



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Johnston, 2021 ONCA 331

DATE:  20210519

DOCKET: C68582

Hoy, Hourigan and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kodie Johnston

Appellant

Kodie Johnston, acting in person

Erin Dann, appearing as duty counsel

Philippe Cowle, for the respondent

Heard: May 6, 2021 by video
    conference

On appeal from the convictions entered
    on November 14, 2019 and the sentence imposed on June 4, 2020 by Justice Kimberly
    E. M. Moore of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

On May 18, 2018, Mr. Johnstons roommate was
    shot in the chest, in the apartment he shared with Mr. Johnston.

[2]

Mr. Johnston was convicted of a number of
    offences arising out of the May 18, 2018 incident, including aggravated
    assault, possession of a prohibited weapon while prohibited by court order,
    uttering threats, and obstructing police. Mr. Johnston was found not guilty of
    attempted murder.

[3]

He was sentenced to a global period of
    imprisonment of 6.5 years, which, after credit for pre-sentence custody,
    resulted in a net sentence of 41 months.

[4]

Mr. Johnston appeals both his conviction and
    sentence. On his conviction appeal, Mr. Johnston argues that: the Crown did not
    prove beyond a reasonable doubt that he was the person who shot the victim; the
    trial judge should not have relied on the fact that there was gun shot residue
    (GSR) on his hands because that evidence only came to light two weeks before
    trial and could have been fabricated and, in any event, there would have been
    more GSR on his hands if he had shot the victim; the trial judge should not
    have relied on his inculpatory statement to police because he was impaired at
    the time he gave the statement; and the trial judge relied too heavily on the
    evidence of the victim, who has mental health issues and might have been
    guessing that he was the shooter or been coerced into saying that he was the
    shooter. Mr. Johnston says that bikers who came from time to time to the
    apartment building might have shot the victim.

[5]

On Mr. Johnstons behalf, duty counsel argued
    that the trial judge erred by failing to consider whether Mr. Johnston had the
    requisite intent for the offences of uttering threats and obstructing police.
    Duty counsel also argues that the trial judge did not give adequate weight to
    Mr. Johnstons mental health and addiction issues in sentencing him.

[6]

We are not persuaded that we should interfere
    with conviction or sentence.

[7]

We will address the above arguments in turn.

[8]

In the trial judges words, the evidence that
    Mr. Johnston was the shooter was overwhelming. The evidence that led the
    trial judge to be satisfied beyond a reasonable doubt that Mr. Johnston was the
    shooter included that:

·

Mr. Johnston was living with the victim at the
    time;

·

the victim testified Mr. Johnston shot him;

·

when the victim called 911 after he was shot, he
    described Mr. Johnston in detail and it was clear that Mr. Johnston was in the
    room with the victim at the time of the call;

·

when the police arrived, the victim told them
    that Mr. Johnston was still in the apartment, with the gun;

·

police located Mr. Johnston and the gun in the
    apartment and he was the only person in the apartment;

·

no one went in or out of the apartment between
    the time the police arrived at the scene and the time they arrested Mr.
    Johnston;

·

there were four GSR particles on Mr. Johnstons
    hands;

·

the recovered fired bullet was the same type of
    bullet as the five remaining bullets in the revolver found in its holster in
    the cushions of a couch in the apartment; and

·

in the first of two recorded statements Mr.
    Johnston made to police, Mr. Johnston acknowledged multiple times that he shot
    the victim.

[9]

As to the GSR, the trial judge noted that there
    was no suggestion by trial counsel that the GSR collection and sampling was
    flawed in any way, and the  evidence of the forensic scientist at trial was
    that four particles of GSR is in fact a typical number of particles.

[10]

Trial counsel was satisfied that Mr. Johnstons
    inculpatory statement was voluntary and admissible. The trial judge found that
    Mr. Johnston was impaired to some degree at the time he shot the victim, but
    also that his actions on [May 18, 2018] also demonstrate an ability to make
    conscious and deliberate decisions.

[11]

The appellants trial counsel noted that
    credibility was not a significant factor at trial, and, while counsel briefly
    adverted in his closing submissions to concerns about the reliability of the
    victims evidence, it was not the focus of the defence.

[12]

The trial judge specifically considered and
    dismissed the possibility that the bikers could have shot the victim, noting
    that the person employed to do maintenance at the apartment building testified
    that the bikers did not attend at the building on May 18, 2018.

[13]

Turning to the offence of uttering threats, when
    police officers were trying to arrest Mr. Johnston, he yelled, youre all
    going to die and dont you know who I am, youre all going to die. The trial
    judge found that Mr. Johnston clearly threatened the officers and, in the
    circumstances, it could easily be understood why they took the threats
    seriously.

[14]

Duty counsel argues that the trial judge had to
    be satisfied not just that the officers took the threats seriously, but that
    Mr. Johnston intended to intimidate the officers, or that he intended that the
    threats be taken seriously:
R. v. McRae
, 2013 SCC 68, [2013] 3 S.C.R.
    931, at para. 29.

[15]

A trial judge is presumed to know the law. That
    Mr. Johnston intended his threats to be taken seriously was not an issue at
    trial. The appellants trial counsel did not cross-examine on the threats as
    testified to by the police officers. Given the circumstances in which the
    threats were uttered, namely that Mr. Johnston made the threats while resisting
    arrest after shooting the victim, and the trial judges finding that Mr.
    Johnston had the ability to make conscious and deliberate decisions, the
    inference that he intended his threats to be taken seriously is clear. The
    trial judges failure to advert to this in her reasons does not reflect a
    substantial wrong and no miscarriage of justice has occurred.

[16]

As to the obstructing offence, the trial judge
    accepted the evidence of all three officers that the appellant was resisting
    arrest by refusing to provide his hands, both when he was standing and when he
    was on the floor. Duty counsel argues that the trial judge erred by failing to
    consider whether the appellant intended to obstruct police. Obstruction
    requires wilful or intentional conduct:
R. v. Gunn
, 1997 ABCA 35, 113
    C.C.C. (3d) 174, at para. 51;
R. v. Yussuf
, 2014 ONCJ 143, at paras.
    49, 52. Intention can be inferred from context:
Yussuf
, at para. 49.

[17]

At trial the focus was not on what Mr. Johnston
    intended. It was on whether he did what the officers testified that he did:
    refused to give his hands to the officers to be handcuffed. The appellants
    trial counsel argued that in this dynamic situation the court could not be sure
    that Mr. Johnston had indeed not produced his arms.

[18]

Again, in the context of the defences theory at
    trial, what Mr. Johnston did, the circumstances in which Mr. Johnston did what
    he did, and the trial judges finding that Mr. Johnston had the ability to
    make conscious and deliberate decisions, the trial judges failure to
    specifically address whether the appellant intended to obstruct police does not
    reflect a substantial wrong and no miscarriage of justice has occurred. The
    clear inference from the context is that Mr. Johnston intended to obstruct the
    officers in the execution of their duty.

[19]

Finally, with respect to the sentence imposed,
    the trial judge gave significant weight to Mr. Johnstons mental health and
    addiction issues. The trial judge found that a sentence at the low end of the
    range indicated in
R. v. Bellissimo
, 2009 ONCA 49, at para. 3, for
    aggravated assault involving serious gun violence resulting in injury was
    appropriate 
especially
as I consider Mr.
    Johnstons untreated addictions and mental health issues (emphasis added). The
    trial judge then considered the collateral consequence of the COVID-19 pandemic
    and reduced Mr. Johnstons sentence below the range from
Bellissimo
.

[20]

A sentencing judges exercise of discretion in weighing
    relevant factors attracts deference on appeal:
R. v. Lacasse
, 2015 SCC
    64, [2015] 3 S.C.R. 1089, at paras. 48-49. The weighing or balancing of factors
    only amounts to an error in principle if the sentencing judge exercises his or
    her discretion unreasonably:
R. v. Friesen
, 2020 SCC 9, 444 D.L.R. (4
th
)
    1, at para. 26. The trial judge did not exercise her discretion unreasonably.

[21]

Accordingly, the appeal is dismissed.

Alexandra Hoy J.A.

C.W. Hourigan J.A.

B. Zarnett J.A.


