Court Information

Information No.: 17-Y18134

Date: June 21, 2018

Ontario Court of Justice

Youth Criminal Justice Court

In the Matter of the Youth Criminal Justice Act, S.C. 2002, c.1

Parties

Her Majesty the Queen

v.

A.W.

Judgment

Before the Honourable Justice M.S.V. Felix

On June 21, 2018, at Oshawa, Ontario

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTIONS 110 AND 111 OF THE YOUTH CRIMINAL JUSTICE ACT

Appearances

N. Trbojevic – Counsel for the Crown

T. Green – Counsel for A.W.

Table of Contents

• I. Introduction
• II. Issues
• III. Recent Possession of the Stolen Cellphone
  • A. The "Doctrine"
  • B. Recency of Possession
  • C. Contemporaneous Explanation
  • D. Explanation at Trial
• IV. Identification Issues and the Permissive Inference
• V. W.(D.) and Villaroman

Reasons for Judgment

FELIX, J. (Orally):

I. Introduction

[1] The defendant is a 19-year-old adult charged as a 17-year-old young person with robbery and the possession of property obtained by crime arising out of the events that occurred on March 18th, 2017.

[2] There is no issue that the complainant was in fact robbed. The complainant had attended a house party with some friends in the Oxford Street and Malaga Road area of Oshawa. One of his friends became physically ill so the complainant decided to assist him with walking home. The friend was so incapacitated that he needed assistance with walking so the complainant held him around the waist while walking. The complainant was laboring under this burden, escorting his friend home, when he was robbed on Oxford Street. He was accosted from behind by four males. He was punched and kicked several times and went to the ground. A number of items were taken from him including his cellphone. The assailants fled the scene.

[3] The complainant notified the police when he arrived home. He provided a general description of persons involved in the robbery to the attending police officers including the fact that the main assailant wore a light-colored hoodie with a baseball cap.

[4] The complainant, his father, and the police re-attended the scene of the robbery. While en route to the scene of the robbery the complainant believed that he observed the main assailant at a nearby intersection. By the time this was communicated to the police minutes later, and the police investigated, the person was no longer there. Several police officers investigated the vicinity of the robbery and the nearby house party location where the complainant had been that night.

[5] At 3:38 a.m. the police were investigating the house party location and noticed a male party matching the general description provided by the complainant. This male party is the defendant. The defendant was investigated and the police officer speaking with him noted a cellphone sticking out of his hoodie pocket. The defendant produced the phone voluntarily. He was also in possession of another cellphone. The police officer called the complainant's phone number and confirmed that the defendant was in possession of the complainant's stolen cellphone. The defendant was arrested and charged with both the robbery and possession of property obtained by crime.

[6] The defendant testified at trial. He explained that he purchased the phone at the house party from a stranger and that he was not involved in the robbery.

[7] For the reasons that follow, the defendant is found guilty of robbery and possession of property obtained by crime. I will hear submissions concerning the application of the principle in Kienapple at the end of this oral judgment.

II. Issues

[8] The prosecution bears the criminal burden of proof in every criminal prosecution. At the end of the trial defence counsel properly conceded that the prosecution had established, both; that the complainant had been robbed and that the defendant was in personal possession of the complainant's cellphone.

[9] I have a duty to explain my reasons. I will address the following factors:

1. The defendant's recent possession of the complainant's cellphone;

2. Identification issues and the application of the permissible inference associated with the unexplained recent possession of the complainant's cellphone; and,

3. The guidance of the Supreme Court of Canada in R. v. Villaroman 2016 SCC 33, the application of the principles in W.(D.) v. The Queen (1991), 63 C.C.C. (3d) 77 (S.C.C.), and the criminal burden of proof.

III. Recent Possession of the Stolen Cellphone

A. The "Doctrine"

[10] During submissions both counsel relied upon the "notorious doctrine of recent possession" outlined by the Supreme Court of Canada in R. v. Kowlyk. Counsel relied upon this case in submissions on the issue.

[11] In Kowlyk, at paragraphs 4, 7, and 12, the Court explained what the so-called "doctrine" of recent possession involved:

Before going further, it will be worthwhile to recognize what is involved in the so-called doctrine of recent possession. It is difficult, indeed, to call it a doctrine for nothing is taught, nor can it be properly be said to refer to a presumption arising from the unexplained possession of stolen property, since no necessary conclusion arises from it. Laskin J. (as he then was) (Hall J. concurring) in a concurring judgment in R. v. Graham, supra, said at p. 215:

The use of the term "presumption", which has been associated with the doctrine, is too broad, and the word which properly ought to be substituted is "inference". In brief, where unexplained recent possession and that the goods were stolen are established by the Crown in a prosecution for possessing stolen goods, it is proper to instruct the jury or, if none, it is proper for the trial judge to proceed on the footing that an inference of guilty knowledge, upon which, failing other evidence to the contrary, a conviction can rest, may (but, not must) be drawn against the accused.

He went on to point out that two questions, that of recency of possession and that of the contemporaneity of any explanation, must be disposed of before the inference may properly be drawn. He made it clear that no adverse inference could be drawn against an accused from the fact of possession alone unless it were recent, and that if a pre-trial explanation of such possession were given by the accused and if it possessed that degree of contemporaneity making evidence of it admissible, no adverse inference could be drawn on the basis of the recent possession alone if the explanation were one which could reasonably be true. Implicit in Laskin J.'s words that recent possession alone will not justify an inference of guilt, where a contemporaneous explanation has been offered, is the proposition that in the absence of such explanation recent possession alone is quite sufficient to raise a factual inference of theft.

On the basis of the Canadian authorities referred to above, I am of the view that it is clearly established in Canadian law that the unexplained recent possession of stolen goods, standing alone, will permit the inference that the possessor stole the goods. The inference is not mandatory; it may but need not be drawn. Further, where an explanation is offered for such possession which could reasonably be true, no inference of guilt on the basis of recent possession alone may be drawn, even where the trier of fact is not satisfied of the truth of the explanation. The burden of proof of guilt remains upon the Crown, and to obtain a conviction in the face of such an explanation it must establish by other evidence the guilt of the accused beyond a reasonable doubt.

In summary, then, it is my view, based on the cases, both English and Canadian, which I have referred to, that what has been called the doctrine of recent possession may be succinctly stated in the following terms. Upon proof of the unexplained possession of recently stolen property, the trier of fact may -- but not must -- draw an inference of guilt of theft or of offences incidental thereto. Where the circumstances are such that a question could arise as to whether the accused was a thief or merely a possessor, it will be for the trier of fact upon a consideration of all the circumstances to decide which, if either, inference should be drawn. In all recent possession cases the inference of guilt is permissive, not mandatory, and when an explanation is offered which might reasonably be true, even though the trier of fact is not satisfied of its truth, the doctrine will not apply.

[12] The Court held that recent possession of unlawfully obtained property by a defendant may provide a strong circumstantial inference linking the defendant to the acts associated with the item having been taken.

[13] The Court explained that this is not legal doctrine, conclusive proof, presumptive proof, or a mandatory inference, but simply a permissive inference available to the trier of fact.

[14] The permissive inference relies on an analysis of the totality of all of the circumstances including the recency of the possession and any explanation provided by the defendant.

B. Recency of Possession

[15] The complainant was robbed at 1:30 a.m., the police dispatched at 2:15 a.m. and by 3:38 a.m. the defendant was being investigated, culminating in his arrest by 3:58 a.m. in personal possession of the complainant's stolen phone at 3:58 a.m.

[16] As first explained in an old English case R. v. Exall (1866), 4 F. & F. 922, 176 E.R. 850 relied upon by the Supreme Court of Canada in Kowlyk at paragraph 2:

The principle is this, that if a person is found in possession of property recently stolen, and of which he can give no reasonable account, a jury are justified in coming to the conclusion that he committed the robbery.

And so it is of any crime to which the robbery was incident, or with which it was connected, as burglary, arson, or murder. For, if the possession be evidence that the person committed the robbery, and the person who committed the robbery committed the other crime, then it is evidence that the person in whose possession the property is found committed that other crime.

The law is, that if, recently after the commission of the crime, a person is found in possession of the stolen goods, that person is called up to account for the possession, that is, to give an explanation of it, which is not unreasonable or improbable.

The strength of the presumption, which arises from such possession, is in proportion to the shortness of the interval which has elapsed. If the interval has been only an hour or two, not half a day, the presumption is so strong, that it almost amounts to proof; because the reasonable inference is, that the person must have stolen the property. In the ordinary affairs of life, it is not probable that the person could have got possession of the property in any other way. And juries can only judge of matters, with reference to their knowledge and experience of the ordinary affairs of life. [Emphasis added]

[17] The fact that the defendant possessed the complainant's stolen phone approximately two hours after the robbery is highly probative circumstantial proof of his involvement in the predicate crime.

[18] In addition to this important temporal link, other evidence compliments this finding.

[19] Based on the evidence of the defendant, the complainant, the arresting police officer, and the map exhibits it is clear that the defendant and the complainant were at the same house party. The defendant's evidence alone places him at the house party and proximate to the scene of the robbery.

[20] I am familiar with the location of the robbery. As a Judge sitting in this jurisdiction I may take judicial notice of the streets that I am familiar with. That knowledge, in combination with the map exhibits at trial, makes it clear that the location of the house party and the location of the robbery are in close proximity; perhaps 500 meters apart at the most.

[21] The complainant was robbed by four black males. The defendant was not arrested in the company of three other black males but he testified that there were many individuals at the party who were his racial background, of mixed-race, and darker skinned black males. He also testified that he knew the majority of the people at the party.

[22] Finally, the robbery occurred in the early hours of the morning when there was not a lot of pedestrian traffic.

C. Contemporaneous Explanation

[23] During direct examination of the defendant defence counsel sought to elicit a statement from the defendant to which the prosecution objected on the grounds that it was a prior consistent statement.

[24] Defence counsel did not pursue the line of questioning, did not directly respond to the objection, and thereby appeared to accept the basis of the objection. After a notable pause, there being no argument to the contrary, the court interrupted counsel and sustained the objection for the purposes of the record.

[25] Given the singular reliance by both counsel on Kowlyk, I may safely conclude that the defence attempt did not relate to an admissible contemporaneous explanation relevant to the operation of the permissive inference.

D. Explanation at Trial

[26] The defendant testified at trial and provided an explanation for possessing the complainant's cellphone. The defendant testified that he purchased the cellphone from a stranger named Jabari who was located in the kitchen at the house party. He testified that his cousin notified him that this person was selling cheap phones. His cousin went back and forth between Jabari and the defendant a few times discussing the issue. Ultimately, his cousin left him to conclude the deal with Jabari.

[27] At the outset, let me emphasize that the defendant is presumed innocent and need not prove anything in a criminal trial. But the defendant's explanation must be evaluated as part of the analysis of the permissive inference associated with his recent possession of the unlawfully obtained cellphone. If I believed his evidence or it raised a reasonable doubt in my mind it would negate the drawing of the inference associated with recent possession otherwise available on the evidence. Furthermore, when addressing the criminal burden at large, the proper application of the principles in W.(D.) would operate to exculpate the defendant if I believed his evidence or it raised a reasonable doubt.

[28] I have considered the defendant's evidence with these twin considerations in mind. I do not believe the evidence of the defendant. The evidence of the defendant does not raise a doubt. My rejection of the defendant's testimony is another relevant factor in support of my endorsement of the inference associated with his possession of the unlawfully obtained cellphone: (see R. v. Cain, 2014 NSCA 26, at para. 46, leave to appeal ref'd [2014] S.C.C.A No. 215.)

[29] There are many reasons for this finding:

1. Timing of the "Sale Transaction": The defendant left the house party between 12:00 or 12:15 to go to another party but it was soon over so he returned to the house party at "12:45 almost 1:00". The defendant, both in direct examination and cross-examination, fixed the timing of his purchase at least half a dozen times. He fixed this time as between 12:45 a.m. and 1:15 a.m. and between "12:45 a.m., almost 1:00 a.m." during direct examination. In cross-examination the defendant testified that he went to the party at 12:15 and returned at 12:45: (see: Digital Audio Transcript time 3:58:18 p.m.). He repeated the return time as 12:45: (see: Digital Audio Transcript 3:53:18 p.m.). He also testified that shortly after 12:45 and before 1:00 a.m. the guy selling cellphones came to him: (see: Digital Audio Transcript time 3:53:33; 3:57:06; 3:59:46). The complainant was crystal clear that he left the house party at 1:10 a.m. (confirmed by checking his phone) and the robbery occurred at 1:30 a.m. on Oxford Street a short distance south of the party location. It is notable that the complainant was laboring under the weight of supporting his friend while walking and he described the route he took. Even allowing for the possibility that the times recorded by the complainant and the defendant might differ slightly, the defendant testified to the innocent purchase of the complainant's cellphone at a time when the complainant had not yet been robbed. The defendant placed himself in the kitchen of the house party purchasing the complainant's cellphone before the complainant had left the party and certainly well before the complainant was robbed at 1:30 a.m.

2. The Cousin: The defendant did not call his cousin to corroborate his testimony about how he purchased the cellphone. While the defendant need not testify or prove anything in a criminal trial, I am entitled to evaluate his explanation, as I have explained, both in the context of a decision about the availability of the inference associated to the unexplained possession of recently stolen property and in the context of W.(D.). The defendant's cousin was a crucial link in the purported purchase of the cellphone. He is the person who alerted the defendant to Jabari selling phones and went back and forth between the defendant and Jabari. He would also be able to corroborate that there was in fact a person selling phones at the party. This evidence was not available to potentially corroborate the defendant.

3. The Water: The defendant placed himself at the same party as the complainant. He even testified that he noted the same ill party-goer that the complainant ultimately assisted. It was interesting to hear the defendant voluntarily testify that everyone was focused on the ill person because he was throwing up and that the defendant provided water to this ill person. Logically, this placed the defendant at the house party shortly before the complainant and the sick party-goer left.

4. Involvement of the Cousin: The purported involvement of the cousin was odd. He went back and forth between the defendant and Jabari a few times and then ultimately left the defendant to address the transaction on his own. When pressed on this detail, the defendant elaborated and testified that his cousin said he did not know Jabari and he was on his own. Thus, notwithstanding his cousin's evident interest and initial participation in the transaction, at the very end, the defendant testified that his cousin distanced himself, leaving him to deal with Jabari personally. At yet another juncture of his testimony, when pressured again with cross-examination, the defendant told the court for the first time that his cousin actually broke up a fight in the kitchen.

5. Timing of the Purchase: The defendant said that he had sold two video games to obtain $40.00 towards the purchase of a new phone. He testified that he was in no particular hurry to obtain a phone. He was using PlayStation to communicate and had been without a phone plan for a few months. His mother had cautioned him about the wise use of his resources to obtain his new phone. It is clear that $40.00 was quite a bit of money for the defendant given his efforts to liquidate assets in furtherance of the purchase. Contrast this with the events that later occurred. He persisted in the transaction despite his cousin's curious and sudden disavowal of the seller. Finally, notwithstanding his express lack of foreknowledge or intention to buy a new cellphone that day, he had, coincidentally, the exact $40.00 required by the seller. No change required.

6. The Cost of the Phone: The defendant testified that the phone was "mint" as if it was almost brand new and he also testified that it still had the plastic protective wrapping on it. During cross-examination he acknowledged that such phones could be quite expensive yet he thought nothing of the $40.00 price because the seller had more than one phone to sell. It is interesting that the cost of this "mint" phone was precisely $40.00, exactly the amount of money generated by the defendant's liquidation efforts. It is interesting as well that the phone was not in fact new, there was no plastic protective wrapping on it as evidenced by the complainant's testimony and the pictures filed. Objectively speaking, an innocent purchaser would have questioned the low price for this make and model of phone.

7. The Functioning of the Phone: The defendant testified that he never examined the phone before purchase. He did not turn on the phone or verify that it was functioning in any way. There was a fingerprint scan lock to the phone. He did not inquire as to whether the phone was locked by virtue of the fingerprint. He merely accepted Jabari's statement as to the cellphone provider and resolved that he would be unlocking the phone on his own. The defendant spent a lot of time in his testimony trying to explain why he would not take any steps to check the phone. Generally, his explanation was that he was at a party and he did not want to risk dropping the cellphone. I find that most cellphone consumers would at least inquire about the functioning of the phone let alone take active steps to check if the phone was working particularly given the efforts made to obtain a lot of money for this individual, $40.00.

8. The Timeframe of the Transaction: The defendant testified that he was trying to get the phone as soon as possible as he recognized what a great deal he was getting. He wanted to get the phone before Jabari changed his mind. He testified that he decided to trust Jabari yet did not reconcile this with his cousin's statement that he did not know Jabari and he was on his own or the fact that Jabari was a stranger to him as well.

9. The Identification of Jabari: The defendant testified that he never looked Jabari in the eye or took careful note of him during the purchase. Apparently, according to the defendant, such things such as looking at a person are not done at a house party. When pressed on the issue of physical identifiers the defendant gave a general description of someone slightly shorter than him and more muscular. The defendant also testified that his ability to identify Jabari was compromised by the quick timeframe associated with their transaction and the fact that "shoes were flying" as someone was being assaulted in the kitchen. When strings like this were tugged on by the Crown Attorney, cross-examiner, the defendant became even more elaborate and fantastical with his explanations. In the end, as I noted, the defendant also testified for the first time in cross-examination that his cousin actually broke up the fight in the kitchen thereby placing his cousin in the kitchen.

[30] Overall, the defendant was not an impressive witness. The predominant feature of his evidence was a dense recitation of copious extraneous detail rather than a direct answer to simple straight-forward questions.

[31] The fact that he fixed the time of his purchase at a time long before the cellphone had been stolen did not apparently dawn on the defendant until late in his testimony, if at all.

[32] I reject his evidence categorically about the purchase of the cellphone in its entirety.

IV. Identification Issues and the Permissive Inference

[33] The criminal justice system emphasizes great caution when it comes to identification cases because of the specter of wrongful convictions. The complainant's identification evidence in this case does not definitively identify the defendant. At its highest, the complainant's identification resembles the defendant generally in that the height, stature, racial background, and clothing, match generally. The complainant variously described the hoodie as white or light-grey, described a baseball cap with a different color brim, and failed to identify brand emblems on the hoodie and hat. I am satisfied that this was due to the fact that the complainant was attacked from behind, the quickness of the event, and his limited opportunity to observe.

[34] The application of the inference addresses the identification issue. In Kowlyk, Wilson J., in dissent, held that the strength of the permissive inference will depend on the surrounding circumstances. Wilson, J. reasoned that this left open the issue of whether the inference could be drawn in circumstances where there was no other evidence connecting the accused to the predicate offence. McIntyre, J., for the majority, directly addressed this issue at paragraph 1 of Kowlyk:

I am unable, with the greatest deference to my colleague's views, to agree with her conclusions or with her disposition of the appeal. The principal point of disagreement arises from her words, at p. 628:

It would appear, therefore, that in both English and Canadian law recent possession of stolen goods does not give rise to a legal presumption of guilt of theft or of break, enter and theft. Rather it constitutes a material fact from which an inference of guilt of the more serious offence can be drawn. But the strength of the inference will depend on the surrounding circumstances. This leaves open the issue as to whether such an inference can be drawn when there is no other evidence connecting the accused to the more serious offence. [Emphasis in original]

It is in these last words that my difference with her views is found, for it is my view that in both English and Canadian law the unexplained recent possession of stolen property has long been sufficient to allow a permissive, not a mandatory, inference of guilt of both theft and offences incidental thereto, even in the absence of other evidence of guilt. [Emphasis added]

[35] My endorsement of the permissive inference is still subjugated to two further issues related to the criminal burden of proof. First of all, notwithstanding my rejection of the defendant's evidence in analyzing the recent possession issue, I must still address the defendant's evidence in relation to the third branch of W.(D.). Second, I must also address the guidance from the Supreme Court of Canada in Villaroman.

V. W.(D.) and Villaroman

[36] The third branch of W.(D.) requires the court to assess whether, on the basis of the evidence that is accepted, has the guilt of the defendant been established beyond a reasonable doubt.

[37] In R. v. Gill, 2017 ONSC 3358 Fairburn, J. summarized the Supreme Court of Canada decision in Villaroman at paragraphs 9 to 13:

9 I agree that this case is an almost purely circumstantial one, particularly as it relates to the issues of contention. In R. v. Villaroman, 2016 SCC 33 (S.C.C.), Cromwell J. reviewed the correct approach to circumstantial evidence and the inference drawing process. Where one or more element of an offence relies largely or exclusively on circumstantial evidence, "an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits": Villaroman, at para. 30. Staying focused on the question of whether circumstantial evidence admits of other reasonable alternative inferences, ensures that the trier of fact does not "fill in the blanks" or "jump to conclusions" too quickly: Villaroman, paras. 29-30.

10 While previous cases speak in terms of other "rational" inferences, the unanimous Villaroman court settled upon the term "reasonable": see, R. v. Griffin, 2009 SCC 28 (S.C.C.), at para. 33, Villaroman, at paras. 32-34. As Cromwell, J. noted in Villaroman, while "reasonable" and "rational" inferences carry the same meaning, and it is not in error to speak in terms of "rational inferences", the use of the term "reasonable" guards against any confusion that may arise from the use of "reasonable doubt" and "rational inference".

11 Inferences consistent with innocence do not have to arise from proven facts: Villaroman, at para. 35. As Fish, J. observed in R. v. Khela, 2009 SCC 4 (S.C.C.), at para. 58, the defence does not have to "'prove' certain facts in order for the jury to draw an inference of innocence from them". To make this a requirement for finding alternative rational inferences would be to reverse the burden of proof. Ultimately, the court must consider the "range of reasonable inferences that can be drawn" from the circumstantial evidence. As in Villaroman, at para. 35, "[i]f there are reasonable inferences other than guilt, the Crown's evidence does not meet the standard of proof beyond a reasonable doubt.

12 A theory alternative to guilt is not "speculative" simply because there is no affirmative evidence supporting the theory. A "theory alternative to guilt" can arise from a lack of evidence: Villaroman, at para. 36. Gaps in the evidence can result in inferences other than guilt, but they must be "reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense": Villaroman, at paras. 36-38.

13 Reasonable possibilities and theories inconsistent with guilt must be considered, but this does not require the Crown to "negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused": Villaroman, at para. 37, adopting R. v. Bagshaw (1971), [1972] S.C.R. 2 S.C.C.), at p. 8. Other reasonable inferences must find support in logic and experience and not rest on speculation. As noted by Cromwell, J., at para. 38, the "basic question" is whether the circumstantial evidence, "viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty."

[38] There are no reasonable possibilities or theories inconsistent with guilt in this case. For example, in relation to the identification evidence, if the complainant's identification had supported the identification of someone substantially different from the defendant in appearance (e.g., a 45 year-old Caucasian male with blond hair), there might be a doubt. But the limited identification provided by the complainant does not differ substantially from the defendant's appearance. Even had I accepted the defendant's evidence about Jabari and considered whether he was the robber, I note the physical description of this person did not resemble the defendant. Jabari was apparently "swoll", as described by the defendant, or very muscular, much heavier than the defendant, and shorter.

[39] With respect to the guidance in Villaroman, there are scenarios that could be inconsistent with guilt. For example, the stolen phone could have been innocently given to the defendant by a friend. Or the defendant could have found the phone on the ground and decided to keep it. Or the defendant could have otherwise come into possession in circumstances where he was not a principle or a party to the robbery. But none of these scenarios are reasonable or plausible having regard to all of the evidence in this case.

[40] The defendant placed himself at the same house party as the complainant. The defendant claimed to have observed the ill friend who was ultimately assisted by the complainant. Finally, the defendant was in an area proximate to the intersection of Oxford and Malaga when the complainant indicated he believed one of the robbers was in that same area when returning to the scene with his father. As yet another example of incredible testimony, the defendant testified that he attended the area initially to obtain transportation but then decided to go back to the house party location because of a serious concern about mosquitos. This from the defendant who was prepared to walk all the way home that night. This is a nonsensical explanation that he attended the area initially to obtain transportation but then walked to the house party location to obtain transportation because of a concern about mosquitos.

[41] On all of the evidence, viewed logically, and in the light of human experience, there are no reasonable possibilities or theories inconsistent with his guilt.

[42] Consequently, the defendant is found guilty on both counts.

Released: June 21, 2018