COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Kaguyutan, 2014 ONCA 384

DATE: 20140512

DOCKET: M43762 C58710

Lauwers J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent

and

Richard Alan Kaguyutan

Applicant

Alex Trica, for the applicant

Philippe Cowle, for the Crown

Heard: May 7, 2014

Application for release pending the appeal from convictions entered on January 24, 2014 by Justice Gisele M. Miller of the Superior Court of Justice, sitting without a jury.

Lauwers J.A.:

[1] The applicant was convicted of one count of break and enter and commit robbery, and one count of robbery, and received a custodial sentence of 3 years. The applicant has appealed his conviction and seeks bail pending appeal.

A. The Governing Principles on Bail Pending Appeal

[2] Watt J.A. laid out the governing principles for bail pending appeal in R. v. Manasseri, 2013 ONCA 647, [2013] O.J. No. 6177, at paras 37-38, 40-43:

Under section 679(3) of the Criminal Code, an applicant who seeks release pending the determination of an appeal from conviction must establish to the satisfaction of the chambers judge:

i. that the appeal is not frivolous;

ii. that the applicant will surrender into custody in accordance with the terms of the release order; and

iii. that the applicant’s detention is not necessary in the public interest.

An appeal is not frivolous if the proposed grounds of appeal raise arguable issues. An applicant need not establish a likelihood, much less a certainty of success on appeal, but must be able to point to a viable ground of appeal that would warrant appellate intervention if established.

The public interest criterion in section 679(3)(c) requires a judicial assessment of the need to review the conviction leading to imprisonment, on the one hand, and the need to respect the general rule of immediate enforceability of judgments, on the other: R. v. Farinacci (1993), 1993 CanLII 3385 (ON CA), 86 C.C.C. (3d) 32 (Ont. C.A.), at pp. 47-48.

Public confidence in the administration of justice requires that judgments be enforced. The public interest may thus require that a person convicted of a very serious offence, like second degree murder, who advances grounds of appeal that are arguable but weak, be denied release pending appeal: Farinacci, at p. 48.

But public confidence in the administration of justice also requires that judgments be reviewed, and that errors, if any, be corrected, especially where an appellant’s liberty is at state [sic]: Farinacci, at p. 48.

The public interest ground assumes a place of greater prominence in cases in which an applicant has been convicted of a very serious offence and faces the prospect of a lengthy period of incarceration: R. v. Baltovich (2000), 2000 CanLII 5680 (ON CA), 144 C.C.C. (3d) 233 (Ont. C.A. – Ch’rs), at para. 19; R. v. Demyen (1975), 1975 CanLII 1338 (SK CA), 26 C.C.C. (2d) 324 (Sask. C.A.), at p. 326. As a result, release of an applicant pending appeal of a murder conviction is rare: Baltovich, at para. 20. But where the grounds of appeal are strong and a serious concern about the accuracy of the verdict emerges from the materials filed, the public interest may favour release: Baltovich, at para. 20; R. v. Parsons (1994), 1994 CanLII 9754 (NL CA), 30 C.R. (4th) 169 (Nfld. C.A.), at pp. 186-187.

[3] I am satisfied that the applicant would surrender himself into custody in accordance with the terms of any bail order. I now turn to the other two issues under s. 679 of the Criminal Code: whether the appeal has sufficient merit that, in the circumstances, it would cause unnecessary hardship if the applicant were detained in custody; and whether the applicant’s detention is necessary in the public interest.

B. The Facts

[4] On June 27, 2010, the complainant observed a white SUV pulling into the driveway of his home. Two men, one white and one Asian, exited the vehicle on opposite sides. They entered the complainant’s home looking for Oxycodone or Oxycontin left over from his late father’s bout with cancer. The Asian man bound the complainant’s hands with duct tape, punched him in the head a few times and struck him once or twice across the bridge of his nose with a blue coloured metal weapon, causing scarring.

[5] The police were able to stop the assailants’ vehicle a short time later. There is no doubt that the one white man in the car, Greg Williams, was one of the assailants. There were three Asian men in the car stopped by the police. As the trial judge put it, at para. 6, “the question is whether the Crown has proven beyond a reasonable doubt that Mr. Kaguyutan was the Asian man who also participated.”

[6] The case against the applicant rested largely on the testimony of Michael Silva, who was the owner and driver of the vehicle. Silva identified the applicant as the one who accompanied Williams into the house. The trial judge recognized that Silva had a strong motive to identify someone other than himself as the person who accompanied Williams, because a conviction on more serious charges would have resulted in Silva’s deportation. The trial judge treated Silva as a witness whose evidence should be approached with caution because of his motives, his testimony and the opportunity he had to communicate with Williams while they were housed together for 5 days at Maplehurst. She noted that Silva denied spending time in the same cell as Williams despite being confronted with Maplehurst records to the contrary. She also rejected his evidence that he did not notice what the assailants were carrying when they entered the house.

[7] The trial judge found that she could not convict the appellant on the complainant’s evidence alone, given the frailties of in-dock identification and his agitated mental state during the home invasion. But she found, at para. 84, that certain portions of his evidence “in combination with the evidence of Michael Silva, give me confidence that Richard Kaguyutan was correctly identified as the individual who entered Mr. Gratto’s home, together with Greg Williams, to effect a robbery.”

C. The Merits of the Appeal

[8] The conviction appeal rests on two grounds. The applicant argues: first, that the trial judge failed to confront exculpatory evidence in her reasons for judgment; and, second, that she erred in her consideration of confirmatory evidence.

(1) The Trial Judge Failed to Confront Exculpatory Evidence

[9] The complainant’s testimony, which the trial judge accepted, was that his assailants exited from opposite sides of the car. Silva’s testimony was that the applicant was sitting in the rear of the car on the passenger side when the assailants left the car. Since it was agreed that Williams, who was seated in the front passenger seat, was one of the assailants, this aspect of Silva’s testimony suggested that the applicant was not one of the assailants and that either Ricardo, the other occupant of the car, or Silva himself, entered the home with Williams. The applicant submits that the trial judge was obliged to deal with this discrepancy in the evidence and failed to do so.

[10] The trial judge noted the discrepancy in the evidence, at para. 78. The case law is clear that a trial judge is not obliged to reconcile every piece of discrepant evidence. Viewing the trial judge’s reasons as a whole, it is plain that she accepted very little of Silva’s evidence. In this instance the fair inference is that she did not accept Silva’s evidence when they arrived at the complainant’s home.

[11] The applicant also argues that the trial judge referred to, but did not address, the difference between the complainant’s description of the Asian assailant’s shirt as dark, and her finding that the applicant’s shirt was light grey. This, says the applicant, was exculpatory evidence which suggests that he was not the assailant.

[12] This submission does not, in my view, withstand scrutiny. The trial judge referred to the evidence about clothing at paras. 25 and 70:

Mr. Silva described himself as wearing a black leather jacket and jeans; he was unsure if he was wearing sunglasses. Mr. Silva described Mr. Williams as wearing a sports jersey and jeans and Mr. Kaguyutan was wearing a light coloured T-shirt and shorts. He thought Mr. Kaguyutan was wearing sunglasses.

Richard Gratto’s description of clothing worn by his Asian attacker is different from what Mr. Kaguyutan was wearing according to Mr. Silva. Mr. Gratto’s description of what the white man was wearing also differs from what Mr. Silva says Mr. Williams was wearing. None of the arresting police officers gave evidence as to what any of the vehicle occupants was wearing. Video evidence was admitted showing what each of the occupants of the vehicle was wearing on arrest, except for Mr. Williams.

[13] Silva’s description of what people were wearing did not match the video evidence, to which the trial judge referred at para. 53:

The videos reveal that Mr. Silva was wearing jeans and a white hoody with a black short-sleeved t-shirt over top; Mr. Ricardo jeans and a white short-sleeved T-shirt; and Mr. Kaguyutan a grey long-sleeved shirt with a ¼ zip front, the sleeves rolled partway up his forearms, and shorts with a green camouflage pattern.

[14] The trial judge compared the complainant’s recollection of the Asian assailant’s shirt with the applicant’s clothing as shown in the video, and concluded that the two were consistent. She found, at para. 79: “The grey shirt worn by Mr. Kaguyutan in the video is also consistent with Mr. Gratto’s recollection that the Asian man was wearing a dark shirt, although I would describe Mr. Kaguyutan’s shirt as light grey.” The trial judge was alive to the discrepancy between the complainant’s description of the Asian assailant’s shirt as dark, and her own description of the applicant’s shirt as it appeared in the video as light grey, and still concluded that the applicant matched the complainant’s description. I have trouble finding this to be a fatal inconsistency, since colour description is surely relative in this context.

[15] The applicant also argues that the trial judge failed to consider the exculpatory implication of her finding that the video showed Silva to have a “medium build”, which matched the complainant’s description of the assailant. The applicant was more heavy set than the others. This submission ignores the evidence tending to exculpate Silva. The trial judge noted both Silva’s distinct style of dress as recorded on the video, and his testimony that he turned the car around on the driveway while the assailants were inside the home. Although the trial judge did not point to these facts as exculpatory in relation to Silva, they undermine the significance placed by the applicant on the trial judge’s description of Silva as “medium build”. In light of the evidence exculpatory of Silva, it is immaterial that the trial judge’s reference to Silva’s build matches the complainant’s description of the assailant.

(2) The Trial Judge Erred in her Consideration of Confirmatory Evidence

[16] The applicant argues that the trial judge relied on some items of evidence as confirmatory of Silva’s testimony that were not in fact confirmatory. The applicant also argues that since the trial judge found that Silva was not credible on certain matters, she was obliged to be more definitive about the evidence on which she relied as confirmatory of his testimony.

[17] More specifically, the applicant argues that Silva’s testimony that the applicant was wearing a light-coloured shirt was not confirmatory, but was, in fact, exculpatory. I have addressed this above.

[18] Further, the trial judge noted that Silva’s testimony on the applicant’s position in the vehicle was confirmed by the evidence of the arresting officers. But this, argues the applicant, was also exculpatory. If the applicant was in the rear passenger seat, it was unlikely that he was one of the assailants. The arresting officers’ evidence, however, relates only to the occupants’ positions in the vehicle when it was stopped by the police, not when they arrived at the complainant’s home. Considered in context, the officers’ evidence was not exculpatory. Although there is some merit to the applicant’s submission that the trial judge’s examples of confirmatory evidence were not especially relevant to Silva’s credibility, this ground of appeal must be considered in light of the other evidence supporting the applicant’s conviction, including the trial judge’s finding that the complainant’s description of the assailant was consistent with the applicant as he appeared in the video.

D. The Mootness Issue

[19] The practical issue that arises on this application is that by the time the appeal is heard and determined, the applicant will have served a substantial proportion of his sentence. Refusing this bail application might render his appeal moot, which would thereby cause him unnecessary hardship. The appeal has not yet been perfected, so it cannot be expedited.

E. The Public Interest Ground

[20] In my view, the convictions constitute serious crimes against the person. Home invasions accompanied by violence are especially unnerving for victims and communities. The grounds for the conviction appeal are only marginally arguable. In this case, notwithstanding the mootness concern described above, the public interest balance required by Farinacci favours continued enforcement of the sentence, not judicial interim release. The appeal can be scheduled quickly on an expedited basis once perfected.

[21] For these reasons, the application is dismissed.

Released: May 12, 2014

"P. Lauwers J.A."