R v Patrick, 2017 SKCA 95

Court of Appeal for Saskatchewan Docket: CACR2909 Citation: R v Patrick , 2017 SKCA 95 Date: 2017-11-01 Between: Demian Merle Patrick Appellant And Her Majesty the Queen Respondent Before: Herauf, Whitmore and Schwann JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Madam Justice Schwann In concurrence: The Honourable Mr. Justice Herauf The Honourable Mr. Justice Whitmore On Appeal From: Provincial Court, Regina Appeal Heard: September 15, 2017 Counsel: Carson D. Demmans for the Appellant W. Dean Sinclair, Q.C. for the Respondent Schwann J.A. I.

Introduction [ 1 ] Demian Merle Patrick, the appellant, was convicted of break and enter a dwelling house to commit assault with a weapon, contrary to s. 348(1) (

b) of the Criminal Code , RSC 1985, c C-46. [ 2 ] The Crown applied to have the appellant designated as a dangerous offender pursuant to

Part XXIV of the Criminal Code and a sentencing hearing for that purpose was commenced almost two years after the date of conviction. [ 3 ] On the second day of the dangerous offender hearing, the Crown and defence made a joint submission on sentence. They proposed a custodial period of three years on the predicate offence, in addition to the appellant’s two years of pre-trial custody.

They also proposed to have the appellant declared a dangerous offender within the meaning of s. 753 of the Criminal Code , and that he be subject to a long-term supervision order for a period of ten years following the expiration of his custodial sentence. [ 4 ] The appellant was sentenced in accordance with the joint submission. He filed a notice of appeal from conviction on the predicate offence on the same day sentence was imposed. [ 5 ] The appellant has advanced six grounds of appeal. For the reasons that follow, the appeal must be dismissed in its entirety.

II. the facts [ 6 ] While at his apartment with his wife and her niece in the early evening of January 31, 2015, Maurice Lepine heard a knock on the door and a man’s voice announce “[i]t’s Juicy”. [ 7 ] Mr. Lepine knew a woman who went by the nickname “Juicy” and knew that Juicy was the appellant’s girlfriend. Mr. Lepine had become acquainted with the appellant several weeks before the incident in question and, although they were not friends, he had socialized with the appellant on a number of occasions. He knew the appellant by his street name “Chub Rock” and that he had tattoos on his face and neck. [ 8 ] Mr.

Lepine opened the door to find the appellant in the hallway accompanied by two other individuals with whom he was not acquainted. The appellant asked Mr. Lepine if Juicy was in his apartment and then attempted to force his way through the doorway to glance around. The appellant’s action prompted Mr. Lepine to say “[a]re you happy? She’s not here.” This comment was followed by some scuffling as the appellant tried to push past Mr. Lepine. It was at this point the appellant and his two companions each pulled out a knife. [ 9 ] Mr.

Lepine, who has a black belt in karate, successfully repelled the attack by forcing his intruders back into the hallway and shutting the apartment door. Mr. Lepine braced the door shut with his body. [ 10 ] The intruders began to kick the bottom portion of the apartment door. Their kicking motions created an opening of roughly 18 inches square, into which one of the intruders thrust a knife. Mr. Lepine was not stabbed by the thrusting motions. [ 11 ] The entire incident lasted three or four minutes and concluded when Mr. Lepine’s neighbours threatened to call the police.

The intruders fled the scene and the appellant was arrested later that evening.

[ 12 ] Mr. Lepine testified that on the day of this incident he had consumed four or five two-litre coolers of hard liquor and had taken some morphine. He characterized his condition as “pretty hammered”, and when initially asked by the Crown about his recollection of what transpired that evening, his reply was “pretty fuzzy”. III. the trial decision [ 13 ] The appellant testified in his own defence. Not only did he expressly deny having anything to do with the incident in question, but he also offered an alibi for his whereabouts.

The appellant testified that he had been approached by a stranger near the liquor board store on Broad and 12th Avenue. The stranger invited him to a house party. The appellant accompanied this unknown person to the house party where he remained until he was arrested later that evening. [ 14 ] At the time of his arrest, the appellant had a black eye. He claimed it was caused by an altercation with another man on the day before the incident involving Mr. Lepine. [ 15 ] Significantly, the appellant conceded he and Juicy had been to Mr.

Lepine’s apartment on several occasions prior to the night in question. [ 16 ] The trial judge rejected the alibi defence and the testimony of the appellant finding that it “inspired a low level of credibility” and was untruthful. He went on: ... It in no way raises a reasonable doubt as to the veracity of Lepine’s evidence. And does not, pursuant to the W.D. decision of the Supreme Court of Canada, cause me to have a reasonable doubt as to the Crown’s case. [ 17 ] In contrast, the trial judge found Mr. Lepine to be a credible witness citing the following reasons for his assessment: ... To put it bluntly, Mr.

Lepine was a -- is a dying man who suffers from two malignant tumours in his brain in the location of his pituitary gland. One can safely assume that he has nothing to gain from lying to the Court about the events which could result in another person -- about an event which could result in another person being liable to serve a severe period of punishment or imprisonment. More important, so far as credibility is concerned, I was impressed by the content of the witness’ testimony and the way in which he delivered it. He could easily have exaggerated his evidence.

For instance, by saying that it was the -- for -- by saying that the accused who -- by saying it was the accused who tried to stab him. Let me say that again. He could have easily exaggerated his evidence, as an example, he could have asserted that it was the accused who attempted to stab him. He did not do this. Rather, he said he was 100 percent certain the accused was there effectively leading the incident, but could only be 50 percent or perhaps 60 percent certain that it was the accused who tried to stab 1 him once the witness had shut the door on him.

Once the accused -- yes, once the witness Lepine had shut the door on him. He was frank and blunt about his dislike of the accused. And admitted -- or asserted, I guess, his great reluctance to be present in court at all. When he was confronted with his record, he accepted that the document in court was his record, but went on to assert that there were some 30 additional convictions which were missing from his record. He pointed out that he has some 90 convictions rather than a “mere” 60. (Decision Transcript at T4 and T5) [ 18 ] The trial judge found support for Mr.

Lepine’s version of events in the evidence of the police witnesses who gave a similar account of the damage to the bottom portion of Mr. Lepine’s apartment door when they attended the scene a few minutes after the attack. [ 19 ] At trial, the appellant had argued that, at best, the charge amounted to an attempt to break and enter as there was no evidence anyone actually entered Mr. Lepine’s apartment on the night in question. [ 20 ] The trial judge dispensed with this argument finding that, on the facts, the full offence of break and enter took place.

He found the appellant and his accomplices were at the apartment with the intention of committing an assault with a weapon. The trial judge concluded actual contact between the appellant and the victim was unnecessary for an assault to take place and that it was sufficient if there was “any motion in the direction of the victim with the aggressive potential to carry out that assault or that violent act.” [ 21 ] Finally, the trial judge was not troubled by Mr. Lepine’s inability to identify which of the three intruders thrust the knife through the door.

He concluded: Further, the accused and his group are responsible for each other’s actions. One of them kicked a hole in the door and necessarily in order to kick a hole in the door, there has to be at least marginal penetration of the apartment, so that the actual entry is accomplished even by the slightest amount of entry. In this case, part of the accused’s foot or part of the feet of one of the accused. (Decision Transcript at T5) IV. jursidiction and standard of review [ 22 ] Section 675(1) (

a) of the Criminal Code grants an accused a right of appeal against conviction on a question of law alone or, with leave, on a question of mixed law and fact. Section 686(1)(

a) provides the court with the following powers on appeals against

conviction: 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; [23] Where a conviction appeal concerns a question of law, the standard of review is correctness (R v Briltz, 2016 SKCA 2 at para19, [2016] 5 WWR 496). [24] In R v Dunford, 2017 SKCA 1, 345 CCC (3d) 374, Ottenbreit J.A. considered the standard of review where an offenderasserts that the verdict was unreasonable or unsupported by the evidence: [50] This argument must be assessed against the overarching governing law in R v Yebes, (SCC), [1987] 2 SCR 168at 186 [Yebes], i.e., whether a properly instructed trier of fact, acting judicially, could reasonably have rendered the verdict.

Thereasonableness of a trial judge’s verdict based on inferences drawn from the evidence is governed by R v Sinclair, 2011 SCC 40 at paras4, 16, 19-21, [2011] 3 SCR 3; R v Beaudry, 2007 SCC 5, [2007] 1 SCR 190. A verdict can be overturned where a finding of fact essentialto the verdict is plainly contradicted by the evidence relied on for that purpose by the judge or is demonstrably incompatible withevidence that is not otherwise contradicted or rejected by the judge. See also R v Johnson, 2014 SKCA 10 at para 4. V. the issues [25] The appellant identified the following six issues as his grounds of appeal: (

a) Did the learned trial judge err in his definition of assault? (

b) Did the learned trial judge err in accepting the testimony of Mr. Lepine as credible after Mr. Lepine described his memory ashazy from drug and alcohol use that day, and having defects as a result of brain tumours and brain damage from drug abuse? (

c) Was the learned trial judge’s decision unreasonable as it held that the appellant was responsible for the actions of a group ofpeople when there was no evidence that he was still present when a hole was kicked in the door and an unknown person reached inthrough the hole with a knife? (

d) Did the learned trial judge err in law in holding that the appellant and his group were responsible for each other’s actions? (

e) Was the learned trial judge’s decision unreasonable because it placed no importance on the fact that the complainantpurported to identify the accused on the night in question when he did not notice that the accused had a black eye, a fact which wasconfirmed by the police? (

f) Did the learned trial judge err in law in holding that the appellant committed an assault with a weapon within Mr. Lepine’shome when he was only seen with a knife outside of the home and it was not proven that he swung a knife into the home? [26] In my view, the stated grounds of appeal are appropriately organized and distilled to the following issues: (

a) Did the trial judge err in law by misinterpreting the elements of assault under s. 265 of the Criminal Code? Was the assaultverdict unreasonable by reason of the fact the appellant was only seen with a knife outside the apartment and that it had not beenestablished he swung the knife in the apartment? (

b) Did the trial judge err in failing to deal with the reliability of Mr. Lepine’s testimony? Was the verdict unreasonable and notsupported by the evidence? (

c) Did the trial judge err in finding the appellant responsible for the actions of all three intruders in the absence of evidence theappellant had been present or that he was the one who had thrust the knife through the door? Did the trial judge err in law by holding theappellant and his group “responsible for each other’s actions”? VI. analysis A. Did the trial judge err in law by misinterpreting the elements of assaultunder s. 265 of the Criminal Code? Was the assault verdict unreasonable by reason ofthe fact the appellant was only seen with a knife outside the apartment and it had notbeen established that he swung the knife in the apartment?

[ 27 ] The appellant contends the trial judge erred in law by improperly characterizing the offence of “assault” as “any motion in the direction of the victim with the aggressive potential to carry out that assault or that violent act” (emphasis added). He submits this paraphrase incorrectly captures the elements of a charge under s. 265 of the Criminal Code and thus constitutes an error in law. Moreover, he submits no assault occurred because the trial judge failed to make a factual determination that it was the appellant who had actually swung the knife at Mr. Lepine or that harm could have come to Mr. Lepine. [ 28 ]

Section 265 of the Criminal Code defines “assault” in the following manner: Assault 265

(1) A person commits an assault when (

a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly; (

b) he attempts or threatens, by

an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or (

c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs. [ 29 ]

Section 265 envisions three possible means by which an assault can be committed. Subsection 265(1)(

a) is concerned with an actual or direct assault on a person. This concept is understood to mean the intentional application of force, directly or indirectly, to a person without their consent. [ 30 ] However, as the trial judge correctly observed, actual contact does not need to take place for an assault to occur: ... The accused and his group were present with the intention to -- apparent intention to commit an assault and to use a weapon, which were knives, which were displayed.

The assault is completed by any motion in the direction of the victim with the aggressive potential to carry out that assault or that violent act. And accordingly, there doesn’t have to be actual contact between the accused and the victim . (Decision Transcript at T5, emphasis added) [ 31 ] An assault can also be constructive in nature. Thus, an assault can occur where: • a person attempts or threatens, by

an act or gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, the present ability to effect his purpose (s. 265(1)(b)), or • a person accosts another person while openly carrying a weapon (s. 265(1)(c)). [ 32 ] Even though the trial judge concluded that no actual contact took place, he did not go on to explicitly deal with how the evidence he accepted fit within either ss. 265(1)(

b) or (c). [ 33 ] As a matter of law, trial judges must be satisfied beyond a reasonable doubt that each and every element of an offence has been made out. However, it is not necessary for a trial judge to specifically recite each element of the offence and failure to do so does not itself constitute a reversible error. “ Not reciting every relevant element of law when there is no jury is not a reversible error.

In other words, this is in effect a concealed attack on adequacy of reasons” ( R v Flores , 2010 ABCA 309 at para 3 ). [ 34 ] Moreover, the trial judge’s choice of words – aggressive potential to carry out that assault or that violent act – simply represents the trial judge’s bottom-line conclusion and must not be read in isolation from the balance of his reasons. [ 35 ] As Jackson J.A. said in R v Luu , 2015 SKCA 128 at para 13 , 472 Sask R 56: ...

Even where a trial judge’s choice of language is not ideal, appellate courts must not “seize on an ambiguous or less than exemplary choice of words as indicative of legal error absent an examination of the judgment as a whole” ( R v Couture , 2007 SCC 28 at para 130 , [2007] 2 SCR 517). [ 36 ] In the paragraph preceding his conclusion, the trial judge stated that, based on the evidence before him, he was convinced beyond a reasonable doubt “the accused committed the actions which Lepine described.

And I so find ” (emphasis added). [ 37 ] In this regard, the trial judge accepted as fact that: the appellant attempted to push his way into Mr. Lepine’s apartment to look for Juicy; the appellant pulled out a knife and had brandished it in front of Mr. Lepine; the appellant’s two companions had also pulled out knives; after some pushing had occurred, Mr. Lepine was able to force the intruders out of his apartment; and, finally, that Mr.

Lepine had shut the door on the three intruders and one of them had thrust a knife through the door panel after an opening had been created. [ 38 ] At trial, the appellant argued that the break and enter to commit assault was not proven beyond a reasonable doubt and, at best, his actions amounted to an attempt to break and enter to commit assault. This argument took a slightly different formulation on appeal.

Instead of arguing there had been no break and enter on the evidence before him, the appellant argued the trial judge erred because there was no evidence the assault with a weapon had been committed within Mr. Lepine’s apartment since the appellant had only been seen with a knife outside of the apartment.

Moreover, he argues, there was no proof the appellant actually swung the knife inside the apartment or, for that matter, that it was the appellant who had thrust the knife through the door panel. [ 39 ] With respect, this argument misrepresents the evidentiary foundation accepted by the trial judge. [ 40 ] As referenced above, the trial judge accepted as fact that the appellant had attempted to push his way into Mr. Lepine’s apartment to look for Juicy and, in so doing, pushed Mr. Lepine and pulled out a knife. He also accepted as fact that after some pushing

had occurred, Mr. Lepine was able to force the intruders out of his apartment. [ 41 ] These facts were underscored in the cross-examination of Mr. Lepine: Q I just needed to have the sequence correct. So how far away from you was he when he pulls out a knife? A Two feet. Q Did he come at you with a knife? A Yeah. Q How so? A He come at me, pulled out the knife, and tried to stab me, but I--I closed the door so I couldn’t really see what he was doing after that.

Kicking at--they were all kicking at the door pretty good. (Trial Transcript at T66) [ 42 ] Clearly, there was some evidence the appellant pulled a knife on Mr. Lepine and tried to stab him before the appellant was pushed out of the apartment. That said, the appellant correctly observed that there was no evidence he had actually “swung” his knife at Mr. Lepine while inside the apartment. [ 43 ] Implicit in the appellant’s argument is the notion that simply brandishing a knife without swinging it at a victim does not amount to

an act or gesture with an intention to apply force to another. There are several problems with this argument. [ 44 ] First, as noted above, Mr. Lepine testified, and the trial judge accepted as fact, that the appellant had “tried to stab” him before he pushed the appellant out of the apartment. Even if the appellant’s action did not amount to actually swinging the knife, the trial judge was permitted to draw an inference from Mr. Lepine’s testimony that the appellant’s actions nonetheless constituted

an act or gesture to apply force. Mr. Lepine’s reaction – i.e., to force the three intruders out of his apartment and brace the door shut – lends credence to this common sense inference, particularly when the intruders subsequently attempted to gain entry by kicking the door. [ 45 ] Second, the appellant’s argument is not consistent with the law. This Court’s decision in R v Campeau , 2009 SKCA 4 , [2009] 4 WWR 29 [ Campeau ], presents a similar fact scenario, absent a knife, where the offence of assault was established. The accused was charged with break and enter and commit assault and the Crown relied on s. 265(1)(

b) to make out the charge. The accused broke into a home with a co-participant and, while the complainant was locked in a bathroom, kicked the door and exhorted the victim to come out. Chief Justice Klebuc (as he then was) found that kicking the door and exhorting the victim to come out established an attempt or threat to apply force and thereby found a s. 265(1)(

b) assault had been committed. He said: [25] In my view, the kicking of the bathroom door by the respondent, and his exhortations that Mr. Gordon come out establish beyond a reasonable doubt an attempt or threat to apply force to Mr. Gordon within the meaning of s. 265(1)(b). Moreover, that the respondent’s acts and gestures caused Mr. Gordon to believe, on reasonable grounds, that the respondent had a present ability to effect his purpose is established by the facts found by the learned trial judge and the supporting evidence. Mr.

Gordon testified he locked himself in the bathroom for he feared the co-participants would hurt him. Based on the respondent’s conduct, as found by the trial judge, Mr. Gordon had reasonable grounds to fear for his physical safety. It therefore follows that the trial judge failed to apply s. 265(1)(b), or made a palpable and overriding error in applying s. 265(1)(

b) to the facts. That said, I turn to the next sub-issue. [ 46 ] Based on Campeau , it was unnecessary for the Crown to establish that the appellant had actually swung his knife at Mr. Lepine for purposes of s. 265(1)(b). It is enough for the accused to threaten to apply force by any “act or gesture” (here, pulling a knife, trying to stab Mr.

Lepine and kicking the door) in a manner which causes the other person to believe, on reasonable grounds, that the accused has the present ability to effect his purpose, i.e., to apply that force ( R v Paxton , 2016 ABCA 361 at para 48 ; leave to appeal refused [2017] SCCA No 114 (QL)). [ 47 ] Third, the evidence as a whole established that the appellant had attempted to or had threatened to apply force to Mr. Lepine and that Mr. Lepine reasonably believed the appellant had the ability to effect his purpose. [ 48 ] After all, the appellant pulled out a knife in the apartment in the course of pushing and shoving.

The appellant aggressively confronted Mr. Lepine in the company of two others. All three pulled out knives when the pushing began within the apartment. The fact Mr. Lepine had to forcefully push them out of his apartment and brace the door shut against their subsequent kicking efforts lends credence to his subjective belief that he had reason to fear the appellant. [ 49 ] Fourth, even if the elements of an assault under s. 265(1)(

b) had not been made out by the trial evidence, there was ample evidence for the trial judge to conclude the appellant had accosted Mr. Lepine with a weapon and thereby committed assault within the meaning of s. 265(1)(c). “Accost” means “approach or address” ( R v Meszaros , 2013 ONCA 682 at para 47 , 309 CCC (3d) 392, citing The Oxford English Dictionary , 2d ed, sub verba “accost”): I do not think the use of the word “openly” in s. 265(1)(

c) changes the analysis for these purposes. While “pulling out” or “displaying” a weapon for purposes of intimidation may constitute a use of that weapon, s. 265(1)(

c) does not require an element of intimidation to be made out. It requires only that the person wearing or carrying the weapon “accost” (i.e., approach or address) or “impede” (i.e., obstruct or hinder) the victim. [ 50 ] In sum, even though the trial judge failed to utilize the specific wording of s. 265 , or pigeon hole the facts into the appropriate subsection, and used an inelegant paraphrase for s. 265 , I am satisfied from reading the decision in light of the evidence as a whole that he was alive to the essential elements of this offence. After all, this was an experienced trial judge and it was open to him to draw

inferences from the evidence. More importantly, based on the whole of the evidence that was before the trial judge, I find it wasreasonably capable of supporting his bottom-line conclusion. B. Did the trial judge err in failing to deal with the reliability of Mr. Lepine’stestimony? Was the verdict unreasonable and not supported by the evidence? [51] The central argument advanced on appeal is that the trial judge confused the concepts of credibility and reliability and therebyfailed to assess the reliability of Mr. Lepine’s evidence.

Although the appellant casts this ground of appeal in a somewhat differentmanner, at its core he argues that Mr. Lepine’s evidence should be given limited or no weight because his level of intoxication coupledwith memory recall problems made his evidence unreliable. [52] A helpful starting point in this analysis is an examination of how the trial judge approached the evidence of both the appellantand Mr. Lepine. As mentioned, the trial judge began with the alibi defence and methodically assessed the facts that supported it.

In theend, he concluded that the testimony of the appellant was not believable, and that it “inspired a low level of credibility”. Not only did hefind the appellant’s testimony untruthful, but he concluded that it failed to raise a reasonable doubt about the Crown’s evidence. [53] The trial judge then turned to Mr. Lepine’s testimony and found Mr. Lepine to be “very credible”, for the reasons set forthabove, i.e., first, Mr. Lepine had nothing to gain from lying to the court because he had two malignant brain tumors, and Mr. Lepine wasnot prone to exaggeration of the evidence. Second, while Mr.

Lepine could have embellished his testimony about who stabbed himthrough the door, Mr. Lepine candidly admitted he could only be 50 to 60 percent sure it was the appellant. Third, Mr. Lepine was frankand blunt about his dislike for the appellant and openly expressed his reluctance to testify in court. Fourth, he not only admitted that hehad a lengthy criminal record, but Mr.

Lepine candidly identified another 30 offences which were not reflected on his criminal record. [54] Finally, the trial judge turned to the police evidence about the damaged door and shaken condition in which they found Mr.Lepine and his two female companions. He found this evidence lent credence to Mr. Lepine’s testimony. [55] In spite of these findings, the appellant argues the trial judge missed the point of his argument at trial. He had argued that,although Mr.

Lepine may have come across as a believable witness, his testimony was not reliable because of the amount of alcohol anddrugs he had consumed on the day in question, combined with the detrimental effect illness had on his memory. In this respect, heargues, the trial judge confused credibility with reliability and thereby erred. [56] Justice Watt in R v H.C., 2009 ONCA 56, 241 CCC (3d) 45, explained the difference between credibility and reliability. Atpara 41 he said: Credibility and reliability are different.

Credibility has to do with a witness’s veracity, reliability with the accuracy of the witness’stestimony. Accuracy engages consideration of the witness’s ability to accurately i. observe; ii. recall; and iii. recount events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, onthe other hand, is not a proxy for reliability: a credible witness may give unreliable evidence: R. v.

Morrissey (1995), (ON CA), 22 O.R. (3d) 514, at 526 (C.A.). [57] Findings of credibility and reliability made by a trial judge attract significant deference from a reviewing court (R v N.L.P.,2013 ONCA 773, 305 CCC (3d) 105; R v Sanichar, 2012 ONCA 117, 280 CCC (3d) 500, with reasons of dissenting judge adopted in2013 SCC 4 at para 72, [2013] 1 SCR 54; R v B. (R.W.) (2003), (ON CA), 174 OAC 198 at para 9). [58] That said, the fact a witness is found to be credible does not answer the question of whether the witness’s evidence is alsoreliable.

Failure to consider the reliability of a witness’s evidence may lead to appellate intervention (R v Burke, (SCC),[1996] 1 SCR 474; R v J.S., 2011 ONCA 304; R v Alboukhari, 2013 ONCA 581, 310 OAC 305). [59] The central issue in this case was whether, on the evidence, the events alleged by Mr. Lepine had actually occurred and, if so,whether the accused had been present at Mr. Lepine’s apartment when the incident took place. [60] Unquestionably, the trial judge dealt squarely with Mr. Lepine’s credibility (Decision Transcript at T4 and T5), and no issueis taken on appeal with his credibility assessment.

That said, it is equally clear the trial judge did not explicitly address concerns raisedby defence counsel concerning the reliability of Mr. Lepine’s testimony. In oral argument at the close of trial, defence counselhighlighted the amount of morphine and alcohol consumed by Mr. Lepine on the day in question, his candid observations about being“hammered” and having “fuzzy” recall, and his admission about memory problems because of a brain tumor. I pause to observe thatdefence counsel couched these matters under the broad guise of Mr.

Lepine’s “credibility”. [61] While the trial judge failed to make explicit findings about the reliability of Mr. Lepine’s testimony, he nonetheless alluded tosome of the concerns raised by defence in several places in his decision. For instance, he referenced Mr. Lepine’s malignant tumors, butwas “impressed by the content of the witness’ testimony and the way in which he delivered it”.

More specifically, he accepted Mr.Lepine’s testimony that “he was 100 percent certain the accused was there effectively leading the incident”, but was only 50 to 60percent certain that it was the appellant who tried to stab him through the door. [62] The trial judge dealt indirectly with reliability concerns by reference to other corroborative evidence. He said:

Despite the accused’s assertions to the contrary, there was evidence that corroborated the evidence of the witness Lepine. For instance, the hole, where there was 18 inches or 24-inches square, depending on which witness you listen to, which the accused and his party had kicked into the bottom of Lepine’s apartment door. This was observed by the police and confirmed to exist. (Decision Transcript at T5) [ 63 ] In my view, the trial judge was alive to the concerns expressed about the reliability of Mr.

Lepine’s evidence and was mindful of defence arguments in this regard. [ 64 ] Moreover, in assessing this argument, one cannot lose sight of the central issues before the trial judge, which were whether the appellant had been present at Mr. Lepine’s apartment on the evening in question and whether the events even took place. On this note, Mr.

Lepine had little trouble recalling the details of what had transpired nor did he experience any difficulty recalling the sequence of events when he made a statement to the police shortly after the incident took place. [ 65 ] The trial judge also had the benefit of the cross-examination of Mr. Lepine, which appeared to factor significantly into his assessment of the reliability of this witness. The following exchange took place: Q MR. DEMMANS: Okay, Mr. Lepine, now before I ask these next questions, I want you to know that I’m not making light of your very serious medical condition.

I don’t wish for this happening on you, on anyone in the world. But as the accused’s lawyer, I have to ask you because of all the memory problems you’ve had including your brain tumors, which you have my sincere sympathies about, how sure are you that it was Chub Rock that you saw that night, like, on a scale of 1 to 100? A I’m pretty sure it was him at the door, but I’m not exactly sure if it was him trying to stab me or not. Q Okay, so when you say pretty sure, is that, like -- on a scale of one to a hundred percent, any idea? A Pretty -- pretty much -- pretty sure it’s him. I don’t know.

Like, not -- I don’t really understand that. Say that again. Q Well, okay, on a scale of one to a hundred, how sure are you where one is you’re not sure at all, 100 is you’re absolutely certain? A Sixty percent. Q Sixty? A Yeah. Fifty percent, around there. Q Fifty or sixty? A Yeah. (Trial Transcript at T70–71) Mr. Lepine’s evidence was clarified both by defence counsel and by the trial judge: Q MR. DEMMANS: Okay, just so I’m clear then, Mr. Lepine, I didn’t quite hear you before, but I believe you said you were 50 to 60 percent sure it was Chub Rock that night? A Mmhmm.

Ah, 50, 60 percent sure that it was him that was trying to stab me through the door. Hundred percent sure it was him that night . THE COURT: I’m just having trouble with that. Just having trouble hearing you. Did you say you’re a hundred percent sure it was the man in the orange who broke into your apartment? THE WITNESS: Tried to break in . THE COURT: Or tried to break in. THE WITNESS: Yes. THE COURT: And fifty to sixty percent sure it was he who tried to stab you? THE WITNESS: Yes.

THE COURT: Okay, I understand. (Trial Transcript at T73, emphasis added) [ 66 ] Finally, in reviewing the evidence as a whole, there was ample evidence to support the trial judge’s implicit finding of reliability in relation to the appellant’s presence at Mr. Lepine’s apartment and his identification of the appellant as one of the intruders. For instance: (

a) Mr. Lepine had known the appellant personally for several weeks beforehand and they had spent time together on a number of occasions; (

b) Mr. Lepine knew the appellant’s girlfriend’s name was Juicy. This is significant because the intruder was specifically

looking for Juicy when he attempted to enter Mr. Lepine’s apartment; (

c) Mr. Lepine had more than a passing glance at the appellant and the apartment was lit; (

d) the appellant bore distinctive facial tattoos; (

e) At the time of the incident, Mr. Lepine had identified the appellant as one of his assailants, whom he knew by his street name “Chub Rock”, and had provided the police with a description of him immediately after the attack; and (

f) Mr. Lepine readily selected the appellant from a photo lineup several weeks later. [ 67 ] Having reviewed Mr. Lepine’s evidence and re-weighing it on appeal from the standpoint of unreasonable verdict, and with a mindset of deference, I am of the view there was evidence upon which a reasonably instructed jury could have reached a guilty verdict. While it would have been helpful had the trial judge addressed this issue in a more head-on fashion, I am nonetheless satisfied that he was cognizant of the reliability concerns articulated by defence counsel and took them into consideration in assessing Mr.

Lepine’s testimony. [ 68 ] With that I turn to the appellant’s submission that this Court’s decision in R v Esau , 2009 SKCA 31 , 324 Sask R 95 [ Esau ], stands for the proposition that failure to specifically address the reliability of a complainant’s testimony when otherwise presented with facts that might call it into question amounts to an error of law. [ 69 ] With respect, the appellant has over-simplified the facts of Esau and this Court’s decision in that case.

Esau focused on the offender’s right to make full answer and defence through cross-examination where one Crown witness was unresponsive to defence questions. Justice Cameron held that the trial judge was required to have “careful regard for her unresponsiveness in assessing her credibility, as well as the reliability and weight of her testimony” (at para 26). He concluded that the trial judge’s failure to mention these issues in his reasons constituted an error because overlooking something so significant indicated he either failed to fully appreciate its significance or overlooked it.

This error was characterized as either a wrong decision on a question of law or a miscarriage of justice within the meaning of s. 686(1)(a). A new trial was ordered. [ 70 ] R v Kennedy , 2015 SKCA 32 , 457 Sask R 182 [ Kennedy ], is a case where the trial judge focused on the complainant’s reliability but failed to specifically address the credibility of the witness in her reasons for judgment. This was a case about eyewitness identification and Mr. Kennedy’s conviction rested solely on the identification evidence provided by the complainant and another witness.

Given the defence theory and the evidence before the trial judge, this Court concluded that the complainant’s credibility had to be addressed. “Her failure to do so means the trial decision was not responsive to the central argument of the defence or to the ‘live issues’ in the case … It also means that it is not possible for this Court to properly discharge its appellate review function” (at para 41). [ 71 ] The significance of both Esau and Kennedy is that he trial judges failed to address the issue before them.

In Esau , the trial judge commented on the witness’s unresponsiveness as it related to the accused’s right of cross-examination, but did not mention how it might have impacted the witness’s credibility, reliability or the weight to be given her evidence. In Kennedy , the trial judge addressed “weight”, but only in relation to the factors going to reliability, not credibility. [ 72 ] In

summary, although the trial judge’s reasons are relatively brief, I am nonetheless satisfied that having reviewed the evidence as a whole, it was reasonably capable of supporting his bottom-line finding of guilt, and that he had a full appreciation of the evidence.

In the end, the appellant’s argument is little more than a thinly veiled invitation to this Court to assess the credibility and reliability of the complaint’s evidence afresh with the purpose of coming to a different result. [ 73 ] Although the appellant’s counsel confirmed in oral argument that he was not pursuing insufficiency of reasons as a ground of appeal, I will nonetheless briefly comment upon this thread of argument since it appears inherent in his submissions. [ 74 ] Reviewing reasons for sufficiency begins from a stance of deference – absent a palpable and overriding error, the trial judge’s perception should be respected ( R v R.E.M. , 2008 SCC 51 at para 55 , [2008] 3 SCR 3 [ R.E.M. ]).

The critical question is: “do the trial judge’s reasons, considered in the context of the evidentiary record, the live issues as they emerged at trial and the submissions of counsel, deprive the appellant of the right to meaningful appellate review?” ( R.E.M. at para 57 .) What is required is that the reasons, read in the context of the record and the submissions on the live issues, show that the trial judge has seized the substance of the matter ( R.E.M. at para 43 ). [ 75 ] In my view, the trial judge’s reasons permit adequate appellate review.

I say this for several reasons. [ 76 ] First, not addressing the legal requirements for the actus reus and mens rea specifically, does not in itself make the reasons insufficient (see Luu at para 20 ). Trial judges are presumed to know the law, though this does not negate the need to show the law has been correctly applied ( RE.M. at paras 43–47).

As discussed above, on reading the record as a whole, the trial judge’s reasons contain findings about both the actus reus and mens rea that enable appellate review. [ 77 ] Second, a trial judge is not required to explain every indicia of reliability nor explain away every indicia of unreliability ( R v Pelletier , 2016 SKCA 62 at para 38 , 480 Sask R 56). In fact, as noted above, the record makes clear that “reliability” per se was never expressly raised by defence counsel at trial. Rather, concerns about Mr.

Lepine’s testimony were subsumed under the broader umbrella of what defence counsel called credibility. [ 78 ] The prospect of legal error for not assessing the evidence from the purview of eyewitness identification jurisprudence was another argument pursued at the time of the appeal hearing. This argument largely turned on the suggestion that Mr. Lepine had mistakenly identified the appellant as the intruder because he had failed to mention the appellant’s black eye to the police.

The trial judge summarily dispensed with this argument in stating “I am not troubled by the questions raised as to whether he had a bruise on his face” (Decision Transcript at T2).

[ 79 ] While this argument veers into the jurisprudence on eyewitness identification, there is no merit to the appellant’s argument for several reasons. [ 80 ] First, there is no reliable evidence that the appellant had a black eye before the offence was committed. Second, in assessing the identification issue, the trial judge specifically took into account the fact Mr.

Lepine had known his assailant for two weeks or longer, had identified the appellant shortly after his assault by his street name and had subsequently picked him out of a police lineup. [ 81 ] Finally, there were other indicators that undermined any concern about the eyewitness identification of the appellant. Mr. Lepine testified the appellant had readily identifiable tattoos on his face and neck and had come to Mr. Lepine’s apartment specifically looking for Juicy. [ 82 ] Thus, like the trial judge, I am not troubled by the fact the black eye did not feature prominently in Mr. Lepine’s testimony. C.

Did the trial judge err in finding the appellant responsible for the actions of all three intruders in the absence of evidence the appellant had been present or that he was the one who had thrust the knife through the door? Did the trial judge err in law by holding the appellant and his group “responsible for each other’s actions”? [ 83 ] Since the trial judge found the appellant guilty of break and enter and assault within the apartment, it was unnecessary for him to go on to consider whether the actions that took place in the hallway after Mr. Lepine closed the door on his assailants amounted to assault.

Nonetheless, the trial judge went on to state “the accused and his group are responsible for each other’s actions” (Decision Transcript at T5). [ 84 ] The appellant contends the trial judge erred in this respect because there was no evidence the appellant had remained at the scene, kicked the door, or swung the knife. [ 85 ] The entire incident from start to finish lasted three to four minutes. There was no evidence of a time lag between when the door was closed by Mr. Lepine and the moment the intruders began to kick it to gain entrance.

The suggestion that the appellant may have left the scene and not have participated in the hallway disturbance is nothing more than speculation. Even though Mr. Lepine did not actually see who did the kicking or who thrust the knife through the door opening, the trial judge was entitled to draw an inference that the appellant was present and participated in these acts. Indeed, his inference was a reasonable one given the evidence before him. [ 86 ] As a matter of law, the appellant was liable if he was the person who tried to stab Mr.

Lepine through the door or if he aided or abetted one of his accomplices in doing so. In an abbreviated manner, the trial judge paraphrased the “parties to the offence” concept. Clearly, he was alive to s. 21 of the Criminal Code , which expands the modes of participation in a crime beyond the principle actor. VII. Conclusion [ 87 ] For the reasons given, I would dismiss this appeal. “Schwann J.A.” Schwann J.A. I concur. “Herauf J.A.” Herauf J.A. I concur. “Whitmore J.A.” Whitmore J.A.