Court File and Parties

CITATION: R. v. Rodney, 2007 ONCA 314

DATE: 20070430

DOCKET: C45605

COURT OF APPEAL FOR ONTARIO

SHARPE, BLAIR and LANG JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

And

ROLINSTON RODNEY

Appellant

Rolinston Rodney in person Andras Schreck as duty counsel

Eliott Behar for the respondent

HEARD: April 23, 2007

On appeal from the conviction entered by Justice Frank R. Caputo of the Superior Court of Justice dated March 24, 2006.

ENDORSEMENT

[1] The appellant’s conviction for break and enter with intent to commit an indictable offence under s. 348(1)(a) of the Criminal Code rested on the trial judge’s application of the presumption created by s. 348(2)(a):

348 (2) For the purposes of proceedings under this section, evidence that an accused

(a) broke and entered a place or attempted to break and enter a place is, in the absence of evidence to the contrary, proof that he broke and entered the place or attempted to do so, as the case may be, with intent to commit an indictable offence therein.

[2] There was ample evidence to support the trial judge’s finding that the appellant broke into the apartment in question and, hence, the first element of the offence of break and enter with intent was satisfied.

[3] The second element is intent to commit an indictable offence. The appellant testified and gave an explanation for his presence in the apartment. The trial judge rejected that explanation for reasons that are unimpeachable. The trial judge also found there was no evidence capable of supporting a finding of an intention to commit an indictable offence. However, he convicted the appellant solely on the basis of the presumption of intent created by s. 348(2)(a).

[4] The appellant submits that the fact he left the apartment after about thirty seconds without committing an offence constituted “evidence to the contrary” and that the trial judge erred by ignoring that evidence as being capable of displacing the statutory presumption. We disagree.

[5] It is clear on the authorities that the point of entry is the time at which the accused’s intention is to be ascertained for the purpose of the offence of break and enter with intent under s. 348(1)(a): Regina v. Wendel, 1966 533 (BC CA), [1967] 2 C.C.C. 23 at 29 (B.C.C.A.); R. v. Toney (1976), 1976 2486 (NS CA), 17 N.S.R. (2d) 481 at para. 16 (A.D.). The application of the s. 348(2)(a) presumption at that point, in the absence of evidence to the contrary, supplies the proof of the requisite intent.

[6] The proposition that the fact the accused did not commit an offence after entering the premises constitutes “evidence to the contrary” was rejected in R. v. Nicholas, 2004 CarswellOnt 5053 at para. 118 (Sup. Ct.), aff’d on other grounds at 2004 CarswellOnt 4946 (C.A.); R. v. Singh, [2005] B.C.J. No. 2715 at para. 7 (C.A.) (Q.L.). While neither case is entirely on all fours with the case at bar, we are not persuaded in this case that the fact the accused left the apartment without committing an offence could amount to “evidence to the contrary” and thereby displaces the presumption.

[7] We agree with the submission of the respondent that the purpose of the combination of the offence of breaking and entering with intent and the presumption created by s. 348(2)(a) is to deal precisely with the situation where the accused has broken and entered, yet committed no offence. Here, the appellant offers nothing more than the fact no offence was committed. To say that that constitutes evidence to the contrary would be to ignore the presumption and essentially gut it of any meaning.

[8] Accordingly, the appeal is dismissed.

“Robert J. Sharpe J.A.”

“R.A. Blair J.A.”

“S.E. Lang J.A.”