Court of Appeal for Ontario

Citation: R. v. Kirkham, 2013 ONCA 437

Date: 2013-06-24

Docket: C55896

Before: Rouleau, Watt and Epstein JJ.A.

Between:

Her Majesty the Queen

Respondent

and

Jeffrey Kirkham

Applicant/Appellant

Counsel:

Sam Scratch, for the applicant/appellant

David Friesen, for the respondent

Heard: June 12, 2013

On appeal from the conviction entered on May 25, 2012 by Justice Ronald J. Richards of the Ontario Court of Justice.

Endorsement

[1] The appellant appeals from his convictions on charges of robbery, assault, assault with a weapon, unlawful confinement and weapons dangerous. The charges arise out of criminal activity that took place in a crack house. Two groups were present at the time: one group consisted of the appellant and some friends. The sole issue at trial was the appellant’s participation, if any, in the criminal activity.

[2] The trial judge’s reasons form the basis of the appellant’s submissions on appeal. The appellant’s primary argument is that the trial judge erred by either misapprehending or failing to deal with material evidence.

[3] In R. v. R.E.M.(2008), 2008 SCC 51, 235 C.C.C. (3d) 290 (S.C.C.)and R. v. Dinardo (2008), 2008 SCC 24, 231 C.C.C. (3d) 177 (S.C.C.), the Supreme Court reinforced the high threshold necessary to establish reversible error on the basis of insufficient reasons.

[4] The appellant has not met that threshold.

[5] This was a simple factual case. The appellant testified that he was not involved in the robbery and related criminal activity: three Crown witnesses testified that he was. In his reasons, the trial judge reviewed the evidence, drew inferences available from that evidence and made findings of fact. He dealt squarely with the issues of credibility and explained why he accepted some aspects of the evidence and rejected other aspects. He ultimately convicted the appellant of some offences and not others.

[6] The appellant relies on the way in which the trial judge dealt with three specific aspects of the evidence.

[7] The appellant submits that the trial judge erred by failing to address potentially exculpatory evidence that Mr. Spurvey’s fingerprint was found on one of the knives the police discovered at the scene. While it would have been preferable for the trial judge to have explicitly addressed this evidence, the trial judge’s failure to deal with this fingerprint evidence does not justify setting aside the convictions. When the trial judge chose to believe the three Crown witnesses who testified that the appellant attacked Mr. Longman and chose not to accept the defence theory that it was Mr. Spurvey, the fingerprint evidence lost significance.

[8] Next, the appellant submits that the trial judge, in finding that the appellant was not credible as a witness, placed undue emphasis on the fact that he changed his evidence several times concerning why he consumed two oxycontin tablets just prior to his arrest. We disagree. The trial judge was entitled to conclude that these shifting explanations undermined the appellant’s credibility. Furthermore, this was only one of the reasons the judge gave for not believing the appellant.

[9] Finally, there is nothing in the reasons that suggests the trial judge misapprehended the evidence about the knives the police found in the crack house.

[10] As we conclude that the reasons do not demonstrate any error in the trial judge’s treatment of the evidence, we reject this ground of appeal.

[11] As well, we see no basis for the argument that the verdicts are inconsistent. While the evidence of Ms. Trick and Mr. Johnson was not sufficient, standing alone, to convince the trial judge that the appellant was guilty of all of the charges arising out of the so-called Phase I activity, the addition of Mr. Longman’s evidence concerning the activity that took place in Phase II was sufficient to allow the trial judge to conclude that he was persuaded beyond a reasonable doubt that the appellant was guilty of most of the charges relating to that activity. It is clear that the trial judge carefully considered the strengths and weaknesses of the evidence relevant to each count. This is apparent not only from the reasons but also from the fact that the trial judge acquitted the appellant of charges where the evidence was not cogent enough to support a conviction and convicted him of other charges.

[12] For these reasons the appeal is dismissed.

“Paul Rouleau J.A.”

“David Watt J.A.”

“Gloria Epstein J.A.”