R. v. Namura, 2015 BCSC 2040

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Namura, 2015 BCSC 2040 Date: 20151009 Docket: M15478 Registry: Victoria Regina v. Corey Namura Before: The Honourable Madam Justice Dorgan On appeal from: A decision of the Provincial Court of British Columbia, August 7, 2014 (R. v. Namura, Victoria File No. M15478) Oral Reasons for Judgment Counsel for the Crown: K. Morley Counsel for the Appellant: C. Mackie Place and Date of Trial/Hearing: Victoria, B.C. September 29 and 30, 2015 and October 9, 2015 Place and Date of Judgment: Victoria, B.C. October 9, 2015 [ 1 ] THE COURT: Mr.

Namura appeals his August 7, 2014, conviction -- breach of a municipal bylaw -- and in so doing, seeks to adduce fresh evidence on that appeal. Mr. Mackie suggested that the fresh evidence application would be best considered in the context of the appeal as a whole. Ms. Morley did not disagree, agreed, I think, with that process, and accordingly, the application and the appeal were heard simultaneously. [ 2 ] If the application to introduce fresh evidence is granted, that evidence would form part of the argument on the appeal and in respect of the new trial sought.

If the application to introduce the fresh evidence is not granted, then the applicant is still able to argue his appeal on the grounds asserted. [ 3 ] The background facts here are these. [ 4 ] The appellant, Mr. Namura, appeals a conviction for an offence under s. 62 of the District of Oak Bay Animal Control Bylaw No. 1999 for which he was sentenced to a $200 fine. It is alleged by the Crown that Mr. Namura allowed his dog, Chloe, to bite, attack, terrorize, or endanger Ms. Hutchinson, contrary to the bylaw. [ 5 ] The incident that gave rise to the issue of the bylaw ticket occurred July 14, 2013.

The ticket was disputed. The trial before a judicial justice was held in Provincial Court on January 27, 2014. Reasons for judgment were issued August 7, 2014. [ 6 ] The complainant Ms. Hutchinson and Mr. Namura testified. [ 7 ] The bylaw under which Mr. Namura was charged, and this is s. 62 of the bylaw, under the heading “vicious dogs”, reads: No person shall allow his or her dog to bite, attack, terrorize, or endanger a person or animal. [ 8 ] In convicting Mr. Namura, the judicial justice made several pivotal findings in paras. 16 through to 20 inclusive.

Included in those findings were findings in respect of credibility and the ultimate conclusion as to whether or not the Crown's case had been made out. In para. 16, the judicial justice found as follows: [16] I carefully observed Ms Hutchinson and Mr. Namura as they gave their evidence. Both were forthright and not evasive. However, I find Ms Hutchinson’s evidence is objective and internally consistent in every respect. On crucial matters, I find Mr. Namura’s evidence as not so internally consistent.

For example, he says he did not see Chloe bite Ms Hutchinson and suggests her injuries were caused by Chloe’s claws when she was rearing at her. The only conclusion I can come to is that Ms Hutchinson’s injuries were from a bite and not a scratch from a dog’s claws and it would be evident to Mr. Namura, even on his version of the event, that Chloe did bite Ms Hutchinson’s arm. [ 9 ] Further, the judicial justice made the finding that where the evidence between Ms. Hutchinson and Mr. Namura differed, he accepted the evidence of Ms. Hutchinson. On all the evidence, the judicial justice concluded:

… that Chloe, while unleased [sic], made a charge on Ms Hutchinson from at least 6 - 7 metres away and clamped her jaws on her rightforearm, causing numerous small lacerations to the skin and significant bruising to the surrounding area on both the top and bottom ofthe forearm. This occurred while in both the care and control of her owner, Mr. Namura. [10] The judicial justice went on to find that Mr. Namura had not made out a defence of due diligence on the following findings: that Mr. Namura was aware before this event took place that Chloe was hyper-excitable -- “he did not let her get close to smalldogs”; Ms.

Hutchinson was with a small dog, and he knew that, and yet he did not maintain proper control of Chloe; Mr. Namura allowed Chloe to leave the vehicle unleashed in close proximity to Ms. Hutchinson and the small dog she waswalking. [11] The conclusion of the judicial justice at para. 20 of the reasons for judgment reads: Therefore, I find Mr. Namura guilty of allowing his dog, Chloe, to bite and attack a person, being Ms. Hutchinson, contrary to

section 62of Bylaw 4541 of the District of Oak Bay. [12] So against that background, I turn to the application to adduce fresh evidence on this appeal. [13] The onus on Mr. Namura in his application to adduce fresh evidence is to meet the test set out in R. v. Palmer, (SCC), [1980] 1 S.C.R. 759 at para. 22. There are three prongs to this test, four actually. The first is due diligence, the rule being thatthe evidence will generally not be admitted if, by due diligence, it could have been adduced at trial, provided that this general principle isnot applied as strict in a criminal case as in a civil case.

Next, the evidence must be relevant, and that means that it must bear on adecisive or potentially decisive issue in the trial. Next, the evidence must be credible in the sense that it is reasonably capable of belief,and finally, it must be such that if believed, it could reasonably, when taken with all of the evidence adduced at trial, be expected to haveaffected the result. [14] The fresh evidence Mr. Namura seeks to adduce in this case is opinion evidence. It is in the form of an expert report of Dr.Sweet, who is a doctor of dentistry. He is a professor at UBC in the faculty of dentistry.

He is not a veterinarian. He proffers what isreferred to in his affidavit as a “forensic” opinion. In the trial, the Crown adduced photographic evidence, photos of Ms. Hutchinson'sarm showing injury and bruising, photos which she testified accurately depicted the injuries that she sustained as a result of her encounterwith Chloe. [15] Dr. Sweet's proffered opinion, after looking at these photos and at three photos of Chloe's teeth, photos which were not inevidence, and taking into account the description of the encounter, presumably recited to him by Mr.

Namura, and after examining castsof Chloe's upper and lower jaws and teeth, which were not in evidence at the trial and presumably were supplied to him by Mr. Namura,is that the injury or injuries depicted in the photos on Ms. Hutchinson's forearm are “inconsistent with being caused by the dog's teethfrom which the casts originated.” [16] So I turn now to the principles in Palmer to consider whether or not Mr. Namura has indeed met the Palmer test. [17] The opinion evidence of Dr. Sweet directly contradicts the evidence of the complainant that Chloe bit her.

The evidence whichthe judicial justice accepted was that of the complainant. [18] At the outset, I note that the proposed fresh evidence is not purely “fresh” in this sense; it is not evidence of a previouslyunknown pivotal witness. It is not evidence of newly discovered, relevant documentary evidence. It is opinion evidence. Dr. Sweet'sopinion, or expert evidence generally, was a matter for Mr. Namura in this case, to garner prior to trial if it was his view that it wasrelevant and compelling to the issues before the court. It is the type of evidence that a party must go out and find and create.

It is notevidence that could be suddenly discovered post-trial that would affect an issue. So in that sense, it is not “fresh” evidence. It is moreaccurately described as new evidence, but nevertheless I will apply the Palmer test to the consideration of its admission. [19] Whether or not a party decides to go out and find an expert for the purpose of obtaining an opinion, whether or not a party thendecides that they will call that witness to proffer opinion evidence, is a matter of trial tactics.

A party who wants to adduce opinionevidence and is unable, for example, to garner such evidence after reasonable efforts made prior to a trial, is open to applying for anadjournment of the trial in order to obtain the evidence that party says is relevant to his case. [20] In this case, there was no application to adjourn the trial, and it was the first trial date set. There was no indication given to thejudicial justice that Mr. Namura was still looking for further evidence for the purpose of making good his intention to call opinionevidence. [21] Before this court on this application, Mr.

Namura very wisely, in my view, abandoned his argument of incompetence of hiscounsel at trial, so what we are left with here is a re-visitation of trial tactics following a conviction, and that, in my view, does notground a successful application to adduce fresh evidence.

And this is apart from the fact that opinion evidence in order to be admissible,of course, is the subject of examination in chief and cross-examination on qualifications, and if, after hearing that evidence, the trier offact determines that the witness has the requisite expertise to offer an opinion, something that ordinary witnesses are not entitled to do, itsreliability, then, is the next question, and the reliability of opinion evidence centres on the veracity of the assumptions and bases onwhich the opinion is proffered. [22] The evidence before me shows that Mr.

Namura and his trial counsel turned their minds to whether they would call and couldobtain opinion evidence in the nature of that of Dr. Sweet. They did so before the trial, and the decision was made not to follow that up. So in these circumstances, I find Mr. Namura has not met the onus of showing due diligence.

[23] While I believe in this case, given the nature of the evidence and how this application really concerns trial tactics, that the lackof due diligence is determinative of the issue of admission of fresh evidence, I am aware that the authorities provide that a finding on duediligence is not necessarily determinative of the issue. Allowing the admission of evidence despite the lack of due diligence is anexception to the general rule to its exclusion, but it will be permitted, if its admission is required to uphold the integrity of the courtprocess.

That is, if the evidence could reasonably be expected to have affected the result of the trial, it should go in notwithstanding lackof due diligence, and of the many authorities for that proposition, see R. v. G.D.B., 2000 SCC 22 and R. v. Snyder, 2011 ONCA 445. [24] As I noted earlier, I am satisfied in this case that the nature of the evidence and the determination of whether or not to adduce itat trial, if obtained, was tactical and, as such, should not now be revisited. However, I turn to the balance of the Palmer test: Is thisevidence credible? That is, is it reasonably capable of belief?

And I have already noted that its threshold admissibility is dependent onthe evidence of qualifications and the subsequent finding. I note that Dr. Sweet's opinion in respect of canine, not human, bite markswould necessarily inform whether his qualifications go to his ability to give that evidence. His CV is filled with articles about bitemarks. It says nothing about canine bite marks -- I am assuming he deals with human bite marks -- in the forensic field of identification.

In any event, that would have to be determined. [25] However, if I assume admissibility of the opinion, there are significant issues, in my view, regarding the reliability of Dr.Sweet's evidence. Dr. Sweet did not examine this dog at the time he wrote his report nor at the time of the incident in question. Whenthis incident took place, this dog was a juvenile dog. Dr. Sweet gets involved about two years later. [26] Presumably, the casts of Chloe's jaw and teeth that were made available to Dr. Sweet were made after the incident. How manymonths, years, one does not know.

What effect, if any, that would have in the development of this dog's jaw and teeth is not known. Butit raises the question, Does the fact of the age of the dog in relation to the time the incident took place compared to the time the castswere taken affect the size or position of the teeth? How were these casts made? What did Mr. Namura tell Dr. Sweet about theencounter? What effect did that recitation of events have on Dr. Sweet's opinion? Dr. Sweet did not examine the complainant after theincident, of course, or at all.

He notes that his comparison of the injuries testified to and the casts of the dog's jaw and teeth that he hadwas done by using photographs of the injuries, photographs which he says are of low resolution and not of forensic quality. Thesephotographs were taken eight days after the event. These are just some aspects of Dr. Sweet's opinion which raise significant questionsabout its reliability and relevance. [27] But finally, overall, I must consider this. Could Dr.

Sweet's evidence, if believed and when taken together with all of the otherevidence called at trial, reasonably be expected to have affected the outcome? I conclude it would not. Even if the opinion evidence ledthe trier of fact to conclude that Chloe did not bite Ms. Hutchinson as she testified Chloe did, thereby rendering the Hutchinson evidenceunworthy of belief, the evidence which each of Ms. Hutchinson and Mr. Namura gave is capable of supporting a guilty verdict given thewording of this bylaw. Each testified that there was an encounter.

Each testified that this encounter developed such that one couldreasonably conclude that Mr. Namura was unable to stop the encounter. The fact there was contact between Chloe and Ms. Hutchinsonand that there was some injury to her arm was testified to by each of Ms. Hutchinson and Mr. Namura. This testimony over which thereis no dispute between them supports a finding of an attack in accordance with the wording of this bylaw, and indeed, this judicial justicefound that the dog bit and attacked.

So this uncontroverted evidence is capable of supporting a guilty verdict on a finding of attack orpossibly terrorizing or endangering.

In my view, the evidence of whether or not there was a bite is not determinative of the outcome forthe reasons that I have just given. [28] I have concluded that the application to adduce fresh evidence ought to be dismissed, and I dismiss it. [29] I turn now to the appeal. [30] The appellant's grounds of appeal are (1) that the conviction cannot be supported by the evidence; (2) that there are errors inlaw; and (3) that the conviction was a miscarriage of justice based on the fact that the judge misapprehended evidence and counsel madeimproper and prejudicial submissions. [31] The tests that Mr.

Namura must meet on this appeal, this not being a trial de novo, amount to this: In asking whether the verdictshould be set aside on the grounds that it cannot be supported by the evidence, Mr. Namura must satisfy this court that the verdict is onethat the trier of fact, acting judicially, could not reasonably have rendered on the whole of the evidence. In determining whether theverdict should be set aside based on an error in law, and this is a mixed fact and law case, the onus on Mr.

Namura is to satisfy this courtthat the judicial justice committed an overriding and palpable error and finally, in considering whether or not this verdict should be setaside Mr. Namura must satisfy this court the verdict amounts to a miscarriage of justice in that the trier of fact misapprehended theevidence. Mr. Namura must satisfy this court that the misapprehension of the evidence went to the substance of the case rather than thedetail. It must be a misapprehension of evidence that is material rather than peripheral to the reasoning of the trial judge. [32] The authorities for those tests on appeal are R. v.

Yebes, (SCC), [1987] 2 S.C.R. 168; R. v. Biniaris, 2000 SCC15; Housen v. Nikolaisen, 2002 SCC 33; and R. v. Lohrer, 2004 SCC 80. [33] In respect of the grounds advanced and the onus on the appellant in this case, I have concluded that the conviction can besupported by the evidence and that no error of law arises. As earlier noted, the judicial justice found that Mr. Namura allowed his dogChloe to bite and attack Ms. Hutchinson, contrary to s. 62 of the bylaw. Each of Mr. Namura and Ms. Hutchinson testified there was anencounter.

The evidence of each was capable of supporting a conclusion that the encounter was unwanted or unwelcomed by Ms.Hutchinson and that Mr. Namura was unable to stop it. [34] There were differences as to the nature of that encounter. Ms. Hutchinson said the dog leaped at her and that the dog was “inflight” when its jaw came in contact with her forearm. Mr. Namura testified that as he was getting Chloe out of his vehicle while theother dog that was with him which was unleashed and walking away, down the road, Chloe reared up in front of Ms. Hutchinson like ahorse.

In either case, the scenario each describes could hardly be described as benign. [35] Ms. Hutchinson testified she was bitten. Mr. Namura says he did not see Chloe bite Ms. Hutchinson and that afterward he saw asmall hole in Ms. Hutchinson's sweater and a scratch on her forearm from which he concluded that Chloe must have somehow struck Ms.

Hutchinson with her paws. [ 36 ] Ms. Hutchinson said the dog was unleashed. Mr. Namura said the dog was on a leash. [ 37 ] Mr. Namura testified that Chloe was young, excited, hyper, and jumping as he was getting her out of his vehicle. [ 38 ] The judicial justice found Ms. Hutchinson to be credible. Findings of fact, and especially findings of credibility, of course, deserve deference in this court, and as I read the decision, I am satisfied that the judicial justice did turn his mind to the requisite burden of proof and the standard of proof regarding findings of credibility.

Further, he found that where the two witnesses differed, he preferred the evidence of Ms. Hutchinson. Hs findings should be given great deference. [ 39 ] He also turned his mind as to whether the evidence of Mr. Namura, even if not accepted, could have raised a reasonable doubt.

He is not, as a trier of fact, required to repeat word for word the W.(D.) principles in order to satisfy an appellate court that he indeed applied the right test. [ 40 ] Further, in my view, the evidence as given by each of the witnesses, if each was believed in some respects was quite capable, as I have earlier noted in other respects of this appeal, of grounding a conviction given the wording of s. 62. [ 41 ] In conclusion, then, I find that the verdict was one which could reasonably have been rendered.

The judicial justice did not, in admitting the evidence he did, or in his consideration of that evidence, commit an overriding and palpable error, nor did he misapprehend the evidence relevant to the elements of the offence, including the evidence relevant to the issue of whether the owner “allowed” the dog to bite, attack, terrorize, or endanger in this particular case, which alleges a breach of a bylaw, a strict liability offence. [ 42 ] I am satisfied there was no miscarriage of justice in this case, and accordingly, I dismiss the appeal. “J. L. Dorgan, J.” The Honourable Madam Justice Dorgan