R. v. Campbell (K.A.), (2015) 599 A.R. 142

• Judge: Watson, Rowbotham and Wakeling, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: February 03, 2015
• Citations: (2015), 599 A.R. 142;2015 ABCA 70

R. v. Campbell (K.A.) (2015), 599 A.R. 142; 643 W.A.C. 142 (CA)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. MR.055

Her Majesty the Queen (respondent) v. Kenneth Angus Campbell (appellant)

(1303-0303-A; 2015 ABCA 70)

Indexed As: R. v. Campbell (K.A.)

Alberta Court of Appeal

Watson, Rowbotham and Wakeling, JJ.A.

February 20, 2015.

Summary:

The accused was found guilty of robbery, possession of a weapon dangerous to the public peace, and aggravated assault. The issue at trial was identification, and the evidence against the accused was circumstantial. The accused was self-represented. On appeal, the accused asserted that the convictions were unreasonable and that the trial judge's failure to provide him with a means to obtain counsel rendered his trial unfair.

The Alberta Court of Appeal dismissed the appeal.

Criminal Law - Topic 4294

Procedure - Trial judge - Duties and functions of - Where accused not represented - Campbell was found guilty of robbery, possession of a weapon dangerous to the public peace, and aggravated assault - He was self-represented at trial, where the issue was identification based on circumstantial evidence - Campbell appealed the convictions, arguing that the trial judge's failure to provide him with a means to obtain counsel rendered his trial unfair - The Alberta Court of Appeal dismissed the appeal - Lack of counsel was not automatically a denial of fairness or a miscarriage of justice - The trial judge inquired about Campbell's efforts to obtain counsel, and satisfied himself as to Campbell's level of education and apparent degree of acuity - He asked whether Campbell had received Crown disclosure, talked about the Crown's burden of proof, and specifically referred to reports or statements of witnesses as each witness was called - Campbell cross-examined several witnesses to varying degrees and made relevant submissions - Nothing in the record indicated that anything in the trial itself was unfair or that the defence was incompetent - See paragraphs 55 to 65.

Criminal Law - Topic 4351

Procedure - Charge or directions - Jury or judge alone - Directions regarding burden of proof and reasonable doubt - [See second Criminal Law - Topic 4866 ].

Criminal Law - Topic 4866

Appeals - Indictable offences - Grounds of appeal - Misapprehension of evidence - Campbell was charged with offences arising from the assault and robbery of Woolfson, the owner of a pawn shop - Woolfson did not see the person who attacked him, but identified Campbell as the last person who was present in the store just before the attack - One of Woolfson's associates, Grouette, testified that he had attended to the store prior to the attack to investigate Woolfson's suspicion that a particular person (not Campbell) had stolen from the store - Grouette also testified that he had seen Campbell in the store - The trial judge, in convicting Campbell, stated that Grouette had been tasked with investigating Campbell's possible theft from the store - Campbell appealed, arguing that the verdict was unreasonable because the trial judge misapprehended the evidence - The Alberta Court of Appeal dismissed the appeal - Even assuming that the trial judge erred in fact by finding that Grouette was investigating Campbell as opposed to some other person, the error was far from palpable and overriding - The evidence of Grouette and Woolfson went to identification - Both witnesses provided a solid basis for identifying Campbell as a person in the store at the relevant time - See paragraphs 37 and 38.

Criminal Law - Topic 4866

Appeals - Indictable offences - Grounds of appeal - Misapprehension of evidence - Campbell was charged with offences arising from the assault and robbery of Woolfson, the owner of a pawn shop - The evidence identifying Campbell as the offender was circumstantial - Upon his arrest, Campbell was found to be in possession of a coin holder - Palchinski, a coin collector who frequently pawned coins with Woolfson, testified that there was a "good possibility" that the coin holder was his - The trial judge, in convicting Campbell, found that the coin holder had been in Woolfson's possession at the time of the robbery and was taken during the robbery - Campbell appealed, arguing that the verdict was unreasonable because the trial judge misapprehended the evidence regarding the coin holder - The Alberta Court of Appeal dismissed the appeal - The Crown was not obliged to prove the source of the coin holder beyond a reasonable doubt - That obligation was reserved for essential elements of an offence, or in some distinct situations where a decision on a specific aspect of the evidence was tantamount to a decision on an essential element - Subjecting individual pieces of evidence to the standard of proof beyond a reasonable doubt would be an error of law; the evidence had to be looked at as a whole - See paragraphs 39 to 45.

Criminal Law - Topic 5039

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - Effect of error by trial judge - General - [See first Criminal Law - Topic 4866 ].

Cases Noticed:

R. v. Nikolovski (A.), [1996] 3 S.C.R. 1197; 204 N.R. 333; 96 O.A.C. 1, refd to. [para. 10].

R. v. LeBlanc (D.) (2005), 279 N.B.R.(2d) 121; 732 A.P.R. 121; 193 C.C.C.(3d) 387; 2005 NBCA 6, refd to. [para. 10].

R. v. Melnychuk (C.E.) (2008), 432 A.R. 290; 424 W.A.C. 290; 2008 ABCA 189, refd to. [para. 10].

R. v. Martel (T.M.) (2011), 502 A.R. 200; 517 W.A.C. 200; 2011 ABCA 114, leave to appeal denied (2012), 435 N.R. 386 (S.C.C.), refd to. [para. 10].

R. v. Asp (J.K.) (2011), 321 B.C.A.C. 170; 531 W.A.C. 170; 278 C.C.C.(3d) 391; 2011 BCCA 433, refd to. [para. 10].

R. v. N.C.B. (2012), 536 A.R. 26; 559 W.A.C. 26; 288 C.C.C.(3d) 473; 2012 ABCA 238, leave to appeal denied [2013] S.C.C.A. No. 82, refd to. [para. 10].

R. v. Evans (C.D.), [1993] 3 S.C.R. 653; 158 N.R. 278; 145 A.R. 81; 55 W.A.C. 81, refd to. [para. 25].

R. v. Cunningham (B.L.), [2014] A.R. Uned. 368; 2014 ABCA 329, refd to. [para. 32].

R. v. Lohrer (A.W.), [2004] 3 S.C.R. 732; 329 N.R. 1; 208 B.C.A.C. 1; 344 W.A.C. 1; 2004 SCC 80, refd to. [para. 33].

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. 34].

R. v. Clark (D.M.), [2005] 1 S.C.R. 6; 329 N.R. 10; 208 B.C.A.C. 6; 344 W.A.C. 6; 2005 SCC 2, refd to. [para. 35].

R. v. Walle (A.J.), [2012] 2 S.C.R. 438; 433 N.R. 1; 533 A.R. 1; 557 W.A.C. 1; 2012 SCC 41, refd to. [para. 43].

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. 44].

R. v. Morin, [1988] 2 S.C.R. 345; 88 N.R. 161; 30 O.A.C. 181, refd to. [para. 44].

R. v. Kowlyk, [1988] 2 S.C.R. 59; 86 N.R. 195; 55 Man.R.(2d) 1, refd to. [para. 45].

R. v. Dionne (M.J.), [2005] 1 S.C.R. 665; 336 N.R. 19; 214 B.C.A.C. 1; 353 W.A.C. 1; 2005 SCC 29, affing. (2004), 202 B.C.A.C. 1; 331 W.A.C. 1; 186 C.C.C.(3d) 376; 2004 BCCA 2074, refd to. [para. 45].

R. v. Arcangioli (G.), [1994] 1 S.C.R. 129; 162 N.R. 280; 69 O.A.C. 26, refd to. [para. 49].

R. v. Allen (G.W.), [2010] 2 S.C.R. 648; 408 N.R. 136; 493 A.R. 153; 502 W.A.C. 153; 2010 SCC 42, refd to. [para. 49].

R. v. White (D.R.), [2011] 1 S.C.R. 433; 412 N.R. 305; 300 B.C.A.C. 165; 509 W.A.C. 165; 2011 SCC 13, refd to. [para. 50].

R. v. Griffin (J.) et al., [2009] 2 S.C.R. 42; 388 N.R. 334; 2009 SCC 28, refd to. [para. 51].

R. v. Chin (Y.H.) (2014), 566 A.R. 288; 597 W.A.C. 288; 2014 ABCA 11, refd to. [para. 52].

R. v. Dipnarine (B.) (2014), 584 A.R. 138; 623 W.A.C. 138; 2014 ABCA 328, refd to. [para. 53].

R. v. Pearson (E.P.), [2014] A.R. Uned. 400; 2014 ABCA 379, refd to. [para. 53].

R. v. Styles (K.T.) (2009), 448 A.R. 339; 447 W.A.C. 339; 2009 ABCA 98, refd to. [para. 62].

R. v. Schell (P.J.) (2013), 542 A.R. 1; 566 W.A.C. 1; 2013 ABCA 4, refd to. [para. 63].

R. v. Phillips (M.A.) (2003), 320 A.R. 172; 288 W.A.C. 172; 2003 ABCA 4, affd. [2003] 2 S.C.R. 623; 311 N.R. 94; 339 A.R. 50; 312 W.A.C. 50; 2003 SCC 57, refd to. [para. 64].

Counsel:

K.A. Joyce, for the respondent;

P.J. Royal Q.C., for the appellant.

This appeal was heard on February 3, 2015, before Watson, Rowbotham and Wakeling, JJ.A., of the Alberta Court of Appeal. The following memorandum of judgment was delivered by the court at Edmonton, Alberta, on February 20, 2015.