Docket: 1769 Richard Desnomie Appellant - v. -, 2010 SKCA 64

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2010 SKCA 64 Date: 20100504 Between: Docket: 1769 Richard Desnomie Appellant - and - Her Majesty the Queen Respondent Coram: Klebuc C.J.S., Gerwing & Richards JJ.A. Counsel: James A. Johnson for the Appellant William R. Campbell for the Crown Appeal:

From: Provincial Court of Saskatchewan Heard: May 4, 2010 Disposition: Dismissed (orally) Written Reasons: May 13, 2010 By: The Honourable Madam Justice Gerwing In Concurrence: The Honourable Chief Justice Klebuc The Honourable Mr.

Justice Richards GERWING J.A. [ 1 ] The appellant appeals, on numerous grounds, his conviction for one count of evading police contrary to s. 249.1(1) of the Criminal Code . [ 2 ] The charge arose from an incident that took place at approximately 4:00 a.m. when police officers, according to their testimony, were alerted that a person of interest was leaving the scene of a weapons complaint. The vehicle involved was also described. The police officers in question approached the address and saw a vehicle of the same general description.

As it passed them, one of the officers saw the person in the driver’s seat and gave, what turned out, in retrospect, to be a relatively accurate word description of the appellant. The officers then followed the vehicle with their emergency lights and siren turned on. The vehicle did not stop and finally accelerated. They did obtain the licence plate number.

The officers then received instructions to discontinue the pursuit. [ 3 ] The police officer who had seen the driver called up a picture of the appellant, whom he had been told was the person of interest, on his computer and concluded that the driver was the appellant. [ 4 ] Four hours later, a car bearing the licence plate that the officers pursued was pulled from the creek. On inspection it was found that the windows and steering column were intact, showing no indicia of tampering for theft. The car was registered to the common law wife of the appellant, Ms.

Wolfe. [ 5 ] She and others gave evidence of the appellant’s activity during the evening and early morning hours when the chase occurred. None of the evidence pertained to the exact hour of the police pursuit. Ms. Wolfe also said she called the police to report the vehicle stolen, but this was several hours after it had been found. There was a conflict in the testimony of Ms. Wolfe and another of the appellant’s witnesses.

She said she advised only the police and not the appellant of the theft when she noticed it in the afternoon, whereas a co-worker of the appellant said the appellant had advised him at morning coffee break of the theft. The appellant also testified, denying that he had been the driver of the vehicle. [ 6 ] The trial judge concluded that the identity evidence and the circumstantial evidence in the Crown case, considered as a whole, established the elements of the offence under s. 249.1 and also that the appellant was the driver of the vehicle at that time.

He disbelieved the appellant in his denial of being the driver. He further found the alibi evidence not to be compelling.

As noted by the Crown and by him, the time gaps are such that there is no precise alibi, since for a period from approximately 3:00 to 6:00 in the morning, during which time the incident occurred, no one could confirm that the appellant was at home. [ 7 ] The appellant now appeals on the basis that the trial judge erred in the use of the identity evidence of the police officer, the use of circumstantial evidence, the rejection of the alibi evidence, and finding that the requisite elements of an offence under s. 249.1 had been proven. [ 8 ] With respect to the identity evidence, we are of the view that the trial judge properly instructed himself in a manner consistent with recent decisions in this Court. [1] These cases have stressed the fragility of eye witness evidence and here, as in those cases, the trial judge was sensitive to the difficulties.

He not only addressed the conditions and the briefness of time, but noted that were this to have

been the only evidence he would have had no hesitation in dismissing the charge. [ 9 ] We are of the view that insofar as he used this identification evidence as part of the Crown’s case, he made no error. [ 10 ] The next complaint by the appellant is with respect to use of circumstantial evidence. The trial judge, correctly, in the scheme of assessing the Crown’s overall case, did turn his mind after discussing identity, to the circumstantial evidence.

He summarized it: The circumstantial evidence that needs to be considered is the fact that the vehicle that went by driven by this person, was in fact the accused’s spouse or partner’s vehicle. Furthermore, the driver matched his general description, even if it wasn’t him, it was still a person of his general description. The vehicle found later was driven by a person who had the keys to the vehicle. Ms. Wolfe testified that the vehicle was stolen but she offered no explanation of who else might have had those keys who is not authorized by her. . . .

As I have indicated, the eye witness identification would not be sufficient to conclude, beyond a reasonable doubt, in my opinion, that it was the accused driving this vehicle, but the vehicle was in fact his partner, Laurie Wolfe’s vehicle, it was found in suspicious circumstances afterward but in circumstances which make it clear it was driven by someone with access to the keys, or who had a key.

The driver was a person of the general description of the accused and though there are many persons of that general description, that is a small factor as well. [2] [ 11 ] In setting out the circumstantial evidence he considered he made, what the Crown has conceded to be, an error. He states in a subsequent passage that the appellant is a person of interest in the weapons offence which initiated the initial call to the police car: The final factor is that the accused, like the vehicle, had been placed at the scene as a person of interest.

This does not prove he is there, but it is a circumstance in the overall circumstances of this case, that is also consistent with the accused being there at that time. [3] This was conceded by the Crown to be hearsay and inadmissible as proof that the appellant was in fact the person of interest. The officers were of course free to testify as they did that they had been told he was a person of interest and that this was the reason they initiated the pursuit and called up the photograph.

This does not however, as the trial judge seems to have thought, prove that the appellant was the person of interest. [ 12 ] With respect to the trial judge’s conclusion on identity and on the other pieces of circumstantial evidence, there was evidence on which he could have found as he did and we cannot interfere with these results. [ 13 ] The trial judge made one error in deciding what circumstantial evidence was available for his consideration.

The Crown contends that we may cure this under s. 686(1)(b). [4] That is, this Court ought to dismiss the appeal in any event on the basis that no substantial wrong or miscarriage of justice has occurred. [ 14 ] We are of the view that this is one of those cases where we may invoke that provision, sustain the conviction and dismiss the appeal. The issue of whether or not the appellant was in fact a person of interest did not appear pivotal to the trial judge’s reasoning. Identity evidence and other more significant facts about car ownership were clearly more important. [ 15 ] The Supreme Court of Canada in R. v.

Van [5] said: 34 It is worthwhile taking one small step back for a moment to acknowledge that not every error in a criminal trial warrants appellate intervention. Under s. 686(1)(

a) of the Criminal Code , an appeal against a conviction may be allowed only in the event of an error of law, an unreasonable verdict, or a miscarriage of justice. In this case, it is not disputed that the failure to give a limiting instruction is an error of law that falls within s. 686(1)(a)(ii) and that the appeal could therefore have been allowed. However, it still falls to this Court to determine whether the convictions can be upheld despite the existence of an error, with resort to s. 686(1)(b)(iii) of the Code .

Under this provision, a conviction can be upheld providing that the error has not resulted in a substantial wrong or a miscarriage of justice. The Crown bears the burden of showing the appellate court that the provision is applicable, and satisfying the court that the conviction should stand notwithstanding the error. To do so, it must establish that the error of law falls into one of two categories. First, that it is an error so harmless or minor that it could not have had any impact on the verdict.

In the second category are serious errors that would otherwise justify a new trial or an acquittal, but for the fact that the evidence against the accused was so overwhelming that any other verdict would have been impossible to obtain: Khan [2001 SCC 86 , [2001] 3 S.C.R. 823]; R. v. Trochym , 2007 SCC 6 , [2007] 1 S.C.R. 239. 35 In Khan , this Court reviewed these two categories of error and explained the basis for upholding convictions in the face of these errors. An error falling into the first category is an error that is harmless on its face or in its effect.

The proviso ensures that an appellate court does not need to overturn a conviction solely on the basis of an error so trivial that it could not have caused any prejudice to the accused, and thus could not have affected the verdict. Indeed, it would detract from society's perception of trial fairness and the proper

administration of justice if errors such as these could too readily lead to an acquittal or a new trial (e.g. Chibok v. The Queen (1956), (SCC), 24 C.R. 354 (S.C.C.), at p. 359). This is consistent with Lamer C.J.'s pronouncement in R. v. Jacquard, (SCC), [1997] 1 S.C.R. 314, that, in respect of errors in a trial judge's charge to the jury, "accused individuals are entitled toproperly instructed juries. There is, however, no requirement for perfectly instructed juries" (para. 2 (emphasis in original)).

Thus, aslight deviation from the standard of a perfect jury charge is likely to constitute a harmless error that could justify upholding aconviction. Errors might also be characterized as having a minor effect if they relate to an issue that was not central to the overalldetermination of guilt or innocence, or if they benefit the defence, such as by imposing a more onerous burden on the Crown (Khan, atpara. 30). The question of whether an error or its effect is minor should be answered without reference to the strength of the otherevidence presented at trial.

The overriding question is whether the error on its face or in its effect was so minor, so irrelevant to theultimate issue in the trial, or so clearly non-prejudicial, that any reasonable judge or jury could not possibly have rendered a differentverdict if the error had not been made. 36 An appellate court can also uphold a conviction under s. 686(1)(b)(iii) in the event of an error that was not minor and that cannotbe said to have caused no prejudice to the accused, if the case against the accused was so overwhelming that a reasonable and properlyinstructed jury would inevitably have convicted (Khan, at para. 31).

The ability to uphold a conviction in the face of a serious error attrial was aptly expressed by Sopinka J. in R. v. S. (P.L.), (SCC), [1991] 1 S.C.R. 909, who wrote that "depriving theaccused of a proper trial is justified on the ground that the deprivation is minimal when the invariable result would be anotherconviction" (p. 916, affirmed in Khan, at para. 31).

The high standard of an invariable or inevitable conviction is understandable, giventhe difficult task for an appellate court of evaluating the strength of the Crown's case retroactively, without the benefit of hearing thewitnesses' testimony and experiencing the trial as it unfolded (Trochym, at para. 82). It is thus necessary to afford any possible measureof doubt concerning the strength of the Crown's case to the benefit of the accused person. The rationale for upholding a conviction inthese circumstances is persuasive; in the words of Binnie J. in R. v.

Jolivet, 2000 SCC 29, [2000] 1 S.C.R. 751, at para. 46: Where the evidence against an accused is powerful and there is no realistic possibility that a new trial would produce a different verdict,it is manifestly in the public interest to avoid the cost and delay of further proceedings. Parliament has so provided. This reasoning was echoed in my concurring reasons in Khan (at para. 90).

Thus, an appellate court is justified in refusing to allow anappeal against a conviction in the event of minor errors that could not possibly have affected the verdict and more serious errors that werecommitted in the face of an overwhelming case against the accused, since the underlying question is always whether the verdict wouldhave been the same if the error had not been committed: R. v. Bevan, (SCC), [1993] 2 S.C.R. 599. Here the evidence against the appellant was powerful as in Jolivet. The identity evidence was accepted.

The appellant testified and hisstatus on police curfew was known to the judge who assessed his credibility and who accepted this as a reason to evade the police. Thetrial judge relied principally on the ownership of the vehicle and the late reporting of the alleged theft as the important circumstantialevidence.

He made no particular reference to the inadmissible evidence in his reasoning other than to cite it. [16] Based on the identification evidence and the other items of circumstantial evidence stressed in the reasons we are of the view thatthe error in accepting the truth of the presence, rather than the report of the presence as an initiating factor for the chase and the photoidentification, was not so central to the judgment that it must be overturned.

The remaining evidence is such that on a re-trial therewould be no realistic possibility that there would be a different verdict. [17] The dismissal of the appellant’s testimony and of the alibi evidence, such as it was, was within the trial judge’s power as a finder ofcredibility. [18] Finally, we are of the view that the elements of the offence, as he found it to have occurred, were supported by the evidence. [19] Thus, applying the curative provisions of s. 686(1)(

b) to the one error in the evidence, the appeal is dismissed.