COURT OF APPEAL FOR ONTARIO DATE: 20240627 DOCKET: COA-24-CR-0033

Miller, Paciocco and Copeland JJ.A.

BETWEEN

His Majesty the King Respondent

and

Cory Crockatt Appellant

Counsel: Rameez Sewani, for the appellant Joanne Stuart, for the respondent

Heard: June 19, 2024

On appeal from the convictions entered by Justice Andrew W. Brown of the Ontario Court of Justice on April 17, 2023.

By the Court:

Overview

[1] Cory Crockatt appeals his convictions after trial by judge alone for breaking and entering a dwelling house on or about April 3, 2022 (s. 384(1)(b)); possession of stolen property over $5,000, to wit a motor vehicle the property of Jhon Van Beek, on or about April 7, 2022 (s. 355(a)); and three counts of failing to comply with conditions of a release order, on or about April 7, 2022 (s. 145(5)(a)), all contrary to the Criminal Code, R.S.C. 1985, c. C-46. He has abandoned his appeal against sentence. For the following reasons, we dismissed his conviction appeal at the end of oral submissions, without calling on the Crown.

Material Facts

[2] The dwelling house that was broken into, located in a wooded area near Niagara Falls, belonged to Mr. Van Beek’s employers. He lived in the home and cared for the couple’s belongings and their dogs while they were on an extended vacation.

[3] While living in the home, Mr. Van Beek permitted a much younger woman, Zeanka Havtur, whom he was acquainted with, to live in the home and provided her with the means of access to the home. He also provided her with the use of his black Hyundai Santa Fe motor vehicle (the “Santa Fe”). In the early morning hours of April 3, 2022, Ms. Havtur arranged to lure Mr. Van Beek away from the home to Niagara Falls where she was working. While he was gone, a lone person (the “burglar”) broke into the home and stole approximately $130,000 in property, including jewelry. Video security images obtained at the time of the break-in do not permit the identification of the burglar, but it is evident that the burglar had a body type not inconsistent with Mr. Crockatt’s and spent considerable time on the property. The burglar entered and left the home on two occasions, in succession. On the first occasion the burglar left carrying a distinctive Orvis fishing duffle bag – green with brown leather trim – that belonged to the owner, and on the second occasion the burglar left carrying a reusable shopping bag. No forensic evidence linked to the burglar was found.

[4] Ms. Havtur and Mr. Crockatt were immediately identified as possible suspects based on information provided by Mr. Van Beek about Ms. Havtur’s suspicious behaviour and Mr. Crockatt’s close association with Ms. Havtur and his recent attendance at the home. Specifically, in the weeks prior to the break-in he was twice found in the home by Mr. Van Beek without permission, once hiding in a basement closet.

[5] At the time of the break-in, Mr. Crockatt was on a release order dated November 12, 2021. One of Mr. Crockatt’s conditions of release prohibited him from communicating with or contacting Ms. Havtur. He was also prohibited from being in the front seat of a motor vehicle and he was subject to a house arrest condition that required him to remain at 76 Calverley Trail in Toronto.

[6] On April 4, 2022, the day after the break-in, Ms. Havtur took Mr. Van Beek’s Santa Fe from his son without permission and failed to return it after agreeing to do so. The Santa Fe was reported stolen and ultimately traced with GPS technology.

[7] On April 7, 2022, police officers found the Santa Fe parked out of view of the roadway in a lot neighbouring the Caravan Inn, a Niagara Falls hotel. Surveillance officers, including Sgt. Garner, observed a lone male move the Santa Fe and back it into a parking spot at the Caravan Inn before he and Ms. Havtur were observed loading items from inside the motel into the trunk. Sgt. Garner, who had equipped himself with a photograph believed to be of Mr. Crockatt from Ms. Havtur’s Facebook account, concluded from a distance with the aid of binoculars while viewing the male for approximately 7 minutes that he was the man in the Facebook photograph and therefore, Mr. Crockatt. Sgt. Garner’s police notes were sparse and failed to record any personal descriptors of the lone male he was observing. In his trial testimony the only personal descriptor he offered was that Mr. Crockatt was “thin”. Sgt. Garner did make a record in his notes of the clothing he observed the lone male to be wearing, including a grey ball cap and a red hoodie. Police attempted unsuccessfully to follow the vehicle when it left. We note that if this male was Mr. Crockatt, he committed breaches of the three bail conditions described in para. 5 above.

[8] Sgt. Garner subsequently arranged for additional photographs of Mr. Crockatt to be gathered, including police photographs and more Facebook photographs. He used them to confirm that the man in the Facebook photo he had used to identify Mr. Crockatt was indeed Mr. Crockatt, and that it was Mr. Crockatt he had observed. He also noted that in some of these photos, Mr. Crockatt was wearing a red hoodie and grey ball cap, clothing the trial judge found to be consistent with the clothing the lone male was wearing at the Caravan Inn. Sgt. Garner testified at the trial that in preparing to testify he reviewed the photographs, save for one police photo that was no longer available.

[9] Mr. Van Beek’s Santa Fe was again identified the next day, on April 8, 2022, at 1021 Birchmount Road in Scarborough, an apartment where Ms. Havtur lived. It is not contested that Mr. Crockatt arrived with Ms. Havtur in the vehicle, wearing a red hoodie. He was observed carrying an Orvis duffle bag matching the description of the distinctive bag stolen from the residence, as well as a dancer’s pole, consistent with a pole that was known to have been brought by Ms. Havtur to the home that was burglarized.

[10] The police secured a warrant for Ms. Havtur’s apartment and found some of the stolen items from the break-in, including jewelry and the Orvis duffle bag. Inside the Santa Fe which was recovered outside Ms. Havtur’s apartment police found a Ducati t-shirt that was identified as having been stolen during the burglary from a basement shelf located in the vicinity of the closet that Mr. Van Beek had found Mr. Crockatt hiding in several days before. A search of the vehicle’s GPS records disclosed that on April 5, 2022, the Santa Fe had travelled to 76 Calverley Trail, where Mr. Crockatt was living at the time, pursuant to the bail conditions described above. The GPS records also revealed that the Santa Fe made multiple trips between Ms. Havtur’s Birchmount Road address and 76 Caverly Trail on April 8, 2022.

[11] Mr. Crockatt’s trial was conducted, essentially on this evidence, in Ms. Havtur’s absence, after she absconded following her arrest on some of the charges Mr. Crockatt faced. Two other events relevant to this appeal occurred during the trial. First, Sgt. Garner made an “in-dock” identification of Mr. Crockatt. Second, Mr. Crockatt secured testimony from a police officer that his two brothers, who were known to live at 76 Calverley Trail in December 2019, looked “strikingly similar” to Mr. Crockatt although he was heavier and approximately four inches taller.

Issues

[12] Mr. Crockatt’s grounds of appeal may be stated as follows, and are best analysed in the following order:

A. The trial judge erred in his consideration of Sgt. Garner’s identification evidence, on April 7, 2022. B. The trial judge erred by improperly restricting the alternative possibilities he should consider in the circumstantial evidence case relating to the break in. C. The verdict of possession of the stolen car on April 7, 2022, was unreasonable.

Analysis

A. Did The trial judge err in his consideration of Sgt. Garner’s identification evidence, on April 7, 2022?

[13] Mr. Crockatt does not suggest that the trial judge erred in admitting or considering the testimony that Sgt. Garner gave about Mr. Crockatt’s identity as the male he observed at the Caravan Inn on April 7, 2022. Nor does he argue that the ultimate conclusion the trial judge made beyond a reasonable doubt, that this male was Mr. Crockatt, was unreasonable. This ground of appeal is narrow, having two parts, neither of which we find persuasive.

[14] First, Mr. Crockatt argues that the trial judge ignored or misunderstood his submissions about the tainting effect that Sgt. Garner’s conduct in gathering and reviewing additional photos of him would have had on his identification evidence. Specifically, Mr. Crockatt argued at trial that by gathering and viewing these photos, Sgt. Garner exposed himself to a significant risk of confirmation bias. He likened Sgt. Garner’s conduct to the discredited practice of having a witness identify a suspect from a single photograph, or after viewing the suspect alone, criticized in R. v. Miaponoose (1996), 30 O.R. (3d) 419 (C.A.), and in other decisions. Yet the trial judge did not address this submission in his reasons. Instead, he addressed the risk that an identification could become contaminated by seeing a single photo of the suspect only with respect to Sgt. Garner’s viewing of the Facebook photo of Mr. Crockatt before and during his observations at the Caravan Inn, which is not a submission Mr. Crockatt made.

[15] We are not persuaded that the trial judge ignored or misunderstood Mr. Crockatt’s submission or that he otherwise erred in his consideration of the use by Sgt. Garner of the photographs. Mr. Crockatt’s trial submissions were clear and simple, and not apt to be misunderstood. A more likely explanation for the failure of the trial judge to engage the “confirmation bias” submission directly is that it was not a consideration important enough to engage.

[16] Sgt. Garner offered two conclusions about Mr. Crockatt’s identity: (1) the conclusion he reached on April 7, 2022, that the man he was observing was the person in the Facebook photo he was holding, namely Mr. Crockatt; and (2) the in-court identification in which he expressed the opinion that the person in custody was the same man he saw on April 7, 2022, namely Mr. Crockatt. In the circumstances of this case, there is no realistic risk that the trial judge relied upon testimony formed or enhanced through confirmation bias arising from Sgt. Garner’s conduct in gathering and viewing of photographs after leaving the Caravan Inn.

[17] With respect to the first conclusion offered by Sgt. Garner relating to the opinion he formed on April 7, 2022, there is absolutely no risk that the formation of that opinion was tainted by bias from gathering and reviewing the photographs, because Sgt. Garner did not gather and review the photographs until after he had already formed that opinion.

[18] Nor was there reason for the trial judge to be concerned that Sgt. Garner may have gained a distorted level of confidence in that opinion before testifying, as the result of reviewing photographs he had gathered after the observations were made. Even though it is possible that Sgt. Garner may have gained an exaggerated confidence in his earlier observations as a result of doing so, it is clear from the trial judge’s reasons that he did not decide how much weight to give Sgt. Garner’s opinion based on Sgt. Garner’s confidence in his opinion. Instead, the trial judge weighed Sgt. Garner’s identification testimony closely by examining his opportunity to observe and the manner in which he made that identification – by the live comparison of the suspect to the photograph. It is noteworthy that after doing so the trial judge was guarded in how much weight to give this evidence. He said that he would not have been convinced beyond a reasonable doubt based on Sgt. Garner’s opinion alone that it was Mr. Crockatt who was at the Caravan Inn. Two things persuaded the trial judge to make that finding. First, he made his own comparison of the accused before the court to the photograph that Sgt. Garner had with him on April 7, 2022, as well as the photographs Sgt. Garner subsequently obtained. Second, and more importantly, he relied upon a crush of contextual and circumstantial evidence confirming Sgt. Garner’s conclusion, including that: the man at the Caravan Inn was wearing a red hoodie similar to the hoodie Mr. Crockatt was known to be wearing the next day; the nature of his relationship with Ms. Havtur and his ongoing and close association with her in the days before and after April 7, 2022 increased the probability they would be together that day; the ongoing links between Mr. Crockatt and the Santa Fe, including its visits to his home after April 7, 2022 and his occupancy of the car on April 8, 2022; and his possession on April 8, 2022 of the same distinctive Orvis bag, which had been stolen during the break-in, that the male was carrying on April 7, 2022. Given the pathway the trial judge took in concluding that Mr. Crockatt was the man observed on April 7, 2022, there was no risk presented by any tainting effect that Sgt. Garner’s review of the photos could have had on his confidence in his identification. Simply put, this risk was not a material enough concern to warrant attention in the judgment.

[19] We do recognize that there was a risk that Sgt. Garner’s conduct in reviewing the impugned photos may have influenced his in-court identification of Mr. Crockatt. However, there was no need for the trial judge to address that risk either because he made clear that the in-court identification had “minimal value”.

[20] We are therefore unpersuaded that the trial judge ignored or misunderstood Mr. Crockatt’s submissions, nor would we be persuaded that even if he had, it was a material enough consideration that the trial judge’s failure to address it provides a reason to interfere with this decision.

[21] The second analytical error Mr. Crockatt submits that the trial judge made in evaluating Sgt. Garner’s identification evidence from April 7, 2022, was in dismissing his submission that the male with Ms. Havtur could have been one of Mr. Crockatt’s “strikingly similar” brothers. He takes issue with the trial judge’s reason for rejecting this possibility, primarily his conclusion that “[t]here is no evidence whatsoever of any connection between Zeanka Havtur and any Crockatt except the defendant Cory Crockatt.” Mr. Crockatt argues that this reasoning reverses the burden of proof by expecting him to present evidence of the connection between Ms. Havtur and one of the brothers, when the burden of proof is on the Crown and the absence of such evidence should leave a reasonable doubt under the principles in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at paras. 35-37.

[22] We do not accept this submission. The only possibilities left by the absence of evidence that can raise a reasonable doubt are “reasonable possibilities”: Villaroman, at paras. 36-37. The Crown has no burden to negate unrealistic or speculative possibilities. On the evidentiary record in this case, the possibility that Ms. Havtur could have been with one of Mr. Crockatt’s brothers on April 7, 2022, instead of him, did not have to be negated because is not based on logic and experience but on mere speculation. There was a powerful affirmative circumstantial case that Mr. Crockatt was the person with Ms. Havtur built on the nature of their relationship, their frequent companionship at the relevant time, his known attendance at the home where the break-in occurred, and his possession on April 8, 2022, of the same distinctive Orvis duffle bag the suspect carried on April 7, 2022. We agree with the trial judge. In the face of this evidence, mere proof that he has two doppelgangers in the person of his brothers does not raise a reasonable possibility that the suspect could have been one of them, in the complete absence of any apparent connection between them and Ms. Havtur or the material events.

B. Did The trial judge err by improperly restricting the alternative possibilities he should consider in the circumstantial evidence case relating to the break in?

[23] At trial, Mr. Crockatt did not dispute the theory that the burglar was someone known to Ms. Havtur and who was familiar with the house prior to the break-in, and he conceded this to be so before us on appeal. He therefore couched his reasonable doubt submissions at trial by arguing that the circumstantial case leaves a reasonable doubt about whether other persons known to Mr. Havtur who she might have taken into the house could have committed the offence. He argues that this possibility is grounded in evidence that Ms. Havtur had the opportunity to bring other unknown persons into the house because she had access to the house for three months, was known to have invited another male there, and kept different hours than Mr. Van Beek who, accordingly, would not know whether or how frequently this happened. He argues that the trial judge misapprehended this submission by considering only whether an “unknown, unrelated party” could have committed the break-in. In doing so he incorrectly narrowed the range of reasonable possibilities he should have considered.

[24] We are not persuaded that the trial judge erred in failing to address explicitly Mr. Crockatt’s theory about other possible visitors to the home.

[25] First, the fact that the trial judge explained why an “unknown, unrelated party” could not reasonably have committed the offence, does not mean he failed to consider whether an unknown party related to Ms. Havtur could have done so. In the impugned passage, which focused upon the unusual selection of the Ducati t-shirt of little value by a burglar, the trial judge was merely explaining why he was treating Mr. Crockatt’s prior connection to the house as some circumstantial evidence consistent with him being the burglar.

[26] Second, the trial judge’s reasons are not predicated on the assumption that Mr. Crockatt was the only person who was sufficiently familiar with the home to have committed the burglary. The trial judge grounded his conviction of Mr. Crockatt on the intersecting web of circumstantial proof that pointed to him, including his “recent possession” of the stolen goods. We recognize that Mr. Crockatt was not shown to be in possession of those goods until April 7, 2022, a few days after the break-in, but in the circumstances of this case that possession materially weakens the theory that the burglar could have been another unknown person who Ms. Havtur may have brought into the house. For this to be so, that person would have to be someone else whose body type is consistent with the footage of the burglar, who would have had a chance to observe the basement display case and identify the Ducati t-shirt when they were previously in the house, and who would steal the goods only to relinquish them and disappear from the picture, leaving Mr. Crockatt in possession of those goods. This most unlikely scenario is not enough to undermine the strong evidence implicating Mr. Crockatt. The trial judge gave extensive reasons for convicting Mr. Crockatt of the burglary. His failure to address explicitly whether the burglar could be some unknown person Ms. Havtur previously brought into the house is not an error.

C. Was the verdict of Possession of the Stolen Car Unreasonable?

[27] The Crown did not have evidence that Ms. Havtur told Mr. Crockatt that the car was stolen. Mr. Crockatt argues that, in the absence of such evidence, the Crown has failed to prove that he knew the car to be stolen when he drove it to the motel parking space on April 7, 2022, yet knowledge is a required element of the offence. He submits that the suspicious location in which the vehicle was parked before he moved it is not circumstantial evidence that he would have known the vehicle was stolen, absent proof that he was present when it was secreted there, which evidence is lacking.

[28] We do not accept Mr. Crockatt’s submission that the verdict of guilt on the possession charge was unreasonable. It is a verdict that a properly instructed jury, acting judicially, could reasonably have rendered, and it was reached rationally and logically: see R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36; R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at paras. 17-19, per Fish J. (dissenting, but not on this point), citing R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190. Even though Mr. Crockatt saw both Ms. Havtur and Mr. Van Beek in possession of the Santa Fe prior to April 7, 2022, there was a reasoned basis arising from the evidence for the inference that Mr. Crockatt would have known it was Mr. Van Beek’s vehicle and not Ms. Havtur’s. He and Ms. Havtur were in a close relationship and frequently together at the relevant time. This increases the likelihood that he would know whether the Santa Fe was hers. It is also evident that Mr. Crockatt was aware that Mr. Van Beek was permitting Ms. Havtur to live in the home. Mr. Crockatt would have known that it was not unlikely in these circumstances that he would give her access to his car. The trial judge’s inference that, given his role in the break-in, Mr. Crockatt would have known that after the break-in Ms. Havtur would not be permitted to have the vehicle, is entirely reasonable. Moreover, the fact that they were co-conspirators in the break-in and continued to associate despite a condition of bail prohibiting him from being in her company increased the probability that she would not have hidden her unlawful possession of the Santa Fe from him. In addition, they were together at the Caravan Inn an appreciable distance from Mr. Crockatt’s residence, and the Santa Fe was the only mode of transport immediately available to them. It is likely they arrived together. The Santa Fe was parked away from the motel where it could not be seen from the road, when it would have been possible to park it proximate to the motel unit. Even if Ms. Havtur had parked the Santa Fe there without Mr. Crockatt present, when he went to move the Santa Fe, he most likely would have noticed that she had secreted the vehicle from the road, given where it was parked.

[29] The trial judge was entitled to convict on this cumulative evidence. His finding that Mr. Crockatt possessed what he knew to be a stolen vehicle is not unreasonable.

Conclusion

[30] The appeal is dismissed.

Released: June 27, 2024 “B.W.M.” “B.W. Miller J.A.” “David M. Paciocco J.A.” “J. Copeland J.A.”