



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Clarke, 2019 ONCA 403

DATE: 20190515

DOCKET: C65652

Hourigan, Paciocco and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Charles Russell Clarke

Appellant

Perrin Valli, for the appellant

E. Nicole Rivers, for the respondent

Heard: May 10, 2019

On appeal from the convictions entered on June 25, 2018
    by Justice G. Hearn of the Ontario Court of Justice.

REASONS FOR
    DECISION

[1]

The appellant was convicted following a judge
    alone trial of possession of a firearm obtained by crime, possession of property
    obtained by crime, break and enter to steal a firearm, and break and enter with
    intent to commit an indictable offence.

[2]

The circumstances giving rise to these convictions
    were somewhat unusual. At approximately 9:30 a.m. on June 18, 2017, Ms. Jestin
    went to check on a rural property owned by her daughter, Ms. Beaton, who was
    away at the time. As Ms. Jestin walked up to the house, she heard a voice and
    found a man who turned out to be the appellant. She described him as saying
    that he did not know where he was or what was happening. The appellant said
    that he had been locked in a barn or a garage and that he needed help. He
    asked Ms. Jestin to call the police and she did so.

[3]

The appellant waited in the driveway until Officer
    Dolderman and Officer Toor of the Ontario Provincial Police arrived a short
    time later, at around 10:00 a.m. They conducted an initial investigation, which
    consisted of speaking with Ms. Jestin, speaking with the appellant, and looking
    around the property. The appellant told the police that he had been inside a
    shed and there were children outside not allowing him to come outside the shed.

[4]

When the police looked around the shed on the
    property (which was also described at trial as a garage and workshop), they
    discovered that the shed had been broken into. Ms. Jestin had not immediately
    noticed this when she arrived and found the appellant on the property. The appellant
    was arrested for break and enter. As police continued their investigation, they
    located a .22 caliber gun which had been loaded and placed on an ATV inside the
    garage, pointing towards the garage door. The appellant was subsequently arrested
    on the other charges, including possession of the firearm obtained by crime and
    break and enter to steal a firearm.

[5]

At trial, the trial judge ruled that the
    accuseds utterances to police were voluntary. He also dismissed the
    appellants application to exclude the statements on the basis that the police
    had violated the appellants ss. 10(a) and (b)
Charter
rights. Certain other
Charter
issued
    raised by the appellant became moot in light of the concessions made by the
    Crown. The appellant does not appeal from any of the trial judges
Charter
rulings.

The Issues on Appeal

[6]

The appellant argues that the trial judge
    misapprehended the evidence and incorrectly applied the rules of circumstantial
    evidence in finding that:

·

The appellant was the perpetrator of the break-in at the shed;
    and

·

The rifle in the shed was a firearm within the meaning of s. 2
    of the
Criminal Code
.

In the appellants submission, the guilty verdicts on
    these charges were unreasonable.

[7]

We do not agree and would dismiss the appeal for
    the following reasons.

[8]

There is no issue that someone had broken into
    the building in question, and that indictable offences were committed inside.
    The only outbuilding on the property was a building that was variously
    described at trial as a shed, outbuilding, garage, or workshop.

[9]

We see no merit to the appellants submission
    that the trial judge misapprehended and\or misapplied the circumstantial
    evidence in this matter. The issues raised in this appeal were raised at trial
    and considered by the trial judge, upon a careful review of all the evidence.

[10]

The trial judge specifically recognized that
    there was no direct evidence of anyone actually seeing the appellant going in or
    out of the garage or shed. He pointed to the appellants statement to Ms. Jestin
    that he had been in a building  which the appellant referred to as a barn. The
    appellant had been walking on the property from the direction of the shed when
    Ms. Jestin first saw him. The trial judge went on to state as follows:

The
    circumstantial evidence that is in place including the location, findings of
    the officers consistent with the concerns expressed by [the appellant] and the
    remaining evidence in its entirety, satisfies me beyond a reasonable doubt that
    the only reasonable inference to be drawn on all of the evidence is that it was
    [the appellant] who had entered the shed and caused the damage therein.

[11]

The appellant argues that the trial judge erred
    in accepting the utterances that he was locked in the barn as referring to
    the outbuilding on Ms. Beatons property, pointing out that when he stated that
    he was locked in a barn he did expressly refer to the building on Ms.
    Beatons property. The appellants claim of misapprehension of this evidence
    rests partly on the fact that different witnesses described the building that
    was broken into as a barn, shed, workshop and garage. The trial judge described
    it as a shed\garage\shop or a larger type of building in which a number of
    items were located including ATVs, snowmobiles and a truck, together with a
    workshop. He found that it could easily be described as a barn. There was no
    other outbuilding on the property. That the appellant was referring to the
    building on Ms. Beatons property, which had been broken into, was a finding of
    fact well-grounded in the evidence before the trial judge. There is no basis
    for interfering with it.

[12]

The conclusion that the appellant was the
    perpetrator of the break-in was also open to the trial judge in the
    circumstances of this case. He concluded that there was no reasonable
    alternative to the conclusion that he was the perpetrator and was therefore
    guilty. We disagree with the appellants submission that there were other
    reasonable alternatives because: (i) there was at least an 18-hour window
    between the last time Ms. Jestin had checked on the property, such that someone
    else might have broken-in; and (ii) while there were no immediate neighbors,
    there was a village in the area so he might have been referring to another
    outbuilding.

[13]

The trial judges conclusion  namely, that the
    only reasonable inference was that the appellant was the perpetrator of the
    break and enter  was supportable on all the evidence in the case and the trial
    judges findings of fact. These findings of fact included:

·

The building had clearly been broken into
    recently;

·

The appellant was found trespassing on the
    property when the owners mother arrived to check on it;

·

The appellant had uttered statements about being
    locked in a barn (which had been found to have been voluntarily made); and

·

This property was in a rural area with no immediate
    neighbors.

[14]

The trial judge also considered Officer
    Doldermans evidence that he found the gun in the barn, where it had been
    placed on an ATV pointing to the door. The trial judge concluded the fact that
    the garage door had been barricaded and the firearm pointed at the door was
    consistent with the appellants stated fear of children being outside the
    barn. All of these findings were well grounded in the evidence at trial and
    support the trial judges conclusion that there was no reasonable inference
    other than the inference that it was the appellant who had broken into the shed.
    Any other inferences were speculative at best.

[15]

The appellant also submits that the trial judge
    erred and misapprehended the evidence in finding that the gun was a firearm
    within the meaning of s. 2 of the
Criminal Code
. We disagree. Again, this issue was fully explored at trial. The
    trial judge reviewed all the evidence on the point and concluded,
    notwithstanding the Crowns inability rely on a certificate, that the gun that
    was seized within the barn was in fact a firearm within the meaning of the
Criminal
    Code
and that it belonged to Ms. Beaton.

[16]

The appellant points to the contradiction in the
    evidence of the officers in that one of them described it as a semi-automatic rifle
    and the other as having a bolt-action or something resembling a bolt-action on
    the side of it. It is not clear, to begin with, that this is actually a
    contradiction. In any event, both officers described it as a firearm. The trial
    judge further heard evidence from Ms. Beaton that she had owned a .22 rifle
    that had been brought back from their cottage and stored in a case in the
    garage under the bench seat in the truck. Her husband (who had recently died)
    had been meticulous about keeping it clean and in working order. She further
    testified that they had used it regularly for target shooting. When the gun in
    the shed was found, the storage case was empty. Officer Dolderman also
    testified that there was a live round of ammunition in the gun at the time.

[17]

On the basis of all of the evidence, it was open
    to the trial judge to conclude that the gun seized was a firearm and that it
    belonged to Ms. Beaton.

Disposition

[18]

In conclusion, we find no merit in any of the
    issues raised by the appellant, who is essence is asking this court to retry
    the case. The appeal is dismissed.

C
.W. Hourigan J.A.

David M. Paciocco
    J.A.

A Harvison Young J.A.


