2011 NBCA 62, 2011 NBCA 62

COURT OF APPEAL OF NEW BRUNSWICK 63-10-CA JASON PETER MOLLINS APPELLANT JASON PETER MOLLINS APPELANT - and - - et - HER MAJESTY THE QUEEN RESPONDENT SA MAJESTÉ LA REINE INTIMÉE Mollins v. R., 2011 NBCA 62 Mollins c.

R., 2011 NBCA 62 CORAM: The Honourable Chief Justice Drapeau The Honourable Justice Bell The Honourable Justice Green CORAM : L’honorable juge en chef Drapeau L’honorable juge Bell L’honorable juge Green Appeal from a decision of the Provincial Court: April 7, 2010 Appel d’une décision de la Cour provinciale : Le 7 avril 2010 History of Case: Historique de la cause : Decision under appeal: Unreported Décision frappée d’appel : Inédite Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : S.O.

Appeal heard: January 20, 2011 Appel entendu : Le 20 janvier 2011 Judgment rendered: July 14, 2011 Jugement rendu : Le 14 juillet 2011 Reasons for judgment by: The Honourable Justice Green Motifs de jugement : L’honorable juge Green

Concurred in by: The Honourable Chief Justice Drapeau The Honourable Justice Bell Souscrivent aux motifs : L’honorable juge en chef Drapeau L’honorable juge Bell Counsel at hearing: For the appellant: Jason Peter Mollins appeared in person For the respondent: Cameron H. Gunn Avocats à l’audience : Pour l’appelant : Jason Peter Mollins a comparu en personne Pour l’intimée : Cameron H. Gunn THE COURT The appeal on the ground that the trial judge erred by allowing the results of the police photo line-up to be submitted into evidence is dismissed.

Leave to appeal on the other grounds set out by the appellant is denied. LA COUR Est rejeté l’appel fondé sur le moyen portant que la juge du procès a commis une erreur en permettant que les résultats d’une séance d’identification photo soient présentés en preuve. L’autorisation d’interjeter appel fondée sur les autres moyens avancés par l’appelant est refusée. The judgment of the Court was delivered by GREEN, J.A. I. Introduction [ 1 ] This is an appeal against conviction for the following offences: 1. Robbery (two counts under s. 344(1) (

b) of the Criminal Code ); 2. Assault causing bodily harm (two counts under s. 267( b )); 3. Assault (one count under s. 266( a )); and 4. Breach of probation (two counts under s. 733.1(1)( a )). II. Factual Overview [ 2 ] In the early morning hours of July 29, 2009, Kyle Steven McLean was attacked and beaten in the parking lot

of The Hilltop Pub on Prospect Street in Fredericton. He suffered a concussion, broken teeth, and a laceration above his right eye. Following the incident, Mr. McLean’s cellular telephone, ball hat, and a small amount of money were missing. The attack took place between 1:50 a.m. and 2:20 a.m. [ 3 ] Minutes later, in the same parking lot, Scott Briggs was attacked and beaten. Following the incident, his wallet and its contents, including money and debit/credit cards, were missing.

His friend Bradley Bostick was assaulted during the same incident. [ 4 ] The assailants left The Hilltop Pub through the parking lot of the adjacent A&W restaurant. Scott Briggs’s wallet was recovered from the drive-through area of that parking lot. [ 5 ] The next incident occurred prior to 2:28 a.m.

Corey Thorne and Aaron Clark, employees of a nearby Wendy’s restaurant which is also located on Prospect Street, were attacked in the parking lot of that establishment. [ 6 ] Finally, at some point between 2:29 a.m. and 2:39 a.m., Doumit (also known as Dominique) El-Tahhan was attacked and beaten while walking with his cousin Patrick Tahan on Parkside Drive, which is located in close proximity to Wendy’s restaurant. Mr. El-Tahhan suffered a head injury, required stitches, and had broken bones around his eye.

Following this incident, the victim’s Blackberry device was missing. [ 7 ] Approximately one hour later, in the parking lot of a local motel, three individuals, including the appellant, were taken into custody by Fredericton City Police. At the time of their arrest, the suspects were inside or leaning against a vehicle bearing Ontario licence plates, which the appellant had driven from that province to New Brunswick. Blood was found on the inside and outside of the vehicle. [ 8 ] Mr. McLean’s cellular telephone was discovered in the pants pocket of one of the suspects (not the appellant).

Doumit El-Tahhan’s Blackberry was found on the vehicle’s back seat. A cigarette found on the dashboard was the same brand as those smoked by Patrick Tahan. At the scene of the attack on Doumit El-Tahhan, cigarettes belonging to Patrick Tahan were found on the ground, and Mr. McLean’s ball hat was recovered. [ 9 ] A similar pattern unfolded in all of the attacks, save the first attack upon Mr. McLean. Prior to the attacks on Mr. Briggs and Mr. Bostick, they were asked by their assailants if they wanted a cigarette. Prior to the attacks on Mr. Thorne and Mr.

Clark, they were asked by their assailants for a lighter and then a cigarette. Prior to the attack on Mr. El-Tahhan, he and his cousin were asked by their assailants for cigarettes. All of the attacks took place within a period of less than one hour, and all took place within a relatively small geographic area. [ 10 ] The appellant was charged, and following election, was tried in provincial court.

In addition to the victims themselves, various other witnesses testified at trial. [ 11 ] The appellant was convicted as outlined above, and sentenced as follows: 1. for the robbery of Scott Briggs and Bradley Bostick, 28 months imprisonment, a firearms prohibition, an order to submit a DNA sample, and a restitution order; 2. for the robbery of Doumit El-Tahhan, 28 months consecutive, and a restitution order; 3. for the assault causing bodily harm on Kyle McLean, 18 months concurrent, and a restitution order; 4. for the assault causing bodily harm on Cory Thorne, one month concurrent;

5. for the assault on Aaron Clark, one month concurrent; and 6. for the two breaches of probation, one day consecutive on one and one month concurrent on the other. III. Issues [12] In his Notice of Appeal, the appellant sets out seven alleged errors on the part of the trial judge, and expandsupon them in his written submission to the court.

His grounds of appeal are that the trial judge erred: 1. in determining there was evidence the appellant had participated in the assaults and robberies; 2. in finding the descriptions of the assailants matched the appellant; 3. in finding the victims had identified the appellant as their attacker; 4. in finding the descriptions of the attacker’s clothing matched the clothing of the appellant; 5. in allowing the results of the police photo line-up to be submitted into evidence; 6. in finding the evidence establishes the appellant as one of the attackers; and, 7. in finding the appellant guilty beyond a reasonable doubt of the assaults and robberies as the evidence does not support aconviction.

I find no merit in any of the appellant’s grounds, and for the reasons set out below, I would dismiss the appeal in respect of ground 5, anddeny leave to appeal in respect of the other grounds. IV. Law and Analysis [13] Except for ground 5, the errors attributed to the trial judge can be characterized as questions of fact (the factualfindings made by a judge or the inferences drawn by a judge from the facts), or as questions of mixed fact and law (the application of alegal standard to a particular set of facts).

Leave to appeal is therefore required for grounds 1, 2, 3, 4, 6 and 7: pursuant to s. 675(1)(a)(ii)of the Criminal Code. The applicable standard of review for these grounds is that of palpable and overriding error (see Housen v.Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235). [14] Larlee J.A. discusses what is meant by “palpable and overriding” in D.L.M. v. J.A.M., 2008 NBCA 2, 326N.B.R. (2d) 111: With respect to the standard of review for findings of fact, the Court of Appeal is not to interfere unless the trial judge has made apalpable and overriding error in the assessment of the evidence.

A palpable and overriding error is one which can be plainly seen on areview of the record: Housen v. Nikolaisen, [2002] 2 S.C.R. 235, [2002] S.C.J. No. 31 (QL), 2002 SCC 33, para. 10. This same standardapplies to inferences of fact (see para. 25 of Housen). Waxman et al. v. Waxman et al. (2004), (ON CA), 186 O.A.C. 201, [2004] O.J. No. 1765 (QL), provides a usefulsummary of what is meant by "palpable and overriding error" in paras. 296-97:

The "palpable and overriding" standard addresses both the nature of the factual error and its impact on the result. A "palpable" error isone that is obvious, plain to see or clear: Housen at 246. Examples of "palpable" factual errors include findings made in the completeabsence of evidence, findings made in conflict with accepted evidence, findings based on a misapprehension of evidence and findings offact drawn from primary facts that are the result of speculation rather than inference. An "overriding" error is an error that is sufficiently significant to vitiate the challenged finding of fact.

Where the challenged finding offact is based on a constellation of findings, the conclusion that one or more of those findings is founded on a "palpable" error does notautomatically mean that the error is also "overriding". The appellant must demonstrate that the error goes to the root of the challengedfinding of fact such that the fact cannot safely stand in the face of that error: Schwartz v. Canada, (SCC), [1996] 1S.C.R. 254 at 281. This Court adopted this passage at para. 26 of R. v. Arsenault (2005), 295 N.B.R. (2d) 123, [2005] N.B.J.

No. 529 (QL), 2005 NBCA110. [paras.11-12] [15] The challenge faced by the trial judge, who was called upon to assess the sometimes confusing andinconsistent evidence of several witnesses, was considerable. It is important to keep in mind that those who testified were in someinstances the victims of brutal beatings, and in other instances those who witnessed the attacks or witnessed the assailants on the move.The incidents took place out of doors, late at night, in poor lighting conditions, and they were sudden and unexpected.

Nonetheless, thetrial judge skilfully assessed all of the evidence, set aside that which she found to be unreliable, and came to her conclusion of guiltbeyond a reasonable doubt. As this Court recently stated in Blizzard v. R., 2011 NBCA 4, [2011] N.B.J. No. 8 (QL): […] Credibility findings are within the judge’s domain and, in the absence of a palpable and overriding error, the Court of Appeal cannotinterfere: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235.

Although there are some inconsistencies … it was up to the trialjudge to weigh those inconsistencies and make appropriate credibility findings. […] … [T]he trial judge assessed the evidence at trial and made credibility findings that are reasonably supported by the evidence. It is notthe function of the Court of Appeal to retry the case. The judge determined what evidence was credible and the weight to be attributed tothe evidence. That was her role. Having made findings of fact, the judge applied the governing principles of law and articulated reasonsfor the conclusions she then reached.

There is no error in this approach. [paras. 4-5] [16] I see no benefit in exploring at length each of the allegations of error put forward by the appellant in all but the 5th ground of appeal, which I will comment upon briefly below. The evidentiary foundation for the trial judge’s findings is clearly onthe record. In my opinion, the appellant has not established an error or errors, let alone any which meet the threshold of palpable andoverriding. This is why I would deny leave to appeal in respect of grounds 1 to 4, 6 and 7. [17] As for the 5th ground of appeal, the issue of the photo line-up reviewed by Mr.

Thorne, it was addressed by thetrial judge in a voir dire. She was clearly alive to the recommendations of Commissioner Cory in the Thomas Sophonow Inquiry. Whileshe found certain weaknesses in the process, she concluded “the weaknesses go to the weight of the identification evidence to beconsidered with all of the evidence at the end of the trial” and declared it to be admissible. The standard of review on questions of law isthat of correctness. I find no reversible error in her analysis or conclusions.

Even if she had been in error, it would have been of noconsequence, given that, in her decision, she determines the identification of the appellant by Mr. Thorne is not reliable. V. Disposition [18] I would dismiss the appeal in respect of ground 5, and deny leave to appeal in respect of the other grounds.

________________________________ BRADLEY V. GREEN, J.A. WE CONCUR: __________________________________ J. ERNEST DRAPEAU, CHIEF JUSTICE OF NEW BRUNSWICK __________________________________ B. RICHARD BELL, J.A.