Date: 20000512
Docket: CAC 161208
NOVA SCOTIA COURT OF APPEAL
[Cite as: R. v. D.C.S., 2000 NSCA 61]
Glube, C.J.N.S.; Roscoe and Pugsley*, JJ.A.
BETWEEN:
D. C. S., a young offender
Appellant
- and -
HER MAJESTY THE QUEEN
Respondent
_____________________________________________________________________
REASONS FOR JUDGMENT
_____________________________________________________________________
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Editorial Notice
Identifying information has been removed from this electronic version of the judgment. |
Counsel: Megan Longley for the Appellant
Kenneth W. F. Fiske, Q.C. for the Respondent
Appeal Heard: April 14, 2000
Judgment Delivered: May 12, 2000
THE COURT: The appeal is allowed, the convictions are set aside and a new trial is ordered as per reasons for judgment of Roscoe, J.A.; Glube, C.J.N.S. concurring. (*Pugsley, J.A. took no part in the judgment).
Publishers of this case please take note that s.38(1) of the Young Offenders Act applies and may require editing of this judgment or its heading before publication. Section 38(1) provides:
38(1) No person shall publish by any means any report
(a) of an offence committed or alleged to have been committed by a young person, unless or order has been made under section 16 with respect thereto, or
(b) of a hearing, adjudication, disposition or appeal concerning a young person who committed an offence
in which the name of the young person, a child or a young person aggrieved by the offence or a child or a person who appeared as a witness in connection with the offence, or in which any information serving to identify such young person, is disclosed."
ROSCOE, J.A.:
[1] On December 16, 1999, following a trial in Youth Court before Justice R. James Williams, the appellant was convicted on charges that on February 21, 1999, he did:
. . . IN COMMITTING A SEXUAL ASSAULT ON [N.S.] CARRY A WEAPON TO WIT: KNIFE CONTRARY TO SECTION 272(A) OF THE CRIMINAL CODE OF CANADA.
. . .
IN COMMITTING AN ASSAULT UPON [N.S.] CAUSE BODILY HARM TO HIM [SIC], CONTRARY TO SECTION 267(B) OF THE CRIMINAL CODE OF CANADA.
[2] Charges that the appellant threatened N.S. were dismissed. The complainant alleged that the appellant sexually assaulted her and during the struggle, he stabbed her in the leg with a knife. The appellant agreed that he and N.S. had sexual intercourse but testified that it was consensual and that he did not either carry a knife or stab her.
THE EVIDENCE
[3] The evidence of the appellant and N.S. was that they met while camping with their respective families during the early summer of 1998. The appellant was then aged 15 and N.S. was 16. They exchanged phone numbers and began seeing each other, going to movies, and talking on the phone. Throughout the summer N.S. visited the appellant at his house almost every day. The relationship included consensual sexual intercourse within one week after they met. (The trial judge granted an uncontested motion pursuant to s. 276 of the Criminal Code to allow the defence to lead evidence and to cross-examine the complainant on her past sexual relationship with the accused, and also in respect of an allegation that she had a sexual relationship with a third party by whom she asserted that she became pregnant.)
[4] Once school started again in September they “broke up”, but continued to have infrequent contact by telephone and on at least two occasions they met and had consensual sexual intercourse. On February 20, 1999, N.S. telephoned the appellant and they made arrangements to get together the following day at his house. N.S. advised her mother that the appellant’s mother would be present during her visit. Her mother testified that she would not have allowed N.S. to visit unless there was parental supervision because by then she knew that the two teenagers had previously been engaging in sexual activity.
[5] On February 21, N.S.’s parents drove her to the appellant’s house at approximately 3:00 p.m. and before leaving her there understood from N.S. that the appellant’s mother was home. In fact, she was not, and N.S. admitted on cross-examination that she knew that.
[6] In direct examination, N.S. testified that when she arrived at the appellant’s house, she was uncomfortable since she had not seen him since September. However, the complainant admitted on cross-examination that she had seen him at least twice since September, and that “every time” she saw the appellant after they broke up they had sexual intercourse. N.S. described the events following her arrival at the appellant’s house on February 21st, on direct examination, as follows:
- He asked her to “sleep with him”; she said “no”; he persisted; she kept saying “no”. She said she was going to leave, and he said “no” and locked the door. He went to the kitchen, got a steak knife, about eight inches long and held it to her throat.
- She then sat on the floor, he sat on the couch and pushed her from behind and got on top of her, so that she was lying on the floor on her back, and he sat on top of her, facing her.
- He tried to get her jeans off, ripping at the zipper. He was calling her names, such as “bitch” and “whore”. She was kicking at him and fighting him, trying to get him off her. She saw the knife on the floor and grabbed it. He took the knife from her and stabbed her in the leg, in the calf. There was a cut in her blue jeans which were introduced as an exhibit. She said that the cut in her leg was deep and it was bleeding a lot.
- They continued fighting. She was kicking and he slapped her in the face. He took her pants off, she continued to resist and kept kicking him. He removed her underwear. At some point before he removed her underwear, he also removed all of his own clothes. She was unable to remember when he removed his own clothes.
- Her testimony continued as follows:
. . .
Q. And we're at that, the point he doesn't have any clothes on, he's, you've got clothing on the top but nothing on the bottom. What happened there, at that point?
A. He put his penis in me.
Q. Okay. Did you want him to do that?
A. No.
Q. Were you doing anything while he was trying to...
A. Yes.
Q. What?
A. I was kicking him.
MS. LONGLEY: I'm sorry, I didn't hear that.
Q. What did you say there, the last thing that you said?
A. I was kicking him.
Q. Kicking, okay. Go on. What happened?
A. He lifted my legs up over my head, and it, my leg rubbed against the couch and I got blood on the couch, and he got mad at me for getting it on his couch. And then finally I just laid there and I closed my eyes.
Q. And what happened.
A. Until he was finished.
MS. LONGLEY: I'm sorry, My Lord, I can't hear the answers.
A. I just laid there and closed my eyes until he was finished.
Q. And what do you mean by finished?
A. Until he got up and, whenever he was done.
- N.S. then went to the bathroom and cleaned her stab wound with kleenex. On her way to the bathroom the appellant told her that “we’re going to do it again”. After a couple of minutes, he came and banged on the bathroom door and told her to come out. She told him her leg was bleeding. He said it was not that bad, and went to get her some little band-aids and he put them on her leg.
- When she came back out of the bathroom he made her lie on the living room floor again. She did so because she was scared. He took off her shirt and bra and had intercourse with her again.
- She went to the bathroom again and while she was there, a friend of the appellant’s arrived and came into the house. After some conversation, she left.
- After leaving, she was picked up by a passerby, Mrs. Ryder, who took her to a nearby police car. She was taken to hospital and her wound was treated in the emergency department.
[7] On cross-examination, N.S. testified that:
- She had, on a previous occasion, cut herself on her arms with a razor blade when she was angry with her parents and another time had allowed a boy to cut her with a piece of glass.
- She agreed that she did not see the appellant lock the door because you could not see the door from the living room.
- She indicated that when she came out of the bathroom the second time she told the appellant she was pregnant and that the father was her boyfriend in Dartmouth. This was a lie. She told him so that he would stop assaulting her.
- After she told him about being pregnant, he became very upset and called her names. She left just after that.
[8] The appellant testified that he and N.S. had consensual sexual intercourse on the living room floor at his house on February 21, 1999. He denied the use of a knife. He indicated that after they had sex, she put her clothes back on and then went to the bathroom. When she emerged from the bathroom, she was picking at her leg where she had a tiny cut with some dried blood around it. She said she had cut herself. He got her some band-aids. He did not see any cut in her jeans. After that, she told him she was pregnant by her boyfriend, which caused him to be very upset. He said he did not know that she had a boyfriend, and he would not have had sex with her if he had known that she had a boyfriend, or that she was pregnant. He hollered at her and called her a “whore” and a “slut”. His friend, Justin, came to the door and N.S. left, still quite “mad” at him because he had called her names.
[9] The appellant testified that he then left the house with Justin and walked to a nearby store to get something to eat. While he was there, his aunt came to tell him to go home. When he arrived home, he found out that N.S. had accused him of raping her.
[10] Mrs. Tina Ryder testified that as she was on her way to watch her sons play a 5:00 p.m. hockey game, she noticed a girl limping along on the sidewalk and crying. She stopped to offer her assistance. The girl, N.S., got into Mrs. Ryder’s car but would not tell her what happened at first, and was quite upset. Mrs. Ryder noticed the cut in her jeans and asked to see her leg. N.S. pulled up her pant leg and Mrs. Ryder saw two little band-aids, lifted them up and saw a deep cut. N.S. said she just wanted to go home. Mrs. Ryder tried to call the girl’s parents on her cell phone, but there was no answer. Then N.S. told her “what had happened”. Mrs. Ryder then decided to go back towards the rink where she knew there would be someone who could offer assistance. N.S. became hysterical when she turned the car around to go back to where she had picked her up. N.S. told her she was afraid to be seen by the person who had stabbed her.
[11] Mrs. Ryder left N.S. in her car and went into the rink to get help from Mr. Steve Sacre a former police officer, who told her to take N.S. to the hospital. On the way there, they saw a police car in a parking lot and pulled in to speak to the officer. Mrs. Ryder explained that N.S. needed medical attention. The police officer called for an ambulance.
[12] Doctor Thomas Currie treated N.S. in the emergency room at the Queen Elizabeth II Hospital on February 21, 1999, at 6:00 p.m. He testified that she had a small laceration, two to three centimeters long on her left leg, near the shin. The cut was completely through the skin but not into the muscle. He closed the cut with four sutures. The cut was “consistent” with how N.S. told him the injury had occurred, basically with a sharp object. In terms of how old the cut was, it was his opinion that it was not more than 24 hours old.
[13] On cross-examination, Dr. Currie indicated that the injury was a clean cut and that whatever was used to cause the cut, either went straight in and straight out, or along the surface of the skin.
[14] The appellant’s mother testified that when she arrived home on February 21st, N.S.’s brother and some of his friends arrived at her door and advised her that her son had raped N.S. She was not sure what time it was when she arrived home, but it was dark. She then called the police, four of whom arrived shortly afterward. She left and went to her sister’s house while the police took photographs and searched the house. She testified that there was no blood or other stain on her living room chesterfield which was a light blue colour. She also indicated she did not see any blood on anything in the bathroom.
DECISION OF THE TRIAL JUDGE
[15] The trial judge began his oral decision by stating that the burden of proof is on the Crown to prove all the elements of the offences beyond a reasonable doubt. Next, he summarized the past relationship of N.S. and the appellant. Turning to the events of February 21st, he concluded that N.S. “...either knew or should have known that his mother wasn’t there...”. Regarding the incidents in the home, he indicated that “... there were two versions of events...”, those of the appellant’s and those of N.S. He continued:
There is really only one version of events after she leaves the home, however. It is apparent that after she left the home he was there for a period of time, sometime between 4:30 and 7:00 to 8:00 p.m. He was initially with a friend, there was some in and out, but there is no question that there was opportunity to clean up, or to do anything that related to cleaning up following the events that occurred.
It is clear that as [N.S.] left the home, and I would conclude within minutes, if not steps of leaving the home she was suffering from a stab or laceration to her lower left leg. It was described by the doctor who saw her at 5:30 as fresh, as to being one to four hours old, and certainly not more than 24 hours old. It was described as a clean cut. There were, it required four stitches or sutures. [N.] suffered from no other bruises or injuries.
It is clear that [N.] was emotional and upset, crying, fearful, and visibly upset, very shortly after leaving the [S.] home. It is clear that her jeans had a hole in them totally consistent with her version of events . . .
[16] The balance of the decision relating to the convictions under appeal is as follows:
I have a responsibility to consider all of the evidence before me. With respect to the determination or consideration of the evidence before me, I am satisfied that within the disputed time frame, I am satisfied beyond a reasonable doubt that the knife was used, that [N.S.] was stabbed, and that [N.S.] was sexually assaulted by [D.C.S.].
In considering their evidence, I have considered specifically the injury, the identification of the knife, her false suggestion of pregnancy, and my conclusion that it’s far more consistent the disclosure in her version of events than his. His saying that he was upset at her disclosure of the pregnancy when he describes them as being engaged in the most casual of sexual relationships, [D.C.S.’s] response, in his version of events, to the suggestion of a pregnancy I find inconsistent with the nature of the relationship as he described it.
[D.C.S.] describes her as storming out and looking mad. I would find that inconsistent with the observation and experience of independent witnesses who began to encounter [N.S.] literally moments later. I have considered the references of inconsistencies that have been raised by Ms. Longley, particularly the absence of blood in the home and the references to the locking of the door, I do not feel that they are factors that raise any doubt in my mind and, as indicated, conclude that it has been proved beyond a reasonable doubt that [D.C.S.] did, on February 21st, 1999, commit a sexual assault on[ N.S.], carrying a weapon, to wit, a knife, contrary to section 272(a) of the Criminal Code of Canada, and further that [D.C.S.], on February 21st, 1999, in committing an assault upon [N.S.], did cause bodily harm to her, contrary to section 267(b) of the Criminal Code of Canada.
GROUNDS OF APPEAL
[17] The appellant raises three issues on appeal:
1. Did the Youth Court Judge misapprehend the evidence as presented at the trial?
2. Did the Youth Court Judge fail to properly apply the required test in order to be satisfied that the incident was proven beyond a reasonable doubt?
3. Is the decision of the Youth Court Judge unsupported by the evidence?
[18] Although separated into three issues, essentially the appellant submits that the trial judge erred in law in the application of the burden of proof, and as a result of the cumulative effect of errors made by the trial judge, the verdict is unreasonable. This court should therefore either enter an acquittal or order a new trial, pursuant to s. 686(2) of the Criminal Code.
STANDARD OF REVIEW
[19] The standard of review on appeal from conviction on the grounds that a verdict is unreasonable under s. 686(1)(a)(i) is as set out by the Supreme Court of Canada in R. v. Yebes, [1987] 2 S.C.R. 168; 36 C.C.C. (3d) 417 where Justice McIntyre stated at p. 430 (C.C.C.):
. . . The function of the Court of Appeal, under s. 613(1)(a)(i) [now 686(1)(a)i)] of the Criminal Code, goes beyond merely finding that there is evidence to support a conviction. The court must determine on the whole of the evidence whether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered. While the Court of Appeal must not merely substitute its view for that of the jury, in order to apply the test the court must re‑examine and to some extent reweigh and consider the effect of the evidence. This process will be the same whether the case is based on circumstantial or direct evidence . . .
[20] That instruction has been consistently followed by the Supreme Court of Canada in several subsequent decisions. For example, in R. v. W. (R.), [1992] 2 S.C.R. 122, where beginning at p. 131, McLachlin, J., as she then was, stated that the same test applies to findings of credibility:
It is thus clear that a court of appeal, in determining whether the trier of fact could reasonably have reached the conclusion that the accused is guilty beyond a reasonable doubt, must re‑examine, and to some extent at least, reweigh and consider the effect of the evidence. The only question remaining is whether this rule applies to verdicts based on findings of credibility. In my opinion, it does . The test remains the same: could a jury or judge properly instructed and acting reasonably have convicted? That said, in applying the test 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: White v. The King (1947), 89 C.C.C. 148 at p. 151, [1947] S.C.R. 268, 3 C.R. 232; R. v. M.(S.H.) (1989), 50 C.C.C. (3d) 503 at pp. 548-9, [1989] 2 S.C.R. 446, 71 C.R. (3d) 257. The trial judge has the advantage, denied to the appellate court, of seeing and hearing the evidence of witnesses. However, as a matter of law it remains open to an appellate 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.
[21] Most recently, the Supreme Court of Canada, in a trilogy of cases, released April 13, 2000, R. v. Biniaris, [2000] S.C.J. No. 16; R. v. Molodowic, [2000] S.C.J. No. 17; and, R. v. A.G., [2000] S.C.J. No.18, reaffirmed the applicability of the Yebes test. Justice Arbour, for the unanimous Court in Biniaris, after setting out the test for determining the reasonableness of a verdict, stated at paras. 36 and 37:
[para36] 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.
[para37] The Yebes test is expressed in terms of a verdict reached by a jury. It is, however, equally applicable to the judgment of a judge sitting at trial without a jury. The review for unreasonableness on appeal is different, however, and somewhat easier when the judgment under attack is that of a single judge, at least when reasons for judgment of some substance are provided. In those cases, the reviewing appellate court may be able to identify a flaw in the evaluation of the evidence, or in the analysis, that will serve to explain the unreasonable conclusion reached, and justify the reversal . . .
[22] Justice Arbour referred to R. v. Burke, [1996] 1 S.C.R. 474; R. v. Reitsma, [1998] 1 S.C.R. 769; and, R. v. O'Connor (1998), 123 C.C.C. (3d) 487 (B.C.C.A.) as examples of cases where the trial judge’s reasons or analysis demonstrated an oversight, a deficiency or a logical inconsistency. She continued:
. . . These examples demonstrate that in trials by judge alone, the court of appeal often can and should identify the defects in the analysis that led the trier of fact to an unreasonable conclusion. The court of appeal will therefore be justified to intervene and set aside a verdict as unreasonable when the reasons of the trial judge reveal that he or she was not alive to an applicable legal principle, or entered a verdict inconsistent with the factual conclusions reached. These discernable defects are themselves sometimes akin to a separate error of law, and therefore easily sustain the conclusion that the unreasonable verdict which rests upon them also raises a question of law.
[23] Justice Arbour continued by clarifying the appropriate application of the Yebes test to verdicts returned by juries, and then concluded as follows at para. 42:
[para42] 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 . . .
[24] In the context of this case then, this court should first engage in a thorough re‑examination of the weight of evidence, and then with deference to the trial judge's findings of credibility, scrutinize the reasons provided for defects in analysis, errors of legal principle, or logical inconsistencies.
ANALYSIS
1. Misapprehension of the evidence
[25] The appellant submits that the trial judge misapprehended material evidence of Dr. Currie relating to the age of the wound. The respondent concedes that the trial judge misstated the evidence of Dr. Currie in that respect, but suggests that the specific evidence played no significant role in the trial judge’s determination of credibility, or of the ultimate verdict.
[26] The relevant evidence of Dr. Currie concerning the age of the wound was:
Q. Okay. What can you say as to the timing of the injury, working backwards from the time that you examined the young lady?
A. It didn't strike me as being out of keeping with what she told me.
Q. Yes.
A. But as far as saying whether it was one hour old, or three hours old, or four hours old, I couldn't say with certainty how old it was. But it certainly did not strike me as being an old wound.
Q. Okay. And what's your definition of old in that context?
A. It certainly did not look more than 24 hours old.
[emphasis added]
[27] The trial judge’s comment on this evidence was:
. . . she was suffering from a stab or laceration to her lower left leg that was described by the doctor who saw her at 5:30 as fresh, as to being one to four hours old and certainly not more than twenty-four hours old . . .
[28] While I would agree with the Crown that by itself, this obvious misstatement of the medical evidence is not critical, there are, in my view, additional errors relating to the timing of events, that are relevant to the extremely important finding of the trial judge that there was sufficient time for the appellant to clean up a bloodstain on the couch before his mother arrived home:
1) Dr. Currie testified that “the exact time” he saw N.S. was 6:00 p.m., not 5:30 as noted by the trial judge.
2) Constable Hovey, the police officer waved down by Mrs. Ryder, indicated that it was “approximately ten to five in the afternoon”.
3) The evidence of the appellant’s mother regarding the time she arrived home from visiting her husband in the hospital, on February 21st was:
A. I got home, I guess it was probably then ‑ I don't know the time . . .
. . .
A. I can't remember the exact time, but I would say it would be probably around 8:00, maybe. It was, it was starting to get dark.
Q. Okay, it was dark, yeah. Well, we're talking February, so it's going to be dark fairly early.
A. Yeah . . .
[29] The trial judge, in the crucial finding about whether there was any blood on the couch said:
There is really only one version of events after she leaves the home, however. It is apparent that after she left the home he was there for a period of time, sometime between 4:30 and 7:00 to 8:00 p.m. He was initially with a friend, there was some in and out, but there is no question that there was opportunity to clean up, or to do anything that related to cleaning up following the events that occurred.
. . .
. . . I have considered the references of inconsistencies that have been raised by Ms. Longley, particularly the absence of blood in the home and the references to the locking of the door. I do not feel that they are factors that raise any doubt in my mind . . .
[30] The period of time available for the appellant to clean up the bloodstain the complainant said was on the couch, was not as long as two and a half hours or more if N.S. was picked up by Mrs. Ryder after 4:30 p.m., and the appellant’s mother arrived home just as it was starting to get dark. The time available for cleaning the bloodstain could have been less than an hour, if the appellant’s mother arrived home at 5:00 p.m. or shortly after. Counsel on the appeal both assumed that the trial judge, in the passage quoted above, drew an inference that the appellant cleaned up the blood before his mother arrived home, but possibly the trial judge implied that the appellant’s mother had an opportunity to clean the stain before the police arrived. If it is the latter inference that is drawn, some comment concerning the mother’s credibility should have been made. The evidence of the appellant’s mother that there was no blood or stain on the couch was, in effect, corroborated by the absence of any Crown evidence from any of the four police officers who examined the house for evidence and took photographs very soon after she arrived home.
[31] I will deal with the effect of these apparent flaws in the evaluation of the evidence after consideration of the second ground of appeal.
2. Burden of proof
[32] The appellant submits that although the trial judge made reference to the requirement that the Crown prove the offences beyond a reasonable doubt, the reasons reflect several instances where the trial judge in weighing the conflicting evidence, determined the facts on a balance of probabilities. It is argued that the trial judge approached the case simply as a credibility contest, comparing the two versions of events and choosing the one that appeared to be more consistent with collateral evidence, rather than deciding whether the Crown had proved its case beyond a reasonable doubt.
[33] The appellant says that the trial judge failed to comply with the direction provided by the Supreme Court of Canada in R. v. W. (D.), [1991] 1 S.C.R. 742, where Cory, J., on behalf of the majority of the Court, in reviewing a jury charge said at p. 757:
In a case where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue. The trial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses. Specifically, the trial judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused. Second, if they do not believe the accused’s evidence but still have a reasonable doubt as to his guilt after considering the accused’s evidence in the context of the evidence as a whole. See R. v. Challice (1979), 45 C.C.C. (2d) 546 (Ont. C.A.), approved in R. v. Morin, supra, at p. 357.
Ideally, appropriate instructions on the issue of credibility should be given, not only during the main charge, but on any recharge . A trial judge might well instruct the jury on the question of credibility along these lines:
First, if you believe the evidence of the accused, obviously you must acquit.
Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
[34] As noted by Matthews, J.A. in R. v. Brown (1994), 132 N.S.R. (2d) at para. 17, in referring to the three parts of the reasoning process as set out by Cory, J.:
17 These observations in our opinion are equally applicable to cases where a judge sits alone. As Chipman, J.A. remarked in R. v. Gushue 117 N.S. R. (2d) 152 at 154:
. . . There is a danger here that the court asked itself the wrong question: that is which story was correct, rather than whether the Crown had proved its case beyond a reasonable doubt . . .
[35] Although as stated in Brown, supra, the failure of the trial judge to use the language of Cory, J., in R. v. W.(D), is not, in itself, fatal, the trial judge’s reasons must demonstrate that he did not simply determine which version of events was more plausible or probable. It must be clear that the entire three-step approach of assessing the evidence was followed and that he did not simply make a finding of credibility in favour of the complainant, and against the appellant and conclude, therefore, that the appellant was guilty.
[36] The chief concern here is that the third step, that is, whether considering the evidence as a whole, he was convinced beyond a reasonable doubt of the appellant’s guilt, was omitted. Those parts of the decision which require particular attention are as follows:
... It is clear that her jeans had a hole in them totally consistent with her version of events ...
. . .
... I have considered specifically the injury, the identification of the knife, her false suggestion of pregnancy, and my conclusion that it’s far more consistent the disclosure in her version of events than his. His saying that he was upset at her disclosure of the pregnancy when he describes them as being engaged in the most casual of sexual relationships, [D.C.S’s] response, in his version of events, to the suggestion of a pregnancy I find inconsistent with the nature of the relationship as he described it.
[D.C.S.] describes her as storming out and looking mad. I would find that inconsistent with the observation and experience of independent witnesses who began to encounter N.S. literally moments later . . .
[37] The theory of the defence in this case was that the wound to N.S.’s leg was self-inflicted and that she likewise cut the jeans at some point, possibly when she was in the bathroom. N.S. had cut herself with a razor blade on another occasion, when angry with her parents, and there is nothing in his reasons to suggest that the trial judge dismissed this as a farfetched or fanciful theory. The hole in the jeans therefore is not only “totally consistent with her version”, but also completely consistent with the defence theory or version of the events. In fact, although this was not suggested to the trial judge, the half-inch hole in the jeans may not be consistent at all with the injury to the complainant’s leg, or how she said it was inflicted. The force with which a steak knife would have to be thrust to cut the heavy denim of the jeans may not be consistent with an injury which was only skin deep.
[38] In the second passage quoted above, the trial judge concludes that the appellant’s response to N.S.’s false disclosure of pregnancy was more consistent with her version of events than his. Furthermore, he is of the opinion that the fact that the appellant was upset is inconsistent with the nature of their relationship. One of the difficulties with the first part of this statement, is that, in both versions of the events, the appellant became upset when she told him she was pregnant. N.S. did not mention the pregnancy discussion on direct examination. During cross-examination, N.S. testified as follows:
Q. Now, after you and [D.C.S.] had sex, and after you came out of the bathroom, you told [D.C.S.] that you were pregnant, didn't you?
A. Yes.
Q. And he asked you who the father was, and you said it was your boyfriend in Dartmouth?
A. Yes.
Q. [D.C.S.] got mad at that, didn't he?
A. Yes.
Q. And you two got in a fight then, an argument?
A. I wasn't arguing. He just yelled at me and said, "You really are a whore, aren't you", and then he . . .
[39] The evidence of the appellant on this issue was:
Q. . . . Now, you had started to talk about a conversation you had where [N.] told you she was pregnant. How did that conversation come about?
A. Well, she was sitting on the couch, and she was just staring in the wall, at the wall.
Q. Where were you at that point?
A. I was just walking around in my room, or in the living room. And I asked her what was wrong, 'cause she looked as if she was, like, thinking of something, and she told me she was pregnant. And I just looked at her, like, I thought she was joking. And she said it again, and she said, I asked her who it, who from, and she said her boyfriend over in Dartmouth. And that's it. I just, I got mad.
Q. Okay. You say you got mad. What exactly did you do or say?
A. I just started hollering and saying, like, "How could you come over here and, like, have sex with me if you have a boyfriend and you're pregnant by your boyfriend over in Dartmouth?", cause she never told me she had a boyfriend or nothing.
Q. Did you say anything else to her?
A. Yeah, I called her names and stuff.
Q. What kind of names did you call her?
A. I called her a whore and I called her a slut and stuff, and that's it.
[40] The trial judge’s statement that the appellant’s response after being told that she was pregnant is inconsistent with their casual relationship is also puzzling. His indignation is equally consistent with them having just had consensual sexual intercourse, as it is with the complainant’s version that he had just raped and stabbed her.
[41] In the third part of the judgment quoted above, the trial judge indicates that the appellant’s testimony that N.S. was very angry when she left is inconsistent with the evidence of the independent witnesses who described her as being upset, hysterical and crying shortly thereafter. I would agree with the appellant’s counsel’s submission that the complainant’s state of composure when seen by Mrs. Ryder is just as consistent with being really furious at D.C.S. because he had hollered at her and called her crude and insulting names shortly after they had consensual intercourse. This is especially so, given the evidence that N.S. had previously cut herself with a razor blade as a consequence of anger at her parents.
[42] Although it is implicit in his finding of guilt, the trial judge did not actually state that he found the complainant credible or that he did not believe the appellant. The trial judge has, it appears, determined the guilt of the appellant on the basis that N.S.’s evidence was more “consistent” than his, although the inconsistencies he cited are not necessarily or reasonably, on a reassessment of the evidence, actually inconsistent with the appellant’s version of events. No where did the trial judge expressly or impliedly indicate that he had considered whether, while not accepting the appellant’s evidence, it raised a reasonable doubt. The approach of weighing the evidence of the complainant against that of the appellant denied the appellant of his right to be presumed innocent until proven guilty beyond a reasonable doubt. Instead, he treated the case throughout as being a matter of choice between the complainant’s evidence on the one hand, and the appellant's evidence on the other hand. He thus failed to properly direct himself as to the law as stated in R. v. W.(D.)., supra. There has accordingly been an error of law requiring that the appeal be allowed and the verdict set aside under s. 686(1)(a)(ii) of the Code.
3. Unreasonable verdict
[43] The appellant submits that, not only has there been a misapprehension of the evidence as considered in the first ground of appeal, and the improper application of the burden of proof, but also that if this court thoroughly reviews and reweighs the evidence, we will arrive at the inevitable conclusion that the verdicts are unreasonable, and that there has to be a reasonable doubt of the appellant’s guilt, and therefore we should substitute acquittals on both charges.
[44] The relevant sections of the Criminal Code are:
686.(1) On the hearing of an appeal against a conviction . . . 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;
. . .
686.(2) Where a court of appeal allows an appeal under paragraph (1)(a), it shall quash the conviction and
(a) direct a judgment or verdict of acquittal to be entered; or
(b) order a new trial.
[45] The appellant submits that the totality of the evidence cannot reasonably support a conviction, and that this court should therefore exercise its discretion by entering an acquittal. In addition to the frailties in the evidence noted above with reference to the bloodstain, and the cut in the fabric of the jeans compared to the cut in the leg, the appellant enumerates other matters such as the difficulty the appellant would have had to remove his own clothing, and have intercourse with her while holding the complainant to the floor while she continued to struggle and kick him, the absence of blood on the complainant’s other clothing, and other evidence labeled by the appellant as improbable.
[46] In their text, The Conduct of an Appeal, Butterworths 1993 , the late Justice John Sopinka and Mr. Mark A. Gelowitz, indicate at p. 116, that the discretion given the court of appeal pursuant to s. 686(2) should be exercised as follows:
. . . In circumstances in which the admissible evidence was such that a properly instructed trier of fact could reasonably have convicted the accused, it is appropriate to order a new trial. Where, however, the court of appeal concludes that there was no evidence upon which a properly instructed trier of fact could have convicted, the appropriate course is to direct a verdict of acquittal.
[47] Although the authority cited by Sopinka and Gelowitz for this test is R. v. Salajko, [1970] 1 C.C.C. 352 (Ont. C.A.), which has, in effect, been overturned because of its statements regarding aiding and abetting, (see for example, R. v. Kirkness, [1990] 3 S.C.R. 74), the test otherwise appears to still be valid.
[48] In this court, a similar test was adopted by Chipman, J.A., for the majority in R v. M.H.M. (1994), 132 N.S.R. (2d) 196 at para. 30:
[30] By virtue of s. 686 of the Code, where this court allows an appeal on the ground of a wrong decision on a question of law, it may either direct a judgment of acquittal or order a new trial. The exercise of the discretion thus conferred was discussed by Bird, J.A., in R. v. More et al. (1959), 124 C.C.C. 140 (B.C.C.A.), at pp. 149‑150:
"I think it further appears from these judgments that broadly speaking where a conviction is quashed because of some mistake in the conduct of the trial the court will direct a new trial where there was legal evidence upon which the jury might have convicted on a proper trial. But where the court concludes there is no reasonable evidence of an essential element in the crime charged it will direct a judgment of acquittal to be entered for it is repugnant to our conception of justice that the accused prisoner be again placed in jeopardy after the Crown has failed to prove his guilt in order to give the Crown another opportunity to convict him."
[49] The Newfoundland Court of Appeal as well, in R. v. Green, [1995] N.J. No. 93, 128 Nfld. & P.E.I. R. 312, (application for leave to appeal to Supreme Court of Canada dismissed) discussed the options available pursuant to s. 686(2), after a finding of an unreasonable verdict, as follows at para. 82:
[para82] From that vantage point, it is apparent that the trial judge's disregard of important evidence in this case is attributable to errors of law. These errors do not afford bases of acquittals, however, since, if they had not been made, the possibility still exists that a properly instructed trier of fact might still, but not necessarily, convict. In such a situation it is the duty of a Court of Appeal, in setting aside verdicts under s. 686(1)(a)(ii), to order a new trial.
[50] In this case, while I find that there is an unreasonable verdict using the criteria established in Biniaris, supra, as a result of the cumulative effect of the misapprehension of the evidence as found on the first ground of appeal, and the use of the improper burden of proof, I do not agree with the appellant’s submission that an acquittal should be entered by this court. In this case, the possibility exists that on the evidence, a properly instructed trier of fact, might convict. It is, therefore, not appropriate to enter acquittals or to further discuss the weaknesses of the evidence at the first trial.
CONCLUSION
[51] I would, for these reasons, allow the appeal, set aside the convictions and order a new trial.
Roscoe, J.A.
Concurred in:
Glube, C.J.N.S.