R v Roy, 2018 SKCA 82

Court of Appeal for Saskatchewan Docket: CACR3128 Citation: R v Roy, 2018 SKCA 82Date: 2018-10-24 Between:Diana RoyAppellantAndHer Majesty the QueenRespondentBefore: Richards C.J.S., Whitmore and Schwann JJ.A. Disposition: Appeals dismissed Written reasons by: The Honourable Chief Justice RichardsIn concurrence: The Honourable Mr. Justice Whitmore The Honourable Madam Justice SchwannOn Appeal From: Provincial Court, Prince AlbertAppeal Heard: October 1, 2018Counsel: Diana Roy appearing on her own behalf Andrew Davis for the Respondent Richards C.J.S. I. Introduction [1] Ms.

Roy was tried in Provincial Court and convicted of five offences: attempted robbery; assault causing bodily harm;possession of a weapon for a dangerous purpose; mischief; and failing to attend court. She was given a global sentence of 729 days ofimprisonment, less a 200-day credit for time spent on remand, and 12 months on probation. Ms. Roy appeals both the convictions and hersentence. II. background [2] I will not recount the full details of the evidence underpinning this case. They are set out in the decision under appeal. It isenough, for present purposes, to say the trial judge found that Ms.

Roy and another woman, acting in concert, had blocked the movementof a truck in downtown Prince Albert. The judge concluded the other woman had demanded money from the driver (Vern Temple) andthat Ms. Roy had cut Mr. Temple’s throat with a knife and then slashed a tire on his truck. [3] In coming to these conclusions, the trial judge rejected Ms. Roy’s version of events because of concerns about both herreliability and her credibility. Her evidence had been to the effect that she and the other woman were merely trying to find a missingpurse and that she had confronted Mr.

Temple with a knife only after he had bumped her with his truck. Ms. Roy admitted to holding aknife to Mr. Temple’s face but said she did not cut him. Ms. Roy also testified that she slashed the tire of the truck but said she had doneso because she was afraid of Mr. Temple and wanted to prevent him from following her. As indicated, the trial judge did not accept thisaccount of the incident and went on to find, on the whole of the evidence, that the offences in issue had been proven beyond a reasonabledoubt. III. the conviction appeals [4] Ms.

Roy raised an extensive list of concerns in a written submission to the Court dated May 17, 2018. These concernsinclude a wide variety of matters including issues about witnesses who she said were not subpoenaed, suggestions of witness tampering,alleged problems with a photo lineup and other aspects of the police investigation, supposed errors in the trial judge’s

interpretation ofthe pictures showing the injury to Mr. Temple’s neck, complaints that she had been tricked into making a statement to the police, anassertion that she suffers from PTSD and had not been taking her medication on the night of the offences, contentions that Mr. Templelied during his testimony, and claims of racial discrimination. Ms. Roy did not raise or press all of these issues in her oral submissions tothe Court. Overall, her concerns are most fairly seen as amounting to contentions that her convictions were unreasonable or involved amiscarriage of justice. [5] The overriding problem with Ms.

Roy’s arguments is that, in effect, she invites the Court to wholly reweigh and reconsiderthe evidence with no deference to the findings made by the trial judge. This we cannot do. A court of appeal is entitled to interfere withfindings of fact made at trial only if those findings involve “palpable and overriding error”. In other words, only if they are clearlywrong, unsupported by the evidence or otherwise unreasonable.

See: R v Clark, 2005 SCC 2, [2005] 1 SCR 6. [6] In this case, the trial judge approached the issues before him by referencing R v W.(D.), (SCC), [1991] 1SCR 742, and then applying the proper framework of legal analysis. He made and explained findings of credibility and weighed theevidence that had been presented. There was nothing legally objectionable about any of that and his conclusions reveal no palpable andoverriding error. It follows that we cannot overturn Ms. Roy’s convictions. As indicated, this Court is simply not in a position to redo thework of the trial judge from the ground up.

IV. the sentence appeals [7] Ms. Roy also contends her global sentence was too high. The standard of review is important in this regard as well. ThisCourt may set aside an otherwise lawful sentence only if (

a) the sentence was demonstrably unfit, or (

b) the sentencing judge erred inprinciple, failed to consider a relevant factor or overemphasized an appropriate factor and that error had an impact on the sentenceimposed. See: R v Lacasse, 2015 SCC 64 at paras 41 and 44, [2015] 3 SCR 1089. [8] Ms. Roy’s submission, in substance, is that her global sentence is demonstrably unfit. However, this is not the case. Robbery,and attempted robbery, are serious offences that typically attract significant jail terms. The trial judge concluded that, on the face ofthings, three years would be an appropriate sentence.

Nonetheless, he scaled this back to two years less a day, plus probation, in light ofwhat he saw as significant Gladue considerations arising from Ms. Roy’s difficult background. He also made the sentences for the othercrimes concurrent with the sentence for attempted robbery in order to avoid what otherwise would have been, in his words, an unfit andunjust sentence. In all of the circumstances here, the global sentence of two years less a day plus probation is not demonstrably unfit. V. the fresh evidence application [9] Ms. Roy applied to place fresh evidence before the Court.

That evidence is in the form of a handwritten statement by TaraGallerneault. Ms. Gallerneault indicates that she is the aunt of Felicia Pocha, one of the witnesses who testified for the Crown at the trial.Ms. Gallerneault states that Ms. Pocha rents from Mr. Temple and “has a grandson with [Mr. Temple’s] son”. She goes on to write that“[Ms. Pocha] just said what [Mr. Temple] wanted her to say rather than the truth that they didn’t know who did it and just blaming thenext person that was around them”. For her part, Ms. Roy argued that Ms. Gallerneault had overheard Mr. Temple telling Ms.

Pocha tolie on the witness stand in order to protect him. However, this is not what Ms. Gallerneault says in her statement. She indicates only that,in general terms, she believes Ms. Pocha to have said what Mr. Temple wanted her to say. [10] The test for the admission of fresh evidence is well known. As noted in R v Palmer, (SCC), [1980] 1 SCR 759[Palmer], the following considerations govern the issue: (

a) the evidence could not, by due diligence, have been adduced at trial; (

b) theevidence is relevant in the sense that it bears upon a potentially decisive issue; (

c) the evidence is reasonably capable of belief; and(

d) the evidence is such that, if believed, it could be reasonably expected, taken with the other evidence adduced at trial, to have affectedthe result. [11] There are obvious concerns about the reliability of Ms. Gallerneault’s statement given that it is not properly sworn. Further,Ms. Roy’s own account or representation of what she says Ms. Gallerneault told her is, of course, no more than unsubstantiated hearsayevidence. [12] That said, the most significant issue here relates to whether the fresh evidence represented by Ms. Gallerneault’s statementcould have affected the outcome of the trial.

The essence of the statement is that Mr. Temple did not know who had attempted to rob himand had enlisted Ms. Pocha to just blame “the next person that was around them”. But, identity was not an issue at the trial. Ms. Royreadily acknowledged being involved in the incident underpinning the charges against her. Indeed, she readily acknowledged holding aknife to Mr. Temple’s face. The real question for the trial judge is whether all of this had happened in the context of a robbery orwhether there was some other explanation for it. The identity of the person who had held the knife was not in doubt.

Accordingly, I seeno basis for believing that Ms. Gallerneault’s evidence could have affected the outcome of the trial. It follows that Ms. Roy’s freshevidence application must be dismissed. It does not satisfy the Palmer test. VI. conclusion [13] As explained above, Ms. Roy’s appeals must be dismissed. “Richards C.J.S.” Richards C.J.S.I concur. “Whitmore J.A.” Whitmore J.A.I concur. “Schwann J.A.” Schwann J.A.