



COURT OF APPEAL FOR ONTARIO

CITATION: R. v.
    Charlton, 2015 ONCA 299

DATE: 20150430

DOCKET: C54069

Watt, Pepall and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Daniel Charlton

Appellant

Ernest J. Guiste and Michelle L. Velvet, for the
    appellant

Matthew Asma, for the respondent

Heard: April 27, 2015

On appeal from the conviction entered on April 26, 2011
    and the sentence imposed on June 28, 2011 by Justice Terrence P. OConnor of
    the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

There was a knock on the door of a family home late one night.  The
    familys 15 year old boy answered. Three masked men forced their way into the
    home by jabbing the muzzle of a sawed-off shotgun into his stomach. They bound
    his wrists with packing tape, ransacked the house and stole electronics, two
    televisions, video games and the keys to the family Mercedes. Two left with the
    car. The third went out the back door. The victim described the intruders as
    roughly six feet tall, athletic build, and black. He heard them use nicknames:
    Slim, A.K. and B-Boy.

[2]

A nearby police officer responding to the radio call about the home
    invasion saw a man going to a townhouse complex carrying a big-screen TV.  The
    man dropped the TV. When the officer tried to intercept him, the man ran.  He
    got away. The police then received confidential information that led them to
    obtain a search warrant for the appellants home. In his bedroom, police found
    stolen video games and electronics, including the victims iPod with the young
    victims own markings on the back. They also found a backpack and balaclava
    similar to ones used by the robbers, the same sawed-off shotgun used in the
    robbery, and a loaded revolver.

[3]

The trial judge convicted the appellant of multiple counts relating to
    the robbery, the confinement and the firearm.  The appellant argues that the
    trial judge made several legal errors and that the verdicts are unreasonable.
    The multiple grounds of appeal can be somewhat grouped into three broad
    grounds:

1. There was
    insufficient evidence of identitythe primary issue at trial;

2. The trial judge
    misapprehended or failed to consider important evidence;

3. The trial judge erred
    in law.

Identity:

[4]

The trial judges determination of identity was based on the following
    evidence:

·

The appellant lived in a townhouse less than three blocks from
    the victims house.

·

Minutes after the robbery, a police officer saw a man in black
    clothing and a hooded sweatshirt, running with a television toward the
    appellants townhouse complex.

·

The appellant fit the general physical description given by the
    victim.

·

The victim heard one of the robbers referred to as B-Boy. There
    was evidence that D-Boy was seen written over the appellants bed-room door
    when it was searched by police a week later. Defence witnesses admitted the
    appellant was sometimes referred to by his peers as D-Girl or D-Bitch.

·

All the robbers had their faces covered: one wore a black
    balaclava with red trim; one wore a Halloween mask; and one wore a dark
    face-covering that the victim could not clearly describe because it was shaded
    by a hood. When the appellants room was searched by police, there was a
    balaclava in his closet. It was gray with red trim. The appellant admitted this
    belonged to him. His DNA was on it. The appellant claimed he had not worn it in
    years, however it was found on the top of a jumble of clothing on his closet
    shelf.

·

The victim identified the shotgun found in the appellants
    bedroom as the one used in the robbery.

·

Items stolen in the robbery (small electronics, video games) were
    found in the appellants room distributed among his own things.

[5]

The appellant submits that once the trial judge accepted the evidence of
    the victim, he was obliged to find that the intruder was called B-Boy and not
    D-Boy. There was thus, according to the appellant, no evidence connecting the
    appellant to the robbery because he was not B-Boy.  On this issue, the trial
    judge said:

The street name of B-Boy is similar to the name D-Boy found
    by the police written on the doorframe of [the appellants] bedroom.  This
    difference could be attributable to [the victim] mishearing what men said
    because they were keeping their voices low and were talking through masks.

[6]

There was evidence that the robbers spoke with low voices. It was
    reasonable for the trial judge to infer that the victim mistook B-Boy for D-Boy. 
    Having accepted the victims evidence generally, the trial judge was not
    obliged to find that it was B-Boy not D-Boy who entered the home:  a finder
    of fact is entitled to accept some, none or all of a witnesss evidence. In our
    view, it was open to the trial judge to infer from this circumstantial evidence
    that one of the perpetrators was the appellant.

[7]

The appellant submits that there was no finding by the trial judge of
    control or possession of the items in the bedroom.  We disagree. The trial
    judge found as a fact that the appellant knew the items were in his room.  He
    was entitled to rely on the doctrine of recent possession.

Misapprehension and failure to consider evidence

[8]

The appellant submits that the trial judge misapprehended parts of the
    evidence including: the balaclava found in the appellants closet which was
    worn by the robber; which robber left through the backdoor; and the whereabouts
    of the appellants son in the days before the search of the appellants home.

[9]

He further submits that the trial judge failed to consider the evidence
    of the appellants height (with or without shoes), the effect of the
    appellants childcare responsibilities on his attendance at school and his
    extracurricular activities; and evidence that showed police animus towards the
    appellant.

[10]

In
    our view, there was no misapprehension.

[11]

The
    appellants balaclava, found in the vicinity of the shotgun and the stolen
    property, supported the inference that the appellant was one of the robbers.
    The balaclava was similar to the black one described by the victim. The trial
    judge was entitled to consider it, along with the other physical evidence, the
    victims description of the robbers and the nickname.

[12]

The
    evidence as to which robber left through the back door was not a material fact
    in the judges reasoning. The trial judge did not misapprehend or fail to consider
    material evidence.

[13]

It
    is conceded by the Crown that the trial judge misapprehended part of the
    evidence: the appellants child was staying with the appellant and his mother
    in Mississauga and was not being brought from Brampton. This was not a material
    issue. In his credibility assessment, the trial judge considered that the
    appellant and his mother contradicted each about several additional issues. 
    The trial judge was entitled to consider these contradictions in his
    credibility analysis, and to cite the appellants forgetfulness respecting
    almost all details of his activities at the time of the robbery and the search
     including his child care responsibilities.

[14]

The
    appellant argued that the police had planted the firearm and stolen items in
    his room.  The trial judge flatly rejected this theory.  He also found that
    there was no evidence of police animus against the appellant. There was
    evidence that the police had well-founded grounds for investigating the
    appellant. The evidence of police animus came from the appellant and his
    mother. Both were disbelieved by the trial judge. In our view the trial judge
    did not misapprehend the evidence.

Errors in law

[15]

The
    appellant submits that the trial judge erred in law by interrupting defence
    counsels closing submissions on the D-Boy writing on the doorway to the
    appellants bedroom; and by reversing the onus of proof contravening
D (W).

[16]

When
    defence counsel was presenting reply submissions in the final arguments, the
    trial judge told him that he did not accept the evidence about the sign of D-Boy
    on or over the appellants bedroom door.  But, in his reasons, he accepted it.
    In our view this did not render the trial unfair or constitute an error of
    law.  First, the trial judge received full written submissions on the issue of
    the

D-Boy sign. Second, there is no evidence that
    anything more could have been said on the issue that had been fully argued so
    that there was no prejudice to the appellant.

[17]

Nothing
    in the record indicates that the trial judge did not correctly apply

D. (W)
or reverse the onus of proof.

[18]

The
    appeal is dismissed. It is therefore not necessary to address the appellants
    request for a stay of prosecution which was contingent on an order for a new
    trial.

David Watt J.A.

S.E. Pepall J.A.

M.L. Benotto J.A.


