SUPREME
COURT OF CANADA
Between:
Robert Allen Devine
Appellant
and
Her Majesty The Queen
Respondent
Coram:
Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.
Reasons
for Judgment:
(paras.
1 to 32)
|
Charron
J. (Binnie, LeBel, Deschamps, Fish, Abella and Rothstein JJ. concurring)
|
______________________________
R. v. Devine, [2008] 2 S.C.R. 283, 2008 SCC 36
Robert Allen Devine Appellant
v.
Her Majesty The Queen Respondent
Indexed as: R. v. Devine
Neutral citation: 2008 SCC 36.
File No.: 31983.
2008: February 26; 2008: June 19.
Present: Binnie, LeBel, Deschamps, Fish,
Abella, Charron and Rothstein JJ.
on appeal from the court of appeal for
alberta
Criminal law — Evidence
— Admissibility — Hearsay — Principled exception to hearsay rule — Witness
at trial recanting earlier out‑of‑court statement identifying
accused — Trial judge admitting out‑of‑court
statement under principled exception to hearsay rule — Whether
statement should have been admitted.
The accused was alleged to
have assaulted the complainant in two separate incidents. Both the complainant
and his companion, P, who witnessed the first incident, refused to give a
statement to the police after the first assault. Following the second assault,
however, they each gave a statement identifying the accused as the assailant.
Before P’s statement was videotaped and recorded, a police officer explained the
seriousness of making the statement, the possible consequences of giving a
false statement, and administered a form of oath. At trial, both the
complainant and P recanted their identification of the accused. P also
testified that the identification in her statement was based on information
obtained from others. The Crown sought leave to introduce P’s police
statement for the truth of its contents under the principled exception to the
hearsay rule. The trial judge found that P’s identification contained in the
statement was not itself hearsay as contended by the defence. He concluded
that the identification was based on P’s own observations, and that, in testifying
to the contrary, she was trying to avoid identifying the accused at trial. He
admitted the out‑of‑court statement under the principled approach
to hearsay and convicted the accused of assault causing bodily harm and robbery
with respect to the first incident. A majority of the Court of Appeal upheld
the decision to admit the statement and rejected the contention that the
verdict was unreasonable. The dissenting judge would have ruled the statement
inadmissible on the basis that P’s identification was itself hearsay. He
also found the verdict to be unreasonable.
Held: The appeal should be dismissed. The
statement was admissible and the verdict was not unreasonable.
There is no reason to
interfere with the trial judge’s finding that P’s identification of the accused in her
out‑of‑court statement was based on her own observations. Since P’s identification
of the accused is not itself hearsay, the statement may be admitted under the
principled approach if the twin criteria of necessity and reliability are met.
Here, it is conceded that the necessity criterion is made out. Where a witness
recants an earlier statement, necessity is based on the unavailability of the
testimony, not the witness. The reliability criterion is also satisfied
because there is a sufficient basis for assessing the truth and accuracy of P’s statement. In
taking P’s statement, the police followed the guidelines set out in R. v. B.
(K.G.), [1993] 1 S.C.R. 740, which brought the statement to a comparable
standard of reliability as her in‑court testimony. Furthermore, although
P recanted her identification of the accused at trial, there was a meaningful
opportunity to test her evidence through cross‑examination. P testified
under oath that at the time she gave her statement, she was aware of the
seriousness of the statement and told the truth to the best of her ability.
The trial judge was able to assess her demeanour, and gave a detailed account
of her evasiveness and reluctance to identify the accused in the courtroom.
There is no reason to disturb his finding that she was trying to distance
herself on the witness stand from any identification of the accused. [14-16]
[20] [28]
Finally, the verdict rendered
was not unreasonable as P’s identification evidence was capable of supporting
the trial judge’s finding that the accused was the assailant. [31]
Cases Cited
Applied: R. v. B. (K.G.), [1993] 1 S.C.R.
740; R. v. Khelawon, [2006] 2 S.C.R. 787, 2006 SCC 57; referred to:
R. v. Couture, [2007] 2 S.C.R. 517, 2007 SCC 28; R. v. Hawkins,
[1996] 3 S.C.R. 1043; R. v. U. (F.J.), [1995] 3 S.C.R. 764; R. v.
Post (2007), 217 C.C.C. (3d) 225, 2007 BCCA 123; R. v. N. (T.G.)
(2007), 216 C.C.C. (3d) 329, 2007 BCCA 2; R. v. Biniaris, [2000] 1
S.C.R. 381, 2000 SCC 15; R. v. Yebes, [1987] 2 S.C.R. 168.
APPEAL from a judgment of the
Alberta Court of Appeal (Conrad, McFadyen and Berger JJ.A.) (2007), 404 A.R. 81, 394 W.A.C.
81, 218 C.C.C. (3d) 497, 46 C.R. (6th) 371, [2007] A.J. No. 277 (QL),
2007 CarswellAlta 323, 2007 ABCA 49, affirming the accused’s conviction of
robbery and assault causing bodily harm entered by Norheim Prov. Ct. J., [2005]
A.J. No. 1031 (QL), 2005 CarswellAlta 1146, 2005 ABPC 162. Appeal dismissed.
Steven J.
Fix and Nicole R.
Sissons, for the appellant.
James A.
Bowron, for the
respondent.
The judgment of the Court was delivered by
[1]
Charron J. — The appellant, Robert Allen Devine, was convicted at trial of
robbery and assault causing bodily harm in respect of an incident which
occurred on November 19, 2004. He was acquitted of a second assault on the
same complainant, alleged to have occurred on February 2, 2005. On appeal, his
convictions were affirmed by Conrad and McFadyen JJ.A. of the Alberta Court of
Appeal. Berger J.A., writing in dissent, would have quashed the convictions
and substituted a verdict of not guilty on both counts. Mr. Devine
appeals to this Court as of right. For the reasons that follow, I would
dismiss the appeal.
1. The Proceedings Below
[2] At
trial, no issue was taken that the complainant, Robert Schroeder, was robbed
and severely beaten in November of 2004. He was again assaulted in February of
2005. The sole issue was the identification of the accused as the assailant.
Both the complainant and his companion Cindy Pawliw, who witnessed the first
incident, refused to give a statement to the police immediately following the
November assault. Following the second assault, however, they each gave a
statement to the police identifying Mr. Devine as the assailant. At
trial, both witnesses testified but recanted their identification of Mr.
Devine. Among other things, Ms. Pawliw testified that she had used Mr.
Devine’s name in her statement because “someone, she could not remember who,
had suggested it was he” ([2005] A.J. No. 1031 (QL), 2005 ABPC 162, at para.
7).
[3] The
Crown sought leave to introduce Ms. Pawliw’s police statement for the truth of
its contents under the principled exception to the hearsay rule, citing this
Court’s decision in R. v. B. (K.G.), [1993] 1 S.C.R. 740 (“K.G.B.”).
The officer who took Ms. Pawliw’s statement followed the guidelines set out in
that case. Mr. Schroeder also gave a warned statement but it was not
videotaped. The Crown did not seek to introduce Mr. Schroeder’s statement
and the trial judge did not consider it in arriving at his verdict.
[4] The
trial judge rejected the argument that Ms. Pawliw’s identification of the
accused in the statement was itself hearsay and therefore inadmissible under
the principled approach. He concluded that it was “extremely unlikely” that
the identification was based on what others had told her:
When she was asked on the stand about her identification of the accused
in her statement she responded that “I was not asked if I knew who it was
myself, personally, and no one asked me either. I just assimilated or
whatever, assumed that it was him because somebody had told me that it was
him.” I note that without coaching as to the description of the parties who
entered the hotel room, she gave a very detailed description of the assailant,
right down to the clothes that he was wearing. This description matches the
physical appearance of the accused. Within the context of this small town and
the manner in which the statement was taken, I conclude that it is extremely
unlikely that she would have given the description that she did, in the manner
that she did in her statement, without qualifying the identification, if she
could not identify the assailant. I conclude that she has given this
explanation on the stand as a device to avoid identification of the accused
from the witness stand. [para. 33]
[5] The
trial judge determined that Ms. Pawliw’s statement was admissible under the
principled approach to hearsay. The necessity requirement was met because
Ms. Pawliw was unable or unwilling to identify the assailant at trial.
With respect to threshold reliability, the trial judge noted that the statement
was videotaped and recorded. Before Ms. Pawliw gave her statement, a police
officer explained the seriousness of making the statement, the possible
consequences of giving a false statement, and administered a form of oath. These
factors, among others, satisfied the trial judge that the statement was
sufficiently reliable to be admitted.
[6]
The trial judge convicted Mr. Devine of assault causing bodily
harm and robbery with respect to the November incident. The trial judge relied
mainly on the strength of Ms. Pawliw’s identification evidence. He also found
that Mr. Schroeder’s testimony supported the description in Ms. Pawliw’s
statement of the manner in which the robbery and assault took place. However,
the trial judge could not be satisfied beyond a reasonable doubt that the
assailant in February was the accused. Ms. Pawliw had not witnessed the
February incident and her K.G.B. statement provided no first-hand
evidence of those allegations. Accordingly, the trial judge acquitted Mr.
Devine of the charge in relation to the February incident.
[7] Mr.
Devine appealed on two grounds. First, he argued that the trial judge erred in
admitting Ms. Pawliw’s K.G.B. statement in evidence. He conceded that
the necessity requirement was met by reason of Ms. Pawliw’s recantation.
However, he submitted that the statement was not reliable and thus inadmissible
for the truth of its contents. In particular, he argued that the significant
time lapse between the first assault and the statement and the witness’s
admitted drug use diminished the threshold reliability of her statement. Mr.
Devine further argued that the trial judge erred in law by failing to weigh the
probative value of the K.G.B. statement against its prejudicial effect
if admitted.
[8] A
majority of the Court of Appeal rejected this ground of appeal, and held that
the trial judge was correct to admit the statement. The majority concluded as
follows:
The trial judge correctly stated the law with respect to the admissibility
of KGB statements. In a careful, well reasoned judgment, he considered all the
relevant factors and concluded that the statement was admissible. He did not
misapprehend the evidence and applied the principles established in R. v.
K.G.B., [1993] 1 S.C.R. 740 . . . . While he did not specifically refer to
the balancing of probative value against the prejudicial effect of admission,
it is not clear that the matter was a live issue at trial and, in any event,
the KGB statement was key evidence identifying the accused. Nothing in the
statement suggested any undue prejudice.
((2007), 404 A.R. 81, 2007 ABCA 49, at para. 13)
[9] Berger
J.A., in dissent, was of the view that the principles enunciated in K.G.B. did
not apply in this case because Ms. Pawliw’s purported identification of the
accused in her police statement was “information obtained from others — others
who were not before the court and whose trustworthiness was incapable of
assessment” (para. 31).
[10]
As a second and alternative ground of appeal, Mr. Devine argued that
the verdict was unreasonable. He submitted that the trial judge failed to
properly consider the ultimate reliability of the K.G.B. statement once
it was admitted, citing the witness’s admitted drug use, her character, the
delay, lack of corroboration, and inconsistencies between the complainants’
testimony at trial and her K.G.B. statement as factors which tended to
diminish the statement’s ultimate reliability.
[11]
The majority rejected this ground of appeal as well. While there were
reasons to be concerned about the identification evidence, the trial judge
considered the relevant factors, properly assessed the evidence and, as the
finder of fact, concluded that the evidence satisfied him beyond a reasonable
doubt of the guilt of the accused. As such, there was no basis upon which to
interfere with the verdict.
[12]
Berger J.A. disagreed, concluding as follows (at para. 35):
The KGB statement should have been excluded. If
properly admitted, it should not have been relied upon. The trial judge made
clear that the witness’s KGB statement was essential if a conviction were to be
recorded. Without the benefit of that statement, the verdict rendered is one
that a properly instructed jury, acting judicially, could not have reasonably
pronounced. The verdict is unreasonable and not supported by the evidence. No
jury acting reasonably could fail to have a doubt: R. v. Corbett,
[1975] 2 S.C.R. 275 . . . at 282; R. v. Yebes, [1987] 2 S.C.R. 168 . . .
at 185; and R. v. Davis (1995), 165 A.R. 243 . . . (C.A.), at paras.
9-13.
2. Analysis
2.1 Admissibility of the K.G.B. Statement
[13]
The first question which divided the Court of Appeal below is whether
Ms. Pawliw’s identification of the accused was itself hearsay. As this
Court confirmed in K.G.B., a prior inconsistent statement can only be
admitted for the truth of its contents under the principled approach if the
evidence contained in the statement would be admissible through the witness’s
testimony at trial (K.G.B., at p. 784). Therefore, Ms. Pawliw’s
identification evidence can only be admitted under the principled approach if
the identification was not itself based on hearsay. This principle was
reiterated more recently in R. v. Couture, [2007] 2 S.C.R. 517, 2007 SCC
28, at para. 75:
It is also clear that the principled exception applies
only to hearsay evidence that would otherwise be admissible through the direct
testimony of the declarant, had the declarant been available and competent to
testify at trial: B. (K.G.), at p. 784; Hawkins, at para. 69.
There is no issue that if Darlene had been available and competent to testify
at trial, she would have been able to offer the evidence through direct
testimony. Although any direct testimony about David Couture’s statements made
to her would itself constitute hearsay, admissions from an accused fall within
a well-recognized exception to the hearsay rule. Further, since Darlene is not
a person in authority, no special burden is required.
[14]
If Ms. Pawliw testified at trial that someone told her that Mr. Devine
was the assailant, her testimony would constitute inadmissible hearsay unless
the statement could be shown to fall within a recognized hearsay exception.
Here, however, the trial judge rejected the contention that Ms. Pawliw’s prior
identification of the assailant was based on what others had told her,
concluding instead that she was trying to avoid identifying Mr. Devine at
trial. This finding of credibility is entitled to deference. Moreover, the
trial judge explicitly concluded that the identification was based on Ms.
Pawliw’s own observations. In my view, there is no reason to interfere with
these findings. I will now consider whether the trial judge was correct to
admit Ms. Pawliw’s statement under the principled approach to hearsay.
2.2 The
Principled Approach
[15]
Ms. Pawliw’s statement does not fall within any of the traditional
exceptions to the hearsay rule. The question is therefore whether the
statement meets the twin criteria of necessity and reliability.
2.2.1 Necessity
[16]
It is conceded that the necessity criterion is made out. As this Court
noted in K.G.B. and R. v. Khelawon, [2006] 2 S.C.R. 787, 2006 SCC
57, necessity does not depend on the unavailability of the witness:
As we know, the Court ultimately ruled in B. (K.G.), and the
principle is now well established, that necessity is not to be equated with the
unavailability of the witness. The necessity criterion is given a flexible
definition. In some cases, such as in B. (K.G.) where a witness
recants an earlier statement, necessity is based on the unavailability of the testimony,
not the witness.
(Khelawon, at para. 78 (underlining added))
[17]
Before turning to the question of threshold reliability, however, it may
be useful to recall briefly why Ms. Pawliw’s statement constitutes hearsay even
though she is present to be cross-examined, because at first blush this notion
appears counter‑intuitive. Recalling why this statement constitutes
hearsay will also serve to highlight the dangers of admitting the evidence in
its hearsay form: Khelawon, at paras. 57-58.
[18]
When the witness repeats or adopts an earlier out‑of‑court
statement in court, under oath or solemn affirmation, no hearsay issue arises.
The statement itself is not evidence; rather, the testimony is the evidence and
it can be tested in the usual way by observing the witness and subjecting him or
her to cross‑examination. The hearsay issue does arise, however, when
the witness does not repeat or adopt the information contained in the out‑of‑court
statement and the statement itself is tendered for the truth of its contents.
In these circumstances, the trier of fact is asked to accept the out-of-court
statement over the sworn testimony of the witness. Given the usual premium
placed on the value of in-court testimonial evidence, a serious issue arises as
to whether it is at all necessary to introduce the statement. In addition, the
reliability of that statement becomes crucial.
[19]
It may be readily appreciated, however, that although the underlying
rationale for the general exclusionary rule may not be as obvious when the
declarant is available to testify, it is the same: the difficulty of testing
the reliability of the out-of-court statement. The difficulty in assessing the
out-of-court statement is the reason why it falls within the definition of
hearsay and is subject to the general exclusionary rule. It follows, however,
that the degree of difficulty may be substantially alleviated in cases where
the declarant is available for cross-examination on the earlier statement,
particularly where an accurate record of the statement can be tendered in
evidence.
[20]
Here, the trier of fact is invited to consider and accept Ms. Pawliw’s
prior identification of Mr. Devine for its truth, despite the fact that she
testified in court under oath that she does not have any personal knowledge of
the identity of the assailant — she was simply told that it was Mr. Devine.
This Court stressed in K.G.B. that where the hearsay evidence is a prior
inconsistent statement, reliability is a “key concern” (at pp. 786‑87):
The reliability concern is sharpened in the case of prior inconsistent
statements because the trier of fact is asked to choose between two statements
from the same witness, as opposed to other forms of hearsay in which only one
account from the declarant is tendered. In other words, the focus of the
inquiry in the case of prior inconsistent statements is on the comparative
reliability of the prior statement and the testimony offered at trial, and so
additional indicia and guarantees of reliability to those outlined in Khan
and Smith must be secured in order to bring the prior statement to a
comparable standard of reliability before such statements are admitted as
substantive evidence. [Emphasis added.]
[21]
I will now consider whether Ms. Pawliw’s statement possesses a
“comparable standard of reliability” so as to warrant its admission in evidence
under the principled approach to hearsay.
2.2.2 Threshold
Reliability
[22]
Since the central concern underlying the rule against hearsay is the
inability to test the evidence, it follows that the reliability requirement is
aimed at identifying those cases where this difficulty is sufficiently overcome
to justify receiving the evidence as an exception to the general exclusionary
rule. The reliability requirement is usually met in one of two ways, which are
not mutually exclusive. “One way is to show that there is no real concern
about whether the statement is true or not because of the circumstances in
which it came about. . . . Another way of fulfilling the reliability
requirement is to show that no real concern arises from the fact that the
statement is presented in hearsay form because, in the circumstances, its truth
and accuracy can nonetheless be sufficiently tested” (Khelawon, at
paras. 62-63).
[23]
Although the two bases are not mutually exclusive, in cases where the
declarant is available to be cross‑examined, the focus will necessarily
be on the latter. As this Court explained in Khelawon (at para. 76):
The most important contextual factor in B. (K.G.) is
the availability of the declarant. Unlike the situation in Khan or Smith,
the trier of fact is in a much better position to assess the reliability of the
evidence because the declarant is available to be cross‑examined on his
or her prior inconsistent statement. The admissibility inquiry into threshold
reliability, therefore, is not so focussed on the question whether there is
reason to believe the statement is true, as it is on the question whether the
trier of fact will be in a position to rationally evaluate the evidence. The
search is for adequate substitutes for the process that would have been
available had the evidence been presented in the usual way, namely through the
witness, under oath or affirmation, and subject to the scrutiny of
contemporaneous cross‑examination.
[24]
Indeed, in any case, as this Court stated in Couture, there is an
advantage to first considering whether there are adequate substitutes for
testing the evidence (at para. 87):
Although there are no hard and fast rules about the
manner of conducting the hearsay admissibility inquiry, there are good reasons
to look first at whether there are adequate substitutes for testing the
evidence. The presence or absence of adequate substitutes is usually more
easily ascertainable. Further, whenever the reliability requirement is met on
the basis that the trier of fact has a sufficient basis to assess the
statement’s truth and accuracy, there is no need to inquire further into the
likely truth of the statement. That question becomes one that is entirely left
to the ultimate trier of fact. Recall the facts in Hawkins where the
witness had given contradictory versions under oath. There was certainly no
basis to admit the hearsay evidence on the ground that it was inherently
trustworthy. The evidence was admitted on the sole basis that there were ample
substitutes for testing the evidence: it was given under oath and was subject
to contemporaneous cross-examination in a hearing involving precisely the same
parties and the same issues that would be dealt with at trial. The Court
therefore did not engage in any threshold assessment of the trustworthiness of
the preliminary hearing testimony itself.
[25]
Here, there was no contemporaneous cross-examination as in R. v.
Hawkins, [1996] 3 S.C.R. 1043, but the K.G.B. requirements were
found by the trial judge to have been complied with: the statement was
videotaped and recorded, and before Ms. Pawliw gave her statement, a police
officer explained the seriousness of making the statement, the possible
consequences of giving a false statement, and administered a form of oath.
These factors were identified in K.G.B. as the general attributes of
in-court testimony that provide the usual safeguards of reliability (pp.
795-96). In the words of K.G.B., together with the availability of the
declarant for cross-examination, these attributes bring “the prior statement to
a comparable standard of reliability” such that the statement can be “admitted
as substantive evidence” (p. 787).
[26]
It is important to note that the availability of the declarant to be
cross‑examined will not necessarily tip the scales in favour of
admissibility. In order for this factor to weigh in favour of admission, there
must be a “full opportunity to cross‑examine the witness” at trial (K.G.B.,
at p. 796). As this Court explained in R. v. U. (F.J.), [1995] 3 S.C.R.
764, at para. 46:
The first factor contributing to reliability is the cross-examination of
the witness. If the witness provides an explanation for changing his or her
story, the trier of fact will be able to assess both versions of the story, as
well as the explanation. However, where a witness does not recall making an
earlier statement, or refuses to answer questions, the trial judge should take
into account that this may impede the jury’s ability to assess the ultimate
reliability of the statement.
[27]
For example, in R. v. Post (2007), 217 C.C.C. (3d) 225, 2007 BCCA
123, the accused pointed to the trial judge’s finding that the K.G.B. factors
were all present to support his argument that the witness’s police statement
should be admitted under the principled approach to hearsay. A unanimous Court
of Appeal rejected this argument, noting that “it is clear that the most
important of these three, namely the opportunity for cross-examination, existed
only notionally because while Malloway was present in the courtroom, there was
no real opportunity to test her account because of her inability to recall what
she saw, or to say that what she had said previously was true” (para. 65). A
similar conclusion was reached in R. v. N. (T.G.) (2007), 216 C.C.C.
(3d) 329, 2007 BCCA 2. The Court of Appeal in that case concluded (at para.
17):
In this case, any “full opportunity to cross-examine”
was completely frustrated. There was no meaningful comparison between
different accounts because Mason denied any knowledge of the facts, apart from
a grudging concession that he had given a statement to the police, which he
asserted was completely false.
[28]
Here, although Ms. Pawliw recanted her identification of Mr. Devine at
trial, there was a meaningful opportunity to test her evidence through cross-examination.
Ms. Pawliw testified under oath that at the time she gave her statement,
she was aware of the seriousness of the statement and told the truth to the
best of her ability. The trial judge was able to assess the witness’s
demeanour, and gave a detailed account of her evasiveness and reluctance to
identify Mr. Devine in the courtroom. He concluded by stating as follows (at
para. 41):
I have reviewed the manner of Ms. Pawliw giving
evidence on the stand and compared it to the straightforward manner in which
she described the incident, and Mr. Devine’s involvement, when she gave the KGB
statement to the police. I conclude that she was trying to avoid identifying
the accused from the witness stand and is trying to distance herself on the
witness stand from any identification of the accused.
There is no
reason to disturb the trial judge’s finding in this regard.
[29]
Since I have concluded that there is a sufficient basis for assessing
the statement’s truth and accuracy, there is no need to inquire further into
the likely truth of the statement. The other indicia of reliability argued by
Mr. Devine need only be considered in assessing the ultimate reliability of the
statement.
2.2.3 Application
of the Exclusionary Discretion
[30]
Even where the criteria of necessity and reliability have been met, the
remaining question that may arise in certain circumstances is whether the trial
judge should exercise his or her discretion and refuse to admit the statement
on the ground that its prejudicial effect exceeds its probative value. For
example, in K.G.B., Lamer C.J. recognized the trial judge’s discretion
to refuse to allow the jury to make substantive use of the statement, even
where the criteria outlined in that decision are satisfied, when there is a
concern that the statement may be the product of some form of investigatory
misconduct (pp. 801-2; Khelawon, at para. 81). There may also be other
circumstances which would warrant the exercise of the trial judge’s residual discretion,
however, no such circumstances were present here. In my view, the Court of
Appeal was correct to conclude that the trial judge did not err in failing to
refer explicitly to the balancing of probative value against prejudicial
effect.
2.3 Reasonableness
of the Verdict
[31]
Mr. Devine submits that the trial judge’s verdict is not one that a
properly instructed jury acting judicially, could reasonably have rendered (see
R. v. Biniaris, [2000] 1 S.C.R. 381, 2000 SCC 15, and R. v. Yebes,
[1987] 2 S.C.R. 168). In particular, he argues that Ms. Pawliw’s
identification evidence was insufficient to ground a conviction. I agree with
the majority in the Court of Appeal that the quality of the identification
evidence was not ideal, and that it would have been preferable for
Ms. Pawliw to have identified the assailant from a photo line-up. I am
unable to conclude, however, that this renders the verdict unreasonable. Ms.
Pawliw’s identification evidence was capable of supporting the trial judge’s
finding that Mr. Devine was the assailant. The trial judge properly
assessed the evidence and concluded that he was satisfied beyond a reasonable
doubt of the guilt of the accused. I would therefore not accede to this ground
of appeal.
3. Disposition
[32]
For the above reasons, I would dismiss the appeal.
Appeal dismissed.
Solicitors for the appellant: Fix & Smith, Edmonton.
Solicitor
for the respondent: Attorney General of Alberta, Edmonton.