



COURT OF APPEAL FOR
BRITISH COLUMBIA




Citation:



R. v. Gregory,









2009 BCCA 26




Date: 20090123

Docket: CA036047

Between:

Regina

Respondent

And

Aaron Ronald Gregory

Appellant




Before:



The Honourable Mr. Justice
  Mackenzie





The Honourable Mr. Justice
  Chiasson





The Honourable Mr. Justice
  Bauman




Oral Reasons for Judgment




J.M. Duncan



Counsel for the Appellant





E. Campbell



Counsel for the (Crown) Respondent





Place and Date:



Vancouver
, British Columbia






23 January 2009






[1]

Mr. Gregory appeals his
conviction in Provincial Court on February 27, 2008, on three counts of
possession of stolen property: a motor vehicle and two motor vehicle licence
plates that were in the motor vehicle.  He contends the trial judge:

1.
misapprehended the evidence when applying the principles established by
R.
v. W.(D.)
, [1991] 1 S.C.R. 742, to the facts of this case;

2.
erred taking judicial notice of facts not in evidence without notice to Mr.
Gregory;

3.
erred convicting Mr. Gregory where there was no or insufficient evidence he had
guilty knowledge;

4.
erred convicting Mr. Gregory when the evidence raised a reasonable doubt on the
issue of identity.

Background

[2]

On January 10, 2007, R.C.M.P.
Constable MacNeill was on patrol in an unmarked police car in Prince George, British Columbia.  He passed a pick-up truck travelling in the opposite direction and
decided to follow it.  The officer testified that as the vehicles passed, he
looked into the truck and recognized Mr. Gregory.  The officer knew Mr. Gregory
from previous face-to-face encounters and from seeing him on a video when Mr.
Gregory was the victim of a home invasion and beating.

[3]

Constable MacNeill followed the
pick-up truck into an apartment buildings outdoor parking lot where the
vehicles again passed each other travelling in opposite directions.  The
officer testified he again made eye contact with Mr. Gregory.  He could not
ascertain the licence number of the pick-up truck because it had no front plate
and the rear plate was obstructed with snow.

[4]

Constable MacNeill radioed for
assistance and advised the dispatcher he had observed Mr. Gregory driving the
motor vehicle.  He then drove around the apartment building and returned to the
parking lot.  The pick-up truck was empty and parked at a right angle
straddling three marked parking spaces.

[5]

The officer then heard on the
police radio that another officer, Constable McClarty, had arrested Mr. Gregory
a couple blocks from where the vehicle was abandoned.  Constable McClarty
heard the discussion between Constable MacNeill and the dispatcher.  Mr.
Gregory was known to Constable McClarty.  Constable MacNeill went to the arrest
location and confirmed the person there was the person he had observed in the
pick-up truck.  In court, Constable MacNeill identified Mr. Gregory as that man.

[6]

Constable McClarty observed the
clothing of Mr. Gregory.  He stated he was wearing a one-piece blue coverall,
which he described as summer-weight, no gloves and no hat.  With the wind chill,
the temperature was minus 20 degrees.

[7]

Constable McClarty is a police-dog
handler.  He instructed his dog to undertake a dog-track.  The dog picked-up a
scent and located a cache of clothes: a white and beige jacket and a small
baseball cap.  They were soft and not frozen.  The dog then continued its track
which ended in the apartment buildings outdoor parking lot approximately 20
feet from the pick-up truck.  The dog there lost the scent.  Constable
McClarty, who was qualified as an expert in dog-handling, described the area
around the truck as contaminated because police and a tow-truck driver were
active there.

[8]

Mr. Gregory denies he was in the
pick-up truck; denies he fled the area where the truck was parked and denies he
dumped the clothing the dog found.  He asserts that when he was apprehended by
Constable McClarty, he was walking from a Tim Hortons location carrying a
coffee and a bagel on his way to visit a friend.

Trial judgment

[9]

Facts were agreed which
established the pick-up truck and licence plates were stolen.  The trial judge
concluded he did not believe Mr. Gregory and he did believe the two police
officers.  The judge decided the clothing found by the dog was Mr. Gregorys
clothing and that he fled the location where the truck was parked.  He
concluded Mr. Gregory had possession of the truck and licence plates and the
elements of the offence were established.

[10]

The judge dealt with
W.(D.)
in
paras. 80  81 and 83 as follows:

[80]
In a trial, the responsibility throughout is with the Crown.  They have the
burden to prove their case beyond a reasonable doubt.  Looking at that case of
R.
v. W.(D.)
, and it is quoted extensively in our case law, and referring
to
R. v. Sherman
or
R. v. Miller
, decisions of Mr.
Justice Romilly of the Supreme Court, the decisions of
R. v. W.(D.)
,
that decision, rather, and the subsequent case law, first, as I assess
credibility, and that is the primary function here; I have to determine from
the evidence I have the credibility that I can place on the testimony of the
various witnesses.  I first look to the evidence of the accused, the evidence
that you presented in your testimony, and it is my determination that I cannot
accept your evidence, and I have made that determination based, as I say, on a
number of factors: the criminal record, the contradictions that appear in the testimony,
and as I view it, the inconsistencies in your own testimony regarding, for
instance, distances and how long you were on the streets.

[81) The principle in
W.(D.)
is that if I believe the evidence of the accused, I just acquit.  The next
principle is that if I do not believe the testimony of the accused but I still
have reasonable doubt, then I still must acquit, and then the third term,
perhaps, from our Court of Appeal case,
R. v. H.
, is if,
considering all the evidence, I am unable to decide whom to believe, I must
acquit.  Then thirdly, or the last term, is that on the whole of the evidence,
in other words, whether or not I believe you or not believe you, if on the
whole of the evidence I am left in a reasonable doubt, then I must acquit.

. . .

[83]
As I say, I have looked at the evidence. I have examined the evidence, and
although this is a case of being mindful of credibility, I am still required to
look at all the evidence and make an assessment in terms of its credibility,
its reliability, and its consistency, either with consistency with other pieces
of evidence or consistency within itself, and in my view, after I have made
that full assessment, and being mindful of the case law as set out in
R.
v. W.(D.)
, in my view, my conclusion is that the Crown has proved their
case beyond a reasonable doubt on all three counts and I find you guilty, Mr.
Gregory, of the charges as set out in Information 23991.

Discussion

Misapprehension of evidence

[11]

In his factum, Mr. Gregory
addressed his contention the judge misapprehended the evidence in the context
of the judges consideration of the principles of
W.(D.)
.  He
asserts the judges misapprehension of the evidence led him to decide not to
believe Mr. Gregory and to decide to believe the officers.

[12]

In
R. v. Lohrer
, 2004
SCC 80, [2004] 3 S.C.R. 732 at para. 1, Binnie J. provided guidance for the
required analysis, quoting from Doherty J.A. in
R. v. Morrissey
(1995),
97 C.C.C (3d) 193 (Ont. C.A.):

Where
a trial judge is mistaken as to the substance of material parts of the evidence
and those errors play an essential part in the reasoning process resulting in a
conviction, then, in my view, the accuseds conviction is not based exclusively
on the evidence and is not a true verdict.

[13]

Mr. Gregory focuses on two
matters:  his clothing and his statement he was walking from Tim Hortons to
visit a friend.

[14]

Mr. Gregory testified he was
wearing pants, a pair of long-johns, winter boots, insulated coveralls, two
t-shirts and a sweater.  The police officers stated Mr. Gregory was under-clothed
for the weather conditions.  The judge accepted their evidence.

[15]

It was common ground Mr. Gregory
was wearing coveralls. Constable McClarty described them as summer clothes.  In
cross-examination, Constable MacNeill appears to have agreed they were winter-type. 
Mr. Gregory states in his factum that in para. 76, the judge [p]ointed to a
contradiction in Mr. Gregorys claim to be wearing winter clothing on his feet
but not on the upper part of his body.  I do not read the judges reasons as doing
so.

[16]

The judge stated I do noteyou
hadheavy winter boots on, but in my view, it was contradictory to have heavy
winter clothing on your feet but not on the upper part of your body.  After
the phrase I do note, the judge wrote as you said.  It is apparent to me,
he was accepting Mr. Gregorys evidence he wore winter boots, but was not
accepting the rest of his evidence concerning clothing.  As he was entitled to
do, he preferred the evidence of the officers and noted it was not consistent
to wear winter boots and less protection for the upper body. This was
consistent with Mr. Gregory having discarded his coat and hat.

[17]

As to the coat, Mr. Gregory
contends the judge misapprehended the evidence because the coat was size large
and at a minimum he wears size extra-large.  In court, Mr. Gregory was wearing
a double extra-large shirt. The judge was aware of this evidence.  He also was
told by the officers that Mr. Gregory had put on considerable weight between
the time of his arrest and the trial.

[18]

A further misapprehension is said
to be the judges comment in para. 71 that Constable McClarty denied Mr.
Gregory had a coffee with him.  The following is the exchange between Constable
McClarty and counsel on cross-examination:

A          His
Tim Hortons coffee?  No, I dont recall.

Q.        Isnt
it true that he had a Tim Hortons coffee in his hand, when you stopped him.

A          I
dont recall.  Now that you mention that, I remember some Timbits maybe being
on his person or something though.  I dont know.  Aarons shaking his head no,
I dont recall a coffee, no.

In
my view, it is not an unreasonable reading of this evidence as denying Mr.
Gregory had a coffee.  It certainly was an interpretation open to the trial
judge.

[19]

Mr. Gregory also contends the
judge erred in his assessment of the evidence of Mr. Gregory by taking judicial
notice of the distance he would have walked had his story about being at Tim
Hortons been true.  He contends this amounts to a misapprehension of the
evidence and seeks to introduce fresh evidence to contradict the judges
statement of the distance.

[20]

The Crown states defence counsel
invited the judge to undertake his own assessment of the distance.  At trial,
Crown counsel contended the distance that Mr. Gregory would have had to walk
was more than a mile.  The following comment was made by defence counsel:

MR.
DUNCAN: . . ., her comment that its certainly more than a mile.  Theres no
evidence of that.  The best we have is the map guide and if Your Honour wishes
to take -- get another Mapquest guide to see how long it is from Central to
Lacoma, I have no objection to that.

[21]

In para. 77, the judge stated he
had examined a city map and determined the distance was 1.9 miles or
approximately three kilometres.  It is not clear to me that he, in fact, took
judicial notice of the distance although he stated he was doing so.  In these
circumstances, I do not consider the judges observation that the distance was
1.9 miles to be reviewable error.

[22]

In addition, the point related to
the improbability of Mr. Gregory walking any significant distance, clothed as he
was, in minus 20 degree weather.  The fresh evidence seeks to establish the
distance is approximately two kilometres.  In my view, the evidence would not
meet the test in
R. v. Palmer
, [1980] 1 S.C.R. 759, because it is
not likely the evidence would affect the outcome.

[23]

Repeatedly, appellate courts have
been admonished that findings of credibility are not scientific.  This Court is
not entitled to inject its view of the facts over that of a trial judge unless
there is palpable and overriding error.

[24]

In this case, the judges
determination he did not believe Mr. Gregory was based on a number of factors. 
He stated in para. 72:

[72]
In my view, the evidence regarding the coffee and the bagel having been
purchased at the Tim Hortons at the location that was described as Central and
5th is not reliable. I make that conclusion based, one, on my view of your
credibility. Your credibility is lessened, to some extent, by the record. I
take that into account. That is an important consideration, in my view. I also
observed you as you testified in court and your demeanour during the trial, and
in my view, there were times when your testimony was casual and exaggerated,
and I take some support for that determination from your testimony about the
coffee. You stated that when stopped by the officer you stated, Do you want my
bagel and coffee? and then you later offered the evidence that the coffee was
still warm, as I recall your testimony, at the detachment, and in my view, that
is improbable evidence of what could have occurred on that January 10
th
date.

And
in para. 80:

. .
. I cannot accept your evidence, and I have made that determination based, as I
say, on a number of factors:  the criminal record, the contradictions that
appear in the testimony, and as I view it, the inconsistencies in your own
testimony regarding, for instance, distances and how long you were on the
streets.

[25]

In my view, the judge did not
misapprehend the evidence.  He was aware and referred to the testimony of Mr.
Gregory and the officers.  He found much of Mr. Gregorys story implausible and
did not interpret the evidence of the officers as urged by Mr. Gregory.  I
would not accede to his first and second grounds of appeal.

Guilty knowledge

[26]

Mr. Gregory contends there is no
clear pathway to conviction concerning the judges conclusion Mr. Gregory was
in possession of the stolen property.  The judges discussion and conclusion on
this issue is in para. 82.  He stated he had determined Mr. Gregory was in the
stolen pick-up truck, although Mr. Gregory denied this.  The stolen licence
plates were in the truck.  He concluded Mr. Gregory had control of the truck
and plates.

[27]

Mr. Gregory states this is not
enough.  Mr. Gregory had been observed driving the truck with a female
passenger.  It is asserted he may merely have been driving a vehicle she had in
her possession and the plates may have been hers or someone elses.  The Crown
asserts this is mere speculation and states the following in its factum:

61.       The
distinction between a reasonable inference and speculation was the subject of
comment in
R. v. Wild
, [1971] S.C.R. 101, 4 C.C.C. 40 at 47,
where Martland J., for the majority, approved the trial judges comments in
R.
v. McIver
, [1965] 4 C.C.C. 182 (Ont. C.A.) [1966] S.C.R. 254 as
follows:

the case is to be decided
on the facts, that is, the facts proved in evidence and the conclusions
alternative to the guilt of the accused must be rational conclusions based on
inferences drawn from proven facts.  No conclusion can be a rational conclusion
that is not founded on evidence.  Such a conclusion would be a speculative,
imaginative conclusion, not a rational one.

In
my view, the observation is apt in this case.

[28]

In addition, the Crown contends
the judges finding Mr. Gregory fled the scene supports his conclusion he had
possession of the truck and plates.  I agree and would not accede to Mr.
Gregorys third ground of appeal.

Identity

[29]

Mr. Gregory contends there was a
reasonable doubt of his identity as the person driving the pick-up.  In my
view, the contention is not sustainable in this Court.

[30]

The trial judge accepted the
evidence of the officers.  He was entitled to do so.  There was ample evidence
to support their identification of Mr. Gregory.  Both knew him from previous
occasions.  Both named him immediately in their communications with the
dispatcher.  Constable MacNeill confirmed Mr. Gregorys identity as the driver
of the pick-up truck at the arrest scene and in the courtroom.  There is no
basis on which this Court properly could intervene in the judges conclusion
Mr. Gregory was the person seen driving the stolen pick-up truck.

Conclusion

[31]

Mr. Duncan has said everything
that could be said to support this appeal, but I would dismiss this appeal.

[32]

MACKENZIE J.A.
: I agree.

[33]

BAUMAN J.A.
: I agree.

[34]

MACKENZIE J.A.
: The appeal is dismissed.

The Honourable Mr. Justice Chiasson


