J. Dated: 20021108 2002 SKCA 122 Docket: 500 THE COURT OF APPEAL FOR SASKATCHEWAN Coram: Bayda C.J.S., Sherstobitoff Jackson JJ.A. LAWRENCE WILLIAM DIDUCK and HER MAJESTY THE QUEEN COUNSEL: Lawrence W. Diduck on his own behalf Lane Wiegers for the Crown DISPOSITION: On Appeal From: Q.B. Crim. 1886, J.C. of Yorkton Appeal Heard: November 5, 2002 Appeal Dismissed: November 5, 2002 (orally) Written Reasons: November 8, 2001 Reasons By: The Honourable Mr. Justice Sherstobitoff In Concurrence: The Honourable Chief Justice Bayda The Honourable Madam Justice Jackson SHERSTOBITOFF J.A. (orally) [1] Mr. Diduck, the procedure in this Court is for the judges to prepare for the hearing of cases by reading all of the record of proceedings in advance of the hearing of the appeal. In this case, all of the members of the Court read your notice of appeal, the relevant portions of the transcript of the trial proceedings, and the Crown factum prior to hearing your arguments today. We are all fully familiar with what happened. [2] We are unanimous in our opinion that your appeal against both conviction and sentence must be dismissed. [3] Your first ground of appeal was that transcripts of court proceedings in previous cases were not available to you, and that the Court would not subpoena certain witnesses whom you wished to call to give evidence on your behalf. We all agree that Mr. Justice Zarzeczny made no error in ruling that all of the evidence to be derived from these sources was irrelevant to the charges against you, being too remote in time, being unrelated to the charges which were the subject matter of the trial, and being unnecessary to establish your state of mind which was adequately established by your own evidence and your summation to the jury. [4] Your other ground of appeal was that your state of mind at the time you made the telephone calls which were the subject of the charges somehow exonerated you from responsibility for them. This defence was put to the jury through your own evidence, through your summation to the jury, and by the following portion of the judge’s summation to the jury: Finally, the accused, Lawrence Diduck, gave evidence on his own behalf at this trial. He testified that he had had number of previous encounters and dealings with the RCMP which caused him to be fearful of them. He alleges he was seriously assaulted and injured during one of those encounters at his home. He testified that he had filed number of formal complaints against the members of the RCMP and that these were being investigated. His evidence was that he was frustrated with and fearful of the RCMP and with the legal proceedings against him generally involving the RCMP and others and it was in these circumstances that when he received the phone message from Constable Rusty Spragg in January of 2001, he made the phone calls and left the two messages he did at the Esterhazy and Langenburg RCMP offices out of- acting out of fear, anger and frustration. In these circumstances for these reasons, he testifies his purpose and intent in the messages overall was to be left alone; it was not his purpose and intention to be threatening. [Transcript pp. 190-91] Your defence, such as it was, was fully and fairly put to the jury which chose not to accept it. Since your defence was fully and fairly put, it cannot be said that you did not have fair trial. [5] As to the appeal against sentence, since the sentence was limited to time already served by you while awaiting trial, it is now moot: that is, there is no issue to be decided. Were we to rule upon its fitness, we would have no difficulty in finding it fit. [6] The appeals against both conviction and sentence are dismissed.
Appeals of sentence and conviction on the grounds the transcripts of court proceedings were not available; the court would not subpoena certain witnesses on his behalf; his state of mind when he made the telephone calls exonerated him. HELD: The appeals against conviction and sentence were dismissed. The judge made no error in ruling that all of the evidence from the prospective witnesses and transcripts was irrelevant as being unrelated to the charges and too remote in time. The appellant's state of mind was adequately established by his own evidence and the summation to the jury. The defence was fully and fairly put to the jury which chose not to accept it. The sentence appeal was moot since it was limited to time served while awaiting trial. The Court would have found the sentence to be fit in any event.