COURT OF APPEAL FOR ONTARIO
Hourigan, Favreau and Dawe JJ.A.
BETWEEN
His Majesty the King
Respondent
and
Kurt Beaver
Appellant
Ariel Herscovitch and Andrea Di Fazio, for the appellant
Owen Goddard, for the respondent
Heard: January 23, 2025
On appeal from the conviction entered on January 7, 2022, and the sentence imposed on June 30, 2022, by Justice Lynn Robinson of the Ontario Court of Justice.
REASONS FOR DECISION
1The appellant was convicted of various offences arising out of a home invasion robbery and sentenced to seven years’ imprisonment.1 The main disputed issue at trial was identity. He appeals against both his convictions and sentence.
2The appellant raises three grounds of appeal against his convictions. Success on the first two grounds would result in a new trial on all counts, but his third ground, which focuses on the trial judge’s implied finding that the second robber used a real firearm during the robbery, would only directly affect the appellant’s convictions on two of the seven counts. However, the appellant argues that if this third ground succeeds, his sentences on the other counts would also need to be adjusted downwards. (In his factum the appellant raised another free-standing ground of appeal against sentence, but his counsel abandoned this ground at the hearing.)
3We did not call on the Crown to respond to the appellant’s first two grounds of appeal against his convictions. We heard submissions on the third ground and reserved our decision.
4These reasons explain why we do not give effect to any of the appellant’s grounds of appeal against his convictions. Since his sentence appeal is contingent on him succeeding at least in part on his conviction appeal, we dismiss both the conviction and the sentence appeals.
A. Factual background
5On the morning of December 27, 2019, two masked robbers committed a home invasion robbery in Niagara Falls. The victim, Luisa Yu, went outside at around 7:00 a.m. to take out her compost and was accosted by a masked man – “the shorter robber” – who pointed a handgun at her and directed her to go back inside her home. A second masked man wearing a camouflage jacket and pants – “the taller robber” – came out of the garage and joined the first robber. The Crown’s theory at trial was that the taller robber was the appellant.
6The shorter robber directed the taller robber to watch Ms. Yu while he went into the master bedroom. When he returned from the bedroom, the shorter robber bound Ms. Yu to a chair with zip ties. Before the robbers left the house, the shorter robber removed the magazine of his handgun and showed Ms. Yu that it contained bullets.
7The robbers left Ms. Yu’s house at around 7:20 a.m., taking approximately $5,000 in cash, a jar of coins, and some jewellery and jewellery boxes. A short while later Ms. Yu’s young son freed her, and she called the police.
8Ms. Yu pointed out to the police that there was a pry bar in her garage that did not belong to her. Subsequent testing established that it had the appellant’s DNA on it, along with the DNA of two other unidentified males.
9Several days after the robbery, on December 30, 2019, Ms. Yu found a shoeprint on a chair in the garage. She photographed the shoeprint and sent the photo to the police, who determined that it had been left by a Nike Air Max sneaker. However, the size of the shoe that left this print could not be determined because Ms. Yu did not measure its dimensions or include a scale in her photograph.
10Ms. Yu did not positively identify the appellant as the taller robber. She was cross-examined at trial about the extent to which the taller robber resembled the appellant. We will summarize her evidence about this when we address the appellant’s first ground of appeal.
11It was established at trial that the robbers had used a series of stolen vehicles. The first of these vehicles, a GMC Jimmy SUV, was stolen in Hamilton at around 3:00 a.m. on December 27, 2019. The Jimmy was then abandoned in Grimsby and exchanged for a stolen black Ford F-250 pickup truck. Security video footage from outside Ms. Yu’s home in Niagara Falls showed that the robbers arrived and left in a black pickup truck that looked like this stolen truck, and a neighbour obtained a matching partial licence plate number. Shortly after the robbery, at some point before 8:00 a.m., the stolen black truck was abandoned in St. Catharines and was replaced by a stolen white Chevrolet Silverado pickup truck.
12At approximately 11:00 p.m. on the day of the robbery, a police officer came across the stolen white Silverado in the parking lot of a pizza restaurant on the Six Nations reserve, southwest of Hamilton. The appellant was passed out in the driver’s seat. When the police searched the Silverado, they found a plastic bag of coins and a bracelet in the centre console, a camouflage jacket and pants piled on the front passenger seat, and jewellery boxes in the back seat. Ms. Yu identified the bracelet and the jewellery boxes as items that had been taken during the robbery. Testing revealed that the appellant’s DNA was on the bracelet and the neckline of the camouflage jacket. He was also wearing Nike shoes with a distinctive sole print that resembled the shoeprint Ms. Yu photographed in her garage, although it could not be determined whether his shoes were the same size as the shoe that left the print.
13The appellant testified and denied participating in the robbery. He maintained that he had not left the Six Nations reserve for several days, during which he had been drinking and using drugs. The appellant explained that he had found the Silverado abandoned in a bush lot, which was a place where stolen vehicles were often dumped, and had gone “joy-riding” with some friends before passing out in the front seat. He testified that he had probably handled the bracelet and camouflage jacket while he was in the vehicle.
14The appellant sought to explain the presence of his DNA on the pry bar found in Ms. Yu’s garage by testifying that he frequented a residence that many people used as a drug house, where a collection of burglary tools were kept that anyone could borrow and return. The appellant testified that this was probably where he had touched the pry bar.
15The trial judge entirely rejected the appellant’s evidence, finding that it did not raise a reasonable doubt in her mind, and concluded that the circumstantial evidence satisfied her beyond a reasonable doubt that the appellant was the taller robber.
B. The conviction appeal
(1) The trial judge failed to consider evidence pointing away from the appellant being one of the robbers
16The appellant’s first ground of appeal is that the trial judge did not properly consider aspects of the evidence that he says pointed away from him having been the taller robber. This argument largely focuses on two aspects of Ms. Yu’s evidence when she was asked in cross-examination to compare the appellant’s appearance in court with her recollection of what the taller robber looked like.
17Ms. Yu's evidence was that both robbers had been wearing masks. However, she was able to see the skin around the taller robber’s eyes, and at one point also briefly saw his mid-section when he reached up with his arms. At trial, she described the taller robber as “light-skinned” and agreed in cross-examination that she had previously described him as “white”. She explained that she might describe an Indigenous person as “white”, depending on their skin colour. (The appellant’s father is Indigenous and his mother is white.)
18In cross-examination, Ms. Yu was asked a series of questions about the extent to which the appellant resembled the taller robber. She said that the appellant “seems to be a lot bigger” than the taller robber, explaining that by “bigger” she meant “wider”. However, a police officer who was familiar with the appellant’s appearance testified that the appellant had gained weight between the time of his arrest and trial, and in his own testimony the appellant estimated that he was now 40 to 50 pounds heavier.
19Ms. Yu was then asked if there was anything about the masked taller robber’s face or eyes that “is similar to you”, and she replied: “Not that I can recall, no”. She could not say whether the taller robber’s face shape was similar to that of the appellant, which trial counsel described as “fairly round”. Ms. Yu was then asked: “[A]nd in terms of the skin colour, he’s darker than a white person, wouldn’t you agree?”, to which she replied: “A little bit”. Ms. Yu was then asked whether she would describe the appellant as white or Caucasian, and replied: “I – probably not. Maybe, yeah. I’m actually not sure. Yeah, where, where he would land.”
20The appellant argues that these two aspects of Ms. Yu’s evidence were exculpatory, and thus had to be considered by the trial judge when she was deciding whether the evidence as a whole proved the appellant’s guilt beyond a reasonable doubt. He contends that the trial judge did not adequately address this evidence in her reasons, and characterizes this alleged error as tantamount to a misapprehension of the evidence.
21We do not agree that Ms. Yu’s inability to say whether the taller robber and the appellant had a similar face shape or eyes was exculpatory. Her evidence was not that these facial features were dissimilar, but only that she could not recall any points of similarity. This fell well short of positive evidence of non-identification.
22On the issue of whether the taller robber and the appellant had similar skin shades, Ms. Yu’s evidence on this point was ambiguous. She was asked whether she would agree that “he’s darker than a white person” as part of a series of cross-examination questions that asked her to compare the appearances of the taller robber and the appellant. It is not clear whether she thought she was being asked about the skin colour of the taller robber or the appellant, or which man she was talking about when she replied “[a] little bit”.
23In any event, the trial judge addressed this issue in her reasons, stating:
I find that Ms. Yu is unable to identify the intruders. With respect to racial identification, as I already indicated, she is not certain looking at [the appellant] in court whether she would or would not describe him as white. I find that the significance of her account is in the clothing description. I am not troubled by this and find that she has explained herself clearly.
24We do not agree with the appellant that the trial judge was obliged to put more weight on Ms. Yu’s initial response when she was asked if she would describe the appellant as white – “probably not” – than her subsequent clarification that she was unsure. The trial judge was required to consider Ms. Yu’s testimony in its entirety, and it was reasonably open to her to treat Ms. Yu’s final answer as her evidence on this point. We do not agree that the trial judge can be said to have misapprehended Ms. Yu’s evidence.
25It was also reasonably open to the trial judge to conclude that any inconsistency between Ms. Yu’s description of the taller robber as “light skinned”, and her possible agreement that the appellant had a skin tone that was “a little bit” darker than a “white person”, was ultimately not significant, considering the circumstances in which Ms. Yu had made her observations of the robbers, the passage of time between the robbery and the trial in 2021, and the strength of the other circumstantial evidence pointing to the appellant as the taller robber.
26The appellant also argues that the trial judge erred by not expressly mentioning the testimony of the arresting officer, DC Monteforte, who agreed that it was not uncommon in his experience to find people impaired by drugs or alcohol passed out in stolen vehicles. The appellant argues that this was confirmatory of his story of having found the stolen truck abandoned in the bush, and that the trial judge was obliged to take this confirmatory evidence into account when considering whether his testimony raised a reasonable doubt.
27The trial judge was not obliged to expressly refer to every item of evidence that arguably supported the defence position. In any case, when her reasons are read as a whole, they reveal that she did not reject the appellant’s evidence because she thought his evidence about finding an abandoned stolen truck was inherently implausible, in and of itself. Rather, she plainly considered his story to be “incredible and wholly unbelievable” in light of the very strong circumstantial evidence linking him to the robbery.
28We would accordingly not give effect to this ground of appeal.
(2) The trial judge did not consider all alternative explanations for the appellant’s DNA being found on the pry bar
29The appellant does not dispute that the trial judge was entitled to reject the explanation he gave in his testimony for how his DNA came to be on the pry bar found in Ms. Yu’s garage: namely, that he might have handled the pry bar at a drug house that he frequented, where a supply of burglary tools was stored. However, the appellant now argues on appeal for the first time that the trial judge should have also addressed the possibility that he might have touched the pry bar in a hardware store at some point before the robbers acquired it.
30As Cromwell J. explained in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 37:
When assessing circumstantial evidence, the trier of fact should consider “other plausible theor[ies]” and “other reasonable possibilities” which are inconsistent with guilt. … “Other plausible theories” or “other reasonable possibilities” must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation. [Citations omitted.]
31He added at para. 38 that “the line between a ‘plausible theory’ and ‘speculation’ is not always easy to draw.”
32The court in Villaroman also cautioned against engaging in speculation, and it was on this basis that it overturned the decision of the Alberta Court of Appeal. As Cromwell J. explained at para. 70:
At certain points in its analysis, the Court of Appeal crossed the line from considering the effects of gaps in the Crown evidence to raising purely speculative possibilities. For example, the Court of Appeal considered questions such as whether the “laptop [went] to work” or “during the day to a school, college, or university” or “may have sat much of each day in a location or locations frequented by many friends, coworkers, or fellow students”: paras. 28 and 31. These particular factual scenarios are purely speculative and postulating them goes beyond the bounds of properly considering the impact of the gaps in the Crown evidence about the physical location of the laptop.
33In this case, the appellant did not testify that he had gone to a hardware store and handled a pry bar, nor did his trial counsel argue that the trial judge should consider this specific possibility. While we appreciate that the other reasonable possibilities that must be considered before drawing a circumstantial inference of guilt do not necessarily have to be supported by the evidence or specifically raised by counsel, it is difficult to fault the trial judge for not addressing an alternative possibility that she was never asked to consider.
34In any event, the reasonableness of other possible explanations for circumstantial evidence must be assessed by considering the evidence as a whole. Viewed in isolation, individual items of circumstantial evidence often have multiple potential explanations, some of which can only be eliminated when all of the evidence is taken into account.
35In this case, if the only evidence against the appellant had been the presence of his DNA on the pry bar in Ms. Yu’s garage, it might have been necessary for the trial judge to consider the possibility that he could have handled the pry bar somewhere else, even if she entirely rejected his testimony about possibly touching it at the drug house: see e.g., R. v. Mars (2006), 2006 CanLII 3460 (ON CA), 205 C.C.C. (3d) 376 (Ont. C.A.); R. v. Ahmed, 2015 ONCA 848.
36However, when all of the evidence in this case is considered together, it would be a truly extraordinary coincidence if the appellant had randomly touched the pry bar while it was still on the rack at a hardware store, and then later found himself sitting in the truck that was stolen by the same robbers who had left the pry bar in Ms. Yu’s garage, surrounded by items stolen in the robbery, with his DNA on the neckline of a jacket matching the one worn by the taller robber, and wearing shoes with a highly distinctive tread pattern that was identical in shape and appearance to the shoe print Ms. Yu found in her garage. Considering all of this evidence together, the scenario in which the appellant came into contact with the pry bar at a hardware store was simply not a reasonable possibility. The trial judge was accordingly not obliged to consider it or address it in her reasons.
37In any case, if the trial judge had considered this possibility, she would inevitably have dismissed it for the same reasons that she rejected the appellant’s explanation about handling the pry bar at the drug house. She distinguished this case from Ahmed, where the only evidence linking the accused to a bank robbery was the presence of his DNA on a plastic bag used by the robber, on the basis that here there were “several pieces of evidence linking [the appellant] to the crime scene.” Here, there trial judge rejected the appellant’s explanation that he had coincidentally stumbled upon the robbers’ truck and the stolen goods, while wearing shoes with the same tread pattern as the print left by one of the robbers, after having handled the pry bar on a different occasion, on the basis that:
This “innocent inference” is not a reasonable inference. It relies on speculation and conjecture for its support. The series of coincidences required to support this inference is so very unlikely as to be impossible. This inference does not flow logically from any of the cogent evidence or lack of evidence. This inference simply does not make any sense. It is far-fetched and would rely on so many incredible coincidences that it is impossible.
38These objections would apply with at least equal force to the new scenario the appellant raises on appeal, in which he handled the pry bar in a hardware store rather than at the drug house.
39We would accordingly not give effect to this ground of appeal.
(3) Was a real and operable firearm used in the robbery?
40The counts on which the appellant was convicted included charges of robbery with a firearm and pointing a firearm. These charges were based on Ms. Yu’s evidence that the shorter robber had pointed what looked like a handgun at her, and later removed the gun’s clip and showed her that it contained what looked like bullets. The gun itself was not recovered.
41The appellant’s third ground of appeal is that the trial judge erred by not explaining in her reasons how she concluded that this handgun was a real, functioning firearm, rather than an imitation or an inoperable weapon.2 He argues further that the evidence at trial did not support this conclusion.
42The appellant accepts that this alleged error would not affect his convictions on the non-firearms-related charges, two of which also resulted in concurrent seven-year sentences. He also acknowledges that he could still properly be convicted of robbery simpliciter. However, the appellant argues that on the scenario in which the gun was not proved to be a real firearm, his global sentence should be reduced by one year, from seven years to six years.3
43We would not give effect to this ground of appeal, for several reasons.
44First, we do not agree that the evidential record at trial did not reasonably support the inference that the handgun used in the robbery was a real and operable firearm. Ms. Yu’s unchallenged evidence was that the shorter robber removed the clip and showed her that the gun was loaded with what looked like real bullets. In these circumstances, the circumstantial inference that the gun was a real and operational firearm was an available one that the trial judge was entitled to draw: see R. v. Richards, 2001 CanLII 21219 (Ont. C.A.), at para. 4; R. v. Charbonneau, 2004 CanLII 9527 (Ont. C.A.), at para. 3; R. v. Wills, 2014 ONCA 178, 308 C.C.C. (3d) 109, at para. 50, aff’d 2014 SCC 73, [2014] 3 S.C.R. 612; R. v. Dillon, 2018 ONCA 1085, at para. 18; R. v. O.A., 2022 ONCA 565, at para. 10; R. v. Bzezi, 2024 ONCA 530, at paras. 38–40.
45Second, the possibility that the handgun used by the shorter robber during the robbery was not a real firearm was never raised by the appellant’s trial counsel. She did not cross-examine Ms. Yu about her observations of this gun, and in her final submissions trial counsel focused entirely on the disputed issue of whether the appellant was the taller robber. In particular, during her reply submissions, trial counsel effectively conceded that if the trial judge found that the appellant had been the taller robber he could properly be convicted as a party on the charges of robbery with a firearm and pointing a firearm, even though it had been the shorter robber who had actually held the gun. Trial counsel did not at any point suggest that the question of whether the handgun was a real firearm was in dispute.
46The trial judge was still obliged to satisfy herself that the evidence supported findings of guilt on all of the essential elements of the charged offences, including the requirement on two of the charged counts that the gun used was a “firearm”. However, her reasons for judgment cannot be fairly criticized for not addressing a point that she was effectively told was not in dispute. While it still might have been preferable for her to explain why she was satisfied that the handgun was a real firearm, trial judges’ reasons are not held to a standard of perfection: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 55.
47Rather, reasons for judgment must be assessed functionally, in the context of the particular case. As Binnie J. explained in Sheppard, at para. 55:
An accused person should not be left in doubt about why a conviction has been entered. Reasons for judgment may be important to clarify the basis for the conviction but, on the other hand, the basis may be clear from the record. The question is whether, in all the circumstances, the functional need to know has been met.
48In this case, it is clear from the record why the appellant was convicted on the charges that required proof that the handgun used by the shorter robber was a real firearm: namely, because Ms. Yu’s unchallenged evidence supported this inference, and because his counsel had effectively conceded the point. In the circumstances here, the trial judge’s reasons were “reasonably intelligible to the parties” and “provide[d] the basis for meaningful appellate review of the correctness of [her] decision”: Sheppard, at para. 55.
49Finally, we are not persuaded that the seven-year sentence imposed by the trial judge would have been unfit even if the gun used in the robbery had not been proved to be a real firearm. While we take the point that robberies committed with functioning loaded guns are even more dangerous than robberies committed with imitation firearms, Ms. Yu would have had every reason to believe that the handgun pointed at her by the shorter robber was a real gun. Indeed, this robber presumably showed her that the clip contained what looked like real bullets in order to make that very point. Regardless of whether the gun was a real and functioning firearm, the totality of the circumstances justified a global sentence of seven years’ imprisonment: see Wills, at para. 61.
C. The sentence appeal
50Although the appellant argued in his factum that the trial judge erred by not giving him specific numerical credit for his time spent on house arrest bail, his counsel advised us during the hearing that he was not pursuing this argument. Since the appellant’s remaining ground of appeal against his sentence would only arise if his third ground of appeal against conviction had been successful, it is unnecessary for us to address the sentence appeal.
D. Disposition
51For these reasons, the conviction appeal is dismissed. Leave to appeal sentence is granted, but the sentence appeal is also dismissed.
“C.W. Hourigan J.A.”
“L. Favreau J.A.”
“J. Dawe J.A.”
Footnotes
- Specifically, the appellant was convicted of: (1) robbery with a firearm; (2) pointing a firearm; (3) unlawful confinement; (4) disguise with intent; (5) possession of a stolen motor vehicle; (6) breach of probation; and (7) failure to comply with a s. 109 weapons prohibition order. His sentence was apportioned as concurrent sentences of 7 years’ imprisonment on each of counts 1 to 4, and concurrent sentences of 1 year imprisonment on each of counts 5 to 7.
- The appellant does not dispute that if the handgun was a “firearm” as defined in s. 2 of the Criminal Code, R.S.C. 1985, c. C-46, it would also have been “a restricted firearm or prohibited firearm” within the meaning of s. 344(1)(a) of the Code.
- In his factum the appellant sought a two-year reduction, but counsel adjusted his position in oral argument and ultimately requested only a one-year reduction.