



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Kaguyutan, 2014 ONCA 384

DATE: 20140512

DOCKET: M43762 C58710

Lauwers J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent

and

Richard Alan Kaguyutan

Applicant

Alex Trica, for the applicant

Philippe Cowle, for the Crown

Heard:  May 7, 2014

Application for release pending the appeal from
    convictions entered on January 24, 2014 by Justice Gisele M. Miller of the
    Superior Court of Justice, sitting without a jury.

Lauwers J.A.:

[1]

The applicant was convicted of one count of break and enter and commit
    robbery, and one count of robbery, and received a custodial sentence of 3 years.
    The applicant has appealed his conviction and seeks bail pending appeal.

A.

The Governing Principles on Bail Pending Appeal

[2]

Watt J.A. laid out the governing principles for bail pending appeal in
R.
    v. Manasseri
, 2013 ONCA 647, [2013] O.J. No. 6177, at paras 37-38, 40-43:

Under section 679(3) of the
Criminal Code
, an
    applicant who seeks release pending the determination of an appeal from
    conviction must establish to the satisfaction of the chambers judge:

i.

that the appeal is not frivolous;

ii.

that the applicant will surrender into custody in accordance with the
    terms of the release order; and

iii.

that the applicants detention is not necessary in the public interest.



An appeal is not frivolous if the proposed grounds of appeal
    raise arguable issues.  An applicant need not establish a likelihood, much less
    a certainty of success on appeal, but must be able to point to a viable ground
    of appeal that would warrant appellate intervention if established.



The public interest criterion in section 679(3)(c) requires a
    judicial assessment of the need to review the conviction leading to
    imprisonment, on the one hand, and the need to respect the general rule of
    immediate enforceability of judgments, on the other:
R. v. Farinacci
(1993),
    86 C.C.C. (3d) 32 (Ont. C.A.), at pp. 47-48.

Public confidence in the administration of justice requires
    that judgments be enforced. The public interest may thus require that a person
    convicted of a very serious offence, like second degree murder, who advances
    grounds of appeal that are arguable but weak, be denied release pending
    appeal:
Farinacci
, at p. 48.

But public confidence in the administration of justice also
    requires that judgments be reviewed, and that errors, if any, be corrected,
    especially where an appellants liberty is at state [sic]:
Farinacci
,
at p. 48.

The public interest ground assumes a place of greater
    prominence in cases in which an applicant has been convicted of a very serious
    offence and faces the prospect of a lengthy period of incarceration:
R. v.
    Baltovich
(2000), 144 C.C.C. (3d) 233 (Ont. C.A.  Chrs), at para. 19;
R.
    v. Demyen
(1975), 26 C.C.C. (2d) 324 (Sask. C.A.), at p. 326.  As a
    result, release of an applicant pending appeal of a murder conviction is rare:
Baltovich
, at para. 20.  But where the grounds of appeal are strong
    and a serious concern about the accuracy of the verdict emerges from the
    materials filed, the public interest may favour release:
Baltovich
,
    at para. 20;
R. v. Parsons
(1994), 30 C.R. (4th) 169 (Nfld. C.A.), at
    pp. 186-187.

[3]

I am satisfied that the applicant would surrender himself into custody
    in accordance with the terms of any bail order. I now turn to the other two
    issues under s. 679 of the
Criminal Code:
whether
the appeal has sufficient merit that, in the
    circumstances, it would cause unnecessary hardship if the applicant were
    detained in custody; and whether the applicants detention is necessary in the
    public interest.

B.

The Facts

[4]

On June 27, 2010, the complainant observed a white SUV pulling into the
    driveway of his home. Two men, one white and one Asian, exited the vehicle on
    opposite sides. They entered the complainants home looking for Oxycodone or
    Oxycontin left over from his late fathers bout with cancer. The Asian man
    bound the complainants hands with duct tape, punched him in the head a few
    times and struck him once or twice across the bridge of his nose with a blue
    coloured metal weapon, causing scarring.

[5]

The police were able to stop the assailants vehicle a short time later.
    There is no doubt that the one white man in the car, Greg Williams, was one of
    the assailants. There were three Asian men in the car stopped by the police. As
    the trial judge put it, at para. 6, the question is whether the Crown has
    proven beyond a reasonable doubt that Mr. Kaguyutan was the Asian man who also
    participated.

[6]

The case against the applicant rested largely on the testimony of
    Michael Silva, who was the owner and driver of the vehicle.  Silva identified
    the applicant as the one who accompanied Williams into the house. The trial
    judge recognized that Silva had a strong motive to identify someone other than
    himself as the person who accompanied Williams, because a conviction on more
    serious charges would have resulted in Silvas deportation. The trial judge treated
    Silva as a witness whose evidence should be approached with caution because of
    his motives, his testimony and the opportunity he had to communicate with
    Williams while they were housed together for 5 days at Maplehurst. She noted
    that Silva denied spending time in the same cell as Williams despite being
    confronted with Maplehurst records to the contrary. She also rejected his
    evidence that he did not notice what the assailants were carrying when they
    entered the house.

[7]

The trial judge found that she could not convict the appellant on the
    complainants evidence alone, given the frailties of in-dock identification and
    his agitated mental state during the home invasion. But she found, at para. 84,
    that certain portions of his evidence in combination with the evidence of
    Michael Silva, give me confidence that Richard Kaguyutan was correctly
    identified as the individual who entered Mr. Grattos home, together with Greg
    Williams, to effect a robbery.

C.

The Merits of the Appeal

[8]

The conviction appeal rests on two grounds. The applicant argues: first,
    that the trial judge failed to confront exculpatory evidence in her reasons for
    judgment; and, second, that she erred in her consideration of confirmatory
    evidence.

(1)

The Trial Judge Failed to Confront Exculpatory Evidence

[9]

The complainants testimony, which the trial judge accepted, was that his
    assailants exited from opposite sides of the car. Silvas testimony was that
    the applicant was sitting in the rear of the car on the passenger side when the
    assailants left the car. Since it was agreed that Williams, who was seated in
    the front passenger seat, was one of the assailants, this aspect of Silvas
    testimony suggested that the applicant was not one of the assailants and that
    either Ricardo, the other occupant of the car, or Silva himself, entered the
    home with Williams. The applicant submits that the trial judge was obliged to
    deal with this discrepancy in the evidence and failed to do so.

[10]

The
    trial judge noted the discrepancy in the evidence, at para. 78. The case law is
    clear that a trial judge is not obliged to reconcile every piece of discrepant
    evidence. Viewing the trial judges reasons as a whole, it is plain that she
    accepted very little of Silvas evidence. In this instance the fair inference
    is that she did not accept Silvas evidence when they arrived at the
    complainants home.

[11]

The
    applicant also argues that the trial judge referred to, but did not address,
    the difference between the complainants description of the Asian assailants shirt
    as dark, and her finding that the applicants shirt was light grey. This, says
    the applicant, was exculpatory evidence which suggests that he was not the assailant.

[12]

This
    submission does not, in my view, withstand scrutiny. The trial judge referred
    to the evidence about clothing at paras. 25 and 70:

Mr. Silva described himself as wearing a black leather jacket
    and jeans; he was unsure if he was wearing sunglasses. Mr. Silva described Mr.
    Williams as wearing a sports jersey and jeans and Mr. Kaguyutan was wearing a
    light coloured T-shirt and shorts. He thought Mr.  Kaguyutan was wearing
    sunglasses.



Richard Grattos description of clothing worn by his Asian
    attacker is different from what Mr. Kaguyutan was wearing according to Mr.
    Silva.  Mr. Grattos description of what the white man was wearing also differs
    from what Mr. Silva says Mr. Williams was wearing.  None of the arresting
    police officers gave evidence as to what any of the vehicle occupants was
    wearing. Video evidence was admitted showing what each of the occupants of the
    vehicle was wearing on arrest, except for Mr. Williams.

[13]

Silvas
    description of what people were wearing did not match the video evidence, to which
    the trial judge referred at para. 53:

The videos reveal that Mr. Silva was wearing jeans and a white
    hoody with a black short-sleeved t-shirt over top; Mr. Ricardo jeans and a
    white short-sleeved T-shirt; and Mr. Kaguyutan a grey long-sleeved shirt with a
    ¼ zip front, the sleeves rolled partway up his forearms, and shorts with a
    green camouflage pattern.

[14]

The
    trial judge compared the complainants recollection of the Asian assailants
    shirt with the applicants clothing as shown in the video, and concluded that
    the two were consistent. She found, at para. 79: The grey shirt worn by Mr.
    Kaguyutan in the video is also consistent with Mr. Grattos recollection that
    the Asian man was wearing a dark shirt, although I would describe Mr.
    Kaguyutans shirt as light grey. The trial judge was alive to the discrepancy
    between the complainants description of the Asian assailants shirt as dark,
    and her own description of the applicants shirt as it appeared in the video as
    light grey, and still concluded that the applicant matched the complainants
    description. I have trouble finding this to be a fatal inconsistency, since
    colour description is surely relative in this context.

[15]

The
    applicant also argues that the trial judge failed to consider the exculpatory
    implication of her finding that the video showed Silva to have a medium
    build, which matched the complainants description of the assailant.  The
    applicant was more heavy set than the others. This submission ignores the
    evidence tending to exculpate Silva. The trial judge noted both Silvas
    distinct style of dress as recorded on the video, and his testimony that he
    turned the car around on the driveway while the assailants were inside the
    home. Although the trial judge did not point to these facts as exculpatory in
    relation to Silva, they undermine the significance placed by the applicant on
    the trial judges description of Silva as medium build. In light of the
    evidence exculpatory of Silva, it is immaterial that the trial judges
    reference to Silvas build matches the complainants description of the
    assailant.

(2)

The Trial Judge Erred in her Consideration of Confirmatory Evidence

[16]

The
    applicant argues that the trial judge relied on some items of evidence as
    confirmatory of Silvas testimony that were not in fact confirmatory. The
    applicant also argues that since the trial judge found that Silva was not
    credible on certain matters, she was obliged to be more definitive about the
    evidence on which she relied as confirmatory of his testimony.

[17]

More
    specifically, the applicant argues that Silvas testimony that the applicant
    was wearing a light-coloured shirt was not confirmatory, but was, in fact,
    exculpatory. I have addressed this above.

[18]

Further,
    the trial judge noted that Silvas testimony on the applicants position in the
    vehicle was confirmed by the evidence of the arresting officers. But this,
    argues the applicant, was also exculpatory. If the applicant was in the rear
    passenger seat, it was unlikely that he was one of the assailants. The
    arresting officers evidence, however, relates only to the occupants positions
    in the vehicle when it was stopped by the police, not when they arrived at the
    complainants home. Considered in context, the officers evidence was not
    exculpatory. Although there is some merit to the applicants submission that
    the trial judges examples of confirmatory evidence were not especially
    relevant to Silvas credibility, this ground of appeal must be considered in
    light of the other evidence supporting the applicants conviction, including
    the trial judges finding that the complainants description of the assailant
    was consistent with the applicant as he appeared in the video.

D.

The Mootness Issue

[19]

The
    practical issue that arises on this application is that by the time the appeal is
    heard and determined, the applicant will have served a substantial proportion
    of his sentence. Refusing this bail application might render his appeal moot,
    which would thereby cause him unnecessary hardship. The appeal has not yet been
    perfected, so it cannot be expedited.

E.

The Public Interest Ground

[20]

In
    my view, the convictions constitute serious crimes against the person. Home
    invasions accompanied by violence are especially unnerving for victims and
    communities. The grounds for the conviction appeal are only marginally arguable.
    In this case, notwithstanding the mootness concern described above, the public
    interest balance required by
Farinacci
favours continued enforcement of
    the sentence, not judicial interim release. The appeal can be scheduled quickly
    on an expedited basis once perfected.

[21]

For
    these reasons, the application is dismissed.

Released: May 12, 2014

P.
    Lauwers J.A.


