COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Barkho, 2016 ONCA 62

DATE: 20160121

DOCKET: C56592

Weiler, Tulloch and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Hanna Barkho

Appellant

Raymond Boggs, for the appellant

David Friesen, for the respondent

Heard and released orally: January 19, 2016

On appeal from the conviction entered on October 24, 2012 by Justice Peter Tetley of the Ontario Court of Justice, sitting without a jury.

ENDORSEMENT

[1] The Crown alleged that the appellant, along with 10 other individuals, staged a two vehicle collision in order to fraudulently obtain monetary compensation from two insurance companies, Wawanesa Insurance and Axa Insurance. The appellant was found guilty on two counts of fraud, two counts of conspiracy to commit fraud, one count of obstructing the police, and one count of public mischief.

[2] The appellant was found not guilty on one count of obstructing justice and the trial judge stayed the conviction for obstructing police pursuant to the Kienapple principle.

[3] The appellant appeals his convictions. He asks that this Court quash his convictions and enter an acquittal or a judicial stay based on the lack of trial within a reasonable time. In the alternative, the appellant requests a new trial.

Issue 1: Did the Trial Judge Render an Incorrect Verdict on the Appellant’s s. 11(b) application?

[4] During the trial, the appellant brought an application asking that the charges be stayed on the basis of unconstitutional delay contrary to s. 11(b) of the Charter. The application was dismissed.

[5] The trial judge noted that the appellant’s co-accused had waived the delay but that should not impact the appellant’s rights.

[6] The trial judge recognized that an institutional delay of approximately 11 and half months had occurred in this case. Overall, the trial judge stated that the delay at issue was between 13 to 14 months, a delay which fell outside the Morin guidelines.

[7] The trial judge also recognized that the primary cause for the delay was the lack of resources on the part of the Crown to try the case. He found, however, that the delay was justified and the application was dismissed because: (a) the case was a particularly complicated one, initially involving 11 defendants; (b) of the societal interest in the adjudication of the case on its merits; and (c) the delay did not result in any serious prejudice to the appellant.

[8] The appellant challenges the trial judge’s finding that there was no serious prejudice to him. He submits that he suffered prejudice from the delay because his memory was weaker than it would have been had the matter come to trial in the normal course.

[9] The appellant acknowledges that there were events that he did not recall shortly after the incident in question. He also acknowledges that his memory was refreshed by statements made shortly after the accident.

[10] The appellant has not shown any palpable and overriding error in the trial judge’s assessment of prejudice.

[11] The appellant also challenges the finding that the trial was complicated. He submits that the precharge delay of a year allowed the Crown to marshall its case. The case should have proceeded more expeditiously notwithstanding that 11 people were initially charged. At the first trial date, the charges were withdrawn against all of the accused except against Ms. Yearwood, the driver of the other vehicle who pled guilty, and the appellant. The appellant submits that, as a result, the Crown cannot rely on the delay from the number of people involved and the complexity of the case.

[12] We agree with the trial judge that while the delay exceeded the guidelines slightly, the case was complicated. The time the Crown required to decide against whom to proceed was part of a justifiable processing delay and was properly characterized by the trial judge. We have no basis to interfere with the trial judge’s decision.

Issue 2: Did the Trial Judge err by Failing to Reconcile the Discrepancies Between the Testimony of Various Crown Witnesses?

[13] Mr. Jenkins, an expert witness accident reconstructionist called by the Crown, stated that the damage to the appellant’s vehicle occurred when it was hit from behind while being elevated by a tow truck on the shoulder of the highway. However, Ms. Yearwood gave a statement to her insurance company in which she claimed that the accident occurred in the middle of the highway.

[14] The trial judge accepted Mr. Jenkins report and testimony, most of the evidence of Ms. Yearwood, the evidence of Mr. Quinn, an investigator with the Insurance Bureau of Canada who identified a number of hallmarks of staged collisions, and the evidence of Cst. Kazmi who testified regarding what he witnessed that night which caused him to suspect that the collision had been staged. The trial judge rejected Ms. Yearwood’s evidence that the vehicle driven by the appellant had not been raised as that had been contradicted by other Crown witnesses. The trial judge concluded that the evidence of the appellant was unreliable and lacking in credibility. The trial judge rejected the evidence or the eyewitnesses who supported the appellant’s version of events.

[15] The appellant submits that the trial judge ought to have accepted the evidence of the eyewitnesses who claimed that the collision occurred in the middle of the highway. He also submits that the trial judge erred in rejecting the evidence of Ms. Yearwood that the car was never elevated.

[16] The investigating officers observed rust particles on the side of the road and the trial judge heard evidence as to what that meant. There was no indicia of contact between two cars in the middle of the road.

[17] The trial judge’s reasons indicate he was aware of the alleged inconsistencies pointed out by the appellant. The trial judge was entitled to accept some, all or none of the eyewitness evidence in assessing credibility. Information from the black box of the car showed that the initial collision was at 15 km/h and the air bags did not deploy. The trial judge was entitled to rely on the expert evidence and to reject the evidence of the eyewitnesses including the part of Ms. Yearwood’s evidence that the car had not been elevated. His reasons do not disclose any palpable and overriding error in his findings of fact. Accordingly this ground of appeal is also dismissed.

[18] A related ground of appeal in the appellant’s factum is that the trial judge erred by not stating that a Vetrovec warning was required with respect to Ms. Yearwood’s evidence because she had a criminal record for crimes of dishonesty. The trial judge addressed the fact Ms. Yearwood had been a co-conspirator in his reasons. The judge is not required to give himself a Vetrovec caution in a judge only trial because judges are presumed to know the law.

The Other Grounds of Appeal

[19] With respect to the public mischief charge, the trial judge thoroughly canvassed the issue and we see no error in his analysis.

[20] With respect to the Kienapple ground raised, the two fraud charges related to conduct against different victims and the conspiracy to commit fraud related to two different delicts. Thus there was no error in refusing to stay any of the offences of which the appellant was found guilty.

Disposition

[21] The appeal is dismissed.

“Karen M. Weiler J.A.”

“M. Tulloch J.A.”

“David Brown J.A.”