



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. King, 2013 ONCA 262

DATE: 20130426

DOCKET: C52433

Rosenberg, Watt and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Frederick King

Appellant

Mark Halfyard and Breana Vandebeek, for the appellant

Roger Shallow, for the respondent

Heard: April 23, 2013

On appeal from the conviction entered on June 10, 2010 by
    Justice John B. McMahon of the Superior Court of Justice, sitting without a
    jury.

ENDORSEMENT

[1]

The appellant appeals from conviction by McMahon J. for various firearms
    offences as well as convictions for assault police, failure to comply with a
    recognizance and possession of cocaine for the purpose of trafficking. The
    grounds of appeal concern the reasons of the trial judge for his credibility
    findings on the
Charter
application and the trial proper. The
    appellant submits that the trial judge misapprehended the effect of
    inconsistencies in the officers evidence, especially where the officers
    evidence was contradicted by extrinsic evidence. Secondly, the appellant
    submits that the trial judge did not properly deal with the issue of
    collaboration by the two officers. We would not give effect to those
    submissions and accordingly, the appeal is dismissed.

[2]

The standard of review for the type of errors alleged by the appellant
    is a strict one. The burden is on the appellant to show that the trial judge
    failed to direct himself to the relevant issues or that he erred in his
    appreciation of the evidence in a manner that could have affected the outcome. 
    See
R. v. Lohrer
, 2004 SCC 80.

[3]

There were many inconsistencies in the testimony of the two principal
    witnesses, Constables Parker and Van Wart. As the appellant fairly
    acknowledges, the trial judge identified most of them and provided reasons as
    to why they did not affect his ultimate decision that the officers were
    truthful and reliable on the core allegations. The appellants submission, at
    least as related to the two main inconsistencies relied upon, was that the
    trial judges treatment of the inconsistencies was inadequate. We do not agree.

[4]

As to the assault on Constable Van Wart, the trial judge recognized that
    there was extrinsic evidence, in the synopsis prepared by Detective Bernardo,
    to support the appellants position that he did not assault the constable, but
    merely slipped out of his sweatshirt and fled. But, the trial judge did not
    ignore the inconsistency and he was entitled to accept the explanation for the
    inconsistency. Detective Bernardos explanation is not obviously absurd or
    patently unreasonable.

[5]

As to the communication during the foot pursuit, again it was open to
    the trial judge to find that Constable Parker did not appreciate that Van Wart
    was attempting to arrest the appellant for breach of recognizance, not drug
    offences. Parkers mistake was not unreasonable given that the appellant
    actually was on a recognizance for a drug offence and the attempted arrest was
    in an area known for drug trafficking activity. As the trial judge said, the
    objective facts were consistent with Parkers evidence that he did not hear the
    bail conditions.

[6]

As to the failure of the trial judge to mention Van Warts continued
    interest in the appellants drivers licence, in our view, this was not a
    material inconsistency that rendered the credibility findings suspect. A fair
    reading of the evidence shows a confusing situation in which the officers did
    not initially appreciate the significance of the appellants possession of a
    cell phone. That Van Wart continued to seek information about the appellants
    drivers licence status was not surprising given that state of affairs.

[7]

The appellants second ground of appeal is a submission that the trial
    judges finding that the officers did not fabricate the reason for the arrest
    was unreasonable. This submission turned on the significance of the fact that
    the officers made their notes sometime after the events and after they had
    discussed the events. Counsel for the appellant points out in particular the unsatisfactory
    evidence given by Constable Parker in cross-examination.

[8]

The appellant submits that the trial judges reasons for dismissing the
    fabrication submission were unreasonable. He submits that the allegation of
    fabrication could not be dismissed simply on the basis that if the officers
    were colluding and fabricating they did a bad job of it given the many
    inconsistencies in their evidence. The appellant submits that the inconsistencies
    are explained not by the fact that the officers did not collude but that they
    could not overcome the extrinsic evidence, especially the transcript of the
    dispatch recording. But, the trial judge dealt with this submission. He found
    that the inconsistencies went beyond simply tailoring their evidence to mean
    the transmission send by the dispatch. Accordingly, the trial judge found it
    much more likely that the inconsistencies supported the theory that the
    officers had not fabricated their evidence to frame the appellant and attempt
    to justify unconstitutional conduct. This was pre-eminently an issue for the
    trial judge and it was not open to this court to second guess the trial judges
    finding.

[9]

The appellant abandoned his ground of appeal that the trial judge
    approached his assessment of the evidence in a piecemeal fashion and did not
    consider the cumulative effect of the various inconsistencies.

[10]

Accordingly,
    the appeal from conviction is dismissed.

M.
    Rosenberg J.A.

David
    Watt J.A.

S.E.
    Pepall J.A.


