R. v. Tolliver

R. v. Tolliver Court Court of Appeal Date 2001-04-24 Citation 2001 NSCA 68 Docket CAC 164551 Judge/Registrar/Adjudicator Freeman, Gerald B. (Honourable Justice) (CA); Roscoe, Elizabeth A. (Honourable Justice) (CA); Flinn, Edward J. (Honourable Justice) Document Type Decision Relations Library Sheet - R. v. Tolliver - 2001 NSCA 68 - 2001-04-24 - Library Sheet Decision Content CAC 164551 NOVA SCOTIA COURT OF APPEAL [Cite as: R. v. Tolliver, 2001 NSCA 68] Freeman, Roscoe and Flinn, JJ.A. BETWEEN: JOHN TERRANCE TOLLIVER Appellant - and - HER MAJESTY THE QUEEN Respondent CAC 164697 BETWEEN: JASON PATRICK TOLLIVER Appellant - and - HER MAJESTY THE QUEEN Respondent __________________________________________________________________ REASONS FOR JUDGMENT __________________________________________________________________ Counsel: Appellants appeared in person Kenneth W.F. Fiske, Q.C. for the Respondent Appeal Heard: April 19, 2001 Judgment Delivered: April 24, 2001 THE COURT: Both appeals from conviction are dismissed as per reasons for judgment of Roscoe, J.A.; Freeman and Flinn, JJ.A., concurring. ROSCOE, J.A.: [1] The appellants, Jason Tolliver and John “Manny” Tolliver, were convicted of aggravated assault and unlawful confinement of Scott LeBlanc by Justice Gordon Tidman, sitting without a jury, after a five day trial in the Supreme Court. A third person, Derek Chandler was also convicted as a party to the offences but he has not appealed. Each of the three accused were represented by separate counsel at the trial. Neither appellant is represented by counsel on the appeal. [2] John Tolliver was sentenced to four years in a federal penitentiary for the aggravated assault and two years concurrent for the unlawful confinement. Jason Tolliver received a sentence of two years for the aggravated assault and a concurrent term of one year for the unlawful confinement. The sentences have not been appealed. [3] The Crown has fairly summarized the issues raised by the notices of appeal in the respondents’ factums as follows: Both appellants submit they were denied a fair trial because the trial judge ruled the inconsistencies and contradictions contained within the testimony of the complainant, Scott LeBlanc, were “understandable”. The appellant Manny Tolliver charges that the trial Judge misconstrued the testimony of his alibi witness, Lonny Murphy. The appellant Jason Tolliver contends the trial Judge was wrong to dismiss the testimony of his alibi witness, Heather Hann, and failed to appreciate the reason she advanced for her failure to come forward earlier than she did with his alibi. Jason Tolliver alleges that he was also denied a fair trial by reason of the ineffective assistance of his counsel. Both appellants submit that the verdict of the trial Judge was unreasonable because his finding in respect of the credibility of Scott LeBlanc was unreasonable. [4] John Tolliver also alleges that the Crown attorney at the preliminary inquiry altered the tape and transcript of Mr. LeBlanc’s testimony in answer to a question respecting whether he had identified John Tolliver from a photo line up, thus denying him a fair trial. [5] At the trial, there was no issue that Mr. LeBlanc had been abducted, severely beaten, and then abandoned in a remote wooded area, while bleeding profusely from a large gash in his scalp, blindfolded and secured to a tree with duct tape. As noted by the trial judge, identity was the critical issue: The sole issue then for the court’s resolution is whether these defendants or any of them were involved. The only evidence as to who did this to the victim comes from the victim, Scott LeBlanc, himself. All of the accused have offered alibi evidence. Therefore, credibility of the witnesses is of prime importance in the resolution of the issues before the court. [6] While the appellants did not testify at their trial, defence witnesses gave alibi evidence on behalf of the appellants and Mr. Chandler. In his decision, the trial judge summarized the evidence of the complainant, who had known the appellants for several years, and each of the defence witnesses, and noted the submissions of the appellants’ counsel regarding the theories of the defence. The trial judge indicated that, notwithstanding that there was no apparent motive for the attack, and despite the lack of corroboration, he generally accepted the evidence of the complainant. He considered the numerous inconsistencies in the complainant’s evidence and the variations between his trial testimony and that given at the preliminary and in statements given to the police, and concluded: From the evidence of the victim, it is difficult to say exactly who did what during the whole course of the evening. It is understandable from the point of view of the victim that he was not able to identify everybody who did everything to him on the night or early morning in question, but, there is no doubt in my mind from his evidence that he was struck by Manny Tolliver and that he was at least held by Jason Tolliver and that Derek Chandler bound or assisted in binding him. . . . In this case, although it is not known who, for instance, administered the blow to the head with the machete or the sharp object that caused the severe gash to the back of the victim’s head, all of the accused persons either did or aided in doing what took place. It is reasonable to assume that if one drives somebody away with a machete held to him and aids in confining him to the car, and aids in binding him while the victim is being beaten at the time, and continues to be beaten, any persons who took part in any part of the whole enterprise were aiders in what happened to the victim during the course of the attack and confinement and thus is also guilty of committing the offences. [7] Justice Tidman did not believe the evidence of the alibi witnesses and gave detailed reasons for his determination of their credibility, or lack thereof. He was satisfied that the Crown had proven beyond a reasonable doubt that the appellants had committed the offences of unlawful confinement and aggravated assault. [8] The standard of review in a case such as this, where credibility of the witnesses was the main issue facing the trial judge, is as stated by Justice Freeman recently in R. v. Riley, 2000 NSCA 123 beginning at § 8: The standard to be followed by an appeal court in appeals on these grounds was set out by Sopinka, J. in Burke v. R. (1996), 105 C.C.C. (3d) 205 (S.C.C.): In undertaking a review under s. 686(1)(a)(i) of the Criminal Code, the appellate court must carefully consider all of the evidence that was before the trier of fact. As I stated for a majority of this court in R. v. S. (P.L.) (1991), 64 C.C.C. (3d) 193 at p.197, [1991] 1 S.C.R. 909, 5 C.R. (4th) 351: In an appeal founded on s. 686(1)(a)(i) the court is engaged in a review of the facts. The role of the Court of Appeal is to determine whether on the facts that were before the trier of fact a jury properly instructed and acting reasonably could convict. The court reviews the evidence that was before the trier of fact and after re‑examining and, to some extent, reweighing the evidence, determines whether it meets the test. As a result, it is only where the court has considered all of the evidence before the trier of fact and determined that a conviction cannot be reasonably supported by that evidence that the court can invoke s. 686(1)( a)(i) and overturn the trial court's verdict. According to this court in R. v. W. (R.) (1992), 74 C.C.C. (3d) 134, [1992] 2 S.C.R. 122, 13 C.R. (4th) 257, special concerns arise in cases such as this where the alleged ``unreasonableness'' of the trial court's decision rests upon the trial judge's assessment of credibility. In these cases, the court of appeal must bear in mind the advantageous position of a trial judge in assessing the credibility of witnesses and the accused. As McLachlin J. stated in W. (R.), at pp. 141‑2: . . . in applying the test [under s. 686(1)(a)(i)] the Court of Appeal should show great deference to findings of credibility made at trial. This court has repeatedly affirmed the importance of taking into account the special position of the trier of fact on matters of credibility: White v. The King (1947), 89 C.C.C. 148 at p. 151, [1947] S.C.R. 268, 3 C.R. 232; R. v. M. (S.H.) (1989), 50 C.C.C. (3d) 503 at pp. 548‑9, [1989] 2 S.C.R. 446, 71 C.R. (3d) 257. Despite the ''special position'' of the trial court in assessing credibility, however, the court of appeal retains the power, pursuant to s. 686(1)(a)(i), to reverse the trial court's verdict where the assessment of credibility made at trial is not supported by the evidence. As McLachlin J. stated in W. (R.), at p. 142: . . . as a matter of law it remains open to an appellate court to overturn a verdict based on findings of credibility where, after considering all the evidence and having due regard to the advantages afforded to the trial judge, it concludes that the verdict is unreasonable. Thus, although the appellate court must be conscious of the advantages enjoyed by the trier of fact, reversal for unreasonableness remains available under s. 686(1)(a)(i) of the Criminal Code where the ''unreasonableness'' of the verdict rests on a question of credibility. I acknowledge that this is a power which an appellate court will exercise sparingly. This is not to say that an appellate court should shrink from exercising the power when, after carrying out its statutory duty, it concludes that the conviction rests on shaky ground and that it would be unsafe to maintain it. In conferring this power on appellate courts to be applied only in appeals by the accused, it was intended as an additional and salutary safeguard against the conviction of the innocent. [9] After carefully reviewing, reexamining and reweighing the record, including the transcript of evidence, and after considering the written and oral submissions of the appellants, I am not satisfied that the trial judge erred in an unreasonable way in his assessment of the credibility of the witnesses nor in the verdicts he reached. The verdicts are supported by the evidence. On the evidence, a properly instructed jury acting reasonably could have convicted the appellants. [10] With respect to the appellants’ submissions that their trial was unfair, I have carefully reviewed the evidence in light of their written and oral arguments and am satisfied that the trial judge did not misconstrue the facts, or misstate any of the evidence, or make any error in assessing the evidence. Nor am I persuaded that the trial judge erred in law, or acted upon any wrong principle or disregarded any material evidence. There is no evidence to support the allegation that there was any alteration of the preliminary inquiry tape or transcript. In any event, given the identification evidence given by Mr. LeBlanc at the trial, it is improbable that any difference or inconsistency in his answer at the preliminary from that at the trial about whether he looked at a photo line-up to identify John Tolliver, would have influenced the outcome of the trial. Furthermore, there is, in my view, absolutely no merit to any of the allegations which the appellants make concerning the lack of competency or ineffective assistance of their trial counsel. [11] The appeals from convictions should be dismissed. Roscoe, J.A. Concurred in: Freeman, J.A. Flinn, J.A.