Digest: Horse v R, 2018 SKQB 308

• Date: November 13, 2018

Reported as: 2018 SKQB 308

Docket Number: CRM 104/16 JCB , QB18296

Court: Court of Queen's Bench

Date: 2018-11-13

Judges:

• Zuk

Subjects:

• Criminal Law � Appeal � Conviction
• Criminal Law � Defence � Colour of Right
• Criminal Law � Evidence � Credibility
• Criminal Law � Theft

Digest: The applicant appealed his conviction of theft of cell phone of a value of less than $5,000, contrary to s. 334(b) of the Criminal Code. The grounds of appeal were: 1) whether the trial judge erred in law by drawing an adverse inference from the appellant�s silence when detained and arrested by the police and by referring to the appellant�s silence as a �significant� factor in her determination of guilt; 2) whether the trial judge erred by ignoring or disregarding relevant evidence regarding the appellant�s intent, including: a) the corroborative evidence of a witness in its entirety; and b) the evidence from the appellant, the complainant, and the appellant�s girlfriend that the appellant placed a call to his girlfriend using the complainant�s cell phone immediately prior to the alleged theft of the complainant�s cell phone; 3) whether the trial judge misapplied or misconstrued the legal analysis of mens rea for theft, particularly as it related to the legal concept of colour of right; and 4) whether the trial judge failed to properly conduct the analysis required in D.W. by accepting the evidence of one witness in its entirety over the evidence of the accused. The complainant testified that the appellant stole his cell phone after asking to borrow it to make a call. The appellant was located shortly after and the complainant found his phone the next day 50 to 75 feet from the location that he lent the appellant his phone. The complainant said that the appellant returned to his residence two weeks later to apologize for the theft of the phone. The appellant testified that he ran from the complainant�s and apologized as he did so because he dropped the cell phone to run when he heard what he thought was his lost dog�s bark. According to the appellant, he did not return to the complainant�s residence to apologize for stealing the phone, but to apologize for disrupting the harmony and balance of the complainant�s household. On cross-examination, the appellant indicated that he not only heard his dog, he also saw his dog chasing another dog. He says that he was hungover at the time, but not intoxicated. The trial judge accepted the...