    following his arrest.  However, Khan claimed that the gun belonged to the
    appellant.  He said that, before his arrest, the appellant had given him the
    gun while they were at a shopping mall together.  Khan took photographs of
    himself, holding the gun, with his cell phone.  Khan said that he did so
    because it was cool.  Khan maintained that, after the photographs were taken,
    he returned the gun to the appellant and never saw it again.

[4]

Gagan also disavowed any knowledge or possession of the gun.

[5]

Following negotiations with the Crown, Khan pleaded guilty to the lesser
    charge of possessing a prohibited weapon on October 6, 2011, in the City of
    Sudbury, while he was prohibited from doing so.  This was the same day that the
    appellant was alleged to have possessed the same gun.  Khan received a sentence
    of 90 days in jail  a significantly lower sentence than that faced by him on
    the original charge of possession of a loaded prohibited firearm.

[6]

No DNA or fingerprint evidence connected the appellant to the
    gun.  The Crowns case against the appellant rested primarily on the evidence
    of Khan and Gagan, both of whom testified for the Crown.  Their evidence linked
    the appellant to possession of the black Lacoste bag on October 6, 2011 and on prior
    occasions, and to possession of the gun.

[7]

The appellant testified.  He acknowledged ownership of the black Lacoste
    bag but denied any knowledge of the gun.  The trial judge rejected his evidence
    and accepted the Crowns evidence as credible and reliable.

[8]

The trial judge convicted the appellant of possession of a loaded
    prohibited firearm and sentenced him to three and one-half years imprisonment,
    less credit for 18 months pre-sentence custody.  On the same day, the
    appellant was also sentenced to one year in jail for an unrelated conviction
    for possession of cocaine for the purpose of trafficking, consecutive to his
    sentence on the firearm offence, and to 60 days imprisonment for two counts of
    breach of his recognizance of bail, concurrent to the other sentences imposed. 
    In total, the appellant received a sentence of 36 months in jail,

after 18 months credit for pre-sentence custody. 
    A DNA and various other ancillary orders were also made.

[9]

The appellant appeals from his
    conviction and sentence on his firearm conviction.

A.       Conviction Appeal

[10]

The appellant raises three grounds of
    appeal in support of his conviction appeal.

(1)

Credibility Assessments  Crown
    Witnesses

[11]

The appellant argues that the trial
    judge erred in his assessment of Gagans credibility by failing to apply a
    proper
Vetrovec
caution to her
    testimony:
Vetrovec v. The Queen
,
    [1982] 1 S.C.R. 811.  In particular, the trial judge erred by failing to
    appreciate that Gagan, like Khan, had a motive to lie because she was also charged
    with possession of a loaded prohibited firearm.  Gagan, therefore, had an
    incentive to distance herself from any knowledge of the gun, in order to gain
    advantage in respect of her own outstanding charge.

[12]

I would reject this ground of appeal.

[13]

The trial judge recognized that Khan
    had a significant incentive to assist the Crown in return for a substantially
    reduced sentence.  He made no mention of such an incentive on Gagans part.

[14]

However, the trial judge was aware that
    the charge against Gagan remained outstanding at the time of the appellants
    trial.  Further, in contrast to Khan, there was no evidence of any plea
    arrangements between Gagan and the Crown or of any prospect for more lenient
    treatment of her by the Crown if she agreed to testify for the Crown at the
    appellants trial.  The trial judge was also alert to Gagans limited prior
    criminal record.

[15]

The trial judges reasons confirm that
    he appreciated that
Vetrovec
considerations applied to both Khan and Gagans evidence.  He stated that: [w]hen
    considering the evidence of Khan and Gagan, I am mindful of the concerns that
    were expressed in
R. v. Vetrovec
.

[16]

The trial judge was not obliged to
    expressly advert to all the reasons warranting a cautious evaluative approach
    to Gagans credibility.  There is no requirement in a judge-alone trial, like
    this one, that the trial judge address
Vetrovec
concerns in the same manner as he or she would in
    instructing a jury.  A
Vetrovec
caution is intended to alert a jury to the dangers of relying on the evidence
    of unsavoury witnesses.  Trial judges are well aware of these dangers.

[17]

In this case, the trial judge expressly
    instructed himself to assess Gagans evidence in accordance with
Vetrovec
principles.  In light of this explicit caution, I see no
    reason to conclude that, in assessing Gagans credibility, the trial judge then
    lost sight of Gagans potential self-interest or other possible frailties in
    her evidence.

[18]

The trial judge found that Gagans
    evidence was credible and reliable, for reasons that are supported by the
    evidentiary record.  His credibility-based findings regarding her testimony
    attract considerable deference from this court.  I see no basis for appellate
    interference with them.

[19]

The appellant also maintains that the
    trial judge erred by finding that aspects of Khan and Gagans evidence were
    confirmatory.

[20]

I disagree.

[21]

The trial judge made no finding that
    Khan and Gagans evidence was entirely confirmatory.  Instead, he found that:

The evidence of Khan and Gagan with
    respect to collateral issues such as the presence of other individuals and the
    chronology of events was largely consistent.
In all important
    aspects, the evidence offered by Gagan and Khan tended to confirm and support
    the evidence offered by the other
.  [Emphasis
    added.]

[22]

These findings were open to the trial
    judge on the evidentiary record.  Gagan testified that the appellant had
    expressed concerns, as a drug dealer, about his personal safety and need for
    protection.  Khan also said that the appellant was concerned about his safety. 
    This evidence was not peripheral.  It bore directly on the appellants motive
    for acquiring a gun and bringing it into Gagans home, a location from which he
    admittedly sold drugs on the day in question and on prior occasions.  On the
    evidence, it was also a venue from which various third parties came and went
    with apparent ease.

[23]

Khan and Gagan also testified about the
    appellants connection to the Lacoste bag where the gun was discovered.  Khan
    claimed that the appellant was carrying the bag on October 6, 2011 and that he
    had seen the appellant use the bag on many earlier occasions.  Gagan testified
    to similar effect.  She said that the appellant had the Lacoste bag with him
    when he attended at her apartment on October 6, 2011 and that he always
    carried it with him.

[24]

This evidence was probative of the identity
    of the owner of the Lacoste bag and whether the appellant was in possession of
    it on the day in question.  It also undercut the appellants claim at trial
    that, although he had the bag with him at Gagans apartment on October 6, 2011,
    he had simply left it there, for no apparent reason and without any settled intention
    of returning to Gagans apartment to retrieve it, when he and his girlfriend
    left the apartment for lunch.

[25]

The appellant maintains that there were
    two significant discrepancies between Khan and Gagans evidence.  First, he
    submits that, based on Gagans description of the timing of her discussion with
    the appellant about his self-protection concerns, the appellant had the gun for
    less than one month prior to his arrest.  Khan, however, suggested that the appellant
    had the gun for at least several months.

[26]

It was open to the trial judge to
    attach little weight to this discrepancy.  Neither witness purported to know
    when the appellant had acquired a gun.  Khan was uncertain of the exact time when
    the appellant showed him the gun.  Gagan testified merely to her own belief
    that the appellant had not yet acquired a gun when they discussed his personal
    safety concerns.  Further, the appellant did not tell her whether he had
    actually purchased a gun.

[27]

The second alleged discrepancy stressed
    by the appellant concerns Khan and Gagans differing versions of when and how
    frequently they had met prior to the day of their arrests.  Nothing material
    turns on this issue.  Any inconsistency between Khan and Gagans testimony on this
    issue did not detract from their evidence that the appellant was selling drugs
    from Gagans apartment, that he owned the Lacoste bag, and that he was
    concerned for his safety.

(2)

Alleged Misapprehension of Evidence

[28]

The appellants second ground of appeal
    concerns the trial judges treatment of the evidence of Khans plea of guilty
    to the charge of possession of a prohibited weapon on October 6, 2011, in the
    City of Sudbury, while he was prohibited from doing so.  The appellant submits
    that the trial judge misapprehended this evidence by failing to appreciate that
    Khans plea to this offence constituted a prior inconsistent statement.  It
    was, the appellant says, an admission by Khan that he was in possession of the
    gun on October 6, 2011, the same day that the appellant was found to be in
    possession of the same gun, in contrast to Khans denial at the appellants
    trial of possession of the gun on that day.

[29]

Again, I disagree.

[30]

In pleading to the lesser charge of
    possession of a prohibited weapon while he was prohibited from doing so, Khan
    admitted the essential elements of that offence, as particularized by the
    Crown.  These particulars included the date and place of possession of the
    prohibited weapon  October 6, 2011, in the City of Sudbury.

[31]

However, no transcript of Khans plea
    proceeding or any details of the statement of facts on which Khan entered his
    plea were tendered as evidence at the appellants trial.  Nor was Khan
    cross-examined on the details of what transpired at his plea proceeding. 
    Instead, he was asked only whether he had pleaded guilty to the charge in
    question, as framed in the indictment against him.  He replied in the
    affirmative.  No cross-examination of Khan took place regarding whether he
    understood the significance of the date on his indictment, whether he accepted
    that the offence to which he was pleading took place on October 6, 2011, or as
    to any of the events at the plea proceeding.

[32]

This gap in the evidence is critical to
    this ground of appeal.  The issue at the appellants trial in relation to
    Khans prior plea was whether that plea had any significance to the assessment
    of Khans credibility in light of his denial, at the appellants trial, of
    possession of the handgun found in the Lacoste bag.  In the absence of the
    transcript of Khans plea proceeding and any cross-examination of him concerning
    that proceeding, the significance of his prior plea was left entirely
    undeveloped.  In that undeveloped state, the fact of the plea was uninformative
    regarding Khans credibility.

[33]

There are many reasons why an accused
    may elect to plead guilty to a pending charge.  On the evidentiary record
    before the trial judge, Khans reasons for doing so are unknown.  Moreover, the
    transcript of Khans plea proceeding or further cross-examination of him
    regarding the events at his plea proceeding may have provided an explanation
    for the date of his admitted possession of the gun.  They may also have disclosed
    an amendment to the particulars set out in the indictment against Khan.  The
    record before the trial judge, however, was entirely silent on these issues. 
    So is the record on appeal.

[34]

It was incumbent on the appellant, as
    the person seeking to rely on an asserted prior inconsistent statement by Khan,
    to establish that the statement in question was, in fact, a prior inconsistent
    statement.  In the circumstances here, the appellant failed to do so.

[35]

The trial judge was aware of Khans guilty
    plea.  On the state of the record before him, I can find no fault in his
    failure to treat Khans guilty plea as a prior inconsistent statement capable
    of detracting from Khans credibility.  In the absence of further evidence on
    the issue, the trial judge was entitled to conclude that Khans guilty plea
    related to his possession of the gun at the time of his cell phone photographs,
    and not possession of the gun at Gagans apartment on October 6, 2011.

[36]

In my opinion, this ground of appeal
    fails.

(3)

Alleged Uneven Level of Scrutiny

[37]

Finally, the appellant submitted in his
    factum that the trial judge erred by applying a harsher level of scrutiny to
    the appellants evidence than that applied to the Crowns witnesses.

[38]

The appellant did not press this
    submission in oral argument at the appeal hearing.  In my view, this was
    prudent.  While it is an error to subject defence evidence at a criminal trial
    to a stricter standard of scrutiny than that applied to the prosecutions
    evidence, this court has repeatedly emphasized that it is difficult to make
    this argument successfully.  For example, in
R. v. Howe
(2005), 192 C.C.C. (3d) 480 (Ont. C.A.), Doherty J.A.
    explained, at para. 59:

It is not enough to show that a
    different trial judge could have reached a different credibility assessment, or
    that the trial judge failed to say something that he could have in assessing
    the respective credibility of the [Crowns witnesses] and the accused, or that
    he failed to expressly set out legal principles relevant to that credibility
    assessment.  To succeed in this kind of argument, the appellant must point to
    something in the reasons of the trial judge or perhaps elsewhere in the record
    that make it clear that the trial judge had applied different standards in
    assessing the evidence of the appellant and the [Crowns witnesses].

[39]

More recently, this court observed in
R.
    v. Aird
, 2013 ONCA 447, 307 O.A.C. 183, at para.
    39:

The different standards of scrutiny
    argument is a difficult argument to succeed on in an appellate court.  It is
    difficult for two related reasons: credibility findings are the province of the
    trial judge and attract a very high degree of deference on appeal; and appellate
    courts invariably view this argument with skepticism, seeing it as a veiled
    invitation to reassess the trial judges credibility determinations.

[40]

In this case, the trial judges reasons
    reveal that he reviewed the core aspects of the appellants account of events,
    as well as the manner in which he testified and the import of the
    discrepancies, inconsistencies and contradictions that emerged in his testimony,
    in the context of the evidence as a whole.  He noted the appellants attempts
    to minimize his culpability and his failure to testify in a forthright manner. 
    The trial judge concluded that, in several instances, the appellant appeared to
    have been untruthful in his evidence.  He provided cogent reasons for rejecting
    the appellants evidence and accepting that of the Crowns witnesses.

[41]

The trial judges credibility
    assessments were squarely within his domain.  As I have said, his credibility
    findings attract considerable deference from this court.  I see no basis upon
    which to conclude that his evaluation of the appellants evidence was less than
    even-handed or disproportionately rigorous.

(4)

Disposition of Conviction Appeal

[42]

For the reasons given, I would dismiss
    the conviction appeal.

B.      Sentence Appeal

(1)     Fitness of Sentence

[43]

At the time of sentencing, the Supreme
    Courts decision in
R. v. Nur
, 2015
    SCC 15, 385 D.L.R. (4
th
) 1 had not been
    released.  In
Nur
, the Supreme Court
    struck down, as unconstitutional, the three-year mandatory minimum sentence for
    the offence of possession of a loaded restricted firearm, as provided for in s.
    95 of the
Criminal Code
, R.S.C. 1985,
    c. C-46.  There is no dispute that, in light of
Nur
, this court is entitled to review the three and one-half
    years sentence of imprisonment imposed on the appellant.

[44]

The appellant submits that, absent a
    statutory mandatory minimum sentence, a sentence of three and one-half years in
    jail is demonstrably unfit in this case.  He contends that given his youth at
    the time of sentencing (23 years old), his lack of a criminal record, his
    candour at trial in acknowledging his involvement in the drug trade, and his
    positive rehabilitative prospects, a sentence of between two and one-half to
    three years in jail is appropriate.

[45]

The appellant further submits that a
    sentence in the range he proposes would meet the sentencing goals of deterrence
    and denunciation, while giving proper effect to the parity principle and the
    considerations held by this court to govern the sentencing of a youthful first
    offender: see
R. v. Borde
(2003), 63
    O.R. (3d) 417 (C.A.).

[46]

I would not accept these submissions.

[47]

In
R. v. Nur
, 2013 ONCA 677, 117 O.R. (3d) 401, at para. 206, this
    court held that, the s. 95 statutory mandatory minimum aside, offenders who
    engage in s. 95 offences at the true crime end of the s. 95 spectrum of
    offences should continue to receive exemplary sentences that emphasize
    deterrence and denunciation.
Nur
provides,
    at para. 206, that: [i]ndividuals who have loaded, restricted or prohibited
    firearms that they have no business possessing anywhere or at any time, and who
    are engaged in criminal conduct or conduct that poses a danger to others will
    still attract such sentences, regardless of the constitutionality of the
    three-year minimum penalty.

[48]

The appellant falls within this
    category of offenders.  By the appellants own admission, he was present in
    Sudbury at Gagans apartment on October 6, 2011 for the express purpose of
    trafficking in drugs.  He sold at least 15 grams of cocaine that day.  He was
    in possession of a prohibited loaded handgun at a location where drug deals
    were occurring, several individuals were present in addition to Khan and Gagan,
    and the potential for violence was high.  On the trial judges findings, the
    appellant then left the loaded handgun in his Lacoste bag at Gagans apartment,
    while he and his girlfriend went out for lunch.

[49]

There can be no doubt that this type of
    crime, in the circumstances described above, is an offence at the true crime
    end of the s. 95 spectrum of offences described by this court in
Nur
.  Denunciation, deterrence and protection of the public
    are unquestionably the paramount principles of sentencing implicated for such a
    crime.

[50]

Additional aggravating factors are also
    in play.  The appellants pre-sentence report indicates that he seems to
    minimize and rationalize his weapons offence and that he sees no need to make
    changes in his life nor is he open to counselling.  Further, while on bail for
    the predicate offence, he was arrested for and eventually pleaded guilty to one
    count of possession of cocaine for the purpose of trafficking (60 grams of
    cocaine having a street value of approximately $5,000 to $6,000), and two
    counts of breach of his recognizance of bail.  It was for these additional
    offences that the appellant was also sentenced at his sentencing hearing on his
    firearm conviction.

[51]

I agree with the Crowns submission
    that the appellants commission of a serious drug-related offence while on bail
    for his weapons offence, coupled with his negative pre-sentence report,
    strongly undercut any claim that the sentence imposed will crush the
    appellants prospects for rehabilitation.

[52]

Nor, in my view, does the sentence
    imposed offend the
Borde
first
    offender sentencing principle or parity considerations.

[53]

The trial judge considered the
    appellants youthfulness.  While the sentence imposed would be the appellants
    first penitentiary sentence, his crime was serious and committed in the course
    of his commission of other admitted drug-related crimes.  Although the courts
    should impose the shortest possible sentence in cases involving a youthful
    first time offender, the sentence must be consistent with the relevant
    sentencing principles, including proportionality to the gravity of the offence. 
    As I have already said, the appellants offence was on the true crime end of
    the s. 95 spectrum.  A sentence of three and one-half years is fit in the
    circumstances.

[54]

Further, any comparison to Khans
    sentence following his guilty plea for possession of a prohibited weapon is
    inapt.  Khan was convicted of a different offence and testified for the Crown
    at the appellants trial.  Importantly, as before the trial judge, the full
    factors taken into account on Khans sentencing are unknown on the record
    before this court.  And, as the Crown emphasizes, disparate sentences, even for
    the same offence, do not violate the parity principle so long as they are
    justified in all the circumstances.

[55]

I note that in
Nur
, both this court and the Supreme Court upheld a sentence
    of 40 months in prison for a 19-year old first offender who had pleaded guilty
    at trial and was found to have had good rehabilitative prospects.

[56]

Finally, the sentence imposed is well
    within the range of sentences upheld by this court for weapons offences
    committed in association with drug crimes.  The statutory mandatory minimum
    sentence aside, I regard the appellants three and one-half year sentence of
    imprisonment for his firearm conviction as entirely fit.

(2)     Disposition of Sentence Appeal

[57]

Accordingly, for the reasons given, I
    would grant leave to appeal sentence and dismiss the sentence appeal.

Released:

EAC                                                 E.A.
    Cronk J.A.

OCT 15 2015                                   I
    agree Gloria Epstein J.A.

I
    agree David Brown J.A.


