Digest: R v Johnson, 2018 SKCA 28

• Date: April 12, 2018

Reported as: 2018 SKCA 28

Docket Number: CA17139 , CACR 2910

Court: Court of Appeal

Date: 2018-04-12

Judges:

• Herauf
• Ryan-Froslie
• Schwann

Subjects:

• Criminal Law � Evidence � Admissibility � Hearsay
• Criminal Law � Assault � Aggravated Assault � Conviction � Appeal
• Criminal Law � Assault � Aggravated Assault � Sentencing � Appeal

Digest: The appellant was convicted after trial of two counts of aggravated assault. He pled guilty to a number of other charges arising out of the same incident, including uttering death threats to the two complainants and willfully damaging property. He was designated a long-term offender as a result of his aggravated assault convictions and sentenced to six years, followed by a one-year consecutive sentence for uttering death threats, for a total sentence of seven years. He appealed his conviction for aggravated assault against one of the complainants, Thomson, on the ground that the trial judge erred in admitting into evidence Thomson�s videotaped statement that identified the appellant as his assailant. The statement was recorded immediately following the offence but the �K.G.B. warning� was given at the end of his statement. Although the appellant conceded that it was necessary for the judge to admit the statement because Thomson would not adopt the statement at trial, claiming that he suffered memory loss and could not recall what happened at the time of the offence, the appellant asserted that the Crown had not established threshold reliability. The grounds for the appellant�s appeal of sentence were that the judge erred by imposing consecutive sentences for the two aggravated assaults and for uttering threats, contrary to s. 718.3(4) of the Criminal Code, or by incorrectly apprehending that the totality principle could be used to increase the total sentence for concurrent terms. He also erred by only awarding 1.25 days for each day the appellant spent on remand.
HELD: The appeal regarding the conviction for aggravated assault against Thomson was allowed and a new trial was ordered. The appeal as to sentence was dismissed. The court found that the trial judge made several errors regarding the admission of Thomson�s statement. It was not procedurally reliable because the warning was given after the statement had been made and because Thomson could not be cross-examined, the statement was taken outside the K.G.B. situation. The corroborative evidence relied upon by the judge did...