



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Smithen-Davis, 2019 ONCA 917

DATE: 20191121

DOCKET: C65661 & C65729

Simmons, Watt and Miller JJ.A.

DOCKET: C65661

BETWEEN

Her Majesty the Queen

Respondent

and

Haldane Smithen-Davis

Appellant

DOCKET: C65729

AND BETWEEN

Her Majesty the Queen

Respondent

and

Jason Hamilton

Appellant

Monte MacGregor, for the appellant Haldane Smithen-Davis
    (C65661).

Maija Martin and David Reeve, for the appellant Jason
    Hamilton (C65729).

Megan Petrie, for the respondent (C65661 & C65729).

Heard: October 24, 2019

On appeal from the convictions entered on March 2, 2018,
    with reasons reported at 2018 ONCJ 140, and the sentences imposed on July 19,
    2018, with reasons reported at 2018 ONCJ 494, by Justice G. Paul Renwick of the
    Ontario Court of Justice.

By the Court:

[1]

The appellants, Haldane Smithen-Davis (HSD) and Jason Hamilton (JH)
    were convicted of breaking and entering with intent to commit an indictable
    offence arising from what was essentially a home invasion. They were each
    sentenced to nine years imprisonment less credit for presentence custody. They
    appeal against conviction and seek leave to appeal sentence. At the conclusion
    of the appeal hearing, for reasons to follow, we dismissed the conviction
    appeals and allowed the sentence appeals, in part. These are our reasons.

Background

[2]

Three men broke into a Mississauga home shortly after midnight on December
    7, 2012. A struggle ensued with the male homeowner. The female homeowner called
    911. One of the invaders was shot and killed by the male homeowner during the
    struggle. The two remaining perpetrators fled before the police arrived. The sole
    issue at trial was identity. The Crown's case was entirely circumstantial. It
    consisted of three agreed statements of fact, several photographs, and
    testimony from three witnesses. Neither appellant testified.

[3]

The Crown relied primarily on the following evidence and inferences to
    submit that the appellants were the two perpetrators who fled from the home:

·

According
    to agreed facts, on December 7, 2012 the deceased perpetrator, Ibrahim Abukar
    (IA) and two other men entered the victims home. At the time, IA was armed
    with a firearm and the male homeowner believed the other two perpetrators were
    also armed, one with a handgun and the other with a boxcutter or knife.

·

DNA
    analysis linked HSD to a pair of gloves found on a step outside the side door
    of the home (which was the site of the break-in) and JH to a pair of canvas
    shoes found near the break-in site (one inside the side door and one on a
    walkway between the front of the home and the side door). However, both the
    gloves and the shoes contained DNA profiles of other individuals.

·

Cell
    phone records and cell phone tower evidence demonstrated HSD's cell phone was
    in the vicinity of the victims home about 30 minutes before the break-in.

·

Blackberry
    Messenger (BBM) text messages recovered from IAs Blackberry demonstrated,
    among other things, that IA and two other individuals, one with a user/profile
    name J. and the other with a user/profile name Logix
3
planned to
    rendezvous shortly before the break-in.
[1]


·

Various
    pieces of circumstantial evidence suggested that HSD was J. and JH was Logix
3
.

·

According
    to the agreed facts, on December 13, 2012 HSD purchased a ticket to leave
    Canada on December 16, 2012 (just over a week after the break-in) and despite
    having a return ticket for January 14, 2013, did not return until he was extradited
    in the spring of 2016.

[4]

A preliminary issue at trial was whether the statements contained in the
    BBM messages were admissible for the truth of their content. In assessing that
    issue in relation to each appellant, the trial judge determined that HSD was
    J. and that JH was Logix
3
.

[5]

Relying on the present intentions exception to the hearsay rule in
    relation to some of the messages from IA and J.; the party admissions
    exception in relation to some of the messages from J.; and the co-conspirators
    exception to the hearsay rule in relation to some of the messages from IA, J.
    and Logix
3
,

the trial judge ruled that the messages were
    admissible for the truth of their content.

[6]

Based on a review of the whole of the evidence, the trial judge found
    the appellants guilty.

HSDs Appeals

(a)

HSDs Conviction Appeal

[7]

HSD argues his conviction was unreasonable. He points to alleged weaknesses
    in the individual pieces of circumstantial evidence on which the trial judge
    relied and argues that overall, the trial judge erred by failing to account for
    reasonably available alternatives in what was an entirely circumstantial case.
    His submissions include the following:

i)

The
    DNA evidence

[8]

HSD submits that considered overall, the DNA evidence provided little or
    no support for his participation in the home invasion for the following reasons:

·

Both gloves contained DNA profiles of other individuals and his
    DNA profile was found on only one of the gloves.
[2]

·

The DNA analysis provided no insight into when HSD, or anyone
    else, might have been wearing the gloves.

·

Both gloves were found outside the home; accordingly, the DNA
    analysis did not place the wearer inside the home at the time of the break-in.

·

Even if HSD was wearing the gloves on December 7, there were no
    descriptions of the three people who entered the home, no evidence that only
    three people were at the home around the time of the break-in, no evidence that
    HSD entered the home and no evidence that anyone outside the home actively
    participated in the break-in (for example, as a lookout).

ii)

The
    cell phone tower evidence

[9]

HSD submits the cell phone tower evidence of a call between HSDs cell phone
    and his wifes phone 30 minutes before the break-in involved a significant gap
    in time before the break-in and could not conclusively establish which cell
    phone tower was used. Accordingly, this evidence left open the possibility of alternate
    points of proximity.

[10]

Although HSD acknowledges that, when combined with the DNA evidence, the
    cell phone tower evidence created a possibility of involvement, he submits that
    evidence was far from conclusive and was open to other inferences.

iii)

Identification
    of HSD as the user of the BBM profile/username J.

[11]

The trial judge concluded that HSD used the Blackberry with the
    profile/username J. based on a number of factors. This conclusion, together
    with relevant exceptions to the hearsay rule, allowed the trial judge to use
    the content of the BBM text messages, along with the remainder of the evidence,
    to connect HSD to the break-in.

[12]

HSD submits the factors on which the trial judge relied to find he (HSD)
    used the Blackberry with the profile/username J. were speculative, of minimal
    value, illogical, or based on evidence that was not before the court. The
    finding that HSD used the J. profile/username was therefore unreasonable. The
    remaining evidence against him was not sufficient to support a conviction. The
    factors relied on by the trial judge, and HSDs complaints about each, include
    the following:

·

Evidence
    that HSD was known by others as J or Jason
: HSD submits this evidence was
    of little or no value, at least in part because of other possibilities the
    trial judge failed to consider. First, two other people involved in the case were
    also named Jason, including JH. Second, since IAs contact list was not
    produced it was not clear who IA associated with J. or how many people IA knew
    who might fit that profile/username.

·

Evidence
    that HSD used a pseudonym, Jason Smith; while using an alias is not inherently
    suspicious, it can assist people in evading law enforcement
: HSD submits that
    using a pseudonym does not connect him to J., and that there are many reasons
    for using an alias.

·

The
    four dots in J. represent the four letters a-s-o-n
: HSD submits this was
    speculation and points out that many other five-letter names begin with J (for
    example, Jamie, Jacob, Jerry, and Jimmy).

·

Evidence
    that HSD was known to have random phone numbers, which supported an inference
    that he had more than one phone on December 6 [i.e., the cell phone used to
    call his wifes phone and the Blackberry with the profile/username J.]
: HSD
    submits this factor was speculative and, in any event, did not connect him to
    J..

·

Evidence
    that like J., HSD was known to have a Blackberry
: HSD submits this
    evidence did not connect him to J..

·

HSD
    knew IA and therefore was in the pool of people who could have sent him text
    messages leading up to the break-in
: HSD submits this factor was
    essentially meaningless because there was no evidence about how many people
    knew IA.

·

HSD
    used the Blackberry with the profile/username J. to communicate with IA about
    going to a party held in early December [at the Troika Lounge]
: HSD submits
    this reasoning was illogical and that it put the cart before the horse by using
    the conclusion sought to assess whether the appellant was the author of the BBM
    text messages. Further, there were over 100 people at the early December party.
    The messages from J. could have been sent by any of these party attendees. The
    judges conclusion also relied on a direction by J. to IA to wear what was essentially
    generic clothing (jeans and a sweater).

·

HSD
    discussed IAs death within days after it occurred
: HSD submits this could
    not connect him to J., because it established only that he knew IA.

·

HSD
    was aware IA was shot during a break-in
: HSD submits there was no evidence he
    was aware of details that could be known only by a perpetrator.

·

The
    BBM text messages between IA and J. leading up to December 7 made it clear
    they were planning something. Within two hours of their last communication, IA
    was involved in the break-in with two other males, one of whom the judge
    inferred was using the Blackberry as J.
: HSD submits the trial judges
    conclusion that HSD was J. at this stage of his reasoning was premature, and
    that it was illogical and improper to use that conclusion as part of his assessment
    of the identity issue.

·

HSDs
    DNA was found in one of the gloves found at the scene of the offence, placing
    HSD in the pool of persons who may have used the Blackberry with the
    profile/username J. to plan something for December 7
: HSD submits the DNA
    evidence adds little probative force to the identity analysis. The fact that
    six DNA profiles were found on the gloves does not rule out the possibility
    that another individual was using the J. profile/username.

[13]

HSD relies on
R. v. Youssef
, 2018 ONCA 16,
428 D.L.R. (4th) 612
, affd 2018 SCC 49,
[2018] 3 S.C.R. 259
, to argue that the
    circumstantial evidence in this case was not sufficient to support a finding
    that HSD participated in the break-in. In
Youssef
, two DNA deposits were
    linked to the accused: one on a pocket knife left at the scene of a bank
    robbery by the sole culprit and the other on a black t-shirt found in the
    stolen getaway car, discovered in flames within 30 minutes of the robbery. The
    critical feature in
Youssef
was the presence of DNA deposits in two key
    locations. It was this factor that linked
Youssef
to the crime.

[14]

Here, says HSD, the single item of DNA evidence is of little probative
    value. Moreover, the other factors the trial judge relied on do not provide a
    sufficient additional link to connect HSD to the break-in. Even if they create
    the possibility HSD was a participant, they do not eliminate reasonable
    alternative inferences.

[15]

We do not accept HSDs submissions.

[16]

The trial judges reasons demonstrate he was acutely aware of the limited
    value of particular items of evidence standing alone and that his task was to
    consider the cumulative effect of the whole body of evidence rather than to
    examine each piece of evidence in isolation.

[17]

The trial judges finding that HSD used the Blackberry with the profile/username
    J. to communicate with IA concerning the early December party at the Troika Lounge
    was amply supported by the evidence. There was unchallenged evidence that HSD
    used the pseudonym J or Jason. Like J., HSD was known to have a Blackberry
    and to communicate using BBM messages. HSD knew IA. The partys organizer, DG,
    testified that he knew IA through HSD (known to DG as J). On the day that IA
    and J. communicated about meeting at the Troika Lounge, IA sent J. a message [h]e
    sent me the text, immediately followed by another message, Troika lounge,
    from which the trial judge inferred that DG had texted IA. HSD, IA and DG were later
    photographed together at the Troika Lounge.

[18]

Along with the other factors identified by the trial judge, this finding
    created a strong inference that HSD was J. and the author of the text messages
    sent by J. to IA and Logix
3
leading up to the break-in. The content
    of the text messages, the cell tower evidence, and the DNA evidence amply
    supported the trial judges conclusion that the only reasonable inference was
    that HSD participated in the break-in.

[19]

We specifically reject HSDs argument that the trial judge erred by failing
    to properly account for reasonably available alternative inferences. The
    question of what constitutes a reasonable alternative inference is uniquely for
    the trier of fact: [i]t is still fundamentally for the trier of fact to decide
    if any proposed alternative way of looking at the case is reasonable enough to
    raise a doubt:
R. v. Villaroman
, 2016 SCC 33, [2016] 1 S.C.R. 1000, at
    para. 56. The trial judge reviewed HSDs arguments concerning alternative
    inferences and rejected them. We see no basis on which to interfere.

(b)

HSDs Sentence Appeal

[20]

Given the circumstances of the offence, the trial judge considered that a
    ten-year penitentiary sentence was appropriate. However, he reduced the
    sentence for each appellant by one year to give effect to what he referred to
    as the first penitentiary sentence principle. He gave HSD three months credit
    for presentence custody and therefore imposed a total sentence of eight years,
    nine months imprisonment.

[21]

HSD argues that the trial judge erred in relying on knowledge that IA
    possessed a firearm as an aggravating factor, in failing to give sufficient
    effect to the first penitentiary sentence principle, and in imposing a sentence
    that was harsh and excessive in all the circumstances.

[22]

We reject HSDs submissions.

[23]

Although there was no direct evidence HSD knew IA had a firearm, the
    inference of knowledge was amply supported by the evidence. The agreed facts
    disclosed the presence of $200,000 cash and an unregistered stolen firearm in
    the victims home. The text messages exchanged between the parties demonstrate
    they met in advance and planned what was intended to be a home invasion style
    robbery. The timing of the events (shortly after midnight) and the presence of
    vehicles at the home made it likely the occupants would be present. We agree
    with the Crown that it strains credulity to suggest HSD was not armed himself or,
    at the very least, aware that IA had a firearm.

[24]

As for the first penitentiary sentence principle, the trial judge gave
    detailed reasons acknowledging the principle and HSDs prospects for
    rehabilitation. HSD was neither a youthful nor a first offender. We see no
    error in the trial judges approach to this issue.

[25]

In our view, the sentence imposed was entirely fit. This case involved
    an armed home invasion in the middle of the night in which one of the
    perpetrators was, as planned, disguised as a police officer. The home was
    occupied by two adults and two very young children. Multiple gunshots were
    fired, resulting in one of the perpetrators lying dead in front of the familys
    Christmas tree. The circumstances and consequences of the offence demanded a significant
    penitentiary sentence.

[26]

With the Crowns consent, we set aside the victim fine surcharge that
    was imposed but otherwise dismissed the sentence appeal.

JHs Appeals

(a)

JHs Conviction Appeal

[27]

JH raises three issues on his conviction appeal:

(i)

the trial judge erred by taking improper judicial notice of and relying
    on facts that were not introduced in evidence, specifically that people do not
    tend to change their cell phone numbers, to find that JH was Logix
3
(the judicial notice error);

(ii)

the trial judge erred in relying on the text messages of IA and Logix
3
to find that JH was Logix
3
(the
Evans
[3]
error); and

(iii)

the trial judge erred in finding that JH was a probable member of the
    conspiracy under the
Carter
[4]
test and therefore erred in admitting the text message evidence against him for
    the truth of its content.

i)

The
    Judicial Notice Error

[28]

After finding that HSD used the Blackberry with the profile/username J.,
[5]
and that his text messages were admissible against him and any other probable conspiracy
    member for the truth of their content, the trial judge turned to the
    admissibility of text messages involving Logix
3
.

[29]

The Blackberry containing the profile/username Logix
3
exchanged text messages with IA and J. on December 5 and 6, 2012. The Crown
    submitted that JH was Logix
3
and that Logix
3
s messages
    were admissible for the truth of their content based on the party admissions
    exception to the hearsay rule. The trial judge rejected that submission because
    the messages themselves revealed almost nothing about the user of the
    Blackberry with that profile/username.

[30]

Instead, to determine whether JH was Logix
3
, the trial judge first
    looked to the following evidence arising from the agreed facts:

·

In
    April 2014 the police learned that the Logix
3
Blackberry was
    registered to a Willy Rufford of 1721 Eglinton Avenue West, Toronto; however, they
    did not learn the date of this registration.

·

In
    2016, the police learned that the alternate contact number provided in the
    Rufford registration was formerly associated with a business JH previously
    operated at an address strikingly similar to Ruffords address: 1712 Eglinton
    Avenue West, Toronto.

[31]

The trial judge rejected JHs submission that there was no current
    evidence linking JH to the Logix
3
Blackberry for four reasons.

[32]

First, the trial judge noted that the likelihood was infinitesimally
    small that someone other than JH was using the Logix
3
Blackberry in
    2012 when the 2014 registered users alternate contact number was a number JH had
    used, at one time, for his business  and his business happened to have an
    address that matched the Rufford address if the last two numbers were
    transposed.

[33]

The trial judge then commented that this analysis was strengthened by
    common sense in that there is an almost proprietary aspect to cellular
    telephone numbers. He reasoned that although people may regularly change their
    cell phones, they do not tend to change their cell phone numbers, even over
    extended periods of time. The appellant objects to these comments, arguing
    there was no evidence to support them and that this is not a matter of which
    judicial notice can be taken.

[34]

Even assuming the trial judge was not entitled to make this common sense
    observation because it violated the principles involving judicial notice, we do
    not accept this submission.

[35]

As we have said, the trial judge gave four reasons for rejecting the
    defence complaint about lack of currency. Read fairly, the impugned statements
    were but a superfluous comment appended to his first reason premised on the
    unlikelihood of coincidence. Unlike the four reasons mentioned above, the trial
    judge did not give this comment a number. The first reason stands on its own
    without the comment  and when combined with the remaining three reasons
    justified the trial judges rejection of the defence complaint about the lack
    of current information.

[36]

The trial judges second and third reasons related to JHs then current
    association with the term Logix. The second reason was the admitted fact that
    JH then maintained an internet presence under the name Jay J Logix. While the
    admission stipulated that innumerable other profiles also contained reference
    to the term Logix, the trial judge viewed it as some evidence tending to make
    it more likely that JH used the phone with the Logix
3
profile/username and that the Willy Rufford connection was not stale.

[37]

Third, the trial judge relied on the admitted facts that IAs Blackberry
    browser had visited the Facebook site of jlogix less than two months before
    the break-in. This name, jlogix, was nearly identical to the Facebook name JH
    admitted he used and the profile name attributed to him by a former girlfriend.
    Like the second reason, when combined with the first reason this factor, which
    provided a link between JH and IA (a person who died at the scene where JHs
    DNA was found), diminished the likelihood that someone other than JH used Logix
3
as a profile/username.

[38]

The fourth reason
[6]
observes that without relying on the truth of the content of three messages
    sent by Logix
3
to IA in quick succession about 90 minutes before the
    break-in, the messages suggest that Logix
3
was trying to meet up
    with IA. Relying on
R. v. Evans
, the trial judge held that when combined
    with the DNA evidence, the messages, seemingly directed at a meeting, provided
    some evidence that JH was the author.

ii)

The
Evans
Error

[39]

As we have said, relying on
R. v. Evans
, the trial judge used the
    contents of three messages sent by Logix
3
to IA approximately 90
    minutes before the break-in, together with the DNA analysis of the canvas
    shoes, to provide some evidence of JHs identity as Logix
3
.

[40]

According to the trial judge, the probative value of the messages arose
    from the fact that they suggested Logix
3
was attempting to meet up
    with IA in close proximity to the break-in where JHs DNA was found. However,
    the inference that Logix
3
was trying to meet up with IA could only
    arise when the messages were read in context with messages Logix
3
received
    from IA. The messages, read in context, are as follows:

11:00:55  from IA
[7]
:
    Cross street homie

11:01:10  from Logix
3
:
    Cross?

11:01:39  from IA: Actually
    stay

11:02:27  from IA: Where u
    at

11:02:54  from Logix
3
:
    Same spot

11:02:57  from IA: Kk

11:03:02  from Logix
3
:
    As always in parking lot

[41]

Evans
provides that out-of-court statements of a declarant may
    have probative value on the issue of identity in certain circumstances because
    the fact that certain representations are made is probative as it narrows the
    identity of the declarant to the group of people who are in a position to make
    similar representations:
Evans
, at p. 662.

[42]

JH submits that the trial judge erred in relying on the messages of both
    Logix
3
and IA to find Logix
3
s messages had probative
    value. JH relies on the fact that in
Evans
, it was the statements of the
    accused alone that were relied on. While acknowledging there is no rule in
Evans
that prohibits a declarants statements from being considered in context, JH
    asserts that because the trial judge was conducting a
Carter
analysis and
    considering whether JH was a probable member of the conspiracy (step two of
Carter
),
    the trial judge was restricted to considering statements admissible against JH
    and could not consider his statements in the context of JHs conversation with
    IA.

[43]

We do not accept JHs submission. While we acknowledge the trial judge
    was conducting a stage two
Carter
analysis to determine if JH was a
    probable member of a conspiracy, a preliminary issue to that analysis was the
    question of Logix
3
s identity. The judge was considering this
    preliminary issue when he applied the rule in
Evans
. Only after he found
    JH was Logix
3
did the trial judge turn to the question whether JH
    was a probable member of the conspiracy. In our view, the trial judges
    conclusion that JH was Logix
3
was amply supported by the record.

iii)

The
Carter
error

[44]

JH argues that when the erroneous inferences arising from the trial
    judges first two errors are removed, there was insufficient evidence to
    support an inference he was Logix
3
. As a result, the statements of
    Logix
3
were not admissible against him and there was insufficient
    evidence to establish he was a probable member of the conspiracy.

[45]

As this ground of appeal is dependent for its success on the success of
    JHs first two grounds of appeal, we reject this argument.

(b)

JHs Sentence Appeal

[46]

The trial judge gave JH seven months credit for presentence custody and
    restrictive bail conditions and therefore imposed a sentence of eight years,
    five months imprisonment. The Crown acknowledges that the trial judge
    miscalculated his intended credit for presentence custody. Accordingly, with
    the consent of the Crown, we increased the credit for presentence custody from
    150 days to 250 days and set aside the victim fine surcharge that was imposed.

[47]

JH and HSD raised the same arguments concerning their sentence appeals.
    We rejected JHs arguments for the same reasons we rejected HSDs arguments.

Conclusion

(a)

HSDs Appeal

[48]

Based on the foregoing reasons, we dismissed HSDs conviction appeal. We
    granted leave to appeal sentence, with the Crowns consent allowed the sentence
    appeal in part by setting aside the victim fine charge, and ordered that the
    sentence appeal was otherwise dismissed.

(b)

JHs Appeal

[49]

Based on the foregoing reasons, we dismissed JHs conviction appeal. We granted
    leave to appeal sentence and with the Crowns consent allowed the sentence
    appeal, in part, by i) increasing the credit for presentence custody from 150
    days to 250 days which, together with the 60 days credit for strict bail
    conditions granted by the trial judge, yielded a sentence of 9 years less 310
    days imprisonment; and ii) setting aside the victim fine charge. The sentence
    appeal was otherwise dismissed.

Released: J.S. November 21, 2019

Janet Simmons J.A.

David Watt J.A.

B.W. Miller J.A.





[1]
As explained by the trial judge, the second profile name was actually more
    elaborate than Logix
3
. We agree with the trial judge that Logix
3
is an adequate descriptor for the purpose of giving reasons.



[2]
HSDs was the major profile on the sample taken from the left glove; however,
    the sample also contained a profile from one other individual. The cut-out from
    the right glove contained DNA from four individuals, including one male, but
    the profile was not suitable for comparison.



[3]

R. v. Evans
, [1993] 3 S.C.R. 653.



[4]

R. v. Carter
, [1982] 1 S.C.R. 938.



[5]
Earlier in his reasons, the trial judge had observed that it was undisputed
    that a conspiracy to carry out a home invasion existed. He also found that IA
    used the Blackberry with a profile/username IB that was recovered from his
    body and that he was a probable member of the conspiracy.



[6]
The fourth reason involves the second ground of appeal, which we will address
    next. We have rejected that ground of appeal.



[7]
As noted in footnote 5, the trial judge found that IA used the Blackberry with
    the profile name IB. However, for the sake of clarity, we did not introduce
    that profile name here.


