



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Brownlee, 2018 ONCA 99

DATE: 20180202

DOCKET: C62929

Rouleau, Pepall and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Marty Brownlee

Appellant

John N. Pepper, for the appellant

Andrew Hotke, for the respondent

Heard: November 15, 2017

On appeal from the convictions entered on August 3, 2016,
    with reasons reported at 2016 ONSC 4763, 132 W.C.B. (2d) 102, and the sentence
    imposed on November 15, 2016 by Justice Timothy Ray of the Superior Court of
    Justice.

Pepall J.A.:

A.

Introduction

[1]

The appellant, Marty Brownlee, was convicted of theft over $5,000, break
    and enter, two counts of possession of property for the purpose of trafficking,
    and one count of possession of property obtained by crime.  He received a 12
    month sentence of incarceration, a six month consecutive conditional sentence,
    36 months of probation, and a $50,000 restitution order.

[2]

The appellant appeals from his convictions.  He submits that the trial
    judge failed to properly apply
R. v. W.(D.)
, [1991] 1 S.C.R. 742, applied
    stricter scrutiny to the defence case than that of the Crown, provided
    insufficient reasons, and misapprehended the evidence.  Based on
Kienapple
    v. R.
, [1975] 1 S.C.R. 729, he also submits that two of the convictions
    should be stayed.  The appellant has abandoned his sentence appeal.

B.

Background Facts

[3]

At the time of trial, the victim, Donald McHugh was a 69 year old
    retiree.  He and his wife had lived in Renfrew, Ontario for 29 years.  He was
    an experienced coin collector.  McHughs coin collection included silver dollars
    and silver bars, and had a value in the tens of thousands of dollars.  His
    coins and bars were distinctive, as he kept them highly polished.  At trial,
    witnesses who were professional coin dealers stated that it was unusual to see
    coins and bars as uniformly polished as McHughs.

[4]

McHugh maintained his collection in a safe covered with a cloth in his
    garage.  The safe was easy to lock but took 10 or 15 minutes to open.  McHugh
    testified that he would leave the safe unlocked if he was going into the house
    on an errand or staying around.

[5]

The appellant was 42 and was in the electronic security installation
    business.  The appellant admitted that, in 2014, around the time the thefts
    occurred, his main business partner was absent and there had been a decline in
    business.  In the appellants own words, the business went through peaks and
    valleys, and it was in one such a valley.  That spring, there were days the
    appellant did not work, days he worked at home, and days he worked at his
    partners place.

[6]

The appellant and McHugh considered themselves to be friends.  The
    appellant visited McHugh most mornings; they would sit in the garage, have
    coffee, and discuss the affairs of the world.  They would also discuss coins.  Like
    McHugh, the appellant was interested in coins and both he and his wife had coin
    collections.  The appellant was not as experienced in coin collecting as McHugh
    and would seek his advice.

[7]

The appellant would come from time to time to borrow tools and, if
    McHugh were not there, Ms. McHugh would give him the key to the garage.  Ms.
    McHugh recalled that in the last week or two before the theft, the appellant
    was at the house every day and sometimes two to three times a day. She found
    the many and frequent visits to be unusual.

[8]

On May 9, 2014, the day of the theft, the appellant visited McHugh in
    the morning as was his habit.  He came to borrow a tool and arrived between 7:00
    a.m. and 8:00 a.m. in his white pickup truck.  He brought coffee and the two
    men talked in the garage.  To the appellants knowledge, Ms. McHugh was not
    there, having returned to work that day after a lengthy medical leave.

[9]

The appellant left McHughs place between 9:30 a.m. and 11:00 a.m.

[10]

After
    the appellant left, another friend of McHughs, Robert McLaren, came to visit. 
    He was interested in buying some coins from McHugh.  McLaren left around noon,
    after visiting the garage and looking at some coins in which he was
    interested.

[11]

It
    was McHughs habit to have lunch each day with a friend who suffered from
    Parkinsons disease.  McHugh left for lunch at 12:30 p.m. and returned at 2:00 p.m. 
    While he was gone, a significant portion of his collection had been stolen,
    although there was no evidence of any forced entry.

[12]

McHugh
    could not recall if he had locked the safe before leaving for his friends
    place for lunch that day, but did remember locking the door to the garage.  Another
    access point to the garage was by a remote controlled garage door.  McHugh
    testified that the next day, he found one of the three remote control garage
    openers missing from its usual spot.

[13]

On
    discovery of the theft on his return from lunch, McHugh called the appellant,
    who said he was in Kanata, a suburb of Ottawa not far from Renfrew.  McHugh then
    called McLaren, followed by the police.  McLaren came right over and the
    appellant came over later in the afternoon in a different motor vehicle from the
    white truck he visited in during the morning.

[14]

The
    police conducted an investigation.  They interviewed the appellant twice, first
    on June 3, 2014 and then again on August 13, 2014.

[15]

On
    June 3, 2014, the appellant produced various receipts to account for his
    whereabouts.  He was asked where he had gone in Ottawa on the day of the
    theft.  He knew that the questioning was about coins, but did not mention that
    he had gone that afternoon to Ottawa Gold Buyer, a company in Ottawa that buys
    and sells precious metals, and for the first time ever, sold them some silver
    coins.  Nor did the appellant mention that, in the weeks following the theft,
    he sold polished coins on several occasions to Aidid El-Khoury and George Bateh
    of Coin Talk Inc., an Ottawa-based company that buys and sells coins.  He also
    failed to tell the police that he tried to sell some coins to Vincenzo
    Demarinis, his business partners neighbour, later in May. He did volunteer
    that he had an ATM receipt to show where he was on May 9, 2014.

[16]

On
    August 13, 2014, the appellant was asked by the police to go through the day of
    May 9, 2014.  Again, he said nothing about visiting Ottawa Gold.  Similarly,
    when asked if he had tried to sell any coins, he said nothing about Ottawa Gold,
    Coin Talk, or Demarinis. When asked about coins and selling coins, he stated
    that he had zero interest in coins or said he did not remember.  As the trial
    judge noted at paras. 48-49 of his reasons:

When asked further about how much buying or selling he had
    done, he responded nope, when he admitted he had by the time of that
    interview sold between $4,000 and $5,000 to [Aidid] or George at Cointalk. 
    When he was further questioned at the time about his use of kijiji or eBay to
    sell coins, he again failed to mention Ottawa Gold or Cointalk.

Detective Burns asked the [appellant] if anyone was going to
    come forward and say that he had tried to sell them coins. He deflected her
    question and failed to tell her about Mr. Demarinis.

[17]

As
    part of their investigation, on September 24, 2014, the police obtained the
    appellants call logs. The logs showed the following calls were made on May 9,
    2014 from the appellants phone:

·

a call to McHughs neighbour (Robert Bilmer) at 10:18 a.m. made
    from Renfrew;

·

a call to McHughs home at 11:38 a.m. also made from Renfrew;

·

four calls to the Pembroke hospital, where the appellants wife
    worked, at 11:39 a.m., 12:21 p.m., 1:13 p.m., and 1:33 p.m., respectively. The
    first two calls were made from Renfrew, the third was from Arnprior, a town
    between Renfrew and Ottawa, while the last call was made from West Carleton,
    which is on the outskirts of Ottawa;

·

a call at 1:14 p.m. to the appellants business partner, again
    from the outskirts of Ottawa;

·

a call at 1:35 p.m. to an unrelated party made from Kanata;

·

a call at 2:14 p.m. to Ottawa Bullion (another company located in
    Ottawa that deals in silver bullion) made from Ottawa;

·

a call at 2:19 p.m. to Ottawa Gold made from Ottawa; and

·

a fifth call to the Pembroke hospital at 2:24 p.m. made from
    Ottawa.

[18]

The
    police confirmed with Ottawa Gold that the appellant had called them.  An
    invoice dated May 9, 2014, showed that, at 2:56 p.m., the appellant had sold polished
    coins, a 1 kg bar, and a 10 ounce bar to Ottawa Gold for $2,385.73.  The
    appellant had never contacted Ottawa Gold previously.

[19]

The
    police also followed up with Demarinis, after learning from the appellants
    business partner that the appellant had approached Demarinis about purchasing
    some coins and a bar after the date of the theft.  Demarinis confirmed that he
    was contacted by the appellant on May 25 or 26, 2014.  The two met, and the
    appellant produced a shiny coin and bar, both of which he tried to sell to
    Demarinis, who was not interested.

[20]

Meanwhile,
    McHugh had been in touch with El-Khoury and Bateh of Coin Talk, with whom he
    had prior dealings, and told them about the theft of his coins and bars.  El-Khoury
    recalled meeting the appellant in May 2014 and purchasing two tubes of polished
    silver dollar coins from him.  El-Khoury and Bateh remembered at least seven
    additional transactions where one or both of them purchased coins from the
    appellant in the weeks after the theft.  In total, Coin Talk purchased from the
    appellant between $4,500 and $5,000 of coins, which El-Khoury and Bateh remembered
    as being mostly and unusually highly polished.  Phone logs confirmed that the
    appellant had telephoned Coin Talks office 13 times on May 20.  Between May 20
    and August 19, 2014, there were 62 calls between the appellant and Coin Talk. 
    Prior to May 9, 2014, the appellant had never dealt with Coin Talk.

[21]

The
    call logs also showed the appellants location relative to call towers.  The
    logs suggested that the appellant had time to steal the coins and bars and be
    in the places identified by the call towers and on his ATM receipt.

[22]

Prior
    to the day of the theft, McHugh had made two small purchases from the
    appellant.  These were the only two sales of coins or bars the appellant made
    before May 9.

C.

Grounds of Appeal

[23]

The
    appellant submits that the trial judge failed to assess the credibility and
    reliability of the Crowns witnesses, particularly McHugh, and dismissed or
    ignored the defence submissions on flaws and weaknesses in the Crowns case
    without articulating why he did so.  The appellant similarly submits that the
    trial judge also rejected the appellants evidence without putting it in
    context.  He submitted that these flaws could be characterized as: i) a failure
    to articulate and apply the
W.(D.)
analysis, ii) the application of
    harsher scrutiny to the defence case in comparison to that of the Crown, or
    iii) inadequate reasons.

[24]

The
    appellant also submits that the trial judge misapprehended aspects of the
    evidence.   Finally, the appellant appeals on the basis that two of his
    convictions involved lesser offences arising out of the same facts as two of
    the more serious offences for which the appellant was also convicted.  On the
    basis of
Kienapple
, the appellant submits that the convictions for the
    two lesser offences should be stayed.

[25]

For
    the following reasons, I would reject each of these submissions, with the
    exception of the
Kienapple
submission, which I would grant.

D.

Analysis

(a)

R. v. W.(D.)
Analysis

[26]

The
    appellant submits that where an accused has testified, the trial judge must
    assess the accuseds evidence in the context of the evidence of a whole, and
    explain why the evidence was rejected.  He contends that the trial judge failed
    to do so here.

[27]

The
    trial judge noted in his reasons that he was obliged to follow
W.(D.)
.
     He reviewed in considerable detail the evidence advanced by the Crown and that
    of the defence.  He set forth the positions of the parties and, after repeating
    certain facts, he properly instructed himself on the requirements of
W.(D.)
at paras. 88 and 90.  He then applied those principles to the case before him. 
    He did not accept the appellants evidence and concluded that his evidence did
    not raise a reasonable doubt about his guilt.  He identified some of the
    numerous shortcomings in the appellants version of events including
    inconsistencies, implausibilities, and material omissions.  The trial judge
    then considered whether, on the whole of the evidence, the Crown had
    established the appellants guilt beyond a reasonable doubt.

[28]

Describing
    the evidence as circumstantial, the trial judge also instructed himself to
    consider whether, on the basis of the whole of the evidence, the only rational
    conclusion was the guilt of the appellant. He determined that the only
    reasonable and rational conclusion was that the appellant had: entered McHughs
    garage while he was gone, using either the garage door remote opener, which he
    quickly replaced, or a key to the door, which he had surreptitiously hidden; opened
    the safe either with a key or, more likely, found it open; removed contents
    from the safe; and drove to Ottawa, where he sold $2,385.73 of the coins and
    bars he had stolen.

[29]

Among
    other things, the trial judge observed that, apart from dealings with McHugh,
    the appellant had never sold from his or his wifes collection before nor had
    he had any dealings with Ottawa Gold or Coin Talk.  He found that the appellant
    had ample opportunity to complete the theft, as the appellant was very familiar
    with McHughs premises.  Furthermore, he inferred that the sale by the
    appellant of so many shiny coins and bars was consistent with those coins and
    bars having been stolen from McHugh.  As work was not going well and the
    appellant clearly was not spending much time working, it was a reasonable
    inference that, at the time, the appellant was hard up.

[30]

The
    trial judge also rejected the defence argument that it would have been
    ludicrous for the appellant to sell silver to Ottawa Gold where identification
    was required, noting that only one sale was made there, and that no records or
    identification was kept or required at Coin Talk.  In addition, the Demarinis
    sale would have been an unrecorded transaction to an unidentifiable purchaser. 
    As the trial judge stated at para. 98:

Just as it was arguably ludicrous for the
    [appellant] on the day of the theft to go to Ottawa Gold to sell coins, it was
    equally ludicrous for the [appellant] to have repeatedly omitted to tell the
    police about his visit to Ottawa Gold when he was asked to explain his
    movements the day of the theft.

[31]

The
    trial judge gave extensive consideration to whether the whole of the evidence
    established the appellants guilt beyond a reasonable doubt.  I see no error in
    the trial judges
W.(D.)
analysis.

(b)

Scrutiny Given to Defence Evidence

[32]

Turning
    to the appellants argument that the trial judge applied stricter scrutiny to
    the defence evidence than to that of the Crown, this court has repeatedly
    stated that it is an error of law to apply such a stricter level of scrutiny:
R.
    v. Gravesande
, 2015 ONCA 774, 128 O.R. (3d) 111, at para. 18.

[33]

The
    appellant submits that McHughs credibility was a live issue in the trial, and
    that the trial judge failed to resolve certain credibility issues in McHughs
    testimony.  The unresolved credibility issues identified by the appellant
    include details relating to any indebtedness owed by McHugh to the appellant following
    the appellants two sales to McHugh, when McHugh noticed that the garage door
    opener was missing, and whether McHugh told the coin dealers El-Khoury and Bateh
    that the theft occurred while he was on vacation.

[34]

The
    trial judges treatment of the Crown witnesses and in particular the evidence
    of McHugh must be placed in context.  It was not contested that the coins and
    bars were stolen from McHughs safe on May 9, 2014.  Nor was McHughs evidence
    that the appellant visited McHugh often, knew about the safe, and was at
    McHughs the morning of the theft contested.  Similarly, McHughs evidence that
    he kept his coins shiny and polished was uncontested.  Lastly, despite the
    defences submission at trial that the appellant sold his own coins and bars in
    Ottawa on May 9 to Ottawa Gold because McHugh had not paid him for earlier coin
    purchases, the appellant never testified to this effect.

[35]

Furthermore,
    although the trial judge did not expressly state that he believed McHugh, it is
    obvious from his reasons that he accepted his testimony.  Counsel never
    suggested that McHugh was a suspect, nor did the appellant.

[36]

The
    trial judge also outlined the defence position at paras. 71 and 72 of his
    reasons.  His outline is borne out by the transcript of the submissions of
    defence counsel at trial (who was different from counsel on appeal).  In
    essence, the appellants position was that someone else had stolen the bars and
    coins and that the police had done an inadequate investigation in following up
    with the leads McHugh had given them.  The appellant argued that the sale to
    Ottawa Gold reflected his innocence because he knew he would have to provide
    Ottawa Gold with identification and would receive a cheque in payment for the
    bars and coins.  The appellant contended that the reason he went to Ottawa Gold
    on May 9 was because McHugh had not paid him for a previous sale.  However, as
    mentioned, he never testified to that effect nor did he raise this point in
    either of his two statements to the police.

[37]

In
    my view, the trial judge fairly responded to the positions advanced by the defence
    and the Crown.  While admittedly there were some inconsistencies in McHughs
    evidence that might have been addressed, none related to matters of significance. 
    When he noticed the garage door opener missing and whether he told his wife
    about it were not critical, nor was the timing and fact of the post-dated cheque
    payable by McHugh to the appellant which the trial judge considered at paras.
    12 and 42.  A trial judge is not required to refer to every piece of evidence or
    argument made by counsel:
R. v. H.S.B.
, 2008 SCC 52, [2008] 3 S.C.R.
    32, at para. 8.  I would not give effect to this ground of appeal.

(c)

Sufficiency of Reasons

[38]

The
    appellant also submits that the trial judges reasons for decision were
    insufficient.

[39]

Appellate
    courts are to take a functional approach to reviewing the sufficiency of
    reasons. An appeal will be allowed if the reasons are so deficient that they
    fail to show why the judge decided as the judge did and foreclose appellate
    review:
R. v. Sheppard
, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 28. 
    As stated by Watt J.A. in
R. v. Wolynec
, 2015 ONCA 656, 330 C.C.C.
    (3d) 541, at para. 56: consideration of the sufficiency of reasons requires
    reading the reasons as a whole, in the context of the evidence, the arguments
    and the trial, together with an appreciation of the purposes or functions for
    which reasons are delivered. The core question to be answered in this case, as
    in others, is whether the trial judges reasons, read in context, show why the
    judge decided as he did on the offences charged: see
R. v. Vuradin
,
    2013 SCC 38, [2013] 2 S.C.R. 639, at para. 15.

[40]

The
    trial judge gave extensive 30 page reasons for decision.  There is no question
    why he decided as he did.  The Crown had a strong case.  There was good reason
    to disbelieve the appellant given the numerous inconsistencies in his testimony
    and his statements to the police.  Moreover, the only reasonable and rational
    conclusion that could be drawn from the whole of the evidence was that the
    appellant was the thief.  The trial judge described in detail why the Crown had
    proven the appellants guilt beyond a reasonable doubt, and he was clearly
    alive to the material issues in the case and the positions advanced by the
    parties.  His reasons plainly provided for appellate review.  I would not give
    effect to this ground of appeal.

(d)

Misapprehension of Evidence

[41]

The
    appellant also submits that the trial judge misapprehended the evidence.  A
    verdict must be based exclusively on the evidence adduced at trial. If a trial
    judge is mistaken as to the substance of material parts of the evidence and
    those errors play an essential part in the reasoning process resulting in a
    conviction, that conviction is not based exclusively on the evidence and is not
    a true verdict:
R. v. Morrissey
(1995), 22 O.R. (3d) 514 (C.A.).

[42]

The
    appellant alleges that the trial judge misapprehended two issues.

[43]

The
    first related to the appellants 10:18 a.m. call to Bilmer, McHughs neighbour.
    The trial judge stated at para. 93 of his reasons that he did not accept the
    appellants explanation that he had called McHughs neighbour to enquire about
    a boat.  The trial judge reasoned:

If that were the case he would have spoken to Bilmer in person
    the morning of the theft, or even when he returned the afternoon of the theft. 
    He did not.  He said initially he could not remember why he had telephoned
    Bilmer. The story he told in his evidence of a late recovering memory was
    simply untrue.

[44]

The
    trial judges reference to a boat was inaccurate.  In fact, although the
    appellant had said in his police interview that he was considering buying a
    boat, he said he called Bilmer about a trailer.  However, this error cannot be
    described as material, nor did it play an essential part in the reasoning
    process.

[45]

Second,
    the appellant submits that the trial judge erred in concluding that the
    appellant had ample time to commit the theft.  He argues that the trial judge
    improperly treated any time following 11:39 a.m. to be unaccounted for (and
    therefore part of the window of opportunity necessary to commit the theft) and
    by counting time from 12:21 as relevant to opportunity.  McHugh was home until
    around 12:30, and therefore, the appellant contends, those times could not be
    relevant for opportunity.  The appellant also argues that the times and
    distances revealed by the phone logs made it impossible for the appellant to be
    the thief if the safe was locked, and very difficult if it was not.

[46]

I
    disagree.

[47]

The
    references to 11:39 a.m. and 12:21 p.m., when the appellant called the Pembroke
    hospital where his wife worked, were part of the narrative that also referenced
    the call tower and the 1:39 p.m. ATM receipt evidence and served to explain how
    long it would have taken the appellant to travel between Renfrew and Ottawa. 
    The appellant conceded that he could have committed the theft if the safe was
    unlocked.  At para. 91 of his reasons, the trial judge found that the safe was
    most likely open. This finding was available to him on the record.  He did err
    in stating that the period between 12:21 p.m. in Renfrew and 1:13 p.m. in
    Arnprior was 54 minutes, as this in fact amounts to 52 minutes.  However,
    again, this error was not material and the trial judges determination that
    there was sufficient time to commit the theft was nonetheless reasonable.  I
    would not give effect to this ground of appeal.

(e)

Kienapple

[48]

Lastly,
    the appellant submits that the convictions on counts one and five should be
    stayed based on
Kienapple
.  He argues that his conviction for theft
    contrary to s. 334(a) of the
Criminal Code
(count one) is an included
    offence in his conviction for break and enter contrary to s. 348(1)(b) of the
Code
(count two) and his conviction for possession of McHughs silver contrary to s.
    354(1)(a) of the
Code
(count five) is an included offence in his
    conviction for possession knowing the silver was stolen and for the purposes of
    trafficking contrary to s. 355.5(b) of the
Code
(count three).

[49]

The
    Crown is unopposed to this request.

[50]

Here
    in each instance, the same transaction gave rise to two offences with
    substantially the same elements. There was both a factual and a legal nexus.
    The appellant should only have been convicted of the most serious of the
    offences. I would allow the appeal in this regard and grant the appellants
    request that counts one and five be stayed.

E.

Di
s
position

[51]

For
    these reasons, the conviction appeal is allowed in part so that the convictions
    on counts one and five are stayed.

Released:

FEB -2 2018                                     S.E.
    Pepall J.A.

PR                                                   I
    agree Paul Rouleau J.A.

I
    agree B.W. Miller J.A.


