R v Abbott, 2018 MBCA 84

Citation: R v Abbott, 2018 MBCA 84 Date: 20180904 Docket: AR17-30-08938 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Diana M. Cameron Mr. Justice Christopher J. Mainella Madam Justice Janice L. leMaistre BETWEEN: HER MAJESTY THE QUEEN ) M. R. Schwartz and ) M. A. J. Kruse Respondent ) for the Appellant ) - and - ) S. L.

Thomas ) for the RespondentBENJAMIN CARL WILLIAM ABBOTT ) ) Appeal heard and (Accused) Appellant ) Decision pronounced: ) September 4, 2018 Cameron JA (for the Court): [1] The accused appeals his convictions for various offences related to him being in possession of a sawed-off shotgunand ammunition found in his girlfriend’s home.

He claims that the trial judge erred by misapprehending the circumstantial evidenceadduced at the trial, by failing to assess certain witnesses’ evidence in accordance with the principles laid out in Vetrovec v The Queen, (SCC), [1982] 1 SCR 811, and by providing insufficient reasons for his finding of guilt. We dismissed the appeal at thehearing and indicated that we would provide brief reasons. These are those reasons. [2] Our review of the record as a whole, including the evidence adduced at trial, the submissions of counsel and thereasons given by the trial judge do not evidence any error.

The accused was arrested while he and his girlfriend (the girlfriend) wereselling stolen goods to an undercover police officer. At the time of his arrest, he was in possession of a Corrections Services of Canadabadge, a duty-belt, handcuffs and keys, and a collapsible baton. Each of these items came from a black tactical bag (the workbag)belonging to a Corrections Canada Officer (the officer). The workbag was in the officer’s truck when it had been stolen a few daysearlier. The workbag was distinctive in that it had a “honey-badger” badge on it.

This badge was a gift from the officer’s brother andwas unique to the military and the battalion to which his brother belonged. The officer testified that there was no chance that there waseither a sawed-off shotgun or ammunition in the workbag at the time that it was stolen. [3] On the day that the accused was arrested, a warrant was executed at the girlfriend’s residence. The workbag wasfound in her upstairs bedroom. A sawed-off shotgun and ammunition were inside the workbag.

As well, a radio-clip that had beenattached to the officer’s duty-belt was found in the kitchen. [4] The girlfriend testified that the accused had attended her residence the evening before the date of their arrest. Whileshe did not identify the bag that he brought into her residence as being the same as a photo of the workbag seized from her bedroom, shedid agree that he brought a black bag into her house when he came over that evening. She testified that the accused slept in her upstairsbedroom that night and that she slept in the living room.

She denied any knowledge of the workbag or its contents. [5] A friend of the girlfriend also testified (the friend). He said that he went to the girlfriend’s house on the day of theincident, that the girlfriend was not home and that a neighbour was babysitting the girlfriend’s children. He said that he went straight tothe living room and fell asleep on the couch. He said that he was awakened by the police when they were executing the warrant.

Whilehe admitted to having a lengthy criminal record, including convictions for firearms offences, he denied any knowledge of the workbag,the sawed-off shotgun or the ammunition. [6] The accused did not testify or call any evidence in his defence. [7] The trial judge accepted the evidence of the girlfriend and the friend. Importantly, he noted that there was noevidence connecting either of them to the workbag.

He held that the fact that the babysitter and others might have had access to thegirlfriend’s house did not “mean that the court should conclude that someone other than [the accused] had control over the bag and its

contents.” In this regard, he also considered that there were only a few hours between the time that the accused and the girlfriend left the residence to sell the stolen goods and the time that the police executed the search warrant. In his opinion, the workbag, the sawed-off shotgun and ammunition were linked to the accused alone and that he had possession of them. [ 8 ] Contrary to the accused’s assertion, the trial judge did not misapprehend the evidence. He simply interpreted the evidence in a manner contrary to that suggested by the accused.

That is, he rejected defence counsel’s submission that the fact that the radio-clip was found in the kitchen suggested that someone else had control over it. In the trial judge’s view, the fact that the radio-clip (which was conclusively identified as the officer’

s) was found in the same house as the workbag constituted further evidence that the workbag belonged to the officer. The trial judge did not err in this regard. [ 9 ] As to the Vetrovec issue, we note that the accused’s trial counsel (same counsel as in these proceedings) did not ask the trial judge to caution himself in this regard. In any event, the trial judge is presumed to know the law. He was well aware of the fact that the girlfriend was a co-accused in the matter regarding the sale of stolen goods and that she was the owner of the house.

He was also well aware of the friend’s criminal record and unsavoury character when he reached his decision. There is no requirement that he recite a Vetrovec caution in his reasons for judgment (see R v Snyder , 2011 ONCA 445 at para 24 ; and R v Chevers , 2011 ONCA 570 at para 4 ). We would deny this ground. [ 10 ] Regarding the reasons given by the trial judge for convicting the accused, they are to be reviewed on the standard of adequacy. See R v Oddleifson (JN) , 2010 MBCA 44 at para 30 , leave to appeal to SCC refused, 33756 (28 October 2010).

A review of the reasons in the context of the record as a whole demonstrates that the reasons were adequate in that they informed the parties of the basis of the verdict while providing public accountability and permitting meaningful appeal. See R v REM , 2008 SCC 51 at para 13 . [ 11 ] At the end of the day, the accused is really arguing that the verdict was unreasonable on the basis that the circumstantial evidence presented was insufficient to support a verdict of guilt.

Thus, the task of this Court is to determine “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” ( R v Villaroman , 2016 SCC 33 at para 55 ). In conducting such a review, the court must consider whether the inferences drawn by the trier of fact were reasonably open to it (see Villaroman at para 67 ). Further, “it is fundamentally for the trier of fact to draw the line in each case that separates reasonable doubt from speculation” (at para 71).

Such an assessment can only be set aside when it is unreasonable. [ 12 ] As earlier stated, the trial judge accepted the evidence of the officer, the girlfriend and the friend. He drew the inference that the accused had control of the workbag and was in possession of the sawed-off shotgun and the ammunition. In the circumstances of this case, it was within his purview to reject the argument that either the babysitter or some unknown person brought the sawed-off shotgun and ammunition to the girlfriend’s house and hid it in the stolen workbag.

In our view, the accused has not demonstrated any error that could lead us to conclude that the verdict was unreasonable. [ 13 ] For all of the above reasons, we dismissed the appeal. JA JA JA