



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. McIntosh, 2016 ONCA 370

DATE: 20160516

DOCKET: C56463

Epstein, Pepall and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Audley McIntosh

Appellant

Eva Taché-Green, for the appellant

Katie Doherty, for the respondent

Heard: May 9, 2016

On appeal from the conviction entered on March 23, 2012
and the sentence imposed on September 20, 2012 by Justice Alexander Sosna of
the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

The appellant was charged and convicted of various offences arising out
of events that occurred on September 28, 2010. He appeals his convictions for
assault, uttering death threats and four firearm-related offences in relation
to the complainant Jacqueline McCarthy. He does not appeal his convictions for
dangerous driving and possession of cannabis. He seeks leave to appeal his
sentence of nine years, less 18 months credit for pre-sentence custody.

[2]

The appellant was a convicted drug trafficker. The complainant
trafficked drugs for the appellant for several years. She testified that, while
a passenger in the appellants SUV on September 28, 2010, she told him she no
longer wanted to traffic drugs for him. He assaulted and threatened her, saying
that someone was going to die that day. He drove her to the house where his partner,
Shannon Butler, lived with their children. He ordered Butler and the children
out of the house, took a gun from a shelf in the front hall closet, racked
the pistol by sliding the mechanism back and forth, and pointed the gun at
McCarthy, threatening to kill her and her mother. The incident ended after the
complainant said just kill me. The appellant returned the gun to the closet.
He then drove the complainant home after dropping Butler at work and their
children at daycare.

[3]

Later that day McCarthy went to the police. The appellant was arrested
that evening as he entered an SUV in front of Butlers residence. Charges and a
conviction (not appealed) resulted from his attempt to drive through a police
blockade. A few hours later, the police found a loaded gun on a shelf in the
front hall closet and a bulletproof vest in Butlers bedroom. Butler denied
knowledge of the gun in her home.

[4]

Two witnesses testified for the defence: Shannon Butler and Raza Khan
(who was McCarthys boyfriend and a drug dealer). The defence theory was that
McCarthy had a motive and the opportunity to lie. The defence contended that
the complainant planted Khans gun in the closet and fabricated the events
about which she testified, because she owed the appellant money, she wanted to
make her own money trafficking drugs, and she wanted to send the appellant to
jail for a long time to get him out of her life.

[5]

Butler testified that she let the complainant stay at her house when she
wanted to stay away from drugs, but she did not allow McCarthy to have
visitors. Butler had previously told Khan to leave upon finding him and
McCarthy together in her house. Both Butler and Khan testified that the
previous day, September 27, Khan had been at Butlers house with the
complainant. Butler, who came home unexpectedly, saw Khan run out the back
door. He identified the gun found in the closet as his own.

[6]

The trial judge did not believe the defence witnesses testimony about
McCarthy being at Butlers house the previous day, and he found that it did not
raise a reasonable doubt as to the appellants guilt. He accepted the
complainants evidence, which he found to have been confirmed in material
respects by other evidence.

[7]

The appellants conviction appeal focuses on the trial judges
assessment of the witnesses evidence. In particular, he contends that the
trial judge applied a different level of scrutiny to the defence and Crown
evidence, contrary to the principles in
R. v. F. (J.)
, [2005] O.J. No.
39 (C.A.) and in
R. v. Gravesande
, 2015 ONCA 774. The appellant says
that his convictions depended on the credibility and reliability of the
complainants evidence. In dealing with that central issue the trial judge
glossed over or ignored inconsistencies in that evidence, such as the
inconsistencies in her testimony about whether the appellant pointed the gun to
her head or to her leg, and about how many times she had previously seen the
firearm. The trial judges willingness to treat frailties in McCarthys
evidence as defensible should be contrasted, argues the appellant, with his
unwillingness to tolerate frailties in the testimony of Butler and Khan.

[8]

We disagree. The trial judge conducted a careful and scrupulous review
of the evidence of all three lay witnesses.

[9]

He was alive to the frailties in the complainants evidence, including
her motives to lie. He adverted to inconsistencies and weaknesses in McCarthys
evidence, including her claim to forget certain details and retracting details
she had provided earlier. He concluded that the complainants evidence was not
so flawed or inconsistent as to destroy or raise a reasonable doubt about its
reliability in relation to the material aspects of her evidence.

[10]

Recognizing that the complainant was a
Vetrovec
witness, the
trial judge looked for and found independent evidence to confirm the essential
parts of her testimony: Butlers evidence that the appellant was angry when he
arrived at the house with McCarthy, and that he had ordered her and the
children out of the house; the photo showing injuries to her face; her cell
phone records that placed her in Scarborough, and not at Butlers home on
September 27; and the seizure of the loaded, racked gun from Butlers residence
where the complainant said the appellant had put it.

[11]

As for his treatment of the defence evidence, we disagree that the trial
judge drew unfair conclusions about that evidence and engaged in speculation
when rejecting the evidence. In considering Butlers and Khans testimony he
drew reasonable inferences that were available to him on the evidence. These
included his conclusion that it was unlikely that Butler would have said
nothing in her statement about McCarthys showing up unannounced the previous
day (as Khan had testified), and that it made no sense that Khan, who carried a
gun for protection, would leave it in Butlers closet, and then expect McCarthy
to retrieve it after he ran from the house. Again, the complainants cell phone
records were important to his rejection of the defence evidence.

[12]

There is simply no basis to conclude that the trial judge applied
different standards of scrutiny to the evidence of the witnesses or to
interfere with the trial judges findings of credibility and reliability and
his assessment of the evidence.

[13]

For these reasons we dismiss the conviction appeal.

[14]

In his sentence appeal, the appellant says that, following the decision
of the Supreme Court of Canada in
R. v. Nur
, 2015 SCC 15, and the
striking of mandatory minimum sentences for weapons offences, the sentence of
nine years ignored the jump principle and was excessive (the appellants
longest previous sentence was for two years less a day). He says that the trial
judge ignored rehabilitation as a factor in sentencing. Finally, in light of
R.
v. Summers
, 2014 SCC 26, the trial judge erred in awarding only 1:1 credit
for pre-trial custody.

[15]

We grant leave to appeal sentence and allow the sentence appeal in part.

[16]

The respondent accepts that, because of
Nur
, it falls to this
court to determine a fit sentence for the appellant with respect to the
conviction under s. 95 of the
Criminal Code
.

[17]

In our view, a five year sentence is fit for this offence. We agree with
the Crowns characterization of these offences as a toxic combination of
circumstances. The sentence is warranted by the gravity and circumstances of
the offences, considered in the light of the appellants significant criminal
record (consisting of more than 20 convictions) that demonstrates a pattern of
continuous criminal behaviour and violence. The record discloses nothing that
would contradict the trial judges assessment that rehabilitation was not a
realistic prospect. The appellant was subject to a number of weapons
prohibitions, which were intended to protect the public, including his two
young children. In these circumstances, the sentence does not offend the jump
principle and was a fit sentence.

[18]

Since we have dismissed the conviction appeal in respect of all
offences, there is no basis to interfere with the concurrent two year sentences
in relation to the assault and threatening convictions.

[19]

The Crown acknowledges the
Summers
error. The appellant was
entitled to enhanced credit at 1.5:1 for the entire period of his pre-sentence
custody. The sentence appeal is allowed to the extent that the appellant is
entitled to an additional 180 days credit. His sentence is therefore varied to
nine years, less 720 days credit for pre-sentence custody.

[20]

The sentence appeal is otherwise dismissed.

Gloria Epstein J.A.

S.E. Pepall J.A.

K. van Rensburg J.A.


