Nova Scotia Court of Appeal
Citation: R. v. Gogan, 2016 NSCA 26
Date: 20160414
Docket: CAC 434047
Registry: Halifax
Between:
Dylan Robert Douglas Gogan
Appellant
v.
Her Majesty the Queen
Respondent
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Judges: |
Beveridge, Farrar and Scanlan , JJ.A. |
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Appeal Heard: |
February 11, 2016, in Halifax, Nova Scotia |
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Held: |
Appeal dismissed per reasons for judgment of Farrar, J.A.; Beveridge and Scanlan, JJ.A. concurring. |
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Counsel: |
Trevor K.F. McGuigan, for the appellant Kenneth W.F. Fiske, Q.C., for the respondent |
Reasons for judgment:
Overview
[1] The appellant, Dylan Gogan, was found guilty of break and enter with intent and possession of stolen property (a television) by Provincial Court Judge Patrick Curran. The conviction for possession of stolen property was judicially stayed and Mr. Gogan received 30 months in prison on the break and enter charge.
[2] He appeals – arguing the trial judge made a legal error by failing to properly characterize the evidence of two Crown witnesses. Both testified that Mr. Gogan told them a friend had given him a television. By excluding this evidence, Mr. Gogan says the trial judge failed to consider whether it was an innocent explanation for his possession of the stolen television. He also argues that the trial judge erred by failing to consider whether he was merely in possession of the stolen television as opposed to having committed the break and enter.
[3] For the reasons that follow, I would dismiss the appeal.
Background
[4] At 5:30 p.m. on Thursday, June 11, 2014, Paul MacDonald, a correctional officer at the Springhill Penitentiary, left his house at 10 Davidson Street in Amherst to go to work. It was customary for a neighbour, Sally MacKay, to look after Mr. MacDonald's dogs when he worked the night shift.
[5] That same evening, the appellant went to the apartment of Patricia McKenzie and Cory Ryan at 4½ Davidson Street accompanied by an unidentified individual. At different times he told both Mr. Ryan and Ms. McKenzie a "buddy" had moved and given him a television. He wanted Mr. Ryan to help him get the television from his friend's house. Mr. Ryan was not prepared to do so. The appellant then asked Ms. McKenzie if he could borrow a wagon she owned. She agreed.
[6] The appellant was at the apartment for about one half to one hour and then left. Mr. Gogan was only gone for a few minutes when he returned to the apartment with a television in the wagon. He requested Ms. McKenzie call a cab for him, which she did. When the taxi arrived at the apartment, Mr. Ryan helped the appellant load the television into the taxi cab. Mr. Gogan directed the taxi to 52 Willow Street, the home of his father, where he and the taxi driver unloaded the television. The taxi driver put the time of the call at about 10:15 p.m.
[7] Carrie Burke lives at 13 Davidson Street, just down the street from Mr. MacDonald. That evening, after she had put her daughter to bed, she went outside. She noticed Mr. MacDonald's dogs "barking an awful lot". She heard someone out back by the shed on Mr. MacDonald's property and she decided to keep "my eye on it". Next she observed an individual walking on Davidson Street with a wagon which had "a couple of things" in it.
[8] While at work, Mr. MacDonald received a call about one of the dogs being loose. He contacted Ms. MacKay and asked her to check on the dogs. At about 10:30 p.m. she went over to MacDonald's house. When she went into the living room she discovered the television was missing. She called Mr. MacDonald who in turn called the police and left work to return home.
[9] It was determined that a large Toshiba flat screen television, a "sky caddy" golf GPS, and a set of Ping golf clubs were missing from the house. The cords from the television to the wall plug had been cut. A box containing a small television, digital cameras, and university text books was discovered missing from MacDonald’s shed.
[10] On Saturday, June 13, the police went to a residence on Albion Street in Amherst, looking for the appellant. He was discovered hiding in a freezer in a room off the kitchen. He was arrested.
[11] Armed with a search warrant, the police went to the appellant's father's residence on Willow Street. A large Toshiba flat screen television, matching the description of the set taken from Paul MacDonald's house, was found in a room in the basement of the house. The cords to the set had been cut. The television was subsequently returned to Mr. MacDonald. None of the other property taken from Mr. MacDonald's house and shed was recovered.
[12] The appellant was charged with break and enter with intent contrary to s. 348(1)(a) of the Criminal Code of Canada, R.S.C. 1985, c. C-46 and possession of stolen property (a Toshiba television) contrary to s. 354 (1)(a) of the Criminal Code. The appellant pleaded not guilty to both counts and elected trial in Provincial Court. The trial was held on August 14, 2014. As noted earlier, the appellant was found guilty on the count of break and enter and a judicial stay was entered on the count of possession of stolen property. On November 17, 2014, Judge Curran sentenced the appellant to a term of imprisonment of 30 months in a federal penitentiary.
[13] By Notice of Appeal dated November 26, 2014, the appellant appealed from both conviction and sentence. The Notice of Appeal was amended by order of this Court issued November 6, 2015; the appeal from sentence was abandoned.
Issues
[14] The appellant raises three issues in the Amended Notice of Appeal:
1. That the trial judge erred in law in finding that evidence introduced through a Crown witness of a declaration made by the appellant was inadmissible hearsay;
2. That the trial judge erred by failing to consider whether the innocent explanation of the appellant's possession of the property might reasonably be true; and
3. That the trial judge erred in failing to properly apply the doctrine of recent possession by failing to consider whether the appellant was merely a possessor of the property as opposed to the thief.
Analysis
[15] The first two issues can be considered together.
[16] The appellant’s submissions on these two issues focus on ¶11 of the trial judge’s decision where he says:
[11] Mr. O’Neil said there was “evidence” of another explanation for the source of the TV Mr. Gogan brought to Mr. Ryan’s place: that is, that it was a gift from a friend who had moved. There was, however, no evidence of any such thing, nothing the Court could accept, but merely an assertion allegedly made by Mr. Gogan. There is no basis upon which the Court could conclude that the assertion even could have been the truth, if proffered as the truth. The evidence led was pure hearsay, neither necessary nor reliable, and not falling under any of the historic exceptions to the hearsay rule. It doesn’t matter that it was the Crown that called the witness or that these comments were made during the course of direct examination.
[17] The appellant argues the trial judge incorrectly characterized the statements to Ms. McKenzie and Mr. Ryan as inadmissible hearsay. This error precluded him from properly considering whether the evidence provided an explanation for Mr. Gogan being in possession of the television.
[18] The Crown has properly conceded that the evidence of the Crown witnesses, Ms. McKenzie and Mr. Ryan, as to what the appellant told them about the television, was admissible. The evidence was elicited by the Crown on direct examination. It then became evidence for the accused as well as against him (see R. v. Hoben, 2009 NSCA 27, ¶17). It was an error of law to characterize the evidence as inadmissible hearsay.
[19] The Crown says that is not determinative of the appeal; it argues the error is of no consequence and we should apply the curative proviso in s. 686(1)(b)(iii) of the Criminal Code which provides:
686 (1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal
[…]
(b) may dismiss the appeal where
[…]
(iii) notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph (a)(ii) the appeal might be decided in favour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred;
[20] The proviso was recently considered by the Ontario Court of Appeal in R. v. Rawn, 2015 ONCA 396. In describing its application Watt, J.A. wrote:
[37] Not every error in a criminal trial warrants appellate intervention. Some do. Others do not. Errors of law are not always fatal. Under s. 686(1)(b)(iii) of the Criminal Code, convictions can be upheld despite errors of law provided the error has not resulted in a substantial wrong or miscarriage of justice: R. v. Van, 2009 SCC 22, … at para. 34.
[38] The burden of showing an appellate court that the proviso of s. 686(1)(b)(iii) should be applied and the conviction sustained despite the error rests on the Crown: Van, at para. 34. Two categories of error may be saved by the proviso. An error may be so minor or harmless that it could not have had any impact on the verdict. A second category consists of serious errors, which would otherwise justify a new trial or acquittal, except that the evidence against the appellant is so overwhelming that any other verdict would have been impossible to obtain: Van, at para. 34. Where the evidence against an accused is so powerful and no realistic possibility exists that a new trial would yield a different result, the proviso should be applied to avoid the cost and delay of further proceedings: Van, at para. 36; and R. v. Jolivet, 2000 SCC 29 … at para. 46.
[21] In my view, this is a proper case for the application of the proviso to cure the defect and maintain the conviction for three reasons which I will now outline.
1. The Defence Position at Trial
[22] At this point, it is worthwhile to review what has been sometimes called the doctrine of recent possession. The Supreme Court of Canada in R. v. Kowlyk, [1988] 2 S.C.R. 59 reviewed the so-called doctrine:
4. Before going further, it will be worthwhile to recognize what is involved in the so‑called doctrine of recent possession. It is difficult, indeed, to call it a doctrine for nothing is taught, nor can it properly be said to refer to a presumption arising from the unexplained possession of stolen property, since no necessary conclusion arises from it. Laskin J. (as he then was) (Hall J. concurring) in a concurring judgment in R. v. Graham, supra, said at p. 215:
The use of the term "presumption", which has been associated with the doctrine, is too broad, and the word which properly ought to be substituted is "inference". In brief, where unexplained recent possession and that the goods were stolen are established by the Crown in a prosecution for possessing stolen goods, it is proper to instruct the jury or, if none, it is proper for the trial judge to proceed on the footing that an inference of guilty knowledge, upon which, failing other evidence to the contrary, a conviction can rest, may (but, not must) be drawn against the accused.
He went on to point out that two questions, that of recency of possession and that of the contemporaneity of any explanation, must be disposed of before the inference may properly be drawn. He made it clear that no adverse inference could be drawn against an accused from the fact of possession alone unless it were recent, and that if a pre‑trial explanation of such possession were given by the accused and if it possessed that degree of contemporaneity making evidence of it admissible, no adverse inference could be drawn on the basis of the recent possession alone if the explanation were one which could reasonably be true. Implicit in Laskin J.'s words that recent possession alone will not justify an inference of guilt, where a contemporaneous explanation has been offered, is the proposition that in the absence of such explanation recent possession alone is quite sufficient to raise a factual inference of theft.
[Emphasis added]
[23] After discussing further developments in the law, the Court concluded:
7. On the basis of the Canadian authorities referred to above, I am of the view that it is clearly established in Canadian law that the unexplained recent possession of stolen goods, standing alone, will permit the inference that the possessor stole the goods. The inference is not mandatory; it may but need not be drawn. Further, where an explanation is offered for such possession which could reasonably be true, no inference of guilt on the basis of recent possession alone may be drawn, even where the trier of fact is not satisfied of the truth of the explanation. The burden of proof of guilt remains upon the Crown, and to obtain a conviction in the face of such an explanation it must establish by other evidence the guilt of the accused beyond a reasonable doubt.
[Emphasis added]
[24] The trial judge referred to the recent possession of stolen goods in his decision:
[19] And there is the question of so-called recent possession of stolen goods on the basis of which a Court may, but not must, infer that the person in possession of goods was the thief or one of them. In this case, we have Mr. Gogan going to the Ryan/McKenzie home, talking about getting a TV from the residence of an alleged friend who had moved, and returning minutes later with what turned out to be Mr. MacDonald’s TV. In these circumstances, Mr. Gogan’s possession leads to an irresistible conclusion that he was the thief or at least one of them. I think the notion that there might have been more than one is supported by the fact that there were other items also missing from the MacDonald home which were not in the possession of Mr. Gogan, and which apparently haven’t been found by the police or returned to Mr. MacDonald.
[25] With this backdrop, I will return to the appellant’s arguments.
[26] On this appeal the appellant concedes the television which was in his possession was, in fact, the television stolen from Mr. MacDonald (Appellant’s factum, ¶30). However, that was not the appellant’s position at trial. The appellant’s argument before the trial judge was that the Crown had not proven that the television which was in the possession of Mr. Gogan was the television which was stolen from Mr. MacDonald. He raised issues with respect to whether it was a 42” or 46” television. When speaking to the doctrine of recent possession at trial, Mr. Gogan’s counsel said the following:
… my point to the doctrine of recent possession that the Court has to be satisfied there’s no other possibility to explain the possession. In this case, they haven’t established possession. …They haven’t established possession of the TV that was described had been stolen. What they got was a 42-inch. Not the same thing at all, period.
They look at a cut cord. There’s any number of reasons for that. There’s not a logical necessity that this would be the TV. Had it had distinguishing features, if it was pink or an unusual TV, if it was an antique, sometimes things can be identified clearly without a serial number if they’re unique or rare or uncommon object. This was a Toshiba TV. For all we know, there could have been 30 within a mile. I don’t know.
[Emphasis added]
[27] In other words, the defence argued it was unnecessary, and improper, for the trial judge to even consider the doctrine of recent possession of stolen goods as the Crown had not proven that the television in the possession of Mr. Gogan was stolen.
[28] The evidence was not argued to be a justification for being in possession of a stolen television but rather, an explanation for being in possession of a television at that time.
2. The Trial Judge Considered the “Evidence”
[29] Even though the trial judge said that the evidence led was hearsay, he considered it. Again, it is important to recognize that the trial judge was considering it in light of the argument being made by defence counsel at trial – that was – that there was another explanation for the source of the television that Mr. Gogan had at Mr. Ryan’s house. The trial judge considered the explanation and dismissed it as not capable of being true (see R. v. Kowlyk, ¶ 7). I, again, quote from his decision where he said:
[11] … There is no basis upon which the Court could conclude that the assertion even could have been the truth, if proffered as the truth. …
[30] He continues on:
[16] Mr. Gogan’s defence hinges on the possibility that on one and the same evening, the Toshiba TV with cords cut that Mr. Gogan retrieved from a residence just a few minutes’ walk from 4½ Davidson Street (and I say “a few minutes’ walk because the evidence is that Mr. Gogan was at the McKenzie/Ryan residence, borrowed a wagon, left and came back a few minutes later with the TV set)… so I’ll say again, the possibility that the TV with cords that he retrieved within a few minutes’ walk from 4½ Davidson Street might have been a different set than the same sized Toshiba TV with cords cut stolen from Mr. MacDonald’s home that evening, just a few minutes’ walk from 4½ Davidson Street. I’m saying it’s the same size because when Mr. MacDonald got back the TV set that had been picked up by the police in the search, it was clear to him it was the same size. He would have recognized it wasn’t the same size if it hadn’t been, even though he couldn’t’ say for sure whether it was a 42 or 46 inch.
[17] Just to say that there might have been two such sets on such a small street at the same time, both with cords cut, shows the absurdity. No rational person would believe that could be true. Had the TV retrieved from the Gogan home not contain cut cords, it might have been harder to be satisfied of the identity of the TV taken and the TV retrieved or picked up by police, but with the cut cords present, there is no doubt whatever.
[31] Finally, he considers it again in the passage which I had cited earlier and I repeat:
[19] …In this case, we have Mr. Gogan going to the Ryan/McKenzie home, talking about getting a TV from the residence of an alleged friend who had moved, and returning minutes later with what turned out to be Mr. MacDonald’s TV. …
[32] It is clear from reading his decision that, despite his incorrect characterization of the evidence, he considered it, and found it to be a complete fabrication, not capable of belief. As a result, it could not stand as an explanation for possession of the stolen television.
3. Mr. Gogan was not in possession of the television at the time the statements were made
[33] When Mr. Gogan made the statements to Ms. McKenzie and Mr. Ryan, he was not in possession of the television and, therefore, the utterance was not contemporaneous with being found in possession of the stolen goods. I refer again to R. v. Kowlyk. I will not repeat what I have already cited from that case, however, there are two elements to the doctrine of recent possession and the applicability of any explanation – there must be recency of possession and a contemporaneous explanation for it (¶4). In this case, the proposed explanation for being in possession of the goods was before any possession and was not contemporaneous with being found in possession of those goods. In my view, it cannot be an explanation for the recent possession of the stolen goods.
[34] I will now turn to the appellant’s final argument – that is the trial judge erred in failing to properly apply the doctrine of recent possession by failing to consider whether the appellant was merely a possessor of property as opposed to the thief.
[35] The appellant acknowledges that this is an extension of the argument advanced with respect to the two issues which I have disposed of above. I would dismiss this ground of appeal for two reasons: first, the appellant did not argue at trial that he was in possession of a stolen television. He argued that the television in his possession was not stolen property.
[36] Second, and more importantly, was the evidence of the timing of Mr. Gogan coming into possession of the television. He left Mr. Ryan’s apartment with the wagon and returned minutes later with the stolen television.
[37] A person was heard in the area of Mr. MacDonald’s house and someone was seen shortly thereafter with items on a wagon. As the trial judge noted, it would have been a truly remarkable coincidence that there would be two televisions, matching the same description, with the cords cut on them, on that short street in Amherst, on that night at the same time.
[38] The trial judge, correctly, first considered whether the Crown had proven that the television was stolen. He was satisfied that it was. He then went on to consider whether Mr. Gogan’s possession of the television led to the inference that he was the thief. The trial judge found it did. It was an inference which he was not required to make, but was entitled to make, and was not in error in so doing. I would also dismiss this ground of appeal.
[39] For these reasons, despite the trial judge having mischaracterized the evidence, I am satisfied the appellant’s conviction should be affirmed. The trial judge’s error could not have had any impact on the verdict.
Farrar, J.A.
Concurred in:
Beveridge, J.A.
Scanlan, J.A.