



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Carrington, 2017 ONCA 2

DATE: 20170104

DOCKET: C62215

Simmons, Pardu and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jesse Carrington

Appellant

David E. Harris, for the appellant

Gavin N. MacDonald, for the respondent

Heard: October 11, 2016

On appeal from the conviction entered on August 14, 2015
    and the sentence imposed on November 23, 2015 by Justice Lorne E. Chester of
    the Ontario Court of Justice.

By the Court:

[1]

Following a trial at which he did not testify, the appellant was
    convicted of robbery, use of an imitation firearm while attempting to commit a
    robbery, obstructing police and breach of recognizance.

[2]

The appellant appeals two of these convictions: robbery and use of an
    imitation firearm while attempting to commit a robbery (the offences).

[3]

The convictions for the offences arise out of a night-time carjacking in
    a grocery store parking lot. The victim testified that he was accosted in the
    parking lot by a man brandishing a gun who demanded his car keys. After
    obtaining the victims car keys, the man with a gun went to the victims car. A
    second man with a gun accosted the victim briefly, then got into the front
    passenger seat of the victims car. As the second man was doing so, a third man
    got into the backseat of the victims car. Following a police pursuit, the
    three men abandoned the victims car and fled on foot. The appellant was
    arrested at a nearby trucking facility, where he gave a false name to the
    police.

[4]

The Crowns position at trial was that the appellant was the third man,
    namely, the man who got into the backseat of the victims car.

[5]

In his reasons, the trial judge framed the issues concerning the appellants
    involvement in the offences as: i) identity as one of the three individuals
    involved in the armed robbery, and ii) even if the evidence did not disclose
    that the appellant had a firearm, whether he was guilty as a party to use of an
    imitation firearm while attempting to commit a robbery.

[6]

After a witness-by-witness review of the evidence, the trial judge found
    that the appellant was the man who got into the backseat of the victims car
    and that it was clear from his actions that he was part of the plan right from
    the beginning.

[7]

On appeal, the appellant does not challenge the trial judge's finding
    that he was the man who got into the backseat of the victim's car. Instead, he
    argues that the evidence shows no more than presence and passive acquiescence on
    his part in the carjacking. He submits that the convictions for the offences
    are therefore unreasonable.

[8]

In the alternative, the appellant argues that the trial judge was
    focused on the identification issue and failed to properly scrutinize whether the
    appellant was a party to the offences. In particular, the appellant submits
    that:

i)

in finding that the appellant acted in concert with two other men to
    commit the offences, the trial judge relied on unreasonable findings that all
    three men were dressed similarly, concealed their identity in a similar way and
    acted similarly;

ii)

the trial judges reasons are inadequate because he failed to pinpoint
    what acts the appellant committed to render him guilty of the offences;

iii)

the trial judge erred in law in finding that the appellant was guilty of
    theft as a principal; and

iv)

the trial judge erred in law in failing to recognize that the
    after-the-fact conduct evidence was incapable of proving the intent required
    for party liability for the offences.

[9]

The appellant abandons his request for leave to appeal sentence.

[10]

For the reasons that follow, we dismiss the appeal.

Background

[11]

The carjacking took place at around 9:15 p.m. on March 17, 2014. It was
    dark and cold.

[12]

The victim of the carjacking testified that, after he had finished
    loading his groceries into his car and had taken a couple of steps toward the
    place where grocery carts are returned, he was accosted by a man who asked for
    directions, then showed him a gun and demanded his car keys. At that point, the
    victim and the first perpetrator were about two or three feet apart. The victim
    tossed the first perpetrator the car keys and watched as the first perpetrator
    walked towards his (the victims) car. When the first perpetrator got to the
    car, the victim turned around only to be accosted by a second man. The victim
    described the second mans tone as loud and angry as he said, give me the
    phone, give me the phone, give me the phone.

[13]

The victim could not immediately locate his cell phone and backed away
    from the second man with his arms raised. He told the second man he did not
    have a phone. The second man appeared to give up and walked towards the
    victim's car. As the second perpetrator was getting into the front passenger
    side of the car, the victim saw a third man, now acknowledged to be the
    appellant, walking towards the car. The appellant got into the backseat of the
    car and drove off with the other two men.

[14]

After the three men drove away in his car, the victim called 911 and
    reported that he had been robbed by three men. About half an hour after the 911
    call, police in an unmarked vehicle spotted the stolen car and three occupants stopped
    at a red light. One officer testified that the man in the backseat was wearing
    a black baseball hat with a fur hood pulled over top of it. The police pursued
    the victims car, which was ultimately abandoned in a residential area.

[15]

After being tracked by a canine team part of the way from where the
    victims car was abandoned, the appellant was arrested in a nearby secure trucking
    facility where he had had some interactions with the staff. These included
    vague explanations for his unauthorized presence, mouthiness and cursing when
    one of the employees of the trucking facility picked up a telephone to make a
    call, and jumping over a turnstile while being escorted to a security area at
    the front of the facility by another employee.

[16]

Police entered the trucking facility soon after the appellant jumped
    over the turnstile and arrested him. Upon his arrest, the appellant gave a
    false name to the police.

[17]

The next morning, an employee of the trucking facility found a black
    baseball hat and fur-lined hood in the drivers washroom area. The appellants
    DNA was on the hat.

[18]

That same day, police re-traced the dog-tracking route and found a key
    fob for the stolen car.

[19]

Cell phone evidence put the appellant at the scene of the carjacking
    shortly before it happened. There was no cell phone activity over an ensuing
    ten-minute time period. The appellants cell-phone activity then resumed and
    remained consistent with the flight of the perpetrators.

[20]

No one else was arrested in relation to these offences.

[21]

At trial, the victim described the first perpetrator as wearing a black parka
    with fur trim, a black toque pulled down to the bridge of his nose, black
    pants, black shoes and black gloves. The second perpetrator wore a black parka
    with fur trim similar to the first perpetrators coat, a black toque, black
    shoes, black pants and black gloves. The victim said he only saw the appellant
    out of the corner of his eye as the appellant approached the car. They came
    within about 10 to 12 feet of each other. He did not see the appellants face.
    The appellant was wearing a black parka (the victim was unsure whether there
    was fur on it), black shoes and black pants.

Discussion

(1)

The verdicts were not unreasonable

[22]

We reject the appellant's argument that the guilty verdicts were
    unreasonable. The appellant acknowledges that, in the circumstances described
    by the victim, it is reasonable to infer that the appellant knew the car was
    being taken from the victim and, knowing that, chose to become a passenger in
    the victims car. However, he claims that, as he did not accost the victim and
    did not gain possession and control of the victims car, his presence amounted
    to nothing more than passive acquiescence in the offences. Moreover, particularly
    in the absence of evidence of any positive acts of aiding and abetting,
    evidence of an intent to aid or abet was also lacking.

[23]

We disagree. While knowledge of anothers intent to commit a crime and
    mere presence at the scene do not lead
automatically
to a finding of aiding
    and abetting, such factors
can
be evidence of aiding and abetting:
R.
    v. Dunlop
, [1979] 2 S.C.R. 881, at p. 896;
R. v. McKay
, 2012 ABCA
    310, 84 Alta. L.R. (5th) 404,

at paras. 21-22. Here, by
    getting into the victims car, at a minimum, the appellant both abetted, and
    demonstrated an intention to abet, the other men in robbing the victim of his
    car. This is not a case where the appellant was a mere bystander. He took an
    active step of getting into the victims car that supported the other men in
    their endeavor, namely, depriving the victim of his car through the use of
    threats. To be guilty as an aider or abettor, all that is necessary is that the
    accused intended the consequences that flowed from his or her aid to the
    principal offender; it is not necessary to show that he or she desired or
    approved of the consequences:
R. v. Greyeyes
, [1997] 2 S.C.R. 825, 8
    C.R. (5th) 308,

at para. 37. The fact that the appellants conduct would
    aid the other men in their endeavour was patent; nothing in the evidence rebuts
    the conclusion that he intended the consequences of his actions.

[24]

Further, and in any event, the trial judges conclusion that the
    appellant acted in concert with the other men in using an imitation firearm
    while attempting to commit a robbery is supported by the appellants presence
    at the scene prior to the night-time carjacking, the general similarity in
    dress of the three men, the appellants presence at the scene and ability to
    observe the events as they unfolded, the appellants conduct in getting into
    the victims car, driving away with the other men and fleeing with one or more
    of the other men before splitting up after they abandoned the stolen vehicle.

[25]

In our view, the evidence at trial created a compelling inference that
    the appellant acted in concert with two other men in planning and carrying out
    the offences.
[1]
Therefore, the verdicts were not unreasonable.

(2)

The trial judge did not make a
Beaudry
error or materially
    misapprehend the evidence

[26]

We also reject the appellant's submissions that the trial judge made unreasonable
    findings of fact or that he materially misapprehended the evidence.

[27]

The appellant argues that the trial judge found that the appellant was
    part of a plan to commit an armed carjacking because the three men were dressed
    similarly, concealed their identity at the scene, acted similarly and abandoned
    the stolen car together. He says the trial judges reasons in this respect are
    flawed because, in fact, his actions and dress were significantly different
    from the actions of the other two men. Accordingly, the inferences the trial
    judge drew in this respect constitute either a
Beaudry
error
[2]
or amount to a material misapprehension of the evidence.
[3]

[28]

The appellant submits that there was nothing distinctive, or surprising
    on a cold night, about the generic similarities in mode of dress relied on by
    the trial judge: dark parkas, black pants and black shoes. Further, unlike the
    other two men, the appellant was not wearing a toque that partially concealed
    his face; nor, contrary to the trial judges express finding, was he wearing
    gloves. Importantly, the appellant did not accost the victim; and, as the trial
    judge acknowledged, there was no evidence he had a gun. The fact that the
    appellant got into the car with the other men and later abandoned it with them
    is of no real moment to the question of whether he acted in concert with them.
    In sum, the appellant submits that the trial judges finding that the appellant
    was acting in concert with the other two men amounts either to an error in logic
    or a material misapprehension of the evidence.

[29]

We disagree. The trial judge relied on a constellation of circumstances
    to find that the appellant was a party to a planned armed carjacking: he was at
    the scene before, during and after the carjacking (cell phone evidence and
    other circumstantial evidence); he wore clothing similar to the other two men,
    including a fur-lined hood pulled over a baseball cap (victims evidence, and evidence
    of one of the police officers); he got in the car being stolen with the other
    two men; he fled from the police and abandoned the stolen car with the other
    men.

[30]

Viewed in the context of all the evidence, the generic similarities in
    dress, including the police officers sighting of the appellant with his hood
    over a baseball cap, were all that was necessary to support the trial judges
    finding that the appellant was dressed similarly to the other men and that,
    like the other men, concealed his identity at the scene.

[31]

Further, the trial judges description that all three men acted in the
    same way was not an error. He recognized that the three men played different
    roles in the carjacking  as he described it: [a]ll three were taking part in
    the armed robbery in different capacities; some leading, one was angry and in
    the face of [the victim], others followed.

[32]

However, what was key to the trial judge in terms of the conduct of the
    men was that they all got in the car being stolen, sped off, fled from police
    and abandoned the stolen car in concert. We see no error in this reasoning, nor
    in the trial judges overall conclusion that the appellant acted in concert in
    committing the offences with the two other men. Moreover, considered in the
    light of the totality of the evidence, the trial judges misstatement that the
    appellant was wearing gloves was not material to his reasoning.

[33]

Therefore, the trial judge did not make a
Beaudry

error
    or materially misapprehend the evidence.

(3)

The trial judges reasons are sufficient

[34]

The appellant argues that the failure of the trial judge to articulate
    specific acts of aiding or abetting performed by the appellant render his
    finding that the appellant was an active participant in the robbery a naked
    conclusion that deprives the appellant of the right to meaningful appellate
    review.

[35]

We reject this argument. Apart from his findings concerning the central
    issue of identity, the focal point of the trial judges reasoning was that the
    appellant acted in concert with the other two men. As we have explained this
    conclusion was founded on, among other things, the appellants presence at the
    scene before and during the carjacking, his mode of his dress, and, most
    importantly, his conduct in getting into the victims car and driving away in
    the stolen vehicle with the other men  together with his subsequent conduct in
    fleeing from the police. While the trial judge could have explained his reasons
    more fully, these findings were sufficient to support the convictions.

(4)

No substantial wrong results from the trial judges statement that the
    appellant was a principal in the theft

[36]

At one point in his reasons the trial judge said, As the third person
    involved in the armed robbery he is a principal in the theft and a party to the
    armed robbery.

[37]

The trial judge made this statement immediately after concluding that
    the appellant was in fact the third person involved in the incident, the man
    who got into the backseat of the victims car. We acknowledge that this
    statement may blur the articulation of the concept of party liability set out
    in s. 21 of the
Criminal Code
and may not be an accurate statement of
    the appellants role in the offences. Nonetheless, even accepting that it is an
    erroneous statement, nothing turns on it and no substantial wrong or
    miscarriage of justice results from it: s. 686(1)(b)(iii) of the
Criminal
    Code
.

(5)

The trial judge did not err in his treatment of the evidence of the
    appellants after-the-fact conduct

[38]

Significant evidence of the after-the-fact conduct was led at trial,
    including: the evidence of the perpetrators flight from the police in the
    stolen car; their abandonment of the stolen car in a residential area and
    flight on foot; the canine unit evidence, which disclosed that a canine team
    tracked a scent from the stolen car to the perimeter fence of the trucking
    facility; the evidence that a key fob for the stolen car was found the next day
    part way along the path that had been tracked by the canine team; the
    appellants conduct in the trucking facility and the discovery of the baseball
    cap and hood bearing the appellants DNA at the trucking facility.

[39]

On appeal, the appellant does not contest that this evidence was highly
    relevant to prove his identity as the third man and his presence at the scene.
    However, he argues that the trial judges finding that the appellant had the
    requisite knowledge of the planned offences and the necessary intention to act
    as an aider or abettor in the offences rested on an improper use of this
    evidence as giving rise to a circumstantial inference of consciousness of
    guilt. Further, even if the evidence had some potential probative value on the
    issues of knowledge and intention, the appellant submits that the trial judge
    erred in failing to recognize and address the competing inference that the
    appellant fled and attempted to avoid apprehension because of panic or fear
    related to his innocent involvement.

[40]

We do not accept these submissions. Apart from the issue of identity and
    presence at the scene, much of the after-the-fact conduct evidence formed part
    of the constellation of evidence that gave rise to the trial judges finding
    that the appellant acted in concert with the other two perpetrators in
    committing the offences.

[41]

As we have said, the appellant was at the scene both before and during
    the offences; he got into the car that was being stolen with the other two men;
    once spotted by the police, he fled with them; after the stolen car was
    abandoned, he fled together with one or both of them part of the way on foot. It
    is for the trier of fact to decide, on the basis of the evidence as a whole, if
    the post-offence conduct related to the offence, or something else:
R. v. White
,
2011 SCC 13, [2011] 1 S.C.R. 433, at paras. 105-6;
R. v. Roy
,

2004
    CarswellOnt 3937 (Ont. C.A.), at para. 75.

Moreover, after-the-fact
    conduct can lead to a logical and reasonable inference that an accuseds conduct
    is culpable:
R. v. Figueroa
, 2008 ONCA 106, 58 C.R. (6th) 305, at
    para. 35;

R. v. Smith
,

2016 ONCA 25, 333 C.C.C. (3d)
    534, at para. 78
.
Considered cumulatively, and particularly in the
    absence of alternative explanations, this evidence created a powerful inference
    that the appellant acted in concert with the other two perpetrators.

[42]

The trial judge was entitled to consider the evidence of the
    after-the-fact conduct, as part of the circumstances surrounding the commission
    of the offences, to conclude that the three men were acting in concert:
R.
    v. Noor
, 2009 ONCA 795, at para. 16. The trial judges findings of
    knowledge and intention in relation to both offences flowed from this
    conclusion. The circumstances surrounding the offence to which we have referred,
    including the after-the-fact conduct, created a powerful inference that the
    appellant knew of, and acted in concert with, the other two men in committing a
    robbery. This conclusion that the three men were acting in concert together
    with the nature of the offence  carjacking a vehicle in a parking lot -
    created an equally powerful inference that the appellant knew the other two men
    were armed, and knew what weapon they possessed. Nothing in the evidence
    rebutted these conclusions. We see no indication in the trial judges reasons
    that he made any improper use of the after-the-fact conduct evidence. Although
    he could have explained in more detail the use he made of such evidence, we are
    satisfied his reasons reveal no error.


Disposition

[43]

Based on the foregoing reasons, the appeal is dismissed.

Janet Simmons J.A.

G. Pardu J.A.

B.W. Miller J.A.





[1]
The appellant also advanced a subsidiary argument that the trial judge erred
    when he said that even though there was no evidence the appellant had a gun,
    the other two clearly did. In making this argument, the appellant relied on
    the fact that, in cross-examination, the victim acknowledged he told police
    that he interpreted the second man had a gun but was uncertain and then
    stated in cross-examination that he believed the second man had a gun. The
    appellant asserted that this evidence could not constitute proof beyond a
    reasonable doubt that the second man had a gun.

However, the victim had
    testified in-chief that the second man put a gun to me and he also said,
    [h]is gun was black from what I remember. When asked in-chief if he got a good
    look at the gun, the victim said, Not especially. I just remember that it was
    black. Again, I was  I was in shock and  and I was just stunned. Like I kind
    of dont  dont remember anything, just that its black. Based on the
    totality of the victims evidence, it was open to the trial judge to find that
    the second man had a gun.



[2]

R. v. Beaudry
, 2007 SCC 5, [2007] 1 S.C.R. 190. The SCC observed in
R.
    v. Sinclair
, 2011 SCC 40, [2011] 3 S.C.R. 3, at para. 16, that: An
    appellate court will be  justified in intervening pursuant to
Beaudry
,
    where a trial judge draws an inference or makes a finding of fact that is (1)
    plainly contradicted by the evidence relied on for that purpose by the judge,
    or (2) demonstrably incompatible with evidence that is not otherwise
    contradicted or rejected by the trial judge.



[3]

R. v. Morrissey
(1995), 22 O.R. (3d) 514 (C.A.);
R. v. Lohrer
,
    2004 SCC 80, [2004] 3 S.C.R. 732.


