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PROCEDURE - Trial judge’s duties - Assessing credibility of witnesses

Thursday, January 16, 2020 @ 8:39 AM  

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Appeal by the accused from conviction for trafficking in cocaine. The appellant was arrested after police observed two meetings between her and B. The appellant and B were both arrested. B had 1.07 grams of cocaine on her person and no money. The appellant had 95 cents on her. At trial B testified for the Crown and the appellant testified in her own defence. Each testified that it was the other who was selling cocaine. B testified that the first meeting was an exchange of money for cocaine and that the prepaid cocaine was exchanged at the second meeting. B acknowledged having initially lied to police upon her arrest and having lied under oath at the preliminary inquiry. The appellant testified that at the first meeting the two did a line of cocaine together in the car and the appellant asked B for more drugs. The trial judge accepted B’s evidence, finding that it was consistent with the independent evidence.

HELD: Appeal dismissed. There was no basis for finding ineffective assistance by counsel. The appellant’s complaints were nothing more than a difference in opinion between trial counsel and appellate counsel on the best manner to cross-examine B. There was no evidentiary basis for concluding that trial counsel failed to make Charter applications. The appellant failed to establish any prejudice. The closing submissions of the Crown were neither inflammatory nor demeaning, nor were they legally impermissible. While the trial Crown’s closing address should not have been in the first person, this was a non-jury trial and thus it did not taint the verdict. The appellant was unable to point to anything in the reasons or elsewhere to demonstrate the trial judge applied different standards in assessing the appellant’s evidence as opposed to that of B.

R. v. Tokaryk, [2019] A.J. No. 1523, Alberta Court of Appeal, J. Watson, F.F. Slatter and E.A. Hughes JJ.A., November 15, 2019. Digest No. TLD-January132020008