CITATION: R. v. Dinardo, 2011 ONCA 256
DATE: 20110404
DOCKET: C51216
COURT OF APPEAL FOR ONTARIO
Gillese, Lang and Watt JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
John Dinardo
Appellant
Jonathan Dawe, for the appellant
Frank Au, for the respondent
Heard: March 29, 2011
On appeal from the conviction entered on October 29, 2009 by Justice John M. Ritchie, of the Ontario Court of Justice.
By the Court:
[1] A “Bobcat” tractor valued at $20,000 was stolen from a construction site. Through the use of a radio tracking device, the location of the Bobcat was narrowed to a cube van that was parked in the appellant’s backyard. The backyard was described by the trial judge as “a fortress-like compound that had a high metal fence and was guarded by vicious dogs.” The evidence at trial disclosed that, once the Bobcat’s location was identified, surveillance was maintained until the police executed a warrant they obtained to search the backyard, the cube van and the garage.
[2] Initially, the police entered the appellant’s unlocked apartment. While they established that he was not there, they observed a third party, Daniel Soares, in the backyard with the van and the dogs. The police detained Mr. Soares, who made certain utterances. Later that day, the appellant came to the property accompanied by his lawyer. He was arrested and charged. He made certain statements including, on the evidence accepted by the trial judge, an offer to open the back of the van. The padlock on the back door of the cube van was removed without the appellant’s help and the stolen tractor was located inside.
[3] The appellant was convicted of possession of the stolen tractor. Neither Mr. Soares nor the appellant testified. In convicting the appellant, the trial judge ruled the utterances made by Mr. Soares to the police were inadmissible hearsay, but admitted into evidence the appellant’s statements to the police.
[4] While the trial judge recognized that the case against the appellant was circumstantial, he concluded that the evidence gave “rise to only one reasonable inference, that the [appellant] had the requisite knowledge and control respecting the stolen Bobcat.”
[5] The appellant appeals his conviction on two grounds. First, he argues that the verdict was unreasonable. Second, the appellant argues that the trial judge erred by failing to exclude his statements on the basis of section 8 Charter breaches committed by the multiple entries by the police into his apartment.
[6] The appellant’s first argument has two branches. First, the appellant argues that the evidence that was adduced at trial did not support the verdict. In particular, the appellant points to the evidence concerning Mr. Soares’ familiarity with the establishment, given his presence in the backyard with the guard dogs and the cube van. He also points to the fact that no other person, other than the upstairs tenant, was present the morning the warrant was executed. The appellant argues that this evidence raised a reasonable inference that it was Mr. Soares who was the person in possession of the stolen tractor. However, after excluding Mr. Soares’ utterances, the trial judge concluded that he was a “found in”, a person who was present at the scene and that any suggestion that he was involved with the stolen tractor was speculative. The Crown presented a strong circumstantial case against the appellant, including evidence that the tractor was in the appellant’s van in his backyard guarded by his dogs.
[7] In light of our conclusion on the second branch of the argument, it is unnecessary to decide the first branch of this argument.
[8] In the second branch, the appellant argues that the trial judge erred in ruling that the defence could not adduce evidence of Mr. Soares’ utterances and that, had those utterances been admitted into evidence, they would have strongly suggested that Mr. Soares was the person who brought the tractor in the cube van into the backyard.
[9] We agree with the appellant, as does the respondent, that the trial judge erred in his reasons for excluding the utterances made by Mr. Soares after his detention. In light of our determination that, as a result of this error, there must be a new trial, we will only review the issue of the utterances to the extent necessary to explain our conclusion.
[10] At trial, the utterances the defence attempted to adduce included Mr. Soares’ statements to the effect that the keys to the van were in the van, the garage door was open, and he could round up the guard dogs. In addition, the defence sought to introduce a question Mr. Soares posed to one of the officers about whether they were “here for the Bobcat?”.[^1]
[11] After argument about the admissibility of the utterances, the trial judge accepted the trial Crown’s submissions that they were inadmissible on the basis that they were “pure” hearsay to which no exception applied.
[12] This was an error. The statements were not hearsay. The appellant was not trying to adduce the utterances for the truth of their contents, but simply to prove that Mr. Soares made the statements. See Wildman v. The Queen (1984), 1984 CanLII 82 (SCC), 14 C.C.C. (3d) 321 (S.C.C.).
[13] If the Soares’ utterances had been found to have some probative value and had been admitted into evidence, the trial judge would then have had to consider whether the totality of the evidence led or did not lead to an alternative reasonable possibility that Mr. Soares was the person in possession of the stolen tractor.
[14] In closing on this issue, we observe that there was apparently no suggestion at trial that any “possession” of the stolen tractor by Mr. Soares was as the agent of or with the knowledge of the appellant.
[15] In view of this determination, it is unnecessary to consider the ground of appeal based on the alleged Charter violation. That is a matter that will be determined on the basis of the evidence at the new trial.
[16] In conclusion, the appeal is allowed, the conviction quashed and a new trial ordered.
RELEASED: APR 4, 2011 “E.E. Gillese J.A.”
“EEG” “S.E. Lang J.A.”
“David Watt J.A.”
[^1]: We note, however, that the evidence before the trial judge suggested that Mr. Soares may have asked the question only after another officer had told him that they were looking for stolen Bobcat.