NOVA SCOTIA COURT OF APPEAL Citation: R. v. Ogden, 2011 NSCA 89 Date: 20110926 Docket: CAC 335103 Registry: Halifax Between: Victoria Mae Ogden v. Her Majesty the Queen Respondent Judge: The Honourable Mr. Justice Jamie W.S. Saunders (Orally) Appeal Heard: September 26, 2011 Subject: Robbery. Identification. Credibility. Proof Beyond Reasonable Doubt. Summary: Appeal from conviction for robbery alleging error by the trial judge in his assessment of credibility. Held: Appeal dismissed. This robbery took place in small room with only three persons present. The trial judge did not fall into the trap of simply comparing the Crown and defence positions without then going on to assess the whole of the evidence to establish proof of guilt beyond reasonable doubt. In assessing all of the evidence the judge recognized that the ultimate issue was not credibility, but proof to criminal standard. This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of pages. NOVA SCOTIA COURT OF APPEAL Citation: R. v. Ogden, 2011 NSCA 89 Date: 20110926 Docket: CAC 335103 Registry: Halifax Between: Victoria Mae Ogden v. Her Majesty the Queen Respondent Judges: Saunders, Oland and Farrar, JJ.A. Appeal Heard: September 26, 2011, in Halifax, Nova Scotia Written Judgment: September 27, 2011 Held: Appeal dismissed per oral reasons for judgment of Saunders, J.A.; Oland and Farrar, JJ.A. concurring. Counsel: Luke A. Craggs, for the appellant Jennifer A. MacLellan, for the respondent Reasons for judgment: (Orally) [1] After short trial before Nova Scotia Supreme Court Justice Peter M.S. Bryson (as he then was), the appellant was convicted of robbery and sentenced to four years’ imprisonment. She now appeals her conviction on the single ground that the trial judge erred in law by treating the conflicting Crown and defence evidence as a credibility contest. [2] After carefully considering the record and counsels’ submissions we are unanimously of the opinion that the appeal ought to be dismissed. [3] The crime took place in room with only three persons present. Late in the morning of June 2, 2008, the appellant and her friend Tara Deviller visited Maurice LeBlanc in his apartment at 218 Main Street in Yarmouth. Space was tight, and described by its owner as “like big motel room”. Apart from the police officer whose testimony and photographs documented the scene and the injuries suffered by the victim, the only other witnesses were the appellant, Ms. Deviller and Mr. LeBlanc. [4] The judge found that Ms. Deviller sat on the couch across from the kitchen table where Mr. LeBlanc was seated and that at some point shortly after their arrival, the appellant got up and proceeded through doorway behind Mr. LeBlanc, purportedly to use the washroom. few moments later Mr. LeBlanc felt something wrapped around his throat. He was choked until he passed out. [5] When he regained consciousness, Mr. LeBlanc was lying on the floor and the appellant was crouching over him. He felt his wallet under his back. The appellant said nothing and left. Afterwards Mr. LeBlanc discovered that $110 was missing from his wallet. He called the police who quickly apprehended the appellant after discovering her hiding under bed at Ms. Deviller’s residence. She was on parole at the time. Ms. Deviller was located shortly afterwards. She told the officers she had been out buying cigarettes. [6] The police were unable to recover any of the money that Mr. LeBlanc had lost. Ms. Ogden was charged with robbery, and assault with weapon. Ms. Deviller was not charged with any offences relating to this incident. She gave statement to the police and testified as witness for the Crown against the appellant. [7] On cross-examination, Mr. LeBlanc did not waiver in his evidence that Ms. Deviller never left his sight and was still seated on the couch directly in front of him when he suddenly felt something being tightened around his throat. He tried to loosen it with his fingers but couldn’t, and ultimately passed out. He was insistent that as he felt the cord or belt going around his neck, Ms. Deviller was where she had always been, seated on the couch in front of him. [8] Ms. Deviller’s testimony supported the victim’s evidence. She said that she and Ms. Ogden had gone to Mr. LeBlanc’s apartment that morning to bum cigarette. She was sitting on his sofa smoking when the appellant went to use the bathroom. She observed Ms. Ogden wrap belt from bath robe around Mr. LeBlanc’s neck and choke the man until he passed out. Ms. Deviller said that as soon as she saw Mr. LeBlanc start to lose consciousness, she ran off because she already “had charges against her” and didn’t want to get involved in this incident. After she ran from the apartment she assumed the appellant removed Mr. LeBlanc’s money from his wallet, and fled. [9] The appellant took the stand in her own defence. She admitted that at the time of this offence she was on parole. She knew that if she were convicted, her parole would be revoked. Ms. Ogden said she was using crack cocaine at the time and bouncing around from friend to friend for place to sleep. While in Mr. LeBlanc’s apartment she admitted that she went to use the bathroom, but only to smoke the rest of her drugs in private without having to share it with others. She said that while inside the bathroom she could hear commotion. When she came out she saw Mr. LeBlanc lying on the floor with Tara Deviller saying “she had the money” as she ran out the door. The appellant said she didn’t really know what to do at that point because Mr. LeBlanc was “out cold” on the floor. She crouched over him and lifted his head to see that he was okay. When he came to he said he was going to call the police. She ran. She denied ever seeing his wallet, robbing or strangling Mr. LeBlanc, or being part of plan to rob him. [10] Justice Bryson’s oral decision was rendered shortly after hearing the evidence and detailed submissions from counsel. In his reasons he carefully reviewed the testimony offered by the witnesses who had just appeared before him. While Justice Bryson did not specifically refer to the principles set out in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, we are satisfied that he recognized their importance and that he did not fall into the trap of simply comparing the Crown and defence positions without then going on to assess the whole of the evidence to establish proof of guilt beyond a reasonable doubt. R. v. Mah, 2002 NSCA 99 (CanLII). [11] In the end, Justice Bryson accepted Mr. LeBlanc’s evidence as to what had occurred, accepted Ms. Deviller’s evidence as to who strangled the victim, and rejected the appellant’s testimony and denials of responsibility. Read as a whole, we are satisfied that the judge properly assessed all of the evidence, recognizing throughout that the ultimate issue was not credibility but reasonable doubt. We see no error in his conclusion that the appellant’s culpability for the robbery and the assault had been established beyond reasonable doubt. [12] For all of these reasons we would dismiss the appeal. Saunders, J.A. Concurred in: Oland, J.A. Farrar, J.A.
The defendant, who was in a very small apartment with two other individuals, got up from the couch and proceeded through a doorway behind the complainant, purportedly to use the bathroom. A few minutes later, the complainant found something wrapped around his neck and he was choked until he passed out. When he regained consciousness, he was lying on the floor with the defendant crouched over him. She left without saying a word and he later discovered that money was missing from his wallet, which he found under his back. The defendant was convicted of robbery when the complainant maintained that the third person in the room never left his sight and was still seated directly in front of him when he felt something being tightened around his throat. Although the third person's testimony supported the complainant's evidence, the defendant alleged that while she was in the bathroom, she heard a commotion and when she came out she saw the complainant lying on the floor and the other individual stated that she 'had the money' as she ran out the door. Not knowing what to do, she crouched over the complainant and lifted his head to see if he was okay. When he came to and said he was going to call the police, she ran because she was afraid of having her parole revoked. She appealed the conviction on the basis that the trial judge had erred in treating the conflicting Crown and defence evidence as a credibility contest. Appeal dismissed;  it was clear that the trial judge had accepted the complainant's evidence as to what had occurred along with the other witness' evidence as to who had strangled him and rejected the defendant's testimony and denials of responsibility. Although he did not specifically refer to the principles in R. v. Wry (1991) (SCC), the court was satisfied he recognized their importance and did not fall into the trap of simply comparing the Crown and defence positions without assessing the whole of the evidence. The complainant never wavered in his evidence that the other individual had never left his sight and was still seated directly in front of him when he felt something being tightened around his throat, which was supported by the other individual's testimony.