Court of Appeal for Ontario
Date: November 21, 2019
Docket: C65661 & C65729
Judges: Simmons, Watt and Miller JJ.A.
Docket: C65661
Between
Her Majesty the Queen Respondent
and
Haldane Smithen-Davis Appellant
Docket: C65729
And Between
Her Majesty the Queen Respondent
and
Jason Hamilton Appellant
Counsel
Monte MacGregor, for the appellant Haldane Smithen-Davis (C65661)
Maija Martin and David Reeve, for the appellant Jason Hamilton (C65729)
Megan Petrie, for the respondent (C65661 & C65729)
Heard: October 24, 2019
On appeal from: the convictions entered on March 2, 2018, with reasons reported at 2018 ONCJ 140, and the sentences imposed on July 19, 2018, with reasons reported at 2018 ONCJ 494, by Justice G. Paul Renwick of the Ontario Court of Justice.
By the Court:
[1] The appellants, Haldane Smithen-Davis ("HSD") and Jason Hamilton ("JH") were convicted of breaking and entering with intent to commit an indictable offence arising from what was essentially a home invasion. They were each sentenced to nine years' imprisonment less credit for presentence custody. They appeal against conviction and seek leave to appeal sentence. At the conclusion of the appeal hearing, for reasons to follow, we dismissed the conviction appeals and allowed the sentence appeals, in part. These are our reasons.
Background
[2] Three men broke into a Mississauga home shortly after midnight on December 7, 2012. A struggle ensued with the male homeowner. The female homeowner called 911. One of the invaders was shot and killed by the male homeowner during the struggle. The two remaining perpetrators fled before the police arrived. The sole issue at trial was identity. The Crown's case was entirely circumstantial. It consisted of three agreed statements of fact, several photographs, and testimony from three witnesses. Neither appellant testified.
[3] The Crown relied primarily on the following evidence and inferences to submit that the appellants were the two perpetrators who fled from the home:
According to agreed facts, on December 7, 2012 the deceased perpetrator, Ibrahim Abukar (IA) and two other men entered the victims' home. At the time, IA was armed with a firearm and the male homeowner believed the other two perpetrators were also armed, one with a handgun and the other with a boxcutter or knife.
DNA analysis linked HSD to a pair of gloves found on a step outside the side door of the home (which was the site of the break-in) and JH to a pair of canvas shoes found near the break-in site (one inside the side door and one on a walkway between the front of the home and the side door). However, both the gloves and the shoes contained DNA profiles of other individuals.
Cell phone records and cell phone tower evidence demonstrated HSD's cell phone was in the vicinity of the victims' home about 30 minutes before the break-in.
Blackberry Messenger (BBM) text messages recovered from IA's Blackberry demonstrated, among other things, that IA and two other individuals, one with a user/profile name J…. and the other with a user/profile name Logix 3 planned to rendezvous shortly before the break-in.
Various pieces of circumstantial evidence suggested that HSD was J…. and JH was Logix 3.
According to the agreed facts, on December 13, 2012 HSD purchased a ticket to leave Canada on December 16, 2012 (just over a week after the break-in) and despite having a return ticket for January 14, 2013, did not return until he was extradited in the spring of 2016.
[4] A preliminary issue at trial was whether the statements contained in the BBM messages were admissible for the truth of their content. In assessing that issue in relation to each appellant, the trial judge determined that HSD was J…. and that JH was Logix 3.
[5] Relying on the present intentions exception to the hearsay rule in relation to some of the messages from IA and J….; the party admissions exception in relation to some of the messages from J….; and the co-conspirator's exception to the hearsay rule in relation to some of the messages from IA, J…. and Logix 3, the trial judge ruled that the messages were admissible for the truth of their content.
[6] Based on a review of the whole of the evidence, the trial judge found the appellants guilty.
HSD's Appeals
(a) HSD's Conviction Appeal
[7] HSD argues his conviction was unreasonable. He points to alleged weaknesses in the individual pieces of circumstantial evidence on which the trial judge relied and argues that overall, the trial judge erred by failing to account for reasonably available alternatives in what was an entirely circumstantial case. His submissions include the following:
i) The DNA evidence
[8] HSD submits that considered overall, the DNA evidence provided little or no support for his participation in the home invasion for the following reasons:
Both gloves contained DNA profiles of other individuals and his DNA profile was found on only one of the gloves.
The DNA analysis provided no insight into when HSD, or anyone else, might have been wearing the gloves.
Both gloves were found outside the home; accordingly, the DNA analysis did not place the wearer inside the home at the time of the break-in.
Even if HSD was wearing the gloves on December 7, there were no descriptions of the three people who entered the home, no evidence that only three people were at the home around the time of the break-in, no evidence that HSD entered the home and no evidence that anyone outside the home actively participated in the break-in (for example, as a lookout).
ii) The cell phone tower evidence
[9] HSD submits the cell phone tower evidence of a call between HSD's cell phone and his wife's phone 30 minutes before the break-in involved a significant gap in time before the break-in and could not conclusively establish which cell phone tower was used. Accordingly, this evidence left open the possibility of alternate points of proximity.
[10] Although HSD acknowledges that, when combined with the DNA evidence, the cell phone tower evidence created a possibility of involvement, he submits that evidence was far from conclusive and was open to other inferences.
iii) Identification of HSD as the user of the BBM profile/username J….
[11] The trial judge concluded that HSD used the Blackberry with the profile/username J…. based on a number of factors. This conclusion, together with relevant exceptions to the hearsay rule, allowed the trial judge to use the content of the BBM text messages, along with the remainder of the evidence, to connect HSD to the break-in.
[12] HSD submits the factors on which the trial judge relied to find he (HSD) used the Blackberry with the profile/username J…. were speculative, of minimal value, illogical, or based on evidence that was not before the court. The finding that HSD used the J…. profile/username was therefore unreasonable. The remaining evidence against him was not sufficient to support a conviction. The factors relied on by the trial judge, and HSD's complaints about each, include the following:
Evidence that HSD was known by others as J or Jason: HSD submits this evidence was of little or no value, at least in part because of other possibilities the trial judge failed to consider. First, two other people involved in the case were also named Jason, including JH. Second, since IA's contact list was not produced it was not clear who IA associated with J…. or how many people IA knew who might fit that profile/username.
Evidence that HSD used a pseudonym, Jason Smith; while using an alias is not inherently suspicious, it can assist people in evading law enforcement: HSD submits that using a pseudonym does not connect him to J…., and that there are many reasons for using an alias.
The four dots in J…. represent the four letters a-s-o-n: HSD submits this was speculation and points out that many other five-letter names begin with J (for example, Jamie, Jacob, Jerry, and Jimmy).
Evidence that HSD was known to have "random" phone numbers, which supported an inference that he had more than one phone on December 6 [i.e., the cell phone used to call his wife's phone and the Blackberry with the profile/username J….]: HSD submits this factor was speculative and, in any event, did not connect him to J….
Evidence that like J…., HSD was known to have a Blackberry: HSD submits this evidence did not connect him to J….
HSD knew IA and therefore was in the pool of people who could have sent him text messages leading up to the break-in: HSD submits this factor was essentially meaningless because there was no evidence about how many people knew IA.
HSD used the Blackberry with the profile/username J…. to communicate with IA about going to a party held in early December [at the Troika Lounge]: HSD submits this reasoning was illogical and that it put the cart before the horse by using the conclusion sought to assess whether the appellant was the author of the BBM text messages. Further, there were over 100 people at the early December party. The messages from J…. could have been sent by any of these party attendees. The judge's conclusion also relied on a direction by J…. to IA to wear what was essentially generic clothing (jeans and a sweater).
HSD discussed IA's death within days after it occurred: HSD submits this could not connect him to J…., because it established only that he knew IA.
HSD was aware IA was shot during a break-in: HSD submits there was no evidence he was aware of details that could be known only by a perpetrator.
The BBM text messages between IA and J…. leading up to December 7 made it clear they were planning something. Within two hours of their last communication, IA was involved in the break-in with two other males, one of whom the judge inferred was using the Blackberry as J….: HSD submits the trial judge's conclusion that HSD was J…. at this stage of his reasoning was premature, and that it was illogical and improper to use that conclusion as part of his assessment of the identity issue.
HSD's DNA was found in one of the gloves found at the scene of the offence, placing HSD in the pool of persons who may have used the Blackberry with the profile/username J…. to plan something for December 7: HSD submits the DNA evidence adds little probative force to the identity analysis. The fact that six DNA profiles were found on the gloves does not rule out the possibility that another individual was using the J…. profile/username.
[13] HSD relies on R. v. Youssef, 2018 ONCA 16, 428 D.L.R. (4th) 612, aff'd 2018 SCC 49, [2018] 3 S.C.R. 259, to argue that the circumstantial evidence in this case was not sufficient to support a finding that HSD participated in the break-in. In Youssef, two DNA deposits were linked to the accused: one on a pocket knife left at the scene of a bank robbery by the sole culprit and the other on a black t-shirt found in the stolen getaway car, discovered in flames within 30 minutes of the robbery. The critical feature in Youssef was the presence of DNA deposits in two key locations. It was this factor that linked Youssef to the crime.
[14] Here, says HSD, the single item of DNA evidence is of little probative value. Moreover, the other factors the trial judge relied on do not provide a sufficient additional link to connect HSD to the break-in. Even if they create the possibility HSD was a participant, they do not eliminate reasonable alternative inferences.
[15] We do not accept HSD's submissions.
[16] The trial judge's reasons demonstrate he was acutely aware of the limited value of particular items of evidence standing alone and that his task was to consider the cumulative effect of the whole body of evidence rather than to examine each piece of evidence in isolation.
[17] The trial judge's finding that HSD used the Blackberry with the profile/username J…. to communicate with IA concerning the early December party at the Troika Lounge was amply supported by the evidence. There was unchallenged evidence that HSD used the pseudonym "J" or "Jason". Like J…., HSD was known to have a Blackberry and to communicate using BBM messages. HSD knew IA. The party's organizer, DG, testified that he knew IA through HSD (known to DG as "J"). On the day that IA and J…. communicated about meeting at the Troika Lounge, IA sent J…. a message "[h]e sent me the text", immediately followed by another message, "Troika lounge", from which the trial judge inferred that DG had texted IA. HSD, IA and DG were later photographed together at the Troika Lounge.
[18] Along with the other factors identified by the trial judge, this finding created a strong inference that HSD was J…. and the author of the text messages sent by J…. to IA and Logix 3 leading up to the break-in. The content of the text messages, the cell tower evidence, and the DNA evidence amply supported the trial judge's conclusion that the only reasonable inference was that HSD participated in the break-in.
[19] We specifically reject HSD's argument that the trial judge erred by failing to properly account for reasonably available alternative inferences. The question of what constitutes a reasonable alternative inference is uniquely for the trier of fact: "[i]t is still fundamentally for the trier of fact to decide if any proposed alternative way of looking at the case is reasonable enough to raise a doubt": R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 56. The trial judge reviewed HSD's arguments concerning alternative inferences and rejected them. We see no basis on which to interfere.
(b) HSD's Sentence Appeal
[20] Given the circumstances of the offence, the trial judge considered that a ten-year penitentiary sentence was appropriate. However, he reduced the sentence for each appellant by one year to give effect to what he referred to as the first penitentiary sentence principle. He gave HSD three months' credit for presentence custody and therefore imposed a total sentence of eight years, nine months' imprisonment.
[21] HSD argues that the trial judge erred in relying on knowledge that IA possessed a firearm as an aggravating factor, in failing to give sufficient effect to the first penitentiary sentence principle, and in imposing a sentence that was harsh and excessive in all the circumstances.
[22] We reject HSD's submissions.
[23] Although there was no direct evidence HSD knew IA had a firearm, the inference of knowledge was amply supported by the evidence. The agreed facts disclosed the presence of $200,000 cash and an unregistered stolen firearm in the victims' home. The text messages exchanged between the parties demonstrate they met in advance and planned what was intended to be a home invasion style robbery. The timing of the events (shortly after midnight) and the presence of vehicles at the home made it likely the occupants would be present. We agree with the Crown that it strains credulity to suggest HSD was not armed himself or, at the very least, aware that IA had a firearm.
[24] As for the first penitentiary sentence principle, the trial judge gave detailed reasons acknowledging the principle and HSD's prospects for rehabilitation. HSD was neither a youthful nor a first offender. We see no error in the trial judge's approach to this issue.
[25] In our view, the sentence imposed was entirely fit. This case involved an armed home invasion in the middle of the night in which one of the perpetrators was, as planned, disguised as a police officer. The home was occupied by two adults and two very young children. Multiple gunshots were fired, resulting in one of the perpetrators lying dead in front of the family's Christmas tree. The circumstances and consequences of the offence demanded a significant penitentiary sentence.
[26] With the Crown's consent, we set aside the victim fine surcharge that was imposed but otherwise dismissed the sentence appeal.
JH's Appeals
(a) JH's Conviction Appeal
[27] JH raises three issues on his conviction appeal:
(i) the trial judge erred by taking improper judicial notice of and relying on facts that were not introduced in evidence, specifically that people do not tend to change their cell phone numbers, to find that JH was Logix 3 (the "judicial notice error");
(ii) the trial judge erred in relying on the text messages of IA and Logix 3 to find that JH was Logix 3 (the Evans error); and
(iii) the trial judge erred in finding that JH was a probable member of the conspiracy under the Carter test and therefore erred in admitting the text message evidence against him for the truth of its content.
i) The Judicial Notice Error
[28] After finding that HSD used the Blackberry with the profile/username J…., and that his text messages were admissible against him and any other probable conspiracy member for the truth of their content, the trial judge turned to the admissibility of text messages involving Logix 3.
[29] The Blackberry containing the profile/username Logix 3 exchanged text messages with IA and J…. on December 5 and 6, 2012. The Crown submitted that JH was Logix 3 and that Logix 3's messages were admissible for the truth of their content based on the party admissions exception to the hearsay rule. The trial judge rejected that submission because the messages themselves revealed almost nothing about the user of the Blackberry with that profile/username.
[30] Instead, to determine whether JH was Logix 3, the trial judge first looked to the following evidence arising from the agreed facts:
In April 2014 the police learned that the Logix 3 Blackberry was registered to a Willy Rufford of 1721 Eglinton Avenue West, Toronto; however, they did not learn the date of this registration.
In 2016, the police learned that the alternate contact number provided in the Rufford registration was formerly associated with a business JH previously operated at an address "strikingly" similar to Rufford's address: 1712 Eglinton Avenue West, Toronto.
[31] The trial judge rejected JH's submission that there was no current evidence linking JH to the Logix 3 Blackberry for four reasons.
[32] First, the trial judge noted that the likelihood was infinitesimally small that someone other than JH was using the Logix 3 Blackberry in 2012 when the 2014 registered user's alternate contact number was a number JH had used, at one time, for his business – and his business happened to have an address that matched the Rufford address if the last two numbers were transposed.
[33] The trial judge then commented that this analysis was strengthened by common sense in that there is an almost proprietary aspect to cellular telephone numbers. He reasoned that although people may regularly change their cell phones, they do not tend to change their cell phone numbers, even over extended periods of time. The appellant objects to these comments, arguing there was no evidence to support them and that this is not a matter of which judicial notice can be taken.
[34] Even assuming the trial judge was not entitled to make this common sense observation because it violated the principles involving judicial notice, we do not accept this submission.
[35] As we have said, the trial judge gave four reasons for rejecting the defence complaint about lack of currency. Read fairly, the impugned statements were but a superfluous comment appended to his first reason premised on the unlikelihood of coincidence. Unlike the four reasons mentioned above, the trial judge did not give this comment a number. The first reason stands on its own without the comment – and when combined with the remaining three reasons justified the trial judge's rejection of the defence complaint about the lack of current information.
[36] The trial judge's second and third reasons related to JH's then current association with the term "Logix". The second reason was the admitted fact that JH then maintained an internet presence under the name "Jay J Logix". While the admission stipulated that innumerable other profiles also contained reference to the term "Logix", the trial judge viewed it as some evidence tending to make it more likely that JH used the phone with the Logix 3 profile/username and that the Willy Rufford connection was not stale.
[37] Third, the trial judge relied on the admitted facts that IA's Blackberry browser had visited the Facebook site of "jlogix" less than two months before the break-in. This name, "jlogix", was nearly identical to the Facebook name JH admitted he used and the profile name attributed to him by a former girlfriend. Like the second reason, when combined with the first reason this factor, which provided a link between JH and IA (a person who died at the scene where JH's DNA was found), diminished the likelihood that someone other than JH used Logix 3 as a profile/username.
[38] The fourth reason observes that without relying on the truth of the content of three messages sent by Logix 3 to IA in quick succession about 90 minutes before the break-in, the messages suggest that Logix 3 was trying to meet up with IA. Relying on R. v. Evans, the trial judge held that when combined with the DNA evidence, the messages, seemingly directed at a meeting, provided some evidence that JH was the author.
ii) The Evans Error
[39] As we have said, relying on R. v. Evans, the trial judge used the contents of three messages sent by Logix 3 to IA approximately 90 minutes before the break-in, together with the DNA analysis of the canvas shoes, to provide some evidence of JH's identity as Logix 3.
[40] According to the trial judge, the probative value of the messages arose from the fact that they suggested Logix 3 was attempting to meet up with IA in close proximity to the break-in where JH's DNA was found. However, the inference that Logix 3 was trying to meet up with IA could only arise when the messages were read in context with messages Logix 3 received from IA. The messages, read in context, are as follows:
11:00:55 – from IA: Cross street homie
11:01:10 – from Logix 3: Cross?
11:01:39 – from IA: Actually stay
11:02:27 – from IA: Where u at
11:02:54 – from Logix 3: Same spot
11:02:57 – from IA: Kk
11:03:02 – from Logix 3: As always in parking lot
[41] Evans provides that out-of-court statements of a declarant may have probative value on the issue of identity in certain circumstances because "the fact that certain representations are made is probative as it narrows the identity of the declarant to the group of people who are in a position to make similar representations": Evans, at p. 662.
[42] JH submits that the trial judge erred in relying on the messages of both Logix 3 and IA to find Logix 3's messages had probative value. JH relies on the fact that in Evans, it was the statements of the accused alone that were relied on. While acknowledging there is no rule in Evans that prohibits a declarant's statements from being considered in context, JH asserts that because the trial judge was conducting a Carter analysis and considering whether JH was a probable member of the conspiracy (step two of Carter), the trial judge was restricted to considering statements admissible against JH and could not consider his statements in the context of JH's conversation with IA.
[43] We do not accept JH's submission. While we acknowledge the trial judge was conducting a stage two Carter analysis to determine if JH was a probable member of a conspiracy, a preliminary issue to that analysis was the question of Logix 3's identity. The judge was considering this preliminary issue when he applied the rule in Evans. Only after he found JH was Logix 3 did the trial judge turn to the question whether JH was a probable member of the conspiracy. In our view, the trial judge's conclusion that JH was Logix 3 was amply supported by the record.
iii) The Carter error
[44] JH argues that when the erroneous inferences arising from the trial judge's first two errors are removed, there was insufficient evidence to support an inference he was Logix 3. As a result, the statements of Logix 3 were not admissible against him and there was insufficient evidence to establish he was a probable member of the conspiracy.
[45] As this ground of appeal is dependent for its success on the success of JH's first two grounds of appeal, we reject this argument.
(b) JH's Sentence Appeal
[46] The trial judge gave JH seven months' credit for presentence custody and restrictive bail conditions and therefore imposed a sentence of eight years, five months' imprisonment. The Crown acknowledges that the trial judge miscalculated his intended credit for presentence custody. Accordingly, with the consent of the Crown, we increased the credit for presentence custody from 150 days to 250 days and set aside the victim fine surcharge that was imposed.
[47] JH and HSD raised the same arguments concerning their sentence appeals. We rejected JH's arguments for the same reasons we rejected HSD's arguments.
Conclusion
(a) HSD's Appeal
[48] Based on the foregoing reasons, we dismissed HSD's conviction appeal. We granted leave to appeal sentence, with the Crown's consent allowed the sentence appeal in part by setting aside the victim fine charge, and ordered that the sentence appeal was otherwise dismissed.
(b) JH's Appeal
[49] Based on the foregoing reasons, we dismissed JH's conviction appeal. We granted leave to appeal sentence and with the Crown's consent allowed the sentence appeal, in part, by i) increasing the credit for presentence custody from 150 days to 250 days which, together with the 60 days credit for strict bail conditions granted by the trial judge, yielded a sentence of 9 years less 310 days imprisonment; and ii) setting aside the victim fine charge. The sentence appeal was otherwise dismissed.
Released: November 21, 2019
Janet Simmons J.A.
David Watt J.A.
B.W. Miller J.A.