C.A.C. No. 134652
NOVA SCOTIA COURT OF APPEAL
Cite as: R. v. Hewlin, 1997 NSCA 165
Roscoe, Pugsley and Flinn, JJ.A.
BETWEEN:
GERALDINE HEWLIN ) Philip J. Star
) for the appellant
Appellant )
)
)
- and - ) Adrian C. Reid, Q.C.
) for the respondent
HER MAJESTY THE QUEEN )
)
Respondent )
) Appeal Heard:
) October 15, 1997
)
) Judgment Delivered:
) October 15, 1997
)
)
THE COURT: Leave to appeal granted and appeal dismissed, per oral reasons for judgment of Roscoe, J.A.; Pugsley and Flinn, JJ.A. concurring.
The reasons for judgment of the Court were delivered orally by:
ROSCOE, J.A.:
The appellant seeks leave to appeal and, if granted, appeals from a decision of Justice Charles Haliburton of the Supreme Court who, on appeal, confirmed the conviction of the appellant by Judge R.E. Kimball of the Provincial Court. Judge Kimball found the appellant guilty of the offence of knowingly uttering a threat to cause death, contrary to s. 264.1(1)(a) of the Criminal Code.
At the trial, evidence was heard from three witnesses. Roswitha Richardson testified that she telephoned the appellant to discuss an earlier incident between them. Mabel LeBlanc testified that she listened to the conversation on a second phone at Ms. Richardson’s. They both testified that during the conversation, the appellant said either “I’m going to kill you” or “I will kill you.” The appellant testified that she suspected that Ms. Richardson was having an affair with the appellant’s common law spouse, and that what she said, was: “...you stay away from him and stay away from me or I’ll wring your neck.” She denied saying she would kill Ms. Richardson.
Judge Kimball’s brief oral decision was as follows:
The, ah, case, all cases of this nature, as we all know and all cases under the Code must prov-, be proved beyond a reasonable doubt and in connection with the evidence given, ah, in this matter, I’m satisfied that the, first, that the parties involved, that is, ah, Miss Hewlin and Miss Richardson, were in fact talking to one another on the telephone and also that, ah, Miss LeBlanc was also on the telephone at the time as she said that she was, ah, and any, any doubt that may have existed, that may have ra-, ah, come about or may have been raised as a, because of the testimony of, of Miss Hewlin and Miss Richardson, if you take that by itself, in my opinion was resolved by the evidence of Miss LeBlanc and Miss LeBlanc’s evidence was straight forward in my opinion and trustworthy and credible and honest. She did not change her, ah, statements, or any of her statements, as a result of examination or cross examination of Counsel and she was accept-, ah, objective in my opinion and forthright.
As a result, I’m satisfied that the, ah, case is resolved through her evidence and I find Geraldine Hewlin guilty as charged.”
On appeal to Justice Haliburton, the appellant submitted, as she does to this Court, that the trial judge “failed to apply the proper legal principles to the issue of reasonable doubt” and “in failing to apply the proper burden of proof”. Justice Haliburton concluded his brief oral decision as follows:
My interpretation is that what - what Judge Kimball was saying was what I would consider him entitled to say: he looked at the evidence given by the complainant. He looked at the evidence given by the accused, in the form of their own testimony. At the end of the day, I think the trial judge, was actually saying, “I have to weigh the evidence of those two women, and I have to weigh the evidence of Ms. LeBlanc. Looking at all the evidence, I find that there is one witness upon whom I can place reliance. She was, (as he said), straightforward, trustworthy, credible and honest.” In the context of all the evidence, it seems to me what he’s saying is, “I’m satisfied in the context of all the evidence, relying particularly on the evidence of Ms. LeBlanc, that the charge has been proven beyond a reasonable doubt.”
The appellant submits that the trial judge fell into error by not approaching the assessment of credibility in the proper fashion, that is, by asking, first, whether he believed the appellant’s testimony; secondly, if he did not, whether it was such as to give rise to a reasonable doubt, which, in either case, an acquittal should be entered; and, thirdly, if neither of the first two questions were answered in the affirmative, he then had to ask whether the whole of the evidence proved beyond a reasonable doubt that the appellant was guilty. See R. v. W.(D.), [1991] 1 S.C.R. 742 and R. v. Mathieu (1994), 90 C.C.C.(3d) 415 (Q.C.A.).
The appellant argues that the trial judge erred by asking himself the questions in the wrong order, that if he had considered the appellant’s testimony first he would have had a reasonable doubt and therefore should have acquitted. Instead, it is submitted that he first compared the testimony of the appellant with the complainant, had a reasonable doubt after the comparison, and then used the evidence of Ms. LeBlanc to resolve the doubt or “break the tie.” The appellant refers the Court to its decisions in R. v. Gushue (1992), 117 N.S.R.(2d) 152; R. v. Cooke (1988), N.S.R.(2d) 274; R. v. Robichaud (1994), 134 N.S.R. (2d) 364, and R. v. Fickes (1994), 132 N.S.R.(2d) 314.
We have carefully considered the evidence and the trial judge’s decision in light of the arguments by counsel and the cases to which we were referred and unanimously conclude that the appeal should be dismissed. We agree with Justice Haliburton’s analysis of the trial judge’s decision. This is not a case such as Gushue, Brown or Cooke where the trial judge framed the credibility issue as a contest between the complainant and the accused. Here there was credible corroborating evidence accepted by the trial judge. A trial judge sitting alone is not required to specifically and methodically verbalize the three step approach recommended for jury instructions. (R. v. Morrisey (1995), 97 C.C.C. 193 (Ont. C.A.)) Nor is the trial judge required to demonstrate that he knows the law or explain precisely why he does not entertain a reasonable doubt. (R. v. Burns, [1994] 1 S.C.R. 656).
While we grant leave to appeal, we dismiss the appeal.
J.A.
Concurred in:
Pugsley, J.A.
Flinn, J.A.