Thursday, October 23, 2014

Appeal Court Rejects Shoplifter's Argument that Trial Lawyer was Incompetent


In a recent decision [Hordyski v. Her Majesty the Queen 2014 SKCA 102], the Saskatchewan Court of Appeal dismissed an appeal from a convicted shoplifter who argued that his trial lawyer had been incompetent. 

 

The evidence against Mr. Hordyski was not complicated.  He had been observed on a CCTV camera by a store's loss prevention officer shoplifting merchandise.  At the time, he was with his young son and a woman, Pearl Peters, who was the mother of his son, in the household goods area of the store.  Ms. Peters left her shopping basket with Mr. Hordyski and left the area. 

 

The CCTV camera footage showed Mr. Hordyski removing the price tag from a soft shell lunch bag and then transferring items from Ms. Peters' shopping basket into the lunch bag.  Mr. Hordyski then picked up his son, concealed the lunch bag between the two of them and walked towards the store exit.  He paused by the cashiers to look around before walking past them and out of the store with the items.  The loss prevention officer confronted Mr. Hordyski outside the store where he was arrested for theft.  The value of the stolen items totalled approximately $220.

 

At trial, the Crown called the loss prevention officer and the investigating police officer.  Both witnesses were thoroughly cross-examined by Mr. Hordyski’s lawyer.  Mr. Hordyski was the only witness called for the defence.  His defence was that he did not have the necessary intent to commit the offence of theft under $5,000 because his reason for leaving the store was to look for Ms. Peters so she could take their son to the bathroom. 

 

The trial judge made specific findings of fact and credibility and concluded Mr. Hordyski was guilty as charged.

 

On appeal, Mr. Hordyski contended that his trial lawyer was incompetent because he failed to called corroborating evidence to bolster Mr. Hordyski’s theory that his relationship with Ms. Peters was dysfunctional and to confirm the extent of Mr. Hordyski’s debilitating back injury.  According to Mr. Hordyski, that evidence would prove that he did not have the intent to commit the offence. 

 

The Saskatchewan Court of Appeal ruled that there is a two-step process involving an allegation of incompetent trial counsel:  1. The first step is to establish that trial counsel’s failure to call corroborating evidence constitutes incompetence;  and 2.  the second  step is to establish that a miscarriage of justice resulted. 

 

The Court of Appeal noted that the trial judge had accepted Mr. Hordyski’s evidence on the nature of his relationship with Ms. Peters and his evidence as to his back injury.  In both instances, the trial judge ruled that such evidence did not raise a reasonable doubt as to Mr. Hordyski's intention to steal the items in question. 

 

The Court of Appeal could not find any error with the trial judge’s rejection of Mr. Hordyski’s explanation for leaving the store with the items and also found that his trial counsel more than adequately cross-examined the Crown’s witnesses and elicited evidence (which was rejected) in Mr. Hordyski’s examination in chief relating to his defence. 

 

More particularly, the Court of Appeal found that there was nothing unreasonable about the trial counsel’s alleged failure to call corroborating evidence on the two issues because the proposed evidence did not relate to material issues but only to facts the trial judge had already accepted.  The trial judge accepted Mr. Hordyski’s testimony with respect to the nature of his relationship with Ms. Peters and his physical condition.  More importantly, however, the trial judge rejected Mr. Hordyski’s explanation as to why he took the items from the store.

 

In the result, Mr. Hordyski’s conviction appeal was dismissed. 

Regards,

Blair 

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