R v Maximnuk, 2017 SKCA 87

Court of Appeal for Saskatchewan Docket: CACR2877 Citation: R v Maximnuk , 2017 SKCA 87 Date: 2017-10-17 Between: William John Maximnuk Appellant And Her Majesty the Queen Respondent Before: Jackson, Herauf and Ryan-Froslie JJ.A. Disposition: Conviction appeal dismissed, sentence appeal varied in part (orally) Written reasons by: The Honourable Madam Justice Jackson In concurrence: The Honourable Mr.

Justice Herauf The Honourable Madam Justice Ryan-Froslie On Appeal From: 2016 SKQB 202 and 2016 SKQB 338 , Yorkton Appeal Heard: 17-10-2017 Counsel: William Maximnuk appearing on his own behalf Andrew Stuart Davis for the Respondent Jackson J.A. I. Introduction [ 1 ] This is a sad case. William John Maximnuk, 62 years old, was charged with assault causing bodily harm. The victim was his 84-year-old father. Mr.

Maximnuk had been looking after his father for some time when he learned that his father had changed his power of attorney to name someone, other than him, as the person who had authority to look after his financial affairs. [ 2 ] At trial, the father reluctantly testified against his son. Given the father’s reluctance, it was necessary for the Crown to resort to cross-examining its own witness. Ultimately, the father agreed that the videotaped statement he had given to the police shortly after the incident accurately depicted what had occurred. In the result, the judge found that Mr.

Maximnuk assaulted his father “by punching him, hitting him, kicking him and hitting him with a crutch” ( R v Maximnuk , 2016 SKQB 202 at para 31 ). [ 3 ] The father filed a letter of support for his son at the time of sentencing, urging leniency. The judge sentenced Mr. Maximnuk to a fine of $2,000, plus a term of probation for two years. In addition, the judge made the usual ancillary orders involving guns and DNA ( R v Maximnuk , 2016 SKQB 338 at para 39 ). [ 4 ] Mr. Maximnuk appeals his conviction and sentence. II. Conviction Appeal [ 5 ] Mr.

Maximnuk, who represented himself on appeal, filed a notice of appeal asserting the following as his grounds of appeal: Misconduct by Crown attorney, medical evidence does not support conviction, Crown witness at John Maximnuk’s place at same time yet nobody seen each other. Medical expert not provided by Court when asked. I believe my sister texted my [list] of questions to a Crown witness (her son) [ 6 ] Crown counsel quite fairly interprets these grounds of appeal as a claim on Mr. Maximnuk’s behalf that the verdict is unreasonable and unsupported by the evidence and that he did not get a fair trial. A.

Unreasonable Verdict [ 7 ] An allegation that a verdict is unreasonable or cannot be supported by the evidence invokes this Court’s authority under s. 686(1) (a)(

i) of the Criminal Code , RSC 1985, c C-46: 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 criminally responsible 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 … .

[8] In R v Yebes, (SCC), [1987] 2 SCR 168 at 186, the Court established the standard of review by which toassess whether a conviction is unreasonable or unsupported by the evidence: The function of the Court of Appeal, under s. 613(1)(a)(

i) of the Criminal Code, goes beyond merely finding that there is evidence tosupport a conviction. The Court must determine on the whole of the evidence whether the verdict is one that a properly instructed jury,acting judicially, could reasonably have rendered. While the Court of Appeal must not merely substitute its view for that of the jury, inorder to apply the test the Court must re-examine and to some extent reweigh and consider the effect of the evidence.

This process willbe the same whether the case is based on circumstantial or direct evidence. (Emphasis added) [9] In R v R.P., 2012 SCC 22, [2012] 1 SCR 746 [R.P.], Deschamps J. summarized the most recently articulated examplesjustifying appellate intervention in judge-alone cases taken from R v Beaudry, 2007 SCC 5, [2007] 1 SCR 190, and R v Sinclair, 2011SCC 40, [2011] 3 SCR 3: [9] … The appellate court may also find a verdict unreasonable if the trial judge has drawn an inference or made a finding of factessential to the verdict that (1) is plainly contradicted by the evidence relied on by the trial judge in support of that inference or finding,or (2) is shown to be incompatible with evidence that has not otherwise been contradicted or rejected 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). (R.P.) [10] Mr. Maximnuk is taken to be arguing that his conviction is “plainly contradicted by the evidence relied upon by the trialjudge”. Mr. Maximnuk’s defence at trial was that his father was mistaken as to who had assaulted him and that his father’s reluctance totestify should have been attributed to the fact that he had made a mistake when he first made his complaint to the police. In other words,he argues the trial judge should have had a reasonable doubt as to guilt. Mr.

Maximnuk did not testify in his own defence. [11] On appeal, Mr. Maximnuk walked us though all of the points in the transcript where he believed there was an inconsistencyamong the civilian witnesses’ testimony and that of the police officers’ testimony. The conviction in this case, however, is based on thefather’s testimony, which the trial judge found to be credible. I agree with Crown counsel that none of the father’s evidence would beundermined by inconsistent but unrelated testimony from the other witnesses. The Crown could rely on the father’s evidence coupledwith the photographs.

All else was peripheral. [12] In detailed reasons, the trial judge thoughtfully and carefully reviewed the evidence of the father. It was apparent that she hadasked for a transcript of this evidence, which she quoted from to support her conclusions. The verdict is not unreasonable. Nor is itunsupported by the evidence. B.

Trial Fairness [13] This ground of appeal invokes the Court’s powers under s. 686(1)(a)(iii): 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 … (iii) on any ground there was a miscarriage of justice … . [14] Mr. Maximnuk says the trial was unfair for two reasons: first, he alleges prosecutorial misconduct; and second, he says he wasdenied a medical expert. [15] With respect to prosecutorial misconduct, Mr. Maximnuk submits that his sister was in the courtroom texting information toone of the Crown’s witnesses in order to prepare him. There is nothing in the trial record, or any evidence, that would support thisallegation.

In any event, the evidence of that particular Crown witness was not relied upon by the trial judge. [16] On the question of the medical expert, Mr. Maximnuk claims that the court was required to call a medical expert to speak towhether his father’s injuries were fresh. Quite simply, such an obligation belongs neither to the Crown nor to the court. Mr. Maximnukcould have called a medical expert if he had wished to do so.

The Crown’s case depended principally upon the father’s testimony, whichwas drawn from him reluctantly, but nonetheless resulted in consistent testimony on the questions of whether he was injured, the extentof his injuries and as to who had caused them. [17] Generally, on the question of trial fairness, the Court on this occasion has the benefit of a transcript of the pre-trialmanagement conference at which the trial judge and the prosecutor fairly and expansively set forth Mr. Maximnuk’s rights andobligations if he were to proceed to represent himself, which he ultimately decided to do.

It also should be noted that Mr. Maximnuk wasactually charged with possessing a firearm without a license contrary to s. 91(1) of the Criminal Code. Again, in detailed reasons, thetrial judge acquitted him of this count.

III. Sentence Appeal [ 18 ] Mr. Maximnuk’s probation order requires that he shall, for the period of two years, “remain in the jurisdiction of the court unless written permission to leave the jurisdiction is obtained in advance from your probation officer” (at para 6). He has fulfilled all conditions of this order for one year. He would like an amendment to that paragraph for the year that remains. [ 19 ] Mr. Maximnuk explained that his work requires him to travel, on short notice, to Roblin, Manitoba.

He asked that his probation order be amended to allow him to do so without being required to obtain written permission from his probation officer. Quite clearly, Mr. Maximnuk could attempt to obtain a blanket authorization from his probation officer, which may or may not be forthcoming. He also could apply to the Court of Queen’s Bench to amend the order. [ 20 ] In the circumstances, it would save considerable time and cost for this Court to make the requested amendment.

Accordingly, the probation order shall be amended to add to paragraph 6 thereof the following, “or unless the purpose for leaving the jurisdiction is work related and is to travel to and from Roblin, Manitoba only”. IV. Conclusion [ 21 ] The appeal from conviction is dismissed. The appeal from sentence is allowed to the extent reflected in these reasons.