R v Falk, 2016 MBCA 54

Citation: R v Falk, 2016 MBCA 54 Date: 20160530 Docket: AR15-30-08502 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Michel A. Monnin Madam Justice Freda M. Steel Madam Justice Janice L. leMaistre BETWEEN : HER MAJESTY THE QUEEN ) N. P. Steen ) for the Appellant Appellant ) ) D. C.

Falk - and - ) on his own behalf ) DYLAN CORY FALK ) Appeal heard and ) Decision pronounced: (Accused) Respondent ) May 13, 2016 ) ) Written reasons: ) May 30, 2016 MONNIN JA [ 1 ] This is a Crown appeal from an acquittal on a charge of break, enter and theft. [ 2 ] The Crown alleges that the trial judge erred in applying the test for a no evidence motion. [ 3 ] The only issue at trial was one of identification. Surveillance footage taken in the store that was broken into captured two men stealing liquor from the store.

One of the two men was dressed in a manner nearly identical to clothing worn by the accused who, while shopping in the same store some two hours earlier, was filmed by the same video camera. However, the accused’s face does not appear on the video recording entered into evidence. [ 4 ] Following the closing of the Crown’s case, the accused brought a motion for no evidence on the issue of identity. [ 5 ] In granting the motion and subsequently acquitting the accused, the trial judge stated: I’m granting your motion. There is no evidence.

I’m being asked not only, what I’m being asked by the Crown is to come to a conclusion beyond a reasonable doubt -- MS. HEBERT: But if I may add that -- THE COURT: Yeah, I’m not done.

And I appreciate Crown, defence counsel is asking me that there is no evidence on which I can rely that asks, that leads me to concludethat this individual is guilty. And I can’t rely on that evidence because it is shaky at best. I can’t rely on that evidence to come to that conclusion.

And in my viewthere is no evidence, whether it’s from the statement, or whether it’s from the video, or whether it’s from the witnesses, that I can rely onthat this individual is guilty. [6] The test to be applied on a motion for no evidence was reviewed by this Court in R v O’Kane (PJ) et al, 2012 MBCA82, 284 ManR (2d) 72, where Hamilton JA wrote (at paras 40-41): The test to be applied by a trial judge on a directed-verdict motion is whether “there is admissible evidence which could, if it werebelieved, result in a conviction” (R. v.

Arcuri (G.), 2001 SCC 54 , [2001] 2 S.C.R. 828; 274 N.R. 274; 150 O.A.C. 126; 2001SCC 54 at para. 21). It is the same test that is applied by a preliminary inquiry judge when determining whether an accused should becommitted to stand trial. In Arcuri, McLachlin, C.J.C., explained the test and how it is more complicated when there is circumstantial evidence (at paras. 22-23,30): The test is the same whether the evidence is direct or circumstantial: see Mezzo v. The Queen, (SCC), [1986] 1 S.C.R.802, at pp. 842-43; Monteleone, [ (SCC), [1987] 2 S.C.R. 154], at p. 161.

The nature of the judge’s task, however,varies according to the type of evidence that the Crown has advanced. Where the Crown’s case is based entirely on direct evidence, thejudge’s task is straightforward. ... If there is direct evidence as to every element of the offence, the accused must be committed to trial. The judge’s task is somewhat more complicated where the Crown has not presented direct evidence as to every element of the offence.

The question then becomes whether the remaining elements of the offence - that is, those elements as to which the Crown has notadvanced direct evidence - may reasonably be inferred from the circumstantial evidence. Answering this question inevitably requires thejudge to engage in a limited weighing of the evidence because, with circumstantial evidence, there is, by definition, an inferential gapbetween the evidence and the matter to be established - that is, an inferential gap beyond the question of whether the evidence should bebelieved ...

The judge must therefore weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting theinferences that the Crown asks the jury to draw. This weighing, however, is limited. The judge does not ask whether she herself wouldconclude that the accused is guilty. Nor does the judge draw factual inferences or assess credibility. The judge asks only whether theevidence, if believed, could reasonably support an inference of guilt. In performing the task of limited weighing, the preliminary inquiry judge does not draw inferences from facts. Nor does she assesscredibility.

Rather, the judge’s task is to determine whether, if the Crown’s evidence is believed, it would be reasonable for a properlyinstructed jury to infer guilt. Thus, this task of “limited weighing” never requires consideration of the inherent reliability of the evidenceitself.

It should be regarded, instead, as an assessment of the reasonableness of the inferences to be drawn from the circumstantialevidence. [7] In the present case, the trial judge basically ignored the test that he was to apply, proceeded directly to dealing withthe issue of the accused’s guilt and found that the evidence did not satisfy him beyond a reasonable doubt, leading him to acquit theaccused. In doing so, he failed to consider whether the evidence was sufficient for him to find that there was some evidence on which aproperly instructed jury could convict.

That was an error. [8] In coming to his decision, the trial judge basically lumped the two different issues, with two different tests, into one. That was an error in law. Accordingly, following oral argument, we allowed the appeal and ordered a new trial. JA JA

JA