R v Potoreyko, 2022 SKCA 70

Court of Appeal for Saskatchewan Docket: CACR3507 Citation: R v Potoreyko , 2022 SKCA 70 Date: 2022-06-10 Between: Alexander William Potoreyko Appellant And Her Majesty the Queen Respondent Before: Richards C.J.S., Schwann and Leurer JJ.A. Disposition: Conviction appeal dismissed; leave to appeal sentence allowed, sentence appeal allowed in part Written reasons by: The Honourable Madam Justice Schwann In concurrence: The Honourable Chief Justice Richards The Honourable Mr.

Justice Leurer On appeal from: CRM 12 of 2020 (QB), Melfort Appeal heard: May 13, 2022 Counsel: Alexander Potoreyko, on his own behalf Kelly Kaip for the Respondent Schwann J.A. I. INTRODUCTION [ 1 ] Following a judge-alone trial, Alexander Potoreyko was convicted by a Court of Queen’s Bench judge of resisting arrest contrary to s. 129 (

a) of the Criminal Code . By way of sentence, he was granted a conditional discharge, subject to a ten-month probation order, which included, among other things, the following condition: “Prepare a written apology to Cst. Matt Dowden approved by your probation officer and deliver that apology as told to do so by your probation officer”. [ 2 ] Mr. Potoreyko appeals from both conviction and sentence, albeit his appeal from sentence is limited to the apology condition. [ 3 ] For the reasons discussed below, Mr. Potoreyko’s appeal from conviction must be dismissed.

However, I would grant him leave to appeal the sentence and allow that appeal to the extent of deleting the apology as a condition attached to his probation order. II. CONVICTION APPEAL [ 4 ] In his notice of appeal, Mr. Potoreyko says the trial judge erred by (

a) failing to recognize that Cst. Matt Dowden had lied in court, (

b) failing to accept his testimony to the effect that he needed his nitroglycerin sublingual pump to alleviate angina pain, which was brought on by stress, the cold temperature and physical exertion, and (

c) failing to consider that he had not yet had supper. [ 5 ] There were only two witnesses at trial: the Crown called Cst. Dowden and Mr. Potoreyko testified in his own defence. The trial judge observed that much of the evidence of those two witnesses was not in dispute and that it only diverged with regard to what had transpired at Mr. Potoreyko’s farmyard. [ 6 ] Constable Dowden testified that he had given Mr. Potoreyko a courtesy call, requesting that he voluntarily attend the detachment for fingerprinting in connection with an animal cruelty charge. He warned Mr.

Potoreyko that if he failed to comply, a warrant would be issued for his arrest. Mr. Potoreyko failed to attend for the required fingerprinting. [ 7 ] Roughly one week later, on February 19, 2019, Cst. Dowden encountered a vehicle driven by Mr. Potoreyko while he was on patrol near Porcupine Plain, Saskatchewan. Knowing that a warrant was out for Mr. Potoreyko’s arrest, Cst. Dowden engaged his emergency lights and siren to conduct a traffic stop. However, Mr. Potoreyko did not stop. He continued in the direction of his farmyard, where he eventually parked his vehicle. [ 8 ] According to Cst.

Dowden, once they arrived at the farmyard, Mr. Potoreyko exited his vehicle and proceeded immediately toward his house. When Cst. Dowden informed him that he was under arrest, Mr. Potoreyko replied by saying, “I don’t have the time for this” and that he was tired and continued to walk toward his house. Constable Dowden then grabbed Mr. Potoreyko by his left arm to restrain him, but Mr. Potoreyko pushed him aside, causing the officer to fall against another vehicle. Constable Dowden testified that, in his effort to restrain Mr. Potoreyko, they scuffled a bit, which led him to take Mr.

Potoreyko down with a sweep kick to gain the upper hand. Mr. Potoreyko was then handcuffed, read his Charter rights, and given a police warning. According to Cst. Dowden, while the two of them stood next to the police vehicle, Mr. Potoreyko complained of a racing heart. Constable Dowden testified that he had observed no signs of distress prior to that point. [ 9 ] Constable Dowden took Mr. Potoreyko to a nearby hospital, where he was treated and then released from police custody two hours later on a promise to appear. While at the hospital, Mr. Potoreyko apologized to Cst.

Dowden for not stopping but qualified the apology by stating that he did not stop because he felt fingerprinting was not that important and he was tired. [ 10 ] Mr. Potoreyko testified that, because of their previous professional and personal interactions, he felt Cst. Dowden was going out

of his way to pick on him, and he was fearful the officer would take him to jail. He conceded that, while driving to his farmyard, he sawCst. Dowden turn around and engage his emergency lights and siren, but said that he became anxious because of the outstanding warrantand his fear of going to jail. He said it was very cold that night, he did not want to stop, he needed his medication, he was tired, and hadnot eaten. [11] While Mr. Potoreyko conceded that Cst. Dowden had told him he was under arrest when they first arrived at his farmyard, heclaimed Cst.

Dowden also instructed him to put his hands up and told him that he would be spending the night in jail. Mr. Potoreykotestified that when Cst. Dowden grabbed his left arm, he immediately pulled away because it caused him a great deal of pain due to a pre-existing shoulder problem. He agreed that Cst. Dowden put him to the ground and that he had to ask for help several times to get up. Healso testified that, when they were in the police vehicle, Cst.

Dowden told him that he had considered tasering him but did not have a taseron hand. [12] The trial judge framed the issue at trial as “whether or not the Crown has proven beyond a reasonable doubt that Mr. Potoreykoresisted arrest and whether his resistance was lawful” (R v Potoreyko (21 October 2021) Melfort, CRM 12 of 2020 (Sask QB)). Heunderstood that the Crown’s case turned on the credibility of the witnesses. The trial judge then made the following findings of fact: (

a) Mr. Potoreyko had been advised by Cst. Dowden that he needed to provide his fingerprints the week before the incident inquestion; (

b) there was a warrant out for Mr. Potoreyko’s arrest for failure to present himself for fingerprinting, and Mr. Potoreyko hadbeen advised of the outstanding warrant; (

c) on the evening in question, Mr. Potoreyko did not pull over when Cst. Dowden turned on his emergency lights and siren –even though he knew he should – and he continued on to his farmyard instead; (

d) the first time Mr. Potoreyko expressed a need for his heart medication was at the police vehicle, after his arrest; (

e) when Cst. Dowden grabbed Mr. Potoreyko’s arm, Mr. Potoreyko said, “I don’t have time for this”; and (

f) Mr. Potoreyko gave a voluntary statement to Cst. Dowden at the hospital to the effect that he had not stopped because he didnot think fingerprinting was that important. [13] The trial judge concluded by stating as follows: It is clear that Mr. Potoreyko has health issues and that he is a person of increased age. Perhaps Constable Dowden was more aggressive inpursuing this arrest than he absolutely needed to be, but the fact is there was a warrant for Mr. Potoreyko’s arrest and one of the duties ofthe -- an RCMP officer is to execute warrants. This, he did. Mr.

Potoreyko knew he should stop when the constable engaged his flashinglights and siren, but made the decision not to do so. If he needed his medication so badly, that should have been the first utterance out ofhis mouth in the farmyard. It was not. [14] An appellate court cannot simply substitute its opinion for that of a trial judge or consider the trial evidence afresh and come toits own determinations of the matter. Rather, pursuant to s. 686 of the Criminal Code, on an appeal against a conviction, an appellate courtis only empowered to allow the appeal (

a) where the verdict is unreasonable and cannot be supported by the evidence, (

b) on a question oflaw, or (

c) where there is a miscarriage of justice. [15] Mr. Potoreyko’s argument does not reveal the kind of error that would allow for appellate intervention. Instead, taken at itshighest, Mr. Potoreyko can be understood to assert that the verdict should be set aside because the trial judge failed to accept his version ofevents. [16] At root, this argument is simply an attack on the credibility findings made by the trial judge. As a matter of law, a trial judge’sassessment of credibility is a question of fact that is subject to a narrow and deferential standard of appellate review.

In circumstanceswhere, as here, an appellant’s unreasonable verdict argument rests on allegations of error with respect to credibility, appellate interventionis unlikely because “a verdict based on assessments of credibility will not be unreasonable unless it ‘cannot be supported by anyreasonable view of the evidence’” (emphasis in originals, R v R.D.A., 2015 SKCA 100, 465 Sask R 313, leave to appeal to SCC refused, [R.D.A.]): see also R v Arno, 2022 SKCA 55 at para 6 [Arno]. As such, unless Mr.

Potoreyko can point to an error oflaw in the credibility assessment process itself (which, in my view, he did not), the question for this Court is “whether an impugnedfinding of credibility is sufficiently supported by the evidence and involves no palpable and overriding error” (Arno at para 6).

A palpableerror means an error that is obvious, and an overriding error is “an error that goes to the very core of the outcome of the case” (Canada vSouth Yukon Forest Corporation, 2012 FCA 165 at para 46, 4 BLR (5th) 31, leave to appeal to SCC refused, ). [17] The need for appellate deference in matters of credibility is underscored by the “intangible advantage” a trial judge has “ofwatching and hearing the witnesses …” (R v M.F.T., 2012 BCCA 428 at para 22, 329 BCAC 84): see also R v W.(R.), (SCC), [1992] 2 SCR 122 at 131–132; R v Biniaris, 2000 SCC 15 at para 36, [2000] 1 SCR 381 [Biniaris]; R v W.H., 2013 SCC 22 atpara 32, [2013] 2 SCR 180; and R v Brunelle, 2022 SCC 5 (WL) at para 5 [Brunelle].

It is for the trier of fact to determine the weight tobe assigned to a witness’s evidence generally and to any inconsistency or flaw in that evidence more particularly. Furthermore, it isestablished law that a trier of fact “may accept some of the witness’s evidence while rejecting other parts of it …” (R v François, (SCC), [1994] 2 SCR 827 at 837).

Justice Caldwell summarized these concepts in R.D.A., in this way: [6] In other words, it is for the trier of fact to assess the significance of any inconsistencies perceived in a witness’s testimony and todetermine whether or not to believe the witness, in whole or in part, notwithstanding those inconsistencies (see: R v François, (SCC), [1994] 2 SCR 827 at 836; R v W.H., 2013 SCC 22 at para 32, [2013] 2 SCR 180; and R v Leroux, 2015 SKCA 48 at para 38,430 Sask R 162); but, that determination also turns on the demeanour of the witness and the common sense of the trier of fact—mattersthat are not readily susceptible to re-assessment by an appellate court: R v François at p. 837.

This does not preclude appellate interventionbut, to intervene, the court must be able to find that a trial judge has committed a palpable and overriding error: H.L. v Canada (AttorneyGeneral), 2005 SCC 25, [2005] 1 SCR 401; Housen v Nikolaisen, 2002 SCC 33, [2002] 2 SCR 235; and R v Gagnon, 2006 SCC 17 at

para 10, [2006] 1 SCR 621. [18] Respectfully, I see no basis for appellate intervention in the circumstances of this case. The trial judge rejected Mr. Potoreyko’sversion of what happened after the parties arrived at the farmyard. It was open for him to do so. While a rejection of defence evidencedoes not automatically mean that the Crown’s evidence must be accepted, the trial judge did not do that. He assessed the evidence as awhole and provided a reasoned basis for why he found Cst. Dowden’s account of events to be more credible and reliable.

I see no palpableand overriding error with that finding. [19] Neither am I persuaded that the verdict is unreasonable and cannot be supported by the evidence. Where this sort of argumentis advanced on appeal in relation to a trial judge’s assessment of credibility, an appellate court “cannot interfere with those assessmentsunless it is established that they ‘cannot be supported on any reasonable view of the evidence’” (R v R.P., 2012 SCC 22 at para 10, [2012]1 SCR 746, quoting R v Burke, (SCC), [1996] 1 SCR 474 at para 7).

This, too, is a high hurdle to overcome because, asnoted in R.D.A. “a verdict based on assessments of credibility will not be unreasonable unless it ‘cannot be supported by any reasonableview of the evidence’” (underline emphasis in original, italic emphasis added in R.D.A. at para 4, quoting Burke at para 7). [20] For the reasons discussed above, Mr. Potoreyko’s appeal from conviction must be dismissed. III. SENTENCE APPEAL [21] Mr. Potoreyko seeks to set aside a condition of his probation order that requires him to write an apology to Cst. Dowden in theform approved by his probation officer. Mr.

Potoreyko is adamant that he cannot do so because, in his view, Cst. Dowden threatened andassaulted him physically on a cold winter night. [22] The impugned condition arises from the terms of the conditional discharge order that were imposed on Mr. Potoreyko in lieu ofa conviction. Pursuant to s. 730(1), a trial judge may, if considered to be “in the best interests of the accused and not contrary to the publicinterest”, instead of convicting the accused, direct “that the accused be discharged absolutely or on the conditions prescribed in aprobation order made under subsection 731(2)”.

The power to craft probation terms unique to the offender and the circumstances of theoffence is contained in s. 732.1(3). It provides as follows: Optional conditions of probation order 732.1(3) The court may prescribe, as additional conditions of a probation order, that the offender do one or more of the following: … (

h) comply with such other reasonable conditions as the court considers desirable, subject to any regulations made under subsection738(2), for protecting society and for facilitating the offender’s successful reintegration into the community. [23] In R v Shoker, 2006 SCC 44, [2006] 2 SCR 399 [Shoker], the Supreme Court commented as follows about the residual powercontained in s. 732.1(3)(h): [13] Before discussing the issue that arises in this case, I wish to make a few general comments about the power to impose optionalconditions under s. 732.1(3). The residual power under s. 732.1(3)(

h) speaks of “other reasonable conditions” imposed “for protectingsociety and for facilitating the offender’s successful reintegration into the community”. Such language is instructive, not only in respect ofconditions crafted under this residual power, but in respect of the optional conditions listed under s. 732.1(3): before a condition can beimposed, it must be “reasonable” in the circumstances and must be ordered for the purpose of protecting society and facilitating theparticular offender’s successful reintegration into the community.

Reasonable conditions will generally be linked to the particular offencebut need not be. What is required is a nexus between the offender, the protection of the community and his reintegration into thecommunity. See, for example, R. v. Kootenay (2000), 2000 ABCA 289 , 150 C.C.C. (3d) 311 (Alta. C.A.), and R. v. Traverse(2006), 2006 MBCA 7, 205 C.C.C. (3d) 33 (Man. C.A.), where appellate courts have upheld conditions requiring abstinence from alcoholor drugs even though these played no

part in the commission of the offence for which the offender was sentenced. On the other hand,conditions of probation imposed to punish rather than rehabilitate the offender have been struck out: R. v. Ziatas (1973), (ON CA), 13 C.C.C. (2d) 287 (Ont. C.A.); R. v. Caja (1977), (ON CA), 36 C.C.C. (2d) 401 (Ont. C.A.); R. v.Lavender (1981), (BC CA), 59 C.C.C. (2d) 551 (B.C.C.A.); R. v. L. (1986), 1986 ABCA 83 , 50 C.R. (3d) 398(Alta. C.A.). In contrast, punitive conditions may be imposed pursuant to s. 742.3(2)(

f) as part of a conditional sentence: Proulx, [2000SCC 5] at para. 34. See also R v Serafino, 2021 SKCA 29 at para 19 [Serafino]. [24] An appeal from sentence is subject to a deferential standard of review. An appellate court may only “intervene to vary asentence if (1) the sentence is demonstrably unfit … or (2) the sentencing judge made an error in principle that had an impact on thesentence …” (R v Friesen, 2020 SCC 9 at para 26, 444 DLR (4th) 1 [Friesen]).

Errors in principle that justify appellate interventioninclude errors of law, the failure to consider a relevant factor, or the erroneous consideration of aggravating or mitigating factors. [25] In my view, the apology condition that was imposed on Mr. Potoreyko is the product of an error in principle that invites judicialintervention.

As noted in Serafino, the “plain language of [s. 732.1(3)(h)] instructs, ‘before a probation condition can be imposed, it mustbe “reasonable” in the circumstances and must be ordered for the purpose of protecting society and facilitating the particular offender’ssuccessful reintegration into the community’” (at para 19, quoting Shoker at para 13). [26] Respectfully, there are several reasons why the apology condition fails to meet the requirements of that provision. First, thetrial judge was aware that Mr. Potoreyko had already apologized to Cst. Dowden at the hospital for not pulling over.

The need for anotherapology was not explained in his reasons. Second, while the Crown had suggested the inclusion of this sort of condition, it was notadvanced with any vigour. After raising this condition as a possibility, Crown counsel’s submission was decidedly tepid: “I know that

there might be some appetite, or maybe not some appetite for this. … Crown is not fixated on whether or not that apology does take -- or does occur”. Third, the trial judge noted that “[p]erhaps Constable Dowden was more aggressive in pursuing this arrest than he absolutely needed to be …”. Given this unusual finding, and the circumstances as a whole, I find it hard to fathom how forcing Mr.

Potoreyko to prepare a written apology was reasonable. [ 27 ] Further, as noted by the Supreme Court in Shoker , there must be a nexus between the offender and the purpose served by the condition: that is, “for protecting society and for facilitating the offender’s successful reintegration into the community”. At the time of the offence, Mr. Potoreyko was 73 years of age and suffering from serious health issues. He had no prior criminal record.

How society needed to be protected in circumstances such as this was not explained by the trial judge or the Crown on appeal. [ 28 ] In addition to the protection of society purpose, s. 732.1(3)(

h) requires there to be a nexus between the offender and their successful reintegration into the community. The Criminal Code does not define this word. One definition of reintegration includes, “Re- establishment or restoration of a previous condition … Restoration of a person to a previous status, condition, etc.” ( Oxford English Dictionary Online (Oxford University Press, March 2022) sub verbo “reintegration”).

Since the issue was never argued, I leave for another day whether it is appropriate to attach a condition of the sort made here in circumstances where an accused was never incarcerated and, arguably, was not in a position where he needed to be reintegrated back into society. [ 29 ] In my view, the error in principle had an impact on sentence that warrants judicial intervention. In the result, Mr. Potoreyko’s appeal from sentence is allowed to the limited extent of deleting the apology condition. IV. CONCLUSION [ 30 ] Mr.

Potoreyko’s conviction appeal is dismissed. [ 31 ] Leave to appeal from the sentence imposed is allowed and the sentence is varied, in part, by striking the apology condition. “Schwann J.A.” Schwann J.A. I concur. “Richards C.J.S.” Richards C.J.S. I concur. “Leurer J.A.” Leurer J.A.