



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. Colligan,









2017 BCCA 42




Date: 20170120

Docket: CA43254

Between:

Regina

Respondent

And

Adam James
Colligan

Appellant




Before:



The Honourable Madam Justice Saunders

The Honourable Mr. Justice Frankel

The Honourable Madam Justice Stromberg-Stein




On appeal from: an
order of the Supreme Court of British Columbia, dated
March 13, 2015 (
R. v. Colligan
, Kamloops Registry No. 96272-2)

Oral Reasons for Judgment




Counsel for the Appellant:



D.M. Melville





Counsel for the Respondent:



D. Layton, Q.C.





Place and Date of Hearing:



Vancouver, British
  Columbia

January 20, 2017





Place and Date of Judgment:



Vancouver, British
  Columbia

January 20, 2017








Summary:

The appeal
from conviction by a jury of aggravated assault, discharge of a firearm with
intent to wound, using a firearm to commit extortion, and breach of probation
is dismissed. The appellant contended that the judges instructions did not
adequately deal with allegations made by the Crown counsel in his opening
statement that were not proved, and that the verdict was unreasonable because
the identification evidence was too frail to support the verdict. Held: the
instructions adequately instructed the jury on the use to which it could put
the submissions of counsel. The evidence was such that the jury, properly
instructed, could convict.

[1]

SAUNDERS J.A.
: Mr. Colligan appeals from conviction by a jury of
aggravated assault, discharge of a firearm with intent to wound, maim or
disfigure, using a firearm to commit extortion, and breach of probation. Two
other counts were conditionally stayed by the trial judge applying the
Kienapple
principle.

[2]

The appellant raises two grounds of appeal. He contends that the trial
judge erred in his instructions to the jury by failing to deal with comments
made by Crown counsel in the opening statement that, in the end, were not
supported by evidence. Second, he contends the verdict was unreasonable because
the identification evidence was so weak as to be incapable of supporting the
jury verdict.

[3]

The charges arose from an incident on May 11, 2013, at Mr. Powells home
wherein he was shot in the leg. Mr. Powell was a user and distributor of
marihuana. There was evidence Mr. Powell had some acquaintance with the
appellant for about a year-and-a-half  that Mr. Colligan had earlier sought to
be Mr. Powells supplier but Mr. Powell had declined, being unsatisfied as
to quality. Mr. Powell testified that two men visited him at his home on May
11, 2013, and demanded Mr. Powell buy his marihuana from them. Mr. Powell said
that when he refused they became angry and left, saying they would return.
Later that day three people attended Mr. Powells home and said they wanted to
talk. One had a gun. Mr. Colligan took two of the men into the bathroom. During
the events the gun was passed from one man to the second. Mr. Powell was struck
in the face. There was an altercation and the person Mr. Powell subsequently
identified as the appellant, pointed the gun at Mr. Powell. Mr. Powell knocked
the gunmans hand down and the gun discharged into Mr. Powells knee.

[4]

Mr. Powell called 911. In the course of the call he mentioned the name Adam.
In speaking to the police Mr. Powell described one of the men as having stubble
hair. Mr. Powell was shown a photo pak line-up. He first picked the
appellant out as one man in the bathroom and then picked out another person as
the other man. It turned out the selection of the second man was a
misidentification, and Mr. Powell eventually picked a man who he said was taking
pictures at the hospital from a second photo pak line-up.

[5]

No objection is taken to the photo line-up procedure.

[6]

Mr. Colligan testified in his own defence. He denied the events and said
he had never met Mr. Powell. He provided alibi evidence. The judge correctly
instructed the jury on the approach it must take to the evidence given by Mr.
Colligan and defence witnesses.

[7]

I turn to the grounds of appeal. I observe, first, that Mr. Melville
quite properly abandoned a complaint made in his factum of a ruling by the
trial judge refusing to give a directed verdict, and any complaint of the in-dock
identification, which was properly handled by the trial judge.

[8]

The first ground of appeal is that the trial judge did not instruct the
jury to disregard particular comments of the Crown made in opening. The opening
included the statements that Mr. Colligan sold crystal meth, he sold to
young people and nobody really wanted to cross him. It is agreed there was
no evidence that the appellant sold crystal meth or that he sold to young
people, and there was no evidence Mr. Powell feared the appellant. The
instructions to the jury did not include a particular reference to these
portions of the opening statement. There was, however, more than one pre-charge
conference between counsel and the trial judge looking at the instructions
proposed by the judge to be given to the jury. In these conferences no request
was made to include such a specific instruction to augment the usual
instructions that were included, to the effect that what counsel said was not
evidence and that the jury was to decide the case only on the evidence.
Further, some use of this failure to prove these statements were made by
defence counsel trial in his closing submissions to the jury. In my view, the instruction
now contended for, in the circumstances, was not required. The judges
instructions on the issue of the effect of counsels submissions were fully
adequate. I would not accede to this ground of appeal.

[9]

The second ground of appeal concerns the identification evidence. There
is no doubt that the identification evidence was open to submissions by the
defence that it was not to be accepted as establishing proof of identification
beyond a reasonable doubt. Such submissions were, of course, made and the
instructions to the jury fully canvassed the frailties of the evidence and
fully addressed the issue of photo pak line-ups, eyewitness identification, and
the evidence in the case. No objection is taken to the instruction.

[10]

On appeal Mr. Colligan focuses on the misidentification by Mr. Powell of
the second man in the photo line-up, and Mr. Powells evidence that he did not
observe distinctive tattoos on the gunmans hands that corresponded to tattoos
across the knuckles of Mr. Colligan that spelled HARD LUCK. Mr. Powell
explained the latter by saying he was looking not at the gunmans hands but at
the gun pointed at him and the finger on the trigger.

[11]

Notwithstanding the frailties of the evidence, in my view it was
evidence capable of supporting the verdict. I say this noting that there were
other threads of evidence that tended to corroborate the identification. These
included Mr. Powells use of the name Adam in his call to 911, which is the
appellants first name, that the photo picked out by Mr. Powell in the line-up
had the sort of hair he had described, evidence that a man named Adam had
once delivered marihuana to the house and said he would like to be Mr. Powells
exclusive supplier, and some post-offence conduct that, on a correct basis (as
to which there was no complaint) was left with the jury.

[12]

In my view, the evidence was such that this jury, properly instructed as
it was, could return a guilty verdict.

[13]

I would dismiss the appeal.

[14]

FRANKEL J.A.
: I agree.

[15]

STROMBERG-STEIN J.A.
: I agree.

[16]

SAUNDERS J.A.
: The appeal is dismissed with thanks to counsel.

The Honourable Madam Justice Saunders


