R. v. Wilkinson (H.F.), (2015) 606 A.R. 204

• Judge: Watson, J.A.
• Court: Court of Appeal (Alberta)
• Case Date: June 03, 2015
• Citations: (2015), 606 A.R. 204;2015 ABCA 230

R. v. Wilkinson (H.F.) (2015), 606 A.R. 204; 652 W.A.C. 204 (CA)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. JL.027

Her Majesty the Queen (respondent/respondent) v. Helga Fiona Wilkinson (applicant/appellant)

(1503-0061-A; 2015 ABCA 230)

Indexed As: R. v. Wilkinson (H.F.)

Alberta Court of Appeal

Watson, J.A.

July 2, 2015.

Summary:

The accused was found guilty of causing a disturbance and breach of recognizance, and not guilty of breach of probation and resisting a peace officer in the execution of his duty. She was sentenced to a conditional discharge pursuant to s. 730 of the Criminal Code, with a duration period of 12 months. The principal aim of the probation order was to require the accused to have no contact with the complainants. The accused appealed the conviction and the sentence.

The Alberta Court of Queen's Bench dismissed the appeal. The accused applied for leave to appeal.

The Alberta Court of Appeal, per Watson, J.A., dismissed the application.

Courts - Topic 686

Judges - Disqualification - Bias - By trial judge - Wilkinson applied for leave to appeal the dismissal of her summary conviction appeal, asserting that the trial judge was biased or there was a reasonable apprehension of bias by the judge - The accused took exception to the following remarks made by the judge before closing court: "Okay. So, just before we leave here, Ms. Wilkinson, I got to tell you something here. I know you are thinking that this is the end but this can also be a new beginning. Like, you live in a small town. The police have to police a small town. I am no stranger to it. The police are entitled to respect and protection of the law just like everybody else. So, I can tell you my experience with the RCMP, and Ms Sissons [the amicus curiae] will probably tell you it is pretty considerable, as they are a professional organization. If you step out of this door correctly with a view to rebuilding the relationship and getting on with your life in a positive way, I have every confidence that the RCMP will do the same thing. So, you need to decide how you want this to go. I am not going to tell you, but you need to decide how it is going to go, and I hope you make the right decision. Good luck. Okay." - The Alberta Court of Appeal, per Watson, J.A., in denying leave to appeal, noted that the summary conviction appeal justice's view of the remarks was unknown as the argument had not been made to her - Accordingly, the remarks did not furnish a basis for a ground of appeal to this court - Moreover, the remarks did not meet the high test that the law sets for claims of reasonable apprehension of bias - The fact that the trial judge was formerly a Crown counsel was not of itself disqualifying - The remark that the "police are entitled to respect and protection of the law" was after the trial judge had found as a fact in his substantive decision that the male complainant, an off duty officer, had been victimized by Wilkinson's conduct - The observations about the RCMP as an organization said nothing about the reliability of any trial evidence or about what the trial judge's reasoning path had been - The test was what would an informed person, viewing the matter realistically and practically and having thought the matter through, conclude from the record - The test that would have been applied by the appeal justice was that set out in R. v. Schmaltz (J.M.) (2015, Alta. C.A.) - Applying that standard, it was not arguable that the trial judge's remarks would have nourished a valid argument of apprehension of bias before the appeal justice - See paragraphs 61 to 63.

Courts - Topic 691

Judges - Disqualification - Bias - Reasonable apprehension of bias - [See Courts - Topic 686 ].

Criminal Law - Topic 751

Sexual offences, public morals and disorderly conduct - Disorderly conduct - Causing a public disturbance - The accused was found guilty of, inter alia, causing a disturbance - The complainants were an off duty police officer and his wife - The accused's summary conviction appeal was dismissed - The Alberta Court of Appeal, per Watson, J.A., in denying leave to appeal, stated that "the law has not favoured an expansive view of the actus reus of this offence. Indeed, on duty police officers tend to be expected to respond to verbal abuse in a manner which lowers the temperature and restores order. Such placidity, however, is not imposed on people going about their normal lives when entitled to be left alone and not subjected to harassment. Nor is it realistic for a person who ignites a confrontation to believe that the other parties will not become agitated and perhaps escalate the events. ... With that in mind, context is everything in relation to the offence of causing a disturbance. ... " - Here, the trial judge found that the accused was yelling first from a distance and then more closely at the complainants - He found that the accused's actions disturbed the male complainant in his reduced physical state (he was recovering from a recent heart attack) to such a degree that his wife stepped in to protect him aggressively - There was no error of law in the summary conviction appeal justice's finding that it was reasonable to include the accused's conduct within the actus reus of causing a disturbance - As for the mens rea, according to the Crown, the accused knew the male complainant's condition and wished him ill - The accused would have instantly realized that the female complainant was reacting protectively - According to the female complainant, she called the police and the accused continued to stand in front of the male complainant and continued to harass him verbally - The female complainant then swore at the accused and threatened to punch her in the face - It was within the realm of fact finding for the trial judge to find sufficient general intent to cause a disturbance - The offence was not one of specific intent - See paragraphs 53 to 58.

Criminal Law - Topic 4351

Procedure - Jury charge - Directions regarding burden of proof and reasonable doubt - The accused applied for leave to appeal the dismissal of her summary conviction appeal - The Alberta Court of Appeal, per Watson, J.A., in denying leave, stated that "The appeal justice did not err in law in saying that she was not entitled to substitute her own views of the evidence for that of the trial judge. The appeal justice's role was to examine the record to see if there was palpable and overriding error or an unreasonable verdict. Related to this is the applicant's submission that the trial judge's fact findings were contrary to the evidence, and that he applied a skewed and unbalanced standard of assessment, notably as to the memories of those involved. The applicant added before me that the trial judge appeared to regard the applicant's emotional condition when giving evidence to give rise to a doubt about the accuracy of her memory, but that the trial judge did not deploy what the applicant claimed to have been emotional evidence of the male complainant to a similar result. ... It may be that few oral decisions would withstand the sort of probing surgical analysis that might, in theory, be applied to reasons given in summary conviction trials. Reasons are to serve goals of reviewability, intelligibility and accountability but oral reasons may be imperfect. Further, it is true that, at one stage of the trial judge's reasons, he does seem to compare the evidence of the applicant and the Crown. He makes clear later on, however, that he is cognizant of the principles in [R. v. D.W. (1991, S.C.C.)]. It should be recalled that comparison of evidence in conflict is inevitably part of the adjudicative process. The concern in [D.W.] is not about judges making such comparisons but on whether, in doing so, they lose sight of the Crown's burden of proof and the accused person's entitlement to a presumption of innocence. Generally, appeal justices are to take trial judges at their word as to how they reason ..." - See paragraphs 40 and 41.

Criminal Law - Topic 4684

Procedure - Judgments and reasons for judgment - Reasons for judgment - Sufficiency of - [See Criminal Law - Topic 4351 ].

Criminal Law - Topic 4684

Procedure - Judgments and reasons for judgment - Reasons for judgment - Sufficiency of - The accused applied for leave to appeal the dismissal of her summary conviction appeal - The Alberta Court of Appeal, per Watson, J.A., in denying leave, stated that "One global observation is worth making. While the appeal justice did not articulate a response to every point in the brief as set out above, the applicant did not provide a transcript of the entire appeal hearing below. It is not unusual for an appeal justice to address her mind to whatever was placed before her and to address her voice mainly, if not exclusively, to what was expressed to her by way of oral submissions. As the Supreme Court of Canada and other appeal courts have said many times, the fact that reasons do not cover every conceivable point (especially points not clearly argued) does not render those reasons erroneous in law. For example, the lack of reference by the appeal justice to the applicant's generalized observations about Crown misconduct does not provide the applicant with a viable ground of appeal. ... A second global observation worth making is that the studious decision of my colleague Côté JA in R v Edmonton [2013, Alta. C.A.] expresses well the scope of jurisdiction of a judge in deciding a motion for leave to appeal under s 839 of the Criminal Code. With that in hand I do not need to repeat what he so ably said and I can merely adopt it. Côté JA has since added that that 'the general policy of Canadian law is to allow a litigant one appeal (or something analogous), but only one. Second levels of appeal are usually designed only to benefit the public and clarify the law, not to correct errors between parties (whatever may be their effect on the parties).': see R v Argueta Reyes [2015, Alta. C.A.]" - See paragraphs 38 and 39.

Criminal Law - Topic 7463

Summary conviction proceedings - Appeals - General - Scope of appeal - [See Criminal Law - Topic 4351 ].

Criminal Law - Topic 7472.1

Summary conviction proceedings - Appeals - General - Appeal from sentence - A summary conviction appeal court dismissed the accused's appeal from a conditional discharge with a term of 12 months - The accused asserted that since she had done nothing wrong, it was unduly harsh to subject her to a probation order which at its successful end would become a discharge - The Alberta Court of Appeal, per Watson, J.A., stated that while the accused might in due course achieve her discharge and some sort of pardon, she knew that the court had found her guilty of crimes of which she did not believe she was guilty - The summary conviction appeal justice evidently concluded that the sentence was not unfit or unreasonable - Fitness of sentence did not of itself raise an issue of law which was arguable and significant - There was no viable ground of appeal on which to grant leave - See paragraphs 64 and 65.

Criminal Law - Topic 7602

Summary conviction proceedings - Appeal to a court of appeal - Requirement of leave - [See second Criminal Law - Topic 4684 and Criminal Law - Topic 7472.1 ].

Criminal Law - Topic 7603

Summary conviction proceedings - Appeal to a court of appeal - What constitutes a "question of law" - [See second Criminal Law - Topic 4684 ].

Criminal Law - Topic 7610

Summary conviction proceedings - Appeal to a court of appeal - Grounds raised for first time on appeal - [See Courts - Topic 686 ].

Criminal Law - Topic 7652

Summary conviction proceedings - Appeals - Grounds - Error of law - [See second Criminal Law - Topic 4684 ].

Criminal Law - Topic 7655

Summary conviction proceedings - Appeals - Grounds - Misapprehension of evidence - [See Criminal Law - Topic 4351 ].

Criminal Law - Topic 7663

Summary conviction proceedings - Appeals - Grounds - Bias - [See Courts - Topic 686 ].

Cases Noticed:

R. v. Lohnes, [1992] 1 S.C.R. 167; 132 N.R. 297; 109 N.S.R.(2d) 145; 297 A.P.R. 145, refd to. [para. 8].

R. v. Swinimer (1978), 40 C.C.C.(2d) 432; 25 N.S.R.(2d) 512; 36 A.P.R. 512; 3 C.R.(3d) 165, refd to. [para. 8].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 22].

R. v. Edmonton (J.S.) (2013), 561 A.R. 25; 594 W.A.C. 25; 2013 ABCA 318, refd to. [para. 39].

R. v. Argueta Reyes (J.M.), [2015] A.R. Uned. 111; 2015 ABCA 216, refd to. [para. 39].

R. v. O'Brien (M.D.), [2011] 2 S.C.R. 485; 417 N.R. 52; 304 N.S.R.(2d) 383; 960 A.P.R. 383; 2011 SCC 29, refd to. [para. 41].

R. v. Tatton (P.F.) (2015), 472 N.R. 330; 332 O.A.C. 175; 2015 SCC 33, refd to. [para. 58].

R. v. Sanghera (B.) et al. (2015), 468 N.R. 408; 366 B.C.A.C. 82; 629 W.A.C. 82; 320 C.C.C.(3d) 327; 2015 SCC 13, refd to. [para. 59].

R. v. Ranger (R.S.) (2014), 569 A.R. 39; 606 W.A.C. 39; 2014 ABCA 50, refd to. [para. 62].

R. v. Schmaltz (J.M.) (2015), 599 A.R. 76; 643 W.A.C. 76; 2015 ABCA 4, refd to. [para. 63].

R. v. Loughery (S.G.), [1992] A.W.L.D. 576; 73 C.C.C.(3d) 411; 1992 CarswellAlta 795 (C.A.), refd to. [para. 65].

R. v. Anderson (D.L.), [2010] A.R. Uned. 254; 30 Alta. L.R.(5th) 73; 2010 ABCA 209, refd to. [para. 65].

R. v. Chatur (A.M.) (2012), 320 B.C.A.C. 85; 543 W.A.C. 85; 2012 BCCA 163, refd to. [para. 65].

R. v. Pottie (A.F.) (2013), 330 N.S.R.(2d) 361; 1046 A.P.R. 361; 2013 NSCA 68, refd to. [para. 65].

R. v. Tanel, [2013] J.Q. No. 6991; 2013 QCCA 1163, refd to. [para. 65].

Counsel:

K.A. Joyce, for the respondent/respondent;

Helga Fiona Wilkinson, the applicant/appellant, in person.

This application was heard at Edmonton, Alberta, on June 3, 2015, by Watson, J.A., of the Alberta Court of Appeal, who delivered the following reasons for judgment on July 2, 2015.