R v Charles, 2023 SKCA 118

Court of Appeal for Saskatchewan Docket: CACR3535 Citation: R v Charles , 2023 SKCA 118 Date: 2023-10-26 Between: Dion Charles Appellant And His Majesty the King Respondent Before: Leurer C.J.S., Caldwell and Drennan JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Madam Justice Drennan In concurrence: The Honourable Chief Justice Leurer The Honourable Mr.

Justice Caldwell On appeal from: Provincial Court, La Ronge Appeal heard: October 11, 2023 Counsel: Brady Knight for the Appellant Andrew Davis for the Respondent Drennan J.A. [ 1 ] Dion Charles was convicted after trial by a Provincial Court judge of theft of a motor vehicle and break and enter into a dwelling house.

He now appeals from those convictions, asserting primarily that the trial judge erred in his application of the framework articulated in R v Villaroman , 2016 SCC 33 , [2016] 1 SCR 1000 [ Villaroman ], in the context of a circumstantial case against him on the central issue of identity. [ 2 ] The vehicle (a RAV4) and house in question belonged to a La Ronge resident [complainant]. The Crown tendered a series of surveillance videos that recorded the vehicle theft and called police officers on a recognition voir dire to comment on the identity of the individual shown in the videos.

The first set of videos was taken from the complainant’s next door neighbour’s surveillance camera. The evidence was that the time stamp on the surveillance video was inaccurate by a five-minute margin. The first clip, recorded on June 19, 2020, at 4:25 a.m., showed an individual walking towards the complainant’s garage. The next clip, time stamped at 4:40 a.m., showed an individual entering and backing the RAV4 out of the complainant’s driveway. In both clips, the individual’s face was not visible. A second set of surveillance videos was taken from a residence several blocks away from the complainant’s home.

A clip recorded at 4:38 a.m. captured images of an individual backing the RAV4 into the driveway of that residence, exiting the vehicle, locking it and walking away. A portion of the driver’s face was visible. [ 3 ] The complainant’s partner [partner], who was at home with the complainant on the night of June 18 to the morning of June 19, 2020, testified that he let his two dogs out of the residence at 1:00 a.m. He did not recall if he locked the door thereafter. At 4:00 a.m., he was woken by the dogs barking, which was unusual. He went downstairs and let them outside, noticing that the front door was ajar.

He locked the door. The RAV4 was parked in the driveway at that time. [ 4 ] The partner also testified that he had moved the RAV4 the morning of June 18, using a spare set of keys which he stored in a cubby box inside the front door immediately after. The complainant testified that she drove the vehicle after this, using the primary set of keys. It was ultimately the spare keys that were used in the theft of the RAV4, the fob for the same being found later in the neighbour’s driveway. [ 5 ] In closing argument, the Crown asserted it had presented a strong circumstantial case that Mr.

Charles was the person depicted in both sets of videos. It submitted that the only reasonable inference to be drawn was that he was the individual who stole the vehicle and burgled the keys from the complainant’s home.

The defence argued that other reasonable inferences were open to the trial judge, pointing to the absence of video surveillance for the period prior to 4:25 a.m., the partner’s testimony on when the door was locked, and the possibility a third party was involved. [ 6 ] The trial judge was satisfied beyond a reasonable doubt that the individual shown exiting the vehicle in the surveillance video taken a short distance away from the complainant’s home was Mr. Charles. He determined that the only reasonable inference was that Mr.

Charles was also the individual shown in the video at the complainant’s home stealing the RAV4. He inferred from this that Mr. Charles had also entered the complainant’s residence and had stolen the spare set of keys for that vehicle. [ 7 ] On appeal, Mr. Charles does not take issue with the trial judge’s finding that he was the individual recorded exiting the RAV4 minutes away from the complainant’s residence. Rather, he challenges the trial judge’s conclusion that he committed the theft and break and enter (focusing his oral submissions more specifically on the latter charge).

He asserts that the trial judge erred by (

a) failing to consider what reasonable inferences could be drawn from the absence of evidence (pointing specifically to the missing video surveillance prior to 4:25 a.m.), (

b) requiring him to adduce evidence in support of other reasonable inferences consistent with innocence, and (

c) placing undue weight on demeanour evidence in relation to the gait of the individual in the surveillance video when seen approaching and taking the RAV4. He submits that the trial judge’s combined errors in law resulted in an unreasonable verdict. [ 8 ] As I will explain, I disagree that the trial judge committed these errors. [ 9 ] On the first branch of Mr. Charles’ argument, it is my view that the trial judge’s reasons demonstrate that he both understood and correctly applied the Villaroman framework, and that he considered what reasonable inferences arose from both the evidence and the absence of evidence. As a

preamble to his analysis, he highlighted that the question in a case that hinges on circumstantial evidence is

whether the evidence “viewed logically and in light of human experience, is reasonably capable of supporting an inference other than thatthe accused is guilty” (citing R v Lola, 2020 SKCA 103 at para 25, 392 CCC (3d) 284, citing Villaroman at para 38). He went on,throughout his reasons, to acknowledge that a lack of evidence could give rise to other reasonable inferences. In relation to the theft, heconsidered the possibility that a third party had taken the vehicle and had transferred possession of it to Mr. Charles, along with theabsence of surveillance video prior to 4:25 a.m. Similarly, in addressing the break and enter charge, the trial judge considered (

a) thepartner’s evidence that he had locked the door at 4:00 a.m., (

b) the fact of the video surveillance beginning at 4:25 a.m., (

c) the lack ofvideo surveillance evidence prior to that time, (

d) the limitations of the surveillance video’s view of various entry points, (

e) the possibilityof a third party having entered the home, and (

f) whether the keys were in fact in the home. In concluding that Mr. Charles wasresponsible for both the theft and the break and enter, the trial judge stated that he “[could not] reasonably infer from the evidence or lackof evidence that a third party was involved” (emphasis added). [10] To conclude on this aspect of Mr. Charles’ argument, it is my opinion that the trial judge’s reasons demonstrate that he wasalive to both the evidence and lack thereof when considering whether there were alternative, reasonable inferences other than guilt.Contrary to Mr.

Charles’ submission otherwise, the trial judge did not require that such inferences arise from proven facts or from theevidence before him. [11] Moving now to Mr. Charles’ second and related submission, I am of the view that the trial judge did not require Mr. Charles tolead evidence in support of other reasonable inferences and did not reverse the burden of proof. To understand this part of Mr. Charles’argument, it is necessary to know that, in this Court, he did not contest the fact that he was the person seen in the second video exiting theRAV4.

Nonetheless, he maintained that it was possible that a third person had broken into the complainant’s home to steal the keys andwas the person seen on the first video. While the trial judge did, in considering this theory, query where a “mystery man” or “accomplice”may have been, his reasons read as a whole indicate that he was applying common sense, logic and human experience in assessingwhether the involvement of a third person was a reasonable inference or purely speculative.

To that end, where the trial judge stated thathe required a “foundation” or “basis” for alternative theories, he did so in the context of considering that “[t]he Crown is not required todisprove highly speculative possibilities”. While the trial judge’s choice of words was somewhat imperfect at times, the whole of hisreasons demonstrate that he was evaluating what theories were speculative versus plausible, rather than requiring Mr. Charles to adduceevidence to support any specific inference.

He was entitled to do this, and to “draw the line … that separates reasonable doubt fromspeculation” (Villaroman at para 71). To summarize, the reasons read in their entirety do not demonstrate any misapprehension as to thecorrect burden, who bore that burden or the standard of proof to be applied (see R v B.G.S., 2010 SKCA 24 at para 8, 346 Sask R 150,citing R v C.L.Y., 2008 SCC 2 at para 7, [2008] 1 SCR 5, citing R v W.(D.), (SCC), [1991] 1 SCR 742 at 758). [12] Mr.

Charles’ third and final argument is that the trial judge improperly used demeanour evidence in concluding that theindividual he identified in the first video clip taking the RAV4 was the same person who burgled the keys from the complainant’s home.He described Mr. Charles’ “gait” as “determined” and “direct”, with “no sense of exploration, furtiveness or tentativeness” as “[h]e knewwhat he was about to do”. I agree with the Crown that the trial judge’s observations are distinguishable from an undue reliance ondemeanour in the context of a credibility assessment (see R v Purcell, 2023 SKCA 56 at para 55).

The trial judge here observed the bodylanguage and physical presentation of the individual in the video, along with the other circumstantial evidence, to support the inferencethat Mr. Charles was the man shown on the first video. As the trier of fact, he was entitled to do so (see R v Singharath, 2020 SKQB 178at para 14, affirmed in the result, 2023 SKCA 6, 422 CCC (3d) 112; see also R v John, 2021 SKCA 83 at para 23, 405 CCC (3d) 184,more generally on the use of video evidence by a trier of fact in identification of an accused). Notably, he did not rest his conclusion solelyon these observations.

As previously noted, he considered the inferences suggested by both the Crown and defence, and (

a) whether athird party may have entered the home, took the keys, and transferred the keys to Mr. Charles, (

b) the location of the spare key fobdiscovered the next day in the driveway, and (

c) the missing portion of surveillance video evidence. In short, I see no error in the trialjudge’s approach on this branch of the appeal. [13] To conclude, while the language of his reasons could, in some places, have been more precise, in my respectful view, the trialjudge did not err in law.

Further, it was not unreasonable for him to conclude, as he did, that the only reasonable inference was that Mr.Charles committed the theft and the break and enter, there is no reason for this Court to intervene on the basis of the verdict beingunreasonable (R v Learning, 2019 SKCA 5 at para 33, citing Villaroman at para 71). [14] I would accordingly dismiss Mr. Charles’ appeal. “Drennan J.A.” Drennan J.A.I concur. “Leurer C.J.S.” Leurer C.J.S.I concur. “Caldwell J.A.” Caldwell J.A.