



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Phillips, 2020 ONCA 323

DATE: 20200528

DOCKET: C65435

Doherty, Juriansz and Miller
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Brian Phillips

Appellant

Richard Litkowski, for the appellant

Natalya Odorico, for the respondent

Heard: May 19, 2020 via videoconference

On appeal from the conviction entered by
    Justice E. Meijers of the Ontario Court of Justice, dated January 22, 2018.

REASONS FOR DECISION

[1]

In the late evening or early morning of April 28
th
/29
th
,
    2017, someone broke into the Anthony home in Orillia, Ontario and stole Ms.
    Anthonys purse and the keys to the truck parked in the driveway. The next
    morning, Mr. Anthony discovered the purse, keys and truck were missing.

[2]

The appellant and a co-accused were charged with
    one count of break and enter, two counts of theft (the truck and the purse),
    and one count of possession of stolen property (the truck). The co-accused was
    acquitted on all counts. The appellant was convicted on counts one to three and
    acquitted on count four, based on the date of the offence alleged in the
    information.

[3]

The appellant initially appealed conviction and
    sentence, but has abandoned his sentence appeal.

[4]

The case against the appellant was entirely
    circumstantial. The Crown argued that the totality of the circumstantial
    evidence compelled the conclusion that the appellant, with one or more
    accomplices, had broken into the Anthony home, stole the purse and keys and
    drove the Anthony car to Kingston to visit his girlfriend.

[5]

The appellant did not testify. The Crown tendered
    a statement made by the appellant. In that statement, he acknowledged getting a
    ride from Orillia to Hamilton and then to Kingston to see his girlfriend. He
    would not identify the driver.

[6]

There was little, if any, dispute about the
    credibility of the evidence tendered by the Crown. The outcome turned on what
    inferences could be drawn from that evidence. The evidence justified the
    following findings:

·

some time in the late evening of April 28
th
or the early morning of April 29
th
, a person or persons broke into
    the Anthony home in Orillia, Ontario and stole Ms. Anthonys purse and the keys
    to the truck parked in the driveway. The thieves left the house and drove away
    in the truck;

·

the appellant was living in a drug
    rehabilitation residence in Orillia on April 28
th
. He was required
    to sign in and out. He signed out of the residence shortly after 6:00 p.m. on
    April 28
th
and did not return;

·

there was no evidence as to the relative
    locations of the rehabilitation residence and the Anthony home, other than both
    were said to be in Orillia;

·

Highway 407 toll records show the Anthonys vehicle
    proceeding eastward, near Markham, Ontario shortly after 6:00 a.m. on April 29
th
;

·

Kingston is about 300 kilometres east of
    Markham;

·

the appellant was arrested on an unrelated
    warrant in Kingston, Ontario at his girlfriends residence at about noon on May
    1
st
. The co-accused was arrested in Kingston on May 2
nd
;

·

the Anthonys truck was found on a street in
    Kingston on May 19
th
. Parking tickets on the truck indicated it had
    been parked on the same street, if not in the same spot, since at least May 3
rd
at 9:52 a.m.;

·

the truck was found about four kilometres from the
    residence of the appellants girlfriend and about one kilometre from the
    residence where the co-accused was arrested;

·

the appellants DNA was lifted from a Red Bull
    can found under the passenger seat in the Anthonys vehicle. The co-accuseds
    DNA was found on a cup also located in the back of the vehicle. Other cups and
    assorted garbage were also found in the back of the truck;

·

a construction hat was found in the vehicle. It
    did not belong to Mr. Anthony. The appellant had a construction job on April 28
th
when he left the Orillia area. There was no physical evidence connecting the
    hat to the appellant;

·

the keys to the truck and Ms. Anthonys purse
    were found in the truck; and

·

Mr. Anthony did not know the appellant or the
    co-accused.

[7]

In convicting the appellant on three charges,
    the trial judge said:

I find nothing in the evidence or in common
    sense which proffers any reasonable, innocent explanation for their
    juxtaposition. Mr. Phillips had a motive to go to Kingston. He had no vehicle of
    his own. He was right in the area of where the vehicle was stolen. The vehicle
    took a path to Kingston shortly after it was stolen. He was arrested in
    Kingston at his girlfriends house, some 300 plus kilometres away within 2½
    days, and his DNA was found inside the vehicle. Obviously it had been put there
    before May 1st, because after May 1st noon, he was in custody.

In my view, it would require a great deal of
    speculation to come up with some alternative explanation that fits common sense
    and reality on the evidence that is before me.

[8]

The appellant argues that the verdict is
    unreasonable. He submits, that while the circumstances are suspicious, the
    inferences necessary to prove the allegations beyond a reasonable doubt cannot
    reasonably be drawn. In his submission, at its highest, the evidence puts the
    appellant in the Anthony vehicle some time after it was stolen on the evening
    or early morning of April 28
th
-29
th
and the time of his
    arrest on May 1
st
at around noon. The appellant contends the finding
    he was in the truck within a few days of its theft could not support the
    conclusion that he was ever in possession of the truck, much less that he was a
    party to the break-in and thefts at the Anthony home.

[9]

This court has a limited power under s.
    686(1)(a)(i) to review the reasonableness of a conviction. This courts task is
    well described in
R. v. Lights
, 2020 ONCA 128, at para. 39:

When a verdict that rests wholly or
    substantially on circumstantial evidence is challenged as unreasonable, the
    question appellate courts must ask is whether the trier of fact, acting
    judicially, could reasonably be satisfied that the guilt of the accused was the
    only reasonable conclusion available on the evidence taken as a whole:
    [citation omitted]. Fundamentally, it is for the trier of fact to determine
    whether any proposed alternative way of looking at the case as a whole is
    reasonable enough to raise a doubt about the guilt of the accused.

[10]

There is nothing to connect the appellant to the
    break-in or the thefts, except for his alleged possession of the stolen vehicle
    shortly after the break-in and thefts occurred. The reasonableness of the three
    convictions turns on whether the circumstantial evidence was reasonably capable
    of supporting the inference the appellant was not only in the Anthony vehicle
    when it travelled to Kingston, but was also in possession of that vehicle.
    Possession requires proof of some element of control over the thing said to be
    possessed:
R. v. Pham
(2005), 203 C.C.C. (3d) 326, at para.
16 (Ont. C.A.), affd, [2006] 1 S.C.R. 940;
R. v. Terrence
,
    [1983] 1 S.C.R. 357.
Absent a finding the appellant was
    in possession of the truck, the further inferences he was the person who broke
    into the Anthony home and stole the purse and keys was not reasonably
    available.

[11]

The Crown claims there were two or more people
    involved in the break-in, the theft and the trip to Kingston. There is no
    evidence the appellant was driving the vehicle. Other than evidence he was in
    the vehicle, there is nothing from which possession of the vehicle could
    reasonably be inferred.

[12]

We are satisfied the evidence was equally
    consistent with an inference that the appellant became involved with the
    vehicle some time after the break-in and the thefts had occurred. On that view,
    even if the appellant knew the break-in had occurred and the vehicle was
    stolen, he was not a party to the break-in or the thefts from the Anthony
    residence. His potential liability on a charge of possession of the stolen
    vehicle, based on his presence in the vehicle, is a  moot point. He was
    acquitted on that charge and there is no appeal from that acquittal.

[13]

On our review of the evidence, a trier of fact
    could not reasonably be satisfied that the appellants guilt on the charges was
    the only reasonable conclusion available on the evidence. The appeal must be
    allowed, the verdicts set aside, and acquittals entered.

Doherty
    J.A.

R.G.
    Juriansz J.A.

B.W.
    Miller J.A.


