R. v. Dunbar, 2007 ONCA 840

CITATION: R. v. Dunbar, 2007 ONCA 840

DATE: 20071204

DOCKET: C39959

COURT OF APPEAL FOR ONTARIO

DOHERTY, FELDMAN and ARMSTRONG JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

and

BRADLEY DUNBAR

Appellant

Howard F. Morton for the appellant

Michal Fairburn for the respondent

Heard and orally released: November 13, 2007

On appeal from the conviction entered by Justice K. Johnston of the Ontario Court of Justice dated April 18, 2002.

DOHERTY J.A.:

[1] At the conclusion of argument, the court dismissed the appeal with reasons to follow. These are those reasons.

[2] The appellant, an Ontario Provincial Police officer, was charged with breach of trust. The Crown alleged that he stole cash from the Whitby Detachment while he was in charge of that Detachment. The charges alleged that the theft occurred over a period of about fifteen months. In convicting the appellant of breach of trust flowing from the theft, the trial judge was satisfied that the Crown had proved the allegation only in respect of the last month of the timeframe alleged in the charges.

[3] The alleged theft involved cash paid by civilians for various services performed by the police, including fingerprint and criminal record checks. The funds were kept in a box at the Detachment. The appellant would periodically remove the funds and related receipts from the box and deposit the funds in the bank.

[4] In convicting the appellant, the trial judge indicated that she was not satisfied beyond a reasonable doubt that the Crown had proved that he was stealing from the fund throughout the relevant time period. The evidence indicated that through much of the time period, officers working at the Detachment had a somewhat cavalier attitude and regularly “borrowed” from the fund for various purposes. The officers would reimburse the funds at some subsequent time.

[5] The trial judge was, however, satisfied that the appellant was stealing from the fund for the period beginning on April 4 when the police began to actively investigate possible thefts from the funds. The investigation began with an audit of the funds on April 4, and continued for about another month. There were several audits during that time period and the money box was under videotape surveillance from April 9 forward. The investigators would count the cash in the box and at some point in time began to record the serial numbers of the bills.

[6] The appellant alleges various errors in the trial judge’s reasons and also tenders evidence on appeal which he submits demonstrates that he did not receive the effective assistance of counsel at trial.

The Alleged Errors in the Reasons for Judgment

[7] The appellant submits that the trial judge failed to consider the evidence of his good character until after she had rejected the appellant’s evidence as unworthy of belief. The trial judge’s reference to the character evidence does follow her analysis of the appellant’s evidence and her rejection of parts of that evidence as incredible. This does not, however, establish that she did not address the character evidence in her analysis until after she had rejected the appellant’s evidence. Reasons for judgment do not necessarily replicate the order in which trial judges have addressed the relevant issues. The reasons must be examined in their entirety. Those reasons demonstrate that the trial judge understood the thrust of the character evidence and indeed accepted that character evidence. She concluded, however, despite the appellant’s good character, that the substance of his evidence in important respects was simply incredible.

[8] The appellant next argues that the trial judge did not properly apply the burden of proof in that she failed to consider whether the Crown’s case, apart from the appellant’s evidence which she had rejected, demonstrated the appellant’s guilt beyond a reasonable doubt. The reasons for judgment do not support this contention. The trial judge said:

I absolutely reject the evidence of the accused with respect to the explanations he gave for why he destroyed the dash pad receipts and authorization forms, and I reject utterly his explanation as to what happened with the dash pad receipt money …

[9] After rejecting the explanation, the trial judge went on to say:

I have absolutely no doubt whatsoever that the money was received from persons paying for criminal record searches, for which dash pad receipts were issued, and which money never made it to the deposit list, in fact, was money stolen by Bradley Dunbar.

[10] As these passages from the reasons demonstrate, the trial judge did consider whether on the entirety of the evidence the Crown met its burden of proof.

[11] The appellant also alleges four material misapprehensions of the evidence. First, he submits that the trial judge erred in holding that the appellant had exclusive opportunity to commit the thefts between April 4 and 9. It is the appellant’s position that the Crown proved exclusive opportunity only for the period beginning on April 9 when the video surveillance was installed.

[12] I agree with the appellant that the trial judge was wrong in indicating that no one else had the opportunity to take the money between April 4 and April 9. This error was not, however, of any significance. On the unchallenged evidence, money was taken from the fund between April 4 when it was counted by investigators and April 5 when the appellant purported to count the money, record the amount on an envelope and direct that it be deposited. The amount taken corresponded exactly to the amounts represented by the destroyed dash pad receipts and corresponding authorization forms. The appellant acknowledged that he was destroying these dash pad receipts and authorizations as of April 4. The only sensible inference was that the person destroying the documentation was also the person taking the money reflected in the documentation. The fact that others had the physical opportunity to take money from the fund between April 4 and April 9 was of no consequence in the face of this line of reasoning.

[13] The second alleged misapprehension of the evidence arises out of the trial judge’s observation that certain money referable to payments for a charity helicopter service was not put back into the fund prior to the appellant’s arrest. The trial judge indicated that the appellant intended to repay this money, but was arrested before he could do so. In fact, the evidence was that the appellant put the money back into the fund before he was arrested. This misapprehension of the evidence, however, played no role in the trial judge’s analysis leading to her ultimate finding of guilt.

[14] The third alleged misapprehension of the evidence arises out of the trial judge’s observation that if, as the appellant testified, the money found in the envelope in his desk represented a “float” containing money removed from the fund, that one would have expected at least one of the bills in the envelope at the time the appellant was arrested to match the serial number of at least one of the bills placed in the fund. The investigators had been surreptitiously recording the serial numbers of the bills put into the fund for some days prior to the appellant’s arrest.

[15] In his evidence, the appellant offered various explanations for why none of the bills in the envelope contained serial numbers matching the serial numbers of bills paid into the fund. The trial judge accepted some of these explanations. However, it was open to her to draw an inference against the appellant’s version of events from the fact that not one of the bills in the envelope bore the same serial number as any of the bills paid into the fund. There was no misapprehension of the evidence.

[16] The fourth and final alleged misapprehension relates to the trial judge’s summary of the evidence concerning the availability of official receipt books. The appellant kept the official receipt books. The officer who dealt with the public and was directly involved in taking money from the public testified that he had difficulty obtaining official receipt books. Consequently, he sometimes used unofficial receipts referred to as “dash pad receipts” to record the receipt of monies from the public. The Crown contended that the money reflected in these unofficial receipts was the money that was stolen by the appellant and that these unofficial receipts and related documentation were destroyed by the appellant.

[17] The trial judge’s summary of the evidence concerning the availability of the official receipt books accurately reflects the evidence given by the officer. The appellant’s real complaint is that there was other evidence touching on the availability of the receipt books that was not specifically alluded to by the trial judge. Trial judges do not have to catalogue the entirety of the evidence in their reasons. The trial judge’s failure to do so does not constitute a misapprehension of the evidence.

[18] The grounds of appeal arising out of the reasons for judgment fail.

The Fresh Evidence Application

[19] The appellant contends that he received incompetent legal assistance at trial. He submits that his trial counsel did not adequately review the disclosure material provided by the Crown and did not properly prepare him to give evidence in his own defence. The affidavits filed by the appellant and counsel’s oral submissions stress the second of these two alleged failures.

[20] Trial counsel has filed an affidavit in which he strongly denies the allegations made by the appellant.

[21] The appellant and trial counsel were cross-examined on their affidavits. Counsel and the Crown also filed additional affidavit material supporting their respective positions. Not surprisingly, the appellant and trial counsel give very different versions of the relevant events. It is not necessary to resolve these conflicts.

[22] In R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520 at para. 26, Major J. observed that ineffective assistance of counsel claims have two components. The appellant must demonstrate both that counsel was incompetent and that the incompetence caused a miscarriage of justice. The first component is described as the performance component and the second as the prejudice component. Major J. further observed that in most cases it is best to begin with an inquiry into the prejudice component. If the appellant cannot demonstrate prejudice from the alleged ineffective assistance of counsel, there is no need to pass upon the competence of counsel at trial. This approach is warranted because the question on appeal is not ultimately whether an appellant was adequately represented, but rather whether the conviction constitutes a miscarriage of justice.

[23] Where, as in this case, the alleged prejudice relates to the reliability of the verdict and not to the appearance of the fairness of the trial proceedings, the appellant must show that the alleged incompetence had some negative impact on the reliability of the conviction. Prejudice can be established if the appellant can show that there is a reasonable probability that but for the alleged incompetence, the result of the proceeding would have been different. A reasonable probability is a probability that is sufficiently strong to undermine the appellate court’s confidence in the validity of the verdict: R. v. Joanisse (1995), 1995 CanLII 3507 (ON CA), 102 C.C.C. (3d) 35 at 64 (Ont. C.A.).

[24] The appellant may demonstrate prejudice by reference to the trial record itself, by evidence filed on appeal, or by a combination of the two. There is no finite list of ways in which the appellant can show a reasonable probability that the verdict would have been different had he received adequate legal representation. Where the primary claim is that an appellant was not properly prepared to testify at trial, the appellant can demonstrate the prejudice by showing, for example, that his counsel failed to elicit certain important evidence from him. The appellant might also demonstrate prejudice by showing from the trial record that he was clearly inadequately prepared for cross-examination.

[25] The appellant has failed to demonstrate any prejudice in this case. A review of his testimony at trial does not suggest that he was inadequately prepared. Nor has he offered anything that he could have said at trial that was not elicited in his evidence at trial. When pressed in oral argument, counsel submitted that trial counsel’s failure to re- examine the appellant on certain points raised in cross-examination, prejudiced the appellant. Counsel could not, however, suggest to this court what the questions on re-examination might have been and, more importantly, what evidence helpful to the appellant might have been elicited from those questions.

[26] In essence, counsel argued that the cross-examination in certain areas created confusion and that re-examination might have cleared up that confusion. Clarification is not always an advantage. Confusion occurring during cross-examination is not always a bad thing for the party being cross-examined, especially when the other side carries the burden of proof.

[27] Nothing in the appellant’s affidavit or his cross-examination speaks to what might have been done differently had he been more fully prepared to give evidence. Nothing in the trial record suggests any different approach that might have been taken. The appellant’s evidence in-chief and his cross-examination do not suggest a witness who was ill prepared or a counsel who was unaware of the relevant issues. They do suggest a witness whose evidence was inherently difficult to believe in several important respects. The problem with the appellant’s evidence was not any lack of preparation, but rather the substance of parts of that evidence.

[28] The appellant’s contention that he did not receive effective assistance of counsel at trial must be rejected.

[29] The appeal is dismissed.

RELEASED: “DD” “DEC 04 2007”

“Doherty J.A.”

“K. Feldman J.A.”

“Robert P. Armstrong J.A.”