Court of Appeal for Ontario

Date: 2018-09-21 Docket: C62598

Judges: Strathy C.J.O., Doherty and Roberts JJ.A.

Between

Her Majesty the Queen Respondent

and

Omar Patterson Appellant

Counsel

Richard Litkowski, for the appellant Megan Petrie, for the respondent

Heard: September 18, 2018

On appeal from the conviction entered on October 22, 2015 by Justice Susan G. Himel of the Superior Court of Justice, sitting with a jury.

Reasons for Decision

Introduction

[1] The appellant appeals his convictions under ss. 344, 351(2), and 85(2) of the Criminal Code for robbery, use of an imitation firearm, and wearing a disguise with intent to commit an indictable offence.

[2] The appellant was alleged to have participated in an attempted robbery on January 6, 2013 at about 9:00 p.m. The circumstances were as follows. Two men followed the complainant into his garage as he drove in. They stood on either side of the car. The man at the driver's side door had his face half covered with a bandana and pointed what appeared to be a gun at the complainant's head. Neither of the men said anything. The complainant could not say whether the man at the passenger side door was masked or made any gestures. The complainant foiled their plan by reversing out of his garage and followed the men in his car as they fled on foot. He continued to follow one of the men who had doubled back to the area of the complainant's house and drove away in a car. The complainant called 911 using his cell phone and provided the licence plate number of the car he was following. He eventually abandoned the chase at the request of the 911 operator. The appellant was arrested later that evening, driving the getaway car described by the complainant.

[3] The appellant raises three grounds for appeal, all arising from rulings made by the trial judge.

[4] At the conclusion of oral argument, we dismissed the appeal with reasons to follow. These are those reasons.

Cell Phone Records

[5] The Crown sought to adduce records of a cell phone service provider to prove that signals from a phone found in the appellant's possession and registered in his name were picked up by cell towers in the vicinity of the complainant's residence prior to the incident, in the late evening of January 5 and the early morning of January 6, 2013. Signals from the phone were also picked up by towers in the same area on the evening of January 6, when the incident occurred.

[6] The appellant did not object to the admission of the cell phone records pertaining to the evening of the incident, but sought to exclude the records from the late evening and early morning before the incident on the basis that their prejudicial effect exceeded their probative value.

[7] The Crown contended that the evidence supported an inference that the appellant was "scoping out the locale" for a potential robbery, the night before the offence occurred.

[8] The trial judge admitted the evidence. She found that its probative value was compelling and outweighed any prejudicial effect. The defence would have an opportunity to cross-examine the service provider witness concerning the reliability of the records. Further, defence counsel could argue before the jury that the witness was neither credible nor reliable, and that the Crown's theory was speculative. In closing submissions, defence counsel did, in fact, describe the Crown's theory as speculative and suggested that the cell phone signals could have been affected by factors such as the topography of the area and by interference from nearby buildings.

[9] We see no error in the admission of the evidence. The inference sought by the Crown was available on that evidence. At the time of the incident, the appellant lived in Markham. The complainant lived on the other side of Toronto, in Etobicoke. The appellant's presence in the vicinity of the complainant's house the night before was of some value in assessing whether the appellant was involved in the incident the next day. It could also serve to rebut the appellant's assertion that his presence in the area at the time of the offence was coincidental. The trial judge's balancing of the probative value of the evidence against its prejudicial effect demonstrates no error and is entitled to deference.

Motion for Directed Verdict

[10] After the Crown closed its case, the defence sought a directed verdict on the robbery count, arguing that there was no evidence on some of the essential elements of the offence. The trial judge dismissed the motion. She found it was a reasonable inference that the person who was in the garage, masked, and pointing a gun at the complainant's head, was there attempting to steal or with the intent to steal from the complainant. The appellant submits that in the absence of any words or gestures indicating an intent to take property, the inference was unreasonable and the count should not have been left with the jury.

[11] We disagree. Intent is frequently proven by inferences drawn from the totality of the circumstances. As the trial judge pointed out, the traditional test on a motion for a directed verdict is whether there is any evidence upon which a reasonable jury, properly instructed, may convict: United States of America v. Shephard, [1977] 2 S.C.R. 1067, at p. 1080. The Crown was not required to demonstrate that the inference sought was a likely or probable inference arising from the evidence, let alone that it was the only available inference. To leave the count with the jury, it was enough that it was a reasonable inference consistent with guilt.

[12] Here, as the respondent points out: (i) the appellant and the other participant were unknown to the complainant and had no prior relationship with him or reason to be at his residence; (ii) at least one of the participants had taken steps to conceal his identity; (iii) the two individuals had obviously been lying in wait for the complainant outside his garage; (iv) they surreptitiously followed him into the garage; (v) they took up positions on either side of the car, blocking the complainant's most likely escape routes out of the vehicle; (vi) one of the men had what appeared to be a firearm, which he pointed at the complainant's head; (vii) the firearm was pointed, but not fired; and (viii) the complainant had property worth stealing – he lived in a large home and drove a Mercedes.

[13] This evidence, viewed as a whole, if accepted by a properly instructed jury, was reasonably capable of supporting a conviction for robbery. We do not give effect to this ground of appeal.

Party Liability

[14] Finally, the appellant submits that there was insufficient evidence to leave party liability on the counts of use of an imitation firearm and disguise with intent with the jury.

[15] The trial judge concluded that the jury could draw an inference from all the evidence that the person on the passenger side of the car knew that the other person was wearing a face mask and was pointing an imitation firearm for the purpose of committing a robbery, and was assisting that person in the commission of the offences. She stated, at para. 26 of her reasons on this issue:

I am of the view that the act of entering the garage as the complainant drove into it and standing at the passenger door while another person stood at the driver door wearing a mask and pointing a gun at the complainant is sufficient evidence of the actus reus of aiding or abetting the perpetrator to commit the offence. I am further of the view that the mens rea requirement consisting of intent and knowledge of the person at the passenger door may be inferred from all the circumstances such that party liability has to be left with the jury. It is a logical and reasonable inference that may be drawn from the circumstances that the person beside the passenger door was there to assist or encourage the person holding the gun and wearing the mask.

[16] Again, the evidence as a whole, some of which is referred to above, supported an inference that the two men worked together in the planning and execution of the incident. They entered the garage together and fled together on foot. Given the totality of the circumstances, it was a reasonable inference that the man at the passenger side was more than simply present at the scene of the incident, but was acting with the intent and purpose of assisting the gunman.

[17] The appellant has demonstrated no error in the trial judge charging the jury on party liability.

Conclusion

[18] For these reasons, the appeal is dismissed.

"G.R. Strathy C.J.O."

"Doherty J.A."

"L.B. Roberts J.A."