Court of Appeal for Ontario
Rosenberg, Gillese and Hoy JJ.A.
Between
Her Majesty the Queen
Respondent
and
Paramjit Bains
Appellant
Counsel:
R. Graham Zoppi and Mark Halfyard, for the appellant
Catherine Mullaly, for the respondent
Heard: April 18, 2012
On appeal from the conviction entered on April 17, 2009 and the sentence imposed on May 7, 2009 by Justice J. Elliott Allen of the Ontario Court of Justice, sitting without a jury.
Hoy J.A.:
1The appellant, Paramjit Bains, was convicted of possession of stolen property over $5,000. He does not dispute that he was in possession of a quantity of stolen refrigerators. At issue on this appeal is the trial judge’s conclusion that the appellant knew the refrigerators were stolen.
2The appellant submits that the trial judge’s conclusion that he knew the refrigerators were stolen, and his resulting conviction, depended on a misapprehension of the evidence, namely that the fridges were delivered and paid for in the middle of the night when the evidence established that payment and delivery occurred during regular business hours.
3For the reasons that follow, I would allow the appeal, set aside the conviction and order a new trial.
The Background
4During the weekend of March 3-4, 2007, 200 specialty refrigerators intended for a promotional campaign by Labatt Breweries were stolen off the back of two transport trucks in Mississauga. The face of the fridges was customized with a large image of a beer bottle and “Bud Light” and National Hockey League logos.
5Along with the fridges, the thieves also stole a “skid steer” from the trucks that contained an electronic tracking device. On March 21, 2007, this led the police to the strip mall where the appellant operated a meat store.
6The police found one of the fridges in the appellant’s office. They found six more fridges a few units down, in the warehouse area at the rear of Mr. and Mrs. Bhambra’s grocery store.
7Two photos of fridges were found on the appellant’s cell phone.
8Mr. Bhambra testified that the appellant told him that he had bought some fridges “really cheap”, was going to make money selling them, and needed a place to store them. Mr. Bhambra agreed to accommodate the appellant by storing the fridges. The appellant gave him $3,000 in cash to pay for the fridges when delivered. Mr. Bhambra subsequently accepted delivery of about 25 fridges, and paid the men who made the delivery. Mr. Bhambra testified that the fridges were delivered “approximately seven, ten, fifteen days” before the police found the six fridges in the warehouse at the rear of his store on March 21, 2007. Mr. Bhambra did not sign for the fridges when they were delivered, obtain a receipt for the payment, or give or receive any documentation.
9Mr. Gunn, the owner of a restaurant in the strip mall, testified that he had seen someone wheeling a fridge on a cart and inferred it was coming from the Bhambras’s grocery store. “Maybe the day before” that, he had also seen the appellant burning boxes behind his store. Mr. Gunn also testified that the appellant had offered to sell him a fridge.
The trial judge’s reasons
10The trial judge found as follows with respect to the appellant’s state of knowledge:
With respect to his state of knowledge, the behaviour around these fridges; keeping them somewhere other than his property, paying for them with cash in the middle of the night through a third party, the absence of any paperwork, attempting to sell a fridge to Mr. Gunn, and so on, in my view are inconsistent with any conclusion other than that he knew that these refrigerators had been obtained by the commission of a criminal offence. One can tell simply by looking at the fridges that they are a special purpose item. We understand from the agreed facts that they were intended for promotion by [Labatt’s], and they are not the sort of thing that normally would be bought and sold in some sort of secondary market legitimately.
We also have the time line here which again is a piece of evidence which may not be conclusive, but in my view suggests, as well, knowledge as a result of the combination of the unique nature of the goods and the difficulties around transportation and so on, and the temporal connection to the hijacking of the cargo. All of those factors, in my mind, add up to proof beyond a reasonable doubt, both that the possession that he had was a possession knowing that the property was obtained by the commission of [a] crime. And on that basis, there will be a conviction. [Emphasis added.]
The test: Morrissey and Lohrer
11In R. v. Morrissey (1995), 1995 3498 (ON CA), 22 O.R. (3d) 514 (C.A.), at p. 541, Doherty J.A. wrote:
Where a trial judge is mistaken as to the substance of material parts of the evidence and those errors play an essential part in the reasoning process resulting in a conviction then, in my view, the accused’s conviction is not based exclusively on the evidence and is not a “true” verdict. Convictions resting on a misapprehension of the substance of the evidence adduced at trial sit on no firmer foundation than those based on information derived from sources extraneous to the trial. If an appellant can demonstrate that the conviction depends on a misapprehension of the evidence then, in my view, it must follow that the appellant has not received a fair trial, and was the victim of a miscarriage of justice. This is so even if the evidence, as actually adduced at trial, was capable of supporting a conviction.
12Binnie J., writing for the Supreme Court in R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, agreed with Doherty J.A.’s observations in Morrissey. At para. 1, he noted that, where the Morrissey test is made out, an accused appellant is not also required to show that the verdict cannot be supported by the evidence. At para. 2, he commented:
13Morrissey, it should be emphasized, describes a stringent standard. The misapprehension of the evidence must go to the substance rather than to the detail. It must be material rather than peripheral to the reasoning of the trial judge … the errors thus identified must play an essential part not just in the narrative of the judgment but “in the reasoning process resulting in a conviction”.
14At paras. 7 and 8, Binnie J. indicated that the test can also be phrased in the manner stated in the reasons of Rothman J.A., dissenting in the result, in the Quebec Court of Appeal in R. v. C. (R.) (1993), 1993 142 (SCC), 81 C.C.C. (3d) 417, and adopted by a majority of the Supreme Court in [1993] 2 S.C.R. 226: Did the trial judge err in his appreciation of the evidence in a manner that could have affected the outcome?
15In R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, the Supreme Court confirmed the Lohrer test. LeBel J., at para. 56, writing for three of the majority judges, described the standard in Morrissey and Lohrer as follows:
In other words, an error in the assessment of the evidence will amount to a miscarriage of justice only if striking it from the judgment would leave the trial judge’s reasoning on which the conviction is based on unsteady ground.
Did the trial judge misapprehend the evidence?
16I agree with the appellant that the trial judge misapprehended the evidence regarding when Mr. Bhambra took delivery of the 25 fridges.
17No witness testified that the delivery occurred during the middle of the night. Mr. Bhambra testified that he was in the grocery store at the time, and when the truck arrived he thought it was one of his regular grocery deliveries. Mrs. Bhambra testified that she worked at the store on weekdays, for ten to twelve hours a day, “at the front only”. She testified that she did not see the fridges unloaded, but later on when she went to the warehouse area at the back she saw them.
18There was no evidence that regular grocery deliveries occur in the middle of the night, or that the Bhambra’s store operated throughout the night. From the evidence, it appears that the delivery occurred during regular business hours.
Is the Morrissey/Lohrer test met?
19In my view, the stringent test set out in Morrissey and Lohrer is met in this case.
20The trial judge inferred that the appellant had knowledge that the fridges were stolen based on circumstantial evidence. The trial judge specifically referred to the time of delivery in his reasons as a factor leading to his finding of guilt. He concluded that all of the factors enumerated in the trial judge’s reasons “added up” to proof beyond a reasonable doubt that the appellant knew the property was obtained by the commission of a crime.
21From this, it is clear that the time of delivery was material in his reasoning process. The time of delivery was not simply part of the narrative. The trial judge’s misapprehension of the evidence as to the time of delivery could have coloured his evaluation of the other circumstantial evidence and affected his conclusion. As counsel for the appellant argues, transactions that occur in the middle of the night raise serious concerns about their legitimacy. Objectively, the time of delivery is a significant factor.
22It is, in my view, helpful to contrast this case with LeBel J.’s analysis of the fact situation in Sinclair. In Sinclair, the accused was convicted of manslaughter. The trial judge’s finding of guilt also rested on circumstantial evidence. It was argued that the trial judge had treated the Crown’s theory that Mr. Sinclair and two others had planned to go out together to commit a robbery as evidence, and that misapprehension underpinned the trial judge’s conclusion that Mr. Sinclair was later at the scene of the crime. A majority of the judges concluded that the trial judge had not misapprehended the evidence, and Mr. Sinclair’s conviction was restored.
23LeBel J., writing for three of the majority judges, went on to conclude that, even if the trial judge had misapprehended the evidence, the test in Lohrer was not met. He wrote, at para. 57:
In light of the circumstantial evidence the trial judge accepted, it cannot seriously be doubted that she would nonetheless have found that Mr. Sinclair was at the crime scene at the time of the assault on Mr. Lecours. In my opinion, if the trial judge could in fact be assumed to have accepted the “evidence” of a plan to commit a robbery, that acceptance would clearly have been incidental to her finding that Mr. Sinclair was at the crime scene. How little importance she attached to the alleged plan to commit a robbery should also come as no surprise: Mr. Sinclar was charged with manslaughter, not with conspiracy to commit robbery. Although evidence of such a plan would likely have strengthened the inference that Mr. Sinclair and Mr. Pruden-Wilson had been “together throughout”, it did not need to be central to the trial judge’s reasoning, because it was not an element of the Crown’s burden.
24In this case, the importance that the trial judge ascribed to the time of delivery is signified by the specific reference to it in his reasons. It went directly to knowledge, and was an element of the Crown’s burden.
25As Binnie J. noted in Lohrer, it is not necessary for the appellant to show that the conviction could not be supported by the evidence. However, the fact that the trial judge might have come to the same inference on the other evidence adduced at trial warrants a new trial. I would accordingly set aside the appellant’s conviction and order a new trial.
“Alexandra Hoy J.A.”
“I agree M. Rosenberg J.A.”
Gillese J.A. (Dissenting):
26With respect, I disagree that the misapprehension of evidence in this case rises to the level necessary to set aside the conviction.
27As my colleague states, for a misapprehension of evidence to render a trial unfair such that the conviction must be set aside and a new trial ordered, the misapprehension must: (1) go to the substance, rather than the detail, of the evidence; and (2) play an essential part in the reasoning process that resulted in a conviction. As my colleague recognizes, this is a “stringent standard”.1
28In my view, neither prong of the test is met in this case.
29The misapprehension of evidence is the trial judge’s statement that the refrigerators were delivered to the Bhambras’ storage warehouse “in the middle of the night”, whereas the evidence is unclear when the delivery took place. As I read the reasons of the trial judge, the substance of the evidence relating to the delivery of the fridges is not the fact of its timing. Rather, the substance of the evidence is that: Mr. Bains arranged to have the fridges delivered and stored somewhere other than his own property (the Bhambras’ warehouse); he arranged to pay $3,000 in cash for the fridges; he did not make the payment himself but, instead, arranged to have a third party (Mr. Bhambras) make the payment; and, there was a complete absence of paperwork to record either the delivery of, or the payment for, the fridges.
30Accordingly, the timing of the delivery of the fridges is a matter going to the detail, rather than the substance, of the evidence. While my view on this point is based on a reading of the trial judge’s reasons for conviction, counsels’ closing submissions reinforce this view: neither mentions the timing of the delivery.
31Nor, in my view, did the misapprehension play an essential part in the trial judge’s reasoning process. At trial, it was conceded that the refrigerators had been stolen. Thus, the live issues were whether Mr. Bains had possession of the stolen refrigerators and, if so, whether he had knowledge that they were stolen.
32After setting out the findings which led him to conclude beyond a reasonable doubt that Mr. Bains was in possession of the refrigerators, the trial judge turned to the issue of knowledge. In concluding that Mr. Bains had the requisite knowledge, the trial judge relied on the following findings: Mr. Bains’ behaviour in respect of the fridges; his storage of the goods somewhere other than his property; payment for the fridges by cash and through a third party; the absence of any paperwork in relation to the purchase and delivery of the goods; Mr. Bains’ attempt to sell the refrigerators, an activity outside his normal business which was as the owner of a meat store; the unique and distinctive nature of the stolen goods which was obvious “simply by looking at them”; the difficulties involved in transporting that type of good; the temporal connection to the hijacking; and, the timing of the delivery of the fridges.
33It is important to note that the trial judge does not make the timing of the delivery a discrete finding of fact. Rather, the misapprehension as to timing is made in the course of the trial judge’s findings on the storage of, and payment for, the stolen goods. This point is perhaps best made by seeing where and how the trial judge makes the “in the middle of the night” statement when dealing with the issue of knowledge. The relevant paragraph can be found at p. 25 of the reasons. It reads as follows:
With respect to his [Mr. Bains] state of knowledge, the behaviour around these fridges; keeping them somewhere other than his property, paying for them with cash in the middle of the night through a third party, the absence of any paperwork, attempting to sell a fridge to Mr. Gunn, and so on, in my view are inconsistent with any conclusion other than that he knew that these refrigerators had been obtained by the commission of a criminal offence. Once can tell simply by looking at the fridges that they are a special purpose item. We understand from the agreed facts that there were intended for promotion by Molson’s, and they are not the sort of thing that normally would be bought and sold in some sort of secondary market legitimately. [Emphasis added]
34A comparison of the present case with Lohrer is of assistance when determining whether the misapprehension was essential to the trial judge’s reasoning.
35In Lohrer, the trial judge found that the victim’s life was “endangered” from the repeated blows that she had received. However, there was no medical evidence that the victim’s life was endangered. Nonetheless, the Supreme Court held that the trial judge had not “erred in his appreciation of the evidence in a manner that could have affected the outcome”. It agreed with the majority of the appeal court, which held that the judge had not misapprehended the evidence because “the fact is that a fracture injury ... is serious and can be life threatening”.
36In the present case, the trial judge stated that the fridges were paid for “in the middle of the night”, a statement that increases the apparently nefarious nature of the transaction. However, given that there was no clear evidence as to the timing of the delivery of the fridges, the fact is that the fridges could have been paid for in the middle of the night.
37Before setting aside a conviction based on the misapprehension of evidence, the reviewing court must be satisfied of the “centrality” 2 of the misapprehension of evidence to the trial judge’s reasoning process resulting in conviction. For the reasons given, I do not see that the trial judge’s misapprehension of evidence played a central or essential part in his reasoning process. That is, in my opinion, the trial judge did not err in his appreciation of the evidence in a manner that could have affected the outcome.
38Accordingly, I would dismiss the appeal.
Released: “MR” May 14, 2012 “E.E. Gillese J.A.”
