



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Bokhari, 2018 ONCA 183

DATE: 20180226

DOCKET: C60490

Feldman, Brown and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Bashir Bokhari

Appellant

Michael McKee, for the appellant

Deborah Krick, for the respondent

Heard: February 9, 2018

On appeal from the conviction entered on March 20, 2015,
    by Justice Elinore A. Ready of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant was convicted of unauthorized possession and careless storage
    of a sawed-off shotgun and possession of prohibited devices, including a
    silencer and three high capacity magazines. He appeals only from his
    convictions relating to the shotgun and silencer. The appellants conviction
    appeal rests on two errors alleged to have been made by the trial judge.

[2]

First, the appellant maintains that the trial judge reversed the burden
    of proof. In support of this claim, he points to six passages in the reasons
    for judgment where the trial judge makes reference to the fact that he did not
    testify. The appellant argues that, by referring to his decision not to testify
    on so many occasions, it is clear that the trial judge drew an inference of
    guilt from his silence. We disagree.

[3]

The testimonial silence of an accused cannot give rise to an inference
    of guilt:
R. v. Noble,
[1997] 1 S.C.R. 874, at paras. 79-82. Even so, once
    uncontradicted evidence points to guilt beyond a reasonable doubt, the
    accuseds silence will sometimes mean that he has failed to provide any basis
    for concluding otherwise:
Noble,
at para. 82. See also:
R. v.
    Ibrahim,
2014 ONCA 157, 318 O.A.C. 1, at para. 41.

[4]

Although an error is not generated by simple reference to an accuseds
    decision not to testify, making references to the accuseds silence can run a real
    risk of implicitly or explicitly impinging upon the right to silence and reversing
    the burden of proof. Accordingly, trial judges should exercise caution when
    referencing the accuseds silence at trial, lest they fall into error.

[5]

While it would have been preferable had the trial judge not mentioned
    the appellants decision not to testify so many times, we are satisfied that,
    taken alone and as a whole, the trial judge did not fall into error by
    reversing the burden of proof in this case. At most, the references to the
    accuseds decision not to testify can be taken as referring to the fact that
    the Crowns evidence stood uncontradicted. Read in context, the reasons for
    judgment demonstrate the trial judges understanding that she had to consider
    the whole of the evidence that was before her. The reasons do not reflect any
    reliance on the appellants silence to infer guilt. This ground of appeal must
    fail.

[6]

As for the second ground of appeal, the appellant maintains that the
    verdict is unreasonable. We disagree.

[7]

During the execution of a
Controlled Drugs and Substances Act
, S.C. 1996, c. 19

search
    warrant, the police discovered an empty light-weight gun locker in the basement
    of the appellants home. The appellant, his wife and son had lived in this home
    for at least six years. At some point in the previous six years his daughter
    had also lived in the residence.

[8]

When the gun locker was moved, the police discovered an obvious piece of
    particle board affixed to the wall. The particle board was removed with ease
    and the shotgun and silencer were discovered behind. It is this discovery that
    led to the convictions that are challenged on appeal.

[9]

Both the wife and son testified. They denied any knowledge of the shotgun
    and silencer. The trial judge accepted their evidence on this point. She also
    accepted their evidence that they had little to do with the basement area in
    general. The appellant was the only other person living in the home at the time
    who may have had knowledge of the shotgun and silencer.

[10]

The
    trial judges reasons amply support the circumstantial inferences drawn in
    relation to knowledge and control. While the defence posited the theory that
    the former home owner may have left the shotgun and silencer behind, the trial
    judge rejected this theory on the basis that: (a) the shotgun and silencer were
    valuable items and not easily replaceable; (b) one would not simply forget
    them and leave them behind; (c) the former home owner would know that the items
    would inevitably be discovered by the new home owner; and (d) when discovered,
    the police would be able to easily trace them back to the former home owner. For
    these reasons, the trial judge concluded that it made no sense that the former
    owner would have left the shotgun and silencer behind.

[11]

The
    trial judge went on to consider the evidence as a whole and determined that she
    was satisfied beyond a reasonable doubt that the accused had knowledge and
    control of the shotgun and silencer. Among other things, she considered the
    fact that: (a) he had lived in the home for six years; (b) the wife and son did
    not know about the shotgun and silencer; (c) the gun locker placed in front of
    the particle board was easy to move; (d) the appellant was experienced with
    guns and would have looked in and around the gun locker; (e) the basement was
    well-maintained; (f) neither the wife nor son cleaned the basement; and (g) the
    particle board was obvious and easy to remove. The pictures of the location where
    the items were found provide support for these conclusions.

[12]

The
    circumstantial inferences drawn by the trial judge were available on the
    evidence. This was a verdict that is well supported by the evidence. This
    ground of appeal must also fail.

[13]

The
    appellant also seeks leave to appeal his sentence on the basis that the 14
    months custody, less 21 days credit, should have been imposed as a conditional
    sentence. We disagree.

[14]

These
    were serious offences, directly affecting public safety. The trial judge
    focused on the correct sentencing principles. Although the appellant has some
    serious health issues, the trial judge satisfied herself that the correctional
    authorities could accommodate them. She carefully considered whether to impose
    a conditional sentence and declined to do so. The reasons disclose no error and
    are entitled to deference by this court.

[15]

The
    conviction appeal is dismissed. Leave to appeal sentence is granted, but the
    sentence appeal is dismissed.

K. Feldman J.A.
David Brown J.A.
Fairburn J.A.


