DATE: 20021213 DOCKET: C38518
COURT OF APPEAL FOR ONTARIO
McMURTRY C.J.O., CRONK and ARMSTRONG, JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
- and -
ERIK W. REID
Appellant
Laura Hodgson, for the Respondent
Erik Reid, in person
Heard: November 25, 2002
On appeal from the convictions entered and sentences imposed by Justice John F. Hamilton on March 26, 2002.
CRONK J.A.:
[1] The appellant was convicted of possession of stolen goods, possession of burglary tools, and breaking and entering. He was sentenced to one year imprisonment on his conviction for possession of stolen goods, and to two years less one day imprisonment concurrent on each of his convictions for possession of burglary tools and breaking and entering. His total sentence was two years less one day imprisonment.
[2] In his notice of appeal, the appellant sought to appeal his convictions and sentences. In oral argument before this court, however, his submissions concerned only his convictions appeal. The appellant argued that the trial judge erred: i) in finding that reasonable and probable grounds existed to arrest the appellant on the night in question; and ii) in his application of the governing law concerning recent possession of stolen property. Accordingly, he submitted that his convictions for possession of burglary tools and breaking and entering should be quashed. For the reasons that follow, I am satisfied that the trial judge did not err as alleged by the appellant. Accordingly, I would dismiss both the convictions and the sentences appeals.
(1) Background
[3] The appellant was under surveillance by the police for several days in April 2001. While under surveillance, he was observed operating a motor vehicle bearing stolen licence plates. During the evening of April 26, 2001, the police observed the appellant and David Siboni unloading computers and stereo equipment from Siboni’s automobile into the lobby and elevator of the apartment building where the appellant resided. The appellant was arrested by the police while he was carrying a stereo from the lobby of the apartment building to the elevator. When he was arrested, he was holding a bag which contained burglary tools. He also had a rubber glove in his pocket.
[4] The appellant testified at trial. He admitted that he had been driving a motor vehicle while his driver’s licence was under suspension. He also acknowledged that the licence plates on his car did not belong to him.
[5] The appellant claimed that on the night of his arrest, he spent several hours at a friend’s house and that Siboni, an acquaintance of the appellant, arrived at the friend’s house during the course of the evening. The appellant maintained that when Siboni indicated that he had musical equipment for sale, the appellant expressed interest in buying a stereo, and indicated that he might be able to sell some of the equipment. The appellant said that he assumed that the equipment was stolen, although he did not seek to confirm that fact. He accompanied Siboni to Siboni’s car and observed the musical equipment in the car. Siboni and the appellant then drove to the appellant’s apartment building in Siboni’s car, where they started unloading the equipment for storage at the appellant’s residence.
[6] The appellant claimed that he had no knowledge that the bag he was carrying at the time of his arrest contained burglary tools. He maintained that he moved the bag from Siboni’s car, along with some of the musical equipment, without looking at the bag’s contents. He denied any participation in the break and enter of the music studio from which the musical equipment had been stolen. He maintained that he was in possession of the rubber glove because the glove fell from Siboni’s car while they were unloading the equipment, and he had merely picked the glove up and put it in his pocket.
[7] Before this court, the appellant admitted that he knew the goods in Siboni’s car were stolen, but claimed that he had no knowledge of the burglary tools prior to his arrest and that he had not participated in the break and enter of the music studio and the ensuing theft.
(2) Grounds for the Arrest of the Appellant
[8] The Crown asserts that there were ample legal grounds for the arrest of the appellant. The appellant had been under surveillance by the police for several days. While under police surveillance, he was observed driving a motor vehicle with stolen licence plates while his driver’s licence was suspended. He was further observed unloading computers and musical equipment into the lobby and elevator of his apartment building late at night, shortly after a break and enter and theft at a music studio. In my view, when considered cumulatively, those factors provided reasonable and probable grounds for the arrest of the appellant. In his submissions to this court, the appellant himself observed that he “sort of felt that the police had grounds” to arrest him but that his “lawyer said to bring it up.” This ground of appeal fails.
(3) Application of the Law Concerning Recent Possession of Stolen Property
[9] The appellant argues that no inference of guilt concerning the charges of possession of burglary tools and breaking and entering may be drawn from his admitted possession of stolen property. He contends that if his explanation for his actions on the night of his arrest and for his possession of the stolen goods is reasonably capable of belief, no inference of guilt may be drawn against him, even if the trial judge did not believe his explanation. He submits that there is no evidence that he had knowledge that the bag seized upon his arrest contained burglary tools and, further, that there is no evidence linking him to the breaking and entering of the music studio.
[10] In support of his submissions, the appellant relies upon the following statement by McIntyre J. in R. v. Kowlyk, 1988 50 (SCC), [1988] 2 S.C.R. 59 at 71-72:
[I] am of the view that it is clearly established in Canadian law that the unexplained recent possession of stolen goods, standing alone, will permit the inference that the possessor stole the goods. The inference is not mandatory; it may but need not be drawn. Further, where an explanation is offered for such possession which could reasonably be true, no inference of guilt on the basis of recent possession alone may be drawn, even where the trier of fact is not satisfied of the truth of the explanation. The burden of proof of guilt remains upon the Crown, and to obtain a conviction in the face of such an explanation it must establish by other evidence the guilt of the accused beyond a reasonable doubt [emphasis added].
[11] In my view, the decision in Kowlyk does not assist the appellant in the circumstances of this case. While the appellant advanced an explanation for his possession of the stolen goods, that explanation was clearly rejected by the trial judge as being unreasonable. The trial judge stated:
[T]he tools that were in that bag were consistent with the marks that were seen by the owner of the music shop, and he was in possession of recently stolen goods and the burglar’s tools, and where the Crown has proven possession of recently stolen goods, I’m not bound to find the accused guilty. I may, but not must, in the absence of any reasonable explanation, and I find the explanation given by the accused is not reasonable and does not raise a reasonable doubt.
[12] The appellant was arrested less than two hours after the theft of the music studio. He admits he was in possession of stolen goods at the time of his arrest. He was found holding a bag containing burglary tools. He also had a plastic glove in his possession. The burglary tools discovered in the bag were found by the trial judge to be consistent with marks seen by the owner of the music studio at his premises. Although the appellant offered an explanation for his possession of the stolen goods, that explanation was rejected by the trial judge as being unreasonable. That conclusion was open to the trial judge and was supported by the evidence. Thus, the appellant did not provide an explanation for his possession of the stolen goods which “could reasonably be true”. An unreasonable explanation, that is, an explanation which cannot reasonably be true, is no explanation at all for the recent possession of stolen goods. Accordingly, the first principle regarding the doctrine of recent possession of stolen goods established in Kowlyk applies here, namely, that the unexplained recent possession of stolen goods will permit the inference that the possessor stole the goods. The trial judge in this case, correctly in my view, drew such an inference. I would not give effect to this ground of appeal.
(4) Other Grounds of Appeal
[13] As I mentioned, the appellant did not pursue the other grounds of appeal raised in his notice of appeal concerning his convictions and sentences. Nonetheless, I have considered those other grounds of appeal and, on the record before this court, I have concluded that they are without merit.
(5) Disposition
[14] For these reasons, I would dismiss the convictions appeal. I would grant leave to appeal against the sentences, but would dismiss the sentences appeal.
RELEASED: “DEC 13 2002” “RMM”
“E.A. Cronk J.A.”
“I agree Roy McMurtry C.J.O.”
“I agree Robert P. Armstrong J.A.”