R. v. Schienbein (G.A.), 2011 SKQB 78

• Judge: Dawson, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: February 16, 2011
• Jurisdiction: Saskatchewan
• Citations: 2011 SKQB 78;(2011), 368 Sask.R. 218 (QB)

R. v. Schienbein (G.A.) (2011), 368 Sask.R. 218 (QB)

MLB headnote and full text

Temp. Cite: [2011] Sask.R. TBEd. FE.057

George Albert Schienbein (appellant) v. Her Majesty The Queen (respondent)

(2009 Q.B.G. No. 1892; 2011 SKQB 78)

Indexed As: R. v. Schienbein (G.A.)

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

Dawson, J.

February 16, 2011.

Summary:

The accused's neighbour alleged that the accused made hand gestures threatening to shoot the neighbour in the head, that he then went inside his house and emerged with what appeared to be a gun, which he waved and pointed at the neighbour. The accused was charged with pointing a firearm, assault with a weapon and, threatening to cause bodily harm. The trial judge convicted the accused of assault with a weapon and conditionally stayed the remaining two charges. The accused appealed, submitting that the trial judge erred (1) in failing to mention or consider evidence (second of two videos) that contradicted the neighbour's testimony, and (2) in failing to determine, after rejecting the accused's evidence, whether the totality of the evidence raised a reasonable doubt (third step in R. v. D.W. (SCC)).

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

Courts - Topic 583

Judges - Duties - Re reasons for decisions - [See Criminal Law - Topic 4351 ].

Criminal Law - Topic 4351

Procedure - Charge or directions - Jury or judge alone - Direction regarding burden of proof and reasonable doubt - A neighbour alleged that the accused made hand gestures threatening to shoot him, then retrieved a gun from his house, which he waved and pointed at him - The accused's evidence was that he retrieved his pellet gun to scare away squirrels and that he could not have threatened his neighbour, because he never saw him - The accused was convicted of assault with a weapon - Charges of pointing a firearm and threatening to cause bodily harm were conditionally stayed - There were two videos from surveillance cameras - Neither video recorded the alleged threatening gesture, but the second video recorded the neighbour's reaction to the incident - The neighbour's reaction on the video contradicted his testimony that he felt threatened and feared the accused was going to shoot him - The trial judge disbelieved the accused's testimony and convicted the accused without mentioning the second video, which contradicted the neighbour's testimony by showing a reaction inconsistent with being fearful - That evidence was the focus of the accused's defence - The Saskatchewan Court of Queen's Bench allowed the accused's conviction appeal and ordered a new trial - Although the mere failure to mention evidence was not an error, the failure to consider relevant evidence was - The trial judge erred in failing to consider relevant evidence which contradicted the neighbour's testimony and corroborated the testimony of the accused - The reasons for judgment were conclusory - They did not address this contradictory evidence and were inadequate to permit meaningful appellate review - Further, in rejecting the accused's testimony, the trial judge further erred in failing to apply the third step of the R. v. D.W. (SCC) analysis respecting reasonable doubt, which required a determination of whether, based on all of the evidence, there was other evidence (apart from the accused's testimony), that raised a reasonable doubt as to the accused's guilt.

Criminal Law - Topic 4957.1

Appeals - Indictable offences - New trials - Grounds - Failure to consider evidence - [See Criminal Law - Topic 4351 ].

Cases Noticed:

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. 23].

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. 23].

R. v. Khan (M.A.), [2001] 3 S.C.R. 823; 279 N.R. 79; 160 Man.R.(2d) 161; 262 W.A.C. 161; 2001 SCC 86, refd to. [para. 23].

R. v. Charlebois (P.), [2000] 2 S.C.R. 674; 261 N.R. 239; 2000 SCC 53, refd to. [para. 23].

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. 23].

R. v. Bigsky (J.S.) (2006), 289 Sask.R. 179; 382 W.A.C. 179; 217 C.C.C.(3d) 441; 2006 SKCA 145, refd to. [para. 24].

R. v. Quercia (1990), 41 O.A.C. 305; 60 C.C.C.(3d) 380 (C.A.), refd to. [para. 24].

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. 24].

R. v. Morin, [1988] 2 S.C.R. 345; 88 N.R. 161; 30 O.A.C. 81, refd to. [para. 24].

R. v. Ahenakew (D.), [2008] 2 W.W.R. 68; 307 Sask.R. 220; 417 W.A.C. 220; 2008 SKCA 4, refd to. [para. 24].

R. v. Durocher (E.), [2008] Sask.R. Uned. 152; 2008 SKQB 160, refd to. [para. 24].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 25].

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; 2002 SCC 26, refd to. [para. 27].

R. v. S.E.M. (2005), 265 Sask.R. 193; 2005 SKQB 213, refd to. [para. 27].

R. v. Dinardo (J.), [2008] 1 S.C.R. 788; 374 N.R. 198; 2008 SCC 24, refd to. [para. 27].

R. v. Richardson (1992), 57 O.A.C. 54; 74 C.C.C.(3d) 15 (C.A.), refd to. [para. 32].

R. v. Morrissey (R.J.) (1995), 80 O.A.C. 161; 97 C.C.C.(3d) 193 (C.A.), refd to. [para. 35].

R. v. Karamitsos (H.), [2008] O.T.C. Uned. H79 (Sup. Ct.), refd to. [para. 39].

R. v. Stamp (J.E.), [2007] 8 W.W.R. 197; 404 A.R. 223; 394 W.A.C. 223; 2007 ABCA 140, refd to. [para. 40].

R. v. Jelinski (L.J.) (1996), 144 Sask.R. 41; 124 W.A.C. 41 (C.A.), refd to. [para. 43].

Counsel:

Michael D. Tochor, Q.C., for the appellant;

Noah P. Evanchuk, for the respondent.

This appeal was heard before Dawson, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Regina, who delivered the following judgment on February 16, 2011.