





CITATION:
R. v.
Dinardo
, 2011 ONCA 256



DATE: 20110404



DOCKET: C51216



COURT OF APPEAL FOR ONTARIO



Gillese, Lang and Watt JJ.A.



BETWEEN



Her Majesty the Queen



Respondent



and



John
Dinardo



Appellant



Jonathan
Dawe
, for the appellant



Frank Au, for the respondent



Heard: March 29, 2011



On appeal from the conviction
          entered on October 29, 2009 by Justice John M. Ritchie, of the Ontario Court
          of Justice.



By the Court:



[1]

A Bobcat tractor valued at $20,000 was stolen from a
    construction site.  Through the use of a
    radio tracking device, the location of the Bobcat was narrowed to a cube van
    that was parked in the appellants backyard.  The backyard was described by the trial judge as a fortress-like
    compound that had a high metal fence and was guarded by vicious dogs.  The evidence at trial disclosed that, once the
    Bobcats location was identified, surveillance was maintained until the police
    executed a warrant they obtained to search the backyard, the cube van and the
    garage.

[2]

Initially, the police entered the appellants unlocked apartment.
    While they established that he was not there, they observed a third party,
    Daniel
Soares
, in the backyard with the van and the
    dogs.  The police detained Mr.
Soares
, who made certain utterances.  Later that day, the appellant came to the
    property accompanied by his lawyer.  He
    was arrested and charged.  He made
    certain statements including, on the evidence accepted by the trial judge, an
    offer to open the back of the van.  The
    padlock on the back door of the cube van was removed without the appellants
    help and the stolen tractor was located inside.

[3]

The appellant was convicted of possession of the stolen
    tractor.  Neither Mr.
Soares
nor the appellant testified. In convicting the appellant, the trial judge ruled
    the utterances made by Mr.
Soares
to the police were
    inadmissible hearsay, but admitted into evidence the appellants statements to
    the police.

[4]

While the trial judge recognized that the case against
    the appellant was circumstantial, he concluded that the evidence gave rise to
    only one reasonable inference, that the [appellant] had the requisite knowledge
    and control respecting the stolen Bobcat.

[5]

The appellant appeals his conviction on two
    grounds.  First, he argues that the
    verdict was unreasonable. Second, the appellant argues that the trial judge
    erred by failing to exclude his statements on the basis of
section 8
Charter
breaches committed by the multiple entries by the police into his apartment.

[6]

The appellants first argument has two branches.  First, the appellant argues that the evidence
    that was adduced at trial did not support the verdict. In particular, the appellant
    points to the evidence concerning Mr.
Soares

    familiarity with the establishment, given his presence in the backyard with the
    guard dogs and the cube van. He also points to the fact that no other person,
    other than the upstairs tenant, was present the morning the warrant was
    executed. The appellant argues that this evidence raised a reasonable inference
    that it was Mr.
Soares
who was the person in
    possession of the stolen tractor.  However,
    after excluding Mr.
Soares
 utterances, the trial
    judge concluded that he was a found in, a person who was present at the scene
    and that any suggestion that he was involved with the stolen tractor was
    speculative.  The Crown presented a
    strong circumstantial case against the appellant, including evidence that the
    tractor was in the appellants van in his backyard guarded by his dogs.

[7]

In light of our conclusion on the second branch of the
    argument, it is unnecessary to decide the first branch of this argument.

[8]

In the second branch, the appellant argues that the
    trial judge erred in ruling that the defence could not adduce evidence of Mr.
Soares
 utterances and that, had those utterances been
    admitted into evidence, they would have strongly suggested that Mr.
Soares
was the person who brought the tractor in the cube
    van into the backyard.

[9]

We agree with the appellant, as does the respondent,
    that the trial judge erred in his reasons for excluding the utterances made by
    Mr.
Soares
after his detention.  In light of our determination that, as a
    result of this error, there must be a new trial, we will only review the issue
    of the utterances to the extent necessary to explain our conclusion.

[10]

At trial, the utterances the defence attempted to
    adduce included Mr.
Soares
 statements to the effect that
    the keys to the van were in the van, the garage door was open, and he could
    round up the guard dogs.  In addition, the
    defence sought to introduce a question Mr.
Soares
posed to one of the officers about whether they were here for the Bobcat?
.
[1]


[11]

After argument about the admissibility of the
    utterances, the trial judge accepted the trial Crowns submissions that they
    were inadmissible on the basis that they were pure hearsay to which no
    exception applied.

[12]

This was an error.  The statements were not hearsay.  The
    appellant was not trying to adduce the utterances for the truth of their
    contents, but simply to prove that Mr.
Soares
made
    the statements.  See
Wildman v. The Queen
(1984), 14 C.C.C. (3d) 321 (S.C.C.).

[13]

If the
Soares
 utterances had
    been found to have some probative value and had been admitted into evidence,
    the trial judge would then have had to consider whether the totality of the
    evidence led or did not lead to an alternative reasonable possibility that Mr.
Soares
was the person in possession of the stolen tractor.

[14]

In closing on this issue, we observe that there was
    apparently no suggestion at trial that any possession of the stolen tractor
    by Mr.
Soares
was as the agent of or with the
    knowledge of the appellant.

[15]

In view of this determination, it is unnecessary to
    consider the ground of appeal based on the alleged
Charter
violation.  That is a
    matter that will be determined on the basis of the evidence at the new trial.

[16]

In conclusion, the appeal is allowed, the conviction
    quashed and a new trial ordered.

RELEASED:  APR 4, 2011
                                                     E.E.
    Gillese J.A.


EEG                                                                                              S.E.
    Lang J.A.


David
    Watt J.A.





[1]
We note,
    however, that the evidence before the trial judge suggested that Mr.
Soares
may have asked the question only after another
    officer had told him that they were looking for stolen Bobcat.


