Updated: Feb 20
The appellant was convicted of two firearm offences and was given a global sentence of three years. A global sentence, as referred to in R v M(CA),  1 SCR 500 at para 42, requires the judge who offers consecutive sentences for multiple offences to ensure that the total sentence is not excessive enough to exceed the overall culpability of the offender. The police breached the door of the appellants' home to execute a Feeney warrant (R v Antrobus, 2020 ONCA 455 at paras 1-3 [Antrobus]). This warrant, at common law, gives the police the right to enter a private dwelling, and upon reasonable grounds, to arrest a suspect who is believed to be inside, with or without an arrest warrant (R v Feeney,  2 SCR 13 at paras 44-51). A few officers watched the appellant throw a package off the balcony. When it was recovered, it contained a firearm. However, the appellant appeals the conviction on the grounds that identification of the weapon was not established under a reasonable doubt (Antrobus at para 4).
First Ground of Appeal
Despite an officer stating that they recognized the appellant as the one who threw the package off the balcony, the trial judge did not use this identification evidence. The trial judge concluded that the only reasonable inference from that identification was that the appellant threw the package from the balcony (Antrobus at para 3). The appellant argues that this is not the only reasonable inference; therefore, the Crown’s circumstantial evidence does not meet the standard of proof beyond a reasonable doubt. Justice Forestell, at the Ontario Court of Appeal, disagrees with the appellant’s argument (Antrobus at para 4).
Reason for Decision
When the officers entered the apartment, there was a loud bang made from the package being thrown off the balcony which was witnessed by several officers. It was not until after the trial judge had been satisfied that it was the appellant who had thrown the package off the balcony had she accepted and relied on several pieces of circumstantial evidence (Antrobus at para 7). Nevertheless, there was also insufficient time, the trial judge argued, for anyone else to have thrown the package. Justice Forestell concludes that the only reasonable inference the trial judge could find was that: (1) the appellant knew what was in the package when he threw it; 2) he had the requisite knowledge, control, and possession of the firearm; 3) he threw the gun to avoid it being found by the police (Antrobus at paras 8-9). Based on these findings, Justice Forestell noted that the trial judge was correct in reasonably inferring that the “appellant had possession of the gun and threw it over the balcony” and dismissed the appeal (Antrobus at para 10).
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