Keywords: Criminal; theft
Synopsis: The Appellant (Mr. Hordyski), his son, and Ms. Peters (the mother of his son) were shopping at a retail store. At one point Ms. Peters departed the threesome and left a basket containing health and beauty items in Mr. Hordyski’s care. Mr. Hordyski then proceeded to remove the price from a soft-shell lunch bag and transferred the basketed goods into it. Afterwards he picked his son up, concealed the bag between the two of them, and left the area. He then walked near the store’s cashier area, paused, looked around, walked past the cashiers, and left the store. Upon exiting, Mr. Hordyski was confronted by a loss prevention officer and subsequently arrested and charged by police for theft under $5,000 contrary to s. 334(b) of the Criminal Code. At trial, Mr. Hordyski explained he had left the store to find Ms. Peters so she could take their son to use the bathroom. The trial judge rejected material portions of Mr. Hordyski’s testimony and found him guilty as charged. Mr. Hordyski appealed to the Sask. C.A. arguing his trial counsel was incompetent, failed to call corroborating evidence of the dysfunctional nature of his relationship with Ms. Peters, and failed to call evidence confirming he suffered from a debilitating back injury. According to Mr. Hordyski, that evidence would prove he did not possess the necessary criminal intent for the offence. Appeal dismissed.
Importance: Herauf, J.A. writing for a unanimous panel of the Court of Appeal identified that to successfully argue the incompetence of trial counsel the Appellant must satisfy the test in R v B.(G.D.), 2000 SCC 22 at paras. 26-29 and establish 1) the acts or omissions of counsel constituted incompetence and 2) a miscarriage of justice resulted (at para. 8). In this case Mr. Hordyski chose to take the stand in his defence and gave testimony under oath concerning both his relationship with Ms. Peters and the nature of his physical condition. The trial judge accepted Mr. Hordyski’s testimony however, rejected the evidence raised a reasonable doubt concerning his intention to steal the items in question (at paras. 9-10). Herauf, J.A. concluded for the Court:
It is also our view that trial counsel more than adequately cross-examined the Crown witnesses and elicited evidence in the examination-in-chief from Mr. Hordyski relating to his defence: i.e., that he did not have the necessary intent to commit the theft. There was certainly nothing unreasonable about trial counsel’s alleged failure to call corroborating evidence on these issues when the proposed evidence did not relate to material issues but only to facts the trial judge accepted…In the result, we did not find any error in the reasoning of the trial judge and also find that trial counsel did not act unreasonably by deciding not to call corroborating evidence on the issues of his relationship with Ms. Peters and physical condition as the evidence on these matters had already been accepted by the trial judge (at paras. 11-12).
Counsel for Appellant: Stephen Hordyski (Self-Represented)
Counsel for Respondent: Erin Schroh (Public Prosecutions, Regina)