R v Fedyck, 2018 MBCA 74

Citation: R v Fedyck, 2018 MBCA 74 Date: 20180726 Docket: AR17-30-08930 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Michel A. Monnin Madam Justice Holly C. Beard Madam Justice Jennifer A. Pfuetzner BETWEEN : her majesty the queen ) S. A. Inness ) for the Appellant Respondent ) ) J. M. Mann - and - ) for the Respondent ) darren edward fedyck ) Appeal heard: ) February 2 , 2018 (Accused) Appellant ) ) Judgment delivered: ) July 26 , 2018 PFUETZNER JA [ 1 ] The accused, a firefighter, was convicted of theft under $5,000 contrary to

section 334 (

b) of the Criminal Code (the Code ) for stealing money and jewellery from a woman found deceased in her suite (the deceased). He was sentenced to six months’ custody and ordered to pay restitution. He appeals his conviction, seeks leave to appeal his sentence and, if leave is granted, appeals his sentence. [ 2 ] The Crown’s case was circumstantial. Three firefighters who attended to the deceased’s suite with the accused gave evidence at trial regarding the events leading to his arrest. [ 3 ] The deceased was a 76-year-old woman who lived alone in a suite in a seniors’ apartment building.

The accused and three other firefighters had been dispatched to an “obvious death” call at the apartment building. Once there, all four firefighters entered the suite where they determined that the victim was deceased and had been for some time. Due to the strong odour in the suite, they left and returned to the hallway. [ 4 ] The firefighter who was responsible for preparing a report on the call realized that he had not obtained the deceased’s identification which he needed for the report.

The accused volunteered to return to the deceased’s suite to locate her health card even though this was not his job and the smell in the suite was overwhelming. [ 5 ] The firefighters waiting in the hallway noticed that the accused was alone in the suite longer than they thought necessary to locate the identification. Two of them went back into the suite and found the accused carrying the deceased’s purse and health card. He appeared to be nervous. One of the firefighters noticed the accused putting his fire-resistant glove into his pocket.

He testified that there was no reason for the accused to have his fire glove out of his pocket on a medical call. After leaving the deceased’s suite, the crew waited in the lobby of the building for the police to arrive. The accused volunteered to carry all of the group’s equipment back to the fire truck by himself. This was usually a shared task. [ 6 ] The firefighters became suspicious. While the accused and one of the firefighters returned to the suite to check the deceased for rigour mortis, the other two went to the fire truck.

They inspected the accused’s fleece jacket, which had been left tightly rolled in the corner of a seat. The pocket of the fleece contained between $800 to $1,000 cash and two gold necklaces. One of the firefighters described the jewellery as “something [that] an older lady would wear” and that one of the necklaces “had a very old, like a claw type thing with . . . some kind of ruby in it, or a coloured thing.” The other firefighter’s description was that “[i]t appeared to be an elderly person’s [jewellery], not something a young person would wear.

Very tarnished and kind of like a flowery, pearly thing hanging on a chain”. One of the firefighters took a photograph of the cash and jewellery with a cell phone. The photograph shows $100 and $5

bills together with $50 and $20 bills. [7] They confronted the accused later that day at the fire station and he gave an explanation to the effect that the cash andjewellery were his. He said that he had the cash to pay for vehicle repairs that one of the firefighter witnesses, Chris Wagner, wasplanning to do for him and that he intended to sell the jewellery for cash as he no longer wore it. [8] The deceased’s daughter testified that her mother usually had substantial amounts of money because she paid all ofher bills in cash.

The deceased’s daughter said it was “[a] little odd” that there was no money, other than some coins, in the deceased’swallet. She testified that her mother had several necklaces that looked exactly like one in the photograph and others that were verysimilar in style to the ones in the photograph. [9] After reviewing the evidence in detail, the trial judge instructed himself on the Crown’s burden of proof in acircumstantial case, stating: The Crown is required to prove the case beyond a reasonable doubt.

In cases of circumstantial evidence, the court must look at theevidence as a whole, and determine whether the only rational conclusion that can be drawn is one of guilt. If not, then I must acquit. [10] The trial judge considered the defence argument that there was a reasonable alternative explanation for the accused’spossession of cash and jewellery that day in the fire truck.

The trial judge rejected this argument, saying that, “It does not make sensethat [the accused] would have that sum of money unattended in the fire truck while on a call for service” and that, “It defies logic that[the accused] would bring jewellery he planned on selling into the fire hall at all or to leave it in an unattended, unlocked fire vehicle.” [11] The trial judge convicted the accused, concluding: Each piece of evidence on its own certainly is not a strong conclusion as to innocence or guilt.

But when [the accused]’s actions aretaken into consideration as a whole, and together with his explanation when confronted, both about the money and the necklaces, theonly rational explanation is that he stole the money from [the deceased]. [12] At the sentencing hearing, the Crown sought a sentence of nine months’ custody. The accused sought either asuspended sentence or a conditional sentence of between three and four months. The trial judge noted that the accused had previouslyreceived a conditional discharge for fraud under $5,000 and for failing to comply with a condition of an undertaking.

He also consideredthat, as a result of the offence, the accused lost his job and faced negative public scrutiny. The trial judge took into account that theaccused was a support for his family. However, the trial judge concluded that a sentence of six months’ custody and restitution in theamount of $800 were necessary to address the sentencing principles of deterrence and denunciation.

Issues [13] The issue on the conviction appeal is whether the verdict is unreasonable or cannot be supported by the evidence. [14] As for the sentence appeal, the accused raises two issues: first, whether the trial judge erred in his analysis of themitigating and aggravating factors; and second, whether the trial judge erred in analysing whether a conditional sentence wasappropriate.

Analysis Unreasonable Verdict [15] The accused’s first argument is that the trial judge erred by admitting and relying on the opinion evidence of thefirefighters as to how firefighters normally behave while on duty and as to the type or style of the jewellery found in the accused’spocket. [16] The Crown says that laypeople can, and regularly do, give opinion evidence, such as describing the condition or age ofeveryday items or describing a person’s behaviour and emotional state.

The Crown also notes that no objection was made to theadmissibility of the firefighters’ opinion evidence at trial. [17] The standard of review for the admissibility of evidence is described in R v Scott, 2013 MBCA 7 (at para 35): “To beadmissible, evidence must be relevant and not otherwise excluded on any ground of law or policy.

The question of whether evidence isrelevant and, therefore, admissible is a question of law”. [18] As a question of law, a decision on the admission of evidence is reviewed on the standard of correctness. [19] There has traditionally been a long list of subjects upon which lay witnesses can provide opinion evidence, includingthe “emotional state of a person” and “the condition of things—e.g. worn, shabby, used or new” (Graat v The Queen, (SCC), [1982] 2 SCR 819 at 835). The list is not exhaustive (see ibid).

Moreover, in Graat, the Court stated the principle that, if layopinion evidence is relevant, it should only be excluded based upon “a clear ground of policy or of law” (at p 839). The Court held thatthe proffered lay opinion evidence regarding the level of intoxication of the accused was admissible noting, “The witnesses had anopportunity for personal observation. They were in a position to give the Court real help. They were not settling the dispute. . . . Thejudge could accept all or part or none of their evidence” (at p 836). [20] In my view, the evidence given by the firefighters was admissible.

As noted in Graat (at p 835): “The line between‘fact’ and ‘opinion’ is not clear.” Even if correctly characterised as opinion evidence, the evidence of the firefighter witnesses eitherfalls into one of the established admissible categories or is closely analogous. The evidence was relevant and involved the witnesses’personal observations. At the same time, the evidence did not touch on the issue that the trial judge had to decide as the firefighters werenot purporting to give their opinions on whether the accused was guilty of the offence. They were merely describing the events

surrounding the accused’s attendance at the deceased’s suite. I would not accede to the accused’s first argument. [ 21 ] Second, the accused argues that, on the evidence, it was not reasonably open to the trial judge to conclude that ownership and theft of the money and jewellery had been proven beyond a reasonable doubt. He submits that the trial judge failed to properly consider other plausible theories or reasonable possibilities, such as that the items were owned by the accused.

In essence, the accused seeks to review, individually, each piece of evidence relied upon by the trial judge and to suggest that there is a reasonable alternative theory for each piece. [ 22 ] The Crown submits that the test for whether the verdict is unreasonable is not whether there is an alternative explanation for each piece of evidence, but whether the evidence as a whole could reasonably satisfy a trier of fact of the guilt of the accused beyond a reasonable doubt. [ 23 ] A verdict is reasonable if it is one that a properly instructed jury acting judicially could reasonably have rendered ( see R v Biniaris , 2000 SCC 15 ) .

The Supreme Court of Canada, in R v Villaroman , 2016 SCC 33 , further refined the test when the conviction is based upon circu mstantial evidence, stating (at para 55): “Where the Crown’s case depends on circumstantial evidence, the question becomes whether the trier of fact, acting judicially, could reasonably be satis​fied that the accused’s guilt was the only reasonable conclusion available on the totality of the evidence”. [ 24 ] The role of an appellate court, in reviewing a c onvicti on based on circumstantial evidence, is to focus on “the question of whether the inferences drawn by the trial judge, having regard to the stan​dard of proof, were reasonably open to him” ( Villaroman at para 67). [ 25 ] It is not this Court’s place to usurp the role of the trial judge and to retry the case.

An appellate court should not substitute its assessment of the evidence for that of the trial judge where the trial judge’s conclusion is reasonably open to him or her. As stated by Cromwell J in Villaroman (at para 56): “Most importantly, ‘(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.’” [ 26 ] In convicting the accused, the trial judge applied the correct legal test. He asked himself whether guilt was the only reasonable conclusion based on the totality of the evidence.

The trial judge also considered and rejected the alternative inferences put forward by the accused. [ 27 ] I have had the benefit of reading the reasons of my colleague, Beard JA. In her view, the trial judge misapprehended evidence and, in drawing certain inferences, engaged in impermissible speculation. [ 28 ] For example, in my colleague’s view, it was a clear misapprehension of the evidence for the trial judge to conclude that, “There is absolutely no particular reason [the accused] ought to have had that sum of money” with him on a call for service.

It is true that the trial judge accepted the evidence of Wagner that he had had several discussions with the accused regarding work that he was going to pay Wagner to do on his vehicle. However, the trial judge did not find that this evidence provided a reasonable explanation for why the accused left a significant sum of money unattended in the fire truck on that particular day. With respect, this is not a misapprehension of the evidence.

Rather, the trial judge declined to draw an inference that was urged on him and he was entitled to do so. [ 29 ] My colleague concludes that the trial judge engaged in impermissible speculation when he found, without evidence, that “the money was not consistent with someone just having taken money out of the bank machine” and when he found that, “It defies logic that [the accused] would bring jewellery he planned on selling into the fire hall at all or to leave it in an unattended, unlocked fire vehicle.” [ 30 ] In my respectful view, it was not speculative for the trial judge to have drawn the inference that automated bank machines do not dispense bills in all of the denominations shown in the photograph without the need for expert evidence.

Nor was it speculative for him to conclude that it made no sense for the accused to bring the jewellery with him to work and leave it in the fire truck. In drawing these reasonable inferences, the trial judge relied on logic, common sense and experience. [ 31 ] My colleague cites gaps in the Crown’s evidence as one of the reasons for concluding that there are reasonable alternatives to guilt. For example, the Crown did not produce banking records of the deceased showing when she last withdrew cash from the bank.

Nor did the Crown subpoena the accused’s bank records to disprove his explanation of how he came to be in possession of the money on the day in question. However, with respect, this is the same error made by the appellate court in Villaroman . In Villaroman , there were gaps in the Crown’s evidence about the accused’s possession and control of a computer that contained child pornography. The Court of Appeal, in its analysis of these gaps, engaged in speculation and, in effect, retried the case.

In setting aside the acquittal entered by the Co urt of Appeal, Cromwell J said, “In my view, while not every trier of fact would inevitably have reached the same conclusion as did the trial judge, that conclusion was a reasonable one” (at para 69). [ 32 ] In Villaroman , the Court of Appeal’s analysis overlooked the important point that it is for the trier of fact “to draw the line in each case that separates reasonable doubt from specula​tion” (at para 71). Cromwell J wrote ( ibid ): “The trier of fact’s assessment can be set aside only where it is unreasonable.

While the Crown’s case was not overwhelming, my view is that it was reasonable for the judge to conclude that the evi​dence as a whole excluded all reasonable alterna​tives to guilt.” [ 33 ] This statement concisely describes my conclusion in this case. In my view, the decision of the trial judge was reasonably open to him on the evidence. Accordingly, I would dismiss the conviction appeal. Sentence Appeal [ 34 ] Appellate courts afford a high degree of deference to sentencing decisions.

A court of appeal should only intervene to vary a sentence imposed by a trial court if there has been an error in principle, a failure to consider a relevant factor, or an erroneous

consideration of an aggravating or mitigating factor which has had a material impact on th e sentence, or if the sentence is demonstrably unfit ( see R v Lacasse , 2015 SCC 64 a t paras 41-44 ). [ 35 ] The accused’s first argument is that the trial judge erred in citing

section 718.2(a)(iii.1) of the Code as a statutorily aggravating factor. This

section states: “evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation, . . . shall be deemed to be aggravating circumstances ”. [ 36 ] The accused states that there was no evidence that the offence had a significant impact on the deceased. [ 37 ] Second, the accused asserts that the trial judge erred in finding that there were “no true mitigating factors”.

The accused points to several mitigating factors relating to his personal circumstances, including significant community support; being a caregiver to his parents, daughters and step-child; loss of his employment as a firefighter; and media coverage of the case which has brought embarrassment to him and his family. [ 38 ] Third, the accused argues that the trial judge failed to apply the correct analysis in determining whether he should serve his sentence in the community or in custody. [ 39 ] The Crown says that, if any errors were made by the trial judge, they did not have an impact on the sentence imposed, which the Crown asserts is fit in the circumstances. [ 40 ] In his reasons, the trial judge cited

section 718.2(a)(iii.1) of the Code , along with several other provisions of sections 718 - 718.2 of the Code , as being the “relevant sections of the Criminal Code on sentencing”. I agree with the accused that there is no evidence that the offence had a significant impact on the deceased.

However, when the reasons for sentence are read in their entirety, it is clear that the trial judge was actually identifying the vulnerability of the deceased as an aggravating factor and mistakenly described this vulnerability as a statutorily aggravating factor when he stated, “There are two statutorily aggravating factors in this case, the first that the victim was the most vulnerable of victims.” [ 41 ] The vulnerability of the deceased was correctly treated by the trial judge as an aggravating factor despite it not being set out as such in the Code .

In my view, although the trial judge inadvertently referred to

section 718.2 (a)(iii.1) of the Code in his reasons, this error had no impact on the sentence imposed. [ 42 ] As for the trial judge’s treatment of mitigating factors, I agree that the trial judge could have chosen his words more carefully when he said, “There are no real mitigating factors in this case.” However, he did in fact consider all of the factors that the accused argues are mitigating when he said: Some other factors that I have considered include the letters of support and certificates of his training in firefighting.

I’m also told that he provides support to his family. [The accused] has also been the subject of media scrutiny, and as a result of his arrest and conviction, he’s lost his employment. [ 43 ] In the result, the trial judge found that the aggravating factors of the vulnerability of the deceased and the serious breach of trust by the accused outweighed the other factors.

He was entitled to come to this conclusion. [ 44 ] Finally, I am not persuaded by the accused’s argument that the trial judge erred in his approach to analysing the appropriateness of a conditional sentence or that he misapplied R v Proulx , 2000 SCC 5 . [ 45 ] The trial judge began his analysis by determining that neither a suspended sentence nor a penitentiary sentence would be appropriate. The trial judge determined that a custodial sentence of six months would be fit.

He then turned to determine whether a conditional sentence order was appropriate, stating the issue as being “whether serving his sentence in the community would be consistent with the fundamental purpose and principles of sentencing as articulated earlier.” The trial judge had already determined that “denunciation and deterrence” were the primary objectives of sentencing in this case. [ 46 ] The trial judge was of the view that, in the circumstances of this case, a conditional sentence of any length could not achieve the objectives of denunciation and deterrence.

He said: [A] very strong message has to be sent that people who are entrusted to enter homes of vulnerable victims, such as emergency services personnel, has to be sent, and such a message cannot be adequately demonstrated by allowing [the accused] to serve his sentence in the community. . . . This is one of those cases where the only appropriate level of denunciation and deterrence can be achieved effectively by incarceration in custody. [ 47 ] In my view, the trial judge performed the required analysis. His decision is entitled to deference and the sentence he imposed is not demonstrably unfit.

Conclusion [ 48 ] I would dismiss the conviction appeal. I would grant leave to appeal sentence and I would dismiss the sentence appeal. JA I agree: JA

BEARD JA (dissenting): The Issues [49] The accused is appealing both his conviction for theft under $5,000 (by indictment) (section 334(

b) of the CriminalCode) and his sentence of six months’ custody and restitution. I agree with my colleagues that the sentence appeal should be dismissed. I have come to a different conclusion as to the appeal from the conviction. [50] The accused was convicted of theft by stealing money and jewellery, the property of the deceased, while he was presentin her suite in his role as a firefighter. There was no direct or objective evidence in this case to establish that anything was stolen. Rather, all of the evidence was circumstantial and arose from suspicions and feelings on the part of the accused’s co-workers.

Theaccused did not testify at the trial, but his position regarding the allegation of theft was in evidence through the testimony of his co-workers as a result of the accused having been confronted by them at the fire station shortly after leaving the deceased’s suite. The Law [51] I agree with my colleagues that the main ground of appeal in relation to the conviction is that the verdict wasunreasonable and not supported by the evidence.

In R v Villaroman, 2016 SCC 33, the Supreme Court of Canada reviewed in detail theprinciples related to appellate review of the reasonableness of a conviction based on circumstantial evidence. Cromwell J, for the Court,stated as follows (at para 55): A verdict is reasonable if it is one that a prop​erly instructed jury acting judicially could reason​ably have rendered: R. v. Biniaris,2000 SCC 15, [2000] 1 S.C.R. 381. Applying this standard requires the appellate court to re-examine and to some extent reweigh andconsider the effect of the evidence: R. v. Yebes, (SCC), [1987] 2 S.C.R. 168, at p. 186.

This limited weighing of theevidence on appeal must be done in light of the standard of proof in a criminal case. Where the Crown’s case depends on circumstantialevidence, the question becomes whether the trier of fact, acting judicially, could reasonably be satis​fied that the accused’s guilt was theonly reasonable conclusion available on the totality of the evidence: Yebes, at p. 186; R. v. Mars (2006), (ON CA),205 C.C.C. (3d) 376 (Ont. C.A.), at para. 4; R. v. Liu (1989), 1989 ABCA 95 , 95 A.R. 201 (C.A.), at para. 13; R. v. S.L.R.,2003 ABCA 148 ; R. v.

Cardinal (1990), 1990 ABCA 115 , 106 A.R. 91 (C.A.); R. v. Kaysaywaysemat (1992), (SK CA), 97 Sask. R. 66 (C.A.), at paras. 28 and 31. [52] I agree with my colleague that the trial judge correctly summarized the applicable law, the trial judge having stated: The Crown is required to prove the case beyond a reasonable doubt. In cases of circumstantial evidence, the court must look at theevidence as a whole, and determine whether the only rational conclusion that can be drawn is one of guilt.

If not, then I must acquit. [53] The accused also argues that the verdict was unreasonable because it rested, in part, on factual errors and materialmisapprehensions in the evidence. For this he relies on the decision in R v Lohrer, 2004 SCC 80. Binnie J, in a unanimous decision,adopted the test for a miscarriage of justice based on a misapprehension of the evidence set out by Doherty JA in R v Morrissey (1995), (ON CA), 97 CCC (3d) 193 (at p 221): Where a trial judge is mistaken as to the substance of material parts of the evidence and those errors play an essential

part in thereasoning process resulting in a conviction, then, in my view, the accused’s conviction is not based exclusively on the evidence and isnot a “true” verdict. . . . If an appellant can demonstrate that the conviction depends on a misapprehension of the evidence then, in myview, it must follow that the appellant has not received a fair trial, and was the victim of a miscarriage of justice.

This is so even if theevidence, as actually adduced at trial, was capable of supporting a conviction. [54] Binnie J also emphasized that this test described a stringent standard, because the misapprehension of the evidence mustgo to the substance rather than to detail, and the errors must play an essential part not just in the narrative of the judgment but ‘“in thereasoning process resulting in a conviction”’ (at para 2). [55] In Villaroman, the Supreme Court of Canada also explained the law regarding circumstantial evidence and reasonableinferences as they relate to conclusions alternative to guilt (at paras 35-38): In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts. . . .

Requiringproven facts to support explanations other than guilt wrongly puts an obligation on an accused to prove facts and is contrary to the rulethat whether there is a reasonable doubt is assessed by consider​ing all of the evidence. The issue with respect to circumstantial evidenceis the range of reasonable inferences that can be drawn from it. If there are reasonable inferences other than guilt, the Crown’s evidencedoes not meet the standard of proof be​yond a reasonable doubt. A certain gap in the evidence may result in inferences other than guilt.

But those inferences must be reasonable given the evidenceand the absence of evidence, as​sessed logically, and in light of human experience and common sense. When assessing circumstantial evidence, the trier of fact should consider “other plausible theor(ies)” and “other reasonablepossibilities” which are inconsistent with guilt. . . . I agree with the appellant that the Crown thus may need to nega​tive thesereasonable possibilities, but certainly does not need to “negative every possible conjecture, no matter how irrational or fanciful, which

might be consistent with the innocence of the accused”. “Other plausible theories” or “other reasonable possibilities” must be based on logic and experience applied to the evi​dence or the absence of evidence, not on speculation. Of course, the line between a “plausible the​ory” and “speculation” is not always easy to draw.

But the basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty. [ 56 ] These are the principles that must be applied to determine whether the trial judge erred in failing to find that “the circumstantial evidence, viewed logically and in the light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty” ( Villaroman at para 38).

Analysis [ 57 ] As stated in Villaroman , a determination of the reasonableness of the verdict and whether the trier of fact, acting judicially, could reasonably be satisfied that the accused’s guilt was the only reasonable conclusion available on the totality of the evidence requires a re-examination and re-weighing of the evidence. To do this, I will review each of the trial judge’s findings and the relevant evidence. [ 58 ] The essence of the trial judge’s decision is as follows: Each piece of evidence on its own certainly is not a strong conclusion as to innocence or guilt.

But when [the accused]’s actions are taken into consideration as a whole, and together with his explanation when confronted, both about the money and the necklaces, the only rational explanation is that he stole the money from Ms. Travners (sic). There is absolutely no particular reason [the accused] ought to have had that sum of money in those particular denominations in the fleece jacket inside the truck. They are not, the money was not consistent with someone just having taken money out of the bank machine.

It does not make sense that [the accused] would have that sum of money unattended in the fire truck while on a call for service. It does not make any sense that through the course of his duties, that [the accused] would not have mentioned the funds for the vehicle repair to Mr. Wagner, despite the non-urgent nature of their duties that morning. It would be speculative to conclude [the accused] was trying to move the work along, that is with the vehicle. It defies logic that [the accused] would bring jewellery he planned on selling into the fire hall at all or to leave it in an unattended, unlocked fire vehicle.

This crew works together and they depend on their routine for their safety and to maintain the structure of the organization. These particular men (sic) had been working together for some time and were aware when someone, as [the accused] was, acts out of the norm. [The accused] took too long inside that small apartment with a smell that was so bad that the others did not want to go back inside. In addition, he had his turnout gloves out of his pocket when he was already wearing blue latex gloves in a suite with a deceased person who had not been found for some time, with that smell as I have already indicated.

This coupled with the taking of the equipment back to the truck alone, and voluntarily, the issue as I have described the fact Ms. Travner relied on cash for her day to day expenses, and had none when her wallet was found, this together with the similar nature of the jewellery, which was her preferred style. The only rational conclusion, based on the totality of the evidence, is that [the accused] is guilty as charged. [ 59 ] The evidence came from the deceased’s daughter and the three firefighters who were on the scene with the accused, being Davis, Wagner and McLeod, who was the supervisor.

Christie, another firefighter, was present at the fire station and participated in the meeting with the accused upon their return from the deceased’s suite. The trial judge had this to say about their testimony: “I found that all of the witnesses who testified in this case were credible. Mr. Wagner, Mr. Davis, Mr. McLeod and Mr. Christy [sic], all told honestly of their accounts of the events as they perceived them.” [ 60 ] The details of their evidence were often inconsistent, which is understandable because no one was taking notes.

That said, the trial judge did not explain how he reconciled those inconsistencies in making his findings. (

i) There is absolutely no particular reason [the accused] ought to have had that sum of money in those particular denominations in the fleece jacket inside the truck. [ 61 ] The accused told his co-workers that he had taken the money out of his account to pay for truck parts, which were for repairs to be done by Wagner, one of the other firefighters. Wagner testified and confirmed that he had agreed to fix the accused’s truck and had given him a list of the parts that he had to buy in advance. Wagner also testified that the price for the parts would be in the range of $800 to $900.

They had not set a date for the work to be done, but clearly that could not occur until after the accused had purchased the parts. [ 62 ] McLeod and Davis both testified that the accused said that he had cash because he did not have a credit card, so he paid for his purchases with cash. [ 63 ] Thus, it was a clear misapprehension of the evidence for the trial judge to conclude that there was absolutely no particular reason the accused ought to have had that sum of money.

Even if he did not believe the accused’s explanation, he did accept Wagner’s testimony as being credible, and that testimony explained the reason that the accused had that sum of money. (ii) [T]he money was not consistent with someone just having taken money out of the bank machine. [ 64 ] While the Crown made this argument at the trial, it is completely speculative as there was absolutely no evidence to support it, in that there was no evidence as to what kind of money, meaning denominations of bills, is dispensed by a bank machine, or whether all bank machines dispense bills in the same denominations.

In fact, while McLeod testified that the accused said that he withdrew the money from a bank machine, Wagner said that he had “picked it up from the bank,” with no indication as to whether it was

withdrawn from a bank machine or by going into a bank branch. [ 65 ] The evidence was also inconsistent as to when the accused withdrew the money. Wagner testified that the accused said that he took the money out “that morning or the previous night,” while McLeod said that he did not say when he took it out.

In addition to having no evidence as to the denominations of bills that are dispensed by a bank machine, there was no evidence as to whether all of the money was withdrawn at the same time or whether the accused already had some bills to which he added the withdrawn money, and no evidence as to whether the accused made any purchases between the withdrawal of the money and when it was found.

These details are all important to the question of whether the denominations of the bills found in the accused’s pocket were consistent with having just been taken out of a bank machine. [ 66 ] This argument was purely speculative, as was the trial judge’s finding that the money was not consistent with someone having just taken money out of the bank machine, and constitutes a misapprehension of the evidence. (iii) It does not make sense that [the accused] would [have] that sum of money unattended in the fire truck. [ 67 ] McLeod and Davis testified that they went to the fire truck to check the accused’s fleece jacket, which was balled up in the corner of his seat.

They found the money and jewellery in a pocket. There was evidence that the fire truck was not locked, and the Crown argued that it did not make sense that the accused would leave property of that value unattended in an unlocked fire truck. [ 68 ] If the accused had the items in his pocket when he got to work, he could either take them with him or leave them at the fire station. The evidence was that, while each firefighter had his/her own locker, most of them were not locked.

There was no evidence as to whether the accused had a lock on his locker or whether he even owned a suitable lock, but, if most of the lockers were not locked, it was more probable that his was not locked. [ 69 ] McLeod testified that he had heard stories about an acting lieutenant potentially stealing from the fire station, and Davis testified that he had heard a few stories of break-ins at fire stations.

The trial judge rejected this evidence on the basis that “it was unclear from the evidence if this actually happened.” The issue is not whether it actually happened, but whether these stories would call into question the wisdom of leaving valuable goods unattended at the fire station. [ 70 ] The evidence indicates that neither option—leaving the items at the fire station or leaving them hidden in the fire truck —was particularly secure.

It does not support a finding that “[i]t does not make sense that [the accused] would have that sum of money unattended in the fire truck”. (iv) It does not make any sense that through the course of his duties, that [the accused] would not have mentioned the funds for the vehicle repair to Mr. Wagner, despite the non-urgent nature of their duties that morning.

It would be speculative to conclude [the accused] was trying to move the work along. [ 71 ] Wagner’s evidence was as follows: - that the accused had spoken to him “months before, two weeks before” and that they had had “multiple, multiple conversations” about Wagner fixing the accused’s truck; - that the accused “was hounding” him to get the work done and had even offered to help him; and - that he had already inspected the accused’s truck and given him a list of parts that he had to buy before the work could be done. [ 72 ] All of this is consistent with, and supportive of, the accused’s position that he had withdrawn the money to get the parts so that the repair work, which had been discussed over a period of months, could be moved along.

Given this factual basis, this position was not speculative, and the trial judge erred in so finding. [ 73 ] It was, however, speculative for the trial judge to find that, if the accused had taken out the money, he would have told Wagner that morning. Wagner needed to know that the accused actually had the parts (which may have needed to be ordered) so that the work could be scheduled, not that he had withdrawn money to purchase the parts. Thus, it was speculative for the trial judge to reject the accused’s explanation on the basis that he had not told Wagner that morning that he had the money for the parts. (

v) It defies logic that [the accused] would bring jewellery he planned on selling into the fire hall at all or to leave it in an unattended, unlocked fire vehicle. [ 74 ] This finding, again, is speculative and not based on any objective facts. The accused said that he had the jewellery with him because he intended to sell it. To do that, he had to either leave it at the fire hall or take it with him in the fire truck. There may have been many reasons why he had the jewellery with him, the most likely being that he intended to sell the items on his way home from work.

There was no evidence as to where the accused lived (in Winnipeg, on the outskirts of the city or in the country), what banking facility he used to withdraw the money (information that the Crown could have obtained but did not) or where he had to go to get the parts or sell the jewellery.

The point is that there is no objective, factual basis for the trial judge’s conclusion that it defied logic that the accused would either bring the jewellery into the fire hall or leave it unattended in the fire vehicle, given that he had taken it with him in order to sell it. (vi) [The firefighters] were aware when someone, as [the accused] was, acts out of the norm. [The accused] took too long inside that small apartment with a [bad] smell. [ 75 ] McLeod wondered why it was taking the accused so long in the suite, which later became a source of suspicion. [ 76 ] It is helpful to review the evidence as to why the accused was in the suite.

The three firefighters at the scene all testified that, as a result of the deceased having been dead for a significant period of time, there was a very strong, foul odour from the

decomposition in both the suite and in the hallway. Initially, they all went into the suite and, when it was clear that the occupant had been dead for some time, they left as quickly as possible due to the strong odour. In the hall, Wagner was filling out a form on a laptop and realized that he needed information from the deceased’s health card. He asked that someone else go in and get it because he did not want to, due to the smell, so the accused agreed to go in. In fact, Wagner testified that, as he and the accused were in the suite checking the degree of rigour mortis, he was gagging from the smell.

Wagner agreed that the accused was the next lowest in seniority “to do the dirty work”. [ 77 ] The first issue is whether the evidence supports McLeod’s suspicion that the accused was in the suite for a long time or too long. The accused was looking for a health card, with no information as to where it might be located. Was it in a purse or wallet? Was it in a drawer or a box? Was it in the living room, bedroom or kitchen? McLeod and Wagner both testified that the accused was in the suite for approximately five minutes.

The evidence was that the suite was very messy and there were boxes everywhere, especially in the bedroom, which was confirmed by the deceased’s daughter.

McLeod agreed that looking for an item in a messy drawer could take a few minutes and that the accused “was looking for something in an entire apartment, that it might take four or five minutes”, while Wagner said that it could take a few minutes to find a purse. [ 78 ] Thus, while it may have seemed to those in the hall who wanted to get away from the smell that the accused was taking a long time, the evidence does not support a finding that “[the accused] took too long inside that small apartment”. (vii) [H]e had his turnout gloves out of his pocket when he was already wearing blue latex gloves. [ 79 ] Wagner thought that it was suspicious that, as he was leaving the bedroom, he saw the accused putting his turnout glove into his cargo pocket.

Davis testified that he did not see this happen. However, as Davis and Wagner entered the suite, they saw the accused holding a purse/wallet in one hand and a health card in the other. He indicated that he had found the health card and they then left the suite. When the accused came out of the suite, McLeod saw him holding the purse/wallet and health card in his hands. [ 80 ] There was evidence that some firefighters carried their latex gloves in the cargo pockets with their turnout gloves and that the accused was wearing latex gloves when he was looking for the health card.

There is no evidence as to when he put those gloves on and no evidence that anyone saw him put anything other than his turnout glove, in particular cash or jewellery, in his pocket. (viii) [T]aking of the equipment back to the truck. [ 81 ] The Crown’s position was that it was suspicious that the accused took the three pieces of the equipment back to the fire truck himself, when it was usually done by each firefighter taking one piece back. After the accused found the health card, the firefighters returned to the lobby to await the arrival of the police. Wagner was entering information on the laptop.

The accused then took the three bags containing medical equipment, including an oxygen tank, back to the fire truck.

There was no agreement as to the total weight of the equipment, but all agreed that the bags had straps or handles to facilitate carrying them and that one man could carry all of them with no difficulty. [ 82 ] While Wagner testified that this was suspicious, McLeod was asked in cross-examination, “it’s not unusual for [the accused] to grab the gear and take it back to the truck”, and his answer was, “[s]een it done on many times.” If the accused had taken the equipment back on his own on many occasions, it would not be out of the ordinary or suspicious that he did it on this occasion. [ 83 ] The trial judge did not deal with this conflicting evidence at all in his reasons. (ix) [The deceased] relied on cash . . . and had none when her wallet was found. [ 84 ] The deceased’s daughter testified that, when she went through her mother’s effects, there was only a small amount of cash in her wallet and no folding money.

She said that she thought that that was “odd”, because her mother paid cash for her living expenses, including her rent. [ 85 ] The deceased’s daughter also testified that her routine with her mother was to take her to the bank at the beginning of each month to withdraw money and then to shop, but she had been away so they had not yet gone. The date of the events in question was October 2, 2015, so the death occurred towards the end of September.

Thus, the deceased would have used her early September withdrawal to pay her rent and September expenses, and she had not yet gone to the bank with her daughter in early October to withdraw money for her October expenses. [ 86 ] While the deceased’s daughter said that her mother sometimes went to the bank on her own, it would have been easy for the Crown to resolve this issue by getting the deceased’s bank records to establish the history of her banking in the month preceding her death. This would have shown whether it was more or less likely that she had any cash in her wallet at the time of her death.

The Crown has not explained why it did not produce that evidence. (

x) The deceased had jewellery similar to that in the accused’s possession. [ 87 ] The deceased’s daughter had already cleared out her mother’s suite and disposed of her belongings before she was contacted about the jewellery and cash. She testified that she had not noticed anything missing. When shown the photograph of the jewellery, she said that it was similar to jewellery owned by the deceased, but she could not positively identify it as having belonged to her mother.

She agreed that she was pretty sure that other people have braided chains like those owned by her mother. [ 88 ] Given that the jewellery was acknowledged to be very generic in nature and of a type owned by many people, the fact that it was similar to jewellery owned by the deceased was a neutral fact that did not support a finding that it was, in fact, her jewellery. [ 89 ] When the evidence on which the trial judge based his inference that the accused had stolen the cash and jewellery is examined, it is clear that his inference was not based on objective facts, but on the feelings and suspicions of the firefighters.

When those feelings and suspicions are examined, they, also, are not based on objective facts but on assumptions drawn from circumstances

that are, themselves, based on contradictory evidence. Compared to the standard explanation of an inference, in this case there is no objective evidence like water running off an umbrella and a wet street from which to conclude that it was raining outside. That is, there was no objective evidence to support the inferences that something had been stolen or that the accused had taken anything. [ 90 ] The alternative explanation for the items in the accused’s possession is that the cash and jewellery found in his fleece jacket belonged to him.

He told his coworkers that he had withdrawn the cash to pay for parts for his truck, which Wagner had agreed to fix. He said that he always dealt in cash because he did not have any credit cards.

He said that the jewellery was his, that he had worn it when he was younger and that he was going to sell it for cash. [ 91 ] What is the evidence that supports this alternative explanation? [ 92 ] First, Wagner, whose evidence was accepted by the trial judge, testified that: - he had agreed to do work on the accused’s truck; - he had already jacked up the truck and examined it, finding that it needed front-end work; - he had given the accused a list of the required parts and told him that he had to get them; - the parts would cost about $800 to $900; - the work could not be done until the accused got the parts; and - he had had many discussions with the accused about the work, and the accused had been “hounding” him to get it done. [ 93 ] Second, there is a strong circumstantial guarantee of trustworthiness in relation to the manner in which the accused gave this explanation.

Importantly, the accused did not have any time to concoct or devise a false explanation for having the cash and jewellery in his pocket. The events at the apartment building occurred in the morning. No one confronted or questioned the accused at that time, he was not alerted to their suspicions and he was not aware that the others had looked in his pockets. While the firefighters were not precise as to the timing, they returned to the fire station sometime between 11:00 a.m. and noon, and the meeting occurred approximately an hour later.

As soon as the accused was questioned about the items, he immediately provided his explanation. [ 94 ] Third, at that meeting, the accused told McLeod that he could get him a copy of the receipt for the withdrawal of the money, and McLeod told him not to bother. It is extremely unlikely that the accused would have made that offer if he could not produce a receipt.

While the accused is not required to produce any evidence, the police and Crown were aware of this information and could have subpoenaed the accused’s bank records to disprove his explanation, but for some unexplained reason did not do so. [ 95 ] Fourth, as noted above, the police could have obtained the deceased’s bank records to see when and how much money the deceased had withdrawn from her account in September, which would have addressed, to a large extent, the issue of whether or not it was likely that she would have had some folding money in her wallet at the time of her death.

Again, the Crown has not produced any such evidence. [ 96 ] Fifth, the accused’s explanation that the jewellery was his and that he was planning on selling it is not inherently unreasonable. Wagner remembered him saying that he became allergic to the gold and pulling back his collar to indicate an area of his neck. These types of spontaneous details are usually associated with a truthful explanation.

While the firefighters described the jewellery as “old lady jewellery”, in fact, according to the photographs and the deceased’s daughter’s description, it was two plain gold chains, one with a small removable pendant. The chains are quite generic and, as the deceased’s daughter stated, she was pretty sure that other people have them. [ 97 ] Sixth, the deceased’s daughter said that, while the chains were similar to others belonging to her mother, she could not identify them—and, in fact, could not even say that any were missing.

She said that her mother had at least four others exactly like them in varying lengths. One could ask whether it is likely that these were hers, if she had at least four others that were identical. [ 98 ] Thus, unlike the evidence in support of guilt, the accused’s explanation is not based on speculation but, rather, on objective evidence. [ 99 ] There are many cases that deal with the question of whether an alternative explanation is reasonable or speculative.

In Villaroman , the accused made certain admissions, such as ownership of the computer on which a repairman found child pornography, but the accused did not testify. At trial, he argued that the Crown had presented no evidence that he was using his computer at the times that the pornographic material was downloaded and viewed, and no evidence that others had not accessed the computer, which was located in his home. The trial judge rejected those arguments, finding that there was no evidence that would support those hypothetical scenarios (see R v Villaroman , 2013 ABQB 279 at paras 78 , 81).

The Court of Appeal found that those gaps in the Crown’s case were sufficient to raise a reasonable doubt and substituted a verdict of an acquittal (see R v Villaroman , 2015 ABCA 104 ). The Supreme Court of Canada upheld the conviction, finding that there was no evidence that anyone else lived at the residence (other than two people who the accused agreed had not put the child pornography on the computer) or had the opportunity to download the pornography (see Villaroman at para 65).

It stated (at para 65): While the accused need not lead evidence to show that another person had such access to his laptop, based on the evidence and lack of evidence before the Court, it is speculative to consider whether an​other person had such an opportunity, let alone to assume that Mr.

Villaroman would be ignorant of the presence of the material on his computer. [ 100 ] This case is clearly different from Villaroman because, in this case, the accused has provided a reasonable explanation for having the money and jewellery in his fleece and his explanation is supported by objective facts in evidence that were accepted by the trial judge as being credible. Unlike Villaroman , the explanation is neither speculative nor without evidentiary support.

[ 101 ] My colleague suggests that this analysis is retrying the case. I do not agree. In determining whether a verdict is unreasonable, an appellate court is required to re-examine and re-weigh the evidence. What I have done is pointed out errors in the trial judge’s analysis and shown how the evidence that he accepted as being credible leads to a finding that a conclusion alternative to guilt is reasonably available on that evidence. In my view, the trial judge erred in not so finding.

Conclusion [ 102 ] In my view, the trial judge misapprehended the evidence when he concluded that “[t]here is absolutely no particular reason [the accused] ought to have had that sum of money” and that “the money was not consistent with someone just having taken money out of the bank machine.” These findings played an essential

part in the reasoning process resulting in conviction and were material to the trial judge’s finding that the only rational explanation was that the money was stolen from the deceased. [ 103 ] I am also of the view that a trier of fact, acting judicially, could not reasonably be satisfied the accused’s guilt was the only reasonable conclusion available on the totality of the evidence. The evidence reasonably supports the accused’s alternative explanation that money and jewellery found in his pocket were his and, in my view, the trial judge erred in not so finding. For these reasons, I would grant the appeal and enter an acquittal. JA