COURT FILE NO.: CRIM J(P) 3654/09

DATE: 20130314

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

D. D’Iorio, for the Crown

• and -

CALVIN MORGAN

J. Freeman, for the Defence

HEARD: February 1, 4, 5, 6, 7, 8, 11, 12, 14, 25, 26, 28, March 1, 2013

REASONS FOR JUDGMENT

Skarica J.

INTRODUCTION

[1] This case involves a home occupant’s worst nightmare. After a quiet evening during the Christmas week at their Brampton apartment, Jordan Northcott retired to bed in his room. Nancy Caines went into the washroom to get ready for bed, while her common law husband, Kyle Campbell, relaxed in the living room area.

[2] Kyle heard a knock at the door. When he opened it, a number of armed, masked men pushed their way into the living room. Kyle was immediately attacked and tied up. Nancy came out of the washroom and was confronted by the masked robbers. She was threatened with a knife, and a gun was put to her head. She was tied up as well.

[3] Jordan Northcott was in his bed when he was assaulted by three men. Jordan struggled with the first two men until a knife-wielding third man stabbed him. Jordan finally gave up when a gun was put to his head. Jordan was tied up, despite bleeding significantly from his stab wounds.

[4] The robbers demanded drugs and money. In addition to taking these items, the robbers stole a variety of electronic items, as well as credit cards and identification cards belonging to the victims.

[5] Three days later, a search warrant was executed in the basement bedrooms of Calvin Morgan and Demaine Smith. The police found a variety of items taken during the robbery in their rooms. Further, a gun and a wallet containing a number of the victims’ identification cards was located in a dryer in an adjoining room. A dark coat was seized, which subsequent DNA tests confirmed had Jordan Northcott’s blood on the sleeve.

[6] Both Mr. Morgan and Mr. Smith were charged with robbing and confining the three victims. They were also charged with wearing masks and using an imitation firearm, in addition to wounding Jordan Northcott.

[7] Demaine Smith has recently pled guilty to all of his charges. Mr. Morgan elected to have a trial. A number of issues (outlined below) were raised in his defence.

THE ISSUES

[8] Both the defence and Crown raised several legal and factual issues. The main issues that need to be resolved include:

(1) Reasonable inferences vs. speculation regarding the evidence adduced;

(2) Credibility of the witnesses including the adequacy of the police investigation and the consequences that flow therefrom;

(3) The applicability of W. (D.);

(4) The applicability of the doctrine of recent possession;

(5) The test for circumstantial evidence;

(6) The legal consequences of the accused not testifying in support of his alleged alibi defence; and

(7) The liability of Mr. Morgan as a party to the robbers’ actions.

THE EVIDENCE

(i) Reasonable Inferences vs. Speculation

[9] The Oxford Canadian dictionary defines ‘inference’ as an act of inferring; ‘inferring’ is defined as “deduce or conclude from facts and reasoning”. ‘Speculation’ is defined as “from a theory or conjecture especially without a firm factual basis”.

[10] Black’s Law Dictionary, 9^th^ edition, defines ‘inference’ as “a conclusion reached by considering other facts and deducing a logical consequence from them.” ‘Speculation’ is defined as “the act or practice of theorizing about matters over which there is no certain knowledge.”

[11] In R. v. Munoz (2006), 86 O.R. (3d) 134 (S.C.), Justice Ducharme analyzed the difference between inference and speculation:

B. The drawing of inferences

[23] While the jurisprudence is replete with references to the drawing of "reasonable inferences" there is comparatively little discussion about the process involved in drawing inferences from accepted facts. It must be emphasized that this does not involve deductive reasoning which, assuming the premises are accepted, necessarily results in a valid conclusion. This is because the conclusion is inherent in the relationship between the premises. Rather the process of inference drawing involves inductive reasoning which derives conclusions based on the uniformity of prior human experience. The conclusion is not inherent in the offered evidence, or premises, but flows from an interpretation of that evidence derived from experience. Consequently, an inductive conclusion necessarily lacks the same degree of inescapable validity as a deductive conclusion. Therefore, if the premises, or the primary facts, are accepted, the inductive conclusion follows with some degree of probability, but not of necessity. Also, unlike deductive reasoning, inductive reasoning is ampliative as it gives more information than what was contained in the premises themselves.

[24] A good starting point for any discussion of inference drawing is the definition offered by Justice Watt:

An inference is a deduction of fact which may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the proceedings. It is a conclusion that may, not must be drawn in the circumstances.^8^

Equally important is Justice Watt's admonition that"The boundary which separates permissible inference from impermissible speculation in relation to circumstantial evidence is often a very difficult one to locate."^9^

[25] The process of inference drawing was described by Doherty J.A. in R. v. Morrissey (1995), 97 C.C.C. (3d) 193 (Ont. C.A.) at p. 209 as follows:

A trier of fact may draw factual inferences from the evidence. The inferences must, however, be ones which can be reasonably and logically drawn from a fact or group of facts established by the evidence. An inference which does not flow logically and reasonably from established facts cannot be made and is condemned as conjecture and speculation. As Chipman J.A. put it in R. v. White (1994), 1994 NSCA 77, 89 C.C.C. (3d) 336 at p.351, 28 C.R. (4th) 160, 3 M.V.R. (3d) 283 (N.S.C.A.):

These cases establish that there is a distinction between conjecture and speculation on the one hand and rational conclusions from the whole of the evidence on the other. [Emphasis added]

[12] Both counsel have asked me to make inferences and, at times, submitted that the opposing counsel’s inferences were, in truth, speculation. When separating reasonable inferences from impermissible speculation, I have guided myself by the dictionary definitions of those terms, in addition to the instructive comments of Justices Ducharme, Watt and Doherty, as outlined above.

(ii) Credibility of the Witnesses

[13] Exhibit 31 and Exhibit 92 were filed by the Crown as part of an Agreed Statement of Facts, which saved significant trial time. I accept these facts in their entirety, as they are entirely consistent with the other evidence adduced at trial.

[14] The three victims Nancy Caines, Kyle Campbell and Jordan Northcott had no criminal records. Initially, Nancy Caines was not honest to the police in her statement regarding her small time drug dealing; however, I find that understandable in the circumstances. Ms. Caines ultimately confessed to her drug dealing and admitted to it in court.

[15] With one significant exception (the knife which Ms. Caines was threatened with), the victims’ evidence was confirmed by a variety of independent pieces of evidence, including: (1) the stolen items found in Mr. Morgan and Mr. Smith’s residence; (2) the 911 tape; (3) police observations and findings at the crime scene and the search locations; (4) GPS findings on one of the stolen cell phones; and (5) the DNA evidence on the dark jacket.

[16] With the exception of a few details (especially the knife identification), the bulk of the victims’ testimony was not significantly disturbed in cross-examination, by a superbly prepared and talented defence counsel. I find the victims’ evidence generally credible, except for the portions that I will outline later in these reasons.

[17] The police evidence was also generally credible, as most of it is confirmed by the surrounding circumstances, backed up by photos and independent evidence. The one exception is the evidence of Constable Warren Chase, who was evasive regarding certain testimony, which will again be discussed subsequently. Unfortunately, the police evidence, while generally credible, revealed significant gaps in the investigation. These gaps, while not fatal to the prosecution, have made the determination of some of the facts unnecessarily difficult.

[18] Kimberley Sharpe, Forensic Biologist from the Centre of Forensic Sciences in Toronto, gave expert evidence regarding DNA analysis. Her evidence was not challenged by either counsel, and different parts of her testimony were relied upon by both counsel. Her evidence was not in serious dispute.

[19] The defence called one witness, who attempted to provide alibi evidence for Mr. Morgan. She was cross-examined skilfully by an experienced and capable Crown counsel. For reasons elaborated on below, I do not believe her alibi evidence and find her not to be a credible witness. Further, again for reasons to be elaborated subsequently, I find that her evidence cannot reasonably be true.

(iii) Findings of Fact and Reasonable Inferences

[20] Accordingly, from my review of the oral testimony, exhibits filed and the Agreed Statement of Facts, I am prepared to make the following findings of fact:

Testimony of the Victims

1. Nancy Caines indicated that she went to school with the accused Calvin Morgan. She knew him as Kevin Morgan. In December of 2008, Kevin Morgan had attended her home and had asked to buy a joint. Kevin Morgan had been at her home several times before. Jordan Northcott confirmed that weeks prior to the robbery, he had observed Kevin Morgan at their apartment buying “weed”.

2. On December 30, 2008, at approximately 9.25 p.m., Kyle Campbell was in the living room in the Brampton apartment that he shared with his common law wife, Nancy Caines and their friend, Jordan Northcott. Nancy was in the washroom, and Jordan had gone to bed in his room.

3. Kyle Campbell was in the living room when he heard a knock at the door. When he opened the door, the men at the door pushed their way in. The first man, who had a nylon sponge mask on his face, lined Kyle up against the wall and placed a machete against Kyle’s neck. After the robbers fled and the police were called, the police located a machete, with black tape on the handle, on the couch in the living room.

4. At least two other men also entered the apartment. Kyle Campbell got hit in the face and the back of the head, he thinks, by the man carrying the machete. He believes that a knife or a gun was put to the back of his head but he did not see any other weapons. He indicated that there were at least 3 men; they were masked and their race was black. Kyle estimated their height at 5’10” to 6’ but in cross-examination revised his estimate that they were all tall guys around 6’.

5. Nancy was in the washroom for about a minute when she heard a scuffling noise. When she opened the washroom door, she saw three men in Jordan Northcott’s room. One of the men was black, and the other two were dark in complexion

6. Jordan had a bloody face. She observed a fourth man – a black man with a black jacket – in the hallway.

7. The black man with a dark blue bandana grabbed her and put a knife at her chest. Nancy Caines testified in chief that the knife with a brown wooden handle (Exhibit 5) was the knife that was used against her. This knife was seized from Mr. Morgan’s bedroom three days later during the police search of Morgan’s bedroom. Ms. Caines indicated in cross-examination that the knife used against her was 12 inches in length. Ms. Caines conceded that the knife in Exhibit 5 was much shorter – about the size of a cell phone. The first time that Ms. Caines identified the knife in Exhibit 5 was February 1, 2013, just before her testimony. In light of this cross-examination, I find that the knife, identified in Exhibit 5 as coming from Mr. Morgan’s bedroom, was NOT the knife used by her attacker.

8. Nancy indicated that two of the men had Jamaican accents, and that the men were all around 5’10’’. One had a red bandana, another had a blue bandana, and all were masked.

9. Both Nancy and Kyle were tied up and were told to lie face down on the floor, near a closet next to the bathroom. At one point, she was told to “shut the fuck up”, and she felt something similar to a gun on her face.

10. Nancy was asked where the stuff or stash was. She indicated it was in the freezer. The robbers yelled out, “grab wallets, cell phones, whatever you can; we want to know who we are dealing with.”

11. Ms. Caines was on the floor for about 15 minutes as the robbers were rummaging through the apartment. At one point, they yelled out, “we gotta get out – we’ve been here too long.”

12. Jordan Northcott testified that on Dec. 30, 2008, he was sleeping in his bed when he was awoken by the first black guy in his bedroom wielding a 10 inch knife. This assailant had a big winter jacket and a mask. They wrestled on the bed and Mr. Northcott had his tendon in his right hand cut. The first attacker yelled out “D”, “Z” or “Zeke” as Jordan was holding the knife off with one hand and had the other hand on his jacket.

13. After a second robber attacked Jordan and punched him in the face, there were three people struggling on the bed.

14. A third robber entered the bedroom and stabbed Jordan twice on the right side, hitting Jordan’s ribs and right arm. Surgery was later required to repair his injuries.

15. Jordan gave up fighting when what appeared to be a semi-automatic handgun was put to his head.

16. Jordan’s belt and speaker wires were used to tie him up.

17. Photos from the scene show areas where Jordan bled. Jordan estimated the height of his attackers as 6’2” (first man) and that the second man was smaller and stockier and estimated him to be 5’9” or 6’ feet. Mr. Morgan is approximately 5’9”.

18. The robbers cut the wires to all but one phone and then fled the apartment.

19. The robbers, after ransacking the apartment, fled taking with them numerous items, including three cell phones belonging to the victims, numerous pieces of identification, credit cards, jewellery, money and various pieces of electronic equipment with a total value of $3,000.

20. The evidence from the victims establishes that at least 3 black men forced their way into the victims’ apartment. These men were heavily armed with a machete, knife (or knives) and a handgun. Upon entry, all the victims were set upon immediately and attacked and threatened with at least one or more of these weapons. The robbers were aware of the presence of drugs and were determined to seize them. All the victims were tied up and the entire operation was conducted with military precision with an emphasis on speed and covert conduct designed to conceal the robbers’ identities. The apartment was ransacked (see Exhibit 1 photos) by all the robbers while the victims were tied and helpless and with Jordan Northcott bleeding heavily. It is a reasonable inference that this was a carefully planned operation and that all the conspirators were aware that numerous weapons were available to subdue the occupants of the apartment. The concerted attack on Jordan Northcott by three of the conspirators allows the reasonable inference that each conspirator was expected to assist the others and was expected to use whatever force was necessary to subdue and confine the victims. It is reasonable to conclude that this included the use of the knives and gun as circumstances developed.

The 911 Call

21. At 10.07 p.m. on December 30, 2008, Kyle Campbell phoned 911 and reported that they had been robbed. The men were reported to be in their 20s and to have had knives and guns. They were described as wearing black clothing and black jackets, with masks over their heads. Kyle reported they were all black and had taken the victims’ driver’s licenses and cell phones. Jordan was said to be bleeding profusely. Kyle indicated in the call that his girlfriend had seen four or five of them, but they did not recognize their attackers. The group was tied up for approximately 15 minutes. The 911 call lasted just under 9 minutes and would have ended at about 10:16 p.m.

The Police Response

22. It was snowing heavily at the time. Mr. Morgan’s residence at 76 Abelard (at the corner of Abelard and Pearson) is a 10-minute drive away from the victims’ residence (30 Tullamore, Apt. 211) in normal circumstances.

23. Constable Hawkins testified that he arrived at the victims’ apartment at 10:12 p.m., although he conceded in cross-examination that his cruiser clock could have been off by 5-7 minutes. This was the first of a number of embarrassing concessions of sloppy investigation by the Peel Regional Police Service.

GPS Evidence

24. In contrast to the sloppiness described in paragraph 23 above, Detective Giles acted with great haste to locate the robbers.

25. Upon arriving at 30 Tullamore, Detective Giles learned that Kyle Campbell’s stolen cell phone had GPS capability. The Peel police immediately contacted Bell Mobility. As indicated in Exhibit 31, at approximately 10:33:58 p.m., Bell Mobility located Mr. Campbell’s phone at the corner of Abelard and Pearson, with a margin of error that could place the phone at or near 76 Abelard at the corner of Pearson and Abelard.

26. A second attempt was to locate the phone was made at 10:36:19, and the phone was located at the identical location at Pearson and Abelard, with a margin of error that could, again, place the phone at or near 76 Abelard.

27. Bell Mobility attempted a third trace at 10:40 p.m., but the phone had been turned off.

Footprints - Pearson and Abelard

28. Constable Hawkins testified that he was tasked to go to Pearson and Abelard at 10:28 p.m. However, this is impossible because the first location attempt by Bell Mobility was not made until around 10:34 p.m.

29. Constable Hawkins testified that he arrived at Pearson and Abelard, nine minutes later arriving at 10.37 p.m. Given the “institutional” time errors inherent in the Peel police cruisers of the conceded 5-7 minutes, I find that Constable Hawkins arrived at Pearson and Abelard between 10:42 – 10.44 p.m.

30. Constable Hawkins observed a fresh track of three sets of footprints that either went to or from the corner of Abelard and Pearson from Dafoe Avenue. The track was lost at the sidewalk of Pearson and Abelard. There was significant snowfall at the time that could cover footprints within minutes.

Flight of Robbers

31. When considering the totality of this evidence, a reasonable inference can be made that the robbers fled the victims’ apartment shortly after 10 p.m. and had ample time to make the 10-minute drive to the corner of Pearson and Abelard.

32. Given the absence of any significant movement of Kyle Campbell’s stolen phone between the first and second location attempts, I find that by 10:34 p.m. the phone was in the same relative location at the corner of Pearson and Abelard.

33. I find that the police arrived at Pearson and Abelard between 10:42-10:44 p.m., and that they were unable to see any persons outside. However, the police observed three sets of footprints, which must have been recently placed because of the heavy snowfall occurring. Constable Chase, for example, in cross-examination, agreed that footprints would be obliterated by the heavy snowfall within 5-10 minutes.

34. The robbers could no longer be seen outside and were, therefore, in an indoor location at the corner of Pearson and Abelard. I find further that the robbers turned Kyle Campbell’s phone off at 10.40 p.m. in order to prevent traces of their location.

35. As will be discussed in greater detail later, Nancy Caine’s blue Samsung flip cell phone was returned to her a few months after the robbery by the police - it was seized from Mr. Morgan’s dresser in his bedroom at 76 Abelard on January 2, 2009, three days after the robbery.

36. Upon return of Ms. Caine’s blue Samsung flip cell phone, she discovered three phone calls made on the phone after the theft of it. The first phone call was made to a Jamaica number at 10:52 p.m. on December 30 – the night of the robbery. Accordingly, putting it all together, it can be inferred that the robbers arrived at the corner of Pearson and Abelard at around 10.30 p.m. and entered an indoor location there.

37. The three recent sets of footprints match the minimal number of robbers fleeing from the victims’ residence. 76 Abelard is right at the intersection of Pearson and Abelard, and it qualifies as one of the few residences that could be situated at the location described by Bell Mobility. The robbers, upon arriving at their indoor location, immediately started to examine the spoils of their crime. They discovered that one of the cell phones had GPS capability and turned it off. This would prompt the robbers to examine the other two phones and one of them made a call to Jamaica. Months later, after having her Samsung flip phone returned, Nancy Caines phoned this Jamaica number and a lady with a strong Jamaican accent answered. The Peel police, prior to trial, made no attempt to identify the registration in Jamaica of this number and efforts made during the trial proved to be fruitless.

38. It should be noted that on January 2, 2009, both Mr. Morgan and Mr. Demaine Smith were in possession of Jamaican passports. Both are black and appear to be in their 20s.

Further phone calls

39. On December 31, a phone call was made from Ms. Caine’s blue Samsung flip phone (see further details at paragraph 27 above) to 416-249-2538 at 8.25 a.m., presumably from one of the robbers.

40. On Dec. 31, 2008, a phone call was made to the victims’ residence. The call display indicated that it was made at 8.27 a.m. and was from R.W. Morgan #905-453-5063. Nancy Caines testified that she assumed the call was from Kevin Morgan as she recognized the number as a number that Kevin Morgan had called from before. Ms. Caines phoned Constable Chase and provided him with the number. On January 1, 2009 she showed the call display to Detective Rice. The police eventually traced that number to Ruby Morgan’s residence at 76 Abelard, Brampton which was the home that Calvin Morgan and Demaine Smith were residing at.

41. Nancy Caines testified that she thought that it was her old high school acquaintance, Kevin Morgan (the accused) at the robbery after she received this call. There was no evidence of any photo lineups ever being shown to Ms. Caines and I find that this evidence of the “identification” of Mr. Morgan to be totally untrustworthy and I place no reliance on it.

42. On December 31, 2008 at 1.07 p.m. Calvin Morgan received a ticket for being in a car not wearing a seat belt. According to the agreed statement of facts in Ex. 92, the driver of the car was Calvin Morgan’s girlfriend, Natalie Watson and another person occupied the rear seat. Slide 21 of Exhibit #83 is a photo of the ticket which reveals that Mr. Morgan’s date of birth to be May 6, 1984. This would make Mr. Morgan 24 years old on the date of the offence.

43. On December 31, 2008, at 5:15 p.m., a phone call was made from Nancy Caine’s blue Samsung flip phone (see further details at paragraphs 35 - 37 above) to 416-625-3573. This is the phone number of Natalie Watson, who was at that time the girlfriend of Calvin Morgan.

44. Ms. Watson testified that she has never received any phone calls from Demaine Smith. Given the fact that this phone was found in Mr. Morgan’s possession two days later, I find that it is a reasonable inference that Mr. Morgan made this phone call, and that he was in possession of the phone 20 hours after the robbery.

Discovery of the imitation firearm and victims’ identification

45. On January 2, 2009, the police executed a search warrant for the 76 Abelard address. The Agreed Statement of Facts indicates that the home is owned by Ruby Morgan, Calvin Morgan’s aunt. The only two residents in the home in December 2008 and January 2009 were Demaine Smith and Calvin Morgan, who lived in adjoining bedrooms in the basement of the home.

46. Detective Rice testified that the police arrived at approximately 5:13 p.m. on January 2, 2009. Six officers were involved in the search. Detective Rice testified that at 5:13 p.m., he called the number registered to R.W. Morgan, 905-453-5063. Detective Rice testified that Mr. Morgan answered and was told to open the door within 30 seconds or the door would be forced. Mr. Morgan indicated he would be right there. At 5:14:30 a second call was made and Mr. Morgan was told to open the door. Mr. Morgan disconnected. The door was then forced and Mr. Morgan was seen at the top of the stairs leading to the basement and was arrested. There were no other occupants in the house when Mr. Morgan was arrested. According to Det. Chase, from the arrival of the police at 5.13 p.m. to the arrest of Mr. Morgan at 5:17 p.m., 3-4 minutes were consumed. According to Detective Chase, one of those minutes was used to park vehicles and organize the search. Given this evidence, I find that Mr. Morgan had approximately two minutes to be alone in the house after the police informed him of their arrival.

47. These details are important because the defence contends that the accused used these two minutes to dress himself; whereas, the Crown argues that Mr. Morgan used this time to collect important incriminating evidence (the gun and victims’ identification) and place them in the dryer in the basement.

48. Constable McFadden testified that, during the search, he located an imitation handgun and a wallet containing driver’s licenses and health cards in the name of Nancy Caines and Jordan Northcott wrapped together in laundry found inside the dryer.

49. Detective Rice couldn’t remember what Mr. Morgan was wearing. Defence counsel submitted that Constable Chase first raised the issue about what Mr. Morgan was wearing upon his arrest at trial and never mentioned ever putting clothes on Mr. Morgan in earlier voir dires. Constable Chase admitted, in cross-examination, there is no reference in his notes regarding what the accused was wearing upon his arrest. Further, in earlier testimony at voir dires, when being questioned by the Crown about the accused’s arrest, no mention was ever made by Constable Chase regarding the accused’s clothing or lack thereof. Constable Chase admitted that the first time, that he ever mentioned to anybody (including the Crown and other police officers) that Mr. Morgan was not fully dressed and that someone had to bring the accused some clothes, was when Constable Chase testified at trial.

50. I pause to comment that this issue would never have arisen if the police had a video of the search or, alternatively, had taken photos prior to the searches being conducted. Unfortunately, no video was ever taken. Detective Rice testified that he forgot his camera and had to return to the station to get it. By the time he returned to 76 Abelard, the search was well advanced, and numerous stolen items had been recovered from the bedrooms and basement area of the home. Many days of trial were used trying to determine exactly what was taken from where. All of this could have been avoided if a video had been taken and/or if photos had been taken of relevant items before they were seized.

51. Given the conflicting police evidence and the gaps in the police investigation, I am not prepared to infer that Mr. Morgan used the two minutes he had alone in the house to secrete evidence in the dryer. However, I find that it is reasonable to infer that the one or more of the robbers, at some point, hid the gun together with the identification in the dryer.

52. Further, given that the wallet containing the victims’ driver’s licences, health cards, and Ms. Caine’s social insurance card, and the handgun were wrapped together, I find that it is reasonable to infer that the seized imitation handgun was the gun used in the robbery. Further, the butt of the handgun is wrapped in black tape similar to the black tape that was found on the handle of the machete found by the police in the victims’ apartment after the robbery.

53. Mr. Northcott indicated the handgun had a white stripe, which does not appear on the seized gun. I note that one of the seized black jackets appears, in one of the police photos, to have a grey streak when the actual coat had in fact no such streak. Obviously, the “grey” streak is a result of the lighting when the photo was taken. I find that Mr. Northcott’s reference to a ”white stripe” appears to be an innocent error, which is understandable given the stress of the situation that he found himself to be in.

Discovery of black jacket containing Jordan Northcott’s blood

54. The black jacket, referred to in subparagraph 53 above, was sent to the Centre of Forensic Sciences in Toronto for analysis. The black jacket was entered into the trial as Exhibit 67.

55. Kimberley Sharpe, forensic biologist, testified she examined the coat. She found blood on the left sleeve and cut it out and tested it for DNA. She compared the DNA profile to Mr. Northcott’s DNA profile and could not exclude his profile from the profile obtained from the jacket. Ms. Sharpe testified that the probability of a randomly selected individual unrelated to Jordan Northcott coincidentally sharing the observed DNA profile from the jacket is estimated to be one in two trillion.

56. Therefore, it is clear that Mr. Northcott’s blood is on the sleeve of the seized black jacket. Obviously, the location of the jacket when it was seized is of fundamental importance.

57. Constable Steele searched Demaine Smith’s room. Constable Steele was searching for stolen items and clothes that may have been worn by the robbers.

58. He located a number of items stolen from the robbery but did not seize any black jackets and didn’t bring up any clothes after his search of Mr. Smith’s room. Everything Constable Steele seized was turned over to Detective Rice. Exhibit 86 depicts the location of Detective Steele’s search and some seized items. There is a black item draped over a chair in slides 9, 13, 14 of Exhibit 86. However, neither counsel asked him any questions regarding it.

59. Constable McFadden searched Calvin Morgan’s room and later discovered the gun and wallet containing the victims’ identification in the dryer in an adjoining room. Constable McFadden testified that he wasn’t told anything about clothing and concentrated his search elsewhere. Detective Gordon also searched Calvin Morgan’s room. Detective Gordon took clothes from the closet and tossed them onto the bed. He seized 3 jackets from the closet that were thought to be relevant to another investigation. He tossed a black jacket – Exhibit 67 – (photo of jacket was entered as Exhibit 88) onto the bed. After Detective Gordon finished his search, he saw Detective Rice search the room again and he felt annoyed by Detective Rice’s checking on his work. Detective Gordon testified that the Exhibit 67 jacket is one of the clothing articles that Detective Rice came out with although Detective Gordon couldn’t remember any other items. Exhibit 67 was not bagged at the scene and was in Detective Rice’s arms possibly with other items. Detective Gordon made no notes of Detective Rice taking out the jacket and indicated there was nothing distinctive about the black jacket. Detective Gordon looked at slide 9 of Exhibit 86 and indicated that the jacket there looks like Exhibit 67. Detective Gordon was the last of the searching officers to be called at the trial and this was the first time that any officers were asked about slides in Exhibit 86 possibly containing the Exhibit 67 black jacket.

60. Detective Rice testified that he decided to search Calvin Morgan’s room after it had been searched by Constable McFadden and Detective Gordon. He was looking for dark clothing. He seized a black jacket with a hood at about 7.05 p.m. – 7.08 p.m. from the bed or floor around the bed. The jacket was entered into evidence as Exhibit 67. Detective Rice says he seized 19 items of clothing from the two bedrooms and the landing area. It was not suggested to him that Exhibit 67 could be the black item in slide 9 of Exhibit 86.

61. I have examined slides 9, 13, 14 of Exhibit 86 and have concluded that it is impossible from looking at the photos to determine with any precision what the black item is draped over the chair in Demaine Smith’s room. The photos of Mr. Morgan’s room that appear in Exhibit 83, taken by Detective Rice, depict clothes and items strewn everywhere and it is impossible to determine with precision exactly what items are there. Accordingly, this leaves me with the evidence of two police officers who I find were very candid about what they did or did not do. I find that both Detective Rice and Detective Gordon to be credible witnesses. They both testified that the Exhibit 67 jacket was observed by them in Calvin Morgan’s room and seized from there. Significantly, Constable Steele, who searched Demaine Smith’s room, was not asked about the possibility of Exhibit 67 being in Demaine Smith’s room. Accordingly, I find that the black jacket, with Jordan Northcott’s blood on it, was, at the time of the police search, in the closet in Calvin Morgan’s bedroom and accordingly, in Calvin Morgan’s possession.

62. The forensic expert, Kimberley Sharpe indicated that she could not say when or where the blood on the jacket had been deposited. Defence counsel explored the possibility of the blood on the jacket being transferred from other clothes. Ms. Sharpe indicated that a transfer of blood is possible if the blood is still wet. Ms. Sharpe could not give time frames but, normally, blood dries overnight. Snow falling on clothing could extend the time of drying. There was absolutely no evidence to support a transfer of blood. The jacket was found in the closet three days after the robbery. There was no evidence it or other seized clothing being wet. There was no evidence of blood on any other clothing seized from the residence. There was no evidence of the jacket coming into contact with any other blood stained clothing. The only reasonable inference, on the evidence adduced before me, is that Jordan Northcott’s blood was on the black jacket because the wearer was involved in the aggravated assault and/or robbery of Mr. Northcott.

Search of Demaine Smith’s bedroom

63. Constable Steele searched Demaine Smith’s room and found numerous items stolen from the robbery in Demaine Smith’s room. Stolen items seized from Demaine Smith’s room include a PS3, two small LG speakers, Sony wireless controller, RF modulator 0602, Goodlife gym bag containing cards, receipts, photos and identification belonging to Jordan Northcott and Nancy Caines. In addition, a red bandana and a black mask were seized from the room.

Search of Calvin Morgan’s room

64. Constable McFadden searched Calvin Morgan’s room and found numerous items stolen from the robbery in Calvin Morgan’s room. On the top dresser, the following items were located: PSP with a Darth Vader logo, Blue Samsung flip cell phone along with two other cell phones, a Hudson Bay card in the name of Nancy Caines, TD Canada Trust card, Bell calling card in the name of Kyle Campbell. These items were mixed in with identification belonging to Calvin Morgan. As well, 4 knives were seized. Slide 11 of Exhibit 83 shows a role of black tape which could or could not be similar to the tape found on the handgun and machete. The tape was not seized and accordingly, no comparisons can be made. I make no inferences from the black tape. A blue bandana was seized from the shelf in Morgan’s closet. It is to be noted that stolen items from Nancy Caines’ wallet were found in three locations: for example, HBC card and TD Bank Card on Mr. Morgan’s dresser, family photos and gym pass in the gym bag in Mr. Smith’s room and driver’s license, health card, social insurance number in the dryer, mixed in with the imitation hand gun and Mr. Northoctt’s identification.

Return of Stolen Items

65. Constable Chase testified that on March 24, 2009, the victims Nancy Caines and Kyle Campbell attended the police station. Constable Chase returned some of their property such as electronics, cell phones, including a blue Samsung flip phone, and their identification. Nancy Caines returned later that day to inform Constable Chase that there are numbers on the phone that she does not recognize. She testified that there were 3 numbers including one long distance number that she dialed. Constable Chase initially testified in chief that there were two numbers that he recorded, both being 416 local numbers. One of the numbers belonged to Ms. Natalie Watson. Constable Chase also remembered a long distance number with an area code of 876 which is the area code for Jamaica. However, Constable Chase had no note of it and made no reference to a third number when he testified at the preliminary hearing on September 1, 2009. Constable Chase was only able to retrieve that number when he powered the phone up during the trial. In cross-examination, it was clear that Constable Chase did not follow proper police procedures when keeping the phone after Ms. Caines returned it to him. It was clear from the evidence that Constable Chase basically violated numerous regulations with regard to the recording and storing of the phone in the police property logs. Constable Chase could not indicate exactly when he returned the item to the property room. He could not account for a call on the phone dated April 1. Further, Constable Chase reluctantly admitted he had read Ms. Caines preliminary transcript but was very evasive in making any admissions in that regard. His evidence with reference to the reading of Ms. Caines transcripts was not credible. I find that Constable Chase received the phone back from Ms. Caines later on the day he gave it to her and then simply forgot about it and then could not remember what exactly he did with it. This may be why he wanted to read Ms. Caines’ evidence. In any event, I find that regardless of the continuity problems, I accept Ms. Caines’ evidence that there were three numbers on the phone when she received it from the police a few months after the robbery. The most important number is Ms. Watson’s number and there is no doubt that Ms. Watson was called by the police in 2009 on the same number as appears on the Samsung phone.

The guilty plea of Demaine Smith

66. The Agreed Statement of Facts contained in Exhibit 92 indicates, “On January 29^th^, 2013, Demaine Smith pleaded guilty as charged to all 9 counts on the Indictment. During the guilty plea, Mr. Smith admitted to being one of the intruders at 30 Tullamore apartment 211, on December 30, 2008.”

The Alibi Evidence

67. Mr. Morgan raised the defence of alibi. He did not testify himself. The defence called one witness in support of the alibi – Ms. Natalie Watson, a former girlfriend of Mr. Morgan who was pregnant with Mr. Morgan’s child at the time of the robbery.

68. Natalie Watson testified that she was a personal support worker and had no criminal record. She testified that on the morning of Tuesday, December 30, she was with Mr. Morgan at 76 Abelard as she had stayed the night in his bedroom apartment. She was off work that day. Mr. Demaine Smith was there as well in the adjoining bedroom. She was four months pregnant at the time and was very nauseous and sick and spent most of the afternoon in bed. Calvin and her watched a movie in his bedroom on TV at 6 p.m. and the movie lasted an hour and a half. At 7.30 p.m., Calvin went upstairs to wash the dishes at 7.30 p.m. and afterward, Calvin Morgan laid down with her at 8 p.m. Calvin Morgan then got up and went over to Demaine Smith’s room next to their bedroom. Calvin and Demaine had the music going and Calvin stayed there for 15-20 minutes and then came back. At 9.30 p.m., they got ready for bed and went to bed. Between 9.30 p.m. and 10.30 p.m. Calvin Morgan was with her in bed. The next day, Demaine Smith, Calvin Morgan and her went to a clinic as she was not feeling well. Before she left, she cleaned Calvin’s room and there was nothing there that was not there the day before. Calvin Morgan got a ticket for not wearing a seat belt and this ticket appears in slide 21 of Exhibit 83 and shows that Calvin Morgan received the ticket at 1.30 p.m. on December 31, 2008.

69. Ms. Watson was effectively cross-examined by the Crown. She was contradicted on several points. Important examples include:

70. She testified at the trial that in the summer of 2009, she didn’t believe that they were still together. At the preliminary hearing on July 27, 2009, she testified that they were still dating.

71. At trial, Ms. Watson testified that Mr. Smith was present in the house on the night of the robbery. Calvin Morgan went over to his room for 15-20 minutes, and she heard noises in Smith’s room. If Calvin was not with her, he was with Mr. Smith. She honestly believed that Smith was there at the house all night. At the preliminary hearing, she testified that she never heard Smith leave that night and she didn’t notice that Demaine or anyone else wasn’t there. She agreed with the Crown that she would not have thought that it was possible that Smith was involved in the robbery.

72. At trial, Ms. Watson testified that she was ill on the day of the robbery. At the preliminary hearing, Ms. Watson testified that when she was watching TV in the evening, her health was fine and her pregnancy was ok. Ms. Watson was not able to explain why she changed her story other than it is hard to remember all the details.

73. Ms. Watson agreed that she was filling in gaps in her memory and that details have changed in her evidence.

74. At trial, her memory was that they were in bed watching a Van Diesel movie that was on a TV channel. Her statement to the police was that they watched a movie on a DVD.

75. According to Ms. Watson, December 30 was an ordinary evening at home. Demaine Smith was there, Calvin Morgan was there and she was there.

76. At trial, Ms. Watson indicated they went to bed at 9.30 p.m. At the preliminary hearing, she testified that they went to sleep at 11.30 p.m. Ms. Watson reconciled these times by saying that they went to bed at 9.30 and talked and went to sleep at 11.30 p.m.

77. At trial, Ms. Watson was absolutely certain that Mr. Morgan never left the house on the December 30 evening. At the preliminary hearing, she was “pretty sure he didn’t leave the house that night”.

78. Ms. Watson accepts that she was mistaken in her belief that Mr. Smith never left the residence that night.

79. Ms. Watson was 100% sure that there was a TV on Mr. Smith’s dresser in Mr. Morgan’s bedroom. When the police searched and took photos, there was no TV or DVD in the room. Indeed, looking at the photos in Exhibit 83, no TV or DVD appears to be present. Ms. Watson indicated that the TV was where the stereo equipment appears on Slide 11 of Exhibit #83. Defence counsel suggests that the TV may be obscured by the stereo equipment but Ms. Watson, who is more familiar with the room, did not suggest that. Ms. Watson indicated that the TV was the same height and size as the stereo equipment.

80. At trial, Ms. Watson testified that nothing arrived that night and in the morning, she didn’t notice anything that wasn’t there before. At the preliminary hearing, Ms. Watson testified that she wasn’t really looking and couldn’t say one way or the other if there was anything in the room in the morning even though she would be in a position to know.

81. Ms. Watson testified that she used the laundry and it was not usual to have a stolen wallet and an imitation firearm in the dryer and was “really surprised” that they were there.

82. The main problem with Ms. Watson’s evidence is that it does not logically flow with all the other evidence presented in the case. According to her, Mr. Smith and Mr. Morgan are casually listening to music in Mr. Smith’s room for 15-20 minutes sometime after 8 p.m. and thereafter, they spend a quiet and relaxing evening at home. The robbers, including Mr. Smith appeared at 30 Tullamore at approximately 9.30 p.m. and the reality is that Mr. Smith, shortly on or about 8.30 p.m., was getting masked and armed in order to do a home invasion. Ms. Watson never sees or hears Mr. Smith leave and assumes he is in his room. In fact, Mr. Smith leaves to join others to do a home invasion. As indicated in subparagraphs 36 and 37 above, it can be reasonably inferred that three robbers fled to 76 Abelard around 10.30 p.m. and thereafter quickly started to sort through the stolen items. Cell phones were examined and a call was made to Jamaica. Stolen property was divided by the robbers and ended up in reasonably equal proportions in Mr. Smith’s and Mr. Morgan’s rooms. Masks, garments, and weapons would have been hastily hidden away. Three robbers fleeing hurriedly into your home would usually arouse interest in even the most casual and oblivious observer. Ms. Watson somehow missed all of this. According to her, it was just another quiet and relaxing Christmas week night with her boyfriend and his friend. This is not credible evidence given the independent evidence.

83. Accordingly, given the inconsistencies in her testimony and the contradictions presented by numerous pieces of independent evidence, I find that Ms. Watson is not a credible witness and I find that her alibi evidence is not capable of being believed. Further, I find that her alibi evidence cannot reasonably be true.

LAW

APPLICATION OF W.(D.)

[21] The W.(D.) instruction is applicable in cases involving the doctrine of recent possession – see, for example the Albert Court of Appeal judgment in R. v. Hubler, 2013 ABCA 31, [2013] A.J. No. 36 (C.A.).

The oft-quoted judgment of Justice Cory in R. v. W. (D.), [1991] 1 S.C.R. 742, at pp. 757-8, indicates:

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, supra, at p. 357.

28 Ideally, appropriate instructions on the issue of credibility should be given, not only during the main charge, but on any 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 you 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.

If that formula were followed, the oft repeated error which appears in the recharge in this case would be avoided. The requirement that the Crown prove the guilt of the accused beyond a reasonable doubt is fundamental in our system of criminal law. Every effort should be made to avoid mistakes in charging the jury on this basic principle

[22] Justice Webber, in R. v. S.F., 2007 PESCAD 17, 269 Nfld. & P.E.I.R. 7, explains the decision in W. (D.) as follows:

22 However, the reasons of the trial judge show that he made the same error found so often in other decisions (See: R. v. C.J.L., [2004] M.J. No. 410, 2004 MBCA 126 (Man. C.A.); R. v. Y.M., [2004] O.J. No. 2001, 71 O.R. (3d) 388 (Ont. C.A.); R. v. Minuskin, supra); he shifted the burden of proof to the accused, and because the accused didn't satisfy that burden to the satisfaction of the trial judge, the accused was found guilty. This shifting of the burden of proof is an error of law. The accused need not prove anything. The accused may even lie, perhaps in the hope of coming up with a story that sounds better than the truth, and that is irrelevant to the burden on the Crown to prove its case beyond a reasonable doubt.

23 The instructions in W.(D.) are intended to help judges and juries in the determination of proof beyond a reasonable doubt when an accused testifies. The reasoning process set out by W.(D.) is as follows.

24 First, do you, the trier of fact, believe the accused? If you do, and his (or her) evidence establishes a full defence to the charge, you must acquit. Perhaps because of contradictions in his testimony, his demeanor, or the unusual nature of his story, you do not believe the accused.

25 Second, even if you do not believe the accused, could the testimony be true anyway? This requires you to step back a bit and see if the evidence could raise a reasonable doubt in the mind of a reasonable person - e.g. by finding only minor contradictions, noting a consistently repeated story, finding that the facts although unusual, are not impossible, and not putting much weight on demeanor. Then, if the facts as stated by the accused provide a defense to the charge, you must acquit - because if the accused's statement could be true and provide a defence, then this raises a reasonable doubt.

26 Thirdly, if you find you can't acquit even after the second analysis, the focus changes from the accused's evidence to the Crown's evidence. You have concluded his story is not (and could not be) true. So you reject it completely. However, this in fact is irrelevant to the Crown's burden to prove the accused's guilt beyond a reasonable doubt. The accused doesn't have to take the stand and say anything. If he does and makes you think he is a liar, that still doesn't prove that he did what he was charged with. He can lie about everything and still not have done what he is charged with. The accused need not prove or disprove anything. He is innocent until proven guilty.

27 The importance of the third step of W.(D.) is that it is emphasizing the fact that whether or not the Crown has proven its case never involves a comparison of one not-so-great set of evidence (the accused's) with another not-so-great set of evidence (the Crown's), trying to work out which one is more believable. The accused's evidence can be totally valueless and the case still result in an acquittal because the Crown has not proven its case beyond a reasonable doubt.

28 W.(D.) exists to tell judges not to focus so much on the accused and his/her evidence. Once you disbelieve him or her, and don't believe any reasonable person would believe the accused, you must move your sights to the Crown's evidence.

29 Is the Crown testimony coherent? Does it stand up to scrutiny? Is it reliable? Is it credible? It must exist and satisfy these criteria on its own. Some of the defence evidence may be relevant to the inquiry if it provides context or is more consistent on some points than the Crown's evidence. This goes towards the issue of whether or not the Crown has satisfied the burden of bringing evidence that can prove guilt beyond a reasonable doubt.

30 The trier of fact can't at this stage go back and say "Neither of them is very believable but I believe the Crown more". That is the error in reasoning W.(D.) is trying to ensure judges avoid. A decision does not depend upon a comparison of Crown against defence witnesses.

31 A conviction can only come about if the Crown evidence is so reliable, so consistent and so believable that it proves beyond a reasonable doubt the guilt of the accused. There must be no other reasonable conclusion from the evidence. If there is any reasonable doubt remaining after you hear the evidence of the Crown, either because of inconsistencies, unreliability, a lack of credibility, or anything else, you must acquit - no matter what you thought of the accused's evidence.

32 In the instant case, there are numerous contradictions, inconsistencies and generally questionable testimony in the Crown's evidence that were overlooked, misapprehended, or deemed inconsequential by the trial judge. Overall, the strict scrutiny demanded of a judge in these cases appears to have been applied to the accused's evidence but not to the Crown's evidence.

33 Also, while some of the inconsistencies in the complainant's evidence taken individually appear minor, they must be considered as a whole, in the context of all the evidence. This was not done.

Application to Case

[23] The accused did not testify. However, the accused raised the issue of alibi and called Natalie Watson as the sole witness for the defence. For the reasons outlined, in paragraph 20, subparagraphs 69-71, I do not believe Natalie Watson.

[24] Accordingly, the first step of W. (D.) fails and cannot assist the defence. For the same reasons, as outlined in paragraph 20, subparagraphs 69-71, I find that Natalie Watson’s evidence is not reasonable and does not raise a reasonable doubt. Accordingly, consideration of the second step of W. (D). does not raise a reasonable doubt. Accordingly, having rejected the defence evidence, I must now go on to consider the third step of W. (D.):

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.

THE DOCTRINE OF RECENT POSSESSION

[25] The first issue to be determined is: what do you call it? In the leading case of R. v. Kowlyk, [1998] S.C.J. No. 66, McIntyre J., at paragraph 4, indicated that it was difficult to call it a doctrine and also indicated it wasn’t proper to refer to it as a presumption. Kowlyk refers to the case of R. v. Graham, [1974] S.C.R. 206, wherein Laskin J. suggested that “inference” be substituted for “presumption”. McWilliams, in Canadian Criminal Evidence 3^rd^ Edition, April, 2001, indicates at p. 5-11 that “it is said to be inappropriate in addressing a jury to refer to it as the doctrine of recent possession.” However, Fish J. in R. v. Dionne, [2005] S.C.J. No. 27 indicates that the trial judge did not err in relying on the “doctrine of recent possession”.

[26] As recently as three days before this trial started, the Alberta Court of Appeal, in R. v. Hubler, 2013 ABCA 31, [2013] A.J. No. 36 (C.A.), referred to it as the doctrine of recent possession at paragraph 39 and then upholds a passage of the judge’s jury instruction at paragraph 40 where the doctrine is referred to explicitly as “the doctrine of recent possession”.

[27] Shakespeare once said that a rose by any other name smells as sweet. An ancient and common sense proposition of law should work just as well regardless of whatever it is called. In law, as in fashion, what is old can be new again. Both the Supreme Court of Canada and most recently, the Alberta Court of Appeal have returned to calling the old doctrine of recent possession, not surprisingly, the “doctrine of recent possession” and that is how I propose to refer to it.

The Doctrine Defined

[28] The doctrine, in a nutshell, allows the trier of fact, in appropriate circumstances, to draw an inference of guilt of theft or other crimes linked to the theft (possibly all the way up to murder), if it is shown that the accused is in the unexplained recent possession of stolen property. The inference may be made even when there is no other evidence of guilt.

[29] As previously indicated, the leading case is R. v. Kowlyk, [1988] 2 S.C.R. 59, at pp. 74-5, where McIntyre J., for the majority, set out the principle as follows:

12 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.

[30] As McIntyre J. further elaborated in Kowlyk:

1 McINTYRE J.:— I have had the advantage of reading the reasons for judgment prepared in this appeal by my colleague, Justice Wilson. She has set out the facts and the history of these proceedings in the courts of Manitoba and I need not make any detailed reference to those matters. I would observe, however, that implicit in the reasons of the trial judge is a finding of recency of possession which was specifically supported in the Court of Appeal, and the appeal proceeded upon that basis. 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. 86:

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 added]

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 mandatory, inference of guilt of both theft and offences incidental thereto, even in the absence of other evidence of guilt.

5 Four years later, this Court decided the case of R. v. Newton, supra. At issue in that case was whether a jury instruction with respect to the law of recent possession with its allusion to unexplained possession would constitute a comment on the failure of an accused to testify, contrary to s. 4(5) of the Canada Evidence Act, R.S.C. 1970, c. E-10. This contention was rejected and that argument was not advanced in this Court. At pp. 401-2, Dickson J. (as he then was), with whom Laskin C.J. joined, in a judgment concurring in the result, said:

The short question in this appeal is whether the Crown is obliged to adduce evidence of any explanation given by the accused, or absence of explanation, before relying on what has come to be called the "doctrine of recent possession". It has generally been understood that all the Crown need establish in the first instance is that the goods were recently stolen and that they were found in the possession of the accused. Then the jury must be told that they may, not that they must, in the absence of any reasonable explanation, find the accused guilty. In the instant case, the trial judge refused so to instruct the jury being of the view that it was incumbent upon the Crown to adduce evidence as to whether or not the accused had offered any explanation for his possession of the stolen goods. With respect, the judge erred.

There is no duty upon the Crown to lead negative evidence in these circumstances.

Of even greater significance for the case at bar is the judgment of Ritchie J. (Martland and de Grandpré JJ. concurring; Martland, Judson, Spence, Pigeon and Beetz JJ. concurring in a separate judgment). He said that the proper instruction to a jury in recent possession cases is that described by Lord Reading in R. v. Schama and Abramovitch, supra, which, as has been noted, has been approved in many judgments in this Court. He went on to say that evidence of unexplained recent possession, standing alone, raises a prima facie case upon which the trier of fact is entitled to bring in a verdict of guilty, on the facts before him, of breaking, entering and theft. He said, at p. 405:

This statement has come to be referred to by text writers and by many judges as the statement of a "principle" or a "doctrine", but I prefer to think of it in terms of a rule of evidence as to which all judges should charge a jury. The rule has been variously stated in different cases, but in my view the essence of the matter is that in a case such as the present one where it has been established that the accused was in possession of recently stolen goods and where no explanation whatever has been advanced, the jury should be instructed that the evidence of such possession standing alone raises a prima facie case upon which they are entitled to bring in a verdict of guilty. [Emphasis added.]

While in R. v. Newton, supra, the Court was not called upon to decide the issue of whether recent possession by itself, in the absence of other circumstances which would connect an accused to the theft, could justify a finding of guilt, the words of Ritchie J. above would surely decide the present appeal in favour of the Crown. This is particularly true when it is considered that no other case in Canadian or English law suggests that some other evidence must be present to connect an accused to the crime before an inference of guilt becomes permissible. In my view, the authorities deny that any additional evidence, apart from that of unexplained recent possession of stolen goods, is necessary to permit an inference of guilt.

Application of Doctrine Where Weak Identification Evidence

[31] In the present case, the identification evidence is weak. Basically, the robbers are described as black, in their 20s with heights ranging from 5’9” to 6’2”.

[32] The evidence at trial indicated that Mr. Morgan was black, 24 at the time of the offence and approximately 5’9”. Even where identification evidence is weak or non-existent, the doctrine may be invoked.

[33] As Hamilton J.A. indicated in R. v. Gagnon, 2006 MBCA 125, 208 Man R. (2d) 213:

52 One cannot forget that the victim did pick the accused out of the photo pack. In any event, weak identification evidence is no different than any other piece of evidence. It is for the trier of fact, upon consideration of all of the evidence, to decide the proper inference to be drawn. Weak identification evidence, for example, did not stop the British Columbia Court of Appeal from affirming a conviction for robbery in R. v. Li (C.M.) (1993), 36 B.C.A.C. 181, application for leave to appeal to the S.C.C. dismissed [1994] S.C.C.A. No. 209. McEachern C.J.B.C. wrote (at para. 13):

Second, it was argued that the doctrine can only be used to support an inference that goods are stolen, and not in support of a doubtful identification of the accused as a robber or thief. With respect, authority binding on this Court is to the contrary: R. v. Kowlyk ... particularly at p. 108, where McIntyre J., writing for the majority, said:

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.

53 Understandably, of course, when identification evidence is weak, the court may be less apt to infer that the accused was the robber. See for example, R. v. Krishnarasa, [2006] O.J. No. 699 (C.J.) and R. v. Sparvier, [1992] M.J. No. 74 (C.A.).

54 In my view, the identification evidence makes the inference that the accused was the one who stole the ceremonial knife more difficult to draw. However, the unique nature of this item must be considered. In the end, I know of no principle in law that, when considering all the circumstances of a case, weak identification must negate an inference that the accused committed the underlying offence.

55 The judge was entitled to convict the accused on the evidence before him.

Impact of Explanation

[34] The doctrine of recent possession applies where there is the unexplained possession of recently stolen property. The doctrine does not apply where the evidence reveals an explanation that might be reasonably true. The Alberta Court of Appeal very recently elaborated in R. v. Hubler, 2013 ABCA 31, [2013] A.J. No. 36, at para. 39:

The doctrine of recent possession usually arises in cases of theft or break and enter. It provides that unexplained possession of recently stolen goods is evidence that may, depending on all the circumstances of any given case, establish the commission of any offence by which the goods were illegally obtained: R. v. Kowlyk, [1988] 2 SCR 59, 65 CR (3d) 97. In that case, it was held that the doctrine will not apply when an explanation is offered which might reasonably be true, even if the trier of fact is not satisfied of its truth. The doctrine is a permissible inference of fact, for the trier of fact to determine.

[35] In my view, an unreasonable explanation, for the purposes of the doctrine of recent possession, is no explanation at all. It is equivalent to the situation where there is an unexplained possession of recently stolen goods. A good example of how to proceed in the face of an unreasonable explanation is given by Cronk J.A. in R. v. Reid, [2002] O.J. No. 4792 (C.A.), at para. 12:

The appellant was arrested less than two hours after the theft of the music studio. He admits he was in possession of stolen goods at the time of his arrest. He was found holding a bag containing burglary tools. He also had a plastic glove in his possession. The burglary tools discovered in the bag were found by the trial judge to be consistent with marks seen by the owner of the music studio at his premises. Although the appellant offered an explanation for his possession of the stolen goods, that explanation was rejected by the trial judge as being unreasonable. That conclusion was open to the trial judge and was supported by the evidence. Thus, the appellant did not provide an explanation for his possession of the stolen goods which "could reasonably be true". An unreasonable explanation, that is, an explanation which cannot reasonably be true, is no explanation at all for the recent possession of stolen goods. Accordingly, the first principle regarding the doctrine of recent possession of stolen goods established in Kowlyk applies here, namely, that the unexplained recent possession of stolen goods will permit the inference that the possessor stole the goods. The trial judge in this case, correctly in my view, drew such an inference. I would not give effect to this ground of appeal.

[36] The only explanation provided by Mr. Morgan was through his alibi witness, Natalie Watson. As indicated earlier, I found her not to be a credible witness. Her evidence regarding Mr. Morgan’s alibi is also not believable and cannot be reasonably true.

[37] The case law indicates that the cross-examination of Crown witnesses or other evidence introduced by the Crown may yield testimony that provides an explanation or raises a reasonable doubt for the possession of the items: see R. v. Graham, [1974] S.C.R. 206, per Laskin J. at p. 212; R. v. Silliker, [1987] N.B.R (2d) 292 (C.A.), at p. 295.

[38] On the evidence at trial, the alibi evidence of Natalie Watson could not reasonably be true. There was no cross-examination or any Crown evidence that raised any reasonable doubts regarding any explanations for the possession of the stolen goods. Accordingly, I find that the Crown has established beyond any reasonable doubt that Mr. Morgan was in the unexplained possession of stolen goods.

Link to Other Crimes

[39] At paragraphs 40-2 in Hubler, the Alberta Court of Appeal held that in the circumstances of that case, the doctrine of recent possession could not be used as a shortcut to convict the accused of murder. Any finding must give consideration to “the circumstances of the case.”

[40] In R. v. Nickerson (1977), 23 N.S.R. (2d) 104 (C.A.), MacDonald J.A. provides a useful review of the authorities:

9. In Riendeau v. The King (1946), 87 C.C.C. 193 (S.C.C.), the facts were that a branch of the Royal Bank of Canada was broken into one evening and a revolver and pistol stolen. The accused was in the area that evening, whistled down a car that turned out to be operated by a police constable, declined to enter it but instead "proceeded in haste to a blind lane, where he entered the door of a vacant shed". The following day the revolvers were found in the shed. The accused was charged and convicted of breaking and entering and stealing. His conviction was affirmed by the Court of Appeal for Ontario and by the Supreme Court of Canada. Taschereau, J., said (pp. 196-7):

"The disappearance of the two revolvers from the bank's premises; the behaviour of the accused on Pine St.; his unfortunate meeting with the police constable, whose car he did not care to enter for obvious reasons; his seeking refuge in the shed from which he came out without a hat, after having been seen with one while running, and the subsequent discovery of a hat and of the revolvers in this same shed, are to my mind facts from which a recent possession of the revolvers may be properly inferred.

All these circumstances taken as a whole are, I think, consistent with the guilt of the accused and may be properly considered as inconsistent with his innocence. One isolated fact, if taken alone, may not necessarily be of a very probative nature, but all these various circumstances considered together, are to my mind, conducive to the conclusion reached by the trial Judge.

Of course, there is no direct evidence that appellant broke and entered and stole the two revolvers, but if there is evidence of recent possession, which is a highly incriminatory fact, a presumption of robbery and entering then arises which is sufficient to warrant a conviction on the first count: vide R. v. Burdell (1906), 10 Can. C.C. 365, 11 O.L.R. 440; Baker v. The King (1930), 54 Can. C.C. 353, 49 Que. K.B. 193; R. v. McKinnon, [1941] 2 D.L.R. 649, 76 Can. C.C. 101, 56 B.C.R. 186.

In R. v. Watson, [1943] 2 D.L.R. 44 at p. 46, O.W.N. 72, 79 Can C.C. 77 at pp. 78-9, Chief Justice Robertson said, and with this statement I entirely agree: 'Possession of recently stolen goods is often relied upon in support of charges of theft or of receiving stolen goods, and it is well established that in the absence of some explanation by the person accused that may reasonably be true, and that therefore raises a doubt of his guilt, he may be convicted of theft of the goods without further proof. It would seem also to be established by decisions of authority, that similar evidence will be sufficient to support a conviction when the charge is breaking and entering and stealing, or even one of burglary."

10 Reference Re R. v. Coffin, 114 C.C.C. 1, was a reference by the Governor General in Council to the Supreme Court of Canada for advice as to its disposition of a murder conviction. The facts are summarized as follows in the headnote in the C.C.C. report:

"C was charged with and convicted of the murder of one of three hunters all of whom were shot to death in desolate bush country. The evidence implicating C was entirely circumstantial but overwhelming. He was the last person to have seen the victims alive, his story that he had left them in the company of two other hunters being proven false; the shots which killed them were fired from a distinctive and uncommon type of rifle and was the same kind of rifle as one which the accused was known to have had in his possession; he was seen emerging from the bush carrying a rifle although he denied that he had a rifle; the victims' wallets containing American money had been looted and personal possessions taken from them. Immediately on leaving the bush C paid off several debts and embarked on a wild spending spree although previously he was not known to have possessed much, if any, money. He went to Montreal to visit his common law wife, P, and spent American money lavishly from a large quantity which he had on his person. He also had in his possession various other articles which were proved to have belonged to the victims. He gave the police false statements and contradictory explanations when questioned as to his whereabouts at the material times and his subsequent conduct, when he volunteered to help in the search for the victims, was also highly suspicious."

11 Ten points were submitted to the Supreme Court of Canada. The first one was:

"Did the learned trial judge err in respect to the instructions he gave to the jury with reference to the doctrine of recent possession in the following manner:

Should the jury have been permitted to apply the doctrine at all?

(b) Were the jury misdirected with reference to the burden resting on the appellant to explain his possession of items allegedly stolen?"

12 With respect to such point Taschereau, J., said (pp. 13-14 C.C.C.)

"In support of the first ground, counsel for the accused argues that the jury should not have applied the doctrine of recent possession for the purpose of establishing that the accused was the author of the thefts committed, and that the trial Judge gave erroneous instructions concerning the burden which rests on the accused of explaining the possession of stolen objects.

That doctrine and the jurisprudence hold that if a person is in possession of stolen objects shortly after the commission of the crime, such person must explain this possession and that if that person cannot do so in a satisfactory manner, he or she is presumed to have acquired the objects illegally. Moreover, that doctrine and jurisprudence also hold that the possession of effects recently stolen is capable of indicating not only the crime of theft but also a graver crime associated with theft: R. v. Langmead (1864), 9 Cox C.C. 464 at p. 468; Wills on Circumstantial Evidence, 7th ed., pp. 61-2; R. v. Exall (1866), 4 F. & F. 922, 176 E.R. 850.

In the present case I have no doubt that the jury did not accept the explanation given by the accused to the police and that the jury could justly conclude that Coffin was the perpetrator of the theft. In so concluding, the jury could find a motive for the crime of murder, and it was a circumstance with which the jury could legally concern itself. I see nothing in the Judge's charge which would tend to vitiate the trial on this point.

Similarly, I believe that the second ground is not well founded. I am of the opinion that that which the trial Judge is reproached for having omitted, should not have been told to the jury. The fact that Coffin had in his possession objects recently stolen, gave rise not only to a presumption, in the absence of an explanation, that he had stolen those objects, but the jury had the right to conclude that this was a link in a chain of circumstances which indicated that he had committed the murder ..."

13 Mr. Justice Kellock after reviewing the factual situation said at pp. 36-37 of the C.C.C. report:

"As already pointed out, the appellant concedes that there was sufficient evidence of the theft of the various articles but not of any connection between the theft and the killing.

With respect to Coffin's account of his possession of the knife and the binoculars, it is to be kept in mind that he made no attempt to explain to anyone his possession of the other articles. That Coffin would be paid $ 40 for going back to Gaspe, with Lindsay Jr. on June 9th would, taken by itself, seem likely to cause some raising of eyebrows among the jury, but when that story is coupled with the further statement that Coffin had, in addition, been 'given' binoculars of a value of $ 65, a gift which no one but Claar Sr., who was in Pennsylvania could make, and the knife, which was of a special character and which had been a special gift to young Lindsay, the limits of credulity are surely overpassed. It cannot, therefore, be said, in my opinion, that the appellant gave any reasonable explanation of how he came to be in the possession of the things as to which he even attempted to make an explanation: R. v. Curnock (1914), 10 Cr. App. R. 207.

Moreover, if the jury did not believe the story that Coffin had been 'paid' $ 40 by Lindsay Sr., it was established out of his own mouth that he was in possession on June 10th of part, at least, of money belonging to Lindsay Sr.

In my opinion, therefore, there was abundant evidence from which the jury could conclude that the possessor of the money and the other items was the robber and the murderer as well. I think they have done so.

In R. v. Exall (1866), 4 F. & F. 922 at pp. 924-5, 176 E.R. 850, Pollock C.B. said:

'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.

In a note to the above case at p. 851 of vol. 176 of the English Reports, the editor refers to the case of R. v. Muller at p. 612n of the same volume, where the murder in question had occurred in a railway carriage on a Saturday evening and on the following Monday the prisoner was found in possession of the watch of the murdered man which he said he had bought of a pedlar at the London docks, the question arose as to whether, supposing the jury were not satisfied of the accused's guilt upon the evidence apart from the recent possession of the hat and watch, such possession would be sufficient proof of the prisoner's guilt of the murder, and says: "That it would have been sufficient, if no explanation at all had been offered, would be conceded. For the absence of explanation would have amounted to an admission."

14 The foregoing statements in the Coffin reference as to what may be the effect of recent possession of stolen articles, not only in relation to a theft of those articles themselves, but also in relation to the evidence as to the commission of another crime were applied by the Supreme Court of Canada in R. v. Lovis: R. v. Moncini (1974), 2 N.R. 551, 17 C.C.C.(2d) 481, at pp. 487-8. See also R. v. Berriault (1975), 11 N.B.R.(2d) 82; 7 A.P.R. 82.

15 In R. v. Langmead (1864), 169 E.R. 1459, referred to by Mr. Justice Taschereau in Reference Re R. v. Coffin, supra, Blackburn, J., said (p. 1464):

"... When it has been shewn that property has been stolen, and has been found recently after its loss in the possession of the prisoner, he is called upon to account for having it, and, on his failing to do so, the jury may very well infer that his possession was dishonest, and that he was either the thief or the receiver according to the circumstances. If he had been seen near the place where the property was kept before it was stolen, they may fairly suppose that he was the thief. If other circumstances shew that it is more probable that he was not the thief, the presumption would be that he was the receiver ..."

16 Pollock, C.B., said at pp. 1463-4:

"... If no other person is involved in the transaction forming the subject of the inquiry, and the whole of the case against the prisoner is that he was found in the possession of the stolen property, the evidence would, no doubt, point to a case of stealing rather than a case of receiving; but in every case, except, indeed, where the possession is so recent that it is impossible for any one else to have committed the theft, it becomes a mere question for the jury whether the person found in possession of the stolen property stole it himself or received it from some one else. If, as I have said, there is no other evidence, the jury will probably consider with reason that the prisoner stole the property; but, if there is other evidence which is consistent either with his having stolen the property, or with his having received it from some one else, it will be for the jury to say which appears to them to be the more probable solution ..."

17 On the authority of the Langmead case it is in my opinion initially for the jury, or for the trial judge if there is no jury, on an overview of all the circumstances to say whether the presumption arising from the recent possession of stolen goods supports a charge of stealing, robbery, break, enter and theft, etc., or only of possession of stolen goods.

18 The permissible inference of guilty knowledge or, indeed, guilt itself that arises from the recent possession of stolen goods can of course be displaced or rebutted by evidence of innocent possession. If an innocent explanation of possession of recently stolen goods is given by the accused, then the question is not whether such explanation is true but whether, having regard to the circumstances and in light of all the evidence, it might reasonably be true and, therefore, capable of causing or raising a reasonable doubt as to the guilt of the accused. See Ungaro v. The King, [1950] S.C.R. 430; 96 C.C.C. 245, and Richler v. The King, [1939] S.C.R. 101; 72 C.C.C. 399.

19 Even when the presumption that arises from the recent possession of stolen goods can be used the Crown is still left with the ultimate or general burden of proving its case beyond a reasonable doubt. The rule being that a court may not must convict in the absence of any explanation. On the Crown burden aspect I would refer to R. v. Paul (1975), 4 N.R. 435; 33 C.R.N.S. 328 (S.C.C.), where Ritchie, J., who delivered the judgment of the court, said in relation to the facts of that case which involved possession of stolen goods knowing them to have been stolen:

"I do not think that the burden resting upon the Crown to establish the guilt of the accused beyond a reasonable doubt includes the added burden of negativing every conjecture to which circumstantial evidence might give rise and which might be consistent with the innocence of the accused."

20 By way of reiteration the principle that I glean from the authorities to which I have referred is that unexplained possession of recently stolen goods is evidence that may, depending on all the circumstances of any given case, establish the commission of any offence by which such were illegally obtained.

[41] In R. v. Sellars (1979), 44 C.C.C. (2d) 448 (Que. C.A.), (affirmed on other grounds, 1980 166 (SCC), [1980] 1 S.C.R. 527, Dube J.A. observed at p. 460 that Coffin “clearly decided that from the possession of a stolen object one might conclude not only theft but also other crimes even more seriously related to the theft; in this case Coffin who was accused of the murder of three American hunters, was found in possession of objects which belonged to the victims.”

[42] Accordingly, depending on the particular circumstances of a given case, the doctrine of recent possession may establish any offence (from theft up to murder) that is linked to the theft of the stolen items.

Relevant Circumstances

[43] McIntyre J. provides a helpful summary of some of the circumstances that must be considered at pp. 69-71 of Kowlyk:

6 Two recent appellate decisions are of interest. In R. v. Nickerson (1977), 37 C.C.C. (2d) 337 (N.S.C.A.), an accused charged with breaking and entering and theft under s. 306(1)(b) of the Criminal Code, R.S.C. 1970, C-34, was found in possession of cigarettes stolen from the trailer which had been entered. He offered an explanation which was disbelieved by the trial judge and he was convicted on the basis of the recent possession. His appeal was dismissed. Macdonald J.A., giving judgment for the Court, after commenting on certain authorities, said, at p. 343:

On the authority of the Langmead case it is, in my opinion, initially for the jury, or for the trial Judge if there is no jury, on an overview of all the circumstances to say whether the presumption arising from the recent possession of stolen goods supports a charge of stealing, robbery, break, enter and theft, etc., or only of possession of stolen goods.

At page 344, he recognized that the inference to be drawn from recent possession is only permissive, saying:

Even when the presumption that arises from the recent possession of stolen goods can be used the Crown is still left with the ultimate or general burden of proving its case beyond a reasonable doubt. The rule being that a Court may not must convict in the absence of any explanation.

and later,

By way of reiteration the principle that I glean from the authorities to which I have referred is that unexplained possession of recently stolen goods is evidence that may, depending on all the circumstances of any given case, establish the commission of any offence by which such were illegally obtained.

It is suggested that the implication to be drawn from this case, stemming from the use by Macdonald J.A. of the words"depending on all the circumstances of any given case", is that unexplained recent possession alone is insufficient to support a guilty verdict. I would reject this view on the basis that it is contrary to the authorities which I have considered. There must, of course, be evidence that the goods were stolen and, where relevant, that a break-in occurred. There must also be evidence of possession, of recency of possession, and evidence of the identity of the goods, all of which are present in the case at bar. There may be, and frequently will be, other evidence which may be relevant on the issue of guilt or innocence that must be considered by the jury, but where the unexplained recent possession is found, it alone allows -- but does not make mandatory -- a finding of guilt. In Russell v. R. (1983), 32 C.R. (3d) 307, the Nova Scotia Court of Appeal considered the question of whether the application of the doctrine of recent possession infringed the right to the presumption of innocence, under s. 11(d) of the Canadian Charter of Rights and Freedoms. This issue was not raised in this Court. The case has relevance to this case, however, because of the explanation of the nature of the inference given by Jones J.A., speaking for the Court, after reviewing many of the authorities mentioned in this judgment, he said, at p. 316:

These decisions make it abundantly clear that the inference arising from the unexplained possession of stolen goods is simply one of fact and does not alter the fundamental burden of proof on the Crown to establish guilt of the accused beyond a reasonable doubt. Viewed in that light the inference does not offend the presumption of innocence under the Charter of Rights and Freedoms.

Of interest is an annotation to this case by Don Stuart, appearing at p. 308 of the report.

[44] I conclude that on the strength of the authorities outlined above, that once the doctrine of recent possession applies, Mr. Morgan may, but not must, be convicted of all the charges linked to the theft of the property if the appropriate circumstances exist.

[45] According to the authorities, as outlined in paragraph 43 above, before considering whether to invoke the permissive inferences permitted by the doctrine of recent possession, the trier of fact must find:

(1) The goods were stolen;

(2) Evidence of possession of the stolen goods by the accused;

(3) Evidence of recency of possession of the stolen goods; and

(4) Evidence of the identity of the stolen goods.

Questions 1 and 4: Were the goods stolen? Was there evidence of identity of the goods?

[46] The answers in this trial to questions 1 and 4 can unequivocally be answered in the affirmative and are not disputed by the defence. The victims had numerous items stolen with their names and identification details on them. Further, other items such as Mr. Northcott’s PSP with Darth Vader logo had specific programmes in them, which enabled them to be positively identified by the victims.

Question 2: Was there evidence of possession of the stolen items by the accused?

[47] The law of possession requires the accused, Mr. Morgan, to have knowledge and control of the stolen item(s). In R. v. Bertucci, [2002] O.J. No. 3870 (C.A.), O’Connor A.C.J.O., writing for the court, held:

15 There was substantial circumstantial evidence indicating that the basement bedroom was the appellant's. However, the appellant testified that he lived on the top floor and that his brother lived in the basement bedroom. The appellant denied knowing about the items found in the basement.

16 In his charge, the trial judge first read to the jury the definition of possession in s. 4(3)(a)(ii) of the Criminal Code, R.S.C. 1985, c. C-46, which reads as follows:

For the purposes of this Act,

(a) a person has anything in possession when he has it in his personal possession or knowingly

(ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person ....

17 The trial judge's charge then proceeded as if the drugs had been found in the basement bedroom rather than in a cupboard outside the bedroom and in the ceiling outside the bedroom. After reading s. 4(3)(a)(ii), the trial judge continued by telling the jurors it was up to them to decide whether or not the bedroom was possessed by the appellant and to determine if they were satisfied beyond a reasonable doubt that the appellant was responsible for the room. Next, he told the jury that someone had constructive possession of something if he gave it to someone else for safekeeping or hid it in a storage locker or hid it in a private bedroom.

18 There are two difficulties with this part of the charge. First, more than mere responsibility for a room in which drugs are found is required in order to establish possession: R. v. Terrence, [1983] 1 S.C.R. 357. Moreover, the jury's attention was not directed to the fact that the drugs were found in a cupboard and in the ceiling both outside the basement bedroom. The trial judge's charge sent the message that the issue of possession turned on a finding that the basement bedroom, not the cupboard or ceiling area, belonged to the appellant.

19 It appears that the jury was unclear about what was required to constitute possession in relation to count 8. In a question to the trial judge, the jury asked: "Does count 8 mean that Carlo Bertucci was in sole possession of the drugs?" The trial judge answered, apparently with the approval of counsel, by essentially repeating what he had told the jury in the main part of his charge.

20 In my view, the manner in which the trial judge charged the jury on count 8 constitutes a reversible error. The issue was left to the jury on the basis that they could find that the appellant was in possession if he knew of the presence of the drugs and if they were satisfied that he was responsible for the bedroom adjacent to the cupboard and ceiling area where the drugs were found. Although there was evidence to connect the occupier of the bedroom to the cupboard, the trial judge should have carefully instructed the jury that the issue of possession turned on the control of the cupboard and ceiling area and the drugs found there and not simply on responsibility for the adjacent bedroom.

[48] Ritchie J., in R. v. Terrence, [1983] 1 S.C.R. No. 357, makes it clear that the law requires that an individual must have both knowledge and some measure of control of an item in order for that person to be in possession of that item (at p. 5-6):

In the course of his reasons for judgment rendered on behalf of the Court of Appeal, Mr. Justice MacKinnon reviewed the relevant cases concerning the ingredients of possession under s. 3(4)(b) of the Criminal Code and concluded that in order to establish "possession" under that section it was necessary that there should be evidence of control on the part of the accused. In the course of these reasons he said:

In my view, on the proven facts the necessary measure of control was not established beyond a reasonable doubt by the Crown, nor do those facts allow for the invocation of s. 21. If, by way of example only, it were established that the appellant had directed Hayes to drive to Kingston, that, in light of all the other proven facts, would in my view satisfy the requirement of some measure of control over the car. If, by way of further example, he had been seen handing the stolen licence plates to Hayes for them to be placed on the motor vehicle that, once again in my view, would be sufficient to warrant the application of s. 21 and to establish constructive possession of the car by the appellant.

Section 21 of the Criminal Code defines the meaning of "parties" to an offence and involves the question of common intention. It will be remembered that in the present case there is no suggestion that the respondent participated in any way in the actual theft of the car by an unknown person which took place some time before he was invited to drive in it and there is nothing to support a finding of common intention in relation to the offence of "possession" with which the respondent is here charged.

The Court of Appeal had reference to the case of R. v. Lou Hay Hung (1946), 85 C.C.C. 308, which was a decision of its own court concerned with a charge under the Opium and Narcotic Drug Act, 1929 (Can.), c. 49 and in which Mr. Justice Roach in the course of his reasons for judgment, referred to and quoted s. 5(2) of the Criminal Code, the predecessor of s. 3(4)(b), in the following terms at p. 321:

Under s. 5(2), both 'knowledge' and 'consent' are necessary. I have already stated that, in my opinion, there is no doubt that the appellant knew that the accused Watson had opium in the premises. I have been more than a little concerned with the question whether or not, on the evidence, it should be held that he also consented.

In the same set of reasons, Mr. Justice Roach referred to the judgment of O'Halloran J.A. in R. v. Colvin and Gladue, [1943] 1 D.L.R. 20, where he said at p. 25:

"Knowledge and consent" which is an integral element of joint possession in s. 5(2) must be related to and read with the definition of "possession" in the previous s. 5(1)(b). It follows that "knowledge and consent" cannot exist without the co-existence of some measure of control over the subject-matter. If there is the power to consent there is equally the power to refuse and vice versa. They each signify the existence of some power or authority which is here called control, without which the need for their exercise could not arise or be invoked.

In the course of the reasons for judgment rendered by Mr. Justice MacKinnon on behalf of the Court of Appeal in the present case, he had occasion to say of the above passage from Mr. Justice O'Halloran's judgment:

The judgment of O'Halloran, J.A. in Colvin and Gladue, the relevant passage of which for our purposes being the one quoted by Roach J.A. (supra) to the effect that 'knowledge and consent cannot exist without the co-existence of some measure of control over the subject-matter', has been followed by British Columbia Courts in subsequent decisions: Rex v. Sherman, 62 B.C.R. 241, 1 C.R. 153, 1946 1 W.W.R. 479; Regina v. Bunyon (1954), 110 C.C.C. 119; Regina v. Dick and Malley (1969), 7 C.R.N.S. 75, 68 W.W.R. 437; R. v. Baker--May 21, 1976, (B.C.C.A.) (unreported as yet).

The courts in Quebec have adopted the same reasoning as will be seen by reference to R. v. Sigouin, [1966] 1 C.C.C. 235, and R. v. Fournier (1978), 43 C.C.C. (2d) 468.

As I have indicated, I agree with the Court of Appeal that a constituent and essential element of possession under s. 3(4)(b) of the Criminal Code is a measure of control on the part of the person deemed to be in possession by that provision of the Criminal Code and accordingly I do not consider that the Court of Appeal for the Province of Ontario erred in this regard.

[49] According to the Agreed Statement of Facts, Demaine Smith occupied the bedroom closest to the stairs. Calvin Morgan also admitted to occupying the bedroom next to Demaine Smith’s bedroom.

[50] Within Mr. Morgan’s bedroom were found a number of his personal papers as well as numerous stolen items as outlined in paragraph 20, subparagraph 64. Further, the black coat with Jordan Northcott’s blood on it was located in plain view in the closest in Mr. Morgan’s bedroom. In the circumstances, I find that Mr. Morgan had both knowledge and control of all the items in his bedroom.

Question 3: Was there evidence of recency of possession?

[51] In R. v. Gagnon, supra, Hamilton J.A., outlined the considerations that can be taken into account in determining whether the items were “recently” stolen:

12 The requirement that the Crown prove that the goods were recently stolen relates to when the underlying offence occurred. Any number of factors can be considered in determining whether a possession is recent including the nature of the object, its rareness, the readiness in which it can, and is likely to, pass to another and the ease of identification. See Saieva v. The Queen, [1982] 1 S.C.R. 897.

13 When deciding whether to infer only possession of the stolen goods or to infer the underlying offence, the trier of fact must consider all the circumstances. See Kowlyk and R. v. Abernathy (J.C.) 2002 BCCA 8, 161 B.C.A.C. 247. Common sense factors to be considered include how close in time to the theft or robbery are the goods in possession of the accused and the nature of the stolen goods. Obviously, the closer in time possession is to the underlying offence, the more likely it is that the trier of fact will draw the inference of guilt on the underlying offence. However, a longer period of time does not prevent the inference. This is evident in Kowlyk where the break-ins occurred on June 1, 6, and 8 and on July 11, but it was not until August 27th that the goods were found in the possession of the accused. The Supreme Court upheld the convictions on the underlying offences.

14 Ultimately, the trier of fact, upon a consideration of all the circumstances surrounding the unexplained possession of recently stolen goods, will decide which inference is to be drawn. That is a question of fact. As such, deference is owed to such finding. See, for example, H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401, and R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621.

[52] In R. v. Bakos, 2008 ONCA 712, [2008] O.J. No. 4067, the Court of Appeal accepted that four months between theft and possession could constitute recent possession:

21 In support of their argument, the appellants rely on Saieva v. The Queen (1982), 68 C.C.C. (2d) 97, in which the Supreme Court of Canada considered "recency" on the basis of the relevant factors, including the rareness of the object, the readiness with which it is likely to pass from hand to hand, its transferability and its ease of identification. However, Saieva involved different circumstances and raised different issues than those present in this case. Moreover, the theft in Saieva could have occurred 50 to 55 weeks before the possession. Also in Saieva, there was no evidence about the date of theft and, in order to establish a date, it was necessary to consider "intricate facts" about how the stolen property was used before the theft.

22 In this case, there was no dispute about when and where the theft occurred. Here, the possession of the stolen components by the appellants was alleged to be within four and a half months of the theft. The date when the components came into Mr. Stewart's possession was also clear. Indeed, the gap between the theft and the appellants' possession is shorter than the four plus months described because the appellants must have had the components at an earlier time in order to incorporate them into the Stewart motorcycle and advertise it for sale.

23 In any event, while Saieva required the trial judge to provide the jury with the criteria for determining "recency", in my view those criteria were adequately delivered to the jury in this case when the charge is considered as a whole. The jury had extensive evidence about the Chinery sale, the Dennis theft, the amalgamation of the two motorcycles into the Stewart motorcycle, the possible use made of the Dennis motorcycle in the summer of 2004 and the appellants' possession of the components for a period of time before the sale to Stewart.

24 The nature of the issues in this trial and the components of the offences were clear to the jury. The factual issues and the applicable law were reviewed in detail in the trial judge's charge. This was not a complicated trial requiring a detailed explanation of "recent": see also Watt at pp. 649-58. Further, in my view, the Crown was not compelled, as suggested in oral argument, to call expert evidence, if such evidence was available, on the transferability in practice of stolen motorcycle components when taken by a dealer for inclusion in a rebuilt motorcycle. I would not give effect to this ground of appeal.

[53] Accordingly, in order to determine recency, the court is entitled to consider a variety of factors including, but not limited to:

(1) Rareness and nature of the object,

(2) Readiness with which it is likely to pass from hand to hand,

(3) Its transferability,

(4) Its ease of identification.

[54] The authors of McWilliams, in Canadian Criminal Evidence, (3^rd^ edition), at pp. 5-14 refer to the Cockins Case (1836), 168 E.R. 1139, where the trial judge instructed the jury, with respect to a charge of theft of socks found in the accused’s possession twenty days after they were missed, that:

If I was to lose my watch and in a few minutes it was to be found on the person one of you, it would afford the strongest ground for presuming that you had stolen it; but if a month hence it were to be found in your possession, the presumption of your having stolen it would be greatly weakened because stolen property passes through many hands.

[55] Further, the McWilliams’ authors write that the “strength of the presumption depends on how recent the possession is, that is, in proportion to the shortness of the interval since the theft. It also depends on the nature of the possession, whether it is open or avowed or secret and concealed and the nature of the account given of it: R. v. Exall [citation omitted]”.

[56] Recency has been held to be established in the following circumstances: (1) money stolen from a bank robbery four hours earlier (R. v. Dionne [2005] S.C.J. No. 27); (2) guns stolen 17 days earlier (R. v. Choquette [2007] O. J. No. 3137 (C.A.)); (3) truck with significant alterations stolen 56 days earlier (R. v. MacNair [2006] O.J. No. 2430 (C.A.)); (4) bank card stolen 72 hours earlier (R. v. Barrett [2011] (S.C.J.); horse stolen 3 days earlier; Clement’s case (1830), 168 E.R. 980 – see R. v. Kowlyk).

[57] In dealing with a stolen radio, the Court of Appeal indicated in R. v. Cousineau, [1982] O.J. No. 150 (C.A.), at para. 14:

…Although the date of the theft is unknown, the interval between the theft and the sale was less than one month. While it is true that the presumption of knowledge from recent possession does not apply where common, easily transferable articles are held for a long period, I know of no authority which would compel me to find that the presumption could not apply where the period is less than one month. The decisions on this issue show that the operation of the presumption turns on the facts of each case.

Application of the Doctrine to this Case

[58] To summarize then, over the last two hundred years, technology has changed, but the doctrine of recent possession has not. People have “progressed” from the theft of horses to motor vehicles to electronic devices to plastic bank cards. If any of those and most other articles are stolen and then found, within 72 hours, in the possession of an accused person (as occurred in this case), the doctrine of recent possession almost invariably must be considered by the trier of fact. Whether the doctrine in fact operates in any particular case always turns on the unique circumstances of each case.

[59] The Crown submits that the items found in Mr. Morgan’s possession have no value and are not easily transferable and have little value, i.e. the Bell calling card and the HBC rewards card. The defence contends that these items have value and are easily transferable. I find that the items have varying degrees of value and transferability.

[60] For example, both the TD Canada Trust debit card (belonging to Nancy Caines and found in Mr. Morgan’s bedroom – see Ex. 86, slide 20) and Kyle Campbell’s Bell calling card (found in Mr. Morgan’s bedroom – see Ex. 86, slides 20-22) require PIN numbers in order to be accessed. No PIN numbers were given to the robbers. Accordingly, these items would have no transferability value. It would be expected that credit cards would be cancelled almost immediately after the thefts and they as well would have a very limited and short time frame for any transfers for cash or other consideration to occur. The electronics items would have a greater degree of transferability value.

[61] What is clear is that most, if not all, of the items are easily identifiable as coming from the robbery less than three days before. For almost two hundred years, the law has deemed the possession, of these types of items and items with greater value and transferability, within three days of their theft, to be “recent possession”.

[62] I find that the accused was in possession of readily identifiable stolen items within three days of their theft. I conclude that Mr. Morgan is in the unexplained possession of recently stolen property and that the doctrine of recent possession is applicable. I must now go on to consider whether I may draw an inference that Mr. Morgan is guilty of the offences incidental to the theft of these items.

CIRCUMSTANTIAL EVIDENCE

[63] In R. v. Dionne, 2005 SCC 29, [2005] 1 S.C.R. 665, the Supreme Court of Canada held that, for the reasons given by the majority of the British Columbia Court of Appeal, the trial judge appropriately applied the test for determining guilt in a case built solely on circumstantial evidence.

[64] In Dionne, the accused did not testify. Lambert J.A, in giving the majority reasons at 2004 BCCA 274, [2004] B.C.J. No. 1181, wrote:

20 Madam Justice Gerow also referred to the proposition that all the evidence should be examined as a whole in deciding whether the case had been proved, rather than by weighing individual items of evidence one by one, and she said this with respect to that proposition:

[49] The Crown referred me to R. v. Morin (1988), 44 C.C.C. (3d) 193 (S.C.C.), for the proposition that in considering whether the Crown has proved its case beyond a reasonable doubt, one should not weigh the individual items of evidence, but, rather, should examine the evidence as a whole and determine whether on the proved facts the accused is guilty.

[50] In my view, the Crown's theory of the case against the three accused relies on natural and logical inferences to be drawn from the proven facts.

21 Madam Justice Gerow then went through the facts and reached her conclusion with respect to the charges against Mr. Dionne in these words:

[64] Mr. Dionne was arrested with a large quantity of Canadian and American money in his possession including some bait money from the bank. A partial DNA profile was obtained from the blue baseball cap recovered from the robbery for which Mr. Dionne was a possible contributor. The logical conclusion to be drawn from Mr. Dionne's possession of the bait money shortly after the robbery, the DNA evidence and the association with the other accused, is that Mr. Dionne was involved in the robbery.

[65] It follows that I find the Crown has proved its case against Mr. Dionne beyond a reasonable doubt, and I find Mr. Dionne guilty of Counts 1 and 4 of the indictment.

22 In my opinion, Madam Justice Gerow made no error in her description of the doctrine of recent possession. She made no error in describing how the evidence as a whole should be weighed, rather than the weighing of each item one by one, and she made no error in saying that that principle should apply even where part of the basis of the inference could rest on the doctrine of recent possession. So in my opinion, in para. 64 of her reasons, which I have set out above, where Madam Justice Gerow said: "The logical conclusion to be drawn from Mr. Dionne's possession of the bait money shortly after the robbery, the DNA evidence and the association with the other accused, is that Mr. Dionne was involved in the robbery" she correctly applied the principles that she had described to the circumstances of this case.

23 So, there being no error of law, that leaves only the question of whether the verdict was an unreasonable one. In my opinion, the principle that recent possession can call for an explanation is an aspect of the inference of recent possession. Sometimes the circumstances arising at the conclusion of the Crown's case, whether based on direct evidence or circumstantial evidence, or partly one and partly the other, can lead to a web from which the only reasonable inference is that the accused is guilty unless he or she offers an explanation. It is then incumbent on the accused, who never has to testify on his own behalf, to expect to be found guilty if no reasonable explanation is offered. That principle was applied by this Court in R. v. E.R., [2002] B.C.J. No. 1452, 2002 BCCA 361, decided on 29 May 2002, where Mr. Justice Braidwood, for the Court, said this:

[7] ... I observe that, in the case at bar, no answer was offered to otherwise convincing inculpatory evidence, and the appellant's silence may therefore be considered in assessing the reasonableness of the conviction.

24 I take that silence in this case into account as well as the reasons themselves of Madam Justice Gerow in reaching the conclusion that, in my opinion, the verdict was not an unreasonable one in this case, there was no error in law, and accordingly, that I would dismiss the appeal.

[65] The Ontario Court of Appeal has recently restated the law in a circumstantial evidence case. In a circumstantial evidence case, the trier of fact is required to consider the cumulative effect of the evidence. Individual items of evidence are not to be examined separately and in isolation. In R. v. Uhrig, 2012 ONCA 470, [2012] O.J. No. 3011, the court indicated at paragraph 13:

13 When arguments are advanced, as here, that individual items of circumstantial evidence are explicable on bases other than guilt, it is essential to keep in mind that it is, after all, the cumulative effect of all the evidence that must satisfy the standard of proof required of the Crown. Individual items of evidence are links in the chain of ultimate proof: R. v. Morin, [1988] 2 S.C.R. 345, at p. 361. Individual items of evidence are not to be examined separately and in isolation, then cast aside if the ultimate inference sought from their accumulation does not follow from each individual item alone. It may be and very often is the case that items of evidence adduced by the Crown, examined separately, have not a very strong probative value. But all the evidence has to be considered, each item in relation to the others and to the evidence as a whole, and it is all of them taken together that may constitute a proper basis for a conviction: Cote v. The King (1941), 77 C.C.C. 75 (S.C.C.), at p. 76.

[66] Individual items of circumstantial evidence that form strands of a rope or a link in a chain of events in this case include (but are not limited to):

(1) The accused Calvin Morgan had purchased drugs from Nancy Caines at 30 Tullamore in the past.

(2) The robbers were demanding to know where the stash and/or drugs were.

(3) The robbers were described as black, in their 20s and had estimated heights of anywhere from 5’9” to 6’2 “. At the time of the offence, Calvin Morgan was black, 24 and approximately 5’9”. Mr. Morgan matched the general description of the robbers – see R. v. Morgan [2012] O.J. No. 110 (C.A.) at paragraph 17.

(4) Approximately 30 minutes after the robbery, Bell Canada was able to trace a cell phone with GPS capability at the intersection of Pearson Road and Abelard. The police arrived at the intersection within minutes but saw no one. They did see three sets of fresh footprints in the heavily falling snow which ended near 76 Abelard which is at the intersection of Pearson Road and Abelard. The stolen cellular telephone’s location and the fresh footprints provide a basis for inferring a connection between 76 Abelard and the robbery – see R. v. Morgan, supra, at paragraph 16.

(5) On the following day, at 8.27 a.m. on Dec. 31, Nancy Caines received a phone call from a phone registered to R.W. Morgan and this number was traced back to 76 Abelard which is where Mr. Morgan was residing with Demaine Smith.

(6) On January 2, 2009, the police executed a search warrant and located numerous items from the robbery in the bedrooms of Demaine Smith and Calvin Morgan. Further they found an imitation handgun and a stolen wallet, containing the victims’ identification, wrapped together in laundry in the dryer (the laundry room was located in the same basement where Demaine Smith and Calvin Morgan had their bedrooms). Both Nancy Caines and Jordan Northcott testified that a gun was put to their heads to intimidate them during the robbery. For reasons previously outlined, this imitation handgun found in the dryer was the one used by the robbers during the robbery.

(7) As indicated above, the accused Calvin Morgan was found in the unexplained recent possession of property stolen from the robbery and the doctrine of recent possession is to be considered by the trier of fact.

(8) Nancy Caines subsequently discovered, when she examined the blue Samsung flip cell phone (that had been seized by the police from Mr. Morgan’s drawer in his bedroom) that a call had been made to Jamaica approximately 45 minutes after the robbery. Less than 20 hours after the robbery, a call was made to Mr. Morgan’s girlfriend, Natalie Watson at her number, on Nancy Caine’s blue Samsung flip cell phone. Natalie Watson testified that Demaine Smith never phoned her at that number. It can be inferred that Calvin Morgan made the call and this places him in possession of Ms. Caine’s stolen cell phone less than 20 hours after the robbery.

(9) A dark jacket was seized by the police on January 2, 2009 in the closet of Mr. Morgan’s bedroom. DNA analysis of the jacket revealed Mr. Northcott’s blood to be present in the left sleeve of the jacket.

[67] I find that cumulatively, the circumstantial evidence, outlined above, in combination with the other evidence that I have outlined, provides an overwhelming basis, beyond a reasonable doubt, for concluding that Mr. Morgan was one of the participants in the robbery of 30 Tullamore, Apt. 211 on December 30, 2008. I further conclude that given all the surrounding circumstances as outlined above, I am entitled to, and do, apply the doctrine of recent possession to link the accused Mr. Morgan to the offences incident to the theft of the stolen items.

Alibi - The Failure of the Accused to Testify

[68] In R. v. Noble, [1997], S.C.J. No. 40, the Supreme Court of Canada considered the use, if any, that a trier of fact may use when the accused advances an alibi but fails to testify to support it. The court concluded that the trier of fact, where the defence of alibi is advanced, may draw an adverse inference from the failure of the accused to testify and subject himself to cross-examination.

[69] Sopinka J. explained for the majority:

Alibi Cases

110 The appellant submitted that Vézeau v. The Queen, [1977] 2 S.C.R. 277, held that silence could be treated as a "make-weight". In Vézeau, this Court considered the significance of the failure to testify in the context of a defence of alibi. In that case, the defence was alibi, but the accused did not testify. In giving his instructions to the jury, the judge said that they could not draw any conclusion unfavourable to the accused from the fact that he had not testified. The majority of this Court held that, aside from the prohibition of comment on the failure of the accused to testify set out in the Canada Evidence Act, it was an error of law for the trial judge to instruct the jury that they could not consider the absence of testimony by the accused in assessing the alibi. Martland J. stated on behalf of the majority at p. 292 that:

It was part of the appellant's defence to the charge that he could not have committed the offence because he was in Montreal when the murder occurred. Proof of this alibi was tendered by a witness who claimed to have been with the appellant in Montreal. The direction of the trial judge precluded the jury, when considering this defence, from taking into consideration the fact that the appellant had failed to support his alibi by his own testimony. The failure of an accused person, who relies upon an alibi, to testify and thus to submit himself to cross-examination is a matter of importance in considering the validity of that defence. The jury, in this case, was instructed that they could not take that fact into account in reaching their verdict.

111 In my view, Vézeau set out a narrow exception to the impermissibility of using silence to build the case against the accused at trial. It has clearly been recognized in other contexts that alibi defences create exceptions to the right to silence. For example, while the accused generally has a right to silence during the investigative stage of a criminal proceeding, if an alibi defence is not disclosed in a sufficiently particularized form at a sufficiently early time to permit the police to investigate it prior to trial, the trier of fact may draw an adverse inference from the accused's pre-trial silence: see R. v. Cleghorn, [1995] 3 S.C.R. 175. Such a rule is one of expediency: see Russell v. The King (1936), 67 C.C.C. 28 (B.C.C.A.). It is based upon the relative ease with which an alibi defence can be fabricated. As Major J. stated in dissent, but for the Court on this point, in Cleghorn at pp. 188-89:

The principal reason for drawing an adverse inference against alibi evidence in the absence of adequate notice to the Crown is because such evidence can readily be fabricated. This potential problem with alibi evidence is discussed by R. N. Gooderson in his text Alibi (1977), at pp. 29-30:

It must be conceded that there is good reason to look at alibi evidence with care. It is a defence entirely divorced from the main factual issue surrounding the corpus delicti, as it rests upon extraneous facts, not arising from the res gestae. The essential facts of the alleged crime may well be to a large extent incontrovertible, leaving but limited room for manoeuvre whether the defendant be innocent or guilty. Alibi evidence, by its very nature, takes the focus right away from the area of the main facts, and gives the defence a fresh and untrammelled start. It is easy to prepare perjured evidence to support it in advance.

The potential for the fabrication of alibi evidence requires that a negative inference may be drawn against such evidence where the alibi defence is not disclosed in sufficient time to permit investigation. Nevertheless, it must be remembered that the requirement that an alibi defence be disclosed to the Crown prior to trial is an exception to the accused's right of silence: see R. v. P. (M.B.), [1994] 1 S.C.R. 555, at p. 578, per Lamer C.J., R. v. S. (R.J.), [1995] 1 S.C.R. 451, at p. 516, per Iacobucci J.

112 In my view, there are two reasons supporting the alibi exception to the right to silence pre-trial which apply also to the right to silence at trial: the ease with which alibi evidence may be fabricated; and the diversion of the alibi inquiry from the central inquiry at trial. As Gooderson stated, alibi evidence is easily fabricated through the use of perjuring witnesses. I am therefore sympathetic to the view expressed in Vézeau that in the limited case of alibi, the failure of the accused at trial to testify and expose him- or herself to cross-examination on the alibi defence may be used to draw an adverse inference about the credibility of the defence. A second reason to permit such a limited exception to the right to silence at trial is that the alibi defence is not directly related to the guilt of the accused; as Gooderson put it"alibi evidence, by its very nature, takes the focus right away from the area of the main facts". Rejecting the alibi defence does not build the case for the Crown in the sense of proving the existence of the required elements of the offence in question, but rather negatives an affirmative defence actively put forward by the accused. Using silence to inform the trier of fact's assessment of the credibility of the accused's affirmative defence of alibi simply goes to the alibi defence itself.

113 For these reasons, in my view Vézeau can be analyzed on the basis of a limited exception to the right to silence at trial. While in general the failure to testify cannot be used to assess credibility of witnesses (see Schwartz, supra), in the case where the defence of alibi is advanced, the trier of fact may draw an adverse inference from the failure of the accused to testify and subject him- or herself to cross-examination. While it must be conceded that this exception does undermine to a limited extent the presumption of innocence and the right to silence, it has a long and uniform history pre-dating the Charter and must be taken to have been incorporated into the principles of fundamental justice in s. 7.

[70] Mr. Morgan advanced an alibi in his defence. He did not testify. Instead, his girlfriend testified and provided the alibi. I do not believe her evidence and I further find that her evidence, with reference to the alibi, could not be reasonably true and could not raise a reasonable doubt. To convict Mr. Morgan, I do not find it necessary to resort to any adverse inferences from Mr. Morgan’s failure to testify. However, were I required to do so, I would draw an adverse inference from Mr. Morgan’s failure to testify in the face of the overwhelming evidence of his guilt.

AGGRAVATED ASSAULT and POSSESSION OF IMITATION FIREARM – PARTY LIABILITY

[71] On the evidence before me, it is obvious, beyond any reasonable doubt, that Demaine Smith and Calvin Morgan were participants in the home invasion robbery. However, it is impossible to determine what role each of them played in the aggravated assault of Jordan Northcott. Further, it is impossible to say which robber had the gun.

[72] As indicated from my facts analysis at paragraph 20, subparagraph 20 above, I found the following facts:

The evidence from the victims establishes that at least 3 black men forced their way into the victims’ apartment. They were heavily armed with a machete, knife (or knives) and a handgun. Upon entry, all the victims were set upon immediately and attacked and threatened with at least one or more of these weapons. The robbers were aware of the presence of drugs and were determined to seize them. All the victims were tied up and the entire operation was conducted with military precision with an emphasis on speed and covert conduct designed to conceal the robbers’ identities. The apartment was ransacked (see Exhibit 1 photos) by all the robbers while the victims were tied and helpless and with Jordan Northcott bleeding heavily. It is a reasonable inference that this was a carefully planned operation and that all the conspirators were aware that numerous weapons were available to subdue the occupants of the apartment. The concerted attack on Jordan Northcott by three of the conspirators allows the reasonable inference that each conspirator was expected to assist the others and was expected to use whatever force was necessary to subdue and confine the victims. It is reasonable to conclude that this included the use of the knives and gun as circumstances developed.

[73] In R. v. Chang, [2007] O.J. No. 5787 (S.C.J.), affirmed [2009] O.J. No. 2938 (C.A.), Justice Malloy dealt with a situation where one accused had a gun and there was no direct evidence that the other accused knew about the gun. Justice Malloy in convicting both of the accused held that “given the common intention to rob a drug dealer of seventy thousand dollars, Mr. Chang at least ought to have known that it was probable that one of his companions had a gun.” Justice Malloy’s comments at paragraphs 44-46 apply with great force to the situation before me:

44 The remaining issue is whether Mr. Chang is also guilty of possession of the gun even though it was Mr. Hall who actually had it on his person. There is no direct evidence that Mr. Chang knew anything about Mr. Hall having the gun. However, the first question that must be asked is what were these three men up to when they went to meet with a high-level drug dealer carrying a gun and a two kilogram bag of powder that could not pass muster as cocaine. In my view, it cannot possibly be the case that Mr. Chang believed a person with $70,000.00 would spend on cocaine would pass it over without looking at what he was getting for his money. Further, it stretches credulity to suggest that once the dealer had looked into this bag he would willingly and without a struggle pass over $70,000.00 for this worthless bag of plaster with bits of twigs mixed in it. The inescapable inference is that D, Mr. Chang and Mr. Hall intended to rob the undercover officer and they knew they would need to use force or violence of some form or another to effect that end. These three set out with a common purpose to effect a robbery. They took a number of steps to carry that out. They walked together to the car; they got in simultaneously before the undercover officer could react; Mr. Chang sought to calm him down telling him not to worry; they positioned themselves to maximum effect with the gun man right beside the undercover officer; then Mr. Hall asked to see the money. These were steps taken to put the illegal plan into effect. However, as soon as the undercover officer got out of the car, ostensibly to get the money, he immediately aborted the deal giving the take-down signal. This was indeed a wise decision.

45 Section 21(2) of the Criminal Code provides as follows:

"Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.

46 Here, Mr. Hall, Mr. Chang and D formed an intention to carry out an unlawful purpose, specifically robbery. They intended to assist each other. For example, Mr. Hall was the one with the gun; D was to be the set-up guy; Mr. Chang brought the goods. Mr. Chang, on the direction of Mr. Hall, got out to supervise the undercover officer as he was getting the money out of the trunk. In the course of this unlawful purpose, Mr. Hall committed the offence of being in possession of a loaded handgun. The issue is whether Mr. Chang 'ought to have known' that it was a probable consequence of the planned robbery that one of them would have a gun. Just as a matter of common sense I would find that to be the case.

[74] In R. v. Vang, [1999] O.J. No. 91 (C.A.), the Ontario Court of Appeal considered the operation of Section 21(2) of the Criminal Code on a charge of aggravated assault. The court held that an intention to wound is not required. The Crown is required, on a charge of aggravated assault, to prove objective foresight of bodily harm. Morden A.C.J.O. held:

12 In R. v. Godin, Cory J. said for the Supreme Court of Canada at p. 575:

The mens rea required for s. 268(1) of the Criminal Code, R.S.C. 1985, c. C-46, is objective foresight of bodily harm. It is not necessary that there be intent to wound or maim or disfigure. The section pertains to an assault that has the consequences of wounding, maiming or disfiguring. This result flows from the decisions of the court in R. v. DeSousa (1992), 76 C.C.C. (3d) 124, 95 D.L.R. (4th) 595, [1992] 2 S.C.R. 944, and R. v. Creighton (1993), 83 C.C.C (3d) 346, 105 D.L.R. (4th) 632, [1993] 3 S.C.R. 3.

This sets forth a part of the mens rea of the offence of aggravated assault as far as the perpetrator is concerned. (It is clear that in addition to the consequences of the assault referred to in this passage there is that of the endangering of life.) The full mens rea is the mens rea for the offence of assault and objective foreseeability of bodily harm. Godin must be read as implicitly overruling this court's decision in R. v. L.(S.R.) (1992), 76 C.C.C. (3d) 502 which held that the state of mind required for aggravated assault was the mens rea for assault and objective foreseeability that the assault subjected the complainant to the risk, as the case may be, of wounding, maiming, disfiguring, or endangering life.

15 Applying this reasoning to the issue before us, the question is whether the appellants, in engaging in the common unlawful purpose of assaulting Rampersaud, foresaw, or ought to have foreseen, that bodily harm was a probable consequence of carrying out the common purpose. If the answer is yes, then, provided Rampersaud's injuries did, in fact, endanger his life, the appellants are guilty of aggravated assault.

[75] More recently, in R. v. Williams, 2003 SCC 41, [2003] 2 S.C.R. 134, Binnie J., writing for the Court, confirmed at para. 22 that the mental element on a charge of aggravated assault is the objective foresight of the risk of bodily harm.

[76] I conclude that in the circumstances, Mr. Morgan, Mr. Smith and at least one other robber formed an intention in common to conduct a home invasion of a known drug dealer. They masked themselves and armed themselves with a machete, knife and an imitation handgun. They knew there would be violence and immediately upon entering the home, all three occupants were attacked without provocation. The victims were subdued by force with the varying use of a machete, knife and handgun.

[77] It is a reasonable inference that all the robbers, including Mr. Morgan, were aware of each other’s weapons and their intention to use them in a violent fashion to overcome any and all resistance from the victims. When Jordan Northcott resisted, he was attacked by three masked men. He was stabbed and threatened thereafter with an imitation handgun. It is a reasonable inference that the violence and use of weapons were all part of the plan and common intention to confine and rob the three victims in the home at 30 Tullamore. The serious injuries to Jordan Northcott were objectively foreseeable by all the robbers including Mr. Morgan. The fact that Mr. Northcott was tied up and left to bleed profusely, while the robbers continued to ransack and steal items, confirms that violence and injury to the victims were all foreseen (or ought to have been foreseen) to be part of the plan and common intention to confine and rob the three victims.

CONCLUSION

[78] In the result, for the reasons outlined, I find that Mr. Morgan was one of the robbers who were masked and armed and invaded the home of the victims with the intention and plan to attack, subdue, confine and rob the victims.

[79] Mr. Morgan and the others were armed with weapons and were prepared and did in fact assault the victims with the intention of confining and robbing them. Mr. Morgan and the others were fully aware that a handgun, machete and knife were to be used in some form if and as necessary. Mr. Morgan and the other robbers were fully aware that, in the circumstances of this home invasion, the bodily harm inflicted on Mr. Northcott was objectively foreseeable.

[80] Accordingly, I find that Mr. Morgan is guilty of all 9 counts in the indictment.

[81] As an aside, I wish to note that both counsel were well prepared and extremely capable during the trial, which could serve as a model as to how counsel can fight to the fullest for their positions while at the same time conducting themselves in a dignified and professional manner.

Skarica J.

Released: March 14, 2013

COURT FILE NO.: CRIM J(P) 3654/09

DATE: 20130314

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

• and –

CALVIN MORGAN

REASONS FOR JUDGMENT

Skarica J.

Released: March 14, 2013