COURT OF APPEAL FOR ONTARIO
Gillese, Blair and Watt JJ.A.
BETWEEN:
Her Majesty the Queen
Respondent
and
David Michael Crothers
Appellant
AND BETWEEN:
Her Majesty the Queen
Respondent
and
D’Arcy Kelliher
Appellant
Michael Dineen for the appellant, David Michael Crothers
Robert Tomovski for the appellant, D’Arcy Kelliher
J.K. Stewart for the respondent
Heard and released orally: October 14, 2008
On appeal from the conviction entered on February 3, 2006 by Justice Robert F. Scott of the Superior Court of Justice.
ENDORSEMENT
1Crothers and Kelliher were convicted of offences relating to the theft of a large quantity of firearms from a house in Port Hope and their subsequent sale in St. Catharines. The burglary occurred at the home of Kelliher’s mother and step-father. Their convictions rested, in part, on the testimony of Cameron MacLean, an individual of unsavoury character. MacLean had been arrested in respect of the offences after being found with some of the stolen guns in his possession.
2Crothers testified in his own defence. He denied any involvement in the crimes but was disbelieved. Kelliher did not testify or offer evidence.
3Both Kelliher and Crothers appeal their convictions.
4After hearing from counsel for both appellants, the court found it unnecessary to call on the Crown.
I. The Crothers’ Appeal
5Counsel for Crothers submits that the trial judge erred in his:
a) application of W. (D.);
b) treatment of Crothers’ “alibi” evidence; and,
c) treatment of MacLean’s evidence.
1. The trial judge’s application of W. (D.)
6When concluding that part of his reasons in which he found Crothers’ guilty, the trial judge stated, “I do not believe the evidence of the appellant [Crothers] and therefore find him guilty.”
7Counsel for Crothers submits that this statement reflects two errors. First, he says that the statement shows that the trial judge never considered whether Crothers’ testimony raised a reasonable doubt or whether he was satisfied of Crothers’ guilt beyond a reasonable doubt based on the evidence as a whole. In other words, he submits the trial judge never considered the last two steps in the W. (D.) analysis.
8Second, he submits that use of the word “therefore” in the impugned statement shows that the trial judge used his disbelief of Crothers’ testimony as positive evidence of his guilt.
9We reject these arguments. It is unfortunate that the trial judge used language which suggests that he moved directly from disbelieving Crothers to a finding of guilt. However, despite the manner in which the trial judge expressed himself in that one instance, it is apparent from his reasons read as a whole that the trial judge understood and applied W.(D.) appropriately in ultimately concluding, on the whole of the evidence, that Crothers was guilty. Before making the impugned statement, the trial judge correctly instructed himself on the burden of proof with specific reference to the three-step process in W. (D.). He explained why he rejected Crothers’ evidence and it is apparent from the language used that it raised no reasonable doubt in his mind. He explained why he accepted MacLean’s evidence. In short, although he did not use the “magic incantation” of the language of W.(D.) after setting out its principles, it is apparent from reading his reasons as whole that he applied those principles.
2. The trial judge’s treatment of Crothers’ “alibi”
10Crothers testified that he did not commit the offences and had never been to Port Hope but, because of the passage of time, he could not remember where he was at the relevant time. Counsel for Crothers contends that the trial judge rejected Crothers’ evidence partly because he drew an adverse inference based on his belief that Crothers had offered, at trial, an alibi for his whereabouts at the time the offences were committed and he had not disclosed the “alibi” to the prosecution before trial.
11During the course of the trial, the trial judge did query whether Crothers was relying on an alibi. However, it is clear from his reasons that his disbelief in Crothers’ testimony was based on Crothers’ lack of credibility generally and not on any concern he may have had about non-disclosure of his whereabouts on the day in question.
3. The trial judge’s treatment of MacLean’s evidence
12Counsel for Crothers relied on his written submissions in relation to this ground of appeal. Based on his factum, his argument is that the trial judge exercised insufficient caution in accepting MacLean’s evidence, particularly as he failed to advert to MacLean’s admission of perjury.
13We do not accept this argument. The trial judge properly cautioned himself before accepting MacLean’s testimony. He listed a number of inconsistencies in MacLean’s testimony and demonstrated that he was fully aware of the issues affecting MacLean’s credibility and reliability. He treated MacLean’s evidence with appropriate caution. Furthermore, as the trial judge noted, there was ample other evidence which supported the substance of MacLean’s testimony. This evidence included testimony from other witnesses that established Kelliher’s familiarity with the premises broken into and his knowledge of the existence of a significant collection of firearms there. In addition there were Crothers’ inculpatory statements, the general pattern of phone calls established by the cell phone experts and the ill-will that existed between Kelliher and his step-father. Further, only weapons were taken in the burglary. The weapons that were stolen were the ones of which Kelliher had knowledge of their location; the only weapons that were not taken were those that had been moved without Kelliher’s knowledge.
II. The Kelliher Appeal
14Counsel for Kelliher made a preliminary argument based on joint culpability. In light of our disposition of the Crothers’ appeal, it is unnecessary to deal with this issue. He raised two additional issues.
15First, he argues that after the trial judge accepted MacLean’s evidence he jumped immediately to the conclusion that the case had been proven. We do not accept this argument. It is clear that the trial judge did not see the evidence of MacLean and Crothers as some type of contest in which choosing one necessitated rejection of the other.
16Next, counsel for Kelliher submits that the trial judge failed to given adequate reasons because he did not deal with all of the inconsistencies in MacLean’s evidence. For the reasons already given in relation to the MacLean evidence, we reject this submission. The trial judge dealt with the substance of the critical issue, namely MacLean’s credibility and the reliability of his evidence, in accordance with the dictates of the Supreme Court of Canada in R. v. R.E.M., 2008 SCC 51, at paras. 56 and following.
17Accordingly, the appeals are dismissed.
“E.E. Gillese J.A.”
“R.A. Blair J.A.”
“David Watt J.A.”