Digest: Roy v R, 2018 SKCA 82

• Date: October 18, 2019

Reported as: 2018 SKCA 82

Docket Number: CACR 3128 , CA18081

Court: Court of Appeal

Date: 2019-10-18

Judges:

• Richards
• Whitmore
• Schwann

Subjects:

• Criminal Law � Appeal � Conviction
• Criminal Law � Appeal � Fresh Evidence
• Criminal Law � Appeal � Sentence

Digest: The appellant appealed her convictions and sentence. She was convicted of five Criminal Code offences: attempted robbery; assault causing bodily harm; possession of a weapon for a dangerous purpose; mischief; and failing to attend court. The appellant was sentenced to 729 days of imprisonment, less remand credit, and 12 months� probation. The trial judge found that the appellant and another woman blocked a truck and the appellant cut the victim�s throat with a knife before slashing a tire on his truck. The trial judge had concerns regarding the appellant�s reliability and credibility. Her version of the occurrence was not accepted by the trial judge. The appellant argued that her convictions were unreasonable or involved a miscarriage of justice. The appellant also applied to place fresh evidence before the court, namely, a handwritten statement. The appellant indicated that the statement would show one of the Crown witnesses had lied on the stand to protect the victim.
HELD: The appeals were dismissed. The appeal court determined that the appellant was requesting that the court reweigh and reconsider the evidence with no deference to the findings of fact made by the trial judge. The trial judge�s facts could only be interfered with if they were clearly wrong, unsupported by the evidence, or otherwise unreasonable. The trial judge�s findings did not reveal a palpable and overriding error. The appeal court could only set aside an otherwise lawful sentence if a) the sentence was demonstrably unfit, or b) the sentencing judge erred in principle, failed to consider a relevant factor, or overemphasized an appropriate factor, such error having an impact on the sentence imposed. The appeal court did not find that the appellant�s global sentence was demonstrably unfit. The convictions for robbery and attempted robbery were serious. The trial judge concluded that three years would be appropriate but decided on two years less a day once significant Gladue considerations were taken into account. The sentences for the other convictions were made concurrent, with the judge indicating that he wanted to avoid an unfit and unjust sentence. The court found that the...