THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2008 SKCA 172 Date: 20081223 Between: Docket: 1379 Curtis Conrad Bear and Her Majesty the Queen Coram: Cameron, Lane and Smith JJ.A. Counsel: Dhugal Whitbread for the Appellant William Campbell for the Crown Appeal: From: QBNJ 3/05, J.C. of Saskatoon Heard: October 28, 2008 Disposition: Appeal dismissed Written Reasons: December 23, 2008 By: The Honourable Madam Justice Smith In Concurrence: The Honourable Mr. Justice Cameron The Honourable Mr. Justice Lane Smith J.A. [1] The appellant was tried by Queen’s Bench judge sitting alone and found guilty of operating a motor vehicle while his ability to operate the vehicle was impaired by alcohol, thereby causing the death of Tanya Bergen, contrary to s. 255(3) of the Criminal Code, and causing bodily harm to Helen McDermott, contrary to s. 255(2) of the Criminal Code. He was sentenced to five years imprisonment after having been given credit of one year for the time served on remand. The appellant appeals both his conviction and the sentence imposed. [2] On the conviction appeal the appellant raises technical ground in relation to the manner in which the appellant was charged as well as issues of the propriety and fairness of the cross-examination of himself by Crown counsel, the admissibility of his criminal record at trial, and the admissibility of opinion evidence provided in the testimony of the Crown’s expert witness on accident reconstruction. He also argues that the trial judge failed to find that the fact that the appellant was impaired at the time of the collision was the cause of the collision and that his conclusion was unreasonable and against the weight of the evidence. The Conviction Appeal [3] The charges arise out of collision in the early morning hours of July 27, 2003, between truck owned by the appellant and car driven by Tanya Bergen. By agreed statement of facts, it was agreed that both the appellant and Ms McDermott were occupants of the truck, that the collision caused the death of Ms Bergen, and that the appellant’s ability to drive the vehicle was impaired at the time of the accident. Further, the evidence puts beyond any doubt that the truck ran stop sign at the intersection at which the collision occurred and that it had been travelling at an excessive rate of speed immediately prior to entering the intersection. Accordingly, the sole issue at trial was whether it was the appellant or Ms McDermott who was the driver of the truck at the time the collision occurred. Background Facts and Evidence [4] By way of background, number of facts are undisputed. Both the appellant and Ms McDermott had been consuming alcohol for number of hours prior to the collision. They were acquaintances and had met in bar in Saskatoon around 7:00 p.m. on July 26. When the bar closed, the two travelled by taxi to the appellant’s residence, where his mother was looking after his sleeping six year old son. Around 3:00 a.m. the two left the appellant’s residence in the truck to go to Ms McDermott’s residence. They stopped on the way at the home of the appellant’s sister (located only few blocks from the site of the collision) to obtain some money to purchase more beer. However, the sister did not answer the door, and the two proceeded, in the truck, in the direction of Ms McDermott’s home. [5] When the collision occurred, the truck, occupied by the appellant and Ms McDermott, rolled completely over, landing on its wheels. When the first witnesses arrived at the scene, Ms McDermott was lying unconscious on the ground outside the passenger side of the vehicle. The appellant was standing outside the truck. [6] The Crown called 10 witnesses. The appellant testified on his own behalf and the defence also called his mother and his sister as witnesses on the question of who was driving the truck. [7] significant witness for the Crown was Constable Malcolm Gibson who was called to give expert opinion evidence in relation to the collision itself and also in relation to the location of the two occupants in the truck at the time of the collision. The appellant challenges the admissibility of much of this evidence and will return to this issue below. [8] The remaining witnesses were, essentially, eye witnesses, either of the events preceding the collision, or of facts and circumstances following the collision. brief summary of this evidence is necessary to put into context the grounds of appeal. [9] Ms McDermott, former sessional lecturer at the University of Saskatchewan in Cree, testified that she was passenger in the truck and that the appellant was the driver. On her version of the events leading up to the collision, she agreed that she had met the appellant earlier in bar and that they had been drinking together. Ms McDermott had taken taxi to the bar in the first instance. Sometime during the evening, she left the bar and then returned, again in taxi. When she and the appellant decided to go to his residence, on the closing of the bar, they again took taxi. [10] On Ms McDermott’s version of the events, she fell asleep on the couch in the appellant’s home. When she awoke, around 2:30 to 3:00 a.m., she wanted to go home and was going to telephone taxi. However, the appellant insisted that he would drive her home. She said that she was concerned about the appellant’s ability to drive. However, she did accompany the appellant, as passenger in the truck. [11] She testified that when the collision occurred, she put her arms up to protect herself, and remembers her head being hit. She had cuts to her wrist, arms, head and face and bruises on other parts of her body, including her knees. One cut, large cut on her right arm near the elbow, required 14 stitches to close. [12] The appellant is logging contractor. He agreed with Ms McDermott’s account of the earlier part of the evening which eventually led to their going to his residence when the bar closed. However, in contrast to Ms McDermott’s evidence, he testified that, once he and Ms McDermott were back at his residence, they decided to get some more alcohol for the rest of the evening. He suggested they try to borrow some money from his sister, as neither had any money. He testified that Ms McDermott was going to drive because he did not have licence and he relied on his vehicles for work—they were his livelihood. He said he had not driven vehicle in years. He testified that neither of them had money to pay taxi. When his sister did not answer the door, he testified that Ms McDermott then suggested they go to her place because she had beer in her fridge. He insisted that Ms McDermott was at all times the driver of the vehicle. [13] The appellant’s mother testified for the defence. She is child protection worker with the Department of Community Resources and Employment. The truck involved in the collision was owned by this witness. She said that she recalled the appellant and Ms McDermott coming to the residence at about 2:30 a.m. They remained at the home about half an hour. She thought Ms McDermott appeared sober. She testified that, when the appellant and Ms McDermott left, she went to the window and saw Ms McDermott getting into the driver’s side of the vehicle, and the appellant getting into the passenger’s side. On cross-examination she was asked whether she had given the keys to the truck to Ms McDermott. She testified that Ms McDermott was sitting by the table in the kitchen and that she wanted to go somewhere. Ms McDermott had the keys in her hand, and said, “Let’s go.” The witness said that she had said, “I don’t think so”, and that Ms McDermott assured her that she was sober. According to the testimony of this witness, Ms McDermott went outside first, and got into the driver’s seat. [14] The appellant’s sister is university student. She testified that she heard someone at her door at around 3:00 a.m. Se got up and looked out the window and saw that it was the appellant. She did not answer the door. She saw the appellant leave and testified that he got into the passenger side of the truck. [15] Crown witness Magdalene Hunt lived in the same neighbourhood as the appellant’s sister. She testified that just after 3:00 a.m. she had finished work and was walking her dogs in the neighbourhood. Her attention was drawn to the truck because of the noise it made. (The appellant confirmed on cross-examination that the truck was very loud.) She saw the truck pass by and saw the silhouette of the truck’s driver. She testified that the driver appeared to be large male with shoulder length hair. It is clear that this description fit the appellant and did not fit Ms McDermott, who is petite. She heard the noise of the collision and went to the scene where she saw Ms McDermott lying on the ground beside the truck, the deceased in the car and the appellant outside the truck, walking around aimlessly, staggering and muttering. [16] Anna Scappaticci also heard the collision and went to the scene. She also saw the appellant walking around, apparently incoherent and mumbling. She testified that the driver’s side window was down. [17] Jason Trask was paramedic who arrived when the police called for medical assistance. He testified that the appellant complained of shoulder injury as well as abdominal, pelvic, arm, back and shoulder pain. He noted bruises and abrasions to the appellant’s right chest area and minor abrasions to his knees. Mr. Trask asked the appellant what caused the accident and the appellant responded that he was looking for his sunglasses at the time. [18] Several police officers who attended at the scene testified, as well as other paramedical personnel who attended the scene. These individuals also testified to the apparent injuries to the appellant. Constable Pfeil noted small red mark on the right side of the appellant’s chest. The officers reported the appellant to have been combative, aggressive, swearing, refusing to answer questions and threatening to sue. On Constable Hudec’s arrival at the scene, the appellant pointed to Ms McDermott lying on the ground and said that she was driving. The appellant’s blood alcohol level at the time of the collision was admitted to be 267 milligrams in 100 millilitres of blood. Discussion and Analysis Alleged improper cross-examination of the appellant. [19] The appellant raises two complaints in relation to his cross-examination. The first is that the trial judge allowed him to be cross-examined on all of his criminal record even though some of his prior convictions were not relevant to the issue of credibility and admission of that part of the record was therefore more prejudicial than probative. The appellant relies on the decision of the Supreme Court of Canada in R. v. Corbett, 1988 CanLII 80 (SCC), [1988] S.C.R. 670. [20] The complaint stems from cross-examination in relation to these convictions: conviction in 1993 of driving over .08 and failing to stop at the scene of an accident; conviction in 1995 of driving while disqualified; conviction in 1998 of care or control over .08; and conviction in 1998 of driving while disqualified. However, significantly, the question of the existence of his criminal record, including what might appear to be convictions similar to those with which he was charged, was introduced by counsel for the defence during the appellant’s examination-in-chief. When the Crown entered into cross-examination on the details of that aspect of the appellant’s record, no objection was raised by the defence. At no time did the defence make an application to exclude portions of his record on the basis of the Corbett decision, on the grounds that their admission was more prejudicial than probative. This passage occurs in the examination-in-chief of Mr. Bear: Okay. Now, it’s my understanding you have substantial record? Yes, do. And that record, was it alcohol-related, primarily? Yes. Do you have an alcohol problem now? No, don’t. [Trial transcript, p. 250, ll. 1-7] [21] Thus, it is clear that the existence of an alcohol related record was raised by the appellant’s own counsel and that the extent to which he had an “alcohol problem” was put in issue. [22] Although the trial judge clearly has discretion, pursuant to Corbett, to exclude prejudicial evidence of prior convictions in an appropriate case, this discretion is exercised by the trial judge on the application of an accused at the close of the Crown’s case. See R. v. Underwood, 1998 CanLII 839 (SCC), [1998] S.C.R. 77. As such an application was not raised in this case, the questioning about previous criminal convictions by the Crown was not objected to when it occurred, and the issue of the appellant’s previous alcohol related offences was raised in the appellant’s own examination-in-chief, it is my conclusion that there is no basis for this Court to conclude that that cross-examination was inappropriate or that the evidence adduced was inadmissible. [23] The second aspect of the appellant’s cross-examination at trial that is raised on the appeal is the fact that on several occasions Crown counsel called on the accused to “explain” the evidence of certain of the Crown’s witnesses that was inconsistent with the evidence of the appellant and he was asked whether it was his evidence that these witnesses were “lying”. In particular, these passages in the cross-examination of the appellant are at issue: but Mr. Bear, Ms. McDermott is First Nations? Sure she is. So she’s why is she lying about you then? Well, I’ll tell you. think Ms. McDermott is lying because she doesn’t she doesn’t want to be in trouble and probably you know, she she wants to avoid the whole situation. Why did Ms. McDermott flee from the hospital before the police had chance to talk to her then, and [Transcript p. 315, ll. 10-18] Okay. Okay. So Helen McDermott is lying? Yes, she is. And Maggie Hunt is mistaken or lying? Maggie Hunt, believe, is mistaken. Okay. And the expert is completely mistaken in placing you behind the driver’s wheel? No comment on that. mean, I’m not an expert. [Transcript p. 321, l. 22 p. 322, line 2] So Mr. Trask is lying? Well, he might have I’m not saying he’s lying. don’t like to say people are lying, apart from Helen Right. but mean, don’t like to So he’s mistake? throw insults around like that. So Jason Trask is mistaken? You’re saying I’d say it’s strong possibility. [Transcript p. 322, l. 25 p. 323, l. 7] [24] agree with the appellant that these questions were improper. Many cases have held that it is improper for Crown counsel to ask an accused on cross-examination to explain the testimony of Crown witness, and that it is highly unfair and prejudicial to require an accused to agree with Crown witness or stigmatize that witness as “liar”. Requiring an accused to explain inconsistencies between his testimony and that of Crown witness is said to offend the presumption of innocence. It also unfairly requires the accused to argue his case in the context of his testimony, rather than leaving that argument to counsel, at the close of the case. Requiring the accused to agree with Crown witness or stigmatize that witness as liar is clearly prejudicial, and is unfairly designed to create an unfavourable impression of the accused. Finally, comment by one witness on the veracity of another is irrelevant. See R. v. Rose (2001), 2001 CanLII 24079 (ON CA), 153 C.C.C. (3d) 225 (Ont. C.A.); R. v. Cole, [1999] O.J. 1647 (Ont. C.A.) R. v. F.(A) (1999), 1996 CanLII 10222 (ON CA), 30 O.R. (3d) 470 (C.A.); R. v. Masse (2000), 2000 CanLII 5755 (ON CA), 134 O.A.C. 79 (C.A.); R. v. Vandenberghe (1995), 1995 CanLII 1439 (ON CA), 96 C.C.C. (3d) 371 (Ont. C.A.); R. v. Brown (1982), 1982 ABCA 292 (CanLII), C.C.C. (3d) 107 (Alta. C.A.); R. v. Ellard, 2003 BCCA 68 (CanLII), 10 C.R. (6th) 189; and R. v. Boyd, 2005 MBCA 80 (CanLII), 199 C.C.C. (3d) 185. [25] In my respectful view, Crown counsel should not have put these questions and the trial judge ought not to have permitted them. note that defence counsel did not object to these questions. [26] Nonetheless, for an appeal to succeed on this ground, this Court must conclude that the appellant was, in the context, prejudiced by the questions. See Boyd, supra. We note that this was not jury trial, unlike most of the cases cited above. Nor did the trial judge himself appear to place any weight on these questions or in any way shift the onus of proof to the accused, as in Vandenberghe, supra. Finally, in the context of the entire cross-examination, these questions and the appellant’s responses were, in my view, relatively innocuous, and did not play major role in the evidence of the appellant. See R. v. E.(T.), 2007 ONCA 891 (CanLII). [27] In all of the circumstances of this case I am not satisfied that this error had any effect on the trial. This ground of appeal must therefore fail. Admissibility and Use of Expert Opinion Evidence of Cst. Gibson [28] In my view, the appellant raises number of valid objections to the evidence received from Constable Gibson. He was permitted, over the objection of defence counsel, to give opinion evidence on issues for which his qualifications as an expert witness had not been established, viz., the manner in which the bodies of the occupants would have moved within the vehicle during the course of the collision and its aftermath. He was allowed to draw conclusions based on evidence not before the court and, on this basis, again over the objection of defence counsel, to offer an opinion on the very issue the Court was required in this case, to determine, viz., who was in the driver’s seat at the time the collision occurred. [29] The key issue that this Court must determine is whether these errors might have affected the verdict reached by the trial judge in this case. [30] After Constable Gibson was sworn as witness, Crown counsel indicated to the Court that he was tendering this witness as an expert in the area of collision reconstruction. The trial judge asked defence counsel whether the witness’s qualifications were in issue. Counsel responded as follows: MR. BODNAR: Well, it depends how far they go. If they’re intending to go so far as to do reconstruction of the accident and how the vehicles collided and what happened and the speed of the vehicles, fine, but if the police officer is going to be giving his opinion about other matters inside the vehicle, the position of who where people were, in other words usurping the purpose of the court, don’t agree with that area. So think that his expertise is limited to the reconstruction of the accident, not of the positioning of the people in the vehicle, based on the statements he has read, based on information he was given. That’s for the court to decide. [Transcript p. 145, ll. 13-25] [31] While this response might have been more clearly stated, it is reasonably read as conceding that this witness could offer opinion evidence in relation to how the collision occurred, but objecting to his giving opinion evidence on the question of where the occupants of the truck were sitting at the time of the collision, on three bases: (1) lack of expertise, clearly not conceded in relation to this issue; (2) that the opinion to be offered was based on hearsay (“statements he has read, based on information he was given”); and (3) that to permit him to offer an opinion on this issue would usurp the role of the trial judge, offering conclusion on the issue that was for the court to decide. [32] Although Crown counsel indicated, in response, that he did, indeed, intend to elicit from this witness his opinion as to where the occupants of the truck were sitting at the time of the collision, no evidence was at any time offered as to his expertise to do so, other than his curriculum vitae, which was filed. An examination of the CV is, in my view, unhelpful on this point, in that it consists simply of list of number of courses taken by Constable Gibson in the area of “accident reconstruction” and list of the times that he had been qualified to give expert opinion evidence in relation to “accident reconstruction” in court. In particular, there is no indication of the content of any of these courses. [33] Having made his initial objection, defence counsel did not cross-examine the witness on his qualifications. Rather, this exchange occurred: THE COURT: Well, let’s hear his qualifications then. MR. KLAUSE: Okay, sure. THE COURT: Yes, and then we’ll deal with it as we can. MR. KLAUSE: Okay. THE COURT: Yes. MR. BODNAR: Unless the good thing of not having jury is that there are things that may be said that may not be admissible and Your Lordship can disregard them THE COURT: Well, that’s MR. BODNAR: and if you wish THE COURT: always MR. BODNAR: to proceed that way, then that’s fine. THE COURT: That’s think that’s the way MR. KLAUSE: think that’s THE COURT: usually prefer to proceed. MR. BODNAR: Sure. Well, I’m not going to object to this witness being sworn as an expert in reconstruction. THE COURT: In accident reconstruction. MR. BODNAR: It’s question of how far you let him go. THE COURT: Yes. Okay. MR. KLAUSE: So we’ll just file his C.V. then with Your Lordship, or do you still THE COURT: File the C.V. and then we’ll MR. KLAUSE: Proceed? THE COURT: Yes. [Transcript p. 144, l. 12 p. 145, l. 17] [34] Constable Gibson was then questioned at length as to his opinion in relation to which of Mr. Bear or Ms McDermott was the passenger and which the driver. Defence counsel objected during the examination to this line of questioning only once, recorded in the following passage, which follows fairly extensive testimony from Constable Gibson of his observations of the damage to the interior of the truck cab and his opinion as to how this damage might have been caused by the movement of the occupants: THE WITNESS: Okay. We now go to what we know of the occupants of of the motor vehicle. If we go to the Helen McDermott first, at that particular point. Helen McDermott provides statement to Constable Keen. She allows Constable Keen to take some photographs of of her and the related injuries. From the photographs she has damage to her or injuries noted to her right arm, and she also has injuries to her the right side of her head at that particular point. She outlines set of facts to Constable Keen. Those facts become consistent with the accident. The facts MR. BODNAR: Well, object, My Lord. He is not finder of fact. We don’t have the statement before us, and Ms. McDrmott is not here for cross-examination on that. That’s just completely improper to get into this particular manner of trying to reconstruct referring to statement that’s not before the court, and suggest that this witness cannot do it. He is trying to usurp your function. MR. KLAUSE: My position is that witness testified, My Lord, and you’ll recall that she testified that she had lacerations on her arm, on the underside. Constable Pfeil noticed those THE COURT: Well, I’ve got her evidence as to what MR. KLAUSE: Right. THE COURT: she said. MR. KLAUSE: Right. It’s before the court, so just referring to her statement and the photographs he observed of her lacerations. So think it’s MR. BODNAR: But THE COURT: Well, he did observe photographs. MR. BODNAR: But trying to tell us that her evidence or her statement is consistent with what’s in this truck is completely improper. THE COURT: Well, he isn’t saying that she said she was sitting in the passenger side. He’s saying, as understand it, Mr. Bodnar, he’s saying what she said her injuries were. We had her on the witness stand. She was cross-examined by you as to what injuries she sustained. MR. BODNAR: don’t believe that we’re referring to the injuries here, and what this constable is referring to is the injuries. And THE COURT: Well, if he’s referring to the injuries MR. BODNAR: Well, that’s THE COURT: have no problem with that. MR. BODNAR: That’s fine. My objection is in, and Your Lordship can reserve on this and deal with it later, if necessary. Thank you. [Transcript p. 196, l. p. 198, l. 8] [35] This objection, in my view, was well taken and ought to have been sustained. It is clear that the opinion of this expert was influenced, at least in part, by reading statement taken from Ms McDermott at the scene of the accident. This statement was not before the Court and, in any case, should not have been relied upon by this witness to determine where the passengers in the truck were sitting. It was not for him to evaluate the evidence of Ms McDermott and draw conclusions from it. In fact, the transcript makes it clear that Constable Gibson read the reports of the police officers and the ambulance attendants who attended at the scene of the collision, examined photographs of Ms McDermott’s injuries, and read Mr. Bear’s medical records before coming to his conclusions. [36] In my view, this witness’s evidence as to how the bodies might have moved within the vehicle in the course of the collision and its aftermath, and, in particular, his conclusory opinion that Ms McDermott was the passenger and Mr. Bear the driver, ought not to have been received in the absence of ruling that he was qualified as an expert in relation to these matters, that his expertise was necessary in relation to the subject matter of his testimony, and that his opinion was based on facts before the Court. [37] This conclusion raises the question of whether, notwithstanding this error, this Court should conclude that no substantial wrong or miscarriage of justice has occurred, pursuant to s. 686(1)(b)(iii) of the Criminal Code, which will address below. Convicting the Appellant in the absence of charge pursuant to s. 253(a) of the Criminal Code [38] The appellant was charged and convicted with offences pursuant to s. 255(2) and s. 255(3) of the Criminal Code. These provisions read as follows: 255(2) Every one who commits an offence under paragraph 253(a) and thereby causes bodily harm to any other person is guilty of an indictable offence and liable to imprisonment for term not exceeding ten years. (3) Every one who commits an offence under paragraph 253(a) and thereby causes the death of any other person is guilty of an indictable offence and liable to imprisonment for life. [39] The appellant points out that these are really the punishment provisions and argues that conviction requires that the appellant has been charged with an offence pursuant to s. 253(a) (impaired driving). [40] I find no merit in this ground of appeal. Impaired driving causing death and bodily harm are routinely charged in this manner. Even if this is technical error, which doubt, no objection was taken to it at trial and, more to the point, the indictment is unambiguous and it is abundantly clear that the appellant was made fully aware of the precise offence with which he was charged and the case he had to meet. Failure of the trial judge to make an express finding that the impairment of the driver of the truck caused the collision [41] The agreed statement of facts filed by the parties at the trial contained an admission that the appellant was impaired at the time of the collision and that the collision caused the death of Ms Bergen. In fact, it is admitted that at the time of the accident the blood alcohol content of the appellant was 267 milligrams of alcohol in 100 milliliters of blood, more than three times the legal limit. The evidence was overwhelming that the injuries to Ms McDermott were also caused by the collision. In oral argument, counsel for the defence indicated to the trial judge that the only issue to be determined at the trial was whether the Crown had proven beyond reasonable doubt that the appellant was the driver of the truck. [42] There was evidence before the trial judge that the truck was going at very high speed for city street when it entered the intersection, and that the driver ran stop sign. Causation is established in relation to these offences if the trial judge is satisfied beyond reasonable doubt that the impairment of the driver was at least contributing cause of the collision outside the de minimis range as the test in R. v. Smithers, 1977 CanLII (SCC), [1978] S.C.R. 506 has been held to apply to these offences. See R. v. Halkett (1988), 1988 CanLII 4877 (SK CA), 73 Sask. R. 241 (C.A.). It is my respectful view that causation was so readily established on the evidence that mention of it was not necessary in this context. It was essentially admitted in the submissions of defence counsel. No substantial wrong or miscarriage of justice? [43] Having found that the trial judge erred in accepting some of the expert opinion evidence offered by Constable Gibson, turn to the question of whether, notwithstanding this error, the appeal should be dismissed on the basis that no substantial wrong or miscarriage of justice has resulted, as provided in s. 686(1)(b)(iii) of the Criminal Code. [44] The Crown points out that much of the testimony of Constable Gibson was purely descriptive—in effect, an eye witness account of his observations at the scene of the collision. He also took number of samples from the vehicle that were subsequently submitted for DNA analysis. The result of the analysis was admitted without objection. In addition, he gave evidence in relation to his acknowledged expertise in relation to the speed of the vehicles as they entered the intersection and at the time of the collision, and the movement of the vehicles following the collision. In this respect, of particular note was the following evidence: (1) Inspection of the seatbelts revealed no “loading”, indicating that neither the passenger nor the driver of the truck was wearing seatbelt at the time of the collision. (2) The speed of the truck as it entered the intersection was opined to be between 91 and 99 kilometers per hour; that of the car, 25-59 kilometers per hour. (3) On the windshield of the truck, on the passenger side, there were two concentric areas, pushed out. In these areas was what appeared to be hair and flecks of blood. Samples were taken and analyzed. DNA analysis matched that of Ms McDermott. (4) DNA analysis of hair caught between the doorframe and the weather strip on the passenger side matched that of Ms McDermott. (5) DNA analysis of hair caught in screw above the windshield on the passenger side matched that of Ms McDermott. [45] The trial judge indicated that the issue before him was whether the Crown had proven, beyond reasonable doubt, that the appellant was driving the truck at the time of the collision. He recognized the conflict in the evidence between the appellant and Ms McDermott. He found Ms McDermott to be candid and credible. He found the testimony of the appellant to be fraught with inconsistencies. Particularly on cross-examination, the appellant appeared to be making the story up as he went along. The trial judge gave examples of this. He did not believe the testimony of the appellant’s mother and sister, and concluded that it was fabricated. He found that Ms Hunt was credible witness and that her evidence indicated that the appellant was in the driver’s seat. He also accepted the evidence of Mr. Trask, that the accused, when asked what caused the accident, replied that he was looking for his sunglasses. He concluded it was highly unlikely that he would have responded in this manner if he were only the passenger. He then went on: THE COURT: However, the most compelling evidence as to who was driving the truck, was Constable Gibson. found him to be very credible witness. He conducted thorough investigation of the truck and noted certain damage. He then related the evidence of the damage to the interior of the truck to the injuries suffered by the two occupants. accept his evidence that with the initial braking, the occupants would be thrust forward, and that when the collision occurred there would be slight shift movement to the right. The injuries to Ms. McDermott were consistent with the obvious impact to the passenger side window, the glove compartment and the pillar on the passenger side. His conclusions were supported by the DNA testing done on the hairs and flecks of blood which turned out to belong to Ms. McDermott. The black hairs on the outside of the passenger door, that could not be identified, do not cause me to doubt his evidence. Ms. McDermott obviously had very dark hair. At the time she said she had streaked her hair, but that did not mean that she had totally dyed it to lighter colour. The injuries to the accused were consistent with his being in the driver’s seat and hitting the steering wheel and some levers on the lower left-hand side. The accused attempted to explain away the red mark on his chest by suggesting that he was handcuffed and punched by the police. Notably he didn’t say which officer punched him. Apparently this beating and the uttering of racial slurs occurred when there were number of lay witnesses at the accident scene. accept the evidence of Constable Hudec that the accused was not handcuffed. Constable Hudec was not cross-examined as to any alleged punching of the accused. totally reject the suggestion that the accused was subjected to police brutality. His explanation as to why he would not have laid complaint if such conduct occurred was frankly pathetic. find, as fact, that Ms. McDermott exited the truck through the passenger side window. It would have been impossible for that to have happened if the accused was sitting in the passenger seat. When weigh and consider all the evidence, am satisfied beyond reasonable doubt that the accused was driving the truck when it collided with the car being driven by Ms. Bergen. [Transcript p. 372, l. 23 p. 374, l. 16] [46] While this passage makes it clear that the trial judge placed considerable reliance on the testimony of Constable Gibson, it is clear that this related, in very large part, to his description of the damage to the vehicle and his evidence in relation to the DNA samples taken. The admissibility of this evidence was not challenged. [47] Without going into detail, my review of the cross-examination of the appellant supports the trial judge’s assessment of it as unbelievable. [48] It is my respectful view that in light of the trial judge’s findings of credibility, and the results of the DNA analysis of the samples taken, the evidence overwhelmingly supports the verdict reached by the trial judge. It is my view that the conclusory opinions expressed by Constable Gibson in relation to the movements of the occupants in the truck, and as to who was driving the vehicle, played no meaningful role in conclusion that was, in any case, compelled by the remaining evidence. [49] These points also address the final ground of appeal: that the verdict was unreasonable and not supported by the evidence. The appellant’s primary concern is the rejection of the trial judge of the testimony of the appellant’s sister and mother. This is clearly finding of credibility and is within the province of the trial judge. find no basis to interfere with his finding in this regard. [50] Accordingly, I would conclude that notwithstanding the errors apparent in the receipt of opinion evidence from Constable Gibson, there was no substantial miscarriage of justice in this case. I would dismiss the appeal from conviction. Sentence Appeal [51] The trial judge determined that an effective sentence in this case would be term of imprisonment of six years. After giving the appellant credit of one year for approximately six and one-half months spent on remand, he imposed term of five years in prison. He also imposed lifetime driving prohibition and made DNA order. [52] The appellant argues that this sentence falls outside the range of sentences set by this Court in number of previous cases. [53] At the time of this offence the appellant was 31 years old (date of birth:5 November 1972). He has two children, young son born of marriage in 2005 and nine year old son of previous relationship whom he raised as single parent until the child was three and one-half years old, and of whom he now has joint custody. He operates business that does tree trimming and removal, some landscaping and hauling and has firewood contracts with several local businesses and is said by his character witnesses to be hard worker, caring father and good employer. He has taken one year welding course and one year mechanics course. He also took three years of Social Work at SIFC (now First Nations University of Canada), but did not finish it as he stayed at home to raise his eldest son. [54] The appellant has criminal record, beginning when he was 19 years old, in 1991. It includes convictions for theft under $1,000 (1991), use of credit card obtained by crime (1991), assault, break, enter and theft and uttering threats (1994), and substantial number of convictions for failure to comply with terms of recognizance and failure to attend court. Directly related to this offence are three previous convictions for driving with more than 80 mgs. of alcohol in his blood (1991, 1993 and 1998) and two previous convictions for driving while disqualified (1995 and 1998). In relation to the 1993 offence he was also charged with failing to stop at the scene of an accident. In his pre-sentence report he was rated as high risk to reoffend, based primarily on his record of numerous failure to comply offences and his alcohol abuse. He has continued to maintain that he was wrongfully convicted for the within offence. [55] The trial judge emphasized the appellant’s previous criminal record and, in particular, the three previous drinking and driving offences. He noted that in 2001 Parliament had amended s. 255(3) of the Criminal Code to increase the maximum sentence available from 14 years to life imprisonment, indicating an intention that this offence should be dealt with severely. He considered the evidence of the manner of driving in this case—the speed involved and failure to stop at stop sign, and the degree of impairment of the appellant and concluded that the appropriate range for this offence for this accused is between four and eight years. He indicated that in these circumstances the most important sentencing factors are to denounce drinking and driving and to deter the accused and others from committing such offences. He noted that the appellant had not accepted responsibility for this offence and, to the contrary, had attempted to shift the blame on Ms McDermott. [56] We are unable to conclude that the trial judge committed any error of principle in coming to his conclusion that an appropriate sentence in this case would be six years imprisonment. [57] The appellant argues that the sentence imposed was, however, outside the range of sentences imposed for similar offences. While I agree that the sentence imposed was at the high end of the available range, I am unable to conclude that it was outside the range available on the circumstances of this case. Many of the cases cited by the appellant predate the 2001 amendment to this section of the Code. Circumstances also vary widely in terms of the manner of driving, the degree of impairment, the previous criminal record in relation to alcohol related offences and whether, by way of mitigation, the accused has accepted responsibility and shown remorse. [58] In R. v. Regnier, 2002 SKCA 82 (CanLII), 219 Sask.R. 316, this Court considered Crown appeal from concurrent sentences of four years each in relation to charges of criminal negligence causing death and criminal negligence causing bodily harm. The respondent had previous record of five previous convictions for impaired driving in addition to other offences. At the time of the offence his blood alcohol level was two and one-half times over the legal limit. He was speeding and driving on the wrong side of the road and collided head on with vehicle driven and occupied by the victims. [59] This Court indicated that the appropriate range of sentences for such offences was between two and seven years imprisonment and increased the sentences imposed from four to six years, concurrent. [60] Although that case dealt with technically more serious offence, the circumstances of the two cases do not differ substantially. [61] Accordingly, am unable to conclude that the sentence imposed in this case was outside the appropriate range of sentences. The sentencing judge made no error of principle and the sentence was not demonstrably unfit. DATED at the City of Regina, in the Province of Saskatchewan, this 23rd day of December, A.D. 2008. “Smith J.A.” concur. “Cameron J.A.” CAMERON J.A. concur. “Lane J.A.”
The appellant was tried by Queen's Bench judge sitting alone and found guilty of operating a motor vehicle while his ability to operate the vehicle was impaired by alcohol, thereby causing death contrary to s. 255(3) of the Criminal Code, and causing bodily harm contrary to s. 255(2) of the Code. He was sentenced to 5 years imprisonment after having been given credit of 1 year for the time served on remand. The appellant appeals both his conviction and sentence. On the conviction appeal the appellant raises a technical ground in relation to the manner in which the appellant was charged as well as issues of the propriety and fairness of the cross-examination of himself by Crown counsel, the admissibility of his criminal record at trial, and the admissibility of opinion evidence proved in the testimony of the Crown's expert witness on accident reconstruction. He also argues that the trial judge failed to find that the fact that the appellant was impaired at the time of the collision was the cause of the collision and that his conclusion was unreasonable and against the weight of the evidence. HELD: Appeal dismissed.  1) The trial judge has a discretion pursuant to R. v. Corbett, [1988] 1 S.C.R. 670, to exclude prejudicial evidence of prior convictions in an appropriate case. This discretion is exercised by the trial judge on the application of an accused at the close of the Crown's case. See R. v. Underwood, [1998] 1 S.C.R. 77. As such an application was not raised in this case, and the questioning about previous convictions by the Crown was not objected to when it occurred, and the issue of the appellant's previous alcohol related offences was raised in the appellant's own examination in chief, this court concludes that there is no basis for this Court to conclude that the cross-examination was inappropriate or that the evidence adduced was inadmissible.  2) It is not proper for Crown counsel to ask an accused on cross-examination to explain the testimony of a Crown witness, and that it is highly unfair and prejudicial to require an accused to agree with a Crown witness or stigmatize that witness as a 'liar'. Crown counsel should not have put these sorts of questions and the trial judge ought not to have permitted them. Defence counsel did not object to them. However, this Court is not satisfied that this error had any effect on the trial and this ground of appeal fails.  3) The Crown elicited opinion evidence from Constable Gibson in the area of accident reconstruction. No evidence was at any time offered as to his expertise to do so, other than his curriculum vitae, which was filed. This witness's evidence as to how the bodies might have moved in the vehicle in the course of the collision and its aftermath, and in particular, his conclusory opinion that Ms. McDermott was the passenger and Mr. Bear the driver, ought not to have been received in the absence of a ruling that he was qualified as an expert in relation to those matters, and that his expertise was necessary in relation to the subject matter of his testimony, and that his opinion was based on facts before the Court. 4) The appellant was charged and convicted with offences pursuant to s. 255(2) and s. 255(3) of the Criminal Code. The appellant argues that conviction requires that the appellant has been charged with an offence pursuant to s. 253(a). There is no merit in this ground of appeal. Impaired driving causing death and bodily harm are routinely charged in this manner. 5) This Court's review of the cross-examination of the appellant supports the trial judge's assessment of it as unbelievable. In light of the trial judge's findings of credibility, and the results of the DNA analysis of the samples taken, the evidence overwhelmingly supports the verdict reached by the trial judge that the appellant was driving. The conclusory opinions expressed by Constable Gibson in relation to the movements of the occupants in the truck, and as to who was driving the vehicle, played no meaningful role in a conclusion that was, compelled by the remaining evidence. Notwithstanding the errors apparent in the receipt of opinion evidence from Constable Gibson, there was no substantial miscarriage of justice. The appeal from conviction is dismissed. 6) The trial judge did not commit any error of principle in coming to the conclusion that an appropriate sentence was 6 years imprisonment. While the sentence is at the high end of the available range, it is not outside the range available in the circumstances of this case.