





CITATION:
R. v. Lamoureux, 2011
          ONCA 448



DATE: 20110610



DOCKET: C53074



COURT OF APPEAL FOR ONTARIO



Laskin, Gillese, Karakatsanis JJ.A.



BETWEEN



Her Majesty The Queen



Respondent



and



Chadwick
Lamoureux



Appellant



Robert B. Carew, for the appellant



Emile Carrington, for the respondent



Heard & released orally:
June 6, 2011



On appeal from the judgment of Justice Jean-Marie
Bordeleau
of the Ontario Court of Justice dated October
          25, 2009.



ENDORSEMENT



[1]

On the count pertaining to the theft at 240 Bank
    Street, the principal issue is whether the finding of
recency
is unreasonable.  In our view, that
    finding was reasonably open to the trial judge.  Moreover, there was limited circumstantial evidence  for example, a
    distinctive shirt  linking the appellant to the theft.

[2]

Accordingly, the appeal from the conviction on this
    count is dismissed.

[3]

On the count pertaining to the theft at 141 Laurier
    Avenue, the main issue is whether the finding of possession of the bag marked
    as Exhibit 3 is reasonably supported by the evidence.  In our view, the evidence does not support a
    finding of possession of that bag.  The
    bag was a grey plastic bag found under a microwave in an apartment rented by
    someone else.  The bags contents,
    including the cigars, did not link the appellant to the bag.  Moreover, in convicting the appellant on this
    count, the trial judge appears to have been confused between Exhibit 1, which
    was the appellants bag and Exhibit 3.

[4]

For these brief reasons, the appeal on this count is
    allowed, the conviction is set aside and an acquittal is entered.

[5]

In the light of our disposition, the appellant is
    entitled to reduction of the sentence.  We reduce the appellants sentence from 3 years to 2 years plus the 108
    days pre-trial custody.

John Laskin J.A.

E.E. Gillese J.A.

Karakatsanis J.A.


