R. v. Wolynec (V.), (2015) 339 O.A.C. 237 (CA)

• Judge: Gillese, Watt and D. Brown, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: February 19, 2015
• Jurisdiction: Ontario
• Citations: (2015), 339 O.A.C. 237 (CA);2015 ONCA 656

R. v. Wolynec (V.) (2015), 339 O.A.C. 237 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. SE.025

Her Majesty the Queen (respondent) v. Victor Wolynec (appellant)

(C57487; 2015 ONCA 656)

Indexed As: R. v. Wolynec (V.)

Ontario Court of Appeal

Gillese, Watt and D. Brown, JJ.A.

September 30, 2015.

Summary:

Within two days, two banks that were just a few blocks apart were robbed by a man wearing a grey sweatshirt. A short time after the second robbery, police found a grey sweatshirt in a garbage bin. It was seized. A few months later, a technician found a crumpled napkin in the sweatshirt pocket. DNA evidence on the pocket and the napkin matched that of the accused. A judge convicted the accused of both robberies and imposed concurrent sentences of nine years' imprisonment. The accused appealed from the convictions and sought leave to appeal from the sentence.

The Ontario Court of Appeal granted leave to appeal from the sentence and dismissed both appeals.

Courts - Topic 583

Judges - Duties - Re reasons for decisions (incl. notes) - The Ontario Court of Appeal discussed the principles governing the determination of an appeal from conviction based on alleged inadequacies in the trial judge's reasons - See paragraphs 51 to 60.

Courts - Topic 583

Judges - Duties - Re reasons for decisions (incl. notes) - Within two days, two banks that were just a few blocks apart were robbed by a man wearing a grey sweatshirt - A short time after the second robbery, police found a grey sweatshirt in a garbage bin - It was seized - A few months later, a technician found a crumpled napkin in the sweatshirt pocket - DNA evidence on the pocket and the napkin matched that of the accused - A judge convicted the accused of both robberies - The accused appealed, asserting, inter alia, that the trial judge's reasons were inadequate in that he failed to consider the defence position on the critical issue at trial, which was continuity of the tissue found months later in the sweatshirt - The Ontario Court of Appeal dismissed the appeal - The trial judge found as a fact that the tissue had been in the pocket from the sweatshirt's initial discovery - The accused's hypothesis of accidental collection was speculative and bordered on the absurd - The trial judge was not required to provide reasons for rejecting every argument advanced - This was even more true when the submission lacked an air of reality - The trial judge's reasons showed why he had decided as he had - The reasons were not so deficient that they foreclosed meaningful appellate review - See paragraphs 61 to 65.

Criminal Law - Topic 4304.2

Procedure - Trial judge - Duties and functions of - Duty to consider totality of evidence - [See second Criminal Law - Topic 4865 ].

Criminal Law - Topic 4684

Procedure - Judgments and reasons for judgment - Reasons for judgment - Sufficiency of - [See both Courts - Topic 583 ].

Criminal Law - Topic 4865

Appeals - Indictable offences - Grounds of appeal - Verdict unreasonable or unsupported by the evidence - The Ontario Court of Appeal discussed the principles governing the determination of an appeal from conviction based on an unreasonable verdict (s. 686(1)(a)(i) of the Criminal Code), noting that recent jurisprudence had expanded the scope of review for unreasonableness where the trial took place before a judge alone - Under this expanded review, the appellate court scrutinized the judge's findings of fact or inferences drawn from the evidence - Verdicts reached illogically or irrationally were not reasonable - See paragraphs 72 to 77.

Criminal Law - Topic 4865

Appeals - Indictable offences - Grounds of appeal - Verdict unreasonable or unsupported by the evidence - Within two days, two banks that were just a few blocks apart were robbed by a man wearing a grey sweatshirt - A short time after the second robbery, police found a grey sweatshirt in a garbage bin - It was seized - A few months later, a technician found a crumpled napkin in the sweatshirt pocket - DNA evidence on the pocket and the napkin matched that of the accused - A judge convicted the accused of both robberies - The accused appealed, asserting, inter alia, that the verdict was unreasonable - The Ontario Court of Appeal dismissed the appeal - Under either a traditional reasonableness analysis or the more recent expanded scope of review, the verdict was neither unreasonable nor unsupported by the evidence - The trial judge had not failed to consider the entirety of the evidence or to appreciate the accused's position - There was nothing irrational in the judge's reasoning process - Nor was that process at odds with the evidence - This was not one of those rare cases that justified a finding that the verdict was unreasonable - See paragraphs 78 to 84.

Criminal Law - Topic 4866

Appeals - Indictable offences - Grounds of appeal - Misapprehension of evidence - The Ontario Court of Appeal discussed the principles governing the determination of an appeal from conviction where it was alleged that a miscarriage of justice arose within the meaning of s. 686(1)(a)(iii) of the Criminal Code due to errors by the trial judge in the apprehension or appreciation of evidence or in the drawing of conclusions from the evidence - See paragraphs 88 to 92.

Criminal Law - Topic 4866

Appeals - Indictable offences - Grounds of appeal - Misapprehension of evidence - Within two days, two banks that were just a few blocks apart were robbed by a man wearing a grey sweatshirt - A short time after the second robbery, police found a grey sweatshirt in a garbage bin - It was seized - A few months later, a technician found a crumpled napkin in the sweatshirt pocket - DNA evidence on the pocket and the napkin matched that of the accused - A judge convicted the accused of both robberies - The accused appealed, asserting, inter alia, that a miscarriage of justice arose from the trial judge's misapprehension of evidence - The Ontario Court of Appeal dismissed the appeal - The trial judge's reasons displayed a thorough understanding of the substance of the evidence, reasonable inferences from that evidence about the accused's identity as the robber of both banks and a keen understanding of the accused's position - The trial judge had rejected evidence of a parole officer's statement (on viewing photographs of the robber) that the robber was another person for sound reasons, including that the parole officer was not called to give the same evidence at trial - The trial judge's findings were not tainted by any misappreciation or misapprehension of the evidence or of its value or effect - See paragraphs 93 to 97.

Criminal Law - Topic 4868

Appeals - Indictable offences - Grounds of appeal - Failure to consider evidence - [See second Criminal Law - Topic 4865 ].

Criminal Law - Topic 5020

Appeals - Indictable offences - Setting aside verdicts - Whether verdict unreasonable or unsupported by the evidence - [See both Criminal Law - Topic 4865 ].

Criminal Law - Topic 5832

Sentencing - Considerations on imposing sentence - Rehabilitation - [See Criminal Law - Topic 5855 ].

Criminal Law - Topic 5842

Sentencing - Considerations on imposing sentence - Previous criminal offences - [See Criminal Law - Topic 5855 ].

Criminal Law - Topic 5855

Sentence - Robbery - Within two days, two banks that were just a few blocks apart were robbed by a lone male - A judge convicted the accused of both robberies and imposed concurrent sentences of nine years' imprisonment - The accused appealed from the sentence - The Ontario Court of Appeal dismissed the appeal - Sentencing decisions were entitled to great deference - Despite the trial judge's error regarding the number of robbery convictions on the accused's record, the court would not interfere with the sentence - The predominant sentencing principles were denunciation, deterrence and separation of this accused from society - The accused was a dedicated recidivist with nine prior convictions for robbery - The trial judge recognized that rehabilitative potential was a factor to consider and assigned it appropriate weight - Sadly, the potential was more theoretical than real - A report submitted by the accused regarding his involvement and successful completion of a high intensity violence prevention program was not capable of affecting the appeal against sentence - See paragraphs 113 to 122.

Criminal Law - Topic 6204

Sentencing - Appeals - Variation of sentence - Grounds for refusing to vary sentence - [See Criminal Law - Topic 5855 ].

Cases Noticed:

R. v. J.J.R.D. (2006), 218 O.A.C. 37; 215 C.C.C.(3d) 252 (C.A.), leave to appeal refused (2007), 370 N.R. 399 (S.C.C.), refd to. [para. 52].

R. v. R.E.M., [2008] 3 S.C.R. 3; 380 N.R. 47; 260 B.C.A.C. 40; 439 W.A.C. 40; 2008 SCC 51, refd to. [para. 55].

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. 56].

R. v. Vuradin (F.), [2013] 2 S.C.R. 639; 446 N.R. 53; 553 A.R. 1; 583 W.A.C. 1; 2013 SCC 38, refd to. [para. 56].

R. v. Braich (A.) et al., [2002] 1 S.C.R. 903; 285 N.R. 162; 164 B.C.A.C. 1; 268 W.A.C. 1, 2002 SCC 27, refd to. [para. 60].

R. v. Dinardo (J.), [2008] 1 S.C.R. 788; 374 N.R. 198; 2008 SCC 24, refd to. [para. 60].

R. v. Sinclair (T.), [2011] 3 S.C.R. 3; 418 N.R. 282; 268 Man.R.(2d) 225; 520 W.A.C. 225; 2011 SCC 40, refd to. [para. 73].

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351, refd to. [para. 73].

R. v. W.H., [2013] 2 S.C.R. 180; 442 N.R. 200; 335 Nfld. & P.E.I.R. 1; 1040 A.P.R. 1; 2013 SCC 22, refd to. [para. 74].

R. v. Beaudry (A.), [2007] 1 S.C.R. 190; 356 N.R. 323; 2007 SCC 5, refd to. [para. 74].

R. v. G.G. (1995), 80 O.A.C. 12; 97 C.C.C.(3d) 362 (C.A.), refd to. [para. 88].

R. v. Grandinetti (C.H.), [2005] 1 S.C.R. 27; 329 N.R. 28; 363 A.R. 1; 343 W.A.C. 1; 2005 SCC 5, refd to. [para. 92].

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

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81, refd to. [para. 114].

R. v. L.M., [2008] 2 S.C.R. 163; 374 N.R. 351; 2008 SCC 31, refd to. [para. 114].

R. v. Shropshire (M.T.), [1995] 4 S.C.R. 227; 188 N.R. 284; 65 B.C.A.C. 37; 106 W.A.C. 37, refd to. [para. 114].

R. v. Lévesque (R.), [2000] 2 S.C.R. 487; 260 N.R. 165; 2000 SCC 47, refd to. [para. 115].

Counsel:

Erika Chozik, for the appellant;

John Patton, for the respondent.

These appeals were heard on February 19, 2015, by Gillese, Watt and D. Brown, JJ.A., of the Ontario Court of Appeal. On September 30, 2015, Watt, J.A., delivered the following judgment for the court.