R. v. Rempel (R.J.), 2014 SKQB 287

• Judge: Tholl, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: September 09, 2014
• Jurisdiction: Saskatchewan
• Citations: 2014 SKQB 287;(2014), 453 Sask.R. 200 (QB)

R. v. Rempel (R.J.) (2014), 453 Sask.R. 200 (QB)

MLB headnote and full text

Temp. Cite: [2014] Sask.R. TBEd. SE.053

Ryan Jacob Rempel (appellant) v. Her Majesty the Queen (respondent)

(2013 Q.B.G. No. 2325; 2014 SKQB 287)

Indexed As: R. v. Rempel (R.J.)

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

Tholl, J.

September 9, 2014.

Summary:

The accused was found guilty of mischief under $5,000 (Criminal Code, s. 430(4)) for intentionally damaging his ex-girlfriend's laptop computer and coffee table. He appealed the conviction.

The Saskatchewan Court of Queen's Bench allowed the appeal and ordered a new trial.

Civil Rights - Topic 3133

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right of accused to make full answer and defence - Rempel was found guilty of mischief for intentionally damaging his ex-girlfriend's laptop computer and coffee table during an argument at the girlfriend's home - He appealed, arguing that his ss. 7 and 11(d) Charter rights were violated by the Crown's failure to disclose the recordings of two telephone calls made to the police after the incident occurred - One phone call was made by the girlfriend and the other was made by Rempel - The Saskatchewan Court of Queen's Bench rejected this ground of appeal - Rempel failed to establish that there was any significant purpose the recordings could have been used for that would have reasonably affected the outcome of the trial - In addition, Rempel was not diligent in seeking the recordings - He made no effort to obtain the recordings prior to trial and did not mention them at trial - See paragraphs 24 to 36.

Civil Rights - Topic 3133

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right of accused to make full answer and defence - Rempel was found guilty of mischief for intentionally damaging his ex-girlfriend's laptop computer and coffee table during an argument at the girlfriend's home - Rempel was self-represented at trial - He appealed, arguing that his ss. 7 and 11(d) Charter rights were violated by the Crown's failure to call the investigating police officers as witnesses at the trial - He submitted that the officers could have corroborated his evidence that he sustained injuries during the argument with the girlfriend - The Saskatchewan Court of Queen's Bench rejected this ground of appeal - The Crown did not have an obligation to contact Rempel in advance of the trial to discuss whether the police officers would be present - Given Rempel's reason for wanting the officers to be present (to ask them why they did not do a more thorough job and take photographs of him), the trial judge was not obliged to suggest that Rempel ask for an adjournment - See paragraphs 37 to 47.

Criminal Law - Topic 128

General principles - Rights of accused - Right to make full answer and defence - [See both Civil Law - Topic 3133 ].

Criminal Law - Topic 129

General principles - Rights of accused - Right to discovery or production (disclosure) - [See first Civil Law - Topic 3133 ].

Criminal Law - Topic 4294

Procedure - Trial judge - Duties and functions of - Where accused not represented - [See second Civil Rights - Topic 3133 and Criminal Law - Topic 5204.3 ].

Criminal Law - Topic 4351

Procedure - Charge or directions - Jury or judge alone - Directions regarding burden of proof and reasonable doubt - Rempel was found guilty of mischief for intentionally damaging his ex-girlfriend's laptop computer and coffee table during an argument at the girlfriend's home - He appealed, arguing that the trial judge failed to apply the proper test when conducting his assessment of credibility and determining whether the Crown had proven the offence beyond a reasonable doubt - Specifically, he argued that the trial judge engaged in a binary analysis of whether he believed Rempel or the girlfriend - The Saskatchewan Court of Queen's Bench rejected this ground of appeal, stating "While the trial judge used the wording, 'I'm satisfied the Crown's version is a correct version.', he did not arrive at this conclusion by applying binary reasoning. Examining the earlier discussion regarding R. v. W.D., combined with his rejection of the notion of choosing one version or the other, it is clear the trial judge engaged in a proper credibility analysis and as a result disbelieved Mr. Rempel's evidence and believed the complainant's evidence. In doing so, he was not left with a reasonable doubt. It is not necessary for a trial judge to record every minute step in his reasoning in his decision, particularly when the decision is an oral decision after a relatively brief trial." - See paragraphs 59 to 63.

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - [See first Civil Law - Topic 3133 ].

Criminal Law - Topic 5045

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - What constitutes a substantial wrong or miscarriage of justice - Rempel was found guilty of mischief for intentionally damaging his ex-girlfriend's laptop computer and coffee table during an argument at the girlfriend's home - He appealed - The Saskatchewan Court of Queen's Bench found that the trial judge erred in law by improperly admitting character evidence - The Crown argued that the appeal should still be dismissed under s. 686(1)(b)(iii) of the Criminal Code because Rempel admitted to throwing the laptop at several points in his testimony - The court rejected this argument, stating "The testimony from Mr. Rempel ... was ambiguous as to whether Mr. Rempel admitted he threw the laptop intentionally or whether he admitted he deflected it as part of a reflex action which would not constitute intentional damage. There was no admission by Mr. Rempel that he threw the laptop at the coffee table. Based on this testimony, there is not overwhelming evidence that would have inevitably lead to a conviction. Even if the evidentiary threshold had been met, the testimony from Mr. Rempel came after a significant amount of evidence of previous events was improperly admitted into evidence. It would be a miscarriage of justice to permit a conviction to stand after this unfair trial process. As a result, this Court will not uphold the conviction under ss. 686(1)(b)(iii)." - See paragraphs 64 to 68.

Criminal Law - Topic 5204.3

Evidence and witnesses - General - Admissibility - Evidence of disposition or propensity of accused - Rempel was found guilty of mischief for intentionally damaging his ex-girlfriend's laptop computer and coffee table during an argument at the girlfriend's home - Rempel was self-represented at trial - He appealed, arguing that the admission of character evidence resulted in an unfair trial - The Saskatchewan Court of Queen's Bench allowed the appeal and ordered a new trial - At trial, the Crown called substantial evidence regarding alleged past incidents of violence, property damage and anger by Rempel, purportedly for the purpose of providing a narrative and background of the parties' relationship - The evidence was admitted without comment by the trial judge - The trial judge erred in law by admitting the character evidence without providing assistance to Rempel regarding his right to object, and without engaging in an analysis of the probative value versus prejudicial effect - There was a perception that the character evidence was at least a portion of the reason that Rempel was convicted - See paragraphs 48 to 58.

Criminal Law - Topic 5409

Evidence and witnesses - Witnesses - Duty of Crown to call witnesses or adduce certain evidence from a witness - [See second Civil Rights - Topic 3133 ].

Evidence - Topic 1179

Relevant facts - Relevance and materiality - Res gestae (incl. narrative) - Telephone calls following event - Rempel was found guilty of mischief for intentionally damaging his ex-girlfriend's laptop computer and coffee table during an argument at the girlfriend's home - He appealed, arguing that his ss. 7 and 11(d) Charter rights were violated by the Crown's failure to disclose the recordings of two telephone calls made to the police after the incident occurred - One phone call was made by the girlfriend and the other was made by Rempel - Rempel argued that the recordings could have impacted the outcome of the trial because they were part of the res gestae of the offence - The Saskatchewan Court of Queen's Bench rejected this argument, stating "In order to form part of the res gestae of an offence, the utterance must be spontaneously made as part of a startling occasion, before there is time to fabricate and relate to the circumstances of the offence. ... These recordings were the two individuals reporting an incident that was already complete. They were not spontaneous and a short period of time passed between the offence and the telephone calls. The utterances recorded do not form part of the res gestae of the offence." - See paragraph 33.

Cases Noticed:

R. v. McKenzie (P.N.) (1996), 141 Sask.R. 221; 114 W.A.C. 221; 106 C.C.C.(3d) 1 (C.A.), refd to. [para. 3].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352; 63 C.C.C.(3d) 397, refd to. [para. 18].

R. v. Lomenda (D.G.), [2014] 7 W.W.R. 525; 440 Sask.R. 222; 2014 SKQB 77, refd to. [para. 19].

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161; 68 C.C.C.(3d) 1, refd to. [para. 26].

R. v. Dixon (S.), [1998] 1 S.C.R. 244; 222 N.R. 243; 166 N.S.R.(2d) 241; 498 A.P.R. 241; 122 C.C.C.(3d) 1, refd to. [para. 27].

R. v. Wallace (P.S.) (2005), 275 Sask.R. 163; 365 W.A.C. 163; 2005 SKCA 158, refd to. [para. 28].

R. v. Illes (M.), [2008] 3 S.C.R. 134; 380 N.R. 238; 260 B.C.A.C. 285; 439 W.A.C. 285; 2008 SCC 57, refd to. [para. 30].

R. v. Slugoski (1985), 17 C.C.C.(3d) 212; 43 C.R.(3d) 369 (B.C.C.A.), refd to. [para. 33].

R. v. Whitehawk (G.W.) (1998), 163 Sask.R. 305; 165 W.A.C. 305 (C.A.), refd to. [para. 33].

R. v. Harris (R.L.) (2009), 331 Sask.R. 283; 460 W.A.C. 283; 2009 SKCA 96, refd to. [para. 35].

R. v. Horkoff (D.R.) (2010), 359 Sask.R. 114; 494 W.A.C. 114; 2010 SKCA 79, refd to. [para. 42].

R. v. Handy (J.), [2002] 2 S.C.R. 908; 290 N.R. 1; 160 O.A.C. 201; 2002 SCC 56, refd to. [para. 50].

R. v. F.F.B., [1993] 1 S.C.R. 697; 148 N.R. 161; 120 N.S.R.(2d) 1; 332 A.P.R. 1; 79 C.C.C.(3d) 112, refd to. [para. 51].

R. v. Walker (J.P.) (1994), 70 O.A.C. 148; 18 O.R.(3d) 184; 90 C.C.C.(3d) 144 (C.A.), refd to. [para. 52].

R. v. B.S.R. (2006), 215 O.A.C. 14; 81 O.R.(3d) 641; 212 C.C.C.(3d) 65 (C.A.), refd to. [para. 52].

R. v. Tran (V.P.) (2001), 149 O.A.C. 120; 156 C.C.C.(3d) 1; 55 O.R.(3d) 161 (C.A.), refd to. [para. 54].

R. v. Melenchuk (C.), [2003] Sask.R. Uned. 255; 2003 SKQB 427, refd to. [para. 54].

R. v. Belyk (M.M.J.) (2014), 433 Sask.R. 195; 602 W.A.C. 195; 2014 SKCA 24, refd to. [para. 66].

Counsel:

Bob Hrycan, for the appellant;

Leona Andrews, for the Crown.

This appeal was heard before Tholl, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Regina, who delivered the following judgment on September 9, 2014.