COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. R.J.Y.,

2018 BCCA 30

Date: 20180119

Docket: CA44082

Between:

Regina

Respondent

And

R.J.Y.

Appellant

Restrictions on
publication: Pursuant to s. 486.4(2) of the
Criminal Code of Canada
no information that could identify the complainant may be published, broadcast
or transmitted in any way. This publication ban applies indefinitely unless
otherwise ordered.

Pursuant
to s. 16(4) of the
Sex Offender Information and Registration Act
[
SOIRA
],
no person may disclose any information collected pursuant to an order under the
SOIRA
or the fact that information relating to a person is collected
under the
SOIRA
.

Before:

The Honourable Mr. Justice Frankel

The Honourable Mr. Justice Groberman

The Honourable Madam Justice Garson

On appeal from: An
order of the Supreme Court of British Columbia, dated
July 8, 2016 (
R. v. R.J.Y.
, 2016 BCSC 2529, New Westminster Docket
X077994).

Oral Reasons for Judgment

Counsel for the Appellant:

G. Ng

Counsel for the Respondent:

C. Lusk

Place and Date of Hearing:

Vancouver, British
  Columbia

January 12, 2018

Place and Date of Judgment:

Vancouver, British
  Columbia

January 19, 2018

Summary:

The
appellant appeals his conviction for offences related to the sexual abuse of
his daughter. He argues the trial judge erred in finding the complainant to be
credible. The complainant admitted she had made untruthful statements about
whether vaginal intercourse with her father occurred and whether she told a
friend about it. The complainant also failed to mention in her initial
complaint that her father had recently refused to lend her money. The appellant
submits that the trial judge misapprehended this evidence of deceit, which the
appellant says was fatal to the complainants credibility.

Held: appeal dismissed. The appellant failed to establish a
misapprehension of evidence. The trial judge addressed inconsistencies in the
complainants statements. He accepted her explanation for the erroneous
statements concerning vaginal intercourse. The trial judge also accepted the
complainants statement that she was motivated by her children to report the
abuse, not by the appellants refusal to lend her money. Other witnesses
testified that the complainant disclosed the abuse to them before the loan
request and before her official complaint, which supported the trial judges credibility
assessment.

Introduction

[1]

GARSON J.A.
: On July 8, 2016, a Supreme Court judge
convicted the appellant, RY, of the following offences under the
Criminal
Code
, R.S.C. 1985, c. C-46:

i.        one count of sexual
interference, contrary to s. 151;

ii.        one count of invitation to
sexual touching, contrary to s. 152;

iii.        one count of sexual
exploitation, contrary to s. 153(1)(a);

iv.        one count of sexual
exploitation, contrary to s. 153(1)(b); and

v.        one
count of sexual assault, contrary to s. 271.

[2]

The trial judge stayed the sexual assault count under the
Kienapple
principle.

[3]

The convictions relate to offences in relation to RYs biological
daughter AY. The offences occurred over a roughly 12-year period commencing in
1990. RY was sentenced to nine years in jail. This is the appeal of his
conviction.

[4]

On appeal RY contends that the judge erred in accepting AYs evidence. The
judges decision on RYs guilt turned on the credibility and reliability of
AYs evidence. RY says that the judge misapprehended important evidence in two
key areas. The first concerns what RY describes as AYs manipulation or deceit in
respect to her varying accounts about whether RY penetrated her with his penis.
The second concerns the judges assessment of whether she had a motive to
fabricate her evidence because she was angry at her father for refusing her
request for financial assistance at a time when she was in desperate financial
straits. RY says these two instances of deliberate deceit taint AYs
credibility.

[5]

RY says on account of the trial judges misapprehension of this
evidence, his appeal should be allowed, his conviction overturned, and a new
trial ordered.

[6]

For the reasons that follow I would dismiss the appeal.

The Trial

[7]

RY was convicted by a judge sitting without a jury after a five-day
trial. The Crown called five witnesses  AY, her mother, her two brothers, and
a family friend.

[8]

The central issue at trial was whether AY was a reliable, credible
witness.

[9]

None of the witnesses, apart from AY, could provide direct evidence of
the assaults but their testimony was relevant because it confirmed descriptions
of the nature of AYs relationship with her father; details about where they
lived at times when the assaults occurred; and opportunity to commit the
offences charged. The testimony of AYs mother and brothers was also
inconsistent with the appellants theory that AYs allegations were a recent
fabrication. RY did not testify or call any evidence at the trial.

Overview of Evidence

[10]

AY testified that she and her father had from the time she was a small
child an unusually close relationship. The judge described AYs relationship
with her father in the following way:

[32]      A.Y. testified that
throughout her childhood, she truly believed the accused when he told her that
the incidents of a sexual nature between them were normal behaviour between a
father and a daughter. She testified that she loved and trusted her father and
believed everything he told her in this regard. Indeed, she thought he was an
amazing father. He spoiled her throughout her childhood with gifts, they
confided in each other and were very close. She felt as though she was more of
his companion than his daughter. He treated her much differently than he did
her brothers. He did not discipline her and helped her with homework. He
disciplined her brothers and rarely, if ever, helped them with their homework.
It seemed to A.Y. that the accused did not want much to do with her brothers.

[11]

The
judge described AYs poor relationship with her mother:

[33]      A.Y. testified that she
did not have a good relationship with her mother. She grew up believing the
accuseds suggestions to her that her mother hated her.

[12]

AYs
mother testified that RY treated AY like she was a god and the boys were
nothing.

[13]

AYs
first memory of being sexually assaulted by her father was when she was about
four years old. She recalls being on the front bench seat of the family station
wagon when her father fondled her, digitally penetrated her vagina, and asked her
to kiss his exposed penis. AYs mother confirmed that the family had owned a
station wagon with bench seats as described by AY. Similar assaults occurred
frequently in her bedroom in their Calgary home.

[14]

When she was six years old, AY disclosed the sexual touching to a
relative and then soon after to her mother. An investigation followed. RY was
absent from the house for two weeks, but it seems RY was not charged with any
offence. AYs mother testified about AYs disclosure at this time:

Q.        During the timeframe when you lived in Calgary, did
A ever tell you anything about her father that caused you concern?

A.         When we  we went for
a trip to Newfoundland and then we stopped in Ontario. On the way back and on
the plane coming back she told me that she told her cousin that her dad touches
her and it wasnt a good way and that when she went to school on Monday morning
she wasnt coming home because someone was going to come and talk to her and
take her.

[15]

AY
and her family moved to the lower mainland when she was about seven. AYs
mother regularly worked several evenings a week. AY testified that on evenings
when her mother was at work, RY would first put her brothers to bed after which
he would take her to bed with him. RY told her this was their special time. He
fondled her, digitally penetrated her, and made her kiss his penis.

[16]

AY
also testified to similar assaults that took place in her own bedroom.

[17]

AY
testified about her father becoming very angry when he saw her sitting on a
couch with a male friend. He later forced her to watch pornography on the
computer at his office, telling her that the rough sex depicted in the
pornography is what would happen to her if she got too close to boys.

[18]

The
family moved to Edmonton when she was 12. The sexual abuse continued there, although
rather than it taking place at night, RY abused her when she got home from
school when no one else was home.

[19]

When AY was in Grade 10, her parents separated following an incident
during which AYs mother became very angry at finding AY and RY cuddling
together on the couch under a blanket. After her parents separated, and over
the objections of her mother, AY went to live with RY. RY said he needed her to
take care of him. He told her that her mother and brothers did not want her
around. She believed him. AY and RY lived in various places after the
separation. RY continued to sexually abuse her until she moved into her
boyfriends parents home. The judge described the event that led to her
leaving home:

[30]      In the fall of 2003
when she was 16 years old, A.Y. moved into the home of her then-boyfriends
parents. She testified that the move was precipitated by an incident that occurred
after she had asked the accused for a ride to her boyfriends house so that she
could attend his birthday party. The accused told her that she would have to
provide him with a sexual favour in exchange for a ride. Despite her
protestations of please, not today, he took her arm and pulled her into his
bedroom where he told her to remove her clothes. As she did so, he removed his
own clothing. He then pushed her onto his bed and after asking A.Y. how she and
her boyfriend had sex, he, in A.Y.s words, rammed his penis in my vagina.
She testified that she had never before experienced such pain in that area.
A.Y. managed to push him away and she ran into the bathroom, locked the door
and stayed there despite the accuseds expressions of regret and pleas that
they talk about what had just happened. She stayed in the bathroom until the
accused left the apartment some three to four hours later. A.Y. testified that
this incident was the last time she was sexually abused by the accused. She
moved to her boyfriends parents home that same day.

[20]

AYs
brother NY testified about disclosures to him by AY about RYs sexual abuse.
These disclosures occurred before she reported the abuse to the police in 2012.

[21]

NY
testified that on several occasions beginning in 2007 and early in 2008 and
continuing until 2010, AY described to him their fathers sexual abuse of her.
Specifically, she told him about what would take place when she and RY visited
his office and about the assault that occurred the last night before she moved
out of the home.

[22]

DY,
the other brother, testified that when she was planning her marriage ceremony,
AY asked that he, DY, walk her down the aisle rather than her father. She
explained that RY had touched her and made her watch pornography.

Grounds of Appeal

[23]

The
first ground of appeal concerns what has been termed the E Evidence. RY says
that AY admitted to lying about how she had described the last assault to her
friend E. RY says that the manner in which her untruthfulness emerged ought to
have negatively impacted the judges overall assessment of her credibility.

[24]

The
second ground of appeal concerns AYs failure to disclose to the police her
request for a loan from her father just over a month before she made her
complaint to the police. RY says the judge failed to properly consider this
lack of disclosure in assessing AYs credibility and asserts that it is
relevant to prove she had a motive to lie about her father because she was
angry with him for refusing the loan.

[25]

RY
says AYs evidence was shown to be untruthful in respect to both these points,
as well as several other instances of inconsistency. He says that the judges
favourable view of her credibility is a misapprehension of her evidence given
that she was shown not to be credible.

Discussion

[26]

The judge summarized his conclusion that AY was a credible witness:

[78]       I have no difficulty accepting [AYs] evidence in
its entirety in this [referring to the reason she reported RY to the police]
and all other respects.

[79]      In summary, while A.Y.
was not a perfect witness, I am satisfied she was credible and reliable
and a good historian of the abusive events despite the number of years that
passed since the beginning of the assaults alleged against the accused. Having
viewed carefully and assessed A.Y.s demeanour as a witness and having assessed
her overall credibility, I am left with no reasonable doubt that she was
telling the truth about what the accused did to her on the numerous occasions
she described in her evidence.

[27]

RY
says that the judge was not justified in reaching this conclusion as to AYs
credibility given the demonstrated falsehoods in her evidence.

[28]

I
turn first to the E Evidence. AY gave a statement to the police in which she
said she never had vaginal intercourse with her father. She described the final
incident of abuse to the police in the way the judge described it (set out
above), except that she did not admit to penile penetration. Instead she said
that she was able to push her father away before he entered her. Similarly, in
her will-say statement to Crown counsel, she said that RYs penis had not
entered her fully before she was able to push him away. At the preliminary
inquiry, however, she testified that RY had in fact penetrated her with his
penis in this incident. Then she testified, again at the preliminary inquiry,
that she had earlier told her friend E that her father had vaginal intercourse
with her. At trial, AY admitted she had been untruthful when she told the
police no penetration had taken place. She described how her father did in fact
forcefully penetrate her and she admitted to lying at the preliminary inquiry
about reporting this to her friend E.

[29]

RY
argues that not only is AYs testimony about this event inconsistent but the
manner in which it came to light illustrates that she was deliberately untruthful.
In cross-examination, defence counsel put to AY the circumstances of her
interview with Crown counsel on June 29, 2016:

Q         And then on June 29th the Crown had an
additional interview with you; correct?

A          Yes.

Q         And at that time during that additional
interview the Crown put to you that page of your cross-examination; correct?

A          Yes.

Q         They showed it to you?

A          Yes.

Q         They asked you whether or not it was true;
correct?

A          Yes.

Q         And it was at that time on June 29th, 2016,
that you agreed that the  that it was not true; correct?

A          I told him it was not true, yes.

Q.        Okay. You do not have an explanation for why
you said that in court; correct?

A.         I was terrified
when I gave it. I  honest to God you really intimidated me and I was scared to
talk to you. I didnt even know how to look at you last time.

In a later part of her cross-examination she testified:

Q         Its fair to say that Mr. Stacey was the
one who asked you whether or not it was true that youd ever told [E] about the
penetration; correct?

A          I told him. As soon as I read it and saw
that, I told him. He didnt ask me.

Q         Right. He was the one who directed your
attention to page 47; correct?

A          Yes.

Q         And it was at that time you confirmed to him
that it was not true; correct?

A          Yes. And then I also left his office crying
because I cant believe that I made a mistake. Everyone makes mistakes. Were
human. Im going through 16 years in my life reliving it every single day and
now it being picked apart. I made a mistake and I can own up to that and I
apologize. Ive apologized so much for it, but Im not going to sit here and --
and say that this didnt happen to me.

This
is my life. This is my memories every single day, every night I go to bed. I go
to bed with his face in my head hoping that Im not going to have as bad of a
dream as I did the night before, as bad as the memory of the night before. This
takes a huge toll on a person and for me to be here standing up, having him in
the same room as me is huge. Its huge and Im very proud of myself that Im
here doing this right now and no one can take that away from me. Not one person
in this world can take away the fact that I stood up for myself finally.

[30]

The
judge did not agree that AYs correction of her earlier statements raised a
credibility concern. In response to RYs contention that AY should not be
believed at all, he said:

[72]      I disagree. While a
deliberate lie under oath is a serious matter and can taint a witnesss entire
testimony, this is not a case where the witness was caught in a manipulation or
deceit. I accept A.Y.s explanation that she was terrified at the time of
the preliminary inquiry, was intimidated by Ms. Helps cross-examination and
did not know how to respond. After that evidence was given at the preliminary
inquiry and while she was preparing to give her evidence at trial, she
voluntarily advised Crown Counsel that her evidence at the preliminary inquiry
regarding E. was untrue. She admitted her mistake in circumstances where she could
have easily said nothing without consequence. Having carefully watched A.Y. in
the witness stand throughout her evidence, I reject the submission that
her credibility as a whole is tainted by her earlier evidence regarding E.

[31]

On
appeal RY says that the judge misapprehended the E Evidence when he
characterized AYs admission of untruthfulness as a voluntary disclosure. He
says that this error alone should result in a new trial.

[32]

The
judge was alive to the submissions made about the E Evidence and RYs
characterization of AYs testimony as a lie  one that was fatal to her
credibility. However, he accepted her explanation for the conflict in her
accounts. In my view the judges characterization of AYs testimony was open to
him on the record. The untruthful testimony was not what she told E but rather
what she said at the preliminary inquiry she had told E. This part of the
transcript was drawn to her attention by Crown counsel. She told him it was not
true. RY says this was not a voluntary disclosure. The disclosure was made to Crown
counsel in the course of reviewing the preliminary inquiry transcript in
preparation for trial. In that sense it was voluntary.

[33]

AY
explained her erroneous testimony as being attributable to her fear of
aggressive questioning by defence counsel. The judge accepted that explanation.
He heard several days of her testimony. He was entitled on this evidence to
reach the conclusions he did including that it was voluntary.

[34]

RYs
next argument is that the trial judge erred in finding there was no evidence
that AY had a motive to fabricate her evidence. RY says that the judges
reasons are silent about the important evidence of AYs request to RY for a $5,000
loan which RY refused. RY says his refusal prompted AY to report him to the
police.

[35]

Under
cross-examination AY admitted that on her first complaint to the police, she
did not advise the police about the loan request. She did not do so until the
police confronted her with information they had received from E about the loan
request. RY says this is another instance of how AY was not forthcoming about
important evidence until confronted with the truth. RY also says that the trial
judges failure to address this key piece of evidence favourable to RY is a
significant error.

[36]

In
her cross-examination, AY was asked what motivated her to report to the police.
She testified as follows:

Q         What motivated you here to report this to the
police was anger at your father for not giving you the $5,000; correct?

A          Very wrong. Very wrong. I am here and I went
to the police because I look at my kids and I look at the purity of them and I
cannot imagine the fact of having their parents rob them from what I was
robbed. I was robbed my innocence, my childhood. I dont have any of that. Ive
lived 29 years rebuilding that and I look at my daughter and I cannot imagine,
it makes me sick to my stomach, at the thought of someone touching her the way
my father touched me.

That
is what brought me into the police. The simple fact that my children -- I can
give them a better life than my parents ever gave me. Knowing that I could help
get someone off the street that could hurt my kids, damn right Ill do it for my
children. If I didnt have kids, I would not be here, I can tell you that right
now. My kids are my motivation. They are what put my feet on the ground every
day and know that I can live further and further away from that abuse that Ive
walked away from.

[37]

In
his reasons for judgment, the trial judge responded to RYs assertion that the
refusal to lend money to AY motivated her complaint to the police:

[77]      Ms. Helps submitted that A.Y.s resentment of
her father began to grow after P., the accuseds new wife, entered her life, a
woman with whom A.Y. was in open conflict with. It was suggested to A.Y. during
cross-examination that it was her fathers refusal to give her any money when
she was penniless and had asked for financial assistance at the end of
April or early May 2012, coupled with a growing resentment of him
because of his relationship with P., that was her motivation for going to the
police in June of 2012.

[78]      Although A.Y. openly
admitted being in conflict with P., she denied any suggestion of her going to
the police was motivated by anything other than the determination to have her father
answer for his abuse of her and she provided what can only be described as an
emotional and earnest outpouring regarding her own daughters purity and
innocence and her resolve not to allow what happened to her happen to her
daughter. She candidly said that she would not have reported the abuse to the
police if she had not had children of her own. She admitted that she hates her
father, but that her hatred of him did not begin when he refused her money, but
rather when he forcibly penetrated her in the Surrey apartment. I have no
difficulty accepting her evidence in its entirety in this and all other
respects.

[38]

The
judge was supported in this conclusion by the evidence of AYs mother and two
brothers, who all testified that AY had disclosed to them RYs sexual conduct
towards her well before she reported the abuse to the police.

[39]

RY
says the combination of AYs less than truthful evidence on these two key
points ought to have led the judge to question her credibility about her
account of the entirety of RYs sexual abuse of her.

[40]

The
test for a misapprehension of evidence was described by Justice Stromberg-Stein
in
R. v. Swales,
2014 BCCA 350:

[46]

The
trial judges findings of fact, especially as based on assessments of
credibility, are entitled to deference on appeal. The standard of review is
palpable and overriding error.

[47]

A
misapprehension of evidence may undermine the validity of the verdict and give
rise to a miscarriage of justice under s. 686(1)(a)(iii) of the
Criminal
Code
. As Doherty J.A. stated in
Morrissey
, at p. 221:

[w]here a trial judge is mistaken
as to the substance of material parts of the evidence and those errors play an
essential role in the reasoning process resulting in a conviction then, in my
view, the accuseds conviction is not based exclusively on the evidence and is
not a true verdict.

[48]

The
threshold to be met in demonstrating a misapprehension of evidence warranting
appellate intervention is stringent. The misapprehension must be a question of
substance; must be material to the trial judges reasoning process; and must
play an essential role, not just in the narrative of the judgment, but in the
reasoning process resulting in conviction:
R. v. Lohrer
at para. 2, 2004
SCC 80, [2004] 3 S.C.R. 732. All three elements of the test must be satisfied
to establish a material misapprehension of evidence. The trial judge must be
shown to have erred by actually misapprehending the evidence. As LeBel J.
explained in
R. v. Sinclair
, 2011 SCC 40, [2011] 3 S.C.R. 3 at para. 53,
[t]he plain language or the thrust of the reasons must disclose an actual mistake".

[49]

I
t is not enough for the
appellant to merely suggest a different interpretation of the evidence, or
merely point to some evidence which arguably weighs against the trial judges
finding. Mere differences in interpretation on factual matters are not
misapprehensions but simple disagreement with the judges differing view of the
evidence.

[41]

In
my view RY has failed to establish on appeal that the judge misapprehended the
evidence on either of these points. The judge was entitled to decline to draw
the inference urged on him by RY. The arguments made to us on appeal are mere
differences in interpretation on factual matters, as described in
Swales
.
They are not in any way misapprehensions of evidence. In my view RY is
essentially asking this court to reweigh the evidence that was carefully
considered by the trial judge and to reach a different conclusion about AYs
credibility than the one reached by the trial judge. In my view the trial
judges findings are amply supported by the evidence in relation to both
grounds of appeal.

[42]

I
would not accede to either of the arguments made on appeal. I would dismiss the
appeal.

[43]

FRANKEL
J.A.
: I agree.

[44]

GROBERMAN
J.A.
: I agree.

[45]

FRANKEL J.A.
: The appeal is dismissed.

The
Honourable Madam Justice Garson


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Vidal,

2018 BCCA 21

Date: 20180119

Dockets: CA43503;
CA43735

Docket:
CA43503

Between:

Regina

Respondent

And

Curtis Wayne Vidal

Appellant

and

Docket:
CA43735

Between:

Regina

Respondent

And

Travis Carl
Richard Soderstrom

Appellant

Before:

The Honourable Madam Justice Kirkpatrick

The Honourable Mr. Justice Harris

The Honourable Madam Justice Fenlon

On appeal from:  An
order of the Supreme Court of British Columbia, dated May 26, 2015 (
R. v. Soderstrom
,
2015 BCSC 2574, Chilliwack Docket 62249-2).

Counsel for the Appellant Curtis Wayne Vidal:

W. Jessop

Counsel for the Appellant Travis Carl Richard Soderstrom:

C. Muldoon

Counsel for the Respondent:

J. Dickie

Place and Date of Hearing:

Vancouver, British
  Columbia

November 10, 2017

Place and Date of Judgment:

Vancouver, British
  Columbia

January 19, 2018

Written Reasons by:

The Honourable Madam Justice Fenlon

Concurred in by:

The Honourable Madam Justice Kirkpatrick

The Honourable Mr. Justice Harris

Summary:

The appellants appeal from
convictions arising out of a home invasion. The central issue at trial was
identification of the intruders. The trial judge relied largely on the
eyewitness identification evidence of one of the complainants, supported by
evidence of a post-offence conversation tending to connect Mr. Vidal to
the offences. The appellants allege the trial judge (1) misapprehended the
evidence of the witness who overheard Mr. Vidal discussing the incident,
(2) misapplied the law on recognition evidence, and (3) rendered an
unreasonable verdict unsupported by the evidence. Held: appeals dismissed. The
judge properly applied the law and came to a reasonable verdict supported by
the evidence.

Reasons for Judgment of the Honourable
Madam Justice Fenlon:

Introduction

[1]

The appellants, Travis Carl Richard Soderstrom and Curtis Wayne Vidal,
appeal convictions for breaking and entering, assault, robbery and use of an
imitation firearm while committing a robbery. The convictions were pronounced
May 26, 2015 following a seven-day judge alone trial. The charges arose out of
a home invasion. The principal issue at trial was identification of the
intruders.

Background

[2]

The offences occurred on the night of December 16, 2013, shortly before
9:00 p.m. Two men and a woman entered the second floor apartment of Kyle Nelmes
and Brendan Wilson on McIntosh Drive in downtown Chilliwack, British Columbia. Mr. Wilson
was home at the time with two friends, Nick Gauthier and Brittany Martens. One
of the male intruders who appeared to have a handgun asked for Kyle. Mr. Gauthier
fled the apartment by leaping from the balcony, and ran to a nearby building
where he telephoned 911.

[3]

Shortly thereafter Mr. Nelmes returned home from work and
encountered the intruders. The gunman asked if he was Kyle and when Mr. Nelmes
said he was, the gunman asked where the stuff was. Mr. Nelmes said he did
not know what the gunman was talking about, at which point the gunman struck
him in the face, causing Mr. Nelmes to fall to the floor. Ms. Martens
helped him to his feet.

[4]

Mr. Nelmes was then taken to his bedroom where he was forced to open
a safe in the closet. At some point while this was taking place, Ms. Martens
took a tea towel to Mr. Nelmes in the bedroom so he could wipe the blood
from his face. The gunman, who was at the safe in the closet, turned to look at
her and they had a brief conversation which Ms. Martens described in her
testimony as follows:

Q         What did you do?

A          I gave Kyle the tea towel, and the gunman had
looked at me, and I cant remember, quote, word for word, what he had stated,
but something about me having to keep an eye on him. And my response to that
form of statement he had made to me was, No, I just want to make sure that my
fucking friends are okay.

Q         Sorry, just trying -- what were the words you
said?

A          Im just trying to make sure that my fucking
friends are okay.

THE COURT:  Just a second. I may have -- I may have got
something wrong, the first part of that wrong, because the note I made is he
some -- he said something about you having to keep an eye on him, referring to
Kyle.

A          No. The gunman was looking -- when I had
entered the room, he had turned to look at me, as Im standing there staring at
the two guys in there. He had made a comment about, What, do you have to keep
an eye on me? Some form of statement in that -- in that aspect.

THE COURT: Referring to himself?

A          Mm-hmm.

MR. WALDOCK:

Q         Sorry, thats a yes?

A          Correct. Yes.

Q         At this -- at this time, what, if anything,
could you see of his hands?

A          I couldnt.

Q         What do -- what do you recall next?

A          I had made eye
contact with the gunman, definitely felt a pressing cold feeling take over me.
Kyle had said, Just shut up, stop, get out of here. Like, Leave it alone.
So I left and proceeded back to the kitchen.

[5]

At another point, Ms. Martens told the second male intruder that
she knew him. He responded that he did not know her. At trial Ms. Martens
testified that she recognized the second intruder as Travis Soderstrom because
she had spent some time with him when she was about 13 years old, about 10
years before trial.

[6]

The intruders took $700 to $800 in cash, Mr. Nelmes laptop, his
spare set of keys for his car and motorcycle, a watch, a ring and a cell phone.
They then left the apartment.

[7]

The police responded to the 911 call within about five minutes but the
intruders had already fled. The complainants provided the police with
descriptions of the male intruders and Ms. Martens informed the police
that she believed she recognized one of them and provided Travis Soderstroms
name. Based on this information, the police focused their investigation on Mr. Vidal
and Mr. Soderstrom.

[8]

Within hours, photo lineups were presented to the complainants. Mr. Gauthier
had fled the apartment before being able to see the intruders faces so was
unable to provide any descriptions and was not shown the photo lineups. Ms. Martens
positively identified photographs of Mr. Vidal and Mr. Soderstrom and
later identified them both at trial, specifying that she recognized Mr. Vidal
as the gunman. Mr. Wilson was unable to identify the intruders from the
photo lineup. He testified at trial that he had no memory of what the intruders
looked like as he had been trying to avoid looking at them throughout the
incident. Mr. Nelmes was unable to identify the intruders in the
photographs and he also testified at trial that he did not think either male
intruder was in the courtroom.

[9]

Ms. Koehler, an acquaintance of Mr. Vidal, provided further
circumstantial evidence. She testified that on December 20, 2013, about four
days after the offences occurred, Mr. Vidal drove her and other friends to
a building in the area where the home invasion had taken place. She testified
to overhearing a conversation between Mr. Vidal and a Mr. Schooner
concerning some guy doing a swan dive off the third floor of the building.
She said that when they arrived at the building, Mr. Vidal had a key fob
which he pressed to see if he could hear a vehicle. When they heard nothing, they
drove off.

At trial

[10]

The judge began by correctly instructing himself on the law regarding
eyewitness identification. He reviewed at length the decision in
R. v. Hay
,
2013 SCC 61, with specific reference to the well-recognized frailties of
eyewitness identification. The judge also considered the decision of this Court
in
R. v. Smith
, 2011 BCCA 362, in which Madam Justice Neilson reviewed
the need for caution in considering identification evidence:

[28]      It is well-known it may
be dangerous to convict an accused solely on evidence of visual identification,
and that a fact-finder must thoroughly and cautiously examine such evidence
before relying on it. The principles governing the assessment of such evidence
were set out by the English Court of Appeal in the seminal case of
R. v.
Turnbull
(1976), 63 Cr. App. R. 132, [1976] All. E.R. 549 at 137. The Lord
Chief Justice observed the need for caution is rooted in the fact a witness who
appears convincing may nevertheless be mistaken in his or her identification of
the accused. He listed the circumstances a fact-finder should examine in
assessing such evidence, including the duration and ease of the witness
observation, the extent of any earlier dealings between the witness and the
accused, the time elapsed between the incident and any subsequent
identification of the accused by the witness, and whether there was any
material discrepancy between the description of the assailant given by the witness
and the appearance of the accused. The Chief Justice also acknowledged that recognition
may be more reliable than identification of a stranger, but warned the
fact-finder in such cases must nevertheless be aware that mistakes in
identifying an accused may still occur. The key is the quality of the
identification evidence.

[11]

The judge considered the position of the parties, summarizing the
appellants position as follows:

[87]      Mr. Vidal submits that Ms. Martens
identification is not reliable and is not supported by other credible evidence.
He submits that the evidence of Ms. Koehler does not assist the Crown. He
submits that the photo lineup was unfair and that little weight should be given
to it. He also submits that Ms. Martens evidence is contradicted by the
evidence of Mr. Nelmes and that Mr. Wilson failed to make a positive
identification.

[88]      Mr. Soderstrom submits that Ms. Martens
identification of Mr. Soderstrom is not reliable. He submits that Ms. Martens
attention throughout the incident was focused on the gunman, and that she had
little opportunity to observe the other male intruder and was unable to provide
much of a physical description of him to the police. Mr. Soderstrom argues
that Ms. Martens apparent growing certainty as to the identity of Mr. Soderstrom
ought to be of concern and cause doubt as to her reliability.

[89]      Mr. Soderstrom argues that initially Ms. Martens
thought she recognized the other intruder as one of the Soderstrom brothers
whom she had known, but was uncertain which one. When presented with a photo
pack containing the photograph of Travis Soderstrom but no photograph of the
brother Dillon Soderstrom, she had in her mind that the subject resembled the
Soderstroms and all she had to do was find a Soderstrom amongst the photographs
and her job was done.

[90]      Mr. Soderstrom
also argues that the other photos in the pack lacked the only distinguishing
characteristic that Ms. Martens mentioned to the police, large ears, and
that the photo pack was therefore not fairly representative. Mr. Soderstrom
submits that Ms. Martens eyewitness identification is not sufficient
evidence upon which to found a conviction and there is no corroborating
evidence regarding Mr. Soderstrom.

[12]

The judge concluded the photo packs were fairly prepared and presented.
He then turned to his assessment of the weight to be given to the
identification evidence. The judge found Mr. Wilsons evidence to be neutral
because he did not want to become involved and deliberately looked away from
the intruders, only noticing the gunmans tattoo. As for Mr. Nelmes, the
judge noted he had been struck in the face within a minute of entering the
apartment, was bleeding, had a swollen face, and was in shock. He said:

[103]    At trial, Mr. Nelmes
testified that he did not get a particularly good look at the gunmans face. In
cross-examination, Mr. Nelmes did agree that at the preliminary inquiry he
testified that he got a clear look at the gunmans face. Mr. Nelmes was
unable to make any identification during the photo lineup procedure. By the
time of trial, his inability to identify anyone had grown and he was certain
that the two accused in the prisoners dock were not the two intruders.
However, the trial was 16 months after the incident. This is unlike the
evidence of Ms. Martens who made a positive identification of both
suspects within hours of the incident.

[13]

The judge was evidently impressed by Ms. Martens ability to
identify the intruders:

[104]    Based on her demeanour in the witness box, Ms. Martens
struck me as a woman who is not easily shaken by traumatic events. Rather, she
is able to maintain her composure under stressful situations. My impression is
reinforced by the fact that she was able to go to the aid of Mr. Nelmes by
taking him a cloth for his bleeding face when he was in the bedroom, rather
than remain in the other room away from the male intruders.

[105]    While Ms. Martens
may only have had a couple of minutes or so to observe the gunman, the lighting
was good and she was unimpaired by any drugs or alcohol. In the bedroom
particularly, she had the opportunity to look the gunman directly in the face
when he turned and asked her whether she was keeping an eye on him, to which
she replied that she was making sure her friends were okay.

[14]

The judge addressed inconsistencies and discrepancies in Ms. Martens
evidence:

[110]    There are some aspects of Ms. Martens
testimony where there are inconsistencies or discrepancies. For example, she
testified that Mr. Nelmes owned a champagne-coloured BMW, whereas from the
photograph of it in evidence, it appears white. In her evidence in trial, she
testified that after the incident and before the occupants gave their statements
to the police, there was no discussion among them. In her statement to the
police, at one point she said, Im worried that if they know who I am or
whatever, because everybody is saying like we are talking back and forth to our
friends right now. She maintained her evidence that there was no discussion,
but could not explain that discrepancy.

[111]    There is some uncertainty, as I have indicated, when
the two male intruders went to the bedroom and whether Ms. Martens went to
the bedroom once or twice. However, Ms. Martens is certain that she saw
both of the male intruders in the bedroom at some point.

[112]    Ms. Martens evidence about how the four people
got from where they had eaten dinner to the apartment differs from that of some
of the other witnesses.

[113]    It is my view, however,
that the foregoing differences in evidence and apparent discrepancies are
understandable in the circumstances, are not particularly material, and do not
go to the heart of the reliability of her evidence concerning the identification
of the accused.

[15]

At trial, Mr. Soderstrom emphasized the discrepancy between Ms. Martens
testimony in chief and her prior statements to the police and at the
preliminary inquiry as to how she knew Mr. Soderstrom. He also emphasized
that when she gave her statement to the police she was not certain that he was
the intruder, but was rather 100% certain the intruder was
a
Soderstrom.

[16]

The judge acknowledged the discrepancy in Ms. Martens evidence
over time as to how she had met Mr. Soderstrom. He concluded, however,
that the fact that she undoubtedly knew him was more significant than
how
she knew him. As for Ms. Martens initial uncertainty about whether it was
Travis Soderstrom or his brother in the apartment, he said:

[120]    When Ms. Martens recognized Mr. Soderstrom
in the apartment, she may have been less than certain which Soderstrom brother
it was, because they look very much alike, but she was sure it was one or the
other of them. The evidence concerning Dillon Soderstroms whereabouts at the
time of the offences excludes him as a suspect.

[121]    I am satisfied that the
man Ms. Martens recognized on the night of the offences was Travis
Soderstrom.

[17]

The judge also considered the circumstantial evidence of Ms. Koehler
that tended to connect Mr. Vidal to the offences, concluding:

[125]    While this
circumstantial evidence on its own does not provide a terribly strong basis to
draw an inference connecting Mr. Vidal to the crimes, it is nonetheless
some additional evidence that contributes to the weight of the eyewitness
identification.

[18]

Ultimately, the judge concluded that taken as a whole, the evidence
satisfied him that the Crown had proved beyond a reasonable doubt that Mr. Vidal
was the gunman and Mr. Soderstrom was the other male intruder. The judge specifically
noted that he did not have a reasonable doubt as a result of Mr. Wilsons
inability to identify the intruders and Mr. Nelmes evidence at trial that
he did not believe the accused were the intruders.

On appeal

[19]

Mr. Vidal and Mr. Soderstrom each raise two grounds of appeal
particular to them and one ground of appeal in common. Those grounds can be
stated as follows:

1.       Mr. Vidal
contends the judge erred by misapprehending the evidence of Ms. Koehler,
specifically whether it was Mr. Vidal or Mr. Schooner who commented
on the swan dive;

2.       Mr. Soderstrom
contends the judge misapplied the law on recognition evidence; and

3.       Both
appellants contend the judge erred in assessing the eyewitnesses respective
abilities to identify the intruders, rendering the verdict unreasonable and
unsupported by the evidence.

I will address each ground of appeal in turn.

1.       Did the judge misapprehend Ms. Koehlers evidence?

[20]

Ms. Koehlers testimony provided some circumstantial evidence
corroborating Mr. Vidal as one of the perpetrators. She said that four
days after the robbery, during a car ride, Mr. Vidal and Mr. Schooner
described what seemed to be Mr. Gauthiers swan dive from a building on
McIntosh Drive.

[21]

Mr. Vidal submits that while Ms. Koehler gave evidence that Mr. Vidal
and Mr. Schooner had a conversation concerning someone doing a swan dive
off the third floor of the building, she did not specify that
Mr. Vidal
talked about that event. He contends therefore that the judge erred when he
concluded the conversation amounted to circumstantial evidence against Mr. Vidal.
I would not accede to this ground of appeal.

[22]

Ms. Koehler testified that Mr. Vidal and Mr. Schooner
both
described the swan dive. The full extract of Ms. Koehlers testimony
about the conversation she overheard reads as follows:

Q         Who was in the vehicle?

A          Curtis [Vidal] and Ashley [Mercier] were in
the front seats, and me and Ben [Schooner] were in the back seat.

Q         During that drive, do you recall the
conversation?

A          Yeah, a little bit of it.

Q         Well, what was the conversation?

A          Just about a guy doing a swan dive out of a
building on McIntosh Drive.

Q
Who was talking about this
?

A
Curtis and Ben
.

THE COURT: Just give me a moment. A guy doing a swan
dive?

A          Off the third floor balcony.

THE COURT: Of the third floor of?

A          McIntosh Manor.

MR. WALDOCK:

Q
Who -- who described that
?

A
Curtis and Ben.

Q         Did either of them say who was present?

A          No.

[Emphasis added.]

A joint discussion of this kind is admissible against
its participants even if the witness does not specify precisely who said what:
R.
v. Nornberg
(1994), 41 B.C.A.C. 208.

2.       Did the judge misapply
the law on recognition evidence?

[23]

Mr. Soderstrom contends the judge misapplied the law on recognition
evidence as stated by Justice Laskin in
R. v. Spatola
, [1970] 3 O.R. 74 at
82 (C.A.):

Bare recognition unsupported by
reference to distinguishing marks, and standing alone, is a risky foundation
for conviction even when made by a witness who has seen or met the accused
before. Of course, the extent of their previous acquaintanceship must have a
very important bearing on the cogency of the identification evidence, as will
the circumstances in which the alleged recognition occurred. Where some
distinguishing marks are noticed and later verified, there is a strengthening
of credibility according to the nature of such marks. But the initial issue of
the caution with which identification evidence must be received, particularly
where it is the unsupported evidence of one witness, remains;

[24]

Mr. Soderstrom submits the judge in the present case focused on
resolving the discrepancies in Ms. Martens evidence as to how she knew
him and failed to consider the strength of their association, how long ago that
association had occurred, and Ms. Martens inability to recall specific
details about Mr. Soderstroms appearance.

[25]

Mr. Soderstrom submits further that Ms. Martens was doing
nothing more than identifying a photograph of someone she knew from her past  an
error that could have been avoided if a photo of Mr. Soderstroms brother
Dillon had also been included in the photo pack.

[26]

In my view, the
judge was aware of and considered all of these aspects of Ms. Martens
evidence. First, he expressly referred to Ms. Martens knowing one of the
intruders was a Soderstrom but not being sure if it was Travis or Dillon. The
judge responded to the suggestion that Dillons picture should have been
included by asking counsel whether this would have mattered, because the
brothers faces were remarkably similar. Mr. Soderstrom was before the
judge in person and the judge had a photograph of Dillon Soderstrom. There was
no suggestion at trial that Dillon was the intruder and the evidence of his
whereabouts on the night of the offences excluded him as a suspect.

[27]

Second, the judge referred to Ms. Martens evidence from the
preliminary inquiry that she had known Mr. Soderstrom 10 years ago (at para. 116)
and that she had a brief teen crush on him (at para. 118). Further, Ms. Martens
was never challenged on her evidence that she had seen and recognized Mr. Soderstrom
in the community once or twice and that he had not changed in appearance since
she had known him.

[28]

Finally, I note that prior acquaintance is simply one factor in
assessing the weight to be given to identification evidence. The judge
addressed the prior acquaintance of the appellant and the witness, but also
considered the lighting, Ms. Martens level-headedness, and the fact that
she was not impaired by drugs or alcohol.

[29]

In summary on this ground of appeal, I am of the view that the judge did
not misapply the law on identification evidence.

3.

Did the judge
err in assessing the eyewitnesses identification evidence, rendering the verdict
unreasonable or unsupported by the evidence?

[30]

The appellants both challenge the reasonableness of the verdict on the
basis that the judge failed to give proper effect to Mr. Nelmes evidence
in court that the appellants were not the intruders. Mr. Soderstrom
further challenges the reasonableness of the verdict on the basis that the
judge gave too much weight to Ms. Martens evidence.

[31]

Under s. 686(1)(a)(i) of the
Criminal Code
, this Court may
set aside a verdict on the ground that it is unreasonable or cannot be supported
by the evidence. The test to determine whether a verdict is unreasonable or
unsupported by the evidence is set out in
Corbett v. The Queen
, [1975] 2
S.C.R. 275 and
R. v. Yebes
, [1987] 2 S.C.R. 168, which provides at 186:

The Court must determine on the
whole of the evidence whether the verdict is one that a properly instructed
jury, acting judicially, could reasonably have rendered. While the Court of Appeal
must not merely substitute its view for that of the jury, in order to apply the
test the Court must re
‑
examine
and to some extent reweigh and consider the effect of the evidence.

[32]

I turn first to the assessment of Mr. Nelmes evidence. The judge
squarely addressed Mr. Nelmes inability to identify either of the
appellants in the photo lineup procedure, as well as his certainty at trial
that the two accused in the prisoners dock were not the two intruders (at para. 103).
The appellants challenge the judges finding that Mr. Nelmes evidence was
explained by the fact that he had not clearly seen the intruders faces. They
argue to the contrary that Mr. Nelmes spent the most time with the
suspects and had the best opportunity to view them in close quarters.

[33]

However, Mr. Nelmes testified that he never stood face-to-face with
the intruders and never really looked at either of their faces. In
cross-examination when it was suggested to him that he got a good look at the
gunmans face, Mr. Nelmes replied not particularly. When it was put to
him that he looked at both the intruders, Mr. Nelmes replied that he glanced
at them.

[34]

The judge found that Mr. Nelmes was struck in the face within a
minute or less of entering the apartment, and that the blow knocked him over
and caused his face to swell and bleed around one eye. He found that, as a
result of the blow, Mr. Nelmes was in shock, unable to see well, and under
a lot of stress. He found it understandable in such circumstances that Mr. Nelmes
main concern was complying with the demands of the intruders as quickly and
obediently as possible, so that he would not suffer more serious injuries or
worse, rather than trying to observe and make a mental note of what the
intruders looked like (at paras. 101-102).

[35]

The judge observed Mr. Nelmes testify. His findings of fact were
supported by the evidence and are entitled to appellate deference.

[36]

I turn next to Mr. Soderstroms challenge to the weight the judge
gave to Ms. Martens evidence. He argues she was an unreliable eyewitness
and that her evidence was not sufficient to ground a conviction.

[37]

Mr. Soderstrom points out that Ms. Martens was unable to
testify as to any distinguishing features of the other intruder, describing him
as very tall, lean and having a thinner build  a description so vague
and generic that it could not be relied on to identify him. He further submits
that Ms. Martens only had a brief and limited opportunity to look at the
intruders, given she was in their presence for a total of two minutes.
Moreover, during that time he points out that she agreed she was not focused on
the second intruder.

[38]

Mr. Soderstrom submits that Ms. Martens view of the intruders
amounted to nothing more than a momentary glance. He submits this was an
emotionally charged situation with a brief opportunity to view the intruders  exactly
the set of circumstances the bulk of judicial authority warns triers of fact to
be cognizant of given the inherent frailties of identification evidence
arising from the psychological fact of the unreliability of human observation
and recollection:
R. v. Sutton
, [1970] 2 O.R. 358 at 368 (C.A.).

[39]

In my view, the judges reliance on Ms. Martens evidence did not
result in an unreasonable verdict. He assessed her evidence carefully. After
observing that she was a woman who [was] not easily shaken by traumatic
events and maintained her composure in stressful situations, he rejected the
suggestion that she did not have a good opportunity to look at the gunman,
saying:

[105]    While Ms. Martens
may only have had a couple of minutes or so to observe the gunman, the lighting
was good and she was unimpaired by any drugs or alcohol. In the bedroom
particularly, she had the opportunity to look the gunman directly in the face
when he turned and asked her whether she was keeping an eye on him, to which
she replied that she was making sure her friends were okay.

[40]

The judge stated that Ms. Martens attention was less focused on
the other intruder, but concluded she had sufficient time to observe the other
male in order to recognize him from a past association (at para. 109).
Again, there was evidence to support these findings. Ms. Martens
description of engaging in conversation with the gunman in the bedroom, and directly
looking at him, has been set out earlier in these reasons. When the gunman and
the second intruder first entered the apartment, Ms. Martens said that the
gunman was staring directly at her and she backed away from the door. After
the gunman and Mr. Nelmes went to Mr. Nelmes bedroom, Ms. Martens
remained in the dining area facing toward the kitchen where the second intruder
stood and she spoke directly to him, asking him why he was doing this. The
second intruder responded by denying that he knew her. Ms. Martens
testified that she was looking at the second intruder during this exchange. Mr. Soderstroms
assertion that Ms. Martens had a mere glance of the intruders is not
consistent with the evidence at trial.

[41]

In my view, the appellants have not demonstrated that the trial judge
erred in his reasoning or that his verdict was unsupported by the evidence. His
conclusion that the appellants identification was proven beyond a reasonable
doubt was a verdict that a properly instructed trier of fact, acting
judicially, could reasonably have reached. Accordingly, I would not accede to
this ground of appeal.

[42]

In the result, I would dismiss both appeals from conviction.

The
Honourable Madam Justice Fenlon

I AGREE:

The Honourable
Madam Justice Kirkpatrick

I AGREE:

The Honourable
Mr. Justice Harris