Docket: CACR2254 Kelly Robin Deck Appellant - v. -, 2014 SKCA 44

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2014 SKCA 44 Date: 2014-04-24 Between: Docket: CACR2254 Kelly Robin Deck Appellant - and - Her Majesty the Queen Respondent Coram: Richards C.J.S., Jackson and Ryan-Froslie JJ.A. Counsel: Peter A. Abrametz for the appellant Beverly Klatt for the respondent Appeal: From: Q.B. No. CR 1 of 2012, J.C. Prince Albert Heard: April 15, 2014 Disposition: Appeal dismissed Written Reasons: April 24, 2014 By: The Honourable Chief Justice Richards In Concurrence: The Honourable Madam Justice Jackson

The Honourable Madam Justice Ryan-Froslie Richards C.J.S. I. introduction [ 1 ] The appellant, Kelly Deck, was convicted of stealing cattle contrary to s. 338(2) of the Criminal Code and of fraudulently making a false or counterfeit mark on cattle contrary to s. 338(1)(b)(ii) of the Code . [ 2 ] At trial, Mr. Deck acknowledged he had sold the cattle in question. However, he said that he had believed them to be part of his own herd. The trial judge did not accept Mr. Deck’s version of events and convicted him of the two offences noted above. [ 3 ] Mr. Deck appeals the convictions.

He says the trial judge misapprehended various aspects of the evidence and, as a result, rendered unreasonable verdicts. He also says the trial judge erred by ignoring or failing to consider the testimony of Shawna and Lynlea Deck, his wife and daughter. [ 4 ] I conclude, as explained below, that Mr. Deck’s appeal must be dismissed. II. background [ 5 ] I will recount only enough of the evidence to create a framework for analyzing Mr. Deck’s arguments. [ 6 ] Mr. Deck farms in the Shellbrook district of Saskatchewan.

One of his neighbours is Glenn Strube. [ 7 ] At the end of September or the very beginning of October in 2009, Mr. Strube noticed that ten yearling Simmental heifers were missing from his cattle herd. He began calling his neighbours in an effort to locate the heifers. [ 8 ] According to Mr. Strube, each of the heifers had a yellow “dangle” tag in its left ear and a radio frequency tag in its right ear. [ 9 ] Mr. Strube spoke to Mr. Deck’s wife by telephone. She advised that she had not seen the missing cattle and, as Mr. Strube described it, gave him permission to check a Deck pasture. Mr.

Strube did this but did not find the heifers. [ 10 ] Over the following days, another neighbour, Sigurd Skarsgard, told Mr. Strube that he had seen about ten head of Simmental cattle in the ditch along a road near the Strube and Deck farms. At the trial, Gerry Nordquist, Mr. Deck’s hired man, testified that he had also seen cattle in and near the ditch and had told Mr. Deck about them. [ 11 ] On or about October 10 or 11, 2009, Mr. Strube observed a cattle truck in Mr. Deck’s farm yard and someone chasing cattle toward the yard. [ 12 ] Mr. Strube was suspicious that Mr.

Deck had taken the heifers and he began phoning livestock facilities. The provincial Livestock Inspection Service was eventually drawn into the picture and its work established that Mr. Deck had sold cattle, including heifers, on October 13, 2009. [ 13 ] The heifers were traced to farms – nine to a farm in Saskatchewan and one to a farm in Alberta. The heifers found in Saskatchewan were confirmed to be Mr. Strube’s animals. Each had been ear tagged by Mr. Deck. They carried no other tags. [ 14 ] Mr.

Deck was charged with stealing the heifers, fraudulently keeping them in his possession and fraudulently making a false or counterfeit mark on them. III. the trial decision [ 15 ] The trial judge had little difficulty finding that the heifers sold by Mr. Deck had belonged to Mr. Strube. Indeed, Mr. Deck did not contest this fact. Rather, his position was that he had thought the heifers were his own. [ 16 ] The trial judge did not believe that Mr. Deck had failed to realize he was dealing with Mr. Strube’s cattle. His conclusion in this regard was grounded on a number of considerations.

First, he did not accept Mr. Deck’s evidence to the effect that he knew little about the number and breeds of animals he owned. Second, he saw Mr. Deck’s statement in examination in chief that he had “no idea” how to remove ear tags as having been aimed at supporting his contention that he had done nothing untoward in relation to the heifers. Third, the trial judge found that Mr. Deck would not have expected to find ten yearling heifers in his herd in light of his practice of selling calves as they matured and of not keeping young animals for breeding purposes.

[17] The trial judge also noted that, when visited by RCMP Constable Jamey Budd about the missing cattle, Mr. Deck had said that hehad shipped the animals because they were getting into his canola. [18] The trial judge went on to observe that none of the heifers, on being located, carried Mr. Strube’s tags. He said it was not withinthe realm of possibility that all of the Strube tags had fallen out. In the end, the trial judge concluded Mr.

Deck had removed Mr.Strube’s tags from the heifers and replaced them with his own tags before selling the animals. [19] The trial judge had a reasonable doubt about the “fraudulently keep in his possession” charge but entered convictions on the othertwo charges. IV. analysis [20] Mr. Deck advances two main lines of argument. First, he submits the trial judge misapprehended various aspects of the evidenceand, as a result, arrived at unreasonable verdicts. Second, he contends the trial judge erred by ignoring or overlooking the testimony ofhis wife and daughter, Shawna Deck and Lynlea Deck.

I will deal with each of these submissions in turn. A. Unreasonable Verdict [21] This Court is empowered by s. 686(1)(

a) of the Criminal Code to set aside a conviction if it is unreasonable. However, this doesnot mean the Court is entitled to consider the evidence anew or to substitute its findings of fact for those of the trial judge. Rather, thekey question in appeals of this kind is whether a trier of fact, properly instructed and acting reasonably, could have convicted the accusedperson. The Supreme Court has recently summarized the governing principles in R. v. R.P., 2012 SCC 22, [2012] 1 S.C.R. 746: [9] To decide whether a verdict is unreasonable, an appellate court must, as this Court held in R. v.

Yebes, (SCC), [1987]2 S.C.R. 168, and R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36, determine whether the verdict is one that a properlyinstructed jury or a judge could reasonably have rendered. The appellate court may also find a verdict unreasonable if the trial judge hasdrawn an inference or made a finding of fact essential to the verdict that (1) is plainly contradicted by the evidence relied on by the trialjudge in support of that inference or finding, or (2) is shown to be incompatible with evidence that has not otherwise been contradicted orrejected by the trial judge (R. v.

Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at paras. 4, 16 and 19-21; R. v. Beaudry, 2007 SCC 5, [2007]1 S.C.R. 190). [22] In making this determination, the Court is also required to show great deference to a trial judge’s findings of credibility. That is aparticularly important consideration in this case because the trial judge made adverse findings in relation to Mr. Deck’s credibility. See: R. v. Burke, (SCC), [1996] 1 S.C.R. 474 at para. 7. [23] Mr. Deck points to five areas where he says the trial judge failed to properly appreciate the evidence or erred in his treatment of it. [24] First, Mr.

Deck takes issue with the trial judge’s refusal to accept his evidence to the effect he was so unfamiliar with his cattleoperation that he did not notice Mr. Strube’s yearlings among his own animals. He says he was mainly a grain farmer and was in theprocess of getting out of the cattle business. He also notes that Les Tipton, a brand inspector, testified that some cattle operators are notfamiliar with their animals. [25] I see nothing unreasonable about the trial judge’s conclusions on this front. Mr. Deck gave quite detailed evidence about the sizeand composition of his cattle herd through 2008 and 2009.

He also testified that he kept an ongoing eye on his herd because cows werecalving throughout the year. In addition, Mr. Deck said that he had been selling off the bigger calves and that some late-born calvesfrom 2008 had been held over to 2009. In order to make that statement, he obviously had to have some close sense of the numbers ofanimals involved. Moreover, as the trial judge suggested, the cattle herd was an important part of Mr. Deck’s livelihood and it seemsvery unlikely that he would not be familiar with its composition.

The mere fact he was reducing the size of his operation does notlogically suggest that he was unfamiliar with it. In the end, it was entirely reasonable for the trial judge to refuse to accept the notionthat Mr. Deck had so little knowledge of his herd that he would have failed to realize Mr. Strube’s heifers were not his own. This isparticularly so given that Mr. Deck was aware Mr. Strube was looking for missing heifers. [26] Second, Mr. Deck takes exception to how the trial judge dealt with his answer to a question in examination in chief about how anear tag might be removed. In response to that question, Mr.

Deck had replied, “I have no idea”. The trial judge referred to this answerand said, in light of Mr. Deck’s mechanical ability and work on corral repair, that it was difficult to accept he could not think of a way toremove a tag. He said it was “more likely” that Mr. Deck’s answer was “aimed at supporting his ultimate denial of having done that [theremoval of the tags] at all.” In relation to this issue, Mr. Deck emphasizes that, in his cross-examination, he did in fact offer somecomment about what is involved in the removal of ear tags. [27] I see no merit in this aspect of Mr. Deck’s argument.

The fact that he was able to provide more insight into ear tag removal whenhe was pressed on cross-examination misses the trial judge’s point. The point was that Mr. Deck’s original answer, given in examinationin chief, seemed out of place in light of his background and seemed to be tailored to fit his overall story about not knowing the trueownership of the heifers. In my view, this was a reasonable and wholly appropriate characterization for the trial judge to place on thisaspect of Mr. Deck’s evidence. Mr.

Deck had worked with cattle his whole life and the trial judge was entitled to infer that he must haveknown something about how to remove an ear tag. Indeed, Mr. Deck’s testimony on cross-examination proved this to be true. [28] Third, Mr.

Deck submits the trial judge erred in stating that, when the heifers were shipped from his farm, his cattle herd hadincluded “about 90 cows: that is, full-grown animals, about six bulls, some calves including, perhaps, a handful of older calves born theprevious fall.” He says his evidence was that, at the relevant time, he would have had a “handful” of calves born in early 2009 but a“bunch” of animals born in the late fall of 2008. These are, in fact, the words used by Mr. Deck in his evidence at pages T35-T36 of the

transcript. However, I am unable to see how anything of consequence flows from this submission. [ 29 ] As an initial point, the trial judge was not bound to accept Mr. Deck’s account of how many calves born in late 2008 were on hand in the fall of 2009. On the basis of the whole of Mr.

Deck’s evidence on this issue (including his practice of having his cows calve year round, the fact he sold calves in different stages and his testimony that he did not think he had retained any of his own 2008 heifers for breeding purposes), it was open to the trial judge to conclude there would have been only a “handful” of calves born in the fall of 2008. This is especially so because the difference between a “handful” of cattle and a “bunch” of cattle is by no means clear. Moreover, and in any event, ten yearling heifers would not have blended seamlessly into even a “bunch” of calves born in late 2008.

The heifers would have been a significant numerical proportion of any such group of animals (Mr. Deck had only 90 brood cows and, given his evidence, only some of them would have calved in the late fall of 2008) and, as yearlings, Mr. Strube’s heifers would necessarily have been larger than the late-fall calves. [ 30 ] Fourth , Mr. Deck questions the trial judge’s treatment of the evidence concerning whether Mr. Strube had seen a cattle truck in Mr. Deck’s yard before or after a conversation between the two men about the missing heifers.

In my view, this point is not in any way material to the trial judge’s conclusions. Mr. Deck did not deny Mr. Strube’s heifers had been in his yard and he acknowledged that he had sold them. He also acknowledged that, at the time he had processed and shipped those animals, he knew Mr. Strube was looking for missing heifers. The particulars and timing of the conversation between him and Mr. Strube cannot diminish the significance of those key facts. [ 31 ] Fifth , Mr.

Deck takes issue with those aspects of the trial judge’s decision in which the judge examined the evidence concerning how, and how often, tags are lost or come out. This part of the evidence was important because, when they were recovered, the heifers were carrying only the tags Mr. Deck had placed on them. This was a significant part of what led the trial judge to conclude Mr. Deck had removed Mr. Strube’s tags. [ 32 ] There was testimony from more than one witness on the issue of the ear tags. Mr.

Strube testified that all of his cattle were tagged and that each of the heifers had a yellow tag in its left ear and a radio frequency tag in its right ear. In cross-examination, Mr. Strube was shown photographs of some 23 of his mature cows and bulls. The evidence is not entirely clear on the point but Mr. Deck submits those pictures reveal that only 12 of the animals had ear tags. Mr. Tipton, the brand inspector, testified that radio frequency tags do get lost and that, at bred cow sales, about 20 percent of cows have to be re-tagged.

He also said that, the older a cow gets, the greater the chance a tag will be lost. His evidence was also that, when tags are pulled out, there will be a rip in the ear of the animal and that, if the tag somehow just falls out, there will be a hole in the ear. He did not check to see if the recovered Strube heifers had more than one hole in their ears. [ 33 ] In light of this evidence, it was open to the trial judge to conclude, as he did, that while some of the tags placed on the heifers by Mr.

Strube could have fallen out by the fall of 2009, it was “not within the realm of possibility” that all of those tags could have fallen out or been lost by that time. In the result, it was reasonable for the trial judge to conclude Mr. Deck had removed the tags and replaced them with his own. [ 34 ] Overall, I am not persuaded by Mr. Deck’s arguments. The whole of the evidence pointed strongly in the direction of Mr. Deck’s guilt and the convictions were not unreasonable. B. Failure to Consider Evidence [ 35 ] As noted, Mr.

Deck also submits that the trial judge erred by overlooking or failing to consider the evidence of his wife and daughter. His wife, Shawna Deck, gave evidence about a number of matters including the state of repair of the Deck’s cattle-handling facilities, the extent to which the Deck’s pasture and corrals were visible from the road and the location of the Deck cattle herd in the fall of 2009. She also recounted a phone call from Mr. Strube on the subject of the missing cattle. Her evidence was that she had invited Mr.

Strube to look through the Deck herd. [ 36 ] The trial judge did not err in deciding not to summarize or refer expressly to this evidence in the course of his reasons for decision. To begin, he was under no obligation to refer to every piece of testimony presented to him. However, more importantly, the reality is that Ms. Deck’s evidence was not material. Some of her testimony might have been significant if Mr. Deck had taken the witness stand and denied that he had sold Mr. Strube’s cattle. But, this is not what he did. Mr.

Deck accepted that he had sold the heifers and, as a result, the issue at the heart of the trial became whether Mr. Deck had mistakenly thought the animals belonged to him or whether he had known they were Mr. Strube’s property. His wife’s evidence was not helpful on that point and the trial judge was fully justified in choosing not to summarize or refer to it in the course of his decision. [ 37 ] The evidence of Lynlea Deck was not material either.

She testified very briefly that, in the fall of 2009, she had found two dangle tags and four radio frequency tags around some silage bales apparently located on the Deck property. She did not suggest the tags had belonged to Mr. Strube’s cattle. At most, her evidence indicated, as a general proposition, that cattle sometimes lose tags. To that extent, it did not add anything to the evidence of other witnesses which was referred to by the trial judge. [ 38 ] I see no error, in law or otherwise, with respect to the trial judge’s treatment of the evidence of Mr. Deck’s wife and daughter. V. conclusion [ 39 ] Mr.

Deck’s appeal is dismissed. The trial judge’s decisions to convict were not unreasonable and he did not err in his treatment or consideration of the testimony of Mr. Deck’s wife and daughter.

DATED at the City of Regina, in the Province of Saskatchewan, this 24th day of April, A.D. 2014. “Richards C.J.S.” Richards C.J.S. I concur “Richards C.J.S.” for Jackson J.A. (as per authorization) I concur “Ryan-Froslie J.A.” Ryan-Froslie J.A.