R. v. Griffith

R. v. Griffith Collection Decisions of the Court of Appeal Date 2018-11-01 Neutral citation 2018 ONCA 875 Docket numbers C63731 Judges MacPherson, James C.; Miller, Bradley; Paciocco, David M. Subject Criminal Decision Content COURT OF APPEAL FOR ONTARIO CITATION: R. v. Griffith, 2018 ONCA 875 DATE: 20181101 DOCKET: FILE C63731 MacPherson, Miller and Paciocco JJ.A. BETWEEN Her Majesty the Queen Respondent and Terrell Griffith Appellant Paul Calarco, for the appellant Jacob Sone, for the respondent Heard: October 29, 2018 On appeal from the conviction entered on September 21, 2016 by Justice Johanne Morissette of the Superior Court of Justice. REASONS FOR DECISION [1] The appellant, Terrell Griffith, was convicted of robbery and using an imitation firearm in the commission of that offence by Morissette J. of the Superior Court of Justice. He was sentenced to six months’ incarceration for the robbery offence and 12 months’ consecutive for the use firearm offence. He appeals the convictions. [2] Around 2:00 a.m. on March 5, 2015, two men robbed a taxi driver by the Thames River in London. One of the men used an apparent handgun. The robbers fled toward the partially frozen river. Police responded quickly to the taxi driver’s call for help. On the other side of the river, the police spotted the appellant, who matched the general description of one of the robbers. The appellant ran away from the police, jumping over a series of fences into the backyards of houses. The police caught him with the help of Bosco, a tracking dog. The appellant’s construction-type boots, socks and pant legs were drenched with water. [3] Bosco was then taken to the scene of the robbery. He found the appellant’s scent trail. The scent trail led from the area of the robbery to the edge of the river and then from the opposite bank to where the appellant had first been spotted by police. There were footprints in the snow that went the same way as the appellant’s scent trail. A replica handgun resembling the one used in the robbery was found in the snow a few steps away from those footprints. [4] The appellant did not testify and did not call any evidence. [5] The trial judge found the appellant guilty of both offences. She said in part: The issue for this court is identification. … The robbery occurred between 2:09 and 2:12 a.m., when the police received a tone alert from the cab. At 2:20, therefore, approximately eight minutes later, a silhouette was seen by Officer Pouliot running up the bank of the west side of the river, through the bush, and crossing at 54 Argyle Street. He saw the silhouette run into the yard, and saw him go over the fence. Approximately one to two minutes later, Officer Stanley deployed Bosco, the tracking dog, in the area where the silhouette was last seen, and he fixated on a fresh human scent and followed it into the yard, over the fence and into 39 St. Andrew’s yard, and over another fence of a chain-link type, into 56 Argyle Street property, where at 2:22 a.m. Officer Stanley called out, “Got the suspect”. The accused was arrested at 2:23 a.m. … So based on the totality of the evidence, the timeline, the description of the perpetrator, the direct evidence of flight from police and jumping fences, the firearm being found in the locality where the accused was seen running, the evidence from Constable Stanley of Bosco’s dialed-in scent of a fresh human scent can only be rationally and logically be inferred that it was the accused who robbed Mr. Abbasey and walked with his accomplice westbound on Ann Street, as Mr. Abbasey saw them do, and then ran down toward the river. At that point, there is no evidence of where and how the gun got across the river, except that the accused was seen running in that same area before he was apprehended. I have no reasonable doubt that the accused is one of the perpetrators in the robbery and is a party to the offence of using an imitation firearm with his accomplice. Accordingly, I find you guilty on both counts. [6] The appellant appeals the convictions on four grounds. [7] First, the appellant contends that the trial judge erred by admitting and relying on the dog tracking evidence. In her ruling, the trial judge said: For the purposes of the admissibility of the evidence, I believe that Officer Stanley has particularly highlighted the success rate, not within the field but within the testing and the recertification of the higher standard by London Police Services. So for the admissibility, per se, I will allow it. Of course, then, there is cross-examination with respect to the evidence itself that will go to the issue of weight and what I apply to it. So I will allow the evidence to be admitted. [8] The appellant submits that the trial judge erred by concluding that Bosco’s test and certification scores were enough to warrant admission of the evidence relating to his role in the apprehension of the appellant. More was needed, specifically evidence relating to Bosco’s performance in the field in actual cases. [9] We do not accept this submission. In our view, the preconditions for admissibility were met in this case. Bosco had been a tracking dog for three years. He received extensive training and evaluation throughout the three year period. The standard he reached and maintained was the London Police Service standard which is even higher than the provincial standard. Officer Stanley had logs and statistics for all the training Bosco had done. Bosco was always successful in tracking scenarios. Indeed, during the relevant period, Officer Stanley led the unit in statistics, including the time he spent with Bosco. Finally, Officer Stanley gave detailed evidence about Bosco’s performance in this case. These factors, taken together, easily make the evidence relating to Bosco’s tracking in this case admissible within the test set out by Rosenberg J.A. in R. v. Holmes (2002), 62 O.R. (3d) 146 (C.A.), at para 37. [10] Second, the appellant submits that the trial judge made inappropriate use of post-offence conduct evidence, specifically the appellant’s flight from the police. She should have considered other possible explanations for the flight, including an irrational or alcohol induced fear. [11] We are not persuaded by this submission. There was no defence evidence on this issue, or on any other issue. As the trial judge said, “there is no evidence of fear of police.” The only reasonable inference in all of the circumstances was that the appellant was fleeing the robbery, to avoid being implicated in it. [12] Third, the appellant asserts that the trial judge minimized the evidence relating to the appellant’s intoxication to the point of non-existence, thus failing to recognize that there was a fundamental inconsistency between his highly intoxicated state and the robbery suspects, who were described as showing no signs of intoxication. [13] We disagree. The trial judge was entitled to reject the defence position that the appellant was “quite heavily intoxicated by alcohol” based on the evidence relating to the appellant’s physical appearance and physical activity. [14] Fourth, the appellant submits that the trial judge misapprehended the evidence relating to the appellant’s location once the police arrived on the scene. [15] We do not accept this submission. The trial judge’s description of the evidence relating to the suspect’s location on both sides of the river was essentially accurate. [16] The appeal is dismissed. “J.C. MacPherson J.A.” “B.W. Miller J.A.” “David M. Paciocco J.A.”