





CITATION:
R. v. Rudge, 2011 ONCA 791



DATE: 20111215



DOCKET: C52233



COURT OF APPEAL FOR ONTARIO



OConnor
          A.C.J.O., Blair and Epstein JJ.A.



BETWEEN



Her Majesty the Queen



Appellant



and



Dean Rudge



Respondent



James K. Stewart, for the appellant



Ronald N. Brady, for the respondent



Heard: April 28, 2011



On appeal from the acquittal
          entered by Justice Harrison S. Arrell of the Superior Court of Justice,
          sitting without a jury, on May 13, 2010.



Epstein J.A.:

I.         OVERVIEW

[1]

In 2006, the Intelligence Services
    Branch of the Niagara Regional Police Service (the NRPS) learned that the
    Hells Angels motorcycle gang had possession of a confidential police
    document.  The ensuing investigation (the Leak Investigation) disclosed that
    the document had originated from the Port Colborne detachment of the NRPS,
    where the respondent, Dean Rudge, was then a serving officer.  The
    investigators obtained information that caused them to suspect Rudge as the
    source of the leak.

[2]

Concurrent with the Leak
    Investigation, the provinces Biker Enforcement Unit (BEU) was running a multi-force
    investigation (Project Tandem) targeting the Ontario Hells Angels.

[3]

On September 28, 2006, as part of Project
    Tandem, the police executed search warrants at various locations connected to
    the Hells Angels and seized additional documents that could be linked to Rudge.

[4]

On April 4, 2007, Rudge was
    arrested and charged with breach of trust by a public official contrary to s.
    122 of the
Criminal Code
.   The police obtained a production order for
    Rudges cell phone records.  These records showed a series of conversations
    between Rudge and Sandra Taylor, the common-law spouse of Ken Wagner, the
    president of the Niagara chapter of the Hells Angels.

[5]

In the ensuing 11-day judge-alone
    trial, the Crown presented substantial circumstantial evidence to show that
    Rudge, in connection with his duties as a police officer, had provided
    confidential police documents to a criminal organization, thereby betraying the
    trust reposed in him by the public as a police officer.  This evidence fell
    into two categories  the seized documents and their connection with Rudge and records
    of phone calls between Rudge and Sandra Taylor.

[6]

Rudge denied the allegations
    against him and adduced evidence in response to the inferences the Crown argued
    should be drawn from the combined effect of the documents and the cell phone
    records. With respect to the leaked documents, Rudge called evidence concerning
    certain weaknesses in the Port Colborne police detachments buildings security
    system.  This was to support his theory that the documents had been obtained by
    the Hells Angels from an unknown person who had broken into (or otherwise
    gained access to) the building, had taken them and had provided them to the
    Hells Angels. With respect to the cell phone calls, Rudge offered evidence in
    support of an innocent explanation  that they were related to his efforts to
    assist Sandra Taylors daughter, Miranda Taylor, with problems that included substance
    abuse.

[7]

In brief reasons, the trial judge concluded
    that he was left with a reasonable doubt as to Rudges guilt.  Rudge was
    therefore acquitted.

[8]

As I will explain, I would allow
    the Crowns appeal from acquittal and order a new trial on the grounds that the
    trial judge (1) failed to examine the evidence as whole in relation to the
    ultimate question of guilt, and (2) failed to factor into his analysis
    important evidence relevant to a key issue.  In my opinion, the combination of
    these errors invalidates the acquittal and a new trial is called for.

II.        FACTUAL BACKGROUND

[9]

On the evidence, the trial judge found
    the following facts, none of which are in dispute.

[10]

The Leak Investigation was
    triggered by a document that contained information that the Outlaws, a rival
    motorcycle gang, intended to re-open its St. Catharines chapter.  The
    information included names, photographs and current places of residence of
    Outlaws members.

[11]

The document originated from the
    Port Colborne police detachment where a monitor had secretly been installed on the
    printer used by the officers. Logs, produced by the monitor revealed that five
    confidential police documents relating to biker gangs had been printed.  The officer
    who printed one of the documents provided it to the investigators together with
    an acceptable explanation as to why he had printed it.  Rudge printed the four remaining
    documents.

[12]

Subsequent to this discovery, on
    September 28, 2006, the police involved in Project Tandem executed several
    search warrants at premises under the control of the Hells Angels or their
    members, including the Cedar Bay Inn in Port Colborne, the Hells Angels
    Clubhouse in Welland, the home of Ken Wagner and Sandra Taylor in Port Colborne,
    and the home of Gerald Ward, a full patch member of the Hells Angels in Welland.

[13]

These searches produced most of
    the documents upon which the Crowns case depended.

The Confidential Documents

[14]

A brief description of the
    documents found in each location, and the evidence upon which the Crown relied to
    connect Rudge to the documents, follows.

[15]

The Cedar Bay Inn was a facility
    owned by Ken Wagner and operated by Sandra Taylor.  In their search of the Inn,
    the police discovered the following two documents in the office from which
    Sandra Taylor managed the Inn:

a)

A calendar indicating Rudges work shifts for the year 2006

The Crown relied on the fact that Rudges fingerprints
    were found on the calendar and evidence that Rudge had visited Taylor at the
    Inn.

b)

A photocopy of a police memorandum containing information about the
    Hells Angels presence at the Inn, and about various investigative approaches

The Crown relied on the fact that the original
    memorandum had been read to officers on duty and then stored in an unmarked
    binder kept on a shelf in the briefing room behind the sergeants desk in the
    Port Colborne police detachment.  The document had not been distributed.

[16]

The execution of the search
    warrant at the home of Ken Wagner and Sandra Taylor produced the following four
    documents:

a)

A copy of a confidential BEU booklet on Ontario motorcycle gangs that
    included security information

The Crown relied on evidence that the booklet,
    distributed to police two years earlier, had Rudges fingerprints on it.

b)

A copy of a General Occurrence Report concerning Domenic Mercuri (the
    Mercuri document)

The Crown called evidence that the document could
    only have been acquired by someone with access to the Welland detachment.  Rudge
    had such access.  The detachment was staffed 24 hours a day.

c)

A copy of a General Occurrence Report concerning Mr. Wagner, discovered together
    with the Mercuri document

The Crown relied on the fact that the original document
    was stored in a filing cabinet in the Port Colborne police detachment where
    Rudge worked.

d)

A copy of a BEU Outlaw Bulletin, found in a truck in front of the Wagner/Taylor
    home (the Outlaws bulletin)

The Crown relied on the fact that Rudges
    fingerprints were found on the Outlaws bulletin and that the printer log
    indicated that he had printed it on May 2, 2006.  Furthermore, the document
    contained, in Sandra Taylors handwriting, information about where some of the Outlaws
    lived.  This information was only available to those who could retrieve it from
    a password-protected program on a police computer.  Rudge initially denied
    having received the training necessary for him to access this information, but
    later admitted to having received the training.

[17]

The execution of the search
    warrant on the Hells Angels Clubhouse in Welland yielded an additional
    document:

a)

A copy of a BEU Hells Angels Bulletin containing, among other things,
    pictures of gang members

The Crown relied on the fact that Rudges
    fingerprints were on the document.  The printer logs indicated that on April
    16, 2006, Rudge had printed two copies of the Bulletin.  The other copy was
    located in Rudges locker.

[18]

In the course of the search of Mr.
    Wards home in Welland, the police found the following document:

a)

A colour copy of the Outlaws bulletin that was found in the truck in
    front of the Wagner/Taylor home

As with the original version of this document, the
    copy contained information in Sandra Taylors handwriting that could only be
    accessed from the police computer.

[19]

There were two other documents that
    formed the basis of the charge against Rudge:

a)

In June 2006, an informant observed John Clute in possession of an
    intelligence bulletin (the Clute document).  The Clute document indicated
    that a certain informant had provided police with information about Clutes
    involvement with the Niagara Hells Angels.  The police recovered the Clute
    document from Clute on July 26.

The Crown relied on the printer logs to show that
    Rudge was the only person who printed the Clute document and that he had done
    so on May 2, 2006.

b)

Some time prior to June 9, 2006, another confidential intelligence
    bulletin indicating that John Cane, a known biker, and Jason Meyer had opened
    an establishment in Beamsville called the Dark Side Tattoo, was seen in Canes possession.

While this document was never recovered, the Crown again
    relied on the printer logs to demonstrate that this document had been printed only
    by Rudge and that he had printed it on May 4, 2006.

The Cell Phone Records

[20]

The cell phone records turned over
    as a result of the production order disclosed extensive contact between Rudge
    and Sandra Taylor.  That contact took place both while Rudge was on duty and
    while he was off duty. The majority of the contact corresponded temporally with
    activity material to the two investigations.

[21]

Rudge and Sandra Taylor spoke to
    each other by cell phone the day after she had complained about Mirandas being
    picked up in a police car after being found by Rudge standing on the street,
    malnourished and in a drug-induced haze.  An eight-month gap in communication
    followed.  Cell phone contact between Rudge and Sandra Taylor resumed in January
    2006 and the records show a cluster of calls in the months of March, April, and
    May 2006.  According to the Crown, this timing was significant as Rudge printed
    one of the four confidential documents in issue in April and the other three in
    May. The last recorded call during this period took place on June 10, 2006.

[22]

Another eight-month gap ensued. 
    The records demonstrate that telephone communication between Rudge and Sandra
    Taylor resumed two days before the judicial pre-trial on charges involving
    incarcerated Welland Hells Angels members.

Rudges Response to the
    Evidence concerning Confidential Documents

[23]

While Rudge admitted that he had
    printed the documents indicated by the monitor on the printer and otherwise had
    access to the documents upon which the Crown relied, he took the position at
    trial that the documents had been stolen from the Port Colborne police
    detachment by someone else who then provided them to the Hells Angels (the
    third-party-theft-theory).

[24]

The evidence Rudge relied upon in
    support of this theory was his own testimony that, after briefings with other
    police officers, he commonly left such documents in his mail slot. He also
    called evidence to show that the building housing the Port Colborne detachment
    was easily accessible: it was regularly unoccupied and the key-code lock controlling
    the back door of the building had never been changed.

[25]

There was, however, evidence that significantly
    undermined Rudges explanation.

[26]

As I will later explain, the Mercuri
    document and the Outlaws bulletin were the two most compelling pieces of
    evidence that was completely incompatible with the third-party-theft theory.

[27]

In addition, the Crown challenged
    the portion of Rudges theory that said that during briefings with his
    platoon-mates, Rudge regularly distributed documents such as those that formed
    the basis of the Crowns case, and that after these meetings he often left the
    documents in his mail slot.  A number of Rudges platoon-mates testified that
    he had never handed out intelligence information at briefings, and that he did
    not keep such documents in his mail slot.

[28]

Furthermore, the evidence was
    clear that Rudge never reported the disappearance of any document even though
    those he alleged must have been taken from him included his calendar, his OMG
    booklet, his Outlaws bulletin, his Hells Angels Bulletin, his Clute memorandum,
    and his Dark Side Tattoo memorandum.

Rudges Response to the Cell
    Phone Records

[29]

As previously indicated, Rudge
    explained the phone calls disclosed by the cell phone records as evidence of nothing
    more than his efforts to help Miranda Taylor with her problems. He testified that
    throughout the two years after he found Miranda
in extremis
on the
    street, he tried to help her.  He described assisting her in resolving conflicts
    with numerous local businesses over her alleged shoplifting activities and, on
    one occasion, bringing her to be seen by an employee of a resource centre. 
    Rudges assistance to Miranda was supported by the testimony of several defence
    witnesses.

[30]

However, other evidence upon which
    Rudge relied, such as the testimony of the intake worker at the resource centre,
    a soup kitchen worker, and a pharmacist, did not support a conclusion that he
    was as heavily involved in helping Miranda as he tried to make out.  Indeed, Rudge
    himself admitted that his involvement was fleeting.

III.      THE REASONS OF THE
    TRIAL JUDGE

[31]

Though I later detail the trial
    judges reasons more fully, a short summary provides the necessary context at
    this stage.

[32]

In succinct reasons, the trial
    judge summarized the evidence, made certain findings, set out the positions of
    the Crown and the defence, and identified the only issue in dispute as whether
    the Crown has proved beyond a reasonable doubt that Mr. Rudge did indeed commit
    the breach of trust by passing on confidential police documents to the Hells
    Angels.

[33]

In the Analysis portion of his
    reasons, the trial judge briefly reviewed Rudges relationship with Sandra Taylor
    and the timing of their telephone contact, the documents discovered at Hells
    Angels locations and their connection with Rudge, and Rudges contact with
    known criminals.  The trial judge then concluded that, after applying the analysis
    set out in
R. v. W.(D.)
, [1991] 1 S.C.R. 742, he was left with a
    reasonable doubt as to Rudges guilt.

IV.      ISSUES

[34]

The Crown raises the following
    issues on appeal:

a)

whether the trial judge erred in his treatment of the evidence;

b)

whether the trial judge relied in part on speculation or conjecture as
    the basis for reasonable doubt; and

c)

whether the trial judge erred in drawing an adverse inference from the
    Crowns failure to call certain witnesses.

V.        ANALYSIS

Jurisdiction on a Crown
    appeal from acquittal

[35]

That this courts jurisdiction in
    this case is extremely limited is not contested.  Under s. 676(1)(a) of the
Criminal
    Code
, the Attorney General has the right to appeal against an acquittal on
    any ground of appeal that involves a question of law alone. The Supreme Court has,
    on a number of occasions, provided assistance in relation to the narrow limits
    of the appellate jurisdiction granted by this provision.  The point
    consistently made is that the Crown is not entitled to contest an acquittal on
    the basis of an error of fact or of mixed fact and law. This limitation has
    been interpreted to preclude the Crown from arguing that an acquittal was
    unreasonable or, provided the trial judge took a legally correct approach to
    the evidence, that the verdict was not supported by the evidence: see:
R. v.
    B.(G.)
, [1990] 2 S.C.R. 57, at

pp. 70-71; and
R. v. Morin
,
    [1992] 3 S.C.R. 286, at pp. 294-295.

[36]

To succeed on this appeal from an
    acquittal, the Crown is also required to demonstrate with a reasonable degree
    of certainty, that the verdict would not necessarily have been the same had the
    error not been made: see
R. v. Morin
, [1988] 2 S.C.R. 345, at p. 374;
R.
    v. Graveline,
[2006] 1 S.C.R. 609, at para. 16; and
R. v. Sutton,
[2000]
    2 S.C.R. 595, at para. 2. An appeal by the Attorney General cannot succeed on a
    purely hypothetical possibility that the accused would not have been acquitted
    but for the error of law.

[37]

It is through the lens of this
    limited right of appeal that I examine the Crowns arguments.

Issue one: mistreatment of
    the evidence

[38]

In its factum, the appellant
    submits that the trial judge erred in law through his treatment of the evidence
    by:

a)

failing to consider or address relevant evidence on issues of
    significance;

b)

failing to consider the totality of the evidence; and

c)

subjecting individual items of evidence to the criminal standard of
    proof.

[39]

In cases such as this,
    where the Crown appeals from an acquittal on the ground that the trial judge
    erred in his or her approach to the evidence, the focus has been on what does
    and does not constitute an error of law alone: see
R. v. Harper,

[1982] 1 S.C.R. 2
;
R. v. Schuldt
,
[1985] 2
    S.C.R. 592
;
R. v. Morin
(1988);
R. v. B.(G.)
;
R. v. Morin
(1992). The
    distinction is crucial because, as the appellant properly observes in its
    factum, the Crown has no right of appeal against an

unreasonable
    acquittal.

[40]

Recently, in
R. v. J.M.H.
¸
    2011 SCC 45
,
the Supreme Court was presented with another opportunity to
    consider an appeal from an acquittal where the Crowns argument was based on
    the trial judges treatment of the evidence.  Cromwell J., speaking for a unanimous
    Court, referred to the issue as vexed.  But he then proceeded to identify and
    succinctly describe, at paras. 25-32, a non-exhaustive list of four situations
    that have been recognized as giving an appellate court jurisdiction in a Crown appeal
    from an acquittal where the appeal is based on an erroneous approach to the
    evidence:

a)

it is an error of law to make a finding of fact
    for which there is no evidence  however, a conclusion that the trier of fact
    has a reasonable doubt is not a finding of fact for the purposes of this rule;

b)

the legal effect of findings of fact or of
    undisputed facts raises a question of law;

c)

an assessment of the evidence based on a wrong legal
    principle is an error of law; and

d)

the trial judges failure to consider all of the
    evidence in relation to the ultimate issue of guilt or innocence is an error of
    law.

[41]

An assessment of whether the trial
    judges approach to the evidence amounts to the commission of one or more of
    these errors involves careful consideration of the reasons and the extent to
    which they are responsive to the live issues in the case. If it is determined
    that the reasons do disclose an error arising out of the trial judges
    treatment of the evidence, the question then becomes whether the Crown has
    satisfied the onus necessary for this court to set aside the acquittal and order
    a new trial.

i.

The nature of the Crowns case

[42]

According to the Crown, the fabric
    of its case consisted of two distinct threads of circumstantial evidence that, when
    woven together, firmly connect Rudge to the provision of confidential police
    information to the Hells Angels.  Specifically, the Crown argues that the clear
    inference arising from the combined effect of the links between Rudge and Sandra
    Taylor and the circumstances of the documents and their discovery is that Rudge
    obtained the documents or made copies of them and, through Taylor, provided them
    to the Hells Angels.  In fact, says the Crown, this is the
only
available inference when all of the evidence is considered and considered as a
    whole.

ii.

The trial judges reasons

[43]

The Analysis portion of the
    trial judges reasons consists of 11 brief paragraphs. Four contain the summary
    of the trial judges analysis of the major aspects of the case for the
    prosecution  the pattern of phone calls between Rudge and Taylor, and the fact
    that each of the confidential police documents found in the possession of the
    Hells Angels could, in some fashion, be linked to Rudge.

[44]

The trial judge dealt with the
    phone communications at para. 43 of his reasons:

43.       Mr. Rudge was vigorously cross-examined
    by the Crown and for the most part his story remained unchallenged. I accept
    that he was helping Miranda Taylor overcome her drug, boyfriend and education
    problems. I accept as well that this necessitated him being in contact with her
    mother Sandra Taylor either by phone or in person and these conversations were
    personal and logically would be done privately. Although some calls were
    clustered in months which had key dates in the prosecution of suspects in
    Project Tandem, many other calls were clustered at no specific time.

[45]

The trial judges analysis of the
    prosecution evidence relating to the documents and their connection with Rudge
    and Taylor essentially consumed the remainder of his analysis.  The key paragraphs
    are as follows.

45.       I find that some of the documents found
    in Hells Angels locations were printed by Mr. Rudge and therefore handled by
    him. I also find that he, like most of what I heard about protocols at the Port
    Colborne detachment, was less than perfect about securing these documents. They
    appear to have been accessible to potentially many people.

46.       I have considered at length the evidence
    of Mr. Rudge regarding his explanation about losing track of his work calendar
    for 2006 and it ending up at the Cedar Bay Inn when he had initially prepared
    it for his girlfriend; his assertions that he regularly handed out documents to
    fellow officers at briefings which was denied by several officers; his innocent
    explanation about obtaining a police profile for Diane Gales brother; the
    cluster of some calls to Sandra Taylor during key times in the Project Tandem
    investigation. Indeed some of these explanations raise suspicion.

. . .

48.       I also accept as logical Mr. Rudges
    statement that when he was a very young officer he printed a confidential
    police document for a woman to warn her that her then boyfriend had a criminal
    record. He was caught and disciplined and says he thereby learned his lesson.

[46]

At para. 53 of his reasons, the
    trial judge concluded, I must be sure Mr. Rudge is guilty of the charge laid
    against him. For all the reasons given I am not sure and therefore he must be
    acquitted.

iii.       Analysis

[47]

It is for the Crown to establish
    beyond a reasonable doubt that the accused committed the offence with which he
    or she has been charged.  That said, the prosecution is entitled to a legally
    correct approach to the evidence that bears upon the determination of whether
    the onus has been met  a contextual approach based on a full evidentiary
    footing in which the proper standard of proof is applied.

[48]

In the context of this case, the
    trial judge was obligated to consider the combined effect of all of the
    evidence relevant to the issue of whether it was Rudge who leaked the documents. 
    This included the obligation to take into account the evidence relevant to whether
    the confidential police documents, each of which could be connected to Rudge,
    came into the possession of the Hells Angels from someone other than Rudge taking
    them from the Port Colborne detachment.  And then, if so, the unlikely
    coincidence that the thief provided them to Sandra Taylor
at around the same
    time
as Rudge was having extensive phone contact with her, much of which
    took place while he was off-duty and coincided with activity associated with
    the two investigations.

[49]

A review of the trial judges reasons
    makes it clear that he failed to consider the evidence as he should have.

[50]

While the trial judge did outline
    much of the evidence that pertained to each of the two components of the
    Crowns case  the documents and the phone calls  his reasons demonstrate that
    he considered the evidence relevant to each component separately and that he failed
    to factor into his analysis important evidence that severely undermined the
    theory of the defence.

[51]

In explaining, at para. 43 of his
    reasons, why he accepted Rudges position that his cell phone contact with
    Sandra Taylor was personal and innocent, there is no indication that the trial
    judge considered the communications in the context of the other evidence.  While
    the trial judge does note that some of the phone calls were clustered in months
    that had key dates in the prosecution of Project Tandem, he dismissed the
    balance of the calls as being clustered at no specific time.  This was a significant
    misapprehension of the evidence.  In fact, a large number of calls were also
    clustered around the very times during which the documents were being copied by
    Rudge.  The trial judge did not address the phone calls in the context of this
    important connection.  In short, he failed to examine the relevance of the
    phone calls in the light of the extensive evidence about the circumstances
    surrounding the discovery of the documents and their connection with both Rudge
    and Taylor.

[52]

In the circumstances of this case,
    the impact of this isolated analysis of the cell phone records goes further.  It
    also contaminated the trial judges analysis of the evidence involving the
    confidential police documents, evidence that led to his acceptance of the
    possibility that someone else wrongly acquired them and provided them to the
    Hells Angels, through Sandra Taylor.  In his examination of the document evidence,
    the trial judge does refer, at para. 46, to the cluster of some calls to
    Sandra Taylor during key times in the Project Tandem investigation.  However,
    once again, this mention falls short of a consideration of the evidence as a
    whole.  Moreover, by that point in his reasoning the trial judge had, through his
    piecemeal approach to the evidence, already accepted a benign explanation for
    the calls. This is precisely the kind of analytical distortion to which a
    piecemeal approach to the evidence gives rise.

[53]

I am not persuaded that this brief
    reference to the phone calls during the trial judges analysis of Rudges explanation
    relating to the documents, even coupled with the comment that some of these
    explanations raise some suspicion, is sufficiently responsive to the Crowns
    key arguments and the live issue: whether a reasonable doubt arose from the suggestion
    that another individual stole confidential police documents  all linked to
    Rudge  and provided them to Sandra Taylor while Rudge was contemporaneously
    engaging in extensive phone contact with her.

[54]

This takes me to the Crowns
    argument that the trial judge also failed to factor material evidence into his
    analysis of the ultimate question of guilt  a valid point, in my view.

[55]

In addition to erroneously
    scrutinizing the two portions of the Crowns case  the confidential documents
    and the phone communication  separately, at the cost of assessing the evidence
    in context as a whole, it is evident from the trial judges reasons that he
    also failed to take into account several key individual pieces of evidence in
    his analysis of whether the prosecution had established, beyond a reasonable
    doubt, that it was Rudge who provided the confidential police documents to the Hells
    Angels.

[56]

I acknowledge that a trial judge
    is not required to record an assessment of every piece of evidence in his or
    her reasons: see
J.M.H.
at paras. 31-32. However, the reasons must be
    responsive to the cases live issues and the parties key arguments: see
R.
    v. Walker
, 2008 SCC 34, [2008] 2 S.C.R. 245, at para. 20;
J.M.H.
, at
    para. 32.

[57]

This, in my view, the trial judge,
    did not do.

[58]

As I have said, the
    third-party-theft-theory was a key argument.  It was also a key part of the
    trial judge analysis of whether the Crown had met its burden.

[59]

In relation to this theory, it was
    highly relevant that the Mercuri document found in the home of Sandra Taylor
    and Ken Wagner was kept in a filing cabinet in the Welland detachment, to which
    Rudge had access.  This document had no connection with the Port Colborne
    detachment building and therefore its discovery in the possession of the Hells
    Angels could not be explained by any theft that may have occurred in Port Colborne.

[60]

Circumstances surrounding the Outlaws
    bulletin found in the vehicle in front of the home of Sandra Taylor and Ken
    Wagner, were equally relevant.  Rudges fingerprints were on the document.  He
    had printed the bulletin during one of the periods when he was having extensive
    contact with Taylor.  And, the document had information on it, hand-written by Taylor,
    that could only have been obtained from a password-protected police computer on
    which Rudge had been trained.  The characteristics of this document also belied
    the theft theory.

[61]

The third piece of evidence the
    trial judge failed to consider in his reasons related to a copy of the police
    memorandum containing information
about the Hells
    Angels presence.  This document was discovered at the Cedar Inn.  While not
    impervious to the third-party-theft theory, that theory is considerably more
    unlikely with respect to this document.  It had been read to officers on duty,
    but had not been distributed to them.  It was stored in an unmarked binder
    behind the sergeants desk and could not have been taken from Rudges mail slot
    (the focal point of the third-party-theft theory).


[62]

The trial judges reasons simply
    do not demonstrate that he took stock of the uncontroverted evidence about
    these documents - significant evidence, given its potential to undermine the defence
    position  in conjunction with all of the other proof, in his evaluation of
    whether the evidence gave rise to a reasonable doubt.

[63]

By assessing the strength of the
    Crowns case and the plausibility of Rudges responses to the Crowns case on a
    piecemeal basis and overlooking important evidence material to the issue to be
    determined, the trial judges approach to the evidence was seriously flawed
    such that it amounts to a misdirection constituting an error of law and
    bringing the matter within the jurisdiction of this court:
R v. B.(G.)
,
    at paras. 31-39.

[64]

It is important to emphasize that
    the errors I have identified do not concern the weight that the trial judge may
    or may not have assigned to the evidence, or whether the evidence, properly
    considered, should have persuaded the trial judge beyond a reasonable doubt of
    Rudges guilt. It is not for this court to substitute its own weighing of the prosecution
    evidence or its own determination on the ultimate question of guilt. As
    mentioned earlier, the Crown has no appeal on the basis of an unreasonable
    acquittal.

[65]

Rather, the errors here arise from
    the trial judges departure from the legally correct approach to the evidence
    that bears upon the ultimate question of guilt:
J.M.H., at para. 31; B.(G.)
,
    at paras. 31-39.   The strength of the Crowns case lay in the persuasive
    effect of the totality of the evidence, but the trial judge never considered
    whether the doubt he amassed, looking separately at Rudges response to each
    part of the Crowns case, would survive an examination of those explanations
    considered in the context of the Crowns case as a whole.

[66]

It is therefore apparent that the
    doubt the trial judge refers to at the close of his reasons was drawn from his
    consideration of each component of the Crowns case without the support of the
    other evidence, including evidence that presented a serious threat to the
    position of the defence. Simply put, the persuasive effect of the totality of
    the evidence  the strength of the Crowns case  was taken out of play.

[67]

I return to Cromwell J.s four
    categories of legal error arising from a trial judges approach to the evidence
    that he identified in
J.M.H.
Para. 31 contains a detailed description
    of the fourth category - the failure to consider all of the evidence in
    relation to the ultimate issue of guilt:

The underlying legal principle is
    set out in another decision called
R. v. Morin
, [1988] 2 S.C.R.
    345.   The principle is that it is an error of law to subject
    individual pieces of evidence to the standard of proof beyond a reasonable
    doubt; the evidence must be looked at as a whole: see e.g.,
B. (G.)
, at
    pp. 75-77 and 79
.
However, Sopinka J. sounded an important warning
    about how this error may be identified.  It is a misapplication

of
    the
Morin
principle to apply it whenever a trial judge fails to deal
    with each

piece of evidence or record each piece of evidence and his or
    her assessment of it. As noted in
Morin
(1992), at p. 296, A trial
    judge must consider all of the evidence in relation to the ultimate issue but
    unless the reasons demonstrate that this was not done, the failure to record
    the fact of it having been done is not a proper basis for concluding that there
    was an error of law in this respect.

[68]

It is readily apparent that this
    description could easily be said to apply to the errors I have identified in
    this case.  The evidence was not looked at as a whole, an error that invites the
    corresponding error of the application of the criminal standard of proof to
    individual items of evidence.  In addition, not all of the evidence was
    considered in relation to the ultimate issue.

[69]

For these reasons I am of the
    opinion that the trial judges approach to the evidence amounted to an error of
    law.

Issue 2:
reliance in
    part on speculation or conjecture as the basis for reasonable doubt

[70]

The Crown also submits that the
    trial judge erred in concluding that there was a reasonable doubt as to Rudges
    guilt based on the mere possibility of an alternative explanation.

[71]

For this proposition, the Crown
    relies on, among other cases,
R. v. Wild
, [1971] S.C.R. 101. In
Wild
,
    Martland J, writing for the majority, held at pp. 113-14, that a reasonable doubt
    cannot be based on conjecture, but must be based on a rational conclusion on
    the evidence.  However, in
R. v. Schuldt
, [1985] 2 S.C.R. 592, Lamer J.,
    writing for a unanimous Supreme Court, qualified
Wild
, at p. 604:

I agree with [Martland J.],
    however, that a finding of fact that is made in the absence of any supportive
    evidence is an error of law.  I must say, however, that that will happen as
    regards an acquittal only if there  has been a transfer to the accused by law
    of the burden of proof of a given fact.

[72]

This court considered Lamer J.s
    reasons in
Schuldt
in
R. v. Powell
(2010), 99 O.R. (3d) 671.
    Juriansz J.A., writing for the court, stated at paras. 31-32:

[Lamer J.] concluded that
    the proposition that the total absence of a foundation for a finding of fact is
    an error of law generally has
no application to a trial judges conclusion
    that there is reasonable doubt
.  As the accused does not have to prove the
    existence of reasonable doubt, no particular evidence to support the finding of
    reasonable doubt is necessary and the proposition does not apply.

Lamer J. explained there is
    but one exceptional circumstance where an evidentiary basis is required to
    acquit. That is where the law provides for a presumption and places a burden on
    the accused to displace it.  In such a case it is an error of law to acquit in
    the face of the presumption. [Emphasis added.]

[73]

Cromwell J., in dealing with this
    issue in
J.M.H.
, confirmed, at para. 25, that the error of law in making
    a finding of fact in the absence of evidence has no application to a finding of
    reasonable doubt:

It has long been recognized
    that it is an error of law to make a finding of fact for which there is no
    supporting evidence:
Schuldt v. The Queen
. It does not follow from this
    principle, however, that an acquittal can be set aside on the basis that it is
    not supported by the evidence.  An acquittal (absent some fact or evidence on
    which the accused bears the burden of proof) is not a finding of fact but
    instead a conclusion that the standard of persuasion beyond a reasonable doubt
    has not been met [Citations omitted.]

[74]

Here, the Crown argues that
    Rudges evidence concerning his handling of confidential documents and the poor
    security at the Port Colborne detachment  evidence that might support the third-party-theft
    theory  was not a sufficient basis for a reasonable doubt.  But it is clear
    from the authorities that a lack of evidentiary foundation to support a
    reasonable doubt is not an error in law capable of grounding an appeal from
    acquittal unless the law has shifted the burden of proof to the accused.  There
    has been no such shift in the burden of proof in this case.

[75]

I would not give effect to this
    ground of appeal.

Issue
    3: adverse inference

[76]

In rejecting the Crowns argument
    that Rudges explanation for the cell phone communication with Sandra Taylor
    was not credible, the trial judge stated the following, at para. 44 of his
    reasons:

The Crown elected not to call Sandra Taylor nor her
    daughter Miranda to dispute this evidence, on the basis that Ms. Taylor had
    previously lied at the preliminary hearing. It would have been for the Court to
    determine how much weight to put on any such evidence she might have given.
    This Court often hears from less than credible witnesses and is perfectly
    capable of weighing such evidence. No reason was given why Miranda was not
    called.

[77]

The Crown argues that this
    paragraph indicates that the trial judge drew an adverse inference against the
    prosecution based on its failure to call Sandra Taylor and Miranda Taylor as
    witnesses.

[78]

The Supreme Court of Canada
    addressed the issue of an adverse inference in the context of the Crowns
    failure to call a witness in
R. v. Jolivet
, [2000] 1 S.C.R. 751.  The
    general rule, applicable in both civil and criminal cases, is that all evidence
    is to be weighed according to the proof that one side is capable of producing
    and the other side is capable of contradicting. In the criminal context, the
    general rule is subject to many conditions to account for the peculiar division
    of responsibilities between the Crown and the defence. First, the party against
    whom an adverse inference is sought may provide a satisfactory account for its
    failure to produce a witness (para. 26).  Second, there is a stronger basis for
    the drawing of an adverse interest where one party has special access to the
    potential witness (para. 27). Additionally, attention must be paid to the exact
    nature of the adverse inference sought to be drawn.  Binnie J. stated the
    following, at para. 28:

In
    J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (2nd
    ed. 1999), at p. 297, para. 6.321, it is pointed out that the failure to call
    evidence may, depending on the circumstances, amount "to an implied
    admission that the evidence of the absent witness would be contrary to the
    party's case,
or at least would not support it
", as stated in the
    civil case of
Murray v. Saskatoon
, [1952] 2 D.L.R. 499 (Sask. C.A.), at
    p. 506. The circumstances in which trial counsel decide not to call a
    particular witness may restrict the nature of the appropriate "adverse
    inference". Experienced trial lawyers will often decide against calling an
    available witness because the point has been adequately covered by another
    witness, or an honest witness has a poor demeanour, or other factors unrelated
    to the truth of the testimony. Other jurisdictions also recognize that in many
    cases the most that can be inferred is that the testimony would not have been
    helpful to a party, not necessarily that it would have been adverse. [Emphasis
    added by Binnie J. Citations omitted].

[79]

The Crown submits that no adverse
    inference was available here as:

1)

the evidence in question was not peculiarly within the power of one
    party to produce, as Rudge could have called the two witnesses;

2)

it would not have been natural for the Crown to produce the two
    witnesses as, to confirm the Crown theory, Ms. Taylor would have been required
    to admit to criminal wrongdoing; and

3)

the Crown offered a reasonable explanation for failing to call Ms.
    Taylor  she was an admitted perjurer.

[80]

The Crown does not go so far as to
    suggest that this error alone is sufficient to require a new trial, but rather
    submits that, when taken together with the erroneous treatment of the evidence
    discussed above, it provides strength to the argument that the acquittal cannot
    stand.

[81]

My difficulty with this ground of
    appeal is that, in my view, the trial judge did not draw an adverse inference
    from the Crowns failure to call either Sandra or Miranda Taylor.  An adverse
    inference occurs when the trier of fact draws a conclusion about what the
    testimony of an uncalled witness would have been, to the extent that the trier
    of fact infers that the evidence would have been detrimental to, or at least
    would not have assisted, the case of the party who fails to call the witness.

[82]

That is not what happened here.  The
    passage from the trial judges reasons quoted above is, in my view, nothing
    more than a negative comment about the Crowns conduct of the case: the trial
    judge simply notes the fact that the Crown failed to adduce evidence to dispute
    this aspect of the defence theory.  The trial judge does not express any
    conclusion as to what the evidence of Sandra or Miranda Taylor would have been
    had either or both of them testified. These are precisely the circumstances found
    in
R. v. Cook
, [1997] 1 S.C.R. 1113,

and
R. v. Yebes
,
    [1987] 2 S.C.R. 168. The Crown failed to call two witnesses and the trial judge
    noted that this failure left a gap in the Crowns case. He drew no adverse
    inference against the Crown.

[83]

Accordingly, I would not give
    effect to this ground of appeal.

VI.      CONCLUSION

[84]

This court does not lightly
    overturn an acquittal.  However, the trial judges approach to the evidence
    must be correct in law so as to ensure that the final step in the process, the
    weighing of the evidence, is not flawed.  Here, the trial judge approached the evidence
    comprising the case for the prosecution in a manner that amounted to an error
    in law. This was the result of misdirection and brings the matter into the
    jurisdiction of this court.

[85]

As previously noted, having
    established an error of law alone, the Crown must demonstrate that the trial
    judge's error might reasonably be thought to have had a material bearing on the
    acquittal.

[86]

The Crown presented a compelling
    evidentiary foundation for conviction. In this case, advanced through circumstantial
    evidence, the trial judge was required to factor all of the material evidence
    into his analysis of the issue of whether the Crown had established that it was
    Rudge who provided the confidential police documents to the Hells Angels. 
    This involved a considered assessment of the plausibility of the
    third-party-theft theory in the light of all of the evidence and all of the
    evidence as a whole.

[87]

Given the trial judges failure to
    approach the evidence in this way, I am of the view that it cannot be said that
    the verdict would necessarily have been the same absent these errors.

VII.

DISPOSITION

[88]

For these reasons, I would allow
    the appeal, set aside the acquittal and order a new trial.

RELEASED:

DEC
    15 2011                               G.J. Epstein J.A.

DOC                                               I
    agree Dennis OConnor A.C.J.O.

I
    agree R.A. Blair J.A.




