Court of Appeal for Ontario

Date: 2019-05-15 Docket: C65652

Judges: Hourigan, Paciocco and Harvison Young JJ.A.

Between

Her Majesty the Queen Respondent

and

Charles Russell Clarke Appellant

Counsel

Perrin Valli, for the appellant

E. Nicole Rivers, for the respondent

Heard: May 10, 2019

On appeal from the convictions entered on June 25, 2018 by Justice G. Hearn of the Ontario Court of Justice.

Reasons for Decision

Facts

[1] The appellant was convicted following a judge alone trial of possession of a firearm obtained by crime, possession of property obtained by crime, break and enter to steal a firearm, and break and enter with intent to commit an indictable offence.

[2] The circumstances giving rise to these convictions were somewhat unusual. At approximately 9:30 a.m. on June 18, 2017, Ms. Jestin went to check on a rural property owned by her daughter, Ms. Beaton, who was away at the time. As Ms. Jestin walked up to the house, she heard a voice and found a man who turned out to be the appellant. She described him as saying that he did not know where he was or what was happening. The appellant said that he had been locked in a "barn" or a garage and that he needed help. He asked Ms. Jestin to call the police and she did so.

[3] The appellant waited in the driveway until Officer Dolderman and Officer Toor of the Ontario Provincial Police arrived a short time later, at around 10:00 a.m. They conducted an initial investigation, which consisted of speaking with Ms. Jestin, speaking with the appellant, and looking around the property. The appellant told the police that he had been "inside a shed and there were children outside not allowing him to come outside the shed".

[4] When the police looked around the shed on the property (which was also described at trial as a garage and workshop), they discovered that the shed had been broken into. Ms. Jestin had not immediately noticed this when she arrived and found the appellant on the property. The appellant was arrested for break and enter. As police continued their investigation, they located a .22 caliber gun which had been loaded and placed on an ATV inside the garage, pointing towards the garage door. The appellant was subsequently arrested on the other charges, including possession of the firearm obtained by crime and break and enter to steal a firearm.

[5] At trial, the trial judge ruled that the accused's utterances to police were voluntary. He also dismissed the appellant's application to exclude the statements on the basis that the police had violated the appellant's ss. 10(a) and (b) Charter rights. Certain other Charter issues raised by the appellant became moot in light of the concessions made by the Crown. The appellant does not appeal from any of the trial judge's Charter rulings.

The Issues on Appeal

[6] The appellant argues that the trial judge misapprehended the evidence and incorrectly applied the rules of circumstantial evidence in finding that:

• The appellant was the perpetrator of the break-in at the shed; and
• The rifle in the shed was a "firearm" within the meaning of s. 2 of the Criminal Code.

In the appellant's submission, the guilty verdicts on these charges were unreasonable.

[7] We do not agree and would dismiss the appeal for the following reasons.

Analysis

Perpetrator of the Break-In

[8] There is no issue that someone had broken into the building in question, and that indictable offences were committed inside. The only outbuilding on the property was a building that was variously described at trial as a shed, outbuilding, garage, or workshop.

[9] We see no merit to the appellant's submission that the trial judge misapprehended and/or misapplied the circumstantial evidence in this matter. The issues raised in this appeal were raised at trial and considered by the trial judge, upon a careful review of all the evidence.

[10] The trial judge specifically recognized that there was no direct evidence of anyone actually seeing the appellant going in or out of the garage or shed. He pointed to the appellant's statement to Ms. Jestin that he had been in a building – which the appellant referred to as a "barn". The appellant had been walking on the property from the direction of the shed when Ms. Jestin first saw him. The trial judge went on to state as follows:

The circumstantial evidence that is in place including the location, findings of the officers consistent with the concerns expressed by [the appellant] and the remaining evidence in its entirety, satisfies me beyond a reasonable doubt that the only reasonable inference to be drawn on all of the evidence is that it was [the appellant] who had entered the shed and caused the damage therein.

[11] The appellant argues that the trial judge erred in accepting the utterances that he was locked in the "barn" as referring to the outbuilding on Ms. Beaton's property, pointing out that when he stated that he was locked in a "barn" he did not expressly refer to the building on Ms. Beaton's property. The appellant's claim of misapprehension of this evidence rests partly on the fact that different witnesses described the building that was broken into as a barn, shed, workshop and garage. The trial judge described it as a "shed/garage/shop" or a "larger type of building in which a number of items were located including ATVs, snowmobiles and a truck, together with a workshop". He found that it could easily be described as a "barn". There was no other outbuilding on the property. That the appellant was referring to the building on Ms. Beaton's property, which had been broken into, was a finding of fact well-grounded in the evidence before the trial judge. There is no basis for interfering with it.

[12] The conclusion that the appellant was the perpetrator of the break-in was also open to the trial judge in the circumstances of this case. He concluded that there was no reasonable alternative to the conclusion that he was the perpetrator and was therefore guilty. We disagree with the appellant's submission that there were other reasonable alternatives because: (i) there was at least an 18-hour window between the last time Ms. Jestin had checked on the property, such that someone else might have broken-in; and (ii) while there were no immediate neighbors, there was a village in the area so he might have been referring to another outbuilding.

[13] The trial judge's conclusion – namely, that the only reasonable inference was that the appellant was the perpetrator of the break and enter – was supportable on all the evidence in the case and the trial judge's findings of fact. These findings of fact included:

• The building had clearly been broken into recently;
• The appellant was found trespassing on the property when the owner's mother arrived to check on it;
• The appellant had uttered statements about being locked in a barn (which had been found to have been voluntarily made); and
• This property was in a rural area with no immediate neighbors.

[14] The trial judge also considered Officer Dolderman's evidence that he found the gun in the barn, where it had been placed on an ATV pointing to the door. The trial judge concluded the fact that the garage door had been barricaded and the firearm pointed at the door was consistent with the appellant's stated fear of children being outside the "barn". All of these findings were well grounded in the evidence at trial and support the trial judge's conclusion that there was no reasonable inference other than the inference that it was the appellant who had broken into the shed. Any other inferences were speculative at best.

The Firearm

[15] The appellant also submits that the trial judge erred and misapprehended the evidence in finding that the gun was a "firearm" within the meaning of s. 2 of the Criminal Code. We disagree. Again, this issue was fully explored at trial. The trial judge reviewed all the evidence on the point and concluded, notwithstanding the Crown's inability to rely on a certificate, that the gun that was seized within the barn was in fact a firearm within the meaning of the Criminal Code and that it belonged to Ms. Beaton.

[16] The appellant points to the contradiction in the evidence of the officers in that one of them described it as a semi-automatic rifle and the other as having a bolt-action or something resembling a bolt-action on the side of it. It is not clear, to begin with, that this is actually a contradiction. In any event, both officers described it as a firearm. The trial judge further heard evidence from Ms. Beaton that she had owned a .22 rifle that had been brought back from their cottage and stored in a case in the garage under the bench seat in the truck. Her husband (who had recently died) had been meticulous about keeping it clean and in working order. She further testified that they had used it regularly for target shooting. When the gun in the shed was found, the storage case was empty. Officer Dolderman also testified that there was a live round of ammunition in the gun at the time.

[17] On the basis of all of the evidence, it was open to the trial judge to conclude that the gun seized was a firearm and that it belonged to Ms. Beaton.

Disposition

[18] In conclusion, we find no merit in any of the issues raised by the appellant, who in essence is asking this court to retry the case. The appeal is dismissed.

"C.W. Hourigan J.A."

"David M. Paciocco J.A."

"A Harvison Young J.A."