DATE: 20041105

DOCKET: C35639

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – ROBERT DESJARDINS (Appellant)

BEFORE:

WEILER, SHARPE and BLAIR JJ.A.

COUNSEL:

James Carlisle

for the appellant

Julia Forward

for the respondent

HEARD & RELEASED ORALLY:

October 26, 2004

On appeal from the conviction entered by Justice Kathryn L. Hawke of the Ontario Court of Justice dated February 29, 2000.

E N D O R S E M E N T

[1] The appellant appeals from his convictions on four counts of break and enter.

[2] On October 17, 1999 three commercial units and a mosque in the same complex were broken into. Between four and ten 88-cent stamps and approximately two hundred dollars in cash were stolen from one unit and this forms the subject of the first count on which the appellant was convicted. The subject of the fourth count was the theft of an old two-dollar bill, approximately fifty dollars in cash, and thirty to forty dollars in coin. The two-dollar bill had been placed in the till of the business’ cash register after it had been taped to the wall for a number of years, and therefore had distinct tape markings on it.

[3] Approximately $200 in cash was taken from another business and this forms the subject matter of count two. When the intruder broke into the mosque, the subject of count three, a man sleeping there was awakened. The intruder ran off without taking anything. The man was unable to subsequently identify the intruder. In his statement to the police the man said the intruder wore white running shoes.

[4] Constable Canapini attended to investigate. She noticed a man walking near the businesses. She recognized the man as someone she knew. It was the appellant. He said that he was on his way to his girlfriend’s house. When she asked the appellant to get into her cruiser, he fled. Constable Canapini described the appellant as wearing black running shoes when she spoke to him.

[5] The appellant was arrested at this girlfriend’s house some time later and taken to the police station. At the police station, the police found cash, change, eight 88-cent stamps and a two-dollar bill with tape marks on it in the appellant’s possession.

[6] In relation to the first and fourth counts, the appellant’s submission is that the complainants did not positively identify the two-dollar bill and the 88-cent stamps. The appellant further submits that these items are not unique but of a class. As a result, the appellant submits that the trial judge erred in applying the doctrine of recent possession.

[7] We are of the opinion that it was open to the trial judge to apply the doctrine of recent possession and to conclude that the items in the appellant’s possession were the ones that were stolen. The strength of the inference rests on the combination of the two‑dollar bill and the unusual markings on it together with the unusual denominations of the stamps being both found on the appellant.

[8] In relation to the second and third counts, there is no evidence linking the appellant to these break-ins other than the fact these units are in the same complex as the businesses that were broken into in counts one and four. The appellant submits that there is no evidence that the same person committed all four of the break-ins. The evidence of the man at the mosque respecting the colour of the intruder’s running shoes is exculpatory evidence that the trial judge should not have disregarded. We agree that the appellant’s conviction on these counts cannot stand.

[9] Accordingly, the appeal is dismissed in relation to counts one and four. In relation to counts two and three the appeal is allowed, the convictions set aside and an acquittal is entered.

“Karen M. Weiler J.A.”

“R.J. Sharpe J.A.”

“R.A. Blair J.A.”