R. v. MacDonald, 2013 NSCA 45

NOVA SCOTIA COURT OF APPEAL Citation: R. v. MacDonald , 2013 NSCA 45 Date: 20130417 Docket: CAC 394522 Registry: Halifax Between: Cameron Kennedy MacDonald Appellant v. Her Majesty the Queen Respondent Judges: Oland, Beveridge and Bryson, JJ.A. Appeal Heard: April 4, 2013, in Halifax, Nova Scotia Held: Leave to appeal refused per reasons for judgment of Bryson, J.A.; Oland and Beveridge, JJ.A. concurring. Counsel: Luke A. Craggs, for the appellant Mark Scott, for the respondent Reasons for Judgment: [ 1 ] Cameron MacDonald was convicted of shoplifting, and fined $250.00 (theft under $5,000.00 – s. 334 (

b) of the Criminal Code ). On the evening of April 22 nd , 2010, Mr. MacDonald entered the Nova Scotia Liquor Store on Quinpool Road. He helped himself to an expensive bottle of Hendrick’s gin. Security cameras captured Mr. MacDonald picking up the gin from the store shelf. He says he put it back before leaving. The cameras do not depict this. According to a security guard, he left the store without paying. The police were called. [ 2 ] Mr. MacDonald returned to the store shortly thereafter. He had changed his appearance. He was no longer wearing a coat and a ball cap. This time Mr.

MacDonald picked up two bottles of modestly priced Chilean red wine. The cameras show Mr. MacDonald picking up and later replacing two bottles of wine. He left the store. When Mr. MacDonald was detained by police a few blocks away, a bottle of red Chilean wine and one of Hendrick’s gin was found in his backpack. [ 3 ] Mr. MacDonald testified and denied taking anything. He said he had purchased the alcohol some days before, although he had

no receipts. He was just carrying the alcohol around with him in his backpack. He explained his change of clothes by saying that beforereturning to the store, he had given his hat and coat to a female acquaintance outside the store who was cold. She enjoyed the warmth ofhis alleged gallantry for a minute or so until he left the store the second time and retrieved his clothes. [4] Unsurprisingly, the trial judge did not believe Mr. McDonald and rejected his evidence. While acknowledging some problemswith the Crown’s evidence, the judge was satisfied beyond a reasonable doubt on a review of all of the evidence that Mr. MacDonaldwas guilty. [5] Mr. MacDonald appealed to the

Summary Conviction Appeal Court (SCAC). He maintained that the Provincial Court judgehad misapprehended the evidence by accepting the security guard’s testimony without properly comparing her evidence with that of thesecurity video footage. [6] After reciting the law and reviewing the evidence, the SCAC judge concluded: [19] The question for the

Summary Conviction Appeal Court is whether the verdict is unreasonable. In making that determination inthis case, it was necessary to "review, and to some extent, reweigh the evidence," as the Court of Appeal put it in Nickerson. It is not thiscourt's role to overturn the trial judge findings of fact merely because I might have made different ones. My role is to decide whether theevidence is reasonably capable of supporting the trial judge's conclusions. In this case, the trial judge clearly rested his decisionprimarily on Ms. Cooper's evidence.

He did not conduct a detailed examination or comparison of her evidence with the video in hisreasons, although she was cross-examined on the alleged inconsistencies between her own recollection and the inferences to be drawnfrom the video. The trial judge specifically noted the "disjointed" nature of the video evidence and I infer that he did not regard the videoevidence as being determinative when weighed with all the other evidence.

The appellant's position is, essentially, that the videoevidence alone should have raised a reasonable doubt in the trial judge's mind. [20] I am not satisfied that the surveillance video made it unreasonable for the trial judge to convict. Nor can I substitute my ownassessment of the weight to be given to the video for his. There is a danger when considering demonstrative or documentary evidence onappeal that the appeal court's own assessment will displace the standard of review that is intended to impose boundaries on appellateintervention.

The trial judge was entitled to weigh the surveillance videos along with all the other evidence presented at trial. I am notsatisfied that the videos are so clearly contrary to the evidence of Ms. Cooper as to make a conviction unreasonable. [2012 NSSC 157] [7] Mr. MacDonald now appeals to this Court, repeating many of the arguments made before the SCAC judge.

He says theSCAC judge erred in applying and interpreting the standard of review and wrongly concluded that the Provincial Court judge entered averdict which the evidence could support. [8] Although a charge of theft might be maintained even where the item is removed with the requisite intent to steal, but is thenreplaced, (R. v. Kosh, (SK CA), [1965] 1 C.C.C. 230 (Sask. C.A.)), the Crown concedes that the verdict would beunsound in this case if it only rested on the incident involving the red wine. The Information is not particularized.

The Crown says thetheft of gin sustains the conviction. [9] This is an appeal under s. 839 of the Code. It can only be on a question of law, with leave of the Court. Leave is only grantedwhere the case raises a question of general importance or the merits appear very strong, especially if the liberty of the accused isthreatened, (R. v. R.(R.), 2008 ONCA 497). [10] The SCAC judge must correctly state and apply the principles of review, (R. v. Francis, 2011 NSCA 113; R. v. Farrell, 2009NSCA 3).

If he does, there is no error permitting our intervention. [11] As his decision discloses, the SCAC judge recited and applied the correct law. He grasped Mr. MacDonald’s argument. Hereviewed the evidence in light of both the law and the argument advanced. He dismissed the appeal. The SCAC judge did not err in hisstatement of applicable principles or their application. [12] Mr. MacDonald’s counsel concedes that there is no question of general importance in this case. The merits of appeal are notstrong. I would not grant leave to appeal. Bryson, J.A. Concurred in: Oland, J.A. Beveridge, J.A.

NOVA SCOTIA COURT OF APPEAL Citation: R. v. MacDonald, 2013 NSCA 45

Date: 20130417 Docket: CAC 394522 Registry: Halifax Between: Cameron Kennedy MacDonald Appellant v. Her Majesty the Queen Respondent Judge: The Honourable Justice Peter M.S. Bryson Appeal Heard: April 4, 2013 Subject: Appeals. Criminal.

Summary Conviction Matters.

Section 839 Criminal Code of Canada , R.S.C. 1985, c. C-46.

Summary: Mr. MacDonald was convicted of shoplifting and fined $250.00 (theft under $5,000.00 – s. 334 (

b) of Criminal Code ). He appealed to the

Summary Conviction Appeal Court alleging misapprehension of evidence. His appeal was dismissed. He then sought leave to appeal from the Court of Appeal. Crown argued leave should not be granted as there was no error in the SCAC judge’s statement or application of the law. Issues: 1. Should leave be granted? 2. If so, did the

Summary Conviction Appeal Court err in his statement or application of the law to the facts in conducting his review of the Provincial Court decision? Held: Leave not granted. There was no issue of general importance and no strong chance of success on the merits of the appeal.