A Grovedale man is appealing his aggravated assault conviction. Herbert Charles Wanihadie was sentenced to 6.5 years in jail in June for beating a fellow inmate while incarcerated.
Wanihandie is one of three people who have been convicted in connection with the beating of 28-year-old Dylan Gogan at the Peace River Correctional Centre. The other two accused have each been sentenced to just over three-and-a-half years of jail time after pleading guilty.
Gogan was attacked on March 10, 2018 by the three other inmates. He was found bloodied and unconscious by Correctional Centre staff, and was later put into a medically induced coma before being flown to his home province of Nova Scotia.
Wanihadie is seeking an acquittal of his sentence, alleging the trial judge erred by accepting non-expert opinion evidence from correctional officers who identified him as one of the attackers in a video of the assault. Defence attorney Lisa Trach says the judge failed to follow the proper procedure to admit non-expert evidence against Wanihadie.
“What the Crown did was call correctional officers to testify about who the people involved in the beating were. Two of those individuals plead guilty — they admitted they were part of it – but that doesn’t necessarily implicate Mr. Wanihadie,” she argues. “These individuals are not experts and were not qualified as such. What they are giving is non-expert opinion evidence.”
Trach adds ‘non-expert opinion evidence’ has a specific use in criminal law in which the Crown says a witness has a unique set of knowledge or understanding because of their involvement with the incident. In this instance, the correctional officers were considered to be in a position to identify Wanihadie from the video.
The dispute comes from an argument that the video, allegedly showing Wanihadie to have participated in the beating, is of too low quality to identify him specifically from other inmates, and the officers called to testify were not in a position to accurately identify the accused. Trach says that to an average person viewing the evidence, they would be unable to identify Wanihadie.
“Basically, in watching this video, it is a number of people dressed in the exact same clothing, many of which have similar physiques who need to be identified,” she says. “You don’t see their faces very well, many of them are aboriginal in this particular video and so they all have dark hair [and] you can’t see any distinguishing features.”
A date for when the appeal will be heard has not yet been released.