IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
R. v. Felger, |
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2017 BCSC 1436 |
Date: 20170815
Docket: 65349
Registry: Chilliwack
Regina
v.
Timothy Lee Felger
Before: The Honourable Mr. Justice Skolrood
On appeal from: An order of the Provincial Court of British Columbia, dated July 10, 2015 (R. v. Felger, Abbotsford Registry No. 80163-1).
Reasons for Judgment
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Counsel for the Crown: |
N. Reithmeier |
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Counsel for Appellant: |
A. Burns |
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Place and Date of Hearing: |
New Westminster, B.C. July 12, 2017 |
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Place and Date of Judgment: |
Chilliwack, B.C. August 15, 2017 |
[1] On July 10, 2015, Timothy Lee Felger was convicted in the Provincial Court of British Columbia of one count of assault contrary to s. 266 of the Criminal Code, R.S.C., 1985, c. C-46. He was subsequently given an 18-month suspended sentence.
[2] Mr. Felger now appeals from his conviction. While some time has passed since the date of his conviction, he was granted an extension of time to appeal by order of Mr. Justice Ball dated April 10, 2017.
[3] The complainant in the assault charge is a lawyer who was acting for Mr. Felger’s former spouse in a family law matter. The incident giving rise to the charge occurred during a break in a family law proceeding at the Abbotsford courthouse. In R v. Felger (July 10, 2015), Abbotsford Registry No. 80163-1(B.C.P.C.), the Provincial Court Judge described the essential background facts as follows, at para. 2 of his Reasons for Judgment:
Ms. Fisher-Fleming is a lawyer practising Family Law in the Abbotsford area. At the time of the allegation she was representing Ms. Deschamps in relation to an application brought by Mr. Felger to change a prior order made in Provincial Court granting Ms. Deschamps primary residence and all parenting responsibilities in relation to a child of Ms. Deschamps and Mr. Felger. The Crown alleges that during a break in the court proceedings, Mr. Felger committed the offence. It is alleged that Mr. Felger feigned a punch at Ms. Fisher-Fleming, therefore committing the offence pursuant to s. 265(1)(b)…
[4] The judge heard from four witnesses during the trial: the complainant, Ms. Fisher-Fleming; her daughter, Jessica Steiner, who is also a lawyer and was present at the time; Mr. Felger; and Mr. Felger’s family law lawyer, Mr. Lanning. During his testimony, Mr. Felger denied feigning a punch towards Ms. Fisher-Fleming.
[5] In addition, the judge viewed a video recording of the hallway in the Abbotsford courthouse where the incident occurred. He described the video in these terms, at paras. 10-11:
[10] The Crown also tendered evidence of video recordings from the hallway in the Abbotsford Courthouse. The recordings are not a continuous feed, but rather, record a digital frame every .25 seconds. The time period of relevance occurs between the time of 15:50:38:14 and 15:50:40:39. The video does not show any punch being thrown. It does show Mr. Felger walking towards Ms. Fisher-Fleming, looking at her and walking past her. It further shows Ms. Fisher-Fleming turning to her right, looking at Mr. Felger as he has passed her by.
[11] The video not capturing a punch directed towards Ms. Fisher-Fleming, it is not evidence upon which the Crown can establish the offence in and of itself. Also, given the quality of the video it does not establish that a punch was not thrown. I am mindful that Mr. Felger does not have to prove his innocence; rather, I find the video of limited use. It does show Mr. Felger outside the courtroom, speaking with his lawyer in a very animated fashion. It shows Mr. Felger looking directly at Ms. Fisher-Fleming at the relevant time, and it does capture her reaction after he passes her.
[6] Applying the analysis set out in R. v. W.(D.), [1991] 1 S.C.R. 742, the judge found that he did not believe Mr. Felger’s evidence, nor did that evidence give rise to a reasonable doubt about Mr. Felger’s guilt. He then went on to consider the evidence as a whole and, in particular, the evidence of Ms. Fisher-Fleming and Ms. Steiner. Despite some differences in their version of events, he found them to be consistent on the material parts of their evidence. On the whole of the evidence before him, the judge concluded that the Crown had proven its case beyond a reasonable doubt.
[7] The standard of review applicable on a summary conviction appeal was summarized by Mr. Justice Rogers in R. v. Jalifi, 2015 BCSC 1085, at paras. 20-22:
[20] The right to appeal from a summary conviction matter is governed by Part XXVII of the Criminal Code, R.S. 1985, c. C-46. Section 822(1) of the Criminal Code provides that in a summary conviction appeal pursuant to s. 813, ss. 683 to 689 relating to appeals of indictable offences, except s. 683(3) and s. 686(5), apply. Section 686(1) states:
686. (1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal
(a) may allow the appeal where it is of the opinion that
(i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence,
(ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or
(iii) on any ground there was a miscarriage of justice;
[21] The function of the summary conviction judge is to determine whether the trial judge could reasonably have reached the conclusion that the appellant was guilty beyond a reasonable doubt: R. v. W.(R.), [1992] 2 S.C.R. 122; R. v. Grosse (1996), 29 O.R. (3d) 785 (Ont. C.A.). An appeal judge must consider the evidence at trial, and must, to a limited extent examine and weigh it. That exercise has a limited purpose though, and that is to assess whether the evidence is reasonably capable of supporting the trial judge’s conclusions. If it is, the appeal court is not entitled to substitute its own view of the evidence for that of the trial judge: R. v. Burns, [1994] 1 S.C.R. 656.
[22] When it comes to reviewing the trial court’s findings of fact, an appellant court must give due deference to the trial judge. See, for example Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, where Iacobucci and Major JJ. said at paras. 22 and 24:
[T]rial courts are in an advantageous position when it comes to assessing and weighing vast quantities of evidence. In making a factual inference, the trial judge must sift through the relevant facts, decide on their weight, and draw a factual conclusion. Thus, where evidence exists which supports this conclusion, interference with this conclusion entails interference with the weight assigned by the trial judge to the pieces of evidence.
[8] The Supreme Court of Canada reaffirmed the deferential approach to findings of fact in R. v. Clark, 2005 SCC 2, at para. 9:
… Appellate courts may not interfere with the findings of fact made and the factual inferences drawn by the trial judge, unless they are clearly wrong, unsupported by the evidence or otherwise unreasonable. The imputed error must, moreover, be plainly identified. And it must be shown to have affected the result. “Palpable and overriding error” is a resonant and compendious expression of this well-established norm…
[9] Mr. Felger submits that the judge misapprehended the video evidence which records the interaction between him and Ms. Fisher-Fleming in the hallway and which does not show Mr. Felger feigning a punch towards her. He argues that the judge failed to adequately explain how he could have thrown or feigned a punch given his body position and the fact that his young daughter was holding on to his legs, as depicted in the video.
[10] Mr. Felger submits further that the judge, having rejected his evidence under the W.(D.) analysis, did not adequately consider the credibility of Ms. Fleming-Fisher, given that she gave differing versions of what occurred, nor did he properly analyze the discrepancies in the evidence given by Ms. Fisher-Fleming and Ms. Steiner.
[11] The Crown submits that the judge’s conclusion as to the guilt of Mr. Felger was based on his findings of fact and his assessment of the credibility of the witnesses, which are entitled to considerable deference on appellate review. The Crown submits that no palpable and overriding error has been established.
[12] While Mr. Felger raises two grounds of appeal, both are based on an alleged misapprehension of the evidence by the judge, which resulted in an unreasonable verdict. In R. v. R.P., 2012 SCC 22, the Supreme Court sets out the framework for determining whether a verdict is unreasonable, at para. 9:
To decide whether a verdict is unreasonable, an appellate court must, as this Court held in R. v. Yebes, [1987] 2 S.C.R. 168, and R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36, determine whether the verdict is one that a properly instructed jury or a judge could reasonably have rendered. The appellate court may also find a verdict unreasonable if the trial judge has drawn an inference or made a finding of fact essential to the verdict that (1) is plainly contradicted by the evidence relied on by the trial judge in support of that inference or finding, or (2) is shown to be incompatible with evidence that has not otherwise been contradicted or rejected by the trial judge (R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at paras. 4, 16 and 19‑21; R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190).
[13] Here, Mr. Felger submits that the judge’s finding that an assault occurred is incompatible with the video evidence. He submits that, based upon what is depicted in the video, the assault, i.e. the feigned punch, could not have occurred in the manner described by Ms. Fisher-Fleming and Ms. Steiner. He submits further that the judge erred by failing to adequately explain how he arrived at his conclusion in light of the video evidence.
[14] In my respectful view, Mr. Felger, on this point, is asking this court to re-weigh the evidence and to substitute its view of the evidence for that of the trial judge. As emphasized in the authorities referred to above, that is not the role of the appellate court.
[15] Both Ms. Fisher-Fleming and Ms. Steiner were cross-examined at some length on what is, and is not, depicted in the video and the arguments now advanced by Mr. Felger were squarely before the judge. Moreover, it is clear from the judge’s reasons that he reviewed the video evidence and he found it to be inconclusive and of “limited use.” It was open to him to make that finding and I am not persuaded that his treatment of the video evidence amounts to a reviewable error.
[16] Having found the video to be of limited use and having rejected Mr. Felger’s evidence, the judge accepted the evidence of Ms. Fisher-Fleming and Ms. Steiner as the basis for his finding of guilt. This leads to the second error advanced by Mr. Felger: that the judge failed to adequately assess the credibility and reliability of Ms. Fisher-Fleming and Ms. Steiner’s evidence, particularly in light of the video evidence.
[17] Mr. Felger mounts a particularly pointed challenge to Ms. Fisher-Fleming’s evidence. He submits that she gave one version of events in her initial direct evidence, a second version after she had the opportunity to review the video and then a third version after meeting with Crown counsel over the break. He also points to the inconsistency in her evidence, in which she initially testified that Mr. Felger feigned a punch with his right hand, which was empty, but then acknowledged that it could have been his left hand when shown the video which depicted Mr. Felger holding a pudding cup in his right hand. Ms. Steiner was similarly uncertain about which hand was used and she described the feigned punch in different terms from Ms. Fisher-Fleming. Mr. Felger submits that the failure of the judge to assess and explain these inconsistencies amounts to an error on his part.
[18] With respect to the video, the judge again found it to be of limited use, thus it cannot be said that he erred by then not comparing Ms. Fisher-Fleming and Ms. Steiner’s evidence in detail against what is seen in the video. That said, the judge did note in para. 19 of his Reasons that the video shows Mr. Felger looking directly at Ms. Fisher-Fleming as he passes her and her immediate reaction, which the judge found to be some circumstantial evidence supporting Ms. Fisher-Fleming’s version.
[19] Further, the judge was clearly alive to the inconsistencies within Ms. Fisher-Fleming’s evidence and as between Ms. Fisher-Fleming’s version of events and Ms. Steiner’s. He acknowledged those differences but held that “they are accounted for by the speed at which the incident transpired, as well as the different vantage points from which they made their observations” (at para. 18). He also noted that “one would not expect each of the witnesses to have identical observations” (at para. 18).
[20] It is also useful to note that during the cross-examination of Ms. Fisher-Fleming she acknowledged that she may have been mistaken about certain details of the assault, but she remained unshaken in her evidence that it did in fact occur. She stated:
I may be mistaken about the location. I may be mistaken as between which two photographs it occurred. And I may be mistaken about the timing. But I am not mistaken about Mr. Felger’s fist being right there.
[21] It was open to the judge to accept that evidence.
[22] Ultimately, the judge’s finding of guilt on the part of Mr. Felger was based on his review and weighing of all of the evidence before him and his resulting findings of fact. Mr. Felger has not established any palpable and overriding error on the part of the judge in reaching the conclusion that he did.
[23] The appeal is therefore dismissed.
“Skolrood J.”