DATE: 20041026

DOCKET: C42242

COURT OF APPEAL FOR ONTARIO

LABROSSE, MacPHERSON and CRONK JJ.A.

B E T W E E N:

HER MAJESTY THE QUEEN

Shawn Porter

for the respondent

Respondent

• and -

PHILLIP NICHOLL

David North

for the appellant

Appellant

Heard: October 15, 2004

On appeal from the convictions entered by Justice E. Gordon Hachborn of the Ontario Court of Justice on July 28, 2004 and the sentences imposed by Justice Hachborn on July 28, 2004.

CRONK J.A.:

[1] The appellant was charged with seven offences on a single information: two counts of possession of stolen property, one count of break and enter, two counts of failing to comply with a probation order and two counts of failing to comply with an undertaking. He entered a plea of guilty to breach of an undertaking to inform the police of any change in his place of residence and not guilty to the remaining six charges.

[2] On July 28, 2004, following a trial before Hachborn J. of the Ontario Court of Justice, the appellant was convicted on all counts and sentenced to one year imprisonment concurrent on all counts. He appeals his convictions on the first six counts and his sentence on all counts. If his appeal against conviction is dismissed, he seeks to have his overall sentence reduced to one of time served in light of the time that he has already served in custody.

[3] The trial proceeded on the basis of an agreed statement of facts. No witnesses were called. The first six charges arose from the theft of a motor vehicle and a break and enter on the same day at a nearby high school where several cellos were stolen from the music department. Two weeks after the theft of the vehicle, municipal parking lot authorities reported the vehicle to the police as abandoned. When the police recovered the vehicle, the stolen cellos and a parking stub bearing a date five days after the date of the vehicle’s theft were inside the car. Three of the cellos were marked with the name of the high school from which the cellos had been stolen. The record does not establish whether the vehicle was locked or whether the windows of the vehicle were open or closed when the vehicle was recovered by the police.

[4] At the time of the offences, the appellant was subject to probation and bail orders requiring that he keep the peace and abide by a curfew. He was also subject to an undertaking requiring that he notify the police of any change in his address.

[5] Apart from the breach of undertaking charge to which the appellant pled guilty, the only evidence connecting the appellant to the offences was the presence of a single can of Coca Cola discovered by the police inside the stolen vehicle. The appellant’s thumbprint was found on the can. The owner of the stolen vehicle confirmed that the pop can was not inside the vehicle prior to its theft.

[6] The Crown asserted at trial that the doctrine of recent possession applied to the agreed facts and that, in the absence of any explanation from the appellant, the Crown had proven its case beyond a reasonable doubt based on the agreed facts. The Crown maintained that the presence of the pop can inside the stolen vehicle was sufficient to connect the appellant to the break and enter at the high school and the thefts of the cellos and the motor vehicle. In brief reasons, the trial judge accepted the Crown’s argument and found the appellant guilty on all charges.

[7] The appellant argues that the trial judge erred in relying on the doctrine of recent possession to convict him on the first six counts. I agree.

[8] The unexplained recent possession of stolen goods permits, but does not require, an inference to be drawn that the possessor stole the goods: R. v. Kowlyk, [1988] 2 S.C.R. 59 at 71-72. Before such an inference may be drawn, however, the Crown must satisfy the trier of fact that: (i) the accused is in possession of the goods; (ii) the goods were stolen; and (iii) the theft was recent: R. v. Cuming, [2001] O.J. No. 3578 (C.A.). There is no question here that the motor vehicle and the cellos were stolen. The issue is whether the Crown met its burden to satisfy the remaining two prerequisites for invocation of the doctrine of recent possession.

[9] Neither of these prerequisites was satisfied in this case. On the record before the trial judge, there was no evidence establishing that the appellant ever had possession of the vehicle or the cellos; nor was there any evidence to indicate when or how, during the two weeks that the car was missing, the pop can was placed inside the stolen car. As well, there was no demonstration that the appellant had been in recent possession of the coke can or how he had come to dispose of it. Importantly, the appellant’s thumbprint was found on the pop can – not on any of the stolen property.

[10] The Crown relies on R. v. MacFadden (1981), 60 C.C.C. (2d) 305 (B.C.C.A.) to argue that the presence of the respondent’s thumbprint on the pop can found inside the stolen vehicle was sufficient to support the inference that the respondent was present in the stolen vehicle and that he gained entry to the vehicle by stealing it. In my view, MacFadden does not assist the appellant.

[11] In MacFadden, the accused was charged with the break and enter of a mobile home. The accused’s fingerprints were found on a beer bottle inside the home on the morning after the break and enter. The owner of the home testified that the beer bottle had not been present in the home the prior night. The proximity in time between the discovery of the beer bottle, which bore the accused’s fingerprints, and the break and enter of the mobile home rendered the probability of innocent explanations for the presence of the beer bottle unlikely and gave rise to the strong inference that the appellant had been in the premises in question.

[12] In contrast, in this case, the pop can bearing the respondent’s thumbprint was not discovered until two weeks after the theft of the vehicle. During that time, the pop can could have been placed in the vehicle by a variety of means. As well, the respondent’s thumbprint may have been placed on the pop can before or after the offences in question, or while the respondent was a passenger in the vehicle. In addition, the Crown failed to establish that the pop can had any connection with the theft of the motor vehicle or the cellos.

[13] Thus, the evidence relied upon by the Crown as establishing the respondent’s culpability was compatible with explanations other than those involving the respondent’s guilt. The presence of the respondent’s thumbprint on the pop can establishes that he handled the pop can, but this does not prove possession of the stolen vehicle in which the can was found, or of the cellos contained in the vehicle: see Poirier v. The Queen (1971), 16 C.R.N.S. 174 (Que. C.A.) and R. v. Sweezey (1974), 20 C.C.C. (2d) 400 (Ont. C.A.).

[14] In all the circumstances, there was an insufficient evidentiary footing at trial to support an inference of guilt based on the doctrine of recent possession. The appellant’s convictions on counts one to six are unsustainable.

[15] The appellant’s pre-trial custody regarding the charges in issue commenced on June 6, 2004. The trial judge credited the appellant for 52 days of pre-trial custody on a two-for-one basis and imposed an additional term of one year imprisonment for each of the seven offences, to be served concurrently. In so doing, the trial judge provided no reasons. This was an error in principle which leaves this court in the position of being unable to determine what factors the trial judge took into account in sentencing the appellant. This court is obliged, therefore, to impose an appropriate sentence for the appellant’s conviction on the seventh count, the breach of undertaking conviction.

[16] At the time of trial, the appellant was 24 years of age. He has suffered from various substance abuse difficulties. He has a recent criminal record, dating from 2001, that includes several convictions for failures to appear and a conviction for failure to comply with the terms of a probation order, as well as convictions for fraud, attempted fraud and possession of stolen property. However, prior to the predicate offence, the longest sentence of imprisonment imposed on the appellant was 60 days. Subsequently, he was sentenced to four months imprisonment on unrelated charges.

[17] The appellant served the equivalent of about three and one-half months in custody in various detention centres prior to trial. During that time, he was accepted for a work placement in the food service department of the Toronto Jail, where he is reported to have performed well. This suggests some prospect for rehabilitation.

[18] Given the appellant’s age, the potential for his rehabilitation and his time served to date, I conclude that the sentence imposed by the trial judge for the breach of undertaking conviction was excessive. In my view, the sentence should be reduced to time served.

[19] Accordingly, for the reasons given, I would allow the conviction appeal, substitute acquittals for counts one to six, grant leave to appeal sentence on the breach of undertaking conviction and reduce the sentence for that offence to time served.

Released: OCT 26 2004 Signed: “E.A. Cronk J.A.”

JML “I concur. J.-M. Labrosse J.A.”

“I concur. J.C. MacPherson J.A.”