



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Jean, 2016 ONCA 137

DATE: 20160222

DOCKET: C58965

MacPherson, Tulloch and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Frantzy Jean

Appellant

Frantzy Jean, in person

Delmar Doucette, duty counsel

Robert Hubbard, for the respondent

Heard: February 10, 2016

On appeal from the conviction entered on May 2, 2014 by
Justice Robert Smith of the Superior Court of Justice, sitting with a jury, and
from the sentence imposed on January 20, 2015.

ENDORSEMENT



[1]

The appellant raises two grounds of appeal against his convictions in
connection with the possession of a restricted firearm. First, he argues that
the verdict was unreasonable. Second, with the assistance of duty counsel, he
submits that the trial judge erred in his response to a question from the jury
on the offence of possession of a firearm obtained by the commission of a
crime.

[2]

His appeal against sentence is in two parts. One relates to credit for
pre-sentence custody, the other is dependent upon the result of his conviction appeal.
If the appellant is successful on the issue relating to the jury question, he
submits that his sentence should be reduced.

The Conviction Appeal

[3]

During the execution of a search warrant, police found a 9mm Beretta
semi-automatic handgun under the bed in the master bedroom of an apartment
leased by the appellants former common law spouse. The former spouse and the
appellant were still dating at the time, though he no longer lived in the
apartment. She is also the mother of two of the appellants children.

[4]

The appellant was charged with four counts relating to the possession of
the loaded Beretta handgun for which he had no licence. He was convicted of
three of the four counts.

A.

Unreasonable Verdict

[5]

The evidence of the appellants possession was circumstantial. He
submits that circumstantial evidence cannot form the basis of a conviction and
the trial judge erred when he told the jury otherwise.

[6]

This is incorrect. The trial judges charge to the jury with respect to
circumstantial evidence was correct and the jury was properly instructed.

[7]

There was evidence upon which the jury could conclude that the appellant
was in possession of the Beretta. It was located in a shoebox containing mens
shoes under the bed in a small bedroom. He was at the apartment daily to assist
with the care of his children. He kept clothes there. His expired passport was
found in the dresser in the bedroom along with his possessions.

[8]

This ground of appeal is dismissed.

B.

Answer to the Jury Question

[9]

Count four on the indictment  for which the appellant was convicted 
was the possession of a weapon obtained by the commission of an offence,
contrary to s. 96(2) of the
Criminal Code
, R.S.C. 1985, c. C-46. The
appellant submits that the trial judge erred in his answer to a jury question.

[10]

The
trial judge properly instructed the jury with respect to count four when he explained
that the Crown must prove the following beyond a reasonable doubt:


i.

The appellant was in possession of a firearm  namely, a 9mm Beretta
handgun;


ii.

The firearm was obtained by crime; and


iii.

The appellant knew that the firearm had been obtained by crime.

[11]

The
trial judge then correctly instructed the jury as to how to determine if the
appellant knew the firearm had been obtained by crime. First, the Crown could
prove that the appellant had actual knowledge that the handgun had been
acquired directly or indirectly by crime. Alternatively, the Crown could prove
that the appellant was aware of the need to make an inquiry about the origins
of the handgun but deliberately failed to do so because he did not want to know
the truth.

[12]

During
its deliberations, the jury asked the following question:

Does the acquisition of a firearm without a proper licence
constitute the firearm being obtained directly or indirectly by crime with
respect to count number 4?

[13]

Following
a discussion with counsel in the absence of the jury, the trial judge read the
question and answered as follows:

The short answer is yes  The acquisition of a firearm such as
a 9-millimetre Beretta handgun without the purchaser holding a licence or
authorization to possess a restricted firearm constitutes an offence by the
vendor, and results in the firearm being acquired directly or indirectly by a
crime.

[14]

The
answer was incorrect. We adopt the analysis of Then J. in
R. v. Khan
(2007), 217 C.C.C. (3d) 209 (Ont. S.C.), where, at paragraph 26, he said:

It is not sufficient that the accused have knowledge that his
possession is illegal. What is required to establish knowledge on the part of
the accused that he has obtained possession of the firearm by the commission
of an offence is either that the accused himself commit an offence to obtain
the firearm  For example ... by stealing. Alternatively, it will be sufficient
that the accused obtain possession from another knowing that that person
obtained the firearm by the commission of an offence. For example, the accused
purchases the firearm from a person he knows stole the firearm.

[15]

The
key word in s. 96 is obtained. The accused must know that the firearm was
obtained as a result of a crime.

As this
court held in
R. v. Mohamed
, 2014 ONCA 103, [2014] O.J. No. 574, at
para. 1, that an accused committed any number of offences by being in
possession of the firearm does not mean that it was obtained by the
commission of an offence.   The fact that the appellant did not have a licence
for the firearm cannot form the basis for a conviction under this provision.
The conviction on count four is quashed and an acquittal will be entered.

The Sentence Appeal

[16]

The
appellant raises two grounds of appeal with respect to his sentence: 1) the
effect of an acquittal on count four, and 2) the trial judges calculation of
credit for pre-sentence custody.

[17]

The
appellant submits that an acquittal on count four should result in a reduction
of his global sentence of four and a half years. We disagree. All of the counts
on the indictment, and the two resulting convictions, relate to the possession
of the Beretta. The appellant has a long criminal record and the sentence
imposed was well within the appropriate range, regardless of the success of his
appeal on count four.

[18]

Finally,
the trial judge granted the appellant 25.5 months credit for pre-sentence
custody at the rate of 1.5 to 1. However, he reduced the credit by two months
to reflect the appellants bad behaviour. This behaviour resulted in an
assault charge while the appellant was in custody.

[19]

We
accept the submissions of the appellant that the trial judges comments during
the sentencing submissions indicate that he misunderstood the concept of earned
remission. Earned remission applies to the provincial, not federal system. In
the federal system, under which the appellant is currently serving his
sentence, he is entitled to statutory release after a period determined under
s. 127 of the
Corrections and Conditional Release Act
, S.C. 1992, c.
20. The statutory release date is generally the day on which he completes two
thirds of his sentence: s. 127(3) of the
Corrections and Conditional
Release Act
. Consequently, the credit for pre-sentence custody will be
increased by two months.







Disposition

[20]

The
appeals as to conviction and sentence are allowed in part. There will be an
acquittal entered on count four and the credit for pre-sentence custody will be
increased by two months.



J.C. MacPherson
J.A.

M. Tulloch J.A.

M.L. Benotto
J.A.


