COURT OF APPEAL FOR ONTARIO

CITATION: R. v. King, 2013 ONCA 262

DATE: 20130426

DOCKET: C52433

Rosenberg, Watt and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Frederick King

Appellant

Mark Halfyard and Breana Vandebeek, for the appellant

Roger Shallow, for the respondent

Heard: April 23, 2013

On appeal from the conviction entered on June 10, 2010 by Justice John B. McMahon of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1] The appellant appeals from conviction by McMahon J. for various firearms offences as well as convictions for assault police, failure to comply with a recognizance and possession of cocaine for the purpose of trafficking. The grounds of appeal concern the reasons of the trial judge for his credibility findings on the Charter application and the trial proper. The appellant submits that the trial judge misapprehended the effect of inconsistencies in the officers’ evidence, especially where the officers’ evidence was contradicted by extrinsic evidence. Secondly, the appellant submits that the trial judge did not properly deal with the issue of collaboration by the two officers. We would not give effect to those submissions and accordingly, the appeal is dismissed.

[2] The standard of review for the type of errors alleged by the appellant is a strict one. The burden is on the appellant to show that the trial judge failed to direct himself to the relevant issues or that he erred in his appreciation of the evidence in a manner that could have affected the outcome. See R. v. Lohrer, 2004 SCC 80.

[3] There were many inconsistencies in the testimony of the two principal witnesses, Constables Parker and Van Wart. As the appellant fairly acknowledges, the trial judge identified most of them and provided reasons as to why they did not affect his ultimate decision that the officers were truthful and reliable on the core allegations. The appellant’s submission, at least as related to the two main inconsistencies relied upon, was that the trial judge’s treatment of the inconsistencies was inadequate. We do not agree.

[4] As to the assault on Constable Van Wart, the trial judge recognized that there was extrinsic evidence, in the synopsis prepared by Detective Bernardo, to support the appellant’s position that he did not assault the constable, but merely slipped out of his sweatshirt and fled. But, the trial judge did not ignore the inconsistency and he was entitled to accept the explanation for the inconsistency. Detective Bernardo’s explanation is not obviously absurd or patently unreasonable.

[5] As to the communication during the foot pursuit, again it was open to the trial judge to find that Constable Parker did not appreciate that Van Wart was attempting to arrest the appellant for breach of recognizance, not drug offences. Parker’s mistake was not unreasonable given that the appellant actually was on a recognizance for a drug offence and the attempted arrest was in an area known for drug trafficking activity. As the trial judge said, the objective facts were consistent with Parker’s evidence that he did not hear the bail conditions.

[6] As to the failure of the trial judge to mention Van Wart’s continued interest in the appellant’s driver’s licence, in our view, this was not a material inconsistency that rendered the credibility findings suspect. A fair reading of the evidence shows a confusing situation in which the officers did not initially appreciate the significance of the appellant’s possession of a cell phone. That Van Wart continued to seek information about the appellant’s driver’s licence status was not surprising given that state of affairs.

[7] The appellant’s second ground of appeal is a submission that the trial judge’s finding that the officers did not fabricate the reason for the arrest was unreasonable. This submission turned on the significance of the fact that the officers made their notes sometime after the events and after they had discussed the events. Counsel for the appellant points out in particular the unsatisfactory evidence given by Constable Parker in cross-examination.

[8] The appellant submits that the trial judge’s reasons for dismissing the fabrication submission were unreasonable. He submits that the allegation of fabrication could not be dismissed simply on the basis that if the officers were colluding and fabricating they did a bad job of it given the many inconsistencies in their evidence. The appellant submits that the inconsistencies are explained not by the fact that the officers did not collude but that they could not overcome the extrinsic evidence, especially the transcript of the dispatch recording. But, the trial judge dealt with this submission. He found that the inconsistencies went beyond simply tailoring their evidence to mean the transmission send by the dispatch. Accordingly, the trial judge found it much more likely that the inconsistencies supported the theory that the officers had not fabricated their evidence to frame the appellant and attempt to justify unconstitutional conduct. This was pre-eminently an issue for the trial judge and it was not open to this court to second guess the trial judge’s finding.

[9] The appellant abandoned his ground of appeal that the trial judge approached his assessment of the evidence in a piecemeal fashion and did not consider the cumulative effect of the various inconsistencies.

[10] Accordingly, the appeal from conviction is dismissed.

“M. Rosenberg J.A.”

“David Watt J.A.”

“S.E. Pepall J.A.”