R. v. Henderson, 2012 NSCA 53

NOVA SCOTIA COURT OF APPEAL Citation: R. v. Henderson, 2012 NSCA 53 Date: 20120516 Docket: CAC 357719 Registry: Halifax Between: Houstan Alexander Henderson Appellant v. Her Majesty the Queen Respondent Judges: Saunders, Hamilton and Fichaud, JJ.A. Appeal Heard: May 8, 2012 in Halifax, Nova Scotia Held: Motion for leave to adduce fresh evidence deni ed; appeal dismissed per reasons for judgment of Saunders, J.A.; Hamilton and Fichaud, JJ.A. concurring Counsel: Appellant in person Kenneth W.F.

Fiske, Q.C., for the respondent Reasons for Judgment: [ 1 ] Following a trial in Provincial Court before the Honourable Judge Theodore K. Tax, the appellant was convicted of break, enter and theft contrary to s. 348(1) (

b) of the Criminal Code and breach of Recognizance contrary to s. 145(3) of the Code . He was sentenced to four years ’ imprisonment and ordered to make restitution in the amount of $1,634.15. [ 2 ] The only issue at trial was identity, and the Crown ’ s case was entirely circumstantial. The appellant was represented by counsel at his trial but is self-represented on appeal. [ 3 ] He appeals his conviction, but not his sentence. He also seeks leave to introduce fresh evidence on appeal.

[ 4 ] For the reasons that follow I would deny leave to admit fresh evidence, and would dismiss the appeal. [ 5 ] To provide context for the analysis that follows, I will briefly outline the facts. Background [ 6 ] At about 7 o ’ clock in the evening on November 8, 2010, a security alarm was sounded at the offices of Canadian Bearings, located at 133 Ilsley Avenue in the Burnside area of Dartmouth. When police and management arrived to investigate they discovered a hole in the pane of glass adjacent to the front entrance. The door was closed but unlocked.

The operations manager testified that she had locked the door when she left for the day at 5 o ’ clock that afternoon. The hole in the glass was aligned with the locking mechanism of the door. A rock was found inside the premises against the front counter. The cashbox containing $204 in cash and an IOU note was missing. Police seized the rock and shards of broken glass. [ 7 ] Videotape evidence established that at 7:15 p.m. the appellant boarded a Metro Transit bus at a bus stop located approximately one kilometre from the Canadian Bearings office.

The appellant got off the bus at the Dartmouth Sportsplex nine minutes later. [ 8 ] The appellant was under police surveillance on Thursday, November 18. He was seen leaving Metro Turning Point, a mens ’ shelter on Barrington Street in Halifax and proceeding on foot across the Macdonald Bridge to Dartmouth and eventually to Highfield Park Drive. After pausing at two locations, the appellant walked across the pedway over Highway 111 and proceeded to an area of trees and bushes by a parking lot near the Canadian Bearings premises. The appellant was observed rummaging in the bushes.

He stood up and looked about, then reached down into the bushes. After a few minutes the appellant left the area and walked to the sidewalk on Burnside Drive where he was observed counting rolls of coins. [ 9 ] Shortly after the appellant left, the police checked the area and discovered the stolen cashbox at the spot where the appellant was seen reaching into the bushes. The box contained a few coins. The IOU note was found nearby.

Subsequently, the cashbox was examined for fingerprints but none appeared. [ 10 ] The rock found inside the premises on the night of the burglary was examined and genetic information was obtained from it. A DNA warrant was secured by the police and blood samples were taken from the appellant. Scientific analysis disclosed that the partial DNA typing profile obtained from the rock matched that of the appellant. The estimated probability of randomly selecting an unrelated individual from the Canadian Caucasian population having the same information was 1 in 120,000. This was a statistical average.

The probability might be as high as 1 in 12,000 or as low in 1 in 1.2 million. [ 11 ] It was common ground at trial that in November, 2010, the appellant was bound by the conditions of a Recognizance. [ 12 ] At trial the Crown called eight witnesses. A number of exhibits were introduced including a map of the area showing Ilsley Avenue, Burnside Drive and Highfield Park Drive; the rock; a video capturing the images from the security cameras on the Metro Transit bus; and a series of photographs showing various items including pieces of glass, the cashbox, coins and the IOU note.

The appellant did not testify or call any evidence. Following the submissions of counsel, Judge Tax reserved his decision. [ 13 ] On October 6, 2011, Judge Tax delivered a thorough and well-reasoned oral decision finding the appellant guilty on both charges. [ 14 ] Mr. Henderson now appeals his conviction pursuant to s. 675(1) (

a) of the Criminal Code . Issues

[15] The appellant bases his appeal from conviction on two grounds. First, he says the verdict is unreasonable. Second, he asks thatwe admit the “fresh evidence” of the expert who analyzed the trace glass evidence discovered on his clothing and footwear seized by thepolice on November 26, which he says ought to raise a reasonable doubt about his guilt. [16] The appellant asks that we admit the fresh evidence, quash the verdict, and enter an acquittal. Alternatively, he asks for a newtrial. Standard of Review [17] The standard of appellate review on a question of law is correctness.

Factual issues are reviewed for any palpable andoverriding error. A trial judge’s application of the law to the facts is reviewed as a question of fact unless an extricable error of law isidentified. See for example, R. v. C.J., 2011 NSCA 77. [18] The standard of review of verdicts based on circumstantial evidence is whether a properly instructed jury, acting judicially,could have reasonably concluded that the guilt of the accused is the only rational conclusion to be reached from the whole of theevidence. Within such an inquiry, the standard of review for error is correctness.

The standard of review of possible inferences that maybe drawn from the evidence is palpable and overriding error. See, for example, R. v. Shea, 2011 NSCA 107. Analysis (

i) Motion to Adduce Fresh Evidence [19] The appellant asks this Court to admit, as fresh evidence under s. 683(1)(

d) of the Criminal Code, the report prepared by Ms.Kimberly Kenny, a forensic chemist employed by the R.C.M. Police at its National Centre for Forensic Services in Edmonton,concerning the scientific analysis of glass fragments discovered on the clothing and footwear of the appellant that was seized at the timeof his arrest in late November, 2010.

The appellant says this evidence is capable of raising a reasonable doubt because the glassfragments did not match the glass from the broken window at the scene of the burglary. [20] The admission of fresh evidence on appeal is based on the decision of the Supreme Court of Canada in Palmer v . The Queen, (SCC), [1980] 1 S.C.R. 759. Four principles govern the admission of fresh evidence. First, the evidence will generallynot be admitted if, by due diligence, it could have been introduced at the trial. Second, the evidence must bear upon a decisive orpotentially decisive issue in the trial.

Third, the evidence must be credible. And finally, the evidence must be such that it could haveaffected the result. See, for example, R. v. Angelillo, 2006 SCC 55; R. v. West, 2010 NSCA 16; and R. v. Fraser, 2011 NSCA 70. [21] In my view, the fresh evidence offered by the appellant here does not meet the first or fourth criterion for admission and oughtto be rejected. [22] On the issue of due diligence, the report prepared by Ms. Kenny was available at trial. When proceedings began on March 29,2011, the Crown Attorney, Ms. Alicia Kennedy, advised the court: ...

As the Court is aware, from the beginning, there were difficulties with the diary dates on forensic results. Those difficulties have beenresolved in relation to the glass evidence that we were expecting and we have those results back and they don’t form part of the Crown’scase.

[ 23 ] As well, the affidavit sworn by Ms. Kennedy on April 25, 2012, in response to the appellant ’ s motion to adduce fresh evidence, clearly establishes that the Kenny report was sent to the appellant ’ s counsel as part of pre-trial disclosure. [ 24 ] In his factum and again at the hearing, the appellant argued that had the Kenny report been presented at trial, it would have been enough to raise a reasonable doubt and also serve to weaken the Crown ’ s DNA evidence which, he suggested, was not sufficiently high on the probability scale in any event.

He pointed to the “ several unknowns ” which he said impugned the reasonableness of the judge ’ s verdict. Even though his clothing and shoes were seized 18 days after the burglary, he felt the glass from the break-in should still have been evident on the shoes and the fact that the RCMP chemist could not make such a connection “ proved ” he wasn ’ t there.

He pointed to other perceived flaws in the Crown ’ s case: the fact that the police tracking dog called to the scene could not pick up a trace of his having been there or of having walked from the scene to the bus stop; that his fingerprints were not found on the cashbox; that the police never arrested him “ until weeks later ” ; and, that he was never found in actual possession of any stolen property. [ 25 ] The flaw in the appellant ’ s reasoning may stem from a misunderstanding of criminal procedure, and proof based on circumstantial evidence.

In this case, the appellant has not made any complaint that the representation he received from his trial counsel was ineffective. On the contrary, he admits that through pre-trial discussions with his lawyer they were well aware of the existence of the Kenny report, but decided that instead of relying upon it as part of their defence strategy, they would concentrate their efforts on impugning the Crown ’ s circumstantial evidence, in particular, the rock and the DNA analysis related to it.

It was only when he heard Judge Tax give his decision that he wished he had used the report to his advantage. [ 26 ] There can therefore be no question that defence counsel was in possession of the Kenny report prior to trial, understood that the Crown would not be relying upon it as part of its case, and made a tactical decision not to rely upon it. Now, with 20/20 hindsight the appellant wishes he had taken a different tact. [ 27 ] The appellant cannot satisfy the first step in the 4-part Palmer test. Trial counsel had the expert ’ s report and chose not to use it.

On that basis alone it does not qualify as “ fresh evidence ” . [ 28 ] Leaving aside the issue of due diligence, there is a second compelling reason for refusing the appellant ’ s motion. In my view, the report would not have made the slightest difference to the result. As Mr. Fiske said at the hearing, the fact that glass found on the appellant ’ s clothing or shoes some weeks after the burglary did not match the glass from the broken window at the scene of the crime, is hardly enough – in light of the strength of the Crown ’ s other evidence linking Mr.

Henderson to the offence – to raise a reasonable doubt about his being the burglar. It is, in this case, nothing more than “ neutral ” evidence, similar to the fact that the police dog was unable to pick up any scent of Mr. Henderson that night, or that his fingerprints were not found on the cashbox or at the premises. The trial judge was not obliged to conjure up “ explanations ” for such “ non-detections ” . [ 29 ] In criminal proceedings the Crown evaluates its case before trial and decides what evidence it will rely upon in its prosecution of the accused. That decision is entirely for the Crown to make.

Here, it chose to rely upon the strength of the circumstantial evidence to prove Mr. Henderson ’ s guilt, without reference to the chemist ’ s analysis. [ 30 ] Undoubtedly the Crown Attorney saw the value of the “ evidence ” in the report as being negligible. I agree.

I fail to see how the fact that no matching particles of broken glass from the window at Canadian Bearings were detected on the clothing and footwear seized by the police eighteen days later could, having regard to the whole of the evidence, raise a reasonable doubt as to the appellant ’ s guilt. [ 31 ] For these reasons I would refuse leave to admit the Kenny report on appeal. (ii) Unreasonable Verdict [ 32 ] The sole issue at trial was identity. Identity is a question of fact. R. v. Hoben , 2009 NSCA 27 ; and per Fichaud, J.A. in dissent R. v.

O ’ Brien , 2010 NSCA 61 , para. 123 , upheld on appeal by a majority of the Supreme Court of Canada, 2011 SCC 29 . The Crown ’ s case against the appellant was entirely circumstantial. It had a strong case.

[33] In concluding that the only rational inference to be drawn from all of the evidence was that the appellant was guilty as charged,Judge Tax carefully and cautiously examined the record. In doing so he was satisfied that the following facts had been established. Thebreak-in at Canadian Bearings occurred at approximately 7:00 p.m. on November 8, 2010. Approximately 15 minutes later the appellantboarded a Metro Transit bus at a bus stop located in the general vicinity of Canadian Bearings premises at 133 Ilsley Avenue. The rockleft inside was found to have been used by the culprit to gain entry.

The DNA profile obtained from the rock matched the DNA of theappellant. Ten days after the burglary, the appellant was seen at a location close to the Canadian Bearings premises, bending down andrummaging among the bushes. As he left the area he was observed counting rolls of coins. When police checked the spot theydiscovered the stolen cashbox and the missing IOU. Judge Tax concluded that the appellant had known where the cashbox was hiddenbecause he had placed it there after he had stolen it from the Canadian Bearings’ office on November 8th. [34] At the hearing in this Court Mr.

Henderson argued that the DNA profile obtained from the rock, his presence in the vicinity of133 Ilsley Avenue shortly after the break-in, and his connection to the stolen cashbox ten days later did not serve to conclusively identifyhim as the burglar, and that therefore the verdict reached by Tax, P.C.J. was unreasonable. [35] The reasonableness of the verdict must be judged on the basis of the test set forth in R. v. Biniaris, 2000 SCC 15.

Thequestion is whether on the basis of the evidence presented at trial, Judge Tax’s verdict was a reasonable one in the sense that it was one aproperly instructed jury, acting judicially, could reasonably have reached. Further, in the context of this case, where the verdict wasbased on circumstantial evidence, the test is that which this Court adopted in R. v. Barrett, 2004 NSCA 38.

Cromwell, J.A. (as he thenwas) said: [19] I would conclude that while the test for whether a verdict is reasonable is the same in all cases, where the Crown's case is entirelycircumstantial, the reasonableness of the verdict must be assessed in light of the requirement that circumstantial evidence be consistentwith guilt and inconsistent with innocence: see Yebes at page 185 where this formulation was said to be the equivalent of therequirement that the circumstantial evidence be inconsistent with any rational conclusion other than guilt. This was summed up by Low,J.A. in R. v.

Dhillon (2001), 2001 BCCA 555 , 158 C.C.C. (3d) 353 (B.C.C.A.). At para 102, he stated that where the Crown'scase is entirely circumstantial, the appellate court applying the unreasonable verdict test must determine "... whether a properlyinstructed jury, acting judicially, could have reasonably concluded that the only rational conclusion to be reached from the whole of theevidence is that the appellant..." was guilty. [36] I see no flaw in Judge Tax’s finding that the appellant’s guilt was the only rational inference to be drawn from the whole of theevidence.

While not having the dramatic effect it has had in some cases, it seems to me that the DNA evidence here is still powerful. The profile obtained from the genetic material found on the rock, which was clearly used to gain entry into the premises, matched that ofthe appellant. The statistical probability of 1 in 120,000 is significant. In addition, the appellant was videotaped when boarding a bussome 15 minutes after the break-in, at a location approximately one kilometre from the site of the burglary. The evidence of theappellant handling the stolen cashbox 10 days later is very compelling.

Indeed, in her opening address and in her final submissions, theCrown Attorney invited the court to apply the doctrine of recent possession to find the appellant guilty of the burglary. In his decision,Judge Tax made no reference to the doctrine, preferring to resolve the issue of identity on the basis of the circumstantial evidencepresented at trial, making specific reference to the decision of the Supreme Court of Canada in R. v. Griffin, 2009 SCC 28.

From this Iconclude that Judge Tax was not inclined to draw the inference of guilt based solely on the appellant’s alleged possession of the stolencashbox; preferring instead to rely upon the totality of the evidence as leading to the inevitable and only reasonable inference that theappellant was guilty as charged. [37] I agree with the appellant that the match of his DNA on the rock did not produce numbers suggesting the kind of dramaticallyhigh likelihood of probability we often see in other cases (DNA samples seized in sexual assault cases, for example).

However, it isclear that Judge Tax did not assess the DNA evidence in isolation, nor give it undue prominence. On the contrary, he simply consideredit as part of the totality of evidence; one strand that along with many others, formed a tight web ensnaring the appellant as the personresponsible for this burglary. [38] The appellant did not testify at his trial, and he did not call evidence. This is a factor we are entitled to consider on appeal. Asthis Court said in R. v.

Ward, 2011 NSCA 78: [69] We are entitled to consider, as a factor in determining whether the jury's verdict was unreasonable, the appellant's failure totestify. See for example, R. v. Noble, (SCC), [1997] 1 S.C.R. 874, (Sopinka, J., for the majority) at para. 102; R. v.Clayton, 2001 NSCA 72; R. v. Joehnck, 2006 SKCA 68; R. v. Oddleifson, 2010 MBCA 44; R. v. West, 2010 NSCA 16.

[70] As in Oddleifson , supra , the Crown's case here "cried out for an explanation". Shane Ward chose not to testify in the face of strong evidence of guilt. Such a failure to testify in such circumstances seriously increased the risk of conviction. [ 39 ] Given the strength of the circumstantial evidence gathered by the investigators following the burglary, the Crown ’ s case against Mr. Henderson “ cried out for an explanation ” .

His choosing not to testify in the face of such strong evidence could not, of course, be used to infer or confirm his guilt, but it meant that he had failed to provide the trier of fact with any basis for concluding otherwise. And that is something we are entitled to take into account when considering the reasonableness of the verdict. [ 40 ] In the course of his final submissions, the appellant ’ s trial counsel offered an explanation for his client ’ s possession of the stolen cashbox on November 18.

He submitted that the appellant resided at the Metro Turning Point Men ’ s Shelter where he would have come into contact “ with a fairly large criminal element ” . Counsel argued that it was within the realm of possibility that someone at the shelter had told the appellant where he might find the cashbox. This explanation was, of course, rightly seen by the trial judge as nothing more than speculation. There was no evidence to support the submission. In R. v.

Eastgaard , 2011 ABCA 152 the majority of the Alberta Court of Appeal had this to say about a somewhat similar submission: [22] On appeal, we can take into account the appellant's failure to testify; however, this is not to add to the weight of the Crown's evidence in proving his guilt. It is just one factor, together with the uncontradicted evidence and admitted facts noted earlier, in our conclusion that the guilty verdict on Count 1 was reasonable. Given the appellant's failure to testify, any suggestion that the driver gave the appellant the firearm and instructed him to hide it is mere speculation.

The appellant could have testified to this effect if this indeed happened but he chose not to. Consequently, the only evidence regarding possession of the gun is that the appellant had it and hid it when he had to know he was being pursued by police. On March 19, 2012, the Supreme Court of Canada dismissed the appeal, agreeing with the majority decision that the verdict at trial was not unreasonable, R. v. Eastgaard , 2012 SCC 11 . Conclusion [ 41 ] I see nothing in this case to warrant our intervention.

The appellant ’ s motion to adduce fresh evidence should be dismissed because the evidence was available at trial, and was of a trifling nature. The verdict entered by Judge Tax following his proper application of the law to the facts as found, is perfectly reasonable and fully supported by the evidence. [ 42 ] I would dismiss the appeal. Saunders, J.A. Concurred in: Hamilton, J.A. Fichaud, J.A.

NOVA SCOTIA COURT OF APPEAL Citation: R. v. Henderson, 2012 NSCA 53 Date: 20120516 Docket: CAC 357719 Registry: Halifax Between: Houstan Alexander Henderson Appellant v. Her Majesty the Queen Respondent Judge: The Honourable Mr. Justice Jamie W.S. Saunders Appeal Heard: May 8, 2012 Subject: Break, Enter and Theft. Identification. Motion to Introduce Fresh Evidence. Unreasonable Verdict.

Circumstantial Evidence. Failure to Testify. Standard of Review.

Summary: The appellant appealed his conviction for break, enter and theft. He applied to admit an RCMP chemist ’ s report analyzing glass fragments found on his clothing when arrested several weeks after the burglary. He claimed this evidence would have been enough to raise a reasonable doubt and, in any event, the verdict was unreasonable based on the whole of the evidence. Held: Request for leave to admit fresh evidence denied, and appeal dismissed. The chemist ’ s report sought to be admitted by the appellant did not qualify as “ fresh evidence ” .

His lawyer at trial was aware of the report and chose not to rely upon it. Instead, they concentrated their efforts on impugning the Crown ’ s circumstantial evidence, in particular, the rock used to gain entry, and the DNA analysis related to it. Further, the report would not have made the slightest difference. Its value was negligible. The fact that no matching particles of broken glass from the premises were detected on the clothing seized by the police 18 days after the burglary could not – having regard to the whole of the evidence – have raised a reasonable doubt as to the appellant ’ s guilt.

Given the strength of the circumstantial evidence gathered by investigators following the burglary, the Crown ’ s case against the appellant “ cried out for an explanation ” The trial judge carefully and cautiously examined the record to satisfy himself that the only rational inference to be drawn from all the evidence was that the appellant was the burglar. The verdict was perfectly reasonable and fully supported by the evidence. This information sheet does not form part of the court ’ s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 11 pages.