Overview
[1] Philip McDonald is charged with theft of a motor vehicle, possession of property obtained by crime, and being masked with the intent to commit an indictable offence. The main issues at this trial are whether the Crown has proved beyond a reasonable doubt that Mr. McDonald was the masked person shown on surveillance video driving a very recently stolen Land Rover in the early morning hours of January 6, 2024 and, if so, whether the Crown has proved that he stole the Land Rover or knew that it was stolen at the time he possessed it. The Crown’s evidence against Mr. McDonald is entirely circumstantial. All of the evidence in this trial was tendered as part of an Agreed Statement of Facts. It is commendable how efficiently counsel dealt with the non-contentious evidence in this matter.
The Evidence
[2] Shortly after 4:00 a.m. on January 6, 2024, a 2022 Land Rover Defender bearing Ontario licence plate CVYA 631 was stolen from a Toronto driveway. At the time of the theft, the vehicle’s gas tank was only 1/8 full; the SUV contained the owner’s registration documents and some of her personal effects.
[3] GPS data from the SUV establishes its location from the time it was stolen to the time it was ultimately recovered by the police later on January 6. Its engine started in the owner’s driveway at approximately 4:11 a.m. The vehicle drove to the northwest part of the city and turned off at 5:04 a.m. By then, it had travelled 30.1 km. It was parked in a lot at 165 La Rose Ave., where it remained until recovered. During the time it was mobile, it stopped in the Pine Point area of the city, where the owner’s belongings were jettisoned, then stopped again at an Esso Gas Station at 2291 Islington Avenue. It is possible but not certain that the vehicle made other very brief stops during its journey.
[4] The Esso gas station was equipped with CCTV cameras. Police obtained footage of the Land Rover’s stop there. The surveillance footage shows:
- the Land Rover pull into pumps at 4:50 a.m., accompanied by a black Acura TLX sedan bearing Ontario marker DBBP 291, which pulled into adjacent pumps;
- the driver of the Land Rover gets out, walks around the vehicle, opens the gas tank and then walks to the entrance of the gas station;
- the driver of the Acura gets out and walks to the entrance of the gas station;
- the two men speak outside the station before entering it and waiting in line next to each other;
- the Land Rover’s driver pays for gas with cash and leaves the store;
- he is wearing a black balaclava such that only his eye area is visible. He is a black man, of slim build, wearing black, white, blue and yellow sneakers, a black hooded sweatshirt with the hood over his head, and a dark coat;
- the Land Rover’s driver fills it up with gas;
- the Acura’s driver pays for gas in cash and leaves the store, filling the car up;
- he is wearing a black balaclava but some of his face is visible;
- he is a black man wearing a black and grey Nike hooded sweatshirt and pants, with the hood over his head, black Nike Air Force One sneakers, and a black winter jacket.
[5] On February 21, 2024, six weeks after the theft, Toronto Police officers observed the Acura TLX sedan with the same license marker; it was of interest to them because of the January 6 theft investigation. Two people were in the vehicle. Officers conducted a traffic stop and arrested the occupants. The driver of the Acura was identified as the defendant, Phillip Paul McDonald. The passenger was identified as Mekhi Richardson.
[6] Stills of Mr. McDonald taken from his arresting officer’s body-worn camera (“BWC”) were entered into evidence at this trial, as were SOCO images of his attire that day.
The Parties’ Positions
[7] The Crown relies on the common characteristics of the clothing worn by the man driving the Land Rover in the gas station and Mr. McDonald’s clothing upon arrest, in addition to the presence of the same Acura sedan at both times, as proof that Mr. McDonald was the driver of the stolen SUV. Crown counsel relies on the doctrine of recent possession to support the theory that Mr. McDonald stole the vehicle.
[8] Defence counsel points to the popularity of jackets and sneakers in these styles, the lack of any identifiable facial features on the man in the gas station, and the gap in time between the theft and the defendant’s arrest, as undermining the probative value of evidence relating to the clothing. He further submits that, regardless of identification, the Crown has not proved that the man driving the SUV stole it or knew that it was stolen, given the absence of any of the common indicia of theft such as a damaged window, door, or ignition.
Relevant Legal Principles
[9] Mr. McDonald is presumed innocent of these charges. The Crown must prove his guilt beyond a reasonable doubt, a burden which never shifts. Mr. McDonald can only be found guilty of an offence if, after considering all of the evidence, the Crown has proved each element of each offence beyond a reasonable doubt. If I am not sure, based on all of the evidence, or the lack of evidence, that Mr. McDonald committed an offence, I must find him not guilty of it.
[10] In order to establish Mr. McDonald’s guilt, the Crown must prove beyond a reasonable doubt that he was the driver of the Land Rover captured on the Esso surveillance footage on January 6 and, with respect to the possession of property charge, that he knew that the Land Rover was obtained by crime. With respect to the theft charge, the Crown must prove beyond a reasonable doubt that Mr. McDonald was involved in the theft either as a principal or a party.
[11] Because the case against Mr. McDonald is circumstantial, not only in terms of the identity of the driver but also of the driver’s knowledge that the vehicle was stolen and the driver’s participation in the theft, he may only be found guilty of an offence if his guilt is the only reasonable inference that the evidence permits: R. v. Villaroman, 2016 SCC 33.
Factual Findings with Respect to Identification Evidence
[12] I will begin by analyzing the evidence that is probative of the identity of the Land Rover’s driver because, if the Crown has not proved beyond a reasonable doubt that Mr. McDonald was the driver, he must necessarily be found not guilty of each offence. Close review of the Esso surveillance footage and its stills establish the following specific features of the Land Rover driver’s attire:
- black and white sneakers; with yellow soles and clear air bubbles (or “pockets”) visible on the midsoles; what appear to be black laces; blue and red visible above the heel on the back of the shoe; [1]
- a dark, zippered, hooded winter parka; hip length (i.e. falling below the waist); the zipper extends to the top of the jacket such that if fully zipped it would cover the entirety of the neck area up to and possibly over the chin; a separate layer of fabric running parallel to the zipper on the outside of the jacket has two visible Velcro patches on one side at the top part of the jacket; the jacket has a black/charcoal and grey pattern that looks almost like camouflage; [2]
- there are no identifying features on the balaclava except for the fact that it is black and capable of covering the entire head and face area save for the eyes.
[13] Review of the BWC footage from Mr. McDonald’s arrest establishes that he was wearing:
- black and white sneakers with yellow soles;
- a dark winter parka, with a separate layer of fabric next to the zipper with two visible velcro patches on one side of the top part of the jacket; and
- a black balaclava capable of covering his entire face except the eyes.
[14] Review of the SOCO photos of these items establishes:
- the sneakers are black, white and blue, with yellow soles; red “Nike Air” lettering and logo and blue fabric on the back above the heel; “Air Jordan” logos at the top of the tongues; and visible air bubbles/pockets in the midsoles. These shoes are unlaced, with visible lace eyelets;
- the hooded winter parka bears a North Face logo and has a black or charcoal and grey pattern, almost like a camouflage; and
- the balaclava has a small white Nike swoosh logo on the top above the left side of the forehead.
[15] On my review of the Esso footage, the driver’s shoes appear to have black laces but the laces are not clearly visible. The shoes from Mr. McDonald’s arrest that are documented in SOCO photos clearly have no laces. Curiously, in photo 66 of the BWC camera of Mr. McDonald’s arrest, the right shoe, which is not entirely visible in the image, has something black protruding from the tongue that looks very similar to what appears to me to be the black shoelaces that are visible on the right foot of the driver’s shoe in photo 46 (and other images) from the Esso station. Whether the shoes were laced on January 6 and unlaced on February 21, though, has no bearing on whether they are the same product.
[16] I am satisfied that the shoes and jacket seen on the surveillance footage from the Esso are the same brand and style as those that Mr. McDonald was wearing upon his February 21 arrest. The black balaclava Mr. McDonald was wearing at the time of his arrest appears to be consistent in colour, shape, and size with the balaclava worn by the man in the Esso but, because of the lack of any distinctive features other than the small Nike swoosh visible in the SOCO images (which would not have been visible on the surveillance footage because of the hood worn by man in the Esso station), I cannot conclude that it is the identical product, only that it is entirely consistent with the balaclava worn by the man at the gas station.
[17] Because of the popularity of these brands, and the gap in time between the theft and the day that Mr. McDonald was arrested in this attire, I cannot be satisfied that the man from the Esso is Mr. McDonald simply because they are both wearing the same kind of shoes, jacket, and the same style of balaclava, although the combination of these three items certainly supports that inference.
[18] But that is not the only evidence probative of the issue of identification. The fact the driver of the Land Rover at the Esso was associated with an Acura TLX sedan bearing license plate number DBBP 291, and Mr. McDonald was arrested driving this car 6 weeks later, wearing the same kind of shoes and jacket as worn by the man at the Esso, and what could be the same balaclava, is incredibly probative evidence of the issue of identity. I would not have been satisfied that Mr. McDonald was the driver of the stolen SUV based only on the clothing he was arrested in, or only because he was driving the same Acura that was associated with the theft but the cumulative effect of this evidence leads cogently to the inference that he and the Land Rover’s driver are one and the same. In my view, no other inference is reasonable. I am satisfied that the Crown has proved Mr. McDonald was the driver of the Land Rover beyond a reasonable doubt.
Factual Findings with Respect to the Charges
[19] It is admitted that the Land Rover was stolen. To prove that Mr. McDonald was the thief, the Crown must prove that he took it or that he was a party to its theft. To prove that he was in possession of property obtained by crime, the Crown must prove that Mr. McDonald knew the Land Rover was stolen, a finding which would flow necessarily from the conclusion that he stole the Land Rover.
[20] The doctrine of recent possession explains the inference that is available from someone’s possession of recently stolen goods. In the absence of an explanation as to how the person came to possess those goods, it is possible to infer that the person stole them or had knowledge that the goods were stolen. This inference can be drawn even if there is no other evidence connecting the accused to the theft: R. v. Kowalyk, [1988] 2 S.C.R. 59 at para. 7. The inference is not mandatory or presumptive and does not alter the Crown’s burden of proof. The strength of the available inference is proportionate to the recency of the theft and a consideration of all the other relevant circumstances.
[21] I have concluded that Mr. McDonald was in possession of the Land Rover in the Esso station. His possession of the SUV is unexplained. His possession of it at that time was very proximate to the theft – only 39 minutes had elapsed since the SUV left the owner’s driveway in the Mount Pleasant and Summerhill area of the city at 4:11 a.m. to when it pulled into the Esso Station gas station at Islington and Rexdale at 4:50 a.m. It would have been immediately obvious to whoever stole the Land Rover that it would soon need gas, as it had only 1/8 of a tank at the time it left the owner’s home.
[22] When I consider the fact of Mr. McDonald’s possession of this vehicle, in the immediate aftermath of its theft, in what can only be characterized as the dead of night or the earliest of morning hours, a time when the vast majority of people are asleep or at least inside, in winter, I am sure that the only reasonably available inference in all the circumstances is that Mr. McDonald was involved in the Land Rover’s theft either as a principal or as a party and that he was aware that it was stolen.
[23] This inference is further supported by the fact that the car that Mr. McDonald was driving on February 21 was being driven by another man on January 6 who Mr. McDonald was associating with at the very time he was in unlawful possession of the Land Rover. I say this because, as a matter of logic and common sense, it is reasonable to conclude that another person and vehicle were involved in the Land Rover’s theft. It would not, strictly speaking, be necessary for someone to accompany Mr. McDonald to the place where he stole the Land Rover, or from there to where it was ultimately left, but given the relative distances, the presence of the Acura and the other man whom Mr. McDonald was associating with at the Esso, both of whom were wearing balaclavas, both of whom paid cash for their gas, at that hour of the night, I infer that is how the theft was perpetrated.
[24] I am satisfied that there are no other reasonably available inferences and that the Crown has proved beyond a reasonable doubt that Mr. McDonald was either a principal or a party to the Land Rover’s theft. As a consequence, the Crown has proved that he knowingly possessed property obtained by crime.
[25] There is no evidence as to whether Mr. McDonald’s face was masked during the theft of the Land Rover but it is incontrovertible that his face was masked in the Esso station at the time he possessed the stolen Land Rover. Section 351(d) makes it an offence for a person to have their face masked with the intention of committing an indictable offence. I reject the inference that Mr. McDonald’s face was masked for some innocent reason such as the temperature, given how little of his face was visible in the warmth of the store at the time he waited to pay for gas. I am satisfied, based on all of the evidence, that his intention in wearing a mask at the gas station while in possession of the stolen Land Rover was to disguise himself so as to prevent his identification as the person driving it that night. I find him guilty of each count.
Dated: March 4, 2025
Justice Peter Scrutton
[1] The colours are easier to identify in the video footage than on the stills.
[2] Again, the colours and the pattern are easier to identify in the video footage than on the stills.