



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sault, 2018 ONCA 970

DATE: 20181203

DOCKET: C64781

Doherty, Miller & Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

George Nathan Sault

Respondent

Christopher Webb, for the appellant

Janani Shanmuganathan, for the respondent

Heard: November 27, 2018

On appeal from the acquittals entered on December 7, 2017
    by Justice Beth A. Allen of the Superior Court of Justice, sitting without a
    jury.

REASONS FOR DECISION

[1]

An unmarked police vehicle was broken into while
    in a hotel parking lot. Various items were taken, including a Sig Sauer
    semi-automatic handgun, a C-8 semi-automatic rifle, and multiple over capacity
    magazines, including magazines for the stolen guns. Oleoresin capsicum (OC)
    spray was also taken. The respondents left palm print was lifted from the
    outside packaging of paper located by forensic examiners on the front seat of
    the police vehicle.

[2]

Three days after the theft, the respondent was
    found driving a stolen motor vehicle.  Two over capacity magazines were found
    in that vehicle, one for a Sig Sauer semi-automatic firearm and the other for a
    C-8 semi-automatic rifle. Although the respondent left the scene, he was later found
    hiding inside of a freezer within a home. During a search incident to arrest,
    the police discovered that he had OC spray in his pocket.

[3]

The respondent faced a 28-count indictment,
    including counts relating to prohibited firearms, devices, and weapons, theft,
    damage to a police vehicle, and breach of probation. The trial judge acquitted him
    on all counts.

[4]

The Crown appeals from those acquittals. In
    doing so, the Crown has a heavy burden. The Crown must demonstrate that the
    trial judge erred in law in a way that had a material bearing on the verdicts
    of acquittal.

[5]

The respondent concedes that the trial judge
    erred in acquitting on count 24. That count related to the possession of the OC
    spray. Consistent with his position at trial, the respondent acknowledges that
    he was in possession of OC spray, a prohibited weapon, and that he was not the
    holder of a licence. Accordingly, a conviction should have been registered on
    that count.

[6]

In respect to the balance of the acquittals, the
    Crown maintains that the trial judge erred in law in two ways. We need only
    address one of those arguments.

[7]

The Crown argues that the trial judge erred by
    failing to consider the evidence as a whole. Specifically, the Crown contends
    that the trial judge erred when she considered the respondents palm print
    evidence in isolation from the rest of the evidence. The evidence relating to
    that palm print follows.

[8]

The parties filed an agreed statement of facts.
    They agreed that the respondents left palm print was located by forensic
    officers on the outside packaging of a bundle of paper found on the passengers
    seat of the vehicle that had been broken into. The officer who had left that
    vehicle parked in the hotel lot testified that the paper with the palm print
    had originally been in a knapsack, but that the contents of the knapsack had
    been emptied into the vehicle and the knapsack had been taken.

[9]

The trial judge noted that the fact of the
    respondents palm print being in the truck fell short of proof that he was in
    possession of the contents of the truck. She then turned her mind to the agreed
    upon palm print evidence.

[10]

The trial judge expressed difficulty accepting
    the handprint evidence noting two reasons that she found it peculiar. First,
    the trial judge found that if the paper had come from the knapsack, she would
    not have expected a flat handprint to have formed on the paper. Instead, if the
    paper had been removed from the knapsack as described by the officer, the trial
    judge said that she would have expected it to have been grasped in a way that would
    have left thumb and fingerprints. Second, the trial judge was concerned with
    the fact that only one of the respondents prints had been found in the
    vehicle. If the respondent had used a bare hand to grasp the paper, the trial
    judge said that she would have expected more of the respondents prints to have
    been left behind.

[11]

On that basis, the trial judge decided to give
    no weight to the handprint evidence.

[12]

Having rejected the palm print evidence, for the
    two reasons summarized above, the trial judge never considered what inferences
    could be drawn from the palm print considered in combination with the other
    evidence capable of connecting the respondent to the break-in and thefts. The
    parties had agreed that the respondents left palm print was on the paper in
    the police vehicle. Accordingly, it was not open to the trial judge to entirely
    remove that agreed upon fact from the evidentiary scales when considering the
    rest of the evidence. Although we agree with the trial judge that the presence
    of the print did not, standing on its own, prove anything, she was required to
    consider that incontrovertible evidence in the context of the evidence as a
    whole.

[13]

In our view, the failure to consider the
    cumulative effect of the evidence may well have had a material impact on the
    verdicts of acquittal. Distinctive items of very limited availability were
    stolen from the police vehicle where the respondents palm print was
    discovered. Three days later, the respondent was found with the same types of
    distinctive items in his pocket and in the vehicle he was driving: OC spray,
    one over-capacity Sig Sauer handgun magazine and one over-capacity C-8 rifle
    magazine. In these circumstances, the trial judge was required to consider the
    cumulative effect of the evidence as a whole.

[14]

The appeal is allowed. The acquittal on count 24
    is quashed, a conviction is entered and the matter of sentence is remitted to
    the trial court. All other acquittals are quashed and a new trial is ordered.

Doherty J.A.
B.W. Miller J.A.
Fairburn J.A.


