Court File and Parties
Court File No.: CR 16-0013 Date: 2017-12-08 Ontario Superior Court of Justice
Between: Her Majesty the Queen – and – Delores Harper
Counsel: Mr. D. Beaton, for the Crown Mr. J. Weppler, for the Accused
Heard at Gore Bay: October 25 and 26, 2017
Reasons for Judgment
A.D. KURKE J.
Overview
1The accused is charged with theft of a house trailer, mischief to the house trailer, and possession of a house trailer obtained by crime, the first and third of which charges allege “of a value exceeding five thousand dollars”, and the mischief count “of a value not exceeding five thousand dollars”. The Crown’s case has the accused making off with a trailer that she had pretended to buy from its owner, cutting off its tow tongue, and placing it on her property, where it was discovered by police on the execution of a warrant to search. The accused says that she bought the trailer, from a Crown witness who was himself pretending to be the owner. On this version of events, she honestly believed that the trailer was hers when she towed it away, cut its tow tongue, and placed it on her property.
Facts
The Crown’s case
2Allan Gallant (“Gallant”) used to live in Sudbury. Around 2000-2002 he bought an Atco office trailer, 10 x 32 feet in size. It was by that time already an older trailer, and Gallant paid $6000 or $6500 for it.
3This trailer Gallant lovingly converted to a mobile cabin that he named the “Window Box”. He upgraded the electrical system, added baseboard heat, put in additional banks of windows and a sliding door, and equipped it with a bedroom at the back. He also put in appliances, and a stained glass light fixture in the kitchen.
4Between 2008 and 2009, Gallant purchased two lots in Spring Bay on Manitoulin Island, about an acre total in size. Gallant moved the Window Box to that property. He used it as an outpost for short visits to Manitoulin, although it had no septic or electrical hookup, and bylaws prevented its use as a residence.
5In around 2011, Gallant was transferred to Nova Scotia, and now lives in Grand Desert. The Window Box remained in Spring Bay. Over time, it suffered some deterioration. The roof leaked, and there was some wood rot in the floor.
6Tim Brook (“Brook”) was Gallant’s neighbour in Spring Bay. Gallant arranged with Brook to cut his lawn as needed and on at least one occasion to go into the Window Box to clean up and sweep it out.
7Gallant listed his Spring Bay lots and the trailer for sale with a local realtor in 2011, but there were no takers. Eventually, the “for sale” sign blew down and ended up on Brook’s property. There remained on the trailer a lockbox with a key, to which naturally the realtor and Brook had access.
8Brook testified and was cross-examined. I was impressed by the simple story he had to tell and the straightforward way in which he told it.
9According to Brook, in early May 2015, a man and lady approached the trailer while Brook was out doing yardwork on his own property. Brook did not know them, and asked what they wanted. They asked to look in the trailer. Brook let them in with the lockbox key, and gave them Gallant’s contact information in Nova Scotia. He did not call Gallant, as he felt that the sale of the trailer was “none of my business”.
10Two days later, the lady, who was the accused, came back, and told Brook that she had bought the trailer for $9000. Again Brook took no step to confirm this with Gallant. Ms. Harper said that she would return on Saturday to collect the trailer. On the Saturday, Ms. Harper, the man who had been with her, and another man with a distinctively decorated truck, came at 10:00. They removed the skirting from the trailer. Brook testified that the trailer’s contents of appliances, furniture, and decorations, were still in the trailer. He gave the accused the key.
11Brook was insistent that the trailer was taken away by the accused on a Saturday, and that may or may not be the case, as other witnesses have the trailer being taken on a Tuesday. The particular day of the week is not significant in the circumstances of this case.
12At this point, Bruce White (“White”), a friend of Brook’s came by, with his fiancée Darlene. White testified that both he and Brook had been interested in the trailer, if Gallant had not wanted so much money for it. Brook said the trailer was in good condition, and White had been willing to offer $3000 for it, but Brook did not think it would be enough. As the trailer was being hooked up to a pickup truck for towing, Brook heard the accused say that she had overpaid for it.
13White knew the male involved with the accused as “Hughie”, from seeing him around in Gore Bay. He did not know him personally. That male introduced himself as Elwood Campbell. He also learned, he said, that the accused lived in Evansville.
14Brook testified that in conversation at this point, the accused introduced herself as “Cookie”. She had no bill of sale, and she said that the trailer was going to “the Soo”, which I understand to mean Sault Ste. Marie. White said that the transaction seemed perfectly normal. Brook found it odd that the pickup turned towards Gore Bay with the trailer, as he would have gone to the bridge to leave the Island from Spring Bay by way of Mindemoya, a different direction.
15Gallant was contacted shortly after the trailer’s removal by a different neighbour, who told him that the Window Box was gone. A call to Brook confirmed that it was true; a person claiming to have purchased the trailer had taken it away. Gallant testified that no one had called him about buying the trailer. He was surprised that Brook had not called him about the sale.
16Brook was also surprised, he said, to get the call from Gallant, and to learn that Gallant had not sold the trailer. In cross-examination, Brook was confronted with an assertion that he had purported to be the owner of the trailer, and had sold it to the accused for $2000: $1000 down, and a further thousand to come at pick-up. It was suggested to Brook that he was glad to see the trailer go, as he told the accused it was an eyesore. It was further suggested that the accused had returned afterwards, to complain that the floor of the trailer was rotten, and to demand a refund of the $1000 so far paid, and to tell him that Brook would have to flatbed the trailer back. It was suggested that Brook did not communicate the sale to Gallant, as he intended to keep the money himself. Brook denied all of this and called it “bullshit”.
17Gallant called the Ontario Provincial Police. Cst. Marc Hovingh (“Hovingh”) was an investigator on the matter. He took initial statements, and learned that Campbell had given his name, though the alleged female thief had only called herself “Cookie”. On May 9, 2015, he observed on Hwy 542 the distinctive pickup truck that had been used to haul away the trailer. It was driven by Stan Wyman, Elwood Campbell’s son-in-law. Hovingh took the opportunity to question Wyman. Shortly thereafter, he was notified that the accused had called 911, to complain that she had purchased stolen property. Ultimately, Hovingh met the accused at the Mindemoya detachment, where he arrested her and took a cautioned exculpatory statement from her, which the accused admitted was voluntary, even though it was not videotaped. Throughout, the accused remained adamant that she had purchased the trailer, from Brook.
18Stanley Wyman (“Wyman” or “Stan”) testified, and gave his evidence in a straightforward, clear manner. I accept his evidence unreservedly. He is a heavy equipment operator, who lives in Mindemoya. He has a GMC pickup truck, which he used to tow the house trailer in May 2015. He did this at the request of “Lorie” Harper, the accused, and Elwood Campbell, his father-in-law, who called him on the Monday to ask for his help to move the trailer on Tuesday.
19On the day he moved the trailer, he showed up and looked around it, and found it to be undamaged. The only thing he remembered noticing inside was a couch. The skirting had already been removed from the outside. The wheels were in good shape, and properly inflated. During his evidence, Wyman was surprised by a police photo of the trailer’s flattened tires, taken during the execution of the search warrant at the accused’s property. Wyman testified that it took him 10 or 15 minutes to hook up the trailer, with the help of Elwood Campbell. The towing tongue was in good shape. There were people next door whom he did not talk to, and he assumed the guy next door owned the trailer.
20In chief, Wyman clearly stated that the accused and Campbell told him that they had paid $9000 for the trailer. In cross-examination, he agreed that it was possible that the accused told him that “they were asking $9000 for the trailer”. It is clear to me that Wyman agreed to this out of fairness, but from his manner of answering and his reversion to his initial evidence in re-examination, it is also clear that the “possible” version is not what he believed he had heard.
21Wyman towed the trailer to the accused’s property in Evansville, where he backed it in to where he was directed by Campbell with the accused standing by, unhooked it, and left. When he was stopped by police, he called Campbell’s phone after giving his statement, to ask what was going on. The accused answered, and told him that “there was a misunderstanding”.
22Police on the authority of a search warrant found the trailer on Delores Harper’s property at 15950 Hwy 540, Evansville on May 9, 2015. Police photos show the trailer tucked between a shed and Ms. Harper’s home, on blocks. Its tow tongue had been cut off, and its tires on one side were off the rims. The windows were intact, but the fridge and stove and much of the furniture had been removed. The stove, with its oven door off, was outside serving as a makeshift set of stairs into the trailer. According to photos taken by Hovingh, much of the interior had been stripped or disassembled at some point. The exterior, without adornment or skirting, appeared dark and nondescript.
23The trailer was barely visible from the end of Ms. Harper’s driveway off Hwy 540, according to Hovingh. Photos introduced by the accused, taken the morning of October 26, 2017 from her vehicle, show that the trailer was indeed visible from Hwy 540 – from a motionless car – if one knew what to look for.
24Gallant was told by police that the trailer had been located in Evansville, a town west of Gore Bay. Gallant asked to have the trailer towed back to his property, but that could not be accommodated. As testified to by Cst. Hart, who was also present at the search, the towing tongue on the trailer had been cut off, and so it could not be towed. Hovingh testified that inquiries were made about hauling the trailer back to Spring Bay, but that proved unworkable. At the time of the trial, the trailer remained on the property of Delores Harper in Evansville.
25The Crown chose to put into evidence the statement of the accused, which was conceded to be voluntary by the defence. At many places in the statement, the accused wrote in that she had not read it all through. She also handwrote in corrections throughout. Cst. Hovingh testified that although he may have missed the occasional word, he was attempting to write the statement verbatim, “to the best of his abilities”. When he was done scribing it, he gave it to the accused to correct.
[26] In the statement, the accused stated: a. The price of the trailer was to be $2000. She paid $1000 to the guy to buy the trailer. Elwood got his son to move the trailer to her place. While waiting for “the guys to show up”, she told the guy she had paid too much, and he said that it was a good deal at $2000. The accused told the guy that the trailer was rotten underneath. He said that he was glad to get it off the lot, as it was an eyesore. b. She went back that evening, and said that $1000 was all he was going to get. He would have to take it back from her yard with a flatbed, and she wanted her $1000 back before he got it. c. She stated that the trailer had been for sale for a long time. She wanted the windows and doors out of it. It was in “Real Estate” last year, but “I guess he didn’t sell his house”. She stopped in and said that she was not interested in the lot – just the trailer. d. $2000 was the agreed price. They wanted $10,000 for it originally (handwritten in the margin: “last year”). The accused said that she told Stan that they were asking $9000 for the trailer; he said it was too much. (She handwrote in that she did not tell Stan what she paid for it.) e. “Q. To clarify – you paid $2000 for the doors and windows on the trailer.” (Handwritten by the accused after this, in the margin: “Then maybe fix for Granny flat”). Then “A. Yeah. At first that’s all I wanted it for. Then I thought I could make a granny flat but it’s too rotten underneath.” f. The accused got no receipt. The seller “was glad I got it off his lot. He didn’t seem to have anything for it – just the key. He didn’t know anything about it.” g. At the end of the statement, the accused, asked if there was anything she would like to add or delete, hand wrote: “Just that I bought trailer and if he want it back I want my 1,000 back. Some of these question were written not exactly like I said ”.
The evidence of the accused
27Ms. Harper also testified on her own behalf.
28She has lived in Evansville for 17 years, but has been associated to the town for her whole life. Elwood Campbell, whom she called Elwood, was her cousin, and was “like a dad to me”. In April 2015, he was getting sick again, having had cancer before. Ms. Harper had noticed the trailer in Spring Bay many times, as she drove by it every day.
29On a Wednesday, she saw the “for sale” sign, and saw Brook in the yard. She assumed that Brook was the owner. He was in front of the trailer, and she asked him what he was doing with it. The skirting was off it, and there was an extension cord between Brook’s house and the trailer. Brook told her that he was selling it. Ms. Harper indicated that she would be interested. Brook showed her and Campbell around the whole thing. They gave Brook their names, but she did not get his. He had a shop vac inside the trailer and was cleaning it.
30Ms. Harper asked how much, and Brook told her he wanted $2000 cash. Ms. Harper told Brook that she was interested, but only in the trailer, and not the land; the asking price of the whole property was $9000. She and Elwood each came up with half the money, $1000 each. She paid the first half to Brook at his house on the Friday, in $100 bills. The other half was to be paid once the trailer was in place. Brook offered no receipt, and she did not ask for one.
31Ms. Harper and Elwood arranged with Elwood’s son-in-law Stan Wyman to move the trailer, but Stan was not available until Monday or Tuesday the following week. On Tuesday, Ms. Harper and Elwood and Stan showed up in three separate vehicles. Ms. Harper was concerned about the old tires on the trailer, so it was arranged that they would travel in a convoy, with Stan in the middle towing the trailer, and the others in front of him and behind him.
32In Spring Bay, Ms. Harper and Elwood introduced themselves to people there, and spoke with White, who confirmed that he knew Ms. Harper’s place in Evansville, and that he drove by it every day. His mother lived in Evansville. Ms. Harper said that she was bringing the trailer to Evansville. Ms. Harper went into the trailer. She testified that the bedroom was empty, but for a mattress against the wall. The trailer itself was stripped of exterior cladding except for the plywood. The stained glass fixture was not there. The shower stall was disassembled, and the refrigerator door was off.
33The trailer was towed to Ms. Harper’s property. Ms. Harper and Elwood put the fridge and the stove out. She did not think they were usable. Ms. Harper did not know how the tires became flat, but presumed that it was when Elwood jacked the trailer up on blocks. Ms. Harper was gone for two days following the day they moved the trailer, during which time Elwood put the fridge door back on, and “I imagine Elwood took the tongue off”. It was Ms. Harper’s intention, she said, to swing the trailer around and abut it up against her own home, to make a room for Elwood. The tongue would have gotten in the way, and hit the house, so it had to be removed.
34But on the day of the move from Spring Bay, Ms. Harper noticed that the trailer was rotten underneath. The wood under the patio doors was rotten, and there were holes in the floor inside. They drove back to Brook’s house, as they were planning on cleaning up, and they were due to give him the balance of the money owing for the trailer. Ms. Harper told Brook that she would not pay the rest. He would have to use a flatbed if he wanted the trailer back. Ms. Harper wanted her money back, but Brook shook his head to indicate “no”. Ms. Harper said that she and Elwood cleaned up the debris and skirting from the Spring Bay property, and took it to the dump in Providence Bay. She never saw Brook again. She returned home that day, and then went to Sault Ste. Marie for two days, returning on the Friday.
35On the Saturday after Ms. Harper’s return from Sault Ste. Marie, Wyman called her, and said that the trailer was stolen. She told him that it was a “misunderstanding”. She then called 911 on her cell phone. She explained the situation, and said that she was going to the Mindemoya detachment. She waited there until Hovingh came and promptly arrested her.
36Ms. Harper explained that although she gave a statement to Hovingh, she did not read it all through. She saw that the officer was jumping to conclusions, and not recording what she told him. He did not want to listen to what she had to say. As an example, Ms. Harper complained that the officer wrote that she bought the trailer for its doors and windows. In fact, that was not the case. She bought it to make a granny flat to nurse Elwood, who had suffered a relapse.
37Ms. Harper introduced into evidence several photos (Exhibits 4, 5, 6) showing that the trailer was visible on her property from Highway 540. She testified that she never tried to hide the trailer.
Analysis
38The accused started this trial presumed to be innocent of the charges she is facing. The Crown has the burden of displacing that presumption with proof beyond a reasonable doubt that the accused committed the offences with which she is charged: R. v. Lifchus, [1997] 3 S.C.R. 320, at para. 27. As Laskin, J. (as he then was) held in R. v. Appleby, [1972] S.C.R. 303, at para. 33: “[T]he presumption of innocence gives an accused the initial benefit of a right of silence and the ultimate benefit … of any reasonable doubt”.
39In the circumstances of this case, the accused has provided a completely different version of operative events than was developed and advanced in the Crown’s case. Accordingly, in assessing the evidence, I have instructed myself in accordance with the direction of the Supreme Court of Canada in R. v. W.(D.), [1991] 1 S.C.R. 742, in which the Court offered the following guidance on how to approach “credibility contests” (at paras. 27 and 28):
27 In a case where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue. The trial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses. Specifically, the trial judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused. Second, if they do not believe the accused's evidence but still have a reasonable doubt as to his guilt after considering the accused's evidence in the context of the evidence as a whole. [references omitted]
28 … A trial judge might well instruct the jury on the question of credibility along these lines:
First, if you believe the evidence of the accused, obviously you must acquit.
Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
40While it has been said that these three W.(D.) steps are not a “magic incantation”, following the analytic framework set out in that case ensures that the correct burden and standard of proof are applied: R. v S.(W.D.), [1994] S.C.J. No. 91, at para 24. As noted by Charron, J. in R. v. Dinardo, 2008 SCC 24 , [2008] 1 S.C.R. 788, at para 23:
In a case that turns on credibility … the trial judge must direct his or her mind to the decisive question of whether the accused's evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt. Put differently, the trial judge must consider whether the evidence as a whole establishes the accused's guilt beyond a reasonable doubt.
41On behalf of the accused, Mr. Weppler submits that the events described by her are plausible, and must raise a reasonable doubt. She dealt with Mr. Brook as the trailer’s owner, as his home was close to the trailer, and she saw an extension cord extending from his home into the trailer. He let her in, using a key from the lockbox. He gave her the key to take away the trailer. On her testimony, Brook held himself out as the owner. And indeed, Brook’s failure to contact Gallant during the sale process was described as bizarre by Gallant.
42On the other hand, the accused did everything openly. She and Campbell gave their names and the accused’s address. They returned to Spring Bay repeatedly and took away the trailer in the presence of many witnesses. When the accused found out the trailer was stolen, she rushed to the police detachment, only to be arrested by Cst. Hovingh.
43I agree, that if I believe the version of events offered by the accused, or if I am left in a reasonable doubt by that account, then I must acquit. On all of the evidence of this case, however, I am unable to accept the evidence of the accused in relation to her purchase of the trailer from Brook. I reject that version of events, and I am not left in a reasonable doubt by it, alone, or in combination with the other evidence in this case.
44Indeed, for the reasons that follow, I am satisfied beyond a reasonable doubt of the following, on all of the evidence in this case. The accused stole the trailer by making off with it pretending to have bought it from Gallant. She cut off or counselled Elwood Campbell to cut off the tow tongue, knowing that she had not actually purchased the trailer, thereby wilfully damaging Gallant’s property. And it remained Gallant’s property, as the accused knew, on the date the police found it on her property. She knew she obtained it by the commission of an indictable offence, and she still possessed it.
45To begin, the accused has a criminal record extending between 1992 and 2006, containing five convictions for dishonesty. Of grave concern to me is a conviction for Public Mischief, which in the context of so much other dishonesty must call into question the wisdom of trusting anything said by this accused in the context of the administration of justice. I do not, however, rely on the conviction for Public Mischief in the manner urged upon me by the Crown, that it represents conduct potentially similar to that engaged in now by the accused: falsely blaming another person, Tim Brook, for criminal misconduct. However, a conviction for Public Mischief does represent significant dishonesty in its own right in the context of the credibility assessment permitted under s. 12 of the Canada Evidence Act. On that assessment, I do not believe the accused’s exculpatory testimony, and reject it: R. v. Marini, 2017 ONCA 46, at para. 20.
46However, even without that criminal record, I find myself unable to accept the exculpatory evidence given by the accused. In assessing that evidence, I found that the version of events offered by the accused was not capable of belief. I particularly noted that the accused repeatedly modified her evidence to conform with whatever new fact confronted her. I offer the following examples.
47In cross-examination, concerning proof of her initial payment of $1000 to Brook, the accused said that she withdrew $1000 from the bank, and that she did not keep her bank record. She explained that she and Elwood each came up with $500 to arrive at the total of $1000. When pressed on this point, as it represented a change from her initial explanation that she and Elwood each came up with $1000 for the trailer, Ms. Harper questioned the relevance of the question, as the money came anyway from their joint bank account . This kind of shift of ground, to suit the needs of the moment, though it makes nonsense of the whole exercise of claiming $1000 was raised individually by each of Ms. Harper and Mr. Campbell, seriously detracts from Ms. Harper’s credibility.
48Ms. Harper also indicated that the fridge was mouldy and mildewed inside, from not being opened and used. It, like the stove, was over 50 years old, so she threw them out. Exhibit 2, picture 5, a photo taken by police during their search of the accused’s property, shows the refrigerator out of the trailer in Ms. Harper’s yard, with its door on. Ms. Harper explained that Elwood had put the door on the fridge, for it had been off when she took the trailer. But all of this gives the lie to her claim that the fridge was mouldy and mildewed inside from not being opened and used. Once again, Ms. Harper attempted to offer a facile explanation for the removal of the fridge from the trailer, and to further her claim that she was taken advantage of in the purchase of the trailer. But her explanation that the door was initially off the fridge belies that assertion, and gives legs to the Crown’s suggestion that the appliances were removed to sell for extra cash, not for disposal.
49Prior to cross-examination of the accused, the Crown, to ensure that the accused was not surprised by his intention to call reply evidence, announced in court his decision to call further evidence from Brook, that in fact the accused did not clean up the debris from the area, as there was still skirting that had been left on site. Ultimately, the Crown did not call that evidence in reply, but that is of little moment. In cross-examination, Ms. Harper altered her evidence from “we took everything to the dump” to: we took to the dump “some of the skirting”, “what we could fit in a one-ton truck”. Again, the evidence shifts, now to answer the potential evidence that tells against the accused’s initial claim. This is not the hallmark of a true claim, and in any event, makes no sense in the context of the accused’s professed and hostile demand for a refund.
50Various aspects of the accused’s account simply make no sense.
51Why cut the towing tongue off, if the accused had quickly discovered that the trailer was rotten? The tires did not apparently go flat until after she had left for two days, so they must have been fine when she returned to Brook’s house on the day she had removed the trailer. And the towing tongue should still have been in place. In that case, why did the accused tell Brook that he would have to remove the trailer with a flatbed? The trailer should have still been towable when she went to complain to Brook, the same evening that it was moved to her property, and before she went to Sault Ste. Marie.
52Why would the accused bother to clean up debris and skirting from what she thought was Brook’s property if she felt that she had been taken advantage of, and Brook would not give her a refund? After all, she never paid Brook the remaining $1000 that, on her version of events, represented the balance of the purchase price. So why clean up any of the mess?
53This entire aspect of the accused’s evidence is difficult to understand, and impossible to accept.
54The accused was also contradicted by Stanley Wyman about the $9000 purchase price, a point that increases in significance, given the accused’s difficulties in her explanation of the much smaller sum she claimed was raised by her and Campbell with which to purchase the trailer. Ms. Harper was emphatic that she never told Wyman what she had paid for the trailer. She told him that “they wanted” $9000 for the trailer and the land. Wyman, however, echoed Brook that the accused told him that she paid $9000 for the property, and I find that she is properly contradicted on her evidence by Wyman, on a significant issue.
55While voluntariness of the accused’s statement was admitted by the accused, the accuracy of the statement scribed by Cst. Hovingh was not. Indeed, the accused made a point of denying that the officer scribed her answers correctly, and asserted that he wrote down instead his own thoughts, in line with his belief in her guilt. What was said by the accused is a distinct inquiry from the voluntariness of what was said, and it is the duty of the trier of fact to determine what was said: R. v. Hebert (1990), 60 C.C.C. (3d) 422 (Que. C.A.).
56Out of an abundance of caution in this area, I accept into my analysis of incredible assertions only that the accused told Cst. Hovingh in her statement that Brook said that he was glad to get the trailer off the lot, as it was an eyesore. This assertion was suggested to Brook in cross-examination, and denied by him. Its use in that fashion by the defence reassures me that it was actually spoken by the accused. But the logic of this claim by the accused escapes me. Brook and White indicated that they liked the look of the trailer, and White testified that both would have purchased it. On the Crown’s case, Brook’s derision towards the trailer as an “eyesore” cannot be sustained. Nor frankly, does it make sense even in the accused’s version of events. For why would Brook, the purported owner of the trailer, tell its potential buyer that he found the trailer to be an eyesore? As marketing strategies go, this one flies in the face of common sense. I find that the accused added the detail to her version to explain how Brook could justify asking so little money for the trailer.
57As to Brook, I accept his testimony. He explained his view of things – the sale of the trailer was not his business, and, having put the accused in contact with Gallant, his job was done. It certainly would have been better if Brook had exercised more caution, and had contacted Gallant. However, he had no duty to do so. He was not Gallant’s realtor or property manager. And he too did everything openly. Why would he risk his own exposure to White, who was present and talking to the accused and Campbell on the day the trailer was hauled away? Brook would have every reason to know that White would smell a rat if he learned from the accused that she bought the trailer for less than he, Brook’s own friend, had been willing to pay for it. And White also knew that the trailer belonged to Gallant, and not to Brook.
58Moreover, Brook’s account was corroborated by Wyman with respect to the accused saying that she had paid $9000 for the trailer. In the circumstances of this case, I find that Ms. Harper told Brook and Wyman $9000 as the sale price in order to secure their cooperation without questioning her bona fides . The $2000 figure was arrived at later, to convince a different audience, given the accused’s straitened circumstances. And Brook’s surprise that the trailer was being hauled off-island by way of Gore Bay rather than by way of Mindemoya, which was the route he would have gone, appeared genuine, and constitutes a small, but telling, detail in his testimony. I trust Brook’s testimony that the accused said she was taking the trailer off-island to Sault Ste. Marie.
59While Mr. Weppler submitted that the accused did everything openly, I prefer a different word, and find that she conducted herself brazenly. Her repeated visits to Brook were intended to determine whether he had contacted Gallant himself. Had Brook done so, and discovered that the accused had not spoken with Gallant, it would be easy enough for her to back away from completing the theft. I do not accept that the accused told White where she lived, only where her family was from. I accept that she told Brook that the trailer was going to Sault Ste. Marie, and that she called herself only “Cookie”. The tow tongue was removed, and the tires flattened, to prevent the trailer’s easy removal from her property, should it be found. And it may not have been easy to find, had Cst. Hovingh not located Stanley Wyman and his truck on May 9, 2015 driving on Hwy 542, and learned the accused’s identity, which tells against White having had the information from the accused. Certainly, in my view, based on the evidence of Hovingh and the photos taken by the accused, the trailer was not easy for a passerby on Hwy 540 to see on the accused’s property, and looked very little like the “Window Box”, but a lot like a derelict trailer.
60For these reasons, I am satisfied beyond a reasonable doubt that the accused committed theft and mischief, and possessed property obtained by crime.
61On the other hand, Counts 1 and 3 on the indictment alleges “of a value exceeding five thousand dollars”. The evidence as to the value of the trailer is simply insufficient for me to be satisfied on this element, beyond a reasonable doubt. On Gallant’s testimony, he paid some $6500 for the trailer, which was already well used, in 2000 or 2002. He put some $5000 worth of improvements into the trailer. By 2015, when it was stolen, it had a leaky roof and some rot in its substructure. No further evidence was forthcoming about the trailer’s value in 2015, at the time it was stolen. I am prepared to take judicial notice that the trailer, like most chattels, depreciated over time to some degree. While the trailer had a high sentimental value to Gallant, I am unable to convert that into monetary value sufficient to find that it had a value over $5000.
Conclusion
62Accordingly, I find that the accused stole the trailer, but I am registering a finding of guilt to theft of a value not exceeding five thousand dollars on Count 1.
63I find that the accused wilfully committed mischief to the trailer, and I am registering a finding of guilt to mischief of a value not exceeding five thousand dollars on Count 2.
64Finally, I find that the accused possessed the trailer on the date alleged in Count 3, knowing it to have been obtained by her act of theft, but I am registering a finding of guilt to possession of property obtained by crime of a value not exceeding five thousand dollars.
65Pursuant to the principle in the decision of R. v. Kienapple, [1975] 1 S.C.R. 729, I am conditionally staying Count 3 on the indictment.
A.D. KURKE J. Released orally: December 8, 2017