R. v. Shojaei

R. v. Shojaei Collection Decisions of the Court of Appeal Date 1999-10-26 Docket numbers C28661 Judges Weiler, Karen Merle Magnuson; Abella, Rosalie Silberman; Goudge, Stephen Thomas Subject Criminal Decision Content DATE: 19991026 DOCKET: C28661 COURT OF APPEAL FOR ONTARIO RE: HER MAJESTY THE QUEEN (Respondent) –and– BAHRAM SHOJAEI (Appellant) BEFORE: WEILER, ABELLA and GOUDGE JJ.A. COUNSEL: David E. Harris, for the appellant Eric Siebenmorgen, for the respondent HEARD: October 18, 1999 On appeal from the summary conviction appeal decision of Ferguson J. dated November 13, 1997. ENDORSEMENT [1] The appellant seeks leave to appeal and to appeal his conviction for theft of a walkman. The appellant went to Costco and was observed by a store security guard to pick up a walkman package. When apprehended, the appellant was wearing headphones for a walkman and there was a cassette tape in the walkman. The appellant told the security guard that the walkman was his. The security guard called the police who arrested the appellant. [2] At trial, the security guard testified that he had seen the appellant take the walkman out of its package, put the headphones on and insert a cassette tape into the walkman. He acknowledged that there are no batteries in a new walkman. The appellant testified that he had gone to the store intending to purchase another walkman as a gift for a relative and had picked up a walkman package. The appellant said he realized the package was too light, that it must have been an empty box and discarded it. The appellant maintained that the walkman he was wearing when apprehended was his and produced a receipt showing the purchase of a walkman of the identical make and model nine days before the date of the alleged theft. [3] The appellant claimed that there were batteries in the walkman, that he had pre-set the radio stations and that, given the opportunity, he could show this to the court. The walkman could not be produced to the court as, pursuant to store policy, the walkman had been repackaged and sold. The appellant testified that the arresting officer had told him the walkman would be kept and produced at trial. The appellant claimed that his right to make full answer and defence had been infringed because he could not demonstrate that the walkman he was wearing had batteries in it and pre-set radio stations. No prior notice of the constitutional challenge was given to the Crown. The arresting officer was not called by either party. The trial judge convicted the appellant and his appeal to a summary conviction appeal court judge was dismissed. [4] We are mindful that leave to appeal to this court may only be taken on a question of law that is of importance. We are, however, of the opinion that, given the state of the record in the court of first instance, we are unable to properly consider the appellant’s constitutional challenge. The court of appeal may, however, review the record to ascertain if the “trial judge made a patent legal error” even if the matter was not raised at the summary conviction appeal: R. v. Anderson (1996), 111 C.C.C. (3d) 540 (B.C.C.A.), leave to appeal to S.C.C. refused May 1, 1997. Additionally, an appeal court, in considering whether the verdict at trial was unreasonable, may review the findings of fact made at trial to determine whether the summary conviction appeal court was correct in dismissing the appeal: R v. W. (G) (1996), 93 O.A.C. 1 (C.A.). In the particular circumstances of this case, we have come to the conclusion that the trial judge failed to consider the importance of the missing walkman and that, in light of the defence put forward, the verdict cannot be maintained. [5] Accordingly, we would grant leave to appeal, allow the appeal and set aside the conviction. In the circumstances, an acquittal is appropriate and we so order. Signed: “Karen M. Weiler J.A.” “R.S. Abella J.A.” “S.T. Goudge J.A.”