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R. v. Tobin, 2011 NSSC 31 (CanLII)


[8]              The appeal before the Court has been brought under section 813(a)(i) of the Criminal Code.  The powers of a summary conviction appeal court are outlined in section 686(1) of the Criminal Code, which reads:

686(1) Powers

On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal

(a) may allow the appeal where it is of the opinion that

(i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence,

(ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or

(iii) on any ground there was a miscarriage of justice;

(b) may dismiss the appeal where

(i) the court is of the opinion that the appellant, although he was not properly convicted on a count or part of the indictment, was properly convicted on another count or part of the indictment,

(ii) the appeal is not decided in favour of the appellant on any ground mentioned in paragraph (a),

(iii) notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph (a)(ii) the appeal might be decided in favour of the appellant, it is of the opinion the no substantial wrong or miscarriage of justice has occurred; or

(iv) notwithstanding any procedural irregularity at trial, the trial court had a jurisdiction over the class of offence of which the appellant was convicted and the court of appeal is of the opinion that the appellant suffered no prejudice thereby;




[9]              As a preliminary matter, it is helpful for the Court to turn its mind to the appropriate standard of review to be applied in the present matter.  The Court is mindful that the Appellant has raised not only errors of law, but fact, as noted above.  The appropriate standard or review was succinctly set out by the Court of Appeal in R. v. Nickerson, [1999] N.S.J. 210 as follows:

6.   The scope of review of the trial court's findings of fact by the Summary Appeal Court is the same as on appeal against conviction to the Court of Appeal in indictable offences: see sections 822(1) and 686(1)(a) (i) and R. v. Gillis reflex, (1981), 60 C.C.C. (2d) 169 (N.S.C.A.) Per Jones, J.A. at p. 176.  Absent an error of law or a miscarriage of justice, the test to be applied by the summary Conviction Appeal Court is whether the findings of the trial judge are unreasonable or cannot be supported by the evidence.  As stated by the Supreme Court of Canada in R. v. B. (R.H.), 1994 CanLII 127 (S.C.C.), [1994] 1 S.C.R. 656 (S.C.C.) At 657, the appeal court is entitled to review the evidence at trial, re-examine and reweigh it, but only for the purpose of determining whether it is reasonably capable of supporting the trial judge's conclusions.  If it is, the Summary Conviction Appeal Court is not entitled to substitute its view of the evidence for that of the trial judge.  In short, a summary conviction appeal on the record is an appeal; it is neither a simple review to determine whether there was some evidence to support the trial judge's conclusions nor a new trial on the transcript.

[10]         This Court has also found helpful the direction of Cromwell J.A. (as he then was) regarding the scope of appellate review of evidence relied upon in support of a verdict at trial.  In R. v. Barrett, 2004 NSCA 38 (CanLII), 2004 NSCA 38, his Lordship writes:

[14]     This Court may allow an appeal in indictable offences like these if of the opinion that "... the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence.": s. 686(1)(a)(i). In applying this section, the Court is to answer the question of whether the verdict is one that a properly instructed jury (or trial judge), acting judicially, could reasonably have rendered: Corbett v. The Queen, 1973 CanLII 199 (S.C.C.), [1975] 2 S.C.R. 275 at 282; R. v. Yebes, 1987 CanLII 17 (S.C.C.), [1987] 2 S.C.R. 168 at 185; R. v. Biniaris, 2000 SCC 15 (CanLII), [2000] 1 S.C.R. 381 at para. 36.

[15]     The appellate court must recognize and give effect to the advantages which the trier of fact has in assessing and weighing the evidence at trial. Recognizing this appellate disadvantage, the reviewing court must not act as if it were the "thirteenth juror" or give effect to its own feelings of unease about the conviction absent an articulable basis for a finding of unreasonableness. The question is not what the Court of Appeal would have done had it been the trial court, but what a jury or judge, properly directed and acting judicially, could reasonably do: Biniaris at paras. 38 - 40.

[16]     However, the reviewing Court must go beyond merely satisfying itself that there is at least some evidence in the record, however scant, to support a conviction. While not substituting its opinion for that of the trial court, the court of appeal must "... re-examine and to some extent reweigh and consider the effect of the evidence.": Yebes at 186. As Arbour, J. put it in Biniaris at para. 36, this requires the appellate court "... to review, analyse and, within the limits of appellate disadvantage, weigh the evidence..." so as to examine the weight which the evidence could reasonably bear.

Jim O'Neil, LL.B.

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