Docket: CACR2304 Stephen Norman Hordyski Appellant - v. -, 2014 SKCA 102

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2014 SKCA 102 Date: 2014-09-26 Between: Docket: CACR2304 Stephen Norman Hordyski Appellant - and - Her Majesty the Queen Respondent Coram: Herauf, Whitmore and Ryan-Froslie JJ.A. Counsel: Stephen Hordyski on his own behalf Erin Schroh for the respondent Appeal: From: Provincial Court Heard: September 26, 2014 Disposition: Dismissed (orally)

Written Reasons: September 30, 2014 By: The Honourable Mr. Justice Herauf In Concurrence: The Honourable Mr. Justice Whitmore The Honourable Madam Justice Ryan-Froslie Herauf J.A. [ 1 ] Mr. Hordyski seeks to overturn his conviction for an offence of theft under $5,000 contrary to s. 334 (

b) of the Criminal Code . [ 2 ] In an oral decision, this Court dismissed Mr. Hordyski’s conviction appeal. His sentence appeal was also dismissed as being moot since he had served his entire period of probation prior to the appeal being heard. The Court undertook to provide written reasons. These are those reasons. [ 3 ] The facts can be briefly stated. Mr. Hordyski was observed on a CCTV camera by a loss prevention officer shoplifting merchandise in a store. He was with his young son and Ms. Pearl Peters, the mother of his son, in the household goods area of the store. Ms.

Peters left her shopping basket containing various health and beauty items with Mr. Hordyski and then left the area. [ 4 ] The loss prevention officer saw Mr. Hordyski remove the price tag from a softshell lunch bag and proceed to transfer the items from the shopping basket into the lunch bag. The loss prevention officer then observed Mr. Hordyski pick up his son, conceal the lunch bag between the two of them, and walk toward the store exit. Mr. Hordyski paused by the cashiers to look around before walking past the cashiers and out of the store with the items. The loss prevention officer confronted Mr.

Hordyski just outside the store, where he appeared to be looking for someone. Mr. Hordyski was subsequently arrested for theft. The value of the stolen items totalled approximately $220. [ 5 ] At trial, the Crown called the loss prevention officer and the investigating police officer. Both witnesses were thoroughly cross- examined by Mr. Hordyski’s trial counsel. Mr. Hordyski was the only witness called for the defence. The defence contention was that Mr. Hordyski did not have the necessary intent to commit the offence of theft under $5,000 as his reason for leaving the store was to look for Ms.

Peters so she could take their son to the bathroom. [ 6 ] The trial was not lengthy, nor complicated. The trial judge made specific findings of fact and credibility and concluded Mr. Hordyski was guilty as charged. [ 7 ] Mr. Hordyski contends that his trial counsel was incompetent because he for failed to call corroborating evidence to bolster his theory that his relationship with Ms. Peters was dysfunctional and to confirm the extent of his debilitating back injury. That evidence, according to Mr.

Hordyski, would prove he did not have the intent to commit the offence. [ 8 ] There is a two-step process involving an allegation of incompetent trial counsel. The first step is to establish that trial counsel’s failure to call corroborating evidence constitutes incompetence and second, that a miscarriage of justice resulted. This test is set out by the Supreme Court of Canada in R v B.(G.D.) , 2000 SCC 22 , [2000] 1 SCR 520. [ 9 ] With respect to the nature of Mr. Hordyski’s relationship with Ms. Peters, it is noted that Mr. Hordyski testified under oath about this relationship.

In fact, the trial judge accepted Mr. Hordyski’s evidence on this point. That being said, the trial judge went on to reject Mr. Hordyski’s contention that the relationship raised a reasonable doubt as to his intent to steal the items when he left the store. [ 10 ] As well, the trial judge accepted the evidence of Mr. Hordyski as to his physical condition as a result of his back injury.

But once again, the trial judge did not find that his physical condition raised a reasonable doubt as to his intention to steal the items in question. [ 11 ] Having reviewed the record carefully, we cannot find any error with the trial judge’s rejection of Mr. Hordyski’s explanation for leaving the store with the items. It is also our view that trial counsel more than adequately cross-examined the Crown witnesses and elicited evidence in the examination–in-chief from Mr. Hordyski relating to his defence: i.e. , that he did not have the necessary intent to commit the theft.

There was certainly nothing unreasonable about trial counsel’s alleged failure to call corroborating evidence on these issues when the proposed evidence did not relate to material issues but only to facts the trial judge accepted. To reiterate, the trial judge accepted the testimony of the loss prevention officer and rejected Mr. Hordyski’s testimony where it was in conflict. The trial judge accepted Mr. Hordyski’s testimony with respect to the nature of his relationship with Ms. Peters and the nature of his physical condition. More importantly, the trial judge rejected Mr.

Hordyski’s evidence as to why he took the items from the store. [ 12 ] In the result, we did not find any error in the reasoning of the trial judge and also find that trial counsel did not act unreasonably by deciding not to call corroborating evidence on the issues of his relationship with Ms. Peters and physical condition as the evidence on these matters had already been accepted by the trial judge. [ 13 ] The conviction appeal is dismissed. The sentence appeal is dismissed as being moot.