Court of Appeal for Ontario

Date: 20220425 Docket: C67526

Before: Strathy C.J.O., Nordheimer and Thorburn JJ.A.

Between: Her Majesty the Queen, Respondent And: Preston Darnell Scott, Appellant

Counsel: Myles Anevich, for the appellant Manasvin Goswami, for the respondent

Heard: April 12, 2022

On appeal from the conviction entered on June 7, 2019 and the sentence imposed on September 5, 2019 by Justice Terrence L.J. Patterson of the Superior Court of Justice.

Thorburn J.A.:

Factual Background

[1] Shortly after 2:00 a.m. on February 9, 2017, two men wearing masks or hoodies entered Mr. Leblanc’s home in Windsor, Ontario. They beat him with a hammer, kicked him, used zip ties to confine him and asked “where’s the dope?”

[2] The intruders were in the house for ten to fifteen minutes. They stole money, a backpack, marijuana, and jewelry. Mr. Leblanc suffered bruising to his face and body.

[3] The police arrived on the scene while the robbery was underway. They found the appellant alone in a motor vehicle a few doors away from the home where the robbery took place.

[4] The appellant was charged with robbery and tried with Mr. Lawrence, one of the two intruders. The Crown alleged that the appellant’s role in the robbery was to act as the driver.

[5] Mr. Leblanc testified that he had known the appellant’s family for years and had seen the appellant at a friend‘s house. Mr. Leblanc saw the appellant and his girlfriend drive by his house the day before the robbery and again when he was on his way home. Mr. Leblanc said that the appellant frequently used the road in front of his house, and that he had never had a problem with the appellant.

[6] Mr. Brierly, a neighbour, testified that he saw two intruders leave the vehicle from the front and back passenger-side doors and put on masks. The third person remained in the driver’s seat of the vehicle. The neighbour called the police. He said the vehicle started and moved slightly when the police arrived.

[7] The first officer on scene testified that he found the appellant reclined in the passenger seat in the front of the vehicle and did not note any movement of the vehicle upon his arrival.

The Trial Judge’s Decision

[8] The trial judge noted that the neighbour said he could see the individuals put their masks on as they exited the vehicle “because of a streetlight nearby”.

[9] The trial judge convicted the appellant, finding that [1],

Mr. Scott was the individual who drove the vehicle and parked at the curb while the other two individuals went in and committed the home invasion. Mr. Scott was observed by a neighbour and later identified as the driver of the vehicle out of which two individuals exited with ski masks as they crossed the street to the area that [police] subsequently determined was the house of Mr. Leblanc.

He was waiting at the curb in a no parking area. Because of a call of suspicious activity, police approached the vehicle, and at the same time as they approached the parked vehicle, the call came to the police from Mr. Leblanc reporting the home invasion.

In my opinion, in all the circumstances, Mr. Scott … aided Mr. Lawrence [one of the two men who entered Mr. Leblanc’s home] in regard to robbery with violence, in that he assisted and helped him in committing the offence, being the driver of the vehicle and waiting in the area outside in the anticipation that they would be exiting the vehicle…

I am [also] satisfied Mr. Scott knew that Mr. Lawrence was intending to commit the offence and he intended to assist Mr. Lawrence in carrying out the offence. The fact that the two individuals exiting the Scott vehicle saw – it would be appropriate to assume that he had seen – the individuals putting on the face masks, covering their face at the time they were exiting the vehicle by Mr. Scott. I am satisfied he had knowledge of the facts that constitute unlawful objective. Further …I am satisfied…Mr. Scott knew that Mr. Lawrence intended to commit a crime. [Emphasis added]

[10] The two intruders, one of whom was Mr. Lawrence, were also convicted.

The Issues on Appeal

[11] The appellant appeals both his conviction and his sentence. He claims:

i. The trial judge made an improper assumption in finding that the appellant saw the two intruders put on their face masks as they left the vehicle; ii. The trial judge’s reasons were insufficient to convict the appellant of aiding in the commission of the offence, given his misapprehension of evidence, and that he failed to address the conflicting testimony as to whether the appellant was in the front driver seat and started and then stopped the vehicle when police arrived; and iii. The six and one half year sentence was unfit.

The First Issue: Whether the Trial Judge relied on an Improper Assumption in finding that the Appellant saw the two Intruders put on Face Masks as they left the Vehicle

[12] The Crown theory was that the appellant assisted the intruders to commit the home invasion by serving as their driver.

[13] The Crown is required to prove “that the aider knew that the perpetrator intended to commit the crime although the aider [did not need to] know precisely how the crime was to be committed”: R. v. Briscoe, 2010 SCC 13, [2010] 1 SCR 411, at para. 17; R. v. Tomlinson, 2014 ONCA 158, 307 CCC (3d) 36, at para. 144.

[14] The trial judge stated in his oral reasons that it would be “appropriate to assume” that the appellant saw the intruders wearing facemasks when they exited the vehicle, and this showed that he knew they intended to commit a criminal offence.

[15] The appellant notes that there is no direct evidence that the appellant saw the intruders put their masks on as they exited the vehicle, or that the appellant knew the intruders were about to commit a home invasion. The neighbour could only say that he saw the intruders put on their masks as they left the vehicle and moved in front of the vehicle toward the home.

[16] The appellant claims the trial judge’s words “appropriate to assume” violate the presumption of innocence and burden of proof required to convict an accused person, and undermine his finding that the appellant had knowledge of the home invasion. The appellant submits that the conviction must therefore be overturned.

[17] I disagree. The trial judge’s use of the words “appropriate to assume” was unfortunate but does not justify undoing the appellant’s conviction.

[18] The following uncontested facts support the inference that the appellant knew the intruders put on masks before committing the crime:

• The two intruders arrived in the vehicle with the appellant. No one but these two individuals was seen entering or leaving the vehicle;
• The two intruders put on masks just after the vehicle was parked, as they left and walked in front of the vehicle;
• The intruders then proceeded to cross the street in front of the vehicle toward the home they robbed;
• The appellant was seated alone in the front of the vehicle when the intruders left the vehicle; and
• The vehicle was parked in an area well-lit by “streetlights nearby”.

[19] The trial judge referred to this evidence and it was reasonable (or to use his words, “appropriate”) for him to infer, from this evidence, that the appellant saw the intruders wearing facemasks.

[20] The trial judge should have used the words “appropriate to infer from the above evidence”, that the appellant knew the intruders were wearing facemasks, rather than “appropriate to assume.” However, the fact that the trial judge misstated words “at one point should not vitiate his ruling if the preponderance of what was said shows that the proper test was applied and if the decision can be justified on the evidence”: R. v. B. (C.R.), , [1990] 1 S.C.R. 717, at p. 737; R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 19; R. v. Davis, , [1999] 3 S.C.R. 759, at para. 103; and R. v. Harris, 2019 ONCA 193, at para. 11.

[21] Second, when making an identical finding as to the appellant’s knowledge of the masks worn by the intruders later in his reasons, the trial judge did not use the word “assume”. He stated: “I am satisfied Mr. Scott…was aware that two individuals…exited the vehicle, placed face masks on and went into the Leblanc residence.”

[22] Third, there was other circumstantial evidence supporting the conclusion that the appellant knew that the intruders were about to commit a robbery when they left the car. It was not disputed that after the intruders left, the appellant stayed alone in the vehicle on a cold winter evening as the robbery was committed, and was the only one of the three people in the vehicle who knew the victim.

[23] This evidence is sufficient to support the inference that the appellant drove the intruders to the scene to help them commit the crime.

[24] While the appellant notes that Crown counsel said in his closing submissions that the evidence “might not be quite enough” to prove the case against the appellant, the appellant does not suggest that the above findings were unavailable on the evidence, nor does he claim that the trial judge reached an unreasonable verdict.

[25] For these reasons, the first ground of appeal fails.

The Second Issue: Whether the Reasons were Sufficient

[26] The appellant also claims the trial judge’s reasons are insufficient as he misapprehended the evidence, and he did not assess the different testimony from the neighbour and the police officer as to whether the appellant was in the front‑driver or front-passenger seat when police arrived, whether the appellant turned the vehicle on and off when police arrived, or why he preferred the evidence of the neighbour on these points.

The Law Respecting Sufficiency of Reasons

[27] A trial judge’s reasons must provide an apparent “logical connection between the verdict and the basis for the verdict,” and a basis for meaningful appellate review of the correctness of the trial judge’s decision: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 35; R. v. Walker, 2008 SCC 34, [2008] 2 S.C.R. 245, at para. 20.

[28] The degree of detail required of the reasons varies with the circumstances. Less detailed reasons may be needed where the basis of the trial judge’s decision is apparent from the record. More detail may be required where the trial judge is called upon “to resolve confused and contradictory evidence on a key issue”: R.E.M. at para. 44 and Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 55. A trial judge should always address important conflicting evidence probative of the accused’s state of mind: R. v. Lagace (2003), , 181 C.C.C. (3d) 12 (Ont. C.A.), at paras. 34 and 44.

[29] A misapprehension of evidence results from a “mistake as to the substance of material parts of the evidence” that play an essential part in the reasoning process resulting in a conviction: R. v. Brownlee, 2018 ONCA 99, at para. 41 and R. v. Lohrer, 2004 SCC 80, at para. 2. Such a misapprehension of evidence is a reversible error: R. v. Lohrer, 2004 SCC 80 at para. 2 and R. v. Morrissey (1995), 97 CCC (3d) at 221 (OCA) and R. v. Smith, 2021 SCC 16 at para. 2.

[30] To establish that reasons are insufficient, the appellant must show “not only that there is a deficiency in the reasons, but that the deficiency caused prejudice to the exercise of [his] legal right to an appeal in a criminal case”: R. v. Sheppard, at para. 33; R. v. Slatter, 2019 ONCA 807, 148 O.R. (3d) 81, at paras. 108-09, per Pepall J.A. (dissenting), rev’d 2020 SCC 36.

[31] In this case, the reasons are sufficient to find that the appellant assisted the intruders to commit robbery [2] for three reasons: (i) The trial judge did not misapprehend the evidence. He drew a reasonable inference from the evidence that the appellant drove to the site of the robbery; (ii) It was not necessary to decide who was in the driver’s seat by the time police arrived, and whether the appellant then turned the vehicle on and off; and (iii) In any event, there is evidence on the record that the neighbour’s evidence was reliable and should be believed.

(I) No Misapprehension of the Evidence

[32] There is no dispute that a home invasion took place at Mr. Leblanc’s home, or that the intruders wore masks. The trial judge held that,

Mr. Scott was the individual who drove the vehicle and parked at the curb while the other two individuals went in and committed a home invasion. Mr. Scott was observed by a neighbour and later identified as the driver of the vehicle out of which two individuals exited with ski masks as they crossed the street to the area that subsequently determined was the house of Mr Leblanc.... He was the driver of the vehicle where two individuals were observed exiting his vehicle with face masks on. He was waiting at the curb in a no-parking area. [Emphasis added.]

[33] As noted above, the trial judge’s conclusion that the appellant drove the intruders to the site knowing they were going to rob Mr. Leblanc’s home was based on the neighbour’s uncontradicted evidence that (i) the vehicle was driven to the scene at around 2 a.m., (ii) as soon as the vehicle was parked, two men left by the two passenger-side doors and walked in front of the vehicle while masking their faces, (iii) the appellant was in the front of the vehicle as the intruders left, (iv) the lighting was good as there were streetlights outside, (v) he was the only person who remained in the vehicle at all times thereafter until police arrived, and (vi) he remained in the car alone with the engine off, in a no-parking area in the cold, while the robbery took place. The police officer who arrested Mr. Lawrence testified that the intruders were carrying masks.

[34] There was no misapprehension of the evidence. These findings alone, based on uncontradicted evidence, were sufficient to enable the trial judge to conclude that the only reasonable inference was that the appellant drove the intruders to the site knowing they were about to commit robbery.

(II) The Trial Judge Addressed the Conflicting Testimony about what happened Thereafter

[35] The trial judge was aware of the police testimony that the appellant did not start the vehicle when police arrived. He wrote,

[T]here was some conflicting testimony when police were called and were approaching the parked vehicle, whether Mr. Scott attempted to start the vehicle and then stopped, as this was not observed by the police officer approaching. Defence counsel for Mr. Scott indicated that when the police approached the minivan Mr. Scott was in the passenger seat in a reclining position and was therefore not the driver.

[36] He concluded that,

I accept [the neighbour’s] testimony that the individual remaining in the vehicle was Mr. Scott. Whether or not Mr. Scott attempted to start the car when he was aware the police [were] arriving and then stopped, and whether or not the approaching police officer for some reason did not see the vehicle being turned [on] and stopped, does not take away from my belief, Mr. Scott was the driver… He was the driver of the vehicle [from] which two individuals entered the Leblanc residence, [and] committed the offence.

[37] The trial judge focused his conclusion that the appellant was the driver on the neighbour’s evidence that the appellant “was the individual who drove the vehicle [to the location] and parked at the curb”.

[38] He explained that what happened after that was not significant as these points “do not take away from my belief that Mr. Scott was the driver [to the place of the offence] and…a party to the offence” [knowing the intruders were going to rob Mr. Leblanc]. The evidence about whether the appellant remained in the driver’s seat or moved over to the front passenger seat was not necessary to establish that the appellant aided the intruders to commit robbery.

[39] The reasons are therefore sufficient to “respond to the case’s live issues, having regard to the evidence as a whole and the submissions of counsel” (R. v. D. (J.J.R.) (2006), , 215 C.C.C. (3d) 252 (Ont. C.A.), at para. 32).

(III) There is Ample Evidence in the Record to Suggest the Neighbour’s Evidence is Reliable

[40] In R. v. Dinardo, 2008 SCC 24, [2008] 1 SCR 788, at para. 32, Charron J. for the court held that:

This Court emphasized in Sheppard that no error will be found where the basis for the trial judge’s conclusion is “apparent from the record, even without being articulated” (para. 55). If the trial judge’s reasons are deficient, the reviewing court must examine the evidence and determine whether the reasons for conviction are, in fact, patent on the record.

[41] As such, even if the evidence as to where the appellant was by the time police arrived were key, there is ample evidence to suggest the neighbour’s evidence was reliable such that this is not a proper basis to overturn the conviction.

[42] The appellant’s trial counsel did not challenge the credibility of the neighbour’s evidence as to whether the appellant started the vehicle when police arrived, nor was he cross-examined on the reliability of any of his observations that differed from those of the police officer. There was no dispute that the neighbour was well-positioned to see the vehicle from his window at a distance of ten metres, aided by nearby streetlights. Moreover, other aspects of the neighbour’s evidence were corroborated such as the colour of the vehicle, the distance of the vehicle from the home, the direction the vehicle was facing, the number of individuals who left the vehicle, and the direction they travelled.

[43] As such, the neighbour’s evidence is sufficient to enable the trial judge to conclude that the only reasonable inference was that the appellant aided the intruders to commit robbery, by driving the intruders to the site of the robbery and serving as a getaway driver.

[44] Deference is owed to the trial judge’s conclusion that the only reasonable inference is that the appellant is guilty. It is not for the court of appeal to retry the case. While not every trier of fact may have reached the same conclusion as the trial judge, the trial judge’s conclusion was a reasonable one: R. v. Villaroman, 2016 SCC 33, [2016] 1 SCR 1000, at para. 69.

[45] The appellant raised for the first time in oral submissions on this appeal, the fact that the appellant was found with no keys on his person at the time of the search of his person. No reason was provided for the failure to raise the issue before.

[46] As Doherty J.A. held in R. v. Rollocks (1994), , 19 O.R. (3d) 448, 91 C.C.C. (3d) 193 (C.A.), at p. 453:

Normally where an issue is not raised at trial it cannot be raised on appeal. Appellate courts sit in review of decisions made in trial courts. The requirement that issues be raised and adjudicated upon at trial before they will be considered on appeal is inherent in the appellate function.

[47] The discretion to hear and decide new issues on appeal “is not exercised routinely or lightly”: Guindon v. Canada, 2015 SCC 41, [2015] 3 S.C.R. 3, at paras. 5 and 22.

[48] In any event, this evidence is not sufficient to overturn the conviction.

[49] There is no palpable or overriding error of fact, no failure to outline the basis for the verdict, and no prejudice to the exercise of the appellant’s legal right to appeal such that the conviction should be overturned.

[50] For these reasons, the second ground of appeal fails.

The Third Issue: Whether the Sentence was Fit

[51] The appellant claims he should have received a shorter sentence than his co-accused, Mr. Lawrence, as (i) the appellant was the driver not the intruder who assaulted the victim and (ii) the appellant was not on probation as was Mr. Lawrence.

[52] Sentencing decisions attract significant deference and can only be overturned if an error in principle affected the sentence or if the sentence meets the high threshold of being demonstrably unfit. An appellate court may not intervene simply because it would have weighed the relevant factors differently or imposed a different sentence: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 39-42 & 48-51; R. v. Friesen, 2020 SCC 9, 444 D.L.R. (4th) 1, at paras. 25-29.

[53] In this case, the sentencing judge concluded that the appellant did not deserve a shorter sentence than Mr. Lawrence. He held that both were part of the same criminal endeavour to commit a home invasion and the appellant was the only one who knew the victim.

[54] Unlike Mr. Lawrence, the appellant stayed in the vehicle during the robbery. However the trial judge held that he did so to avoid being identified by the victim. Moreover the appellant had a much longer and more serious criminal record than Mr. Lawrence.

[55] The sentencing judge addressed and weighed the sentencing principles and deference is owed to his decision save for his failure to award credit for pre‑sentence custody. Given that the appellant spent fifteen days in pre-trial custody, he should be awarded 22.5 days credit (23 days rounded) for his pre‑sentence custody. The respondent agrees to this sentence adjustment.

Conclusion

[56] I therefore find the reasons for conviction are sufficient and there is no deficiency causing prejudice to the exercise of the appellant’s right to appeal.

[57] With the exception of credit for presentence custody, the sentence is fit.

[58] For these reasons, the appeal is dismissed. Leave to appeal the sentence is allowed and the sentence is reduced by 23 days.

Released: April 25, 2022 “G.R.S.” “J.A. Thorburn J.A.” “I agree. G.R. Strathy C.J.O.” “I agree. I.V.B. Nordheimer J.A.”

Footnotes:

[1] Oral reasons were circulated to the parties. Written reasons that contained some amendments were later found in the court file but were not provided to the parties. As such, only the oral reasons were considered on this appeal.

[2] The trial judge referred to three different routes to liability: common purpose, joint principals, and aiding. However, the only route to liability on the evidence was aiding. The respondent does not attempt to sustain the conviction on any route other than aiding.