Nova Scotia Court of Appeal
Citation: R. v. Lawther, 2016 NSCA 48
Date: 20160603
Docket: CAC 437334
Registry: Halifax
Between:
Robert Stewart Lawther
Appellant
v.
Her Majesty the Queen
Respondent
Restriction on Publication: pursuant to s. 486 of the Criminal Code
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Editorial Notice: |
Ideniifying information has been removed from this electronic version of the judgment. |
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Judges: |
Bryson, Scanlan and Van den Eynden, JJ.A. |
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Appeal Heard: |
May 10, 2016, in Halifax, Nova Scotia |
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Held: |
Appeal dismissed per reasons for judgment of Scanlan, J.A.; Bryson and Van den Eynden, JJ.A. concurring. |
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Counsel: |
Thomas James McKeough, for the appellant Timothy O’Leary, for the respondent |
Order restricting publication – sexual offences
486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 172.2, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C‑34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with stepdaughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C‑34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
Reasons for judgment:
[1] Robert Stewart Lawther, the appellant, was convicted on a single count of sexual interference against the complainant, [C]. The offence was said to have occurred between the dates of January 1, 2006 and December 31, 2011. That offence was one of three counts for the jury to consider in Mr. Lawther’s trial. He was found not guilty on the other two counts. They involved two different complainants.
[2] On March 12, 2015, Mr. Lawther was sentenced to six months’ imprisonment plus two years’ probation. He has served the custodial sentence but appeals the conviction. For the reasons set out below, I am satisfied the appeal should be dismissed.
Background
[3] As noted above, there were three separate charges of touching persons who were under the age of 16 for a sexual purpose pursuant to s. 151(a) of the Criminal Code of Canada, R.S.C. 1985, c. C-46. All three counts involved the period between January 1, 2006 and December 31, 2011. At trial, the Crown called several witnesses including all three complainants. In the charge to the jury the trial judge described the allegations as follows: (In view of the publication ban I use only letters [A], [B], and [C] throughout this decision to refer to the three different complainants. The names of relatives have also been removed so as to not identify the complainants indirectly).
[A] testified that as a younger child she would go to the home of her grandparents, [*], and swim in their pool. Sometimes Robert Lawther would be in the pool when she was in the pool. He would pick her up by the waist and throw her into the air. On one occasion [A] described that as Robert Lawther was getting ready to throw her into the air, his hand went underneath the bottom of her bathing suit. She was wearing a two piece bathing suit that she referred to as a tankini.
His hand went inside the bathing suit bottom and stopped between her bottom and her vagina. She said that his fingers were moving, it happened only once, and lasted a couple of seconds.
…
[B] testified that she was touched by Robert Lawther on two occasions. The first occurred in a swimming pool at her grandparents’ home and the second at the church where she attended and Robert Lawther was the pastor.
With respect to the first instance, [B] testified that Robert Lawther would go swimming with her and other children in the pool. He would throw her out of the pool up into the air. On one occasion [B] says that Robert Lawther touched her by putting his hand on her privates. She was wearing a one piece bathing suit. She described that Robert Lawther put his hand under her bathing suit from the bottom and his hand touched her bum. She demonstrated where the touch occurred. She said that his hand stayed there for a few seconds.
In relation to the second instance, [B] testified that it happened when she was alone with Robert Lawther in the church. He lifted her up to turn off a light switch and then put her back down. As he did so, she described that he put his hand on her bottom, over her clothes. She had her back to him. She said that his whole hand was on her bottom.
…
[C] testified to being touched by Robert Lawther on many occasions. She said that she would come to the home, where she lived and swam in the pool. He would throw her into the air by putting one hand on her side and one hand on her bottom. She said that he came to the pool two to three times a week during the summer from the time she was about six to the time she was about ten. She says that he touched her every time she was in the pool with him, sometimes multiple times each swim session.
She said that she would wear a two piece tankini bathing suit and Robert Lawther would go underneath the bottom of her bathing suit, starting from the top of the bottom, of the bottom part of her bathing suit and going all the way under between her legs to almost the top of the front of her bathing suit. Sometimes his hand was still and sometimes it would move. Sometimes he’d put his fingers inside her vagina and move them.
She also said Robert Lawther would rub her back under her bathing suit in the pool. He also touched her front under her bathing suit. She could not say how many times her back was rubbed or her front touched, but she said it happened a lot.
[C] further testified that she was touched by Robert Lawther during fun nights at the church. She said he would pick her up and hold her on his lap. While sitting in his lap, he would touch her on the back and move his hands forward under her arms so that his hands touched her breasts. She said that this type of touching happened more than five times.
Finally, you will recall that [C] testified to an incident which occurred during a sleepover at the church. She said that she was playing with other kids when she hurt her neck and she went upstairs to lay down on one of the pews. Her sister went upstairs with her. Then, Robert Lawther came up and her sister, [*], left. [C] says that Robert Lawther approached her in the pew, rubbed her back and then slid his hand down the back of her pan…, her pajama pants. This incident lasted a few minutes. [C] said she didn’t know how old she was when this happened, but that she was in school and still attending church.
[4] It is this last described incident that the trial judge referred to as having been proven beyond a reasonable doubt when she sentenced the appellant. I will return to that incident and the trial judge’s reference to it in her sentencing decision.
[5] The appellant, his wife, and others testified at the trial. The appellant testified that any allegation that he touched the complainants inappropriately was absolutely false. He testified that he did not remember any events where [C] hurt her neck.
[6] The jury convicted Mr. Lawther on a single count of touching [C] for a sexual purpose. As with any jury trial, the jury did not give reasons explaining why they convicted the appellant, nor did they explain why they found him not guilty on the two remaining counts in the Indictment.
The Appellant’s Position
[7] The appellant argues that the conviction should be set aside because he says there is an apparent inconsistency arising from the verdicts. Each complainant testified as to what they saw in relation to the other complainants. The appellant argues that not guilty verdicts on two of the counts suggests that the jury was not satisfied as to the credibility of the three complainants. He argues that if the three complainants were not found to be credible in relation to two of the allegations, how could the evidence from those same three witnesses, or any one of them alone, be sufficient to convict the accused on the third count.
[8] The appellant, in his submissions, suggests that the jury failed to properly consider the evidence and instead reached a “compromise” resolution where they found the appellant guilty in relation to one charge in the Indictment and not guilty in relation to the other two.
The Respondent’s Position
[9] The respondent argues that there was no inconsistency, saying the evidence in relation to [C] is different than the evidence related to the two counts for which the appellant was acquitted.
Analysis
Standard of Review
[10] The appellant raises the issue of inconsistent verdicts saying they could only be the result of inconsistent findings on the issue of credibility. The respondent’s brief correctly identified the standard of review in referencing R. v. Tremblay, 2016 ABCA 30, ¶4 where the Court said:
[4] A claim of inconsistent jury verdicts turns on whether a properly instructed jury could have produced the verdicts on any theory of the evidence: R v Pittiman, 2006 SCC 9 at paras 7, 10, [2006] 1 SCR 381; R v JF, 2008 SCC 60 at para 23, [2008] 3 SCR 215; R v Tyler, 2015 ONCA 599 at para 8, [2015] OJ No 4653 [Tyler]. Two verdicts in a multi-count indictment against a single accused will be supportable "if the trial judge's instructions were proper legal instructions that could have led the jury to accept a theory of the evidence producing these verdicts": R v SL, 2013 ONCA 176 at para 5, 300 CCC (3d) 100 [SL].
[11] During oral argument, the appellant acknowledged that this was not a “classic” case of inconsistent verdicts. But he argued that in all the circumstances, the jury’s verdict was unreasonable. Regardless of this modified submission, I remain satisfied that the verdict was reasonable and supported by the evidence, as more fully described below.
[12] In R. v. Pittiman, 2006 SCC 9, the Supreme Court of Canada discussed principles to consider when assessing whether verdicts are inconsistent and, therefore, unreasonable. The Court referenced s. 686(1)(a)(i) of the Criminal Code which provides the court may allow an appeal where it is of the opinion that the verdict should be set aside on the ground it is unreasonable and cannot be supported by the evidence, saying that before an appellate court may interfere with a verdict on the ground it is inconsistent, the court must find that the verdict is unreasonable. The appellant bears the onus of showing that no reasonable jury whose members applied their minds to the evidence could have arrived at that conclusion. (R. v. McLaughlin (1974), 15 C.C.C. (2d) 562 (Ont. C.A.)). The Court in Pittiman said:
7 The onus of establishing that a verdict is unreasonable on the basis of inconsistency with other verdicts is a difficult one to meet because the jury, as the sole judge of the facts, has a very wide latitude in its assessment of the evidence. The jury is entitled to accept or reject some, all or none of any witness's testimony. Indeed, individual members of the jury need not take the same view of the evidence so long as the ultimate verdict is unanimous. Similarly, the jury is not bound by the theories advanced by either the Crown or the defence. The question is whether the verdicts are supportable on any theory of the evidence consistent with the legal instructions given by the trial judge. Martin J.A. aptly described the nature of the inquiry in R. v. McShannock (1980), 55 C.C.C. (2d) 53 (Ont. C.A.), at p. 56, as follows:
Where on any realistic view of the evidence, the verdicts cannot be reconciled on any rational or logical basis the illogicality of the verdict tends to indicate that the jury must have been confused as to the evidence or must have reached some sort of unjustifiable compromise. We would, on the ground that the verdict is unreasonable alone, allow the appeal, set aside the verdict, and direct an acquittal to be entered.
[13] Clearly, this Court has the power to set aside a jury verdict but it is a power that is exercised with caution. I refer to s. 686(1) of the Criminal Code:
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
[14] In R. v. Biniaris, 2000 SCC 15, the Supreme Court of Canada confirmed the traditional test for appellate courts when reviewing jury verdicts was as stated in R. v. Yebes, [1987] 2. S.C.R. 168 saying:
36 The test for an appellate court determining whether the verdict of a jury or the judgment of a trial judge is unreasonable or cannot be supported by the evidence has been unequivocally expressed in Yebes as follows:
[C]urial review is invited whenever a jury goes beyond a reasonable standard. … [T]he test is ‘whether the verdict is one that a properly instructed jury acting judicially, could reasonably have rendered’.
(Yebes, supra, at p. 185 (quoted Corbett v. The Queen, [1975] 2 S.C.R. 275, at p. 282, per Pigeon J.))
That formulation of the test imports both an objective assessment and, to some extent, a subjective one. It requires the appeal court to determine what verdict a reasonable jury, properly instructed, could judicially have arrived at, and, in doing so, to review, analyse and, within the limits of appellate disadvantage, weigh the evidence. This latter process is usually understood as referring to a subjective exercise, requiring the appeal court to examine the weight of the evidence, rather than its bare sufficiency. The test is therefore mixed, and it is more helpful to articulate what the application of that test entails, than to characterize it as either an objective or a subjective test.
37 The Yebes test is expressed in terms of a verdict reached by a jury. …
…
42 It follows from the above that the test in Yebes continues to be the binding test that appellate courts must apply in determining whether the verdict of the jury is unreasonable or cannot be supported by the evidence. To the extent that it has a subjective component, it is the subjective assessment of an assessor with judicial training and experience that must be brought to bear on the exercise of reviewing the evidence upon which an allegedly unreasonable conviction rests. That, in turn, requires the reviewing judge to import his or her knowledge of the law and the expertise of the courts, gained through the judicial process over the years, not simply his or her own personal experience and insight. It also requires that the reviewing court articulate as explicitly and as precisely as possible the grounds for its intervention. …
[15] I note that the appellant does not take issue with the instructions the trial judge gave to the jury. His argument relates only to the issue of credibility, saying the jury should not have convicted him after having rejected the evidence of all the complainants on the other counts.
[16] The Yebes test was applied to a jury’s findings of credibility by McLachlin, J. (as she then was) in R. v. François, [1994] 2 S.C.R. 827. She made it clear that appeal courts should tread carefully when overturning a jury’s verdict based on a credibility issue. Quoting Pigeon J., in R. v. Corbett, [1975] 2 S.C.R. 275 she said at pp. 835-36:
… the question is whether the verdict is unreasonable, not whether it is unjustified. The function of the court is not to substitute itself for the jury, but to decide whether the verdict is one that a properly instructed jury acting judicially, could reasonably have rendered.
…
… This rule also applies to cases where the objection to the conviction is based on credibility – where it is suggested that testimony which the jury must have believed to render its verdict is so incredible that a verdict founded upon it must be unreasonable. This was confirmed by this Court in R. v. W. (R.) [1992] 2 S.C.R. 122. …
… 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… However, as a matter of law it remains open to an appeal 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.
[17] In the case now on appeal, the appellant suggests that there was motive to lie. He referred to a mortgage that the appellant had signed in 2007 for [C.]’s parents and refused to sign when it came up for renewal in 2012. Obviously the jury did not accept that was reason enough to reject the evidence of [C]. I refer again to the comments in François at pp. 836-37:
… The reasoning here is that the witness may not have been telling the truth for a variety of reasons … she may have had reasons to concoct her accusations. In the end, the jury must decide whether, despite such factors, it believes the witness’s story, in whole or in part. That determination turns not only upon such factors as the assessment of the significance of any alleged inconsistencies or motives for concoction, which may be susceptible of reasoned review by a court of appeal, but on the demeanour of the witness and the common sense of the jury, which cannot be assessed by the court of appeal. …
…
…The jury may reject the witness’s evidence in its entirety. Or the jury may accept the witness’s explanations for the apparent inconsistencies and the witness’s denial that her testimony was provoked by improper pressures or from improper motives. Finally, the jury may accept some of the witness’s evidence while rejecting other parts of it; … we cannot infer from the mere presence of contradictory details or motives to concoct that the jury’s verdict is unreasonable …
A final factor which the court of appeal reviewing for unreasonableness must keep in mind, is that the jury may bring to the difficult business of determining where the truth lies special qualities which appellate courts may not share. This most certainly applies to sexual offences. …
[18] I do not in any way delegate the review function to the trial judge. By way of observation I reference the comments of the trial judge during the sentencing hearing. She makes it clear that although she found the jury verdict to be ambiguous, in the end, she was able to resolve in her own mind a reasoning path as to how the jury could have convicted the appellant of one offence while acquitting him of the other two counts in the Indictment. Her comments, which I set out in ¶21 below, are informative. In the sentencing phase of the trial the trial judge must consider s. 724 of the Criminal Code which provides:
724 (1) In determining a sentence, a court may accept as proved any information disclosed at the trial or at the sentence proceedings and any facts agreed on by the prosecutor and the offender.
(2) Where the court is composed of a judge and jury, the court
(a) shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty; and
(b) may find any other relevant fact that was disclosed by evidence at the trial to be proven, or hear evidence presented by either party with respect to that fact.
[19] Because a jury does not provide reasons in rendering its verdict, it was up to the trial judge during the sentencing phase of the trial to determine first what facts were essential to the guilty verdict. In this case that involved a finding that there was a touching of [C], during the relevant time frame, for a sexual purpose. Aside from that essential finding it was for the trial judge to determine the nature and extent of what Mr. Lawther did. The evidence was to the effect that there were three discrete categories of allegations of the appellant sexually touching [C]. One related to allegations of hundreds of touching incidents in the swimming pool; a second related to at least five occasions during fun nights at the church; a third related to a single incident of touching under pajama bottoms after [C] had hurt her neck during a sleepover at the church.
[20] The sentencing decision makes it clear that she was aware of the fact that she was required to come to an independent determination of the facts where a jury verdict is ambiguous. She appropriately referenced R. v. Ferguson, 2008 SCC 6, where the Supreme Court of Canada said:
[22] First, the trial judge erred in attempting to reconstruct the logical reasoning of the jury. The law holds that the trial judge must not do this, and for good reason. Jurors may arrive at a unanimous verdict for different reasons and on different theories of the case …
[21] The trial judge reviewed the evidence of the various witnesses, explaining how it was that at the end of the day she was satisfied that a single incident of touching for a sexual purpose had occurred. It is worth repeating portions of her analysis here:
[21] As I’ve already referenced above, the evidence of [A] consisted of three discrete allegations. The first allegation related to hundreds of touching incidents in the swimming pool. The second related to at lease (sic) five occasions during fun nights at the church when she would be sitting on the offender’s lap and the offender would touch her breast. The third allegation related to touching that occurred during a sleepover at the church. In the last incident [A] alleges that the offender put his hand underneath the back of her pyjama bottoms.
[22] [A] was cross-examined on these allegations. She was confronted with previous inconsistent statements. Some of these inconsistencies were less significant, in my view, or were consistent, or could be consistent with the evidence of the young person testifying to instances that took place years earlier. There were some inconsistencies that I did find significant.
[23] For example, [A] acknowledged that the first disclosure of Mr. Lawther touching her breast was during her evidence at trial. In my view it is difficult to conceive that her memory would improve over time, or that she wouldn’t have mentioned the significant allegation on some earlier occasion. It is my impression that [A] was trying to increase the believability of her allegations by increasing the detail and degree of the allegations over time.
[24] In another related example it was [A]’s evidence that she saw Mr. Lawther touch [B] underneath the pool deck. [B] herself did not testify to such an event. Generally speaking [A]’s evidence as to the frequency of her pool time with Mr. Lawther differed from the other witnesses. It is my view that this was consistent with her tendency to amplify the evidence.
[25] In the incidences where Ms. [A]’s evidence was contradicted by other evidence, I was left with a doubt as to the reliability of her evidence and ultimately its credibility.
[26] There are further instances of evidence that raised a doubt in my mind. The offender testified and provided a strident denial of all the allegations against him. He said that the girls were liars. He said that his wife was always with him for two reasons. The first reason was that this was part of their ministry training, and the second was that the children were really his wife’s ministry and he was working to support this effort. His evidence as to the frequency of the visits to the pool was different than that of [A]. He said that he may have been there one time a week with the exception of one week that he recalled he may have been in the pool on three occasions. His evidence as to the reason he was never alone with the parishioners was clear and cogent and resonated particularly respecting the incidents alleged to have taken (sic) in the pool.
[27] However, the offender’s evidence was not as impressive or important in my view as the evidence of his wife. The offender and his wife have been married for 41 years. One would assume that her evidence would support her husband, and it did. She gave evidence that … that was consistent with her husband’s evidence except that it was considerably more detailed and had a particularly cogent tone. She testified as to their training as ministers and how they carried out the directive not to be alone with parishioners. She said that she always … that she was always with her husband at the pool, that the pool area was small, and implicitly it was easy to observe what was happening. She did not observe her husband ever put his hands between a child’s legs and if she did she would have stopped the swimming. I believed her as she said this. She impressed me as someone who wouldn’t lie for her husband for any reason, let alone the jeopardy of a child. Mrs. Lawther said that [W] was … was often watched the children swimming with Mr. Lawther. [W] didn’t testify at trial. I presume that she didn’t observe any inappropriate touching. Of course the fact alone that no one saw anything doesn’t mean it didn’t happen. What resonates here is the evidence of [A] as to the number of times the touching happened. In the apparent view of Karen Lawther and others it leaves me with a reasonable doubt as to the allegations of touching in the pool.
[28] As to the incidents in the pool it was [A]’s evidence that the offender would usually come to the pool by himself. It was only the odd occasion when his wife came along. This evidence is in stark contrast to the evidence of Mr. and Mrs. Lawther and the evidence of [B] that Mrs. Lawther was always in the pool with her husband and sometimes that, as [B] said, Nan and Poppy were there as well.
[29] [A] also testified that the offender would (sic) his wife and sometimes his grandchildren to the pool. [A] could only recall one specific instance where the offender attended the pool without his wife.
[30] The foregoing evidence leaves me a doubt as to the reliability and creditability of the complainants’ evidence as I considered the totality of the evidence I consider that the touching in the pool was not proven beyond a reasonable doubt. In the end, then, I am left with a reasonable doubt as to both the allegations relating to the pool and the fun nights for the reasons I have stated.
[22] In her analysis she identified the one allegation where she felt the evidence was different from the others and said:
[31] The one remaining allegation is different from the previous two. [C]’s evidence on this point was materially consistent over time. From my point of view it was significant that this allegation happened when she and the offender were alone together in the church. It made sense how they came to be alone together in the church and the incident consisted of a brief, albeit inappropriate encounter. Finding himself alone with [C], by his own admission, was inconsistent with the offender’s pastoral training. Although the offender testified that none of the incidents happened, he gave a detailed…he gave…pardon me…detailed evidence as to the pool allegations but did not specifically address the sleepover incident. As I say this I am mindful that he’s presumed innocent and does not have to disprove these allegations. I’m simply making an observations (sic) as to the change in the nature of his evidence across the various allegations. I conclude that the touching occurred in the manner described by [C] and that the nature of the touching supports a further conclusion that it was for a sexual purpose.
[31] For these reasons I am satisfied that the Crown established that the touching for a sexual purpose occurred during the sleepover night at the church as described by [C]. In my view this is consistent with the jury verdict in this case.
(Paragraph numbering error noted in original transcript)
[23] The trial judge, at ¶17, noted that she was bound to accept that at least one incident of touching for a sexual purpose occurred, but that she must also, if possible, consider whether the touching was more than once and the nature and extent of that touching. In the end, the trial judge stated that she was satisfied that certain facts were proven beyond a reasonable doubt and this was consistent with the jury verdict. In her review of the evidence she noted:
[20] …The victim was under the age of 14 [sic] at the time the touching occurred. The victim was touched by the offender on one discrete occasion. …
[24] That was the basis upon which the trial judge sentenced Mr. Lawther.
[25] The trial judge’s analysis makes it clear that she understood how the jury could have acquitted the appellant in relation to the other two complainants yet still convict the appellant. She also makes it clear how she herself was not satisfied beyond a reasonable doubt as to the other allegations involving [C]. As I have noted, the appellant suggested that it was explained by compromise as opposed to determination of guilt or innocence based on the evidence. While the trial judge struggled to determine what it was that Mr. Lawther was guilty of, in the end she said she was satisfied beyond a reasonable doubt that he was only guilty of a single discrete incident.
[26] The trial judge’s reasoning was sound. In the end, it was consistent with the verdict as required by s. 724 of the Criminal Code. I refer back to Ferguson, and the fact that it is possible that a jury could arrive at a unanimous verdict for different reasons and on different theories of the case. Without the benefit of reasons from the jury we will never know the reasoning path of the various jury members. We know only that at the end of the day they were satisfied beyond a reasonable doubt that all facts essential to the jury’s verdict of guilty were proven. The trial judge’s comments on sentencing reveal at least one reasoning path that was consistent with the evidence. She explains how it is that the verdict of guilty on one count is not inconsistent with the acquittal on the other two counts. In the end this is simply a case wherein the jury must have found some of the evidence from some of the witnesses, including the evidence of the complainant [C], left them with a reasonable doubt on two of the counts. They were satisfied that there was enough credible evidence from complainant [C] and others to satisfy them beyond a reasonable doubt as to the guilt of the appellant on one count. I agree that was at least one path that the jury may have taken in rendering the verdict of guilty on the single count.
[27] Applying the principles as set out in Pittiman to the present case, the jury was faced with allegations from three different complainants and each had some similarities but also some distinct features. The trial judge’s instructions made it clear to the jury that they would have to decide how much or how little of each witness’s testimony they were to believe that the appellant was to be presumed innocent of each count and that the jury must consider each count separately.
[28] It is not for this Court, on appeal, to attempt to reconstruct the thought processes of individual jurors as they weighed the evidence of the respective witnesses being the three complainants. Clearly at the end of the day they considered and applied the trial judge’s instruction that each complaint would have to be considered separately.
[29] I referred above to the trial judge’s comments on sentencing which I am satisfied exemplify at least one example of how the verdicts in the case can be reconciled. The trial judge stated that she was satisfied beyond a reasonable doubt that the appellant had touched [C] for a sexual purpose during the sleepover at the church when she hurt her neck. In doing, so she was able to reconcile the fact that the jury acquitted the appellant of the offences in relation to the other two complainants. The jury was not required to reject all of the testimony of [C] because it contained inconsistencies (see R. v. Kruper, 2007 ABCA 17; R. v. Best, 2016 NLCA 10; and R. v. François, [1994] 2 S.C.R. 827).
[30] As Rothman, J.A. noted in his dissenting reasons in R. c. C.(R.), [1992] 49 Q.A.C. 37, which were approved by the Supreme Court of Canada in R. v. C.(R.), [1993] 2 S.C.R. 226 in overturning the majority’s decision:
Credibility is, of course a question of fact and it cannot be determined by fixed rules. Ultimately, it is a matter that must be left to the common sense of the trier of fact, … . Unless the record reveals an error of law or in principle or a clear and manifest error in the appreciation of the evidence, a court of appeal should not intervene in that determination.
[31] It is a rare case that would see an appeal court overturn a verdict based on a jury’s credibility I agree with the trial judge’s analysis during the sentencing hearing, there was sufficient evidence upon which the jury could reasonably convict the appellant. That reasoning path was not inconsistent.
[32] The appeal should be dismissed.
Scanlan, J.A.
Concurring:
Bryson, J.A.
Van den Eynden, J.A.