Court File and Parties

Court: COURT OF APPEAL FOR ONTARIO Date: 2021-10-13 Docket: C68834

Judges: Rouleau, Benotto and Zarnett JJ.A.

Between: Her Majesty the Queen, Respondent and Kellie-Lynne Gracie, Appellant

Counsel: Kellie-Lynne Gracie, acting in person Fredrick R. Schumann, appearing as duty counsel Nicole Rivers, for the respondent

Heard: October 5, 2021, by video conference

On appeal from: the conviction entered by Justice John N. Olver of the Ontario Court of Justice on March 9, 2020.

Reasons for Decision

[1] The appellant and her co-accused, Dalton MacLeod, were charged with one count of robbery. [1]

[2] The complainant testified that on October 26, 2018, the appellant, with whom he had a mixed business/personal relationship, asked him to come into her apartment to fix what she said was a leaky faucet. The complainant initially resisted, but eventually agreed at the appellant’s insistence. When they entered, the appellant walked straight through the apartment and was not seen again by the complainant. He did see an acquaintance of the appellant, Melissa. In short order, the complainant was struck from behind and knocked down by a bandana-wearing male armed with a knife and a hammer, and then pepper sprayed by Melissa. The male demanded that the complainant empty his pockets. The complainant was able to recover a knife from his pocket and stab the male assailant, ending the attack.

[3] There was no dispute at trial that the male who was stabbed was MacLeod. MacLeod testified at trial and denied the complainant’s version of events. The appellant did not testify.

[4] The trial judge, after instructing himself on the principles in R. v. W.(D.), [1991] 1 S.C.R. 742, rejected MacLeod’s evidence and found it did not leave him with a reasonable doubt. He accepted the complainant’s evidence which left him “with no doubt as to what transpired in [the appellant’s] apartment on the morning of October 26th, 2018.” He found that it was proven beyond a reasonable doubt that MacLeod did commit the offence alleged.

[5] The trial judge then considered the position of the appellant. He noted that she had not testified and instructed himself that he was not to draw any inference from that. He then stated that the Crown had established a “prima facie case” against the appellant that “she had failed to meet”, noting: (i) that the events happened at her apartment; (ii) she had a prior relationship with the complainant, insisted that he come into the apartment to fix a leaky faucet notwithstanding his protestations that he did not have time to do so, then immediately disappeared after entering the apartment with him; (iii) she was captured on video leaving the apartment with Melissa, one of the perpetrators of the attack on the complainant, from an alternate exit; and (iv) she showed no concern for the complainant after the attack and attempted robbery. He referred to the argument of the appellant’s trial counsel that the evidence was insufficient to show that the appellant did anything more than passively acquiesce in the situation as it unfolded, and rejected it, stating:

However, in concluding that MacLeod did, in fact, commit the offence on [the complainant] as alleged, absent any explanation for [the appellant’s] conduct, I do not see how she could be viewed as simply a present and passive spectator without knowledge of the plan for MacLeod and Melissa to rob him. There is no other reasonable inference to be drawn on this evidentiary record.

[6] The trial judge convicted the appellant, finding that she “lured [the complainant] under false pretence to attend inside her apartment knowing of the plan for MacLeod and Melissa to rob him, thus making her a party to the robbery/attempt robbery.”

[7] On behalf of the appellant, duty counsel makes two interrelated arguments. First, he argues that the trial judge reversed the onus of proof, treating what he called a “prima facie” case as sufficient in the absence of an explanation from the appellant. Put differently, he submits that the trial judge in effect used the failure of the appellant to testify and offer an explanation as a make-weight to pull the Crown’s case from one that was only prima facie to one proven beyond a reasonable doubt, contrary to the principles in R. v. Noble, [1997] 1 S.C.R. 874, at paras. 77-81.

[8] Second, he argues that the trial judge’s conclusion that the only reasonable inference was that the appellant was more than a passive, uninformed spectator was itself unreasonable, as other reasonable inferences were available.

[9] We do not accept either argument.

[10] The trial judge’s use of the term “prima facie” was unfortunate. But, taking his reasons as a whole, it is clear that he did not reverse the onus of proof, lose sight of the fact that proof beyond a reasonable doubt was required, consider a prima facie case to be sufficient, or use the failure of the appellant to testify as a make-weight.

[11] The trial judge began his analysis by referring to the Crown’s onus to prove its case on all counts beyond a reasonable doubt. He referred to the case as having been proven against MacLeod beyond a reasonable doubt. He expressly instructed himself that the appellant’s failure to testify was not to be used to draw any inference against her. And although he used the term prima facie, he followed it with a reference to four evidentiary considerations (summarized in para. 5 above) that satisfied him the appellant’s involvement as a party to the robbery was the only “reasonable inference to be drawn on this evidentiary record.” In other words, his ultimate conclusion, on the whole of the evidence, was that the appellant’s guilt was proven beyond a reasonable doubt.

[12] Taken in context, the trial judge’s references to the absence of any explanation from the appellant are not indications that he was using the appellant’s silence to draw an inference of guilt, nor to give the Crown’s case an extra push. He did not, as the trial judge did in Noble, use the appellant’s silence as a piece of inculpatory evidence. Rather, consistently with what the majority of the Supreme Court in Noble described as inoffensive to the right to silence and the presumption of innocence, the trial judge here was simply recognizing “the fact that the evidence of the Crown stands alone. It must be evaluated on this basis. Contradictions that have not been offered cannot be supplied … the silence of the accused fails to provide any basis for concluding otherwise, once the uncontradicted evidence points to guilt beyond a reasonable doubt”: Noble, at para. 82.

[13] The argument that the trial judge erred in concluding that the appellant’s involvement as a party was the only reasonable inference depends on parsing the four considerations he relied upon individually — for example, the fact that the events took place at the appellant’s apartment does not on its own exclude a reasonable inference that she was uninvolved in what occurred. But the trial judge did not treat each as sufficient individually; he considered them cumulatively. We see no error in his conclusion that those circumstances, taken together, permit no other reasonable inference than that the appellant was a party to the planned robbery.

[14] For these reasons, the appeal is dismissed.

Paul Rouleau J.A. M. L. Benotto J.A. B. Zarnett J.A.

Footnote:

[1] MacLeod was charged with other offences arising from the same incident.