



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Gracie, 2021 ONCA 707

DATE: 20211013

DOCKET: C68834

Rouleau, Benotto and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kellie-Lynne Gracie

Appellant

Kellie-Lynne Gracie, acting in person

Fredrick R. Schumann, appearing as duty counsel

Nicole Rivers, for the respondent

Heard: October 5, 2021, by video conference

On appeal from the conviction entered by Justice John N.
    Olver of the Ontario Court of Justice on March 9, 2020.

REASONS FOR DECISION

[1]

The appellant and her co-accused, Dalton MacLeod, were charged with one
    count of robbery.
[1]

[2]

The complainant testified that on October 26, 2018, the appellant, with
    whom he had a mixed business/personal relationship, asked him to come into her
    apartment to fix what she said was a leaky faucet. The complainant initially
    resisted, but eventually agreed at the appellants insistence. When they
    entered, the appellant walked straight through the apartment and was not seen
    again by the complainant. He did see an acquaintance of the appellant, Melissa.
    In short order, the complainant was struck from behind and knocked down by a
    bandana-wearing male armed with a knife and a hammer, and then pepper sprayed
    by Melissa. The male demanded that the complainant empty his pockets. The
    complainant was able to recover a knife from his pocket and stab the male
    assailant, ending the attack.

[3]

There was no dispute at trial that the male who was stabbed was MacLeod.
    MacLeod testified at trial and denied the complainants version of events. The
    appellant did not testify.

[4]

The trial judge, after instructing himself on the principles in
R.
    v. W.(D.)
, [1991] 1 S.C.R. 742, rejected MacLeods evidence and found it
    did not leave him with a reasonable doubt. He accepted the complainants
    evidence which left him with no doubt as to what transpired in [the
    appellants] apartment on the morning of October 26
th
, 2018. He
    found that it was proven beyond a reasonable doubt that MacLeod did commit the
    offence alleged.

[5]

The trial judge then considered the position of the appellant. He noted
    that she had not testified and instructed himself that he was not to draw any
    inference from that. He then stated that the Crown had established a 
prima
    facie
case against the appellant that she had failed to meet, noting:
    (i) that the events happened at her apartment; (ii) she had a prior relationship
    with the complainant, insisted that he come into the apartment to fix a leaky
    faucet notwithstanding his protestations that he did not have time to do so,
    then immediately disappeared after entering the apartment with him; (iii) she
    was captured on video leaving the apartment with Melissa, one of the
    perpetrators of the attack on the complainant, from an alternate exit; and (iv)
    she showed no concern for the complainant after the attack and attempted
    robbery. He referred to the argument of the appellants trial counsel that the
    evidence was insufficient to show that the appellant did anything more than
    passively acquiesce in the situation as it unfolded, and rejected it, stating:

However, in concluding that MacLeod did, in fact, commit the
    offence on [the complainant] as alleged, absent any explanation for [the
    appellants] conduct, I do not see how she could be viewed as simply a present
    and passive spectator without knowledge of the plan for MacLeod and Melissa to
    rob him. There is no other reasonable inference to be drawn on this evidentiary
    record.

[6]

The trial judge convicted the appellant, finding that she lured [the
    complainant] under false pretence to attend inside her apartment knowing of the
    plan for MacLeod and Melissa to rob him, thus making her a party to the
    robbery/attempt robbery.

[7]

On behalf of the appellant, duty counsel makes two interrelated
    arguments. First, he argues that the trial judge reversed the onus of proof,
    treating what he called a 
prima facie
 case as sufficient in the
    absence of an explanation from the appellant. Put differently, he submits that
    the trial judge in effect used the failure of the appellant to testify and
    offer an explanation as a make-weight to pull the Crowns case from one that
    was only
prima facie
to one proven beyond a reasonable doubt, contrary
    to the principles in
R. v. Noble
, [1997] 1 S.C.R. 874, at paras.
    77-81.

[8]

Second, he argues that the trial judges conclusion that the only
    reasonable inference was that the appellant was more than a passive, uninformed
    spectator was itself unreasonable, as other reasonable inferences were
    available.

[9]

We do not accept either argument.

[10]

The
    trial judges use of the term 
prima facie
 was unfortunate. But,
    taking his reasons as a whole, it is clear that he did not reverse the onus of
    proof, lose sight of the fact that proof beyond a reasonable doubt was
    required, consider a
prima facie
case to be sufficient, or use the
    failure of the appellant to testify as a make-weight.

[11]

The
    trial judge began his analysis by referring to the Crowns onus to prove its
    case on all counts beyond a reasonable doubt. He referred to the case as having
    been proven against MacLeod beyond a reasonable doubt. He expressly instructed
    himself that the appellants failure to testify was not to be used to draw any
    inference against her. And although he used the term
prima facie
, he
    followed it with a reference to four evidentiary considerations (summarized in
    para. 5 above) that satisfied him the appellants involvement as a party to the
    robbery was the only reasonable inference to be drawn on this evidentiary
    record. In other words, his ultimate conclusion, on the whole of the evidence,
    was that the appellants guilt was proven beyond a reasonable doubt.

[12]

Taken
    in context, the trial judges references to the absence of any explanation from
    the appellant are not indications that he was using the appellants silence to
    draw an inference of guilt, nor to give the Crowns case an extra push. He did
    not, as the trial judge did in
Noble
, use the appellants silence as a
    piece of inculpatory evidence. Rather, consistently with what the majority of
    the Supreme Court in
Noble
described as inoffensive to the right to
    silence and the presumption of innocence, the trial judge here was simply
    recognizing the fact that the evidence of the Crown stands alone. It must be
    evaluated on this basis. Contradictions that have not been offered cannot be
    supplied  the silence of the accused fails to provide any basis for concluding
    otherwise, once the uncontradicted evidence points to guilt beyond a reasonable
    doubt:
Noble
, at para. 82.

[13]

The
    argument that the trial judge erred in concluding that the appellants
    involvement as a party was the only reasonable inference depends on parsing the
    four considerations he relied upon individually  for example, the fact that
    the events took place at the appellants apartment does not on its own exclude
    a reasonable inference that she was uninvolved in what occurred. But the trial
    judge did not treat each as sufficient individually; he considered them
    cumulatively. We see no error in his conclusion that those circumstances, taken
    together, permit no other reasonable inference than that the appellant was a
    party to the planned robbery.

[14]

For
    these reasons, the appeal is dismissed.

Paul Rouleau J.A.

M. L. Benotto J.A.

B. Zarnett J.A.





[1]
MacLeod was charged with other offences arising from the same incident.


