



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. Wiwchar,









2017 BCCA 9




Date: 20170110

Docket
No.: CA43128

Between:

Regina

Respondent

And

Dean Michael Wiwchar

Appellant






Before:



The Honourable Chief Justice Bauman

The Honourable Madam Justice D. Smith

The Honourable Mr. Justice Goepel




On appeal from:  An
order of the Supreme Court of British Columbia, dated
June 4, 2015 (
R. v. Wiwchar
, 2015 BCSC 973, Vancouver Docket No. 26487).




Counsel for the Appellant:



S. Buck





Counsel for the Respondent:



M. Sheardown
A. Adams





Place and Date of Hearing:



Vancouver, British
  Columbia

October 25, 2016





Place and Date of Judgment:



Vancouver, British
  Columbia

January 10, 2017









Written Reasons by:





The Honourable Madam Justice D. Smith





Concurred in by:





The Honourable Chief Justice Bauman

The Honourable Mr. Justice Goepel








Summary:

Mr. Wiwchar was
convicted of a number of firearm-related offences. At trial, the central issue
was whether he knew about the firearms, ammunition and prohibited devices, found
inside an ottoman in an apartment he and his co-accused had exclusive access to
at all material times. On appeal, Mr. Wiwchar submits the judge
misapprehended the evidence in finding that, because a bag placed inside the
ottoman during the material time contained his fingerprint, he would have known
about the contents of the ottoman. He submits that the judges misapprehension
of that evidence played an essential role in the reasoning process that led to
his convictions. He also submits the judge erred in failing to provide adequate
reasons to support his verdict. Held: appeal dismissed. The judges
interpretation of the evidence was a reasonable one that was open to him on the
wording of an admission made pursuant to s. 655 of the Criminal Code that
was also supported by photos stills. However, even if he did err as alleged,
the error was not readily obvious and, in any event, it was inconsequential to
his reasoning as the evidence overwhelmingly established that Mr. Wiwchar
and the co-accused were acting in concert with respect to the criminal
activities. Nor were the judges reasons insufficient when they are read as a
whole in the context of the evidence and the submissions at trial. There was no
miscarriage of justice and the verdict was not unreasonable.

Reasons for Judgment of the Honourable
Madam Justice D. Smith:

Overview

[1]

Following a 10-day trial, Dean Wiwchar was convicted of nine counts in
an indictment that charged him with: (1) possession of restricted,
prohibited, loaded or unloaded firearms with readily accessible ammunition, and
possession of these firearms without a licence or registration certificate, contrary
to s. 95(1) of the
Criminal Code
(the 
Code
);

(2) possession
of firearms and possession of firearms without a licence or registration
certificate, contrary to s. 92(1) of the
Code
;

(3) possession
of prohibited devices, contrary to s. 92(2) of the
Code
; and (4) possession
of firearms, devices and ammunition while prohibited from so doing, contrary to
s. 117.01(1) of the
Code
. All of the firearms found to be in his
possession were operational. He appeals his convictions on counts one to five.

[2]

The offences occurred between March 24, 2012, and April 25, 2012, in two
locations: an apartment on Jervis Street in Vancouver (the Jervis Residence) and
Suite 1209 (the Suite) of a condominium tower in Surrey (the Tower). The Suite
was a safe-house that was used to store items related to criminal activity,
including weapons. Mr. Wiwchar and the co-accused, Mr. Ley, also used
the Suite as a staging location for their reconnaissance activities at a nearby
gym and to store clothing and disguises related to those activities.

[3]

Counts one to five of the indictment were related to the offences at the
Suite. During a lawful search, the police seized 14 firearms, various
prohibited devices (e.g., oversized cartridge magazines) and ammunition. Counts
six to nine of the indictment were related to similar seizures at the Jervis Residence.
Mr. Wiwchar pleaded guilty to those counts, but not guilty to counts one
to five.

[4]

The central issue at trial was whether Mr. Wiwchar knew of the firearms,
ammunition and prohibited devices that were located inside an ottoman in the Suite.
While Mr. Wiwchar admitted that he had control over the Suite, he contended
that the Crown had not established beyond a reasonable doubt that he knew the
items were being stored there.

[5]

On appeal, Mr. Wiwchar submits the judge misapprehended the
evidence in finding that he had knowledge of the firearms, ammunition and prohibited
devices, and that the judges misapprehension of that evidence played an
essential role in the reasoning process that led to his convictions on counts
one to five. He also submits the judge erred in failing to provide adequate
reasons.

[6]

For the reasons below, I am not persuaded the judge misapprehended the
evidence or that his reasons were inadequate. I would dismiss the appeal.

Background

[7]

The trial proceeded on a number of admitted facts that were entered as
evidence pursuant to s. 655 of the
Code
(the Admissions). Facts
admitted pursuant to s. 655 are deemed to be conclusively proven. The
judge also made findings of fact. The following facts, including the Admissions,
are not in dispute.

[8]

Between March 23, 2012 and April 24, 2012, Mr. Wiwchar and Mr. Ley
had exclusive access to the Suite through the use of a fob issued for the Suite.
It also provided access for the elevators to the Suite as well as the units assigned
parking stall, 269, in the underground parkade, where a Dodge Caravan was
parked and used by Mr. Wiwchar and Mr. Ley.

[9]

The police had Mr. Wiwchar under surveillance between March 24,
2012 and April 18, 2012. During that period they observed Mr. Wiwchar and Mr. Ley
going into, and leaving, the Tower on six occasions: March 28, April 7, 10, 11,
12 and 17. They also noted that Mr. Wiwchar was the predominant user of
the fob on those occasions.

[10]

On March 27, Mr. Wiwchar and his girlfriend purchased a number of clothing
and footwear items at the SportChek store at Metrotown, Burnaby.

[11]

On March 28, at 19:14 hours, Mr. Wiwchar and Mr. Ley purchased
three 2.8L bottles of bleach and Lysol wipes at the London Drugs store in Guildford
Town Centre, Surrey. Fifteen minutes later they returned to the Tower. The CCTV
monitoring system for the Tower captured each man entering the front doors carrying
multiple plastic shopping bags. Mr. Wiwchar was wearing a white jacket and
Mr. Ley a black jacket.

[12]

The photo stills showed Mr. Wiwchar carrying three larger bags of
the same size and shape and at least one smaller bag. One of the larger bags facing
the CCTV clearly displayed the rectangular black SportChek marking. The other
bags of a similar size and shape also displayed the rectangular black marking of
a SportChek bag, but the SportChek logo was not discernible on them. The CCTV
did not capture any discernible markings on the smaller bag.

[13]

The photo stills also captured Mr. Ley carrying, in one hand, several
of the larger bags with the black rectangular markings and several of the
smaller plastic bags in the other hand.

[14]

Paragraph 22(b) of the Admissions stated that on March 28, 2012, at
19:28-19:29, Mr. Wiwchar and Mr. Ley were at the Tower. Mr. Wiwchar
was wearing white, Mr. Ley black, and both were carrying multiple plastic
shopping bags from London Drugs and SportChek to the front doors. The judge
interpreted this Admission to mean that each man carried multiple shopping bags
from both London Drugs and SportChek.

[15]

On April 2, Mr. Wiwchar and his girlfriend purchased items at a
professional costume and make-up store.

[16]

On April 7, 10 and 11, Mr. Wiwchar and Mr. Ley were seen to have
entered the Tower. When they left they had changed their clothes. They then drove
the Dodge Caravan to the nearby World Gym. Over those three days, they spent a
total of 7 hours in the vicinity of the World Gym watching men, matching the description
of one that the police believed they intended kill. On each of these dates, Mr. Wiwchar
was wearing white clothing when he arrived at the Tower and black clothing when
he left for the World Gym. When he returned to the Tower, he changed back into the
white clothing.

[17]

On April 18, Mr. Wiwchar and Mr. Ley travelled to Mexico. Mr. Wiwchar
left the fob to the Tower with his girlfriend while he was away. Mr. Ley
returned from Mexico on April 27. On May 2, he retrieved the fob from Mr. Wiwchars
girlfriend and used it to access the Dodge Caravan parked in stall 269. There
was no evidence that he accessed the Suite at that time. Mr. Wiwchar
returned from Mexico on May 18. On May 23, he travelled to Toronto; he
returned to Vancouver on May 28.

[18]

On April 24, 2012 while the men were still in Mexico, the police
lawfully searched the Suite. When the search was complete, the police staged a
break in of the suite to make it appear as if there had been a forced entry.

[19]

During the search of the Suite, the police discovered the following
items inside a large ottoman in the living room:

·

a blue Roots backpack containing: ammunition inside two ziplock
bags stored in the top zipper compartment of the backpack; a latex glove; and, inside
the sleeve of the top zipper compartment, a license plate, a liquor store
plastic bag and a London Drugs plastic bag containing some ammunition;

·

a black Reebok duffle bag containing six firearms;

·

a red shoe box containing two handguns; and

·

firearms and magazines on the floor of the ottoman.

[20]

A forensic analysis of the London Drugs bag from the ottoman detected a
fingerprint on the inside of the bag that was matched to Mr. Wiwchar.

[21]

A fingerprint on the latex glove was identified as belonging to a third
party.

[22]

No fingerprints were found on the firearms, ammunition or devices inside
the large ottoman. One of the officers who had searched the items for
fingerprints testified that a common way of removing DNA from objects is to use
cleaners such as bleach.

[23]

The police search also located a small ottoman in the living room. It
contained hand-cuffs, leg-irons, two flashlights and flyers. Mr. Wiwchars
DNA was found on a water bottle in the kitchen. Mr. Leys DNA was found on
a pop bottle in the living room. Two-way radios were in open view on the TV
stand. On the floor beside the couch, were two unopened bottles of bleach; one
was inside a plastic bag. The third bottle of bleach was not found. Beside the
bottles of bleach, was a mask that Mr. Wiwchar and his girlfriend had purchased
on April 2, 2012 at the costume store. The police also found some bags in
the living room that contained disguises, including wigs, artificial moustaches
and beards, makeup applicators, liquid latex, make up and artificial facial
hair material. Six articles of clothing purchased from the Sportchek store on
March 27 were also found in the Suite. Two additional items purchased at
the SportChek store on that date were also found inside the Dodge Caravan
parked in stall 269.

Reasons for Judgment

[24]

The judge inferred that Mr. Wiwchars fingerprint, found on the
London Drugs bag inside the large ottoman at the Suite, was placed on the bag by
Mr. Wiwchar when he carried it into the Tower on March 28. The judge
also inferred that either Mr. Wiwchar or Mr. Ley placed the bag into
the ottoman when they were both in the Suite because they had exclusive access
to the Suite during the material time. The judge stated:

[59]
The evidence here is that Mr. Wiwchar was
seen carrying a number of London Drugs bags into Suite 1209 on March 28, 2012.
That evidence provides a basis for Mr. Wiwchars fingerprint to have been
placed on the bag. It is reasonable to infer that the London Drugs bag in the ottoman
was one of the bags that he brought into Suite 1209 on March 28.
As only Mr. Wiwchar
and [Mr. Ley] had access to Suite 1209 between March 23 and April 24, it
is also reasonable to infer that the London Drugs bag was placed in the Roots
bag and in the ottoman by one of them sometime on or after March 28.

[60]      There is no evidence that [Mr. Ley] had
exclusive access to Suite 1209 between March 28 and April 24. When he returned
from Mexico and went to the Surrey Tower to pick up the Dodge Caravan there is
no evidence that he went to Suite 1209. On the days when Suite 1209 was
accessed Mr. Wiwchar and [Mr. Ley] were the only persons who accessed
that apartment.

[61]      In the circumstances it is reasonable to infer that
either Mr. Wiwchar himself placed the London Drugs bag in the ottoman or
that he was present in Suite 1209 when [Mr. Ley] placed it there. In
either scenario, it is reasonable to infer that Mr. Wiwchar would then
have become aware of the guns in the ottoman.

[62]      While the fingerprints of [the third party] suggest
that he may have been aware of the contents of the ottoman, unlike Mr. Wiwchar,
he did not access Suite 1209 between March 23 and April 24. Nor, unlike Mr. Wiwchar,
does that evidence give rise to any inference as to when his prints were placed
on the latex glove.

[Emphasis added.]

[25]

The judge concluded:

[63]      Although Mr. Wiwchars
fingerprint may have been innocently placed on the bag, the presence of that
bag is highly probative of his knowledge of the firearms in the ottoman because
it is reasonable to infer that it was placed there between March 28 and April
24, when Mr. Wiwchar and [Mr. Ley] were the exclusive occupants.
While that alone may not be sufficient to conclude beyond a reasonable doubt
that Mr. Wiwchar is guilty of possessing the firearms and ammunition, in
my view, considered with all of the other evidence I am satisfied beyond a
reasonable doubt that Mr. Wiwchar had the requisite control and knowledge
of the firearms and devices in the ottoman to find him guilty of possession as
charged in counts 1 to 5 in the indictment.

Discussion

[26]

The judge inferred that: (1) Mr. Wiwchars fingerprint on the
London Drugs bag found inside the large ottoman was placed there when Mr. Wiwchar
carried the bag into the suite on March 28; and (2) that London Drugs
bag was then placed by Mr. Wiwchar or Mr. Ley in his presence inside
the ottoman on March 28, or thereafter. These were critical findings of
fact that permitted him to conclude that Mr. Wiwchar had the requisite
knowledge of the firearms, ammunition and prohibited devices inside the ottoman.

[27]

Mr. Wiwchar submits the judge: (1) misapprehended the evidence
in finding that on March 28, he carried the London Drugs bag that
contained his fingerprint into the suite; (2) failed to consider other reasonable
inferences including the possibility that Mr. Wiwchar had touched the
London Drugs bag or another London Drugs bag before March 28 and someone
else placed the bag with his fingerprint into the ottoman outside of the
March 28 to April 18 timeframe; and (3) gave insufficient reasons
for finding that, along with the fingerprint evidence, all of the other
evidence established that Mr. Wiwchar knew of the contents of the ottoman.

Misapprehension of evidence

[28]

The test for misapprehension of evidence that could affect the outcome
of a trial is a stringent one. For the Court, Mr. Justice Binnie, in
R.
v. Loher,
2004 SCC 80 described it thus:

[2]
Morrissey
[
R.
v. Morrisey
(1995), 97 C.C.C. (3d) 193 (Ont. C.A.)], it should be
emphasized, describes a stringent standard. The misapprehension of the evidence
must go to the substance rather than to the detail. It must be material rather
than peripheral to the reasoning of the trial judge. Once those hurdles are
surmounted, there is the further hurdle (the test is expressed as conjunctive
rather than disjunctive) that the errors thus identified must play an essential
part not just in the narrative of the judgment but in the reasoning process
resulting in a conviction.

[29]

Relying on
R. v. C. (R.)
(1993), 81 C.C.C. (3d) 417 (Que. C.A.)
at 420, Binnie J. further stated that an appellant will not succeed unless the
misapprehension could have affected the outcome of the trial.

[30]

Similarly, in
R. v. Sinclair,
2011 SCC 40, Mr. Justice
Lebel, for the majority, summarized the test for granting a new trial based on
a misapprehension of evidence as follows:

[53]       for an appellate
court to decide to order a new trial on the basis of a miscarriage of justice
resulting from a misapprehension of the evidence, more is need than an
apparent mistake (e.g. an error that the trial judge
may
have
committed) in the reasons. A court of appeal should not, in applying the
Loher
test, order a new trial unless the trial judge has made a real error; its
decision cannot be speculative. The plain language or the thrust of the reasons
must disclose an actual mistake. When such errors are in fact committed,
appellate courts have no difficulty in explaining why they caused the trial
judges reasoning process to be fatally flawed and where they may be found in
the reasons. In such situations, the errors are readily obvious. [Emphasis in
original.]

[31]

Mr. Wiwchar submits the judges misapprehension of the evidence
comes from his erroneous interpretation of paragraph 22(b) of the Admissions
(reproduced in para. 14 above). The Admission provides that
both
Mr. Wiwchar
and Mr. Ley walked up to the front doors of the Tower carrying multiple
plastic shopping bags from London Drugs and SportChek.

[32]

The judge interpreted the Admission as proving that each of the men was
carrying multiple plastic bags from both SportChek and London Drugs. Mr. Wiwchar
submits that the proper interpretation of the Admission is that together the
men were carrying multiple plastic bags from both SportChek and London Drugs.

[33]

In my view, the judge did not err in his interpretation of paragraph 22(b)
of the Admission. The judges interpretation of the Admission was a reasonable
one that was open to him on the wording of the Admissions and also supported by
the photo stills. However, even if he did err as alleged, the error was not
readily obvious and, in any event, it was inconsequential to his reasoning.

[34]

The bags the men were carrying came from SportChek and London Drugs some
fifteen minutes before they arrived at the Tower. Three 2.8L bottles of bleach
(the large ones) were purchased at London Drugs. There is no evidence that the
men stopped for any other purchases in that 15 minute interval. It is also clear
from the photo stills that the size and shape of the bags from each of those
merchants were different. The bags that were larger in size and shape, and
displayed a discernable black rectangle that included the SportChek logo, were
different from the smaller bags that had no discernible markings. The photo
stills showed Mr. Wiwchar carrying three of the larger SportChek bags and
one of the smaller bags, while Mr. Ley was carrying two of the larger
SportChek bags and two of the smaller bags. The only reasonable inference to be
drawn from that evidence was that the smaller bags were the London Drugs bags
and that each of the three bottles of bleach were in each of the London Drugs
bags.

[35]

However, even if the judge misapprehended the evidence in finding that Mr. Wiwchar
carried a London Drugs bag into the suite, which I do not find, the alleged
error would be immaterial as the evidence overwhelmingly established that the
two men were acting in concert and were in joint possession of the bags at the
time. Mr. Wiwchar and Mr. Ley were the only individuals with
exclusive access to the Suite between March 23 and April 18. There
was only one fob for the Suite. On each occasion they accessed the Suite, they
were together, except on May 2 (outside the relevant timeframe) when Mr. Ley
retrieved the fob from Mr. Wiwchars girlfriend but used it only to access
the Dodge Caravan. Together, Mr. Wiwchar and Mr. Ley purchased the
items at the SportChek and London Drugs stores on March 28. Together, they
came and went from the Suite to the World Gym, in the same vehicle, on six
occasions between March 28 and April 17, apparently searching for a particular
male in the vicinity of the World Gym.

[36]

Whether Mr. Wiwchar carried the London Drugs bag into the suite on
March 28, or Mr. Ley did, is insignificant, as the two were acting in
concert with respect to a joint endeavour involving criminal activities for
which the Suite was being used as a safe-house.

Inferences of fact

[37]

When assessing circumstantial evidence, inferences of fact consistent
with innocence no longer have to be drawn from proven facts. Such inferences
may be drawn from reasonable possibilities arising from the evidence or lack
of evidence that are inconsistent with guilt:
R. v. Villaroman,
2016 SCC
33 at paras. 36 and 37.

[38]

In
Villaroman
, Mr. Justice Cromwell for the Court explained
the test as follows:

[35]       In assessing circumstantial evidence, inferences
consistent with innocence do not have to arise from proven facts:
R. v.
Khela,
2009 SCC 4, [2009] 1 S.C.R. 104, at para. 58; see also
R. v.
Defaveri,
2014 BCCA 370, 361 B.C.A.C. 30, at para. 10;
R. v. Bui,
2014
ONCA 614, 14 C.R. (7
th
) 149, at para. 28. Requiring proven
facts to support explanations other than guilt wrongly puts an obligation on
the 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.

[36]      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 [
R. v. 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 (emphasis added). 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.

[37]      When assessing circumstantial evidence, the trier
of fact should consider other plausible theor[ies] and other reasonable
possibilities which are inconsistent with guilt:
R. v. Comba,
[1938]
O.R. 200 (C.A.), at pp. 205 and 211,
per
Middleton J.A., affd
[1938] S.C.R.;
R. v. Gaigent,
2013 BCCA 28, 335 B.C.A.C. 11, at para. 20;
R. v. Mitchell,
[2008] QCA 394 (AustLII), at para. 35. 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 absence of evidence, not on speculation.

[38]      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 objectively
and in light of human experience, is reasonably capable of supporting an
inference other than that the accused is guilty.

[Emphasis added in original.]

[39]

The critical requirement is that the alternate theory or possibility arising
from the circumstantial evidence or lack of evidence, when viewed objectively,
is a plausible or reasonable inference, other than the accused is guilty.
In my view, the alternate inferences suggested by Mr. Wiwchar, which he
says can be drawn from the circumstantial evidence or lack of evidence, are not
plausible or reasonable when the totality of the evidence is considered.

[40]

Mr. Wiwchar submits the judge erred in failing to consider
alternate inferences from the one he drew, that either Mr. Wiwchar placed
the London Drugs bag containing his fingerprint into the ottoman himself or was
present when Mr. Ley did so after the bags came into the suite on
March 28. Mr. Wiwchar says that it was equally reasonable to infer a scenario
where the bag was placed in the ottoman by Mr. Wiwchar before March 28,
outside of the timeframe for the charges, and that someone other than himself
used the bag to package and store the ammunition in the ottoman.

[41]

This submission fails on several grounds. First, it misconstrues the
judges findings, which must be read as a whole. The judge found that it was
reasonable to infer the London Drugs bag in the ottoman was one of the bags Mr. Wiwchar
brought into the apartment on March 28. Since only Mr. Wiwchar and Mr. Ley
had access to the suite between March 23 and April 24, it was also
reasonable to infer that the London Drugs bag was placed into the ottoman on or
after March 28. In short, the judges reasoning did not depend on finding
that Mr. Wiwchars fingerprint was placed on the bag when it was carried
into the Tower on March 28.

[42]

Moreover, Mr. Wiwchars hypothetical scenarios, that someone else may
have used the London Drugs bag to package the ammunition, was properly rejected
by the judge. The evidence established that no one other than Mr. Wiwchar
and Mr. Ley had access to the suite during the material time. The lack of
evidence in support of these hypothetical scenarios does not provide a basis
for finding them to be a plausible theory or reasonable possibility;
rather, they amount to mere speculation. There was, in my view, no basis upon
which Mr. Wiwchars hypothetical scenarios could reasonably have been inferred.

[43]

In comparison, the judges inference, that Mr. Wiwchar, or Mr. Ley,
in the presence of Mr. Wiwchar, placed the London Drugs bag in the ottoman,
was reasonably grounded in the evidence. Only Mr. Wiwchar and Mr. Ley
had access to the Suite between March 23 and April 18, 2012. The Suite
was a safe-house. The activities of the two men between March 28 and
April 18 clearly established they were acting together on a joint
endeavour. On March 28, both attended at London Drugs where they purchased
items that they immediately transported back to the Tower and carried into the Suite
in London Drugs bags. There was no evidence of Mr. Wiwchar having made
purchases from London Drugs and then accessing the Suite at any other time
between March 28 and April 18. Mr. Wiwchars fingerprint was on
a London Drugs bag inside the ottoman. In these circumstances, the judges
inference that Mr. Wiwchar had knowledge of the contents of the ottoman
was the only reasonable inference to be drawn.

Insufficiency of reasons

[44]

The judge stated that
if
the fingerprint evidence alone was not
sufficient to establish Mr. Wiwchars knowledge of the contents of the
ottoman beyond a reasonable doubt, he was satisfied that based on all of the
other evidence, his requisite knowledge had been established. I am satisfied the
judges interpretation of the Admission was correct for the reasons above.
However, for the sake of completeness, I would respond to this submission as
follows.

[45]

Mr. Wiwchar submits that the trial judge failed to provide
sufficient reasons for this Court to determine how he reached a verdict of
guilty beyond a reasonable doubt, based on the fingerprint evidence and all of
the other evidence. He says it is unclear from paragraph 63 of the judges
reasons (reproduced in para. 25 above), which additional evidence the
judge relied on to tip the scales in favour of a guilty verdict. In short, he
submits the reasons do not explain why the trial judge reached his verdict nor do
they permit a meaningful appellate review.

[46]

I am unable to agree. In
Villaroman,
Cromwell J. underscored that
a trial judges reasons for judgment should not be read or analyzed as if they
were an instruction to a jury. Reasons for judgment must be read as a
whole, in the context of the evidence, the issues and the arguments at trial,
together with an appreciation of the purposes or functions for which they are
delivered.

[47]

The judges reasons are, in my view, sufficient when they are read as a
whole in the context of the evidence and submissions at trial. They explain why
Mr. Wiwchar was convicted. The extensive record, created by the 10-day
trial, permits this Court to discern what all the other evidence refers to
with sufficient certainty, as I have touched upon above, to fulfill its
appellate function. Common sense based on the undisputed facts and the absence
of any conflict in the evidence or the law dictated this verdict. As was noted
by Madam Justice Bennett in
R. v. Tahirsylaj,
2015 BCCA 7:

[41]       the judges finding
of possession is a finding of fact, and the role of this Court is not to
reweigh and reassess the evidence and come to our own independent conclusion.
Rather, our role is to determine whether the conclusion of the trial judge went
beyond the limit of reasonableness defined by the evidence.

[48]

In my view, there was no miscarriage of justice and the verdict was
reasonable based on the record. The judge did not misapprehend the evidence in
his interpretation of the Admission and the inferences he drew flowed logically
from the evidence available to him at trial. Lastly, the judges reasons in my
view adequately explained why he convicted Mr. Wiwchar.

[49]

For these reasons, I would dismiss the appeal.

The
Honourable Madam Justice D. Smith

I AGREE:

The Honourable
Chief Justice Bauman

I AGREE:

The Honourable
Mr. Justice Goepel


