R. v. Travis, 2012 ABQB 629

Court of Queen ’ s Bench of Alberta Citation: R. v. Travis, 2012 ABQB 629 Date: 20121016 Docket: 120026786S1 Registry: Peace River Between: Her Majesty the Queen Respondent/Crown - and - Chad Cameron Travis Appellant/Accused _______________________________________________________ Reasons for the Decision of the Honourable Mr. Justice Keith D. Yamauchi _______________________________________________________ I. Introduction

[ 1 ] The Crown charged Chad Cameron Travis [the “appellant”] with the following offences under the Criminal Code of Canada [ Criminal Code] : Count 1: On or about the 7th day of January 2012, at or near Swan River First Nation, in the Province of Alberta, did in committing an assault upon, Lawrence George Travis, cause bodily harm to him contrary to

section 267 (

b) of the Criminal Code ; Count 2: On or about the 7th day of January 2012, at or near Swan River First Nation, in the Province of Alberta, did utter a threat to, Lawrence George Travis, cause death to him contrary to

section 264.1(1) (

a) of the Criminal Code ; Count 3: On or about the 7th day of January 2012, at or near Swan River First Nation, in the Province of Alberta, did without lawful authority confine, Lawrence George Travis, contrary to section 279(2) of the Criminal Code ; Count 4: On or about the 7th day of January 2012, at or near Swan River First Nation, in the Province of Alberta, did while bound by a probation order made by Judge M.B. Golden on January 19, 2011, fail without reasonable excuse to comply with such order, to wit , keep the peace and be of good behaviour, contrary to

section 733.1(1) of the Criminal Code . [ 2 ] The Crown proceeded summarily on each of the charges. At the conclusion of the trial, which took place on March 13, 2012, the learned Provincial Court judge convicted the appellant on Counts 1, 2, and 3, and acquitted him on Count 4.

At the appellant's sentencing hearing on March 26, 2012, the learned Provincial Court judge imposed sentences of 18 months on each charge, to be served consecutively to each other, for a total of 54 months. [ 3 ] The appellant appeals his conviction and sentence on the following grounds: A. the appellant did not have effective assistance of counsel; B. the learned Provincial Court judge erred in not allowing an adjournment of the trial proceedings following the close of the Crown’s case; C. the learned Provincial Court judge erred by misconstruing the evidence presented at the trial; and D. the learned Provincial Court judge erred in principle when sentencing the appellant and that the sentence is demonstrably unfit. [ 4 ] For the purposes of hearing the submissions of counsel during this appeal, this Court reviewed their written briefs, along with the materials and cases attached to their written briefs.

This Court also reviewed the March 13, 2012 trial transcript (the “Trial Transcript”) and the March 26, 2012 sentencing transcript (the “Sentencing Transcript”). As well, this Court reviewed an affidavit that the appellant swore on October 5, 2012 (the “Affidavit”). II. Evidence at Trial [ 5 ] On January 7, 2012, at 3:09 a.m. the Royal Canadian Mounted Police (“RCMP”) received a 911 call from a cellular phone where a male had requested help. The caller left the cellular telephone line open.

The RCMP ascertained that the cellular telephone’s owner was the complainant, Lawrence George Travis (the “Complainant”), and that the location of the cellular telephone, given by GPS coordinates, was approximately two kilometers north of Highway 2 between range roads 101A and 100A. [ 6 ] In their efforts to locate the caller, the RCMP attended at a residence in Swan River, Alberta with the first officers on the

scene, Cst. Pysklywyc and Cst. Lawson, who conducted a preliminary check of the residence. There were about nine people at the residence, and they were not cooperating with the police. Cst. Pysklywyc and Cst. Lawson left the residence and decided to wait for backup: Trial Transcript, p 26, ll 21-28; p 30, ll 7-10. [ 7 ] Approximately 10 to 15 minutes later, Cst. Gingras arrived at that location with his partner, Cst. Tress. The officers then approached the residence again. Cst. Gingras "secured" the residence. Cst. Gingras testified that he never saw the Complainant at the residence.

The Complainant continued to be in contact with the RCMP through the dispatch centre in Edmonton. Cst. Gingras became aware that the Complainant was not in the residence that the RCMP were securing but was actually in an adjacent residence. [ 8 ] The Complainant then came out of the adjacent residence and was "proned" out on the ground "as a high risk": Trial Transcript, p 28, ll 20-21. Cst. Gingras noted that the Complainant was intoxicated by alcohol: Trial Transcript, p 31, ll 8-10. Cst. Gingras also observed that the Complainant had a big lump on his head and bruises: Trial Transcript, p 28, ll 34-36. Cst.

Gingras also provided the following: Q Okay. How would you describe his demeanor at the time you were dealing with him? A He wanted to cooperate with us. At the same time, he didn’t cooperate because he was injured and had some difficulty to move when we were asking him to do – to get on the ground, for example. He wasn’t – he wasn’t able to do. So he was injured. Trial Transcript, p 28, ll 38-41; p 29, ll 1-2. [ 9 ] The Complainant had called the RCMP three times. During the first call, he is heard asking for help. During the second call, the sounds of the Complainant being beaten can be heard.

The Complainant made the third call once he had fled from the residence and was hiding in a nearby residence. [ 10 ] Around lunch time on January 7, 2012, the Lakeshore Police arrested the appellant while he was driving on the highway close to Kinuso, Alberta. [ 11 ] The evidence of the Complainant and the appellant conflicted. Essentially, the Complainant testified that the appellant attacked him because the Complainant had previously testified against the appellant on unrelated charges. The appellant testified that the Complainant was angry because the appellant would not drive him to see his girlfriend.

The Complainant was then looking to fight a person (not the appellant), and that the Complainant was not happy that the appellant did not come to back him up. The appellant testified that the Complainant was beaten up by this other individual. [ 12 ] It is noteworthy that the learned Provincial Court judge found as a fact that the Complainant had spinal surgery just three weeks before the incident in question occurred. III.

Procedure at the Trial [ 13 ] The trial of the matter took place on March 13, 2012, which was 66 days after the date of the alleged offences. [ 14 ] The Crown called two witnesses, the Complainant and Cst. Didier Charles Gingras. The appellant's trial counsel did not subpoena any police witnesses, although he called three witnesses, the appellant, Nicole Ann St. Cyr and Jordan Cherie Willier. Cst. Gingras testified in a voir dire to determine whether the 911 recordings, and a transcript of those recordings would be entered as exhibits in the trial.

That evidence was proffered in the trial proper with the appellant’s trial counsel’s consent: Trial Transcript p 36, ll 6-13. [ 15 ] At the conclusion of the Crown's case, which was at 5:30 p.m., the appellant's trial counsel requested an adjournment because:

(

a) it was late; (

b) he was a diabetic who needed to eat; and (

c) he wanted an opportunity to subpoena Cst. Pysklywyc. [ 16 ] The learned Provincial Court judge refused the appellant’s adjournment application. [ 17 ] Neither the Crown’s counsel nor the appellant had subpoenaed Cst. Pysklywyc, so he was not at the court house that day. The learned Provincial Court judge denied the appellant’s request for an adjournment as it related to Cst.

Pysklywyc on the grounds that there was not a subpoena issued for him by either the Crown or the appellant. [ 18 ] The learned Provincial Court judge adjourned court for one-half hour before the appellant called his case to allow the appellant’s trial counsel to get something to eat. III. The Decision of the learned Provincial Court Judge [ 19 ] Following the trial, the learned Provincial Court judge delivered oral reasons for his decision. They went on for just over six pages of the Trial Transcript: Trial Transcript, pp 123-129.

The learned Provincial Court judge reviewed the testimony that was presented to him. He then made findings of credibility, and ruled on the charges before him. IV. Analysis [ 20 ] This Court will analyze each of the grounds of appeal separately, along with the standard of review that applies to each. A. Whether the appellant had effective assistance of counsel [ 21 ] The appellant provides this Court with five situations that show the incompetence of his trial counsel, being: a. failure to subpoena Csts.

Pysklywyc and Lawson; b. failure to request disclosure and obtain disclosure, including the notes and reports of Csts. Pysklywyc and Lawson; c. failure to subpoena other key RCMP witnesses, including Cst. Kerr; d. failure to request and obtain the photographs of the residence that Cst. Kerr took; and e. failure to call Cst. Cardinal.

This Court will deal with each of these situations individually and then look at them to determine whether they, in their totality, exhibit incompetence or ineffectiveness of the appellant’s trial counsel. a. Failure to subpoena Csts. Pysklywyc and Lawson [ 22 ] Csts. Pysklywyc and Lawson were the first officers on the scene, and they entered the residence where the Complainant was apparently to be located. They went down to the basement, where many of the occupants fled, including the appellant, by jumping out of the basement windows. The Complainant testified that Csts.

Pysklywyc and Lawson saw him and that he was bleeding from the nose, mouth and ears. [ 23 ] The appellant argues that the Complainant testified that while Csts. Pysklywyc and Lawson saw him in the basement he did not interact with them, but that he "chased" after them after they had left the house. The evidence by and on behalf of the appellant was that the Complainant had gone in and out of the house at least two times, and that he had lied to Csts. Pysklywyc and Lawson because he thought “he had warrants,” and further that he had gone outside with at least one of the police officers.

The learned Provincial Court judge noted that the appellant and his witness Nicole St. Cyr testified that the Complainant had walked out with the police, but "[n]one of that is verified by any police testimony": Trial Transcript, p 127, l 9. [ 24 ] The Crown’s counsel argues that any evidence that Cst. Pysklywyc might have provided is speculative and would not, in any event, have assisted the appellant in his case. Csts. Pysklywyc and Lawson conducted a primary check of the residence and were met by resistance in the form of uncooperative individuals while at the residence.

It was then that they decided to retreat and wait for backup. Cst. Pysklywyc and Cst. Lawson never made contact with the Complainant at that time. In fact, it argues, the Complainant never even saw the police officers. The residence was dark, and Csts. Pysklywyc and Lawson were using their flashlights. When met with resistance, they left the residence and waited for police backup. [ 25 ] The Crown’s counsel argues that Cst. Pysklywyc and Cst. Lawson did not examine the scene. From the evidence, it appears that they had very limited interaction with the party-goers. To assume that Csts.

Pysklywyc and Lawson saw the Complainant would be contrary to the evidence of Cst. Gingras who stated that when he attended the scene after Csts. Pysklywyc and Lawson, he did not know the whereabouts of the Complainant: Trial Transcript p 27, ll 10-38. [ 26 ] The Crown’s counsel argues that for the appellant to argue that Cst. Pysklywyc is a key witness is speculative at best. The only evidence that the Complainant interacted with Cst. Pysklywyc in the basement of the residence comes from the appellant. b. Failure to request disclosure and obtain disclosure, including the notes and reports of Csts.

Pysklywyc and Lawson [ 27 ] The appellant’s argument on this factor is similar to the one he makes concerning whether his trial counsel should have subpoenaed Cst. Pysklywyc. Not surprisingly, the Crown’s arguments mirror their arguments on that issue, as well. c. Failure to subpoena other key RCMP witnesses, including Cst. Kerr [ 28 ] The appellant argues that his trial counsel did not call Cst. Kerr as a witness, despite his request to do so. [ 29 ] The Complainant testified that he was intoxicated by alcohol and drugs and that he had only consumed 4 beers and a small line, an "inch", of cocaine.

The appellant and Ms. St. Cyr testified that the Complainant was intoxicated by both drugs and alcohol, and that he had consumed 8 beers before arriving at the house party, and that he consumed more beer there, and that he also used cocaine and smoked crack cocaine. [ 30 ] Cst. Kerr's general report stated that he made the following observations regarding the Complainant:

Lawrence TRAVIS was very intoxicated both by alcohol and drugs, he was uncooperative, was rude with members. Lawrence TRAVIS was unable to tell members what happened, who was involved, or any other details. [ 31 ] The appellant argues that because the learned Provincial Court judge had to deal with issues of credibility as among the appellant, Ms. St. Cyr and the Complainant, Cst. Kerr’s evidence would have assisted the learned Provincial Court judge. [ 32 ] The Crown’s counsel argues that evidence that Cst. Kerr could provide would not have changed the course of the trial. Cst.

Kerr’s evidence that the Complainant was drunk and uncooperative when he interacted with the police during the early morning hours of January 7th 2012, is contrary to that of the Complainant, who stated that he "wasn't very intoxicated": Trial Transcript, p 9, ll 23 -24. As well, although Cst. Gingras testified that the Complainant was intoxicated, he was attempting to be cooperative: Trial Transcript, p 28, ll 38-41; p 29, ll 1-2. d. Failure to request and obtain the photographs of the residence that Cst.

Kerr took [ 33 ] The appellant argues that his trial counsel failed to request and obtain the photographs of the residence that Cst. Kerr had taken. Cst. Kerr's general report stated: Cst. KERR obtained photos of the inside of the residence, no duct tape, or any weapons, or blood were located. There was signs of a party with empty alcohol bottles all over the residence mostly in the basement. [ 34 ] The Crown’s counsel argues that the photographs that Cst. Kerr took would have had no impact on the trial. The photographs were taken approximately 20 hours after the incident occurred.

The relevancy and reliability of the photographs is questionable. Failure to request disclosure of the photos falls far from incompetence, and did not prejudice the appellant. e. Failure to call Cst. Cardinal [ 35 ] The appellant argues that his trial counsel failed to subpoena or call Cst. Cardinal to give evidence, despite Cst. Cardinal being present when the Crown's case concluded at 5:30 p.m. The Crown’s counsel subsequently "dismissed" Cst. Cardinal after a meeting between the appellant's trial counsel and the Crown’s counsel. This was after the appellant had asked his trial counsel to call Cst.

Cardinal to testify about the Complainant's first statement being "accidentally erased," which, the appellant argues would show a discrepancy in statements attributed to the Complainant. [ 36 ] At trial, the Complainant testified that he was bound by duct tape at one point but only his ankles. The Prosecutor's Information Sheet that Cst. Cardinal authored, which was the "Initial Disclosure" that the Crown provided to the appellant, contained the following

summary of what the Complainant had initially stated to the RCMP: The victim states that he was then assaulted by the accused and then bound at the feet and hands with duct tape. [ 37 ] The appellant's trial counsel was aware of this discrepancy, as he questioned the Complainant about that issue, with the Complainant denying that he was bound by his hands. The Complainant further denied that he had told the RCMP that he was bound by his hands. However, the appellant’s trial counsel then failed to call Cst.

Cardinal, and he allowed him to be dismissed by the Crown’s counsel. [ 38 ] The Crown argues that the appellant's trial counsel made a tactical decision not to call Cst. Cardinal. No prejudice was created by Cst. Cardinal not being called to testify that he was present for a statement that was "accidentally erased." There was no transcript of the “accidently erased” statement and no other record of the statement. Cst. Cardinal's evidence would be hearsay, and inadmissible.

f. Analysis [ 39 ] The Supreme Court of Canada has provided this Court with guidance on how it should analyze the issue of whether an accused has had the effective assistance of counsel in R. v. B. (GD) , 2000 CarswellAlta 348 at paras 26-29 , 2000 SCC 22 , 143 CCC (3d) 289, where the court said [citations omitted]: ... For an appeal to succeed, it must be established, first, that counsel's acts or omissions constituted incompetence and second, that a miscarriage of justice resulted. Incompetence is determined by a reasonableness standard.

The analysis proceeds upon a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. The onus is on the appellant to establish the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The wisdom of hindsight has no place in this assessment. Miscarriages of justice may take many forms in this context. In some instances, counsel's performance may have resulted in procedural unfairness. In others, the reliability of the trial's result may have been compromised.

In those cases where it is apparent that no prejudice has occurred, it will usually be undesirable for appellate courts to consider the performance component of the analysis. The object of an ineffectiveness claim is not to grade counsel's performance or professional conduct. The latter is left to the profession's self-governing body.

If it is appropriate to dispose of an ineffectiveness claim on the ground of no prejudice having occurred, that is the course to follow ... [ 40 ] Of critical importance is that the onus is on the appellant to rebut the presumption of competence. [ 41 ] The appellant provided this Court with the Affidavit. When one goes through the Affidavit, the primary theme is that the various police officers might provide evidence which calls into question the Complainant’s credibility.

In particular, the Affidavit para 21 says: [The appellant’s trial counsel] failed to Subpoena or call any of these important witnesses on these important issues of the Complainant being intoxicated by alcohol and drugs, there being no duct tape found, there being no weapons found, and there being no blood found. [ 42 ] What is interesting is that the Crown did produce Cst. Gingras as a witness. As well, the appellant and Ms. St. Cyr took the stand. Ms. St.

Cyr was produced as one of the accused’s witnesses. [ 43 ] Equally interesting is the fact that the appellant, on whose shoulders the onus rests, has not provided this Court with any evidence that would help this Court in determining the appellant’s trial counsel’s trial strategy. While this Court is mindful of aspects of solicitor and client privilege, that privilege must yield to the appellant’s rights once he is convicted and is challenging his counsel’s competence. In R. v.

C (LS) , 2003 CarswellAlta 434 at para 30-31 , 2003 ABCA 105 [ C (LS) ], the Alberta Court of Appeal said: We note an increasing tendency on the part of appellate counsel to allege ineffective representation at trial without affording trial counsel the opportunity to respond to that allegation and explain the trial strategy, limitations and instructions. An attack on a lawyer’s competence strikes at the heart of that lawyer’s practice and professional reputation.

Kelly J.A. of the Ontario Court of Appeal considered this issue in the following terms: I consider it most unfortunate that any counsel, carried away by his enthusiastic support of his client’s cause, should permit himself, by reason of his client’s instructions, to make allegations inferring unjust conduct on the part of the Court, or unprofessional conduct on the part of brother solicitors without first satisfying himself by personal investigations or inquiries that some foundation, apart from his client’s instructions, existed for making such allegations.

His duty to his client does not absolve a solicitor from heeding his duty to the

Court and to his fellow solicitors. R. v. Elliott (1975), (ON CA), 28 C.C.C. (2d) 546 at 549. It would be inappropriate for this court to rule on whether the representation provided by trial counsel was ineffective orinadequate, absent an opportunity for input from that counsel. The nature of the onus on the accused also supports the need for evidence from trial counsel. ...

Absent evidence revealing that theapproach of trial counsel was not the result of client instructions, strategic choices, or ethical constraints, it may be very difficult for anappellant to overcome this presumption of competence. [44] The issues before the learned Provincial Court judge rested mainly on his assessment of credibility. Whether the Complainantwas or was not intoxicated, whether the Complainant was bound, whether there was blood or whether there weapons are collateral to themain issue of whether the appellant committed the crimes of which the Crown charged him. [45] Cst.

Gingras provided answers to some of the questions. He observed bruises and a “big lump on the back of [theComplainant’s] head” Trial Transcript p 28, ll 34-36. Cst. Gingras also said the following about the Complainant: He wanted to cooperate with us. At the same time, he didn’t cooperate because he was injured and had some difficulty to move when wewere asking him to do -- to get on the ground, for example. He wasn’t -- he wasn’t able to do. So he was injured: Trial Transcript, p 28,ll 40-41, p 29, ll 1-2. Cst.

Gingras also testified during cross-examination that the Complainant was intoxicated: Trial Transcript, p 31, ll 8-26. [46] As mentioned earlier, the learned Provincial Court judge’s decision rested, in part, on the witnesses’ credibility. He classifiedthe appellant as an "adept and experienced liar, however, not a credible one or a believable one": Trial Transcript, p 126, ll 11-12. Hethen went through a list of why he found that to be so: Trial Transcript, p 126, ll 18-41, p 127, ll 1-21. The learned Provincial Courtjudge also ruled on Ms. St. Cyr’s credibility: Trial Transcript, p 127, ll 22-41, p 128, l 1.

At one point, he referred to a portion of herevidence as being “bald face lie”: Trial Transcript, p 127, l 36. [47] In R. v. Lavoie, 2000 CarswellAlta 1402 at para 39, 2000 ABCA 318, the Alberta Court of Appeal agreed with the followingstatement from Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (U.S. Fla. 1984): Judicial scrutiny of counsel's performance must be highly deferential.

It is all too tempting for a defendant to secondguess counsel'sassistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has provedunsuccessful, to conclude that a particular act or omission of counsel was unreasonable. Cf. Engle v. Issac, 456 US 107, 133-134, 71 LEd 2d 783, 102 S Ct 1558 (1982).

A fair assessment of attorney performance requires that every effort be made to eliminate thedistorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct fromcounsel's perspective at the time. [48] Following this Court’s review of the materials that counsel placed before it, including the Trial Transcript, it finds that theappellant’s trial counsel’s acts or alleged omissions did not constitute incompetence.

The appellant has failed to satisfy its onus.Furthermore, unlike the situation in C (LS), there is no evidence before this Court that any of the evidence that the appellant alleges thathis trial counsel failed to present to the learned Provincial Court judge would have contributed to a more favourable portrayal of theevents that occurred in the early morning hours of 7 January 2012. Thus, this Court finds that there has been no miscarriage of justice.

B. Whether the learned Provincial Court judge erred in not allowing an adjournment of the trial proceedings following theclose of the Crown’s case Standard of Review [49] Before this Court embarks on its analysis of the remaining issues, it must outline the standard of review it will apply whileexamining these issues. This Court may dismiss the appeal using the standard of review set forth in Housen v.

Nikolaisen, 2002 SCC 33, [2002] 2 SCR 235 [Housen], or under Criminal Code s 686(2), where it finds that although the learned Provincial Court judgemade a wrong decision on a question of law, there was no substantial wrong or miscarriage of justice. [50] This Court must review a question of law using a standard of correctness: Housen at paras 8-9. It must review a question offact and questions of inferences of fact using a standard of palpable and overriding error: Housen at paras 10-25.

Finally, it must reviewa question of mixed fact and law using a standard of palpable and overriding error: Housen at paras 26-36. This Court could characterizea question of mixed fact and law with an extricable error in principle as an error of law, in which case, this Court must review it using acorrectness standard.

An extricable error in principle is one that "can be attributed to the application of an incorrect standard, a failure toconsider a required element of a legal test, or a similar error in principle," Housen at para 36. [51] The test for whether a trial court has rendered an unreasonable verdict is whether the verdict is one that "a properly instructedjury acting judicially, could reasonably have rendered," R. v. Yebes, (SCC), [1987] 2 SCR 168 at para 16, quoting R. v.Corbett, (SCC), [1975] 2 SCR 275 at 282. In R. v.

Biniaris, 2000 SCC 15 at para 37, [2000] 1 SCR 381, the courtoutlined the role of an appellate court in assessing the reasonableness of a verdict from a judge sitting alone: That formulation of the test imports both an objective assessment and, to some extent, a subjective one. It requires the appeal court todetermine what verdict a reasonable jury, properly instructed, could judicially have arrived at, and, in doing so, to review, analyze and,within the limits of appellate disadvantage, weigh the evidence.

This latter process is usually understood as referring to a subjectiveexercise, requiring the appeal court to examine the weight of the evidence, rather than its bare sufficiency. The test is therefore mixed,and it is more helpful to articulate what the application of that test entails, than to characterize it as either an objective or a subjective test. … These examples demonstrate that in trials by judge alone, the court of appeal often can and should identify the defects in the analysisthat led the trier of fact to an unreasonable conclusion.

The court of appeal will therefore be justified to intervene and set aside a verdictas unreasonable when the reasons of the trial judge reveal that he or she was not alive to an applicable legal principle, or entered a verdictinconsistent with the factual conclusions reached.

These discernable defects are themselves sometimes akin to a separate error of law,and therefore easily sustain the conclusion that the unreasonable verdict which rests upon them also raises a question of law. [52] This Court must be careful in not carrying the Biniaris analysis too far, as the court, in that case was referring to a trial judge’s“defects in the analysis.” When this Court is analyzing the learned Provincial Court judge’s conclusions based on the facts before him, it must determine whether the learned Provincial Courtjudge made a palpable and overriding error in reaching those conclusions. In R. v.

Burns, [1994] 1 SCR 6565, the court stated thestandard as follows: In proceeding under s. 686(1)(a)(I), the court of appeal is entitled to review the evidence, re-examining it and re-weighing it, but only forthe purpose of determining if it is reasonably capable of supporting the trial judge's conclusion; that is, determining whether the trier offact could reasonably have reached the conclusion it did on the evidence before it: R. v. Yebes, (SCC), [1987] 2 S.C.R.168; R. v. W. ®.), (SCC), [1992] 2 S.C.R. 122.

Provided this threshold test is met, the court of appeal is not to substituteits view for that of the trial judge, nor permit doubts it may have to persuade it to order a new trial. [Emphasis added]. [53] Needless to say, this Court must defer to the learned Provincial Court judge on matters of credibility, which do not call forappellate intervention unless they are clearly unreasonable or unsupported by the evidence: R. v. W®, (SCC), [1992] 2SCR 122 at 131-132; R. v. Janzen, 1998 ABCA 371, 228 AR 12 at para 7; Biniaris at para 24. Adjournment

Adjournment [ 54 ] The Crown concluded its case at 5:30 p.m. The appellant's trial counsel requested an adjournment on the following bases: 1. it was late in the day; 2. he was a diabetic who needed to eat; and 3. he wanted an opportunity to subpoena Cst. Pysklywyc. [ 55 ] The appellant argues that it was contrary to the administration of justice for the learned Provincial Court judge to deny the appellant’s application for an adjournment and continue with the trial in those circumstances.

The learned Provincial Court judge refused the appellant’s application for an adjournment on the basis of his belief that the appellant's trial counsel did not have any grounds to request for an adjournment. 1. Lateness [ 56 ] The appellant’s trial counsel advised the learned Provincial Court judge that the appellant would be providing testimony and that he would be “a couple of hours”: Trial Transcript, p 67, l 7.

The learned Provincial Court judge held that the appellant’s trial counsel could not estimate how long the appellant’s evidence would take because no one knew how long the Crown’s counsel would be in cross-examination: Trial Transcript, p 67, ll 10-11. [ 57 ] The Crown argues that the learned Provincial Court judge was aware of the time. As well, the Crown argues that the learned Provincial Court judge considered all the circumstances and was "inclined to continue the case and finish": Trial Transcript, p 67, ll 9 -11. 2.

Counsel ’s Medical Needs [ 58 ] As mentioned earlier, the learned Provincial Court judge took account of the appellant's trial counsel's medical needs and recessed for a half hour so that he could eat. The actual exchange was: TRIAL COUNSEL: Yes, sir. I would like to point out to the Court, though that I am a diabetic, and I had a salad for lunch. And sometimes, sir, it’s -- when the blood sugar gets low, it makes me dizzy. THE COURT: Okay. Well, we can break for half an hour. All right? TRIAL COUNSEL: Yes,sir. THE COURT: Okay. Six o’clock. Trial Transcript, p 67, ll 13-22.

3. Opportunity to Subpoena [59] The appellant argues that the learned Provincial Court judge erred in not adjourning the matter so that his trial counsel couldhave an opportunity to subpoena Cst. Pysklywyc. [60] The Crown argues that the learned Provincial Court judge determined that since neither the Crown nor the appellant hadsubpoenaed Cst. Pysklywyc prior to trial, the application would not be granted on that basis: Trial Transcript p 66, ll 13-25. 4. Analysis [61] Whether a trial judge agrees to grant an adjournment is a matter of judicial discretion. In R. v.

Toor, 2001 CarswellAlta 408 atpara 15, 2001 ABCA 88 [Toor] the Alberta Court of Appeal said, "[t]he granting of adjournments and the exercise of judicial discretionare generally afforded a considerable degree of deference, and the law is well established in the area." See also R. v. Darville, (SCC), 1956 CarswellOnt 28 at para 7, 116 CCC 113 (SCC) [Darville]. [62] However, if this Court finds that the learned Provincial Court judge exercised his discretion improperly or in a manner thatwas not judicious, it would have jurisdiction to address this issue, as it would be dealing with a question of law.

In Darville ibid.Taschereau J. said: I do not feel that it is essential in the present case to determine if the trial judge exercised his discretion in refusing the postponement ofthe trial in order to allow the appellant to subpoena his witness. If it were a proper exercise of discretion, I am satisfied that this exerciseof discretion would not be reviewable by this Court…as it would be without jurisdiction, the question being a question of fact.

If thediscretion of the learned trial judge was not exercised in a judicial way, then this Court would have jurisdiction, as it would be dealingwith a question of law. [63] What constitutes the learned Provincial Court judge “acting judiciously”? In R. v. Dang, 2005 ABCA 441, 2005 CarswellAlta1877 at para 11, Costigan J. said: An adjournment decision is discretionary and must be accorded deference absent an error in principle. In R. v.

Darville (1956), (SCC), 116 C.C.C. 113 (S.C.C.), the Supreme Court set out a three part test for an adjournment: 1. the witness must have material evidence to give; 2. the party applying must not be guilty of laches; and 3. there must be a reasonable expectation that the witness can be procured in the future. [64] The third part of the Darville test is not an issue. If subpoenaed, this Court has no doubt that Cst. Pysklywyc would appear. [65] This Court has already commented on whether Cst. Pysklywyc would give material evidence.

At best, his evidence would beof a neutral weight, given his very limited role in the activities of the evening, as found by the learned Provincial Court judge, on whichthe Complainant was assaulted. This is a question of fact. The appellant’s trial counsel did not provide the learned Provincial Court judgewith any idea of what he would be seeking from Cst. Pysklywyc. [66] With respect to the second part of the test, if, in the mind of the appellant’s trial counsel, Cst. Pysklywyc would provide

material evidence, he “had all the necessary opportunity to have [Cst. Pysklywyc] before the Court”: Darville at para 7 . Recently, Trotter J. had an opportunity to comment on a situation in which the facts are very similar to the facts before this Court in R. v. Grant , 2012 CarswellOnt 2843, 2012 ONSC 1684 [ Grant ]. In that case the trial judge denied the accused’s application for an adjournment, noting that the accused had not made any effort to secure the attendance by the officer.

Trotter J. said, at para 10: ... [W]hile the affiant acknowledges that he realized a witness had not been subpoenaed, no explanation is given for not contacting the Crown ahead of time to attempt to rectify this problem, rather than waiting until the trial date. ... There is no indication of what evidence the Staff Sergeant might have been able to provide. [ 67 ] He went on to say at para 13: Trial counsel for the appellant was given a full opportunity to make submissions on why his client was entitled to an adjournment.

The trial judge did not err in expressing concern about trial counsel's failure to secure the attendance of the Staff Sergeant. Counsel provided little by way of explanation as to why the officer had not been subpoenaed. More importantly, defence counsel did not provide the trial judge with any sense of what the officer might be expected to say if he were to testify. In a very real sense, the trial judge was required to decide the adjournment question in a factual vacuum. ... See also R. v.

Aburto , 1998 CarswellAlta 752 at paras 20-25 , 1998 ABCA 243 . [ 68 ] The learned Provincial Court judge took account of the lateness of the proceedings and the appellant’s trial counsel’s medical situation. With respect to the former, this Court has reviewed the Trial Transcript and concludes that the learned Provincial Court judge considered all of the circumstances and exercised his discretion judiciously. Other than the appellant’s trial counsel’s medical condition, which this Court will address in a moment, and the absence of Cst.

Pysklywyc, the appellant did not argue any other concerns or prejudice that may befall him. [ 69 ] The learned Provincial Court judge was alive to the appellant’s trial counsel’s medical situation. He granted a 30-minute adjournment to all counsel to resolve his situation. [ 70 ] This Court dismisses this ground of appeal. C. Whether the learned Provincial Court judge erred by misconstruing the evidence presented at the trial [ 71 ] The appellant argues that there were serious contradictions within the Complainant’s evidence. As well, there were contradictions between the Complainant’s evidence and Cst.

Gingras’s evidence. He argues that the learned Provincial Court judge failed to consider those contradictions. [ 72 ] The Complainant testified that he did not know who hit him first, but later testified that it was the Appellant who struck him first: Trial Transcript, p 5, ll 29-30, p 9, ll 26-27. [ 73 ] The Complainant later testified that he "stood up" when the police were in the house "so that they could recognize me": Trial Transcript, p 15, ll 20-21 He earlier testified that he "ran" out of the house and that he "ran" next door: Trial Transcript, p 14, ll 7-11 Cst.

Gingras testified that once they removed the Complainant from the second residence, he had a "very hard time to stand up": Trial Transcript, p 28, ll 34-41. [ 74 ] Further, the appellant argues that with respect to the allegation that the appellant uttered a threat to cause death to the Complainant, while the learned Provincial Court judge acknowledged that he did not have evidence before him regarding where the lake was or what the weather was like, he went on to assume facts not in evidence and convict the appellant on the uttering threats charge: Trial Transcript, p 128, ll 34-39.

[75] The Crown argues that based on the evidence before the court, the learned Provincial Court judge made findings of fact and,accordingly, there is no basis for this Court to conclude that the learned Provincial Court judge made any palpable or overriding errorthat would be akin to a complete disregard for the evidence. [76] The learned Provincial Court judge made credibility findings of the witnesses that the parties presented to him. [77] Concerning the charge under Criminal Code s 264.1(1)(a), the learned Provincial Court judge found that "[the appellant] andthe two friends said they were going to drive [the Complainant] to the lake – put him in the trunk of the car, drive him to the lake andbeat him and leave him there": Trial Transcript p 123, ll 27-30.

The learned Provincial Court judge went on to hold that "on the factsbefore me the accused is guilty of threatening to cause injury or bodily harm to the complainant": Trial Transcript p 128, ll 38-40. [78] The Crown argues that the appellant’s threat to cause injury or bodily harm to the Complainant is an included offence to theoffence articulated on the Information.

In other words, one cannot cause death to another without causing bodily harm: Criminal Code s662. [79] As mentioned earlier, this Court must review a question of fact and questions of inferences of fact using a standard of palpableand overriding error: Housen at paras 10-25. What is a “palpable and overriding error? In R. v. Harper, (SCC), 1998CarswellBC 683 at para 5, [1982] 1 S.C.R. 2 [Harper], the Supreme Court of Canada said: An appellate tribunal has neither the duty nor the right to reassess evidence at trial for the purpose of determining guilt or innocence.

Theduty of the appellate does, however, include a review of the record below in order to determine whether the trial court has properlydirected itself to all the evidence bearing on the relevant issues. Where the record, including the reasons for judgment, discloses a lack ofappreciation of relevant evidence and more particularly the complete disregard of such evidence, then it falls upon the reviewing tribunalto intercede. [80] In R. v. CLY 2008 SCC 2 , [2008] 1 S.C.R. 5 [CLY], the Supreme Court of Canada, citing R. v.

Lohrer 2004 SCC 80, [2004] 3 S.C.R. 732 [Lohrer], provided the following test associated with the misapprehension of evidence, when it said: Where a trial judge is mistaken as to the substance of material parts of the evidence and those errors play an essential

part in thereasoning process resulting in a conviction, then, in my view, the accused's conviction is not based exclusively on the evidence and is nota "true" verdict… If an appellant can demonstrate that the conviction depends on a misapprehension of the evidence then, in my view, itmust follow that the appellant has not received a fair trial, and was the victim of a miscarriage of justice, this is also even if the evidence,as actually adduced at trial, was capable of supporting a conviction. [Emphasis added]. Again, the appellant bears the onus. [81] In R. v.

Sinclair, 2011 CarswellMan 380 at para 81, 2011 SCC 40, the Supreme Court of Canada clarified the procedure whendealing with the misapprehension of evidence and unreasonable verdicts, when Charron J. held that: In my view it is important to stress that, while the reviewing Court may now look beyond the evidence adduced at trials and considerflaws in the process in the assessment for reasonableness, the focus must remain on the conclusion reached at trial. For s. 686(1)(a)(

I) tobe properly invoked, it is the verdict that must be in error. As such, it would be wrong to conclude that whenever there is an error inreasoning, even if of the kind "demonstrably incompatible" with the uncontradicted evidence at trial, the verdict is unreasonable. [82] The Alberta Court of Appeal in R. v. Carr, 2010 ABCA 386 , 2010 CarswellAlta 2429 at para 52, said that “notevery misapprehension of evidence results in a miscarriage of justice requiring a new trial.” It went on at para 53 to provide thefollowing quotation from CLY at para 19, when the Supreme Court of Canada said:

This Court has said a material misapprehension of the evidence may justify appellate intervention. In R. v. Lohrer [2004] 3 S.C.R. 732,2004 SCC 80 (S.C.C.), at para. 1, Binnie J. cited, with approval, the following analysis by Doherty J.A. in Morrissey (1995), (ON CA), 97 C.C.C. (3d) 193: Where a trial judge is mistaken as to the substance of material parts of the evidence and those errors play an essential

part in thereasoning process resulting in a conviction, then, in my view, the accused's conviction is not based exclusively on the evidence and is nota "true" verdict ... If an appellant can demonstrate that the conviction depends on a misapprehension of the evidence then, in my view, itmust follow that the appellant has not received a fair trial, and was the victim of a miscarriage of justice. This is so even if the evidence,as actually adduced at trial, was capable of supporting a conviction. ...

As Binnie J. pointed out, this represents a stringent standard, and the misapprehension must "play an essential part not just in thenarrative of the judgment but in the reasoning process resulting in a conviction" (para. 2). [83] This stringent standard, combined with the deference this Court must accord the learned Provincial Court judge results in thisCourt dismissing the appellant’s appeal on this ground, as well. The learned Provincial Court judge articulated his findings of fact and histhought processes in arriving at the conclusions he reached.

Based on the record, these findings of fact were the clear foundation for hisreasoning in finding the appellant guilty of the offences.

He dealt with each of the offences individually. [84] As the Supreme Court of Canada stated in Housen at para 18, this Court finds that the learned Provincial Court judge was inthe advantageous position to make factual findings, “owing to his or her extensive exposure to the evidence, the advantage of hearingtestimony viva voce and the judge’s familiarity with the case as a whole.” [85] The appellant has not met his onus of because he has not demonstrated that the misapprehension, if any, played an essentialpart in the learned Provincial Court judge’s reasoning process resulting in the appellant’s conviction. D.

Whether the learned Provincial Court judge erred in principle when sentencing the appellant and whether that thesentence is demonstrably unfit [86] The appellant argues that the learned Provincial Court Judge erred when he imposed consecutive sentences for the threedifferent offences of which he was convicted.

He argues that all three offences arose from the same incident and were connected in time,place, and location. [87] The Crown argues that it was open for the learned Provincial Court judge to sentence the appellant to consecutive sentencesand as such he made no error. [88] Sentencing decisions attract considerable curial deference. The Supreme Court of Canada said in R. v.

M (CA), (SCC), 1996 CarswellBC 1000 at para 90, [1996] 1 SCR 500: Put simply, absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court ofappeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit. Parliament explicitly vestedsentencing judges with a discretion to determine the appropriate degree and kind of punishment under the Criminal Code. As s. 717(1)reads: 717.

(1) Where an enactment prescribes different degrees or kinds of punishment in respect of an offence, the punishment to be imposedis, subject to the limitations prescribed in the enactment, in the discretion of the court that convicts a person who commits the offence.[Emphasis added.] See also R. v. LM [2008] SCC 31.

[89] As well, a trial judge’s decision as to whether custodial sentences will be served concurrently or consecutively will beaccorded curial deference. In R. v. McDonnell (SCC), [1997] 1 S.C.R. 948 at para 46, the court said: ... [T]he decision to order concurrent or consecutive sentences should be treated with the same deference owed by appellate courts tosentencing judges concerning the length of sentences ordered. The rationale for deference with respect to the length of sentence, clearlystated in both Shropshire and M. (C.A. ), applies equally to the decision to order concurrent or consecutive sentences.

In both settingduration and the type of sentence, the sentencing judge exercises his or her discretion based on his or her first-hand knowledge of thecase; it is not for an appellate court to intervene absent an error in principle, unless the sentencing judge ignored factors or imposed asentence which, considered in its entirety, is demonstrably unfit. [90] In the case before this Court, the Learned Provincial Court judge held that each of the sentences required a deliberate actionon the appellant’s behalf and his deliberate decision to make that action.

As such, the Crown argues that in this case it was appropriategiven the circumstances of the offences and the offender to sentence the appellant consecutively: Trial Transcript p 145, ll 22-23. [91] In R. v. Walters 2012 ABQB 83 , 2012 CarswellAlta 116 (QB) [Walters], Graesser J. held that where an accused isconvicted of several offences that arise from the same incident and that are connected in time, place, and location the sentences should beconcurrent. He said, at para 57: I am satisfied that it is appropriate for the sentences for the crimes against a particular victim to be served concurrently.

There is nominimum sentence with respect to any of the offences. With respect to each victim, where there was more than one crime, they wereconnected in time, place and location. Different and separate offences were committed but the connections are such that they should beconcurrent. The crimes can be said to essentially flow out of the same incident The Crown argues, however, that there is no general rule demanding without exception that concurrent sentences are required where theoffences are connected in time, place and location.

To establish such a rule would run contrary to the authority given to judges byParliament to craft fit and appropriate sentences. To create such a rule would run contrary to the privilege of discretion which lies at theheart of our judicial system. [92] This Court agrees with the Crown’s argument, but it is not necessary for this court to consider that argument in this case. Thelearned Provincial Court judge was alive to the issue of contemporaneity of time and location.

He examined the issues at play in this caseand this Court will give curial deference to his decision. [93] There is one area in which this Court departs from the finding of the learned Provincial Court judge, however.

The learnedProvincial Court judge did not provide reasons why he departed from the Crown’s request that the appellant be given an 18-monthsentence to be served concurrently with respect to the assault causing bodily harm charge (Criminal Code s 267) and the unlawfulconfinement charge (Criminal Code s 279): Sentence Transcript p 137, ll 38-41, p 139, ll 23-24. [94] This is a relevant factor that the learned Provincial Court judge did not consider, or one on which he did not comment.Accordingly, this Court allows the appellant’s sentence appeal only insofar as it relates to the consecutive sentences involving the assaultcausing bodily harm and unlawful confinement charges.

In R. v. Sheppard, 2002 CarswellNfld 74 at para 55, 2002 SCC 26, the SupremeCourt of Canada said, “[w]here the trial decision is deficient in explaining the result to the parties, but the appeal court considers itselfable to do so, the appeal court's explanation in its own reasons is sufficient. There is no need in such a case for a new trial.” No doubt,the Crown had in mind the principles that Graesser J. provided in Walters when it suggested that the appellant serve concurrentsentences on the assault causing bodily harm and unlawful confinement charges.

Based on the learned Provincial Court judge’s findingof the facts involved in this case, this Court agrees with the Crown’s submission in this regard. Thus, the appellant will serveconcurrently the18-month sentences that the learned Provincial Court judge imposed with respect to those charges. [95] The Crown did not make any suggestions to the learned Provincial Court judge on the uttering threats charge (Criminal Codes 264), and left the sentencing on that charge “in your hands”: Sentence Transcript p 139, l 22. This Court will not disturb the learnedProvincial Court judge’s sentence with respect to that charge.

The appellant will serve that sentence consecutive with the other 18-monthsentence for a total of 36 months.

IV. Conclusion [ 96 ] As a result of the foregoing, this Court dismisses the appellant’s appeal except insofar as it relates to the sentence that the appellant will serve. Heard on the 5 th day of October, 2012. Dated at Peace, Alberta this 16 th day of October, 2012. K.D. Yamauchi J.C.Q.B.A. Appearances: Barry W. McMullan for the Appellant/Accused Nicholas Cake Alberta Justice Crown Prosecutor for the Respondent/Crown