R. v. Lamoureux, 2011 ONCA 448

CITATION: R. v. Lamoureux, 2011 ONCA 448

DATE: 20110610

DOCKET: C53074

COURT OF APPEAL FOR ONTARIO

Laskin, Gillese, Karakatsanis JJ.A.

BETWEEN

Her Majesty The Queen

Respondent

and

Chadwick Lamoureux

Appellant

Robert B. Carew, for the appellant

Emile Carrington, for the respondent

Heard & released orally: June 6, 2011

On appeal from the judgment of Justice Jean-Marie Bordeleau of the Ontario Court of Justice dated October 25, 2009.

ENDORSEMENT

[1] On the count pertaining to the theft at 240 Bank Street, the principal issue is whether the finding of recency is unreasonable. In our view, that finding was reasonably open to the trial judge. Moreover, there was limited circumstantial evidence – for example, a distinctive shirt – linking the appellant to the theft.

[2] Accordingly, the appeal from the conviction on this count is dismissed.

[3] On the count pertaining to the theft at 141 Laurier Avenue, the main issue is whether the finding of possession of the bag marked as Exhibit 3 is reasonably supported by the evidence. In our view, the evidence does not support a finding of possession of that bag. The bag was a grey plastic bag found under a microwave in an apartment rented by someone else. The bag’s contents, including the cigars, did not link the appellant to the bag. Moreover, in convicting the appellant on this count, the trial judge appears to have been confused between Exhibit 1, which was the appellant’s bag and Exhibit 3.

[4] For these brief reasons, the appeal on this count is allowed, the conviction is set aside and an acquittal is entered.

[5] In the light of our disposition, the appellant is entitled to reduction of the sentence. We reduce the appellant’s sentence from 3 years to 2 years plus the 108 days pre-trial custody.

“John Laskin J.A.”

“E.E. Gillese J.A.”

“Karakatsanis J.A.”