Court of Appeal for Ontario

Date: February 2, 2018 Docket: C62929

Judges: Rouleau, Pepall and Miller JJ.A.

Between

Her Majesty the Queen Respondent

and

Marty Brownlee Appellant

Counsel:

• John N. Pepper, for the appellant
• Andrew Hotke, for the respondent

Heard: November 15, 2017

On appeal from: The convictions entered on August 3, 2016, with reasons reported at 2016 ONSC 4763, 132 W.C.B. (2d) 102, and the sentence imposed on November 15, 2016 by Justice Timothy Ray of the Superior Court of Justice.

Pepall J.A.:

A. Introduction

[1] The appellant, Marty Brownlee, was convicted of theft over $5,000, break and enter, two counts of possession of property for the purpose of trafficking, and one count of possession of property obtained by crime. He received a 12 month sentence of incarceration, a six month consecutive conditional sentence, 36 months of probation, and a $50,000 restitution order.

[2] The appellant appeals from his convictions. He submits that the trial judge failed to properly apply R. v. W.(D.), applied stricter scrutiny to the defence case than that of the Crown, provided insufficient reasons, and misapprehended the evidence. Based on Kienapple v. R., he also submits that two of the convictions should be stayed. The appellant has abandoned his sentence appeal.

B. Background Facts

[3] At the time of trial, the victim, Donald McHugh was a 69 year old retiree. He and his wife had lived in Renfrew, Ontario for 29 years. He was an experienced coin collector. McHugh's coin collection included silver dollars and silver bars, and had a value in the tens of thousands of dollars. His coins and bars were distinctive, as he kept them highly polished. At trial, witnesses who were professional coin dealers stated that it was unusual to see coins and bars as uniformly polished as McHugh's.

[4] McHugh maintained his collection in a safe covered with a cloth in his garage. The safe was easy to lock but took 10 or 15 minutes to open. McHugh testified that he would leave the safe unlocked if he was going into the house on an errand or staying around.

[5] The appellant was 42 and was in the electronic security installation business. The appellant admitted that, in 2014, around the time the thefts occurred, his main business partner was absent and there had been a decline in business. In the appellant's own words, the business went through "peaks and valleys", and it was in one such a valley. That spring, there were days the appellant did not work, days he worked at home, and days he worked at his partner's place.

[6] The appellant and McHugh considered themselves to be friends. The appellant visited McHugh most mornings; they would sit in the garage, have coffee, and discuss the affairs of the world. They would also discuss coins. Like McHugh, the appellant was interested in coins and both he and his wife had coin collections. The appellant was not as experienced in coin collecting as McHugh and would seek his advice.

[7] The appellant would come from time to time to borrow tools and, if McHugh were not there, Ms. McHugh would give him the key to the garage. Ms. McHugh recalled that in the last week or two before the theft, the appellant was at the house every day and sometimes two to three times a day. She found the many and frequent visits to be unusual.

[8] On May 9, 2014, the day of the theft, the appellant visited McHugh in the morning as was his habit. He came to borrow a tool and arrived between 7:00 a.m. and 8:00 a.m. in his white pickup truck. He brought coffee and the two men talked in the garage. To the appellant's knowledge, Ms. McHugh was not there, having returned to work that day after a lengthy medical leave.

[9] The appellant left McHugh's place between 9:30 a.m. and 11:00 a.m.

[10] After the appellant left, another friend of McHugh's, Robert McLaren, came to visit. He was interested in buying some coins from McHugh. McLaren left around noon, after visiting the garage and looking at some coins in which he was interested.

[11] It was McHugh's habit to have lunch each day with a friend who suffered from Parkinson's disease. McHugh left for lunch at 12:30 p.m. and returned at 2:00 p.m. While he was gone, a significant portion of his collection had been stolen, although there was no evidence of any forced entry.

[12] McHugh could not recall if he had locked the safe before leaving for his friend's place for lunch that day, but did remember locking the door to the garage. Another access point to the garage was by a remote controlled garage door. McHugh testified that the next day, he found one of the three remote control garage openers missing from its usual spot.

[13] On discovery of the theft on his return from lunch, McHugh called the appellant, who said he was in Kanata, a suburb of Ottawa not far from Renfrew. McHugh then called McLaren, followed by the police. McLaren came right over and the appellant came over later in the afternoon in a different motor vehicle from the white truck he visited in during the morning.

[14] The police conducted an investigation. They interviewed the appellant twice, first on June 3, 2014 and then again on August 13, 2014.

[15] On June 3, 2014, the appellant produced various receipts to account for his whereabouts. He was asked where he had gone in Ottawa on the day of the theft. He knew that the questioning was about coins, but did not mention that he had gone that afternoon to Ottawa Gold Buyer, a company in Ottawa that buys and sells precious metals, and for the first time ever, sold them some silver coins. Nor did the appellant mention that, in the weeks following the theft, he sold polished coins on several occasions to Aidid El-Khoury and George Bateh of Coin Talk Inc., an Ottawa-based company that buys and sells coins. He also failed to tell the police that he tried to sell some coins to Vincenzo Demarinis, his business partner's neighbour, later in May. He did volunteer that he had an ATM receipt to show where he was on May 9, 2014.

[16] On August 13, 2014, the appellant was asked by the police to go through the day of May 9, 2014. Again, he said nothing about visiting Ottawa Gold. Similarly, when asked if he had tried to sell any coins, he said nothing about Ottawa Gold, Coin Talk, or Demarinis. When asked about coins and selling coins, he stated that he had zero interest in coins or said he did not remember. As the trial judge noted at paras. 48-49 of his reasons:

When asked further about how much buying or selling he had done, he responded "nope", when he admitted he had by the time of that interview sold between $4,000 and $5,000 to [Aidid] or George at Cointalk. When he was further questioned at the time about his use of kijiji or eBay to sell coins, he again failed to mention Ottawa Gold or Cointalk.

Detective Burns asked the [appellant] if anyone was going to come forward and say that he had tried to sell them coins. He deflected her question and failed to tell her about Mr. Demarinis.

[17] As part of their investigation, on September 24, 2014, the police obtained the appellant's call logs. The logs showed the following calls were made on May 9, 2014 from the appellant's phone:

• a call to McHugh's neighbour (Robert Bilmer) at 10:18 a.m. made from Renfrew;
• a call to McHugh's home at 11:38 a.m. also made from Renfrew;
• four calls to the Pembroke hospital, where the appellant's wife worked, at 11:39 a.m., 12:21 p.m., 1:13 p.m., and 1:33 p.m., respectively. The first two calls were made from Renfrew, the third was from Arnprior, a town between Renfrew and Ottawa, while the last call was made from West Carleton, which is on the outskirts of Ottawa;
• a call at 1:14 p.m. to the appellant's business partner, again from the outskirts of Ottawa;
• a call at 1:35 p.m. to an unrelated party made from Kanata;
• a call at 2:14 p.m. to Ottawa Bullion (another company located in Ottawa that deals in silver bullion) made from Ottawa;
• a call at 2:19 p.m. to Ottawa Gold made from Ottawa; and
• a fifth call to the Pembroke hospital at 2:24 p.m. made from Ottawa.

[18] The police confirmed with Ottawa Gold that the appellant had called them. An invoice dated May 9, 2014, showed that, at 2:56 p.m., the appellant had sold polished coins, a 1 kg bar, and a 10 ounce bar to Ottawa Gold for $2,385.73. The appellant had never contacted Ottawa Gold previously.

[19] The police also followed up with Demarinis, after learning from the appellant's business partner that the appellant had approached Demarinis about purchasing some coins and a bar after the date of the theft. Demarinis confirmed that he was contacted by the appellant on May 25 or 26, 2014. The two met, and the appellant produced a shiny coin and bar, both of which he tried to sell to Demarinis, who was not interested.

[20] Meanwhile, McHugh had been in touch with El-Khoury and Bateh of Coin Talk, with whom he had prior dealings, and told them about the theft of his coins and bars. El-Khoury recalled meeting the appellant in May 2014 and purchasing two tubes of polished silver dollar coins from him. El-Khoury and Bateh remembered at least seven additional transactions where one or both of them purchased coins from the appellant in the weeks after the theft. In total, Coin Talk purchased from the appellant between $4,500 and $5,000 of coins, which El-Khoury and Bateh remembered as being mostly and unusually highly polished. Phone logs confirmed that the appellant had telephoned Coin Talk's office 13 times on May 20. Between May 20 and August 19, 2014, there were 62 calls between the appellant and Coin Talk. Prior to May 9, 2014, the appellant had never dealt with Coin Talk.

[21] The call logs also showed the appellant's location relative to call towers. The logs suggested that the appellant had time to steal the coins and bars and be in the places identified by the call towers and on his ATM receipt.

[22] Prior to the day of the theft, McHugh had made two small purchases from the appellant. These were the only two sales of coins or bars the appellant made before May 9.

C. Grounds of Appeal

[23] The appellant submits that the trial judge failed to assess the credibility and reliability of the Crown's witnesses, particularly McHugh, and dismissed or ignored the defence submissions on flaws and weaknesses in the Crown's case without articulating why he did so. The appellant similarly submits that the trial judge also rejected the appellant's evidence without putting it in context. He submitted that these flaws could be characterized as: i) a failure to articulate and apply the W.(D.) analysis, ii) the application of harsher scrutiny to the defence case in comparison to that of the Crown, or iii) inadequate reasons.

[24] The appellant also submits that the trial judge misapprehended aspects of the evidence. Finally, the appellant appeals on the basis that two of his convictions involved lesser offences arising out of the same facts as two of the more serious offences for which the appellant was also convicted. On the basis of Kienapple, the appellant submits that the convictions for the two lesser offences should be stayed.

[25] For the following reasons, I would reject each of these submissions, with the exception of the Kienapple submission, which I would grant.

D. Analysis

(a) R. v. W.(D.) Analysis

[26] The appellant submits that where an accused has testified, the trial judge must assess the accused's evidence in the context of the evidence of a whole, and explain why the evidence was rejected. He contends that the trial judge failed to do so here.

[27] The trial judge noted in his reasons that he was obliged to follow W.(D.). He reviewed in considerable detail the evidence advanced by the Crown and that of the defence. He set forth the positions of the parties and, after repeating certain facts, he properly instructed himself on the requirements of W.(D.) at paras. 88 and 90. He then applied those principles to the case before him. He did not accept the appellant's evidence and concluded that his evidence did not raise a reasonable doubt about his guilt. He identified some of the numerous shortcomings in the appellant's version of events including inconsistencies, implausibilities, and material omissions. The trial judge then considered whether, on the whole of the evidence, the Crown had established the appellant's guilt beyond a reasonable doubt.

[28] Describing the evidence as circumstantial, the trial judge also instructed himself to consider whether, on the basis of the whole of the evidence, the only rational conclusion was the guilt of the appellant. He determined that the only reasonable and rational conclusion was that the appellant had: entered McHugh's garage while he was gone, using either the garage door remote opener, which he quickly replaced, or a key to the door, which he had surreptitiously hidden; opened the safe either with a key or, more likely, found it open; removed contents from the safe; and drove to Ottawa, where he sold $2,385.73 of the coins and bars he had stolen.

[29] Among other things, the trial judge observed that, apart from dealings with McHugh, the appellant had never sold from his or his wife's collection before nor had he had any dealings with Ottawa Gold or Coin Talk. He found that the appellant had ample opportunity to complete the theft, as the appellant was very familiar with McHugh's premises. Furthermore, he inferred that the sale by the appellant of so many shiny coins and bars was consistent with those coins and bars having been stolen from McHugh. As work was not going well and the appellant clearly was not spending much time working, it was a reasonable inference that, at the time, the appellant was hard up.

[30] The trial judge also rejected the defence argument that it would have been ludicrous for the appellant to sell silver to Ottawa Gold where identification was required, noting that only one sale was made there, and that no records or identification was kept or required at Coin Talk. In addition, the Demarinis sale would have been an unrecorded transaction to an unidentifiable purchaser. As the trial judge stated at para. 98:

Just as it was arguably ludicrous for the [appellant] on the day of the theft to go to Ottawa Gold to sell coins, it was equally ludicrous for the [appellant] to have repeatedly omitted to tell the police about his visit to Ottawa Gold when he was asked to explain his movements the day of the theft.

[31] The trial judge gave extensive consideration to whether the whole of the evidence established the appellant's guilt beyond a reasonable doubt. I see no error in the trial judge's W.(D.) analysis.

(b) Scrutiny Given to Defence Evidence

[32] Turning to the appellant's argument that the trial judge applied stricter scrutiny to the defence evidence than to that of the Crown, this court has repeatedly stated that it is an error of law to apply such a stricter level of scrutiny: R. v. Gravesande, 2015 ONCA 774, 128 O.R. (3d) 111, at para. 18.

[33] The appellant submits that McHugh's credibility was a live issue in the trial, and that the trial judge failed to resolve certain credibility issues in McHugh's testimony. The unresolved credibility issues identified by the appellant include details relating to any indebtedness owed by McHugh to the appellant following the appellant's two sales to McHugh, when McHugh noticed that the garage door opener was missing, and whether McHugh told the coin dealers El-Khoury and Bateh that the theft occurred while he was on vacation.

[34] The trial judge's treatment of the Crown witnesses and in particular the evidence of McHugh must be placed in context. It was not contested that the coins and bars were stolen from McHugh's safe on May 9, 2014. Nor was McHugh's evidence that the appellant visited McHugh often, knew about the safe, and was at McHugh's the morning of the theft contested. Similarly, McHugh's evidence that he kept his coins shiny and polished was uncontested. Lastly, despite the defence's submission at trial that the appellant sold his own coins and bars in Ottawa on May 9 to Ottawa Gold because McHugh had not paid him for earlier coin purchases, the appellant never testified to this effect.

[35] Furthermore, although the trial judge did not expressly state that he believed McHugh, it is obvious from his reasons that he accepted his testimony. Counsel never suggested that McHugh was a suspect, nor did the appellant.

[36] The trial judge also outlined the defence position at paras. 71 and 72 of his reasons. His outline is borne out by the transcript of the submissions of defence counsel at trial (who was different from counsel on appeal). In essence, the appellant's position was that someone else had stolen the bars and coins and that the police had done an inadequate investigation in following up with the leads McHugh had given them. The appellant argued that the sale to Ottawa Gold reflected his innocence because he knew he would have to provide Ottawa Gold with identification and would receive a cheque in payment for the bars and coins. The appellant contended that the reason he went to Ottawa Gold on May 9 was because McHugh had not paid him for a previous sale. However, as mentioned, he never testified to that effect nor did he raise this point in either of his two statements to the police.

[37] In my view, the trial judge fairly responded to the positions advanced by the defence and the Crown. While admittedly there were some inconsistencies in McHugh's evidence that might have been addressed, none related to matters of significance. When he noticed the garage door opener missing and whether he told his wife about it were not critical, nor was the timing and fact of the post-dated cheque payable by McHugh to the appellant which the trial judge considered at paras. 12 and 42. A trial judge is not required to refer to every piece of evidence or argument made by counsel: R. v. H.S.B., 2008 SCC 52, [2008] 3 S.C.R. 32, at para. 8. I would not give effect to this ground of appeal.

(c) Sufficiency of Reasons

[38] The appellant also submits that the trial judge's reasons for decision were insufficient.

[39] Appellate courts are to take a functional approach to reviewing the sufficiency of reasons. An appeal will be allowed if the reasons are so deficient that they fail to show why the judge decided as the judge did and foreclose appellate review: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 28. As stated by Watt J.A. in R. v. Wolynec, 2015 ONCA 656, 330 C.C.C. (3d) 541, at para. 56: consideration of the sufficiency of reasons "requires reading the reasons as a whole, in the context of the evidence, the arguments and the trial, together with an appreciation of the purposes or functions for which reasons are delivered." The core question to be answered in this case, as in others, is whether the trial judge's reasons, read in context, show why the judge decided as he did on the offences charged: see R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, at para. 15.

[40] The trial judge gave extensive 30 page reasons for decision. There is no question why he decided as he did. The Crown had a strong case. There was good reason to disbelieve the appellant given the numerous inconsistencies in his testimony and his statements to the police. Moreover, the only reasonable and rational conclusion that could be drawn from the whole of the evidence was that the appellant was the thief. The trial judge described in detail why the Crown had proven the appellant's guilt beyond a reasonable doubt, and he was clearly alive to the material issues in the case and the positions advanced by the parties. His reasons plainly provided for appellate review. I would not give effect to this ground of appeal.

(d) Misapprehension of Evidence

[41] The appellant also submits that the trial judge misapprehended the evidence. A verdict must be based exclusively on the evidence adduced at trial. If 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, that conviction is not based exclusively on the evidence and is not a "true" verdict: R. v. Morrissey, (1995), 22 O.R. (3d) 514 (C.A.).

[42] The appellant alleges that the trial judge misapprehended two issues.

[43] The first related to the appellant's 10:18 a.m. call to Bilmer, McHugh's neighbour. The trial judge stated at para. 93 of his reasons that he did not accept the appellant's explanation that he had called McHugh's neighbour to enquire about a boat. The trial judge reasoned:

If that were the case he would have spoken to Bilmer in person the morning of the theft, or even when he returned the afternoon of the theft. He did not. He said initially he could not remember why he had telephoned Bilmer. The story he told in his evidence of a late recovering memory was simply untrue.

[44] The trial judge's reference to a boat was inaccurate. In fact, although the appellant had said in his police interview that he was considering buying a boat, he said he called Bilmer about a trailer. However, this error cannot be described as material, nor did it play an essential part in the reasoning process.

[45] Second, the appellant submits that the trial judge erred in concluding that the appellant had ample time to commit the theft. He argues that the trial judge improperly treated any time following 11:39 a.m. to be "unaccounted for" (and therefore part of the window of opportunity necessary to commit the theft) and by counting time from 12:21 as relevant to opportunity. McHugh was home until around 12:30, and therefore, the appellant contends, those times could not be relevant for opportunity. The appellant also argues that the times and distances revealed by the phone logs made it impossible for the appellant to be the thief if the safe was locked, and very difficult if it was not.

[46] I disagree.

[47] The references to 11:39 a.m. and 12:21 p.m., when the appellant called the Pembroke hospital where his wife worked, were part of the narrative that also referenced the call tower and the 1:39 p.m. ATM receipt evidence and served to explain how long it would have taken the appellant to travel between Renfrew and Ottawa. The appellant conceded that he could have committed the theft if the safe was unlocked. At para. 91 of his reasons, the trial judge found that the safe was most likely open. This finding was available to him on the record. He did err in stating that the period between 12:21 p.m. in Renfrew and 1:13 p.m. in Arnprior was 54 minutes, as this in fact amounts to 52 minutes. However, again, this error was not material and the trial judge's determination that there was sufficient time to commit the theft was nonetheless reasonable. I would not give effect to this ground of appeal.

(e) Kienapple

[48] Lastly, the appellant submits that the convictions on counts one and five should be stayed based on Kienapple. He argues that his conviction for theft contrary to s. 334(a) of the Criminal Code (count one) is an included offence in his conviction for break and enter contrary to s. 348(1)(b) of the Code (count two) and his conviction for possession of McHugh's silver contrary to s. 354(1)(a) of the Code (count five) is an included offence in his conviction for possession knowing the silver was stolen and for the purposes of trafficking contrary to s. 355.5(b) of the Code (count three).

[49] The Crown is unopposed to this request.

[50] Here in each instance, the same transaction gave rise to two offences with substantially the same elements. There was both a factual and a legal nexus. The appellant should only have been convicted of the most serious of the offences. I would allow the appeal in this regard and grant the appellant's request that counts one and five be stayed.

E. Disposition

[51] For these reasons, the conviction appeal is allowed in part so that the convictions on counts one and five are stayed.

Released: February 2, 2018

"S.E. Pepall J.A."

"I agree Paul Rouleau J.A."

"I agree B.W. Miller J.A."