COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Jackson, 2020 ONCA 407

DATE: 20200624

DOCKET: C62076

Tulloch, Roberts and Thorburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Bailey Allison Jackson

Appellant

Lori Anne Thomas, for the appellant

Nicolas de Montigny, for the respondent

Heard: in writing

On appeal from the conviction entered by Justice Joseph F. Kenkel of the Ontario Court of Justice on November 17, 2015.

REASONS FOR DECISION

[1] The appellant was convicted of breaking and entering the complainant’s basement apartment and theft of his dog. The trial judge stayed the conviction for possession of stolen property pursuant to R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729.

[2] These offences arise out of a heated dispute between the complainant and his former girlfriend concerning the sharing arrangements of their dog, Carl, following the breakup of their relationship. On September 14, 2012, the complainant awoke in his basement apartment and saw a foot disappearing through his door. Noticing Carl was gone, he ran outside and saw an SUV parked at the end of the driveway. He recognized the appellant in the passenger seat. He attempted to stop the SUV from leaving and was badly hurt in the process. He has never recovered Carl.

[3] The trial judge concluded that the appellant, a friend and co-worker of the complainant’s former girlfriend, entered the complainant’s apartment, stole Carl, and, upon discovery by the complainant, fled from the scene in an SUV driven by another unidentified person. He imposed a suspended sentence, two years of probation and ancillary firearm prohibition and DNA orders. The appellant appeals only from conviction.

[4] The appellant’s focus on appeal is the trial judge’s assessment of the evidence. She submits that the verdict was unreasonable and could not be supported by the circumstantial evidence that anchored the Crown’s case nor was there sufficient evidence to find her guilty of being a party to the offences. She argues that the trial judge erred in misapprehending key elements of the evidence, leading to impermissible inferences, and in rejecting plausible alternative inferences consistent with the appellant’s innocence.

[5] We do not accept these submissions. The record amply supports the trial judge’s findings and conclusions.

[6] The appellant did not testify at trial and much of the circumstantial evidence remained unchallenged. This included the increasingly acrimonious context of the dog sharing arrangements between the complainant and his former girlfriend, and the appellant’s role in assisting her friend and co-worker. It was not disputed that on behalf of the complainant’s former girlfriend, the appellant and another friend had visited the complainant at his home a few days before the offences to persuade the complainant to resolve the dog sharing arrangements. Whether it occurred the day before or a few days before Carl was stolen, the complainant also testified that his former girlfriend attended at his home and tried to seize Carl shortly before the theft.

[7] It was open to the trial judge to accept the complainant’s evidence, notwithstanding its frailties that the trial judge acknowledged. We do not agree that he misapprehended the complainant’s evidence about what he saw or did on the night of the theft.

[8] The trial judge’s findings and conclusions also found support in the corroborative evidence of the complainant’s upstairs neighbours. On the night of the theft, Ms. Kelly heard two or three female voices whispering beneath her bedroom window, then the sound of running within the complainant’s apartment and up and down the stairs, followed by a bang which sounded like a door. Shortly afterwards, she heard another bang, someone falling down stairs and then the complainant groaning, swearing and yelling for help. Her husband, Mr. Elson, also testified to hearing loud bangs and the complainant in distress. They subsequently found the badly injured complainant in the mudroom, at the backdoor of their unit.

[9] Finally, the trial judge made no error in rejecting the proffered innocent explanation for the appellant’s unchallenged presence in the SUV, which, in all the circumstances of this case, would have been entirely speculative. The trial judge did not err in concluding that the only reasonable inference to be drawn from the totality of the evidence was that the appellant had committed the offences.

[10] We discern no error in principle or palpable and overriding error that would permit appellate intervention. The appeal is therefore dismissed.

“M. Tulloch J.A.”

“L.B. Roberts J.A.”

“J.A. Thorburn J.A.”