Court File and Parties

COURT FILE NO.: 15-160 DATE: 2016-08-03

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – MARTY BROWNLEE Defendant

Counsel: Elizabeth Ives-Ruyter, for the Crown Don Sullivan, for the Defendant

HEARD AT PEMBROKE: June 6-9 and 13 -15, 2016

Ray, J

Reasons for Judgment

[1] The defendant faces 5 counts arising out of allegations that he broke into the complainant’s home, stole a quantity of silver bars and rounds (coins), and had the stolen property in his possession for the purpose of trafficking. The specific counts are as follows:

1. THAT he, on or about the 9th day of May, 2014, at the Township of Admaston/Bromley, in the Province of Ontario, did steal silver rounds and silver bars, the property of Don McHugh of a value exceeding five thousand dollars, contrary to Section 334 (a) of the Criminal Code of Canada; and further
2. THAT he, on or about the 9th day of May, 2014, at the Township of Admaston/Bromley, in the Province of Ontario, did break and enter a certain place to wit: a locked detached garage situated at (the McHugh residence) and did commit an indictable offence of theft contrary to Section 348(1) (b) of the Criminal Code of Canada; and further
3. THAT he, on or about the 9th day of May, 2014, at the City of Ottawa, in the Province of Ontario, did have in his possession, property to wit: silver rounds and silver bars, of a value not exceeding five thousand dollars for the purpose of trafficking, knowing that all of the property was obtained by the commission in Canada of an offence punishable by indictment, contrary to Section 355.5 (b) of the Criminal Code of Canada; and further
4. THAT he, on or about the 15 day of May, 2014, at the City of Ottawa, in the Province of Ontario, did have in his possession, property to wit: silver rounds and silver bars, of a value not exceeding five thousand dollars, for the purpose of trafficking, knowing that all of the property was obtained by the commission in Canada of an offence punishable by indictment, contrary to Section 355.5 (b) of the Criminal Code of Canada; and further
5. THAT he, on or about the 9th day of May, 2014, at the City of Ottawa, in the Province of Ontario, did have in his possession property to wit: silver rounds and silver bars of a value exceeding five thousand dollars, knowing that all of the property was obtained by the commission in Canada of an offence punishable by indictment, contrary to Section 354(1) (a) of the Criminal Code of Canada.

Crown Evidence

[2] Donald McHugh is a retired 69 year old coin collector/dealer who lives near Renfrew, Ontario. He has lived there for some 29 years, and has collected coins for about the last 10 years. Behind his house is a 60ft by 30ft building suitable for a triple garage. In the right hand portion of the building Mr. McHugh has an insulated workshop in which he repairs snowmobiles and recreational vehicles. He estimated that over the years he has had approximately one hundred different customers for snow machine repairs in his workshop. He keeps a desk in the workshop. In the corner is a large safe that at the time contained his entire coin collection estimated to be valued at $150,000.00. It included 30 to 40 Canadian, US, Australian, and British silver bars; and thousands of Canadian and US silver dollars. These were purchased from various mints. He began his collection with numismatic coins and then moved to bullion. He described the safe as about 6 ft. tall by 2 ft. deep and 2 ft. wide with shelving, and an empty weight of about 300 lbs. The safe was lockable only with a key. He said he always carried the key “on my person”, with the other 3 keys hidden in the building where “even the mice wouldn’t find them”. An electronic keypad for coded access had been disabled. Mr McHugh said that the key access was problematic. It was easy to lock, but took 10 to 15 minutes to open; and for that reason he would leave the safe unlocked if he was going into the house on an errand or staying around. During normal use he kept the safe covered with a cloth.

[3] He said he felt sure that very few people knew the existence of the safe; and listed two or three friends – including the defendant- who knew about the safe and had seen it open. Access to the workshop could be had at the time either through a garage door with opener or a “man” door to the outside, or from the workshop to the adjacent garage bay through another door. In cross-examination, he again listed the various people that he had bought or sold coins with, and at the monthly coin show he had attended at the RA Centre in Ottawa. He confirmed that since most of his contacts were on the telephone, that anyone could have discovered his address from the phone number. Many people knew he was a collector/dealer.

[4] On May 9, 2014, he had been following his normal routine. He had returned from having lunch with a friend at 2 pm, went into the workshop, opened the safe to check on a set of coins he had discussed before lunch with another friend, Mr. McLaren; and saw that several containers in the bottom of the safe were missing. He said that two suitcases, two monster boxes, and a jeweller’s leather case weighing about 200 Ibs full of coins and bars were gone. He said this represented approximately half of the contents of the safe. He had been gone for about an hour and a half. He believed that a thief would have had to take 3 or 4 trips to remove the coins because of their weight. He couldn’t say with any certainty that he had locked the safe before leaving but would have covered it with the sheet. Everything seemed to be in order when he returned, the cloth covered the safe, all doors were locked and closed, and everything seemed as it had been before he had left for lunch- except the boxes of coins and bars were missing from the safe. There was no sign of forced entry. After checking with the adjacent neighbours about whether they had seen anyone over the lunch period, he called the police. The police told him they had been unable to retrieve any fingerprints because of the type of painted surface on the safe. Nothing turned up in the immediate police investigation. He telephoned the defendant to tell him what had happened, and he said “oh”. Whereas when he told his friend Mr. McLaren, he chatted and came over to the house. He said the defendant came to his house the following day and paid him $900 that he had previously owed him for the purchase of a rifle.

[5] On that day, May 9, 2014 he had followed his normal routine. He rose about 5.30 am, had breakfast and read the paper, and then went out to his workshop about 7 am. Shortly afterwards the defendant arrived to visit and to borrow a tool. He left about 9:30 am. The safe was not open while he was there.

[6] However, he could not remember if the safe had been open during his previous visits when the defendant would drop in to visit and chat two or three mornings a week. They rarely discussed coins even though the defendant had become a coin collector in the previous year or two. For the most part they had coffee, discussed public affairs, news of the day, and general gossip.

[7] After the defendant left, Mr. McHugh went back into the house. Another friend, Mr. McLaren arrived to look at some coins. They went to the workshop and Mr. McHugh opened the safe and showed him the coins he was interested in. After he left, Mr. McHugh left around 12:30 for a friends for lunch and to run some errands. He locked the door to the workshop and had the key in his pocket. Ms. McHugh was working that day.

[8] The day following the loss, Mr. McHugh said he discovered that one of the three garage door openers was missing from its usual place on a shelf in the workshop above the desk in plain view.

[9] Mr. McHugh produced a listing of the various coins, prepared at the request of the police dated September 2014. He did not have an inventory or ongoing listing of the contents of the safe; and neither did he have receipts or proofs of purchase. He said that his coins and bars were distinctive in that they were all clean; and that he had spent considerable effort keeping them shiny. The silver bars had no distinctive markings.

[10] He said that from what he had seen the defendant’s coins were grubby. He said the defendant did not do much buying or selling, and did not have much of a collection. He said he believed that the defendant had about 500 coins in a binder that belonged to his wife. He said that would have been a thousandth of the size of his own collection. Mr. McHugh said he did not know if the defendant knew of the problem unlocking the safe with the key, and that he frequently left it open if he was staying around. He confirmed that he had loaned the defendant his tools from time to time. He did not tell the defendant he was leaving for lunch that day but believed the defendant would have been aware of his routine. He said that of the coins that were stolen, the defendant did not have any ‘majestic’ or other silver bars - or Olympic coins. However, he could not remember when he had last seen the defendant’s collection prior to the theft. In cross-examination he estimated that he would have had at the time hundreds of thousands of purchase transactions, but not much in the way of sales. He said he remembered the defendant had several silver maple dollars with antelope’s, and he had bought three of them. In total, he had bought about $1,000 of silver dollars and one-ounce bars from the defendant over the previous 6-month period.

[11] In the weeks and months after the theft, he did research from time to time to try to locate his coins. He based his search on clean looking coins for the years that he had in his collection. He told of speaking to Eddy, an Ottawa dealer at Cointalk about his theft, and who called him back several days later to say that he believed he had bought similar coins. On June 10, Mr. McHugh told detective Burns he thought he had seen his coins on eBay. On June 13 he made a similar report concerning a person in Montreal, and August 16 reported an identical type of posting on kijiji. On September 29, 2014 he attended with Detective Burns and reviewed his listing of September 25, 2014; and in October he called and reported his discussion with Eddy. In January, 2015, he met with Detective Burns and completed a full written statement of eight pages.

[12] Mr. McHugh was recalled to give reply evidence for the Crown. He recalled that he had made two purchases from the defendant; one was cash and the other by cheque. He identified the $504 cheque as being in his handwriting but seemed mystified at the May 20, 2014 date on the cheque that post-dated the theft. He knew he had had no contact with the defendant after May 10, 2014.

[13] Barbara McHugh, the wife of the complainant is 61 year old and was at work at Walmart at the time of the robbery. The day of the robbery was her first full day at work after having been off for several weeks following surgery and a gradual return to work. She had left the house that day at 7 am, and returned at 3 pm. When she got home, she was greeted by her husband who was in a bad state and could barely speak because of the loss of his coins. She went into the workshop and saw that the entire bottom part of the safe had been removed. She described the missing items as: 2 silver suit cases, 2 monster boxes, 1 jeweller’s blue case, and an envelope belonging to her sister containing $2,000. She went with her husband to speak to the neighbour Bilmer who reported that he had seen Mr. McLarens car as well as the defendant’s car earlier that day. Later, around 4:00 or 4:30 pm the defendant arrived with coffee for them. They talked about the robbery. He was driving a black jeep. The next day when he came, he was driving a white truck.

[14] She did not have a lot to do with the coin collection other than to help him clean the bars. She said she was generally familiar with the contents of the safe, but would not have known what had been taken, beyond being familiar with the cases themselves. She confirmed the names of 6 friends or acquaintances of her husband who would have dealings with the coins from time to time. She said she was familiar in general with the various people who would come to the workshop to get their snow machines fixed.

[15] She had come to know the defendant when he would bring his snowmobile in for repairs. Occasionally they would snowmobile together. His frequent visits would be to the house and to the workshop. In the last week or two before the robbery, he was at the house every day, and sometimes 2 to 3 times a day. She found it unusual. The defendant would chat with her. He would sometimes come to visit her husband but would stay to chat with her if he was not there. She said she never saw him with the garage door opener, and never loaned it to him. She said she saw the garage door opener in its usual place after May 9, 2014. She recalled an occasion six to 12 months before the robbery when her husband had asked that she give the defendant the key to the workshop so he could borrow a tool, she gave him the key when he arrived, and he returned the key to her in a minute- as soon as he got the tool. She had never loaned the key to anyone else. She recalled an occasion when the defendant brought a coin collection over for her husband to look at. She said they were silver dollar coins in dirty musty binders and belonged to his wife.

[16] She recalled that the defendant had asked her several times when she was going to return to work. She had told him as she returned part time, and then that she was returning to work full time that day, May 9, 2014.

[17] Russell Sparks owns Ottawa Gold Buyer that in May 2014 had an outlet in the Westgate Mall in Ottawa. The company buys and sells precious metals: gold, silver, and platinum. When buying, they base the value on the value of the metal from a spot price available online rather than the value of the coins as coins. He said he had been approached by the police to search his records. He produced an invoice/receipt for 75 silver maples, 10 oz. bar, and a one kg silver bar for which the defendant had been given a cheque in the amount of $2,385.73. The defendant had been identified with two pieces of photo ID. The invoice was dated May 9, 2014 at 2:56 pm. In cross-examination he said that there would likely be millions of silver maples in circulation.

[18] Mark Yarmal has been with the OPP for 9 years following 13 years with the Hamilton police. He received a call to attend (Mr. McHugh’s address) on May 9, arrived in the afternoon and left around 5:20 pm after being there for about an hour. He interviewed Mr. McHugh, walked the premises and spoke to the neighbour. He viewed the safe, and determined that there were no signs of forced entry. He was told that the value of the missing coins and bars was in excess of $50,000. The defendant was there; and told Cst. Yarmal that he had been telephoned by Mr. McHugh around 3 pm and told of the robbery. He said that he had been in Kanata when he received the call. Cst. Yarmal told Mr. McHugh that he would have the OPP Identification Unit attend, and not to touch anything until after they had done their work. That was his last involvement.

[19] Michael Hartwick has been with the Renfrew OPP detachment for 13 years. He had been assigned May 30, 2014 to assist Det. Burns, the lead officer, and had met with her that day. He also attended (Mr. McHugh’s address) and spoke to Ms. McHugh. Mr. McHugh was not there at the time. She gave him an eBay listing that they thought looked like his coins and bars.

[20] On June 3, 2014, Cst. Hartwick met with the defendant who had been asked to come in to the detachment for questioning. He questioned the defendant at some length. The defendant produced some receipts to account for his whereabouts. He was not accused of the offence during the interview, and had not been cautioned. The interview was played in court with the DVD and statement marked as exhibits and entered into evidence. The defendant waived the need for a voir dire. On September 29, 2014 he met with Mr. and Ms. McHugh. In cross-examination, he said that during May 2014 there had been construction work on Highway 417 that had caused traffic slowdowns from time to time.

[21] George Batteh is a partner with his cousin Eddy (Aidid) El-Kouri in Cointalk Inc. an Ottawa company they started in 2014 to buy and sell numismatics, coins and paper money. It operates solely online with a website and a phone number. The website is linked to an eBay store so that customers can make their purchases and pay through PAYPAL. He said he first met Don McHugh about 3 to 4 years ago; and that he had purchased some proof sets of coins as well some coins through eBay.

[22] He said he also had some dealings with the defendant, who he first met a few months before May-June, 2014, when he bought some coins from the defendant; and the second time was in the summer of 2014 when he bought some more coins. He paid the defendant a total of some $4,000 to $5,000. He never bought silver bars, only coins. The first purchase was silver dollars, US half dollars, Olympic coins and one ounce rounds (coins) with different animals. Notably, he said, was that they were all polished unlike the vast majority which only have two or three polished coins and the rest are left natural. The purchase also included Canadian Mint double dollar sets and commemorative coins, but no proof sets. The defendant said nothing about his coins other than they had come from a man in Syracuse. The defendant never purchased any coins from Mr. Batteh. He said he did not hear from the defendant after the defendant called him one day to ask if he had heard from the police. Mr. Batteh said to the defendant – Why don’t you just tell the police that you got them from a guy in Syracuse?

[23] Mr. Batteh said that he, his partner and Mr. McHugh had a conference call while Mr. McHugh was talking about his theft. Mr. McHugh mentioned the defendant by name so Mr. Batteh called the police. He said he met with Detective Burns and afterwards told the defendant he had been interviewed by the police. In cross-examination he confirmed there was nothing unique about any of the coins he bought from the defendant; and there are literally millions of the silver dollars in circulation. He also confirmed that he had purchased sealed collector sets from the defendant; and that the coins from the defendant all looked the same as others that are on the market, without unique markings. He also confirmed that Mr. McHugh had told him that the theft had occurred while he was on vacation. He also said there were countless firms such as his in Ottawa, Toronto, and Montreal as well as the rest of Canada and North America.

[24] Eddy (Adid) El-Khoury is the partner in Cointalk Inc., and Mr. Batteh’s cousin. He said the first purchase he made from Mr. McHugh was in September, but could not remember the year. They had met in Kanata for Mr. McHugh to pick up a purchase in order to save on the postage. It was a brief encounter. The second time, Mr. McHugh purchased some US half dollars; and those changed hands October 22, 2014. By then he had spoken on the telephone several times, had learned of the theft, and had heard mention of the defendant by name. Mr. McHugh had asked him to wait to call the police but he telephoned Detective Burns the same day. He said he first encountered the defendant when his partner had a purchase from the defendant but had turned it over to Mr. El-Khoury to complete the deal. Mr. El-Khoury said he met the defendant at Treats in Ottawa in May, 2014 for two tubes of coins in a cardboard box. Most of them were polished. Within two weeks Mr. Batteh had a further purchase from the defendant. A third involved both Mr. El-Khoury and Mr. Batteh. A fourth purchase was for US half dollars that were in mint condition and very clean. Mr. Batteh handled the fifth transaction. The purchase price was $500.The defendant had been driving a white pick-up. Over the next period of time there were four further transactions that he alternated or shared with Mr. Batteh. The purchases also included moose, and antelope silver maples but he could not remember the others or the quantity. The total for all the purchases from the defendant was between $4500 and $5000. The defendant had told him that the coins were from a man in Syracuse. In cross-examination he confirmed that there were millions of the type of coin he purchased from the defendant and none had distinguishing marks or were unusual. He confirmed that while many of the coins were polished, most collections have two or three polished coins. He noted that polishing a coin actually reduces it value.

[25] Michael Wank-Kan is a customer representative at Ottawa Gold, and identified the invoice regarding his purchase from the defendant on May 9, 2014 at 2:56 pm which he had completed. He had no independent recollection of meeting the defendant or of the transaction, other than as described in the invoice. He did remember showing Detective Burns a ‘first majestic’ that had a milky look. He said these were not uncommon, but less common than the other bars, and could not remember the number of these types of silver bars he had purchased. He had no recollection of who he purchased the milky coloured ‘first majestic’ bar from.

[26] Vicenzo Demarinis said he has known the defendant for about 6 years through his neighbour, Poitras, the owner of the security firm the defendant worked for. He only saw the defendant when visiting his neighbour, and had no independent personal or business relationship with him. He said he received a call from the defendant to meet him at a jobsite. He thought the call was likely for Mr. Demarinis to quote on a landscaping job. He met with the defendant on May 25 or 26, 2014. They sat in the defendant’s white Dodge truck and the defendant pulled out first a silver coin and then a silver bar the size of an I-Phone and asked if he would be interested in buying them. He said no, he had no interest in coins or silver. He thought the defendant had wanted $80 to $100 for the coin.

[27] Jodie Burns is a Detective Constable, and has been with the Arnprior-Renfrew OPP detachments for 10 years. Before that she had been with the Dufferin County OPP detachment. She was a detective with the crime unit in May 2014. She said she was first tasked in mid-May as lead investigator with this particular case, and after reviewing the previous officers’ notes; she spoke to Mr. McHugh on May 29, and visited his house and workshop May 30, 2014. She described the steps she took from time to time since then including following up on various possible leads that she was given by Mr. McHugh whenever he saw what looked like his coins or bars being advertised for sale; for example, eBay and kijiji, and interviewed those involved. She also followed up with interviews of the various individuals that Mr. McHugh told her about as frequent visitors. She said that in early August she spoke to Mr. Poitras, the defendant’s previous partner to check the defendant’s alibi that he had been there after the theft had occurred; and learned that his neighbour Vincenzo Demarinis had been approached by the defendant to buy coins and a bar. She interviewed Mr. Demarinis, and started the process for getting a production order for the defendant’s phone logs. She said she spoke to the defendant’s wife about her grandfather’s coin collection. She interviewed the defendant August 13, 2014 with follow up questions after her other interviews. The defendant denied having tried to sell coins and bars from his truck; and denied taking the coins or selling any coins after the theft. He said that what she has been told were lies from Mr. Poitras with whom he was having a business dispute. September 9, 2014 she got the production order for the defendant’s cell records and September 24 received the records.

[28] From the cell records she learned that the defendant had called Mr McHugh’s neighbour, Bilmer at 10:18 am on the day of the theft but the call had not been answered. She also learned that at 2:19 pm on the day of the theft he had called Ottawa Gold in Ottawa. He had also called Ottawa Bullion at 2:14 pm but the call went to voicemail. She went to the offices of Ottawa Gold and interviewed Mr. Sparks and Mr. Wank-Ken. She said she formed the grounds to charge the defendant following that meeting. She followed up with interviews over the following weeks with Mr. El-Khoury, Mr. Batteh, Mr. Spark and Mr. Wank-Kan.

[29] The phone records in conjunction with the cell towers showed that on May 9, 2014,

a. The defendant called Mr. Bilmer at 10:18 am for 20 seconds, but did not speak to him. The call went through Raglan St, Renfrew tower E1076. b. Then, from Renfrew he called Mr. McHugh at his home at 11:38 am for 49 seconds, also through the Raglan St, Renfrew tower E1076. c. At 11:39 am the defendant called the Pembroke hospital, where his wife works – call lasted 37 seconds. Bounced off Renfrew Tower E0235, 2 Stewart St. North, Renfrew d. At 12:21 the defendant called the Pembroke hospital again. Call lasted 32 seconds. Bounced off Renfrew Tower E1076, 340 Raglan St. South, Renfrew e. At 1:13 pm the defendant called the Pembroke Hospital and the call lasted 36 seconds. Bounced off Tower E02963, 12 Pine Grove Rd, Arnprior. f. At 1:14 pm he called Rene Poitras, the call lasted 105 seconds. Bounced off Marshall bay tower 5751, Carp Rd, Carp g. At 1:33 pm he called the Pembroke Hospital, the call lasted 44 seconds. The call bounced off the West Carleton site tower ON0657, 355 William Mooney Rd, West Carleton. h. At 1:35 he called Green Tech Ag and Turf Inc. Call lasted 124 seconds. Beginning of call bounced off the West Carleton site ON0657, and call ended at ON1325, 7303 Campeau Dr., Kanata. i. At 2:14 pm he called 613-887-8803 Ottawa Bullion, call lasted 43 seconds. The call bounced off tower site ON3915, Ottawa-Carling/Fisher (ROH) 1145 Carling Ave. j. At 2:19 pm he called 613 979 4653 Ottawa Gold 1309 Carling Avenue – Westgate shopping Centre. Call lasted 136 seconds. The call bounced off tower site ON0566 located at 1688 Carling Avenue. k. At 2:24 pm the defendant called the Pembroke hospital. Call lasted 122 seconds. Call bounced off Tower Site ON0566, 1688 Carling Avenue and ON3915 1145 Caring Avenue. l. At 3:22 pm the defendant received a call from Don McHugh. Call lasted 274 seconds. Call bounced off tower ON0151, 960 Terron Rd. Kanata and ON1325, 7303 Campeau Dr Kanata. m. At 3:51 pm Marty received a call from his wife’s cell phone 613-614-7178, call lasted 2036 seconds. Call bounced off tower E0260 2121, Shanna Rd. Ottawa. Call ended at tower E0235, located at 2 Stewart St., North Renfrew.

[30] The records showed the defendant had not called Ottawa Gold or Ottawa Bullion between May 1 and May 9, 2014

[31] The phone records showed that over the next several days and weeks:

a. The defendant called Mr. Demarinis 3 times on May 15; b. He called Mr. El-Khoury and Mr. Batteh 13 times on May 20 – no calls had been placed to these numbers by the defendant between May 1 and May 20; c. He called Mr. Batteh 9 times on May 21, 12 times on May 22, and made 7 calls to him on May 26 and 27; d. He received 1 call from Mr. Batteh on May 28, e. He made 1 call to Mr. Batteh on June 2; f. He made 1 call to Mr. Batteh on June 4; g. He made 2 attempts to reach Mr. El-Khoury on June 6 and had one actual call with Mr. Batteh on June 6; h. He had 1 call with Mr. Batteh on June 9; i. He had 1 call with Mr. Batteh on June 23; j. He had 1 call to Mr. Batteh on June 27, and 2 calls on June 30; k. He had 1 call to Mr. Batteh on July 7; and Mr. Batteh called him 3 times July 8, with a long call by the defendant on July 9; l. On July 10 the defendant called Mr. El-Khoury; and called Mr. Batteh twice that day; m. He called Mr. Batteh on July 17, and Mr. Batteh called him back. n. He called Mr. Batteh on July 28, and again August 1. o. He spoke to Mr. Batteh 3 times on August 12, and once on August 13; p. Mr. Batteh called him August 15 and left a message; q. He called Mr. Batteh once on August 18, and on August 19 he called Mr. Batteh 3 times with Mr. Batteh leaving a voicemail. r. There were no further calls to any of the witnesses up to September 1, 2014.

[32] Detective Burns described the receipts the defendant had given her following his interview with Cst. Yarmal and confirmed that one was a gas receipt from Terry Fox Drive in Kanata at 3:40 pm, and the other was an ATM receipt at the same address at 1:39 pm on May 9, 2014.

[33] Detective Burns said that she had very frequently driven the route from Carp to Arnprior, and Renfrew. She had driven from Renfrew to Mr. McHugh’s residence, and had driven to Terry Fox drive and to Ottawa Gold in Ottawa. She estimated some of these driving times based on her years of experience, and had notes of her driving times to specific destinations such as Ottawa Gold and Mr. McHugh’s residence during her investigation. Her estimate of the driving time from Mr. McHugh’s residence to Ottawa Gold was 81 minutes via Highway 417; and between 86 and 91 minutes to Ottawa Gold via Burnstown. These were all timed during the summer months. She said that the only roadwork underway at the time was on Highway 17 between Arnprior and Renfrew, and would not affect anyone driving via the Burnstown route.

Defence Evidence

[34] The defendant is 42 years of age and has no criminal record. He denied stealing anything. He said that he works in the electronic security field installing various types of security systems, and has worked on installations at prisons, courthouses, OPP offices, Parliament Hill, the PMO/PCO, and Transport Canada. He was taken in detail through the various companies that he worked for including his own company. He said that his work with Mr. Poitras did not fall off until July, 2014 when Mr. Poitras stopped showing up for work. The defendant has a ‘secret’ security classification, level 2 for the security installations he works on.

[35] While the spring and summer of 2014 was not stressful for him, he agreed his main partner Poitras was not around, and there had been a trickle off of business. He said that the business goes through peaks and valleys – and they were in a valley. He said that during that spring there were days that he did not work, days that he worked at home and days that he worked at Poitras’ place.

[36] He said he was fully aware in May of 2014 of cell phone technology and the ability of the police to track a person’s whereabouts using cell phone and cell tower technology. He admitted that during his first police interview in June, 2014 he was warned that cell phones are traceable. He described his movements on May 9, 2014, which included looking to sell silver that he carried with him in his truck. He said that in the afternoon of May 9, he went to Ottawa Gold and sold silver coins. He said he did not think it looked suspicious since he did not know at the time about the theft. He recalled having produced his ID at Ottawa Gold, and was given a cheque that he deposited into his bank account.

[37] Through the summer, he said he had a couple of dozen calls to Cointalk that were negotiation calls. All of these calls took place after Mr. McHugh’s theft. While he was aware that there were a number of other outlets where he could buy coins, he only dealt with Cointalk and Ottawa Gold. He admitted that Cointalk was a cash business that did not require proof of ID, and that there would not be the same record of sales as had been the case with his single transaction with Ottawa Gold. He thought the coins he sold to Cointalk might have included some of his wife’s coins as well. There were 4 or 5 sales totalling between $4,000 and $5,000. He denied that any of Mr. McHugh’s coins were included in the sales to Cointalk. The defendant admitted that he had never dealt with Cointalk or Ottawa Gold before the day of the theft. In fact, he said he had not tried to sell any of his coins to anyone, except Mr. McHugh prior to May 9, 2014.

[38] He said that on May 9 he went to Mr. McHugh’s place in the morning after dropping his child at day-care. He said he and Mr. McHugh talked about a number of things including that Mr. McHugh owed him money for coins he had purchased, a stovepipe brush, and a hose for a pressure washer that Mr McHugh was looking for. He said he arrived at Mr. McHugh’s residence about 8 am and left between 10 and 11 am.

[39] In cross-examination he agreed, when shown the phone records, that he had telephoned the neighbour, Bilmer at 10:18 am, admitted that he had never telephoned him before, and had not telephoned him since. He said he did not remember telephoning him and hanging up. He said he could not recall why he had telephoned him, then when pressed said that he now remembered from the police photos introduced at trial that he had telephoned Mr. Bilmer to enquire about a boat for sale that was shown in the police photo. He did not agree that by telephoning Mr. Bilmer as he did, that he then knew that M.r Bilmer was not at home. He agreed that he knew that day, that Ms McHugh was working all day and would not be home. The defendant denied in cross-examination that Mr. McHugh was a creature of habit and stuck to a routine, but admitted that he knew Mr. McHugh would leave at some point for lunch each day, and that he, Mr. McHugh, would at some point each day go to his friend’s automotive garage to join him for lunch.

[40] After leaving the McHugh residence, he said he went to Starset Jewellers in Renfrew, and then to Home Hardware to look for some wooden house trim. Then he left for Ottawa. In cross-examination the defendant was taken through the call logs and had put to him that between 12:21 and 1:12 pm- a period of 51 minutes- he was between two towers in Renfrew and had the opportunity to drive to the McHugh residence, open the safe, remove the contents, place it in his vehicle, and return. The defendant answered that he had no idea – and ‘I was not there’. He agreed that within three hours of this time window he had been to Ottawa Gold in Ottawa and had received a cheque for over $2,000.

[41] He said he had no specific memory of the route he took after leaving Renfrew for Ottawa, but that he went via the Burnstown, White Lake, and Arnprior route to avoid traffic on Highway 17. He said he took Highway 417 to Kanata from Arnprior and went to an ATM at the Canadian Tire gas bar on Terry Fox Drive, and withdrew $100 to get some French fries. He gave the ATM receipt to Cst. Hartwick during his June interview. He denied having obtained and kept the ATM receipt solely to prove his whereabouts at the time. He said that on the way to Ottawa, he talked on the phone, went to a job site; and then went to Ottawa Gold and sold some of his silver. He believed he had been in Ottawa for a couple of hours in total. He had also stopped at Ottawa Fasteners and left Ottawa at about 3:30 pm. He said he received a telephone call from Mr. McHugh who told him about the theft earlier in the day, and then he stopped for gas. He said he had not filled with gas earlier when he stopped at the Canadian Tire ATM because his gas light had not come on – and he only stops for gas after his gas light comes on. He gave the gas receipt to Cst. Hartwick. He said that when he got home to Renfrew he told his wife and family about the McHugh break-in, and that he was going there to speak to him. He drove in his wife’s vehicle because her car was more accessible. He said he arrived at the McHugh residence about 4 to 4:30 pm and spoke to Cst. Yarmal who was still there. He said he stayed 35 to 40 minutes. He denied having been at the McHugh residence between 10:30 am and his arrival at 4 to 4:30 pm.

[42] He said he went back to the McHugh residence the next day and learned the OPP Ident truck had already been there. He said that Mr. McHugh gave him a cheque in the amount of $504.00 post-dated to May 20, 2014 for payment of some coins he had purchased from the defendant a couple of months earlier. He denied getting anything else from Mr McHugh. He denied having purchased a rifle from Mr. McHugh and giving him $900 for it.

[43] The defendant said he thought he had a good relationship with Mr. McHugh, had sought his advice from time to time regarding coins; and often the safe was open when he visited him. He had borrowed tools from Mr. McHugh when there was no one home, said it was common to go there and find it unlocked, and while there could have checked to see if the safe was open. However, he said, he had no idea that there was a problem with the key and the safe.

[44] He said Mr McHugh had purchased coins from him on two occasions, after having borrowed binders from him and offering to clean some of his coins. He said the sales to Mr McHugh included a couple of silver maples, duplicate silver dollars, and a couple of proof sets. He said that he had the coins because Mr. McHugh had got him into it; and that he was getting coins wherever he could get a deal. He said he was not into it as a collector but to make money. He said his wife’s grandfather had left her some coins but couldn’t be sure when she received them. The collection included Canadian and US silver dollars, and half dollars. Some were in containers and were from 1936 to the 1970’s. He said there were a total of four binders of mixed denominations that he and Mr. McHugh had sorted out in proper order. Later in questioning he said that Mr. McHugh had never seen all the binders in his wife’s collection. He thought his wife’s collection was worth $2500. He said he had added to the collection starting in 2001, and had sold off some doubles between January and May of 2014. These consisted of two amounts – both to Mr. McHugh - $600 and $504. They were his only sales. He said these sales were from a mixture of both his wife’s and his collection. He said that his collection as of May, 2014 included silver maple dollars, silver bars, silver maples with wildlife, a range of commemorative coins, and a 1 kg silver bar. He purchased the bar in October, 2013 in Syracuse, NY. He also had a number of proof sets but did not keep track of them. He kept them all in a cupboard in his garage. He thought the collection was worth $12,000-$13,000 in May, 2014. He said he had never shown Mr. McHugh his collection. He said that he had coins that were similar to those of Mr. McHugh. In cross-examination, he admitted to saying in his police interview that – he did not have coins that would match Don’s. But said that he had been thinking of the Olympic coins that he sold to Mr. McHugh.

[45] He said he had been to Syracuse to a coin sale at a booth; and had made a large purchase from a person who was standing nearby. These coins included US and Canadian silver dollars and half dollars. He said he paid $1300 US for what he believed was valued at $2,000. He said that on occasion he would go to a pawn shop to look out for coins. He said he had also bought coins between 2004 and 2012, from workers at the Royal Canadian Mint who got them at discounted prices. These were special coins such as Olympic coins and proof sets. He said that 90% of the coins he got from the Mint were through Martin Sevigny. He recalled going to Belleville with Mr. McHugh to buy coins. He said that in April, 2014, he was in Florida and called Mr. McHugh on April 25 for advice concerning a coin set. He also said that he had left some coins with Regan Martin to look after for him. He said that Tim Love had been with him when he had bought and sold coins.

[46] The defendant was cross-examined about the questioning by Cst. Hartwick June 3, 2014. He admitted that he failed to say that he had gone to Ottawa Gold, when he was asked where he had gone in Ottawa the day of the theft. He admitted he knew the questioning was about coins, but never once mentioned Ottawa Gold or his trying to sell coins to Mr. Demarinis, even though he volunteered that he had an ATM receipt to show where he was on May 9, the day of the theft. He said it was his mistake in not mentioning Ottawa Gold.

[47] The defendant said that he attended August 13, 2014 for an interview with Detective Burns, after learning from his wife that Detective Burns had told her she had new evidence proving that the defendant had stolen the coins. He said he called detective Burns and went to speak to her because he wanted to get it all cleared up. He said the interview started ok, but then ‘ went sideways so quickly, I didn’t want to get thrown under the bus, and maybe I should have said something about Ottawa Gold and sales to George and Eddie ’ (of Cointalk).

[48] During the questioning that day, he was asked to “go through the day (May 9)”, and again he admitted failing to mention his trip to Ottawa Gold. He said he didn’t say anything because it was ‘his’ silver that he was selling. During repeated questioning of his whereabouts, he was vague in his responses, and then said, “Looking back, I should have said something”. When he was asked again during the questioning if he had tried to sell any coins, again he failed to mention Ottawa Gold, and said, “just to people that I know”. He said he was “probably scrambling”, and that he was not forthcoming because he had felt he was being accused. Repeatedly, he was asked by Detective Burns about coins and selling coins, which he admitted he had denied and said “No- I have zero interest in coins”, or said, “I don’t remember”. When asked further about how much buying or selling he had done, he responded “nope”, when he admitted he had by the time of that interview sold between $4,000 and $5,000 to Eddie or George at Cointalk. When he was further questioned at the time about his use of kijiji or eBay to sell coins, he again failed to mention Ottawa Gold or Cointalk.

[49] Detective Burns asked the defendant if anyone was going to come forward and say that he had tried to sell them coins. He deflected her question and failed to tell her about Mr. Demarinis.

[50] [51] [52] [53] [54] [55] [56] [57] [58]

[59] When specifically asked in September during questioning by detective Burns, the defendant explained that he had known Mr. Demarinis through Rene Poitras, and had telephoned him because he wanted some information about a driveway sealer. He said that when he met with Mr. Demarinis in Kanata on May 15, 2014, Mr. Demarinis got into his truck and a shiny ‘silver maple’ coin was on the console where he had put it. He said Mr. Demarinis asked him about the coin, so he said he asked Mr. Demarinis if he was interested in buying it. He said he could not remember if he had quoted a price but that the coins he had with him were worth $70 to $100 each.

[60] Under cross-examination, the defendant said that Mr. Demarinis had said he would get back to him, said he didn’t have any money on him, and asked if he had any other coins. He denied showing Mr. Demarinis a bar because he did not have one with him.

[61] [62] Mr. Demarinis did not call him back. He said the coins he had with him were not Mr. McHugh’s. The defendant agreed that if there had been a sale, there would not have been a paper trail. He also agreed that he neither talked to Mr. Demarinis about coins nor tried to sell him coins prior to May 9, 2014. The defendant said in his evidence that after Mr. Demarinis got into his truck that it was during a drive to a grocery store that the conversation took place. The Crown raised a Brown v Dunn issue since the defendant had not put this different version to Mr. Demarinis in cross-examination. The defendant agreed to have that portion of the defendant’s evidence “struck”, which I took to mean that I was to give it no weight.

[63] The defendant said that following the June 3 and August 13, 2014 police interviews he continued to make sales to Mr. Batteh and Mr. El-Khoury of Cointalk; and said he was not concerned at all about these sales because they were from his own collection. Further, he said that he never sold coins outside of the area.

[64] Randy Kubusheskie lives in Braeside on the outskirts of Arnprior, and is employed as a site superintendent by Cavanagh Construction. He said he was responsible for the highway widening/bridge/overpass project on Highway 17/417. He said the project started 2009 and was completed in 2012. The project extended to Campbell Drive just west of Arnprior. The next project for the widening and bridge/overpass construction as far as Scheel Drive, west of Campbell Drive started in 2014 but was done by another company. He could not say what if any delays were caused to traffic by the current project. He did say that Pinegrove Road is right at Arnprior.

[65] Martin Sevigny lives in Gatineau and is employed with the Royal Canadian Mint. He has worked there since September, 2004. He said he has known the defendant since 2005 through the defendant’s work on contracts with the Mint. He said that every year he is given a numismatic proof set by the Mint. He is not a collector, and has sold his own plus those of his girlfriend and a co-worker to the defendant, for a total of 12 numismatic proof sets over the years. The last time was 2013.

[66] Corey Jackson is involved with his wife in a Macs Milk convenience store in Renfrew. He said he has known the defendant for the past 4 to 5 years. He recalled an incident in the early summer of 2014 when the defendant had come into the store. While there Mr McHugh’s daughter came in and began berating and swearing at the defendant while accusing him of being a thief and a liar.

[67] Regan Martin is a self-employed commercial general contractor and has known the defendant for the past 10 years. He said he had subcontracted security work to the defendant over the years to government and private projects. At the time he was with Poitras Electric at several sites in 2014. He said he has had no dealings with the defendant for close to 2 years. He was aware through discussions with the defendant that he had been collecting and trading in coins.

[68] Timothy Love is employed with Extravision Technologies and is responsible for business development and has been regional manager since the fall of 2013. He said he has known the defendant since 2010 through contracting work to him, and knew of his project management and security work. He said he was aware of the defendant’s ‘passion for coins’ and has seen him on several occasions with rolls of coins, rolls of silver coins, and a silver bar the size of a cell-phone. He said he had no idea where the defendant had bought them and had never been with him when he bought any coins. He said that the defendant had his own company Redpath Technologies and that he had frequent dealings with him in early 2014 where he used him as a subcontractor in BC. He had very limited dealings with RPE and no memory of dealing with Poitras.

[69] Jason MacNabb is employed with RBC and brought a photocopy of a cheque by Mr. McHugh dated May 20, 2014 in the amount of $540.00 which showed it had been cashed on May 21, 2014 and deposited into the defendant’s account.

Admissions

[70] The parties admitted without the need for further proof:

a. The jurisdiction of the court, b. The dates stated in the counts are correct, c. Mr. El-Khoury and Mr. Batteh identified the defendant from a photo line-up. d. The value of Mr. McHugh’s coin collection was in the tens of thousands of dollars

Positions of the Parties

[71] The defendant’s position is that a great number of people knew Mr. McHugh was a coin collector; that he had a hundred or more people through his garage when they were having their snowmobiles fixed, and were in the same room where he kept his safe. He had bought and sold coins over the phone so that with a phone number, his address would have been discoverable, even if he had tried to keep his address confidential. He says the safe was not hidden, and would have easily been seen by anyone in the garage. If the safe was locked, then it needed 15 minutes to open it, and according to Mr. McHugh, the safe was locked unless he was in around the house but that perhaps he had left the safe unlocked that day. Mr. McHugh said he had not opened the safe when the defendant was there, but did open it for Mr. MacLaren who was there later. He says that Mr. McHugh discovered the day after the theft that the garage door opener had been missing but never notified the police. In fact, he never mentioned it at all until he gave his evidence.

[72] The defendant contends that by going to Ottawa Gold the day of the theft where he knew he would have to give ID and receive a cheque, was in fact evidence of his innocence. He contends the same argument applied to the defendant’s dealings over the summer with Cointalk, since the defendant knew that his cell phone was traceable. He argues that the defendant should have mentioned this to the police, and he did not think it through. He contends that the only reason the defendant travelled to Ottawa Gold on May 9 to sell his coins was because Mr. McHugh had not paid him for the previous sale and he wanted to sell his coins. He did concede that the interview with Detective Burns was unfavourable to him, but that it should be weighed with the overall evidence. He agreed that the defendant was a logical person of interest but the police had done an inadequate investigation in following up with the leads that Mr. McHugh had given them. Finally, he argues that based on the call logs it was impossible for the defendant to have driven to the McHugh residence, loaded the coins with 3 to 4 trips between 12.30 pm when Mr. McHugh left home, and 1:15 pm when the defendant picked up the Carp cell phone tower. He says that on the reasonable doubt standard, he must be found not guilty.

[73] The Crown’s position is that the defendant had ready access to Mr. McHugh’s house and workshop, had been there when no one else was home at least once by his own admission, and at other times; and that on May 9 after calling the neighbour to confirm he was not home, drove to Mr. McHugh’s just outside Renfrew in his pick-up truck between 12:25 and 12:30, backed it up to the garage, went inside and saw that the safe was unlocked, loaded up the truck and left for Ottawa. He had an ATM receipt from Terry Fox Drive, Kanata at 1.39 pm. The last record was his call to Mr. Bilmer at 10:18 am to see if he was home – creating a gap of 3 hours and 20 minutes that was unaccounted for by the defendant.

[74] She contends that based on the cell towers, phone logs, and Detective Burns’ estimated driving times, the defendant had a window of 54 minutes to complete the theft, and that included 42 minutes of maximum driving time to Arnprior from Renfrew via the McHugh residence.

[75] She contends the defendant had the motive, the means and the opportunity. He had differences with Poitras his business partner and was desperate for cash. The defendant had ready access to the McHugh garage where the safe was kept, and had been a regular visitor. The defendant had not contacted Cointalk before May 9, yet he made dozens of calls after that. He had never dealt with Ottawa Gold until 3 hours after the theft.

Analysis

[76] The evidence is that Mr. McHugh, a retiree, was a coin bullion collector and kept his collection, which he valued at approximately $150,000, in a safe in his garage. The safe was ordinarily covered with a cloth that concealed it, unless someone knew it was there. It was lockable with a key. It took 10 or 15 minutes to open it, but was easy to lock. A significant portion of the collection was stolen from the safe on May 9, 2014 between 12:30 and 2 pm. There was no evidence of forced entry. Mr. McHugh was unable to recall if he had locked the safe before leaving for his friend’s place for lunch that day. It was his habit to leave his residence for his friends and to have lunch with him. When he returned he found much of the contents missing.

[77] The defendant had visited Mr. McHugh that morning as was his habit, but that morning came to borrow a tool. He arrived between 7 am and 8 am, and left between 9:30 am and 11 am. Ms. McHugh was away, having returned to work that day after a lengthy medical leave. The defendant was aware that she was not there that day.

[78] The defendant had an interest in coins and collections with a collection of his own, and a modest collection that his wife had inherited from her father. Mr. McHugh had made two small purchases from the defendant before May 9. Mr. McHugh was an experienced collector/dealer. The defendant was not, and had sought advice from time to time from Mr. McHugh. At the time of the theft on May 9, 2014, the defendant and Mr. McHugh considered themselves friends because of their common interest. While Mr. McHugh was older and retired, the defendant seemed to have the time to visit him most mornings and they would sit in the garage, have coffee and discuss the affairs of the world, as well as coins from time to time. The defendant freely came to Mr. McHugh’s residence to borrow tools from time to time, and when Mr. McHugh was not there, Ms. McHugh would give him the key for access to the garage where the tools and the safe were kept.

[79] Over the next weeks and months, Mr. McHugh contacted various dealers and people who he had dealt with to tell them of the theft. While the coins and bars had no distinctive markings he kept them very shiny. Witnesses from Cointalk and from Ottawa Gold, as well as the defendant confirmed this. The professional witnesses confirmed that it was unusual to see coins and bars as uniformly polished. One witness even suggested that polishing coins might make them less attractive and therefore less valuable. Mr. McHugh watched various advertisements, kijiji ads, and eBay items to try to track down his coins, with attention to polished or clean looking coins and bars. He kept the police informed, and OPP Detective Burns followed up the various leads that he had generated. He wanted the return of his coins, which represented a significant investment. During the course of his various enquiries, he learned that coins resembling his had been purchased by Cointalk. He reported to the police the information he had received from Cointalk.

[80] In the meantime, the police had interviewed the defendant. The defendant described to them his movements on May 9, which included a visit to his then employer, Mr. Poitras. While later checking the defendant’s account of his whereabouts, Detective Burns found out from Mr. Poitras that the defendant had approached Mr. Poitras’ next door neighbour, Mr. Demarinis, after the date of the theft, to buy coins and a bar. During the subsequent interview, the defendant denied stealing Mr. McHugh’s coins, and denied attempting to sell coins to Mr. Demarinis. He told Detective Burns they were lies from Mr. Poitras because of a business dispute. Mr. Demarinis told of being contacted by the defendant to meet him May 25 or 26, 2014. Phone logs show that the defendant had called him three times on March 15. Believing it was work related he met with him in the defendant’s truck. He produced a coin and bar the size of an I-phone for sale. Mr. Demarinis described the coin and bar as shiny. Mr. Demarinis said he was not interested. They had had no previous business relationship and had only known each other through Mr. Poitras. The defendant was intentionally misleading to the police when he failed to admit to meeting with Mr. Demarinis. In a later police interview and in his evidence, the defendant did not deny the incident with Mr. Demarinis but characterized it differently in trying to suggest it was Mr. Demarinis that had initiated the discussion in the defendant’s truck about purchasing the coins.

[81] After receiving the call logs, September 24, 2014, Detective Burns noted a telephone call the morning of May 9 at 10:18 am to Mr. McHugh’s neighbour. She learned the call had not been answered. The defendant confirmed in his evidence that he had placed the call but could not remember why. Then during his evidence claimed the call was to enquire about a boat for sale. He never did speak to the neighbour.

[82] Detective Burns also noted a telephone call by the defendant at 2:14 pm on May 9, 2014 to Ottawa Bullion but the call went to voicemail. Then at 2:19 pm, the logs showed a call from the defendant’s phone to Ottawa Gold. She confirmed with Ottawa Gold that the defendant had called them, and had been at their offices according to an invoice, at 2:56 pm and sold them coins, a 1 kg bar, and a 10 ounce bar for $2,385.73. The defendant had never contacted Ottawa Gold previously. The defendant admitted in evidence that he had gone to Ottawa Gold that day but denied that it looked suspicious because he had been unaware of the theft at the time. He said that he had his own coins in his truck, from his own collection with some from his wife’s, but denied that any of Mr. McHugh’s coins were part of the sales.

[83] In the meantime, Mr. McHugh had told the people at Cointalk, with whom he had dealt, about the theft of his bars and coins. They told Mr. McHugh they remembered the defendant’s name, and Detective Burns followed up. One of the partners recalled meeting the defendant in May, 2014 to purchase two tubes of polished silver dollar coins. Phone logs showed the defendant had telephoned their office 13 times on May 20. Over the next several weeks, Cointalk purchased between $4500 and $5000 of coins, which they remembered as being mostly and unusually highly polished. A photo line-up confirmed the defendant was the seller. The defendant had never dealt with Cointalk before May 9, 2014. Between May 20, and August 19, 2014, there were 62 telephone calls between the defendant and Cointalk.

[84] The defendant said that he had never shown Mr. McHugh his entire coin collection. Mr McHugh said he had seen the defendant’s entire collection that it was a thousandth the size of his, and the coins were notable for being mostly ‘grubby’. Witnesses were called by the defence to attest to the sale by them of coin sets to the defendant, and knowledge that the defendant had been a collector. The defendant claimed that Mr. McHugh had actually polished many of his coins, presumably to show that if the coins sold by him were shiny they were likely polished by Mr. McHugh. Mr. McHugh denied polishing the defendant’s coins. The coins and bars taken from Mr. McHugh did not contain unique markings other than the fact they were polished.

[85] The call logs showed that the defendant was in Renfrew between two call towers between 11:39 and12:21, through the Arnprior tower at 1:13 pm, and at the Terry Fox Drive ATM at 2.39 pm. The drive from Renfrew to Mr. McHugh’s residence was 6 to 7 minutes. The return trip from Mr. McHugh would be another 6 to 7 minutes. The drive from Renfrew to Arnprior via Burnstown and White Lake took 25 to 30 minutes. The total driving time from Renfrew to Mr .McHugh’s residence, back to Renfrew and then to Arnprior at the time was 44 minutes. The elapsed time according to the phone logs was 94 minutes from the 11:39 am call to the 1:13 pm call, leaving 50 minutes unaccounted for. When it was suggested to the defendant in cross-examination that he had ample time to drive to Mr. McHugh, back up his truck to the garage, open the safe, move the contents into his truck, and drive back to Arnprior, he answered that he had no idea- “I was not there”. The ATM receipt showed the defendant at Terry Fox Drive at 1:39 pm and at 2:14 pm he called Ottawa Bullion through the Ottawa- Carling/Fisher tower. The defendant said that after leaving Mr. McHugh’s at between 10 and 11, he had returned to Renfrew and run some errands. The evidence shows that he called Mr. Bilmer at 10:18 am through the Raglan St. Renfrew tower E1076 suggesting that he had left Mr. McHugh’s residence at 10 am and he would have been back in Renfrew by 10:15 am.

[86] The evidence was that after the defendant left Mr. McHugh’s residence (at 9.30 am according to him), another friend Mr. McLaren had come over for a while, and had discussed coins. When Mr. McHugh left at 12.30 pm for lunch with his automotive friend he was unsure whether he had locked the safe. He did remember locking the door to the garage. Another access point to the garage was by remote control, and Mr. McHugh said he found it missing the next day from its usual spot. Ms. McHugh recalled seeing it the day of the theft but after its discovery, in the garage.

[87] Ms. McHugh recalled the defendant’s many visits and said that in the last week or two before the robbery, he was at the house every day, and sometimes 2 to 3 times a day. She said she found the many and frequent visits unusual.

[88] Since the defendant gave evidence, had been questioned by the police during their investigation; and throughout denied having stolen Mr. McHugh’s coins, credibility is an issue and I am obliged to follow W(D) [1]. I must first determine whether, after considering his evidence, I am left with a reasonable doubt concerning his guilt. The reason for this analytical approach is to ensure that I do not find myself inadvertently placing the onus on the defendant to prove his innocence by deciding which of two versions I accept. The analytical steps laid down by W(D) are designed to ensure that the onus begins with the Crown to prove the guilt of the defendant beyond a reasonable doubt on all of the evidence, and remains with the Crown throughout.

[89] I do not accept the defendant’s evidence; and do not find that the defendant’s evidence raises a reasonable doubt concerning his guilt. The defendant’s evidence raised a number of concerns, some are as follows:

a. The defendant admitted in his evidence that Mr. McHugh was a creature of habit. When the police first questioned him in June, 2014 he also admitted that Mr. McHugh was a creature of habit. When he was questioned in August, 2014 he denied that Mr. McHugh was a creature of habit. He gave no explanation during his evidence for the disparity. b. Under cross-examination, the defendant said he had not spoken to George or Eddie (Cointalk) before he was interviewed in June, 2014. However, the uncontradicted evidence from the admitted phone logs is that he had had thirteen telephone calls with Cointalk before he was interviewed in June, 2014. The evidence is clear that he had sold coins to Cointalk prior to the June interview. At the time of the interview in June, he made no mention of George, Eddie or Cointalk when accounting for his activities since the coin theft. c. During his examination in chief, he said he was a partner with Poitras in the business. He said essentially the same thing during the police interviews. Yet, during cross-examination, he admitted that he had not been a partner “on paper”, but would “pose” as a partner when dealing with contractors. d. In evidence, when asked about the state of the business in May, 2014, in the context of his earlier statement to the police that the business at the time had “peaks and valleys”, he said it was “on a curve” – suggesting it was changing. Yet during his earlier police questioning he said the business was “in bit of a valley right now”- suggesting that things were not great financially. e. In August, 2014 during police questioning, he said “I have zero interest in coins right now”. Yet by that time, he had sold $4 - $5,000 of coins to Cointalk (George and Eddie) since the May 9 coin theft. f. During his questioning in August, 2014 he said, “I probably had (less than) fifty-thousand dollars’ worth (of coins) including “little (silver) bars”. Yet in his evidence he said he had bought a one-kilogram silver bar in Syracuse, NY. g. During his August, 2014 interview, he was asked if he had gone to Ottawa in his pick-up to sell coins or bars. He replied- “who would I have tried to sell to?” He said nothing about having tried to sell a coin and/or bar to Mr. Demarinis, which he then later admitted to in his evidence after hearing Mr. Demarinis evidence. h. During his interviews in June and August, he said nothing about going to Ottawa Gold to sell coins, even though he had been closely questioned about his movements on May 9. His explanation was that he didn’t think it was suspicious because at the time he did not know of the coin theft. i. Similarly, during his interviews he said nothing about contacting and selling coins and bars to Cointalk, while at the same time the phone logs showed a large volume of calls with Cointalk. j. When confronted with his omissions during the police interviews, his explanation was that he “probably was not as truthful as he should have been”.

[90] I must consider whether on the whole of the evidence the Crown has established the defendant’s guilt beyond a reasonable doubt. The evidence is circumstantial. I must therefore consider whether on the basis of all of the evidence, whether the only rational conclusion is the guilt of the defendant. [2] I must consider the evidence together, not each item separately. [3]

[91] I find that on the whole of the evidence, the only reasonable or rational conclusion is that the defendant went to Mr. McHugh’s residence sometime between 12:30 and 2:00 pm, entered his garage either with the garage door remote which he quickly replaced, or with a key to the door which he had surreptitiously hidden, backed his truck up to the door, opened the safe either with a key or more likely found it open, took the contents from the bottom of the safe, removed them to his truck, and then left for Ottawa. He stopped on Terry Fox Drive at an ATM and established his presence there by 1:39 pm. By 2:56 pm, he had called Ottawa Gold by telephone, had gone to their premises at the Westgate Shopping centre on Carling Avenue, and sold $2,385.73 of the coins and bars he had stolen from Mr. McHugh.

[92] The defendant had sold from his own or his wife’s collection of coins on two occasions prior to May 9 to Mr. McHugh; but never to anyone else. Neither sale was very large. Yet the day of the theft and within 2 ½ hours of the theft, he had sold over $2,000 of coins. He had never dealt with Ottawa Gold, Cointalk, or any other company previously. His first contacts to sell any coins or bars occurred on May 9 to Ottawa Gold and Ottawa Bullion, and after that for several months to Cointalk. The evidence shows that he sold an additional $4,000 to $5,000 of the stolen coins to Cointalk knowing that no paper work had been generated. His attempt to sell the stolen coins and bars to Mr. Demarinis within three weeks of the theft, which would never have been known, only came to light when Detective Burns happened to speak to Mr. Poitras, Mr. Demarinis’ next-door neighbour.

[93] The defendant had ample opportunity to complete the theft. The call logs show that he had sufficient time to complete the theft after first leaving Mr. McHugh’s residence, then calling Mr. McHugh’s neighbour to see if he was home, before leaving for Ottawa. I don’t accept the defendant’s explanation that he called him to enquire about a boat. If that were the case he would have spoken to Mr. Bilmer in person the morning of the theft, or even when he returned the afternoon of the theft. He did not. He said initially he could not remember why he had telephoned Mr. Bilmer. The story he told in his evidence of a late recovering memory was simply untrue. The period on May 9 between 12:21 in Renfrew and 1:13 in Arnprior, from the phone logs, is 54 minutes. The driving time at most was 37 minutes.

[94] The defendant was very familiar with Mr. McHugh’s premises. He was a daily visitor, and according to Ms. McHugh several times a day - which she found unusual. He had earned the trust and friendship of Mr. McHugh. He had occasionally gone there when no one was there. His frequent excuse to visit the garage was to borrow tools that Mr. McHugh kept in the garage.

[95] While I accept that Mr. McHugh may have polished some of the defendant’s coins, I am satisfied that given the limited time they spent together with the defendant’s coins, he polished very few. The defendant’s evidence that Mr. McHugh never saw his entire collection is also consistent with very few of the defendant’s coins having been polished by him, yet Cointalk noted the distinctive polished coins purchased from the defendant. I infer that the sale by the defendant of so many shiny coins and bars is consistent with those coins and bars having been stolen from Mr. McHugh.

[96] The defendant’s business was not going well at the time. While he was misleading in describing himself as a partner in the business, it is clear from his own evidence that work was not going well. From the amount of time he had spent at Mr. McHugh’s residence in the weeks leading up to the theft; and the time he devoted to selling the stolen coin and bars over the next few months, he clearly was not spending much time working. It is a reasonable inference that at the time he was hard up. The witnesses that were called by the defence attested to the good work he did, but not whether at the time he had been having financial difficulties or at the time was busy with work. Clearly he was not.

[97] I don’t accept the argument that many other people had access to the garage, knew of the collection in the safe, and therefore the defendant was just one of many who knew Mr. McHugh and his garage. While I accept that many others had been in his garage to have their snow machines fixed, there was no evidence that Mr. McHugh had discussed his collection with anyone other than Mr. McLaren in the garage. Mr. McLaren was not the thief. The defendant’s movements the day of the theft set him apart. I accept that Detective Burns followed up with all leads, and there were many, that Mr. McHugh suggested to her. She conducted a thorough investigation and left no inference that she had not pursued all reasonable theories and leads.

[98] Mr. Sullivan argued in submissions that it would be ludicrous for anyone, on the day of the theft, to go to Ottawa Gold where an ID is required and where they pay only by cheque if they were the thief. It is notable that the defendant only went there once. After that he dealt exclusively with Cointalk where no records were kept, and no ID had been requested. The sale from his truck to Mr. Demarinis, if successful, would have been a ‘no record’ transaction to an unidentifiable purchaser. In other words, the Ottawa Gold transaction was the only sale that identified the defendant. By itself it would not have, and did not lead to the other sales by the defendant. Just as it was arguably ludicrous for the defendant on the day of the theft to go to Ottawa Gold to sell coins, it was equally ludicrous for the defendant to have repeatedly omitted to tell the police about his visit to Ottawa Gold when he was asked to explain his movements the day of the theft.

[99] It is argued that the defendant was fully aware of the tracking technology through cell phones, and that it would have been foolish for him to have continued his sales of coins and bars, if he had been the thief. I accept the argument. Except that he not only continued to create evidence for tracking his movements via his cell phone, but also continued to mislead the police during questioning by not telling them about Ottawa Gold and numerous contacts with Cointalk. At least he acknowledged the problem during his evidence when he said that perhaps he should have been more honest with the police.

Conclusion

[100] I am satisfied beyond a reasonable doubt on all of the evidence that the defendant committed the theft as outlined in the counts, and sold many of the stolen coins over the next several weeks and months.

[101] I find as follows:

1. Count 1- Guilty.
2. Count 2- Guilty.
3. Count 3- Guilty.
4. Count 4- Guilty
5. Count 5- Guilty

Honourable Justice Timothy Ray

Released: August 3, 2016

COURT FILE NO.: 15-160 DATE: 2016-08-03

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – MARTY BROWNLEE Defendant REASONS FOR JUDGMENT Honourable Justice Timothy Ray

Released: August 3, 2016

[1] R. v. B.D., 2011 ONCA 51, 266 CCC (3d) 197 ; [2011] OJ No 198 (QL); 273 OAC 241, paras 102-105 (ONCA); R. v. Tuck, 2014 ONCA 918 paras 53-55 (ONCA) leave to appeal to the SCC dismissed.

[2] R. v. Wild, [1970] S.C.J. No. 69 , [1971] S.C.R. 101 , 11 D.L.R. (3d) 58 at pages 14 and 15 (SCC)

[3] R. v. Stewart, [1977] 2 S.C.R. 748 , 31 C.C.C. (2d) 497 .