R. v. Roussin (B.), 2014 MBCA 24

Citation: R. v. Roussin (B.), 2014 MBCA 24 Date: 20140227 Docket: AR 10-30-07353 IN THE COURT OF APPEAL OF MANITOBA Coram : Chief Justice Richard J. Chartier Mr. Justice Marc M. Monnin Mr. Justice William J. Burnett BETWEEN : HER MAJESTY THE QUEEN ) C. L. Antila ) for the Appellant Respondent ) ) N. P. Steen ) for the Respondent - and - ) ) Appeal heard and BJARNE ROUSSIN ) Decision pronounced: ) February 24, 2014 (Accused) Appellant ) ) Written reasons: ) February 27, 2014 CHARTIER C.J.M. [ 1 ] The accused was charged on a 25 count indictment.

Following a trial before judge and jury, he was convicted of the following 15 counts: robbery with a weapon, attempted robbery with a weapon, flight, dangerous driving, counselling the commission of an indictable offence, use of an imitation firearm while committing robbery, possession of a prohibited weapon, possession of a weapon for a dangerous purpose, public mischief, two counts of obstruction of justice, three counts of uttering threats and breaching a non- communication order of the court. [ 2 ] He received a total sentence of 12 years’ imprisonment less an eight-year credit for a four-year period of pre-sentence custody that was applied on a 2:1 basis. [ 3 ] He appealed his conviction and sentence.

He also moved to admit fresh evidence on appeal. [ 4 ] After the hearing, we denied the fresh evidence motion, dismissed the conviction appeal, and denied leave to appeal the sentence, with reasons to follow. These are those reasons. [ 5 ] As the accused’s fresh evidence motion was directed at the fairness of the trial process and raised miscarriage of justice issues, we reserved our decision on the motion until after we had considered the grounds of appeal raised (see R. v.

Richard (D.R.) et al. , 2013 MBCA 105 at paras. 203-206 , 299 Man.R. (2d) 1 ). [ 6 ] The accused raised a number of issues on his conviction appeal. [ 7 ] The first issue was in regards to the accused’s request to sever a 29 count indictment into three separate trials. He argued that the trial judge’s failure to sever the counts deprived him of a fair trial by allowing propensity reasoning on the part of the jury. We do not agree. The trial judge properly balanced the factors in deciding whether to sever the charges.

In the end, he agreed in part with the accused when he severed four counts from the indictment and ordered a separate trial for those charges. Moreover, the trial judge dealt with the potential prejudice against the accused by instructing the jury to consider each count separately and to avoid propensity reasoning.

The jury was told that it “must not use evidence that relates only to one charge in making your decision on any other charge.” In our view, the trial judge acted judiciously in exercising his discretion, and his decision is entitled to deference. [ 8 ] The accused also submitted that the trial judge erred in admitting wiretap evidence. He raises two arguments on this ground of appeal. First, he said that there was misleading and/or insufficient evidence before the trial judge who authorized the wiretap and, as a result, that the trial judge erred by not excluding that evidence.

We do not accede to this ground of appeal. We are all of the view that the trial judge did not err in law, misapprehend the evidence, or fail to consider relevant evidence when he found that there was

some reliable evidence upon which the authorizing judge could have issued the order. This evidence included:

i) that a vehicle used insome of the robberies had been leased by the accused’s common-law wife; ii) that the accused had been seen driving a vehicle matchingthe description of a vehicle used in a robbery; and; iii) that the accused possessed bear spray, a spray which had been used in a number ofthe robberies. [9] Second, the accused argued that there was no investigative necessity for the wiretap authorization. Again, wedisagree. As explained in the leading case of R. v.

Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, investigative necessity will bedemonstrated when it can be shown that normal investigative techniques are not likely to succeed. In this case, the evidencedemonstrated that prior police surveillance attempts over a four-day period had failed and that some of the evasive measures taken by theaccused, such as the flight from police and driving at high rates of speed, were extremely dangerous.

In our view, the trial judge did noterr in law, misapprehend the evidence or fail to consider relevant evidence when he found that the evidence demonstrated that theaccused was particularly skilled in evading police surveillance and that normal investigative techniques were likely to fail or be toodangerous. [10] The accused also argued that the trial judge gave an ineffective Vetrovec ( (SCC), [1982] 1 S.C.R. 811)warning with regard to the evidence of two co-accused.

The accused contended that the trial judge did not sufficiently draw to the jury’sattention areas of the evidence of the two co-accused that called into question the reliability of that, and other evidence, which may havecontradicted the evidence of the co-accused. The accused also argued that these inconsistencies in the evidence should have beenhighlighted at the same time the trial judge was listing the potential confirmatory evidence with respect to the Vetrovec witnesses. [11] We disagree. There is no pre-set order of presentation in jury charges. That is best left to the good judgment of the trialjudge.

What matters most is the substance of the charge. In the context of this case, we are of the view that the Vetrovec warning wasmore than effective and adequate. The jury could not have been under any misunderstanding that they were to look at the evidence ofthe two co-accused, in the words of the trial judge, “with the greatest care and caution” and that it would be “dangerous” to rely on theirevidence unless it was confirmed by another witness or other evidence.

The trial judge’s charge included an extensive review of thesignificant inconsistencies in the evidence of the Vetrovec witnesses, all suggesting why they should not be believed and he concludedwith the warning with respect to the two co-accused: .… They are both admitted liars and there were so many inconsistencies, contradictions and disagreements between the two of them intheir testimony that it is unreliable and unbelievable.

Appellate intervention is unwarranted on this ground. [12] Finally, the accused argued that the verdict was unreasonable because it was not open to the jury to accept the evidenceof the two co-accused. Again, we must disagree. As we recently stated in R. v.

Monkman (G.S.) et al., 2012 MBCA 87, 288 Man.R. (2d)1 (at para. 48): The mere fact that a witness is disreputable does not in and of itself lead to the conclusion that the jury could not rely upon the evidenceof that witness and still act judicially. …. [13] In the end, it was for the jury to decide whether the various inconsistencies in the evidence of the two co-accused raiseda reasonable doubt.

By returning verdicts of guilty on some counts and not guilty on others, the jury demonstrated that they were alive tothe applicable legal principles that had been explained by the trial judge in his jury charge. [14] As indicated earlier, the accused also moved to admit fresh evidence on appeal. This new evidence related tocomments apparently made by a juror. The juror is alleged to have made comments to a Mr. Kopychanski, a friend of a Mr. Lent, whoincidentally is a friend of the accused. The fresh evidence consists of two statements and a Winnipeg Police Service Media Release. The first statement from Mr.

Lent alleges that Mr. Kopychanski had spoken to a juror who had told him that he had performed a Googlesearch and, as a result, knew that the accused had a previous record. A similar search done by trial counsel in February of 2010 yieldedthe Winnipeg Police Service Media Release which included that the accused had been arrested in 2004 for two unrelated robberies. [15] In his unsigned and unsworn statement, Mr. Lent does not recall if his conversation with Mr. Kopychanski had occurredduring or after the trial. However, in the second unsworn statement, that of a Mr. Benham, who was Mr.

Lent’s roommate at the time,Mr. Benham says that Mr. Lent told him of his conversation with Mr. Kopychanski while the trial was still in progress. [16] We had a number of concerns with respect to the fresh evidence which the accused moved to admit. First, thestatements before us were unsworn. Second, it is clear that these statements are hearsay and are, as a general rule, inadmissible. Finally,there is an obvious gap in the line of information which led to the creation of these statements: the accused has neither provided anystatement from Mr.

Kopychanski, sworn or unsworn, relating to the details of his conversation with the juror, nor any explanation fromsomeone to account for this gap. [17] In the end, the evidence which the accused moved to admit was hearsay evidence. The information in the two unswornstatements was at least twice, if not three times, removed from the juror and either given by a friend of the accused or told to a third partyby this same friend. To be admissible as fresh evidence under s. 683(1) of the Criminal Code, the evidence sought to be adduced mustbe admissible evidence. Dickson J., as he then was, made clear in R. v.

O’Brien, (SCC), [1978] 1 S.C.R. 591 (at p.602):

…. It is a prerequisite that any evidence sought to be adduced under the discretion granted by that

section be admissible evidence. The

section manifestly does not authorize a Court of Appeal to dispense with the law of hearsay evidence. If that were so we would have the anomalous situation in which counsel could seek to adduce on appeal that which the common law prohibits at trial. The

section is not operative until the threshold for admissibility as defined by common law and statute is crossed. …. [ 18 ] In our view, the evidence sought to be adduced by the accused in this case does not meet the requirements to admit hearsay evidence under one of the traditional common law exceptions to the hearsay rule. Nor can it be admitted pursuant to the principled approach to admit hearsay evidence (set out in R. v. Khelawon , 2006 SCC 57 , [2006] 2 S.C.R. 787 ), as it cannot be viewed as meeting threshold reliability.

As a result, because the evidence did not meet the admissibility precondition, we denied the fresh evidence motion. [ 19 ] For these reasons, after denying the motion to admit the fresh evidence, we dismissed the conviction appeal. On the sentence appeal, we were all of the view that leave should be denied as the grounds raised did not meet the arguable case threshold. C.J.M. I agree: J.A. I agree: J.A.