2011 NBCA 4, 2011 NBCA 4

COURT OF APPEAL OF NEW BRUNSWICK 23-10-CA ROBIN WADE BLIZZARD APPELLANT ROBIN WADE BLIZZARD APPELANT - and - - et - HER MAJESTY THE QUEEN RESPONDENT SA MAJESTÉ LA REINE INTIMÉE Blizzard v. R., 2011 NBCA 4 Blizzard c.

R., 2011 NBCA 4 CORAM: The Honourable Justice Desch ênes The Honourable Justice Robertson The Honourable Justice Richard CORAM : L'honorable juge Deschênes L'honorable juge Robertson L'honorable juge Richard Appeal from a decision of the Provincial Court: February 15, 2010 (conviction) Appel d'une décision de la Cour provinciale : Le 15 février 2010 (déclaration de culpabilité) 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: September 30, 2010 Appel entendu : Le 30 septembre 2010 Judgment rendered: January 20, 2011 Jugement rendu : Le 20 janvier 2011

Counsel at hearing: For the appellant: Robin Wade Blizzard appeared in person For the respondent: Robert A. Murray, Q.C. Avocats à l'audience : Pour l’appelant : Robin Wade Blizzard a comparu en personne Pour l’intimée : Robert A. Murray, c.r. THE COURT The appeal is dismissed. LA COUR Rejette l’appel. The following is the judgment delivered by THE COURT [1] On February 15, 2010, a judge of the Provincial Court convicted Robin Wade Blizzard of having recklessly caused damage by fire to a truck belonging to Terry Stephen Grant (s. 434 of the Criminal Code ), of threatening Mr.

Grant with death (s. 264.1(2)( a )), and of failing to comply with the terms of a probation order (s. 733.1(1)( a )). Three days later, the judge sentenced Mr. Blizzard to terms of incarceration totalling 14 months and to probation for 18 months. Mr. Blizzard appeals the convictions. His notice of appeal sets out numerous grounds, alleging the trial judge committed the following errors: 1 . Convicting him on the basis of circumstantial evidence; 2 . Accepting the complainant’s evidence, even though it varied from what he had previously told the police; 3 .

Accepting the complainant’s testimony, even though it was given after he had seen a surveillance video; 4 . Giving reasons that did not coincide with the evidence at trial; 5 . Accepting testimony from the complainant that was “manufactured” three months after the incident; 6 . Failing to assist the accused in his self-representation; 7 . Failing to appoint counsel to assist the accused; 8 . Being “biased” as a result of a comment previously made in a previous proceeding; 9 . Having “banished” him from Fredericton upon releasing him from custody, thus violating his Charter rights; 10 .

Failing to consider the complainant’s “mental capacity”; 11 . Allowing the prosecutor to ask leading questions in direct examination of the complainant; and, 12 . Finding the complainant to be credible. [2] In our view, none of these grounds have any merit. [3] The evidence at trial revealed that during the evening of November 4, 2009, Mr. Blizzard approached Mr. Grant and asked him to take him for a drive. Eventually, the two made their way to a parking lot at the rear of the Victoria Health Centre in Fredericton, where they intended to spend the night in Mr. Grant’s vehicle.

However, they got into an altercation. According to Mr.

Grant, Mr. Blizzard, who had been drinking, lit a match in his face and threatened to kill him. Mr. Grant immediately left the vehicle and went to a nearby men’s shelter. Shortly afterwards, Mr. Grant’s vehicle was consumed by fire. Video surveillance captured images of Mr. Grant leaving his vehicle before any flame was visible in the truck and later captured the image of an individual, with characteristics matching those of Mr. Blizzard, leaving the area just after flames are discernable in the surveillance footage.

An expert witness stated the fire was “likely caused by something introduced, such as matches or smoking materials,” and originated on the passenger side of the vehicle. Electrical malfunction and lightning were ruled out as causes. [4] In rendering her decision, the trial judge acknowledged the case against Mr. Blizzard was “one with much circumstantial evidence”. She recognized she had to be satisfied beyond a reasonable doubt that Mr. Blizzard was present and that he had recklessly set the fire, in the sense that she had to exclude “any reasonable hypothesis of innocence”. The judge found Mr.

Grant’s testimony was supported by the footage from the surveillance cameras and the testimony of others, and therefore considered him credible. Noting that there was a “very limited timeframe in which to perpetrate the crime” and that “the person immediately at the scene was Mr. Blizzard, who had made threats to burn [Mr. Grant’s truck], had matches on his person, [and had] lit a match in Mr. Grant’s face minutes before”, the judge concluded that “[t]he sole rational inference to be drawn is that Mr. Blizzard committed the crime”.

In our view, the judge did not misdirect herself on the applicable principles regarding proof by circumstantial evidence. Credibility findings are within the judge’s domain and, in the absence of a palpable and overriding error, the Court of Appeal cannot interfere: Housen v. Nikolaisen , 2002 SCC 33 , [2002] 2 S.C.R. 235 . Although there are some inconsistencies between Mr. Grant’s testimony and his earlier statement, it was up to the trial judge to weigh those inconsistencies and make appropriate credibility findings. In this case, she accepted Mr.

Grant’s testimony on the matters that were relevant to the charge, as she was entitled to do. As for the question of whether or not Mr. Grant was allowed to watch the video surveillance before testifying, it is one that goes to weight. It is worth noting that this was not a case of eyewitness identification. Therefore, we find no reversible error relating to grounds 1, 2, 3, 5, 10 and 12. [5] As for ground 4, the trial judge assessed the evidence at trial and made credibility findings that are reasonably supported by the evidence. It is not the function of the Court of Appeal to retry the case.

The judge determined what evidence was credible and the weight to be attributed to the evidence. That was her role. Having made findings of fact, the judge applied the governing principles of law and articulated reasons for the conclusions she then reached. There is no error in this approach. [6] Nothing on the record convinces us that Mr. Blizzard was not able to adequately defend himself or that the trial judge somehow erred in not assisting him. How far a trial judge need go in assisting an accused is a matter of discretion, one which the record reveals the trial judge exercised appropriately in this case.

Moreover, the record reveals that Mr. Blizzard had, at one point, made an application for the judge to appoint him counsel, but that he then withdrew the application. The law is clear that he has a right to represent himself if he so desires: New Brunswick Legal Aid Services Commission v. R. and Koumoutsidis , 2006 NBCA 32 , 297 N.B.R. (2d) 186 , at para. 9 . There is, therefore, no merit to grounds 6 and 7. [7] As for the allegations in ground 8 that the judge made biased comments regarding Mr. Blizzard, there is simply no evidence of that on the record and no new evidence was adduced in support of that ground.

It must be dismissed. [8] With respect to ground 9, no evidence was adduced that the trial judge “banished” Mr. Blizzard as alleged. Moreover, even if such had been the case, the review process available pursuant to s. 520(1) of the Criminal Code is the mechanism for challenging that condition. [9] Finally, a review of the transcript does not reveal any error related to the manner in which counsel for the prosecution questioned Mr. Grant. Thus, there is no merit to ground 11. [10] For these reasons, the appeal is dismissed. ____________________________________ ALEXANDRE DESCHÊNES, J.A.

_____________________________________ J.T. ROBERTSON, J.A. ______________________________________ J.C. MARC RICHARD, J.A.