DATE: 20010215

DOCKET: C30772

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) – and – S.T. (Appellant)

BEFORE: CHARRON, FELDMAN AND MACPHERSON JJ.A.

COUNSEL: Catherine Glaister for the appellant

Lisa Joyal

for the respondent

HEARD: February 5, 2001

On appeal from the conviction by Justice Monte H. Harris on August 26, 1998.

E N D O R S E M E N T

[1] The appellant, a young person within the meaning of the Young Offenders Act, was convicted of robbery, use of a firearm while committing a robbery, unlawful confinement, possession of a stolen motor vehicle and possession of stolen firearms following a trial before Justice M. Harris of the Ontario Court of Justice. He received a sentence of 13 months secure custody in a youth detention facility. He appeals his conviction on two grounds: (1) that the verdict was unreasonable; and (2) that the trial judge erred in not staying the proceedings for unreasonable delay pursuant to s. 11(b) of the Charter.

Unreasonable Verdict

[2] The appellant contends that the verdict was unreasonable in three respects: first, the trial judge’s conclusion that the offences against the complainant had taken place; second, the trial judge’s conclusion that he appellant was inside the van when the offences against the complainant were committed; and third, the trial judge’s conclusion that the appellant committed, as a principal or a party, the offences inside the van.

[3] In considering whether a verdict is unreasonable pursuant to s. 686(1)(a)(i) of the Criminal Code an appellate court must determine on the whole of the evidence whether the verdict is one that a trier of fact, properly instructed and acting judicially, could reasonably have reached: see R. v. Yebes (1987), 1987 CanLII 17 (SCC), 36 C.C.C. (3d) 417 at 430 (S.C.C.).

[4] The trial judge was entitled to believe the complainant’s evidence that he had been robbed by several young men with firearms inside the van. He was aware of the frailties of the complainant’s evidence and referred to them in his reasons. Moreover, corroboration of the complainant’s testimony, although not required, was provided by a number of pieces of evidence inside the van. The complainant’s jacket was found inside the van with its sleeves turned inside out. The complainant’s asthma medication was found inside the jacket. Both of these items were consistent with the complainant’s evidence that he had been forced to hand over his jacket. In addition, firearms and ammunition were located in the van; these were consistent with the complainant’s allegation that the robbers had been armed.

[5] The trial judge’s conclusion that the appellant was an occupant of the van when the robbery took place was also reasonable. The complainant testified that four young men were in the van during the robbery. After he was released, approximately 13 minutes later, the van was stopped by police. Four males in dark clothing got out and ran away. Two minutes later, the appellant was caught hiding under a van in a driveway just a block from the subject van. He had a black ski-type mask in his possession. There were loose sunflower seeds in his jacket pocket. A sunflower seed package and seeds were also found in the van. The empty packet of seeds was located on the dashboard by the driver’s side door, and the sunflower seeds were primarily on the floor around the front passenger’s seat. Although all of this evidence was, as the trial judge recognized, circumstantial, in our view it supported his conclusion that the appellant was an occupant of the van when the robbery occurred.

[6] Finally, the trial judge’s conclusion that the appellant was “a perpetrator of all of the offenses or a party to the commission of all these offenses” was supported by the evidence of the complainant who described the occupants of the van acting in concert in carrying out the offences of robbery, use of a firearm, unlawful confinement and possession of the firearms. The complainant’s evidence, however, provided no support for the finding that the appellant was in possession of a stolen vehicle. While the totality of the circumstantial evidence supported the finding that the appellant was an occupant of the vehicle and that he had participated in the offences described by the complainant, it did not support any additional inference that he had the necessary control over the vehicle so as to constitute possession in law. See: R. v. Terrence (1983), 1983 CanLII 51 (SCC), 33 C.R. (3d) 193 (S.C.C.) where the Supreme Court held that control is a constituent and essential element of constructive possession.

[7] I would therefore give effect to this ground of appeal with respect to the offence of possession of a stolen vehicle only.

Unreasonable Delay

[8] The period of time from arrest to sentencing was 22 months. The trial judge held that in the circumstances of this case this was not an unreasonable delay requiring a stay for a violation of s. 11(b) of the Charter. We agree.

[9] Although the factual context of the offences was quite straightforward, there were a number of complexities, including three accused being tried together on four charges each, 18 Crown witnesses, 2 additional voir dire witnesses, several motions and applications, including two motions relating to physical restraints on two of the accused and the Charter s. 11(b) application. Moreover, the complainant did not show up on the first scheduled trial day, a co-accused was unavailable one day because of other court proceedings, counsel jointly underestimated the length of the case, and, at one juncture, the appellant’s counsel was unavailable on any day for two months which resulted in a four month adjournment. Taken together, these factors support the trial judge’s ruling on the s. 11(b) application.

Conclusion

[10] The appeal is allowed, the conviction for possession of a stolen vehicle is quashed, but the convictions for the remaining offences are confirmed.

(signed) “Louise Charron J.A.”

(signed) “K. Feldman J.A.”

(signed) “J. C. MacPherson J.A.”