R v Webb, 2022 SKCA 148

Court of Appeal for Saskatchewan Docket: CACR3453 Citation: R v Webb , 2022 SKCA 148 Date: 2022-12-28 Between: Gordon Stanley Webb Appellant And His Majesty the King Respondent Before: Jackson, Caldwell and Tholl JJ.A.

Disposition: Conviction appeal dismissed; sentence appeal allowed Written reasons by: The Court On appeal from: Provincial Court, Melfort Appeal heard: November 29, 2022 Counsel: Brady Knight for the Appellant Pouria Tabrizi-Reardigan for the Respondent The Court [ 1 ] A judge of the Provincial Court of Saskatchewan convicted Gordon Stanley Webb of the offences of dangerous driving ( Criminal Code , s. 320.13 ), failure to stop ( s. 320.16 ), flight from police ( s. 320.17 ), and operation of a conveyance while prohibited ( s. 320.18 ).

The trial judge sentenced him to three-and-a-half years in custody, imposed two consecutive driving prohibitions, each of five years’ duration, and imposed a victim impact surcharge. See R v Webb (13 April 2021) Melfort, Provincial Court (Sask) [ Sentencing Decision ]. [ 2 ] The convictions related to a series of incidents in which someone had driven Mr. Webb’s vehicle in a dangerous manner, ultimately crashing it into a police car and fleeing after the collision. See R v Webb (6 April 2021) Melfort, Provincial Court (Sask) [ Trial Decision ]. The sole issue at trial was the identity of the driver.

Based on eyewitness and circumstantial evidence, the trial judge found beyond a reasonable doubt that Mr. Webb was the driver at all relevant times. [ 3 ] In appealing against the convictions, Mr. Webb asserted that the verdicts were unreasonable and not supported by the evidence at trial. At the appeal hearing, Mr.

Webb expanded on this by alleging that the trial judge had erred by failing to follow the decisions in R v Bigsky , 2006 SKCA 145 , 289 Sask R 179, regarding the frailties of eyewitness evidence, and in R v Villaroman , 2016 SCC 33 , [2016] 1 SCR 1000, concerning inferences drawn from circumstantial evidence. He advanced further argument to the effect that the trial judge had misapprehended the evidence of an eyewitness. [ 4 ] As Mr.

Webb focussed his appeal on the later-made allegations of legal error under R v Bigsky and R v Villaroman , we can summarily dispose of the unreasonable verdict ground of appeal by stating that, having reviewed the evidence of identification, we find that the verdicts are unreservedly ones that a trier of fact, acting judicially, could reasonably have rendered; and they are plainly supported by the evidence. The only issue at trial was identity, and the trial judge cogently explained how the evidence she accepted identified Mr.

Webb as the driver when each of the driving offences with which he had been charged was committed. We therefore dismiss this ground. [ 5 ] We turn now to his oral arguments, where Mr. Webb first proposed that the trial judge had erred in her assessment of the evidence of identification and that her reasons were inadequate in light of R v Bigsky .

Under this argument, he submitted that the many frailties in the eyewitness evidence called out for a more detailed analysis and that R v Bigsky required extra steps in the reasoning process — i.e., that the trial judge was obliged to do more than what she had done in the Trial Decision . [ 6 ] When we read her oral reasons, we find that the trial judge appears to have intentionally structured her decision along the framework of the guidance in R v Bigsky about how a judge should assess eyewitness evidence in light of the frailties inherent in that type of evidence.

Although R v Bigsky is not cited, the whole of the Trial Decision is a careful and methodical assessment of the eyewitness evidence that explains how the trial judge found that it was reliable and how it constituted proof beyond a reasonable doubt that Mr. Webb was the driver of the vehicle at all relevant times. In sum, we find no merit to the allegations of error under R v Bigsky . [ 7 ] In other oral argument, Mr.

Webb submitted that, under R v Villaroman , it was incumbent upon the trial judge to address the defence theory, which was that it was possible that someone else had been driving the vehicle at the relevant times, because there were gaps in the timeline of the evidence received from the eyewitnesses. First, we are not persuaded that the guidance in R v Villaroman , which related to the instructions to be given to juries about the drawing of inferences in circumstantial evidence cases, applied in this trial.

We see this trial as the trial judge saw it, i.e., that proof of the driver’s identity rested on eyewitness evidence, not circumstantial evidence. Put another way, the trial judge did not infer from circumstantial evidence that Mr. Webb was the driver, and, therefore, there was no need for her to assess whether that was the only reasonable inference that could be drawn from the evidence. We find no merit to the allegations of error under R v Villaroman . [ 8 ] In his last oral argument, Mr. Webb asserted that the trial judge had misapprehended the evidence of identification.

Expounding on this argument, he took us through the evidence of one eyewitness, whom the trial judge had described as “less certain” in his identification of Mr. Webb than the other eyewitnesses. Mr. Webb submitted that this less-certain evidence was key to the Crown’s case and that the trial judge had failed to appreciate that the witness could not identify Mr. Webb as the driver — even though, of all the eyewitnesses, he had spent the longest time with him. Mr. Webb also said the trial judge improperly used this witness’s evidence to

bolster that of the other eyewitnesses. [9] In responding to this argument, we repeat that the verdicts in this case are unreservedly ones that the trial judge couldreasonably have rendered, and they are supported by the evidence in our reassessment of it. The only issue at trial was identity, and thetrial judge cogently explained how the evidence she accepted, including that of the witness in question, identified Mr. Webb as the driverwhen each of the driving offences with which he had been charged was committed.

We are not persuaded that the trial judgemisapprehended or placed undue weight on the eyewitness’s evidence in her deliberations on the question of identity. More pointedly, weare not convinced that she committed a palpable and overriding error in her assessment of what the evidence as a whole establishedbeyond a reasonable doubt. [10] Although it was not raised in the notice of appeal, given Mr.

Webb’s different arguments about the sufficiency of the trialjudge’s reasons, we will say that the oral Trial Decision satisfied the trial judge’s duty to deliver intelligible reasons that provide ameaningful basis for appellate review of its correctness (R v Sheppard, 2002 SCC 26 at paras 28 and 55, [2002] 1 SCR 869; R v R.E.M.,2008 SCC 51 at para 52, [2008] 3 SCR 3). As this relates to misapprehension of the evidence, the trial judge was under no legal duty tomention every piece of evidence, but she had to consider it all (R v Morin, (SCC), [1992] 3 SCR 286).

We are notpersuaded, however, that the trial judge misapprehended or overlooked exculpatory evidence or the frailty of evidence relevant to the issueof identity. Overall, we are of the view that the trial judge’s reasons fulfil their function and demonstrate why she found beyond areasonable doubt that Mr. Webb was the driver of the vehicle at the relevant times, thereby permitting appellate review. [11] Accordingly, we dismiss the appeal from the convictions entered against Mr. Webb. [12] In his sentence appeal, Mr.

Webb argued and the Crown concedes that the imposition of two consecutive 5-year drivingprohibitions is an illegal sentence. They agree that, while the trial judge could have imposed a 10-year driving prohibition or twoconcurrent 10-year driving prohibitions under ss. 320.24(4) and (5)(

b) of the Criminal Code, she was not permitted to impose consecutivesentences (see R v DiPietro, 2021 ABCA 372 at paras 37–46, 85 MVR (7th) 8). As such, the driving prohibitions imposed by the trialjudge must be set aside and the sentence varied. [13] Relevant to the variance of his sentence, we understand that another Provincial Court judge sentenced Mr. Webb on anunrelated driving offence the day after the trial judge sentenced him and that the second judge imposed a third driving prohibition, thistime of 10 years’ duration [Third Prohibition].

This means that, regardless of how we might correct the illegal sentence imposed by thetrial judge, Mr. Webb is and will remain subject to a 10-year driving prohibition. [14] The Crown submitted that the trial judge intended to impose a 10-year driving prohibition, that the circumstances ofMr. Webb’s offences merit that length of a prohibition, and that, therefore, we should vary the sentence by imposing a 10-year prohibitionor two concurrent 10-year prohibitions.

In oral argument, the Crown went so far as to speculate that we could impose a 10-year prohibitionthat runs consecutive to the Third Prohibition. [15] While we agree with the Crown that Mr. Webb’s record and the circumstances of his offences merit a driving prohibition of ameaningful duration, we find that the imposition by the trial judge of the illegal sentence is best remedied by varying the sentence so thatthe driving prohibitions run concurrently. We therefore vary the sentence imposed on Mr.

Webb such that he shall be subject to two,concurrent, 5-year driving prohibitions pursuant to s. 320.24(5) of the Criminal Code. This variance does not affect the Third Prohibition. [16] In sum, the appeal against convictions is dismissed.

The appeal against sentence is allowed but only to the extent that thesentence is varied such that the driving prohibitions imposed under the Sentencing Decision shall operate concurrently, not consecutively.Lastly, the victim impact surcharge, imposed by the trial judge, is set aside: see R v Boudreault, 2018 SCC 58, [2018] 3 SCR 599. “Jackson J.A.” Jackson J.A. “Caldwell J.A.” Caldwell J.A. “Tholl J.A.” Tholl J.A.