Her Majesty the Queen - v. -, 2016 SKPC 022

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 022 Date: February 16, 2016 Information: 37001537 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Gregory Kunard Appearing: C. Bliss For the Crown E. Little For the Accused JUDGMENT M.L.GRAY , J [ 1 ] Mr. Kunard was charged on May 30, 2015 with the following Criminal Code offences: 1. Committing a break and enter to Freedom Fitness and committing a theft therein contrary to s. 348(1)(b); 2. Possessing tools suitable for housebreaking contrary to s. 351(1); and

3. Possessing stolen property valued under $5000.00 contrary to s. 355. [ 2 ] The circumstances are straightforward. Shortly before four in the morning, Saskatoon Police were dispatched to investigate a male riding a bicycle and carrying what appeared to be a safe. At 3:50 a.m. they located the accused who had with him a safe, or drop- box, which he said he had found. The officer noted that Mr. Kunard was sweating profusely even though the temperature was only six degrees. He also appeared nervous and fidgety. When the officer tipped over the drop box, he heard coins rattling and saw documents drop out.

These documents linked the drop-box to the business of Freedom Fitness. [ 3 ] Mr. Kunard was detained, placed into the patrol car and taken to the business location. There, officers found that the glass in the west door had been broken and entry gained. The interior of the building was checked by police who found that no one was present and that there appeared to be a spot in the cabinet in the reception area that might have housed the safe found in Mr. Kunard’s possession. [ 4 ] In addition to the safe, Mr. Kunard had $96.55 in his possession.

Officers also found a screwdriver that was approximately 10 inches long tucked under the seat of the bicycle ridden by the accused. Mr. Erickson, the owner of Freedom Fitness, identified the safe and testified that it contained four days of deposits totalling between $400.00 and $480.00. When it was returned, there was $315.00 missing. [ 5 ] There is no dispute that on May 30, 2015, the business of Freedom Functional Fitness Inc. located at 102-20th Street West in Saskatoon, Saskatchewan was broken into and that a theft from the premises had occurred.

The business was not equipped with an alarm system, and the evidence establishes only that the break-in occurred sometime after 10:00 p.m. and before the time that the accused was seen riding a bike carrying the drop-box. Further, the accused acknowledges that he is guilty of possessing stolen property, that is, the safe and its contents as he was aware or was wilfully blind to the fact that it had been obtained by the commission of an indictable offence.

Further, the Court is satisfied that the value of the safe and its contents was less that $5000.00. [ 6 ] Thus, the only issues left for the Court to determine are whether the evidence establishes, beyond a reasonable doubt that: 1. the accused committed the break and enter and theft; and 2. that the accused possessed the screwdriver in circumstances giving rise to the reasonable inference that it had been used for the purpose of breaking and entering. [ 7 ] Defence counsel argues that the Court should accept the explanation of the accused that he found the safe hidden in an alley near to the business of Freedom Fitness, that the screwdriver was intended solely to replace the chain on his bicycle which frequently slipped out of place and that the money in his possession was legitimately his.

Further, she contends that the evidence does not meet the test required for proof by circumstantial evidence; that is, that the evidence is consistent with the guilt of the accused and inconsistent with any other rational conclusion. She submits this to be the case since the accused was found with less than $100.00, leaving over $200.00 of stolen money unaccounted for.

Crown counsel submits that the circumstantial evidence coupled with the recent possession of the safe does provide proof beyond a reasonable doubt. [ 8 ] I listened closely to the witnesses and have since taken the opportunity to review and carefully consider all of the evidence. After having done so, I find that I do not believe the evidence of the accused that he happened to espy the safe hidden in an alley where he just happened to stop to relieve himself; nor does this evidence leave me with a reasonable doubt.

It is implausible that he found what he described as a “big box” hidden in bushes and shrubbery in the darkness of an alley. Further, he gave no explanation why he would think that it was worth the trouble of carting it home on his bicycle in the middle of the night, particularly since, by his own words, it was heavy and required some exertion to do so. [ 9 ] However, this does not end the inquiry that the Court must make, as the most important issue is whether the evidence which the Court does accept is capable of proving the offence beyond a reasonable doubt. There is some incriminating circumstantial evidence

suggesting that the accused committed the break and enter: 1. He was found in possession of a drop-box that was proven to have come from the business premises; 2. He was only about 14 blocks away from the business when spotted by police; 3. He was sweating profusely although the temperature was only 6 degrees; 4. When the police activated the emergency lights of the patrol car, the accused dropped his bike and began to walk away; 5. In speaking to the police, he appeared nervous and fidgety; 6. He had fresh scrapes and nicks on his hands; and 6.

Cash was missing from the drop box and the accused had some cash on him. [10] Although all of these circumstances are suspicious, the issue turns on whether an inference of guilt can be drawn from recentpossession of stolen property. The doctrine of recent possession was set out by the Supreme Court of Canada in R v Kowlyk, (SCC), [1988] 2 SCR 59, at para 12: Upon proof of the unexplained possession of recently stolen property, the trier of fact may–but not must–draw an inference of guilt oftheft or of offences incidental thereto.

Where the circumstances are such that a question could arise as to whether the accused was a thiefor merely a possessor, it would be for the trier of fact upon a consideration of all of the circumstances to decide which, if either, inferenceshould be drawn.

In all recent possession cases the inference of guilt is permissive, not mandatory, and when an explanation is offeredwhich might reasonably be true, even though the trier of fact is not satisfied of its truth, the doctrine will not apply. [11] In the case at hand, there is no evidence before the Court as to exactly when the break in and theft occurred; the evidenceestablishes only that it was sometime within the six hours preceding the arrest of the accused.

Further, the complainant reported $315.00missing from the safe, yet the accused was found with only $96.55, which somewhat flies in the face of the theory that the accused hadvery recently committed the theft. He also has provided a plausible explanation for the source of the $96.55 by testifying that it was leftover from the social assistance cheque that he had received in the days before. Although one might speculate that there was anotherperson involved or that the accused had already spent some portion of the contents of the safe, there is no evidence to support thosehypotheses.

On the whole of the evidence which the Court does accept, there is a likelihood that the accused was responsible; however,given the discrepancy between the amount of cash missing and the amount of cash found on the accused and the lack of evidence of thespecific time of the break-in, this is a situation, in my view, where it would be dangerous to convict. The accused is accordingly foundnot guilty of the break and enter. [12] The next question is whether the screwdriver was in the possession of the accused for the purpose of housebreaking.

In orderto register a conviction , the Court must be satisfied, beyond a reasonable doubt, that: (

i) the accused possessed such an instrument; (ii)the instrument possessed was suitable for the prohibited purpose and (iii) the accused had the intention to use the instrument for theprohibited purpose: see R v Holmes, (SCC), [1988] 1 SCR914. [13] There is no doubt that the accused was in possession of a screwdriver and that, generically speaking, such a tool could be usedfor housebreaking. Did he intend it for that purpose? The evidence suggests that Freedom Fitness was entered by using a rock to breakthe glass in the door. Two small rocks were found immediately outside the door.

The broken door permitted the culprit to reach in andunlock it; thereby gaining entry. There is no evidence pointing to the use of a screwdriver. Here again, I do not accept, nor am I leftwith a reasonable doubt by his explanation that he possessed the screwdriver to pry the chain back on his bike. I noted, in examining thephotograph of the screwdriver, that it appeared clean and not soiled by grease as one would expect if it had been repeatedly used on abike chain as the accused described. However, as the Court has a reasonable doubt about the involvement of the accused in the break

and enter, a similar doubt attaches to the possession of the screwdriver and the accused is found not guilty of that count as well. [ 14 ] With respect to the charge of possession of stolen property, the Court is satisfied beyond a reasonable doubt of the guilt of the accused. Even on the circumstances under which he says he came into possession of the drop-box, he was wilfully blind to the likelihood that the item had been stolen and has acknowledged as much. He is found guilty as charged of that count. ______________________ M.L. Gray, J