R v Regnier, 2017 SKCA 83

Court of Appeal for Saskatchewan Docket: CACR2906 Citation: R v Regnier, 2017 SKCA 83Date: 2017-10-03 Between:Anthony Robert RegnierAppellant AndHer Majesty the QueenRespondent Before: Richards C.J.S., Caldwell and Schwann JJ.A.Disposition: Conviction appeal dismissed; Sentence appeal allowed in partWritten reasons by: The Honourable Mr. Justice CaldwellIn concurrence: The Honourable Chief Justice Richards The Honourable Madam Justice SchwannOn Appeal From: 2016 SKPC 116, SaskatoonAppeal Heard: September 6, 2017Counsel: Anthony Robert Regnier for himself Lori E.

O’Connor for the Respondent Caldwell J.A. [1] Anthony Robert Regnier appeals against his conviction on the charge of assault with a weapon contrary to s. 270 of theCriminal Code, RSC 1985, c C-46 [see R v Regnier, 2016 SKPC 116], and against his sentence on that conviction to 90-days’incarceration served intermittently followed by one year of probation [unreported oral decision]. He had also pled guilty to a chargeunder The Animal Protection Act, 1999, SS 1999, c A-21.1, and had received a concurrent sentence of 30 days. In his notice of appeal,Mr.

Regnier alleged his trial counsel did not provide him with effective representation and that his sentence was excessive. [2] Taking these appeals in turn, Mr. Regnier’s notice of appeal against conviction alleges “defence lawyer conflict” and that his“defence was not properly heard.” Particularising these allegations in the hearing before us, Mr. Regnier said he had wanted his trialcounsel to call two witnesses to corroborate his own testimony to the effect that he had not “sicced” his dogs on a police officer, whichhad given rise to the assault with a weapon charge.

He says his trial counsel persuaded him to believe the Crown’s case was weak and,therefore, he reluctantly agreed not to adduce further evidence. The fact a discussion of this general sort occurred between Mr. Regnierand his trial counsel, although not its detail, is borne out by the transcript of trial. [3] There are three types of error that allow an appellate court to interfere with a conviction under s. 686(1)(

a) of the CriminalCode; we may interfere only on grounds that: (

i) the verdict is unreasonable or unsupported by the evidence; (ii) where the trial judge hasmade a wrong decision on a question of law; or (iii) where there has been a miscarriage of justice. Mr. Regnier’s allegation of ineffectiverepresentation at trial does not fit under any of these grounds, unless he can establish that his trial counsel’s performance may haveresulted in procedural unfairness or may have compromised the reliability of the verdict—i.e., where there has been a miscarriage ofjustice (s. 686(1)(a)(iii)). [4] In practical terms, this means Mr. Regnier must establish either: (

a) that, had his trial counsel not performed incompetently,there is a reasonable possibility the verdict would have been different, or (

b) that the incompetence of his trial counsel caused anadjudicative unfairness: R v G.D.B., 2000 SCC 22, [2000] 1 SCR 520; R v Kim, 2011 SKCA 74, 272 CCC (3d) 15. In other words, forMr. Regnier’s appeal to succeed, he must first establish that his trial counsel’s advice not to call the two witnesses in question constitutedincompetence and, second, that a miscarriage of justice resulted. As Major J., who wrote for a unanimous Court in R v G.D.B., observed: [25] The value of effective assistance of counsel is apparent, but was fully explained by Doherty J.A. in R. v.

Joanisse (1995), (ON CA), 102 C.C.C. (3d) 35 (Ont. C.A.), at p. 57: The importance of effective assistance of counsel at trial is obvious. We place our trust in the adversarial process to determine the truthof criminal allegations. The adversarial process operates on the premise that the truth of a criminal allegation is best determined by“partisan advocacy on both sides of the case”: U.S. v. Cronic, 104 S. Ct. 2039 (1984), per Stevens J. at p. 2045.

Effective representationby counsel makes the product of the adversarial process more reliable by providing an accused with the assistance of a professionaltrained in the skills needed during the combat of trial. The skilled advocate can test the case advanced by the prosecution, as well asmarshal and advance the case on behalf of the defence. We further rely on a variety of procedural safeguards to maintain the requisitelevel of adjudicative fairness in that adversarial process.

Effective assistance by counsel also enhances the adjudicative fairness of theprocess in that it provides to an accused a champion who has the same skills as the prosecutor and who can use those skills to ensure thatthe accused receives the full benefit of the panoply of procedural protections available to an accused. Where counsel fails to provide effective representation, the fairness of the trial, measured both by reference to the reliability of theverdict and the adjudicative fairness of the process used to arrive at the verdict, suffers.

In some cases the result will be a miscarriage ofjustice. [5] Importantly, in R v G.D.B. (at para 27), Major J. said that, in an inquiry of this nature, the reviewing court must start with astrong presumption of trial counsel competence—that is, the reviewing court presumes trial counsel’s conduct fell within the “wide

range of reasonable professional assistance.” An appellant must establish the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. In assessing that conduct, “the wisdom of hindsight” has no role to play—that is, the adverse result of a trial strategy or decision does not of itself diminish the reasonableness of the strategy or decision when it was made or taken. [ 6 ] In that regard, there is nothing in the court record that, on its face, suggests Mr. Regnier’s trial counsel acted incompetently.

There are many reasons why an accused might decide to call or not call a witness. In this case, we are not privy to the details of the discussion between Mr. Regnier and his trial counsel in that regard—or, indeed, to what the two witnesses in question might or might not have said had they been called. We only have what Mr. Regnier says occurred because his trial counsel was not notified of this allegation of ineffective representation and Mr. Regnier has not waived his solicitor-client privilege, which would have allowed his trial counsel to defend against it.

In short, the evidence falls far, far short of displacing the presumption of trial counsel competence. [ 7 ] What then of the alleged miscarriage of justice? Although he adduced no evidence in this Court, Mr. Regnier points to his own success in R v Regnier , 2016 SKQB 290 [ Bylaw Appeal ], as evidence that the verdict would have been different in this case had the two witnesses been called.

The Bylaw Appeal was a Crown appeal against two acquittals on charges under the City of Saskatoon Dangerous Animals Bylaw, 2003 , Bylaw No. 8176, which had arisen out of the same occurrence as had led to the assault charge in this case. Mr. Regnier had also appealed against an order that he destroy one of his dogs. Mr. Regnier advises that he had called the two witnesses in question in his defence to the bylaw charges and was acquitted on two of the charges, see: R v Regnier , 2015 CarswellSask 902 (WL) (Prov Ct) [ Bylaw Trial ] .

From the decision in the Bylaw Appeal , he notes the appeal judge concluded that the justice of the peace, who had conducted the trial, implicitly found Mr. Regnier had not “sicced” his dogs on the police officer. In specific terms, the judge in the Bylaw Appeal wrote: [41] The Crown argued that Constable Panamaroff testified that Regnier yelled at his dogs to “get him, bite him, sic him” and that this comment was inconsistent with the finding of due diligence [made by the justice of the peace]. I agree with this statement had the justice of the peace found that Regnier said this. But he did not.

While he did not specifically state that he did not believe Constable Panamaroff’s testimony on this point, it is implicit by its absence in the facts that he found. [ 8 ] To be sure, this appears to stand in direct contradiction to the Provincial Court judge’s finding in R v Regnier , the case at hand. However, in that regard, it is particularly noteworthy that Mr. Regnier had proffered a due diligence defence to the strict-liability bylaw charges he faced in the Bylaw Trial . There, the justice of the peace had been satisfied beyond a reasonable doubt that Mr. Regnier’s dogs had attacked the police officer.

This made out the actus reus of the bylaw charges. However, it is clear from the decision itself that the justice of the peace approached the due diligence defence with a view to determining whether the evidence had established Mr. Regnier had taken all reasonable precautions to prevent his dogs from causing harm to others. To that end, and perhaps because he was aware or suspected criminal charges might be outstanding, the justice of the peace carefully confined his findings of fact and credibility in this way: [13] Mr.

Regnier questions the credibility of Constable Panamaroff’s testimony, in particular, his description of his friend Lane, the female that was with Mr. Regnier, and that Constable Panamaroff said she was not heavyset, weighing—that Lane is not heavyset and only weighs about a hundred pounds. Lane was never arrested and could not be located by Mr. Regnier to testify in his defence. Mr. Regnier also disputes the constable’s testimony in that he was 40 feet away when he first saw him and Lane. Mr.

Regnier measured the distance and states it’s about 130 feet. [14] There was no evidence at trial describing the actions of Rocky, Tiggy, and El Nina. Mr. Regnier, PSD Kato, and Constable Panamaroff all received bite—dog bites during the incident. Mr. Regnier and PSD Kato are still adversely affected by these injuries. At the—at the time PSD Kato had engaged Mr. Regnier, Donald Smith had left Mr. Regnier’s garage and was in his fenced backyard. There were other unknown individuals in the garage. Mr. Regnier attempted to contact other witnesses but could not locate [them].

The defence’s case was postponed for one week for that purpose. Shannon Strong was in the house reading in her bedroom and only came out when she heard Mr. Regnier yelling and screaming. Following the incident, Rocky, Tiggy, and El Nina all exited Mr. Regnier’s property. One of the dogs was brought home by Donald Smith, while other SPS members returned the other two dogs. [15] Note: for greater certainty, this Court makes no findings of fact or credibility except as noted above. This Court is focused solely on the actions of Mr.

Regnier’s dogs and allegations of a breach of a court order and two allegations of a dog attack. [Emphasis added] As the appeal judge in the Bylaw Appeal observed, the justice of the peace makes no mention of any testimony or other evidence around whether Mr. Regnier had or had not “sicced” his dogs on the police officer. [ 9 ] Rather, from the reasons given in the Bylaw Trial decision, it is clear the justice of the peace carefully confined his findings to the circumstances of Mr. Regnier’s care and handling of his dogs, not the assault on the police officer, which was not at issue before him.

And, on the narrow point that was before him, the findings of the justice of the peace and his verdicts were these: [38] The test for due diligence is on the balance of probabilities. Did the defendant take all reasonable steps, knowing the law, taking into account known tendencies and actions of the dogs to avoid the commission of the alleged offence? Since 2007, Rocky has been declared a dangerous dog and is subject to various court ordered conditions. Mr. Regnier stated that he has dangerous dog signs posted at all entrances of his yard and the backyard is fully fenced with a hidden latch to open the gate.

The evidence is clear that Rocky, Tiggy, and El Nina were securely confined in Mr. Regnier’s backyard prior to Mr. Regnier being outside the yard, being spotted by Constable Panamaroff and pursued and caught by PSD Kato. In my view, Mr. Regnier is subject to normal due diligence with respect to Tiggy and El Nina. Rocky, on the other hand, already being declared a dangerous dog, is subject to a very high level of due diligence. This decision is only for Tiggy and El Nina. Rocky is a separate decision. [39] After reviewing all of the evidence, I am satisfied on the balance of probabilities that Mr.

Regnier took all reasonable steps—all reasonable precautions to prevent any interaction between his dogs and any person on the outside of his yard. Mr. Regnier could not reasonably have foreseen that he would be pursued by PSD Kato and would be fumbling and falling into his gate while being latched

onto by PSD Kato. Under normal circumstances, Mr. Regnier could open the back gate quickly and effectively and be in a position to block the exit from his yard of both Tiggy and El Nina. Mr. Regnier was denied that option because of the very abnormal circumstances on that evening.

The result of a finding of due diligence with—with respect to Tiggy and El Nina, that the charges in Information 108698 and 108699 is a not guilty finding on those two Informations. [Emphasis added] To tie up loose-ends, since the third dog, Rocky, had already been the subject of specific court-ordered handling requirements (i.e., mandatory muzzle and leash when not penned) that Mr. Regnier had not followed, the justice of the peace found a breach of the court order and that Mr.

Regnier had failed to make out any due diligence defence to the breach. [ 10 ] Given this background, the inference drawn by the appeal judge in the Bylaw Appeal decision was open to him, but I am not persuaded it was the most compelling inference to be drawn. The circumstances of the Bylaw Trial and the reasons of the justice of the peace suggest more strongly that the justice of the peace intentionally did not turn his mind to whether Mr. Regnier had “sicced” his dogs on the police officer. Nevertheless, it was open to the appeal judge to infer that the justice of the peace had found Mr.

Regnier had not done that, which supports Mr. Regnier’s position in this appeal to some degree. [ 11 ] However, there is nothing in the Bylaw Trial and Bylaw Appeal decisions or in the transcript of trial in this matter to even suggest that the seemingly inconsistent factual conclusions identified occurred by reason that the two witnesses had testified in the one trial and not in the other trial. Indeed, it is not clear if either of the witnesses had anything to offer on the issue of whether Mr. Regnier had “sicced” his dogs on the police officer. One witness had been in Mr.

Regnier’s house throughout the melee and the other his garage and then the backyard. With regard to their evidence, the justice of the peace made few actual findings of fact ( Bylaw Trial at para 14, quoted above), none of which related to what Mr.

Regnier might have said or done with the dogs or otherwise in his encounter with the police officer. [ 12 ] For these reasons, while I agree that the findings of the Provincial Court judge in R v Regnier are facially inconsistent with the conclusion drawn by the Queen’s Bench appeal judge in the Bylaw Appeal , I am not persuaded the verdict in R v Regnier could have been different had the two witnesses testified in that trial. In short, the allegation of miscarriage of justice is not borne out by the evidence in this case. [ 13 ] On the whole of it, I find no reversible error in respect of the conviction.

We must, therefore, dismiss the appeal from conviction. [ 14 ] As to the appeal against sentence, I would start by noting that Mr. Regnier was not given credit for the time he spent in custody prior to the trial. The Crown has agreed that he is entitled to 8 days’ credit against his 90-day intermittent sentence. The appeal will be allowed to the extent that the sentence is varied to correct this oversight. [ 15 ] In all other respects, Mr. Regnier’s sentence appeal does not meet the threshold for appellate interference. The standard of review in appeals against sentence is strict.

As an appeal court, we are not entitled to simply remake a sentence afresh. A sentence appeal is a review for error, but not just any error. Before we can interfere, we must find that the sentencing judge committed an error in principle, failed to consider a relevant factor or overemphasised an appropriate factor and we must find that the sentencing judge’s error or failure somehow affected the sentence he or she imposed. We may also intervene where the sentence is demonstrably unfit. See R v Lacasse , 2015 SCC 64 , [2015] 3 SCR 1089. [ 16 ] In this case, looking to the circumstances of Mr.

Regnier’s sentencing on the charge of assaulting a police officer with a weapon, I find no basis to interfere with the sentence imposed. I have considered all of Mr. Regnier’s personal circumstances, as his trial counsel ably identified at the sentencing hearing and as were set out in his pre-sentence report. I have considered what Mr. Regnier told the Court in the appeal hearing. Further, I have reviewed the circumstances of the offence itself and Mr. Regnier’s criminal record, as did the sentencing judge.

Lastly, I have considered the length of the 90-day incarceral term to be served intermittently and the duration and terms of the probation order the sentencing judge imposed. [ 17 ] I note the Crown had initially sought a term of imprisonment of between six and nine months. Mr. Regnier’s counsel presented strong arguments as to why a sentence of that duration would be inappropriate in the circumstances. Mr. Regnier reiterated a number of those factors in the appeal hearing. However, it is clear to me that the sentencing judge had full regard for those factors and found they spoke strongly in mitigation of Mr.

Regnier’s sentence. [ 18 ] I also observe that, regardless of mitigating factors, Parliament has said that an assault on a police officer brings denunciation and deterrence to the forefront when crafting a fit sentence: Criminal Code , s. 718.02. While there are fortunately few cases of this nature, Mr. Regnier’s sentence is one of the more lenient sentences imposed for this type of offence.

Nonetheless, I find no error in the sentencing judge’s assessment that a 90-day intermittent sentence followed by one year of probation serves the paramount objectives of denunciation and deterrence and the fundamental principle of sentencing in the circumstances of this matter. [ 19 ] In sum, having reviewed the matter, I find no basis upon which to conclude the judge erred in principle when crafting the sentence he imposed. Moreover, the sentence is not demonstrably unfit in the circumstances. This means we are not entitled to interfere with it, except to correct the oversight in giving Mr.

Regnier credit for the time he spent incarcerated prior to trial.

[ 20 ] The appeal against conviction is dismissed. The appeal against sentence is allowed, but only to the extent that the 90-day term of incarceration is varied to an 82-day term of incarceration. In all other respects, the sentence remains unchanged. “Caldwell J.A.” Caldwell J.A. I concur. “Richards C.J.S.” Richards C.J.S. I concur. “Schwann J.A.” Schwann J.A.