



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. Haynes,









2011 BCCA 39




Date: 20110203

Dockets:  CA037939;
CA038115



Docket: 
CA037939

Between:

Regina

Respondent

And

Ian Michael Haynes

Appellant

- and -

Docket:  CA038115

Between:

Regina

Respondent

And

Lee Murray Bonwick

Appellant




Before:



The Honourable Madam Justice Huddart





The Honourable Mr. Justice Hall





The Honourable Mr. Justice Hinkson




On appeal from: the
Provincial Court of British Columbia, December 21, 2009, (
R. v. Haynes and
Bonwick
, Duncan Registry No. 30304-2-C)




Counsel for the Appellant,

Ian Michael Haynes:



K. Bradley





Counsel for the Appellant,

Lee Murray Bonwick:



M. Allen

E. Bates-Smith





Counsel for the Respondent:



K. Madsen





Place and Date of Hearing:



Victoria, British Columbia

October 29, 2010





Place and Date of Judgment:



Vancouver, British
  Columbia

February 3, 2011









Written Reasons by:





The Honourable Mr. Justice Hall





Concurred in by:





The Honourable Madam Justice Huddart

The Honourable Mr. Justice Hinkson








Reasons for Judgment of the Honourable
Mr. Justice Hall:

[1]

The appellants, Haynes and Bonwick, were jointly charged with the
aggravated assault of the complainant, Roy, on December 19, 2007 at Shawnigan
Lake.  After a trial before Wood P.C.J., they were convicted of this offence on
December 21, 2009 and both were sentenced to three years imprisonment.  Haynes
had also been charged with assault of the complainant with a weapon, namely a
board.  Bonwick had been charged with the same type of offence involving a
knife.  Ultimately, convictions were not registered on these two charges.

[2]

The evidence of the complainant was that as he was working at his
Shawnigan Lake workshop in the early morning hours of December 19, 2007, the
two appellants accosted him and committed a violent assault that resulted in
serious injuries.  One injury occasioned the loss of one of his eyes.  The
complainant testified that he knew Haynes as a friend and although he was
acquainted with Bonwick, he did not know him as well as Haynes.  It appears
that the three men had been involved with illegal drugs and there had in the
past been drug transactions between them.

[3]

The complainant said he had helped Haynes out previously when he was in
jail by looking after goods of Haynes that were contained in a locker.  He said
he sold some of these with the consent of Haynes to raise money for him.  He testified
that as the two men approached him on the morning of the assault at the
workshop, Haynes stated that he owed him money on account of goods that were
allegedly stolen from the locker.

[4]

Although in his initial statement to police a couple of days after the
event the complainant had asserted that the wielder of the board, which caused
the eye injury, had been Haynes, by the time of trial, he asserted that Bonwick
had done this.  The complainant testified that a knife wielded by the appellant
Bonwick caused stab wounds to his legs in the course of the assault upon him by
both men.  Given the testimony at trial by the complainant, the trial judge
acquitted Haynes of the offence of assault using the board.  Bonwick had not
been charged with this offence.  The trial judge did not enter a conviction against
Bonwick on the count alleging assault with a knife on the basis of the rule
against multiple convictions arising out of the same delict.  Both appellants
appeal against their conviction for aggravated assault on the basis of errors
of analysis said to have been made by the trial judge as disclosed in his
reasons for judgment.

[5]

It was not clearly apparent from the evidence what the motive for the
attack on Roy was:  the judge adverted to this uncertainty in his reasons.  The
complainant always denied any conduct on his part that could have resulted in
either accused having any animus against him and neither of the appellants
testified.  The only suggestion of a motive arose from the evidence of Roy that
Haynes had expressed a complaint as he approached with Bonwick that Roy had
stolen from him.  However, according to the complainant, he had actively
assisted Haynes while the latter was in jail and had committed no wrong towards
him.  At the conclusion of the evidence, it was by no means clear what precisely
could have motivated Haynes and Bonwick to attack the complainant at his shop
on the morning of December 19, 2007.  Haynes and Bonwick, through counsel,
asserted that they had not in fact attacked the complainant.  It was submitted
by counsel for both appellants at trial that the complainant was falsely
asserting that they were the individuals who had caused the injuries to him. 
There was never any issue in the case that the complainant had suffered serious
injury on the date in question; the only live issue was whether the appellants
were the perpetrators of the assault.  Their identification as such depended
entirely on the testimony of the complainant.

[6]

The complainant described an attack wherein initially Haynes was beating
him about the upper body with an iron bar while Bonwick was stabbing him in the
legs with a knife.  The complainant testified that eventually he fell to the
floor inside his shop where he continued to be assaulted by both men.  He
testified that during this phase of the assault, Bonwick picked up a piece of
lumber with which he struck the eye of the complainant.  The complainant says
that eventually he was able to get to his feet and by a ruse that an alarm was
going off, persuade the two appellants to cease the assault and leave the
premises.  Immediately thereafter he was with some difficulty able to drive his
vehicle to his nearby home where his common law partner resided.  This partner
testified to him arriving at the premises in an upset and injured condition in
the early morning hours of December 19, 2007.

[7]

One complicating feature of this case was that in his initial statement
to a police officer while he was in hospital soon after being injured, the
complainant attributed the loss of his eye to the actions of the appellant
Haynes.  However, just prior to trial in an interview with Crown counsel, he
changed his description of the incident to attribute responsibility for his eye
injury to the appellant Bonwick.  His explanation for initially seeking to cast
responsibility for the loss of his eye upon Haynes was that because of what was
said by Haynes as he approached him just prior to the assault, he attributed
greater responsibility for the assault to Haynes.  The complainant was
extensively cross-examined by counsel for both appellants but he did not waver
from what he had told Crown counsel, namely that he was the subject of a
violent assault by both men, but only Bonwick had wielded the piece of lumber
that caused the injury to his eye.  This was the most serious injury inflicted
on the complainant.

[8]

Immediately after the assault, as I noted, the complainant was able to return
to his residence and was then observed by his partner to be in great distress. 
His partner, Ms. Richard, gave this evidence:

Q:        And did -- while you were dealing with Mr. Roy
did he indicate whether or not he knew his attackers?

A:         Yes.

Q.        Did he provide you with names?

A.         Yes.

Q:        Did you communicate, do you recall whether or
not he communicated names to the police?

A.         Yes, I did.

[9]

The following excerpts from the cross-examination of the complainant by
respective counsel for the appellants sets out shortly the suggestions made to
the complainant that he was lying about who had been the perpetrators of the
violent attack upon him:

Q:        Sir, I am going to suggest to
you that the reason that your story has changed over time as to who did what on
the night in question was because it was neither Mr. Haynes nor Mr. Bonwick
over there that night.

A:         Well, that is your
suggestion and you are allowed to voice your suggestion.  ...  You are wrong.

Q:        ...[A]nd I suggest to you
that you have been threatened or intimidated by the persons who are actually
responsible for this and as a result you have chose two easy scapegoats.

A:         ... [Y]our suggestions are
completely off-base.

Q:        I am suggesting to you that
you had chosen two easy scapegoats, two persons who owed you  -- money as a
means of --

A:         [You] are very wrong
.



Q:        On December 17, 2009 [
sic
],
you were attacked by a contact from

Vancouver, correct?

A:         No.

Q:        You blamed Ian for being --
for being attacked by those contacts?

A:         No.

Q:        Because Ian was the one that
put you in --

A:         Absolutely false.

Q:         -- in contact with those
contacts?

A:         False.

Q:        And you blamed Ian when the
police came to talk to you because it was

safer than blaming the people on Vancouver Island.

A:         I
am sorry maam, but that is false.

[10]

The complainant denied the suggestions made by counsel and asserted that
he had been assaulted by the appellants in the fashion he had testified to in
chief.  The judge stated that while the lifestyle of the complainant and his
differing versions of events mandated that his evidence be viewed with a
measure of caution, the fact is that, as a whole, I found Mr. Roy to be a
credible witness.  This was obviously a case in which the credibility of the
complainant was a central issue in the case.

[11]

The judge went on to find certain aspects of the evidence in the record
to be positive factors in his evaluation of the credibility of the complainant
and supportive of the Crown case.  On this appeal, the appellants argue that
the judge fell into error by suggesting that these portions of the evidence could
be so utilized.  The judge said this about the evidence quoted
supra
that
had been given by Richard:

[60]        Of particular
significance on the issue of his credibility is the fact that he identified the
two accused as his assailants within minutes of the actual assault.  He did so
as he lay on the floor of his residence, having collapsed there immediately
upon his arrival.  He was in shock due to the severity of his injuries and
though[t] he was going to die.  It seems unlikely in the extreme, given those
circumstances, that he would have had the presence of mind to identify two
innocent individuals for some purpose for which there is no realistic
foundation in the evidence.

[12]

Counsel submit firstly that Richard did not explicitly testify who it
was the complainant identified when he first arrived at his residence in an
injured and distressed state.  Secondly, it is submitted that even if the Crown
can surmount this alleged gap in the evidence, the judges use of the statement
for the purpose of confirming Mr. Roys evidence of the identity of his
assailant is out of accord with general evidentiary principles governing the
limited use of previous consistent statements.

[13]

Counsel for the Crown respondent takes issue with these submissions
concerning this evidence.  Counsel submits the judge was entitled in all the
circumstances to infer from the evidence of Richard that it was the appellants
who the complainant identified to her as his assailants, in the absence of any
suggestion in the cross-examination of the complainant that it was other individuals. 
Counsel for the appellants in response to this argument submit that it does not
lie upon counsel for an accused person to repair any deficiencies in the case
for the Crown.

[14]

In the factual circumstances of this case, I consider the submission of counsel
for the Crown respondent to be a viable argument.  In my view, the trial judge
was entitled, on the state of the record before him, to draw the inference that
the persons named by Roy to the witness Richard were the two appellants.  Accordingly,
I would not give effect to the objection about there being a gap in the
evidence as argued for by the appellants.

[15]

The second objection taken to this evidence is one that raises perhaps a
more difficult issue.  This type of evidence may be adduced and relied upon in
certain limited circumstances as an exception to the rule against hearsay
evidence.  Such evidence can be admitted to rebut a suggestion of recent
fabrication of evidence or as a
res gestae
exception to the hearsay
rule.  The trial judge did not specifically advert in his reasons to the basis
upon which he found that the statement to Richard could be utilized to impact
positively on the credibility of the complainant Roy.  Given that the statement
was made at a time near to the event during which the complainant was in great
distress, it might arguably be admissible as a
res gestae
exception to
the hearsay rule:  see
Ratten v. The Queen
, [1972] A.C. 378 (P.C.).  The
respondent, however, does not seek to support the admissibility and use of the
evidence under this category.  Rather, it is submitted that the judge was
properly entitled to consider this statement as a positive factor in evaluating
the credibility of the complainant to rebut any suggestion of recent
invention.  Counsel referred to this language found in
R. v. Stirling
, 2008
SCC 10, [2008] 1 S.C.R. 272:

[11]      Courts and scholars in this country have used a
variety of language to describe the way prior consistent statements may impact
on a witnesss credibility where they refute suggestion of an improper
motive.  ...  This Court has found that the statements can be
admitted 
in support of
 the witnesss credibility ([
R. v. Evans
,
[1993] 2 S.C.R. 629] at p. 643).  What is clear from all of these
sources is that credibility is necessarily impacted  in a positive way  where
admission of prior consistent statements removes a motive for
fabrication.  Although it would clearly be flawed reasoning to conclude
that removal of this motive leads to a conclusion that the witness is telling
the truth, it is permissible for this factor to be taken into account as part
of the larger assessment of credibility.

[12]      It is therefore not
entirely accurate to submit, as the appellant contends, that prior consistent
statements cannot be used to bolster or support the credibility of a
witness generally. This argument attempts to insulate the impact of the prior
consistent statements from the remainder of the credibility analysis and
suggests that general credibility can somehow be hived off from the specific
credibility question to which the statements relate.  Such a fine parsing
of the notion of credibility is impractical and artificial.  Further,
while it would clearly be an error to conclude that because someone has been
saying the same thing repeatedly their evidence is more likely to be correct,
there is no error in finding that because there is no evidence that an
individual has a motive to lie, their evidence is more likely to be honest.

[16]

It was clear from the course of cross-examination and argument advanced
at trial on behalf of the appellants that it was being suggested that the
complainant had fabricated his evidence about the involvement of the appellants
in the violent assault.  Thus it became material that at a time very close to
the incident and prior to the complainant giving to the police a narrative of
events, the complainant did identify the appellants as his assailants to Ms. Richard. 
What he said on arrival at his residence serves to rebut a suggestion, explicit
or implicit, that he was telling tales to the police.  While some of the
language employed in para. 60 of the reasons of the learned trial judge
has about it a flavour of
res gestae
, it is also language consistent
with evidence being allowed to counter a suggestion of invention after
sufficient time for reflection.  This is a permitted use of this species of
evidence.  Accordingly, I would not give effect to the submissions advanced
under this head of argument by counsel for the appellants.

[17]

The second objection taken to the evidentiary analysis of the trial
judge arises from his treatment of the evidence of a defence witness, Francis. 
This witness was called by trial counsel for the appellant, Bonwick.  The
witness testified that he knew Roy, Haynes and Bonwick as a result of drug
dealing connected to his addiction.  He also said Roy had done some mechanical
work for him.

[18]

The gist of the evidence of this witness was that he had been asked by some
people to try to get the complainant to shift the blame or to drop the
charges or something like that.  He fixed the time he was asked to do this as
being near the first trial date which would make it late summer or early fall
of 2008.  The exact basis of admissibility of the evidence of this witness might
have been problematic but the evidence was not objected to by the Crown. 
Francis said he had numerous communications with Roy over some weeks. 
According to Francis, Roy indicated he might be receptive to the blandishments
of Francis if the price were right.  According to Francis, Roy wanted payment
of some drug debts of the appellants aggregating $7,000 plus some additional
money.  Francis testified that those instructing him cavilled at the sums
requested by Roy and so ultimately no deal could be reached.

[19]

It may be that this evidence could have been viewed as admissible as
possibly showing animus or bias on the part of the complainant.  If the
evidence were accepted, it could obviously have a negative impact on the
testimony of Roy, since he would have shown himself willing to interfere with
the course of justice for money.  However, the usual rule is that evidence
going purely to the credibility of a witness should not be allowed on the basis
of the collateral issues rule.  It is however not necessary to further pursue
this interesting question because the evidence was allowed to be placed on the
record without objection.

[20]

In closing argument at trial, Crown counsel seemed to suggest that the
evidence of Francis about trying to persuade Roy to diminish the involvement of
Haynes in any assault could confirm the guilt of the appellants because he had
approached these negotiations in mind that Haynes and Bonwick were involved. 
On the face of it, that seems a mildly dubious assertion, since it was also the
evidence of Francis that neither appellant was privy to or had any knowledge of
the alleged negotiations.

[21]

The trial judge, not surprisingly, appeared sceptical of the evidence of
Francis but he did utilize the calling of the evidence to support verdicts of
guilty against both appellants.  He said this at para. 46 of the reasons:

[46]      The
significant feature of Mr. Francis evidence is that, depending on how
much
of it I accept, it has the effect of
confirming the participation of both Mr. Haynes and Mr.
Bonwick
in the assault on Mr. Roy.  Why else would they, or some independent
third
party on their behalf, be prepared to
offer some consideration for a change in Mr. Roys testimony that,
according to Mr. Francis view of life, would ultimately benefit them
both.
In that regard, the reference by Mr. Francis to Mr. Roy
changing his testimony from
what was in his
statement is particularly interesting.  At the time these negotiations
were
allegedly taking place, a month or so before the trial began, both accused
would
have been aware of the contents of Mr. Roys
statement to Constable Lewis.  Any
knowledge
that a third party had of the content of that statement could only have come
from the one or both of the accused.

[22]

He noted at para. 47 of his reasons that the approach to Mr. Roy
was most likely made with the complicity of both accused.

[23]

At a later stage in his reasons, after concluding that Roy was a
credible witness, he went on to say this:

[62]      And
finally, there is the fact that one accused chose to lead evidence, the
essence of which was that his co-accused or someone on his or their
behalf had tried to
get Mr. Roy to
change his evidence, allegedly by shifting blame for the most serious
injury he suffered from one accused to the other.
 Whether that was the actual change suggested, the evidence of Mr. Francis
was quite inconsistent with the innocence of either accused.

[63]      There is never an obligation on any
accused to offer evidence in support of their innocence.  But when evidence is
called which, instead of innocence, leads to an inference of guilt, the law
neither requires nor permits the trier of fact to look the other way.  And when
two accused are charged, and the one gives evidence implicating both in the
crime charged, such evidence becomes probative of the guilt of both.

[24]

Evidence that an accused has sought to influence a witness or to create
a false alibi can lead to an inference of guilt.  The former situation was
commented on by Craig J.A. in the case of
R. v. Pappajohn
, [1979] 1
W.W.R. 562 (B.C.C.A.).  Craig J.A. concurred with Farris C.J.B.C. in
dismissing an appeal from conviction.  In his separate reasons, he addressed
the propriety of permitting counsel for the Crown to cross-examine the accused
on an alleged threat made by the accused to a witness.  He gave approval to the
allowance of the cross-examination and also approved the charge of the judge
who had told the jury that the evidence of a threat, if believed, could indicate
a consciousness of guilt and a desire to evade the pressure of facts tending to
establish it.  At 567, he made reference to
Wills on Circumstantial
Evidence
as supportive of this use of this species of evidence.

[25]

If it can be established in evidence that an accused has fabricated an
alibi, that may also be utilized by the trier of fact to infer a consciousness
of guilt:
R. v. Tessier
(1997), 113 C.C.C. (3d) 538 (B.C.C.A.). 
However, there must be a sufficient evidentiary foundation, aside from mere disbelief
of evidence of an accused, to establish the fabrication.  Ryan J.A., in
her concurring judgment in
Tessier
, articulated why mere disbelief in an
alibi testified to by an accused would generally not found an inference of
consciousness of guilt.

[68]      It seems to me that the reason we
look for independent evidence that the accused fabricated his story is
two-fold. In the first place as my colleague Rowles J.A. has pointed out
the reasoning is circular if there is no independent proof:  The weight of the
Crowns evidence admits of no doubt therefore the accused is not telling the
truth.  The accused is not telling the truth therefore the Crowns case admits
of no doubt.  In the second place, because the evidence that the accused has fabricated
a story can be used as part of the Crowns case against him, care must be taken
in finding that the alibi was concocted.  There must be a solid evidentiary
base of fabrication.  It is not unreasonable to demand that this evidence be
found independently of the other evidence of the proof of the crime.

[69]      If
evidence of fabrication need be found only in the evidence which proves the
offence then in every case where the accused testifies (alibi or not) there
would be no reason not to permit a jury to use their finding that the accused
has been untruthful as part of the Crowns case against him.  That does not
accord with any articulation of the law that I know of.

[26]

In the case at bar, the judge appears to have
utilized the calling of the evidence of Francis as supportive of the Crown case
generally and, although not clearly articulated in his reasons, apparently as
some support for the credibility of Roy.  Paragraphs 62 and 63 from his reasons
quoted
supra
immediately follow that portion of his reasons where he
finds Roy to be credible.

[27]

Obviously Francis was a less than stellar
witness.  The trial judge was entitled to find that he could not put any
significant weight on his evidence.  It is however difficult to see how either
the calling of or the contents of the evidence of Francis could be used as
supportive of the guilt of the appellants or of the credibility of Roy.  The
evidence in the record in this case does not support what I would term a
linkage between the calling of the evidence of Francis and the appellants. 
Absent such linkage, it does not seem to me that this evidence adduced on
behalf of one of the appellants could be utilized either negatively (an
inference of consciousness of guilt) or positively (supportive of the
credibility of Roy).

[28]

In my respectful opinion, there is force in the
submissions of counsel for the appellants that the learned trial judge erred in
his treatment of the evidence of Francis as supportive of the Crown case and probative
of the charges the appellants faced.  The judge was of course perfectly
entitled to reject the evidence of Francis but that should have been the end of
the matter.  Such rejected evidence would then not have been capable of having
any adverse effect on the evidence of Roy.  But the calling of and the content
of the evidence in the circumstances of this case was not probative of anything
relating to the offences faced by the appellants, including the credibility of
the main witness, Roy.  That was so, as I noted, because the record did not
provide any connection between the adducing of this evidence and either accused
person.

[29]

This case substantially depended on the
testimony of Roy.  If the trier of fact accepted the evidence of Roy as
credible, the finding of an assault by the appellants was clearly sustainable. 
Had the judge concluded, without more elaboration, that he accepted the
evidence of Roy, these convictions were supportable.  However, the errors in
analysis that I have adverted to above places the sustainability of the
convictions against these individuals in doubt.  I consider that the only
appropriate disposition of this appeal is to allow the appeals from conviction
and order a new trial in the case of both appellants.

The Honourable Mr.
Justice Hall

I agree:

The Honourable Madam Justice
Huddart

I agree:

The Honourable Mr. Justice
Hinkson


