



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. Robinson,









2017 BCCA 6




Date: 20170111

Docket:
CA42963

Between:

Regina

Respondent



And

Benjamin Robinson

Appellant






Before:



The Honourable Madam Justice Newbury

The Honourable Mr. Justice Willcock

The Honourable Mr. Justice Goepel




On appeal from:  An
order of the Supreme Court of British Columbia, dated
March 20, 2015 (
R. v. Robinson
, 2015 BCSC 433, Vancouver File 25753).




Counsel for the Appellant:



E.D. Crossin, Q.C.
E. France





Counsel for the Respondent:



R.C.C. Peck, Q.C.
T.C. Paisana





Place and Date of Hearing:



Vancouver, British
  Columbia

October 11, 2016





Place and Date of Judgment:



Vancouver, British
  Columbia

January 11, 2017









Written Reasons by:





The Honourable Madam Justice Newbury





Concurred in by:





The Honourable Mr. Justice Goepel





Dissenting Reasons by:





The Honourable Mr. Justice Willcock (p. 30, para. 62)








Summary:

The
appellant was one of the four RCMP officers involved in the encounter at
Vancouver International Airport that resulted in the death of Robert
Dziekanski. The appellant and his fellow officers made similar statements to
investigators following the incident that were alleged to have been demonstrably
false when compared to a video recorded by a bystander. Appellant was convicted
of one count of perjury relating to his testimony at the Braidwood Inquiry. On
appeal, appellant argued verdict was unreasonable because guilt was not the
only reasonable inference available on the evidence; and
that trial
judge misapprehended the evidence concerning (i) Mr. Dziekanskis being
wrestled or taken to the ground, (ii)
whether Mr.
Dziekanski was swinging the stapler, and (iii) the appellants motive to lie.

Held: appeal
dismissed (Willcock J.A. dissenting).
Trial judges findings were not
unreasonable. The fact other judges might have drawn different inferences does
not justify overturning this judges findings
. Discussion
of the rule in Hodges Case. Trial judge did not misapprehend the evidence. It
was open to him to conclude that an officer in the appellants position could
not have been mistaken about what had transpired, that the officers statements
that Mr. Dziekanski had swung the stapler in a threatening manner were
untrue, and that
the appellant had had a motive to lie.
The
factual findings and inferences drawn by other judges in the trials of the
appellants fellow officers (two of whom were acquitted) do not dictate that
the judge misapprehended the evidence in the appellants case. Neither the
trial judge nor the Court of Appeal was bound to reconcile the four cases.


Willcock J.A., dissenting,
would allow the appeal and order a new trial on the basis the judge
misapprehended the evidence regarding one of the false statements he found the police
officers made to IHIT investigators. The misapprehension went to the core of
the trial judges finding that perjury was proven beyond a reasonable doubt,
thus a new trial is required.

Reasons for Judgment of the Honourable
Madam Justice Newbury:

[1]

The events that resulted in the tragic death of Mr. Robert Dziekanski at
the Vancouver International Airport in the early morning of October 14, 2007 continue
to wind their way through the justice system. Mr. Dziekanski, a visitor from
Poland, had arrived at YVR at about 3:25 p.m. on October 13. It was not until
12:45 a.m. the next day (by which time his mother had given up waiting at the
airport) that he was processed through Customs. Where he was and what he had
been doing for the previous nine hours is unknown. He did not speak English,
and one may assume he was exhausted by this time, frustrated, and perhaps
disoriented. According to an agreed statement of facts, he began to act
erratically and aggressively. Airport staff called the police and four RCMP officers
left the Richmond detachment for the airport at approximately 1:28 a.m. When
they arrived, a struggle took place, in the course of which the police deployed
a conducted energy weapon, or Taser, against Mr. Dziekanski. He fell to the
ground. The police Tasered him four more times and handcuffed him on the ground.
At 2:10 a.m. he was pronounced dead at the scene.

[2]

No charges were ever laid directly in connection with the Tasering of
Mr.

Dziekanski or in connection with his
death. However, the Province of British Columbia convened a public inquiry
under the
Public Inquiry Act
, S.B.C. 2007, c. 9, which was held before
the Hon. Thomas R. Braidwood in late 2008 and early 2009. The Inquiry was a
judicial proceeding as defined by s. 118 of the
Criminal Code
.

[3]

The appellant in this case, Cpl. Robinson, was the senior RCMP officer
involved in the incident. He and the other three officers all testified at the Inquiry.
All four were eventually charged with perjury in respect of their testimony at
the Inquiry and have been tried in the Supreme Court of British Columbia. Two,
Csts. Bentley and Rundel, were acquitted, while Cst. Millington and the
appellant were convicted. This fact is not relevant to this appeal as a matter
of law, although counsel for the appellant submits that it does demonstrate
that Cpl. Robinsons conviction is unreasonable.

[4]

The indictment charging Cpl. Robinson was laid on February 3, 2014. It asserted
one count of perjury that incorporated eight allegations, or averments, as
follows:

On or about the 23
rd
, 24
th
and 25
th
days of March, 2009, at the City of Vancouver in the Province of British
Columbia did commit perjury at a Public Inquiry at 701 West Georgia Street,
namely, The [Honourable] Thomas R. Braidwood, Q.C. Commissions of Inquiry under
the
Public Inquiry Act
, S.B.C., 2007 c. 9 by making orally a false
statement under oath, knowing the statement to be false and with intent to
mislead the Inquiry in his description of the events surrounding the death of
Robert Dziekanski, and the subsequent police investigation, including, in
particular:

1)         when
he testified that, his knee was nowhere near Robert Dziekanskis neck;

2)         when
he testified that, when he said in his statement on October 14, 2007 that
Robert Dziekanski had to be wrestled to the ground, he was mistaken but was
telling the truth because at certain points the officers did wrestle with
Robert Dziekanski, and that in his statement he sort of blended the whole
interaction with Robert Dziekanski;

3)         when
he testified that, when he said in his statement on October 14, 2007 I put him
out, he did not mean that he was responsible for rendering Robert Dziekanski
unconscious;

4)         when
he testified that, when he said in his statement on October 14, 2007, that

Yeah, so Im on his back, so control on, hes kicking, so
Im still controlling him um, and then its almost like he started snoring. And
it, it, and I was like, and I remember saying that like, and Kwesis on his
back he, and I say you know, I put him out. Just cause Im the one applying
pressure to the top part

he did not mean that he was responsible for rendering Robert
Dziekanski unconscious, but was trying to draw attention to the fact that Mr.
Dziekanski was snoring, not pushing up and was possibly unconscious;

5)         when
he testified that he was reluctant to remove Robert Dziekanskis handcuffs for
the emergency personnel because he thought Robert Dziekanski would gain
consciousness and come up swinging again;

6)         when
he testified that he kept putting his gloves back on after checking Robert
Dziekanskis pulse because he thought that Mr. Dziekanski would gain
consciousness and come up swinging;

7)         when
he testified that he did not discuss with his fellow officers the details of
the incident involving Robert Dziekanski before providing his statement to the
Integrated Homicide Investigation Team on the morning of October 14, 2007;

8)         when
he testified that he never had any conversations with Constables Bill Bentley,
Gerry Rundel or Kwesi Millington regarding the incident involving Robert
Dziekanski after October 14, 2007, other than to speak about their feelings
with respect to the event;

contrary to Sections 131 and 132
of the
Criminal Code of Canada
, R.S.C. 1985, c. C-46.

[5]

The evidence at the trial of Cpl. Robinson, before Mr. Justice N. Smith,
included an agreed statement of facts, statements given by witnesses and the
four police officers shortly after the incident, transcripts of the testimony
of Cpl.

Robinson and others at the Braidwood
Inquiry, and a video recording made by a Mr. Pritchard, who happened to be present
at YVR at the time of the incident. (Since Mr. Pritchard and the other
non-police eyewitnesses were watching from the public side of the International
Reception Lounge at YVR, they saw the incident through glass and from a
different perspective than that of the police officers.) Mr.

Pritchards camera, memory card and case were
immediately seized by Cst.

Rundel when the police were taking the names
of eyewitnesses prior to the arrival of the Integrated Homicide Investigation
Team (IHIT) at the airport. IHITs involvement was normal procedure in cases
of in-custody deaths.

The Trial Judges
Reasons

Applicable Law


[6]

The trial judge summarized the Crowns allegations against the appellant
as follows:

The Crown contends that Mr.
Robinson and his fellow officers set out to mislead investigators with
exaggerated accounts of Mr. Dziekanskis actions in an effort to maximize the
threat he purportedly posed. Then, at the Inquiry, when faced with the
Pritchard video that demonstrated the inaccuracy of those accounts, the Crown
says Mr. Robinson lied under oath in an attempt to justify his use of force and
to explain the strikingly similar, but wrong, versions of events he and his
fellow officers all initially provided to IHIT. [At para. 21.]

[7]

The judge correctly summarized the law relating to perjury. He noted
that two elements of the offence were admitted

that Cpl. Robinson had given evidence under oath or solemn affirmation
at the Inquiry on March 23, 24 and 25, 2009; and that the Commissioner had been
a person authorized by law to receive sworn evidence. This left three other
elements of the offence that had to be proven beyond a reasonable doubt:

a.         that the
accused made a false statement under oath or solemn affirmation;

b.         that
the accused knew it to be false; and

c.         that the accused had
an intention to mislead. [At para. 26.]

[8]

The judge noted that words that are said to constitute perjury must be
considered in the context of the testimony as a whole, citing
R. v. Boross
1984 ABCA 114 at para. 18. He explained:

That is an important
consideration in this case because the eight statements alleged to constitute
perjury are drawn from three days of testimony, during which Mr. Robinson was
examined or cross-examined by five different counsel. Some of the subjects
giving rise to allegations of perjury were canvassed at multiple, sometimes
widely separated points in his testimony, with different words sometimes used
at different points. Mr. Robinson is entitled to have all of that testimony
considered in determining whether any specific statement has been proved beyond
a reasonable doubt to have been knowingly false and intentionally misleading. [At
para. 32.]

[9]

He also acknowledged that where the case is a circumstantial one, the court
must be satisfied beyond a reasonable doubt that the only rational inference
that can be drawn from the circumstantial evidence is that the accused is
guilty, citing
R.

v.
Griffin
2009 SCC 28 at para. 33. After noting Chief Justice McEacherns
oft-quoted observation that judges are not expected to treat real life cases
as a completely intellectual exercise where no conclusion can be reached if
there is the slightest competing possibility (
R. v. To
(1992) 16
B.C.A.C. 223 at para. 41, cited in
R. v. Ngo
2009 BCCA 301), Smith J. added:

Gaps in the evidence cannot be
bridged by speculation or conjecture.
If there is another rational inference
arising from the evidence, a guilty verdict cannot be found on the basis of
circumstantial evidence.

R. v. Khan
, 2013 BCSC 975 at paras. 121

126. Any alternate explanation
put forward by the defence must also be grounded in evidence and not based
merely on speculation.
R.

v.
Westlake
, 2005 BCSC 93 at para. 11. The alternate inference must be more
than a theoretical possibility lacking any evidentiary foundation, but need
not be strong enough to constitute a proven fact,
R. v. Bui
, 2014 ONCA
614, para 30. [At para. 36; emphasis added.]

No challenge is made to any of the foregoing statements of
the law.

Averments Two and Seven


[10]

The trial judge turned first to Averments Two and Seven, which he noted
were closely related and had to be considered together. Averment Two related to
a statement made by Cpl. Robinson to IHIT at about 5:45 a.m. on October 14,
2007, about 2.5 hours after Mr. Dziekanski had been pronounced dead. In the
interview, Cpl. Robinson stated that the police had had to wrestle Mr.
Dziekanski to the ground
after
he was Tasered
‒
a statement clearly contradicted by the
Pritchard video. At the Braidwood Inquiry on March 23, 2009 the appellant was
asked the following question:

Q         Now, I understand you may wish to change that
statement in some way about wrestling him to the ground.

A          I was mistaken
but I was telling the truth. At certain points we did wrestle with him, but
like I have on page 3, he did -- he did drop to the ground. So the Taser did
take him down, and I sort of blended the whole interaction with him and I was
mistaken. But at the time I did the best job I could in articulating it.

Similarly, on March 24, the
appellant was asked when he had realized that he and his colleagues had not
wrestled Mr. Dziekanski to the ground. He responded:

A          We wrestled with him but we didnt wrestle
him to the ground. Thats correct.

Q         Yeah.

A          And this is what
I said before. I was mistaken but I was telling the truth. And at the time I
gave my statement, when you look at it and you look at the video, Im only -- I
only can tell you what I saw and that was my best recollection at the time.

[11]

The appellant argued at trial that some of the independent eyewitnesses
who testified at the Inquiry had also recalled that Mr. Dziekanski had continued
fighting after he was Tasered and had to be wrestled to the ground; and that it
was therefore not unreasonable for those witnesses and the appellant to have
blended these events in their memories.

[12]

However, the trial judge noted, the vagueness of the appellants
testimony on this point had been dispelled when he was asked specifically
whether Mr.

Dziekanski had fallen on his
own or had to be forcibly brought to the ground. The appellant answered that
the latter was the case. Smith J. described this response as a single,
discrete, simple but very important fact, given that the appellant had been
the most senior officer at the scene and also the first to have put a hand on
Mr.

Dziekanski. In the judges analysis:

Unlike independent witnesses, who were viewing the events
from various distances, Mr. Robinson was a direct participant in them. Further,
while independent witnesses may have made an error in their recollection of
events, Mr. Robinson was a trained and experienced police officer. Part of the
job for which he had been trained was the accurate recording of events.

Every day in this and other courts, police officers must give
detailed evidence of how brief and fast moving events unfolded
‒
evidence that is
usually based on notes made at the time of or shortly after the events at
issue. The accuracy of that record is crucial to the reliability of the police
officers evidence.

I accept that the events had been
stressful, but when interviewed by IHIT Mr. Robinson knew the importance of
both the interview and the specific question. He was describing events that had
led to a death in police custody. The need to carefully reflect on the events
and provide accurate answers was obvious.
I simply do not believe that a
police officer of his experience could make such a crucial mistake in these
circumstances.
[At paras. 50
−
52;
emphasis added.]

[13]

Turning to the question of whether the appellant had intended to
mislead, Smith J. found that Cpl. Robinson had known his conduct would be examined
and that he had had a direct motive to exaggerate the level of threat
presented by Mr.

Dziekanski and to justify
the response to that threat. Thus the judge concluded with respect to Averment
Two:

I am satisfied beyond a
reasonable doubt that Mr. Robinson knew when he spoke to the IHIT investigator
that what he said about Mr. Dziekanski being wrestled to the ground was false.
In all of the circumstances,
I cannot accept innocent error as even a
reasonable possible explanation for such a crucial departure from the facts in
a description of events that had taken place only hours earlier.
[At para.
55; emphasis added.]

[14]

The trial judge found further support for this inference in evidence
relied on by the Crown in connection with Averment Seven, in particular the
evidence given by the three other officers that Mr. Dziekanski had been
wrestled or taken to the ground after the Taser had been deployed. The
judge found it inconceivable that four trained officers would have made the
same mistake at the same time by pure co-incidence. (At para. 65.) The
inference was inescapable, he said, that collusion had occurred among the four
officers prior to their interviews with IHIT.

[15]

The inference of collusion was also supported by the similarity in the
statements of the police officers about Mr. Dziekanskis use of a stapler he
had picked up before he was Tasered. (See paras. 72
83
of the trial judges reasons.) The trial judge
found that the Pritchard video showed no swinging of the stapler took place,
contrary to what had been claimed by the officers. In Smith J.s words:

The Pritchard video shows Mr. Dziekanski walking away from
the police, clearly empty handed, at three minutes and 41 seconds from the
start of the recording. At 3:42, he steps behind a desk and is then out of view
for three seconds. He presumably picked up the stapler at that point. At 3:45
he is seen facing the officers with his back to the camera. The Taser is fired
five seconds after that.

During those five seconds before the Taser is fired, Mr.
Dziekanskis hands are not visible, but it appears from the position of his
arms that
he does not raise his hands above approximately waist or at most
shoulder level
. His upper arms remain at or near his side.
While he may
have made some movement with the hand holding the stapler, there is nothing
that can remotely be described as a swinging motion.
Only when he is
stumbling in apparent reaction to the Taser does he raise his hand above his
head, with the stapler visible in it, for about one second.

The four officers describe Mr.
Dziekanski using the stapler in very similar terms that simply did not reflect
what actually happened. Again,
I find it inconceivable that they could have
all made the same mistake about such an important fact and find the evidence is
consistent only with a discussion in which they arrived at an agreed upon
version of events.
[At paras. 78
−
80;
emphasis added.]

[16]

Again, the Court found that the officers clearly false statements
that Mr.

Dziekanski had swung the stapler
and had to be wrestled to the ground after the first Tasering were not
consistent with common error and could only be the product of discussion
amongst them. After distinguishing the evidence in Cst.

Bentleys
case, the trial judge said he was satisfied beyond a reasonable doubt that some
discussion of the incident had taken place among the four police officers in
the hour or two prior to the arrival of the IHIT investigators. (Cpl. Robinson
admitted there had been general discussion before the investigators arrived,
but later said the discussion was about witness management.) Smith J. found that
the appellants evidence at the Inquiry that no discussion of the incident had
taken place, was false. (At para. 87.)

[17]

The final question to be determined was whether the appellant had known
the evidence to be false when he testified at the Inquiry, almost 18 months
after the incident. Smith J. noted that when a person is charged with knowingly
giving false testimony, he or she is usually confronted with the evidence
relied on to prove the falsity. This provides the opportunity to provide some
explanation or to say his or her memory has been refreshed and to admit the previous
statement was mistaken. In this case, the appellant had not been reminded of
the similarities in the statements he and his colleagues had made at the Inquiry.
However, he had been asked repeatedly whether discussions about the incident had
taken place and he had repeatedly denied they had. (On this point, Cpl.
Robinsons testimony differed from that of Cst. Bentley, who said he had no
memory of what was discussed.) The appellants attention had been directed to
specific aspects of what had taken place and he had denied discussions about
each of them. The trial judge observed:

The questions related to the period immediately following the
first in-custody death he had ever been involved in. Any discussions that took
place would be an important part of the events that followed Mr. Dziekanskis
death. In the absence of some evidence to suggest otherwise, such discussions
are not something one would expect a witness in Mr. Robinsons position to have
simply forgotten about. As a trained and experienced police officer, he had to
understand that the question of whether there had been discussion was important
to the credibility of his IHIT statements and his inquiry testimony. He had a
clear reason and motive to deny such discussions had taken place.

I am satisfied beyond a
reasonable doubt that Mr. Robinson knew his statement at the inquiry to be
false and, in the absence of any other evidence, I have no difficulty inferring
an intention to mislead the inquiry. [At paras. 91
−
92.]

In the result, he found that the Crowns case had been
proven beyond a reasonable doubt on both averments.

Other Averments

[18]

For reasons set forth at paras. 94

142,
Smith J. found that the remaining averments had
not
been proven beyond a
reasonable doubt. I do not believe it is necessary to recount the Courts
specific findings on those items, as no appeal is taken from the acquittals on
those averments.

On Appeal

[19]

In this court, Cpl. Robinson asserts the following errors in judgment on
the part of the trial judge:

It is respectfully submitted that the verdict is
unreasonable pursuant to s. 686(1)(a)(i) of the
Criminal Code
because,
on the whole of the evidence, the guilt of the appellant is not the only
reasonable inference available on the evidence.

.           .           .

It is respectfully submitted that a miscarriage
of justice has occurred pursuant to s. 686(1)(a)(iii) of the
Criminal Code
because the verdict is dependent on misapprehended evidence, including:

a.  the trial judge misapprehended
the evidence concerning Mr. Dziekanski being wrestled or taken to the
ground;

b.  the trial judge misapprehended
the evidence concerning whether Mr. Dziekanski was swinging the stapler; and

c.  the trial judge misapprehended the evidence concerning
motive to lie.

Both grounds of appeal are said to have application to
Averments Two and Seven.

Unreasonable Verdict

The Law

[20]

Mr. Robinson correctly states in his factum that a verdict will be found
to be unreasonable within the meaning of s. 686(1)(a)(i) of the
Code
where it is not one that a properly instructed jury or judge could reasonably
have rendered on the basis

of the evidence adduced at trial
(my
emphasis; see
R. v. Morrissey
(1995) 97 C.C.C. (3d) 193 (Ont. C.A.) at
221); where the trial judge has drawn an inference or made a finding of fact
essential to the verdict that is plainly contradicted by evidence relied upon
by the judge in support of the inference or finding; or where the inference or
finding is shown to be incompatible with evidence that has not otherwise been
contradicted or rejected by the judge: see
R. v. R.P.
2012 SCC 22 at
para. 9,
per
Deschamps J. for the majority. As also noted at para. 10 of
that case, the question of whether a verdict is unreasonable is a question of
law.


Circumstantial Cases

[21]

The appellant suggests that the verdict in this case is based entirely
on circumstantial evidence and that therefore, this court must, on the
authority of
Hodges Case
(1838) 168 E.R. 1136, determine on the whole
of the evidence whether the trier of fact could have reasonably concluded that
the only rational conclusion was that Cpl. Robinson was guilty. His factum
referred to para. 96 of
R.

v.
Panghali
2012 BCCA 407, where this court in turn cited
R. v. Trevor
2006 BCCA 91, lve. to app. refd [2006] 2 S.C.R. xiii. In
Trevor
, Low

J.A. stated for the Court:

In the present case, proof of the element of lack of consent
was based entirely on circumstantial evidence. Therefore, the following passage
from the judgment of Finch C.J.B.C. in
R. v. Robinson
(2003), 176 C.C.C.
(3d) 23, 2003 BCCA 353 is apt:

In
R. v. Dhillon
(2001), 158
C.C.C. (3d) 353 (B.C.C.A.), 2001 BCCA 555, Low J.A., writing for the Court,
applied the standard of review to a circumstantial case as follows at
[paragraph] 102:

Since the Crowns case is entirely circumstantial, it seems
to me that
this court must determine whether a properly instructed jury,
acting judicially, could have reasonably concluded that the only rational
conclusion to be reached from the whole of the evidence is that the appellant
murdered the victim.
[At para. 11; emphasis added.]

[22]

Applying the underlined passage from
Dhillon
to the facts
relating to Averment Two, the appellant submits that other reasonable inferences
were available on the evidence

i.e., that:

as a result of the dynamic and
stressful nature of the event, the appellant and/or the other officers made a
mistake, confused or blended the sequence of events, misperceived the event or
misspoke when they described the police interaction with Mr. Dziekanski on the
morning of October 14, 2007.

[23]

This argument raises squarely what the Supreme Court of Canada in
R.
v.

Villaroman
2016 SCC 33 recently described as the ongoing
difficulties caused by the old rule in
Hodges Case
and the jury
instruction formulated therein for circumstantial cases. In this category are
included cases in which the proof of at least one of the essential elements
rests solely or primarily on circumstantial evidence. (
Villaroman
at
para. 18.)

[24]

The rule in
Hodges Case
was rejected years ago in the United
States (see
Holland v
.
United States
, 348 U.S. 121 (1954)), and discarded
in the U.K. (see
McGreevy v. D.P.P
. [1973] 1 All E.R. 503 (H.L.)). In
Canada, the rule remains, but as Mr. Peck on behalf of the Crown reminded us,
it has been relaxed considerably, particularly by
R. v. Mitchell
[1964]
S.C.R. 471. For one thing, it is now said to apply only to the
actus reus
of an offence and not to the element of intent. Thus the Court in
Mitchell
stated that the
Hodges
instruction:

provided a formula to assist in
applying the accepted standard of proof
in relation to the first only of the
two essential elements in a crime; i.e., the commission of the act as distinct
from the intent
which accompanied that act. The first element, assuming
every circumstance could be established by evidence, would be capable of proof
to a demonstration. The latter element, save perhaps out of the mouth of the
accused himself, could never be so proved.
The circumstances which establish
the former not only can be, but must be consistent with each other, as
otherwise a reasonable doubt on the issue arises
. The circumstances which
establish the latter, being evidence personal to one individual, will seldom,
if ever, be wholly consistent with only one conclusion as to his mental state
and yet the weight of evidence on the issue may be such as to satisfy the jury,
beyond a reasonable doubt, as to the guilty intent of the accused.
The
instruction of Baron Alderson in
Hodges
case does not apply and was
never intended to apply to an issue of this kind
. [At 479
‒
80; emphasis added.]

The restriction of
Hodges Case
to elements of the
actus
reus
was confirmed in
R. v
.
Cooper
[1978] 1 S.C.R. 860 at 874-8;
and more recently in
R. v. Vokurka
2013 NLCA 51,
affd
2014 SCC
22.

[25]

Mr. Peck submitted that since the contentious elements of the case at
bar relate to the mental element of perjury rather than to the
actus reus
,
Hodges Case
had no application at all. However, the falsity of the
appellants statements is also under appeal and in any event, some fuller
explanation of the rule in
Hodges Case
is in my view called for in
light of the appellants arguments on the appeal.

[26]

It is noteworthy that the Supreme Court of Canada has retreated from the
notion that the rule imposes a different, and even higher, standard of proof
than proof beyond a reasonable doubt. (The latter view had been taken in
Boucher
v. The Queen
[1955] S.C.R. 16 at 30;
R. v. Ducsharm
[1955] O.R. 824
(C.A.) at 832

3; and
R.
v. Manderville
[1958] 124 C.C.C. 268 (N.B.C.A.) at 273, all cited by
Benjamin L. Berger in The Rule in
Hodges Case
: The Rumours of Its
Death are Greatly Exaggerated, (2005) 84
Can. B. Rev
. 47 at fn. 44.) In
Mitchell
, the Court described the rule simply as a formula used to
assist a jury in applying the accepted standard of proof beyond a reasonable
doubt or as a graphic illustration of the principle of reasonable doubt. The
rule was said not to add to or detract from the requirement for proof of guilt
beyond a reasonable doubt. (
Per
Spence J. in
Mitchell
at 479,
adopted in
Cooper
at 879

80;
see also
R.

v. John
[1971] S.C.R. 781 at 791-2;
R. v. Griffin
2009 SCC 28 at para. 33.)

[27]

The Supreme Court has also rejected the notion that specific wording
must be used in the instruction of juries in order to comply with the rule. On
this point, the Court at para. 21 of
Villaroman
approved the reasoning
of Sharpe J.A. in
R. v. Tombran
(2000) 142 C.C.C. (3d) 380 (Ont. C.A.):

The modern approach to the
problem of circumstantial evidence, enunciated clearly in
Cooper, supra
,
and reiterated and reinforced by
Fleet, supra
, is to reject a formulaic
approach and to deal with all the evidence in terms of the general principles
of reasonable doubt. Trial judges are given a degree of latitude to formulate
the appropriate instruction as befits the circumstances of the case.
Trial
judges are not required to adopt any specific language or wording, provided the
charge conveys to the jury in a clear fashion the central point, namely, the
necessity to find the guilt of the accused beyond a reasonable doubt
. In
particular, trial judges are not required to deliver to the jury a general,
abstract lecture on the nature of circumstantial evidence or on the steps of
logic to be followed in assessing circumstantial as distinct from direct
evidence. An academic exercise along those lines may well confuse rather than
assist the jury. Trial judges are entitled to conclude that the essential
message of the need to establish guilt beyond a reasonable doubt can be better
conveyed in other ways. [At para. 29; emphasis added.]

Similarly, in
R. v. Mayuran
2012 SCC 31, the Court,
citing
Griffin
, stated that no special instruction is now required
provided the jury is made aware of how they can use [circumstantial] evidence
to establish guilt beyond a reasonable doubt. (At para. 38.) The Court approved
three other means of instructing juries aside from following the formulaic
approach of
Hodges Case
, as set forth in
R. v. Fleet
(1997) 120
C.C.C. (3d) 457 (Ont. C.A.) at para. 20.

[28]

But as noted in
Villaroman
,
Hodges Case
was concerned not
only with describing the reasonable doubt standard, but also with the dangers
of the path of reasoning involved in drawing inferences from circumstantial
evidence. As Cromwell J. for the Court observed:

An instruction about circumstantial evidence  alerts the
jury to the dangers of the path of reasoning involved in drawing inferences
from circumstantial evidence: Berger, at p. 60. This is the danger to which
Baron Alderson [in
Hodges Case
] directed his comments. And the danger
he identified so long ago

the risk that the jury will fill in the blanks or jump to conclusions

has more recently been
confirmed by social science research: see Berger, at pp. 52

53. This Court on occasion has
noted this cautionary purpose of a circumstantial evidence instruction: see,
e.g.,
Boucher v. The Queen
at p. 22; [
R. v. John
[1971] S.C.R. 781],
per Laskin J., dissenting but not on this point, at p. 813.

It follows that in a case in
which proof of one or more elements of the offence depends exclusively or largely
on circumstantial evidence, it will generally be helpful to the jury to be
cautioned about too readily drawing inferences of guilt. [At paras. 29

30.]

[29]

On the question of how alternative inferences are to be approached in
circumstantial cases, the Court in
Villaroman
rejected the notion that conclusions
alternative to the guilt of the accused must be rational conclusions based on
inferences drawn from proven facts

as had been suggested, for example, in
R. v. McIver
[1965] 2 O.R.
475 (C.A.) at 479, affirmed without discussion on this point [1966] S.C.R. 254.
Subsequent cases have clarified that inferences consistent with innocence do
not have to arise from proven facts. Cromwell J. continued in
Villaroman
:

Requiring proven facts to support explanations other than
guilt wrongly puts an obligation on an accused to prove facts and is contrary
to the rule that whether there is a reasonable doubt is assessed by considering
all of the evidence. The issue with respect to circumstantial evidence is the
range of reasonable inferences that can be drawn from it.
If there are
reasonable inferences other than guilt, the Crowns evidence does not meet the
standard of proof beyond a reasonable doubt.


I agree with the respondents position that
a reasonable
doubt, or theory alternative to guilt, is not rendered speculative by the
mere fact that it arises from a lack of evidence.
As stated by this Court
in
Lifchus
[[1997] 3 S.C.R. 320] a reasonable doubt is a doubt based on
reason and common sense which must be logically based upon the evidence or lack
of evidence: para. 30. A certain gap in the evidence may result in inferences
other than guilt.
But those inferences must be reasonable given the evidence
and the absence of evidence, assessed logically, and in light of human
experience and common sense.


When assessing circumstantial evidence, the trier of fact
should consider other plausible theor[ies] and other reasonable
possibilities which are inconsistent with guilt.
I agree with the
appellant that the Crown thus may need to negative these
reasonable
possibilities, but certainly does not need to negative every possible
conjecture, no matter how irrational or fanciful, which might be consistent
with the innocence of the accused
:
R. v. Bagshaw
, [1972] S.C.R. 2,
at p. 8. Other plausible theories or other reasonable possibilities must be
based on logic and experience applied to the evidence or the absence of
evidence, not on speculation.

Of course, the line between a
plausible theory and speculation is not always easy to draw.
But the
basic question is whether the circumstantial evidence, viewed logically and in
light of human experience, is reasonably capable of supporting an inference
other than that the accused is guilty.
[At paras. 35

38; emphasis by underlining added.]

[30]

The Court commended the following passage from
R. v. Dipnarine
2014 ABCA 328:

[c]ircumstantial evidence does
not have to totally exclude other conceivable references and  a verdict is
not unreasonable simply because the alternatives do not raise a doubt in the
jurys mind. Most importantly,
[i]t is still fundamentally for the trier of
fact to decide if any proposed alternative way of looking at the case is
reasonable enough to raise a doubt.
[
Villaroman
at para. 56;
emphasis added.]

Appellate Review of Circumstantial Cases

[31]

As we have seen, the trial judge in the case at bar correctly stated the
requirement that the court be satisfied beyond a reasonable doubt that the
only rational inference that can be drawn from the circumstantial evidence is
that the accused is guilty, citing
Griffin
at para. 33 and
Ngo
at para. 54. If this rule is simply a graphic illustration of the criminal
standard of proof, what role does it play in the appellate review of a guilty
verdict?

[32]

Recent authorities support the view that
Hodges Case
does not
imply or import a different standard of appellate review than that applicable
to non-circumstantial cases. In
Villaroman,
the Court cited the
well-known decisions of
R.

v. Yebes
[1987] 2 S.C.R. 168 and
R.
v. Biniaris
2000 SCC 15 as correctly reflecting the task of appellate
courts in circumstantial cases:

A verdict is reasonable if it is
one that a properly instructed jury acting judicially could reasonably have
rendered:
R. v. Biniaris
. Applying this standard requires the appellate
court to re-examine and to some extent reweigh and consider the effect of the
evidence:
R. v. Yebes
at p. 186. This limited weighing of the evidence
on appeal must be done in light of the standard of proof in a criminal case.
Where the Crowns case depends on circumstantial evidence, the question becomes
whether the trier of fact, acting judicially, could reasonably be satisfied
that the accuseds guilt was the only reasonable conclusion available on the
totality of the evidence:
Yebes
, at p. 186;
R. v. Mars
(2006),
205 C.C.C. (3d) 376 (Ont. C.A.), at para. 4;
R. v. Liu
(1989) 95 A.R.
201 (C.A.), at para. 13;
R. v. S.L.R.
, 2003 ABCA 148 (CanLII);
R. v.
Cardinal
(1990), 106 A.R. 91 (C.A.);
R. v. Kaysaywaysemat
(1992), 97
Sask. R. 66 (C.A.), at paras. 28 and 31. [At para. 55.]

[33]

While contemplating a limited weighing of the evidence on appeal, the
Court in
Yebes
and
Biniaris
also cautioned that the appellate
court is not acting as a thirteenth juror or usurping the function of the
finder of fact. A court of appeal may not interfere with a verdict simply
because of a lurking doubt or uneasy feeling. The court must, Arbour J.
stated in
Biniaris,
identify a defect in the analysis of the judge
(assuming no jury) that led to an unreasonable conclusion; or be satisfied that
the judge was not alive to an applicable legal principle or that he or she
reached a verdict inconsistent with his or her own factual findings. (At para.
37.) Thus Professor Berger,
supra,
writes:

the law requires that the reviewing court articulate as
explicitly and as precisely as possible the grounds for its intervention.
Without usurping the role of the trial judge or jury, and not being permitted
to rely upon a lingering or lurking discomfort with the result, the appellate
court must weigh the evidence, look to the verdict (and reasons, if they exist)
and then produce an explanation for why the conviction is unreasonable. That is
a substantial challenge for appellate judges.

.           .           .

When a case turns on circumstantial
evidence, Canadian appellate courts can set out this evidentiary matrix and
test the inferences that the evidence can bear. When there is a reasonable
inference that is inconsistent with the guilt of the accused, appellate courts
have a legal rule at their disposal to explain why, viewed through the lens of
judicial experience, the verdict is, as a matter of law, unreasonable. Since
this mode of appellate reasoning is dependent upon the evidence adduced rather
than the reasons offered by the finder of fact,
Hodges
rule is an
effective instrument for cases heard both by judge and jury and by judge alone.
The rule in
Hodges Case
can serve as a kind of inferential litmus test
to be applied by appellate courts to the evidence adduced at trial. Using
Hodges
rule in this way, appellate judges are not just substituting their view of the evidence
for that of the finder of fact.
Rather, they are applying an evidentiary
rule to determine, as a matter of law, whether the verdict is unreasonable.
[At 71; emphasis added; footnotes omitted.]

[34]

In
Villaroman
itself, the Alberta Court of Appeal was found to
have erred in finding the conviction of the accused to be unreasonable, in
focusing on hypothetical alternate theories and, at times, engaging in
speculation rather than on the question of whether the inferences drawn by the
trial judge, having regard to the standard of proof, were reasonably open to
him. (At para. 67.)  Indeed, the Court of Appeal was found to have effectively
re-tried the case because it had attempted to fill in certain gaps in the
Crowns evidence. Again in the analysis of Cromwell J.:

It was for the trial judge to decide, as he did, whether the
evidence of Mr. Villaromans powers of control and direction over the computer;
the coincidence of his name and the only user name on the computer; the file
names descriptive of their pornographic contents; the admission in relation to
the non-involvement of two other people with whom he lived; and the length of
time the pornography had been on the computer, when considered in light of
human experience and the evidence as a whole and the absence of evidence,
excluded all reasonable inferences other than guilt.
In my view, while not
every trier of fact would inevitably have reached the same conclusion as did
the trial judge, that conclusion was a reasonable one.

At certain points in its analysis, the Court of Appeal crossed
the line from considering the effects of gaps in the Crown evidence to raising
purely speculative possibilities. For example, the Court of Appeal considered
questions such as whether the laptop ... [went] to work or during the day to
a school, college or university or may have sat much of each day in a
location or locations frequented by many friends, coworkers, or fellow student:
paras. 28 and 31. These particular factual scenarios are purely speculative
and postulating them goes beyond the bounds of properly considering the impact
of the gaps in the Crown evidence about the physical location of the laptop.

The Court of Appeals analysis
overlooks the important point made in
Dipnarine
that
it is
fundamentally for the trier of fact to draw the line in each case that
separates reasonable doubt from speculation. The trier of facts assessment can
be set aside only where it is unreasonable.
While the Crowns case was not
overwhelming, my view is that it was reasonable for the judge to conclude that
the evidence as a whole excluded all reasonable alternatives to guilt. [At
paras. 69
−
71;
emphasis added.]

[35]

Another decision of the Supreme Court of Canada is instructive as to the
circumstances in which a court of appeal may disagree with a verdict in a
circumstantial case. In
R. v. Grover
2007 SCC 51, the accused was
convicted of attempting to obstruct justice. The charge had arisen out of a
fire in residential premises owned by a company that was managed by the
accused. The Crown alleged that he had attempted to alter and falsify records
relating to the testing and maintenance of smoke alarms at the premises. The
trial judge found that the documents relating to the smoke alarms were false
and that the accused knew they were false. He therefore convicted the accused.

[36]

The Saskatchewan Court of Appeal set aside the conviction because in the
majoritys view, the verdict of guilt could not reasonably be supported by the
evidence before the trial judge: see 2006 SKCA 146. This conclusion was based
on the view that the accuseds actions after the fire had been capable of more
than one explanation.

[37]

The Supreme Court of Canada allowed the Crowns appeal, agreeing with
the dissenting reasons of Jackson J.A. in the Court of Appeal. The Supreme Court
wrote as follows:

[The majoritys conclusion that the finding of guilt was
unreasonable] was based on the view that the controversial actions of the
accused after the fire were capable of more than one explanation. Of particular
interest was a visit he had made to the hospital to try to see his tenants who
were victims of the fire. The Crown argued that the purpose of the visit was to
persuade the tenants to sign an inspection document that the respondent knew to
be false. The trial judge accepted the tenants testimony that the respondent
had asked her to sign a document indicating that the smoke alarms had been
inspected. However, the majority in the Saskatchewan Court of Appeal said that
the respondents conduct was equally consistent with the conclusion that the
respondent, possibly ignorant of the fact that the required inspection had not
in fact taken place, simply considered it crucial that in this case the
inspection records be in perfect order. Jackson J.A., dissenting, was of the
view that:

As to whether there could be any
other rational explanation for Mr. Grovers actions, it is important to note
that Mr. Grover testified. He said that he had attended at the hospital out of
compassion for the victims. He did not say he went up to the hospital to have
the tenants to sign an incomplete form.
Where the accused testifies and
offers an explanation for his or her actions, which the trial judge then rejects,
it is not the task of a court of appeal to come up with another rational
explanation.
[para. 26]

We agree. It was
not open to
the Court of Appeal to acquit the respondent on the basis of speculation about
a possible explanation of his conduct that was flatly contradicted by his own
testimony.
Accordingly, the appeal is allowed. [At paras. 2

3; emphasis added.]

See also
R. v. Damin
2012 BCCA 504 at paras. 40

42.

[38]

I approach the first ground of appeal, then, on the basis that this
courts task is to determine whether the trier of fact, acting judicially,
could reasonably be satisfied that the accuseds guilt was the only reasonable
inference available on the totality of the evidence. (
Villaroman
, at para.
55.) This does not constitute a different standard of review for circumstantial
cases; but it does provide finders of fact and appellate courts with an
alternate formulation by which to assess such cases

in the words of Professor Berger, a kind of
inferential litmus test. (At 71.) In circumstantial cases,
as in
non-circumstantial cases
, the appellate court may not interfere if the
verdict is one that a properly instructed jury could reasonably have rendered.
(
Yebes
, at 186.) It is generally the task of the finder of fact to draw
the line between reasonable doubt and speculation. (
Villaroman
, at para.
71.) It is not open to a court of appeal to conceive of inferences or
explanations that are not reasonable possibilities; nor to attempt to revive
evidence or inferences that the trial judge reasonably rejected. (
Grover
,
at para. 2, quoting from the reasons of Jackson J.A. in the Court of Appeal.) If
an appellant is to succeed, an inference other than guilt must be reasonable
given the evidence and the absence of evidence, assessed logically, and in light
of human experience and common sense. (
Villaroman
, at para. 36.)

Application to the Facts

[39]

Turning at last to the facts of this case, I will address Averment Seven
first, since it was argued first by counsel for the appellant on the basis that
it is key to the appeal. In Mr. Crossins submission, the conviction on this
averment was based on the inference of collusion, which in turn was based on (1)
the similarity in the testimony given by the appellant and his fellow officers
at the Inquiry on two points

that
Mr. Dziekanski had fought through the Taser so that the officers had to
wrestle him to the ground after Tasering him (the subject of Averment Two) and
the testimony that he had been swinging a stapler at them in an aggressive
way; (2)

the finding that the appellant had
had a motive to lie; and (3) the finding that the officers had had an
opportunity to discuss the incident among themselves before giving statements
to IHIT.

[40]

Counsel sought to cast doubt on each of these findings, arguing that:

1.  The appellant and his
colleagues may have been genuinely mistaken in their recollection of the
incident and may have sort of blended the whole interaction with Robert
Dziekanski as Cpl. Robinson testified.

2.  One could not be sure from
looking at the Pritchard video whether Mr.

Dziekanski
had swung a stapler, since his back was to the camera and one could not see
what his hands were doing. Three (at most) of the twelve civilian witnesses had
also said he had been waving or swinging the stapler.

3.  There was no evidence at
trial that the officers had been motivated to lie about their conduct in
connection with Mr. Dziekanski, nor was there any real analysis that
supported the trial judges finding at para. 53 that Cpl. Robinson had a
direct motive to exaggerate the level of threat presented by Mr.

Dziekanski and to justify the response to that
threat. This finding, it is argued, arose from an
assumption
that the police
response to Mr. Dziekanski had been, or that the police believed it to have
been, unreasonable or improper. This assumption, Mr. Crossin submitted, had permeated
the trial.

4.  The acquittals of Csts.
Bentley and Rundel, while not binding in any way on the trial judge, indicated
that a conclusion other than guilt was available on evidence that, if not
identical, was on all fours with Cpl.

Robinsons
case.

In all these circumstances, Mr. Crossin argued, the
conviction was not only unsafe, but more to the point, reasonable inferences
other than that the appellant was guilty were available. The verdict was therefore
said to be unreasonable.

[41]

With respect, it seems to me that Mr. Crossin is inviting us to
interfere with the trial judges findings of fact (including credibility) or to
make our own. I do not read the cases discussed above as suggesting that trial
judges or juries are not required in circumstantial cases to determine what
evidence they accept or to find facts. As we know from
R. v. W.(D.)
[1991] 1 S.C.R. 742, the ultimate step in applying the reasonable doubt
standard is for the trier of fact to consider whether, on the basis of the evidence
which [the trier of fact]
does accept
, the [trier of fact is] convinced
beyond a reasonable doubt
by that evidence
. (At 758; emphasis added.) In
this case, the trial judge found himself
unable to accept
the
appellants explanations of the discrepancies between his testimony and what
actually occurred at the airport.

[42]

Viewed through the lens of judicial experience, the judges findings
cannot in my view be said to have been unreasonable. It cannot be said he jumped
to unreasonable conclusions or speculated in order to try to fill gaps in the
evidence. He carried out a close analysis of all the evidence and drew
inferences he was entitled to draw. The fact that other judges might have drawn
different inferences (and in fact two other trial judges acquitted on somewhat
similar evidence and somewhat similar averments) does not change the fact that
the judge in this case was entitled (and indeed bound) to determine what
evidence (adduced in
this
case) he found persuasive. At the end of the
day, he was not left with a reasonable doubt on all the evidence as to Cpl.
Robinsons guilt. Put another way, he did not find any of the alternative
inferences urged on the Court by the defence

that the appellant had innocently sort of blended the sequence of
events in his memory; that Mr.

Dziekanski
had made a threatening gesture with the stapler; that the officers had not discussed
the events and that the similarity in their testimony had been coincidental

to be reasonable. In my view,
this conclusion was one that a properly instructed finder of fact, acting
judicially, could have reached.

[43]

It follows that I would not accede to this ground of appeal.

Misapprehension of Evidence?


[44]

The second ground of appeal is that the trial judge misapprehended the
evidence concerning some of the matters I have already discussed

Mr.

Dziekanskis
being wrestled or taken to the ground; the swinging of the stapler; and a
motive on the appellants part to give false testimony at the Inquiry. As Mr.

Peck notes on behalf of the Crown, in order to
constitute a miscarriage of justice for purposes of s. 686(1)(a)(iii) of the
Criminal
Code
, the appellant must point to a misapprehension on a question of
substance that was material to the trial judges reasoning process and played
an essential role in the reasoning process resulting in conviction: see
R.
v. Morrissey
(1995) 97 C.C.C. (3d) 193 (Ont. C.A.) at 221;
R. v. Lohrer
2004 SCC 80; and
R. v. Swales
2014 BCCA 350 at paras. 47

49.

Evidence of Mr. Dziekanski being wrestled or taken to
the ground

[45]

It will be recalled that the appellant told the Inquiry that his
previous statement to IHIT investigators that Mr. Dziekanski had to be
wrestled or taken to the ground after being hit with the Taser was not true,
but that it had reflected his honest belief at the time. I reproduce again his
testimony at the Inquiry that:

I was mistaken but I was telling
the truth. At certain points we did wrestle with him, but like I have on page
3, he did

he did drop
to the ground. So the Taser did take him down, and I sort of blended the whole
interaction with him and I was mistaken. But at the time I did the best job I
could in articulating it.

[46]

Smith J. considered the argument that some of the independent
eyewitnesses had also recalled Mr. Dziekanskis fighting through the Taser
and having to be wrestled to the ground. The judge did not find this argument persuasive
for the following reasons:

Unlike independent witnesses, who were viewing the events
from various distances,
Mr. Robinson was a direct participant in them
.
Further, while independent witnesses may have made an error in their
recollection of events,
Mr. Robinson was a trained and experienced police
officer. Part of the job for which he had been trained was the accurate
recording of events.


Every day in this and other courts, police officers must give
detailed evidence of how brief and fast moving events unfolded

evidence that is usually
based on notes made at the time of or shortly after the events at issue. The
accuracy of that record is crucial to the reliability of the police officers evidence.

I accept that the events had been
stressful, but when interviewed by IHIT Mr.

Robinson
knew the importance of both the interview and the specific question. He was
describing events that had led to a death in police custody. The need to
carefully reflect on the events and provide accurate answers was obvious.
I
simply do not believe that a police officer of his experience could make such a
crucial mistake in these circumstances.
[At paras. 50

52; emphasis added.]

I see no error in this reasoning, even accepting the
fact that only some (at most, three) of the twelve eyewitnesses also believed
Mr. Dziekanski had to be taken to the ground in some way. The trial judge
simply could not accept that an officer in Cpl. Robinsons position could have
been mistaken as to what had transpired in front of him. No misapprehension of
the evidence has been shown on his part.

[47]

It is next argued that the trial judge failed to state in his reasons or
to consider the fact that one of the four officers, Cst. Rundel, made
two
statements to IHIT. In the first, made on October 14, 2007, he said that after
the first engagement of the Taser, Mr. Dziekanski was still clenching, and
motioning towards us and that after two or three more engagements of the Taser,
he and Cpl. Robinson and Cst.

Bentley
wrestled him to the ground. The second statement was given on October 18,
2007, when Cst. Rundel stated that Mr. Dziekanski stood up through the first 
five-second Taser  activation and  after the second time went down. Cst.

Rundels attention was never drawn to the
distinction, if there was one, between these statements and he did not testify
about this point at the Inquiry.

[48]

At para. 83 of his reasons, the trial judge stated:

However, I find that the
four
officers similar but clearly false statements about Mr. Dziekanski swinging
the stapler and having to be wrestled to the ground are not consistent with
common error and could only be the product of discussion amongst them.
[Emphasis added.]

and at para. 62:

The responses given to IHIT were
statements of simple fact, not subject to nuance or differing interpretation.
In
three of the four cases
, the answers came in response to specific questions
that directed the officers attention to the very issue of how
Mr. Dziekanski came to be on the ground. Any police officer would
understand the importance of that issue in the circumstances. [Emphasis added.]

[49]

The appellant submits that the trial judges inference of collusion was
based on a finding that
all four
officers had incorrectly stated that
Mr. Dziekanski had to be wrestled to the ground, and that the inference is
seriously undermined by his failure to consider Cst. Rundels October 18 statement.
The appellant stated in his factum:

Cst. Rundels October 18, 2007 statement was a
critical piece of evidence and the effect of it on any inference of collusion
ought to have been considered by the trial judge. Given that there was only one
piece of evidence supporting any potential collusion on Cst. Rundels part, it
was undoubtedly integral to the trial judges finding of collusion among the
four
officers
and any evidence that may have contradicted that finding ought to
have been considered.

The failure to
consider relevant evidence constitutes a misapprehension that went to the
substance of the evidence, concerned a material part of the reasoning process,
and played an essential part in the reasoning process resulting in conviction.
The failure to consider Cst. Rundels October 18 statement in its entirety and
to properly examine his October 14 statement rendered the result unfair and
constituted a miscarriage of justice.

[50]

Again, with respect, I cannot accede to this submission. As I read the reasons,
Smith J. was referring to the four strikingly similar statements made by the
four officers to IHIT about the timing of Mr. Dziekanskis fall to the ground in
support of his conclusion that collusion had occurred. He was careful to point out
that Cpl. Robinson had been asked specifically about the sequence of events
which he claimed to have sort of blended and the judge explained at paras. 50

52 (quoted earlier) why he
could not accept the appellants explanation.

[51]

As I read Cst. Rundels statements, they were consistent with the
statements of his colleagues: Mr. Dziekanski had stood up through the first
two engagements of the Taser, and then went down. The Pritchard video shows
this was simply not the case. The fact that Cst. Rundel did not repeat the
falsehood on October 18 does not take away from the trial judges reasoning. All
four officers made similar, but false, statements that Mr. Dziekanski had
fought through the Taser and still had to be wrestled to the ground. Whether
Cst. Rundel later resiled from the version of events he gave in his October 14
statement

and if so,
why he might have done so

were
not material issues that the trial judge was bound to resolve.

Swinging the Stapler

[52]

In my view, a similar analysis applies with respect to the trial judges
finding at paras. 80 and 83 that the officers statements that Mr. Dziekanski
had swung the stapler in a threatening manner were simply untrue. My
colleague Mr. Justice Willcock reaches a different conclusion, but to a large
extent his analysis is based on findings and inferences drawn from the findings
of the trial judges in the cases of Csts. Rundel and Bentley. In particular, my
colleague places emphasis on the finding of McEwan J. in
Bentley
that:

there is a basis on which all of the following perceptions
could
be found
to be facts: .

(2) that Mr. Dziekanski picked up a
stapler;



(4) that Mr. Dziekanski made a gesture or gestures with the
stapler. [At para. 209; emphasis added.]

and on Gropper J.s
description in
Rundel
of the specific instance of the stapler:

The specific instance of the
stapler occurred over six seconds. It appears, on the Pritchard Video, to have
commenced at 3:46, when Mr. Dziekanski faces the officers and Cst. Bentley
steps back, apparently in reaction to an action of Mr. Dziekanski picking up
the stapler, and concludes at 3:52, when Mr. Dziekanski can be seen raising his
arm above his head with the stapler in his hand. During that six seconds, Mr.
Rundel was making various movements away from Mr. Dziekanski and observing Cst.
Millington deploy the Taser, as well as observing Mr. Dziekanskis reactions.
Following this six seconds, the events unfold for almost two more minutes
before Mr. Rundel stands up from having struggled on the ground with Mr.
Dziekanski. [At para. 81.]

(As I read her reasons, Gropper J. here may have been
referring to the moment after Mr. Dziekanski had been Tasered.)

[53]

On the other hand, of course, there is the fact that Cst. Millington in
his testimony before Ehrke J. clarified that when he told the Inquiry Mr.
Dziekanski had raised the stapler high, he meant only that Mr. Dziekanski had
the stapler above his waist and did not mean to convey he had it raised in the
air. There was also the admission of  Cpl. Robinson before the Inquiry that
when he had testified in chief that Mr. Dziekanski had swung the stapler at
the officers in an attempt to hit them, he had misspoken. In
cross-examination, he conceded that it was inaccurate to say, even from his perspective,
that Mr. Dziekanski had swung the stapler. Instead, he said, Mr. Dziekanski
merely brandished it.

[54]

My colleague also suggests that the trial judge should have been left
with a reasonable doubt as a result of the evidence of the independent eyewitnesses.
The question of how much weight to accord that evidence in the face of the
appellants own admission was one for the trier of fact.  As we are constantly
being admonished, trial judges are in the best position to decide the facts,
and must be deferred to in the absence of palpable and overriding error. No
such error has been shown in this case.

[55]

In any event, the findings of other judges do not lead to the conclusion
that Smith J. misapprehended the evidence in
this
case. He was bound to
consider only the evidence and the accused before him; he was entitled to give
weight to the evidence of witnesses
he
believed; he was not bound to try
to reconcile the four cases; nor was he bound, in my view, to find a reasonable
doubt based on the fact that other judges had done so in cases
they
had tried.
If that had been the case, there would have been no point to the appellants
trial.  I know of no authority that suggests the drawing of different factual
inferences by this trial judge would  constitute a misapprehension of the
evidence presented at trial. To the contrary, as Smith J. correctly stated:

As a matter of law, the
conclusions of another trier of fact who dealt with the same offence but a
different offender are irrelevant to the determination with respect to another
accused in a different trial.
R. v. Tran
, 2014 BCCA 343 at para. 62. [At
para. 84.]

[56]

Similarly, we are not on appeal required to consider the evidence in all
four cases together, or to reach a verdict reflective of the verdicts in the
other two, or three, cases. As Mr. Justice Harris recently stated in the
Millington
appeal (2016 BCCA 293):

It may seem surprising, indeed
troubling, that different courts can reach different results on what
superficially appear to be similar or identical allegations, especially where
the evidence is substantially the same in the different cases. In relation to
these matters, two officers have been acquitted and two convicted. Having said
this, it must be remembered that criminal responsibility is individual and is
to be assessed on the evidence led in relation to a particular accused:
R.
v. Chow,
2011 BCCA 338 at para. 44;
R. v. Huard
, 2013 ONCA 650 at
para. 105. In these cases, the evidence in each officers trial varied and the
averments differed to some extent. For example, Cst. Bentley, who was
acquitted, did not testify at trial and the issue was whether he perjured
himself when he said he could not remember what he discussed with other
officers. Cst. Millington did testify and his alleged perjury was his testimony
that he did not discuss the details of the incident before providing his
statement. Moreover, the finding in the
Bentley
case was that the Crown
had not proven the alleged perjury to the requisite criminal standard; that is,
beyond a reasonable doubt. It does not amount to a positive finding of fact
that the officers did not discuss the details of the incident as alleged. [At
para. 48.]

The Appellants Motive


[57]

The appellants final submission is that the trial judge erred in
inferring that the appellant had had a direct motive to lie to IHIT on the
basis that he knew his conduct would be subject to scrutiny because of his role
in an in-custody death. Mr.

Crossin argues
that the fact Cpl. Robinson knew his conduct would be examined cannot logically
support the inference that he had a motive to lie in order to justify the conduct
of the police in connection with Mr. Dziekanskis death. Cpl. Robinson contends
in his factum that there was no evidence the officers were or ought to have
been worried about their conduct:

No evidence concerning the officers use of force was
proffered at the trial. As a result, there can be no suggestion that the
officers conduct was anything but appropriate in the circumstances and no
further suggestion that Mr. Robinson or the other officers had any reason to
obscure certain facts during their IHIT interviews.

The trial judges finding that
the appellant had a motive to lie to IHIT was speculative: there was no
evidence beyond the fact that the appellant knew his conduct would be examined
to ground such a conclusion. This, on its own, was insufficient to support a
finding of motive.

[58]

I do not agree. As discussed in both
Mitchell
and
Cooper
,
supra
,
the mental element of an offence is almost always a matter of inference rather
than direct evidence. As I read the trial judges reasons, the finding that the
appellant had a motive to lie was based at least in part on the fact that the
circumstances were such that Cpl. Robinson knew the police would potentially
face some form of consequences, the precise nature of which was unknown at the
time. This finding was open to the trial judge to make: Cpl. Robinson and his
colleagues had fired a Taser five times into an unarmed and agitated man in a
public place. The judge took a realistic view of the pressure the appellant
likely felt to provide an explanation for the incident that would not detract
from his conduct as a trained and experienced police officer.

[59]

Like the trial judge, I have little doubt that viewed through the lens
of judicial experience, the appellant had a clear reason and motive to deny
that he and his colleagues had discussed the incident and colluded in their
evidence before the Inquiry. The Court was not left with any reasonable doubt
on this point, or on the evidence considered as a whole; and again, I discern
no misapprehension of evidence.

[60]

In the result, I would not accede to the second ground of appeal.

Disposition

[61]

I would dismiss the appeal, with thanks to counsel for their helpful
submissions.

The
Honourable Madam Justice Newbury

I AGREE:

The Honourable Mr. Justice Goepel

Dissenting Reasons for Judgment of the Honourable
Mr. Justice Willcock:

[62]

This appeal requires us to
re‑examine, and to some
extent re-weigh and consider, the effect of the evidence in light of the
standard of proof in a criminal case:
R. v. Yebes
, [1987] 2
S.C.R. 168 at 186; and
R. v. Villaroman
, 2016 SCC
33 at para. 55
.

[63]

Regretfully, I am unable
to agree with my colleagues disposition of this appeal.
In
my opinion, the evidence does not support the trial judges conclusion
that
the officers statements to IHIT that Mr. Dziekanski had swung or
brandished the stapler in a threatening manner simply did not reflect what
actually happened. That conclusion was critical to his finding that a
circumstantial case of collusion had been made out. The perjury conviction was
founded upon the view the officers had colluded, which was premised on the finding
that the officers had made strikingly similar but false statements to the
IHIT. If the finding that there was collusion is unsound the conviction cannot
stand.

[64]

The appellant was not convicted of perjury for lying to IHIT, but for
lying to the Braidwood Inquiry about why his initial statement to IHIT was
inaccurate and for denying to the Inquiry that he discussed the details of the
incident involving Mr. Dziekanski with his fellow officers before
providing that statement. In the words of McEwan J. in
R. v. Bentley
,
2013 BCSC 1364, he was convicted because he lied about lying.

[65]

The Crown sought to establish, as the foundation for a case that was
wholly circumstantial, that the initial statements made by the officers were
demonstrably false. The appellants conviction did not hinge at all upon the
specific words he used at the Braidwood Inquiry; nor did it hinge upon evidence
adduced at trial (no
viva voce
evidence was called in respect of
Averments Two or Seven). The conviction turned upon the trial judges
comparison of statements made by the four police officers to IHIT with the
Pritchard video and independent witnesses descriptions of the events the
officers had described. With respect, I do not share my colleagues view that
the trial judges conclusion was founded upon careful consideration of the
Pritchard video and the evidence of the eyewitnesses.

[66]

The conviction was based upon the trial judges conclusion that all four
officers statements were all inaccurate in
two
respects, the second of
which was dealt with by the judge as follows:

[72]       Mr. Robinson told the IHIT investigator, at
page two of his statement, that he grabbed a stapler and tried to hit us with
it.

[73]      At page 9 of the same statement,
Mr. Robinson said:

It happened really quick to where
he grabbed the stapler and tried to hit us with it.

[74]      At page 10 he said:

I remember telling
Cst. Millington to deploy the Taser because he was um, swinging the
stapler.

Then on the following page:

I remember him taking a step
forward and then he was swinging the stapler and that um, ah, like hes
swinging the stapler like the um, up high and then hes just like hes swinging
it um, to try to push us back or ah, an attempt to hit us.

[75]      In a general occurrence report written on
October 14, 2007, Cst. Millington said Mr. Dziekanski picked up
a stapler and advanced toward members. He was interviewed by IHIT for a second
time on October 15, 2007.  In that statement, he said:

he knocked over some things that
were on the desk and ah then he reached and grabbed the stapler, had in the
open position and had it raised high and then started advancing towards us.

[76]      In a written report specifically addressed to use
of the Taser, Millington said the male swung the stapler wildly with his arm at
the members and the male raised the stapler in one arm and raised the other
fist.

[77]      Cst. Rundels October 14 statement to
IHIT refers to Mr. Dziekanski putting the stapler up above his head,
motioning, making motions with it, uh, towards us. Cst. Bentley, in his
statement, says at page 7:

he grabbed the stapler and he kind
of flings it out in front of him and hes kind of holding it up, pointing it
towards the membersthe way he grabbed the stapler, he kind of swung it right
out in a fast motion, almost like he was trying to hit myself and corporal
Robinson.

Later in the same statement, Cst. Bentley said he kind
of swung it at us.

[78]      The Pritchard video shows Mr. Dziekanski
walking away from the police, clearly empty handed, at three minutes and 41
seconds from the start of the recording.  At 3:42, he steps behind a desk
and is then out of view for three seconds. He presumably picked up the stapler
at that point. At 3:45 he is seen facing the officers with his back to the
camera.  The Taser is fired five seconds after that.

[79]      During those five seconds before the Taser is
fired, Mr. Dziekanskis hands are not visible, but it appears from the
position of his arms that he does not raise his hands above approximately waist
or at most shoulder level.  His upper arms remain at or near his
side.  While he may have made some movement with the hand holding the
stapler,
there is nothing that can remotely be described as a swinging
motion
. Only when he is stumbling in apparent reaction to the Taser does he
raise his hand above his head, with the stapler visible in it, for about one
second.

[80]
The four officers describe Mr. Dziekanski
using the stapler in very similar terms that simply did not reflect what
actually happened. Again, I find it inconceivable that they could have all
made the same mistake about such an important fact and find the evidence is
consistent only with a discussion in which they arrived at an agreed upon
version of events
.

[81]      In their various statements and reports in the days
following the incident, all four officers referred at some point to
Mr. Dziekanskis combative behaviour. That is another of the striking
similarities the Crown relies on.

[82]      At the point when the Taser is fired,
Mr. Dziekanski appears to have just taken a step back from the officers,
suggesting his behaviour is not at all combative.
However, there are nine
seconds immediately preceding the use of the Taser when he is either out of
view or has his back to the camera
. I therefore cannot, beyond a
reasonable doubt, exclude the possibility that something in his demeanour might
reasonably have been perceived as aggressive or combative. If that was the
case, I agree with defence counsel that use of the same words by all four
officers is consistent with police officers being trained to use a certain
jargon - what McEwan J. referred to in
R. v. Bentley
,
2013 BCSC 1364 as cop speak.

[83]      However, I find that
the four officers
similar but clearly false statements about Mr. Dziekanski swinging the
stapler
and having to be wrestled to the ground are not consistent with
common error and could only be the product of discussion amongst them.

[Emphasis added.]

[67]

The Pritchard video is certainly not persuasive evidence that the
officers falsely described Mr. Dziekanskis use of the stapler.

[68]

When he considered the question whether the video showed
Mr. Dziekanski to be combative, the trial judge noted that certain
gestures were hidden from view and he could not exclude the possibility that
something in Mr. Dziekanskis demeanour might reasonably have been
perceived as aggressive or combative. The same uncertainty, in my view, should
have coloured his assessment of the use of the stapler depicted in the
Pritchard video.

[69]

Examination of the same video for the same purpose by three other judges
led to a different conclusion. For reasons that follow, I am of the opinion
that some weight may properly be placed upon their serial interpretation of the
Pritchard video.

[70]

The trial judge correctly observed that issue estoppel does not arise
from the findings in
R. v. Bentley
. Ehrcke J. had arrived
at that conclusion in dismissing a preliminary challenge to the prosecution of
Cst. Millington, for reasons reported at

2014 BCSC 756. In
upholding that decision on appeal, Harris J.A. for this Court (2016 BCCA
293), cited passages from the judgment in
R. v. Tran
, 2014
BCCA 343. In that case Frankel J.A. had described persuasive reasons for
dismissing a similar argument:

[59]      To accept the appellants argument would
effectively overrule
Guimond v. The Queen
, [1979] 1 S.C.R. 960. That
case decided that when two persons charged with conspiring together are tried
separately, the acquittal of one does not necessarily invalidate the conviction
of the other. In other words, B can be convicted of conspiring with A, even
though A has been acquitted of conspiring with B.
The reason for this is
that the evidence admissible against each of them may well be different
.

[Emphasis added.]

[71]

Harris J.A. concluded in
Millington
:

[50]      The trial judge applied
the law correctly. He did not err in his application of the law in permitting
the Crown to pursue the collusion averment at the trial of
Cst. Millington.

[72]

Given our judgment in
Millington
, it must be regarded as settled
law that the acquittals of Cst. Bentley and Cst. Rundel do not give
rise to an estoppel. It is not suggested that the prosecution of the other
officers after the Bentley acquittal amounts to an abuse of process. But the
fact that the cases are not legally relevant in that sense does not mean that
no importance should be ascribed to them. As
Tran
establishes,
conflicting outcomes may result from separate trials where the admissible
evidence is different in each. The troubling fact in this case is that the
differing outcomes followed careful consideration of substantially the same
evidence. The four officers statements to IHIT, the eyewitness accounts
collected at the airport, the Pritchard video and the officers notes were considered
by all four trial judges.

[73]

The differences between the cases  the accused officers differing
opportunities to observe events, their differing degrees of experience and
training, and the fact that those acquitted denied collusion by saying they did
not remember any agreement to concoct a false story whereas those convicted
expressly denied any agreement  were not critical to the differing outcomes.
All cases hinged upon a consideration of whether there were demonstrable errors
in the four officers initial accounts of the events of October 14, 2007
and, if so, whether those were, beyond a reasonable doubt, the result of the
officers speaking to each other prior to giving statements.

[74]

In
R. v. Bentley
, the trial of the first officer
charged, McEwan J., after closely comparing the statements made by the
four officers with the Pritchard video, found at para. 219 that there was
only one statement that was certainly incorrect: that Mr. Dziekanski remained
on his feet after being Tasered and had to be wrestled to the ground. When
considering the evidence concerning the use of the stapler McEwan J.
noted:

[209]    In my view, what that evidence shows is that while
it is possible to debate nuances in the various descriptions, there is a basis
on which all of the following perceptions could be found to be facts:

(1)  That Mr. Dziekanski was combative;

(2)  That Mr. Dziekanski picked up a stapler;

(3)  That Mr. Dziekanski addressed the members
in a loud voice;

(4)  That Mr. Dziekanski made a gesture or
gestures with the stapler;

(5)  That after he was hit by the Taser
Mr. Dziekanski appeared to fight through it;

(6)  That after going
to the floor as a result of the Taser Mr. Dziekanski was difficult to
subdue and handcuff.

[75]

In
R. v. Millington
, 2015 BCSC 515, Ehrcke J.
convicted Cst. Millington of perjury, having found that six of ten averments,
including the averment he lied to the Inquiry when he testified there had been
no discussions between the officers before they gave statements to IHIT, had
been proven. However, in his reasons for judgment, Ehrcke J. found there
to be only one strikingly similar false statement: the officers testimony that
Mr. Dziekanski had to be wrestled to the ground after being Tasered. He
placed no reliance upon the similarity in the evidence with respect to the use
of the stapler. The Crown was found not to have proven that Cst. Millington lied
when he testified to the Inquiry that when he said his statement on
October 15, 2007 that Mr. Dziekanski had the stapler raised high was a reference
to Mr. Dziekanski having the stapler above his waist, and did not intend to
convey that the stapler was raised high in the air.

[76]

In
R. v. Rundel
, 2015 BCSC 1090, Gropper J.,
having closely examined the Pritchard video, concluded at para. 133 that the
Crown had not established similarities in the officers evidence could only be
explained by collusion. In particular, the Crown had not proven it was false to
say that Mr. Dziekanski was looking to fight and/or was exhibiting
combative behaviour towards the officers;  was yelling and/or moving towards
the officers; [and]
swung a stapler at the officers
 (emphasis added).

[77]

These decisions provide some support for the view I have arrived at,
having looked at the video, that the trial judge erred in regarding it as
conclusive evidence that the officers all lied with respect to the manner in
which Mr. Dziekanski handled the stapler.

[78]

While the video evidence is inconclusive, the evidence of independent
witnesses suggests the officers did not falsely describe the use of the
stapler. That evidence was not addressed by the trial judge, who referred to
the evidence of independent witnesses only when considering whether it could be
said the appellant might have perceived Mr. Dziekanski to have remained
standing after having been Tasered. In relation to that issue, he asked whether
an experienced police officer might have made the same error as that apparently
made by those witnesses.

[79]

The independent evidence before the judge, transcripts of the evidence
of witnesses at the
Bentley
trial and statements to IHIT, was also
before Gropper J., who described it (at para. 65) as follows:

a)         At Cst. Bentleys trial,
Sidarth Arora described Mr. Dziekanski as generally being hostile towards
the police, including
grabbing a stapler and trying to swing it at the
officers
. He agreed that in his IHIT statement he claimed
Mr. Dziekanski was tackled by two or three police officers and that, from
his vantage point, it might have happened. He also agreed that he described
Mr. Dziekanski as wobbling but still resisting and fighting when he was
initially Tasered.

b)         Lorne Meltzer described at
Cst. Bentleys trial that Mr. Dziekanski
suddenly produced a
stapler from somewhere, raised it and then made a leaning motion like he was
going to go towards one of the officers
to his right.

c)         Lance Rudek, who was a security
guard working at YVR at the time of the incident, described at
Cst. Bentleys trial that Mr. Dziekanski was backing off from the
officers in order to put up a fight,
holding the stapler in an elongated
position, squeezing it and making little swipes with it towards the officers
.
Mr. Rudek agreed he said at the Braidwood Inquiry that
he saw an object
being waved around and directed at the officers
. He also agreed that he told
the IHIT investigator that Mr. Dziekanski was not going down as a result of
the Tasering and it took two or three officers a couple of seconds to get him
to the ground.

d)         At Cst. Bentleys trial,
Gregory Sambrook described Mr. Dziekanski as acting aggressively towards
the officers, making an aggressive move towards them,
grabbing an object,
which he later found out was a stapler, and swinging it at one of the officers
.
He stated that from his vantage point he was able to see Mr. Dziekanski
from the upper chest and upwards only, yet
he was still able to see him
waving and swinging the stapler in his hand
. He agreed that in his
statement he said the officers tried to take him down physically and that wasnt
working; then as he was Tasered, he stepped back and fell to the ground.



g)         In her statement to IHIT, Sima
Ashrafina described Mr. Dziekanski as
grabbing what looked like a black
stapler and waving it
. She also described him as taking one or two steps
while waving the stapler at a police officer and shouting before being Tasered.
Ms. Ashrafina said that Mr. Dziekanski was keeping his hand close to
his right shoulder and not extending his arm too far.



l)
Finally, in
his statement to IHIT, Adam Williams described Mr. Dziekanski as going
into a rage when the police officers approached him
and picking up what
looked like a pair of scissors and making a striking motion with his fist
in the air. He said Mr. Dziekanski fell to the ground immediately upon
being Tasered but then got back up while the officers continued to Taser him,
screaming and hollering.

[Emphasis
added.]

[80]

In my opinion, the conclusion that the officers statements to IHIT were
demonstrably false in two respects is not supported on the evidence. The police
description of Mr. Dziekanskis use of the stapler is consistent with the
evidence of independent eyewitnesses and not clearly inconsistent with the
video evidence.

[81]

The judges conclusion that the stapler could not have been wielded in
the way described by the officers went to the core of his reasoning process; it
played a key role in the finding of collusion. The significance in this case of
the trial judges conclusion there were two false statements in all of the
officers accounts of events should not be understated. Each must presumably
have contributed to the strong inference described by Ehrcke J. in
Millington
at para. 92:

Where the testimony of the
accused is demonstrably false, the absence of a reasonable explanation for the
error may raise a strong inference that the accused was aware the testimony was
false:
R. v. Kovacs
, [1974] 3 W.W.R. 562 (Alta. S.C.A.D.) at
p. 566.

[82]

The finding of collusion was key to the conviction in relation to both
averments. As Newbury J.A. points out, the trial judge, in finding that Averment
Two had been proven, rejected the appellants evidence that he was, at any
point, mistaken about wrestling Mr. Dziekanski to the ground. The judge
concluded the appellant knew from the outset that this story was false. That
conclusion was, in part, based upon his view that the appellant was unlikely to
have been mistaken with respect to what happened, given his expertise and
opportunity to observe events. However, it was also
expressly
based upon
the evidence in support of Averment Seven, proof the officers colluded.

[83]

The convictions based upon both Averments Two and Seven was founded upon
the trial judges conclusion that it had been proven beyond a reasonable doubt
that the four officers reached an agreed-upon version of events, or colluded,
prior to giving their statements to IHIT. That agreement was found to have
resulted in a consistent, favourable version of events. The appellant was found
to have lied about that fact with the intention of misleading the Inquiry. That
conclusion undermined the appellants evidence that he had confounded the
sequence of events in relation to how Mr. Dziekanski was taken to the
ground, and supported the conclusion he had perjured himself by testifying to
that effect.

[84]

The misapprehension regarding the stapler evidence, critical to the
trial judges conclusion the four officers had colluded, was of the sort that
meets the standard described by Newbury J.A., drawn from
R. v.
Morrissey
(1995), 97 CCC (3d) 193 (Ont. C.A.),
R. v. Lohrer
, 2004
SCC 80 and
R. v. Swales
, 2014 BCCA 350:  it related to a question of
substance and played an essential role in the reasoning process resulting in
conviction.

[85]

There is support for this proposition in the conclusions of the other
judges who considered the same evidence that led to the appellants conviction.
I agree with the appellants submissions that the judgments in
Bentley
and
Rundel
have some limited use in addressing whether a conviction may
be sustained in light of the misapprehension of evidence.

[86]

As I mentioned earlier, the statements made by the officers to IHIT, the
statements made by witnesses, the Pritchard video and the officers notes were
reviewed by all three of the trial judges in the other perjury cases. The trial
judge in this case is the only one who found the statements made by the
officers to IHIT were false in two respects. In particular, he was the only
judge who concluded the statements were demonstrably false with respect to the
use of the stapler by Mr. Dziekanski.

[87]

The trial judge in
Bentley
concluded:

[220]     The Crown has not
shown that in any particular Mr. Bentley made a false statement knowing it
to be false and with intent to mislead the
Inquiry
. The Crown has
advanced a suspicion based largely on circumstantial evidence. As to each
particular, however, and as to the indictment taken as a whole, there are other
explanations, inconsistent with the guilt of the accused that remain open on
the evidence.

[88]

On appeal, MacKenzie J.A. for this Court, at 2015 BCCA 251, upheld
Cst. Bentleys acquittal:

[61]      The judges reasonable
doubt as to Cst. Bentleys guilt arose from a simple failure of the
evidence to persuade the trier of fact to the requisite level of beyond a
reasonable doubt (
J.H.M.
at para. 39). In particular, having
declined to infer collusion, the judge applied the correct test from
R. v. Griffin,
2009 SCC 28, and concluded he was not satisfied beyond a reasonable doubt that
the only rational inference from the circumstantial evidence was the guilt of
Cst. Bentley.

[89]

The trial judge in
Rundel
dismissed the charge of perjury,
including an averment that Cst. Rundel committed perjury when he testified
that he could not recall whether he discussed with his fellow officers the
details of the incident before providing his statement to IHIT. While the judge
distinguished the case against each of the three officers charged prior to Cst. Rundel,
the acquittal on this averment clearly hinged upon the conclusion that the
Crown had not proved Cst. Rundel had discussed the incident with his
fellow officers. Gropper J. explained:

[150]    I find that the Crown has not proved that
Mr. Rundel made a false statement at the Inquiry when he said that he did
not recall whether he discussed with his fellow officers the details of the
incident involving Mr. Dziekanski;
neither has the Crown proved that
his October 14, 2007 statement to the IHIT investigators was the result of
collusion
.

[Emphasis added.]

[90]

In light of these cases, it cannot be said with any confidence that the
trial judge would have concluded there had been collusion between the officers
if he had found there to have been only one demonstrably false assertion in the
officers initial statements. The fact that one common error is not
determinative of the question is illustrated by the acquittals of
Csts. Bentley and Rundel.

[91]

For that reason, I would allow the appeal, set aside the conviction and
order a new trial on the charge of perjury described in Averments Two and
Seven.

The Honourable Mr.
Justice Willcock


