



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Camara, 2021 ONCA 79

DATE: 20210205

DOCKET: C66493

Strathy C.J.O., Gillese and Watt
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Siaka Camara

Appellant

Siaka Camara, acting in person

Erin Dann, duty counsel

Benita Wassenaar, for the respondent

Heard: July 22, 2020 by videoconference

On appeal from the
    conviction entered by Justice Carole J. Brown of the Superior Court of Justice,
    sitting with a jury, on August 25, 2018, and from the sentence imposed on January
    18, 2019 with reasons for sentence reported at 2019 ONSC 115.

Watt J.A.:

[1]

Siaka Camara (the appellant) went to a club in
    the Distillery District with some friends.

[2]

After last call, the appellant did not want to
    leave the club and got into a scuffle with one of the staff members. Other club
    staff and some of the appellants friends intervened. Some words were
    exchanged. The appellant and his friends left the club.

[3]

Later that night, as club staff were leaving the
    building, they saw the appellant walking towards them. He was alone. A staff
    member noticed the appellant reaching towards the waistband of his pants. Staff
    members tackled the appellant to the ground. One of the them recovered a
    handgun. Police attended and arrested the appellant.

[4]

The appellant was tried on a multi-count
    indictment containing several firearms, assaults, and related offences. The
    jury found the appellant guilty of the firearms offences and of one count of assault.
    The trial judge imposed a global sentence of imprisonment of nine years, less
    credit of four and one-half years for time spent in pre-sentence custody.

[5]

The appellant appeals. He asks that we set aside
    his convictions because the trial judge erred in admitting hearsay and bad
    character evidence and excluding evidence of an exculpatory utterance he made.
    If his appeal from conviction fails, he asks that we reduce his sentence.

[6]

These reasons explain my conclusion that the
    appeals against conviction and sentence should be dismissed.

The Background Facts

The Party

[7]

On January 2, 2016, a party took place at a
    licenced club in the Distillery District in Toronto. Three men  J.K., R.M.,
    and S.F.  worked as security at the club.

The First Altercation

[8]

At 2:00 a.m., bar service ended. The music in
    the club was turned off, the lights on. Staff began to take the steps necessary
    to close up. By 2:45 a.m., most patrons had left the building.

[9]

The appellant did not want to leave despite
    encouragement from his friends and club staff that he do so. He got into a
    scuffle with S.F. J.K. and R.M. went to assist their colleague. The appellant
    took a swing at J.K., but did not hit him. R.M. intervened to de-escalate the
    confrontation.

[10]

J.K. did not hear the appellant say anything
    during this altercation. However, he recalled that some of the appellants
    friends said, You dont want to mess with this guy. and Hell come back and
    shoot, or something like that.

[11]

J.K. asked another member of staff to call the
    police. When officers arrived, J.K. advised them about the comments indicating
    a return and a gun.

[12]

R.M. gave evidence that he tried to intervene in
    the scuffle between the appellant and S.F., as did the appellants friends who
    pulled him away. The appellant described himself as a bad boy. He said that
    he would get his thing and come back and settle this. R.M. also heard
    comments from the appellants friends who described the appellant as a bad
    boy. These friends characterized him as the real thinglike the real deal.
    They added You dont know who he is and said that the appellant would go get his
    thing and come back.

[13]

S.F. did not testify at trial.

[14]

The appellant left the club with his friends.

The Appellant Returns

[15]

Later that night, as J.K., R.M., and S.F. were
    leaving the club, they saw the appellant approaching them. A security guard
    that provided services to businesses in the Distillery District was also
    around. R.M. characterized the appellant as walking towards them
    aggressively. R.M. started running towards the appellant yelling Grab his
    hands.

[16]

R.M. recalled that when he grabbed the
    appellants hands, the appellant tried to reach down into his pants. The
    appellant and R.M. both fell. They continued to fight. S.F. yelled Theres a
    gun. R.M.s focus was on the appellants hands. He did not see the gun until
    S.F. picked it up off the ground.

[17]

According to J.K., as he approached, he saw the
    appellant reach towards the waistband of his pants. J.K., perhaps R.M. as well,
    reached for and grabbed the appellants hand. A brief tussle followed. The men
    grounded the appellant. S.F. came over. He reached towards the appellant, then
    said I got the gun.

[18]

J.K. did not see how or where S.F. got the gun.
    But J.K. did see S.F. take the gun and put it on an outdoor table nearby. The
    others sat on the appellant until police arrived.

[19]

The security guard recalled that he saw the butt
    or handle of a gun sticking out of the appellants pants. R.M. tried to grab
    the gun, but the guard could not tell which staff member removed the weapon
    from the appellants waistband. S.F. put the gun on a patio table. The security
    guard called 911.

The Appellants Utterances

[20]

At the preliminary inquiry, J.K. testified that
    when S.F. yelled that he got the gun, the appellant said, You guys are trying
    to set me up.

[21]

During the struggle, the security guard heard
    the appellant say Get off of me. I didnt do anything.

[22]

Trial counsel for the appellant (not counsel on
    the appeal) sought to elicit these remarks through the security guard under the
res gestae
exception to the hearsay rule. The trial judge declined to
    admit the evidence unless the appellant testified at trial, which he did not do.

The Grounds of Appeal

[23]

On the appeal from conviction, the appellant
    alleges the trial judge erred:

i.

in admitting inadmissible hearsay and bad
    character evidence; and

ii.

in failing to admit the appellants exculpatory
    utterances when subdued by club staff and on recovery of the handgun.

[24]

On the appeal from sentence, the appellant
    contends that the sentence imposed is excessive and should be reduced.

The Appeal from Conviction

[25]

Both grounds of appeal raise issues about the admissibility
    of evidence at trial. The first has to do with evidence that was received
    without objection. The second relates to evidence proposed for admission, but
    excluded.

Ground #1: Hearsay and Bad Character Evidence

The Bad Character References

[26]

During her case, the trial Crown (not counsel on
    appeal) elicited evidence from J.K. and R.M. about remarks made by the
    appellant and his friends as they were about to leave the club after the
    appellants first scuffle with the club staff.

[27]

Experienced trial counsel for the appellant did
    not object to the admissibility of the appellants threats or to similar
    remarks attributed to his friends.

The Hearsay Comments

[28]

The trial Crown also elicited evidence of words
    spoken by S.F. when he recovered the gun from the appellant. S.F. did not
    testify at trial.

[29]

Trial counsel also did not object to the
    admissibility of any evidence about the recovery of the gun.

The Closing Addresses of Counsel

[30]

In her closing address, the trial Crown referred
    to the appellants threat to get his thing, return, and settle this. She
    added, on one occasion, And the people he was with warned the staff about him
    too. She also mentioned the I got the gun remark J.K. attributed to S.F.

[31]

In his closing address, defence counsel took the
    position that the evidence of threatening remarks R.M. attributed to the
    appellant was neither reliable nor credible. He submitted that the better
    evidence was that of J.K. who was well-positioned to hear anything the
    appellant said but heard nothing of the kind.

[32]

Defence counsel acknowledged that the
    appellants friends made comments about not messing with the appellant, but
    noted that the appellant did not do so himself.

[33]

In connection with the recovery of the handgun,
    defence counsel pointed to the failure of the Crown to call S.F. as a witness.
    There was no evidence about the origin of the gun, and no forensic evidence,
    such as fingerprints or DNA, connected it to the appellant. The case for the
    Crown fell well short of proving any of the gun charges beyond a reasonable
    doubt.

The Charge to the Jury

[34]

In her charge to the jury, the trial judge
    included a review of the evidence of each witness who testified. She referred
    to J.K.s testimony about the comments of the appellants friends as the first
    altercation ended. She pointed out that J.K. did not hear the appellant say
    anything. She also referred to J.K.s recollection of having heard S.F. say I
    have the gun as the club staff subdued the appellant when he returned alone to
    the club.

[35]

In her recital of the evidence of R.M., the
    trial judge referred to his testimony about the remarks of the appellants
    friends at the end of the first altercation and the gun, gun comment of S.F.
    at the conclusion of the second incident.

[36]

In her discussion of the essential elements of possession
    of a weapon for a purpose dangerous to the public peace, carrying a concealed
    weapon, and threatening S.F., the trial judge briefly summarized the evidence
    of the appellants threats and similar remarks by his friends. She explained to
    the jury that the evidence was relevant for them to consider in deciding
    whether the Crown had proven the appellants guilt on those counts beyond a
    reasonable doubt. After an objection by trial counsel, she provided a curative
    instruction that the statements were for narrative or informative value only,
    and not for the truth of their contents.

[37]

The jury found the appellant guilty of carrying
    a weapon for a purpose dangerous to the public peace and of carrying a
    concealed weapon, but not guilty of threatening S.F.

The Arguments on Appeal

[38]

The appellant takes issue with the admissibility
    of his friends threatening remarks near the end of the first incident. He
    advances two principal challenges.

[39]

First, these statements violate the hearsay
    rule. They were out of court statements made by persons not called as witnesses
    and tendered for the truth of what was said.

[40]

Second, the substance of this evidence is that
    the appellant is a person of bad character who resorts to violence as a method
    of dispute resolution. The reception of this evidence undermined the fairness
    of the trial, not only by its introduction, but also because the trial judge
    instructed the jury that it could be used in proof of specific counts in the
    indictment. Further, the evidence of remarks by the appellants friends was not
    relevant to the appellants state of mind or whether he uttered a threat.

[41]

The appellant says that the record reveals no
    application by the Crown to have this evidence admitted by exception to the
    applicable exclusionary rules. The failure of defence counsel to object to the
    admissibility of this evidence did not relieve the trial judge of her
    obligation to ensure that only relevant, material, and admissible evidence was
    received.

[42]

The appellant reminds us that defence counsel did
    object to the charge on the ground that the jurors were invited to consider the
    threats uttered by the appellants friends as proof of the truth of what was
    said. The curative instruction of the trial judge, brief as it was, was an
    insufficient antidote to the prejudice created by the admission of the evidence,
    compounded by the original erroneous instruction. The curative instruction neither
    advised the jury that the earlier instruction about their use of the evidence
    was wrong, nor instructed them that the statements of the appellants friends were
    of no relevance or probative value in determining the appellants state of
    mind. Finally, the jury was not told that this evidence could not be used to
    infer that the appellant was the sort of person who would likely commit the
    offences charged.

[43]

In connection with the statements attributed to
    S.F. about finding the gun, the appellant points to the critical nature of the
    issue to which this evidence was relevant: the origins of the gun S.F. took to
    the patio table. The Crown was entitled to not call S.F. But, having made that
    decision, the Crown should not have been permitted to lead evidence of his
    statements from other witnesses, neither of whom saw the gun before S.F.s
    announcement of finding it. This evidence offended the hearsay rule and no
    effort was made to qualify it for exceptional admission.

[44]

The respondent says that the statements of the
    appellants friends were properly admitted. They were relevant to show the
    state of mind of those involved in the altercations and informed the reaction
    of club staff to the appellants return. Additionally, they were invoked by
    defence counsel, ultimately successfully, to challenge the case for the Crown
    on the threatening counts.

[45]

Further, the respondent continues, experienced
    trial counsel did not object to the admissibility of this evidence. When he did
    object to the instruction on the use of the evidence, the trial judge recalled
    the jury and made it clear that they were not permitted to use this evidence as
    proof of the truth of what was said. This eradicated any prejudice inherent in
    those statements.

[46]

Turning to the statements of S.F. on recovery of
    the gun, the respondent begins with the observation that there was no dispute
    that a gun was found where the second altercation occurred. Nor was it
    controversial that S.F. picked it up and put it on a patio table where it was
    found by police. S.F.s statement about the gun was contemporaneous with its
    finding and consistent with the uncontroverted facts. It was also supportive of
    the defence position at trial that S.F., not the appellant, could have been the
    source of the gun.

The Governing Principles

[47]

The admissibility issues raised by the appellant
    invite an examination of the substance of the evidence in issue and the purpose
    for which it was adduced. As a result, my discussion implicates two rules of
    admissibility: character and hearsay. Each is, by nature, exclusionary.
    Evidence falling within the prohibitory sweep of each rule is inadmissible. But
    each is also subject to exceptions, by nature, inclusionary.

[48]

I turn first to the
substance
of the
    evidence and the impact of the character rule.

[49]

It is uncontroversial that, generally, the Crown
    is not permitted to use bad character evidence as circumstantial proof of
    conduct. We insist that, if guilt is to be established, it be by proof of
    conduct, not proof of character:
R. v. Moo
, 2009 ONCA 645, 247 C.C.C.
    (3d) 34, at para. 96, leave to appeal refused [2010] S.C.C.A. No. 152;
R.
    v. Handy
, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 31;
R. v. G. (S.G.)
,
    [1997] 2 S.C.R. 716, at para. 63.

[50]

However, the character rule is subject to
    exceptions. Among those is where evidence revealing an accuseds bad character
    is relevant to an issue in the case, provided the probative value of the
    evidence on that issue exceeds its prejudicial effect:
Moo
, at para.
    97;
Handy
, at para. 41;
G. (S.G.)
, at para. 65.

[51]

The categories of relevance are not closed.
    Relevance is relative and is assessed in the context of the case as a whole and
    the positions of counsel. Evidence of bad character may be exceptionally
    admitted where relevant to establish motive or animus, state of mind (such as
    fear on the part of a victim), narrative, or to provide context for other
    events:
R. v. T. (J.A.)
, 2012 ONCA 177, 288 C.C.C. (3d) 1, at para.
    54;
R. v. Walker
(1994), 90 C.C.C. (3d) 144 (Ont. C.A.), at pp. 152-3;
R. v. MacDonald
(2002), 170 C.C.C. (3d) 46 (Ont. C.A.), at para. 35.

[52]

A judge presiding in a criminal jury trial has
    a duty to ensure that only relevant, material, and admissible evidence is
    received:
T. (J.A.)
, at paras. 50,
    92. Where evidence of limited relevance or admissibility is received, the judge
    has an obligation to instruct jurors about the permitted and prohibited use of
    that evidence:
R. v. Calnen
, 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 113
per
Martin J., (dissenting, but not on this point);
R.
    v. Ball
, 2019 BCCA 32, 371 C.C.C. (3d)
    381, at para. 91;
T. (J.A.)
, at para. 50.

[53]

Turning next
    to the
purpose
of the evidence and the hearsay rule.

[54]

Evidence of
    words spoken out of court by persons who are not called as witnesses may be
    adduced for either or both of two purposes; to establish that the words were
    spoken, or to establish that the words spoken were true. The application of the
    hearsay rule is not defined by the inherent nature of the evidence, but by the
use
the
    proponent seeks to make of it:
R. v. Starr
, 2000 SCC 40, [2000] 2 S.C.R. 144, at
    para. 162;
R. v. Maglior
, 2003 NSCA 74, 178 C.C.C. (3d) 310, at
    para. 23.

[55]

Narrative
    evidence is necessary to understand the unfolding of events surrounding the
    alleged offence. Because it is not tendered or received as evidence of the
    truth of what was said
,
it
    does not fall foul, rather beyond, the reach of the hearsay rule
:
Maglior
,
    at para. 23. Likewise, evidence of threats:
T.
    (J.A.)
, at para. 95;
Subramaniam v. Public Prosecutor
, [1956] 1 W.L.R. 965 (P.C.), at p. 970.

The Principles Applied

[56]

I would not give effect to either aspect of this
    ground of appeal. I am not persuaded that the evidence was wrongly received.
    Further, even if it were, I am not satisfied that its reception caused the
    appellant any substantial wrong or a miscarriage of justice.

[57]

First, the evidence of the remarks attributed to
    the appellants friends by the witnesses J.K. and R.M.

[58]

Evidence of these remarks was relevant, material,
    and thus,
prima facie
admissible as part of the narrative of events
    leading up to the appellants return to the club. It was evidence necessary to
    understand the unfolding of events surrounding the offences the appellant was
    alleged to have committed. The remarks, especially when coupled with those of a
    similar kind by the appellant himself, were relevant and material on the
    threatening counts with which the appellant was also charged.

[59]

Doubtless, especially if the evidence were
    offered to prove the appellant was, as advertised, a bad boy, it invited
    propensity reasoning, the use of character as proof of conduct. But, as we have
    seen, this is not the sole purpose of the evidence. Its value as evidence of
    narrative and to provide context for the appellants own similar statements
    outweighs any incidental prejudice it may have occasioned.

[60]

Further, as characterized by the appellant
    himself, the evidence is not barred by the hearsay rule because threats are not
    tendered or admitted as evidence of the truth of what was said. Thus, they fall
    beyond the scope of the hearsay rule, rather than within its borders. No
    exception need be found to warrant their admission.

[61]

Leaving to one side the issue of admissibility,
    several other factors warrant rejection of this ground of appeal.

[62]

This evidence mirrors the appellants own words,
    spoken contemporaneously, the admissibility of which is beyond controversy.
    Experienced defence counsel not only did not object to the admissibility of
    this evidence but invoked it in support of his position on the counts charging
    threats against club staff. That the introduction of this evidence did not
    occasion the appellant prejudice is perhaps best illustrated by his acquittal
    on the threatening charges.

[63]

Nor am I persuaded that admission of the brief
    remarks of S.F. on recovery of the gun reflects error.

[64]

It is beyond controversy that, as they did,
    J.K., R.M., and the security guard could give evidence of their observations of
    S.F.s recovery of the gun. In a similar way, they were entitled to testify
    about the appellants movements and any items observed on his person as he
    approached them.

[65]

The brief remarks attributed to S.F., such as I
    got the gun, Theres a gun, or Gun, gun, were contemporaneous with
    recovery of the weapon. They were, by all accounts, spontaneous. They also explained
    a relevant act by S.F. the finding of a gun. As such, they were properly
    admissible either as beyond the reach or within an exception to the hearsay
    rule:
R. v. Sheri
(2004), 185 C.C.C (3d) 155 (Ont. C.A.), at paras.
    107-10.

[66]

Even if not properly admitted, the remarks
    attributed to S.F. did not advance the case for the Crown beyond the evidence
    of J.K. and R.M. of their observations of S.F. with the gun. Defence counsel
    did not object to the introduction of the evidence about what S.F. is alleged
    to have said. Indeed, he wove these remarks into the fabric of the defence
    position that it was S.F. who planted the gun on the appellant. In further
    support of his position, defence counsel pointed out the absence of evidence
    linking the appellant to the gun, the failure of S.F. to testify, and the fact
    that only S.F. was wearing gloves.

[67]

As I have said, I would reject this ground of
    appeal.

Ground #2: Wrongful Exclusion of Exculpatory Evidence

[68]

The second ground of appeal alleges error in the
    exclusion of an exculpatory utterance by the appellant proposed for admission
    as part of the
res gestae
.

The Relevant Circumstances

[69]

The evidence in issue consists of an utterance
    made by the appellant during the second struggle with club staff when the
    appellant returned alone. The security guard who was involved in the
    altercation heard the appellant say Get off of me. I didnt do anything.

[70]

In cross-examination of J.K., defence counsel
    suggested that when S.F. said, I got a gun, the appellant responded, Hey
    thats not mine and You guys are trying to set me up. J.K. said that he
    recalled neither comment. He added: Its possible. Youd have to check the
    original testimony [
sic
] I gave to the police.

[71]

Defence counsel then directed J.K.s attention
    to his testimony at the preliminary hearing where J.K. gave evidence that when
    S.F. said he had the gun, the appellant responded, You guys are trying to set
    me up, or something to that effect. Counsel then suggested that if J.K. said
    that at the preliminary inquiry, he was telling the truth. J.K. answered, I
    dont recall what he said exactly, but I would take that as I had a fresher
    mind back then for sure. Yeah.

[72]

In re-examination, J.K. denied having set up the
    appellant.

The Ruling of the Trial Judge

[73]

Defence counsel sought to elicit from the
    security guard the appellants remarks when S.F. announced recovery of the gun:
    Get off of me. I didnt do anything.

[74]

Counsel sought admission of the evidence as part
    of the
res gestae
. The trial Crown
    relied on
R. v. Edgar
,
    2010 ONCA 529, 260 C.C.C. (3d) 1, leave to appeal refused 263 C.C.C. (3d) iv
    (note) as a basis to exclude the evidence.

[75]

The trial judge refused to admit the evidence.
    The essence of her reasons appears in the following paragraph:

I am of the view that the statement sought to
    be elicited is a self-serving, exculpatory, out of court statement made by the accused.
    I am further of the view that in the circumstances of this case there are no
    exceptions which would permit it to be elicited, unless the accused were to
    testify in this proceeding, which I understand that defence counsel will not
    determine until the crowns case is in.

I do not permit the question or others of the
    same or similar nature to be asked.

The Charge to the Jury

[76]

At the pre-charge conference, the Crown asked
    the trial judge to instruct the jury that they were not entitled to consider
    the evidence given by J.K. that the appellant said that the club staff were
    trying to set him up. The trial judge declined to give such an instruction.
    However, she did tell the jury that J.K. did not remember hearing the appellant
    make the utterance. She also reminded the jury that J.K. denied having tried to
    set up the appellant.

The Arguments on Appeal

[77]

The appellant says that the trial judge
    erred in refusing to permit defence counsel to elicit the appellants
    utterances during the second altercation. These were spontaneous, made in the
    heat of the moment, contemporaneous with S.F.s announced recovery of the gun,
    while the appellant was being held down by club staff. They formed part of the
res
    gestae
.

[78]

Res gestae
is a traditional exception to the hearsay
    rule. It permits the introduction of spontaneous statements made during a
    startling occurrence or excitement-provoking event.

[79]

In this case, the
    appellant submits that his statement was part of the incident giving rise to
    several of the charges. The
res gestae
exception, unlike the
Edgar
exception which the trial Crown invoked to oppose introduction of the evidence,
    permits reception of the statement whether or not the declarant or accused
    testifies at trial.

[80]

The appellant cites the authorities that permit
    introduction of spontaneous utterances by an accused when found in possession
    of freshly discovered contraband. Those statements, like these here, constitute
    part of the
res gestae
.
They are necessarily admissible in any
    description of the circumstances under which the crime was committed. In
    addition, to exclude the appellants statements, yet admit the remarks of S.F.
    on discovery of the gun, creates the risk that the jury would draw an inference
    adverse to the appellant from his failure to provide an explanation when the
    circumstances seem to demand one. The imbalance that the trial judges ruling
    created resulted in an unfair trial.

[81]

The respondent rejects any suggestion of error
    in the trial judges decision on admissibility. As a general rule, exculpatory
    out-of-court statements of an accused are inadmissible. The remarks do not
    qualify under the
res gesta
e
    exception. The statement did not explain a relevant act. Any startling
    occurrence or excitement-provoking event was visited by, not upon, the
    appellant. Nor can the appellant invoke
the
Edgar

exception because he failed to testify
    at trial.

[82]

In any event, the respondent continues, defence
    counsel was able to rely on the appellants statement, You guys are trying to
    set me up. This statement was largely duplicative of Get off of me. I didnt
    do anything and was more clearly aligned with the defence position that S.F.,
    not the appellant, was the source of the gun. This evidence was left to the
    jury as relevant for them to consider. It follows, that even if the trial judge
    erred in excluding the statement in issue, its exclusion caused no prejudice to
    the appellant.

The Governing Principles

[83]

Res gestae
is a
    long-established concept in the law of evidence. Despite its antiquity, its
    precise doctrinal significance at common law eludes clarity and precision. In
    translation for forensic purposes, it approximates the events at issue in the
    litigation. This adds little to our basic concepts of relevance and
    materiality. Its passing would not be mourned. All the more so when we have
    substituted principle for shibboleth.

[84]

Whether they are received as a true exception to
    the hearsay rule - thus as evidence of the truth of what was said -  or as
    original evidence not reached by the hearsay rule, statements admitted under
res
    gestae
include:

i.

spontaneous statements or excited utterances;

ii.

statements accompanying and explaining an act which can be properly
    evaluated as evidence only if considered in conjunction with the statement; and

iii.

statements relating to a physical sensation or mental state, such as
    intention or emotion.

See,
Sheri
, at paras. 107-10.
    See also,
Criminal Justice Act 2003
(UK)
,
    s. 118(1), para. 4.

[85]

The excited utterances aspect of
res gestae
posits a mind so dominated by the event that the statement can be regarded as
    an instinctive reaction to that event thus giving the declarant no real
    opportunity for reasoned reflection or concoction. Contemporaneity of the
    statement with the event is a matter of degree. For the statement to be
    spontaneous, it must be so closely associated with the event which has excited
    the statement that it can fairly be said that the declarants mind remained
    under the domination of that event. In other words, the trigger mechanism for
    the statement  the event  was still operative. Spontaneity and
    contemporaneity are guarantors of reliability:
R. v. Andrews
, [1987]
    A.C. 281 (H.L.), at pp. 300-1.

[86]

In connection with statements accompanying and
    explaining an act, the act must be relevant in the absence of the statement.
    The justification for admitting the statement is that it may explain the
    precise significance of the act by showing its nature or the state of mind that
    accompanied it. See, for example,
R. v. Kearley
, [1992] A.C. 228 (H.L.),
    at p. 246.

The Principles Applied

[87]

Although I am satisfied that the trial judge
    erred in failing to admit the proposed evidence, I would not order a new trial
    on this ground.

[88]

The admissibility of this evidence was not
    governed by the principles elucidated in
Edgar
, as the trial Crown
    advanced and the trial judge appears to have held.
Edgar
involved
    exculpatory statements made to police shortly after arrest and about four hours
    later. It was in that context that this court decided that spontaneous
    exculpatory statements made on or shortly after arrest may be admitted as an
    exception to the general rule excluding prior consistent statements for the
    purposes of showing the reaction of an accused when first confronted with the
    accusation, provided they testify and thereby exposes themselves to
    cross-examination:
Edgar
, at para. 24.

[89]

In this case, the admissibility of the evidence
    was warranted by the common law rules that permit reception of spontaneous
    statements or statements accompanying and explaining a relevant act. Here,
    unlawful possession of a firearm. It was also justified as a statement made by
    an accused upon first being found in possession in accordance with the
    reasoning in
R. v. Graham
, [1974] S.C.R. 206, at pp. 213-4 and
R.
    v. McKenzie
, [1974] S.C.R. 233, at p. 235.

[90]

The defence position at trial was that S.F. was
    not simply the person who found the gun, but was its source. In cross-examination,
    defence counsel elicited from J.K. evidence that, when S.F. announced the
    finding of the gun, the appellant said, Youre trying to set me up. This
    evidence, which dovetailed with the defence position more so than the excluded
    words, was repeated by defence counsel in his closing address. It was also reiterated
    by the trial judge in her charge to the jury without any limitations imposed on
    its use.

[91]

Evidence pointing to the appellant as the person
    in possession of the gun was substantial. After the first altercation, he said
    he would get his thing and settle this. He returned alone. One witness saw
    the appellants hands move towards the waistband of his pants. Another saw the
    butt of a gun at the same place. None of the club staff were armed. The gun was
    located at the site of the struggle where the appellant had been subdued.

[92]

This ground of appeal fails.

The Appeal from Sentence

[93]

On his own behalf, the appellant made brief
    submissions on the appeal from sentence. He says that the total sentence
    imposed  nine years less credit of four and one-half years for time spent in
    pre-sentence custody  is too long. He points to no error in principle, failure
    to consider a relevant factor, or erroneous consideration of an aggravating or
    mitigating factor that had an impact on sentence.

[94]

The firearms offences of which the appellant was
    convicted by the jury attracted a sentence of six years. In separate
    proceedings before the trial judge, the appellant pleaded guilty to four counts
    of breaching a firearms prohibition. Each conviction related to a different
    prohibition and each attracted a sentence of imprisonment of six months. The
    sentences on these counts were ordered to be served consecutively to one
    another and to the six-year sentence. The final component of the aggregate
    sentence was a one-year consecutive term imposed after the appellant pleaded
    guilty to a count of impersonation.

[95]

The appellant is a mature recidivist. He was 27
    years old when he committed the offences and 30 when sentenced. He had previous
    convictions for extortion, assault, robbery, breaches of court orders, and
    weapons offences. At the time of these offences, he was bound by four separate
    firearms prohibitions. He was unlawfully in Canada, having returned illegally
    after being deported under escort.

[96]

The sentence imposed reflects no error in
    principle. It sits comfortably within the applicable range of sentence and
    reveals no failure to consider any relevant sentencing objective, principle, or
    aggravating or mitigating factor. It satisfies the fundamental sentencing
    principle of proportionality in that it is proportionate to the gravity of the
    appellants offences and the degree of his responsibility for having committed
    them.

Disposition

[97]

For these reasons, I would dismiss the appeal
    from conviction. I would grant leave to appeal sentence, but dismiss the appeal
    from sentence.

Released: GRS February 5, 2021

David Watt J.A.

I agree. G.R. Strathy C.J.O.

I agree. E.E. Gillese J.A.


