Court File and Parties

Court File No.: CR-15-70000056-00AP Date: 2016-05-18 Ontario Superior Court of Justice Summary Conviction Appeal

Between: Her Majesty the Queen, Appellant – and – Courtney Gummerson, Respondent

Counsel: Luke Schwalm, for the Crown Joanne Prince, for the Respondent

Heard: April 21, 2016

Reasons for Decision [On Appeal from the Acquittals Entered by Justice F. Clements of the Ontario Court of Justice on June 1, 2015]

B. P. O’Marra, J.

Overview

[1] The respondent was charged with three fraud-related charges. The allegations related to a man cashing a stolen cheque at a Money Mart store. The critical issue at trial was identity. The respondent was acquitted. The Crown alleges that the trial judge erred by failing to consider certain material evidence, and that his reasons were insufficient.

Evidence at Trial

Evidence of Tanya Hayles

[2] Tanya Hayles is an event planner employed at a company named “A La Carte Kitchens.” The company banks with DUCA Financial Services (“DUCA Financial.”) When a cheque from the company is cashed, DUCA Financial sends a photocopy of the front and back of the cashed cheque for reconciliation purposes. The company’s accounting department noticed that a group of cheques numbered 84449 to 84500 had gone missing from the office and were being cashed at different “Money Mart” and “Cash Money” payday loan locations. The company created a list that identified five people whose names were found on the cheques but who would have no legitimate reason to possess them. One of the names on the list was Courtney Gummerson. The stolen cheques were cashed and started clearing the account on September 19, 2013.

[3] Ms. Hayles testified that she knew the missing cheques were fraudulent because they were handwritten, whereas the company’s legitimate cheques were typed. In cross-examination, a DUCA Financial document containing photocopies of the front and back of five cheques was shown to her. The five cheques were part of the series of cheques that had been taken from the company and fraudulently cashed. She agreed that they were not all handwritten, and noted that she had not seen the cheques since the company first noticed they had been taken. She knew the cheques were fraudulent because they had two signatures and the font type was different from the font the company uses. The photocopy of cheque #84493 in the amount of $786 was payable to Courtney Gummerson. The cheque was dated August 29, 2013 and had been processed at DUCA Financial Services on September 23, 2013. The back of the cheque had a stamp from Money Mart outlet #855.

Evidence of Mike Hui Tran

[4] Mr. Tran is a Money Mart Financial Services branch manager. He prepared a loss prevention report in October 2013 regarding a cheque cashed by Courtney Gummerson. Mr. Tran was working at the Money Mart located at 617 Yonge Street on September 19, 2013 between 2:00 p.m. and 10:00 p.m. A customer by the name of Courtney Gummerson attended and cashed cheque #4493. Mr. Tran witnessed Mr. Gummerson sign the cheque and then verified his information with the Money Mart computer system. The Money Mart computer system had a pre-existing file for Courtney Gummerson. When Mr. Tran obtained the cheque from Courtney Gummerson, he verified it with the computer file and noted that the picture and signature matched the person standing in front of him. In court, Mr. Tran was provided with copies of the Money Mart computer file associated with Courtney Gummerson. He identified a “personal transaction history” document associated with Courtney Gummerson and testified that the document stated that Mr. Gummerson had attended Money Mart on September 19, 2013 and cashed a cheque for $786 from A La Carte Kitchens. He knew the cheque was cashed at 617 Yonge Street because the store code written on the document was 855. That corresponded with that Money Mart location.

[5] Mr. Tran identified a second document as a “customer information printout” associated to Courtney Gummerson. That document was a printout of the computer screen that he viewed when the customer, Courtney Gummerson, was cashing the cheque on September 19, 2013. It was used to verify that the customer who identified himself as Courtney Gummerson matched the Courtney Gummerson computer file. Mr. Tran testified that the computer file indicated that that person’s name was Courtney Gummerson, with a date of birth of July 10, 1986. The file also contained Mr. Gummerson’s address, phone number and a photo of Mr. Gummerson. He testified that the picture matched the customer. The address indicated on this printout was 4100 Lawrence Avenue East, #105, Toronto.

[6] In cross-examination, Mr. Tran agreed that Mr. Gummerson had made multiple transactions with Money Mart before September 19, 2013. He testified that he had personally cashed the cheque Mr. Gummerson provided on September 19, 2013 sometime between 2:00 p.m. and 10:00 p.m. Before cashing the cheque, he had verified that the customer identifying himself as Mr. Gummerson was Courtney Gummerson according to the Money Mart computer records. He specifically verified Mr. Gummerson’s phone number, address, picture and signature.

[7] Mr. Tran identified a document referred to as the “Money Mart Customer Transaction History for Courtney Gummerson.” The top portion of that document is entitled “Identifications for Courtney Gummerson.” This section contains a column marked “I.D. Type” which lists his mother’s maiden name, health card and provincial I.D. Mr. Tran explained that the bottom portion of the document contains a snapshot of Mr. Gummerson’s transaction history with Money Mart. The third row contains the transaction in question. It is dated September 19, 2013, from store #855. It indicated a transaction in the amount of $786 involving “Gummerson, Courtney/A La Carte Kitch.”

[8] The sworn Information before the trial court referred to the accused as Courtney Dwayne Gummerson, with a date of birth of July 10, 1986 and an address of 4100 Lawrence Avenue East, #105, Scarborough, ON.

[9] Mr. Tran was not asked if he could identify the person before the court as the person he dealt with on September 19, 2013.

[10] At the close of the Crown’s case, counsel for the respondent brought a motion for a directed verdict. The trial judge denied the motion but referred to the Crown’s case as weak. Not surprisingly, the defence elected not to call any evidence.

[11] The Crown’s final submissions at trial included the following references related to the issue of identity:

• The respondent’s name appeared on the stolen cheque and was the name of the person who cashed the cheque at the Money Mart; and
• The name, date of birth and address for the respondent on the sworn Information were the same as the name, date of birth and address listed on the Money Mart records.

Reasons for Judgment at Trial

[12] The trial judge delivered brief oral reasons set out in four pages of the transcript. He found that, while there was some discrepancy, there was evidence that the stolen cheque #84493 was the same cheque cashed at Money Mart identified as cheque #4493. The portion of the transcript dealing with the issue of identification is as follows, at pp. 52 and 53:

In addition to that, Mr. Tran testified that Mr. Gummerson was a customer of Money Mart, and I think it is a fair inference to draw that this was not the first time he had seen Mr. Gummerson at his establishment. He testified that the person who appeared before him was the same person identified in his records by the name of Courtney Gummerson and that there was a photograph and it was the same person. He never identified Mr. Gummerson, the man before the court, directly as the person on September the 19th, 2013, attended before him at his office and signed a cheque and that the person before this Court was the same person in the photograph, and that his biographical information was the same as contained in his records.

I am being asked on the basis of Nikolovski to look at that photograph and make that identification. I do not know Mr. Gummerson. I have seen him very briefly here in court and while on a quick perusal of that photograph I can say there are similarities between that photograph and the man that appears before this Court, I would not, on the basis of the angle of that photograph, the colouration of that photograph, say they are identical.

We all know that eye witness identification is a difficult proposition and it is more difficult in my view to ask a trier of fact on the basis of a photograph to make the kind of identification that I am being asked to be made here.

So when I consider the totality of the evidence, that is, my concerns about the reliability of Ms. Hayles, the discrepancy between the cheque numbers that she identified and the discrepancy of the cheque that Mr. Tran identified and my concerns overarching about the identification of the man before this Court as being the same person that attended on September the 19th to sign that cheque, I am left with the following:

It likely was Mr. Gummerson but I cannot say that it was Mr. Gummerson who attended and signed that cheque beyond a reasonable doubt and accordingly he will be acquitted.

Grounds of Appeal

Misapprehension of Evidence

[13] The standard applied where an appellant advances misapprehension of evidence as a ground of appeal is stringent. The misapprehension of evidence, when advanced as a ground to impeach a final verdict, must be material, not merely peripheral to the reasoning of the trial judge. In other words, the reasons must play an essential part in the reasoning process resulting in a conviction, not just in the narrative of the judgment: see R. v. Mahmood, 2011 ONCA 693, 107 O.R. (3d) 641, at para. 48; R. v. Morrissey (1995), 22 O.R. (3d) 514; and R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at paras. 1 and 2.

[14] The sufficiency of the trial judge’s reasons must be assessed in the context of the reasons as a whole, the submissions of counsel and the evidence at trial: see R. v. R.E.M, 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 16.

[15] The task of a trial judge can be challenging where there are serious factual issues and conflicting evidence. Given the concept of reasonable doubt and the burden of proof on the Crown, it is not necessary for the court to resolve factual issues in order to acquit. However, those concepts do not relieve a trial judge from the duty to provide reasons, either for convicting or acquitting: R.E.M, at para. 10, quoting from R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 18; R. v. Kendall (2005), 75 O.R. (3d) 565 (C.A.), at paras. 50-58; and R. v. Galliani, at paras. 23-25.

[16] In R.E.M, McLachlin C.J. set out on behalf of the court the functions of a trial judge’s reasons in a criminal case. At para. 11, she wrote:

The authorities establish that reasons for judgment in a criminal trial serve three main functions:

1. Reasons tell the parties affected by the decision why the decision was made. As Lord Denning remarked, on the desirability of giving reasons, “by so doing, [the judge] gives proof that he has heard and considered the evidence and arguments that have been adduced before him on each side: and also that he has not taken extraneous considerations into account”: The Road to Justice (1955), at p. 29. In this way, they attend to the dignity interest of the accused, an interest at the heart of post - World War II jurisprudence: M. Liston, “‘Alert, alive and sensitive’: Baker, the Duty to Give Reasons, and the Ethos of Justification in Canadian Public Law”, in D. Dyzenhaus, ed., The Unity of Public Law (2004), 113, at p. 121. No less important is the function of explaining to the Crown and to the victims of crime why a conviction was or was not entered.

2. Reasons provide public accountability of the judicial decision; justice is not only done, but is seen to be done. Thus, it has been said that the main object of a judgment “is not only to do but to seem to do justice”: Lord Macmillan, “The Writing of Judgments” (1948), 26 Can. Bar Rev. 491, at p. 491.

3. Reasons permit effective appellate review. A clear articulation of the factual findings facilitates the correction of errors and enables appeal courts to discern the inferences drawn, while at the same time inhibiting appeal courts from making factual determinations “from the lifeless transcript of evidence, with the increased risk of factual error”: M. Taggart, “Should Canadian judges be legally required to give reasoned decisions in civil cases” (1983), 33 U.T.L.J. 1, at p. 7. Likewise, appellate review for an error of law will be greatly aided where the trial judge has articulated her understanding of the legal principles governing the outcome of the case. Moreover, parties and lawyers rely on reasons in order to decide whether an appeal is warranted and, if so, on what grounds. [Emphasis added.]

[17] At paras. 15-17, McLachlin C.J. set out the test for sufficient reasons:

This Court in Sheppard and subsequent cases has advocated a functional context-specific approach to the adequacy of reasons in a criminal case. The reasons must be sufficient to fulfill their functions of explaining why the accused was convicted or acquitted, providing public accountability and permitting effective appellate review.

It follows that courts of appeal considering the sufficiency of reasons should read them as a whole, in the context of the evidence, the arguments and the trial, with an appreciation of the purposes or functions for which they are delivered (see Sheppard, at paras. 46 and 50; R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.), at p. 524).

These purposes are fulfilled if the reasons, read in context, show why the judge decided as he or she did. The object is not to show how the judge arrived at his or her conclusion, in a “watch me think” fashion. It is rather to show why the judge made that decision. The decision of the Ontario Court of Appeal in Morrissey predates the decision of this Court establishing a duty to give reasons in Sheppard. But the description in Morrissey of the object of a trial judge’s reasons is apt. Doherty J.A. in Morrissey, at p. 525, puts it this way: “In giving reasons for judgment, the trial judge is attempting to tell the parties what he or she has decided and why he or she made that decision” (emphasis added). What is required is a logical connection between the “what” - the verdict - and the “why” - the basis for the verdict. The foundations of the judge's decision must be discernable, when looked at in the context of the evidence, the submissions of counsel and the history of how the trial unfolded. [Underlining added, italics in original.]

[18] Finally, at para. 35 of the decision, McLachlin C.J. summarized the law regarding the sufficiency of the trial judge’s reasons as follows:

In summary, the cases confirm:

(1) Appellate courts are to take a functional, substantive approach to sufficiency of reasons, reading them as a whole, in the context of the evidence, the arguments and the trial, with an appreciation of the purposes or functions for which they are delivered (see Sheppard, at paras. 46 and 50; Morrissey, at p. 524).

(2) The basis for the trial judge’s verdict must be “intelligible”, or capable of being made out. In other words, a logical connection between the verdict and the basis for the verdict must be apparent. A detailed description of the judge’s process in arriving at the verdict is unnecessary.

(3) In determining whether the logical connection between the verdict and the basis for the verdict is established, one looks to the evidence, the submissions of counsel and the history of the trial to determine the “live” issues as they emerged during the trial.

This summary is not exhaustive, and courts of appeal might wish to refer themselves to para. 55 of Sheppard for a more comprehensive list of the key principles.

[19] An error of law may arise where deficiencies in a trial judge’s reasons prevent meaningful appellate review of the correctness of the trial judge’s decision. An error of law also arises where the trial judge fails to appreciate or consider relevant evidence based on a misdirection concerning an applicable legal principle: Kendall, at para. 49.

Analysis

[20] The discrepancy in the evidence relating to the cheque number was referred to by the trial judge. However, that was clearly not the basis for the acquittal. Tanya Hayles referred to the cheque number as 84493. Mr. Tran referred to cheque #4493. They both referred to a cheque dated September 19, 2013 in the amount of $786 payable to Courtney Gummerson. The critical issue at trial was whether the Crown had proven beyond a reasonable doubt that it was the respondent who cashed the cheque.

[21] The trial judge addressed the issue of identification by reference to R. v. Nikolovski, [1996] 3 S.C.R. 1197. He decided the issue based solely on a comparison of the photo of Courtney Gummerson from the Money Mart records (“a quick perusal”) with the Courtney Gummerson who appeared before the court (“having seen him briefly here in court”.)

[22] The Nikolovski case involved a robbery by someone previously unknown to the victim. At trial, the victim was unable to identify the accused as the culprit after viewing a videotape of the incident. The trial judge found that the videotape was very clear and she could conclude that the accused was the robber. That verdict was reversed on appeal. A further appeal by the Crown to the Supreme Court of Canada was allowed and the conviction was restored. Proof of identity in that case depended entirely on the comparison of the person who appeared on the videotape with the accused in court.

[23] Unlike Nikolovski, the Crown’s case on identity did not rest exclusively on a comparison of a photo with the respondent as he appeared in court. There was other circumstantial evidence at trial that linked the respondent to the incident:

• The sworn Information names the respondent as Courtney Dewayne Gummerson. The Money Mart records refer to their customer as Courtney Gummerson;
• Both the sworn Information and the Money Mart records show a date of birth of July 10, 1986 for Courtney Gummerson; and
• The sworn Information contains an address of 4100 Lawrence Avenue, #105, Scarborough for Courtney Gummerson. The Money Mart records show their customer, Courtney Gummerson, lives at 4100 Lawrence Avenue East, #105, Toronto.

[24] Information contained in original court documents is admissible as an exception to the rule against hearsay evidence: see R. v. A.P. (1996), 109 C.C.C. (3d) 385 (Ont. C.A.), at pp. 389-90; and R. v. Bailey, 2014 ONSC 5477, at para. 18.

[25] The trial judge did not mention the comparison of the name, date of birth and address contained in the sworn Information and the Money Mart records. That was material evidence on the issue of identity.

[26] The trial judge did not indicate any reason to not consider the further circumstantial evidence of identity. The failure to even refer to that evidence in his reasons constitutes a misapprehension of the evidence. The reasons are also insufficient since they do not indicate what, if any, use the court made of that evidence or why the court did not consider that evidence.

Result

[27] The appeal is allowed and a new trial is ordered to be before a different judge of the Ontario Court of Justice.

B. P. O’Marra, J.

Released: May 18, 2016