COURT FILE NO.: CR-19-40000059-00AP
DATE: 20191106
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
RODERICK JAMES
S. Clarke, for the Crown
I. McCuaig, for the defence
HEARD: 25 October 2019
S.A.Q. AKHTAR J.
On appeal from the conviction entered by Justice David Fairgrieve of the Ontario Court of Justice on 23 April 2019.
FACTUAL BACKGROUND AND OVERVIEW
Introduction
[1] The appellant was charged with theft, possession of stolen property, possession of burglary tools, and possession of ammunition while prohibited from doing so. The offences arose out of events that occurred on 17 December 2017 at the Yorkdale shopping mall.
[2] At the conclusion of his trial, the appellant was convicted only of possessing ammunition while prohibited. He appeals that conviction arguing that the trial judge failed to properly apply the relevant legal principles relating to the assessment of circumstantial evidence.
[3] These reasons explain why the appeal must be dismissed.
Factual Background
[4] On 17 December 2017, the appellant and a female companion were observed together at the Holt Renfrew store located at Yorkdale Mall. Security staff noticed that the female was wearing a jacket but carrying another in her arms. She was seen to select a pair of men’s trousers and conceal them underneath the jacket that she was carrying. The female and the appellant then left the store without paying.
[5] The police were called and a security guard followed the pair to a nearby Versace store. When an officer arrived, the guard directed him to the parties’ whereabouts in the store. The officer found both the appellant and his companion in a fitting room along with the stolen trousers and a Versace belt. In addition, the officer noticed a large black jacket situated beside the appellant. He searched the jacket and found five .22 calibre bullets.
[6] As the appellant was the subject of a court order prohibiting him from the possession of ammunition, he was charged with this offence. The officer then handed the jacket to the appellant who put it on before being transported to the police station.
[7] As noted, the appellant was tried and acquitted of the theft related offences. However, the trial judge found him to be the owner of the jacket in which the bullets were found. The judge concluded beyond a reasonable doubt that the appellant had knowledge and control of the bullets and convicted him of possession of ammunition while prohibited.
The Grounds of Appeal
[8] The appellant’s factum sets out three grounds of appeal:
(1) The verdict was unreasonable because the trial judge failed to properly apply the principles relating to the use of circumstantial evidence;
(2) The trial judge reversed the onus of proof of an offence based entirely on circumstantial evidence; and
(3) The trial judge provided insufficient reasons in explaining how he convicted the appellant on the circumstantial evidence tendered by the Crown.
[9] However, in oral submissions, the appellant’s counsel’s arguments centred on the manner in which the trial judge evaluated the circumstantial evidence in this case.
[10] The appellant argues that the trial judge failed to consider the existence of plausible explanations for the presence of the bullets in the jacket contrary to the directions set out by the Supreme Court of Canada in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000.
[11] I will deal with all of the grounds of the appeal advanced.
(1) Did the Trial Judge Err in his Application of Circumstantial Evidence?
[12] In Villaroman, at para. 37, the Supreme Court of Canada explained that in order to convict an accused in a case based entirely on circumstantial evidence, the trier of fact had to consider other plausible theories and reasonable possibilities inconsistent with guilt. Cromwell J., at paras. 37-38, explained the rule in the following way:
When assessing circumstantial evidence, the trier of fact should consider "other plausible theor[ies]" and "other reasonable possibilities" which are inconsistent with guilt: R. v. Comba, 1938 CanLII 14 (ON CA), [1938] O.R. 200 (C.A.), at pp. 205 and 211, per Middleton J.A., aff'd 1938 CanLII 7 (SCC), [1938] S.C.R. 396; R. v. Baigent, 2013 BCCA 28, 335 B.C.A.C. 11, at para. 20; R. v. Mitchell, [2008] QCA 394 (AustLII), at para. 35. I agree with the appellant that the Crown thus may need to negative these reasonable possibilities, but certainly does not need to "negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused": R. v. Bagshaw, 1971 CanLII 13 (SCC), [1972] S.C.R. 2, at p. 8. "Other plausible theories" or "other reasonable possibilities" must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation.
Of course, the line between a "plausible theory" and "speculation" is not always easy to draw. But the basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty. [Emphasis in original.]
[13] Here, the appellant argues that there was no link between the jacket and himself. As a result, there could be no reasonable inference that he had knowledge and control of the bullets. The appellant points out that no witness ever testified to seeing the appellant wearing or holding the jacket prior to arrest. Nor were there any identifying documents found in the jacket. With this dearth of evidence, the trial judge had no reasonable basis to infer that the appellant had knowledge and control of the bullets. Respectfully, I disagree.
[14] In his reasons for judgment, the trial judge found as a fact that the coat belonged to the appellant. I agree that the following items of evidence show that there was more than sufficient bases to support this finding:
• The appellant and his female companion were seen walking together and conversing in Holt Renfrew whilst she carried the jacket;
• The female was wearing a jacket but still held the other jacket as a method of concealing the stolen trousers;
• The appellant and the female left the store together;
• Both were found together at the Versace store;
• Two coats were found beside them in the fitting room: a woman’s coat and a larger coat described by the officer as one that would be worn by a man;
• That coat was next to the appellant; and
• When the police arrested the appellant and were about to take him to the station, they gave the appellant the coat and he put it on.
[15] In the alternative, the appellant argues that even if the coat was found to be his, that was not determinative of the issue of guilt: the judge had to go further and consider alternative reasonable possibilities consistent with his innocence.
[16] At trial, the appellant argued that since his female companion was carrying the coat in the store, she had the opportunity to place the ammunition in the garment. The trial judge considered this position but rejected it after concluding that there was no evidence of that fact. He also decided that there was no evidence why that would be a reasonable inference to draw in the circumstances. The judge indicated that “objectively, it is very unusual behaviour for someone committing a theft to be putting property that should not have been in the possession of Mr. James into Mr. James’ coat”. In other words, he dismissed this argument as fanciful.
[17] The appellant argues that the trial judge’s analysis fell short and that he should have gone on to consider other scenarios. On this appeal, the appellant argued that there was a reasonable inference that the female brought the appellant’s coat without his agreement because she wanted him to wear it. In that sense, argues the appellant, it may have been possible that either she or someone else had an opportunity to place the bullets in the coat without the appellant’s knowledge. The appellant maintains that these and other hypothetical factual situations should have been considered and that the failure to do so was a reversible error on the part of the trial judge.
[18] I find this argument to be misconceived.
[19] What is clear is that the “other plausible theories” or “reasonable possibilities” must be applied based on the evidence before the court or any gaps in the evidence and not on speculation: Villaroman, at para. 37. The judge did just that by rejecting the appellant’s scenario of the appellant’s female companion placing the bullets into the coat as implausible. There was no error on the part of the trial judge in doing so.
[20] Whilst the alternative theories or hypotheticals did not have to be based on proven facts, Villaroman did not oblige the trial judge to go beyond the evidence or any gaps in the evidence at trial to dream up alternative scenarios beyond the factual matrix he was presented with. These would invite speculation.
[21] In this respect, the appellant’s argument is answered in Villaroman. There, the appellant was charged with possession of child pornography found on his computer when he took it to a store to be repaired. Villaroman said that he lived with two others at the same address and testified that none of them had placed the illicit material on the computer. In finding that it was reasonable for a trier of fact to find that Villaroman knew the material was on his computer, Cromwell J. made the following comments:
While the accused need not lead evidence to show that another person had such access to his laptop, based on the evidence and lack of evidence before the Court, it is speculative to consider whether another person had such an opportunity, let alone to assume that Mr. Villaroman would be ignorant of the presence of the material on his computer: at para. 65. [Emphasis added.]
[22] Another example of alternative speculation can be found in R. v. Magdales, 2019 ONCA 572, where the appellant was convicted of trafficking cocaine after being observed conducting a drug deal by surveillance officers and having items seized from cars under his and another man’s control. The evidence against the appellant was entirely circumstantial and, at trial, the appellant advanced the alternative position that the drug deal was not a drug deal at all and that one of the men (the buyer) was lost and merely seeking directions from the appellant. In upholding the conviction, the Court of Appeal for Ontario described this inference as a “putative inference, which was unsupported by the evidence of either party” and “might better have been characterized as speculation”: at para. 6. See also: R. v. Onyedinefu, 2018 ONCA 795, at para. 12.
[23] The appellant’s arguments in this case are equally as speculative as those in Magdales and Onyedinefu.
The Remaining Grounds of Appeal
[24] In addition, although not vigorously pursued in oral submissions, the appellant, in his factum, argued that in coming to his verdict, the trial judge reversed the onus of proof. I reject this argument. By commenting that “there was no evidence to support any inference other than guilt” and “it would be mere speculation” the judge was not reversing the onus of proof but simply restating the Villaroman test. The reasons, read as a whole, demonstrate that the trial judge firmly placed the obligation to prove the case against the appellant beyond a reasonable doubt on the Crown.
[25] I would note, as an aside, that on this appeal, the appellant’s failure to testify is a factor that can be taken into account in determining whether an innocent inference was available: R. v. George-Nurse, 2018 ONCA 515, 362 C.C.C. (3d) 76, at paras. 32-35.
[26] Finally, the appellant, in his factum, advanced the argument that the appeal must succeed because the trial judge’s reasons lacked sufficiency. This argument fails.\
[27] In R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 15-17, the court set out the test for insufficiency of reasons as follows:
The reasons must be sufficient to fulfil their functions of explaining why the accused was convicted or acquitted, providing public accountability and permitting effective appellate review.
It follows that courts of appeal considering the sufficiency of reasons should read them as a whole, in the context of the evidence, the arguments and the trial, with an appreciation of the purposes or functions for which they are delivered (see Sheppard, at paras. 46 and 50; R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (C.A.), at p. 524).
These purposes are fulfilled if the reasons, read in context, show why the judge decided as he or she did. The object is not to show how the judge arrived at his or her conclusion, in a "watch me think" fashion. It is rather to show why the judge made that decision. The decision of the Ontario Court of Appeal in Morrissey predates the decision of this Court establishing a duty to give reasons in Sheppard. But the description in Morrissey of the object of a trial judge's reasons is apt. Doherty J.A. in Morrissey, at p. 525, puts it this way: "In giving reasons for judgment, the trial judge is attempting to tell the parties what he or she has decided and why he or she made that decision" (emphasis added). What is required is a logical connection between the "what" — the verdict — and the "why" — the basis for the verdict. The foundations of the judge's decision must be discernible, when looked at in the context of the evidence, the submissions of counsel and the history of how the trial unfolded. [Emphasis in original.]
[28] I find that the reasons set out by the trial judge and referred to in preceding paragraphs more than satisfied this test.
[29] For these reasons, the appeal is dismissed.
S.A.Q. Akhtar J.
Released: 6 November 2019
COURT FILE NO.: CR-19-40000059-00AP
DATE: 20191106
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
RODERICK JAMES
REASONS FOR JUDGMENT
S.A.Q. Akhtar J.