DATE: 20060524

DOCKET: C41482

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – CAROLE LITTLE and GERALD LITTLE (Appellants)

BEFORE:

DOHERTY, BORINS and JURIANSZ JJ.A.

COUNSEL:

Joseph Di Luca and Louis P. Strezos

for the appellants

Elisa Nakelsky

for the respondent

HEARD & RELEASED ORALLY:

May 17, 2006

On appeal from the conviction entered on January 16, 2004 by Justice Robert N. Weekes of the Superior Court of Justice, sitting with a jury.

E N D O R S E M E N T

[1] Carole Little, Gerald Little and Neil Brillenger were charged with fraud over $5,000. Carole Little and Neil Brillenger were also charged with public mischief. The Crown’s case was that they participated in a joint enterprise to defraud Carole Little’s insurer by falsely reporting the theft of her truck. They were tried jointly by a trial composed of a judge and jury. The Crown’s main witness against the accused was Randy Lowe. At the conclusion of the trial Carole Little and Gerald Little were found guilty of fraud. Carole Little was also found guilty of public mischief. Neil Brillenger was acquitted of both charges.

[2] Carole Little and Gerald Little appeal on the ground that the jury’s verdicts were inconsistent between the co-accused and therefore their conviction was unreasonable. The respondent’s position is that the verdicts were not inconsistent, the evidence against each co-accused was not the same, the convictions against the appellants were reasonable and the acquittal of one accused while the appellants were convicted does not mean that the appellants are entitled to acquittals.

[3] In our view, the position of the Crown is correct. On the entirety of the evidence admissible against Neil Brillenger, including his own evidence, the jury must have been left with a reasonable doubt that he had participated in the fraudulent scheme to defraud Carole Little’s insurer which the evidence indicated had been developed by Carole Little, Gerald Little and Randy Lowe. On the other hand, the jury was satisfied beyond a reasonable doubt that Carole Little and Gerald Little had participated in the scheme to defraud the insurer as they were convicted of that offence. In addition Carole Little was convicted of the offence of public mischief. These were verdicts that were available to the jury on the evidence.

[4] The test to be applied is this: the issue is not whether Neil Brillenger’s acquittal was reasonable, but whether the convictions of Carole Little and Gerald Little were not reasonable. Stated differently, the critical question is not whether Neil Brillenger was properly acquitted, but whether Carole Little and Gerald Little were properly convicted.

[5] In our view, the convictions were reasonable. The jury, in convicting Carole Little and Gerald Little, must have rejected their attempt to provide an exculpatory explanation. In addition, the jury must have accepted the evidence of Randy Lowe and his former wife that clearly supported the existence of the fraudulent scheme and the commission of the offence of public mischief. Moreover, the evidence against the Littles was much stronger than the evidence against Neil Brillenger.

[6] Accordingly, in our view the convictions were reasonable. We would dismiss the appeal.

“S. Borins J.A.”

“Doherty J.A.”

“R. G. Juriansz J.A.”