



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Bzezi, 2022 ONCA 184

DATE: 20220304

DOCKET: C67420

Simmons, Pepall and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mohamed Bzezi

Appellant

Richard Litkowski and Myles Anevich,
    for the appellant

Sunil S. Mathai, for the respondent

Heard: December 8, 2021

On appeal from the conviction entered by
    Justice Meredith Donohue of the Superior Court of Justice on January 10, 2018,
    with reasons reported at 2018 ONSC 170, and the sentence imposed on April 6,
    2018, with reasons reported at 2018 ONSC 2058.

L.B. Roberts J.A.:

[1]

The appellant appeals his conviction for one
    count of possession of a loaded prohibited firearm under s. 95(1) of the
Criminal
    Code
and seeks leave to appeal his six-year custodial sentence. He argues
    the trial judge failed to find numerous
Canadian Charter of Rights and
    Freedoms
infringements that should have led to the exclusion of the
    firearm from the evidence at trial and failed to consider reasonable inferences
    from the circumstantial evidence other than his guilt. He maintains his
    sentence was harsh and unfit.

[2]

I do not agree. In my view, the appellants appeal
    cannot overcome the standard of appellate deference owed to the factual and
    credibility findings of the trial judge that were open to her and support her
    decision. These reasons explain why I would dismiss the appeal and not grant
    leave to appeal the sentence.

Brief background facts

[3]

Early in the morning, in a known high crime area
    of Hamilton, Officer Starrs observed the appellants vehicle circling the area.
    He testified that he learned from running a CPIC plate search that the
    appellants vehicle was a rental vehicle and that he stopped the appellants
    vehicle to confirm that the driver was in fact licensed at that time. He
    checked the status of the appellants licence. He discovered that the
    appellants licence was suspended and that there was a caution for violence. He
    also discovered that the appellant was under an undertaking for several
    offences, including associating with an individual whose description the
    officer thought matched the passenger in the appellants vehicle. Officer Starrs
    called for backup.

[4]

Shortly after the arrival of other police
    officers, and while the passenger of the car was being searched by police, the
    appellant fled on foot from the vehicle. The appellant ran through a parking
    lot and up a ramp near an alley with three officers in pursuit. Two of the three
    officers following him, Officers Park and Kersgens, testified that they saw the
    appellant stumble at one point. One of the other officers, Officer
    Miedzybrodzki, testified that the appellant dropped something when he stumbled.
    The appellant was apprehended and arrested as he tried to scale a fence.

[5]

Officer Miedzybrodzki testified that he advised
    the appellant of his rights to counsel and cautioned him about seven or eight
    minutes after his arrest. Officer Miedzybrodzki had just arrived on the scene before
    the appellant fled and did not know the reason for the arrest. Therefore, he
    did not advise the appellant of the reason for his arrest.

[6]

One of the officers who chased the appellant,
    Officer Park, returned to the scene of the chase. Officer Miedzybrovzki
    testified that around seventeen minutes after the appellants arrest, while the
    appellant was still on the scene, Officer Park observed a handgun in the alley
    near the ramp. The handgun was found around the location where the officers
    testified that the appellant stumbled and dropped something as he fled.

[7]

Officer Miedzybrodzki testified that, upon
    learning about the discovery of the handgun, he advised the appellant about
    twenty-eight minutes after his arrest that he was arrested for possession of a
    firearm and re-read his rights and caution. Approximately an hour after his
    arrest, the appellant was provided with telephone access to counsel.

Judgment

[8]

The trial judge concluded that, excepting s.
    10(a), there was no breach of the appellants
Charter
rights. She
    rejected the appellants submissions that the traffic stop was a mere ruse and
    accepted Officer Starrss evidence that he stopped the appellants vehicle to
    check his licence. As such, she refused to find that the appellants ss. 9 and 10(a)
Charter
rights were violated by Officer Starrs
[1]
. The Crown conceded the s.
    10(a) infringement by Officer Miedzybrovzki because of the twenty-eight-minute delay
    in advising the appellant of the reason for his arrest. The trial judge accepted
    the Crowns submission that the appellant did not have any standing to seek a
    s. 24(2)
Charter
remedy because he denied possession of the handgun.

[9]

However, the trial judge determined in any event
    that she would not have excluded the handgun under s. 24(2). She would not have
    excluded it because Officer Miedzybrodzki acted in good faith and the breach
    was on the low end of the scale for seriousness and because the appellant was
    not in ignorance that he was facing consequences as a result of fleeing the
    traffic stop. Further, the appellant was not questioned, the gun was not found
    as a result of the
Charter
breach, and the gun was crucial evidence
    for the Crown. The trial judge found that society has a high interest in
    protection against and prosecution of cases involving firearms. Therefore, the
    handgun would not have been excluded under s. 24(2).

[10]

The trial judge rejected the appellants
    argument that the police failed to preserve and produce relevant surveillance
    video evidence from the auto body shop adjacent to the path of the chase. She
    accepted the evidence from the officer who attended the body shop to obtain the
    available exterior video evidence. This officer testified that only one camera
    was operable, and that he downloaded the video from that camera. The trial
    judge also accepted the evidence from the owners of the auto body shop that
    some of their surveillance cameras were very fuzzy and blurry and that the
    police were given the only video of any quality that showed the chase. She
    concluded that she was unable to find that there was relevant evidence lost and
    therefore that there was no breach of the appellants s. 11(d)
Charter
rights.

[11]

Finally, the trial judge considered whether the
    appellant possessed the handgun later found by police. She was not persuaded by
    the appellants submissions that the officers evidence was suspect, that they
    had planted the handgun, or that the handgun was already there before the appellants
    altercation with police.
Based on the evidence as a whole, the trial
    judge determined that the only reasonable conclusion from the entirety of the
    circumstantial evidence was that the appellant possessed the gun and threw it
    away along the path when he fled and where it was located minutes later by the
    police.
As a result, she convicted the appellant of the
    offence of possession of a loaded prohibited firearm.

[12]

With respect to sentence, the trial judge
    reviewed the appellants lengthy criminal record. His record includes previous
    convictions for robbery with a firearm and use of an imitation firearm during
    the commission of the offence, theft under $5,000, assault, dangerous operation
    of a motor vehicle, flight while pursued by a peace office, failure to comply
    with a recognizance, and failure to comply with probation orders. She noted he
    was subject to a ten-year firearms prohibition at the time he committed the
    offence at hand and that he had re-offended while on bail. She considered his
    intermittent employment history, his consistent pattern of criminal conduct,
    and that he was carrying a loaded firearm and discarded it in a public area
    which created a real and immediate danger to the public. She also took into
    account his difficult childhood and family difficulties, significant language
    barriers, and bullying when he immigrated to Canada. She considered that he was
    a youthful offender, had expressed sincere remorse and a decision to change his
    lifes path, and has a loving family and supportive girlfriend. The Crown
    sought a custodial sentence of seven years and defence proposed a three-year
    sentence, both less credit for pre-sentence custody. The trial judge imposed a
    six-year custodial sentence less pre-sentence custody credit of three years and
    158 days.

Issues

[13]

The appellant submits that the trial judge made
    several reversible errors. The appellant maintains that the trial judge erred
    in failing to find a violation of his ss. 7, 9, 10(b) and 11(d)
Charter
rights
    which should have led to the exclusion of the handgun. The appellant argues
    that the trial judge also erred in finding that he had no standing to pursue a
    s. 24(2)
Charter
remedy and in failing to exclude the handgun after
    finding the appellants s. 10(a) rights were infringed. Further, the appellant says
    that the trial judge erred by concluding that his guilt was the only reasonable
    inference to be drawn from the circumstantial evidence. Finally, he contends
    that his six-year sentence was harsh and unfit because the trial judge
    improperly relied on inapplicable cases involving aggravating factors absent in
    this case.

[14]

As I shall explain, in substance, the appellants
    submissions amount to little more than an invitation for this Court to
    undertake afresh the trial judges assessment and weighing of the evidence that
    supported her dismissal of the appellants
Charter
arguments, her
    conclusion of the appellants guilt beyond a reasonable doubt, and the sentence
    that she imposed. I am not persuaded that the trial judge made any error that justifies
    appellate intervention.

Analysis

(a)

Conviction appeal

(i)

Section 9 of the
Charter

[15]

The appellant submits that the trial judge erred
    by finding that there was no violation of the appellants s. 9 rights when his
    vehicle was stopped. According to the appellant, it was clear from the evidence
    that the traffic stop was an improper ruse to investigate the appellant for
    other more serious offences. As a result, his detention was arbitrary and
    unlawful.

[16]

I disagree.

[17]

As the trial judge stated, s. 216(1) of the
Highway
    Traffic Act
, R.S.O. 1990, c. H.8 allows a police officer in the lawful
    execution of his or her duties to require a driver of a motor vehicle, even at
    random, to stop for a routine traffic stop check. Section 216(1) also allows a
    police officer to require the driver to produce documents, such as a licence,
    that a driver is legally required to have:
R. v. Gonzales
, 2017 ONCA
    543, 136 O.R. (3d) 225, at para. 55;
R. v. Mayor
, 2019 ONCA 578, at
    para. 6;
Brown v. Durham Regional Police Force
, 167 D.L.R. (4th) 672,
    at para. 24. That is what the trial judge found occurred in the present case.

[18]

The trial judge was required to decide whether
    Officer Starrs actually formed a legitimate intention to make the detention
    for road safety purposes:
Mayor
, at para. 7 and
Sandhu
, 2011
    ONCA 124, 268 C.C.C. (3d) 524, at para. 62. That is what she did here. The
    trial judge considered but rejected the appellants submission that the traffic
    stop was a mere fishing expedition. As she was entitled to do, the trial judge
    accepted Officer Starrss evidence and concluded that he had no other agenda
    than to check the licence, as he was authorized to do under s. 216 of the
Highway
    Traffic Act
 and that the appellant understood that the licence check was
    the reason for his detention. This submission was repeated on appeal, but it
    has no merit. Those findings were open to the trial judge.

[19]

The appellant argues that the trial judges
    conclusions are tainted by her error in requiring the appellant to establish
    that the traffic stop detention was unlawful. The appellant argues that this
    was a reversal of the legal burden of proof.

[20]

I am not persuaded by this submission. Even
    assuming the trial judge made any such error in her review of the relevant
    principles, I do not agree that it was material to her ultimate conclusions
    because the trial judge found in the alternative that the Crown had established
    that the detention was lawful. As I earlier explained, her conclusion is
    founded on her acceptance of Officer Starrss evidence about the reason for the
    stop and her finding that the traffic stop was legitimate in accordance with s.
    216(1) of the
Highway Traffic Act
. Again, these findings were open to
    her.

[21]

I therefore see no basis to interfere with the
    trial judges determination of this issue.

(ii)

Sections 7 and 11(d)

[22]

The appellant argues that the trial judge erred
    in failing to find that his s. 7 and 11(d) rights were violated because the
    police did not recover and produce all the surveillance videos from the
    adjacent auto body shop that could have shown the appellants flight and his
    chase by police.

[23]

While it may have been preferable for the police
    to have recovered and produced to the Crown all surveillance videos, I do not
    see any reversible error in the trial judges treatment of this issue. Again,
    as she was entitled to do, the trial judge accepted the evidence from the store
    owners and the police officer to find that only the video produced by the Crown
    was clear and the other videos showed nothing of value because of their poor
    quality. She concluded that no relevant evidence was lost and therefore that
    there was no breach. This conclusion was supported by the evidence that the
    trial judge was entitled to accept. There is no basis to intervene.

(iii)

Section 10(a)

[24]

The Crown conceded at trial that the appellants
    s. 10(a) rights were violated by the polices twenty-eight-minute delay in
    advising him of the reason for his arrest. The trial judge agreed that the
    appellants s. 10(a) rights were violated. The appellant submits that the trial
    judge erred by 1) finding that the appellant had no standing to seek a s. 24(2)
    remedy; and 2) failing to grant a s. 24(2) remedy by excluding the handgun from
    the trial evidence.

[25]

I agree that the appellant had standing to seek a s. 24(2) remedy.
    As the Crown conceded, there was a
Charter
breach and the requisite temporal connection between the breach and the
    handgun: see
R. v. Pino
, 2016 ONCA 389, 130
    O.R. (3d) 561, at para. 56;
R. v. Pileggi
,
    2021 ONCA 4, 153 O.R. (3d) 561, at para. 101.

[26]

However, I am not persuaded that the trial judges error made any
    difference to the outcome. Notwithstanding her conclusion about the appellants
    standing, she went on to consider whether the handgun should be excluded. Having
    properly balanced the factors set out in
R. v. Grant
,
    2009 SCC 32, [2009] 2 S.C.R. 353, she determined the evidence should not be
    excluded for the reasons that I have already reviewed. I see no error with her determination
    of this issue.

(iv)

Section 10(b)

[27]

The appellant argues on appeal that his s. 10(b)
    rights were violated because he was not provided with immediate access to
    counsel upon his arrest. The appellant was permitted to speak to counsel once
    he was transported to the police station, about an hour after his arrest.

[28]

The appellant did not raise this issue at trial.
    At trial, he argued that his s. 10(b) rights were infringed because
    Officer Starrs failed to give him his rights to counsel, caution, and access to
    counsel upon the initial detention to check his licence. The trial judge
    rejected this argument. The appellant does not renew this argument on appeal.

[29]

I would decline to consider the new s. 10(b)
    argument on appeal. The appellant has not explained why the argument was not
    raised at trial or what miscarriage of justice would arise in its absence. In
    addition, a party who wishes to raise a new ground on appeal must satisfy the
    condition, among others, that the evidentiary record is sufficient to permit
    the appellate court to fully, effectively, and fairly determine the issue
    raised on appeal:
R. v. Reid
, 2016 ONCA 524, 132 O.R. (3d) 26, at
    para. 43. In my view, the evidentiary record is not adequate to permit a
    determination of this issue. No evidence was led by the Crown or the defence on
    what happened in the window of time when the appellants s.10(b) rights are
    said to have been violated.

[30]

In any event, I see no real possibility that the
    handgun would have been excluded from trial evidence if any s. 10(b) breach was
    found. This is because of the dynamic circumstances of the appellants arrest,
    the short period of time between the appellants arrest and his access to
    counsel, and the absence of any material prejudice caused to the appellant by
    the delay.

(v)

Circumstantial evidence of possession

[31]

The appellant argues that the trial judge failed
    to turn her mind to inferences inconsistent with guilt, namely the theory that
    the gun was already there before the appellants flight. He argues that this
    failure makes the verdict unreasonable.

[32]

I disagree.

[33]

As
    the appellant acknowledges, the trial judge correctly instructed herself on the
    law as it relates to the assessment of circumstantial evidence. She
    specifically considered whether she could reasonably be satisfied that the
    appellants guilt was the only reasonable conclusion available on the totality
    of the evidence: see
R. v. Villaroman
, 2016
    SCC 33, [2016] 1 S.C.R. 1000, at para. 55.

[34]

The trial judge concluded that the appellants
    guilt was the only reasonable, logical inference to be drawn from all the
    evidence because of her findings that the accused had the firearm on his
    person, fled the scene to avoid being searched, and dropped or threw the
    firearm on the ramp where he stumbled and where it was ultimately found. This
    conclusion was open to her based on the evidence that she was entitled to
    accept.

[35]

I reject the appellants contention that the
    trial judge failed to turn her mind to other reasonable inferences. It is clear
    from her reasons that she considered but was not persuaded by the appellants
    submission that the police had planted the handgun. Although the appellant did
    not make this submission at trial, the trial judge also assessed but rejected
    the possibility that an unknown third person may have left the handgun.
    Notwithstanding the absence of the appellants fingerprints or DNA on the
    handgun, which the trial judge took into account, it was nevertheless open to
    the trial judge to conclude that the appellants possession of the handgun was
    the only reasonable inference in the circumstances of this case.

[36]

I therefore see no error that warrants appellate
    intervention.

(b)

Sentence

[37]

The appellant submits that the trial judge erred
    in imposing a six-year custodial sentence. He submits that the sentence was
    harsh and unfit because the trial judge relied on cases with much more
    aggravating factors than those present in his case. He argues that, while a
    penitentiary sentence was warranted in this case, the objectives of deterrence
    and denunciation could have been accomplished by a sentence in the three-year
    range less credit for pre-sentence custody.

[38]

I disagree that there is any basis to interfere
    with the trial judges sentence. The trial judges decision on sentence is
    entitled to significant deference on appeal absent an error in principle that
    has an impact on the sentence or the sentence is demonstrably unfit:
R. v.
    Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 11 and 12. I see no such
    error in principle. Nor is the sentence imposed demonstrably unfit.

[39]

No
    issue is taken with the appropriateness of the aggravating and mitigating
    factors that the trial judge reviewed or how she weighed them. Rather, the
    appellants argument challenges the trial judges reference to various
    sentencing cases involving offenders with previous convictions for more serious
    firearms offences that the appellant says are inappropriate comparators.

[40]

I
    am not persuaded that the trial judge made any error in her approach. It is
    clear from her reasons that the trial judge considered all the cases presented
    by the parties. She did not rigidly follow the sentencing ranges set out in the
    cases. Rather, she properly considered them along with the other relevant
    sentencing principles and factors that she was required to review.

[41]

The trial judges sentence properly reflects that this was a
    serious offence committed by a persistent recidivist who showed little respect
    for the publics safety or court orders. The sentence also indicates that these
    circumstances were somewhat mitigated by the appellants personal
    circumstances, remorse, and positive familial support. The sentence
    appropriately furthered the sentencing goals of denunciation, deterrence, and
    protection of the public. It was appropriate and fit.

Disposition

[42]

For these reasons, I would dismiss the appeal
    from conviction and deny leave to appeal sentence.

Released: March 4, 2022 J.S.

L.B.
    Roberts J.A.

I
    agree. Janet Simmons J.A.

I
    agree. S.E. Pepall J.A.





[1]

The
    trial judge also found there was no breach of the appellants s. 8
Charter
rights.
    The appellant did not challenge that finding on appeal.


