R v Bear, 2022 SKCA 131

Court of Appeal for Saskatchewan Docket: CACR3375 Citation: R v Bear , 2022 SKCA 131 Date: 2022-11-16 Between: Ryan Dean Bear Appellant And His Majesty the King Respondent Before: Jackson, Tholl and Kalmakoff JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Mr. Justice Kalmakoff In concurrence: The Honourable Madam Justice Jackson The Honourable Mr.

Justice Tholl On appeal from: Provincial Court, Saskatoon Appeal heard: November 9, 2022 Counsel: Michael Nolin for the Appellant Kelly Kaip for the Respondent Kalmakoff J.A. [ 1 ] Ryan Bear appeals against his convictions, following a trial in Provincial Court, on charges of robbery and dangerous operation of a conveyance ( R v Bear (4 May 2020) Saskatoon (Sask Prov Ct) [ Trial Decision ]). [ 2 ] The trial judge found the Crown had proven beyond a reasonable doubt that Mr.

Bear was the person who, along with a female companion, had robbed the victim of his motor vehicle and other personal property by using violence and threats of violence, and that Mr. Bear later operated that vehicle in a dangerous manner on the streets of Saskatoon. [ 3 ] The Crown’s case against Mr. Bear was entirely circumstantial in nature. The trial judge found Mr. Bear guilty of both offences because she concluded that his guilt was the only reasonable inference that could be drawn from the evidence as a whole. [ 4 ] Mr. Bear contends that the trial judge erred by (

i) failing to properly apply the legal principles governing the assessment of circumstantial evidence, and (ii) drawing inferences that the evidence did not support. [ 5 ] As I will explain, I am not persuaded that the trial judge erred in either of these ways. [ 6 ] Where the case for the Crown consists wholly or substantially of circumstantial evidence, the standard of proof requires that, before a finding of guilt can be made, the trier of fact must be satisfied beyond a reasonable doubt that the accused’s guilt is the only reasonable inference to be drawn from the evidence as a whole ( R v Villaroman , 2016 SCC 33 at para 20 , [2016] 1 SCR 1000 [ Villaroman ]).

In assessing whether circumstantial evidence proves the Crown’s case beyond a reasonable doubt, the trier of fact must also consider whether inferences consistent with innocence arise on the evidence. Inferences consistent with innocence need not arise from proven facts; they may also arise from a lack of evidence ( Villaroman at paras 35 and 38 ). [ 7 ] The requirement for a trier of fact to consider whether inferences consistent with innocence arise on the evidence does not mean that every possible alternative theory will necessarily raise a reasonable doubt.

Nor does it mean that circumstantial evidence must totally exclude all other conceivable inferences to support a guilty verdict. A trier of fact must consider plausible theories and reasonable possibilities that are inconsistent with guilt but is not required to negate every possible conjecture that might be consistent with the innocence of the accused.

In order to give rise to a reasonable doubt, alternative theories and possibilities must be more than merely speculative in nature; they must be rooted in logic and experience as applied to the evidence or lack of evidence ( R v R.M. , 2020 ONCA 231 at para 16 , 387 CCC (3d) 55). This means the mere presence of a possible competing inference does not preclude a finding of guilt. If the trier of fact considers an alternative

interpretation of the circumstances to be unreasonable or nothing beyond mere speculation, the trier of fact is not bound to give effect to that alternative simply because it is impossible to exclude it entirely ( R v Power , 2022 SKCA 24 at para 76 , [2022] 10 WWR 263; R v Learning , 2019 SKCA 5 at para 26 ). In the end, it is fundamentally for the trier of fact to decide if a proposed alternative way of looking at the case is enough to raise a doubt ( Villaroman at para 56 ). [ 8 ] While Mr.

Bear acknowledges that the trial judge in this case correctly cited the principles governing the assessment of circumstantial evidence, he contends that she failed to properly apply those principles. In this regard, he focuses on a portion of paragraph 39 of the Trial Decision where the trial judge referred to the alternative inferences that Mr. Bear’s trial counsel had argued could be drawn from the evidence, and said: “In my view, this is pure speculation. Inferences other than guilt do not arise based upon gaps in the evidence ” (emphasis added). Mr.

Bear contends that this amounted to a misdirection because, as the Supreme Court stated in Villaroman , “[a] certain gap in the evidence may result in inferences other than guilt” (at para 36). Mr. Bear asserts that, given this misdirection, the trial judge cannot be taken to have applied the Villaroman test correctly. [ 9 ] I do not accept this argument. An appellate court’s role is not to parse the words of trial judges in a quest to find error but, rather, to read a trial judge’s reasons for judgment in their entirety, in the context of the evidence and the parties’ submissions.

In that exercise, problematic words or sentences should not be isolated and given undue importance ( R v Van Deventer, 2021 SKCA 163 at paras 30–31 , 407 CCC (3d) 291). The portions of the Trial Decision that preceded paragraph 39 included a thorough self-instruction by the trial judge on the legal principles governing the assessment of circumstantial evidence, where she said: [23] Subsequently, in R v Villaroman , 2016 SCC 33 , the SCC made it clear that inferences consistent with innocence do not have to arise from proven facts.

A certain gap in the evidence may result in inferences other than guilt – but those inferences must be reasonable

given the evidence and the absence of evidence, assessed logically and in light of human experience and common sense. The SCC statedas follows: “When assessing circumstantial evidence, the trier of fact should consider ‘other plausible theories’ and ‘other reasonablepossibilities’ which are inconsistent with guilt. …‘Other plausible theories’ or ‘other reasonable possibilities’ must be based on logic andexperience applied to the evidence or the absence of evidence, not on speculation. Of course, the line between a ‘plausible theory’ and‘speculation’ is not always easy to draw.

But the basic question is whether the circumstantial evidence, viewed logically and in light ofhuman experience, is reasonably capable of supporting an inference other than that the accused is guilty. (paras 37-38) [10] As can be seen, the trial judge’s self-instruction on those principles tracked the language used in Villaroman and, moreover,was thorough and legally correct. After this self-instruction, she proceeded to conduct a detailed review of the evidence adduced duringthe trial. She stated that she found all of the witnesses who had testified for the Crown to be credible and, for the most part, reliable.

Shecarefully analysed the evidence to determine what inferences it supported, and weighed the arguments put forward by Mr. Bear and hisco-accused. Taken in context and read in conjunction with the entirety of her reasons, it is apparent that the impugned comment inparagraph 39 of the Trial Decision was not intended by the trial judge as a general statement about the law but, rather, a direct response toMr. Bear’s contention that the gaps in the evidence, in this case, gave rise to a reasonable doubt. In the sentence that Mr. Bear focuses on,the trial judge was expressing the view that, in her mind, they did not.

The record as a whole simply does not support Mr. Bear’scontention that it was a misdirection on the law by the trial judge. [11] I am also not persuaded that the trial judge erred by drawing inferences that the evidence did not support. The thrust of Mr.Bear’s argument on this point is that the trial judge could not properly have drawn the inferences that she did, because (

i) there was asignificant temporal gap between the occurrence of the robbery and the events that connected Mr. Bear to the stolen vehicle, and (ii)certain individual pieces of evidence could be seen as not being indicative of his guilt for the offence of robbery. [12] In this respect, Mr. Bear’s argument reduces to a submission that the verdict is unreasonable. There are two reasons thisargument cannot succeed. [13] The first is that it invites this Court to take a piecemeal approach to the evidence. Such an approach would be contrary to thegoverning jurisprudence.

It is well-settled law that, in a circumstantial evidence case, it is not necessary for the Crown to establish thateach item of evidence, taken individually, supports only an inference of guilt. This is because the requirement for proof beyond areasonable doubt does not apply to each individual piece of evidence (see, for example: R v Wolfe, 2021 SKCA 39 at para 110, 404 CCC(3d) 141 [Wolfe]).

The determination of whether the guilt of the accused has been proven beyond a reasonable doubt must be made on thebasis of the evidence as a whole (R v J.M.H., 2011 SCC 45 at para 31, [2011] 3 SCR 197; R v Ballantyne, 2015 SKCA 107 at para 42, 329CCC (3d) 127; R v Alves, 2014 SKCA 82 at para 43, 314 CCC (3d) 313). See also: R v Morin, (SCC), [1988] 2 SCR 345 at360–361). [14] The second problem with Mr. Bear’s argument comes in the form of the applicable standard of appellate review.

When averdict based on circumstantial evidence is challenged as being unreasonable, the question for an appellate court is “whether the trier offact, acting judicially, could reasonably be satisfied that the accused’s guilt was the only reasonable conclusion available on the totality ofthe evidence” (Villaroman at para 55).

This means our function, as a court of appeal, is not to determine whether we would have reachedthe same conclusion as the trial judge did, but rather whether it was unreasonable for her to have concluded that the evidence, as a whole,excluded all reasonable alternatives to guilt (Wolfe at para 111). [15] In my view, the conclusion reached by the trial judge was not unreasonable. She carefully considered all of the evidence thathad been adduced and weighed it against the competing theories that had been advanced by the defence when determining what inferencesthat evidence supported.

She dismissed the theories put forward by Mr. Bear as “pure speculation”. This conclusion is understandable, asno direct evidence supported Mr. Bear’s alternative theories that there may have been more than two people in the stolen vehicle, or thatsomeone else might have stashed the gun found at the apartment suite, or that someone else had stolen the victim’s car and delivered it tohim. Mr. Bear’s argument in favour of those alternative theories and inferences relied entirely on the gaps in time that separated certainevents and slight discrepancies in the evidence of certain Crown witnesses about some details.

Moreover, there was strong evidenceconnecting Mr. Bear to the stolen car and the dangerous manner in which it had been driven, strong evidence connecting him to the femaleperson who was with him when he entered the apartment where he was found by the police, and strong evidence – including the itemsfound in their possession and in the apartment to which Mr. Bear fled and the video surveillance footage from the gas station where thevictim’s cell phone was disposed of – connecting both of them to the robbery.

The trial judge, after a careful consideration of thatevidence, found that the temporal gaps and discrepancies were not capable of supporting the inferences that Mr. Bear suggested theyshould, and that his proposed alternative theories amounted to nothing more than speculation. That conclusion is well-supported on therecord and, under the governing standard of review, there is no basis to interfere with it. [16] Accordingly, Mr. Bear’s appeal must be dismissed. “Kalmakoff J.A.” Kalmakoff J.A.I concur. “Jackson J.A.” Jackson J.A.I concur. “Tholl J.A.” Tholl J.A.