COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Leduc, 2014 ONCA 379

DATE: 20140512

DOCKET: C57193

Laskin, Pepall and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Shawn Mallory Leduc

Appellant

Michael Purcell, for the appellant

Molly Flanagan, for the respondent

Heard and released orally: May 6, 2014

On appeal from the conviction entered on August 28, 2012 and the sentence imposed on August 30, 2012 by Justice Bruce E. MacPhee of the Ontario Court of Justice.

ENDORSEMENT

[1] The appellant was convicted of three burglaries. The Crown’s case depended on the evidence of the appellant’s accomplice, his girlfriend at the time. The trial judge recognized that, in his words, the accomplice was “not a perfect witness”, but nonetheless accepted her evidence. The appellant’s sole submission on appeal was that though the trial judge dismissed the Crown’s similar fact application, he then used similar fact reasoning to bolster the accomplice’s credibility.

[2] The appellant points to two examples in the trial judge’s reasons: first, the trial judge’s reference to the circumstances of the appellant’s arrest on the fourth burglary and, in particular, the trial judge’s reliance on the appellant’s possession of a screwdriver on this fourth burglary; and second, the trial judge’s observation of the accomplice’s overall role in the three burglaries for which the appellant was charged.

[3] We do not accept the appellant’s submission. The trial judge was entitled to take account of the screwdriver, a common tool used in a burglary, as circumstantial evidence supporting the accomplice’s credibility. In doing so, the trial judge did not engage in propensity reasoning.

[4] The trial judge was also entitled to rely on the totality of the evidence and consider the accomplice’s role in the three burglaries. In doing so, he did not engage in similar fact reasoning. The appellant was tried on three counts of break and enter, and the three informations were joined on the consent of counsel. It was thus entirely appropriate for the trial judge to take account of the accomplice’s role in the three burglaries.

[5] Accordingly, the appeal is dismissed.

“John Laskin J.A.”

“S.E. Pepall J.A.”

“G. Pardu J.A.”