DATE: 20031020

DOCKET: C39629

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) – and – WILLIAM DEWAR (Appellant)

BEFORE: WEILER, MacPHERSON and CRONK JJ.A.

COUNSEL: Benson Cowan for the appellant Shawn Porter for the respondent

HEARD: October 10, 2003

RELEASED ORALLY: October 10, 2003

On appeal from the conviction entered by Justice Guy Mahaffey of the Ontario Court of Justice dated January 20, 2003.

E N D O R S E M E N T

Nature of Appeal

[1] The appellant appeals his conviction for break and enter, breach of probation and breach of recognizance on January 20, 2003 on two bases. The first is that the verdict was unreasonable and the second is that the trial judge used the fact that the appellant did not testify as an inculpatory factor in convicting him. We would reject both these grounds of appeal.

[1] To deal with the first ground of appeal a brief summary of the facts is necessary. The Great Steak & Potato restaurant was broken into as part of a spree of break-ins of the New Sudbury Shopping Centre on the night of June 24, 2001. The police seized a bottle of Coke found in the office of Edgar Burton, manager of the restaurant. Mr. Burton told police that employees were not allowed to drink canned pop in the restaurant and there was no way a pop-can would find its way into his office. Mr. Tessarolo, a DNA expert, testified that the DNA on the mouth of the Coke bottle was a mixture of the DNA of the appellant and a co-accused named Scully. Scully pled guilty to the offences with which he was charged arising out of the break-ins and Scully’s admission was an agreed fact.

[2] The appellant submits that the trial judge could not be satisfied from the presence of the appellant’s DNA on the coke bottle in the restaurant that he was present at the scene of the crime. The trial judge concluded that the Coke was consumed in the shopping centre during the break-in by both the appellant and Scully. He rejected the defence submission that the appellant may have drunk from the coke bottle outside the shopping centre and that Scully then carried it into the shopping centre with him. The trial judge’s reasoning was that since so little of the drink was consumed, the drink was not brought in to be consumed while the perpetrators hid within the mall and waited to commit the offences after the mall had closed. The trial judge also found it illogical that someone would bring Coke into the centre and drag it from establishment to establishment when several of the establishments broken into had pop readily available for the taking. The trial judge therefore concluded that the appellant was present at the shopping centre at the time of the break-ins as one of the perpetrators. In our opinion, the trial judge’s reasoning was not speculative as alleged. He was entitled to come to the conclusion that he did and the verdict is not unreasonable.

[3] We would also dismiss the second ground of appeal that the trial judge used the appellant’s silence to convict him. The trial judge prefaced his comments by saying, “Having arrived at the conclusion that the Crown has proved its case beyond a reasonable doubt…” and thus, it was only after he was satisfied of the appellant’s guilt beyond a reasonable doubt that he referred to the appellant not testifying.

[4] Accordingly we would dismiss the appeal.

“Karen M. Weiler J.A.”

“J. C. MacPherson J.A.”

“E. A. Cronk J.A.”