



COURT OF APPEAL FOR ONTARIO

CITATION:
    R. v. Kirkham, 2013 ONCA 437

DATE: 20130624

DOCKET: C55896

Rouleau, Watt and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jeffrey Kirkham

Applicant/Appellant

Sam Scratch, for the applicant/appellant

David Friesen, for the respondent

Heard: June 12, 2013

On appeal from the conviction entered on May 25, 2012 by
    Justice Ronald J. Richards of the Ontario Court of Justice.

ENDORSEMENT

[1]

The appellant appeals from his convictions on charges of robbery,
    assault, assault with a weapon, unlawful confinement and weapons dangerous. The
    charges arise out of criminal activity that took place in a crack house.  Two groups
    were present at the time: one group consisted of the appellant and some
    friends. The sole issue at trial was the appellants participation, if any, in
    the criminal activity.

[2]

The trial judges reasons form the basis of the appellants submissions
    on appeal.  The appellants primary argument is that the trial judge erred by
    either misapprehending or failing to deal with material evidence.

[3]

In
R. v. R.E.M.
(2008), 235
    C.C.C. (3d) 290 (S.C.C.)

and
R. v. Dinardo
(2008), 231 C.C.C. (3d) 177 (S.C.C.), the Supreme Court reinforced the high threshold
    necessary to establish reversible error on the basis of insufficient reasons.

[4]

The appellant has not met that threshold.

[5]

This was a simple factual case.  The appellant testified that he was not
    involved in the robbery and related criminal activity: three Crown witnesses
    testified that he was.  In his reasons, the trial judge reviewed the evidence,
    drew inferences available from that evidence and made findings of fact.  He dealt
    squarely with the issues of credibility and explained why he accepted some
    aspects of the evidence and rejected other aspects.  He ultimately convicted the
    appellant of some offences and not others.

[6]

The appellant relies on the way in which the trial judge dealt with three
    specific aspects of the evidence.

[7]

The appellant submits that the trial judge erred by failing to address potentially
    exculpatory evidence that Mr. Spurveys fingerprint was found on one of the
    knives the police discovered at the scene. While it would have been preferable
    for the trial judge to have explicitly addressed this evidence, the trial judges
    failure to deal with this fingerprint evidence does not justify setting aside
    the convictions.  When the trial judge chose to believe the three Crown
    witnesses who testified that the appellant attacked Mr. Longman and chose not
    to accept the defence theory that it was Mr. Spurvey, the fingerprint evidence
    lost significance.

[8]

Next, the appellant submits that the trial judge, in finding that the
    appellant was not credible as a witness, placed undue emphasis on the fact that
    he changed his evidence several times concerning why he consumed two oxycontin
    tablets just prior to his arrest.  We disagree.  The trial judge was entitled
    to conclude that these shifting explanations undermined the appellants
    credibility.  Furthermore, this was only one of the reasons the judge gave for
    not believing the appellant.

[9]

Finally, there is nothing in the reasons that suggests the trial judge
    misapprehended the evidence about the knives the police found in the crack
    house.

[10]

As
    we conclude that the reasons do not demonstrate any error in the trial judges
    treatment of the evidence, we reject this ground of appeal.

[11]

As
    well, we see no basis for the argument that the verdicts are inconsistent.
    While the evidence of Ms. Trick and Mr. Johnson was not sufficient, standing
    alone, to convince the trial judge that the appellant was guilty of all of the charges
    arising out of the so-called Phase I activity, the addition of Mr. Longmans
    evidence concerning the activity that took place in Phase II was sufficient to
    allow the trial judge to conclude that he was persuaded beyond a reasonable
    doubt that the appellant was guilty of most of the charges relating to that
    activity.  It is clear that the trial judge carefully considered the strengths
    and weaknesses of the evidence relevant to each count.  This is apparent not
    only from the reasons but also from the fact that the trial judge acquitted the
    appellant of charges where the evidence was not cogent enough to support a conviction
    and convicted him of other charges.

[12]

For
    these reasons the appeal is dismissed.

Paul Rouleau J.A.

David Watt J.A.

Gloria Epstein J.A.


