ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-13-092AP

DATE: 20130909

BETWEEN:

HER MAJESTY THE QUEEN

Appellant

– and –

DAVID LOADER-SHEA

Respondent

M. Minns, for the Appellant

V. Zenobio, for the Respondent

HEARD: September 09, 2013

REASONS FOR JUDGMENT

On appeal from the Judgment of Mr. Justice W.G. Beatty dated

April 5, 2013

McCarthy J.:

[1] The Appellant HMQ seeks an order granting this appeal and remitting the matter back to the Ontario Court of Justice for trial.

[2] The Accused (Respondent in the Appeal) was charged with stealing property of a value not exceeding five thousand dollars, contrary to Section 334(b) of the Criminal Code of Canada.

[3] The trial of the matter took place before the Honourable Justice W.G. Beatty on April 5, 2013 at Orillia. At the conclusion of the Crown’s evidence the Defence moved for a directed verdict. The trial judge granted the motion and dismissed the charges against the Accused.

[4] The Crown on this appeal agrees that there was no direct evidence against the accused, which, if believed, could result in a finding of guilt for the purposes of the test in United States of America v. Shephard, 1976 8 (SCC), [1976] S.C.J. No. 106 (hereinafter referred to as “Shephard”).

[5] The Crown appeals on the basis that the trial judge nevertheless erred in granting the motion for non-suit by misapplying the legal test and failing to properly consider the evidence before him, and more importantly the inferences flowing therefrom, which supported a prima facie case against the Accused.

[6] It is clear to me that the learned trial judge misapplied the test for how circumstantial evidence is to be assessed on a motion for a directed verdict. In his very brief ruling, the trial judge alluded to the evidence that the two co-accused were working together, unsupervised in the home when the items went missing, came to work together, left together and were mother and son. While this is clearly circumstantial evidence, the trial judge did not classify it as such; rather, he miscategorised these as inferences themselves. He then went on to state that, “There is an absolute absence of evidence although there may be some suspicion based only on speculation.”

[7] In my view, the learned trial judge committed palpable and overriding errors. His conclusion that there was an absolute absence of evidence is untenable in light of his summary of the Crown’s evidence made just a few lines before his conclusion. The trial judge utterly failed to weigh the circumstantial evidence in accordance with the approach laid down by the Supreme Court of Canada in R v. Arcuri, 2001 SCC 54, [2001] S.C.J. No. 52 at paragraph 23. This requires the trial judge to assess whether the evidence is reasonably capable of supporting the inferences that the Crown asks the jury to draw. It is critical, however, that this weighing be limited – the judge should not ask whether he himself would conclude that the accused is guilty. Nor should the judge draw factual inferences or assess credibility. The sole question to be asked on a motion for a directed verdict is whether the evidence, if believed, could reasonably support an inference of guilt. In my view, this is a very low threshold.

[8] The Respondent contends that I should afford a great degree of deference to the trial judge in these circumstances. While I agree with that as a general proposition, it is not possible to overlook the fact that the trial judge here did not engage in the exercise set down in Arcuri for assessing circumstantial evidence at this stage. Nowhere does the trial judge make the required assessment of the circumstantial evidence identified and address whether or not this is evidence upon which a reasonable jury, properly instructed, could return a verdict of guilty. (see para 106 of Shephard). Rather, he seems only to satisfy himself that there was no direct evidence and then goes on to confuse the distinction between Crown led circumstantial evidence and inferences. Circumstantial evidence is still evidence and inferences may be drawn from it. The task of the trial judge on a motion for non-suit is to assess whether that evidence is reasonably capable of supporting the inferences leading to guilt. The trial judge failed to undertake that task.

[9] Moreover, the Ontario Court of Appeal in HMQ v. Dwyer, 2013 ONCA 368 has reiterated that reasonable inferences are not necessarily likely or probable inferences. The inference that is most favourable to the Crown must be drawn at the preliminary inquiry (or in this case at the motion for non-suit). Difficult inferences to draw may still nonetheless be reasonable.

[10] I agree with counsel for the Crown who submitted that, while it is conceivable that a trier of fact might conclude that the co-accused Shea (the Respondent’ mother) acted alone, it would certainly be open to that trier of fact to conclude that the Respondent was involved in the theft. The trial judge erred in not considering the circumstantial evidence in the proper context and in failing to conduct the assessment of the evidence on that basis of the inference that is most favourable to the Crown.

[11] For the above reasons, the appeal is allowed and the decision of the trial judge dated April 5, 2013 is set aside. The matter is remitted back to the Ontario Court of Justice for trial.

McCarthy J.

Released: September 09, 2013