COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Massey, 2013 ONCA 749

DATE: 20131212

DOCKET: C56523

Goudge, Juriansz and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Christopher Daniel Gerald Massey

Appellant

Howard L. Krongold, for the appellant

Michelle Campbell, for the respondent

Heard: November 28, 2013

On appeal from the conviction entered on March 22, 2012 by Justice Kenneth E. Pedlar of the Superior Court of Justice, sitting without a jury.

Juriansz J.A.:

[1] The appellant was convicted of robbery after a trial by judge alone. I need to address only one of the arguments he raises on appeal: the trial judge engaged in circular reasoning in rejecting his defence that the robbery may have been committed by another person.

[2] On the night of April 11, 2011, the McDonald’s restaurant in Brockville across the street from where Dylan Jones lived was robbed. The restaurant’s security video captured the robbery, but its quality did not permit identification of the robber. The video, along with witness testimony, provided a good description of the robber’s clothing. The robber wore a Nike jacket, distinctive shoes, socks on his hands, a T-shirt on his head and, significantly, carpenter’s jeans.

[3] The appellant visited Jones the night of the robbery and was arrested two days later after Jones told the police he was the robber. At the time of his arrest, he was wearing carpenter’s jeans similar to those the video showed the robber wearing. At trial both Jones and his mother incriminated the appellant.

[4] The appellant did not testify in his defence. The only issue was identity. The appellant’s position at trial was that the evidence suggested that Jones was the robber. The carpenter’s jeans figured prominently in the trial judge’s rejection of that position.

[5] The testimony of Jones and his mother, considered together, was to the effect that the appellant visited that night, at which point he put on a Nike jacket that belonged to a boarder residing at the Jones’s house and shoes that belonged to Jones, a t-shirt over his head and socks on his hands. They said that he took a knife from the kitchen, that he left without indicating where he was going, and that he returned with a bag of money and stated that he had robbed the McDonald’s. Jones’s mother indicated that Jones did not own carpenter’s jeans like those worn by the robber in the video. Jones was not asked about the jeans. Neither were asked about what jeans the appellant wore that night.

[6] The defence pointed out that a good deal of evidence connected Jones to the robbery. The robber in the video generally matched Jones’s appearance – tall and slender. The McDonald’s manager, who interacted with the robber, testified that the robber was a couple of inches taller than she was. She was 6 feet tall. Jones was 6’2” tall. The appellant was shorter. The shoes the robber wore belonged to Jones. The T-shirt and the socks worn by the robber came from Jones’s laundry basket. The knife used in the robbery came from Jones’s kitchen. The Nike jacket the robber wore belonged to Jones’s roommate, who was not at home at the time of the robbery.

[7] The testimony of Jones and his mother appeared credible and reliable to the trial judge. However, before accepting it, he quite properly turned to consider whether Jones and his mother had a motive to fabricate their evidence to point the finger at the appellant and away from Jones.

[8] The carpenter’s jeans apparent in the security video were pivotal in the trial judge’s analysis rejecting the defence’s contention the robber could have been Jones. He compared the jeans in the video with Exhibit 5, which were the jeans the appellant was wearing on his arrest:

The video, I think, is important in a couple of ways. Certainly, the issue of the pants is relevant, the length of the pants, the pants seized from [the appellant]. On the video, it would be a really difficult conjecture to say that it was [Jones] wearing those pants in that video. It would be speculative beyond anything reasonable, in my opinion.

I don’t think it’s a reasonable possibility when looking at them. Exhibit number five, with a 32-inch inseam, even if worn somewhat low, and the crotch isn’t low in the video. There is nothing unusual about the way the pants are worn. He leans over the counter. The pants don’t ride up. They’re riding on top of the shoes. This does not make sense.

I mean that’s objective. There’s an objective witness, and it’s called a video camera. There’s no filter there. Nobody’s motive is there.

It’s a 36-inch waist and a 32-inch inseam versus a 32-inch waist and a 36-inch inseam, and that’s not contradicted. That’s a very different world, and it just doesn’t jive with the evidence all.

[9] Later in his reasons the trial judge posed some rhetorical questions:

It’s un-contradicted that [Jones] never owned a pair of carpenter’s jeans. Where did they come from that night for him to wear them over there? Where did they come from that night?

Why are they the only major piece of clothing that wasn’t in that apartment on April the fifth? If you want to talk about reasonable doubt, not fanciful, not speculative, and not just possibilities, why are they the only piece of clothing? And guess where they were found? A similar-looking pair was found on [the appellant], and they’re not the size that fits [Jones].

[10] As can be seen, this analysis is circular. The immediate question being considered is whether Jones could be the person in the video. The immediate question is relevant to the ultimate question of whether the appellant is the person in the video. But the analysis proceeds on the basis that the jeans the appellant was wearing on his arrest were the jeans in the video. Certainly, as the trial judge pointed out, Jones could not have worn the jeans seized from the appellant because they would not fit him. However, that observation is not helpful without the tacit assumption the jeans in the video were the jeans seized from the appellant. There was no evidence that the jeans in the video were the appellant’s or even that they were the same size as the appellant’s.

[11] The trial judge’s rhetorical question – “where did [the jeans] come from that night for [Jones] to wear them over there?” – is pertinent. In answering this rhetorical question, the trial judge was entitled to accept Jones’s mother’s testimony that Jones did not own such jeans. However, the trial judge went further and found that the jeans were “the only major piece of clothing that wasn’t in the apartment [that night].” In making this finding, the trial judge misapprehended the evidence. There was no testimony as to whether Jones’s roommate owned such a pair of jeans and the apartment was never searched. The mother’s testimony that Jones did not own a pair of carpenter’s jeans did not provide an adequate basis for the trial judge’s conclusion that the jeans used in the robbery were not at the apartment that night.

[12] Given the errors in logic that are apparent in the trial judge’s reasoning that Jones was not a plausible alternate suspect, the finding that the Crown had proved beyond a reasonable doubt that the appellant was the robber is unsafe. Therefore, the conviction cannot stand.

[13] I would allow the appeal, quash the conviction and order a new trial.

Released: December 12, 2013

(“S.T.G”)

“R.G. Juriansz J.A.”

“I agree S.T. Goudge J.A.”

“I agree Gloria Epstein J.A.”