R. v. Ballantyne (J.M.), (2015) 467 Sask.R. 141 (CA)

• Judge: Lane, Jackson and Caldwell, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: June 17, 2015
• Jurisdiction: Saskatchewan
• Citations: (2015), 467 Sask.R. 141 (CA);2015 SKCA 107

R. v. Ballantyne (J.M.) (2015), 467 Sask.R. 141 (CA);

    651 W.A.C. 141

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. OC.047

Her Majesty the Queen (appellant) v. John Marcien Ballantyne (respondent)

(CACR2413; 2015 SKCA 107)

Indexed As: R. v. Ballantyne (J.M.)

Saskatchewan Court of Appeal

Lane, Jackson and Caldwell, JJ.A.

October 13, 2015.

Summary:

The accused was acquitted of robbery. The Crown appealed.

The Saskatchewan Court of Appeal allowed the appeal, set aside the acquittal and ordered a new trial.

Criminal Law - Topic 4351

Procedure - Charge or directions - Jury or judge alone - Directions regarding burden of proof and reasonable doubt - A man wearing a baseball cap and sunglasses robbed a bank - The bank's video recorded the robbery - Neither the robber's eyes, hair or walk could be seen in the video - Benjamin testified that earlier that day, the accused asked him to be the lookout - He agreed to do so and described, at trial, how he entered the bank and saw the accused enter and then ultimately go to the line up and receive a bag - Benjamin identified himself and the accused in the video - A police officer (Dumont) testified that he knew the accused for 13 years and for some of that time he had almost daily contact with him - He testified that the person in the video performing the robbery was the accused - The judge found that Dumont could not explain why he believed the robber was the accused and concluded that his identification evidence was less than compelling - The judge accepted that Benjamin could be seen on the video, but since he was an accomplice and had criminal antecedents, corroboration of Benjamin's identification of the accused as the robber was required - The only evidence that the judge accepted respecting identity was the testimony of the teller who did not get a good look at the robber's face - The judge acquitted the accused - The Saskatchewan Court of Appeal stated that the trial judge considered Dumont's evidence only in relation to the direct question of identity - He did not consider it as being capable of confirming Benjamin's evidence - That was an error of law arrived at because he either considered Dumont's evidence piecemeal and set it aside in its entirety before he considered the evidence as a whole in deciding whether he had a reasonable doubt about the robber's identity, or he failed to identify Dumont's evidence as potentially corroborative evidence - Although he found Dumont's evidence not to be compelling, he did not find Dumont to be untruthful - His evidence remained capable of confirming a material aspect of Benjamin's evidence: that the accused was the robber - See paragraphs 30 to 45.

Criminal Law - Topic 4351

Procedure - Charge or directions - Jury or judge alone - Directions regarding burden of proof and reasonable doubt - A man wearing a baseball cap and sunglasses robbed a bank - The bank's video recorded the robbery - Neither the robber's eyes, hair or walk could be seen in the video - Benjamin testified that earlier that day, the accused asked him to be the lookout - He agreed to do so and described, at trial, how he entered the bank and saw the accused enter and then ultimately go to the line up and receive a bag - Benjamin identified himself and the accused on the video - The judge accepted that Benjamin could be seen on the video, but since he was an accomplice and had criminal antecedents, corroboration of Benjamin's identification of the accused as the robber was required - The judge held that the video could not serve as corroborative evidence because the police could have fed Benjamin what they were able to see from the video and he might be parroting back what he heard - The only evidence the judge accepted with respect to identity was the testimony of the teller who did not get a good look at the robber's face - The judge found the accused not guilty - The Saskatchewan Court of Appeal held that the trial judge erred by failing to recognize the video as corroborative of Benjamin's presence in the bank and therefore potentially corroborative of his identification of the accused - If the judge did not make that error, he erred by failing to consider the video when he considered the evidence as a whole - He treated the evidence in a piecemeal fashion, discarding the video evidence before arriving at the ultimate question, on the whole of the evidence, of whether he had a reasonable doubt about the robber's identity - The video had the potential to give "... comfort to the jury that the witness can be trusted in his or her assertion that the accused is the person who committed the offence" - See paragraphs 46 to 57.

Criminal Law - Topic 4352

Procedure - Charge or directions - Jury or judge alone - Direction on evidence generally - [See both Criminal Law - Topic 4351 ].

Criminal Law - Topic 4353

Procedure - Charge or directions - Jury or judge alone - Directions regarding corroboration or confirmatory evidence - [See both Criminal Law - Topic 4351 ].

Criminal Law - Topic 4354

Procedure - Charge or directions - Jury or judge alone - Directions regarding pleas or evidence of witnesses, co-accused and accomplices - [See both Criminal Law - Topic 4351 ].

Criminal Law - Topic 4361

Procedure - Charge or directions - Jury or judge alone - Directions regarding identification - [See both Criminal Law - Topic 4351 ].

Criminal Law - Topic 4951

Appeals - Indictable offences - New trials - Grounds - Misdirection by trial judge - Appeal by Crown from acquittal - The accused was acquitted of a robbery - The Saskatchewan Court of Appeal held that the trial judge erred by (1) treating a police officer's identification evidence in a piecemeal fashion and setting it aside in its entirety before he considered the evidence as a whole, or by failing to identify the officer's evidence as potentially corroborative of a accomplice's identification evidence; (2) failing to recognize the video of the robbery as potentially corroborative of the accomplice's identification evidence, or by failing to consider the video when he considered the evidence as a whole; and (3) preventing the Crown from tendering evidence of a statement made by the accused to the accomplice some days after the robbery - Taken individually, the errors might not justify a new trial - However, taken together, they potentially increased the quantity of evidence probative of guilt in a not insignificant way - The Crown had met the burden of establishing that the errors "... might reasonably be thought, in the concrete reality of the case at hand, to have had a material bearing on the acquittal." - The court set aside the acquittal and ordered a new trial - See paragraphs 61 to 65.

Criminal Law - Topic 4955

Appeals - Indictable offences - New trials - Grounds - Cumulative effect of errors - [See Criminal Law - Topic 4951 ].

Criminal Law - Topic 4957.1

Appeals - Indictable offences - New trials - Grounds - Failure to consider evidence - [See Criminal Law - Topic 4951 ].

Criminal Law - Topic 4975

Appeals - Powers of Court of Appeal - Appeal from an acquittal - The accused was charged with robbery - Benjamin testified that he had agreed to act as the accused's lookout during the robbery - The Crown attempted to tender evidence of a statement made by the accused to Benjamin some days after the robbery - It appeared that the statement related to the robbery - The trial judge prevented the Crown from asking the question on the basis that it was hearsay - The judge acquitted the accused - The Crown appealed - The accused conceded that the judge erred when he stopped the Crown from eliciting the evidence, but asserted that the error should be discounted under s. 686(1)(b)(iii) of the Criminal Code - The Saskatchewan Court of Appeal held that the trial judge erred - Statements made by an accused to an alleged accomplice were not caught by the exclusionary rule against hearsay and were admissible - Section 686(1)(b)(iii) did not apply to a Crown appeal from acquittal - Notions similar to the curative principles were considered when determining whether to set aside an acquittal - See paragraphs 58 to 60.

Criminal Law - Topic 5035

Appeals - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - General - [See Criminal Law - Topic 4975 ].

Criminal Law - Topic 5242

Evidence and witnesses - Identification - Corroboration - [See both Criminal Law - Topic 4351 ].

Criminal Law - Topic 5253

Evidence and witnesses - Identification - Proof of - [See both Criminal Law - Topic 4351 ].

Criminal Law - Topic 5515

Evidence and witnesses - Evidence of accomplices, co-defendants, informants, etc. - Corroboration or confirmatory evidence - [See both Criminal Law - Topic 4351 ].

Evidence - Topic 1671

Hearsay rule - Hearsay rule exceptions and exclusions - Statements of physical sensation and mental condition - Statements by an accused - [See Criminal Law - Topic 4975 ].

Cases Noticed:

R. v. Walker (B.G.), [2008] 2 S.C.R. 245; 375 N.R. 228; 310 Sask.R. 305; 423 W.A.C. 305; 2008 SCC 34, refd to. [para. 28].

R. v. Kent (H.M.), [1994] 3 S.C.R. 133; 171 N.R. 231; 134 N.S.R.(2d) 81; 383 A.P.R. 81, refd to. [para. 28].

R. v. Biniaris (J.), [2000] 1 S.C.R. 381; 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161; 2000 SCC 15, refd to. [para. 28].

R. v. J.M.H., [2011] 3 S.C.R. 197; 421 N.R. 76; 283 O.A.C. 379; 2011 SCC 45, refd to. [para. 28].

R. v. Graveline (R.), [2006] 1 S.C.R. 609; 347 N.R. 268; 2006 SCC 16, refd to. [para. 28].

R. v. Murphy et al., [1977] 2 S.C.R. 603; 9 N.R. 329, refd to. [para. 39].

R. v. Parish, [1968] S.C.R. 466, refd to. [para. 39].

R. v. G.B. et al. (No. 3), [1990] 2 S.C.R. 57; 111 N.R. 62; 86 Sask.R. 142, refd to. [para. 40].

R. v. Kehler (R.A.), [2004] 1 S.C.R. 328; 317 N.R. 30; 346 A.R. 19; 320 W.A.C. 19; 2004 SCC 11, refd to. [para. 40].

R. v. Khela (G.S.), [2009] 1 S.C.R. 104; 383 N.R. 279; 265 B.C.A.C. 31; 446 W.A.C. 31; 2009 SCC 4, refd to. [para. 40].

R. v. Chayko (1984), 51 A.R. 382; 31 Alta. L.R.(2d) 113 (C.A.), refd to. [para. 40].

R. v. Drabinsky (G.) (2011), 284 O.A.C. 222; 274 C.C.C.(3d) 289; 2011 ONCA 582, leave to appeal denied (2012), 434 N.R. 395 refd to. [para. 40].

R. v. Morin, [1988] 2 S.C.R. 345; 88 N.R. 161; 30 O.A.C. 81, refd to. [para. 42].

R. v. Vetrovec; R. v. Gaja, [1982] 1 S.C.R. 811; 41 N.R. 606, refd to. [para. 45].

R. v. Simpson and Ochs, [1988] 1 S.C.R. 3; 81 N.R. 267, refd to. [para. 58].

R. v. S.G.T., [2010] 1 S.C.R. 688; 402 N.R. 24; 350 Sask.R. 14; 487 W.A.C. 14; 2010 SCC 20, refd to. [para. 58].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 686(1)(b)(iii) [para. 59].

Counsel:

Andrew Stuart Davis, for the appellant;

Bruce Campbell, for the respondent.

This appeal was heard on June 17, 2015, by Jackson, Lane and Caldwell, JJ.A., of the Saskatchewan Court of Appeal. Jackson, J.A., delivered the following judgment for the court on October 13, 2015.