R. v. Cot, 2003 ABQB 293

R. v. Cot é , 2003 ABQB 293 Date: 20030403 Action No. 016160533Q1 IN THE COURT OF QUEEN'S BENCH OF ALBERTA JUDICIAL DISTRICT OF EDMONTON HER MAJESTY THE QUEEN - and - JEFFERY LEANDER COTÉ Accused _______________________________________________________ REASONS FOR JUDGMENT of the HONOURABLE MR. JUSTICE DONALD LEE _______________________________________________________ APPEARANCES: David Sullivan

Alberta Justice for the Crown Lloyd Nelson for the Accused BACKGROUND [ 1 ] The Accused was arraigned before me at the beginning of a two day Judge alone trial on a three-count Indictment on March 17, 2003, pleading not guilty to all three counts. On March 17, 2003 the counts read as follows:- 1.

That he, between the 1 st day of March, 2001, and the 2 nd day of March, 2001, both dates inclusive at or near Edmonton, Alberta, did unlawfully break and enter a place located at 1811 - 66 Avenue, the property of Aluma Systems, and did commit an indictable offence therein, to wit: theft, contrary to Section 348(1)(e)/344 of the Criminal Code of Canada . 2.

That he, between the 2 nd day of March, 2001 at or near Edmonton, Alberta, did unlawfully have in his possession an aluminum pipe of a value not exceeding $5,000.00, the property of Aluma Systems, knowing that the said property was obtained by or derived directly or indirectly from the commission in Canada of an offence punishable by indictment, contrary to

Section 355 (

b) of the Criminal Code of Canada . 3. That he, between the 2 nd day of March, 2001 at or near Edmonton, Alberta, did unlawfully operate a motor vehicle in Canada while disqualified from so doing, contrary to Section 259(4) of the Criminal Code of Canada . [ 2 ] After the Accused Mr. Cot é pled not guilty to all three counts, the Crown chose to call no evidence on count number 3, and invited the Court to dismiss the charge against the Accused of unlawfully operating a motor vehicle while disqualified from doing so.

I acceded to this request and count 3 was dismissed. [ 3 ] The trial then proceeded on counts 1 and 2. The first witness for the Crown Mr. Shapko of Aluma Systems completed his testimony, and shortly thereafter the Crown applied to amend the date and the address in count 1 to reflect the evidence of the witness.

The Crown sought to have an amendment to change the first date in count 1 from March 1, 2001 to February 27 or February 28, 2001; and sought to change the address from 1811 - 66 Avenue where the alleged unlawful break and enter took place to the corner of 17 th Street and 66 th Avenue. [ 4 ] Defence counsel was concerned with both amendments because he did not think that they reflected the evidence that had been presented at trial, and submitted that the Crown had to be put to strict proof of both the dates and the address as they had been listed in the Indictment because these raised potentially important issues. [ 5 ] I concluded to allow the amendments of the date to February 28, 2001 because Mr.

Shapko testified that he saw the missing items in the Aluma Systems yard on that date. I concluded that the initial date may be of some importance in the Indictment, but I was satisfied that the amendment of the first date to February 28, 2001 was in accordance with the evidence that I had heard. [ 6 ] I also allowed the amendment of the location of the place in question to the corner of 17 th Street and 66 th Avenue, although I

am not certain that the street location of the yard in question is particularly important with respect to this Indictment. Quite clearly the yard or storage area in question is clearly know, and is the only yard or storage area that is relevant to these proceedings. Whether the municipal address is 1811 - 66 th Avenue as listed in the Indictment, or the corner of 17 th Street and 66 th Avenue, which is across the street, is relatively immaterial. [ 7 ] In addition to Mr.

Shapko of Aluma Systems, the Crown then called Brian Wilkinson and Cheryl Lecht who are employees of General Scrap Iron and Metals Ltd. of Edmonton, which was the scrapyard dealer that some or all of the stolen property ended up being sold to. Constable Ronnie Chiu was the final Crown witness who testified that he had attended at both Aluma Systems and General Scrap Iron and Metals Ltd., and eventually ended up confiscating several bundles of aluminum scaffolding tubing which he returned to Alma Systems.

This then ended the Crown’s case. [ 8 ] The Accused then took the stand and testified that he had purchased the aluminum scaffolding tubing from an individual he knew only as “Henry”. Henry had come to the Accused’s home early on the morning of March 2, 2001, and offered to sell aluminum scaffolding tubing in exchange for a cash payment, because Henry had no gas to take the tubing to sell on his own. [ 9 ] The Accused has no receipt or written documentation from Henry, but claims that his driver at the time Cary Long, and his friend Wayne Long who was living with him at the time, could confirm his evidence.

In any event the Accused stated that one or both of the Long brothers would be in court to testify on his behalf later in the morning, or in the afternoon of March 18, 2003, which was the second day of the trial. [ 10 ] The Accused then testified that he took the aluminum scaffolding tubes that he had bought from Henry, along with other scrap metal that he had in his possession since he was earning his livelihood at that time by selling scrap metal, and took all of this material to sell to the scrapyard operated by General Scrap Iron and Metals Ltd. on March 2, 2001. [ 11 ] The Accused’s evidence then contradicted parts of the evidence of Ms.

Lecht and Mr. Wilkinson, the two employees of General Scrap Iron and Metals Ltd. with respect to several of the actual sales transaction details and events. [ 12 ] Following the Accused’s evidence which began and ended on the morning of March 18, 2003, the Long brothers had still not arrived in court, and defence counsel requested an adjournment to 2 p.m. that day so that the Long brothers attendance could be secured. Defence counsel had never subpoenaed either one of the brothers, because it was only recently known that one or both of the brothers was actually in Edmonton.

Cary Long had apparently just returned from British Columbia to Edmonton temporarily, in order to see if he could locate employment. The Accused’s friend and former roommate Wayne Long runs his own mobile auto detailing business in the city of Edmonton currently according to the accused. [ 13 ] At 2 p.m. on the afternoon of March 18, 2003, neither of the Long brothers was present in court to testify on behalf of the Accused.

It appeared at this point that the Accused had never actually spoken to Cary Long, but had spoken with his brother Wayne Long who apparently was prepared to assist and to bring Cary Long to court as well. Defence counsel then requested yet a further adjournment so that the Accused could secure the presence of the Long brothers. [ 14 ] As Crown counsel was occupied on Wednesday, March 19, 2003 with another trial, and was not opposing the short adjournment application made by Mr.

Nelson on behalf of the Accused, I decided to put the matter over to the first date upon which everyone could be available which was Thursday, March 20, 2003 at 10 a.m.. The Accused assured me that he was confident that he could find and produce one or both of the Long brothers to testify on his behalf on Thursday morning, March 20, 2003. [ 15 ] On Thursday morning March 20, 2003, the Accused was not present when court began at approximately 10 a.m. that morning, and his whereabouts was a mystery to his own counsel. Neither of the Long brothers was present either.

Since the Accused apparently had a good record of attendance in court, I decided to adjourn the matter briefly to 10:30 a.m. to see if the Accused would attend. [ 16 ] At approximately 10:16 a.m., the Accused did show up indicating that he had been delayed because of transportation problems, and because as he stated he had been “camping out” at the respective residences of Wayne Long, and Cary Long’s girlfriend that morning, and the prior evening, in an attempt to secure their presence in court.

[ 17 ] The Accused in giving his evidence as to his whereabouts, and his efforts to locate the Long brothers, made several inconsistent statements, and I was increasingly becoming concerned as to the veracity of the Accused’s evidence with respect to his attempts to secure the testimony of the Long brothers. [ 18 ] Crown counsel did not share this particular concern concerning the Accused’s futile efforts to locate the witnesses, but it opposed any further adjournments to allow the Accused to locate and to bring forward the Long brothers. [ 19 ] Defence counsel insisted that the Accused should have until at least 2 p.m. on Thursday, March 20, 2003, to produce one or both of the Long brothers, as their evidence was important to the Accused’s case.

Defence counsel agreed however that if one or both of the Long brothers could not be found and produced by Thursday afternoon, March 20, 2003, that the Accused would forego his rights to call the Long brothers, and would not be calling any further evidence. [ 20 ] Crown counsel opposed the granting of any further adjournment given that he now considered Cary Long to be an unreliable witness, and submitted that there was no reasonable expectation that Cary Long could even be located, let alone produced. [ 21 ] A different problem existed with Wayne Long, who was located and contacted by the Accused.

However he was not prepared to show up in court on Thursday, March 20, 2003, because he had to go pick up a vehicle in Tofield, Alberta, that day. [ 22 ] I concluded that in accordance with the Supreme Court of Canada’s decision in R. v. Darville , (1956) 1956 CanLII 463 (SCC) , 25 C.R. 1 , 116 C.C.C. 113 (S.C.C.) that the Accused had not shown any reasonable expectation that Cary Long could ever be produced to testify at trial. Cary Long appeared to have no fixed address, and the Accused had difficulty in even contacting him, except through his brother Wayne Long.

I further conclude that Wayne Long also appeared to have no particular interest in testifying, choosing his economic interests over coming to court to testify. [ 23 ] Nevertheless notwithstanding this conclusion, I decided to allow the Accused until the afternoon of Thursday, March 10, 2003 to make one final last attempt to get a hold of and produce either Cary and/or Wayne Long. Discussions then took place between the Court and counsel as to whether to resume at 2 p.m. or 3 p.m., given that it was now after 11 a.m.. [ 24 ] After speaking briefly with counsel on this point, it was decided to resume at 2 p.m..

Prior to 2 p.m., I decided that it would be better to proceed at 3 p.m., given that if Cary Long could be located, it was not likely that he would be able to actually be in court, be briefed, and be ready to testify until approximately 3 p.m.. My judicial clerk advised counsel of this slight change, although the Accused was never formally notified. [ 25 ] The Accused did not show up at 2 p.m. in any event, however he did arrive at 2:15 p.m. and was personally advised by his counsel to re-attend at 3 p.m..

At that time the Accused was also advised by his counsel that he had spoken to both Cary Long and Wayne Long, and that neither one of these individuals remembered anything of any value to the Court with respect to this incident.

Counsel also received a telephone call from the Accused at 2:30 p.m. confirming his attendance in court at 3 p.m.. [ 26 ] The Accused never arrived in court at 3 p.m., nor did he show up at the conclusion of the day’s proceedings which finished at approximately 5 p.m.. [ 27 ] Defence counsel conceded that there was no reasonable or rational explanation as to what happened to the Accused, and it was fairly evident that the Accused had absconded.

CONCLUSION [ 28 ] Rather than simply issuing a warrant for the Accused’s arrest, I agreed to the Crown’s application to have the trial continue pursuant to the provisions of

Section 475 of the Criminal Code . [ 29 ]

Section 475.(1) of the Criminal Code deals with accused persons absconding during the trial and reads as follows:- 475.

(1) Accused absconding during trial - Notwithstanding any other provision of this Act, where an accused, whether or not he is charged jointly with another, absconds during the course of his trial, (

a) he shall be deemed to have waived his right to be present at his trial, and (

b) the court may (

i) continue the trial and proceed to a judgment or verdict and, if it finds the accused guilty, impose a sentence on him in his absence, or (ii) if a warrant in Form 7 is issued for the arrest of the accused, adjourn the trial to await his appearance, but where the trial is adjourned pursuant to subparagraph (b)(ii), the court may, at any time, continue the trial if it is satisfied that it is no longer in the interests of justice to await the appearance of the accused.

(2) Adverse Inference - Where a court continues a trial pursuant to subsection (1), it may draw an inference adverse to the accused from the fact that he has abandoned.

(3) Accused not entitled to re-opening - Where an accused reappears at his trial that is continuing pursuant to subsection (1), he is not entitled to have any part of the proceedings that was conducted in his absence re-opened unless the court is satisfied that because of exceptional circumstances it is in the interests of justice to re-open the proceedings.

(4) Counsel for the accused may continue to act - Where an accused has absconded during the course of his trial and the court continues the trial, counsel for the accused is not thereby deprived of any authority he may have to continue to act for the accused in the proceedings. [ 30 ] After receiving submissions from counsel, I concluded that the Accused Mr.

Coté was deemed to have waived his rights to be present at his trial, and that the Court would continue the trial and proceed to a verdict. [ 31 ] I further concluded that I was allowed to draw an adverse inference as part of the trial continuation from the fact that the Accused had absconded. [ 32 ] I then received final submissions from counsel with respect to counts 1 and 2. [ 33 ] Defence counsel argues that the Crown has failed to prove the charges beyond a reasonable doubt given that there are serious issues with respect to continuity of the property in questions, and contradictions in the evidence as between Constable Chiu who testified that five bundles of aluminum scaffolding tubes were seized from General Scrap Iron and Metals Ltd., and the evidence of Mr.

Shapko the Aluma Systems employee who indicated that three bundles of aluminum scaffolding tubing were missing.

[ 34 ] Defence counsel also pointed to various other contradictions involving the testimony of Ms. Lecht of General Scrap Iron and Metals Ltd. concerning the presence of two children in Mr. Cot é’s half-ton truck at the time of the sale of the aluminum scaffolding tubes, and her testimony that she basically had not seen and did not know Mr. Coté prior to or after this incident. [ 35 ] The Accused Mr. Cot é testified that he drove a one-ton pickup truck, had no children in the truck, but was accompanied by his driver Cary Long at the time of the sale of tubing to General Scrap Iron and Metals Ltd.. While both Ms.

Lecht and Mr. Wilkinson were readily able to identify Mr. Coté in a photo lineup produced by Constable Chiu, counsel for the Accused argues that that is because both Ms. Lecht and Mr. Wilkinson knew Mr. Coté very well from his regular dealings at General Scrap Iron and Metals Ltd.. [ 36 ] Notwithstanding Mr. Cot é’s evidence to the contrary that he had sold aluminum tubing to General Scrap Iron and Metals Ltd. on March 2, 2001 under different circumstances than those alleged by the Crown and by General Scrap Iron and Metals Ltd., Mr.

Coté could not produce any written documentation or receipts of his version of the sale to General Scrap Iron and Metals Ltd. [ 37 ] The Crown on the other hand through the General Scrap Iron and Metals Ltd. employees was able to produce full documentation for the transaction that they entered into on March 2, 2001 with the person they identified as the Accused.

This documentation marked as Exhibit 2 in these proceedings confirms the evidence of the two Crown witnesses from General Scrap Iron and Metals Ltd., although their documentation indicates that the aluminum tubing in question was purchased from a “Dale Scott”. [ 38 ] Mr. Wilkinson, who was familiar with the Accused from previous dealing, testified that Mr. Cot é told him to write “Dale Scott’s” name in the invoice notwithstanding that Mr. Wilkinson knew that he was dealing with Mr. Coté. It is also to be noted that the initials on the signature line of the invoice appear to be “J.C.”, which are Mr.

Coté’s initials. It is also to be noted that the licence plate VWV 629 listed in parts of Exhibit 2 as the vehicle that the aluminum tubing arrived in, is registered to the Accused’s mother, which vehicle the Accused had access to. [ 39 ] The Crown relies on the doctrine of recent possession as enunciated in R. v. Kowlyk , (1988) 1988 CanLII 50 (SCC) , 43 C.C.C. (3d) 1 (S.C.C.) . In Kowlyk McIntyre, J. for the majority summarized the law with respect to the doctrine of recent possession as follows at page 12:- In

summary, then, it is my view, based on the cases, both English and Canadian, which I have referred to, that what has been called the doctrine of recent possession may be succinctly stated in the following terms. Upon proof of the unexplained possession of recently stolen property, the trier of fact may - but not must - draw an inference of guilt of theft or of offences incidental thereto.

Where the circumstances are such that a question could arise as to whether the accused was a thief or merely a possessor, it will be for the trier of fact upon a consideration of all the circumstances to decide which, if either, inference should be drawn. In all recent possession cases, the inference of guilt is permissive, not mandatory, and when an explanation is offered which might reasonably be true, even though the trier of fact is not satisfied of its truth, the doctrine will apply. [ 40 ] I conclude in the case at bar that the doctrine of recent possession does apply in this matter.

Not only am I not satisfied of the truth of the explanation offered by the Accused, I conclude that this explanation offered cannot reasonably be true. [ 41 ] I conclude that there is no air or reality with respect to the person identified by the accused as “Henry”, for whom no documentation or corroboration has been presented.

I conclude that the contradictions that defence counsel have pointed to are not significant, and that the only mistake that was made in the evidence was made by Constable Chiu when he said that there were five bundles of aluminum tubing, when the better view is that there were only three bundles.

The possible error as to whether or not the pickup truck in question was a half-ton, three-quarter ton, or one-ton can easily be explained away given that all of these vehicle sizes are of the same general type, and the pickup truck in question was correctly identified by colour and nature, even if not by exact weight. [ 42 ] As for the continuity defence, given that we are dealing with numerous bulky scaffolding tubing, the evidence is sufficient to prove beyond a reasonable doubt that Mr.

Shapko saw the three bundles in the Aluma Systems storage yard on Wednesday, February 28, 2001, and those same bundles went missing after the hole in the fence was discovered in that storage yard on March 2, 2001. [ 43 ] Once again given that we are dealing with a bulky item that does not have a ready after market, the fact that these items

ended up in the possession of the Accused for purposes of resale as scrap metal to General Scrap Iron and Metals Ltd. on March 2, 2001, a few days after the bundles went missing, is consistent with the doctrine of recent possession. [ 44 ] Since I have reserved on this matter given that it was at the end of the day on Thursday, March 20, 2003 when submissions were concluded, a further issue arose as to whether or not to issue a warrant for the Accused’s arrest at the end of the day.

I decided to issue such a warrant because the trial was being adjourned to another date, namely April 17, 2003 at 2 p.m. for my decision herein. I concluded that this is not the same situation as what faced me when I had to decide whether or not to proceed in the Accused’s absence after he absconded, or issue a warrant at that time for his arrest pursuant to

Section 475. [ 45 ] Having decided to proceed in the absence of the Accused given his waiver of his right to be present, the Court maintains continuing jurisdiction over the Accused for all continuations including this one. It would not make sense if

Section 475 forced the Court after it chose the option of continuing with the trial, to not have the additional power under its continuing jurisdiction over the Accused to order a warrant for his arrest for the purposes of this trial’s continuation.

While it is hoped that defence counsel can secure the Accused’s attendance when the Court next convenes on April 17, 2003 at 2 p.m., this Court has the power on any continuation to make further orders or directions which would in this case include the power to issue a warrant for the Accused’s arrest. [ 46 ] On counts 1 and 2, I conclude that the Accused’s testimony is both not to be believed, and also not reasonably capable of being true.

I conclude that the Crown can rely on the doctrine of recent possession, and the evidence taken as a whole raises no reasonable doubt as to the guilt of the Accused on counts 1 and 2. Accordingly I find the Accused guilty on both counts. [ 47 ] Sentencing in this matter will be dealt with on Thursday, April 17, 2003 at 2 p.m.. HEARD on the 17 th , 18 th , and 20 th day of March, 2003. DATED at Edmonton, Alberta this 3 rd day of April, 2003. __________________________ J.C.Q.B.A.