Docket: CACR1987 Ian Andrew Gamble Appellant - v. -, 2014 SKCA 101

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2014 SKCA 101 Date: 2014-09-17 Between: Docket: CACR1987 Ian Andrew Gamble Appellant - and - Her Majesty the Queen Respondent Restriction on Publication: An order has been made in accordance with the Criminal Code directing that any information identifying the complainant shall not be published. Coram: Lane, Herauf and Whitmore JJ.A. Counsel: Marilyn P. Adsit for the appellant W. Dean Sinclair for the respondent Appeal: From: 2010 SKPC 171 Heard: September 17, 2014 Disposition: Conviction and sentence appeal dismissed (orally)

Written Reasons: September 29, 2014 By: The Honourable Mr. Justice Whitmore In Concurrence: The Honourable Mr. Justice Lane The Honourable Mr. Justice Herauf Whitmore J.A. I. Introduction [ 1 ] The appellant, Ian Gamble, was convicted of two charges of sexual assault causing bodily harm pursuant to s. 272(1) (

c) of the Criminal Code , R.S.C. 1985, c. C-46 and two charges of failure to comply with a condition contained in an undertaking pursuant to s. 145(3) of the Code . On the first charge of sexual assault causing bodily harm he was sentenced to five years incarceration and on the second such charge he was sentenced to a period of incarceration of four years, to be served consecutively. On each of the s. 145(3) charges the appellant was sentenced to 30 days incarceration to be served concurrently. [ 2 ] The appellant appeals from his conviction and from the sentences he received. The appeals were dismissed orally.

These reasons supplement the oral reasons. II. Background [ 3 ] The trial judge summarized the circumstances of the assaults as follows: [8] In relation to the sexual assault of F.L., the Court accepts her evidence, which is summarised as follows: 1. After a night of drinking, F.L. was walking alone in the early morning hours of May 3, 2008. She had finished a 2 litre bottle of Tropical Kiwi Cooler and described herself as really drunk and staggering. A yellow car pulled up at Avenue Q and 17th Street and the driver and sole occupant asked her if she wanted a ride.

She accepted because she did not want to be arrested for violating her probation by drinking. She also thought that the driver was a good-looking native guy who could be trusted. In the car, he said he sold cocaine for his brother Darren Harper and asked if she wanted some; she agreed as she believed the drug would have a sobering effect. She recognized the name as that of a powerful respected family who was gang affiliated. 2. She relaxed in the front passenger side of the car with her eyes closed listening to the music. He drove down 11th Street into the area where she had grown up and gone to school.

She became aware that the vehicle stopped somewhere within a block of her old school. When the music was turned down, she opened her eyes and saw that the male had his pants down around his knees and that there was a condom on his erect penis. He threw $20.00 toward her and asked if she was a prostitute. When she threw the money back, he grabbed the hair on the top of her head with both hands and forced her mouth onto his penis. When she bit it, he struck her with a closed fist while holding her head with his other hand.

She could not say how many times she was struck but she could not believe that a man could hit so hard. The punches landed on her face, head and all over her body. He began choking her hard enough to make her “see black” and almost lose consciousness. She feared she was going to die. She recalled him saying something about his mother as he choked her. He began having intercourse with her while continuing to strike her with his right fist. She could not say how her pants were pulled down. The more she fought the harder he hit her.

She got the driver’s door open and he tumbled out, whereupon she got out the passenger side. He slammed the door on her ankle and grabbed at her leg. She was able to get out of his grasp and ran, simultaneously pulling up her pants. She ran to three separate houses where there was no answer. 3. She began walking and in short order was picked up by the police, at about 9:00 a.m. She gave the officers her sister’s name to avoid arrest and reported that she had been sexually assaulted by Darren Harper’s little brother.

Due to her drunkenness, she was left at her mother’s home but when she began arguing with her family the police were again called. She blacked out and woke up in a drunk tank wearing different clothes. Once she was sober she was taken to the Royal University Hospital where a sexual assault kit was done. … [11] The Court also accepts the following evidence of S.S. in relation to her assault: 1. In May 2008, S.S. was 18 years old and attending school. On the evening of May 23rd she and two friends, A.P. and V.D, went to a house party where they were to meet A.P.’s boyfriend.

They had an alcoholic drink each as they got ready and arrived at the party between 3:00 and 3:30 in the morning. There were four other people there in addition to the girls. They stayed about one hour and left with an individual named Ian who arrived about the same time as they were leaving. S.S, her two girlfriends and two other people drove about the city in Ian’s car. They purchased some whiskey at a bootlegger’s, and went to a park where they continued drinking. Eventually two of the people were dropped off leaving, S.S. and her two friends with Ian.

None of the three girls had ever met Ian before the party. 2. The group tried to get some ecstasy and cocaine but were unsuccessful. They continued drinking the whiskey and eventually V.D. and A.P. were driven home. S.S. remained in the car to get a ride to her home. Once A.P. and V. D. left the car, the male indicated that he could not get enough cocaine for the group but could for just the two of them. They parked in an alley in the Meadow Green District of Saskatoon ostensibly to wait for his friend who had cocaine.

In cross-examination, S.S. said she felt “just buzzed”, but not drunk from the alcohol she had been drinking and that she was prepared to take drugs. 3. S.S. was in the front passenger seat of the vehicle and as they waited, they talked and listened to music. The male said his name was Ian Harper; she associated that surname with a local gang. He talked about a drug debt owed to him and his brother by Mike and

Randy Thunderchild. When asked in cross-examination whether he named his brother, she said “Darren” and also recalled him referringto another brother named Craig and a sister named Tony. She acknowledged that the name Gamble was never used. While they weresitting in the car, he offered her $1,000.00 to have sex with him which she refused. 4. After spending one-half to one hour in the alley waiting for a drug transaction that never materialized, she asked to be driven home.The male asked for a kiss and she kissed his cheek.

He then reached across her lap, put the passenger seat into a reclining position, andbegan choking her with both hands. While continuing to choke her with one hand, he simultaneously punched her with a fist. He told herhe would kill her. She told him to stop and promised to do anything if he would. He did not stop choking and hitting her until she bit hisarm. She then opened the passenger door and fell out of the car onto her knees. The suspect exited the passenger side and got on top ofher. She was face down on the ground; he got on her back and choked her by crossing his arms around her neck from behind.

Sheblacked out for some period of time and when she came to she was still by the passenger door and the male was kicking her in hershoulder. He kicked her in the face and dragged her behind the car. As she lay there on her back, he told her to remove her pants. Shefeared he was going to kill her, so removed her pants and underwear. This gave her the opportunity to get up and run naked from thewaist down, to a nearby home. In the meantime the male drove off. 5. Christopher Kulbida was awakened by the hysterical, half-clad complainant at his back door and called emergency services.

Thepolice arrived within minutes. (R. v. Gamble, 2010 SKPC 171 at para. 8 and 11) [4] The trial judge found that the injuries sustained to each victim amounted to bodily harm. III. Issues [5] The appellant bases his appeal upon the following two claims: (

a) the trial judge erred in not hearing the defence application to sever the two charges; (

b) the trial judge erred in not providing a ruling on the admissibility of evidence at the close of a Charter voir dire. [6] According to the appellant, these errors removed his right to not be compelled to be a witness in proceedings against him contraryto s. 11(

c) of the Canadian Charter of Rights and Freedoms,

Part I of the Constitution Act, 1982, being

Schedule B of the Canada Act1982 (U.K.), 1982, c. 11. He argues he was denied knowledge of the case he has to meet. IV. The Conviction A. Severance [7] The appellant requested a severance of the two counts of sexual assault causing bodily harm on the basis that he failed to see anyconnection between the two sexual assaults. The application to sever was made in response to the Crown’s statement that it would bemaking an application to admit similar fact evidence. [8] The trial judge ruled she would not be able to decide the issue until she had heard the evidence.

The application for severancewas never referred to again. [9] Section 591(3) of the Code sets out a Court’s power to sever: Severance of accused and counts 591(3) The court may, where it is satisfied that the interests of justice so require, order (

a) that the accused or defendant be tried separately on one or more of the counts; and (

b) where there is more than one accused or defendant, that one or more of them be tried separately on one or more of the counts. [10] The Supreme Court in R. v. Last, 2009 SCC 45, 247 C.C.C. (3d) 449 provided guidance with respect to the factors to considerwhen hearing a severance application: [17] Courts have given shape to the broad criteria established in s. 591(3) and have identified factors that can be weighed whendeciding whether to sever or not. The weighing exercise ensures that a reasonable balance is struck between the risk of prejudice to theaccused and the public interest in a single trial.

It is important to recall that the interests of justice often call for a joint trial. Litchfield,where the Crown was prevented from arguing the case properly because of an unjudicial severance order, is but one such example.Severance can impair not only efficiency but the truth-seeking function of the trial. [18] The factors identified by the courts are not exhaustive. They simply help capture how the interests of justice may be served ina particular case, avoiding an injustice.

Factors courts rightly use include: the general prejudice to the accused; the legal and factualnexus between the counts; the complexity of the evidence; whether the accused intends to testify on one count but not another; thepossibility of inconsistent verdicts; the desire to avoid a multiplicity of proceedings; the use of similar fact evidence at trial; the length ofthe trial having regard to the evidence to be called; the potential prejudice to the accused with respect to the right to be tried within areasonable time; and the existence of antagonistic defences as between co-accused persons: R. v.

E. (L.), (1994), (ONCA), 94 C.C.C. (3d) 228 (Ont. C.A.), at p. 238; R. v. Cross, (1996), (QC CA), 112 C.C.C. (3d) 410 (Que. C.A.), at p.419; R. v. Cuthbert, (1996), (BC CA), 106 C.C.C. (3d) 28 (B.C.C.A.), at para. 9, aff’d, (SCC),[1997] 1 S.C.R. 8 (sub nom. R. v. C. (D.A.)). [11] If there is a connection between the counts, they are less likely to be severed. In this case, the similarities are striking. The trial

judge referred to the similarities in para. 33 of the decision: [33] The evidence before the Court establishes the following points of similarity: 1. Both complainants got a ride from their attacker; 2. Both complainants describe his car as a small sports car; 3. Both describe him as a young aboriginal male; 4. He told both that he was involved in the drug trade; 5. He told both that he could get cocaine; 6. He delayed each complainant in the vehicle on the pretext of waiting for the drug dealer; 7. They waited for the dealer in an alley; 8. The drugs never materialized; 9.

He offered each complainant money for sexual favours; 10. When the complainants declined, they were physically attacked; 11. Both complainants were choked until they lost or nearly lost consciousness; 12. He described himself to both complainants as a member of the “Harper” family. [12] The appellant has the onus on a balance of probabilities establish it would be in the interests of justice to sever the counts. Theappellant’s counsel at trial did not advance any arguments on this issue other than stating that he failed to see a connection.

Connectionthere was indeed between the two counts as the trial judge observed. [13] The trial judge did not specifically rule on the severance application. The appellant submits this is an error in law. The Crownmaintains the trial judge effectively ruled on the severance application in her decision regarding the admissibility of similar factevidence, viewing the two issues as inextricably linked. [14] Section 686(1) of the Code sets out this Court’s power on appeal from conviction: Powers 686.

(1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminallyresponsible on account of mental disorder, the court of appeal (

a) may allow the appeal where it is of the opinion that (

i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence, (ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or (iii) on any ground there was a miscarriage of justice; (

b) may dismiss the appeal where (

i) the court is of the opinion that the appellant, although he was not properly convicted on a count or part of the indictment, wasproperly convicted on another count or part of the indictment, (ii) the appeal is not decided in favour of the appellant on any ground mentioned in paragraph (a), (iii) notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph (a)(ii) the appeal might be decided infavour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred, or (iv) notwithstanding any procedural irregularity at trial, the trial court had jurisdiction over the class of offence of which the appellantwas convicted and the court of appeal is of the opinion that the appellant suffered no prejudice thereby … [15] In R. v.

Sekhon, 2014 SCC 15 at para. 53, [2014] 1 S.C.R. 272, the Supreme Court outlined the application of the curative provisocontained in s. 686(1)(b)(iii) of the Code: [53] As this Court has repeatedly asserted, the curative proviso can only be applied where there is no “reasonable possibility that theverdict would have been different had the error . . . not been made” (R. v. Bevan, (SCC), [1993] 2 S.C.R. 599, at p. 617,aff’d in R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at para. 28).

Flowing from this principle, this Court affirmed in Khan that thereare two situations where the use of s. 686(1)(b)(iii) is appropriate: (1) where the error is harmless or trivial; or (2) where the evidence isso overwhelming that, notwithstanding that the error is not minor, the trier of fact would inevitably convict (paras. 29–31). [16] Thus, an error that is minor and harmless is curable by the proviso; while an error that is more serious can be cured if the evidenceis overwhelming and conviction is inevitable.

[ 17 ] Notwithstanding the trial judge’s omission to determine the severance application, the application certainly would have been denied. The omission was therefore without consequence. It made no difference to the result. The error was certainly trivial. In addition, the evidence is so overwhelming that a conviction would have been entered in any event. B. Admissibility of Evidence [ 18 ] I will now deal with the second issue of whether the trial judge erred in failing to rule on the admissibility of evidence at the close of the Charter voir dire . [ 19 ] The appellant claims this failure of the trial judge deprived him of the knowledge of the case he had to meet. [ 20 ]

Section 646 of the Code provides that a judge in any case tried without a jury may reserve a final decision on any question raised at the trial. [ 21 ] This Court in R. v. Wilson , 2013 SKCA 128 , 427 Sask. R. 63 and in R. v. Salisbury , 2012 SKCA 32 at para. 14 , 385 Sask. R. 322 held that a trial judge is empowered to reserve on any application until the end of the case, subject to certain limited restrictions: [14] It is necessary for the Court to simply clarify there is no set procedure for the determination of Charter violations and relevant remedies.

The appropriate procedure and process will depend on the particular circumstances of the case taking into account all of the relevant factors. There will be situations where a Charter breach needs to be dealt with immediately and in other situations redress can wait until matters are adjudicated at trial. There are no hard and fast rules, nor would it be possible to set such rules.

The determination of the appropriate procedure is within the discretion of the trial judge and, assuming the discretion is properly exercised, deference will be accorded. ( Salisbury , para. 14 ) [ 22 ] Thus, it was within the discretion of the trial judge to defer this ruling. In fact, the appellant’s counsel at trial appeared to consent to the trial judge reserving her decision on this matter. [ 23 ] Further, I do not accept the appellant’s position that he had no knowledge of the case he had to meet. The essential issue was known to be the identity of the appellant.

The appellant’s defence was that he had an alibi. That being the case, the appellant’s decision to testify had been made. It did not depend upon the decision of the trial judge. The appellant’s counsel at the conclusion of the voir dire said that Mr. Gamble would be testifying. Further, the trial judge decided the evidence was admissible and the appellant has not appealed the correctness of that decision. The appellant suffered no prejudice by the trial judge deferring the ruling to the conclusion of the trial. [ 24 ] The appeal from conviction is therefore dismissed. V.

The Sentence [ 25 ] No argument was presented that would convince me that the sentence is unfit. No facta or cases were filed on the issue of sentence appeal. The trial judge properly considered the protection of the public as a significant factor. She also considered all of the appropriate factors, including the gravity of the offences, which resulted in the imposition of consecutive sentences. The trial judge stated the following: I find that concurrent sentences would not adequately address the degree of culpability of this offender, nor would it properly address the principles of denunciation and deterrence.

Given the predatory and violent nature of these offences, the aggravating circumstances enunciated earlier, and the minimal mitigating factors, a total sentence of nine years is necessary to reflect the seriousness of the offences, to give voice to society’s denunciation of this kind of conduct, to deter this accused and others. Accordingly, those sentences will be served consecutively. And so the four years and the 45 months. (Transcript p. 613) [ 26 ] The trial judge was aware of the limited record of the appellant. [ 27 ] The sentence is within the range of sentences for similar offences. VI.

Conclusion [ 28 ] The appeal is dismissed in its entirety.