A Surrey man is getting a new trial after the B.C. Court of Appeal overturned his conviction for possession of stolen property over $5,000 involving a stolen semi-truck in a residential cul-de-sac
A Surrey provincial court judge had found Jörg Rautenberg guilty on Oct. 26, 2o17. He filed his appeal on the basis that the trial judge erred by relying on the time of the year to reach her decision that he had the requisite mental state for conviction.
The court heard police acting on a tip spotted the truck stopped in the middle of the street at 10:35 p.m. on June 11, 2016. Two men were trying to jump-start the vehicle. Rautenberg told police he was helping his friend get his vehicle started, and the officers let him leave the scene.
After Rautenberg left, the court heard, one of the constables noticed damage to the ignition below the steering wheel and to a radio above the windshield.
“Wires were dangling from both,” Appeal Court Justice Mary Saunders noted, following a hearing in Vancouver. “The police also observed other items and a piece of identification in the centre console in the name of the man in the passenger seat. In time it was learned that the vehicle was stolen, and the appellant was charged with the single count before us.”
The trial judge convicted Rautenberg, finding he knew or was wilfully blind to the truck having been stolen because the lighting at that time of year was sufficient for him to see the dangling wires. The appeal court heard she wrongly stated the police arrived at 10 p.m.
The constable testified the scene was relatively dark, illuminated only by driveway lights and “residential lighting kinda thing.” Both police cars had their lights on, with the blue and red emergency lights flashing on one of them. The trucks headlights or interior lights weren’t on.
Saunders found that the provincial court judge’s decision to convict, based on the constable’s testimony that the lighting would have been adequate for Rautenberg to see the wires, and also taking the time of year into account, “reflects a misapprehension of the evidence.”
“Crown counsel agree that there was no evidence as to the presence of natural light,” Saunders noted in her reasons for judgment. “I take it that the Crown accepts that it was an error for the judge to consider that there was residual light to augment whatever other light the properties in the cul-de-sac provided.”
The appeal court judge noted that June 11 is “time-proximate to the summer solstice, when daylight can linger,” she noted – up until about the time police arrived at the cul-de-sac, but for them arriving at 10:35 p.m. and not 10 p.m., as the trial judge thought.
“Her comment may be an instance of taking judicial notice of the earth’s celestial movement,” Saunders noted. But in the context of police arriving at 10:35 p.m., “however, the comment loses this astronomical rationale.”
“The question is whether the error I have identified fatally undermines the verdict,” Saunders said. “In my view, it does.“
Justices David Harris and Gail Dickson agreed with Saunder’s decision to set aside Rautenberg’s conviction and order a new trial.