



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Patterson, 2018 ONCA 774

DATE: 20180921

DOCKET: C62598

Strathy C.J.O., Doherty and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Omar Patterson

Appellant

Richard Litkowski, for the appellant

Megan Petrie, for the respondent

Heard: September 18, 2018

On appeal from the conviction entered on October 22, 2015
    by Justice Susan G. Himel of the Superior Court of Justice, sitting with a
    jury.

REASONS FOR DECISION

[1]

The appellant appeals his convictions under ss. 344, 351(2), and 85(2)
    of the
Criminal Code
for robbery, use of an imitation firearm, and
    wearing a disguise with intent to commit an indictable offence.

[2]

The appellant was alleged to have participated in an attempted robbery
    on January 6, 2013 at about 9:00 p.m. The circumstances were as follows. Two
    men followed the complainant into his garage as he drove in. They stood on
    either side of the car. The man at the drivers side door had his face half
    covered with a bandana and pointed what appeared to be a gun at the
    complainants head. Neither of the men said anything. The complainant could not
    say whether the man at the passenger side door was masked or made any gestures.
    The complainant foiled their plan by reversing out of his garage and followed
    the men in his car as they fled on foot. He continued to follow one of the men
    who had doubled back to the area of the complainants house and drove away in a
    car. The complainant called 911 using his cell phone and provided the licence
    plate number of the car he was following. He eventually abandoned the chase at
    the request of the 911 operator. The appellant was arrested later that evening,
    driving the getaway car described by the complainant.

[3]

The appellant raises three grounds for appeal, all arising from rulings
    made by the trial judge.

[4]

At the conclusion of oral argument, we dismissed the appeal with reasons
    to follow. These are those reasons.

Cell phone records

[5]

The Crown sought to adduce records of a cell phone service provider to prove
    that signals from a phone found in the appellants possession and registered in
    his name were picked up by cell towers in the vicinity of the complainants
    residence prior to the incident, in the late evening of January 5 and the early
    morning of January 6, 2013. Signals from the phone were also picked up by
    towers in the same area on the evening of January 6, when the incident
    occurred.

[6]

The appellant did not object to the admission of the cell phone records pertaining
    to the evening of the incident, but sought to exclude the records from the late
    evening and early morning before the incident on the basis that their
    prejudicial effect exceeded their probative value.

[7]

The Crown contended that the evidence supported an inference that the
    appellant was scoping out the locale for a potential robbery, the night before
    the offence occurred.

[8]

The trial judge admitted the evidence. She found that its probative
    value was compelling and outweighed any prejudicial effect. The defence would
    have an opportunity to cross-examine the service provider witness concerning
    the reliability of the records. Further, defence counsel could argue before the
    jury that the witness was neither credible nor reliable, and that the Crowns
    theory was speculative. In closing submissions, defence counsel did, in fact,
    describe the Crowns theory as speculative and suggested that the cell phone signals
    could have been affected by factors such as the topography of the area and by interference
    from nearby buildings.

[9]

We see no error in the admission of the evidence. The inference sought
    by the Crown was available on that evidence. At the time of the incident, the appellant
    lived in Markham. The complainant lived on the other side of Toronto, in
    Etobicoke. The appellants presence in the vicinity of the complainants house
    the night before was of some value in assessing whether the appellant was
    involved in the incident the next day. It could also serve to rebut the appellants
    assertion that his presence in the area at the time of the offence was
    coincidental. The trial judges balancing of the probative value of the
    evidence against its prejudicial effect demonstrates no error and is entitled
    to deference.

Motion for directed verdict

[10]

After
    the Crown closed its case, the defence sought a directed verdict on the robbery
    count, arguing that there was no evidence on some of the essential elements of the
    offence. The trial judge dismissed the motion. She found it was a reasonable
    inference that the person who was in the garage, masked, and pointing a gun at
    the complainants head, was there attempting to steal or with the intent to
    steal from the complainant. The appellant submits that in the absence of any
    words or gestures indicating an intent to take property, the inference was unreasonable
    and the count should not have been left with the jury.

[11]

We
    disagree. Intent is frequently proven by inferences drawn from the totality of
    the circumstances. As the trial judge pointed out, the traditional test on a
    motion for a directed verdict is whether there is any evidence upon which a
    reasonable jury, properly instructed, may convict:
United States of America
    v. Shephard
, [1977] 2 S.C.R. 1067, at p. 1080. The Crown was not required
    to demonstrate that the inference sought was a likely or probable inference
    arising from the evidence, let alone that it was the
only
available inference. To leave the count with the jury, it was enough that it
    was a reasonable inference consistent with guilt.

[12]

Here,
    as the respondent points out: (i) the appellant and the other participant were
    unknown to the complainant and had no prior relationship with him or reason to
    be at his residence; (ii) at least one of the participants had taken steps to
    conceal his identity; (iii) the two individuals had obviously been lying in
    wait for the complainant outside his garage; (iv) they surreptitiously followed
    him into the garage; (v) they took up positions on either side of the car, blocking
    the complainants most likely escape routes out of the vehicle; (vi) one of the
    men had what appeared to be a firearm, which he pointed at the complainants
    head; (vii) the firearm was pointed, but not fired; and (viii) the complainant
    had property worth stealing  he lived in a large home and drove a Mercedes.

[13]

This
    evidence, viewed as a whole, if accepted by a properly instructed jury, was
    reasonably capable of supporting a conviction for robbery. We do not give
    effect to this ground of appeal.

Party liability

[14]

Finally,
    the appellant submits that there was insufficient evidence to leave party
    liability on the counts of use of an imitation firearm and disguise with intent
    with the jury.

[15]

The
    trial judge concluded that the jury could draw an inference from all the
    evidence that the person on the passenger side of the car knew that the other
    person was wearing a face mask and was pointing an imitation firearm for the
    purpose of committing a robbery, and was assisting that person in the commission
    of the offences. She stated, at para. 26 of her reasons on this issue:

I am of the view that the act of entering the garage as the
    complainant drove into it and standing at the passenger door while another
    person stood at the driver door wearing a mask and pointing a gun at the
    complainant is sufficient evidence of the
actus reus
of aiding or
    abetting the perpetrator to commit the offence. I am further of the view that
    the
mens rea
requirement consisting of intent and knowledge of the
    person at the passenger door may be inferred from all the circumstances such
    that party liability has to be left with the jury. It is a logical and
    reasonable inference that may be drawn from the circumstances that the person
    beside the passenger door was there to assist or encourage the person holding
    the gun and wearing the mask.

[16]

Again,
    the evidence as a whole, some of which is referred to above, supported an
    inference that the two men worked together in the planning and execution of the
    incident. They entered the garage together and fled together on foot. Given the
    totality of the circumstances, it was a reasonable inference that the man at
    the passenger side was more than simply present at the scene of the incident,
    but was acting with the intent and purpose of assisting the gunman.

[17]

The
    appellant has demonstrated no error in the trial judge charging the jury on
    party liability.

[18]

For
    these reasons, the appeal is dismissed.

G.R. Strathy C.J.O.

Doherty J.A.

L.B. Roberts J.A.


