R v Taylor, 2023 SKCA 49

Court of Appeal for Saskatchewan Docket: CACR3338 Citation: R v Taylor , 2023 SKCA 49 Date: 2023-04-26 Between: Michael William Taylor Appellant And His Majesty the King Respondent Before: Schwann, Leurer and Tholl JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Madam Justice Schwann In concurrence: The Honourable Mr. Justice Leurer The Honourable Mr.

Justice Tholl On appeal from: Provincial Court (Sask), Prince Albert Appeal heard: March 5, 2021 and January 20, 2023 Counsel: Michael Taylor on his own behalf Wade McBride, K.C., and Carlene Ready for the Respondent Lisa Watson for Saskatchewan Lawyers’ Insurance Association Inc. Schwann J.A. I.

INTRODUCTION [ 1 ] Michael William Taylor was convicted by a Provincial Court judge of possession of seven ounces of methamphetamine for the purposes of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act , SC 1996, c 19 , but was acquitted of possession of a weapon (bear spray) for a purpose dangerous to the public peace, contrary to s. 88 of the Criminal Code , and possession of proceeds of crime, contrary to s. 354(1) and s. 355 (

b) of the Criminal Code : R v Taylor (13 December 2019) Prince Albert, Provincial Court (Sask) [ Trial Decision ]. [ 2 ] After credit for time spent in pre-sentence custody, Mr. Taylor was sentenced to 21 months of incarceration. [ 3 ] Mr. Taylor appeals from his conviction and has applied to adduce fresh evidence on appeal. For the reasons that follow, I would dismiss both his application to adduce fresh evidence and the conviction appeal. II. BACKGROUND [ 4 ] On June 25, 2018, Constable Tanner Shultz received information from an anonymous source that Mr.

Taylor was trafficking in methamphetamine and cocaine in Prince Albert, Saskatchewan. At the relevant time, Cst. Shultz was a member of the integrated street enforcement team in Prince Albert, which primarily focused on street-level drug enforcement. Constable Shultz conveyed that information to Sergeant Bradley Beaton, the member in charge of the integrated street enforcement team. Sergeant Beaton knew the anonymous source and relied on Cst. Shultz’s assurance that the information was reliable. [ 5 ] Based on the tip received by Cst. Shultz, the police surveilled Mr.

Taylor on June 25, 2018, eventually spotting him parked in a grey vehicle. When the police officers approached Mr. Taylor’s vehicle, he put it into reverse and rammed it into Sgt. Beaton’s vehicle, drove up onto a curb, hit another vehicle and sped away. The police did not pursue Mr. Taylor but obtained a warrant for his arrest for fleeing the scene. [ 6 ] The following day, the police once again received information from the same confidential informant to the effect that Mr. Taylor continued to traffic in methamphetamine and cocaine but, this time, from a red SUV.

Sergeant Beaton instructed his unit to backtrack to the places where Mr. Taylor had been spotted the previous day and authorized them to arrest him for possession for the purposes of trafficking and for the offence of the day before of fleeing the scene if they located him. Sergeant Beaton testified that the grounds to arrest Mr. Taylor were (

a) the incident on June 25, 2018, with Mr. Taylor, and (

b) the information the police had received from what he described as a reliable source. [ 7 ] Around 4:34 p.m. on June 26, 2018, Sgt. Beaton spotted a red SUV pulling into a Co-op gas bar in Prince Albert. He observed Mr. Taylor, who appeared to be wearing the same clothes he had worn on the previous day, exit from the rear, passenger’s side of the SUV and enter the gas bar. Sergeant Beaton continued to monitor the situation until the rest of his unit arrived; when they got there, he instructed Cst. Shultz and Cst. Khenneth Wilkins to arrest Mr. Taylor. Constables Schultz and Wilkins forcibly arrested Mr.

Taylor inside the gas bar. A pat down search revealed $310 in the pocket of his cargo shorts. [ 8 ] Sergeant Beaton also instructed Cst. Trevor Chester and Cst. Jonathon Wilde to arrest the female sitting in the driver’s seat of the SUV. That occupant turned out to be Brogan Sanderson. When Ms. Sanderson refused to open the door as requested by the police, Cst. Wilkins, who was by then finished with arresting Mr. Taylor, approached the vehicle and smashed the driver’s side window. Constable Wilde then extracted Ms. Sanderson from the vehicle.

She was placed under arrest for possession of a controlled substance for

the purposes of trafficking. [9] Following Mr. Taylor’s arrest, the police transported the SUV to the police station, where a search was undertaken. Duringthe course of that search, the officers discovered (

a) a shaving kit in the back passenger side seat of the SUV, containing 54 baggies, adigital scale and an iPhone cord, (

b) bear spray in the back seat pocket, (

c) a small quantity of methamphetamine in a cigarette packagethat was located in the front seat, (

d) a “chunk” of a garbage bag tucked inside the back seat cupholder that contained seven, individuallywrapped baggies of methamphetamine, weighing roughly one ounce each, and (

e) a white iPhone on the front passenger seat underneath apurse and a second, grey iPhone plugged into the back centre console. [10] All of those items were seized by the police. Photographs of the items were entered as exhibits at trial. III. TRIAL DECISION [11] The trial proceeded as a blended voir dire in response to Mr. Taylor’s Charter application in which he had alleged a breach ofhis s. 7, s. 8 and s. 9 Charter rights in connection with his arrest and the police search of the SUV. [12] In assessing Mr. Taylor’s Charter argument, the trial judge found Sgt. Beaton had a subjective belief that Mr.

Taylor wastrafficking in methamphetamine. Turning next to his assessment of the objective component, he noted that Sgt. Beaton had currentinformation from what the officer perceived to be a reliable source that Mr. Taylor was trafficking in methamphetamine and cocaine froma red SUV on June 26. The trial judge went on to note how Sgt. Beaton had partially confirmed the confidential source’s informationwhen he identified Mr. Taylor exiting from the red SUV.

The trial judge found the evidence sufficient to satisfy both the subjective andobjective components necessary to establish reasonable grounds for the warrantless arrest of Mr. Taylor. [13] The trial judge turned next to the question of whether the police search of the SUV was lawful. He instructed himself on thepower to effect a search incidental to arrest, citing R v Fearon, 2014 SCC 77, [2014] 3 SCR 621, and several lower-court decisions. Basedon those authorities, coupled with the evidence adduced on the voir dire, he concluded that Mr.

Taylor’s Charter rights were not violated(Trial Decision): Given the nature of the information received by Sergeant Beaton, his belief, and the fact that he saw the accused leave the red SUV, thereis, in my view, a reasonable basis for the police to search the red SUV incidental to arrest. In the circumstances I have concluded that the accused’s rights under Sections 7, 8 and 9 have not been violated, and a Section 24(2)inquiry is not required. [14] The voir dire decision also addressed whether Cst. Cameron Schmidt would be allowed to provide an expert opinion.

Applyingthe R v Mohan, (SCC), [1994] 2 SCR 9, criteria, the trial judge qualified Cst. Schmidt to express an opinion on“purchasing, packaging and trafficking in crystal meth” (Trial Decision), noting that the weight to be given to Cst. Schmidt’s evidencewould be determined in conjunction with the balance of the trial evidence. [15] In terms of the trial itself, the trial judge carefully recounted the facts surrounding the arrest of Mr. Taylor and Ms. Sandersonand the subsequent search of the red SUV.

He identified the central issues at trial as being whether the Crown had established possessionof a controlled substance within the meaning of s. 4(3) of the Criminal Code.

Because the Crown’s case was largely built oncircumstantial evidence, he instructed himself on the Supreme Court’s decision in R v Villaroman, 2016 SCC 33, [2016] 1 SCR 1000,stating, “when the Crown’s case is based on circumstantial evidence, in order to find the accused guilty, I must be satisfied beyond areasonable doubt that the guilt of the accused is the only reasonable conclusion to be drawn from the whole of the evidence” (TrialDecision). [16] The trial judge next outlined the Crown’s evidence, referring in particular to the testimonies of Ms. Sanderson and Sgt.

Beaton,the photographic evidence of what was seized and the location of where those items were found. He concluded by stating that he wassatisfied beyond a reasonable doubt that Mr. Taylor was guilty of possession of methamphetamine. With regard to the trafficking elementof the charge, relying on the expert testimony of Cst. Schmidt, he concluded, “Given the quantity, the packaging and the expert testimony,I am further satisfied that this possession was for the purposes of trafficking”. [17] The trial judge, however, acquitted Mr.

Taylor of the proceeds of crime charge in connection with the $310 that was found inMr. Taylor’s pocket. He reasoned that the quantity and denominations left him with a reasonable doubt as to whether the cash wereproceeds of crime. Similarly, while the trial judge found it likely that Mr. Taylor possessed the bear spray as a weapon, he was notsatisfied the Crown had proven the elements of that charge beyond a reasonable doubt. [18] Mr. Taylor was sentenced to 36 months of imprisonment, less enhanced credit of 15 months spent in pretrial custody. IV. FRESH EVIDENCE [19] Mr.

Taylor applies to adduce fresh evidence on appeal in the form of his own affidavit, along with an affidavit fromMs. Sanderson. Neither affidavit was properly sworn. [20] Mr. Taylor’s January 23, 2021, affidavit is short. He avers that the Crown forced Ms. Sanderson to testify against him “in orderto have her charges of PPT [possession for the purposes of trafficking] dropped”. He says the trial judge made a factual error in findingthat she got the drugs from him, which, he contends, led the trial judge to infer guilt on his part. He submits this error amounts to amiscarriage of justice and that Ms.

Sanderson’s Charter rights were breached by forcing her to testify against him. [21] As Ms. Sanderson’s January 19, 2021, affidavit is also brief, for ease of reference, it is set out in its entirety:

I am writing an affidavit of support for Michael William Taylor vs Her Majesty the Queen. I was the co-accused in this matter. I was forced by the Crown to take a deal so I didn’t get charged with PPT. The Crown Prosecutor made me testify against Michael W Taylor, after I would not sign an affidavit against Michael Taylor, they wrote itup for me. It was a straight out lie and I wouldn’t sign it stating the drugs where [sic] Michael Taylor’s. The Crown Prosecutor then threatened me that if I didn’t testify for them against Michael Taylor, I would be sent to jail for the PPT.

I did testify for the Crown and received my deal of 18 months’ probation. [22] In response, the Crown sought to have the affidavit of Norma Buydens admitted as fresh evidence. Ms. Buydens was theCrown’s counsel at trial. [23] In R v Palmer, (SCC), [1980] 1 SCR 759, the Supreme Court outlined the principles governing the admission offresh evidence on an appeal from a conviction.

With emphasis on the interests of justice as the overriding consideration, and in accordancewith the wording of what is now s. 683 of the Criminal Code, McIntyre J. set out the following statement of principles (at 775): Applications of this nature have been frequent and courts of appeal in various provinces have pronounced upon them … [T]he followingprinciples have emerged:

(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this generalprinciple will not be applied as strictly in a criminal case as in civil cases: [reference omitted].

(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

(3) The evidence must be credible in the sense that it is reasonably capable of belief.

(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affectedthe result. [24] Dealing first with Mr. Taylor’s affidavit, I find it does not meet the Palmer test for the simple reason that it is argument andspeculation, not evidence. Nothing further need be said. [25] Ms. Sanderson’s affidavit is also problematic. Under the first prong of the Palmer test, the proposed evidence must be suchthat, exercising due diligence, it could not have been adduced at trial. Since Ms. Sanderson’s charges were resolved prior to Mr.

Taylor’strial, arguably, exercising due diligence, Mr. Taylor could have adduced this evidence at his trial. However, to the extent Mr. Taylor seeksto use this evidence to establish a miscarriage of justice, there is some room for latitude, given “the liberty of the subject is usually atstake”, with the result “that, in criminal cases, the lack of due diligence will not always be fatal” (R v Warsing, (SCC),[1998] 3 SCR 579 at para 20). [26] Ms.

Sanderson’s affidavit also founders on the third and fourth Palmer factors: it is neither credible nor, when taken with allthe other evidence, could it be expected to change the result at trial. This is because the proposed evidence fails at the most basic level:that is to say, nothing in Ms. Sanderson’s affidavit retracts the testimony she gave at Mr. Taylor’s trial. The trial judge relied on herunimpeached testimony. That being so, I fail to see how her affidavit could have any possible bearing on the result. [27] Although Mr.

Taylor did not put it in quite these terms, he can be taken to argue that the trial judge erred in findingMs. Sanderson to be a compellable witness. When Ms. Sanderson appeared in court on May 2, 2019, she asked Mr. Taylor’s counsel (whodid not represent her) if she had to testify. By way of background, Ms. Sanderson was a co-accused on the same information asMr. Taylor. Her charges had been resolved by the time of Mr. Taylor’s trial, but the information had not been amended to reflect this fact.The issue put to the trial judge, therefore, was whether she was a compellable witness.

Having been assured by Crown counsel thatMs. Sanderson’s charges had been concluded by the time she appeared on Mr. Taylor’s matter, the trial judge allowed the Crown to callher as a witness. Mr. Taylor has not appealed that ruling. [28] Ms. Sanderson’s affidavit also alludes to discussions with Crown counsel in which she claims to have been improperly strong-armed by that lawyer. Those allegations were denied by Crown counsel. Although an agreed statement of fact was prepared for purposesof Ms.

Sanderson’s sentencing hearing that touched on the circumstances of her offending, according to Crown counsel, there was noaffidavit, per se, and nothing in that agreed statement of fact suggested that the drugs belonged to Mr. Taylor. [29] As a matter of fairness, Mr. Taylor was allowed to cross-examine Crown counsel on her affidavit at the time of the appealhearing, but nothing came of that exercise. [30] Finally, Ms. Sanderson’s affidavit can also be read as suggesting that the plea deal required her to testify for the Crown atMr.

Taylor’s trial in exchange for a lesser charge and that this was somehow improper and tainted her testimony against him. Even if thatwere true, while that part of her plea deal may not have been to her liking, the fact remains that she accepted the Crown’s offer, pleadedguilty to the lesser included offence of possession of a controlled substance, received a non-carceral sentence and had the traffickingcharge stayed. I fail to see any impropriety there. More importantly, as mentioned above, nothing in Ms. Sanderson’s affidavit retracts thetestimony she gave at Mr. Taylor’s trial. [31] In short, Ms.

Sanderson’s affidavit is not reasonably capable of belief or of affecting the result in Mr. Taylor’s trial.Mr. Taylor’s application to adduce fresh evidence must, therefore, be dismissed. The Crown’s affidavit filed in response is also notadmitted. V. GROUNDS OF APPEAL

[32] Mr. Taylor advanced numerous grounds of appeal in his written argument. However, at the time of the appeal hearing, henarrowed the scope of his arguments considerably, which I would re-frame as follows: (

a) Was Mr. Taylor’s trial counsel ineffective and, if so, did it give rise to a miscarriage of justice? (

b) Was the verdict unreasonable or unsupported by the evidence by reason of the fact that (

i) Ms. Sanderson was improperly forced to testify against him; (ii) the trial judge drew irrational inferences based on the misleading submissions of Crown counsel; or (iii) the trial judge misapprehended Ms. Sanderson’s evidence and the location of the drugs in the vehicle at the time of seizure? (

c) Was the circumstantial evidence sufficient to support a conviction? (

d) Did the trial judge err in not finding Cst. Schmidt was a biased witness and that his testimony gave rise to a miscarriage ofjustice? VI. ANALYSIS A. Ineffective counsel [33] Mr. Taylor had three different lawyers representing him over the course of this matter. The first lawyer withdrew prior to trial.The second lawyer [trial lawyer] ceased to act for him after the evidence portion of the trial was concluded but before final submissionswere made. She was replaced by another lawyer [third lawyer], who handled closing arguments and sentencing submissions. Mr.

Taylorclaims his trial lawyer simply “handed the case over” to the third lawyer, who was “severely handicapped” by the absence of trial notes,limited by only having access to the trial transcript, and was left to argue his case without the benefit of having seen and heard theCrown’s witnesses. [34] Mr. Taylor, who is self-represented on appeal, adduced no evidence in support of his ineffective counsel argument.

As early ashis first appeal hearing on March 5, 2021, the panel informed him of the process that accompanies an ineffective counsel ground of appealand referred him to the Court’s “Practice Directive No. 9 – Ineffective Assistance of Trial Counsel”. It was made clear to Mr. Taylor that,absent fresh evidence setting out a foundation for that sort of argument, the Court was limited to an examination of the record. Given thatlimitation, Mr.

Taylor asked for the appeal hearing to be adjourned to give him time to familiarize himself with the requirements ofPractice Directive No. 9 and to possibly retain legal counsel to assist him with this argument on appeal. The Crown did not oppose anadjournment for that narrow purpose. [35] Unfortunately, for a variety of reasons, Mr. Taylor’s appeal hearing did not resume until January 20, 2023. Mr. Taylor filed nonew material, and he continued to represent himself on appeal. At the time of the reconvened hearing, although Mr.

Taylor still harboureda concern about the adequacy of his legal representation at trial, he abandoned his ineffective counsel ground of appeal. Given that turn ofevents, I find it unnecessary to address this argument any further. B. The verdict was not unreasonable or unsupported by the evidence 1. Ms. Sanderson was not improperly compelled to testify at Mr. Taylor’s trial [36] Mr. Taylor renews his earlier argument that the Crown had, in two ways, employed underhanded tactics in obligatingMs. Sanderson to testify against him.

First, he says, she was somehow compelled to testify for the Crown against her will, and second, theCrown’s plea deal effectively forced her to turn on him. [37] I am not persuaded by either argument. [38] As mentioned above, Ms. Sanderson was subpoenaed by the Crown to testify at Mr. Taylor’s trial. Before taking the stand, sheexpressed her reluctance to testify against him to Mr. Taylor’s trial counsel and wondered if she was compelled to do so. OnMs. Sanderson’s behalf (but not acting as her counsel), Mr. Taylor’s trial counsel conveyed the following issue to the trial judge: “Yes,Your Honour.

So the issue I have is that Ms. Sanderson, though her matter has been concluded, she’s still listed on that information asbefore the court today. There’s not been a new information laid with just Mr. Taylor on it. And so, I am questioning whether or not shecan be compelled”. To be clear, it was not Mr. Taylor who had raised or objected to the compellability of Ms. Sanderson. His trial counselsimply presented the issue to the trial judge on Ms. Sanderson’s behalf. [39] The trial judge was aware that the information continued to name both Mr. Taylor and Ms. Sanderson.

After Crown counselassured the trial judge that Ms. Sanderson’s charges had indeed been concluded, he accepted her representations and said this: “So I don’tthink she is any longer a co-accused on this information. If anybody thinks anything different of that, you should tell me”. [40] Mr. Taylor does not suggest that ruling is tainted by legal error, apart from asserting that his Charter rights were breached bythe Crown forcing Ms. Sanderson to testify. Although Mr. Taylor did not expand on this argument, he can be taken to invoke s. 11(

c) ofthe Charter, which establishes that “[a]ny person charged with an offence has the right … not to be compelled to be a witness inproceedings against that person in respect of the offence”. The protection provided by s. 11(

c) stems “from the broad principle against self-incrimination” (R v P.(M.B.), (SCC), [1994] 1 SCR 555 at 579). [41] David Rose (ed), Quigley’s Criminal Procedure in Canada, loose-leaf (Rel 1 February 2023) (Toronto: Thomson Reuters,2023) (WL), states that s. 11(

c) has thus far “been interpreted in a relatively restrictive way” because “[i]t would seem to apply only to the

compulsion of testimony by the accused and not to other types of conscriptive evidence” (at §7:23). To benefit from the protection offeredby s. 11(c), three conditions must be met: “(1) the person must be compelled to be a witness (2) in proceedings against that person (3) inrespect of the offence” (emphasis added, Martineau v M.N.R., 2004 SCC 81 at para 68, [2004] 3 SCR 737). [42] The obvious flaw in Mr. Taylor’s argument is that, even if there were a Charter breach, it would have been Ms. Sanderson’srights that were implicated, not his.

Substantive Charter rights are typically viewed as being personal in nature: R v Edwards, (SCC), [1996] 1 SCR 128; R v Ramos, 2011 SKCA 63 at paras 21–22, 371 Sask R 308; and R v Cheung (1997), (BC CA), 97 BCAC 161 (CA), leave to appeal to SCC refused, [1998] 1 SCR vii. What can be taken from this line of jurisprudence is thatthere is no remedy available for an accused person arising from an alleged breach of someone else’s s. 11(

c) rights. Mr. Taylor did notexplain how an alleged breach of Ms. Sanderson’s s. 11(

c) right amounted to a breach of his right against self-incrimination. Grafting ontoa breach of another person’s rights is not sufficient. Moreover, there is some authority to support the idea that, regardless of the factMs. Sanderson’s name remained on the information, it was a technicality that did not violate the protection under s. 11(c): see R v Welton(1986), (ON SC), 29 CCC (3d) 226 (Ont SC (H Ct J)). [43] Mr. Taylor’s second argument, in large measure, hinges on his fresh evidence application.

The dismissal of that applicationnecessarily means there is no evidentiary foundation to advance it under this head. Apart from the subpoena (which was not challenged attrial), there was no evidence Ms. Sanderson was forced to testify as part of her plea agreement or that her guilty plea was in any wayequivocal, not voluntary or informed. Furthermore, as I discussed above, Ms. Sanderson’s plea deal worked to her benefit in the sense thatshe did not have to face the trafficking charge and received a relatively light sentence for the lesser included offence of possession.

Inshort, this was her deal that redounded to her benefit. [44] There is no merit to this argument. 2. The trial judge drew no irrational inferences from the Crown’s submissions [45] Mr. Taylor next argues that the trial judge drew irrational inferences from the Crown’s submissions. This argument is built onthe premise that (

a) Crown counsel misled the trial judge in her oral and written submissions about the evidence adduced at trial, and (b)the trial judge relied on and accepted those misplaced submissions in finding Mr. Taylor guilty. Mr. Taylor provided only the mostgeneralized examples of the impugned submissions, namely as follows: (

a) Crown counsel lied about the facts in her closing brief and throughout the trial; (

b) the Crown’s memorandum of law contained errors (e.g., in the introduction, it states the methamphetamine was found onhim); and (

c) Ms. Sanderson paid for the drugs and that she got the drugs from him. [46] For obvious reasons, a review of the Crown’s memorandum of law does not answer the question of whether the trial judgeerred. Even if Crown counsel did err in her recitation of the evidence or misstated the law, that is irrelevant to this appeal. The question iswhether the trial judge adopted those errors and, if so, whether they had an impact on the verdict. Respectfully, I see no evidence of thathaving occurred. [47] In any event, taking Mr.

Taylor’s argument at its highest, he was unable to point to anything Crown counsel said or submittedthat was improperly accepted by the trial judge. Throughout the course of the trial, the trial judge demonstrated a keen awareness of therules of evidence and routinely admonished Crown counsel for leading her witnesses and the way in which she conducted the Crown’scase. Simply put, there is nothing in the record to suggest that he made any findings of fact based on the Crown’s mischaracterization ofthe evidence. 3. The trial judge did not misapprehend Ms. Sanderson’s testimony [48] Turning to Ms.

Sanderson’s testimony, Mr. Taylor argues that the trial judge made a factually incorrect statement in his reasonswhen he said, “At the time of her testimony in the spring of 2019, Ms. Sanderson was not using drugs, but she confirmed on June 26th thatshe did use drugs, and she testified that she got these drugs from the accused, Mr. Taylor” (emphasis added, Trial Decision). According toMr. Taylor, the emphasized portion from this quotation reveals how the trial judge misunderstood Ms. Sanderson’s testimony about herdrug use on the day of the offence.

This error, he says, was material to the trial judge’s reasoning process and resulted in an unreasonableverdict that warrants appellate intervention. [49] Mr. Taylor’s argument invites consideration of the principle that a misapprehension of evidence by a trial judge may, in somecircumstances, warrant appellate intervention. The test for misapprehension of the evidence was addressed by the Ontario Court of Appealin the following oft-quoted passage from R v Morrisey (1995), (ON CA), 80 OAC 161 (CA): [93] When will a misapprehension of the evidence render a trial unfair and result in a miscarriage of justice?

The nature and extent of themisapprehension and its significance to the trial judge’s verdict must be considered in light of the fundamental requirement that a verdictmust be based exclusively on the evidence adduced at trial. Where a trial judge is mistaken as to the substance of material parts of theevidence and those errors play an essential

part in the reasoning process resulting in a conviction then, in my view, the accused’sconviction is not based exclusively on the evidence and is not a “true” verdict. Convictions resting on a misapprehension of the substanceof the evidence adduced at trial sit on no firmer foundation than those based on information derived from sources extraneous to the trial. Ifan appellant can demonstrate that the conviction depends on a misapprehension of the evidence then, in my view, it must follow that theappellant has not received a fair trial, and was the victim of a miscarriage of justice.

This is so even if the evidence, as actually adduced attrial, was capable of supporting a conviction. [50] The Supreme Court in R v Loher, 2004 SCC 80, [2004] 3 SCR 732, later described the Morrisey test as one that imposes a“stringent standard”, wherein the alleged misapprehension of evidence must go to the “substance rather than to the detail” and “must playan essential part … ‘in the reasoning process resulting in a conviction’” (at para 2, quoting Morrisey at para 93). See also R v Smith, 2021

SCC 16 , 456 DLR (4th) 549, and R v Dorie , 2023 SKCA 7 at para 28 . [ 51 ] A proper consideration of this issue requires careful attention to be given to Ms. Sanderson’s testimony at the trial, and the use to which the trial judge made of that evidence. In her testimony-in-chief, she gave the following evidence: Q Okay. Do you do drugs now? A Now? Q Yeah. A No. Q No? Not using drugs right now? That’s good. Back in the past, did you use drugs? A Yes, I have. Q Okay. And where did you get your drugs? A From Mike [Taylor]. Q Okay. So you’re saying that he had sold you drugs before?

A Yeah. [ 52 ] Taken in isolation, it is clear from this passage that Ms. Sanderson was a drug user prior to June 26, 2018, that she had previously purchased drugs from Mr. Taylor, but that she was no longer using drugs at the time of trial. It is unclear, however, if she was using drugs when the events unfolded and at what point in the past she had purchased drugs from Mr. Taylor. The uncertainty about whether she was using drugs when the events in question unfolded was resolved when she agreed with Mr.

Taylor’s trial counsel that “at the time of this incident, [she was] using drugs”. [ 53 ] Yet, this did not resolve the uncertainty as to the point in time when Ms. Sanderson had purchased drugs from Mr. Taylor. Although this issue was never resolved in her testimony, some light was shone on it by other aspects of her testimony. Specifically, she testified that, on the day in question, when Mr. Taylor asked her to drive him around, he had brought an unidentified package with him into the vehicle, which she suspected contained drugs.

She linked this suspicion to her past purchases of drugs from him: Q And so, you testified that you -- you’ve gotten drugs from Mike [Taylor] before? A Yeah Q Okay. And is that why you suspected maybe he had drugs on him? A Yeah. Q Yeah, you saw drugs or – A Yes, I suspected, but I didn’t actually see them. [ 54 ] In argument, the Crown frankly acknowledged that Ms. Sanderson did not testify that she had obtained drugs from Mr. Taylor on June 26. However, when the trial judge’s statement is read in the context of the evidence as a whole, I am also satisfied that was not what he intended to communicate.

Rather, the trial judge intended to say exactly the words that he spoke: namely, (a) “At the time of her testimony in the spring of 2019, Ms. Sanderson was not using drugs”, (

b) Ms. Sanderson “confirmed on June 26th that she did use drugs”, and (

c) Ms. Sanderson “testified that she got these drugs from the accused, Mr. Taylor” ( Trial Decision ). [ 55 ] Of these statements, the only one that did not come out directly from the answers given by Ms. Sanderson in her testimony was that the drugs she was using on June 26 were obtained from Mr. Taylor. That was, at most, an implication of what she had said.

I am satisfied from my review of the evidence that, taken as a whole, it was open to the trial judge to have drawn this inference. [ 56 ] However, even if it might be said that the trial judge’s statement was the result of a misapprehension of the evidence, it is impossible for me to conclude that it was material to his reasoning process. This is because the gravamen of Ms. Sanderson’s testimony is found in the trial judge’s proper understanding of her testimony: i.e., that she had been conscripted by Mr. Taylor to be his driver for the purposes of his drug business on the day in question.

I draw this conclusion from the trial judge’s accurate description of this part of her testimony, which preceded the statement Mr. Taylor says contains the trial judge’s misapprehension of the evidence: In this case, Ms. Brogan Sanderson testified for the Crown. She says she was driving the SUV. She was charged as a result of this incident, and eventually pleaded guilty to the lesser included offence of simple possession of crystal meth and received a sentence of 18 months’ probation. I do note that there was a small amount of crystal meth found in a cigarette package in the front of the car close to Ms.

Sanderson. However, given this charge, I approach her evidence with caution. I found her evidence to be given reluctantly, for whatever reason. My sense is that she did not want to provide any evidence that would be helpful to the Crown. She did say, however, that she was driving the red SUV. She confirmed that the police smashed the window of the vehicle to gain access. She says her mom owned the vehicle. She says that the accused was seated in the back seat of the vehicle, confirming Sergeant Beaton’s evidence. She also says that the accused brought something into the vehicle, but she is not sure what it was.

She suspected it was drugs. She also says that they made a couple of stops before coming to the Co-op gas station. She says she was driving the vehicle because the accused had asked her to help him the day before. [ 57 ] Considering all of this, if the trial judge did misapprehend the evidence, it did not play an essential role in his reasoning. Accordingly, Mr. Taylor’s argument under this heading must be rejected. C. Circumstantial evidence supports the conviction 1. Circumstantial evidence and the scope of appellate review [ 58 ] Mr.

Taylor argues there was an insufficient evidentiary foundation for the trial judge to have found him guilty on the trafficking charge. He points to the absence of any direct evidence – such as cell phone records, surveillance information, DNA evidence, fingerprints, etc. – which meant that the Crown’s case rested primarily on circumstantial evidence. As such, Mr. Taylor asserts that it was

equally plausible the drugs belonged to someone else, such as Ms. Sanderson, and that his guilt was not the only reasonable inference thatcould have been drawn from the totality of the evidence. [59] It is trite to say that, in assessing the guilt or innocence of an accused, a trier of fact may take direct or circumstantial evidenceinto account. Direct evidence comes from the testimony of witnesses concerning what they observed, heard or experienced. Circumstantialevidence is evidence that proves a fact or circumstances from which a trier of fact may draw an inference.

An inference is not conjectureor speculation; it is a conclusion that flows logically and reasonably from the other facts that are accepted by a trier of fact. [60] Where a verdict of guilt is based on circumstantial evidence, the trier of fact must be satisfied beyond a reasonable doubt that itis the only reasonable inference that can be drawn from the whole of the evidence. Villaroman is the leading authority on the law withrespect to circumstantial evidence and how that evidence is to be assessed. This Court’s decision in R v Learning, 2019 SKCA 5, providesa helpful

summary of the threads of Villaroman that touch on the reasoning process in cases involving this sort of evidence: [24] Importantly, the Court in R v Villaroman had earlier commented on the reasoning process in cases of circumstantial evidence, noting: (a) “The inferences that may be drawn from observation must be considered in light of all of the evidence and the absence of evidence,assessed logically, and in light of human experience and common sense” (at para 30). (b) “In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts” (at para 35). (c) “The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it.

If there arereasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt” (at para 35). (d) “[A] reasonable doubt, or theory alternative to guilt, is not rendered ‘speculative’ by the mere fact that it arises from a lack of evidence.As stated by this Court in Lifchus [ (SCC), [1997] 3 SCR 320], a reasonable doubt ‘is a doubt based on reason andcommon sense which must be logically based upon the evidence or lack of evidence’: para. 30 (emphasis added). A certain gap in theevidence may result in inferences other than guilt.

But those inferences must be reasonable given the evidence and the absence ofevidence, assessed logically, and in light of human experience and common sense” (at para 36). (e) “When assessing circumstantial evidence, the trier of fact should consider ‘other plausible theor[ies]’ and ‘other reasonablepossibilities’ which are inconsistent with guilt” (at para 37). (f) “[T]he Crown thus may need to negative these reasonable possibilities, but certainly does not need to ‘negative every possibleconjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused’. … ‘[O]ther plausibletheories’ or ‘other reasonable possibilities’ must be based on logic and experience applied to the evidence or the absence of evidence, noton speculation” (at para 37; emphasis in original).

Drawing on all of this, the Court said (at para 38) that the “basic question” in such cases is “whether the circumstantial evidence, viewedlogically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty”. [61] At root, where proof of one or more elements of an offence depends exclusively, or largely, on circumstantial evidence, anaccused may only be convicted where their guilt is the “only reasonable inference that such evidence permits … to guard against the riskof ‘filling in the blanks’ by too quickly overlooking reasonable alternative inferences” (Villaroman at para 30).

This requires the trier offact to consider other plausible theories, but it should not act on alternative

interpretations it considers to be unreasonable. Put anotherway, an alternative inference must be reasonable, not simply possible: Villaroman at para 42, R v Dipnarine, 2014 ABCA 328 at paras 22–25, 316 CCC (3d) 357, and R v Wolff, 2019 SKCA 103, 380 CCC (3d) 223.

Indeed, “the competing possible theories or reasonablepossibilities must be based on logic and experience applied to the evidence or lack thereof”; moreover, as quoted above, the Crown “doesnot have to negative ‘every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of theaccused’” (R v Montague-Mitchell, 2018 SKCA 78 at para 59, 368 CCC (3d) 322, quoting Villaroman at para 37). [62] The scope of appellate review in relation to a conviction grounded on circumstantial evidence is also relevant to this aspect ofMr. Taylor’s appeal.

An appellate court may not retry the case. Its role is to consider whether the inferences drawn by the trial judge werereasonable and open to them. Learning provides the following helpful

summary of these principles: [25] On this basis, the question for an appeal court in a case of circumstantial evidence is not whether there were other possibleexplanations for what happened. The question is whether the trial judge unreasonably concluded that the evidence, when taken as a wholeand when applying common sense, human experience and logic to determine the probability of outcomes, leads to only one reasonableconclusion, namely, that the accused committed the crime.

To paraphrase the Court in R v Villaroman (at para 69), while not every trier offact may inevitably have reached the same conclusion as the trial judge did in this case, her conclusion need only be a reasonable one. [26] Coming at this question from another angle, the Court in R v Dipnarine (at paras 24–25) said the presence of competing inferencesdoes not necessarily mean a finding of guilt is an unreasonable verdict. Rather, if the trier of fact considers an alternative

interpretation ofthe circumstances, taken as a whole, to be unreasonable or irrational, the trier of fact is not bound to give effect to that alternative simplybecause it is impossible to exclude it entirely.

In concluding its analysis, the Court said: “The law does not require such proof to absolutecertainty: see R v Lifchus, (SCC), [1997] 3 SCR 320 at para 30”. (Emphasis added) [63] More recently in R v Power, 2022 SKCA 24, [2022] 10 WWR 263, Kalmakoff J.A. returned to Learning to elaborate on therole of this Court on appeal: [81] Our role is limited to determining whether the trial judge acted unreasonably in concluding that the evidence, “when taken as awhole and when applying common sense, human experience and logic to determine the probability of outcomes, leads to only onereasonable conclusion, namely, that the accused committed the crime” (Learning at para 25).

This does not require us to be satisfied thatevery trier of fact would have reached the same conclusion, but only to be satisfied that the trial judge in this case could reasonably have

reached it (see Villaroman at para 69 ). (Emphasis added) [ 64 ] In

summary, it is not open to an appellate court to retry the case on appeal. An appeal is not a redo exercise. Where a finding of guilt turned on circumstantial evidence, the task is to assess the evidence to determine whether, considered as a whole, it was reasonably capable of supporting the verdict: see R v Wolfe , 2021 SKCA 39 at para 107 , leave to appeal to SCC requested, R v Hotomani (Docket 39670).

Or, as framed in Learning , the question for an appellate court is “not whether there were other possible explanations for what happened” but “ whether the trial judge unreasonably concluded that the evidence, when taken as a whole and when applying common sense, human experience and logic to determine the probability of outcomes, leads to only one reasonable conclusion, namely, that the accused committed the crime” (at para 25). 2. Analysis: Circumstantial evidence [ 65 ] I begin my consideration of Mr.

Taylor’s argument under this head with the observation that he does not, nor could he, allege that the trial judge misapprehended the law applicable to trials where the Crown’s case depended on circumstantial evidence. Indeed, the trial judge referred to Villaroman and several decisions from this Court before concluding that these cases “direct that when considering circumstantial evidence, the guilt of the accused must be the only reasonable inference available” ( Trial Decision ). [ 66 ] Rather, in advancing this argument, I take Mr.

Taylor to argue that the trial judge failed to properly apply the Villaroman test to his assessment of the circumstantial evidence on the trafficking charge. The trial judge’s reasons, he says, demonstrate how a failure to consider other reasonable possibilities that were inconsistent with guilt and from which a reasonable inference could have been drawn. The most obvious inference, says Mr. Taylor, is that someone other than him owned and trafficked in the drugs that were seized from the SUV. Mr.

Taylor’s trial counsel flagged several items of evidence that could have led to an inference that someone other than Mr. Taylor (chiefly Ms. Sanderson) brought the drugs to the SUV and was trafficking in them. [ 67 ] I turn first to Mr. Taylor’s suggestion that further or better evidence could or should have been adduced at trial to sustain a conviction. [ 68 ] With respect, this argument represents a fundamental misunderstanding of the role of a trial judge who is tasked with determining the guilt or innocence of an accused person.

Guilt or innocence does not turn on what further or better evidence the Crown could have led or whether the police did a thorough job in their investigation. However, as this Court pointed out in Montague-Mitchell , there are situations where an inadequate police investigation may cause the prosecution to fail. The Court went on to observe as follows: [58] … However, this arises from the Crown’s inability to establish the elements of the offence beyond a reasonable doubt, not from the inadequacy of the investigation per se.

More particularly, in a prosecution based on circumstantial evidence, as here, a failure to conduct an appropriately thorough investigation might put the Crown in a position where it is unable to negative all of the reasonable alternatives to an inference of guilt. But, again, this does not mean a finding of not guilty can flow directly from the shortcomings in the investigation. It must necessarily be a function of the evidence presented to the trial judge. (Emphasis in original) [ 69 ] Moving on from the suggestion that the police investigation was incomplete, the issue Mr.

Taylor can be taken to have raised on appeal is whether the trial judge correctly concluded that the only reasonable inference to be drawn from the totality of the evidence was that he was in possession of methamphetamine for the purposes of trafficking. [ 70 ] In assessing the Crown’s case, the trial judge clearly found Ms. Sanderson a persuasive, albeit a reluctant, witness. He summarized her evidence in this way, which I repeat for ease of reference ( Trial Decision ): However, given this charge, I approach her evidence with caution. I found her evidence to be given reluctantly, for whatever reason.

My sense is that she did not want to provide any evidence that would be helpful to the Crown. She did say, however, that she was driving the red SUV. She confirmed that the police smashed the window of the vehicle to gain access. She says her mom owned the vehicle. She says that the accused was seated in the back seat of the vehicle, confirming Sergeant Beaton’s evidence. She also says that the accused brought something into the vehicle, but she is not sure what it was. She suspected it was drugs. She also says that they made a couple of stops before coming to the Co-op gas station.

She says she was driving the vehicle because the accused had asked her to help him the day before. [ 71 ] While the trial judge accepted Ms. Sanderson’s evidence, his conclusion as to Mr. Taylor’s guilt did not rest on her evidence alone. The trial judge also drew support from (

a) where Mr. Taylor was seated in the SUV (in the back seat), (

b) his proximity and ready access to the seized items, and (

c) the fact that the items were hidden and not in plain view. He said this: I find the photographs to be instructive. They show the close proximity of these items to one another and to the accused when he would have been seated in the back seat where Sergeant Beaton saw him exit from. Neither the contents of the shaving kit or the black garbage bag are in plain view, but they would have been readily accessible to the accused, where he was seated in the back seat moments before his arrest. [ 72 ] Although the trial judge did not engage in a robust analysis of the specific arguments posited by Mr.

Taylor’s third lawyer, neither did he ignore them. The trial judge addressed Mr. Taylor’s suggestion that the Crown’s case was weakened by “gaps in the evidence” and turned his mind to Mr. Taylor’s suggestion that he was merely present in the vehicle and nothing linked him to the drugs. In fact, Mr. Taylor’s third lawyer went so far as to acknowledge that the Crown’s theory (that Mr. Taylor possessed the drugs) was “one potential inference that … does arise from the evidence”. That said, he made the point that other reasonable inferences could be drawn from the circumstantial evidence: i.e., that Mr.

Taylor was a mere passenger in the SUV or that the drugs belonged to Ms. Sanderson.

[ 73 ] Respectfully, the trial judge took all of those arguments into account in reaching his decision ( Trial Decision ): I have considered these arguments and the points raised in paragraph 12 [of the defence’s brief of law], and this lack of evidence, but when I step back and consider the evidence as a whole, particularly the evidence of Sergeant Beaton, Ms. -- and Ms. Sanderson, together with the photographs and the location where the various items were seized, I am satisfied beyond a reasonable doubt that this accused is guilty of possession -- possession of methamphetamine.

Given the quantity, the packaging and the expert testimony, I am further satisfied that this possession was for the purposes of trafficking. Therefore, he is found guilty of count number 1 on information 560. [ 74 ] The alternative inferences identified by Mr. Taylor at trial, which are repeated on appeal, were dismissed by the trial judge as little more than speculation. [ 75 ] One such inference was that Mr. Taylor was an unwitting passenger in Ms. Sanderson’s vehicle and that he had no knowledge of the hidden methamphetamine. This argument had been specifically referred to in Mr.

Taylor’s trial brief and must be taken to have been rejected by the trial judge. I can find no error on the trial judge’s

part in doing so. In this regard, Ms. Sanderson testified that Mr. Taylor had sold her drugs in the past, that he sat in close proximity to a large quantity of drugs and a shaving kit that contained a scale and bags typically used for selling drugs, and that she saw him bring something into the vehicle that day which she suspected were drugs. [ 76 ] Mr. Taylor also says the reason he did not sit in the front seat of the vehicle with Ms. Sanderson was because he was concerned the police would see him and then pick him up for the run-in he had had with them the prior day. However, since Mr.

Taylor did not testify at trial, there was no evidence to that effect for the trial judge to have considered. [ 77 ] Next, Mr. Taylor suggests, as he did at trial, that it was just as probable that Ms. Sanderson may have been the person who possessed the methamphetamine. Again, for the following reasons, I can see no error on the part of the trial judge in rejecting this inference. Ms. Sanderson testified to the following: (

a) although she had previously been a casual drug user, at the time of the offence she was pregnant and working to become sober but that she had used drugs that day; (

b) after the grey car was damaged on the day before the offence, Mr. Taylor asked her to drive him around; she agreed to do that as a favour to him; (

c) they made a number of short stops on the day of the arrest, before Mr. Taylor was arrested at the Co-op gas bar; (

d) she saw Mr. Taylor bring something into the SUV, which she suspected were drugs because she had gotten drugs from him in the past; (

e) she did not find out until the following night that drugs had been seized from the vehicle; and (

f) before she picked up the SUV on the day in question, her sister had cleaned out the vehicle. None of that testimony was seriously challenged under cross-examination nor was it rejected by the trial judge. [ 78 ] Mr. Taylor builds on his argument by pointing to Ms. Sanderson’s refusal to leave the SUV and having to be forcefully removed from it at the time of arrest as support for an inference that she possessed all the methamphetamine in the SUV. I see no basis to conclude that the trial judge erred in finding this argument unpersuasive. Ms.

Sanderson testified that she refused to exit the vehicle because she was unable to identify the people who had broken the vehicle’s window and who had dragged her from the vehicle, since the officers did not display a badge and were in plain clothes. [ 79 ] Mr. Taylor also argues that it was plausible the drugs were initially in the front of the SUV with Ms. Sanderson and that she simply threw them into the back seat when she saw him being arrested inside the Co-op gas bar. The obvious flaw with this suggestion is that the drugs were concealed in a compartment tucked behind the back seat.

I take the trial judge to have made exactly this point when he said, “but when I step back and consider the evidence as a whole, particularly the evidence of Sergeant Beaton, … and Ms. Sanderson, together with the photographs and the location where the various items where seized, I am satisfied beyond a reasonable doubt that this accused is guilty of possession”. Another difficulty with this assertion is that, as just mentioned, Ms. Sanderson never identified the arresting officers as police officers; therefore, she had no obvious reason to frame Mr.

Taylor or hide the methamphetamine in the back seat prior to arrest. [ 80 ] Next, Mr. Taylor suggests that since a seasoned drug dealer would never leave their drugs unattended, he could not have been in possession of the methamphetamine because he left the SUV to enter the Co-op gas bar. There is nothing to this argument. To begin, there is no evidentiary foundation for this proposition, as Mr. Taylor did not testify at trial. Moreover, the only evidence relevant to that point came from Cst. Schmidt, who, in the course of cross-examination by Mr.

Taylor’s counsel, was asked if, in his experience, “drug dealers separate themselves from their products”. Constable Schmidt gave this answer: “So they tend to either have it hidden somewhere, or will have it close by, or with a trusted person”. That answer is consistent with what happened at the Co-op gas bar. [ 81 ] Finally, I have considered whether the trial judge’s inference that Ms. Sanderson got drugs from Mr. Taylor on the day of the offence played an essential

part in his reasoning process that resulted in a conviction within the meaning of Morrisey and Loher . I conclude that it did not. Although the trial judge said he relied on Ms. Sanderson’s evidence in reaching a guilty verdict, he did not specify which parts of her evidence he found persuasive nor was it the only evidence that led him to an inference of guilt. He referenced, for instance, the following: (

a) Sergeant Beaton’s testimony that Mr. Taylor was in the back seat of the SUV; (

b) the close proximity of the seized items to Mr. Taylor in the back seat; (

c) the contents of the shaving kit and black garbage bag;

(

d) the fact that those items were not in plain view but readily accessible only by Mr. Taylor; and (

e) Ms. Sanderson’s evidence. There is no question that the evidence, taken as a whole, was damning and highly probative of Mr. Taylor’s guilt. [ 82 ] To conclude, the issue on appeal is not whether there are other plausible explanations for what happened or whether another judge may have drawn an inference other than guilt from the body of circumstantial evidence that was adduced at trial. What must be asked, rather, is whether the inferences drawn by the trial judge, having regard to the standard of proof, were reasonably open to him. In my view, they were.

The trial judge concluded that the evidence, when taken as a whole and applying common sense, human experience and logic to determine the probability of outcomes, satisfied him that it led to only one reasonable conclusion, namely, Mr. Taylor’s guilt. While there may have been other inferences he could have drawn from the evidence, he determined that none of them were reasonable. That was a call for the trial judge to make. [ 83 ] I see no basis for appellate interference. D. The trial judge did not improperly accept Constable Schmidt’s evidence [ 84 ] As mentioned, Cst.

Schmidt was qualified to provide opinion evidence respecting the purchasing, packaging and trafficking in methamphetamine. Applying the Mohan criteria, the trial judge relied on Cst. Schmidt’s testimony in finding that, given the quantity and packaging of the seized drugs, the “for the purpose of trafficking” aspect of the charge had been made out. [ 85 ] On appeal, Mr. Taylor asserts the trial judge erred by failing to find that Cst. Schmidt was biased because the officer had testified against him in two previous trials.

He describes this argument in vague terms and as a Charter issue. [ 86 ] There are several fundamental challenges with Mr. Taylor’s submissions under this ground of appeal. First, contrary to his assertion, there was no evidence that Cst. Schmidt had testified against him in previous trials. Mr. Taylor attached a newspaper

article to a written argument he had filed on his application for court-appointed counsel. It discussed a case where evidence had been excluded because of serious and systemic breaches by the Prince Albert police’s integrated street enforcement team. Setting aside the fact that Mr. Taylor did not apply to adduce this fresh evidence on appeal, the

article says nothing about this trial or this expert witness. [ 87 ] Second, Mr. Taylor’s assertion misunderstands the nature and duties of an expert witness as laid out in White Burgess Langille Inman v Abbott and Haliburton Co. , 2015 SCC 23 , [2015] 2 SCR 182. An expert witness has a duty to the court to provide fair, objective and non-partisan evidence. The opinion expressed by the expert must be independent, uninfluenced by the party who had retained the witness or the outcome of the trial.

Concerns with the independence and impartiality of a proposed witness must, generally speaking, be raised at the threshold admissibility stage. Further, as the Supreme Court went on to observe in White Burgess , the “threshold requirement is not particularly onerous and it will likely be quite rare that a proposed expert’s evidence would be ruled inadmissible for failing to meet it” (at para 49).

Importantly, the Supreme Court went on to say this about the connection between a proposed expert and the party calling that witness: “the existence of some interest or a relationship does not automatically render the evidence of the proposed expert inadmissible” (at para 49). [ 88 ] Mr. Taylor’s trial lawyer did not object to the admissibility of Cst. Schmidt’s testimony at the time of the qualification voir dire on the basis of an alleged lack of independence or impartiality. While a trial lawyer’s failure to object at trial is not determinative of this sort of argument, it is a factor to consider on appeal.

Quite apart from that, I see nothing on the record capable of supporting the suggestion that Cst. Schmidt’s testimony was not objective or was partisan, partial or lacked independence. The mere fact that he is a police officer, who may have provided expert testimony in a previous criminal prosecution for the Crown, did not, on its own, disqualify him. [ 89 ] This argument has no merit. E. Other arguments [ 90 ] Mr. Taylor raises a potpourri of other arguments in his written materials, which I will briefly address below. 1. Inconsistent verdicts [ 91 ] Mr.

Taylor argues that finding him guilty on the possession of a controlled substance for purposes of trafficking charge yet acquitting him on the bear spray and proceeds of crime charges amounts to inconsistent verdicts. [ 92 ] An argument grounded in the proposition that a verdict is inconsistent with an acquittal engages this Court’s powers under s. 686(1) (a)(

i) of the Criminal Code : that is, that the verdict is “unreasonable or cannot be supported by the evidence”.

In practical terms, to warrant appellate intervention, an appellant must show that “no reasonable jury whose members had applied their minds to the evidence could have arrived at that conclusion” ( R v Pittiman , 2006 SCC 9 at para 6 , [2006] 1 SCR 381): see also R v R.V ., 2021 SCC 10 at para 28 , 455 DLR (4th) 253. [ 93 ] The test or question to be asked when an inconsistent verdict argument is advanced on appeal is this: “Are the verdicts irreconcilable such that no reasonable jury, properly instructed, could possibly have rendered them on the evidence?” ( Pittiman at para 10 ).

Or, as re-framed in R.V ., “a conviction is unreasonable and must be set aside where the verdicts cannot be reconciled on any rational or logical basis and no properly instructed jury, acting reasonably, could have rendered the verdicts it did based on the evidence” (at para 29).

The onus of establishing an inconsistency with other verdicts “is a difficult one to meet because the jury [or fact-finder], as the sole judge of the facts, has a very wide latitude in its assessment of the evidence” ( Pittiman at para 7 ): see also R v Napope , 2022 SKCA 61 . [ 94 ] At root, an appellant must establish that the verdicts are actually inconsistent. As the Supreme Court reiterated in Pittiman , the

task of a trier of fact is to “determine whether the Crown has proven each and every element of the offence beyond a reasonable doubt” (atpara 8). Where the trial involves a single accused who, like Mr. Taylor, is charged with multiple offences, different verdicts on thosecharges may be completely reconcilable on the basis that “the offences are temporally distinct, or are qualitatively different, or dependenton the credibility of different complainants or witnesses” (Pittiman at para 8).

It is self-evident that the strength of the evidence on onecount may not be the same as another count, which may leave the trier of fact with a reasonable doubt on one count but not the other: seealso R v Rahimi, 2015 SKCA 85 at paras 87 and 88, 327 CCC (3d) 234. [95] With respect, there is no inconsistency here. Mr. Taylor was charged with the following three separate offences, whichproceeded to trial on the same information: (

a) possession of methamphetamine for purposes of trafficking, (

b) possession of a weapon fora purpose dangerous to the public peace, and (

c) possession of proceeds of crime. As the Supreme Court observed in Pittiman, differentverdicts are reconcilable where the “strength of the evidence relating to each count may not be the same”, thus leaving the trier of fact“with a reasonable doubt on one count but not on the other” (at para 8). [96] That is what happened here. To place this analysis in context, it must be kept in mind that the Crown bore the burden ofproving each element of each offence beyond a reasonable doubt. Apart from some similarities, such as identity, date and location, theelements of the three offences were different.

While the trial judge was satisfied the Crown had proven the elements of the possession forthe purposes of trafficking charge beyond a reasonable doubt, he was not convinced that burden had been met with respect to the elementsof the other two charges. Considering and weighing the evidence adduced at trial, the trial judge concluded that he had a reasonable doubtabout whether the money found on Mr. Taylor’s person, “given its quantity and its denomination”, amounted to proceeds of crime (TrialDecision). That was a key element of that offence. Similarly, while the trial judge thought Mr.

Taylor was “likely guilty of possessing thisbear spray as a weapon” (emphasis added), on the evidence before him, he was not persuaded the Crown had met the burden of provingthat element of the charge beyond a reasonable doubt. [97] For those reasons, it was therefore open to the trial judge to convict Mr. Taylor on one offence but acquit him on the other two.This made the verdicts reconcilable. As Mr. Taylor has been unable to demonstrate how the verdicts are inconsistent within the meaningof the applicable law, his argument cannot succeed. 2. Linking weapon and drugs [98] Mr.

Taylor argues the trial judge used the presence of a weapon to link him to the drugs that were found in the back seat of theSUV. I find no support in the trial judge’s reasons for this argument. 3. No warrant to search the SUV [99] Mr. Taylor renews his argument that the police violated his Charter rights by conducting a search of the SUV following hisarrest. At common law, the police have the authority to conduct a search incident to arrest without a warrant.

The justification for thiscommon law power is threefold: “ensuring the safety of the police and public, the protection of evidence from destruction at the hands ofthe arrestee or others, and the discovery of evidence which can be used at the arrestee’s trial” (R v Caslake, (SCC),[1998] 1 SCR 51 at para 19).

The threshold required to conduct a search incident to arrest is not reasonable and probable grounds, butwhether the police had “some reasonable basis for doing what [they] did” (Fearon at para 22). [100] After extensively reviewing the evidence on the voir dire, as well as this Court’s decision in R v Shinkewski, 2012 SKCA 63, 289CCC (3d) 145, the trial judge concluded, firstly, that the police had reasonable grounds to arrest Mr. Taylor. He then turned to the policepower to search the SUV incidental to that arrest.

Once again, he reviewed the applicable jurisprudence and the evidence, concluding asfollows: “Given the nature of the information received by Sergeant Beaton, his belief, and the fact that he saw the accused leave the redSUV, there is, in my view, a reasonable basis for the police to search the red SUV incidental to arrest” (Trial Decision). [101] Mr. Taylor does no more than raise the germ of a Charter breach in relation to the police search of the SUV, essentially retracingthe arguments his trial lawyer had made.

He offers nothing new and advances no basis to show how the trial judge erred in his assessmentof the evidence or in his application of the law to the evidence in determining the validity of the search. This ground of appeal has nomerit. 4. Reverse onus [102] Finally, Mr. Taylor asserts the trial judge imposed an onus on him to explain the presence of the methamphetamine in the backseat of the SUV.

I see nothing in the record capable of supporting this argument. [103] I am satisfied that the trial judge was well aware that the Crown was required to prove its case beyond a reasonable doubt and ofthe presumption of innocence. This is not only evident from what he said in various parts of the Trial Decision but from the fact that heacquitted Mr. Taylor on two of the charges because the Crown had not proved its case beyond a reasonable doubt. VII. CONCLUSION [104] The appeal from conviction is dismissed. “Schwann J.A.” Schwann J.A.I concur. “Leurer J.A.” Leurer J.A.I concur. “Tholl J.A.” Tholl J.A.