nan THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2010 SKCA 79 Date: 20100610 Between: Docket: 1598 Her Majesty the Queen and David Raymond Horkoff Coram: Gerwing, Jackson and Richards JJ.A. Counsel: Douglas G. Curliss for the Crown Hans J. Doehring for the Appellant Appeal: From: Q.B. No. 2039 of 2007, Judicial Centre of Yorkton Heard: June 10, 2010 Disposition: Dismissed (Orally) Written Reasons: June 15, 2010 By: The Honourable Mr. Justice Richards In Concurrence: The Honourable Madam Justice Gerwing The Honourable Madam Justice Jackson Richards J.A. I. Introduction [1] Following a jury trial, David Horkoff was convicted of three drug offences and two Criminal Code driving offences. He was sentenced to a total of 35 months in prison. Mr. Horkoff appealed his convictions and his sentence, arguing that the former were unreasonable and the latter was too severe. We dismissed his appeals with oral reasons following argument and indicated that brief written reasons would follow. These are those written reasons. II. Basic Background [2] In 2002, the R.C.M.P. received information that Mr. Horkoff was involved in growing marihuana and proceeded to obtain warrant to search farmyard near Canora, Saskatchewan. The farmyard was registered in the name of Mr. Horkoff’s deceased father. On August 22, 2002, in preparation for the execution of the warrant, police officers were shown two pictures of Mr. Horkoff and told that he was likely driving white Tempo. [3] On that same day, the R.C.M.P. searched the farmyard. They discovered an active 323 plant marihuana grow-op. They also found scales, packaged marihuana, score sheets and plastic bags. [4] No one was present at the farmyard when the search was conducted. However, later in the day, R.C.M.P. Constable Badger and another officer riding with him observed white Tempo leave the farmyard and proceed toward them on rural road. Constable Badger stopped his patrol car and engaged the emergency lights. The driver of the Tempo, who Constable Badger identified as being Mr. Horkoff on the basis of the photographs, did not stop. After 41 kilometre high speed chase, the Tempo was driven into ditch and, although Constable Badger gave chase, the driver escaped on foot. [5] Some four years later, Mr. Horkoff was arrested on Salt Spring Island in British Columbia and brought to trial. Mr. Horkoff did not testify. However, the theory of his defence was that he had left Saskatchewan at or near the end of April 2002 and that someone else had driven the Tempo and had been operating the grow-op. He pointed, in particular, to James Holoboff. Mr. Holoboff gave evidence at the trial and denied any involvement with the grow-op and claimed he was not driving the Tempo. [6] Mr. Horkoff was ultimately convicted of: (a) unlawfully producing marihuana contrary to s. 7(1) of the Controlled Drugs and Substances Act (“CDSA”), (b) unlawfully possessing marihuana for the purpose of trafficking contrary to s. 5(2) of the CDSA, (c) unlawfully attempting to produce cannabis resin contrary to s. 7(1) of the CDSA, (d) operating motor vehicle in manner dangerous to the public contrary to s. 249(1)(a) of the Criminal Code, and (e) failing to stop his vehicle without lawful excuse contrary to s. 249.1(1) of the Code. [7] The trial judge imposed concurrent 30 month sentences for the production and possession offences, time-served sentence of one month for the attempt to produce offence and five month sentences (to be served concurrently with each other but consecutive to the drug sentences) for the dangerous driving and evading police offences. As result, the total sentence was 35 months. A. The Conviction Appeal [8] Mr. Horkoff says his convictions were unreasonable and cannot be supported by the evidence. He seeks to engage this Court’s jurisdiction under s. 686(1)(a)(i) of the Criminal Code: 686. (1) On the hearing of an appeal against conviction or against verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal (a) may allow the appeal where it is of the opinion that (i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence, [9] The root issue in an appeal based on s. 686(1)(a)(i) is well settled. The question is whether, on the whole of the evidence, the verdict reached by the jury was one that properly instructed trier of fact, acting judicially, could reasonably have rendered. See: R. v. Yebes, 1987 CanLII 17 (SCC), [1987] S.C.R. 168 at p. 186. [10] Mr. Horkoff grounds his argument on a number of concerns. They can be summarized as follows: (a) Constable Badger’s eye witness identification evidence cannot support a conviction, (b) the trial judge made inappropriate comments about whether, if it was Mr. Holoboff driving the Tempo, he could have outrun Constable Badger at the end of the car chase, (c) an adverse inference should have been drawn from the Crown’s failure to call the officer who was in the police car with Constable Badger, (d) the trial judge’s treatment of the photographs of Mr. Horkoff misled the jury about what had to be proven in order to establish that Mr. Horkoff was driving the Tempo, (e) the jury was improperly led to place particular reliance on an assessment of Mr. Holoboff’s credibility made by an R.C.M.P. officer who questioned him about possible involvement in the grow-op. will deal with each of these matters in turn. 1. Constable Badger’s Identification Evidence [11] Mr. Horkoff contends Constable Badger’s evidence as to the identity of the driver of the white Tempo was undercut by numerous considerations: (a) the Constable did not know Mr. Horkoff and had not seen him before the car chase, (b) the Constable was looking for white Tempo and had thereby been conditioned to expect Mr. Horkoff to be at the wheel, (c) the Constable had only limited opportunity to view the driver as the Tempo went past him, (d) the Constable was engaged in operating his cruiser when the Tempo drove by, and (e) it was dusk and the road was dusty at the time the Constable made the identification. [12] It is perhaps useful to begin by noting that Constable Badger’s position was not quite as compromised as Mr. Horkoff suggests. First, Constable Badger said it was daylight when the Tempo drove past (it was dusk by the time the car chase ended). Second, Constable Badger said nothing about it being dusty at the time he identified Mr. Horkoff. Third, Constable Badger was not operating his cruiser at the time the Tempo went by. He had stopped the cruiser and engaged the emergency lights. Fourth, Constable Badger said he got “good look” at the driver of the Tempo because he was able to observe him beginning when the Tempo was about 40 metres away and continuing through to the point when the Tempo passed by him only five feet away. [13] In our view, the issues identified by Mr. Horkoff do not operate to make his convictions unreasonable. The trial judge warned the jury about the dangers of eye witness identification evidence. In this regard, she explained that people had been wrongly convicted by such evidence and she underscored that an honest and apparently convincing witness can be mistaken on identification issues. The trial judge also laid out number of relevant factors for the jury to consider in assessing the reliability of Constable Badger’s evidence. [14] We note, as well, that this is not case like R. v. Bigsky, 2006 SKCA 145 (CanLII), [2007] W.W.R. 99 where the convictions turned exclusively on eye witness identification evidence. number of pieces of circumstantial evidence tied Mr. Horkoff to the grow-op: (a) the farm property where the grow-op was located was registered in his deceased father’s name, (b) the evidence suggested the farmhouse was being occupied by single male, (c) Mr. Horkoff’s fingerprints were found on the grow-op equipment and on various papers relating to the grow-op, and (d) personal cheques and papers belonging to Mr. Horkoff were found in the house. In addition, Mr. Holoboff testified that Mr. Horkoff had shown him the grow-op at one point. In response, Mr. Horkoff says that none of this necessarily means he was at the grow-op as late as August 22, 2002, the date of the alleged offences. However, Mr. Holoboff also said that, although he purchased the Tempo from Mr. Horkoff in 2002, he subsequently had left it and the keys with Mr. Horkoff for repair work and had done so prior to August 22, 2002. It was open to the jury to accept Mr. Holoboff’s version of events. [15] We readily acknowledge that Constable Badger’s identification evidence had its frailties. However, the jury was alerted to them and we are unable to conclude that Mr. Horkoff’s convictions were unreasonable in light of the evidence as a whole. 2. Whether Mr. Holoboff Could Have Outrun Constable Badger [16] Mr. Horkoff also is concerned that, in the course of her charge, the trial judge suggested the jury might wish to consider whether, with two or three second head start after the car chase, Mr. Holoboff could have successfully outrun Constable Badger. It appears that, at the time of the trial, Mr. Holoboff was not in good physical condition. Accordingly, in light of Mr. Holoboff’s age (he was 53 at the time of the offences) and physical circumstances, the consequence of the trial judge’s comment was significant. If Mr. Holoboff could not have outrun the Constable, this would suggest that it was Mr. Horkoff who had been driving the Tempo. [17] In our view, Mr. Horkoff’s argument on this point is misplaced. The trial judge recharged the jury on this very issue. After her original charge, and following Mr. Horkoff’s counsel’s disapproval of this aspect of her instructions, she recalled the jury and underlined that the physical condition of individuals changes over time. She also said that, just because Mr. Holoboff did not look like he could reasonably outrun Constable Badger on the trial date, this might not have been the situation six years earlier at the time of the offence. [18] Mr. Horkoff says this aspect of the recharge did not sufficiently neutralize the “speculative aspect” of the trial judge’s original comments. We do not agree. It was open to the jury to consider, on a common sense basis, whether it was likely that Mr. Holoboff could have outrun Constable Badger. The trial judge’s caution about changes in physical condition over time adequately put that issue into a proper perspective. 3. Failure to Call Constable Badger’s Passenger [19] Mr. Horkoff’s next complaint concerns the Crown’s decision not to call the R.C.M.P. sergeant who was in the patrol car with Constable Badger on the date of the offences. He says the sergeant was the more experienced officer and must have had better opportunity to see the driver of the Tempo than did Constable Badger. Mr. Horkoff’s argument, as we understand it, is that the trial judge had an obligation to tell the jurors they must draw an adverse inference from the fact the sergeant was not called to testify. [20] In our view, this argument involves misapprehension of the applicable law. In R. v. Cook, 1997 CanLII 392 (SCC), [1997] S.C.R. 1113, the Supreme Court underlined the broad discretion enjoyed by the Crown in the prosecution of offences. It specifically indicated that the Crown does not have duty to call all witnesses who have relevant testimony. There are situations, of course, where failure to call witness can properly lead finder of fact to draw the adverse inference that, if the witness has been called, his or her testimony would have been unfavourable to the Crown. See: R. v. Jolivet, 2000 SCC 29 (CanLII), [2000] S.C.R. 751 at paras. 22-30. However, even in such situations, it is the trier of fact who decides whether the inference should be drawn. [21] In this case, the trial judge clearly indicated to the jury that it could draw an adverse inference from the Crown’s failure to call Constable Badger’s passenger. She said it might appear “extremely relevant” that he was not brought forward to testify on the critical issue of identification. In the circumstances of this case, we are not persuaded that the trial judge was required to do more. Assuming this is in fact a situation when an adverse inference could have been drawn, the trial judge was not obliged to instruct the jury that it must proceed to draw the inference. 4. The Photographs of Mr. Horkoff [22] Mr. Horkoff also expresses concern about two photographs of him that were introduced as evidence at the trial. These were the photos Constable Badger had been shown before the execution of the search warrant. They were put into evidence after being identified by the Constable during the course of his testimony. [23] The pictures are full face and apparently were taken when Mr. Horkoff had been arrested in connection with prior incident. They were cropped so as to remove the “R.C.M.P.” labelling and other identifiers which are typically associated with such pictures. Mr. Horkoff’s counsel initially opposed the introduction of only one of the photos. He did so on the basis that it made Mr. Horkoff look like he had been drinking. However, he changed his position through the course of argument and ultimately objected to the introduction of both photographs on the ground that the jury would recognize them as being “mug shots.” The trial judge rejected this argument. In her view, the Crown was entitled to introduce both pictures because both had been shown to Constable Badger before the search. She did not believe the jury would see them as being mug shots. [24] In this Court, Mr. Horkoff’s main argument concerning the photographs is that the trial judge had left the jury with an erroneous sense of their significance. He says her charge would have led the jurors to believe that, if they concluded the photographs were of Mr. Horkoff, they should also conclude Mr. Horkoff was driving the Tempo. His concerns are rooted in part of the charge where the trial judge told the jurors they could decide for themselves whether the individual depicted in the photographs was Mr. Horkoff. [25] We are not persuaded by this aspect of Mr. Horkoff’s argument. When the charge is considered as a whole, we do not believe the jury was in any way left with the impression that, if it concluded the photographs were of Mr. Horkoff, it somehow followed that he was the driver of the Tempo. The resemblance between Mr. Horkoff and the individual depicted in the photographs was self-evidently only part of larger inquiry concerning the identity of the driver. 5. Constable Laurent’s Assessment of Mr. Holoboff [26] Mr. Horkoff also points to comments made by the trial judge that are said to have created an impression that Constable Laurent’s assessment of Mr. Holoboff’s credibility should be given special weight or consideration. The background to this submission can be briefly stated. Constable Laurent questioned Mr. Holoboff about his possible involvement in the grow-op and the car chase. During cross-examination of Constable Laurent, counsel for Mr. Horkoff pressed the Constable about his impressions of Mr. Holoboff. In response to counsel’s questions, Constable Laurent said he had believed Mr. Holoboff was telling the truth and that he did not believe Mr. Holoboff was connected to the grow-op. In her charge, the trial judge referred to Constable Laurent’s comments when reviewing how the jury should treat the evidence given by Mr. Holoboff. [27] We do not believe the jury was left with the impression that it should place special, or indeed any, weight on Constable Laurent’s assessment of Mr. Holoboff’s veracity. Three points merit special emphasis here. First, after referring to Constable Laurent’s statement that he believed Mr. Holoboff was telling the truth, the trial judge immediately went on to say “[o]bviously it is for you [the jury] to decide. You watched Mr. Holoboff testify. You watched him walk in and out of this courtroom. You will have formed your own opinions.” Second, the trial judge also told the jury it could accept some, none or all of Mr. Holoboff’s evidence. Third, in more general terms, the trial judge also instructed the jury to treat police witnesses like any other witnesses when assessing their testimony. While it would have been better if the trial judge had not referred to the contested aspects of Constable Laurent’s testimony in the way she did, her charge as whole would not have misled the jury about the significance of his comments. [28] It is also worth noting that the trial judge reviewed the circumstances under which Mr. Holoboff made his statement to police and underlined that he had reason to lie. [29] In sum, we are not persuaded that the trial judge’s remarks would have unduly or improperly influenced the jury’s assessment of Mr. Holoboff’s credibility. B. The Sentence Appeal [30] Mr. Horkoff acknowledges that the sentences imposed on him fall within the standard range of sentences for similar offences. He did suggest, however, that certain personal circumstances warrant his period of incarceration being reduced to time served. We are not persuaded by these submissions. [31] In the end, we are not persuaded that, either individually or collectively, the concerns raised by Mr. Horkoff warrant his convictions being set aside on the basis they were unreasonable or not supported by the evidence. Further, the sentences imposed by the trial judge were not demonstrably unfit. [32] The conviction appeals and the sentence appeals are dismissed.
The RCMP conducted search of farmland near Canora. They were also shown pictures of the accused who was likely driving white Tempo. The search revealed marijuana grow-op. The accused was later seen by officers driving. The officers chased the Tempo for 41 kms, but the vehicle was driven into the ditch, and the driver escaped on foot. Four years later the accused was arrested in British Columbia and brought to trial. The accused was convicted of three drug offences and two driving offences following a jury trial. He was sentenced to a total of 35 months in prison. The accused appeal both the convictions and the sentence. HELD: The accused argued the convictions were unreasonable and not supported by the evidence. The grounds were: (a) the officer's eye witness identification evidence cannot support a conviction; (b) the trial judge made inappropriate comments about whether the accused could have outrun the officer at the end of the car chase, if he was the driver; (c) an adverse inference should been drawn from the Crown's failure to call the second officer; (d) the trial judge's treatment of the photographs of the accused misled the jury about what had to be proven to establish the accused was driving the Tempo; (e) the jury was improperly lead to place reliance on an assessment of a witness's credibility made by an officer who questioned him about his possible involvement in the grow-op. The Court found: (a) the jury was alerted to the frailties of the officer's identification evidence, and the convictions were not unreasonable in light of the evidence as a whole; (b) it was open to the jury to consider whether the accused could have outrun the officer, and the judge's caution about changes in physical condition over time put the issue into a proper perspective; (c) the judge told the jury that it could draw an adverse inference from the Crown's failure to call the second officer, but the decision lies with the jury and the judge is not obliged to tell the jury that it must draw the inference; (d) when the charge is considered as a whole, the jury was not left with the impression that if it concluded the pictures were of the accused that it somehow followed that he was the driver of the Tempo; (e) the judge's remarks did not improperly influence the jury's assessment of the witness's credibility. The imposed sentences fall within the standard range for similar offences and were not demonstrably unfit.