COURT OF APPEAL FOR ONTARIO
Armstrong, Lang and Epstein JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Alexander Bakos and Gus Bakos
Appellants
Christopher Hicks, for the appellants
Joanne Stuart, for the respondent
Heard: September 11, 2008
On appeal from the convictions entered on May 11, 2007 and the sentences imposed on June 28, 2007, by Justice Joseph C. Scime of the Superior Court of Justice, sitting with a jury.
1Both appellants were found not guilty of possession of stolen property over $5,000, but guilty of the lesser and included offence of possession of stolen property under $5,000, as well as guilty of fraud over $5,000. The appellants’ convictions, which followed a jury trial presided over by Scime J., arose out of the sale of a motorcycle to the complainant, James Stewart. The motorcycle contained stolen components.
2The trial judge imposed an 18-month conditional sentence on Alexander Bakos, who had a longer and more recent criminal record, and a 12-month conditional sentence on Gus Bakos. He also ordered each appellant to pay $3,777.50 in restitution to the complainant, James Stewart.
3The appellants argue that the trial judge’s instructions to the jury regarding recent possession and wilful blindness were in error. They also argue that the trial judge erred in failing to provide a Vetrovec warning to the jury regarding the evidence of James Stewart to the jury as well as a warning about the use of the appellants’ after-the-fact conduct. The appellants appeal their sentences on the basis that they were manifestly unfit.
BACKGROUND
4On October 30, 2004, the complainant, James Stewart, responded to an advertisement in Auto Trader describing a motorcycle for sale as a “1998 Yamaha RI – Like new ... 11,000 km.” Mr. Stewart attended at the appellants’ residence and was shown the bike by Gus Bakos. On November 1, 2004, Mr. Stewart returned to the residence and gave Gus Bakos’ brother, Alexander Bakos, $7,300 cash for the motorcycle. Alexander Bakos provided Mr. Stewart with an ownership certificate for the motorcycle. The certificate, which Alexander Bakos endorsed on the reverse, was in the name of a Mr. Chinery. When Mr. Stewart tried to register the motorcycle in his name and this documentation was not accepted, he sought help from the appellants. Although the appellants said they would assist, they did not do so. To facilitate registration of the bike, Mr. Stewart presented the Ministry of Transportation with a false affidavit saying that he had lost his wallet, which he said contained the necessary documents. To reduce the taxes payable, he also provided the Ministry with a receipt that indicated that he had only paid $4,500 for the bike.
5In January 2005, Mr. Stewart took the motorcycle to Canadian Tire to obtain a safety standards certificate. The mechanic at Canadian Tire became suspicious regarding the ownership of the motorcycle. His suspicions were aroused by a number of components of the bike, including its tires, which appeared to have been worn from racing. The subsequent police investigation led to the charges against the appellants.
6In 2000, Gus Bakos bought a 1998 Yamaha from a Mr. Chinery for $2,000. The price represented the salvage value of the motorcycle that had been involved in a serious accident and was inoperable. The motorcycle Mr. Stewart brought to Canadian Tire in January 2005 had a Vehicle Identification Number (VIN), which appeared to match that of Mr. Chinery’s motorcycle, but also contained components from a motorcycle that had been stolen from a Mr. Dennis in the latter half of June 2004. The components included the fairings from Mr. Dennis’ motorcycle, the motorcycle’s xenon headlights, as well as at least the rear tire, a Pilot 190. Mr. Dennis also identified a large dent near the gas tank of the Stewart motorcycle, as well as two holes drilled into the fairing under the seat, as being identical to the dent and holes in his bike.
7Police Officer Gallant, an experienced officer with the auto squad, testified for the Crown that the Federal Certification label was missing from the Stewart motorcycle, which suggested to him an attempt to try to conceal the identity of the motorcycle. Moreover, Officer Gallant noted that the first five digits of the engine number on the Stewart motorcycle, which is distinct from the VIN number, matched the first five digits of the engine number on the Dennis motorcycle. However, the defence challenged this testimony on the basis that there was no evidence about the engine number of the Chinery motorcycle. Officer Gallant also testified that a rebuilt vehicle, such as the Stewart motorcycle, required a rebuilt title from the Ministry of Transportation. The appellants did not obtain a rebuilt title.
8Mr. Stewart testified about his interactions with the Bakos brothers after his purchase of the motorcycle on November 1, 2004. Apart from his unsuccessful attempts to enlist their help in the registration process, Mr. Stewart went to the Bakos residence about one month after the purchase in search of a new headlight and fairing. He testified that although Gus Bakos produced several parts, Mr. Stewart was “weirded out” by his behaviour, including Gus Bakos’ production of “three identical sets of bike stuff that he doesn’t even own that bike anymore” and his conduct of going through the house to the garage to retrieve components rather than opening the garage door. In Mr. Stewart’s words, he “got out of there.”
9At trial, the defence challenged Mr. Stewart’s credibility on a number of bases, including the false receipt he requested from the Bakos brothers for his purchase of the motorcycle, his filing of a false affidavit to further registration of his ownership and his challenged explanation of losing his wallet over the winter months. There was no issue at trial that Mr. Stewart told lies on earlier occasions. It was the defence position that as a result Mr. Stewart’s evidence was unreliable and that it had been Mr. Stewart who installed the stolen components on the motorcycle after he had purchased it from the Bakos brothers.
10The trial was brief and uncomplicated. The evidence took less than two days. It began at approximately 3:00 p.m. on Monday afternoon and ended by the lunch recess on Wednesday. Counsel engaged in lengthy pre-charge discussions with the trial judge on Wednesday and part of Thursday, during which they reached a general agreement on the contents of the charge. Counsel addressed the jury later on Thursday. The trial judge then charged the jury. The jury retired to consider its verdict on Friday at 11:41 a.m. There were no objections to the charge and the jury asked no questions. The jury returned with its verdict at 4:15 p.m.
11I will deal with each of the appellants’ challenges in turn.
CONVICTION APPEAL
12Before discussing the specific challenges to the trial judge’s charge, it is helpful to put those challenges in context. The trial judge explained to the jury in clear terms the essential elements that the Crown was required to prove. The trial, and defence counsels’ addresses, focused on whether the Crown had proven that the appellants possessed the stolen components and had incorporated them into the Stewart motorcycle. Since it was the defence position that Mr. Stewart was an incorrigible liar whose evidence could not be believed and that Mr. Stewart had the stolen components incorporated into his motorcycle after he purchased it from the appellants, it would have been clear to the members of the jury that they were required to make factual determinations about the history of the stolen components and the timing of their incorporation into the Stewart motorcycle.
13The appellants now challenge the trial judge’s instructions on various issues. In considering these challenges, I observe that both defence counsel at trial were content with the charge. Thus, it appears that these issues, raised for the first time on appeal, did not concern trial counsel and that trial counsel did not see the charge as compromising trial fairness in any way.
14Charges should not be parsed, but read as a whole. They must also be considered in the context of the factual issues raised in the trial and the law related to those issues. In this case, the trial judge instructed the jury that if they found that the appellants were not in possession of the Dennis components, they were required to acquit the appellants. The jury was provided with decision trees painstakingly reviewed with counsel, which took the jury through the steps of the required decision-making process. Those decision trees were essentially the same as those set out in Watt’s Manual of Criminal Jury Instructions (Toronto: Thomson Canada Limited, 2005), at pp. 654-55.
15In addition, the jury instructions given by the trial judge were tailored to the specific requests of counsel. For example, they included the core defence position that the appellants never had possession of the stolen components and their position that, if the components were stolen, which they denied, it was Mr. Stewart who had incorporated them into his motorcycle.
16The trial judge told the jury that his instructions on recent possession had no application unless the jury first concluded that the appellants had been in possession of the stolen components. He correctly explained the inference the jury could draw, emphasizing that the jury first had to determine that the appellants’ possession was recent before they could choose whether to exercise their discretion to draw the available inference. Later in the charge, just prior to the jury’s deliberations, the trial judge reminded the jury that the defence took the position the parts were not stolen and that, if they were stolen, they were added to the motorcycle by Stewart after its purchase.
17The Crown argued that the circumstantial evidence given to the jury suggested that, working in concert, the appellants sold the Stewart motorcycle complete with stolen components and that the appellants’ conduct was such that the jury could reasonably conclude that the appellants knew the components were stolen. The Crown also argued that the condition of the tires suggested that the Stewart bike had been used over the intervening months for racing, an activity denied by each of Mr. Chinery, Mr. Dennis and Mr. Stewart.
18The trial judge told the jury to consider all the evidence, including the appellants’ conduct and what they said and did not say, in determining the appellants’ state of mind. That evidence included the appellants’ purchase of the damaged Chinery motorcycle for cash, the theft of the Dennis motorcycle, the sale of the motorcycle to Stewart, the falsification of the receipt, the failure of the appellants to transfer the Chinery motorcycle to their name, the VIN number of the Stewart motorcycle that matched that of the Chinery motorcycle, the absence of a Federal Certification label, the identification of specific components of the Dennis motorcycle in the Stewart rebuilt motorcycle, the failure of the appellants to obtain a rebuilt title, and Gus Bakos’ conduct in dealing in motorcycle parts, including the apparent concealment of the contents of the garage. Irrespective of the now challenged aspects of the trial judge’s charge, this was ample evidence upon which the jury could conclude that the Crown had proven its case beyond a reasonable doubt.
19On appeal, the appellants challenge the wording of two specific parts of the trial judge’s instructions and argue that two other issues ought to have been addressed by the trial judge.
20First, the charge is challenged on the basis that the instruction regarding recent possession failed to provide the criteria from which the jury could establish the third element required for application of the doctrine: “recentness”. On the issue of how “recency” is to be determined, it is important to note that both defence counsel agreed at the pre-charge conference, if the jury attributed possession to the appellants, that the doctrine of recent possession would apply, that four plus months was within the range to qualify as “recent”, and that whether that period actually qualified was a question of fact for the jury to decide.
21In support of their argument, the appellants rely on Saieva v. The Queen (1982), 1982 51 (SCC), 68 C.C.C. (2d) 97, in which the Supreme Court of Canada considered “recency” on the basis of the relevant factors, including the rareness of the object, the readiness with which it is likely to pass from hand to hand, its transferability and its ease of identification. However, Saieva involved different circumstances and raised different issues than those present in this case. Moreover, the theft in Saieva could have occurred 50 to 55 weeks before the possession. Also in Saieva, there was no evidence about the date of theft and, in order to establish a date, it was necessary to consider “intricate facts” about how the stolen property was used before the theft.
22In this case, there was no dispute about when and where the theft occurred. Here, the possession of the stolen components by the appellants was alleged to be within four and a half months of the theft. The date when the components came into Mr. Stewart’s possession was also clear. Indeed, the gap between the theft and the appellants’ possession is shorter than the four plus months described because the appellants must have had the components at an earlier time in order to incorporate them into the Stewart motorcycle and advertise it for sale.
23In any event, while Saieva required the trial judge to provide the jury with the criteria for determining “recency”, in my view those criteria were adequately delivered to the jury in this case when the charge is considered as a whole. The jury had extensive evidence about the Chinery sale, the Dennis theft, the amalgamation of the two motorcycles into the Stewart motorcycle, the possible use made of the Dennis motorcycle in the summer of 2004 and the appellants’ possession of the components for a period of time before the sale to Stewart.
24The nature of the issues in this trial and the components of the offences were clear to the jury. The factual issues and the applicable law were reviewed in detail in the trial judge’s charge. This was not a complicated trial requiring a detailed explanation of “recent”: see also Watt at pp. 649-58. Further, in my view, the Crown was not compelled, as suggested in oral argument, to call expert evidence, if such evidence was available, on the transferability in practice of stolen motorcycle components when taken by a dealer for inclusion in a rebuilt motorcycle. I would not give effect to this ground of appeal.
25Second, the appellant challenges the trial judge’s instruction to the jury regarding wilful blindness. This aspect of the charge was also discussed in the pre-charge conference and no objection was taken after the charge. On this issue, the trial judge correctly charged the jury when he described wilful blindness as comprising aroused suspicions on the part of the appellants and deliberate omission to make further inquiries. However, the appellants argue that the trial judge erred earlier in the same paragraph when he described wilful blindness as “good reason to believe the property was stolen”. In my view, it would have been better if the trial judge had not alluded to one element of wilful blindness, suspicion, without connecting it to the second element, a conscious decision not to make inquiries. Nonetheless, immediately afterwards, the trial judge correctly explained the two components. Accordingly, reading the paragraph as a whole, the jury would have understood the two components required to establish wilful blindness.
26The appellants also argue that there were no factual underpinnings for a wilful blindness instruction. No specific underpinnings were recited by the trial judge; however, he did tell the jury that “if you are satisfied beyond a reasonable doubt that the accused knew the property was stolen, this essential element has been proven.” Wilful blindness, like recent possession, is a direction to the jury to exercise their common sense in drawing reasonable inferences from the available evidence. In the case of wilful blindness, an inference can be drawn that the person must have been suspicious, yet deliberately chose to ignore the provenance of the object at issue.
27In this case, irrespective of any application of the term wilful blindness, there was ample evidence from which the jury could infer the appellants’ knowledge that the components they inserted into the Stewart motorcycle were stolen. That evidence included the appellants’ failure to document the transfer of the motorcycle, their failure to obtain a rebuilt title from the Ministry of Transportation, and their lack of response to Mr. Stewart’s pleas for assistance with transferring the ownership. I would not give effect to this ground of appeal.
28Third, the appellants argue that the trial judge was obliged to exercise his discretion to give a Vetrovec warning regarding Mr. Stewart’s evidence. Apart from the fact that no such warning was requested, in my view, the trial judge repeatedly and adequately warned the jury about Mr. Stewart’s credibility, including his lies about the purchase price of the motorcycle, the lies contained in his affidavit, and his prevarication about the loss of his wallet. Indeed, this case was essentially about Mr. Stewart’s credibility. This would have been clearly understood by the jury. There was no need for a specific Vetrovec warning.
29Fourth, the appellants argue that the trial judge instructed the jury about after-the-fact conduct and that his charge was inadequate in light of the omission of an instruction regarding innocent explanation. However, while the trial judge referred to the appellants’ failure to assist with the registration and Gus Bakos’ conduct on Mr. Stewart’s return visit, he did so as one piece of the whole of the evidence. At its highest, the trial judge instructed the jury to use their common sense in looking at all the evidence by considering all that was said and not said and all that was done and not done in relation to this transaction both before and after the sale of the motorcycle. In the circumstances of this case, a specific caution was not necessary. I also note that the defence requested no specific instruction and raised no objection to the charge given to the jury. I would not give effect to this ground of appeal.
30For these reasons, I would dismiss the conviction appeal.
SENTENCE APPEAL
31I am not persuaded that the conditional sentences were demonstrably unfit or that the trial judge made any error in principle or took into account any improper factors in arriving either at the sentences or at the restitution order. Indeed, in my view, the sentences were at the low end of the range having regard to the offences and the circumstances of the offenders.
32Accordingly, while I would grant leave to appeal sentence, I would also dismiss the sentence appeal.
RELEASED: “RPA” “S.E. Lang J.A.”
October 16, 2008 “I agree Robert P. Armstrong J.A.”
“I agree G. Epstein J.A.”
