R v Singh, 2022 SKCA 104

Court of Appeal for Saskatchewan Docket: CACR3431 Citation: R v Singh, 2022 SKCA 104Date: 2022-09-20 Between:His Majesty the KingAppellantAndGurpreet SinghRespondentBefore: Richards C.J.S., Schwann and Leurer JJ.A.Disposition: Application for leave to appeal granted; Appeal allowed (orally)Written reasons by: The CourtOn appeal from: 2021 SKQB 55, Swift CurrentAppeal heard: May 9, 2022 and September 19, 2022Counsel: Curtis Wiebe for the Appellant Gurpreet Singh on his own behalf The Court [1] After trial before a Provincial Court judge, Gurpreet Singh was acquitted of several charges, but convicted for failing, withoutlawful excuse, to comply with a demand for a breath sample, contrary to s. 254(2)(

b) of the Criminal Code (repealed; nows. 320.27(1)(b)). Mr. Singh appealed his conviction to a Court of Queen’s Bench judge sitting as a

summary conviction appeal court. Thesummary conviction appeal judge set aside the conviction and ordered a new trial: R v Singh, 2021 SKQB 55, 76 MVR (7th) 209 [AppealDecision]. [2] The Crown now appeals from the Appeal Decision. [3] An appeal to this Court from a decision of a

summary conviction appeal court is limited to questions of law alone and requiresleave of this Court pursuant to s. 839 of the Criminal Code. At the conclusion of the hearing before us, we granted the Crown leave toappeal from the Appeal Decision, allowed the appeal and restored Mr. Singh’s conviction. We gave brief oral reasons and advised that wewould confirm those reasons with brief written reasons. These are those written reasons. [4] The foundation for the

summary conviction appeal judge’s decision was that a dashcam video, taken from the perspective of apolice cruiser at the time of Mr. Singh’s arrest, should be admitted into evidence in the appeal. This dashcam video was part of the Crowndisclosure that was given to Mr. Singh and his counsel before the trial. [5] The

summary conviction appeal judge held that “the interests of justice require the inclusion of the evidence contained in thevideo” in the appeal because it could have affected the result of the trial (Appeal Decision at para 19). He then concluded that the absenceof this evidence at trial “resulted in the trial judge being in a bit of a vacuum and not being able to consider the defence put forward byMr. Singh” (at para 26). This meant that there had been “a miscarriage of justice that can only be remedied by setting aside the convictionand sentence and ordering a new trial so that this fresh evidence can be considered by the court” (at para 27). [6] The Crown argues that the

summary conviction appeal judge erred in law by admitting the dashcam video into evidence. Inthis regard, it agrees that the

summary conviction appeal judge correctly oriented himself to R v Palmer, (SCC), [1980] 1SCR 759 [Palmer], as establishing the correct test to be applied in relation to the admission of evidence on an appeal. However, it says thatthe

summary conviction appeal judge erred in law in the application of that test. [7] In Palmer, after emphasizing that the overriding consideration must be the “interests of justice” in accordance with thewording of what is now s. 683 of the Criminal Code, McIntyre J. set out the following principles that guide the admission of evidence inan appeal (at 775):

(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this generalprinciple will not be applied as strictly in a criminal case as in civil cases (McMartin v. The Queen [ (SCC), [1964] SCR484]).

(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

(3) The evidence must be credible in the sense that it is reasonably capable of belief, and

(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affectedthe result. [8] The Crown’s specific submission is that while the dashcam video provides credible evidence – meeting the third part of thePalmer test – the other three elements of the test were not satisfied.

We find no need to look past the first prong of the Palmer test todecide this appeal. [9] As already noted, the first part of Palmer test is that the “evidence should generally not be admitted if, by due diligence, itcould have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases” (at775). The

summary conviction appeal judge downplayed this element because he found that Mr. Singh, who in later parts of the trial hadrepresented himself, “did not know what to do” with the video evidence (Appeal Decision at para 11). However, this conclusion ignoresthat Mr. Singh had the video in his possession throughout the proceedings, including when he was represented by counsel. It also takes no

account of the fact that Mr. Singh’s counsel did not present the evidence of the video at a point in the trial when it would most logically have been put to use, that is, during the cross-examination of the investigating officer. [ 10 ] Looking at the matter from an overall perspective, we are also satisfied that no miscarriage of justice will occur if the video evidence is not admitted. In this regard, as the Crown points out, the video provides evidence that would have contradicted Mr.

Singh on an important part of his testimony, that is, that two other unidentified police officers, in addition to the two arresting officers, were allegedly present immediately before Mr. Singh was arrested on the refusal charge. It would also have contradicted Mr. Singh’s trial strategy in which he appeared to take issue with the authority of the police to arrest him on private property. While we need not reach a conclusion on these points, they could well explain why Mr. Singh’s trial counsel chose not to introduce the video in his cross-examination of the investigating officer. The fact that Mr.

Singh’s trial counsel did not do so lends credence to the Crown’s argument that the decision not to use the video was one of trial tactics. [ 11 ] For these reasons, we conclude that the

summary conviction appeal judge erred in law by admitting the dashcam video into evidence in the appeal from the trial decision. Without the admission of this evidence, there was no basis for Mr. Singh to have been granted a new trial. “Richards C.J.S.” Richards C.J.S. “Schwann J.A.” Schwann J.A. “Leurer J.A.” Leurer J.A.