Court of Appeal for Ontario

Date: 2017-01-04

Docket: C62215

Judges: Simmons, Pardu and Miller JJ.A.

Parties

Between

Her Majesty the Queen Respondent

and

Jesse Carrington Appellant

Counsel

For the Appellant: David E. Harris

For the Respondent: Gavin N. MacDonald

Hearing and Appeal

Heard: October 11, 2016

On appeal from: The conviction entered on August 14, 2015 and the sentence imposed on November 23, 2015 by Justice Lorne E. Chester of the Ontario Court of Justice.

Decision

By the Court:

Introduction

[1] Following a trial at which he did not testify, the appellant was convicted of robbery, use of an imitation firearm while attempting to commit a robbery, obstructing police and breach of recognizance.

[2] The appellant appeals two of these convictions: robbery and use of an imitation firearm while attempting to commit a robbery (the "offences").

[3] The convictions for the offences arise out of a night-time carjacking in a grocery store parking lot. The victim testified that he was accosted in the parking lot by a man brandishing a gun who demanded his car keys. After obtaining the victim's car keys, the man with a gun went to the victim's car. A second man with a gun accosted the victim briefly, then got into the front passenger seat of the victim's car. As the second man was doing so, a third man got into the backseat of the victim's car. Following a police pursuit, the three men abandoned the victim's car and fled on foot. The appellant was arrested at a nearby trucking facility, where he gave a false name to the police.

[4] The Crown's position at trial was that the appellant was the third man, namely, the man who got into the backseat of the victim's car.

[5] In his reasons, the trial judge framed the issues concerning the appellant's involvement in the offences as: i) identity as one of the three individuals involved in the armed robbery, and ii) even if the evidence did not disclose that the appellant had a firearm, whether he was guilty as a party to use of an imitation firearm while attempting to commit a robbery.

[6] After a witness-by-witness review of the evidence, the trial judge found that the appellant was the man who got into the backseat of the victim's car and that it was "clear from his actions that he was part of the plan right from the beginning".

[7] On appeal, the appellant does not challenge the trial judge's finding that he was the man who got into the backseat of the victim's car. Instead, he argues that the evidence shows no more than presence and passive acquiescence on his part in the carjacking. He submits that the convictions for the offences are therefore unreasonable.

[8] In the alternative, the appellant argues that the trial judge was focused on the identification issue and failed to properly scrutinize whether the appellant was a party to the offences. In particular, the appellant submits that:

i) in finding that the appellant acted in concert with two other men to commit the offences, the trial judge relied on unreasonable findings that all three men were dressed similarly, concealed their identity in a similar way and acted similarly;

ii) the trial judge's reasons are inadequate because he failed to pinpoint what acts the appellant committed to render him guilty of the offences;

iii) the trial judge erred in law in finding that the appellant was guilty of theft as a principal; and

iv) the trial judge erred in law in failing to recognize that the after-the-fact conduct evidence was incapable of proving the intent required for party liability for the offences.

[9] The appellant abandons his request for leave to appeal sentence.

[10] For the reasons that follow, we dismiss the appeal.

Background

[11] The carjacking took place at around 9:15 p.m. on March 17, 2014. It was dark and cold.

[12] The victim of the carjacking testified that, after he had finished loading his groceries into his car and had taken a couple of steps toward the place where grocery carts are returned, he was accosted by a man who asked for directions, then showed him a gun and demanded his car keys. At that point, the victim and the first perpetrator were about two or three feet apart. The victim tossed the first perpetrator the car keys and watched as the first perpetrator walked towards his (the victim's) car. When the first perpetrator got to the car, the victim turned around only to be accosted by a second man. The victim described the second man's tone as loud and angry as he said, "give me the phone, give me the phone, give me the phone".

[13] The victim could not immediately locate his cell phone and backed away from the second man with his arms raised. He told the second man he did not have a phone. The second man appeared to give up and walked towards the victim's car. As the second perpetrator was getting into the front passenger side of the car, the victim saw a third man, now acknowledged to be the appellant, walking towards the car. The appellant got into the backseat of the car and drove off with the other two men.

[14] After the three men drove away in his car, the victim called 911 and reported that he had been robbed by three men. About half an hour after the 911 call, police in an unmarked vehicle spotted the stolen car and three occupants stopped at a red light. One officer testified that the man in the backseat was wearing a black baseball hat with a fur hood pulled over top of it. The police pursued the victim's car, which was ultimately abandoned in a residential area.

[15] After being tracked by a canine team part of the way from where the victim's car was abandoned, the appellant was arrested in a nearby secure trucking facility where he had had some interactions with the staff. These included vague explanations for his unauthorized presence, "mouthiness" and cursing when one of the employees of the trucking facility picked up a telephone to make a call, and jumping over a turnstile while being escorted to a security area at the front of the facility by another employee.

[16] Police entered the trucking facility soon after the appellant jumped over the turnstile and arrested him. Upon his arrest, the appellant gave a false name to the police.

[17] The next morning, an employee of the trucking facility found a black baseball hat and fur-lined hood in the driver's washroom area. The appellant's DNA was on the hat.

[18] That same day, police re-traced the dog-tracking route and found a key fob for the stolen car.

[19] Cell phone evidence put the appellant at the scene of the carjacking shortly before it happened. There was no cell phone activity over an ensuing ten-minute time period. The appellant's cell-phone activity then resumed and remained consistent with the flight of the perpetrators.

[20] No one else was arrested in relation to these offences.

[21] At trial, the victim described the first perpetrator as wearing a black parka with fur trim, a black toque pulled down to the bridge of his nose, black pants, black shoes and black gloves. The second perpetrator wore a black parka with fur trim similar to the first perpetrator's coat, a black toque, black shoes, black pants and black gloves. The victim said he only saw the appellant out of the corner of his eye as the appellant approached the car. They came within about 10 to 12 feet of each other. He did not see the appellant's face. The appellant was wearing a black parka (the victim was unsure whether there was fur on it), black shoes and black pants.

Discussion

(1) The Verdicts Were Not Unreasonable

[22] We reject the appellant's argument that the guilty verdicts were unreasonable. The appellant acknowledges that, in the circumstances described by the victim, it is reasonable to infer that the appellant knew the car was being taken from the victim and, knowing that, chose to become a passenger in the victim's car. However, he claims that, as he did not accost the victim and did not gain possession and control of the victim's car, his presence amounted to nothing more than passive acquiescence in the offences. Moreover, particularly in the absence of evidence of any positive acts of aiding and abetting, evidence of an intent to aid or abet was also lacking.

[23] We disagree. While knowledge of another's intent to commit a crime and mere presence at the scene do not lead automatically to a finding of aiding and abetting, such factors can be evidence of aiding and abetting: R. v. Dunlop, [1979] 2 S.C.R. 881, at p. 896; R. v. McKay, 2012 ABCA 310, 84 Alta. L.R. (5th) 404, at paras. 21-22. Here, by getting into the victim's car, at a minimum, the appellant both abetted, and demonstrated an intention to abet, the other men in robbing the victim of his car. This is not a case where the appellant was a mere bystander. He took an active step of getting into the victim's car that supported the other men in their endeavor, namely, depriving the victim of his car through the use of threats. To be guilty as an aider or abettor, all that is necessary is that the accused intended the consequences that flowed from his or her aid to the principal offender; it is not necessary to show that he or she desired or approved of the consequences: R. v. Greyeyes, [1997] 2 S.C.R. 825, 8 C.R. (5th) 308, at para. 37. The fact that the appellant's conduct would aid the other men in their endeavour was patent; nothing in the evidence rebuts the conclusion that he intended the consequences of his actions.

[24] Further, and in any event, the trial judge's conclusion that the appellant acted in concert with the other men in using an imitation firearm while attempting to commit a robbery is supported by the appellant's presence at the scene prior to the night-time carjacking, the general similarity in dress of the three men, the appellant's presence at the scene and ability to observe the events as they unfolded, the appellant's conduct in getting into the victim's car, driving away with the other men and fleeing with one or more of the other men before splitting up after they abandoned the stolen vehicle.

[25] In our view, the evidence at trial created a compelling inference that the appellant acted in concert with two other men in planning and carrying out the offences. Therefore, the verdicts were not unreasonable.

(2) The Trial Judge Did Not Make a Beaudry Error or Materially Misapprehend the Evidence

[26] We also reject the appellant's submissions that the trial judge made unreasonable findings of fact or that he materially misapprehended the evidence.

[27] The appellant argues that the trial judge found that the appellant was part of a plan to commit an armed carjacking because the three men were dressed similarly, concealed their identity at the scene, acted similarly and abandoned the stolen car together. He says the trial judge's reasons in this respect are flawed because, in fact, his actions and dress were significantly different from the actions of the other two men. Accordingly, the inferences the trial judge drew in this respect constitute either a Beaudry error or amount to a material misapprehension of the evidence.

[28] The appellant submits that there was nothing distinctive, or surprising on a cold night, about the generic similarities in mode of dress relied on by the trial judge: dark parkas, black pants and black shoes. Further, unlike the other two men, the appellant was not wearing a toque that partially concealed his face; nor, contrary to the trial judge's express finding, was he wearing gloves. Importantly, the appellant did not accost the victim; and, as the trial judge acknowledged, there was no evidence he had a gun. The fact that the appellant got into the car with the other men and later abandoned it with them is of no real moment to the question of whether he acted in concert with them. In sum, the appellant submits that the trial judge's finding that the appellant was acting in concert with the other two men amounts either to an error in logic or a material misapprehension of the evidence.

[29] We disagree. The trial judge relied on a constellation of circumstances to find that the appellant was a party to a planned armed carjacking: he was at the scene before, during and after the carjacking (cell phone evidence and other circumstantial evidence); he wore clothing similar to the other two men, including a fur-lined hood pulled over a baseball cap (victim's evidence, and evidence of one of the police officers); he got in the car being stolen with the other two men; he fled from the police and abandoned the stolen car with the other men.

[30] Viewed in the context of all the evidence, the generic similarities in dress, including the police officer's sighting of the appellant with his hood over a baseball cap, were all that was necessary to support the trial judge's finding that the appellant was dressed similarly to the other men and that, like the other men, concealed his identity at the scene.

[31] Further, the trial judge's description that all three men acted in the same way was not an error. He recognized that the three men played different roles in the carjacking – as he described it: "[a]ll three were taking part in the armed robbery in different capacities; some leading, one was angry and in the face of [the victim], others followed."

[32] However, what was key to the trial judge in terms of the conduct of the men was that they all got in the car being stolen, sped off, fled from police and abandoned the stolen car in concert. We see no error in this reasoning, nor in the trial judge's overall conclusion that the appellant acted in concert in committing the offences with the two other men. Moreover, considered in the light of the totality of the evidence, the trial judge's misstatement that the appellant was wearing gloves was not material to his reasoning.

[33] Therefore, the trial judge did not make a Beaudry error or materially misapprehend the evidence.

(3) The Trial Judge's Reasons Are Sufficient

[34] The appellant argues that the failure of the trial judge to articulate specific acts of aiding or abetting performed by the appellant render his finding that the appellant was an "active participant" in the robbery a "naked conclusion" that deprives the appellant of the right to meaningful appellate review.

[35] We reject this argument. Apart from his findings concerning the central issue of identity, the focal point of the trial judge's reasoning was that the appellant acted in concert with the other two men. As we have explained this conclusion was founded on, among other things, the appellant's presence at the scene before and during the carjacking, his mode of his dress, and, most importantly, his conduct in getting into the victim's car and driving away in the stolen vehicle with the other men – together with his subsequent conduct in fleeing from the police. While the trial judge could have explained his reasons more fully, these findings were sufficient to support the convictions.

(4) No Substantial Wrong Results from the Trial Judge's Statement That the Appellant Was a Principal in the Theft

[36] At one point in his reasons the trial judge said, "As the third person involved in the armed robbery he is a principal in the theft and a party to the armed robbery."

[37] The trial judge made this statement immediately after concluding that the appellant was in fact the third person involved in the incident, the man who got into the backseat of the victim's car. We acknowledge that this statement may blur the articulation of the concept of party liability set out in section 21 of the Criminal Code and may not be an accurate statement of the appellant's role in the offences. Nonetheless, even accepting that it is an erroneous statement, nothing turns on it and no substantial wrong or miscarriage of justice results from it: section 686(1)(b)(iii) of the Criminal Code.

(5) The Trial Judge Did Not Err in His Treatment of the Evidence of the Appellant's After-the-Fact Conduct

[38] Significant evidence of the after-the-fact conduct was led at trial, including: the evidence of the perpetrators' flight from the police in the stolen car; their abandonment of the stolen car in a residential area and flight on foot; the canine unit evidence, which disclosed that a canine team tracked a scent from the stolen car to the perimeter fence of the trucking facility; the evidence that a key fob for the stolen car was found the next day part way along the path that had been tracked by the canine team; the appellant's conduct in the trucking facility and the discovery of the baseball cap and hood bearing the appellant's DNA at the trucking facility.

[39] On appeal, the appellant does not contest that this evidence was highly relevant to prove his identity as the third man and his presence at the scene. However, he argues that the trial judge's finding that the appellant had the requisite knowledge of the planned offences and the necessary intention to act as an aider or abettor in the offences rested on an improper use of this evidence as giving rise to a circumstantial inference of consciousness of guilt. Further, even if the evidence had some potential probative value on the issues of knowledge and intention, the appellant submits that the trial judge erred in failing to recognize and address the competing inference that the appellant fled and attempted to avoid apprehension because of panic or fear related to his innocent involvement.

[40] We do not accept these submissions. Apart from the issue of identity and presence at the scene, much of the after-the-fact conduct evidence formed part of the constellation of evidence that gave rise to the trial judge's finding that the appellant acted in concert with the other two perpetrators in committing the offences.

[41] As we have said, the appellant was at the scene both before and during the offences; he got into the car that was being stolen with the other two men; once spotted by the police, he fled with them; after the stolen car was abandoned, he fled together with one or both of them part of the way on foot. It is for the trier of fact to decide, on the basis of the evidence as a whole, if the post-offence conduct related to the offence, or something else: R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at paras. 105-6; R. v. Roy, 2004 CarswellOnt 3937 (Ont. C.A.), at para. 75. Moreover, after-the-fact conduct can lead to a logical and reasonable inference that an accused's conduct is culpable: R. v. Figueroa, 2008 ONCA 106, 58 C.R. (6th) 305, at para. 35; R. v. Smith, 2016 ONCA 25, 333 C.C.C. (3d) 534, at para. 78. Considered cumulatively, and particularly in the absence of alternative explanations, this evidence created a powerful inference that the appellant acted in concert with the other two perpetrators.

[42] The trial judge was entitled to consider the evidence of the after-the-fact conduct, as part of the circumstances surrounding the commission of the offences, to conclude that the three men were acting in concert: R. v. Noor, 2009 ONCA 795, at para. 16. The trial judge's findings of knowledge and intention in relation to both offences flowed from this conclusion. The circumstances surrounding the offence to which we have referred, including the after-the-fact conduct, created a powerful inference that the appellant knew of, and acted in concert with, the other two men in committing a robbery. This conclusion that the three men were acting in concert together with the nature of the offence – carjacking a vehicle in a parking lot - created an equally powerful inference that the appellant knew the other two men were armed, and knew what weapon they possessed. Nothing in the evidence rebutted these conclusions. We see no indication in the trial judge's reasons that he made any improper use of the after-the-fact conduct evidence. Although he could have explained in more detail the use he made of such evidence, we are satisfied his reasons reveal no error.

Disposition

[43] Based on the foregoing reasons, the appeal is dismissed.

Janet Simmons J.A.

G. Pardu J.A.

B.W. Miller J.A.

Footnotes

[1] The appellant also advanced a subsidiary argument that the trial judge erred when he said that even though there was no evidence the appellant had a gun, "the other two clearly did." In making this argument, the appellant relied on the fact that, in cross-examination, the victim acknowledged he told police that he "interpreted" the second man had a gun but was uncertain and then stated in cross-examination that he "believed" the second man had a gun. The appellant asserted that this evidence could not constitute proof beyond a reasonable doubt that the second man had a gun.

However, the victim had testified in-chief that the second man "put a gun to me" and he also said, "[h]is gun was black from what I remember." When asked in-chief if he got a good look at the gun, the victim said, "Not especially. I just remember that it was black. Again, I was – I was in shock and – and I was just stunned. Like I kind of don't – don't remember anything, just that it's black." Based on the totality of the victim's evidence, it was open to the trial judge to find that the second man had a gun.

[2] R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190. The SCC observed in R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at para. 16, that: "An appellate court will be … justified in intervening pursuant to Beaudry, where a trial judge draws an inference or makes a finding of fact that is (1) plainly contradicted by the evidence relied on for that purpose by the judge, or (2) demonstrably incompatible with evidence that is not otherwise contradicted or rejected by the trial judge."

[3] R. v. Morrissey, 22 O.R. (3d) 514; R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732.