R. v. Bigsky (J.S.),

• Jurisdiction: Saskatchewan
• Judge: Vancise, Lane and Jackson, JJ.A.
• Neutral Citation: 2006 SKCA 145
• Court: Court of Appeal (Saskatchewan)
• Date: 08 December 2006

R. v. Bigsky (J.S.) (2006), 289 Sask.R. 179 (CA);

    382 W.A.C. 179

MLB headnote and full text

Temp. Cite: [2007] Sask.R. TBEd. FE.006

James Stanley Bigsky (appellant) v. Her Majesty the Queen (respondent)

(No. 1165; 2006 SKCA 145)

Indexed As: R. v. Bigsky (J.S.)

Saskatchewan Court of Appeal

Vancise, Lane and Jackson, JJ.A.

December 21, 2006.

Summary:

The accused was charged with possession of a stolen truck and several driving offences. The issue at trial was whether the accused was the driver of the stolen truck which was involved in a high speed chase with police. The accused admitted being in the truck, but claimed that he was not the driver. Constable Lorence identified the accused as the driver based on his fleeting observation of the driver as the truck passed by him.

The Saskatchewan Court of Queen's Bench found the accused guilty of all of the charges. In brief reasons, the court stated that it did not believe the accused that he was not driving the truck and that it accepted the testimony of Constable Lorence. The accused appealed, arguing that the court's reasons were insufficient where it did not analyze the eyewitness evidence with sufficient concern for the frailties of such evidence.

The Saskatchewan Court of Appeal allowed the appeal, set aside the convictions and entered acquittals. The court held that the reasons of the court below were not sufficient with respect to the issue of the eyewitness identification evidence and that the verdicts were unreasonable.

Criminal Law - Topic 4361

Procedure - Charge or directions - Jury or judge alone - Directions regarding identification - The accused was charged with possession of a stolen truck and several driving offences - At issue was whether the accused was the driver of the stolen truck which was involved in a high speed chase with police - The accused admitted being in the truck, but claimed that he was not the driver - Constable Lorence identified the accused as the driver based on his fleeting observation of the driver as the truck passed by him - In brief reasons, the trial judge stated that he did not believe the accused that he was not driving the truck and that he accepted the testimony of Constable Lorence - He found the accused guilty of all of the charges - The Saskatchewan Court of Appeal allowed an appeal, set aside the convictions and entered acquittals - The trial judge's reasons were not sufficient - The trial judge treated the issue of eyewitness identification as a question of credibility - However, he was required to address the issue of whether the eyewitness identification was reliable evidence upon which he could convict the accused - Specifically, he was required to: 1. recognize the danger of convicting based on eyewitness identification only; 2. note the significant factors which might have affected Constable Lorence's identification of the accused; and 3. address those factors - The court concluded that the verdicts were unreasonable.

Criminal Law - Topic 4361

Procedure - Charge or directions - Jury or judge alone - Directions regarding identification - The Saskatchewan Court of Appeal reviewed the case law regarding eyewitness identification evidence - The court stated that "In the judge-alone cases, when a court of appeal will intervene depends on a variety of factors: (i) whether the trial judge can be taken to have instructed himself or herself regarding the frailties of eyewitness testimony and the need to test its reliability; (ii) the extent to which the trial judge has reviewed the evidence with such an instruction in mind; (iii) the extent to which proof of the Crown's case depends on the eyewitness's testimony or, in other words, the presence or absence of other evidence that can be considered in determining whether a court of appeal should intervene; (iv) the nature of the eyewitness observation including such matters as whether the eyewitness had previously known the accused and the length and quality of the observation; and (v) whether there is other evidence which may tend to make the evidence unreliable, i.e., the witness's evidence has been strengthened by inappropriate police or other procedures between the time of the eyewitness observation and the time of testimony" - See paragraph 41.

Criminal Law - Topic 4684

Procedure - Judgments and reasons for judgment - Reasons for judgment - Sufficiency of - [See first Criminal Law - Topic 4361 ].

Criminal Law - Topic 4865

Appeals - Indictable offences - Grounds of appeal - Verdict unreasonable or unsupported by evidence - [See first Criminal Law - Topic 4361 ].

Criminal Law - Topic 5020

Appeals - Indictable offences - Setting aside verdicts - Verdict unreasonable or unsupported by evidence - [See first Criminal Law - Topic 4361 ].

Criminal Law - Topic 5058

Appeals - Indictable offences - Substitution of verdict - Substitution of verdict of acquittal - [See first Criminal Law - Topic 4361 ].

Criminal Law - Topic 5241

Evidence and witnesses - Identification - Eyewitness identification - [See both Criminal Law - Topic 4361 ].

Criminal Law - Topic 5241

Evidence and witnesses - Identification - Eyewitness identification - Constable Lorence identified the accused as the driver of a stolen truck that was involved in a high speed chase with police - The identification was based on Constable Lorence's fleeting observation of the driver as the truck passed by him - Constable Lorence also identified the accused at the police station after he had been taken into custody on the charges - The accused was convicted of possession of a stolen motor vehicle and several driving offences - On appeal, the Saskatchewan Court of Appeal noted that the eyewitness identification of Constable Lorence was subject to challenge on the following bases: "1. it was fleeting -lasting no more than one or two seconds; 2. it was a profile rather than a full face view; 3. the eyewitness had not previously known the accused; 4. it was an identification made in awkward circumstances: from a moving police car that was situated between 20 to 30 feet from a truck that was travelling between 30 and 40 kilometres per hour, as the truck was decelerating from 70 to 80 kilometres per hour and before the truck accelerated again to 70 or 80; 5. the eyewitness observation was confirmed, and may very well have been weakened by seeing a single person in custody rather than being properly tested by, for example, a line-up or other means" - See paragraph 80.

Cases Noticed:

R. v. Smierciak (1946), 2 C.R. 434 (Ont. C.A.), consd. [para. 10].

R. v. Sutton, [1970] 2 O.R. 358 (C.A.), consd. [para. 10].

R. v. Spatola, [1970] 4 C.C.C. 241 (Ont. C.A.), consd. [para. 10].

R. v. Atfield (1983), 42 A.R. 294 (C.A.), consd. [para. 10].

R. v. Malcolm (D.) (1993), 63 O.A.C. 188 (C.A.), consd. [para. 10].

R. v. Biddle (E.R.) (1993), 65 O.A.C. 20 (C.A.), revsd. [1995] 1 S.C.R. 761; 178 N.R. 208; 79 O.A.C. 128, consd. [para. 10].

R. v. Brand (A.) (1995), 80 O.A.C. 396 (C.A.), consd. [para. 10].

R. v. Bardales (R.A.) (1995), 65 B.C.A.C. 241; 106 W.A.C. 241 (C.A.), affd. (1996), 198 N.R. 235; 78 B.C.A.C. 161; 128 W.A.C. 161 (S.C.C.), consd. [para. 10].

R. v. Burke (J.) (No. 3), [1996] 1 S.C.R. 474; 194 N.R. 247; 139 Nfld. & P.E.I.R. 147; 433 A.P.R. 147, consd. [para. 10].

R. v. Davenport (W.E.) (1996), 94 O.A.C. 63 (C.A.), consd. [para. 10].

R. v. Ménard (S.) (1996), 92 O.A.C. 43 (C.A.), affd. [1998] 2 S.C.R. 109; 228 N.R. 100; 111 O.A.C. 1, consd. [para. 10].

R. v. Miaponoose (A.) (1996), 93 O.A.C. 115 (C.A.), consd. [para. 10].

R. v. Reitsma (S.J.) (1997), 97 B.C.A.C. 303; 157 W.A.C. 303 (C.A.), revsd. [1998] 1 S.C.R. 769; 226 N.R. 367; 107 B.C.A.C. 161; 174 W.A.C. 161, consd. [para. 10].

R. v. Harvey (A.W.) (2001), 152 O.A.C. 162; 57 O.R.(3d) 296 (C.A.), affd. (2002), 313 N.R. 190; 180 O.A.C. 254; 169 C.C.C.(3d) 576 (S.C.C.), consd. [para. 10].

R. v. Braich (A.) et al. (2000), 136 B.C.A.C. 76; 222 W.A.C. 76 (C.A.), revsd. [2002] 1 S.C.R. 903; 285 N.R. 162; 164 B.C.A.C. 1; 268 W.A.C. 1, consd. [para. 10].

R. v. Hibbert (K.R.) (2000), 134 B.C.A.C. 281; 219 W.A.C. 281 (C.A.), revsd. (2002), 287 N.R. 111; 165 B.C.A.C. 161; 270 W.A.C. 161 (S.C.C.), consd. [para. 10].

R. v. Miller (V.J.), [2003] B.C.T.C. 118 (S.C.), consd. [para. 10].

R. v. Zurowski (D.) (2003), 339 A.R. 233; 312 W.A.C. 233; 2003 ABCA 315, consd. [para. 10].

R. v. MacPherson (M.T.) et al., [2006] B.C.A.C. Uned. 120 (C.A.), consd. [para. 10].

R. v. Bitternose (O.R.), [2005] Sask.R. Uned. 249 (C.A.), consd. [para. 10].

R. v. Joenck (M.J.), [2006] Sask.R. Uned. 108 (C.A.), refd to. [para. 10].

R. v. Burns (R.H.), [1994] 1 S.C.R. 656; 165 N.R. 374; 42 B.C.A.C. 161; 67 W.A.C. 161, refd to. [para. 62].

R. v. Sheppard (C.), [2002] 1 S.C.R. 869; 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50; 162 C.C.C.(3d) 298, refd to. [para. 62].

R. v. Gagnon (L.) (2006), 347 N.R. 355; 207 C.C.C.(3d) 353 (S.C.C.), refd to. [para. 62].

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351, refd to. [para. 74].

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, refd to. [para. 74].

Counsel:

Ian D. McKay, Q.C., for the appellant;

W. Dean Sinclair, for the Crown.

This appeal was heard on December 8, 2006, before Vancise, Lane and Jackson, JJ.A., of the Saskatchewan Court of Appeal. The following judgment of the Court of Appeal was delivered by Jackson, J.A., on December 21, 2006.