COURT FILE NO.: 2385/19
DATE: 20191025
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
John Goodall
Defendant
Bianca D. DiBiase, for the Crown
Luigi Perzia, for the Defendant
HEARD: October 15, 16 and 17, 2019
Justice R. Raikes
[1] On February 10, 2018, Hilda Hiroyski was lying on the couch in her living room watching the Winter Olympics on her television. Ms. Hiroyski was then 76 years old and she lived alone. Ms. Hiroyski was wearing a night robe and slippers.
[2] Shortly after 11 p.m. she heard a noise coming from her back door. Her children have keys and they always call before they come over. This noise was different and startled her. She sat up and looked toward the kitchen. That is when she saw a man standing in her kitchen.
[3] The man came into the living room where he grabbed her and took her to a chair in the kitchen. He tied Ms. Hiroyski to the chair with the belt to her robe. Her hands were free but she was tied across her middle.
[4] The man asked her if anyone else was in the house. She knew that no one was there but told him “in the bedroom”. She did that so he would leave her. He did a quick check and returned to the kitchen where Ms. Hiroyski was still tied to the chair. He then went downstairs.
[5] While he was busy ransacking her bedrooms, taking her jewelry, Mrs. Hiroyski had the presence of mind and gumption to slip free from the robe belt tying her to the chair. She exited her house through the front door. She went to her neighbour’s house where the lights were still on. She banged on the window and then on the front door.
[6] When her neighbour, Mr. Blackwell, opened the door, she told him that she had been broken into. She thought the man might still be in her home. Her neighbour brought her into the house. His wife called police. He stepped outside to see if he could see the intruder.
[7] There was snow on the ground and it was decidedly chilly. He looked from his front porch and could see that Ms. Hiroyski’s side door, what she referred to as her back door, was open and damaged. By the time he went outside to look for signs of an intruder from his porch, Ms. Hiroyski’s older model car, a beige Impala, was gone. She usually parked it close to the door that was damaged in the break in.
[8] When police arrived at 11:49 p.m., they spoke briefly with Mr. Blackwell and Ms. Hiroyski. They then went to Ms. Hiroyski’s home where they searched to see if anyone was still inside. The intruder was gone.
[9] In the kitchen, police found a pry bar and screw driver sitting on top of the stove. The telephone charger had been ripped from the wall and was lying on the floor with the cord. Ms. Hiroyski’s late husband’s hunting knife, still in its leather sheath, was also laying on the floor.
[10] The chair to which Ms. Hiroyski was tied was still there, with her robe belt resting on the seat. A purse and scarf were hanging from it.
[11] The bedrooms showed signs of a hurried search by the intruder. Drawers were pulled out. Clothes were thrown about. A jewelry box in which Ms. Hiroyski kept her costume jewelry lay on her bed in the master bedroom. Its drawers were open.
[12] In the living room, Ms. Hiroyski’s television and stand had been tipped over.
[13] Photographs taken by police at Ms. Hiroyski’s home show the kitchen, bedrooms and the damaged side door through which the intruder gained entry to her home.
[14] Among the items taken from Ms. Hiroyski’s home was her wallet containing her bank card, credit cards and her personal identification.
[15] Ms. Hiroyski had a key rack near the back door where she kept key chains with keys to her vehicle and home. When her vehicle was found, her keys were inside the car. She recognised and identified the key chain which contained a souvenir from a trip to Las Vegas.
[16] Ms. Hiroyski was a good witness. She was careful in the answers she gave. Where she was unsure or uncertain, she said so. If she could not recall, she said so. Her recollection of events was consistent with the physical evidence found by police, the photographs taken, and the testimony of her neighbour, Mr. Blackwell.
[17] There were aspects of her evidence, particularly with respect to the description of the intruder and what he was wearing, that required her memory to be refreshed by reference to her statement to police. For some points, that refreshment did not spark a recollection. To her credit, she said so.
[18] At the time of her testimony, Ms. Hiroyski was 78 years old. With due allowance for her age and the passage of time since the incident, I find her evidence to be both credible and reliable. I observe that most of her testimony went unchallenged.
[19] Thus, I am satisfied beyond a reasonable doubt that Ms. Hiroyski was the victim of a break and enter in which she was assaulted by the intruder, unlawfully confined and her possessions including her vehicle stolen. The pry bar on the stove top came from her garage and was put there by the intruder. Her house was ransacked. Her door was damaged.
[20] The primary issue in this case is identity – whether the defendant is the intruder.
[21] The defendant, John Goodall, stands charged that:
• He did break and enter Ms. Hiroyski’s home and did commit the indictable offence of theft contrary to s. 348(1)(b) of the Criminal Code;
• He committed an assault of Ms. Hiroyski contrary to s. 266 of the Code;
• He unlawfully confined Ms. Hiroyski contrary to s. 279(2) of the Code;
• He had in his possession an instrument suitable for the purpose of breaking into a place – a pry bar – under circumstances that give rise to a reasonable inference that it was used for that purpose contrary to s. 351(1) of the Code;
• He stole Ms. Hiroyski’s Chevrolet Impala thereby committing theft contrary to s. 333.1 of the Code; and
• He had in his possession property – Ms. Hiroyski’s credit card and debit card – of a value not exceeding $5,000 knowing that property was obtained by commission of an offence punishable by indictment contrary to s. 355(b) of the Code.
[22] Ms. Hiroyski did not identify the defendant as the intruder. She did not recognize the intruder. Her description of the intruder was somewhat uncertain and general. The intruder was a white male, of medium height and build. She thought that he might be shorter than she is; she was 5’6”. She was unable to guess his age but thought he was a young man in his 30’s.
[23] Ms. Hiroyski could not initially recall what the intruder was wearing. After looking at her statement to police to refresh her memory, Ms. Hiroyski testified that she thought he was wearing a wool sweater with something knitted on top of his head. She stated: “I didn’t pay much attention.”
[24] She was asked if he wore glasses. She indicated that she could not recall but maybe he did; she could not be precise.
[25] Ms. Hiroyski was also asked whether the intruder reminded her of anyone and she answered “no”. She was later asked if she recalled someone coming to her home a few days before the home invasion to shovel her driveway. She could not recall anyone coming to her door for that purpose even after she was shown that part of her statement to police. She testified that she had someone that she paid to do the snow for her.
[26] A voir dire was held at the commencement of trial dealing with the voluntariness of the defendant’s audio-video recorded statement at the Sarnia Police station the morning of February 12, 2018. I ruled that the statement was voluntary. It was made an exhibit at trial during the testimony of Staff Sgt. Murphy.
[27] Mr. Goodall denied any involvement in the home invasion but did say that he was at her home on February 8, 2018. He shovelled her driveway, moved her vehicle while he cleared the driveway and went inside where they had coffee together. Mr. Goodall was not asked any questions as to whether and how he came to be in possession of Ms. Hiroyski’s credit cards, debit card and personal identification.
[28] Mr. Blackwell’s exterior surveillance video shows a person dressed in dark clothing walking along Mayfair Dr. and walking up Ms. Hiroyski’s driveway to her house on February 8 during the morning. The video does not allow for a clear identification of the defendant as the person in the video.
[29] In any event, Ms. Hiroyski did not identify the defendant as the intruder and her description of the intruder is of limited assistance.
Blackwell Video Surveillance
[30] One of the cameras to Mr. Blackwell’s exterior video surveillance of his home looks across his front porch in the direction of Ms. Hiroyski’s driveway and front yard. It also shows the sidewalk along Mayfair Dr..
[31] At the request of police, Mr. Blackwell retrieved the video footage for the night of the home invasion - February 10, 2018. It shows a person dressed in dark clothing walking on the sidewalk in the direction of Mr. Blackwell and Ms. Hiroyski’s properties. That person jumped over the hedge bordering the sidewalk to Ms. Hiroyski’s front yard and ran toward the side of her house at 11:07 p.m. on February 10, 2018. This person is undoubtedly the intruder.
[32] Once again, the video does not permit identification of the intruder. The most that can be said is that the person appears to be approximately the same height and build and is dressed in similar dark clothing as the person who came to Ms. Hiroyski’s home on morning of February 8, 2018.
[33] Staff Sgt. Murphy testified in chief that he compared the individuals seen in the videos from February 8 and 10, 2018 by looking at the height of the person walking as they passed the same tree. He concluded that they were the same height.
[34] He also looked at the build of the persons on the videos and concluded that they were substantially the same. Finally, he observed that both were wearing dark clothing and appeared to walk in the same manner. In cross-examination, he agreed that it is entirely possible that one of the persons shown could be a skinnier person with more layers of clothing.
[35] Frankly, Staff Sgt. Murphy’s evidence in this regard is unhelpful and unnecessary. As trial judge, I am capable of watching the video and making my own observations, which I did.
[36] Mr. Blackwell’s video surveillance also shows that a vehicle backed out of Ms. Hiroyski’s driveway at approximately 11:32 p.m.. The car was driven up the street somewhat erratically until it turned the corner and stopped. The car was at rest for a brief period and, although difficult, it appears that the driver got out briefly to clear the front window.
[37] Thus, the video surveillance footage is helpful in fixing the time when the intruder arrived at and left Ms. Hiroyski’s home on February 10, 2018. It does not meaningfully assist in identifying the intruder except to this extent: if Mr. Goodall is the man shown on the February 8, 2018 video, the February 10 video does not show someone obviously different in height and build.
[38] There is no forensic evidence tendered to place Mr. Goodall as the intruder.
[39] The primary evidence upon which the Crown relies comes from two witnesses: Jeffrey Cunningham and Justice Hardy.
Jeffrey Cunningham
[40] Mr. Cunningham testified in-chief that he has known Mr. Goodall for 6-7 years. They met through different friends. Both are part of Sarnia’s drug subculture. They have hung out together on the streets and at people’s houses. He identified Mr. Goodall in court.
[41] According to Mr. Cunningham, he saw the defendant at a friend’s home on South Vidal St. in Sarnia a week or two after the home invasion happened. He had heard rumours from three or four people on the street that John Goodall was the one who had done the home invasion of an elderly woman in Sarnia. He and Mr. Goodall spoke. Mr. Goodall told him that police were looking for him. He asked the defendant if he was the one who broke into the old lady’s house. Mr. Goodall said that he did.
[42] The two of them then went for a walk. While they were walking alone together, Mr. Cunningham testified that the defendant told him that:
He - Mr. Goodall - broke into her house;
The woman lived in the same area as his mother. He knew her from when he was young. He used to shovel her driveway and do odd jobs for her;
He shovelled her driveway and she invited him in;
He went into a bedroom and was rifling through her stuff looking for cash;
She came in and started to hit him with a cane;
He tied her to a chair using phone cord;
He ripped the phone out of the wall;
She slipped out of the chair and took off so he did as well;
He freaked out when the old lady escaped. He took her car;
He got some Visa cards, rings and jewellery. He showed Mr. Cunningham two or three rings and asked him to look at them to see what carat of gold they were. He put them back in his pocket; and
His girlfriend, Justice Williams, had the debit and credit cards. He had told her to stop using the cards.
[43] Mr. Cunningham testified that he decided to speak to police because it was an older lady and someone’s house. He believed that it was wrong.
[44] Mr. Cunningham was vigourously tested in cross-examination.
[45] He agreed that at the time of his conversation with the defendant, he was addicted to crystal meth. He had been struggling with that addiction for years. He was using a couple of times a week. Sometimes the effects lasted for days.
[46] He denied that at the time of the conversation with Mr. Goodall he was under the influence of crystal meth. His testimony from the preliminary hearing on February 11, 2019 was then put to him. On that occasion he was asked whether he thought he was under the influence of crystal meth at the time he spoke with Mr. Goodall. He said that he thought he was.
[47] He did not adopt his answer from the preliminary hearing. Instead, he testified that he may have used crystal meth a day or two before the conversation, but he was not intoxicated from drugs when they spoke. On re-examination, he indicated that “under the influence” means to him “within an hour” of using. He was not impaired when he spoke with the defendant.
[48] Mr. Cunningham agreed with defence counsel that when he did wake after using crystal meth, he would be unsure about events that happened while he was under the influence of the drug. He indicated that happens “pretty much every time I use”.
[49] Mr. Cunningham confirmed that John Goodall told him that police were looking for him. He was then asked whether what the defendant told him was what police were saying he did, not what he actually did. Mr. Cunningham answered that Mr. Goodall was telling him what he did, not what police were saying he did.
[50] Once again, the transcript of his preliminary hearing testimony was used to impeach his testimony. He testified at the preliminary hearing:
“…I really can’t remember whether he said he did it or their – the police were after him or he knew who did it or like I was under the influence then, so I don’t want to say 100% that he was saying he did it or he knows of who did it. I can’t say a hundred percent, no.”
[51] Mr. Cunningham was arrested and was taken to the Sarnia police station approximately 2-3 weeks after the conversation with Mr. Goodall. The arresting officer told him that a detective was going to speak with him. Mr. Cunningham was anxious to be out on bail. He understood that the detective would help him with bail if he cooperated. That is when he first told police about his conversation with Mr. Goodall. In re-examination he testified that he did not speak with police earlier because he was afraid that he would “get jumped in jail” for telling.
[52] I do not find Mr. Cunningham’s evidence to be reliable. In that regard, I note the following:
The significant discrepancies in his testimony at trial and at the preliminary hearing on matters crucial to what he was told and his capacity to accurately recall;
His regular use of crystal meth in that period and his acknowledgement of its effects on his memory.
I observe that there are material inconsistencies between what he said John Goodall told him about the home invasion and what actually happened. For example,
Ms. Hiroyski was tied up with a belt from her robe not a phone cord;
She did not find him in her bedroom and hit him with a cane;
He did not start going through things in her bedroom on the day he shoveled her driveway.
I appreciate that what Mr. Goodall told him happened need not conform to what actually transpired.
[53] I am also troubled by the timing of his statement to police. He was anxious to be out of custody. He knew that police were interested in Mr. Goodall as a suspect from sources on the street.
[54] There is no other corroborating evidence for Mr. Cunningham’s alleged conversation with Mr. Goodall that might ameliorate my concerns. Accordingly, I am unable to place any reliance on the alleged admission by Mr. Goodall or Mr. Cunningham’s evidence of what Mr. Goodall allegedly told him of the incident.
Justice Hardy
[55] Justice Hardy is Mr. Goodall’s former girlfriend. She sometimes goes by Justice Williams. At the time of the incident, she and the defendant were romantically involved. Both were into the drug scene in Sarnia. She used crystal meth and opiates. Neither had a fixed address. Their relationship ended shortly after February 2018.
[56] Ms. Hardy has changed her life considerably since February 2018. She has been free from drug use for more than a year. She is enrolled in a college PSW program.
[57] On February 11, 2018 – the morning following the home invasion – Ms. Hardy used Ms. Hiroyski’s credit card at various Sarnia stores to purchase lottery scratch tickets, cigarettes, food and to get cash back. She is captured on video at two stores. The first in time is at a 7-Eleven variety store.
[58] Ex. F is a transcription of Agreed Facts that were read in by Crown counsel near the end of the Crown’s case. The agreed facts are:
“On February 11, 2018 @ 8:18 a.m., Justice Hardy was captured on video surveillance at the 7-Eleven at Christina Street and London Road using one of the complainant’s stolen credit cards. William McDonald was in the store with her. Mr. McDonald did not use or handle the stolen card. Mr. McDonald was originally arrested for possession under $5,000 relating to the stolen card. He was interviewed by Detective Sergeant Kahnert and Detective Constable Knapp. During the course of the interview, officers were able to determine that Mr. McDonald was not involved in the offence, and that there were no reasonable and probable grounds to charge him. He was released unconditionally.”
[59] The second store video tape is from the Vidal Street Variety and is found on Ex. 2. Ms. Hardy is clearly shown on the video first waiting her turn at the counter, then purchasing lottery scratch tickets and cigarettes. She also got cash back but could not recall the amount. She used Ms. Hiroyski’s credit card for the transaction.
[60] Mr. Goodall was also present in the Vidal Variety Store but did not stand or interact with Ms. Hardy while she waited her turn or when she dealt with the clerk. He was identified by both Ms. Hardy and Staff Sgt. Murphy who has known Mr. Goodall since he was a youth.
[61] Ms. Hardy identified herself in the Vidal Street Variety video. She indicated that the credit cards used for the purchases were not hers. She got them from John Goodall together with the driver’s licence and birth certificate of an older woman. She could not recall the name on the cards and guessed “Helga”. I am satisfied that the cards and identification belonged to Ms. Hiroyski.
[62] Ms. Hardy testified that she and Mr. Goodall were at a mutual friend’s apartment on the evening of February 10, 2018. Mr. Goodall left about 11 p.m. and said he’d be back. He told her that when he got back, they’d go out. She waited. He returned at approximately 1 a.m. She could not recall where they went when he returned or where they slept that night.
[63] According to Ms. Hardy, John Goodall gave her the credit cards and identification at approximately 1 a.m. “the previous night or night before”. The transactions at the stores happened on the morning of February 11, 2018. Ms. Hiroyski’s wallet with her cards and identification was taken at approximately 11:30 p.m. on February 10. She first noticed they were missing on the 11th.
[64] Therefore, Ms. Hardy must have come into possession of the cards around 1 a.m. on February 11 – within two hours of the home invasion where Ms. Hiroyski’s wallet was stolen.
[65] Ms. Hardy testified that Mr. Goodall did not tell her where he got the credit/debit cards and identification.
[66] Ms. Hardy was arrested by police and interviewed on February 13, 2018. She initially told police in the interview that she found the cards on the ground. She did so because she did not want to say who she got them from because he would be arrested too. She did not want Mr. Goodall to be in trouble for giving her stolen credit cards.
[67] Later in the interview, Ms. Hardy told police that she obtained the cards from John Goodall. She testified that she did not do so because of threats made by police. She did not believe those threats. She told police because they told her that the cards came from an old lady from a home invasion. She was not aware of the source of the cards until then.
[68] The transcript of Ms. Hardy’s interview is part of the application record filed by the defendant on an application to exclude Ms. Hardy’s testimony in its entirety. That application and my decision are addressed in separate reasons. I have declined the application.
[69] In cross-examination, Ms. Hardy agreed that the following were factors in her decision to talk to police:
• She was afraid of the consequences to her of being charged.
• Losing her kids went through her head.
• She could be in jail for a long time.
[70] Although I have declined the defendant’s application to exclude Ms. Hardy’s evidence, I may and have taken the circumstances of the interview into account in assessing the credibility and reliability of her evidence. I have specifically considered whether her evidence that she got the cards from John Goodall was given because she was pressured to name him or to avoid consequences to herself.
[71] Defence counsel also points to an answer given by Ms. Hardy at the end of her cross-examination that she was not in the presence of William McDonald when the stolen credit cards were used. That is contradicted by the 7-Eleven video and the Agreed Facts. He urges me to find that her evidence is unreliable. At a minimum, it should be viewed with suspicion or doubt.
[72] I have carefully considered Ms. Hardy’s evidence including what she told police and why. I am mindful that she was then an addict and that she used credit cards that she knew were not hers.
[73] I am entitled to accept some, all or none of any witness’ evidence. It is often difficult to articulate why one witness’ evidence is accepted and another’s is not. Phrases like “ring of truth” are sometimes used. I am mindful of the Supreme Court’s admonition against determining credibility and reliability based on demeanor.
[74] Apart from her denial that she was with Mr. McDonald, Ms. Hardy’s evidence was consistent internally and with the available videotape evidence at the store where Mr. Goodall was present. It was also consistent with the banking records (ex. 1).
[75] It is not uncommon for suspects to initially lie to police and then tell the truth when confronted. Ms. Hardy falls in that camp.
[76] It did not appear to me that she had any hard feelings against Mr. Goodall that might motivate her to point the finger at him. Her description of her relationship with Mr. Goodall, and the events of February 10 and 11, 2018 are reasonable. I find her to be a credible and reliable witness.
[77] I am satisfied and accept Ms. Hardy’s evidence that John Goodall gave her the credit cards, debit card and identification of Hilda Hiroyski at approximately 1 a.m. on February 11, 2018. I am also satisfied that he did not tell her where he got the cards and identification. He left her at a mutual friend’s apartment at approximately 11 p.m. on February 10 without telling her where he was going and what he was going to do. He gave her the cards and identification soon after he returned.
[78] I further find as a fact that the credit cards, debit card, and identification of Ms. Hiroyski were among the items stolen from her home during the home invasion late on February 10. They were in her wallet which was taken.
Kyla McPhedran
[79] The defendant did not testify as is his right. The defence did call Ms. Kyla McPhedran to testify. Ms. McPhedran was originally on the Crown witness list.
[80] Ms. McPhedran resides in Sarnia. She has young children. She works during the day. Ms. McPhedran goes to bed early which she did on the night of February 10/11. She was sleeping until she was awakened by a loud noise that sounded to her like a loud muffler from a diesel truck. She heard what sounded like a vehicle door being slammed shut and a male voice say “go-go-go”.
[81] Ms. McPhedran’s bedroom is at the back of her house. Her window does not face the street. She did not get up to look outside, nor did she look at the clock. She estimated the time at about midnight because it was so dark. She thought the noises were coming from her neighbour’s place.
[82] She went back to sleep. In the morning when she came out to go to work, she saw a car parked in front of her house. As it turns out, the vehicle was Ms. Hiroyski’s Impala. One of the front windows was down but Ms. McPhedran did not give the vehicle more than a passing thought as she left for work. She thought maybe the vehicle was a neighbour’s or someone visiting a neighbour.
[83] The vehicle was still there when she came home from work and remained in the same location another night. The following morning, it was snowing. She decided to call police about the car since the windows were still down. She went to work and the vehicle was gone by the time she got home.
[84] Defence counsel points to the sounds heard by Ms. McPhedran and asks that I infer that there were at least two persons involved in the break and enter and theft of Ms. Hiroyski’s vehicle. Therefore, it must have been someone other that the defendant who was in Ms. Hiroyski’s home late on February 10, 2018.
[85] The defendant is under no obligation to testify in his defence. I simply observe that no evidence was offered by the defendant nor any other witness as to how Mr. Goodall came to be in possession of Ms. Hiroyski’s credit cards, debit card and photo identification. He was not asked about same during his interview by police.
Crown Position
[86] The Crown submits this is a circumstantial case to be determined by consideration of the whole of the evidence. Crown counsel agrees that the complainant, Ms. Hiroyski, cannot assist with respect to the identity of the intruder on February 10.
[87] The Crown relies on the evidence of Mr. Cunningham and Ms. Hardy together with the doctrine of recent possession.
[88] He admitted his involvement to Mr. Cunningham. Further, Mr. Goodall had Ms. Hiroyski’s credit cards, debit card and personal identification including driver’s licence within two hours or less of the break-in and theft. I should infer that he came into possession of those items because he was the intruder; he took them. He was the man who tied Ms. Hiroyski to the chair and stole her wallet, vehicle and jewelry.
[89] Mr. Goodall was familiar with the house having been in the garage and house as recently as two days earlier. He knew where her keys were kept because he moved the vehicle when he shoveled the driveway. He was with Ms. Hardy in the Vidal Street Variety store when she used one of the credit cards that he gave to her.
[90] With respect to count 7 on the indictment (s.355(b)), he stole the credit cards. He knew that they were stolen property. Alternatively, the fact that he gave to cards to Ms. Hardy to use amounts to wilful blindness from which I should find that he knew they were stolen.
Defence Position
[91] Mr. Perzia argues that if there are other possibilities I must acquit because this is a circumstantial case. Here, I must do so. Ms. McPhedran’s evidence points to the possibility of other persons who committed the break-in and theft. From her evidence, there were at least two persons, one of which was driving a loud truck.
[92] Mr. Perzia argues that the evidence of Ms. Hardy, Mr. Cunningham and Ms. Hiroyski – at least as it relates to identity – is unreliable. It does not rise to the level of beyond a reasonable doubt. Mr. Goodall’s statement to police in which he denied any unlawful entry or theft or involvement in the home invasion is unimpeached. It raises a reasonable doubt.
[93] With respect to count 7, he again urges me to find the evidence of Ms. Hardy to be unreliable. He could have come into possession of those cards various ways.
Analysis
[94] This is a circumstantial case. There is no physical evidence linking the defendant to the break and enter or the theft of the vehicle, credit cards etc. No finger prints. No DNA. No surveillance video from which he can be identified as the person entering, leaving or in the home. Ms. Hiroyski was the only person present during the home invasion and her evidence does not identify Mr. Goodall as the intruder.
[95] I have assessed the credibility and reliability of the identity witnesses above. I need not repeat it.
[96] The issue of identity comes down to Mr. Goodall’s possession of the credit cards, debit card and Ms. Hiroyski’s identification which he gave to his girlfriend, Ms. Hardy, within two hours of the break and enter. He offers no explanation for how he came into possession of same, nor is he required to do so.
[97] The Crown relies on the doctrine of recent possession and asks that I draw an inference that he obtained the cards and identification because he was the one who came into Ms. Hiroyski’s home and stole them.
[98] The seminal case on the doctrine of recent possession is R. v. Kowlyk, 1988 CanLII 50 (SCC), [1988] 2 S.C.R. 59. McIntyre J. for the majority summarized the doctrine at p. 74-75:
…Upon proof of the unexplained possession of recently stolen property, the trier of fact may – but not must – draw an inference of guilt of theft or of offences incidental thereto. Where the circumstances are such that a question could arise as to whether the accused was a thief or a mere possessor, it will be for the trier of fact upon consideration of all the circumstances to decide which, if either, inference should be drawn. In all recent possession cases the inference of guilt is permissive, not mandatory, and when an explanation is offered which might reasonably be true, even though the trier of fact is not satisfied of its truth, the doctrine will not apply.
[99] In R. v. Cuming, 2001 CarswellOnt 3140 (ON CA), Charron J. A. sets out at para. 34 the pre-conditions that must exist before any inference may be drawn:
The trier of fact must be satisfied that (a) the person is in possession of the goods; (b) the goods were stolen; and (c) the theft was recent. In addition, if an explanation is provided, the jury must be satisfied that it could not reasonably be true before it may draw an inference that the person is the thief or that he knew the goods were stolen.
[100] Provided the pre-conditions are satisfied, the doctrine of recent possession permits an inference to be drawn. It does not require the trier of fact to draw to inference. It is a permissible inference, not a mandatory presumption: R. v. Choquette, 2007 ONCA 571 at para. 12.
[101] In this case, I am satisfied beyond a reasonable doubt that:
Mr. Goodall was in possession of Ms. Hiroyski’s credit cards, her debit card, her driver’s licence and her birth certificate;
Those items were in Ms. Hiroyski’s wallet which was stolen from her home during the break and enter on February 10, 2018; and
The theft was recent; viz. Mr. Goodall had these items in his possession when he gave them to Ms. Hardy at approximately 1 a.m. on February 11, 2018, within two hours of the time they were stolen from Ms. Hiroyski’s home.
[102] Before I decide whether to draw the inference, I must first consider the defendant’s theory that someone else stole the wallet – someone else committed the home invasion. On that point, he relies on Ms. McPhedran’s evidence.
[103] In my view that theory lacks a sufficient evidentiary foundation. At most, Mr. Goodall has a witness who heard a vehicle door slam, a male voice yell “go-go-go” and a loud truck drive off. She could not say what time that happened. Was it at 10:30 pm on Feb. 10, 12:30 a.m. on Feb 11 or 2:30 a.m. after Mr. Goodall had already given the cards to Ms. Hardy?
[104] Moreover, Ms. McPhedran could not say that the noises she heard had anything to do with the vehicle she found parked on the street in the morning. She did not see it arrive. She did not see who drove it. She did not look out her window. She did not connect the noise she heard to the car. The suggestion that the noises she heard mean someone other than Mr. Goodall must have broke in and robbed Ms. Hiroyski is pure speculation. It does not raise a reasonable doubt.
[105] Further, I note that that theory offers no explanation as to how Mr. Goodall came to have possession of the credit cards etc.. As I have indicated earlier, Mr. Goodall is not required to offer an explanation for his possession; however, absent any explanation, I may infer his involvement in the home invasion and theft from his recent possession. To be clear, the inference must derive from the recent possession, not the failure to offer an explanation.
[106] I turn now to whether to draw the inference in this case on the whole of the evidence. It is open to me to infer, inter alia, that he was the intruder or that he somehow came into possession of property he knew to be stolen. Equally, I may decline to draw the inference of either or both.
[107] In this case, I infer from Mr. Goodall’s possession of the stolen credit cards, debit card and Ms. Hiroyski’s personal identification within two hours or less after the home invasion that Mr. Goodall was the man who came into Ms. Hiroyski’s home late on February 10, 2018, brought her to the kitchen, tied her up using her robe belt, ransacked her home and stole her car, credit cards, debit card and personal identification. He is the one who left the pry bar on her stove top.
[108] Mr. Goodall was at Ms. Hiroyski’s home two days earlier. He was inside her home. He moved her vehicle. He knew the layout of the house, that she was an elderly woman living alone, and where she kept her keys. He left Ms. Hardy at a friend’s apartment shortly before the home invasion. He came back soon after with the cards and identification. He was observed in one of the stores in the presence of his girlfriend as she used the stolen cards later that morning.
[109] I am satisfied beyond a reasonable doubt that the defendant, John Goodall, is guilty of counts 1, 2, 3, 4, 5, and 7 on the indictment.
Justice R. Raikes
Released: October 25, 2019
COURT FILE NO.: 2385/19
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
John Goodall
REASONS FOR JUDGMENT
Raikes, J.
SCJ
Released: October 25, 2019