Court of Appeal for Ontario

Citation: R. v. Dawson, 2016 ONCA 869

Date: 2016-11-17

Docket: C60150

Before: Hoy A.C.J.O., Doherty and van Rensburg JJ.A.

Between

Her Majesty the Queen

Respondent

and

Christopher R. Dawson

Applicant (Appellant)

Counsel:

John K. Lefurgey, for the appellant

Kathleen Healey, for the respondent

Heard and released orally: November 9, 2016

On appeal from the conviction entered on May 13, 2014 by Justice R.H. Turnbull of the Superior Court of Justice, and the sentence imposed on January 22, 2015.

ENDORSEMENT

[1] This was a single issue trial – did the appellant know that the package given to him by the man named McIntyre contained cocaine.

[2] The appellant testified and denied that he had any knowledge of the contents. The assessment of the appellant’s credibility was central to the outcome of the case. The trial judge concluded that the appellant’s testimony was incredible. He gave cogent reasons for that finding. It is fair to say that the appellant’s evidence stretched credulity.

[3] The appellant alleges that the credibility finding made by the trial judge was tainted by three misapprehensions of the evidence. To succeed on a submission based on an alleged misapprehension of the evidence, the appellant must show first, an error, that is, that the trial judge got the evidence wrong, and second, that the error was material in the sense that it played an essential role in the trial judge’s reasoning process: see R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732.

[4] We see no reason to describe each of the three alleged misapprehensions of evidence in any detail. The first relates to the evidence of a defence witness, Mr. Hoekstra. We see no error in the trial judge’s summary of that evidence.

[5] The second alleged misapprehension of the evidence arises out of the trial judge’s summary of the evidence describing the appellant driving into a Shell gas station at or about the same time as McIntyre drove into the gas station. The trial judge referred to this evidence during his summary of the evidence. His reference to the evidence is not entirely accurate. However, assuming some misapprehension of the evidence, that misapprehension had nothing to do with the trial judge’s rejection of the appellant’s evidence as to how he came to drive into the Shell station and meet with McIntyre. The trial judge’s reasons for rejecting that testimony are set out at para. 87. We need not repeat them. It is sufficient to say they are cogent indeed. The misapprehension of the evidence was not material to the rejection of the appellant’s evidence.

[6] The third alleged misapprehension relates to the appellant’s evidence about the exchange between him and McIntyre regarding the contents of the package at the time McIntyre asked the appellant to hold the package. The trial judge summarized this evidence, at para. 47. Like all summaries, the summary did not refer to the entirety of the evidence. However, there is nothing inaccurate in the summary. In any event, the trial judge’s findings with respect to this evidence, at para. 90, accurately summarized the thrust of the appellant’s evidence on this point. There is no misapprehension of the evidence.

[7] The appellant also alleges inconsistent findings of fact made by the trial judge concerning the impact of the appellant’s head injury on his ability to testify. The appellant contrasts the trial judge’s description of the effect of the head injury in the trial judge’s reasons for judgment with the trial judge’s description of the effect of the head injury in his reasons for sentence.

[8] Without accepting that an argument alleging inconsistent findings of fact, which compares findings made in reasons for judgment with findings made on sentence, can succeed, we see no inconsistent findings here. The reasons for judgment focussed on whether the head injury affected the appellant’s ability to understand the questions put to him, both at trial and during the police interview. The trial judge found that the head injury did not explain the appellant’s evasiveness and demeanour when answering the questions. There was nothing said on sentencing that contradicts that finding.

[9] This ground of appeal cannot succeed. The appeal is dismissed.

“Alexandra Hoy A.C.J.O.”

“Doherty J.A.”

“K. van Rensburg J.A.”