R. v. Ralston, 2019 ONCJ 488

ONTARIO COURT OF JUSTICE CITATION: R. v. Ralston , 2019 ONCJ 488 DATE: June 14, 2019 Sault Ste. Marie Court Information No. 2841 BETWEEN: HER MAJESTY THE QUEEN — AND — JEFFREY CRAIG RALSTON Before Justice John Kukurin Heard on May 17, 2019 and on written submissions of the Crown Reasons for Judgment released on June 14, 2019 M. Caputo................................................................................................ counsel for the Crown K.

Walker ..................................................... counsel for the defendant Jeffrey Craig Ralston KUKURIN J. [ 1 ] These are Reasons after trial with respect to charges against the accused under the following sections of the Criminal Code . Count 1: s.430(4) - Mischief Count 2: s.334(b) - Theft under $5,000 Count 3: s.348(1)(b) - Break and entry and theft Count 4: s.145(3) - Breach of a Recognizance of a bail condition [ 2 ] The crown proceeded by

summary conviction procedure under counts 1, 2 and 4. Count 3 is a straight indictable offence. The accused waived the reading of his election under count 3 and elected to be tried in this court. [ 3 ] An order was made excluding witnesses. [ 4 ] A number of exhibits were filed by the crown. Among these were: Exhibit 1 – copy of the accused’s Bail Recognizance dated October 4, 2018; Exhibit 2 – Photo book containing photos lettered “A” to “U” [ 5 ] The offences were alleged to have taken place at 96 Royal Oak Boulevard in Sault Ste. Marie on October 22, 2018.

The accused was apprehended following a call to police from a nearby resident who, while walking towards Pinewood School to vote, had observed

the accused walking from the direction of 96 Royal Oak Boulevard carrying a number of bags. Police were dispatched and discovered the accused near Pinewood school. He had with him, several backpacks and a wheeled suitcase. The accused was arrested. [ 6 ] Further police investigation found no one at the home at 96 Royal Oak Boulevard. However, the owner/occupant, Natalie Blake, drove back there from her workplace at Echo Bay after being contacted by the police. [ 7 ] Ms.

Blake testified that • She had locked the door before she had left for work that morning • She found the interior a mess, with items strewn all over the place • There was a broken window in the basement that had not been there when she left that morning to go to work • She and the accused had been in a relationship for about five years • On or about May 1, 2018, when she and the accused separated, she told the accused he was no longer welcome at her home, and she drove him to a Gore Street location from where he was walking to a friend’s • Ms.

Blake did not cohabit after their separation about May 1, 2018. • However, in cross examination, Ms.

Blake admitted that the accused “lived” in her home for about a week between the time of their separation and the date of this incident (October 22, 2018) • The accused was not in her home on October 22, 2018 with either her knowledge or permission or consent. • The suitcase that was in possession of the accused was hers, not his, and had been given to her by her mother. • The single speaker [Sylvania brand] in the suitcase was hers, not his. • The twin speakers [Sylvania brand] were also hers, not his. • The speakers were all in the home when she left that morning • The printer she identified for the police found in the possession of the accused was her son’s, and had been given to him by his grandmother • The cans of alcoholic beverages were hers and had been in her fridge; they were missing from her fridge after she drove back from work • The packages of “Putters” cigarettes were hers, not his, although both smoked the same brand. • When she and the accused separated, he did not take his work clothes.

She returned them to his employer, Triple M, later at its request [ 8 ] The accused’s version of events was recounted in his viva voce testimony. He claims that he has a daughter, Jordan Riley, whose custody he shared with Jordan’s mother, apparently on a week about basis. Jordan had resided with the accused and Ms. Blake and her two sons on the weeks he had her in his care. She had her own bedroom with her own furnishings and personal clothing and belongings. What became of this arrangement after the separation of the accused and Ms.

Blake was not provided in any of the evidence, but it is a reasonable inference that Jordan went to live with her mother, and her mother’s current partner (referred to as Jordan’s stepfather). In any event, contact was made between Jordan’s mother and Ms. Blake with a view to retrieving Jordan’s belongings from Ms. Blake’s home. Jordan, her mother and stepfather all attended at some point with a U-haul trailer and removed whatever Jordan wanted from Ms. Blake’s home. Ms.

Blake did not recall any subsequent requests or demands for any other items that might have been left behind. [ 9 ] So what was the accused doing at 96 Royal Oak Boulevard on Oct 22, 2018? According to his narrative, he had been visiting a friend “Lori” who resided further up Royal Oak Boulevard from the home of Ms. Blake. He had gone there the day before with two backpacks of dirty clothing he wanted to launder at her place. He had spent overnight with her where he had consumed about 15 to 20 presumably alcoholic drinks. He admitted that when he was arrested, he was “coming down from intoxication”.

On the day of October 22, 2018, he had left Lori’s place with his two backpacks, one of which contained a number of cans of alcoholic drinks (at least twelve were visible by count in Exhibit 2P), and the other of which may have contained up to six packs of “Putter” cigarettes. He was on his way to catch the bus. However, as he passed by Ms. Blake’s house, he went to the front door, knocked, and when no one responded, he entered the house through the front door which he claims was not locked.

His motive was to remove items of clothing left behind by his daughter which she had not previously retrieved, and about which he had (unsuccessfully) been trying to contact Ms. Blake to arrange to obtain.

[ 10 ] In the accused’s testimony, he testified to a number of things: • He did not break the basement window; he did not notice any broken glass • Ms. Blake’s front door was closed but not locked. • He gained entry through this front door. • He took from the home no items that were not his • He was not living at this home at the time of the incident • He knew that he was acting against Ms. Blake’s wishes in entering • He was the owner of the stereo speakers which he bought post separation • He brought the speakers to Ms.

Blake’s home when he lived there for a week sometime after the separation • He also claimed to own two televisions, which were located on a sofa, and were not removed by him from the home • He was the owner of the printer in the suitcase, and the suitcase itself, which he claimed was his daughter’s and had been his ex- wife’s • He only went into the bedroom his daughter had occupied • When he and Ms. Blake separated, he left with two suitcases, one containing his casual clothes, and the other his work clothes • He was aware that Ms.

Blake was not at her home when he entered • He was aware of his recognizance of bail (Exhibit 1) but believed it meant that he was not to be at her home only when she was in that home. • He had contacted the police to get help to get his, or his daughter’s residual belongings but was advised by police that it was a civil matter, and he had other remedies. • He and Ms. Blake separated in April 2018, not on May 1, 2018 Count 4: Breach of Recognizance of bail [S.145(3)] [ 11 ] I find the accused guilty of this offence. He knew Ms. Blake lived at 96 Royal Oak Boulevard at the time of this offence.

He was aware he was subject to a recognizance of bail which included the condition that he not be within 50 metres of any place he knew Ms. Blake to live. He was clearly breaching this condition, and his explanation that he believed this only meant when she was in that home is frankly incredible. He admittedly knew that Ms. Blake did not want him in her home, and his decision to enter that home was ill advised and illegal. Count 1: Mischief Under $5000 [s.430(4)] [ 12 ] I find the accused not guilty of this offence.

While the confluence of the various bits of evidence point to the accused as the person who broke the basement window, the evidence is all circumstantial. There were no fingerprints, footprints, nor any blood on the glass or anywhere else, nor any other indication that entry had been obtained through that window. At most, we have the investigating officer’s opinion that this was the point of entry, hence his conclusion that the breakage was caused by the accused. Contrary to this is the accused’s denial that he broke this window, and his assertion that he was too big to fit through that window.

Although I am highly suspicious, I find I have a reasonable doubt as to whether it was the accused who broke this window and thereby committed the offence of mischief. [ 13 ] While there is other evidence that the accused committed mischief within the house (e.g. items strewn all over, including in the kitchen, home ransacked and in disarray), the crown has not charged the accused with mischief based on these other factual allegations, but only on the window breakage. Accordingly, I do not take these into account on this charge of mischief.

Count 3: Break and Entry and Theft [s.348(1)(b)] [ 14 ] Whether or not the accused entered by a window is only of marginal relevance. It is conceded by him that he entered by the door

which he admits was closed, but claims was not locked. This is sufficient an admission to support a finding of break and entry. The homeowner/occupant testified that the door was locked by her when she left that morning to go to work. I prefer her testimony over that of the accused on this point as it is only common sense that she would leave her home locked during the day in her absence from it.

Moreover, the accused testified that he found the home unlocked at a time when he was “coming down from intoxication” having consumed 15 to 20 alcoholic beverages within the preceding day, hardly circumstances to create any reliability or even believability about what he says on this point. As I have said, whether the door was locked or unlocked is not the point. It is a break and entry in either case.

It would be even more egregious a break and entry if he actually gained entrance through a broken basement window, whether he broke it or not. [ 15 ] The accused is charged under s.348(1)(b), the text of which is: S. 348 (1) Every one who (

a) breaks and enters a place with intent to commit an indictable offence therein, (

b) breaks and enters a place and commits an indictable offence therein, or (

c) breaks out of a place after (

i) committing an indictable offence therein, or (ii) entering the place with intent to commit an indictable offence therein, is guilty (

d) if the offence is committed in relation to a dwelling-house, of an indictable offence and liable to imprisonment for life, and (

e) if the offence is committed in relation to a place other than a dwelling-house, of an indictable offence and liable to imprisonment for a term not exceeding ten years or of an offence punishable on

summary conviction. [ 16 ] The accused argues, through his counsel, that even if he did break into and enter Ms. Blake’s home, he cannot be found guilty under s.348(1)(

b) because he did not commit an indictable offence in that home. The crown alleges that he did so by stealing a number of items that were not his, and to which he had no right to remove. [ 17 ] I find that the accused did engage in theft after he broke into and entered Ms. Blake’s home. While the right to ownership and possession of the items in the backpacks and suitcase present a classic example of he said/she said, the fact remains that these items were all in the possession of Ms. Blake and located within her home prior to the removal of them by the accused.

It is up to the accused to rebut the presumption created by s.348(2)(b). In terms of rebutting this presumption, the evidence that the court heard about ownership by the accused is basically his say so.

He has not provided any independent evidence, for example: • By way of a sales receipt from the LCBO store that supports his statement that the cans of alcohol were purchased by him before the incident. • By evidence from his friend “Lori” that the cans of alcohol were the remains of what he had brought to her home, and that he left her home with them. • By evidence of his daughter or his ex-wife that the “rainbow” suitcase in his possession when arrested was theirs. • By any evidence from the seller(

s) to him of the speakers or the printer that these items were sold to him. • By evidence of his daughter that the items of clothing removed by him were hers. • By evidence of any police officers that he had tried to obtain their help to remove his residual belongings from Ms. Blake’s home. [ 18 ] While it is true that neither did Ms. Blake produce similar evidence that would establish her ownership of the items (except the packsacks) found in the accused’s possession when arrested, she had no way of knowing that her ownership and the removal of these items from her home would be an issue in this case.

Except for an alibi defence, the accused has no obligation to disclose his defence or his evidence to the crown in a criminal case. [ 19 ] I disbelieve the accused and prefer the testimony of Ms. Blake. Why?

[ 20 ] Firstly, Ms. Blake was very clear that the cans of alcohol were in her home when she left for work, and were not there when she was summoned home by police. The accused claims he was not in the kitchen; he only was in his daughter’s former bedroom. However, Ms. Blake claimed that the whole house was in disarray, including the kitchen, and it was not so when she had left that morning. That the kitchen was in disarray was confirmed by the observations given in the testimony of Officer M. Keating.

In fact, his testimony indicates that the home had been “ransacked”, was in general disarray, with things on the floor not normally on the floor. The inference I draw from this evidence is that the accused did not confine himself to his daughter’s former bedroom but roamed throughout the house. This clearly affects his credibility – adversely. [ 21 ] Secondly, among the items taken by the accused were a pair of sneaker style shoes that Ms. Blake identified as hers. One such was shown in each of the photos in Exhibits 2K, 2M and 2N of items recovered from the accused.

The accused could have no logical ownership claim to these shoes and their removal was clearly a theft. He gave no explanation why these shoes were in his possession. [ 22 ] Thirdly, his claim that he was in the home to get his daughter’s residual belongings does not have any aura of truth. His daughter and his ex-wife had been in the home pursuant to arrangements made by them with Ms. Blake to remove all of the daughter’s belongings. The accused is the only person who claims that the daughter had left some things behind and, presumably, advised him of this. The accused was charged in October 2018.

His trial was May 2019. He had plenty of time to have his daughter confirm this to the police or to confirm it at his trial. There was no evidence of either. Moreover, he never made any claim that his daughter had left behind any of the electronics that he had removed from the home on October 22, 2018. Nor of the suitcase found in his possession. Finally, his claim that the printer was his, was contradicted by the evidence of Ms.

Blake who indicated that it was her son’s printer, a printer which he used in his graphics work. [ 23 ] At the end of the day, I am left with a rebuttable presumption that the accused was in Ms. Blake’s home with the intent to commit an indictable offence therein. S.348 (2) For the purposes of proceedings under this section, evidence that an accused (

a) broke and entered a place or attempted to break and enter a place is, in the absence of evidence to the contrary, proof that he broke and entered the place or attempted to do so, as the case may be, with intent to commit an indictable offence therein; [ 24 ] I do not find that the accused has rebutted this presumption. Count 4: Theft under $5,000 [ 25 ] While I find the accused committed this offence for the reasons outlined above, I have no proof that the cumulative value of the items taken by him out of that home on October 22, 2018 exceeded $5,000.

I give him the benefit of the doubt and conclude that the items were considerably less than $5,000 in value. Also the crown only charged this offence and in any event, it is up to the crown to prove that the value exceeded $5,000. The only question in my mind is whether the charge of theft is subsumed in the charge of break, entry and theft, and whether a conviction should be registered in these circumstances. In my view, the charge of break, entry and theft subsumes a separate charge of theft where the evidence indicates that the theft was of the same items in both charges.

Therefore, I stay the separate charge of theft under pursuant to the Kineapple principle. Released: June 14, 2019 Justice John Kukurin