COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Taibinger, 2023 ONCA 582

DATE: 20230906

DOCKET: C69983

Hourigan, Paciocco and Nordheimer JJ.A.

BETWEEN

His Majesty the King

Respondent

and

Troy Victor Taibinger

Appellant

Breana Vandebeek and Cameron Cotton-O’Brien, for the appellant

Sunil S. Mathai, for the respondent

Heard: September 5, 2023

On appeal from the convictions entered on March 16, 2021 by Justice John R. Sproat of the Superior Court of Justice.

REASONS FOR DECISION

[1] The appellant was found guilty of aggravated assault, dangerous operation of a motor vehicle, assault using a weapon, operation of a vehicle while disqualified, break and enter, and three counts of possession of property obtained by crime. At the hearing, we dismissed his appeal with reasons to follow. We now provide those reasons.

[2] The facts underlying the convictions are as follows. On the evening of September 9, 2015, an unknown person was challenged while attempting to steal gas cans from the garage of Elizabeth Balser. Later that night, Darren Heulchan and his wife were confronted by two unknown individuals riding ATVs. One of the riders left the scene, while the other had an altercation with Mr. Heulchan. During the incident, the assailant drove at and over Mr. Heulchan with his ATV on several occasions, badly injuring him. Relying primarily on the presence of the appellant’s DNA on a John Deere glove left at the scene and the appellant’s confessions, the trial judge found that the appellant was the rider who assaulted Mr. Heulchan and the person who broke into Ms. Balser’s garage.

[3] On his conviction appeal, the appellant raises three grounds of appeal: (i) the trial judge’s reasons provide no explanation why the testimony of witnesses who gave identification evidence that did not match the appellant did not give rise to reasonable doubt, (ii) the trial judge should not have accepted the evidence of one of the appellant’s friends, Roger Kennedy, and (iii) the trial judge erred in his treatment of a lost evidence application. We do not give effect to these grounds of appeal for the following reasons.

[4] Regarding the witnesses’ identification evidence, the trial judge’s reasons demonstrate that he was fully aware of the discrepancies between some of that evidence and the appellant’s appearance. Further, he understood that exculpatory identification evidence may result in an acquittal, even if not accepted as true or correct. The trial judge identified the limitations of the witness identification evidence and explicitly considered whether the eyewitness identification evidence created a reasonable doubt. He determined, in the context of all the evidence, that the discrepancies did not raise a reasonable doubt. We are not satisfied that the trial judge erred in his assessment of the identification evidence and, therefore, there is no basis for this court to interfere.

[5] With respect to the evidence of Mr. Kennedy, the appellant confessed to him on multiple occasions and then later recanted his confessions. Mr. Kennedy recounted conversations in which the appellant bragged about a fight he had with a local farmer. However, Mr. Kennedy also knew the appellant to be untruthful and testified that the appellant had also told him a story in which he observed the assault on Mr. Heulchan, rather than participating in the assault. On another occasion, the appellant told Mr. Kennedy that he used a pipe during the assault, which was not established on the evidence at trial. Mr. Kennedy could not clearly recall the dates of these conversations.

[6] The appellant submits that Mr. Kennedy’s evidence should not have been accepted because he had difficulty remembering when he had various discussions with the appellant, the statements he made varied, and Mr. Kennedy testified that the appellant was prone to exaggeration. The trial judge explicitly addressed the appellant’s tendency to exaggerate, finding that it was a logical leap to suggest that someone who exaggerates his ability to hunt, fish, and form concrete would falsely claim responsibility for an assault. The trial judge’s credibility and reliability findings were anchored in the evidence heard at trial and also accord with common sense. It was open to him to find that Mr. Kennedy’s evidence was credible and reliable, and that the appellant’s confession was credible and that his recantations were not. These findings are owed deference. The appellant has not established any basis for interfering with them.

[7] Regarding the lost evidence application, the appellant alleged that the police lost two items: (1) a second John Deere glove, and (2) a Kombi winter mitten that was found by a canine team approximately one kilometer from the scene of the assault. He submitted that these items could have provided exculpatory evidence but were lost through investigative negligence. In dismissing the application, the trial judge found that there was only one John Deere glove and that the Kombi winter mitten was not associated with the crime. These factual findings, which are determinative of the lost evidence application, were well rooted in the evidence and are dispositive of this ground of appeal.

[8] It is for these reasons that the appeal was dismissed.

“C.W. Hourigan J.A.”

“David M. Paciocco J.A.”

“I.V.B. Nordheimer J.A.”