



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Tippett, 2019 ONCA 711

DATE: 20190910

DOCKET: C66267

Pardu, Brown and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Stanley James Tippett

Appellant

Stanley Tippett, acting in person

Breana Vandebeek, duty counsel

Michael Fawcett, for the respondent

Heard: September 4, 2019

On appeal from the conviction entered on July 7, 2017 and
    the sentence imposed on October 19, 2017 by Justice Drew S. Gunsolus of the Superior
    Court of Justice.

REASONS FOR DECISION

OVERVIEW

[1]

In his notice of appeal, the appellant, Stanley James Tippett, appealed
    from his conviction on one count of attempting to obstruct justice contrary to
    s. 139(2) of the
Criminal Code
. As well, he sought leave to appeal the
    sentence imposed of 22 months custody, to run concurrent with his extant
    indeterminate sentence as a dangerous offender.

[2]

At the hearing, Mr. Tippett confirmed that he was not pursuing his
    sentence appeal. At the conclusion of the hearing, we dismissed his appeal from
    conviction, with reasons to follow. These are those reasons.

BACKGROUND

[3]

In 2009, Mr. Tippett was convicted of seven offences, including the
    kidnapping and sexual assault of a young girl. The Crown applied for an order
    designating Mr. Tippett as a dangerous offender. Mr. Tippett ultimately was
    declared a dangerous offender and an indeterminate sentence was imposed.

[4]

However, while awaiting the dangerous
    offender hearing, Mr. Tippett was charged with attempting to obstruct justice.
    It was alleged that while in custody Mr. Tippett wrote a large number of
    letters to another inmate, Morgan Gentle, asking him to provide false evidence
    concerning the 2009 convictions.

[5]

The main issue at trial was whether Mr.
    Tippett wrote those letters. Originals of the letters had been available at Mr.
    Tippetts first trial on the charge, which resulted in a hung jury. At some
    point prior to the start of his re-trial, the originals of the letters were
    lost. At the re-trial, Mr. Tippett applied to stay the proceedings on the basis
    that the loss of the original letters prejudiced his defence.

[6]

In reasons released July 7, 2017, the
    trial judge dismissed Mr. Tippetts application to stay the charge and
    convicted him of attempting to obstruct justice: 2017 ONSC 2876. On October 19,
    2017, a 22-month sentence was imposed.

[7]

On behalf of Mr. Tippett, duty counsel
    advances two grounds of appeal: (i) when assessing the evidence of Mr. Gentle,
    the trial judge erred by shifting the burden of proof onto Mr. Tippett; and
    (ii) the trial judge erred in minimizing Mr. Gentles unsavoury character when
    instructing himself pursuant to
Vetrovec v. R.
, [1982] 1 S.C.R.
    811.
In his own submissions, Mr. Tippett
    advanced a third ground of appeal: the trial judge erred by dismissing his stay
    application, failing to give proper recognition to the prejudice his defence
    suffered by not having access to the originals of the letters written to Mr.
    Gentle.

FIRST GROUND OF APPEAL: SHIFTING THE BURDEN OF PROOF

[8]

Duty counsel observed that at several points in his assessment of Mr.
    Gentles evidence, the trial judge mentioned the absence of evidence to the
    contrary. Counsel pointed to the following portions of the trial judges
    reasons:

[22] Mr. Gentle insisted that he was not offered any deal and
    did not receive anything, including a reduced sentence, for the charges that he
    faced as a reward for turning over Mr. Tippetts letters. The court received
no direct evidence
that Mr. Gentle was rewarded in any
    way. It was mere speculation suggested by the defence.

[49] While I agree with counsel for the defence that Morgan
    Gentle had a motive to co-operate with police, there is
no
    evidence to suggest
that Mr. Gentle fabricated evidence. Rather, he took
    the opportunity to produce letters that were handed to him by Mr. Tippett in
    the hope of buying himself favour in relation to sentencing for charges that he
    was then facing.
No evidence was presented
suggesting that Mr. Gentle had to be induced to turn over the primary evidence.
I did not receive any evidence
that Mr. Gentle was
    promised nor given a more favourable sentence as a result of the provision of
    the impugned letters to police. Mr. Gentle acknowledged that there were
    discussions in relation to his ultimate sentencing that ranged between 2  5
    years. However,
there was no evidence
presented to
    suggest that, as a result of the production of the impugned letters, he
    received a more favourable sentence. At best, the court was presented with
    conjecture. The investigating officer, Officer Rogers, testified he never spoke
    to the Crown Attorney to obtain a favourable outcome for Mr. Gentle. I have
    already noted that he never made an actual promise to Mr. Gentle, however, his
    words clearly could have been interpreted as one.

[
55
] Mr. Gentle denied being the author of
    the letters and pointed out that he did not possess sufficient details about
    Mr. Tippett and his crimes to have created such detailed letters. He also
    denied reading newspaper accounts and denied that Mr. Tippett provided him
    orally with sufficient detail. He was adamant that these letters were the
    product of Mr. Tippett, written by Mr. Tippett and handed over to him by Mr.
    Tippett.
There is no evidence
that would cause me
    to doubt Mr. Gentles evidence in this regard. As he said, this was all
    Tippett, his letters and his plan. Indeed it involves much of Mr. Tippetts
    life story that only he could know.

[
66
] Handwriting analysis of the impugned
    documentation is but one piece of evidence. When one considers the demeanour of
    Mr. Gentle, the minute detail and content of the letters in question, his own
    acknowledged intellectual limitations, and given the evidence of Ms. Osmond and
    Ms. Huggins evidence that replication of handwriting is extremely difficult and
    rare, while no doubt Mr. Gentle had a motive to produce the letters in order to
    buy himself favour,
there is no evidence
to
    suggest that he fabricated the evidence. [Emphasis added.]

[9]

Duty counsel submits that the trial judges repeated use of the phrase
    there is no evidence indicates that he reversed the burden of proof onto the
    defence, thereby falling into legal error.

[10]

In
    support of her submission, duty counsel points to the decision of this court in
R. v. Bui
, 2014 ONCA 614, 14 C.R. (7
th
) 149. In that case,
    the court held that the trial judge had adopted an erroneous approach to his
    assessment of circumstantial evidence, incorrectly thinking that in a case
    involving circumstantial evidence, alternatives to guilt must be based on
    proven facts: at para. 31. In the course of its analysis of that issue, this
    court stated, at paras. 29 and 30:

[
29
] As I read his reasons, the trial judge
    blurred the distinction between evidence, available inferences and proven
    facts. For example, in rejecting the defence submission that someone else could
    have hidden the handgun in the bed,
he found that there
    [was] no evidence, but the opposite, that multiple individuals were involved in
    the operation of the marijuana grow
.

[
30
] While it is true that no one testified
    about the presence of persons other than the accused at the house, the evidence
    that both male and female clothing was found in the house and of the presence
    of prescription pill bottles in the names of several persons, gave rise to an
    available inference that more than one person had been in the house. Taking
    account of the state of the house (including the sparse furnishings, limited
    food and large number of marijuana plants) this, in turn, gave rise to an
    available inference that more than one person was involved in the marijuana
    grow operation.
Although that inference may not have
    been strong enough to constitute a proven fact, it was not a mere theoretical
    possibility lacking any evidentiary foundation
. [Emphasis added.]

[11]

Duty
    counsel argues that
Bui
supports her submission that the use of the
    no evidence language by the trial judge amounted to a reversal of the burden
    of proof.

[12]

We
    are not persuaded by this submission.

[13]

Bui
concerned the degree of cogency required of circumstantial evidence sufficient
    to draw a factual inference, as discussed by this court in para. 30 of its
    reasons. That was not the context in which the trial judge in the present case
    made his several references to no evidence.

[14]

In
    our view, the trial judges use of that phrase closely resembles the
    circumstances in
R. v. Caporiccio
, 2017 ONCA 742, where this court
    stated, at para. 30:

While on a few occasions the trial judge references the fact
    that there was no evidence to the contrary, taken in context this expression
    does not reveal a reversal of the burden of proof. At no time does the trial
    judge suggest that she accepts evidence
because
there was no evidence
    to the contrary. Instead, in using the impugned expression, she is simply
    signaling that there was no evidence contradicting certain pieces of evidence
    that she accepted as true. There was nothing wrong with making this
    observation. [Emphasis in original.]

[15]

As
    well, at the end of his reasons the trial judge clearly stated that the onus
    was on the Crown to prove each of the essential elements of the offence: at
    para. 99. He did not lose sight of where the burden of proof lay.

SECOND GROUND OF APPEAL: THE APPLICATION OF THE
VETROVEC
PRINCIPLES TO MR. GENTLES EVIDENCE

[16]

Duty
    counsel next submits that the trial judge did not conduct a proper analysis of
    Mr. Gentles credibility. In her submission, he minimized the unsavoury nature
    of Mr. Gentles extensive criminal record, especially by stating, at para. 53
    of his reasons that: Nowhere is there to be found crimes of dishonesty. Duty
    counsel argues that Mr. Gentles numerous convictions for failing to comply
    with probation orders and breach of recognizance constitute crimes of
    dishonesty.

[17]

While
    Crown counsel agrees that the trial judge may have downplayed some concerns
    about Mr. Gentles record  although he queried whether the breaches of
    probation orders were crimes of dishonesty or, instead, crimes of disrespect
    for the administration of justice  he submits that when the reasons are read
    in their entirety, the trial judge brought to his assessment of Mr. Gentles
    evidence the degree of caution required by
Vetrovec
. The trial judge:
    (i) expressly stated that he was approaching Mr. Gentles evidence with
    caution, knowing that there is always a danger in relying on the unsupported
    evidence of unsavoury witnesses; (ii) he looked for evidence to corroborate
    Mr. Gentles denial that he was the author of the large number of letters
    purporting to be from Mr. Tippett; and (iii) he found extensive corroborative
    evidence, especially in the evidence of the handwriting experts and the content
    of the letters: at paras. 51, 55-65.

[18]

We
    accept the Crowns submission. The trial judge approached Mr. Gentles evidence
    with the requisite degree of caution. As well, the evidence of the handwriting
    experts, coupled with the content of the letters, overwhelmingly supported the
    trial judges conclusion that he was satisfied, beyond a reasonable doubt, that
    Mr. Tippett authored the letters: at paras. 66-67.

THIRD GROUND OF APPEAL: THE TRIAL JUDGES DISMISSAL OF THE
    STAY APPLICATION

[19]

As
    his final ground of appeal, Mr. Tippett submits that the trial judges
    dismissal of his stay application was unfair, disadvantaging his defence because
    he was not able to properly assess the letter evidence.

[20]

Mr.
    Tippett does not challenge the trial judges finding that the loss of the
    original letters was not an abuse of process or unacceptable negligence: at
    para. 77.

[21]

The
    trial judge further held that Mr. Tippett had not established actual prejudice
    because: (i) the original letters were disclosed and made available to the
    defence at the first trial; (ii) the copies were proven to be true copies of
    the originals, which provided an alternative source of information for expert
    handwriting analysis; and (iii) using the true copies, the defence was able to
    submit expert evidence at the second trial: at paras. 79, 85-86. While the task
    of the defence may have been more difficult due to the missing original
    documentation, other evidence was available to the defence such that the trial
    was not rendered fundamentally unfair: at paras. 87-88.

[22]

Mr.
    Tippett has not demonstrated that, in refusing his stay request for those
    reasons, the trial judge misdirected himself in law, committed a reviewable
    error of fact or rendered a decision that is so clearly wrong as to amount to
    an injustice:
R. v. Gowdy
, 2016 ONCA 989, at para. 65. Accordingly, we
    see no basis upon which to interfere with the trial judges decision to dismiss
    Mr. Tippetts stay application.

DISPOSITION

[23]

For the reasons set out above, the appeal is dismissed.

G. Pardu J.A.

David Brown J.A.

Gary Trotter J.A.


