R. v. Smithen-Davis, 2019 ONCA 917
CIRCUMSTANTIAL EVIDENCE - EVANS ANALYSIS
Background
The appellants, Smithen-Davis and Hamilton, were convicted of breaking and entering with intent to commit an indictable offence. The two appellants and a third perpetrator broke into a home in December 2012. The third invader was shot by the homeowner, the appellants fled before the police arrived. The sole issue at trial was identity; the Crown’s case was entirely circumstantial. For example, DNA on a pair of gloves and shoes found near the home matched the two appellants (although the shoes and gloves also contained DNA profiles of other individuals. Similarly, BBM text messages recovered from the deceased perpetrator’s phone revealed that the deceased and two users (one named J and one named Logix) planned to meet-up after the break-in. Cell phone records demonstrated that Smithen-Davis’ cell phone was near the home 30 minutes before the break-in.
Smithen-Davis’ Appeal
Smithen-Davis argues his conviction was unreasonable given the weakness of the circumstantial evidence. He submits that the trial judge erred by failing to account for reasonably available alternative inferences that arose from the circumstantial evidence.
The question of what constitutes a reasonable alternative inference is uniquely for the trier of fact: “it is 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” - R v Villaroman, 2016 SCC 33 at para 56.
The trial judge reviewed the evidence before him, considered Smithen-Davis’ alternative inferences and ultimately chose to reject them. There is no basis for the ONCA to interfere with the trial judge’s reasoning.
Hamilton’s Appeal
Hamilton submits that the trial judge took improper judicial notice of the fact that people do not tend to change their cell phone numbers (in finding that Hamilton was “Logix” in the deceased’s phone). In finding that ‘Logix’ was Hamilton the trial judge relied on evidence arising from the agreed statement of facts. For example, the trial judge relied on the fact in 2014 the Logix cellphone was registered to a Willy Rufford at 1721 Eglinton Ave W in Toronto. In 2016, the alternate contact number provided in the Rufford registration was formerly associated with a business Hamilton operated. The trial judge noted that the likelihood that someone other than Hamilton was using this phone in 2012 when the 2014 registered user’s alternate contact was a number Hamilton had used for his business was “infinitesimally small”. Additionally, the trial judge noted that while people regularly change physical cell phones they do not tend to change their cell phone numbers.
The trial judge gave multiple reasons affirming how and why there was evidence linking Hamilton to the Logix username. The trial judge’s comment about the unlikely coincidence was not one of these enumerated reasons but rather a mere comment in passing. The substance of the trial judge’s reasons for rejecting Hamilton’s submission sufficiently justified the trial judge’s conclusion that Hamilton was Logix.
Relying on R v Evans, [1993] 3 SCR 653, the trial judge used the contents of the BBM messages in combination with the DNA evidence as evidence of Hamilton’s identity as Logix. Evans states that out-of-court statements may have probative value on the issue of identity because “the fact that certain representations were made… narrows the identity of the declarant to the group of people who are in a position to make similar representations.” Hamilton submits that the trial judge was restricted to considering statements against Hamilton and could not consider Hamilton’s statements in the context of the conversation with the deceased in determining whether Hamilton was a probable member of the conspiracy. The ONCA rejects this argument. A preliminary issue in determining whether Hamilton was a probably member of the conspiracy was the question of Logix’s identity. It was entirely proper, and sufficiently supported by the evidence for the trial judge to turn to the conspiracy question after determining Hamilton was Logix.
Simmons JA, writing for the court, dismisses both conviction appeals.