Court and Parties

Court of Appeal for Ontario Date: 2020-05-28 Docket: C65435

Before: Doherty, Juriansz and Miller JJ.A.

Between: Her Majesty the Queen, Respondent and Brian Phillips, Appellant

Counsel: Richard Litkowski, for the appellant Natalya Odorico, for the respondent

Heard: May 19, 2020 via videoconference

On appeal from: The conviction entered by Justice E. Meijers of the Ontario Court of Justice, dated January 22, 2018.

Reasons for Decision

[1] In the late evening or early morning of April 28th/29th, 2017, someone broke into the Anthony home in Orillia, Ontario and stole Ms. Anthony’s purse and the keys to the truck parked in the driveway. The next morning, Mr. Anthony discovered the purse, keys and truck were missing.

[2] The appellant and a co-accused were charged with one count of break and enter, two counts of theft (the truck and the purse), and one count of possession of stolen property (the truck). The co-accused was acquitted on all counts. The appellant was convicted on counts one to three and acquitted on count four, based on the date of the offence alleged in the information.

[3] The appellant initially appealed conviction and sentence, but has abandoned his sentence appeal.

[4] The case against the appellant was entirely circumstantial. The Crown argued that the totality of the circumstantial evidence compelled the conclusion that the appellant, with one or more accomplices, had broken into the Anthony home, stole the purse and keys and drove the Anthony car to Kingston to visit his girlfriend.

[5] The appellant did not testify. The Crown tendered a statement made by the appellant. In that statement, he acknowledged getting a ride from Orillia to Hamilton and then to Kingston to see his girlfriend. He would not identify the driver.

[6] There was little, if any, dispute about the credibility of the evidence tendered by the Crown. The outcome turned on what inferences could be drawn from that evidence. The evidence justified the following findings:

• some time in the late evening of April 28th or the early morning of April 29th, a person or persons broke into the Anthony home in Orillia, Ontario and stole Ms. Anthony’s purse and the keys to the truck parked in the driveway. The thieves left the house and drove away in the truck;
• the appellant was living in a drug rehabilitation residence in Orillia on April 28th. He was required to sign in and out. He signed out of the residence shortly after 6:00 p.m. on April 28th and did not return;
• there was no evidence as to the relative locations of the rehabilitation residence and the Anthony home, other than both were said to be in Orillia;
• Highway 407 toll records show the Anthony’s vehicle proceeding eastward, near Markham, Ontario shortly after 6:00 a.m. on April 29th;
• Kingston is about 300 kilometres east of Markham;
• the appellant was arrested on an unrelated warrant in Kingston, Ontario at his girlfriend’s residence at about noon on May 1st. The co-accused was arrested in Kingston on May 2nd;
• the Anthony’s truck was found on a street in Kingston on May 19th. Parking tickets on the truck indicated it had been parked on the same street, if not in the same spot, since at least May 3rd at 9:52 a.m.;
• the truck was found about four kilometres from the residence of the appellant’s girlfriend and about one kilometre from the residence where the co-accused was arrested;
• the appellant’s DNA was lifted from a Red Bull can found under the passenger seat in the Anthony’s vehicle. The co-accused’s DNA was found on a cup also located in the back of the vehicle. Other cups and assorted garbage were also found in the back of the truck;
• a construction hat was found in the vehicle. It did not belong to Mr. Anthony. The appellant had a construction job on April 28th when he left the Orillia area. There was no physical evidence connecting the hat to the appellant;
• the keys to the truck and Ms. Anthony’s purse were found in the truck; and
• Mr. Anthony did not know the appellant or the co-accused.

[7] In convicting the appellant on three charges, the trial judge said:

I find nothing in the evidence or in common sense which proffers any reasonable, innocent explanation for their juxtaposition. Mr. Phillips had a motive to go to Kingston. He had no vehicle of his own. He was right in the area of where the vehicle was stolen. The vehicle took a path to Kingston shortly after it was stolen. He was arrested in Kingston at his girlfriend’s house, some 300 plus kilometres away within 2½ days, and his DNA was found inside the vehicle. Obviously it had been put there before May 1st, because after May 1st noon, he was in custody.

In my view, it would require a great deal of speculation to come up with some alternative explanation that fits common sense and reality on the evidence that is before me.

[8] The appellant argues that the verdict is unreasonable. He submits, that while the circumstances are suspicious, the inferences necessary to prove the allegations beyond a reasonable doubt cannot reasonably be drawn. In his submission, at its highest, the evidence puts the appellant in the Anthony vehicle some time after it was stolen on the evening or early morning of April 28th-29th and the time of his arrest on May 1st at around noon. The appellant contends the finding he was in the truck within a few days of its theft could not support the conclusion that he was ever in possession of the truck, much less that he was a party to the break-in and thefts at the Anthony home.

[9] This court has a limited power under s. 686(1)(a)(i) to review the reasonableness of a conviction. This court’s task is well described in R. v. Lights, 2020 ONCA 128, at para. 39:

When a verdict that rests wholly or substantially on circumstantial evidence is challenged as unreasonable, the question appellate courts must ask is whether the trier of fact, acting judicially, could reasonably be satisfied that the guilt of the accused was the only reasonable conclusion available on the evidence taken as a whole: [citation omitted]. Fundamentally, it is for the trier of fact to determine whether any proposed alternative way of looking at the case as a whole is reasonable enough to raise a doubt about the guilt of the accused.

[10] There is nothing to connect the appellant to the break-in or the thefts, except for his alleged possession of the stolen vehicle shortly after the break-in and thefts occurred. The reasonableness of the three convictions turns on whether the circumstantial evidence was reasonably capable of supporting the inference the appellant was not only in the Anthony vehicle when it travelled to Kingston, but was also in possession of that vehicle. Possession requires proof of some element of control over the thing said to be possessed: R. v. Pham (2005), 203 C.C.C. (3d) 326, at para. 16 (Ont. C.A.), aff’d, 2006 SCC 26, [2006] 1 S.C.R. 940; R. v. Terrence, [1983] 1 S.C.R. 357. Absent a finding the appellant was in possession of the truck, the further inferences he was the person who broke into the Anthony home and stole the purse and keys was not reasonably available.

[11] The Crown claims there were two or more people involved in the break-in, the theft and the trip to Kingston. There is no evidence the appellant was driving the vehicle. Other than evidence he was in the vehicle, there is nothing from which possession of the vehicle could reasonably be inferred.

[12] We are satisfied the evidence was equally consistent with an inference that the appellant became involved with the vehicle some time after the break-in and the thefts had occurred. On that view, even if the appellant knew the break-in had occurred and the vehicle was stolen, he was not a party to the break-in or the thefts from the Anthony residence. His potential liability on a charge of possession of the stolen vehicle, based on his presence in the vehicle, is a moot point. He was acquitted on that charge and there is no appeal from that acquittal.

[13] On our review of the evidence, a trier of fact could not reasonably be satisfied that the appellant’s guilt on the charges was the only reasonable conclusion available on the evidence. The appeal must be allowed, the verdicts set aside, and acquittals entered.

“Doherty J.A.”

“R.G. Juriansz J.A.”

“B.W. Miller J.A.”