R v Potoreyko, 2022 SKCA 71

Court of Appeal for Saskatchewan Docket: CACR3482 Citation: R v Potoreyko, 2022 SKCA 71Date: 2022-06-10 Between:Alexander William PotoreykoAppellantAndHer Majesty the QueenRespondentBefore: Richards C.J.S., Schwann and Leurer JJ.A.Disposition: Leave to appeal deniedWritten reasons by: The Honourable Madam Justice SchwannIn concurrence: The Honourable Chief Justice Richards The Honourable Mr. Justice LeurerOn appeal from: CRM 19 of 2019 (QB), MelfortAppeal heard: May 13, 2022Counsel: Alexander Potoreyko, on his own behalf Kelly Kaip for the Respondent Schwann J.A. [1] Following a trial before a Provincial Court judge, Alexander William Potoreyko was convicted of (

a) wilfully causingunnecessary pain, suffering or injury to cattle contrary to s. 445.1(1)(

a) of the Criminal Code and (

b) causing or permitting cattle to be orcontinue to be in distress contrary to s. 4 of The Animal Protection Act, 1999, SS 1999, c A-21.1, as repealed by The Animal ProtectionAct, 2018, SS 2018, c A-21.2, s 4. He received a $2,000 fine on the Criminal Code charge and a $5,000 fine on the provincial charge: R vPotoreyko (19 June 2019) Melfort (Sask Prov Ct) [Trial Decision]. In addition to the fine imposed, Mr.

Potoreyko was prohibited fromowning, possessing or having custody or control of any cattle for ten years and was given until November 15, 2019, “to dispose of anycattle that he owns or that are currently in his care”. [2] Mr. Potoreyko appealed the Trial Decision to the Court of Queen’s Bench pursuant to s. 813 of the Criminal Code. TheQueen’s Bench judge who heard the matter quashed the conviction under The Animal Protection Act, 1999, on the basis of the principleexplained in R v Kienapple, (SCC), [1975] 1 SCR 729, but dismissed Mr.

Potoreyko’s appeal from conviction andsentence on the Criminal Code charge: R v Potoreyko, 2021 SKQB 212 [QB Decision]. Mr. Potoreyko appeals the QB Decision to thisCourt pursuant to s. 839 of the Criminal Code. [3] Mr. Potoreyko’s appeal must be put in the proper jurisdictional context.

Part XXVII of the Criminal Code provides for rightsof appeal of a person convicted of a

summary conviction offence. A person so convicted has a first-level right of appeal to a

summaryconviction appeal court under s. 813(a), which is defined to be the Court of Queen’s Bench for Saskatchewan in this province. [4]

Section 839 of the Criminal Code allows for a further right of appeal to this Court from the Court of Queen’s Bench sitting asa

summary conviction appeal court. Section 839(1) provides “an appeal to the court of appeal as defined in

section 673 may, with leave ofthat court or a judge thereof, be taken on any ground that involves a question of law alone …” (emphasis added). What this means is that,although there is a right of appeal to this Court, it is a qualified right in the sense that leave is required in order for the appeal to be heardon its merits and that the appeal can only be taken on a question of law. [5] The test for granting leave is demanding.

Not only must the appeal raise a question of law, but the appellant must alsoestablish that the proposed appeal is either “significant to the administration of justice generally” or “compellingly meritorious in theparticulars of the case in question” (R v Bray, 2017 SKCA 17 at para 2 [Bray]).

As this Court remarked in Bray, the factors that inform theCourt’s assessment of the two criteria include “whether the offence is serious, whether the applicant is facing a significant deprivation ofliberty and whether denial of leave would result in an injustice that goes unaddressed” (at para 2). [6] With those qualifications in mind, I understand Mr. Potoreyko to argue that the Queen’s Bench judge erred in his assessmentof whether the trial judge had rendered sufficient assistance to him as a self-represented accused during the course of his trial. He says thatthe trial judge failed to do her job.

When pressed to provide specifics, Mr. Potoreyko, pointing to the following examples, said the trialjudge erred or failed to provide assistance: (

a) by recanting from an earlier decision allowing him to call “bovine witnesses” or to step out of the court room to view them; (

b) by refusing to allow him to quote from the bible or a magazine article; (

c) by accepting the evidence of the Crown witnesses who had denied certain suggestions that had been put to them by him oncross-examination; and (

d) by conducting the trial in an intimidating and biased fashion. [7] Where an accused is self-represented at trial, trial judges are required to render a level of assistance to them so that thedefences available to an accused are presented with full force and effect. The overarching focus must remain on the question of trialfairness and whether the failure to assist a self-represented accused would render the trial unfair: see R v Bialski, 2018 SKCA 71 atpara 47, [2018] 11 WWR 65, leave to appeal to SCC refused, , and R v Olenick, 2010 MBCA 107 at para 7, 262 Man

R (2d) 15 [Olenick]. The question of “how much assistance” a trial judge should give a self-represented accused is a matter of discretionthat is “entitled to deference on appeal” (R v Cathcart, 2019 SKCA 90 at para 78, 380 CCC (3d) 357).

Issues of trial fairness and whetherthere has been a miscarriage of justice are questions of law. [8] As discussed in R v Forrester, 2019 ONCA 255, 375 CCC (3d) 279, not every breach of a trial judge’s obligation to assist aself-represented accused will render the trial unfair: “it is the cumulative effect of any errors that the court needs to consider” indetermining if the lack of guidance compromised the self-represented accused’s ability to bring out their defence with full vigour andeffect (emphasis in original, at para 17): see also Olenick at para 8. [9] However, the failure to assist a self-represented accused does not give rise to a free-standing ground of appeal.

It simply raisesthe prospect of appellate intervention on grounds of a miscarriage of justice, pursuant to s. 686(1)(a)(iii) of the Criminal Code. [10] Before turning to Mr. Potoreyko’s specific allegations, I find it useful to briefly set out the general obligations of a trial judge,since Mr. Potoreyko’s arguments largely challenge how the trial judge conducted this trial. As noted in The Honourable S. Casey Hill,David M. Tanovich and Louis P.

Strezos, McWilliams’ Canadian Criminal Evidence, loose-leaf (Rel 1, February 2022) 5th ed (Toronto:Thomson Reuters, 2013) (WL) [McWilliams’], a trial judge exercises a number of functions, with the overarching objective of conductinga trial that is fair to both sides. They are responsible for ruling on the competency and compellability of witnesses and responsible forensuring that only admissible and relevant evidence is admitted. A trial judge is also responsible for trial management (McWilliams’): §1:13.

The Theoretical Underpinnings – The Role of the Trial Judge … • The trial judge is also vested with discretion to manage the trial to “permit the effective control of a trial, to ensure fairness towitnesses and to foster clarity in the evidence” (R. v. Watson (1994), (ON CA), 191 C.C.C. (3d) 144 (Ont. C.A.), atp. 148).

For example, a trial judge may “properly intervene to focus the evidence on the matters in issue, to clarify evidence, to avoidirrelevant or repetitive evidence, to dispense with proof of obvious or agreed matters, and to ensure that the way a witness is answering ornot answering questions does not unduly hamper the progress of the trial” (R. v. Hamilton (2011), 2011 ONCA 399 , 271 C.C.C.(3d) 208 at para. 48 (Ont. C.A.), leave to appeal to S.C.C. refused [2011] S.C.C.A. No. 547). (Footnotes omitted) [11] Mr.

Potoreyko insists the trial judge had agreed that he could call what he describes as bovine witnesses at trial. With respect,the transcript discloses no such thing. On October 24, 2017, prior to the commencement of trial, the trial judge asked the parties howmany witnesses they planned to call. This exchange occurred: Discussion THE COURT: All right. How many Crown witnesses? THE ACCUSED: At least five or six. I can bring my whole cow herd here, if you wish. I don’t mean to be sacrilegious or whatever here,but they can testify too.

But animals can’t speak; and these people seem to think that they can and, in fact, they can tell I’m distressed. Butthat’s my opinion, Your Honour. I hope you respect it. THE COURT: Well, actually -- MR. ROGERS [Crown counsel]: Three witnesses for the -- THE COURT: -- for the Crown, three witnesses? MR. ROGERS: Three witnesses for the Crown, Your Honour. As can be seen, before Crown counsel could respond, Mr. Potoreyko interjected, and the discussion never returned to Mr. Potoreyko’sbovine witness suggestion, although other defence witnesses were suggested by Mr.

Potoreyko: “one of my witnesses is present … Butthere are other people that are willing”. As I interpret the record, the trial judge did not rule on Mr. Potoreyko’s request to be allowed tocall bovine witnesses, and thus, contrary to his assertion, there is no evidence that she had agreed to view the bovine witnesses either inthe courtroom or in a trailer parked outside the courthouse. [12] However, the issue came up again on April 23, 2019, when the following exchange took place: THE ACCUSED: I’ve at least got six or eight -- THE COURT: Yeah.

THE ACCUSED: -- and plus I have some bovine witnesses, I explained -- THE COURT: M-hm. THE ACCUSED: -- to you and they’ll be brought in in a trailer here on display. Most of those [charges], Your Honour, is to do with theanimal that I preserved, that [the animal protection officers] have tried to wantonly waste on three different occasions, that’s the one I referto as the limper. And she’ll be a Crown witness. THE COURT: I can assure you, sir, that you are not bringing cattle to court. Don’t even go there. THE ACCUSED: No, I’ll bring the trailer --

THE COURT: No, you’re not bringing anything to court. THE ACCUSED: Why? THE COURT: If you’ve got pictures from when this occurred, that’s one thing. Bringing cattle in 2019 is not relevant to your case. Don’teven bother trying. It’s not going to fly. THE ACCUSED: Why did you permit me to do that back in 2017? THE COURT: No, I didn’t permit you to do that in 2017. THE ACCUSED: Your Honour, you did. [13] As discussed above, it was the trial judge’s obligation to ensure that only relevant and admissible evidence got before the courtand to properly manage the trial.

Having an out-of-court viewing of the cattle, as they existed several years after the dates of the allegedoffences, may not have been particularly relevant to the issues at trial. In any event, it was a highly unusual request that the trial judge wasnot obliged to accede to. She gave Mr. Potoreyko other options in which he could adduce evidence about the state of his cattle. I see noerror of law in any of this. [14] Next, Mr. Potoreyko says the Queen’s Bench judge erred in assessing how the trial judge dealt with the credibility of theCrown’s witnesses.

During the course of his cross-examination of those witnesses, Mr. Potoreyko had either argued with or challengedthem on their testimony. In many instances, the witnesses simply denied the proposition that he put to them. He is of the belief that adenial is the equivalent of lying. [15] The fact that Mr. Potoreyko put suggestions to the witnesses in cross-examination that they denied or disputed does not meanthey were untruthful. They simply did not agree with his point of view.

In any event, it was for the trial judge to assess the credibility andreliability of each witness, and it was open to her to accept all, part or none of the evidence proffered by the Crown’s witnesses. [16] Neither do I find Mr. Potoreyko’s proposition that the trial judge was intimidating or biased supported by the record. While thetrial judge may have been sharp or abrupt with him at times in conducting the trial, she was obliged to ensure that only relevant andadmissible evidence got before the court and that the trial was properly managed.

The trial judge cannot be faulted for trying to ensure thatthe hearing followed the standard procedures for a criminal proceeding. While Mr. Potoreyko may have had it in his mind that the trialshould be conducted in a certain way, that he could say what he wanted when he wanted, or that he could repeatedly interrupt the flow ofthe trial, this was a misconception on his part. As I read the transcript, Mr. Potoreyko was only curtailed in the way he wanted the trial torun.

Failure to conduct the trial in a manner consistent with his views of the proper order and presentation of things was neither an error oflaw, nor did it amount to a failure to provide adequate assistance to him. [17] Apart from those matters, in Mr. Potoreyko’s oral presentation before this Court, he did little more than point to certainstatements in the QB Decision, including passages of law that the Queen’s Bench judge had quoted, without articulating a specific error inconnection with those excerpts.

For my part, I am unable to identify a question of law arising from the portions of the judgement he drewattention to. As I see it, Mr. Potoreyko simply takes issue with the way in which the Queen’s Bench judge expressed himself. That is not abasis for appellate intervention. [18] Finally, even if Mr. Potoreyko’s arguments raise questions of law, on the basis of the record, which I have carefully reviewed, Iam not satisfied that his grounds of appeal from conviction are compellingly meritorious or that they raise questions that are fundamentalto the criminal justice system.

As such, leave to appeal the conviction part of the QB Decision must be denied. [19] With that, I turn to Mr. Potoreyko’s sentence appeal. He argues the Queen’s Bench judge erred in upholding the Criminal Codesentence by referencing the 2019 amendments to s. 445.1 of the Criminal Code, which were not in force at the time of the trial: i.e., An Actto amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts, SC2019, c 25, s 172 [2019 Criminal Code Amendment].

He takes issue with the Queen’s Bench judge’s observation that the cattle were indistress by asking how that could be so in light of the evidence about how Billy Boy (a bull) had sustained his injuries at birth.Mr. Potoreyko also challenges the Queen’s Bench judge’s statement that he lacked remorse. As he put it, how could he possibly haveremorse given the questionable behavior exhibited by the animal protection officer. Finally, and most importantly for Mr. Potoreyko, hesays the Queen’s Bench judge failed to appreciate the gravity of the sentence that was imposed on him in suggesting that (

a) with acriminal record, he will be unable to travel to Germany to see his daughter, (

b) the $2,000 fine is a lot of money for him personally, and(

c) the ten-year prohibition on cattle ownership effectively ends his ranching career, even though he was planning to get out of thebusiness several months later. [20] Once again, these arguments must be considered in light of s. 839 of the Criminal Code. To refresh, an appeal under s. 839 isrestricted to questions of law.

In a long series of decisions from this Court, beginning with R v Thue (1995), (SK CA),134 Sask R 187 (CA), it has been consistently held that the appropriateness or fitness of a sentence is not a question of law and that anappellate court has no authority to entertain an application for leave to appeal a sentence on that basis.

Justice Jackson most recentlydiscussed these principles in R v Grover, 2020 SKCA 40, where she said as follows: [12] In my view, Thue is directed to arguments relating to an aspect of the application of the proportionality principle to a sentence, i.e.,the appropriateness or fitness of a sentence. Justice Vancise, speaking for this Court in Thue, made this point plain: [7] This issue of whether the fitness of a sentence is a question of law alone has been considered by a number of courts of appeal inCanada. Chevalier, J. (ad hoc), speaking for the majority in R. v.

Guida (1989), (QC CA), 51 C.C.C.(3d) 305 (Que.C.A.) summed up the almost unanimous position of the appellate courts in Canada in these words: Moreover, it appears to me to be impossible to conclude that the imposition of a sentence which is too severe, or which is not sufficientlysevere, may constitute an error of law. A sentence which is not adequate is not an unlawful sentence. In rendering sentence, the judgeexercises his discretion and in the absence of a provision which would make it subject to review on the sole ground that it is inadequate,

for example, in ss. 687 and 822(6), one cannot consider that a mere error in the appreciation of the quantum of the sentence is a questionof law. (p. 311) [13] Justice Vancise continued by emphasizing that it is the “appropriateness or fitness of a sentence” that is not a question of law (atpara 10), leaving room for a court of appeal to assume jurisdiction to consider an appeal from a sentence if an appellant identifies an errorof law that is “so bound up with the sentence that is should be held to be inherent in it” (R v Paterson, (BC CA), [1963]2 CCC 369 (BCCA) at 373).

Justice Vancise emphasized this point: [10] The appropriateness or fitness of a sentence is not a question of law. It is only when a sentence is not permitted by statute, andtherefore illegal, as in R. v. Loughery (1992), 1992 ABCA 196 , 73 C.C.C.(3d) 411 at 414 (Alta. C.A.) or where there is an errorof law, that is “so bound up with the sentence that it should be held to be inherent in it” as in R. v. Paterson, (BC CA),[1963] 2 C.C.C. 369 (B.C.C.A.) at 373, that the error in law permits a court of appeal to consider a sentence appeal from the

summaryconviction appeal court. (Emphasis in original) [21] As I see it, the only question of law raised by Mr. Potoreyko is his assertion that the Queen’s Bench judge wrongly applied the2019 Criminal Code Amendment: the thrust of which is to increase the maximum term of imprisonment of the offence for which he wasconvicted from 18 months to two years less a day. The upper-end fine remained unchanged. [22] Respectfully, while it would have been an error for the Queen’s Bench judge to have upheld the original sentence based on thisamendment, I do not interpret the QB Decision as doing this.

After pointing out that the 2019 Criminal Code Amendment received royalassent on June 21, 2019, being two days after he was convicted, the Queen’s Bench judge stated as follows: “Mr. Potoreyko would beentitled to be sentenced on the lower maximum” (QB Decision at para 83). This passage demonstrates that the Queen’s Bench judge wascognizant of the need for Mr.

Potoreyko’s sentence to be assessed in the context of the legislation in existence at the time of conviction.Furthermore, as the Queen’s Bench judge went on to remark, the matter “was academic, since the Crown did not seek and the trial judgedid not impose any sentence for imprisonment” (at para 83). [23] The balance of Mr. Potoreyko’s arguments simply take issue with the appropriateness or fitness of the sentence and are not, inmy view, inextricably linked or bound up with some error of law so as to permit appellate intervention.

Absent an error of law that isinherent with the sentence imposed, this Court does not have jurisdiction to intervene. Further, even if there were an error of the kind thatsatisfies the jurisdictional requirements of s. 839, in deciding whether leave should be granted as per the test in Bray, this Court must bearin mind the deferential standard of review for appeals from sentence.

Put another way, quite apart from the jurisdictional hurdle, it is notthis Court’s role to set a sentence aside and remake it afresh, unless it was found to be demonstrably unfit or there was an error in principlethat had an impact on the sentence. I fail to see either. [24] In conclusion, leave to appeal from both conviction and sentence must be denied. [25] The prohibition order is amended to give Mr. Potoreyko until November 18, 2022, to dispose of any cattle that he owns or thatare currently in his care. “Schwann J.A.” Schwann J.A.I concur. “Richards C.J.S.” Richards C.J.S.I concur. “Leurer J.A.” Leurer J.A.