R v Stonechild, 2023 SKCA 130

Court of Appeal for Saskatchewan Docket: CACR3712 Citation: R v Stonechild , 2023 SKCA 130 Date: 2023-11-27 Between: J-Lodie Sunhop Stonechild Appellant And His Majesty the King Respondent Before: Schwann, Tholl and Kalmakoff JJ.A. Disposition: Leave to appeal denied Written reasons by: The Honourable Mr. Justice Kalmakoff In concurrence: The Honourable Madam Justice Schwann The Honourable Mr. Justice Tholl On appeal from: CRM-YT-00003-2023 (Sask KB), Yorkton Appeal heard: November 10, 2023 Counsel: Gulzaib Fida for the Appellant Aaron Fritzler for the Respondent Kalmakoff J.A. I. INTRODUCTION [ 1 ] After a

summary conviction trial in Provincial Court, J-Lodie Stonechild was convicted on charges of impaired driving, operating a vehicle with an excessive blood alcohol level, dangerous driving, and mischief [ Trial Decision ]. [ 2 ] Mr. Stonechild appealed the Trial Decision to the Court of King’s Bench. A judge of that Court, sitting as a

summary conviction appeal judge [appeal judge], dismissed his appeal ( R v Stonechild (19 June 2023) Yorkton, CRM-YT-00003-2023 (Sask KB) [ Appeal Decision ]). Mr. Stonechild now seeks leave to appeal to this Court. For the reasons that follow, I would deny his application; leave to appeal is not warranted in this case. II. BACKGROUND [ 3 ] The allegations against Mr. Stonechild were that, while he was intoxicated by alcohol, he drove a pickup truck dangerously on a road and then through a standing canola field, causing damage to the crop.

There was no dispute at trial about whether, at the relevant time, the vehicle had been driven in a manner that amounted to dangerous driving under the Criminal Code . Nor was there any dispute about whether Mr. Stonechild’s blood alcohol concentration had exceeded the legal limit, that his ability to drive had been impaired, or that damage had been caused to property that was not his. [ 4 ] The only live issue at trial was whether the Crown had proven beyond a reasonable doubt that Mr. Stonechild was the driver of the vehicle when these things occurred. The only direct evidence that identified that Mr.

Stonechild had been the driver was the testimony of a Crown witness who was a stranger to him, and who had had some brief interactions with the occupants of the suspect vehicle on the night in question. None of the police officers who were involved in arresting Mr. Stonechild or obtaining breath samples from him had seen him operating the vehicle. By the time police arrived on the scene, the vehicle had been abandoned. Its doors had been locked and the engine was not running. Mr.

Stonechild and another person, Jesse Ducharme, were found hiding a short distance away. [ 5 ] In addition to the testimony of the Crown’s eyewitness, there was circumstantial evidence that connected Mr. Stonechild to the vehicle, including the fact that he was found near where the vehicle had been abandoned. Prescription bottles and mail bearing Mr. Stonechild’s name had also been found in the console and behind the driver’s seat of the vehicle, and his mother was the vehicle’s registered owner. Furthermore, there was evidence that Mr.

Stonechild had said various things to police officers following his arrest that the Crown asserted were admissions that he had been the driver. [ 6 ] Mr. Stonechild testified in his own defence. He said that he had been in the vehicle at the relevant time, but only as a backseat passenger, and that his cousin, Nathan Stonechild [Nathan], had been the driver. Nathan also testified and said essentially the same thing. [ 7 ] The trial judge rejected the evidence given by Mr. Stonechild and Nathan and concluded that the Crown had proven Mr. Stonechild’s guilt beyond a reasonable doubt. [ 8 ] At his

summary conviction appeal in the Court of King’s Bench, Mr. Stonechild raised three interrelated arguments. The first of these was that the trial judge had erred by convicting him even though she had concluded that the Crown’s evidence did not prove his guilt beyond a reasonable doubt. This argument was based upon Mr. Stonechild’s assertion that the trial judge had found him guilty, notwithstanding her conclusion that the testimony of the identification eyewitness, standing alone, would not have been sufficient to prove his guilt. The appeal judge rejected this argument, saying: [18] In

summary, I do not accept [Mr. Stonechild’s] characterization of the trial judge’s use of the evidence. Her identification of the

frailties of eyewitness accounts was not a rejection of [the identification witness]’s evidence, but a need for corroborative evidence. That evidence she amply found and described in her decision. [ 9 ] Mr. Stonechild’s second argument on the

summary conviction appeal was that the trial judge had erred by convicting him “on the basis of evidence that she did not accept, rather than on the basis of evidence she did accept”. Under this ground Mr. Stonechild asserted that the trial judge had used her rejection of the evidence he and Nathan had provided as proof of his guilt. The appeal judge also dismissed this argument, saying: [24] …I see nothing inconsistent between the trial judge’s reliance upon the Crown’s evidence to find that [Mr. Stonechild] was the driver and her rejection of [Mr. Stonechild’s] and [Nathan’s] testimony.

Indeed, the only way she could be convinced beyond a reasonable doubt by the Crown’s evidence was if she rejected the defence evidence. [ 10 ] The third argument Mr. Stonechild raised before the appeal judge was that the trial judge had erred by inferring his guilt from the fact that she disbelieved his alibi.

The assertion here was that the trial judge had disregarded the direction from R v Hibbert , 2002 SCC 39 , [2002] 2 SCR 445, namely, that “[e]ven if an alibi is advanced by the accused … and is rejected, the finding that the alibi is untrue cannot serve to corroborate or complement the case for the prosecution, let alone permit an inference that the accused is guilty” (at para 62). The appeal judge dismissed this argument too. In that regard, he said: [27] … I see little merit in this position. Having heard the testimony from [Mr.

Stonechild] and [Nathan], [the trial judge] was obligated to decide how much, if any, she was prepared to accept as credible and reliable. Such is the task of a trial judge. She did not find guilt by rejecting the alibi defence. She found guilt based on the Crown’s evidence. What she did find was that the defence of alibi was not convincing, a finding she was duty-bound to make. [ 11 ] The appeal judge also addressed, and rejected, Mr. Stonechild’s argument that the trial judge had erred by failing to consider whether Mr. Ducharme had been the driver of the vehicle.

On this point, the appeal judge observed that no evidence had been led at trial that suggested Mr. Ducharme had been the driver and, moreover, that the trial judge had expressly noted and understood the need to consider whether, at the end of the day, the Crown had proven that Mr. Stonechild was the driver, and that she was required to acquit Mr. Stonechild if she had a reasonable doubt about that fact, even if the doubt arose from an uncertainty about who the driver had been. [ 12 ] Accordingly, the appeal judge dismissed Mr. Stonechild’s appeal. III. ANALYSIS [ 13 ] Mr.

Stonechild seeks leave to appeal to this Court. Under s. 839 of the Criminal Code , the right to appeal against the result of a

summary conviction appeal is limited to questions of law alone and is exercisable only with leave of this Court or a judge of this Court. L eave to appeal under s. 839 is granted sparingly, and the test that an applicant must meet is demanding. In short, the applicant must establish that the proposed appeal raises a question of law that is either: (

a) significant to the administration of justice generally, in that it has legal implications that go beyond the four corners of the case; or (

b) compellingly meritorious in the particulars of the case in question, bearing in mind such considerations as the seriousness of the offence, whether the applicant is facing a significant deprivation of liberty and whether denial of leave would result in an injustice going unaddressed ( see: R v Bray , 2017 SKCA 17 at para 2 ; R v Potoreyko , 2022 SKCA 71 at para 5 ; R v Ochapowace Ski Resort Inc. , 2022 SKCA 58 at para 40 , [2022] 7 WWR 1; and R v Zheleznikov , 2023 SKCA 15 at para 5 ). [ 14 ] When considering the test for leave, it is important to be mindful of this Court’s role in proceedings under s. 839. An appeal to this Court under that

section is an appeal from the decision of the appeal judge. It is not a “second chance” appeal of the trial decision. B ecause of the limited nature of the right of appeal created by s. 839, we do not have jurisdiction to interfere with the Appeal Decision unless Mr. Stonechild can identify either a significant or compellingly meritorious error of law in it. [ 15 ] Mr. Stonechild seeks to advance three grounds of appeal in this Court that are very similar to those he had raised before the appeal judge.

He concedes that none of these proposed grounds concern questions of law that are of significance to the administration of justice generally, as they all involve the application of principles that are well-settled. Mr. Stonechild hangs his hat on the position that the points he raises are meritorious and that addressing them is necessary to prevent an injustice to him, in light of the fact that he faces a significant deprivation of liberty if the convictions are upheld. [ 16 ] Mr.

Stonechild’s first proposed ground of appeal alleges that the appeal judge erred by concluding there was “ample evidence” to support the verdict rendered by the trial judge. His submission here is that part of that “ample evidence” was the rejection of his alibi, which the trial judge had improperly treated as evidence of his guilt. Mr. Stonechild says the trial judge erred by concluding that his alibi had been fabricated in the absence of independent evidence of fabrication, and by effectively treating that finding as conclusive proof of his guilt.

He asserts that the appeal judge erred in law by failing to recognize these errors, and by failing to appreciate that, absent the improper inference the trial judge drew in that respect, the evidence could not have reasonably supported a conviction. [ 17 ] I would not grant leave to appeal in relation to this ground. While it raises allegations that the appeal judge erred in law, either by failing to recognize that the trial judge misapplied the law of evidence or by failing to find that the verdict was unreasonable, I do not see anything in these allegations that is compellingly meritorious.

The only indication in the record that even remotely suggests the trial judge made the error of which Mr. Stonechild accuses her is the proximity in the transcript of her finding that Mr. Stonechild and Nathan had lied in their testimony to her finding that the Crown had proven beyond a reasonable doubt that Mr. Stonechild was the driver. However, to read that as though the former finding was conclusive of the latter, or even that the former finding was a factor in the latter, is not a fair reading of the Trial Decision.

When the trial judge’s reasons are read in context and in their entirety, it is clear that she made her determination about whether the Crown had proven that Mr. Stonechild had been the driver on the basis of the evidence as a whole, and that she made no improper use of her conclusion about the credibility of the defence evidence . [ 18 ] Accordingly, I see no room to conclude that the appeal judge erred as alleged in this proposed ground of appeal.

[ 19 ] Mr. Stonechild’s second proposed ground of appeal, which is closely related to the first, is that the appeal judge erred by failing to recognize that the trial judge had improperly used his disbelieved alibi as proof of his guilt. [ 20 ] I am also not persuaded that leave to appeal should be granted in relation to this argument. Even assuming, without deciding, that what Mr. Stonechild and Nathan had provided was alibi evidence, I am unable to see how this proposed ground of appeal can be described as compellingly meritorious.

The appeal judge considered this very same argument, reviewed it in accordance with the leading authority from the Supreme Court of Canada, and determined that the trial judge had found Mr. Stonechild guilty on the basis of evidence that she accepted, and not because she viewed his rejected alibi evidence as proof of his guilt. I see nothing in Appeal Decision that suggests the appeal judge misunderstood the Trial Decision or that he misapplied the law. [ 21 ] Mr.

Stonechild’s final argument is that the appeal judge erred in law by not finding that the trial judge had failed to consider the possibility that a third person, Mr. Ducharme, had been the driver of the vehicle at the relevant time, as required under R v Villaroman , 2016 SCC 33 , [2016] 1 SCR 1000. [ 22 ] I see no basis to grant leave in relation to this proposed ground of appeal either as it, too, fails to meet the “compellingly meritorious” standard.

Although the trial judge did not explicitly refer to R v Villaroman or to the principle that a judge in a circumstantial evidence case must consider all reasonable inferences that the evidence supports that are inconsistent with guilt, a fair reading of her reasons is that she clearly recognized that she was required to determine whether, based on the evidence as a whole, she had a reasonable doubt about whether Mr.

Stonechild had been the driver. [ 23 ] The appeal judge correctly observed that this meant the trial judge had not approached the matter as though she was limited to making a binary choice between whether Mr. Stonechild or Nathan had been the driver. Instead, as the appeal judge noted, the trial judge understood that the evidence may leave her in a state of uncertainty about who the driver was and, in that event, she would be required to acquit Mr. Stonechild. The appeal judge also properly recognized that no evidence had been led to support the alternative inference that Mr.

Stonechild accused the trial judge of failing to consider, namely that Mr. Ducharme had been the driver. Based on that, I am unable conclude that there is merit in the suggestion that the appeal judge made a legal error in the way he dealt with this argument. [ 24 ] Accordingly, I am not persuaded that Mr. Stonechild has met the test to be granted leave to appeal. Leave must be denied. [ 25 ] In accordance with the terms of his release order, Mr. Stonechild shall surrender himself to the custody of the Melville RCMP within 48 hours of the release of these reasons. “Kalmakoff J.A.” Kalmakoff J.A.

I concur. “Schwann J.A.” Schwann J.A. I concur. “Tholl J.A.” Tholl J.A.