R. v. Ramsay

Date: April 17, 2019

File No: 17-0740

Ontario Court of Justice

Between:

Her Majesty the Queen

-and-

Joshua Ramsay

Before: Justice Michael G. March

Heard on: September 27, 2018, March 4 and 5, 2019, and March 29, 2019

Reasons for Judgment released on: April 17, 2019

Counsel:

• Caitlin Downing, Counsel for the Crown
• Mark Huckabone, Counsel for the Accused

Introduction

[1] Joshua Ramsay (Ramsay) stands charged that on or about May 8 and 9, 2017:

a) he did steal a ring, the property of Ingrid Berndt ("Ms. Berndt"), of a value exceeding $5,000.00 contrary to s. 334(a) of the Criminal Code ("Code"), and

b) he did have in his possession a ring of a value exceeding $5,000.00, knowing that all of the property was obtained by the commission in Canada of an offence punishable by indictment, contrary to s. 354(1)(a) of the Code.

[2] The charges stem from a visit Ramsay made to the residence of Ms. Berndt in the course of his employment with McCrae's Heating and Air Conditioning Inc. ("McCrae's"). A ring belonging to Ms. Berndt went missing around the time of a regular maintenance trip Ramsay made to her home to service her gas appliances. To this day, sadly, the whereabouts of the ring remain unknown.

Ms. Berndt

[3] Ms. Berndt resides in McNab Braeside Township with her husband, William Berndt ("Mr. Berndt") near Renfrew, Ontario. Their home and garage has gas appliances – two furnaces and two fireplaces. Routinely, McCrae's services the appliances for the Berndts.

[4] Ms. Berndt has a jewelry cabinet in her bedroom. She locked it before the arrival of the McCrae's employee, Ramsay, on Monday May 8, 2017 at 8:00 a.m. Ramsay arrived there roughly an hour later.

[5] The missing ring was custom made and designed for the Berndts' 35th wedding anniversary. Its disappearance was first noticed on Tuesday May 9, 2017, when the Berndts were planning a trip to Ottawa. Ms. Berndt searched high and low for the ring to no avail. She never saw the ring again.

[6] Ms. Berndt last wore the ring on Saturday, May 6, 2017 when she was playing cards with Jason Efthymiou ("Efthymiou") and Cindy Stewart ("Stewart"). Coincidentally, on May 9, 2017 in fact, she paid a visit to Omega Jewellers ("Omega"), a business owned and operated by Efthymiou and Stewart. Ms. Berndt was there at the same time as the McCrae's serviceman, Ramsay, but she did not recognize him. He looked the other way to avoid her gaze, she thought. He then quickly left the store.

[7] The ring was the only item missing from the well-stocked jewelry cabinet. Ms. Berndt discovered that the cabinet was closed, but left unlocked. The key used to open it was kept well hidden within her closet. It was where it should be.

[8] Mr. Berndt suggested she should call Omega, where the ring had been custom crafted, and regularly cleaned.

[9] The ring was a fusion of two bands – the bigger one with a one carat diamond in the center and rectangular cut emeralds on both sides. The smaller one was the opposite in layout with an emerald in the center and diamonds set on either side. The smaller ring was appraised in 2014 in the amount of $8,100.00; the larger ring was appraised at $29,800.00.

[10] The ring was not insured, nor did Ms. Berndt keep any receipt for work done to design and construct the blended rings.

[11] The Berndts and the proprietors of Omega, Efthymiou and Stewart, are close friends. Ms. Berndt's recollection was that she paid $10,000.00 for the work in cash. There was no picture Ms. Berndt had of the fused ring. She was, of course, very proud of it. She kept it shiny and in good shape.

[12] No one else was in the Berndt household besides Ramsay and Mr. and Ms. Berndt between the time she last wore the ring and when she discovered it missing. There was no sign of the lock on the cabinet being tampered with. Police looked for fingerprints, and found none.

[13] From photos taken of the bedroom, Ms. Berndt confirmed that a person working on a thermostat for the bedroom fireplace would be able to see the cabinet attached to the wall.

Kevin McCrae

[14] Kevin McCrae ("McCrae") is the owner of McCrae's. He testified that his employee, Ramsay, was assigned to a regular maintenance call at the Berndt residence in May 2017. McCrae explained that the vehicle Ramsay was operating was equipped with GPS tracking devices. At 1:45 p.m. on May 9, 2017, Ramsay was in the vicinity of Omega, although he did not have a record for Ramsay's movements on May 8, 2017.

[15] McCrae's company issues uniforms including gloves, which employees do not typically wear in warmer weather. There was no expectation on the part of McCrae's management for employees to wear gloves.

[16] McCrae offered, of course, that it is a component of the duties of company employees to check thermostats to ensure their proper function, whenever work on gas appliances is done.

Det. Cst. Mask

[17] Det. Cst. Mask became involved on May 11, 2017 in investigating the missing ring. He conducted a traffic stop at 5:18 p.m. of the work vehicle Ramsay was operating at that time. Via information received from other officers, Det. Cst. Mask formed grounds to arrest Ramsay.

[18] Upon Det. Cst. Mask initiating the traffic stop, Ramsay pulled over right away in McCrae's vehicle. The officer notified Ramsay of the reason for his arrest. Det. Cst. Mask provided all appropriate cautions and rights to counsel. There was no search of the vehicle incident to arrest. Ramsay appeared to be upset that he was being arrested.

[19] In the statement taken from Ramsay at the police detachment, he admitted, amongst other things:

a) attending at Omega Jewellers;

b) going to Walsh Jewellers as well;

c) that his partner and he were shopping for rings;

d) that he brought a gold men's ring to Omega for an appraisal;

e) that this particular ring he inherited from his father;

f) that this ring was located in his personal vehicle at McCrae's parking lot; and

g) that he believed the ring could be found in the center console of his personal vehicle.

[20] The audio and video taped statement Det. Cst. Mask thought he was obtaining from Ramsay did not in fact record due to some sort of technical difficulty, unfortunately.

[21] Det. Cst. Mask also acquired telephone records for Ramsay's work calls spanning May 5-11, 2017. These records showed Ramsay made several calls to pawn shops following his departure from the Berndt residence on May 8, 2017. However, when accessing the online portals of those pawnbrokers for items acquired, Det. Cst. Mask did not find any ring to match the one which went missing from the Berndt residence.

Mr. Berndt

[22] Mr. Berndt confirmed the attendance of one of McCrae's men, "Josh Somebody," at his home around the time of the disappearance of his wife's ring. Mr. Berndt recalled seeing the ring for the last time the weekend before the service call made by the McCrae's employee.

[23] Mr. Berndt thought his wife, Ms. Berndt, had put the ring away a day or two before, but he could not "…swear on that." He confirmed there were no other visitors at his residence other than Ramsay between the last time he saw it and his awareness of its disappearance.

[24] Mr. Berndt never touches Ms. Berndt's rings.

[25] He recalled Cst. Dikih of the Renfrew OPP visiting his residence a few days after the loss of the ring. He observed the officer go upstairs to look at the jewelry cabinet where the ring was kept. He explained his wife keeps the cabinet locked all the time – she has to, or the door will swing open.

[26] Cst. Dikih borrowed Mr. Berndt's Swiss army knife and opened the cabinet with it. Mr. Berndt could see no damage to the cabinet after the officer had picked the lock in this manner. The whole process, Mr. Berndt testified, took two seconds to complete. The cabinet could not, according to Mr. Berndt, be relocked using a knife. There was no key in the lock when Cst. Dikih was able to open the cabinet.

[27] Mr. Berndt did not rule out the possibility that his wife's ring could simply have been misplaced.

[28] Mr. Berndt confirmed he collaborated in the design of the ring. He knew eventually that the fusion of the rings required soldering in order to keep them from becoming detached – one from the other. Originally, it had studs and sockets. Soldering was the last option, and it worked.

[29] Mr. Berndt had no idea whether a receipt or bill of sale existed from Omega for the creation of the ring. He knew the ring was not insured.

[30] The only picture of the ring, of which he was aware, were the ones taken at the time of their appraisal.

[31] He agreed there was no banking records, to which he could point, to ascertain exactly how much was paid to Omega for creating the ring. Nor was he aware of the amount paid for the ring at the time of its construction.

Patricia Chartrand

[32] Ms. Chartrand is a lifelong friend of Stewart, the co-owner of Omega. Ms. Chartrand does not know the Berndts.

[33] On May 8, 2017, she recalled being at Omega visiting Stewart. Ms. Chartrand recalled it was around 3:00 p.m. when Ramsay entered the store. Ramsay asked Ms. Stewart if stones could be taken out of a ring and set in another. Ramsay then took the ring out of a baggy. He explained the ring came from his grandmother.

[34] Ms. Chartrand heard her friend, Stewart, explain to Ramsay, upon examination of the ring with a jeweler's eyepiece, that the ring was worth a lot of money. Ms. Chartrand believed she could see diamonds and emeralds on the ring.

[35] While testifying, Ms. Chartrand was shown the ring retrieved by police from the center console of Ramsay's personal vehicle. She was not sure if that was the ring Ramsay brought to the store.

[36] When shown a picture of the missing ring, Ms. Chartrand could not say that was the ring she saw at the store that day either. She was too far away to know for sure. She confirmed that when the ring was shown to Stewart, the latter did not exclaim, "I recognize this ring." Rather, Stewart told Ramsay she believed the diamonds were real. Stewart could not express any such opinion about the emeralds.

Efthymiou

[37] Efthymiou is a jewelry designer. He was taught and trained at Manchester University. He is a certified gemologist.

[38] He owned Omega Jewelers in Renfrew for 15 years before the business moved to Ottawa.

[39] Stewart worked with him in Renfrew at Omega over the course of time it operated there. She is his wife and business partner. For the most part, Efthymiou is in the workshop, while Stewart deals with the customers.

[40] Efthymiou has known the Berndts for 12 years. He considers them to be good friends. He made the ring in question for an anniversary the Berndts celebrated.

[41] He estimated that in 2011 or 2012, he created the ring by taking a diamond that used to be in Ms. Berndt's mother's ring, and setting it between two emeralds. He then fused a matching band to it. Efthymiou had in his possession already the emeralds he attached to the ring.

[42] During Efthymiou's testimony, he explained the fusion process. He confirmed that the ring is two tone – white gold on top and yellow gold on bottom. He initially attempted to use rivets, but later resorted to soldering the bands. Efthymiou puts the logo of his company on the interior of the ring bands he designs. It is engraved with the consonants, NLD, in Greek style characters. He thought it was only the main band of Ms. Berndt's anniversary ring that carried his company logo, which would be positioned on the inside left aspect of the band.

[43] Efthymiou confirmed Stewart was aware of the company logo he used.

[44] Stewart, he testified, did not participate in its creation, although she may have provided her opinion on a few things. He asserted his wife did not see the rings fused together.

[45] He recalled that the Berndts paid roughly $20,000.00 for the combined ring upon completion. He confirmed he did the appraisal for the ring.

[46] Efthymiou did not believe he was present when Ramsay brought a ring to his store on May 8, 2017. As well, Efthymiou did not remember whether he had any record of payment for the ring from the Berndts as it was an informal dealing between Mr. Berndt and himself to arrange for payment. Efthymiou surmised that maybe his banking records would show the amount paid for the ring.

Sgt. Sarault

[47] At the time Ms. Berndt's ring went missing, Sgt. Sarault was a detective with the Renfrew OPP and participated in the search of Ramsay's personal vehicle on May 12, 2017.

[48] Sgt. Sarault was present when a thick gold ring with a blue stone was located in the center console of the vehicle. Cst. Dikih photographed it and seized it.

[49] Sgt. Sarault did not recall seeing or locating any other ring.

[50] Later the same day, Cst. Dikih and Sgt. Sarault took the seized ring to Omega Jewelers. Cst. Dikih showed it to Stewart.

Stewart

[51] Stewart works at Omega Jewelers. Her husband, Efthymiou, was with her at the store when Ramsay came in on May 8, 2017, as was her friend, Ms. Chartrand.

[52] Ramsay told Stewart that he inherited through his maternal grandmother a ring which he wished to have appraised. Stewart put on her overhead jeweler's eyepiece to examine it. The center diamond of the ring, she observed, was quite huge.

[53] She estimated its worth at between $8,000.00 and $10,000.00. There were two emeralds adjacent to the diamond. Located on the ring as well were two princess diamonds. She could not assess the value of those gems. However, she was able to determine that the gold band of the ring was stamped 18 carat. She offered to Ramsay that her husband, Efthymiou, could tell him more accurately the value of the ring.

[54] Stewart testified that she did not look at the full inner circle of the ring. Nor did she spend a great deal of time scrutinizing it. She did make Ramsay aware that he received a "very nice gift" from his grandmother.

[55] Ms. Stewart understood from speaking to Ramsay that he wanted to surprise his fiancée. They were soon getting married.

[56] Ramsay left the store but returned later before closing time with his fiancée. On this trip, Ramsay did not show the ring to Stewart again.

[57] When Stewart returned home after work that evening, she remarked to her husband, Efthymiou, that the ring Ramsay came seeking an appraisal for looked a lot like Ms. Berndt's.

[58] However, the ring Ramsay had was "beat up." By this, she meant it looked like an older, antique ring. Furthermore, Stewart believed Ms. Berndt's ring to be in two distinct pieces, but worn together, whereas the one Ramsay presented to her was two joined bands, thus it was much wider.

[59] Ramsay came back to the store the following day, May 9, 2017, Stewart recalled. He asked about removing the main diamond of the ring. Stewart explained the cost of mounting to be around $1,200.00.

[60] Coincidentally, Stewart recalled that Ms. Berndt dropped by the store on May 9, 2017 as well. Ramsay, Stewart thought, appeared to be taken aback by Ms. Berndt's presence. Ms. Berndt, Stewart testified, was able to recognize Ramsay as a McCrae's employee. Ms. Berndt said "hello" to Ramsay. To Stewart, he seemed surprised.

[61] Later in the day, Stewart received a call from Mr. Berndt. He informed Stewart that Ms. Berndt "misplaced" one of her rings. Stewart explained in giving her evidence that it still did not jive for her that the ring Ramsay showed to her actually belonged to Ms. Berndt. Stewart offered that she would only ever see the ring on Ms. Berndt's hand.

[62] Cst. Dikih visited subsequently with Stewart at Omega. He asked if Stewart could be 100% sure that the ring she saw belonged to Ms. Berndt. Stewart explained that Ms. Berndt's ring was in immaculate shape. It was always beautiful and perfect.

[63] Together, Cst. Dikih and Stewart looked at appraisals for rings owned by Mr. and Ms. Berndt. Stewart realized then that two rings were made into one for Ms. Berndt. When she taped two individual photos of Ms. Berndt's rings together, which photos were taken individually at the time of appraisal, she realized that the ring shown to her by Ramsay on May 8, 2017 was the one which belonged to Ms. Berndt.

[64] Stewart confirmed that she was aware Ms. Berndt brought her ring into the shop two or maybe three times in the past. Stewart did not have any dealings with it on those occasions.

[65] Stewart explained that she did see a man's ring that Ramsay brought to her shop as well, but the diamond one belonging to Ms. Berndt was a woman's ring.

[66] Stewart clarified that she had seen Ms. Berndt's diamond ring in the past, but the bands, she believed, were separate, individual units. Stewart believed that Ms. Berndt was simply wearing the rings adjacent to one another on her finger.

[67] Stewart agreed that she did not become suspicious, even when Ms. Berndt was at Omega the same time as Ramsay on May 9, 2017.

[68] Stewart confirmed she did not look for any designer logo. When asked to draw it while testifying, she wrote "JDD". However, when the logo drawn by Efthymiou, and made Ex. 11 on the trial, was shown to Stewart, she recognized that "NLD" was indeed her husband's insignia.

[69] Stewart acknowledged she had two opportunities to view the ring – once, on Monday May 8, 2017 (i.e. during the first visit Ramsay paid to Omega), and a second occasion on Tuesday, May 9, 2017, when Ramsay was at Omega the same time as Ms. Berndt.

Carol Fisher

[70] Ms. Fisher is Ramsay's mother. She was aware of and able to identify the ring her son received from his father, and made Ex. 12 on the trial. She was not aware of any other rings Ramsay owned.

[71] When shown the ring owned by Ms. Berndt, and made Ex. 13 on the trial, she confirmed that she has never actually seen that ring in her son's possession, or elsewhere.

Ramsay

[72] At or about the time Ms. Berndt's ring went missing, Ramsay worked for McCrae's as a licensed service technician. He visited the Berndt's residence to conduct regular maintenance on their gas appliances on May 8, 2017. He recalled he arrived at their home between 9:00 and 10:00 a.m.

[73] He first serviced the gas furnace in the basement. He then moved to the fireplace in the living room. He next went upstairs to do maintenance on the fireplace in the master bedroom.

[74] While working in the bedroom, Ramsay testified he did not notice a jewelry cabinet. However, the thermostat, where Ramsay would stand to test its proper regulation of the temperature of the gas fireplace, was quite close to the jewelry cabinet where Ms. Berndt typically kept her missing ring.

[75] Ramsay noted there was no one else in the home besides the Berndts and him on May 8, 2017. Ms. Berndt did depart for a while in the late morning or the early afternoon, he remarked, but she returned before he left. He recalled nothing unusual about performing this service call. He denied going into Ms. Berndt's jewelry cabinet. He vehemently denied taking her anniversary ring.

[76] He confirmed he visited Omega in Renfrew around the time of the ring's disappearance. He added that he went to virtually every other jewelry store in the Ottawa Valley too. He explained he was looking for rings for his fiancée and him.

[77] When shown Ex. 12 on the trial, he identified it as the ring which he received from his father. It was a gold band with a blue sapphire gem. When presented with Ex. 13 (the photo of Ms. Berndt's missing ring), he claimed he never had one like that when he met with Stewart at Omega following the service call he made at the Berndts' residence.

[78] Ramsay related that Stewart put on an eyepiece to look at the ring he owned with the blue sapphire. She told him it was of little value. He denied giving any other ring to Stewart for inspection and valuation.

[79] Ramsay acknowledged that Stewart and Ms. Chartrand described a different ring than the one he testified he brought to the store. However, he disagreed with the descriptions they gave of the type of ring he had asked to have appraised on May 8, 2017.

[80] Ramsay agreed he returned later in that day with his son and his then fiancée. Stewart, his wife and he had a general discussion about ring designs and bands. He may have even tried some on.

[81] In terms of visits to Omega, Ramsay testified:

a) on his first trip (May 8, 2017), he was alone; others were in the store besides Ms. Stewart and her friend; it was the only time he showed a ring to Ms. Stewart; he was there for only 15 or 20 minutes;

b) on his second trip, (May 8, 2017), he was with his wife and son; they were there for 30 minutes; and

c) on his third trip (May 9, 2017), he was alone; he did not show anyone a ring because he was told it was of little value.

He was not sure if Ms. Berndt was also at Omega during his third visit. He did not return to the store after May 9, 2017.

[82] Ramsay explained that following his arrest, he told police during the statement he gave that the ring he owned, the one with the blue sapphire, could be found in the center console of his vehicle.

[83] Ramsay acknowledged that he did make calls to various businesses on May 8, 2017. His first call to PayDay Plus was a loan company, to which he owed money. The remaining three, Howard's Buy, Sell & Trade, Cash for Trash and Recycle Frog, were businesses to which he made inquiries about pawning his father's ring.

[84] Ramsay agreed that he had a criminal record for robbery dating back to August 5, 2008 and for impaired driving dating back to October 27, 2010.

[85] At the time Ramsay made his service call at the Berndts' residence on May 8, 2017, he was not absolutely sure whether he would have had an exacto knife in his bag. Its blade is short, and only extends to a ¼ inch in length. He denied any need for a knife to perform his duties that day.

[86] Ramsay testified that the sapphire ring was a gift he received from his father just before he passed away. He treasured it as a result. He explained that he had it with him in his car, because he was bringing it to a lot of different places. Indeed, its sentimental value was greater than its actual worth.

[87] Ramsay clarified that even though Stewart did not believe his father's ring was of any significant worth, he did not necessarily have to accept her opinion. He could bring it elsewhere to obtain other appraisals.

[88] Ramsay denied that he ever saw a key slot for Ms. Berndt's jewelry cabinet. He believed it to be a wall mounted mirror. From photos shown to Ramsay, he did not agree that he would see the mechanism for opening the cabinet. He vehemently denied using a tool to actually open it.

[89] When it was put to Ramsay that he was attempting to pawn Ms. Berndt's ring shortly after he left the Berndt residence on May 8, 2017, he refuted the suggestion. Equally, he denied wishing to give the ring to his fiancée. He was adamant that he never showed Ms. Berndt's ring to Stewart.

The Law

[90] In R. v. Duffy, 2016 ONCJ 220, Vaillancourt J. articulated eloquently the principles to be observed and respected by all judges in Canada presiding over criminal trials. He offered the following guidance on the presumption of innocence, proof beyond a reasonable doubt and the assessment of witness credibility:

[8] Chief Justice Dickson of the Supreme Court of Canada in R. v. Oakes, [1986] 1 S.C.R. 103 wrote about the presumption of innocence and s. 11(d) of the Charter commencing at paragraph 27:

[27] Section 11(d) of the Charter constitutionally entrenches the presumption of innocence as part of the supreme law of Canada. For ease of reference, I set out the provision again:

11. Any person charged with an offence has the right

(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.

[28] To interpret the meaning of s. 11(d), it is important to adopt a purposive approach. As this Court has stated in R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, at p. 344:

The meaning of a right or freedom guaranteed by the Charter was to be ascertained by an analysis of the purpose of such a guarantee; it was to be understood, in other words, in the light of the interests it was meant to protect.

In my view this analysis is to be undertaken, and the purpose of the right or freedom in question is to be sought by reference to the character and the larger objects of the Charter itself, to the language chosen to articulate the specific right or freedom, to the historical origins of the concepts enshrined, and where applicable, to the meaning and purpose of the other specific rights and freedoms ….

To identify the underlying purpose of the Charter right in question, therefore, it is important to begin by understanding the cardinal values it embodies.

[29] The principle of innocence is a hallowed principle lying at the very heart of criminal law. Although protected expressly in s. 11(d) of the Charter, the presumption of innocence is referable and integral to the general protection of life, liberty and security of the person contained in s. 7 of the Charter (see Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, per Lamer J.) The presumption of innocence protects the fundamental liberty and human dignity of any and every person accused by the State of criminal conduct. An individual charged with a criminal offence faces grave social and personal consequences, including potential loss of physical liberty, subjection to social stigma and ostracism from the community, as well as other and social, psychological and economic harms. In light of the gravity of the consequences, the presumption of innocence is crucial. It ensures that until the State proves an accused's guilt beyond all reasonable doubt, he or she is innocent. This is essential in a society committed to fairness and social justice. The presumption of innocence confirms our faith in humankind; it reflects our belief that individuals are decent and law-abiding members of the community until proven otherwise.

[30] The presumption of innocence has enjoyed longstanding recognition at common law. In the leading case, Woolmington v. Director of Public Prosecutions, [1935] A.C. 462 (H.L.), Viscount Sankey wrote at pp. 481-482:

Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.

Subsequent Canadian cases have cited the Woolmington principle with approval (see, for example, Manchuk v. The King, [1938] S.C.R. 341, at p. 349; R. v. City of Sault Ste Marie, [1978] 2 S.C.R. 1299, at p. 1316).

[9] In R. v. Lifchus, [1997] 3 S.C.R. 320, Cory J. at paragraph 27 observed that:

First, it must be made clear to the jury that the standard of proof beyond a reasonable doubt is vitally important since it is inextricably linked to that basic premise which is fundamental to all criminal trials: the presumption of innocence. The two concepts are forever as closely linked as Romeo and Juliet or Oberon with Titania and they must be presented together as a unit. If the presumption of innocence is the golden thread of criminal justice then proof beyond a reasonable doubt is the silver and these two threads are forever intertwined in the fabric of criminal law. Jurors must be reminded that the burden of proving beyond a reasonable doubt that the accused committed the crime rests with the prosecution throughout the trial and never shifts to the accused.

[10] In R. v. W.(D.), [1991] 1 S.C.R. 742, at paragraphs 27 and 28, the Court noted that:

[27] In a case where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue. The trial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses. Specifically, the trial judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused. Second, if they do not believe the accused's evidence but still have a reasonable doubt as to his guilt after considering the accused's evidence in the context of the evidence as a whole. See R. v. Challice (1979), 45 C.C.C. (2d) 546 (Ont. C.A.), approved in R. v. Morin, [1988] 2 S.C.R. 345 at p. 357.

[28] Ideally, the appropriate instructions on the issue of credibility should be given, not only during the main charge, but on the recharge. A trial judge might well instruct the jury on the question of credibility along these lines:

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[11] Justice Iacobucci, writing for the majority, in R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144 noted at para. 242 that:

In my view, an effective way to define the reasonable doubt standard for a jury is to explain that it falls much closer to absolute certainty than to proof on a balance of probabilities. As stated in Lifchus, a trial judge is required to explain that something more than probable guilt is required, in order for the jury to convict. Both of these alternative standards are fairly and easily comprehensible. It will be of great assistance for a jury if the trial judge situates the reasonable doubt standard approximately between these two standards.

Issues

[91] The evidence raises the following issues in this trial:

a. If I believe Ramsay's evidence that he did not open Ms. Berndt's jewelry cabinet, and take her ring, I must acquit him.

b. If Mr. Ramsay's evidence raises a reasonable doubt that he did not open the cabinet and take the ring, I must acquit him.

c. If I do not believe Ramsay's evidence that he did not open the cabinet and take the ring, nor does his evidence in this regard raise a reasonable doubt, am I satisfied on the basis of the evidence I do accept that the Crown has proven Ramsay's guilt for having stolen the ring, or possessed it knowing it was stolen, beyond a reasonable doubt?

Do I Believe Ramsay's Evidence?

[92] I must, of course, assess Ramsay's evidence not in isolation, but against the backdrop of all of the admissible evidence heard at his trial. When I do so, I must reject it for the following reasons.

[93] Firstly, the timing of the calls made by Ramsay to various pawnbrokers is telling. Within one hour of leaving the Berndt residence, he is calling the type of businesses that offer cash for jewelry. I find it is wholly incredible that these calls were made by Ramsay out of pure happenstance. The timing of the calls was calculated. Ramsay was more than likely looking for a way to unload a 'hot' ring.

[94] Secondly, I find Stewart was for the most part an honest witness. She was sure in her recollection of certain details, and less so about others. She was confident the ring shown to her by Ramsay had diamonds and emeralds. Although not a gemologist, she could tell the difference between a ring with diamonds and emeralds, and a ring with a sapphire. She was certain that the ring shown to her initially on May 8, 2017 was not the one given to Ramsay by his father.

[95] Thirdly, I categorically reject that Ramsay was without the means to open a jewelry cabinet. He had a tool bag equipped to perform maintenance on gas appliances. He had a multi-head screwdriver. It is inconceivable that Cst. Dikih could open Ms. Berndt's jewelry cabinet with Mr. Berndt's Swiss army knife, but Ramsay could not have with his array of tools.

[96] Fourthly, Ramsay had a clear motive to take an item of value from the Berndts to help pay the cost of an impending marriage. The temptation was likely too great. Availing oneself of a piece of jewelry from Ms. Berndt, who had an ample store of it, might well go unnoticed for a considerable time.

[97] For these reasons, I must reject Ramsay's evidence.

Does Ramsay's Evidence Raise a Reasonable Doubt?

[98] On the basis for which I have rejected Ramsay's evidence, I must also find it does not raise a reasonable doubt. The timing of Ramsay's calls to pawnbrokers speaks volumes about his intentions. Those calls were not made prior to May 8, 2017. They occur in quick succession almost immediately upon his departure from the Berndt residence. They were most likely part of a calculated design on Ramsay's part as opposed to a pure coincidence.

On the Basis of the Evidence Accepted by Me as Trier of Fact, Am I Convinced Beyond a Reasonable Doubt That Ramsay Is Guilty?

[99] I am not.

[100] Ramsay is probably guilty. However, I cannot but be troubled gravely by the failure on the part of Stewart to notice her husband's logo on the ring shown to her by Ramsay. She donned a jeweler's eyepiece to inspect the ring. She could see that the band was 18 carat gold. It is unfathomable that she could have missed the insignia left by Efthymiou to identify his handiwork.

[101] This was a ring which caught Ms. Stewart's attention. She knew, even with the naked eye, that this object was perhaps quite valuable. She wanted to examine it more closely. Yet she missed a feature of the ring which ought to have been as predominant as the 18 carat stamp.

[102] That the ring was "beat up" is not an adequate explanation for Stewart's failure to see her husband's trademark signature. Nor does the fact that the bands of the ring in question were fused provide any basis for her inability to recognize her husband's handiwork. It is unsettling for me, to say the least, that she did not notice the logo. I cannot be sure of Ramsay's guilt as a result.

[103] Further, Mr. Berndt allowed for the possibility that his wife's ring could simply have been misplaced. This concession out of the mouth of a man who wanted to assist his wife find the ring, and who wanted to make suggestions on how it could be found (i.e. by calling Omega) leaves me lacking in the confidence necessary to convict a man of a crime.

[104] Although I found Stewart to be an honest, forthright witness, and although her evidence is credible, I am not convinced it is reliable. Subconsciously, she and her partner, Efthymiou, may have wished to help their friends, the Berndts, but that is not to say there was collusion between them. To wish to assist friends in locating a missing ring is nothing more than common human decency. I offer these observations not as a criticism to Stewart, but rather to note the reality of how her evidence may have been affected by the closeness of the relationship between the two married couples. Indeed, Stewart seemed only as an afterthought to remember Ramsay gave her two rings to appraise for him. What is most troubling for me though remains her failure to detect the logo embossed on the ring in question by her partner, Efthymiou. It defies logic that she would have missed it.

Conclusion

[105] Upon a considered assessment of the totality of the evidence adduced at Ramsay's trial, which I do accept, I am not persuaded he is guilty on either count with which he was charged. Accordingly, I must acquit him.

Dated: April 17, 2019

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March, M.G., J.