Court File and Parties
Court File No.: Central East - Newmarket 4911-998-12-08890-00
Date: 2013-07-03
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Bernard Gosselin
Before: Justice K.P. Wright
Heard on: April 16, May 16 and May 29, 2013
Written Reasons for Judgment released on: July 3, 2013
Counsel:
- R. Scott for the Crown
- R. MacDonald for the accused B. Gosselin
WRIGHT J.:
Brief Overview of the Evidence
[1] Bernard Gosselin comes before this court charged with one count of residential break and enter, and one count of possession of stolen property on October 9th, 2012.
[2] The Crown proceeded by way of indictment and Mr. Gosselin elected to have his trial in the Ontario Court of Justice.
[3] The evidence at trial was heard over the course of three days, April 16th, May 16th and May 29th, 2013. At the outset of trial, defence conceded date, jurisdiction and identification. The Crown called five witnesses and defence relied upon the evidence of one witness, Ms. Martell, Mr. Gosselin's mother.
[4] The matter was put over to today for judgment.
[5] This is my judgment.
Brief Overview of the Evidence
[6] I will now give a brief overview of the evidence. I will further develop the evidence when necessary in my analysis.
[7] Alma and Sheila Feindell are mother and daughter.
[8] In the fall of 2012 they resided together at 12615 Dufferin Street in King City. The residence at that location is a detached house in a rural area of King City.
[9] On October 8th, 2012, Sheila Feindell arrived home from the family cottage. Her mother, Alma, remained at the cottage and was expected home the following week. Sheila Feindell testified she would have looked through the entire house when she arrived home to ensure everything was okay before going to sleep that night.
[10] On October 9th, 2012, Sheila Feindell left her home at approximately 9:30 in the morning and returned at approximately 3:20 in the afternoon to find it had been broken into and a number of items had been stolen from her mother's bedroom. These items included jewellery, coins and some older discontinued Canadian bills.
[11] Also on October 9th, 2012, York Regional Police were conducting an investigation into a missing person. They had secured and were searching an area that included the Feindell residence. At approximately 1:40 p.m., Detective Kempster observed a male walking in the field close to the Feindell residence. He approached the male, who identified himself as Bernard Gosselin. They had a brief conversation and Detective Kempster looked inside Mr. Gosselin's knapsack. The officer's focus when looking in the knapsack was for clothing, body parts or anything connected to the missing person's investigation. He found nothing in that regard but did make a note that Mr. Gosselin had a knife, a small knit glove, and some rolled pennies in the knapsack. The officer recorded Mr. Gosselin's contact information and let him go. It is important to note that at the time of this interaction between Detective Kempster and Mr. Gosselin, the break and enter had not yet been reported.
[12] On October 11th, 2012, York Regional Police discovered a number of items scattered in the tree line close to the Feindell residence. During this time the area was still secured for the missing person's investigation. This property was photographed and seized by the police. Exhibit #3 depicts some of those items seized by police. It included an assortment of items, including jewellery, and a birth certificate with the name Alma Feindell on it.
[13] On October 12th, 2012, Alma Feindell attended at the police station. She identified a number of the items seized by police on October 12th as belonging to her. Those items were immediately returned to her. Those items are depicted in photographic Exhibit #3.
[14] On October 29th, 2012, Detective Constable Dan Moore located and arrested Mr. Gosselin for the break and enter at the Feindell residence. Upon arrest he searched and seized a number of items from Mr. Gosselin's knapsack. Those items are documented in photographic Exhibits #4 and #5.
[15] On October 30th, 2012, Alma Feindell attended the police station again and identified some of the items found in Mr. Gosselin's knapsack as belonging to her. Those items were returned to her on that day. Those items are depicted in photographic Exhibit #4. Those items included the face of a 25 Jewel Benrus watch that she said she bought for her husband 25 years earlier. The watch face is now marked as Exhibit #7 on these proceedings.
[16] Ms. Martell is the mother of Bernard Gosselin. She testified the Benrus watch face (Exhibit #7) had been given to Mr. Gosselin by her father approximately 17 years ago. She also said that the ripped up bills, depicted in Exhibit #4, were bills she had collected and given to her son.
Principles to be Applied
[17] The principles to be applied in this case are the same as those applied in every criminal trial.
[18] Firstly, Mr. Gosselin is presumed to be innocent unless and until the Crown has proven each and every essential element of this offence beyond a reasonable doubt.
[19] Secondly, in assessing the credibility of the witnesses in this case I reminded myself of the principles articulated by the Supreme Court of Canada in R. v. W.(D.) (1991), 63 C.C.C. (3d) 397.
The Evidence and Findings of Credibility
[20] I will first turn to the evidence of Ms. Martell.
[21] Ms. Martell is Mr. Gosselin's mother. He lived with her in the Wasaga Beach area at the time of this offence. She said he was unemployed but regularly looking for work. Despite being a woman of limited financial means, as his mother she did whatever she could to support him. She said she would drive him wherever he needed to go when he was looking for work and she would give him money if she had it.
[22] On October 8th, 2012, she said she dumped a whole can of loose change into his knapsack because he was going to Toronto to look for work and she didn't want him to be hungry.
[23] It is clear that Ms. Martell loves her son and would do anything for him. Mr. Gosselin is fortunate to be the benefactor of that love and support. However, I am mindful that a parent's love for a child often obscures one's ability to be objective or impartial when recalling events in relation to that child. As such I am cautious when assessing Mr. Martell's evidence because in my view her recollection was not an unbiased one.
[24] And here is why.
[25] Ms. Martell was shown photographic Exhibit #4, which depicts a number of ripped up older Canadian bills. She was shown this photo from a distance of a few feet away and instantaneously, without hesitation, said they were the bills she had saved and given to her son years earlier. She said she recognized them because they were ripped up. She said Mr. Gosselin's girl friend had ripped them up a year earlier and she had retrieved and placed them in Mr. Gosselin's knapsack, where the police found them one year later.
[26] The fact that Ms. Martell positively identified those bills as belonging to her son, without pause or inspection, is a demonstration of her inability to be objective or unbiased, and impinges on her credibility as a witness. Moreover, the story that these ripped bills remained in Mr. Gosselin's knapsack for over a year makes no sense and as such is not believable.
[27] Ms. Martell testified that the watch face (Exhibit #7) was given to Mr. Gosselin, when he was 12 or 13 years old, by her father. Ms. Martell gave detailed testimony about how her son came into possession of the watch and what it looked liked. She said the inside face of the watch was silver and had the words "21 Jewels" on the face. She said she had handled the watch many times and that she was absolutely certain about these details.
[28] As it turns out the actual watch says 25 jewels, not 21 jewels, on its face. When Ms. Martell was confronted with this information in cross-examination she said she thought it said 21 and agreed she was mistaken. Defence counsel argues that this is a simple mistake of a single number and nothing should turn on it.
[29] I disagree and here is why.
[30] Ms. Martell testified that her son was fascinated with the watch because he believed the words 21 jewels on the face meant that there were 21 jewels hidden inside it like a treasure. She described it as a constant source of amusement for him and said he would even sleep with the watch. She also described herself as being very familiar with the watch and said every time he would take the back off, she would have to put it back on.
[31] Under the circumstances, if the watch was the focus of her son's attention for the reasons she suggested and to the degree she suggested then the mistake becomes much more significant in the assessment of relativity and credibility.
[32] Moreover, Ms. Martell's initial absolute certainty in describing the watch juxtaposed to her lack of concern or reflection when confronted with her mistake is a further demonstration to me that she is prepared to say anything to assist her son.
[33] There are other more minor examples of this littered throughout her evidence.
[34] Accordingly I am not prepared to place any weight on her evidence.
[35] I will next turn to the evidence of Sheila Feindell.
[36] Sheila Feindell was the first witness called by the Crown. She testified that in October 2012 she and her mother lived in a house located at 12615 Dufferin Street in King City. She said that on October 8th, 2012, Thanksgiving Monday, she arrived back home after spending the weekend at her family cottage. She said that her mother remained at the cottage and she was alone in the home. She testified that the next day, October 9th, 2012, she left the house to do errands at approximately 9:30 a.m. and when she returned home at 3:20 she discovered the house had been broken into. During the police investigation it was discovered that the point of entry was through a basement window in the laundry room. It was found wide open with the screen removed.
[37] She testified that she would have checked the entire house before going to sleep on October 8th, 2012 and that the laundry room basement window was not open at that time.
[38] Defence counsel challenged Ms. Feindell's ability to recall such a detail. As I recall the evidence, she did not have a specific recollection of checking the laundry room basement window. However, she did say that because she had been away, and was sleeping alone in the house that night, she would have checked every room as was her practice. She also said that if that window had been open throughout the night she would have expected animals and rodents to have made their way into the home and there were none.
[39] I accept Ms. Sheila Feindell's evidence that she would have checked the laundry room basement window before going to sleep on October 8th and that if it was open she would have noticed it.
[40] I find Sheila Feindell to be a credible and reliable witness and I accept her evidence in its entirety.
[41] I will now turn to the evidence of Alma Feindell.
[42] Alma Feindell returned home from the family cottage on Wednesday, October 10th, after being notified that her home had been broken into.
[43] On Friday, October 12th, 2012, she attended at the police station at the request of Detective Constable Dan Moore. Once there she was shown all of the items depicted in photographic Exhibits #3 and #9, and was asked if she could identify any of them as belonging to her. She identified all of the items in photographic Exhibit #3 as belonging to her. Defence concedes that all items in photographic Exhibit #3 belong to Alma Feindell. She circled three items in photographic Exhibit #9 as belonging to her. All of the items depicted in Exhibits #3 and #9 were found scattered in the tree line close to her property on October 11th, 2012 by York Regional Police.
[44] On October 30th, 2012, Alma Feindell again attended the police station at the request of Detective Constable Dan Moore. This time she was shown all the items in photographic Exhibits #4, #5 and #6. Alma Feindell identified all the items in Exhibit #4 as belonging to her. All of those items were found in Mr. Gosselin's knapsack when he was arrested on October 29th, 2012.
[45] Defence takes issue with Alma Feindell's ability to recognize the items shown in photographic Exhibit #4. He argues that the bills are generic, with no real distinguishing features and are thereby readily identifiable. He makes a similar argument regarding the coin, the earring and the chain.
[46] I agree the bills do have a generic quality to them. However, they are similar in denomination and vintage to the ones stolen from Alma Feindell. Moreover, one of the one dollar bills reflects the year 1967, which Ms. Feindell says was significant to her.
[47] Alma Feindell's description of the chain however is far from generic. She described it as having knots in it and a broken clasp. She said she knows this because she had tried on more than one occasion to untie the knots.
[48] Perhaps the most contentious item is Exhibit #7, the Benrus watch face. Defence counsel argues that I should not rely upon her identification of the watch face. He says because she has had the watch in her possession since it was returned to her on October 30th, 2012, her identification is no longer reliable, because she has had time to memorize what it looks like. Moreover, he argues that the identification process conducted by Detective Constable Dan Moore was flawed because he did not ask her any clarifying questions when she did positively identify the items as belonging to her.
[49] I disagree with defence counsel's arguments and here is why.
[50] Firstly, I take no issue with the process undertaken by Detective Constable Moore. He simply laid out a number of items and asked Ms. Feindell to look at them and see if she could identify any of them as belonging to her. The process was free of influence from him and was for all intents and purposes completely impartial.
[51] Moreover, Ms. Feindell did not identify all of the items she was shown as belonging to her. She was discriminating and selective. On October 30th, she was shown over 50 items; she identified only 10 as belonging to her.
[52] In relation to the watch face, which is now Exhibit #7, she gave a very detailed description of it in examination in-chief. She testified that the watch had special meaning because she had bought it for her husband 25 years earlier, all of which adds to her believability and reliability. I appreciate in cross she couldn't recall the numbers on the watch face as she had in-chief, but in my view nothing turns on this. I find it nothing more than a momentary inability to recall a detail and in no way impinges on her credibility or reliability as a witness.
[53] In my view Alma Feindell was a trustworthy and reliable witness. I accept her evidence in its entirety.
[54] I will now turn to the evidence of Detective Kempster.
[55] Detective Kempster testified that he first observed Mr. Gosselin walking across a field that was close to the Feindell residence on October 9th, 2012 at 1:20 p.m. Detective Kempster said that area had been secured for three days because of a missing person's investigation and at that point he was not aware that the Feindell residence had been broken into. When he approached Mr. Gosselin he inquired as to why he was there. Mr. Gosselin gave him a variety of answers. First he said he was dropped off from hitch hiking and that he was going to his mother's in Barrie, then said he was going to a friend's house and that he met the friend on the bus he was just on, but did not know the friend's name. Not only are the answers nonsensical and inconsistent with each other, they are also inconsistent with his mother's evidence that she believed he got kicked off a bus or train for having no money.
[56] Detective Kempster then, with Mr. Gosselin's consent, looked inside his knapsack. It is important to note that the officer was looking only for anything related to the missing person's investigation and not a break and enter. That being said, the officer did recall and note that inside Mr. Gosselin's knapsack was a small knit glove and a knife. Detective Kempster also had Mr. Gosselin identify himself and provide his mother's name.
[57] I find that Detective Kempster was a credible and reliable witness.
Analysis
[58] Based on the evidence that I do accept I am prepared to make the following findings of fact:
On October 9th, 2012, between 9:30 a.m. and 3:20 p.m., the residence at 12615 Dufferin Street in King City was broken into;
Entry to the residence was gained through the basement laundry window;
Numerous items were stolen from the bedroom of Alma Feindell and those items included money, an assortment of jewellery and a birth certificate;
That all of the property depicted in Exhibits #3, #4 and circled in Exhibit #9 belongs to Alma Feindell and was stolen from her home on October 9th, 2012;
That the Benrus watch face depicted in Exhibit #4 and also Exhibit #7 belongs to Alma Feindell and was stolen from her home on October 9th, 2012;
That Mr. Gosselin was located walking through the field adjacent to the Feindell property on October 9th, 2012 at 1:40 p.m.;
When stopped by police, Mr. Gosselin had one small knit glove and a knife in his knapsack;
That some of the property recovered by the police on October 11th, 2012, scattered in the tree line close to the Feindell home, belonged to Alma Feindell and was stolen from her home on October 9th, 2012; and
That the property depicted in Exhibit #4, found in Mr. Gosselin's knapsack on October 29th, 2012, belonged to Alma Feindell and was stolen from her home on October 9th, 2012; those items are depicted in Exhibits #3 and #9; and
That the property depicted in Exhibit #4 and Exhibit #7 was found in Mr. Gosselin's knapsack on October 29th, 2012. Those items belonged to Alma Feindell and were stolen from her home on October 9th, 2012.
[59] There is no direct evidence that Mr. Gosselin broke into the Feindell home. In order to find Mr. Gosselin guilty I have to be satisfied beyond a reasonable doubt, on the basis of the evidence that I do accept, that the only logical inference is that Mr. Gosselin broke into the Feindell home on October 9th, 2012 and stole those items that have been identified by Alma Feindell as belonging to her. The evidence must not only be consistent with such a finding, but it must be inconsistent with any other rational conclusion.
[60] I find that I am so satisfied and here is why.
[61] Mr. Gosselin was in a field in close proximity to the Feindell residence during the exact time that I have found the break and enter would have taken place. There is no believable explanation for his being there. This was not a well travelled area where one would expect to find members of the public; not only was it a rural area, but access to it was even more restricted due to the missing person's investigation that caused the area to be secured. The fact that Mr. Gosselin was in this area at all is highly suspicious.
[62] Defence argues that Mr. Gosselin was cooperative and despite having an opportunity to run and avoid the police he did not. It is true he did not run, but the reality is he had nowhere to run to. The police had a clear view of him and therefore he likely had a clear view of the police, even more so because of the number of uniformed police officers and marked police vehicles participating in the investigation.
[63] Defence argues why he would dump some stuff and not all of it if he saw the police. I suspect that he did his best to dump what he could once he saw the police. Most of the items were smaller jewellery items and some money. It is not surprising that he would have missed some of the items due to time constraint and/or their smaller size. Moreover, the items seized by the police on October 11th, 2012 were found in an area that was in close proximity to where Mr. Gosselin had been walking.
[64] Detective Kempster recalled and made note of one small knit glove and a knife in Mr. Gosselin's knapsack when he spoke to him on October 9th, 2012. Both of these items could be of use to a person committing a break and enter.
[65] Further support for such a finding, and perhaps the most compelling piece of evidence, comes from the fact that on October 29th, 2012, Mr. Gosselin was found in possession of the Benrus watch face, the chain and the money. I have found that those items belonged to Alma Feindell and were stolen from her residence on October 9th, 2012. This evidence, when considered in combination with all of the evidence, leaves only one logical and rational inference: That Mr. Gosselin did break into the residence at 12615 Dufferin Street on October 9th, 2012 and did steal personal items belonging to Alma Feindell. Of this, I find myself satisfied beyond a reasonable doubt.
[66] Accordingly, Mr. Gosselin, I find you guilty of break and enter, which is count one on the information.
[67] Finally I will turn to count number 2, possession of stolen property. The information reads that Mr. Gosselin was in possession of four stolen phones and stolen jewellery.
[68] The Crown concedes that it has not led any evidence to support a finding that the cell phones particularized in the information were stolen. They asked me to make my finding on the basis of the evidence in relation to the stolen jewellery.
[69] In my view, doing so would essentially amount to an amendment of the information. This is something that was available to the Crown, yet they chose not to do it. For me to do so now would create an unfairness to Mr. Gosselin and I am not prepared to do that.
[70] As such the Crown has not met its onus in relation to count 2 and Mr. Gosselin will be found not guilty of possession of stolen property.
Released: July 3, 2013
Signed: "Justice K.P. Wright"