Court of Appeal Decision of the Week

Law v. Mixed Fact and Law; Crown’s Right to Appeal from an Acquittal

Case: R v Bentley, 2015 BCCA 251

Keywords: Question of law v. mixed fact and law, perjury, collusion, circumstantial evidence

Synopsis: Constable Bill Bentley was the junior of four Royal Canadian Mounted Police officers involved in the October 14, 2007 encounter with Robert Dziekanski at the Vancouver International Airport. Mr. Dziekanski died shortly after the police deployed a conducted energy weapon (or “Taser”) to subdue him. The Crown appealed from the acquittal of Cst. Bentley on one count of perjury, contrary to ss. 131 and 132 of the Criminal Code. The central issue under appeal was whether the Crown had identified a question of law alone (appealable) or a mixed question of law and fact (non-appealable) in accordance with section 676(1)(a) of the Criminal Code.

The charge of perjury arose from testimony Cst. Bentley gave under oath in 2009 at the Braidwood Inquiry. The Crown’s case at trial was based entirely on circumstantial evidence – Cst. Bentley did not testify. On appeal, the Crown asserted errors of law alone on the basis the judge erred in: (i) failing to properly instruct himself on the legal principles applicable to considering evidence of collusion; (ii) failing to consider all the evidence relevant to the issue of collusion; (iii) misapprehending the evidence relating to collusion; and (iv) correctly assessing the elements of perjury in one of the particulars.

The B.C. Court of Appeal dismissed the appeal on the grounds the conclusions of the trial judge were findings made in the exercise of his fact-finding function and were based on his thorough review of the evidence and not tainted by legal error. As such, the Crown’s appeal was not based on a question of law alone, and therefore exceeded the scope of appellate review.

Importance: The Court of Appeal reviewed the law relating to the four scenarios in which a trial judge’s assessment of the evidence may give rise to an error of law alone for the purpose of an appeal from an acquittal (R v JMH, 2011 SCC 45 at paras 24-32):

(1) It is an error of law to make a finding of fact for which there is no evidence – however, a conclusion that the trier of fact has a reasonable doubt is not a finding of fact for the purposes of this rule;

(2) The legal effect of findings of fact or of undisputed facts raises a question of law;

(3) An assessment of the evidence based on a wrong legal principle is an error of law;

(4) The trial judge’s failure to consider all of the evidence in relation to the ultimate issue of guilt or innocence is an error of law.

Further, the error must also be material to the verdict – in order to set aside an acquittal there must be a reasonable degree of certainty that the verdict would not necessarily have been the same had the error(s) not been made: R v Morin, [1988] 2 SCR 345 at 374.

The Court of Appeal held the legal issue of threshold admissibility (regarding the inconsistent statements made by the accused) was quite different from and not relevant to the judge’s ultimate finding that the Crown failed to establish the collusion on which its case depended. According to the Court of Appeal, this is a matter of assessing and weighing the evidence already admitted – it is a factual exercise. As such, in deciding whether the officers’ notes and statements in question were the product of collusion, the judge was performing his function as the trier of fact.

In relation to the Crown’s assertions that the trial judge failed to consider all the evidence, misapprehended the evidence, and failed to correctly assess the elements in one of the particulars, the Court of Appeal held that the Crown again failed to identify a question of law alone. Rather, it complained in various ways about the judge’s weighing of the evidence and his finding that it did not prove the averments alleged – a task that falls squarely within the trial judge’s role as the trier of fact. Ultimately, the Court of Appeal found it was not within its purview to reweigh or reinterpret the evidence. It unanimously dismissed the appeal.

Interestingly, the other three officers involved in the Taser incident were also charged (separately) with perjury and received mixed verdicts. Cst. Gerry Rundel was also acquitted while Cst. Kwesi Millington and former corporal Monty Robinson were both convicted. Cst. Millington is scheduled to be sentenced later this month and his lawyers have informed the judge they plan to appeal the conviction once sentencing is handed down.

Counsel for the Respondent: Peter Wilson (Wilson Butcher Barristers, Vancouver)

Counsel for the Appellant: Scott Fenton (Crown Prosecutor’s Office, Vancouver) and Tony Paisana (Peck and Company, Vancouver)

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(Thanks to our summer student Neil Kennedy for his assistance in preparing this summary.)

Posted: Wednesday, June 10, 2015