COURT OF APPEAL FOR ONTARIO
Weiler, Feldman and Armstrong JJ.A.
BETWEEN:
Her Majesty the Queen
Respondent
And
Keith Brian Tracey
Appellant
Peter Copeland, for the appellant
Keith Brian Tracey, in person
David Finley, for the respondent
Heard: April 19, 2010
On appeal from conviction by Justice Deborah Austin of the Ontario Court of Justice dated October 2, 2009.
E N D O R S E M E N T
1The appellant was found guilty of break, enter and theft of coins consisting of Canadian, American and British coins including one and two dollar Canadian coins (loonies and toonies) in coin wrappers. The appellant’s conviction appeal is based on an alleged misapprehension of the evidence by the trial judge. In her reasons for judgment, the trial judge made it clear that she understood that the two coin roll papers found in the appellant’s motel room were from the loonies and toonies that were stolen. Trial counsel alerted the trial judge that she had misapprehended the evidence and that the two roll papers found were unused. Although there was no evidence on the point, the appellant asks this court to view the actual exhibit for the purpose of making the determination that the rolls are unused and therefore, that the trial judge misapprehended the evidence.
2The appellant relies on the reasons of the trial judge where she made it clear that but for the used coin roll papers as well as the appellant’s spending of loonies and toonies after the theft, she would not have found the other evidence sufficient to prove guilt beyond a reasonable doubt.
3We do not accept the appellant’s submissions. First, there is no evidence in the record on which to base a finding that the trial judge erred in her understanding that the coin roll papers found in the appellant’s motel room had held the stolen coins. Nor is this apparent merely by looking at the exhibit.
4However, even if such an error was made, it is not sufficient to affect the verdict in this case. On the record, the evidence of guilt was overwhelming and cried out for an explanation. On appeal, we are entitled to take into account the fact that the appellant did not testify. Besides the factors that the trial judge listed on page 10 of her reasons that were evidence proving the guilt of the appellant is the critical fact that one of the witnesses saw the thief go from the home to the motel where the appellant was found with coins from the above nations. This together with all the other evidence including the appellant’s spending of loonies and toonies right after the theft of loonies and toonies amounts to proof beyond a reasonable doubt that the appellant committed the offence.
5The appeal is therefore dismissed.
Signed: “Karen M. Weiler J.A.”
“ K. Feldman J.A.”
“Robert P. Armstrong J.A.”
