Court of Appeal for Ontario

Date: 2019-09-10 Docket: C66267

Judges: Pardu, Brown and Trotter JJ.A.

Between

Her Majesty the Queen Respondent

and

Stanley James Tippett Appellant

Counsel

Stanley Tippett, acting in person Breana Vandebeek, duty counsel Michael Fawcett, for the respondent

Heard: September 4, 2019

On Appeal

On appeal from the conviction entered on July 7, 2017 and the sentence imposed on October 19, 2017 by Justice Drew S. Gunsolus of the Superior Court of Justice.

Reasons for Decision

Overview

[1] In his notice of appeal, the appellant, Stanley James Tippett, appealed from his conviction on one count of attempting to obstruct justice contrary to s. 139(2) of the Criminal Code. As well, he sought leave to appeal the sentence imposed of 22 months' custody, to run concurrent with his extant indeterminate sentence as a dangerous offender.

[2] At the hearing, Mr. Tippett confirmed that he was not pursuing his sentence appeal. At the conclusion of the hearing, we dismissed his appeal from conviction, with reasons to follow. These are those reasons.

Background

[3] In 2009, Mr. Tippett was convicted of seven offences, including the kidnapping and sexual assault of a young girl. The Crown applied for an order designating Mr. Tippett as a dangerous offender. Mr. Tippett ultimately was declared a dangerous offender and an indeterminate sentence was imposed.

[4] However, while awaiting the dangerous offender hearing, Mr. Tippett was charged with attempting to obstruct justice. It was alleged that while in custody Mr. Tippett wrote a large number of letters to another inmate, Morgan Gentle, asking him to provide false evidence concerning the 2009 convictions.

[5] The main issue at trial was whether Mr. Tippett wrote those letters. Originals of the letters had been available at Mr. Tippett's first trial on the charge, which resulted in a hung jury. At some point prior to the start of his re-trial, the originals of the letters were lost. At the re-trial, Mr. Tippett applied to stay the proceedings on the basis that the loss of the original letters prejudiced his defence.

[6] In reasons released July 7, 2017, the trial judge dismissed Mr. Tippett's application to stay the charge and convicted him of attempting to obstruct justice: 2017 ONSC 2876. On October 19, 2017, a 22-month sentence was imposed.

[7] On behalf of Mr. Tippett, duty counsel advances two grounds of appeal: (i) when assessing the evidence of Mr. Gentle, the trial judge erred by shifting the burden of proof onto Mr. Tippett; and (ii) the trial judge erred in minimizing Mr. Gentle's unsavoury character when instructing himself pursuant to Vetrovec v. R., [1982] 1 S.C.R. 811. In his own submissions, Mr. Tippett advanced a third ground of appeal: the trial judge erred by dismissing his stay application, failing to give proper recognition to the prejudice his defence suffered by not having access to the originals of the letters written to Mr. Gentle.

First Ground of Appeal: Shifting the Burden of Proof

[8] Duty counsel observed that at several points in his assessment of Mr. Gentle's evidence, the trial judge mentioned the absence of evidence to the contrary. Counsel pointed to the following portions of the trial judge's reasons:

[22] Mr. Gentle insisted that he was not offered any deal and did not receive anything, including a reduced sentence, for the charges that he faced as a reward for turning over Mr. Tippett's letters. The court received no direct evidence that Mr. Gentle was rewarded in any way. It was mere speculation suggested by the defence.

[49] While I agree with counsel for the defence that Morgan Gentle had a motive to co-operate with police, there is no evidence to suggest that Mr. Gentle fabricated evidence. Rather, he took the opportunity to produce letters that were handed to him by Mr. Tippett in the hope of buying himself favour in relation to sentencing for charges that he was then facing. No evidence was presented suggesting that Mr. Gentle had to be induced to turn over the primary evidence. I did not receive any evidence that Mr. Gentle was promised nor given a more favourable sentence as a result of the provision of the impugned letters to police. Mr. Gentle acknowledged that there were discussions in relation to his ultimate sentencing that ranged between 2 – 5 years. However, there was no evidence presented to suggest that, as a result of the production of the impugned letters, he received a more favourable sentence. At best, the court was presented with conjecture. The investigating officer, Officer Rogers, testified he never spoke to the Crown Attorney to obtain a favourable outcome for Mr. Gentle. I have already noted that he never made an actual promise to Mr. Gentle, however, his words clearly could have been interpreted as one.

[55] Mr. Gentle denied being the author of the letters and pointed out that he did not possess sufficient details about Mr. Tippett and his crimes to have created such detailed letters. He also denied reading newspaper accounts and denied that Mr. Tippett provided him orally with sufficient detail. He was adamant that these letters were the product of Mr. Tippett, written by Mr. Tippett and handed over to him by Mr. Tippett. There is no evidence that would cause me to doubt Mr. Gentle's evidence in this regard. As he said, this was all Tippett, his letters and his plan. Indeed it involves much of Mr. Tippett's life story that only he could know.

[66] Handwriting analysis of the impugned documentation is but one piece of evidence. When one considers the demeanour of Mr. Gentle, the minute detail and content of the letters in question, his own acknowledged intellectual limitations, and given the evidence of Ms. Osmond and Ms. Huggins evidence that replication of handwriting is extremely difficult and rare, while no doubt Mr. Gentle had a motive to produce the letters in order to buy himself favour, there is no evidence to suggest that he fabricated the evidence. [Emphasis added.]

[9] Duty counsel submits that the trial judge's repeated use of the phrase "there is no evidence" indicates that he reversed the burden of proof onto the defence, thereby falling into legal error.

[10] In support of her submission, duty counsel points to the decision of this court in R. v. Bui, 2014 ONCA 614, 14 C.R. (7th) 149. In that case, the court held that the trial judge had adopted an erroneous approach to his assessment of circumstantial evidence, incorrectly thinking that in a case involving circumstantial evidence, alternatives to guilt must be based on proven facts: at para. 31. In the course of its analysis of that issue, this court stated, at paras. 29 and 30:

[29] As I read his reasons, the trial judge blurred the distinction between evidence, available inferences and proven facts. For example, in rejecting the defence submission that someone else could have hidden the handgun in the bed, he found that "there [was] no evidence, but the opposite, that multiple individuals were involved in the operation of the marijuana grow" .

[30] While it is true that no one testified about the presence of persons other than the accused at the house, the evidence that both male and female clothing was found in the house and of the presence of prescription pill bottles in the names of several persons, gave rise to an available inference that more than one person had been in the house. Taking account of the state of the house (including the sparse furnishings, limited food and large number of marijuana plants) this, in turn, gave rise to an available inference that more than one person was involved in the marijuana grow operation. Although that inference may not have been strong enough to constitute a "proven fact", it was not a mere theoretical possibility lacking any evidentiary foundation . [Emphasis added.]

[11] Duty counsel argues that Bui supports her submission that the use of the "no evidence" language by the trial judge amounted to a reversal of the burden of proof.

[12] We are not persuaded by this submission.

[13] Bui concerned the degree of cogency required of circumstantial evidence sufficient to draw a factual inference, as discussed by this court in para. 30 of its reasons. That was not the context in which the trial judge in the present case made his several references to "no evidence".

[14] In our view, the trial judge's use of that phrase closely resembles the circumstances in R. v. Caporiccio, 2017 ONCA 742, where this court stated, at para. 30:

While on a few occasions the trial judge references the fact that there was "no evidence to the contrary", taken in context this expression does not reveal a reversal of the burden of proof. At no time does the trial judge suggest that she accepts evidence because there was no evidence to the contrary. Instead, in using the impugned expression, she is simply signaling that there was no evidence contradicting certain pieces of evidence that she accepted as true. There was nothing wrong with making this observation. [Emphasis in original.]

[15] As well, at the end of his reasons the trial judge clearly stated that the onus was on the Crown to prove each of the essential elements of the offence: at para. 99. He did not lose sight of where the burden of proof lay.

Second Ground of Appeal: The Application of the Vetrovec Principles to Mr. Gentle's Evidence

[16] Duty counsel next submits that the trial judge did not conduct a proper analysis of Mr. Gentle's credibility. In her submission, he minimized the unsavoury nature of Mr. Gentle's extensive criminal record, especially by stating, at para. 53 of his reasons that: "Nowhere is there to be found crimes of dishonesty." Duty counsel argues that Mr. Gentle's numerous convictions for failing to comply with probation orders and breach of recognizance constitute crimes of dishonesty.

[17] While Crown counsel agrees that the trial judge may have downplayed some concerns about Mr. Gentle's record – although he queried whether the breaches of probation orders were crimes of dishonesty or, instead, crimes of disrespect for the administration of justice – he submits that when the reasons are read in their entirety, the trial judge brought to his assessment of Mr. Gentle's evidence the degree of caution required by Vetrovec. The trial judge: (i) expressly stated that he was approaching Mr. Gentle's evidence with caution, "knowing that there is always a danger in relying on the unsupported evidence of unsavoury witnesses"; (ii) he looked for evidence to corroborate Mr. Gentle's denial that he was the author of the large number of letters purporting to be from Mr. Tippett; and (iii) he found extensive corroborative evidence, especially in the evidence of the handwriting experts and the content of the letters: at paras. 51, 55-65.

[18] We accept the Crown's submission. The trial judge approached Mr. Gentle's evidence with the requisite degree of caution. As well, the evidence of the handwriting experts, coupled with the content of the letters, overwhelmingly supported the trial judge's conclusion that he was satisfied, beyond a reasonable doubt, that Mr. Tippett authored the letters: at paras. 66-67.

Third Ground of Appeal: The Trial Judge's Dismissal of the Stay Application

[19] As his final ground of appeal, Mr. Tippett submits that the trial judge's dismissal of his stay application was unfair, disadvantaging his defence because he was not able to properly assess the letter evidence.

[20] Mr. Tippett does not challenge the trial judge's finding that the loss of the original letters was not an abuse of process or unacceptable negligence: at para. 77.

[21] The trial judge further held that Mr. Tippett had not established actual prejudice because: (i) the original letters were disclosed and made available to the defence at the first trial; (ii) the copies were proven to be true copies of the originals, which provided an alternative source of information for expert handwriting analysis; and (iii) using the true copies, the defence was able to submit expert evidence at the second trial: at paras. 79, 85-86. While the task of the defence may have been more difficult due to the missing original documentation, other evidence was available to the defence such that the trial was not rendered fundamentally unfair: at paras. 87-88.

[22] Mr. Tippett has not demonstrated that, in refusing his stay request for those reasons, the trial judge misdirected himself in law, committed a reviewable error of fact or rendered a decision that is so clearly wrong as to amount to an injustice: R. v. Gowdy, 2016 ONCA 989, at para. 65. Accordingly, we see no basis upon which to interfere with the trial judge's decision to dismiss Mr. Tippett's stay application.

Disposition

[23] For the reasons set out above, the appeal is dismissed.

"G. Pardu J.A."

"David Brown J.A."

"Gary Trotter J.A."