WARNING
THIS IS AN APPEAL UNDER THE
YOUTH CRIMINAL JUSTICE ACT
AND IS SUBJECT TO:
(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act…
(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person…
(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985,
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or
(b) is guilty of an offence punishable on summary conviction.
DATE: 20060616
DOCKET: C43377
COURT OF APPEAL FOR ONTARIO
RE:
HER MAJESTY THE QUEEN (Respondent) – and – J.B. (Applicant/Appellant)
BEFORE:
SHARPE and JURIANSZ JJ.A. and LANE J. (ad hoc)
COUNSEL:
Peter Lindsay
for the appellant
Shelley Maria Hallett
for the respondent
HEARD:
June 12, 2006
On appeal from the convictions imposed by Justice Norman Douglas of the Ontario Court of Justice dated January 26, 2005.
E N D O R S E M E N T
[1] The appellant appeals his convictions for robbery, use of an imitation firearm and having his face masked with intent to commit an indictable offence and against a finding of guilt and Kienapple stay on a related charge of possession of stolen property. He also appeals the sentence imposed of sixteen months open custody and twelve months probation.
[2] The appellant testified at trial and denied any involvement in the robbery but admitted purchasing items taken in the robbery knowing or suspecting them to have been obtained by crime.
[3] For the following reasons we allow the conviction appeal and direct a new trial.
1. Vetrovec Witness
[4] The trial judge correctly recognized that Theodore Vigod’s evidence was crucial to the Crown’s case against the appellant. Vigod was a dangerous witness for several reasons:
(1) He was involved in the robbery.
(2) When he testified against the appellant the charges against him arising from the robbery remained outstanding and he stood to gain by assisting the prosecution of the appellant.
(3) He admitted that he was prepared to say pretty much anything to stay out of jail.
(4) He admitted that before he identified the appellant as a participant in the robbery the police asked him to confirm that the appellant was a participant.
[5] The trial judge also properly recognized that Vigod’s evidence had to be approached “with great caution”. However, the trial judge accepted Vigod’s evidence “in spite of these red flags” because (1) his evidence was consistent that the appellant was involved in the robbery, (2) he was prepared to testify as to the appellant’s involvement in the appellant’s presence and in the presence of the appellant’s family, and (3) that by his demeanour he did not appear to be lying.
[6] While we agree with the respondent that the trial judge also identified certain aspects of the evidence that tended to confirm the appellant’s involvement in the robbery, we are persuaded that the three reasons identified above were significant factors leading him to accept Vigod’s evidence and convict the appellant. In our view, consistency, openly confronting the accused and demeanour were not factors that provided an appropriate basis to overcome the dangers of relying on Vigod’s evidence. Most accomplices are consistent and do not retract on the stand; most openly confront the accused with their evidence; and demeanour does not usually provide a sound basis upon which to assess such evidence: see R. v. Sauve and Trudel (2004), 182 (3d) 321 (Ont. C.A.). Taking the trial judge’s reasons at face value, we cannot say that he would have accepted Vigod’s evidence but for these factors.
2. Recent Possession
[7] The trial judge applied the “doctrine of recent possession” as a factor leading him to convict the appellant. When explaining the significance of the appellant’s possession of stolen goods the trial judge referred three times to the “presumption” of fact raised by the doctrine of recent possession, twice to the “burden” it imposed on the appellant to explain his possession, as well as to the need to “rebut” the presumption. It is well established that it is an error in law for the trier of fact to treat recent possession as creating a “presumption”: R. v. Kowlyk (1988), 43 C.C.C. (3d) 1 (S.C.C.).
[8] While we agree with the respondent that the trial judge correctly stated the significance of recent possession in certain passages of his judgment, in the end, we are left with what is at best a legally confused analysis of the significance of the evidence of recent possession in this case: see R. v. Langille (1990), 59 C.C.C. (3d) 544 (Ont. C.A.).
3. Post Offence Conduct
[9] The trial judge relied on evidence that the appellant had disposed of a cell phone that was in his possession and that had been taken in the robbery after he learned the police had come to his house looking for the cell phone. The trial judge treated this evidence as having significant probative value of the appellant’s involvement in the robbery. He described it as “the topper”.
[10] In our view, the trial judge erred in this regard. The appellant’s evidence was that he had purchased the cell phone from Vigod the day after the robbery knowing or suspecting that it had been stolen. This was a case where the appellant’s post-offence conduct could be equally explained by reference to consciousness of guilt for the offence of possession of stolen property and the trial judge erred by attributing to it significant probative value in relation to the offence of robbery: see R. v. Arcangioli (1994), 87 C.C.C. (3d) 289 (S.C.C.).
4. Conclusion
[11] While we do not say that any one of the errors we have identified standing by itself would necessarily have required us to set aside the convictions, we are satisfied that their cumulative affect was sufficiently serious to warrant appellate intervention. In these circumstances, it is unnecessary for us to consider the other arguments advanced by the appellant on the conviction appeal or to consider the sentence appeal.
[12] Accordingly, we allow the appeal, set aside the convictions and finding of guilt and direct a new trial.
“Robert J. Sharpe J.A.”
“R.G. Juriansz J.A.”
“D. Lane J. (ad hoc)”```