DATE: 20051116
DOCKET: C43182
COURT OF APPEAL FOR ONTARIO
RE:
HER MAJESTY THE QUEEN (Respondent) – and – SYLVAIN BARBEAU (Appellant)
BEFORE:
DOHERTY, WEILER and JURIANSZ JJ.A.
COUNSEL:
Giuseppe Cipriano
for the appellant
Susan Ficek
for the respondent
HEARD & RELEASED ORALLY:
November 10, 2005
On appeal from the conviction entered on December 15, 2004 by Justice Richard Lajoie of the Ontario Court of Justice.
E N D O R S E M E N T
Nature of Appeal
[1] The appellant appeals his conviction for arson and break and enter. He raises three issues:
- Did the trial judge err by shifting the burden of proof to the appellant to explain away the evidence of the Crown witnesses?
- Did the trial judge err in relying on post-offence conduct of the appellant as evidence of consciousness of guilty?
- Did the trial judge err in accepting the evidence of Mr. Kiesman, absent any confirmatory evidence?
Background to the Issues Raised
[2] Ms. Briand’s chip stand burnt down and several days later her home, 1806 Hennessy Crescent, was broken into. The appellant, her ex-boyfriend, was in custody at the Ottawa Carelton Detention Centre (OCDC) when the arson/break and enter occurred. Caliber Kiesman and Anthony Briggs were arrested and confessed to committing the crimes, but Mr. Kiesman testified it was the appellant who organized the crime and paid him to do so. The Crown’s theory was that the appellant was angry over the break up of his relationship with Ms. Briand. The appellant had recently been arrested and pled guilty to mischief charges in relation to the chip stand and was serving a sentence when this incident occurred. There was evidence he was disputing the ownership of the chip stand, and had commenced proceedings for equalization.
[3] The defence contended that Crown’s case rested almost entirely on the evidence of Mr. Kiesman. The defence takes issue with the reliability and credibility of his testimony – given his history of dishonesty and crime. The Crown disagrees and submits that the evidence of Ms. Briand was critical as she testified the appellant had threatened to burn down the chip truck before the offence. Ms. Briand also testified that the appellant had phoned her after the incident and admitted he hired someone named “Kiethman” to burn the truck down and break into the house. Ms. Briand also received threatening letters from the appellant.
Disposition of Issues
1. Did the trial judge err by shifting the burden to the appellant to explain away the evidence of the Crown witnesses?
[4] The appellant submits that the trial judge erred by failing to analyze the appellant’s evidence in accordance with the second and third branches of R. v. W.(D) [191] 1 S.C.R. 742. He submits that the trial judge decided the case solely on the basis of his rejection of the appellant’s evidence.
[5] A trial judge sitting alone is not required to repeat the formula in W.(D). The reasons of the trial judge do not reflect any error with respect to the burden of proof as it related to credibility and his reasons were sufficient in the circumstances of the case. They resolved the issues of credibility and were not simply a conclusory statement of his findings of credibility. Although short, the reasons for conviction were clear – the trial judge gave reasons why he rejected the appellant’s defence and why he accepted Mr. Kiesman’s evidence.
2. Did the trial judge err in relying on post-offence conduct of the appellant as evidence of consciousness of guilt?
[6] The appellant submits that the trial judge erred by using a letter written by the appellant to Ms. Briand as evidence of guilt. The letter read: “I enjoy being in business with you. What happened out there is the way you treated me. Even though nothing was in my name nothing to assure me.” This letter was written after the arson and the break and enter occurred. The appellant submits it was an apology for the mischief committed against the chip truck earlier.
[7] The trial judge relied on the letter as a statement by the appellant expressing his animosity against Ms. Briand. The letter also supported certain aspects of the testimony of Ms. Briand and Mr. Kiesman, and contradicted the appellant’s claim to ownership of the chip stand. The trial judge did not incorrectly use this letter in the manner submitted by the appellant.
3. Did the trial judge err in accepting the evidence of Mr. Kiesman, absent any confirmatory evidence?
[8] The appellant submits that Mr. Kiesman’s evidence is suspect and not credible for several reasons: he has a lengthy criminal record for offences probative of his ability to lie; he unequivocally admitted to seeking and expecting a benefit; he gave two conflicting statements to police and only in the second did he adopt the Crown’s theory of the appellant as the Mastermind.
[9] The trial judge did not specifically describe Kiesman as an unsavoury witness. However, in our view this would be self-evident. The trial judge also did not expressly caution himself as to the danger of relying on Kiesman’s evidence without confirmatory evidence. He did, however, examine the record for confirmatory evidence and concluded that the evidence of Ms. Briand provided confirmatory evidence. Parts of her evidence were capable of confirming Kiesman’s evidence.
Conclusion
[10] The appeal from conviction is dismissed.
“Doherty J. A.”
“K. M. Weiler J.A.”
“R. G. Juriansz J.A.”