ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-40000605-11
DATE: 20120523

BETWEEN:
HER MAJESTY THE QUEEN – and – MICHAEL WALKER

B. Cohen, for the Crown
E. Schofield, for Mr. Walker

HEARD: May 6 and 7, 2012

Thorburn J.

REASONS FOR JUDGMENT

I. The Charge

[ 1 ] Michael Walker is charged with theft of a motor vehicle worth over $5000.00 contrary to section 334 (a) of the Criminal Code .

II. The Facts

The Rental Agreement

[ 2 ] On September 2, 2010 Walker attended Discount Car and Truck Rental in Toronto. He rented a 2009 BMW IS until September 17, 2010.

[ 3 ] Walker rented a vehicle because his own vehicle had been stolen. His insurance company agreed to pay up to $1,500.00 towards the rental of a vehicle. At the rate of $79.99 per day plus taxes, the insurance money paid for rental of the vehicle up to and including September 17, 2010.

[ 4 ] Some time before September 17, 2010 Walker asked a Discount employee to exchange his luxury rental to a less expensive vehicle. No smaller vehicle was available.

Failure to Return the Rental Vehicle

[ 5 ] On September 17 and 20, 2010 attempts were made to contact Walker to ask him to return the vehicle he had rented. No one was able to reach him by telephone. On September 21, Walker told a Discount employee he would pay cash to rent the vehicle until September 24 th . The vehicle was not returned on September 24 th .

[ 6 ] On September 27, Discount left a letter at Walker’s home advising that he should return the vehicle forthwith and that if he did not, Discount would report the vehicle stolen.

[ 7 ] Walker called Discount on September 28 and advised that he was in Montreal due to a family emergency. Discount’s Branch Manager, Jesse Carter, advised Walker that he was to return the vehicle to Discount that day and there was an outstanding balance to be paid in the amount of $522.00. Walker agreed to contact Discount at 14:00 hours.

[ 8 ] Walker called Discount at 15:00 hours. He advised that he was leaving Montreal and would return the vehicle after business hours, put the money owed in the glove compartment and put the keys in the drop box.

Walker’s Evidence Regarding the Return of the Vehicle

[ 9 ] Walker says he arrived home from Montreal after 22:00 hours on September 28. His young daughters, then aged 7 and 3 were sleeping and he felt he could not leave them alone. He therefore asked his friend Steve Valentine to return the vehicle.

[ 10 ] Although Walker says he had known Valentine years ago, he had not seen him for many years. Two weeks before asking him to return the rental vehicle he happened to see him in a shopping mall with two women. Valentine told him he was living in the area because his girlfriend lived there. Walker says there was no one else he could turn to who lived close by who could return the vehicle for him.

[ 11 ] Walker says Valentine came to the door after 22:00 hours and he gave him the keys and asked him to return the vehicle to the Discount lot.

Cellphone Calls Made on September 28

[ 12 ] Walker said he was carrying two cell phones that evening in case one died en route. Many calls were made on Walker’s cell phone between 20:09 and 23:10 on September 28. Walker says he made a call to Valentine from a second cellular telephone he had that evening. He says that cell phone died immediately after he called Valentine.

[ 13 ] On the morning of September 29, Walker said he took his daughters to daycare as they were on school holiday. On September 29 at approximately 11:30 Walker called the Discount outlet and told them he had given the rental vehicle to his friend and placed the $522.00 owing on the rental agreement in the glove compartment of the vehicle.

[ 14 ] When he was told that the vehicle had not been returned, Walker said he told them they should be contacting police. He was advised that Discount had already reported the vehicle stolen. (Officer Norski said the vehicle was only reported stolen at 13:46 that day.)

Police Interviews

[ 15 ] Walker said he wanted to be present when the police prepared their report. Discount staff brought Walker to the Discount location and Walker spoke to the officer present.

[ 16 ] By the time Walker met with police, Jesse Carter, the branch manager for Discount, had already spoken to police. He did not tell police he had already obtained Valentine’s telephone number from Walker and called the number. A male answered the telephone, identified himself as Steve and said he had taken a vehicle from Walker a long time ago but had given it back to Walker. He then hung up the telephone.

[ 17 ] During the interview with police at the scene and later at the police station, Walker advised that he and Valentine had lived in the same building in the past. He told police and the Discount representative that Valentine’s telephone number was 416 333 8826. Police called the number and received a generic voicemail message but were unable to leave a message as the message box was full.

[ 18 ] Walker said he called this number from his second cell phone and agreed to bring it in to the station. He said he never brought it to the station as when he went home, his children were playing with the phone and deleted all of the call data.

[ 19 ] Walker said he did not know where Valentine was living at the moment and that he moved around a lot. He said Valentine had lived at 2940 Jane Street apartment 1406 five or six years before. When police checked their records, they found that Walker himself lived there.

[ 20 ] The Crown introduced MTO records to determine where Walker lived. This information was inconsistent with Walker’s earlier testimony as to where he resided. Walker testified that the MTO records were wrong but could offer no explanation as to why.

[ 21 ] The vehicle has not been recovered.

III. The Crown Position

[ 22 ] The Crown theory is that Walker’s story is unbelievable and incredible such that it establishes Walker’s guilt beyond a reasonable doubt.

[ 23 ] The Crown suggests that Walker’s assertion that he gave his vehicle with over $500.00 in the glove compartment to someone he barely knew is unbelievable.

[ 24 ] Moreover, there are a number of inconsistencies that render Walker’s testimony unreliable including the following:

(a) he first told police his friend’s name was Steve Valentine. He then corrected this and said his name was Steve Valley Time and wrote out the words “Valley Time”. The Crown suggests this is part of Walker’s alibi as he had to have someone else who took the vehicle who could be found responsible for the theft;

(b) Walker said he had two cellphones on his person late on September 28 th . At the beginning of his interview with police, Walker said his call to Valentine would be recorded in his cellphone. A few minutes later he changed his statement to say that the call had been made from a different phone although he made calls from the first cellphone both before and after he alleges he called Valentine from the second phone;

(c) Walker told Officer Norski that the September 28 call would be recorded on the second phone and that the number had not been deleted. He says however that after he left the police station and returned home, his two young daughters were playing with his phone and deleted all the numbers. He was therefore unable to establish that he had called Valentine from the second cellphone; and

(d) Walker said that although his children were at public school, they were on vacation on September 28 and 29, 2010. Walker could not remember the name of his children’s school.

[ 25 ] The Crown suggests that taken together, Walker’s behaviour suggests a pattern of avoidance. The Crown suggests that if Walker did not steal the vehicle himself, he was nonetheless party to the theft.

IV. The Defence Position

[ 26 ] Defence counsel submits that the case against Walker does not rise above suspicion.

[ 27 ] There are a number of facts that point against his theft of the luxury vehicle:

(a) Walker tried to rent a smaller less expensive vehicle;

(b) Walker called from Montreal to confirm he was returning to Toronto on September 28;

(c) Walker called Discount on September 29 to confirm that the vehicle had been returned; and

(d) the Branch Manager of Discount called the telephone number Walker told him was Valentine’s. When the manager dialed the number a male answered the telephone and confirmed that he was Steve Valentine, that Walker had lent him a vehicle in the past but that he had returned it long ago.

[ 28 ] Finally, Defence counsel suggests some of the confusion regarding statements made by Walker are attributable to Walker’s severe stutter.

V. The Law

[ 29 ] An accused person is presumed innocent and the burden is on the Crown to prove each of the essential elements of each offence beyond a reasonable doubt. [1] Something less than absolute certainty is required, and something more than probable guilt is required in order to convict. [2]

[ 30 ] There must be a careful assessment of the evidence before determining whether guilt has been established. [3] Parts of a witness’ evidence may be accepted and others rejected and different weight may be accorded to different parts of the evidence. [4]

[ 31 ] Where the accused chooses to testify, he must be acquitted if his evidence is believed. If the court is left in reasonable doubt as to his guilt he must be acquitted. It is not necessary to believe the Defence evidence to find reasonable doubt as to the accused’s guilt.

[ 32 ] In order to decide whether to accept the accused’s version of events or whether it leaves the court with a reasonable doubt, the accused’s evidence must be assessed in the context of the evidence as a whole. [5] The evidence of any witness, including an accused, may be believable standing on its own, but when other evidence is presented that contradicts the accused’s evidence, that evidence may no longer be believable, or may no longer raise a reasonable doubt. [6] B oth credibility and reliability of the witnesses must be assessed.

[ 33 ] Where there are differing accounts of an incident, a trier of fact must pay particular attention to serious inconsistencies in the account, as well as to significant inconsistencies between present testimony and prior accounts. Material inconsistencies may signify unreliability. [7] There must also be a rigorous analysis of whatever independent, extrinsic evidence exists.

[ 34 ] A credibility assessment of the Complainant’s evidence need not confirm the Complainant's evidence in every respect but should be capable of maintaining the trier's faith in the Complainant's account. [8]

[ 35 ] If the Defence evidence is not believed, the evidence as a whole that is accepted must establish that there is no reason to doubt the accused’s guilt. [9]

VI. Analysis and Conclusion

[ 36 ] Walker is a person with limited education. Walker left school in grade eleven and worked for Scream Circuit designing computer boards for twenty years before he got severe kidney disease and went on disability. He has not worked since that time.

[ 37 ] Walker suffers from a stutter so severe that all of the Crown witnesses acknowledged they had trouble understanding him. It was evident from his demeanour in court that Walker has difficulty communicating orally. The confusion regarding the name of the person to whom he entrusted the vehicle may be attributable to Walker’s difficulty communicating.

[ 38 ] Moreover, Walker is not a person concerned with detail: he neglected to call Discount until several days after the rental agreement expired on September 17 th , he did call Discount as he left Montreal on September 28 th but did not call until an hour after he had agreed to call, and he did not remember how old his own children were or what schools they attended.

[ 39 ] Walker testified that due to his disability, he socializes very little and does not know many people in the area. He has no family living in the area. His decision to ask a person whom he had known but no longer knew well is consistent with his evidence that he knew very few people in the area and his lack of concern for detail.

[ 40 ] I agree with the Crown that it is strange that Walker chose to make the telephone call to Valentine from a different number than all of the other calls he made that evening and that he has no record of the call. (Walker indicated that the phone died after his call to Valentine and therefore he made no further call from that phone.)

[ 41 ] However, i t is admitted that Jesse Carter, Branch Manager for Discount was given a number for Steve Valentine by Walker, and spoke to a person who identified himself as Steve. This individual said he had taken a vehicle from Walker but had returned it to Walker.

[ 42 ] The phone Walker says he used to call Valentine belonged to someone else and thus the telephone records are not his. I am mindful that the burden is on the Crown to prove Walker’s guilt beyond a reasonable doubt.

[ 43 ] The prosecution did nothing to follow up on this important information: they did not obtain cell phone records for the telephone number given by Walker as belonging to Valentine to determine whether Walker in fact called Valentine on the 28 th , and they did nothing to find out who lived at the address associated with the telephone number given as that of Valentine. This information could have served to confirm that no calls were made from the telephone in question.

[ 44 ] The fact that a Discount representative called the number given by Walker and a person identified himself as Valentine and said he had taken a vehicle from Walker raises a reasonable doubt as to his guilt.

[ 45 ] For these reasons, I find Walker not guilty of theft of a motor vehicle with a value of more than $5000.00.

Thorburn J.

Released: May 23, 2012

COURT FILE NO.: CR-40000605-11
DATE: 20120523

ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN – and – MICHAEL WALKER

REASONS FOR JUDGMENT Thorburn J.

Released: May 23, 2012

[1] R. v. Lifchus , 1997 , [1997] 3 S.C.R. 320

[2] R. v. Starr , 2000 SCC 40 , [2000] 2 S.C.R. 144 at para 242 .

[3] Regina v. S.W. , (1994), 18 O.R. (3d) 509 (C.A.) at 517 (leave to appeal to S.C.C. refused [1994] 2 S.C.R.); Regina v. Oziel , [1997] O.J. No. 1185 (C.A.) at para. 8 , 9; Regina v. Norman , (1993), 87 C.C.C. (3d) 153 (Ont. C.A.) at 172-4 .

[4] Regina v. Howe , [2005] O.J. No. 39 (C.A.) at para. 44 .

[5] R. v. Hull , [2006] O.J. No. 3177 at para. 5 (C.A.) .

[6] R. v. Hoohing , 2007 ONCA 577 , 74 W.C.B. (2d) 676 at para. 15 (Ont. C.A.) ; and R. v. Campbell (2003), 57 W.C.B. (2d) 363 (Ont. C.A.) and R. v. Bouvier [1984] O.J. No 11 (Ont. C.A.) at pages 5 and 11 .

[7] R. v. G.G. (1997), 115 C.C.C. (3d) 1 (Ont. C.A.) and R. v. Sanichar , 2012 ONCA 117 at para. 51 .

[8] Kehler v. The Queen , (2004), 2004 SCC 11 , 181 C.C.C. (3d) 1 (S.C.C.) at 5-6 ; Regina v. Betker , (1997), 115 C.C.C. (3d) 421 (Ont. C.A.) at 429 per Moldaver J.A. (leave to appeal refused [1998] 1 S.C.R. vi); Regina v. Michaud , [1996] 2 S.C.R. 458 at 459 .

[9] R. v. W. (D.), 1991 , [1991] 1 S.C.R. 742 , 63 C.C.C. (3d) 397 at 409 .