2012 NBCA 78, 2012 NBCA 78

COURT OF APPEAL OF NEW BRUNSWICK 150-11-CA DANIEL RAY DOWNEY APPELLANT DANIEL RAY DOWNEY APPELANT - and - - et - HER MAJESTY THE QUEEN RESPONDENT SA MAJESTÉ LA REINE INTIMÉE Downey v. R, 2012 NBCA 78 Downey c.

R., 2012 NBCA 78 CORAM: The Honourable Justice Robertson The Honourable Justice Richard The Honourable Justice Green CORAM : L’honorable juge Robertson L’honorable juge Richard L’honorable juge Green Appeal from a decision of the Court of Queen’s Bench Conviction – July 7, 2011 Sentence − October 3, 2011 Appel d’une décision de la Cour du Banc de la Reine : Déclaration de culpabilité – le 7 juillet 2011 Prononcé de la sentence – le 3 octobre 2011 History of Case: Historique de la cause : Decision under appeal: 2011 NBQB 180 - Unreported Décision frappée d’appel : 2011 NBBR 180 – Inédite Preliminary or incidental proceedings: Court of Appeal [2011] N.B.J.

No. 456 (QL) Court of Queen’s Bench 2011 NBQB 274 Procédures préliminaires ou accessoires : Cour d’appel [2011] A.N.-B. n o 456 (QL) Cour du Banc de la Reine 2011 NBBR 274 Appeal heard and judgment rendered: June 27, 2012 Appel entendu et jugement rendu : Le 27 juin 2012

Reasons delivered: September 6, 2012 Motifs déposés : Le 6 septembre 2012 Counsel at hearing: For the appellant: Daniel Ray Downey appeared in person For the respondent: Kathryn Gregory Avocats à l’audience : Pour l’appelant : Daniel Ray Downey a comparu en personne Pour l’intimée : Kathryn Gregory THE COURT The appeal against conviction is dismissed but the sentence appeal is allowed. The sentence for the offence under s. 355(

a) of the Criminal Code is varied to one of 15 months of imprisonment. LA COUR L’appel interjeté à l’encontre de la déclaration de culpabilité est rejeté, mais l’appel de la sentence est accueilli. La peine infligée en vertu de l’ alinéa 355

a) du Code criminel est ramenée à une peine de quinze mois d’emprisonnement. The following is the judgment delivered by THE COURT [1] On July 7, 2011, a judge of the Court of Queen’s Bench found Daniel Ray Downey guilty of possession of a stolen tractor (s. 355(

a) of the Criminal Code ) and of failing to stop his vehicle when being pursued by a peace officer (s. 249.1(2)( a )). On October 3, 2011, the judge sentenced Mr. Downey, who has a significant criminal record, to incarceration for a period of 18 months for the offence under s. 355(

a) and 6 months, to run concurrently, for the other offence. [2] Briefly stated, the facts are these. On November 23, 2010, in Moncton, Mr. Downey was driving a new John Deere tractor

valued at $66,727.78, which had been stolen in Sussex on November 18, 2010. A police officer motioned Mr. Downey to stop the tractor and activated his emergency equipment. Although Mr. Downey caused the vehicle to slow down and move to the side of the road, with the police car pulling up to the rear of the tractor, Mr. Downey then suddenly accelerated, causing the officer to effect a short pursuit before Mr. Downey stopped the tractor. After arresting Mr. Downey for failing to stop, the officer complied with the informational duties of Mr. Downey’s s. 10(

b) Charter right. Mr. Downey told the officer he had leased the tractor from a farmer. Upon making inquiries, the officer learned the tractor had been stolen, and Mr. Downey was once again cautioned. The investigation eventually led the officers to Edward McAllister and his son, Stephen. The latter initially told the police he knew nothing about any lease and did not know Mr. Downey. Later a lease was produced showing the tractor had been leased to Mr. Downey.

Edward McAllister says he saw an advertisement on Kijiji for the sale of a tractor and that he purchased it for $20,000 or $25,000 cash but he could not remember the exact amount, nor could he produce a receipt. He says he then advertised on Kijiji that he had snow plowing contracts to sell and that he would lease the tractor to whomever purchased them. According to him, Mr. Downey inquired and eventually Mr. McAllister paid Mr. Downey $11,000 cash for taking over the snow removal contracts and then Mr. Downey paid Mr. McAllister $7,000 cash, from a different source of funds, to lease the tractor.

The trial judge did not believe this evidence. He says “no business person in his right mind would proceed” in this manner, pointing out that the new never-used tractor was worth over $65,000 and that it is unbelievable that it was purchased from a stranger for $20-25,000 without even a bill of sale. The trial judge also found it incredible that the tractor was leased for $7,000 to another stranger on the very next day. He reasoned that Mr. Downey made no mention of the McAllisters immediately after his arrest and found that the lease adduced into evidence was one that was drawn up only after Mr.

Downey was caught in possession of the stolen tractor. [3] Mr. Downey appeals the conviction on questions of law and seeks leave to appeal it on questions of fact or mixed fact and law. He initially sought to adduce “fresh evidence” in support of the grounds for which he requires leave to appeal; however, the motion for fresh evidence was abandoned at the hearing of the appeal. Mr. Downey also seeks leave to appeal the sentence. On June 27, 2012, we dismissed Mr. Downey’s appeal against conviction, granted him leave to appeal the sentence and varied his sentence.

We indicated then that reasons for our decision would follow. These are those reasons. [4] The application for leave to appeal on grounds that raise questions of fact and mixed law and fact was dismissed because it is not the role of the Court of Appeal to retry a case. Absent palpable and overriding error, findings of fact and credibility, and the application of the law to the facts to make the ultimate finding, are deserving of deference. We find no such error in the present case. Although there may have been minor misstatements of some of the

evidence, none of the errors alleged, even when taken collectively, are overridingerrors. The evidence supports the credibility findings and the findings of fact andthere is therefore no basis for appellate interference. Similarly, there is no validreason to interfere with the ultimate finding since the record discloses the verdict isone that was reasonably available upon application of the law to the facts. [5] In his arguments on appeal, Mr. Downeyraises a violation of certain rights guaranteed by the Canadian Charter of Rights andFreedoms that had not been initially raised at trial.

In fact, he raised these allegedviolations in a post-verdict pre-sentencing motion before the trial judge, but thesewere dismissed on the ground that the “Charter issues raised [were] Mr. Downey’sway of changing the tactics he used at trial” (para. 10). [6] In R. v. Brown, (SCC),[1993] 2 S.C.R. 918, [1993] S.C.J. No. 82 (QL), L'Heureux-Dubé J., (dissenting onother grounds), explains as follows: In

summary, the following three prerequisites must be satisfied in order to permit theraising of a new issue, including a Charter challenge, for the first time on appeal.First, there must be a sufficient evidentiary record to resolve the issue. Second, itmust not be an instance in which the accused for tactical reasons failed to raise theissue at trial. Third, the court must be satisfied that no miscarriage of justice willresult from the refusal to raise such new issue on appeal. [para. 20] [7] In our view, similar considerations apply toany post-verdict pre-sentencing motion to re-open a case.

There is a sound basis forthe judge’s findings that Mr. Downey was changing tactics after an unsuccessfuldefence. Mr. Downey did not seek the exclusion of the statement he had given thepolice until after the trial judge considered this statement critical to establishingcredibility and, ultimately, guilt. In any event, there is certainly not a sufficientevidentiary record that would permit us to assess this ground of appeal at this latestage. [8] Mr. Downey also raises Charter issuesrelating to disclosure.

Notwithstanding any disclosure irregularity that may havearisen, the trial judge addressed these by offering Mr. Downey an adjournment,which, in the circumstances was a proper exercise of his discretion. There is no errorin that approach.

[9] For these reasons, the appeal against conviction was dismissed. [10] As for the application for leave to appeal sentence, we granted leave. Considering Mr. Downey’s record, we saw no basis upon which we would interfere with the length of the sentence, but for one proviso. Mr. Downey asked to be sentenced on July 7, 2011, immediately after being found guilty. However, the prosecutor sought an adjournment so that an individual from the Insurance Crime Prevention Bureau could read a victim impact statement. Mr.

Downey was expressly told he would be given credit for the time spent on remand between July 7, 2011, and the sentencing date. When Mr. Downey was ultimately sentenced on October 3, 2011, the victim impact statement was not read and no consideration was given to the three months that had elapsed since he had been found guilty. The judge sentenced him to incarceration for18 months commencing on that day. In our view, the trial judge erred in principle in not considering the time in remand when both the prosecutor and the judge had expressly informed Mr. Downey that that time would be considered.

We would therefore allow the appeal against sentence and vary the sentence for the offence under s. 355(

a) to one of 15 months of imprisonment. ________________________________ J.T. ROBERTSON, J.A. ________________________________ J.C. MARC RICHARD, J.A. ________________________________ BRADLEY V. GREEN, J.A.