



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Deu, 2019 ONCA 182

DATE: 20190308

DOCKET: C58112

Pardu, Nordheimer and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Phuong Minh Deu

Appellant

Mark Halfyard, for the appellant

Andrew Cappell, for the respondent

Heard: February 28, 2019

On appeal from the convictions entered on April 29, 2013 by
    Justice Alexander Sosna of the Superior Court of Justice.

REASONS FOR DECISION

[1]

The appellant, Phuong Minh Deu, appeals from his convictions for robbery
    and break and enter after a judge alone trial.

[2]

The convictions arise out of a series of residential break-ins involving
    a group of males of which the appellant was said to be one. These break-ins
    began with a robbery at the home of a person that the appellant knew. The appellant
    had lived in the home for several months prior to suddenly leaving.

[3]

The central issue in the trial was the identity of the perpetrators of
    the robbery and the break-ins and whether the appellant, in particular, was a
    member of the group of persons committing them. The trial judge found that the
    appellant was involved in a number, but not all, of the break-ins with which he
    was charged.

[4]

With respect to the robbery, the trial judge found that the appellant
    was the main instigating force behind the robbery, even though he did not participate
    in the actual robbery. The trial judge found that it was the appellant who knew
    about the money and jewellery that was in the home, that he passed this
    information along to the two individuals who committed the robbery, and that he
    received some of the proceeds of the robbery after it occurred.

[5]

In terms of the other break-ins for which the appellant was convicted,
    the trial judge found that the appellant was part of the group that organized and
    carried out the break-ins. The appellants main role appears to have been
    identifying homes to be broken into and also standing watch outside many of
    those homes while the break-ins occurred. When the appellant was eventually
    arrested, items consistent with his participation in some of these break-ins
    were found, not only in the car which he occupied when arrested, but also in
    his residence.

Analysis

(1)

The robbery

[6]

The appellant raises three main issues on his appeal. We consider each,
    in turn. First, the appellant contends that the trial judges conclusion that he
    was a party to the home invasion robbery (count #1 of the indictment) is an
    unreasonable verdict given the trial judges parallel conclusion that the appellant
    was not guilty of the unlawful confinement of the owner of the home during the
    robbery (count #2 of the indictment).

[7]

It was open to the trial judge, on the evidence, to conclude that the
    appellant planned for a break and enter and theft to occur in circumstances
    where it was expected that no one would be home. While it turned out that the
    owner was home, and consequently was tied up by the actual participants, the
    trial judge said that he was not satisfied that the appellant knew or ought to
    have known that this would occur, and thus could not be found guilty of
    unlawful confinement as a party under s. 21(2) of the
Criminal Code
,
    R.S.C. 1985, c. C-46,. That factual conclusion was open to the trial judge on
    the evidence and there is no basis for us to interfere with it.

[8]

That said, we do agree with the appellant that the basis upon which the
    trial judge concluded that the appellant was part of the scheme to break into
    and steal from this home did not allow for a conviction for the offence of
    robbery. The trial judge found that the plan was to break-in when no one was
    expected to be home. Neither of the persons involved in the actual break-in
    possessed a weapon, nor was there any evidence that the appellant expected that
    any violence would be used. Consequently, the essential elements of a robbery
    under s. 343 of the
Criminal Code
, as they relate to the appellants
    involvement, were not made out.

[9]

Here the indictment particularized the robbery as stealing with
    violence. The trial judge made no finding that the appellants mental state
    made him a party to the robbery charged under either s. 21(1) or s. 21(2).  Given
    the way in which the robbery offence was particularized in the indictment and
    given the trial judges factual findings only the included offence of theft is
    available. As a result, we would substitute a conviction for theft on count #1.

(2)

The robbery  misapprehension of evidence

[10]

Second,
    the appellant says that the trial judge misapprehended the evidence of Christopher
    Tran. Mr. Tran was one of the two people who committed the initial robbery. He pled
    guilty to his participation in it. He then gave evidence for the Crown in its
    prosecution of the appellant.

[11]

Mr.
    Tran gave evidence at the trial regarding how the robbery occurred. At one
    point, he suggested the appellant was not part of the plan which led to the
    commission of that offence. However, in cross-examination by Crown counsel
    under s. 9(2) of the
Canada Evidence Act
, R.S.C. 1985, c. C-5, he was
    confronted with his preliminary inquiry evidence where he said that it was the
    appellant that had informed him, and the other participant in the robbery, that
    there were large quantities of money and jewellery in the house. He also
    admitted that, immediately after the robbery, either he or the other
    participant had called the appellant. Mr. Tran also admitted that his evidence
    at the preliminary inquiry was true.

[12]

The
    appellant submits that Mr. Tran never resiled from his position that the
    appellant was not involved in the first robbery. He further submits that the
    trial judge misunderstood Mr. Trans evidence in this regard.

[13]

We
    do not agree. The trial judge simply rejected that contention. The trial judge accepted
    the evidence that Mr. Tran gave at the preliminary inquiry and rejected his
    trial evidence. The trial judge also found that it would make no sense that, if
    the appellant was not involved in planning the offence, the participants would
    have immediately called the appellant after the robbery was completed and as they
    were fleeing the scene. That conclusion was open to the trial judge on the
    evidence.

(3)

The break and enter offences  improper use of similar fact evidence

[14]

Third,
    the appellant submits that the trial judge improperly used similar fact
    evidence in reaching his conclusions of guilt in relation to the break and
    enter offences. The trial judge noted that the Crown was not seeking to rely on
    similar fact evidence. The trial judge also expressly said that he was not
    doing so. Indeed, the trial judge said in his reasons that he was considering
    each of the counts separately.

[15]

Unfortunately,
    it appears that similar fact evidence did in fact enter into the trial judges
    conclusions on two of the counts on which he found the appellant guilty  namely,
    counts #4 and #10 on the indictment.

[16]

The
    evidence in respect of count #4 by itself established that the Acura motor
    vehicle, to which all the participants in these break and enters were all
    linked, was seen in the vicinity of the house around the time when the break-in
    occurred. The Acura was also later seen in the same area. The police approached
    the vehicle some hours later and found the appellant and one of the other participants
    inside. Tools capable of being used for break and enter purposes were found in
    the trunk, along with bandanas and masks. The police also found a sheet of
    paper in the glove box of the Acura that had a list of residential addresses on
    it. That list included the address for the home where the break-in had
    occurred.

[17]

There
    was no other evidence unique to count #4. The trial judge found the appellant
    guilty of this break and enter. With respect, the only way that the trial judge
    could have been satisfied, beyond a reasonable doubt, of the appellants guilt
    on this count is if the trial judge considered the similarity between this
    count and those other counts where there was direct evidence of the appellants
    involvement in the break and enters. While that would have been a permissible
    route that the trial judge could have taken to a conviction
if
there was a successful similar fact application by
    the Crown, no such application was made. Without that similar fact evidence,
    the evidence relating solely to count #4 could not sustain a conviction. As a
    result, we would set aside the conviction on this count and enter an acquittal.

[18]

A
    similar situation presents with respect to count #10. On that count, on the day
    of the break-in the Acura was again seen in the vicinity of the home where the
    break and enter occurred. The appellant and the other three participants in
    these series of break-ins were observed in the car. While in the vicinity, all four
    occupants exited the Acura. Two of the occupants went to the home where the
    break-in occurred. The appellant was observed at a McDonalds that is more than
    a kilometre from the home. He was seen talking on his cell phone while, at the
    same time, three of the participants were seen at the front door of the home
    where the break-in occurred. Two of them entered the home while the third
    returned to the Acura. A short time later, the two who entered the home returned
    to the Acura. The Acura then left. The whereabouts of the appellant, at this
    point, were unknown. The Acura was next seen some kilometres away. The
    appellant was seen getting into the Acura. The Acura returned to Toronto. It was
    at this point that the appellant, along with the other three participants, were
    arrested. Upon being arrested, a piece of paper was found in the appellants
    possession that had a number of residential addresses on it. Included in those
    addresses was the address for the house that was broken into.

[19]

Once
    again, a conviction on count #10 could only be sustained if the trial judge
    drew the conclusion that, because the appellant was clearly involved in other
    break and enters with these three persons, he must have been involved in the
    break-in that forms the basis for count #10. That again would be a conclusion
    based, not solely on the evidence relating to count #10, but on a pattern of
    conduct. In other words, on similar fact evidence. Indeed, the trial judge
    seems to suggest that is the route that he is employing when he says in his reasons:

The Crown has not led similar fact evidence and I do not rely
    on similar fact evidence in making the findings. I have taken great pains to
    review each count individually
and I find there was a
    system, suggesting it was similar fact evidence
. [Emphasis added]

[20]

In
    our view, despite his stated intention to do the opposite, it is clear that the
    trial judge allowed similar fact evidence to inform his conclusion respecting
    count #10. The evidence relating solely to that count could not otherwise establish
    a conviction. Again, we would set aside the conviction on this count and enter
    an acquittal.

[21]

That
    said, with the exception of the two counts that we have just reviewed, each of
    the conclusions reached by the trial judge in respect of the other counts was
    available to him on the evidence. He did not make any palpable and overriding
    error in reaching his other conclusions.

Conclusion

[22]

The
    appeal is allowed in part. The conviction on count #1 is set aside and a
    conviction for theft contrary to s. 334(a) of the
Criminal Code
is
    substituted. The sentence on the robbery offence is set aside. The convictions
    on counts #4 and #10 are also set aside and acquittals are entered on those two
    counts.

[23]

We
    would impose a sentence of 18 months on the theft offence concurrent to the
    sentences on the remaining break and enter counts. This sentence is the same
    sentence that the trial judge imposed on each of the break and enter offences,
    which were made concurrent to the others. The reversal of the convictions on
    counts #4 and #10, consequently, does not affect the overall sentence. It
    becomes a total sentence of 18 months. We note that this sentence is consistent
    with the sentences imposed on two of the other participants in the break and
    enter offences.

G.
    Pardu J.A.
I.V.B. Nordheimer J.A.
A. Harvison Young J.A.


