



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Jackson, 2020 ONCA 407

DATE: 20200624

DOCKET: C62076

Tulloch, Roberts and Thorburn
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Bailey Allison Jackson

Appellant

Lori Anne Thomas, for the appellant

Nicolas de Montigny, for the respondent

Heard: in writing

On appeal
    from the conviction entered by Justice Joseph F. Kenkel of the Ontario Court of
    Justice on November 17, 2015.

REASONS
    FOR DECISION

[1]

The appellant was convicted of breaking and entering the complainants
    basement apartment and theft of his dog. The trial judge stayed the conviction
    for possession of stolen property pursuant to
R. v.
    Kienapple
, [1975] 1 S.C.R. 729.

[2]

These offences arise out of a heated dispute between the complainant and
    his former girlfriend concerning the sharing arrangements of their dog, Carl,
    following the breakup of their relationship. On September 14, 2012, the
    complainant awoke in his basement apartment and saw a foot disappearing through
    his door. Noticing Carl was gone, he ran outside and saw an SUV parked at the
    end of the driveway. He recognized the appellant in the passenger seat. He
    attempted to stop the SUV from leaving and was badly hurt in the process. He
    has never recovered Carl.

[3]

The trial judge concluded that the appellant, a friend and co-worker of
    the complainants former girlfriend, entered the complainants apartment, stole
    Carl, and, upon discovery by the complainant, fled from the scene in an SUV
    driven by another unidentified person. He imposed a suspended sentence, two
    years of probation and ancillary firearm prohibition and DNA orders. The
    appellant appeals only from conviction.

[4]

The appellants focus on appeal is the trial judges assessment of the
    evidence. She submits that the verdict was unreasonable and could not be
    supported by the circumstantial evidence that anchored the Crowns case nor was
    there sufficient evidence to find her guilty of being a party to the offences.
    She argues that the trial judge erred in misapprehending key elements of the
    evidence, leading to impermissible inferences, and in rejecting plausible
    alternative inferences consistent with the appellants innocence.

[5]

We do not accept these submissions. The record amply supports the trial
    judges findings and conclusions.

[6]

The appellant did not testify at trial and much
    of the circumstantial evidence remained unchallenged. This included the
    increasingly acrimonious context of the dog sharing arrangements between the
    complainant and his former girlfriend, and the appellants role in assisting
    her friend and co-worker. It was not disputed that on behalf of the
    complainants former girlfriend, the appellant and another friend had visited
    the complainant at his home a few days before the offences to persuade the
    complainant to resolve the dog sharing arrangements. Whether it occurred the
    day before or a few days before Carl was stolen, the complainant also testified
    that his former girlfriend attended at his home and tried to seize Carl shortly
    before the theft.

[7]

It was open to the trial judge to accept the complainants
    evidence, notwithstanding its frailties that the trial judge acknowledged. We
    do not agree that he misapprehended the complainants evidence about what he
    saw or did on the night of the theft.

[8]

The trial judges findings and conclusions also
    found support in the corroborative evidence of the complainants upstairs
    neighbours. On the night of the theft, Ms. Kelly heard two or three female
    voices whispering beneath her bedroom window, then the sound of running within
    the complainants apartment and up and down the stairs, followed by a bang
    which sounded like a door. Shortly afterwards, she heard another bang, someone
    falling down stairs and then the complainant groaning, swearing and yelling for
    help. Her husband, Mr. Elson, also testified to hearing loud bangs and the
    complainant in distress. They subsequently found the badly injured complainant
    in the mudroom, at the backdoor of their unit.

[9]

Finally, the trial judge made no error in
    rejecting the proffered innocent explanation for the appellants unchallenged presence
    in the SUV, which, in all the circumstances of this case, would have been
    entirely speculative. The trial judge did not err in concluding that the only
    reasonable inference to be drawn from the totality of the evidence was that the
    appellant had committed the offences.

[10]

We discern no error in principle or palpable and
    overriding error that would permit appellate intervention. The appeal is therefore
    dismissed.

M.
    Tulloch J.A.

L.B.
    Roberts J.A.

J.A.
    Thorburn J.A.


