Court of Appeal for Ontario

Date: 2018-12-03 Docket: C64781 Judges: Doherty, Miller & Fairburn JJ.A.

Between

Her Majesty the Queen Appellant

and

George Nathan Sault Respondent

Counsel

Christopher Webb, for the appellant Janani Shanmuganathan, for the respondent

Heard: November 27, 2018

On appeal from the acquittals entered on December 7, 2017 by Justice Beth A. Allen of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

[1] An unmarked police vehicle was broken into while in a hotel parking lot. Various items were taken, including a Sig Sauer semi-automatic handgun, a C-8 semi-automatic rifle, and multiple over capacity magazines, including magazines for the stolen guns. Oleoresin capsicum ("OC") spray was also taken. The respondent's left palm print was lifted from the outside packaging of paper located by forensic examiners on the front seat of the police vehicle.

[2] Three days after the theft, the respondent was found driving a stolen motor vehicle. Two over capacity magazines were found in that vehicle, one for a Sig Sauer semi-automatic firearm and the other for a C-8 semi-automatic rifle. Although the respondent left the scene, he was later found hiding inside of a freezer within a home. During a search incident to arrest, the police discovered that he had OC spray in his pocket.

[3] The respondent faced a 28-count indictment, including counts relating to prohibited firearms, devices, and weapons, theft, damage to a police vehicle, and breach of probation. The trial judge acquitted him on all counts.

[4] The Crown appeals from those acquittals. In doing so, the Crown has a heavy burden. The Crown must demonstrate that the trial judge erred in law in a way that had a material bearing on the verdicts of acquittal.

[5] The respondent concedes that the trial judge erred in acquitting on count 24. That count related to the possession of the OC spray. Consistent with his position at trial, the respondent acknowledges that he was in possession of OC spray, a prohibited weapon, and that he was not the holder of a licence. Accordingly, a conviction should have been registered on that count.

[6] In respect to the balance of the acquittals, the Crown maintains that the trial judge erred in law in two ways. We need only address one of those arguments.

[7] The Crown argues that the trial judge erred by failing to consider the evidence as a whole. Specifically, the Crown contends that the trial judge erred when she considered the respondent's palm print evidence in isolation from the rest of the evidence. The evidence relating to that palm print follows.

[8] The parties filed an agreed statement of facts. They agreed that the respondent's left palm print was located by forensic officers on the outside packaging of a bundle of paper found on the passenger's seat of the vehicle that had been broken into. The officer who had left that vehicle parked in the hotel lot testified that the paper with the palm print had originally been in a knapsack, but that the contents of the knapsack had been emptied into the vehicle and the knapsack had been taken.

[9] The trial judge noted that the fact of the respondent's palm print being in the truck fell short of proof that he was in possession of the contents of the truck. She then turned her mind to the agreed upon palm print evidence.

[10] The trial judge expressed difficulty "accepting the handprint evidence" noting two reasons that she found it "peculiar". First, the trial judge found that if the paper had come from the knapsack, she would not have expected a flat handprint to have formed on the paper. Instead, if the paper had been removed from the knapsack as described by the officer, the trial judge said that she would have expected it to have been grasped in a way that would have left thumb and fingerprints. Second, the trial judge was concerned with the fact that only one of the respondent's prints had been found in the vehicle. If the respondent had used a bare hand to grasp the paper, the trial judge said that she would have expected more of the respondent's prints to have been left behind.

[11] On that basis, the trial judge decided to "give no weight to the handprint evidence".

[12] Having rejected the palm print evidence, for the two reasons summarized above, the trial judge never considered what inferences could be drawn from the palm print considered in combination with the other evidence capable of connecting the respondent to the break-in and thefts. The parties had agreed that the respondent's left palm print was on the paper in the police vehicle. Accordingly, it was not open to the trial judge to entirely remove that agreed upon fact from the evidentiary scales when considering the rest of the evidence. Although we agree with the trial judge that the presence of the print did not, standing on its own, prove anything, she was required to consider that incontrovertible evidence in the context of the evidence as a whole.

[13] In our view, the failure to consider the cumulative effect of the evidence may well have had a material impact on the verdicts of acquittal. Distinctive items of very limited availability were stolen from the police vehicle where the respondent's palm print was discovered. Three days later, the respondent was found with the same types of distinctive items in his pocket and in the vehicle he was driving: OC spray, one over-capacity Sig Sauer handgun magazine and one over-capacity C-8 rifle magazine. In these circumstances, the trial judge was required to consider the cumulative effect of the evidence as a whole.

[14] The appeal is allowed. The acquittal on count 24 is quashed, a conviction is entered and the matter of sentence is remitted to the trial court. All other acquittals are quashed and a new trial is ordered.

"Doherty J.A." "B.W. Miller J.A." "Fairburn J.A."