R v Morrissette, 2022 MBCA 8

Citation: R v Morrissette, 2022 MBCA 8 Date: 20220125 Docket: AR21-30-09639 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Marc M. Monnin Madam Justice Diana M. Cameron Madam Justice Jennifer A. Pfuetzner BETWEEN : ) M. P. Cook HER MAJESTY THE QUEEN ) for the Appellant ) Respondent ) D. C.

Sahulka ) for the Respondent - and - ) ) Appeal heard and adam joseph morrissette ) Decision pronounced: ) January 19, 2022 (Accused) Appellant ) ) Written reasons: ) January 25, 2022 COVID-19 NOTICE: As a result of the COVID-19 pandemic and pursuant to r 37.2 of the MB, Court of Appeal Rules , MR 555/88R , this appeal was heard remotely by videoconference.

On appeal from 2020 MBQB 90 cameron JA ( for the Court ): [ 1 ] The accused appeals his convictions for the offences of unauthorized possession of a firearm, unauthorized possession of a firearm in a motor vehicle of which he was the occupant, unauthorized possession of a loaded prohibited firearm and possession of a firearm while prohibited. [ 2 ] He also seeks leave to appeal and, if successful, appeals the custodial portion of the sentence consisting of three years, nine months and 21 days’ imprisonment less credit for pre-trial detention of 657 days, leaving a go-forward sentence of two years less a day. [ 3 ] At the appeal hearing, we dismissed his conviction appeal and denied his application for leave to appeal sentence with reasons to follow.

These are those reasons. [ 4 ] The accused was found seated in the rear passenger seat on the driver’s side of a stolen car being driven by a female. He was the only occupant in the rear of the car. After arresting the accused, the police searched the car and located a loaded sawed-off shotgun. The stock and part of the metal part of the shotgun were protruding from under the driver’s seat on the floor of the rear passenger area. The officers who observed the shotgun stated that it would have impeded the feet of the person seated in the rear seat behind the driver, where the accused had been seated.

One of the officers provided his opinion that, based on his experience, there was no room to hide the shotgun such that it would not have been seen where it was located. [ 5 ] Three red shotgun shells were located next to the shotgun. The police testified that the shells would also have been near the feet of the accused where he had been seated.

[ 6 ] The police evidence was that the area was well lit, even though it was nighttime. There were no other items on the floor of the car, either around or covering the shotgun and ammunition. [ 7 ] The officer who arrested the accused stated that he appeared to be pretending to be asleep when he was arrested. [ 8 ] The accused testified that he was in the car in order to help the driver search for her lost dogs.

He stated that, after she picked him up, he cleaned the rear of the car, including the driver and passenger floors, to avoid any chance that a dog might ingest something that would cause digestive distress. He said that, after locating what he believed to be a tampon, he became nauseous and fell asleep shortly thereafter. He denied any knowledge of the shotgun or ammunition. [ 9 ] The trial judge rejected the accused’s testimony in its entirety.

He accepted all of the evidence of the police officers in convicting the accused. [ 10 ] The accused raises a number of grounds of appeal, however, they all relate to his assertion that the trial judge erred when he found that the accused had knowledge and control of the shotgun and ammunition sufficient to convict him of the offences. He argues that there was no direct evidence of possession and that the circumstantial evidence was insufficient to convict him.

We disagree. [ 11 ] The trial judge was aware that, in cases such as this, where there is no direct evidence of possession, knowledge and control must be found in the evidence or reasonably inferred from it (see R v MacLeod (JM) et al , 2013 MBCA 48 at paras 29-32 ). He considered all of the evidence that he accepted as credible in finding that knowledge and control had been proven.

He applied the test in R v Villaroman , 2016 SCC 33 , to find that there was no reasonable inference other than guilt. [ 12 ] While the case depended on circumstantial evidence, we are satisfied that “the inferences drawn by the trial judge, having regard to the standard of proof, were reasonably open to him” ( Villaroman at para 67 ). Furthermore, the trial judge’s decision is one that a properly instructed jury could have reasonably rendered (see R v RP , 2012 SCC 22 at para 9 ). [ 13 ] Regarding sentence, the accused did not strenuously argue the issue in either his factum or in oral argument.

We are satisfied that he has not demonstrated an arguable case that the trial judge erred in finding that exceptional circumstances did not exist when he refused the accused’s request that a conditional sentence be imposed. [ 14 ] For the above reasons, the conviction appeal was dismissed and the application for leave to appeal sentence was denied. JA JA JA