Case: R. v. Robinson, 2017 BCCA 6 (CanLII)

Keywords: Rule in Hodge’s Case, Circumstantial Evidence


The appellant, Mr. Robinson, is one of four RCMP officers involved in an encounter at Vancouver International Airport which results in the death of Mr. Robert Dziekanski, a visitor to Canada from Poland.

From an agreed statement of facts, the circumstances of Mr. Dziekanski’s interaction with RCMP are, briefly, as follows:

  • at approximately 1:28AM, Airport staff contact local RCMP in regard to Mr. Dziekanski’s erratic and aggressive behaviour;
  • following their arrival at the scene, Mr. Dziekanski and four officers (including Mr. Robinson) engage in a struggle;
  • during the course of struggle RCMP deploy a conducted energy weapon, or “Taser”;
  • Dziekanski falls to the ground;
  • the officers then Taser him four additional times and handcuff him while he is on the ground
  • Dziekanski is pronounced dead at the scene at 2:10AM.

Following the incident, the officers involved make similar statements to investigators. Although no charges are laid directly in connection with the Tasering of Mr. Dziekanski or in connection with his death, both the appellant and his fellow officers are prosecuted following the Braidwood Inquiry made under the Public Inquiry Act, S.B.C. 2007, c. 9. Statements made by Mr. Robinson under oath are alleged to be demonstrably false when compared to a bystander’s video recording.

Mr. Robinson is convicted of perjury relating to his testimony – that he made false statements, knowing these statements were false and with the intent to mislead the Braidwood Inquiry in a number of areas.

The appellant states the case against him is based “entirely” on circumstantial evidence. (See para. 21; for a list of the specific evidence, see R. v. Robinson, 2015 BCSC 433 (CanLII) at para. 33). On appeal, it is argued:

  • the verdict is unreasonable;
  • his guilt was not the only reasonable inference available on the evidence (for example, the defence asserts Mr. Robinson could simply have been innocently mistaken in his testimony); and
  • the Trial Judge misapprehended evidence.

The Court of Appeal (Willcock J.A. dissenting) dismisses Mr. Robinson’s appeal, concluding the Trial Judge’s findings were not unreasonable, that alternative inferences were not reasonable on the evidence, and that the Trial Judge did not misapprehend the evidence at trial. Willcock J.A. finds misapprehension of the evidence going “to the core” of the Trial Judge’s finding perjury was proven beyond a reasonable doubt.


Appellate Framework

Citing R. v. Morrissey (1995) 1995 CanLII 3498 (ON CA) and R. v. R.P., 2012 SCC 22 (CanLII), the Court of Appeal confirmed criminal verdicts will be found to be unreasonable (within the meaning of s. 686(1)(a)(i) of the Code) where:

  • it is not one a properly instructed jury or judge could reasonably have rendered on the basis of the evidence adduced at trial;
  • where the Trial Judge draws an inference/makes a finding of fact essential to the verdict which is plainly contradicted by evidence relied upon by the judge in support of the inference/finding; or
  • where the inference/finding is shown to be incompatible with evidence that has not been contradicted or rejected by the Trial Judge.

The question of whether or not a verdict is unreasonable is a question of law. (See para. 20).

Hodge’s Case

The Rule in Hodge’s Case provides that, where the case against a criminal accused is based entirely upon circumstantial evidence, the accused can be found guilty only if:

  • the evidence is both consistent with guilt; and
  • inconsistent with any other rational conclusion. (see, for example, Mezzo v. The Queen, 1986 CanLII 16 (SCC)).

The Court of Appeal noted that, following R. v. Cooper 1977 CanLII 11 (SCC) and more recently in R. v. Vokurka 2013 NLCA 51 (CanLII), aff’d 2014 SCC 22 (CanLII), the rule has been restricted/relaxed by Canadian courts such that it applies to the actus reus of an offence only and not to the element of intent. (See para. 24).

With respect to the practical impact of the rule, the majority acknowledged “…some fuller explanation of the rule in Hodge’s Case is…called for in light of the appellant’s argument’s on the appeal” and that ongoing difficulties remain in applying the rule to situations where the proof of at least one essential element rests solely on circumstantial evidence. (See para. 25).

Following an extensive review and discussion of both the rule in Hodge’s Case and its development in Canadian jurisprudence (see paras. 20-37) the majority summarized the applicable framework and provided a set of guiding principles as follows (see para. 38):

  • the Court’s task is to determine whether the trier of fact, acting judicially, could reasonably be satisfied that the accused’s guilt was the only reasonable inference available on the totality of the evidence (see v. Villaroman 2016 SCC 33 (CanLII) at para. 55);
  • the description of the Court’s task does not constitute a different standard of review for circumstantial cases but does provide an alternate formulation to assess such cases;
  • in circumstantial cases, an appellate court may not interfere if the verdict is one that a properly instructed jury could reasonably have rendered (see v. Yebes, 1987 CanLII 17 (SCC), at 186);
  • it is generally the task of the finder of fact to draw the line between reasonable doubt and speculation (see v. Villaroman 2016 SCC 33 (CanLII), at para. 71.);
  • it is not open to Courts of Appeal to conceive of inferences or explanations that are not reasonable possibilities or attempt to revive evidence/inferences the Trial Judge reasonably rejected (see v. Grover, [2007] 3 SCR 510, 2007 SCC 51 (CanLII), at para. 2); and
  • for an appellant to succeed, an inference other than guilt must be “reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense” (see v. Villaroman 2016 SCC 33 (CanLII), at para. 36).

Mr. Robinson submitted that alternative reasonable inferences (other than that the appellant was guilty) were available on the evidence – it was argued, for example, that Mr. Robinson had “…innocently ‘sort of blended’ the sequence of events in his memory…” and that similarity in the officers’ testimony was mere coincidence rather than evidence of collusion. (See para. 42).

For a majority of the Court of Appeal, however, this submission amounted to an invitation for the Court to “…interfere with the trial judge’s findings of fact (including credibility) or to make our own” and they refused to do so. (See para. 41).

The fact other judges may have drawn different inferences was not, in the majority’s view, sufficient justification for overturning the Trial Judge’s findings. Simply put, the Court of Appeal found that a Trial Judge is entitled to determine whether an appellant’s alternative explanations were or were not persuasive.

In this case, the Trial Judge simply did not believe an officer of Mr. Robinson’s experience could make “…such a crucial mistake” in his recollection of events and found it “inconceivable that four trained officers would have made the same mistake at the same time by pure co-incidence”. (See paras. 14 & 46 citing paras. 50-52 & 65 from R. v. Robinson, 2015 BCSC 433 (CanLII)).

For a majority of the Court of Appeal, the conclusion these explanations were not sufficiently reasonable was “…one that a properly instructed finder of fact, acting judicially, could have reached.” (See para. 42). As such, it declined to interfere.

Counsel for the Appellant: David Crossin, Q.C. and Elizabeth France (Sugden, McFee & Roos LLP, Vancouver)

Counsel for the Respondent: Richard Peck, Q.C. and Tony Paisana (Peck and Company, Vancouver)

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