R. v. Mikolajczyk, 2014 MBCA 3

Citation: R. v. Mikolajczyk, 2014 MBCA 3 Date: 20140106 Docket: AR 13-30-07970 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Madam Justice Holly C. Beard Mr. Justice Marc M. Monnin BETWEEN : ) HER MAJESTY THE QUEEN ) J. C. Hatherly ) for the Appellant Respondent ) ) N. P.

Steen - and - ) for the Respondent ) ) MICHAEL MIKOLAJCZYK ) Appeal heard and ) Decision pronounced: (Accused) Appellant ) January 6, 2014 ) STEEL J.A. (for the Court): [ 1 ] The accused appeals his convictions on three charges of breaking and entering, arguing that the verdict was unreasonable and the reasons for judgment were inadequate. [ 2 ] The only issue in the case was identity.

The trial judge convicted the accused of the charges solely on circumstantial evidence, that being the footage from a surveillance camera showing a male looking similar to the accused and wearing clothing similar to that found in the accused’s van later in time, as well as evidence from an expert trained in the ability to make scientific examinations and comparisons of surveillance footage related to legal matters.

The expert reviewed the surveillance footage from the crime scene and created a number of still images from different camera angles; he also photographed and analysed the clothing seized from the accused and the van and compiled a report from this evidence. [ 3 ] The trial judge considered all the evidence and found a significant number of similarities between the clothing and the male in the surveillance footage to that of the clothing seized from the accused and his appearance.

She found that the “consistencies were numerous and in some instances remarkable” and while, individually, they would have been insufficient to ground a finding of guilt, viewed cumulatively, she found them to be sufficient to be convinced of his guilt beyond a reasonable doubt.

While she mentioned some dissimilarities, she pointed out that this could have been a distortion due to the lighting or the video imaging process as explained by the expert. [ 4 ] The test for appellate intervention on the basis of an unreasonable verdict is whether, on the whole of the evidence, the verdict is one that a properly instructed trier of fact, acting judicially, could reasonably have rendered.

Appellate intervention on the basis of unreasonable verdict may be necessary when the reasons of a trial judge, sitting alone, demonstrate that “he or she was not alive to an applicable legal principle, or entered a verdict inconsistent with the factual conclusions reached” ( R. v. Biniaris , 2000 SCC 15 at para. 37 , [2000] 1 S.C.R. 381). These defects may disclose an error of law, supporting the conclusion that the verdict is unreasonable. See also R. v. Flores (R.B.) , 2013 MBCA 4 at para. 21 , 288 Man.R. (2d) 173.

With respect to the second issue, in order to be adequate, the reasons issued by the trial judge must inform the parties of the basis of the verdict, provide public accountability and permit

meaningful appellate review. Only if the reasons are both inadequate and cannot be understood from a review of the entire record is a new trial required. See R. v. Dinardo , 2008 SCC 24 , [2008] 1 S.C.R. 788. [ 5 ] We do not agree that the trial judge speculated as to why some differences existed between the clothing seen on the surveillance footage and the clothing seized from the accused. She accepted the evidence of the expert as to how certain distortions can occur on surveillance footage.

We agree with the Crown that there is a difference between speculation and what the trial judge did here, which was to make a reasonable and logical factual inference from the evidence. [ 6 ] The trial judge’s detailed reasons make clear that she took into account all of the information available to her. She reviewed the surveillance footage and was able to make her own comparisons between the clothing in the footage and the clothing seized from the accused.

She was able to find numerous points of similarity between the various items of clothing and between the physical appearance of the male in the footage and the accused. She also responded in a reasonable fashion to the argument of the accused as to the alleged dissimilarities. [ 7 ] We do not see any basis for appellate intervention on either ground of appeal. The accused raised a third ground of appeal regarding the sentence that we need not consider as it applied only in the event that this appeal as to conviction was allowed. The appeal is dismissed. J.A. J.A. J.A.