R v Bear, 2021 SKCA 98

Court of Appeal for Saskatchewan Docket: CACR3266 Citation: R v Bear , 2021 SKCA 98 Date: 2021-07-13 Between: Brandon Scott Bear Appellant And Her Majesty the Queen Respondent Before: Caldwell, Tholl and Kalmakoff JJ.A. Disposition: Appeal allowed; new trial ordered Written reasons by: The Honourable Mr. Justice Caldwell In concurrence: The Honourable Mr. Justice Tholl The Honourable Mr. Justice Kalmakoff On appeal from: Provincial Court, Prince Albert Appeal heard: June 3, 2021 Counsel: Brian Pfefferle for the Appellant Kelly Kaip for the Respondent Caldwell J.A. [ 1 ] Brandon Scott Bear appeals against his conviction on the charge of assault with a weapon, contrary to s. 267 (

a) of the Criminal Code . He principally asserts that the trial judge erred when he concluded the Crown had proven all elements of the offence beyond a reasonable doubt on the basis of the circumstantial evidence in this case. There are two aspects to Mr. Bear’s assertion: (

a) he says the Crown failed to establish his identity as the assailant; and (

b) he submits the Crown failed to establish that a tire iron had been used in the assault. [ 2 ] Mr. Bear also alleges that, because the circumstantial evidence in this case allowed a reasonable inference to be drawn that is inconsistent with his guilt, the trial judge should have found that the Crown had failed to prove its case beyond a reasonable doubt in accordance with R v Villaroman , 2016 SCC 33 , [2016] 1 SCR 1000. Lastly, Mr. Bear submits the trial judge erred in his alternative assessment of Mr.

Bear’s guilt as a party to the assault by reason that he had aided and abetted the assailants. [ 3 ] As I would allow the appeal and order a new trial under the first aspect of his principal assertion of error, I do not address the R v Villaroman or party issues in these reasons. Also, because a new trial is required, I will examine the evidence in this case only as is necessary to the analysis that follows. [ 4 ] At the trial, the complainant was the only witness.

He testified as to the circumstances that had led up to the assault, which had been committed by at least three individuals, and of the assault itself. The complainant candidly said he did not see who had hit him with what he believed was a tire iron and that his memory of who had been holding the tire iron after he regained consciousness was “fuzzy” and “foggy”. He also said he had suffered memory loss following the assault, although he gave no details about what that meant. While he was, at times, less than unequivocal about identifying Mr.

Bear as the assailant, he ultimately did so in his oral testimony. [ 5 ] Mr. Bear asserts that the evidence that identified him as the principal assailant did not satisfy the criminal standard of proof because it was unreliable and equivocal. In asserting that the trial judge should not have relied on it, Mr. Bear cites R v Bigsky , 2006 SKCA 145 at para 41 , [2007] 4 WWR 99, where Jackson J.A. wrote that, when reviewing a trial judge’s assessment of the reliability of eyewitness identification evidence, an appellate court should consider: … (

i) whether the trial judge can be taken to have instructed himself or herself regarding the frailties of eyewitness testimony and the need to test its reliability; (ii) the extent to which the trial judge has reviewed the evidence with such an instruction in mind; (iii) the extent to which proof of the Crown’s case depends on the eyewitness’s testimony or, in other words, the presence or absence of other evidence that can be considered in determining whether a court of appeal should intervene; (iv) the nature of the eyewitness observation including such matters as whether the eyewitness had previously known the accused and the length and quality of the observation; and (

v) whether there is other evidence which may tend to make the evidence unreliable, i.e., the witness's evidence has been strengthened by inappropriate police or other procedures between the time of the eyewitness observation and the time of testimony. [ 6 ] In this case, the complainant’s evidence is not that of a fleeting glance at a previously unknown individual as was the case in R v Bigsky , but his observation of Mr. Bear did occur in the midst of a melee following a period of unconsciousness, which lends an element of frailty to it. Looking at this case through the lens of R v Bigsky , the transcript of Mr.

Bear’s trial establishes that the trial judge did not explicitly instruct himself as to the frailties of eyewitness testimony. This omission is not, of course, a fatal flaw because a judge is presumed to know the law. However, the absence of self-instruction takes on a different character in this trial because the complainant had himself identified frailties in his eyewitness identification of Mr. Bear as the assailant. [ 7 ] The complainant’s identification of Mr. Bear had a certain level of innate reliability because he knew Mr. Bear before the assault, although not well.

Furthermore, it seems uncontested that Mr. Bear was at the place of the assault at the relevant time. However, the complainant’s identification of Mr. Bear as the assailant was less than unequivocal. He said he believed he had been struck from behind by a tire iron, which had rendered him unconscious. He acknowledged that he had not seen who had struck him. The complainant candidly testified that “It was fuzzy, but it— I kind of think it was Brandon” (emphasis added) and, later, “It was foggy, but yeah…It was Brandon”. As to why he thought it was Mr.

Bear who had struck him, the complainant said it was because “he was there, and he tried fighting me at the hospital beforehand and it was—I don’t know, he’s got a beef with me. I don’t know why”. Taken at its highest value,

the complainant’s identification boils down to circumstantial evidence that Mr. Bear had a motive and the opportunity, but not theexclusive opportunity, to commit the assault with the tire iron. [8] Given the verdict of guilt, the trial judge must be taken to have been satisfied as to the complainant’s credibility and there isno suggestion he erred in that regard.

However, his oral reasons do not address the self-identified frailties in the complainant’s evidence.Nothing in the transcript suggests that the trial judge reviewed the complainant’s testimony having had regard for its obvious frailties orthe frailties of eyewitness evidence in general. This lapse is troubling because there is no doubt that proof of the Crown’s case dependedentirely on the complainant’s identification of Mr. Bear. [9] While there was other evidence of Mr.

Bear’s involvement in the assault, it too came from the complainant, was less thanunequivocal, and had been put before the trial court in an unusual way. In cross-examination, the complainant agreed he had provided thepolice with a written statement about the assault and that he had posted comments about the assault and photos of his injuries onFacebook. The defence put these documents to the complainant and discussed their content in cross-examination, presumably in an attemptto show that the complainant was not confident who had hit him and to thereby cast doubt on his identification of Mr.

Bear as theassailant. The defence entered the documents as exhibits in the trial (Exhibits D1 and D2, respectively). [10] At the close of trial, the trial judge asked for Mr. Bear’s closing submissions first, even though Mr. Bear had not testified orcalled any witnesses in his defence. Then, in its closing submissions, the Crown sought to rely on Exhibit D1—the written statement—toestablish that no one other than Mr. Bear had had a tire iron, saying it was entitled to do so because the statement was part of the case forthe defence.

The defence objected, but the trial judge agreed with the Crown’s characterisation of the evidence and said the statement was“tantamount to an admission that the—when the complainant woke up, the accused was standing somewhere with a tire iron in his hands”.Then, when speaking to the element of identification in his oral decision, the trial judge said: The accused—or sorry, the complainant’s written statement was filed as an exhibit by the defence and, from that, I conclude the accuseddefinitely was one of the three men around the victim who hit him.

I accept the complainant’s evidence that he was hit with a tire iron bysomebody. The complainant says the reason he knows that, it rendered him unconscious immediately. Also that the photo, one of thephotos that were filed, I think as Exhibit P-1, shows an imprint or a mark which he feels was the tire iron. And I must say, looking at the—the straight lines on the mark that I agree with him, that he was struck with something that had straight lines, straight borders orboundaries. The accused was seen with a tire iron in his hand.

Whether or not it was the accused who hit him with a tire iron, in myopinion, even though I believe the accused did hit him with a tire iron, even if I’m wrong on that, it’s not really material. (Emphasis added) [11] Prior consistent statements, like Exhibit D1 in this case, are presumptively inadmissible because they lack probative value andconstitute hearsay when adduced for the truth of their contents (R v Dinardo, 2008 SCC 24 at para 36, [2008] 1 SCR 788; R v Stirling,2008 SCC 10 at para 5, [2008] 1 SCR 272; R v D.K., 2020 ONCA 79 at paras 34-38, 384 CCC (3d) 405).

However, a prior consistentstatement may be adduced, in limited circumstances, to assist the trier of fact with the assessment of a witness’s credibility or thereliability of the witness’s in-court testimony but not to confirm or corroborate that in-court testimony (R v Dinardo at paras 37-40; R vD.K. at para 38; R v Khan, 2017 ONCA 114 at para 39, 345 CCC (3d) 419; R v F.(J.E.) (1993), (ON CA), 85 CCC (3d)457 at 476 (Ont CA)). [12] Mr.

Bear did not take issue with the admission of the complainant’s statement for a purpose broader than assisting in theassessment of the reliability of the complainant’s in-court testimony, i.e., with the trial judge’s acceptance of it for the truth of its content.As he did not engage that issue, the Crown advanced no argument on it either. Nonetheless, the fact is, by relying on the complainant’sprior consistent statement as proving beyond a reasonable doubt that Mr.

Bear had assaulted the complainant, the trial judge effectivelyconfirmed that he did not evaluate the reliability of the complainant’s sworn testimony at trial on the issue of identification. Regardless ofwhether the statement was admissible and probative of identification, it was incumbent on the trial judge to address the factors thataffected the reliability of the complainant’s in-court testimony and to resolve any danger arising from convicting Mr. Bear based oncircumstantial evidence.

Therefore, I find the trial judge failed to assess the reliability of the complainant’s in-court testimony on the issueof identification. Given this error, the verdict must be set aside and a new trial ordered. [13] Mr. Bear had several other concerns with the trial decision based on the reasons in R v Villaroman, but I found no basis tointervene under those allegations of error.

However, because I would order a new trial, I do not address them in any detail so as to avoidunnecessary comment on the circumstantial evidence in this case. [14] In sum, the verdict must be set aside and a new trial ordered. “Caldwell J.A.” Caldwell J.A.I concur. “Tholl J.A.” Tholl J.A.I concur. “Kalmakoff J.A.” Kalmakoff J.A.