



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Griffith, 2018 ONCA 875

DATE: 20181101

DOCKET: FILE C63731

MacPherson, Miller and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Terrell Griffith

Appellant

Paul Calarco, for the appellant

Jacob Sone, for the respondent

Heard:  October 29, 2018

On appeal from the conviction entered on September 21,
    2016 by Justice Johanne Morissette of the Superior Court of Justice.

REASONS FOR DECISION

[1]

The appellant, Terrell Griffith, was convicted of robbery and using an
    imitation firearm in the commission of that offence by Morissette J. of the
    Superior Court of Justice. He was sentenced to six months incarceration for
    the robbery offence and 12 months consecutive for the use firearm offence. He
    appeals the convictions.

[2]

Around 2:00 a.m. on March 5, 2015, two men robbed a taxi driver by the
    Thames River in London. One of the men used an apparent handgun. The robbers
    fled toward the partially frozen river. Police responded quickly to the taxi
    drivers call for help. On the other side of the river, the police spotted the
    appellant, who matched the general description of one of the robbers. The
    appellant ran away from the police, jumping over a series of fences into the
    backyards of houses. The police caught him with the help of Bosco, a tracking
    dog. The appellants construction-type boots, socks and pant legs were drenched
    with water.

[3]

Bosco was then taken to the scene of the robbery. He found the
    appellants scent trail. The scent trail led from the area of the robbery to
    the edge of the river and then from the opposite bank to where the appellant
    had first been spotted by police. There were footprints in the snow that went
    the same way as the appellants scent trail. A replica handgun resembling the
    one used in the robbery was found in the snow a few steps away from those
    footprints.

[4]

The appellant did not testify and did not call any evidence.

[5]

The trial judge found the appellant guilty of both offences. She said in
    part:

The issue for this court is identification.



The robbery occurred between 2:09 and 2:12 a.m., when the
    police received a tone alert from the cab. At 2:20, therefore, approximately
    eight minutes later, a silhouette was seen by Officer Pouliot running up the
    bank of the west side of the river, through the bush, and crossing at 54 Argyle
    Street. He saw the silhouette run into the yard, and saw him go over the fence.

Approximately one to two minutes later, Officer Stanley
    deployed Bosco, the tracking dog, in the area where the silhouette was last
    seen, and he fixated on a fresh human scent and followed it into the yard, over
    the fence and into 39 St. Andrews yard, and over another fence of a chain-link
    type, into 56 Argyle Street property, where at 2:22 a.m. Officer Stanley called
    out, Got the suspect. The accused was arrested at 2:23 a.m.



So based on the totality of the evidence, the timeline, the
    description of the perpetrator, the direct evidence of flight from police and
    jumping fences, the firearm being found in the locality where the accused was
    seen running, the evidence from Constable Stanley of Boscos dialed-in scent of
    a fresh human scent can only be rationally and logically be inferred that it
    was the accused who robbed Mr. Abbasey and walked with his accomplice westbound
    on Ann Street, as Mr. Abbasey saw them do, and then ran down toward the river.
    At that point, there is no evidence of where and how the gun got across the
    river, except that the accused was seen running in that same area before he was
    apprehended. I have no reasonable doubt that the accused is one of the
    perpetrators in the robbery and is a party to the offence of using an imitation
    firearm with his accomplice. Accordingly, I find you guilty on both counts.

[6]

The appellant appeals the convictions on four grounds.

[7]

First, the appellant contends that the trial judge erred by admitting
    and relying on the dog tracking evidence. In her ruling, the trial judge said:

For the purposes of the admissibility of the evidence, I
    believe that Officer Stanley has particularly highlighted the success rate, not
    within the field but within the testing and the recertification of the higher
    standard by London Police Services. So for the admissibility, per se, I will
    allow it. Of course, then, there is cross-examination with respect to the
    evidence itself that will go to the issue of weight and what I apply to it. So
    I will allow the evidence to be admitted.

[8]

The appellant submits that the trial judge erred by concluding that
    Boscos test and certification scores were enough to warrant admission of the
    evidence relating to his role in the apprehension of the appellant. More was
    needed, specifically evidence relating to Boscos performance in the field in
    actual cases.

[9]

We do not accept this submission. In our view, the preconditions for
    admissibility were met in this case. Bosco had been a tracking dog for three
    years. He received extensive training and evaluation throughout the three year
    period. The standard he reached and maintained was the London Police Service
    standard which is even higher than the provincial standard. Officer Stanley had
    logs and statistics for all the training Bosco had done. Bosco was always
    successful in tracking scenarios. Indeed, during the relevant period, Officer
    Stanley led the unit in statistics, including the time he spent with Bosco.
    Finally, Officer Stanley gave detailed evidence about Boscos performance in
    this case. These factors, taken together, easily make the evidence relating to Boscos
    tracking in this case admissible within the test set out by Rosenberg J.A. in
R.
    v. Holmes
(2002), 62 O.R. (3d) 146 (C.A.), at para 37.

[10]

Second,
    the appellant submits that the trial judge made inappropriate use of post-offence
    conduct evidence, specifically the appellants flight from the police. She
    should have considered other possible explanations for the flight, including an
    irrational or alcohol induced fear.

[11]

We
    are not persuaded by this submission. There was no defence evidence on this
    issue, or on any other issue. As the trial judge said, there is no evidence of
    fear of police. The only reasonable inference in all of the circumstances was
    that the appellant was fleeing the robbery, to avoid being implicated in it.

[12]

Third,
    the appellant asserts that the trial judge minimized the evidence relating to
    the appellants intoxication to the point of non-existence, thus failing to
    recognize that there was a fundamental inconsistency between his highly
    intoxicated state and the robbery suspects, who were described as showing no
    signs of intoxication.

[13]

We
    disagree. The trial judge was entitled to reject the defence position that the
    appellant was quite heavily intoxicated by alcohol based on the evidence
    relating to the appellants physical appearance and physical activity.

[14]

Fourth,
    the appellant submits that the trial judge misapprehended the evidence relating
    to the appellants location once the police arrived on the scene.

[15]

We
    do not accept this submission. The trial judges description of the evidence
    relating to the suspects location on both sides of the river was essentially
    accurate.

[16]

The
    appeal is dismissed.

J.C. MacPherson J.A.

B.W. Miller J.A.

David M. Paciocco J.A.


