R. v. McRae, 2017 ONSC 5831 FILE: CR 16-0019-00AP
5 SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
10
v.
CRAIG MCRAE
15
20 P R O C E E D I N G S A T
R E A S O N S F O R J U D G M E N T
BEFORE THE HONOURABLE JUSTICE R.D. CORNELL
25 on August 24, 2017, at PARRY SOUND, Ontario
APPEARANCES:
30
W. Beatty
J. Belton
Counsel for the Crown Counsel for Craig McRae
(i)
R. v. McRae
5
Reasons for
Judgment
10
15
20
25
Transcript Ordered:
August
25,
2017
Transcript Completed:
October
27,
2017
Ordering Party Notified
October
27,
2017
30
SUPERIOR COURT OF JUSTICE
T A B L E O F C O N T E N T S PROCEEDINGS
PAGE
1
THURSDAY, AUGUST 24, 2017
R E A S O N S F O R J U D G M E N T
5 CORNELL, J. (Orally):
This is a summary conviction appeal by the accused from a conviction for two counts of theft under $5,000. The accused also appeals the sentence of 90 days intermittent that was
10 imposed by the trial judge. In accordance with the reasons that follow, both the appeal from conviction and the appeal from sentence are dismissed.
15 Grounds
The accused asserts that the trial judge committed an error by misapprehending the important evidence dealing with two issues that arose during the course of the trial. Firstly,
20 the accused indicates that the judge misapprehended the evidence as to whether or not the accused ever denied taking the money. Secondly, the accused asserts that the trial judge made an error when dealing with the
25 explanation offered by the accused for the fact
that he repaid the money that was alleged to have been stolen.
Background
30 This case involves three ATM machines, two of which were located in close proximity to each other at a Petro-Canada station and Tim Hortons
outlet. The third ATM was some distance away at the health centre.
The ATMs had been provided by the accused
5 pursuant to a written contract. The ATMs were operated by a group of individuals who were variously referred to during the course of the proceedings as the partners. Two of these partners included individuals by the names of
10 Doug Gibson and Paul Fell. The evidence
indicates that these individuals had access to the ATMs located at the Petro-Canada and Tim Hortons outlet.
15 On Tuesday, October 14th, Mr. Fell noted that there were approximately 50 to 100 $20 bills in what is referred to as a reject bin at the time
that he was attending the ATM. He had insufficient currency with him at the time to
20 replace those notes. He re-attended two days
later on Thursday at which time he was surprised to discover that there were only four reject $20 bills in the reject bin. The machine is set up so that bills that end up in the reject bin
25 cannot be dispersed; they must be removed and
replaced.
When Mr. Fell consulted with his partner to see if anyone else had accessed the ATMs during this
30 period of time, he was advised that they had
not. As a result of this, the video surveillance from the Petro-Canada and Tim
Hortons ATMs was reviewed. This video surveillance indicated that on Tuesday night between 9 and 10:00 p.m., the accused accessed the machines in all three locations. The
5 evidence also disclosed that no notice had been
provided to the operators that he was to attend at the ATMs. The video surveillance also indicated that the accused had no tools or cleaning supplies and that the cash box was
10 removed by the accused.
In his evidence, the accused stated that the contract indicated that he could maintain the ATMs. The contract indicated that he was
15 responsible to maintain the machines. In fact, the partners denied this and indicated that it was the partners who serviced and maintained the
machines and that during the number of years preceding this event when an operational issue
20 arose, they would telephone the accused and
receive telephone advice in order to address any maintenance or repair issues.
According to the accused, he testified that he
25 was in the area at the time in question. As a result of this, in keeping with his usual practice, he decided to check the machines. He explained that he was not in possession of tools or cleaning supplies as all that was necessary
30 in order to service or maintain the machine was
for him to insert a card reader with cleaner. As part of his evidence, the accused attempted
to explain his attendance at these machines by reference to travel records and some form of maintenance log. The accused indicated that the discrepancy or the shortfall could have been
5 caused by improper reconciliation or failure to
use a money machine to count funds.
Analysis
The trial judge rejected the accused’s evidence
10 primarily for three reasons. First, the trial judge found that the explanation offered by the accused that his travel records supported his various attendances at these ATMs was not possible. The accused testified that on one
15 occasion he had been in the Parry Sound area for some six days, yet the records that were produced indicated that during a five or six
year period he had only been in the area on some
17 occasions and that at no point in time had he
20 been in Parry Sound on consecutive days, let alone during consecutive weeks. Secondly, the trial judge rejected the explanation offered by the accused in connection with the accused’s reimbursement of the funds that were alleged to
25 have been stolen.
When this incident came to light, the partners contacted the accused to raise their concerns. It is true that at no point during the email
30 exchanges did the partners accuse the accused of
stealing the funds, rather, they explained that their primary objective was to simply be
reimbursed. During the course of these email exchanges, at no point in time did the accused ever deny taking the funds.
5 At some point in time the accused decided to reimburse the partners in an amount of $4,300 representing the amount of the shortfall. He attempted to explain this payment by saying that he had done the math and it was appropriate for
10 him to make this payment in order to attempt to
maintain the business relationship with the partners in view of the fact that the contract was about to expire.
15 The difficulty for the accused lies in the fact that the emails make it abundantly clear that there were other issues that the partners
required to be addressed before there was any realistic possibility that the business
20 relationship would continue. In particular, the
emails make it clear that the partners were requiring that the additional sum of $4,700 be repaid. In one email, the partners made it clear that this sum was to be paid by the end of
25 the week. In a later email during the course of
subsequent negotiations, the partners made it clear that this amount must be paid by Christmas. This figure of $4,700 came from the accused himself so there was no issue that this
30 amount was actually owing. The Crown addressed
this subject by saying, "Why would you pay something you say you don't owe and not pay
something you admit is owing?"
Finally, the trial judge found that the accused has never denied taking the money during the
5 course of the exchange of emails with the
partners or at trial. While it is true that at no point in time during the course of the emails does the accused deny taking the funds and while it is also true that the bulk of the evidence
10 offered by the accused at the trial indicates that he did not deny taking the funds, there is one exchange that occurred that is noteworthy.
At page 226 of the trial transcript, the
15 following exchange occurs:
Crown Counsel: I'm just showing to you Exhibit 8, Mr. McRae, of this procedure. You'll see on the re: line this is you[sic]
20 cheque for $4,300 and on the re: line the reference is "Vault Reimbursement". McRae: That's correct.
Q. So you're issuing this document and the face of the document is accurate as far as
25 you know, right?
A. Absolutely.
A.
I'm reimbursing.
Q.
It says, "Vault Reimbursement."
So
Q. Okay. And you're reimbursing them for monies that are short in the vault, right?
30
those are the monies that....
A. I'm reimbursing them.
Q. Not in the vault, right?
A. From what they say there is a short in the vault, yes.
Q. And you're reimbursing them? In other
5 words you're giving back to them that which you have taken, right, am I wrong?
A. You're wrong.
The trial judge states quite correctly that the
10 accused had no obligation to deny the theft, but the trial judge then goes on at some length to focus on the lack of the denial. The issue that arises is what is to be done given the fact that the trial judge appears to have overlooked the
15 one answer that constitutes a denial. As well, the trial judge is focused on the lack of the denial in rejecting the evidence of the accused.
The fact remains that these two concerns cannot
20 be looked at in isolation. The trial judge addresses these potential problems by saying at page 16 of his reasons the following:
As the accused testified, I obviously must
25 do a W.(D.) analysis. Where a case turns entirely or almost entirely on the credibility of the complainant and the accused, the issue is not which version is true or, whether you believe the complainant
30 or the accused, the issue is whether the
Crown's case has been proven beyond a reasonable doubt. The trial is not a
credibility contest and in comparison the complainants’ and the accused version of events is proper and part of the duty of the trial judge to assess the evidence of the
5 accused in the context of the whole evidence
adduced at trial. The verdict should not be based on a choice between the Crown's evidence and that of the accused, but rather based on the whole of that evidence, the
10 trier of fact is left with a reasonable doubt as to the guilt of the accused and in doing so the judge must consider whether the evidence, as a whole, establishes the accused[sic] guilt beyond a reasonable
15 doubt.
The Supreme Court of Canada, in the 1991 decision of W.(D.) simplifies it as follows: If I believe the accused, I must acquit. If
20 I do not know whether to believe the accused or the complainant's version, I must acquit. If I do not reject the evidence of the accused, I must acquit. If I reject and disbelieve the evidence of the accused,
25 before I can convict I must be convinced
beyond a reasonable doubt that the Crown has proven each and every elements[sic] of the offence.
30 Counsel for the appellant indicated that they take no issue with the judge’s R. v. W.(D.), [1991] l S.C.R. 742 analysis. It is clear that
the judge was alive to his duties. After carefully considering all of the evidence the trial judge rejects the evidence of the accused by saying at page 21,
5
Accordingly, in reviewing the totality of the evidence presented to me on this matter, I reject the evidence presented by the accused on this matter.
10
The trial judge then proceeds to consider the balance of the evidence. There was ample other evidence to support the two convictions that were registered. There was evidence to indicate
15 that during the many years prior to this incident the accused had not attended at the ATMs for maintenance. As previously detailed,
one of the partners indicated that if assistance was required it would be obtained during the
20 course of the telephone call. No notice of the
accused’s attendance at these ATMs was provided. Apart from this, the video evidence indicates that the accused was the only one who had access and opportunity to remove the funds in question
25 during the period of time in question. As he
was entitled to do, this was the evidence that was accepted by the trial judge.
Further support for the proposition that the
30 trial judge was alive to his duties and responsibilities can be found in the fact that the accused was acquitted of the allegation that
he also stole funds from the ATM at the hospital. The trial judge noted that with respect to that ATM, the evidence indicated that there were poor business practices and a lack of
5 a proper accounting reconciliation. In light of
this evidence, the accused was acquitted on this charge.
It is the trial judge's duty to evaluate the
10 evidence, make findings of credibility and findings of fact. On appeal, this process can only be overturned if there is overriding and palpable error. In other words, there can be no reasonable basis to find as the trial judge did.
15 That is not the case here as I have previously detailed.
The law in this area is properly put forward by the Crown at paragraph 57 of the Crown’s factum
20 as follows:
Provided that this test is met, the appellate court should not substitute its opinion for that of the trial judge. It is
25 appropriate for an appellate court to give
significance deference to the trier of fact. Although the appellate court may reverse a finding of guilt on the basis of unreasonableness, the Court of Appeal's
30 independent review of the record at trial
should be "restrained". Unless the record reveals an error in law or a clear
misapprehension of the evidence, intervention by an appellate court is generally not justified.
5 In R. v. Jackson, 2007 SCC 52, 2007 S.C.C. 52,[2007]
S.C.R. 514, at para. 2, Fish J., for a majority of the Supreme Court, put it this way,
10 “To succeed under that provision [686(1)(a)(i)], the appellant was bound to persuade us that no properly instructed jury acting judicially could reasonably have found him guilty.”
15
As previously detailed, there was ample evidence for a properly instructed jury acting judicially to convict on the two counts that are the subject matter of this appeal. The suggestion
20 of a misapprehension of evidence is at odds with the evidence and the deference that is to be shown to the trial judge's assessment of credibility and findings of fact.
25 In R. v. Heffern, [2017] ONCA 564 at para. 11, the Ontario Court of Appeal stated,
“As it seems to us, the appellant is inviting us to retry this case, to draw
30 inferences different from those drawn by the
trial judge. We are satisfied that the inferences the trial judge drew ... were
available and reasonable on the evidence adduced at trial. To draw contrary inferences is not a course open to us. We do not retry cases.”
5
Conclusion
There was no meaningful misapprehension of evidence in this case by the trial judge. A proper W.(D.) analysis was conducted. After
10 rejecting the accused’s evidence, the trial judge addressed the matter in a proper fashion and found other evidence that was sufficient to satisfy the onus that rests upon the Crown. As a result, the appeal from conviction for the two
15 counts of theft under is dismissed.
Sentence Appeal
The test for the sentence appeal is accurately set out in paragraph 58 of Crown’s factum that
20 states:
Section 687(1) of the Criminal Code authorizes appeal courts to consider the fitness of sentence appealed against. The
25 test for appellate intervention on
sentencing was articulated by the Supreme Court in R. v. Proulx,2000 SCC 5, [2000]SCJ No. 6 and more recently in R. v. Lacasse,2015 SCC 64, [2015]SCJ No. 64, para. 41.
30
“absent an error in principle, failure to consider a relevant factor, or an
overemphasis on the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit.” [R. v
5 M.(C.A.)1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500 at para. 90,
Wagner,J.]
The case law has established quite clearly that this is a very high threshold for an appellant
10 to meet. The case law favours deference to the sentencing judge’s decision.
In this particular case, counsel for the appellant at trial urged upon the Court a
15 sentence of one to two years by way of a conditional sentence. The Crown responded by suggesting that a jail sentence of five months
together with probation was appropriate. After considering these submissions, the trial judge
20 imposed a sentence of ninety days to be served
on an intermittent basis.
There is nothing to suggest that a ninety day sentence is demonstrably unfit, particularly
25 when a conditional sentence of one to two years
was put forward as a proper sentence by the appellant’s counsel at trial. In view of this, the appeal against sentence is dismissed.
30 THE COURT: So I have endorsed to this point: In accordance with oral reasons rendered, the appeal from conviction and sentence is
dismissed. Mr. Beatty, I will call upon you first. Are there any other issues you need to address, particularly with respect to his incarceration or any other matter?
5 MR. BEATTY: No, Your Honour. There was – my,
my friend and I were actually discussing that issue just before you came in. We would ask that your endorsement be photocopied and sent to the institution. Mister – if he is now to
10 complete his custodial sentence, I believe that was a weekend Friday to Monday type of sentence. The custodial institution should not be holding him now; they should be releasing him to come back tomorrow or where to....
15 THE COURT: Well, that’s what I would have thought.
MR. BEATTY: So that’s the only thing that I would ask you to do is that make that available as soon....
20 THE COURT: Well, do you want me to say that, that the accused is to be released to return Friday, August 25th, 2017, to begin his intermittent sentence?
MS. BELTON: Yeah. So I just have one request
25 that Mr. McRae has asked me to ask of you is whether you would be agreeable to having him begin his intermittent sentence the following weekend so he has some additional time to prepare. That would be September 1st.
30 THE COURT: Mr. Beatty, what position is the
Crown taking?
MR. BEATTY: I, I have no....
THE COURT: You have no issue with that? MR. BEATTY: Take no issue, yeah.
THE COURT: I’m content to do that if it assists.
5 MS. BELTON: So perhaps if the endorsement could
read the date to which he should surrender himself.
THE COURT: He needs to be released today and surrender himself on such and such a day to...
10 MS. BELTON: Yeah.
THE COURT: ...be – to continue with his intermittent sentence?
MS. BELTON: I think that the Friday it is.
It’s September 1st so it would be that he would
st
15 surrender himself September 1
. I believe it
was specified, 7:00 p.m. on the original endorsement but six or seven.
MR. BEATTY: Unfortunately my note is not very
helpful. It’s just, “report to jail Friday to
20 Monday.” Sorry.
MS. BELTON: Yeah so what I found because there’s no actual order of sentence, I think it’s on the probation order.
MR. BEATTY: Oh, okay.
25 MS. BELTON: I think that was all that was written.
MR. BEATTY: Okay. Friday at seven, okay. MS. BELTON: M'hmm.
MR. BEATTY: That’s fine.
30 THE COURT: So you did decide it’s at 7:00 p.m.?
MR. BEATTY: Yes, it’s on the probation order, Your Honour.
THE COURT: No, he would already have served two days, yesterday and today so I have said that he surrender himself on Friday, September 1st, 2017, at 7:00 p.m. I should say not to “begin” but to
5 “continue” with his intermittent sentence?
MS. BELTON: M'hmm.
MR. BEATTY: All right.
THE COURT: So my endorsement now reads,
10
E N D O R S E M E N T
In accordance with oral reasons rendered, the
15 appeal from conviction and sentence is dismissed. Having surrendered himself into custody for the appeal, it is hereby ordered
that Mr. McRae be released forthwith and that he surrender himself on Friday, September 1st, 2017,
20 at 7:00 p.m. to continue with his intermittent sentence.
MS. BELTON: Yes.
THE COURT: Both counsel are in agreement that
25 my endorsement is acceptable?
MS. BELTON: Yes.
MR. BEATTY: Yes, Your Honour. Thank you.
THE COURT: All right. So I will have the copy of my endorsement made for each of you. It is -
30 apparently there is a practice direction that
indicates that where an oral decision is released in a summary conviction matter, the
Court orders a copy of the transcript. A copy of my decision goes to, among other people, the trial judge, so I’m not sure how you piggyback on that, but if you want a copy of the decision,
5 you can check with the Trial Coordinator to see
what the mechanism might be to do that. MS. BELTON: Okay. Thank you.
THE COURT: Thank you both for your concise submissions.
10
...WHEREUPON THESE PROCEEDINGS WERE CONCLUDED
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Certification
FORM 2
Certificate of Transcript
Evidence Act, Subsection 5(2)
5
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I, Karen Sewell
certify that
15 this document is a true and accurate transcription of the recording of _ R. v. McRae Ontario Court of Justice held at 89 James Street, Parry Sound, Ontario taken from
Recording(s) No. 3011-HearingRoom 20170824 093525 10 CORNELD.dcr which has been certified in Form 1.
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(Date) (Signature of authorized person)
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