



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Barkho, 2016 ONCA 62

DATE: 20160121

DOCKET: C56592

Weiler, Tulloch and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Hanna Barkho

Appellant

Raymond Boggs, for the appellant

David Friesen, for the respondent

Heard and released orally: January 19, 2016

On appeal from the conviction entered on October 24, 2012
    by Justice Peter Tetley of the Ontario Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

The Crown alleged that the appellant, along with 10 other individuals,
    staged a two vehicle collision in order to fraudulently obtain monetary
    compensation from two insurance companies, Wawanesa Insurance and Axa
    Insurance. The appellant was found guilty on two counts of fraud, two counts of
    conspiracy to commit fraud, one count of obstructing the police, and one count
    of public mischief.

[2]

The appellant was found not guilty on one count of obstructing justice
    and the trial judge stayed the conviction for obstructing police pursuant to
    the
Kienapple
principle.

[3]

The appellant appeals his convictions. He asks that this Court quash his
    convictions and enter an acquittal or a judicial stay based on the lack of
    trial within a reasonable time. In the alternative, the appellant requests a
    new trial.

Issue 1: Did the Trial Judge Render an Incorrect Verdict on the Appellants
    s. 11(b) application?

[4]

During the trial, the appellant brought an application asking that the
    charges be stayed on the basis of unconstitutional delay contrary to s. 11(b)
    of the
Charter
. The application was dismissed.

[5]

The trial judge noted that the appellants co-accused had waived the
    delay but that should not impact the appellants rights.

[6]

The trial judge recognized that an institutional delay of approximately
    11 and half months had occurred in this case. Overall, the trial judge stated
    that the delay at issue was between 13 to 14 months, a delay which fell outside
    the
Morin
guidelines.

[7]

The trial judge also recognized that the primary cause for the delay was
    the lack of resources on the part of the Crown to try the case. He found,
    however, that the delay was justified and the application was dismissed
    because: (a) the case was a particularly complicated one, initially involving
    11 defendants; (b) of the societal interest in the adjudication of the case on
    its merits; and (c) the delay did not result in any serious prejudice to the appellant.

[8]

The appellant challenges the trial judges finding that there was no
    serious prejudice to him. He submits that he suffered prejudice from the delay
    because his memory was weaker than it would have been had the matter come to
    trial in the normal course.

[9]

The appellant acknowledges that there were events that he did not recall
    shortly after the incident in question. He also acknowledges that his memory
    was refreshed by statements made shortly after the accident.

[10]

The
    appellant has not shown any palpable and overriding error in the trial judges
    assessment of prejudice.

[11]

The
    appellant also challenges the finding that the trial was complicated. He
    submits that the precharge delay of a year allowed the Crown to marshall its
    case. The case should have proceeded more expeditiously notwithstanding that 11
    people were initially charged. At the first trial date, the charges were
    withdrawn against all of the accused except against Ms. Yearwood, the driver of
    the other vehicle who pled guilty, and the appellant. The appellant submits
    that, as a result, the Crown cannot rely on the delay from the number of people
    involved and the complexity of the case.

[12]

We
    agree with the trial judge that while the delay exceeded the guidelines
    slightly, the case was complicated. The time the Crown required to decide
    against whom to proceed was part of a justifiable processing delay and was
    properly characterized by the trial judge. We have no basis to interfere with
    the trial judges decision.

Issue 2: Did the Trial Judge err by Failing to Reconcile the Discrepancies
    Between the Testimony of Various Crown Witnesses?

[13]

Mr.
    Jenkins, an expert witness accident reconstructionist called by the Crown,
    stated that the damage to the appellants vehicle occurred when it was hit from
    behind while being elevated by a tow truck on the shoulder of the highway.
    However, Ms. Yearwood gave a statement to her insurance company in which she
    claimed that the accident occurred in the middle of the highway.

[14]

The trial judge accepted Mr. Jenkins report and testimony,
    most of the evidence of Ms. Yearwood, the evidence of Mr. Quinn, an
    investigator with the Insurance Bureau of Canada who identified a number of
    hallmarks of staged collisions, and the evidence of Cst. Kazmi who testified
    regarding what he witnessed that night which caused him to suspect that the
    collision had been staged. The trial judge rejected Ms. Yearwoods evidence that
    the vehicle driven by the appellant had not been raised as that had been
    contradicted by other Crown witnesses. The trial judge concluded that the
    evidence of the appellant was unreliable and lacking in credibility. The trial
    judge rejected the evidence or the eyewitnesses who supported the appellants
    version of events.

[15]

The
    appellant submits that the trial judge ought to have accepted the evidence of
    the eyewitnesses who claimed that the collision occurred in the middle of the
    highway. He also submits that the trial judge erred in rejecting the evidence
    of Ms. Yearwood that the car was never elevated.

[16]

The
    investigating officers observed rust particles on the side of the road and the
    trial judge heard evidence as to what that meant. There was no indicia of
    contact between two cars in the middle of the road.

[17]

The
    trial judges reasons indicate he was aware of the alleged inconsistencies pointed
    out by the appellant. The trial judge was entitled to accept some, all or none
    of the eyewitness evidence in assessing credibility. Information from the black
    box of the car showed that the initial collision was at 15 km/h and the air
    bags did not deploy. The trial judge was entitled to rely on the expert
    evidence and to reject the evidence of the eyewitnesses including the part of
    Ms. Yearwoods evidence that the car had not been elevated. His reasons do not
    disclose any palpable and overriding error in his findings of fact. Accordingly
    this ground of appeal is also dismissed.

[18]

A
    related ground of appeal in the appellants factum is that the trial judge
    erred by not stating that a
Vetrovec
warning was required with respect
    to Ms. Yearwoods evidence because she had a criminal record for crimes of
    dishonesty. The trial judge addressed the fact Ms. Yearwood had been a
    co-conspirator in his reasons. The judge is not required to give himself a
Vetrovec
caution in a judge only trial because judges are presumed to know the
    law.

The Other Grounds of Appeal

[19]

With
    respect to the public mischief charge, the trial judge thoroughly canvassed the
    issue and we see no error in his analysis.

[20]

With
    respect to the
Kienapple
ground raised, the two fraud charges related
    to conduct against different victims and the conspiracy to commit fraud related
    to two different delicts. Thus there was no error in refusing to stay any of
    the offences of which the appellant was found guilty.

Disposition

[21]

The
    appeal is dismissed.

Karen M. Weiler J.A.

M. Tulloch J.A.

David Brown J.A.


