CITATION: R. v. Jacobson, 2009 ONCA 130
DATE: 20090210
DOCKET: C44613
COURT OF APPEAL FOR ONTARIO
Rosenberg, Feldman and Juriansz JJ.A.
BETWEEN:
Her Majesty the Queen
Respondent
and
Cosmo Jacobson
Appellant
Anil K. Kapoor and Lindsay Daviau for the appellant
Gillian Roberts for the respondent
Heard: January 21, 2009
On appeal from conviction by Justice Donald S. Ferguson of the Superior Court of Justice sitting with a jury dated June 30, 2005.
By the Court:
[1] The appellant appeals his conviction for first degree murder on three grounds. We did not find it necessary to call upon Crown counsel to respond to those grounds of appeal and indicated at the conclusion of argument that we would provide brief written reasons for our decision that the appeal must be dismissed.
1. The admissibility of the drop cloths and shovel
[2] The appellant submits that the trial judge erred in admitting evidence of the drop cloths and shovel found in the appellant’s car as evidence of planning and deliberation. It was the theory of the Crown that the appellant and his accomplice had intended to kidnap the victim, kill him and bury him and that the appellant had purchased these items in pursuit of this plan. These items were purchased only weeks before the killing, were unused and had been left in the vehicle since the time of purchase. While they were suitable for use as part of the plan to kill the victim, they were largely unsuitable for any legitimate use associated with the vehicle. In particular, as pointed out by Crown counsel at trial, the appellant already had another shovel especially designed to be carried in a car for use in digging out of snow. While in the end the appellant’s car was not used to drive to the place where the victim was killed, the appellant’s car did contain other items such as the binoculars and walkie-talkies that were used during the killing.
[3] The test for probative value is low, see Morris v. The Queen, 1983 28 (SCC), [1983] 2 S.C.R. 190; and it is sufficient that the desired inference is more probable with the evidence than it would be without the evidence. The drop sheet and shovel meet this test. No single piece of evidence bears the ultimate burden of proof and the impugned evidence could properly be used with the other evidence, especially the looped draw string found at the scene, to draw an inference that the killing was planned and deliberate. The fact that over time the plan may have changed did not diminish the probative value of this evidence. We do not agree with the appellant that the probative value of this evidence depended solely on the wiretap conversation with the accomplice, which was not led as evidence.
2. The use of the gun in the home invasion
[4] There was abundant evidence that the motive for killing the deceased was to prevent him from testifying against the appellant on a home invasion charge. Thus, the evidence concerning the home invasion was properly admissible as part of the narrative and in particular as evidence of motive.
[5] There was a dispute at trial as to whether the appellant or the accomplice owned the gun and brought it to the killing. That the appellant brought the gun to the home invasion and regained possession of it after the home invasion, was some evidence that he owned the gun and therefore that he brought it to the killing. This was then a piece of evidence to identify the appellant as the killer. Thus, it was open to the trial judge to charge the jury that they could use this evidence to decide who as between the appellant and the accomplice brought the gun to the killing.
[6] Although the evidence regarding the home invasion and the gun was admitted as evidence of motive, the trial judge discussed its use in the portion of his charge dealing with bad character evidence. Under the heading “Bad Character Evidence About Mr. Jacobson”, the trial judge also outlined for the jury the permitted use of the evidence and the impermissible use. In particular, the trial judge instructed the jury that they could not use “bad character evidence” to simply reason that the appellant was the type of person likely to commit the offence of murder. Although it may have been preferable not to attach the bad character label to this evidence for the purpose of explaining its proper use, we are satisfied that the jury would not have misused the home invasion evidence and particularly the evidence concerning the gun.
3. The search warrant issue
[7] The trial judge properly admitted the evidence found in the appellant’s vehicle notwithstanding the error in the search warrant. The evidence was not conscriptive and there was substantial evidence of good faith on the part of the officers. On all three occasions when the police conducted an investigation in relation to the vehicle, they obtained a search warrant. In the first two warrants the address was set out correctly. The information to obtain in relation to the third warrant contained the correct address. Through a slip or oversight, the wrong address was put in the third warrant.
[8] There is a lesser expectation of privacy in a vehicle parked in an area to which the public have access than, say, a dwelling house. Thus, the error in the warrant as to the location of the vehicle was relatively minor. In other words, the violation of s. 8 of the Charter was not serious. To exclude the evidence for this minor technical breach for what was no more than an inadvertent oversight would be more likely to bring the administration of justice into disrepute, than would admitting the evidence.
DISPOSITION
[9] Accordingly, the appeal from conviction for first degree murder is dismissed.
Signed: “M. Rosenberg J.A.”
“K. Feldman J.A.”
“R. G. Juriansz J.A.”
RELEASED:”MR” February 10, 2009