Nova Scotia Court of Appeal
Citation: R. v. C.E.G., 2023 NSCA 1
Date: 20230104
Docket: CAC 510824
Registry: Halifax
Between:
His Majesty the King
Appellant
v.
C.E.G.
Respondent
Restriction on Publication: ss. 486.4 and 486.5 of the Criminal Code
| Judge: |
The Honourable Justice Duncan R. Beveridge |
| Appeal Heard: |
October 13, 2022, in Halifax, Nova Scotia |
| Subject: |
Criminal law: scope of the Crown’s appeal from an acquittal; role of disbelieved defence evidence in the third step of the W.(D.) framework. |
| Summary: |
The complainant testified her paternal grand stepfather sexually assaulted her. The respondent testified to a momentary accidental touch. The trial judge did not believe aspects of the respondent’s testimony, nor did it alone raise a reasonable doubt. However, the judge in the third step of the W.(D.) framework found he had a reasonable doubt the respondent had intentionally touched the complainant. An acquittal followed. The Crown appealed. |
| Issues: |
Did the trial judge commit an error of law alone? |
| Result: |
The Crown failed to establish the trial judge erred in law by failing to give effect to his findings of fact or in his third step of the W.(D.) framework. With no error in law alone, the Court lacks jurisdiction to intervene and the appeal must be dismissed. |
This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 81 paragraphs.
Nova Scotia Court of Appeal
Citation: R. v. C.E.G., 2023 NSCA 1
Date: 20230104
Docket: CAC 510824
Registry: Halifax
Between:
His Majesty the King
Appellant
v.
C.E.G.
Respondent
Restriction on Publication: ss. 486.4 and 486.5 of the Criminal Code
| Judges: |
Beveridge, Derrick and Beaton JJ.A. |
| Appeal Heard: |
October 13, 2022, in Halifax, Nova Scotia |
| Held: |
Appeal dismissed, per reasons for judgment of Beveridge J.A.; Derrick and Beaton JJ.A. concurring |
| Counsel: |
Timothy O’Leary, for the appellant David Mahoney, 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
Mandatory order on application
(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
[…]
Order restricting publication — victims and witnesses
486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.
INTRODUCTION
[1] A trial judge said he had a reasonable doubt and acquitted the respondent. The Crown appeals on the basis the trial judge erred in his third step of the W.(D.) analysis when he concluded he had a reasonable doubt the respondent intentionally touched the complainant. The Crown says this is inconsistent with the trial judge’s earlier disbelief of the respondent’s exculpatory testimony he had indeed touched the complainant’s groin, but it was by accident.
[2] Despite Mr. O’Leary’s efforts, the trial judge did not commit legal error. Accordingly, I would dismiss the appeal.
[3] To understand the Crown’s complaint, I will provide an overview of the trial evidence and the trial judge’s decision.
OVERVIEW
[4] Justice Scott Norton heard the trial on October 5, 2021. It was short. The evidence and submissions were completed in less than a day. The Crown called three witnesses—the complainant, her friend, and the investigating officer. The respondent testified, along with his wife.
[5] The 17-year-old complainant moved into the respondent’s home in the winter of 2020 following a disagreement with her mother. The respondent’s wife is the complainant’s paternal grandmother. The family unit in the home included the complainant’s great-grandmother.
[6] Wednesday, May 18, 2020, started as a regular night for the household. The family had gathered to watch TV in the living room. Two diametrically opposed versions of what happened came out at trial. The only common ground was that the complainant and the respondent occupied the couch and at one point they were alone for 10-15 minutes.
[7] The complainant described sexual touching for over 30 minutes while the whole family watched TV. She said the lights were off.
[8] Her great-grandmother retired for the night. The respondent’s wife also left for bed but returned 10-15 minutes later. The complainant was adamant her grandmother and great-grandmother left at 10:45 p.m. because that was the time displayed on the TV. She could remember it was 10:45 “like the back of my hand”. This time assumes importance to the complainant’s reliability and credibility.
[9] During her grandmother’s absence, the complainant said the respondent not only rubbed her upper legs and vaginal area but put his hands down her pants and digitally penetrated her for 10-15 minutes. The sexual assault only stopped when they heard the respondent’s wife get up and return to the living room.
[10] Shortly afterward, the complainant took her grandmother’s laptop and went to bed. Once in her bedroom, the complainant messaged her friend with a plea to come and pick her up. Then she woke up her grandmother, and fell to her knees crying, trying to explain to her what had happened. Her grandmother confronted the respondent which led him to say to the complainant, “I’m really sorry…”. The respondent then left the house.
[11] The complainant described how her grandmother convinced her to call the police. When she did so, she found out they were already on their way because the friend and her mother had contacted the RCMP.
[12] Cst. Nathan Sparks responded. He encountered the respondent on the highway and convinced him to return home. Once at the home, Cst. Sparks described both the complainant and her grandmother as pretty distraught. Cst. Sparks arrested the respondent, and later took a cautioned audio statement from him. Later that same night, audio-recorded statements were given by the complainant and her grandmother to Cst. Sparks.
[13] There was no dispute at trial that the respondent and complainant were alone for 10-15 minutes in the living room. Hence, ample opportunity for the alleged assault to have occurred. However, when the respondent testified, he denied he had touched the complainant as she had described. The respondent explained that when he stood up to leave the room, he used his hand to support himself, he slipped, and his hand came into contact with her vaginal area. He moved it immediately and said he was sorry.
[14] The respondent’s evidence suffered frailties. In cross-examination, he admitted his recorded police statement contains no mention of getting up off the couch and consequent accidental touching. He explained he told Cst. Sparks this detail before the tape was on. In fact, he said he had done so when they had first entered the police car. Cst. Sparks insisted his practice is to never question a suspect in the police car, and he had no substantive exchanges with the respondent prior to arrival at the Detachment. Other apparent inconsistencies between the respondent’s police statement and his trial testimony were explored.
[15] The complainant’s grandmother testified. She contradicted the complainant on a number of details. The lights were not off while they watched TV. She could see the complainant on the couch with her legs stretched out over the respondent (not curled up and distanced from him). She observed no fleeting touching, let alone sexualized touching for 30 minutes. It was 9:45 p.m. when she and the complainant’s great-grandmother left. She returned before 10:00 p.m. She knew this as the same show was still on. The complainant left for bed with the laptop at 10:15 p.m.
[16] The complainant’s grandmother disagreed the complainant had fallen to her knees crying. The complainant did disclose to her an allegation of inappropriate touching.
[17] When the complainant’s grandmother confronted the respondent with the allegation he had inappropriately touched the complainant, she testified he said “oh, God, he said, no, he said not on purpose. He said I went to get up to use the washroom and me hand slipped and that was it”. She also denied she had tried to convince the complainant to call the police.
[18] The complainant’s friend E.P. testified for the Crown. She confirmed being contacted by the complainant through Facebook messenger at 10:38 p.m. This time was authenticated by a printed screenshot of their message exchange.
[19] Ms. P. explained the complainant and her brother had just broken up. She described it as very heart breaking. The complainant had reached out to Ms. P.’s brother looking for help, twenty minutes prior to messaging her.
[20] Submissions followed immediately after the defence closed its case. I need not canvass every point made. Both counsel acknowledged credibility to be the key issue. The respondent argued the complainant had exaggerated what had happened, and in light of the clear error as to time, there existed a serious problem with reliability. The Crown suggested any problems with the complainant’s evidence were just in relation to peripheral details and urged the judge to convict.
[21] The trial judge reserved. On October 25, 2021, he delivered an oral decision. It has since been reported (2021 NSSC 305). The judge accurately observed that findings of credibility and reliability were fundamental to his decision whether the Crown had proven the charge beyond a reasonable doubt (para. 10).
[22] The trial judge referred to a number of authorities to inform himself of the bedrock principles of proof beyond a reasonable doubt, the difference between credibility and reliability, how to assess credibility, and the analytical framework described R. v. W.(D.), [1991] 1 S.C.R. 742, designed to preclude misapplication of the criminal burden of proof.
[23] After setting out the essential elements of sexual assault, the judge said he would first examine whether the Crown had proven beyond a reasonable doubt the respondent applied force intentionally.
[24] The trial judge did not accept the respondent’s evidence in some respects. In particular, his evidence that he told Cst. Sparks he had touched the complainant accidentally (para. 29). The judge later repeated his rejection of the respondent’s testimony that he had advised the police any contact was accidental (para. 61).
[25] The trial judge also found that the respondent’s evidence alone did not raise a reasonable doubt:
[62] I also find that Mr. G.'s evidence does not alone raise a reasonable doubt that the touching was unintended for the reasons expressed above. I therefore need to proceed to the third step of W.(D.), an assessment of the evidence as a whole.
[26] The complainant’s evidence was the centrepiece of the Crown’s case. The trial judge said he had concerns about her evidence. He agreed her evidence had been exaggerated. He said he found it difficult to believe the complainant’s grandmother and great-grandmother would have been unaware and unresponsive to a sexual assault going on for 30 minutes in such close proximity. In his words, it would have been “plainly obvious to anyone” in their respective positions.
[27] After canvassing the discrepancies between the complainant’s version and her grandmother’s evidence and other physical evidence, he reasoned:
[68] Events may have happened as the complainant described. It is not my role to determine what happened in the living room that night or whether I prefer the evidence of the complainant more than the person charged. The question I have to answer is whether, based on all of the evidence, the Crown has proved beyond a reasonable doubt that Mr. G. committed a sexual assault.
[69] Having considered all of the evidence I find that I am left with a reasonable doubt as to whether Mr. G. intentionally touched the complainant.
[70] I find Mr. G. not guilty of the charge of sexual assault.
[28] With this overview in hand, I turn to the Crown’s arguments on appeal. Originally, the Crown advanced three grounds:
1. That the learned Trial Judge erred in law by failing to give legal effect to findings of fact;
2. That the learned Trial Judge erred in law by failing to consider the whole of the evidence related to the live issues at trial;
3. That the learned Trial Judge erred in law by misapprehending the evidence;
[29] In its factum, the Crown abandons any suggestion the trial judge misapprehended the evidence and collapses grounds one and two into one argument. Its factum summarizes the essence of their argument as follows:
61. In essence, the Trial Judge rejected the Respondent’s evidence that he had touched A.H. accidentally. If the touching was not accidental, the Trial Judge failed to give legal effect to that finding. The legal effect of the finding would be that the touching was intentional. In addition, the Trial Judge could not have been left with the reasonable doubt about whether the Respondent had intentionally touched A.H. if he had considered the whole of the evidence. Had he done so, any concerns the Trial Judge had with A.H.’s evidence being exaggerated would have been relieved. The Trial Judge finding the Respondent had not accidentally touched A.H. would confirm A.H.’s evidence that she had been intentionally touched by the Respondent. The Trial Judge failed to consider this corroborative evidence when he applied the third step of W.(D.).
ANALYSIS
[30] This Court only has jurisdiction to review a judgment or verdict of acquittal if the ground of appeal engages a question of law alone (s. 676(1) Criminal Code). The question, what constitutes a question of law alone, is fundamental. It is not always easily answered.
[31] What is known is this: the Crown has no right to argue an acquittal should be overturned because it is unreasonable or otherwise unsupported by the evidence. That is because the underlying reason for a trial judge’s acquittal of an accused is a finding of reasonable doubt—a determination that is a finding of fact or mixed fact and law (R. v. Biniaris, 2000 SCC 15, at para. 32).
[32] An acquittal based on a conclusion of reasonable doubt unsullied by material legal error is not amenable to appeal (R. v. Percy, 2020 NSCA 11; R. v. McNeil, 2022 NSCA 55, at paras. 9-10).
[33] This does not mean an acquittal grounded on findings of fact is immune from appellate scrutiny. A judge commits legal error if they engage in speculation (Wild v. The Queen, [1971] S.C.R. 101; R. v. White, 1994 NSCA 77) or they misdirect themselves on the relevant legal issues (R. v. I.E.B., 2013 NSCA 98).
[34] Cromwell J., in R. v. J.M.H., 2011 SCC 45, identified four scenarios where an appeal court can reverse acquittals despite being ostensibly based on evidentiary assessments or factual determinations:
1. It is an error of law to make a finding of fact for which there is no evidence – however, a conclusion that the trier of fact has a reasonable doubt is not a finding of fact for the purpose of this rule.
2. The legal effect of findings of fact or of undisputed facts raises a question of law.
3. An assessment of evidence based on a wrong legal principle is an error of law.
4. The trial judge's failure to consider all of the evidence in relation to the ultimate issue of guilt or innocence is an error of law.
[35] However, an appellate court cannot translate strong opposition to a trial judge’s factual findings into legal errors (R. v. George, 2017 SCC 38, at para. 17).
[36] In addition, even if legal error were established, in order to obtain appellate relief, the Crown must also satisfy the court with a reasonable degree of certainty the verdict would not necessarily have been the same (see: R. v. Sutton, 2000 SCC 50; R. v. Graveline, 2006 SCC 16). I need not consider this additional hurdle as I am not satisfied the trial judge erred on a question of law alone.
[37] The Crown attempts to fit its arguments into the scenarios described in R. v. J.M.H. in two ways. The first is the suggestion the trial judge failed to give legal effect to his findings of fact. It argues the judge rejected the respondent’s evidence that he had touched A.H. accidentally. If the touching was not accidental, the legal effect of the finding would be that the touching was intentional. In other words, the trial judge could not have been left with the reasonable doubt about whether the respondent had intentionally touched the complainant.
[38] The second is that the judge erred in his application of the third step in W.(D.) by not considering all of the evidence on the ultimate issue of guilt or innocence.
[39] W.(D.) has probably created more appellate review than any other case. On reflection this seems strange, since the reason for the W.(D.) three-step approach to analyze trial evidence is so easily expressed and understood—the path to conviction can never degenerate into a contest between whether to believe the complainant or exculpatory evidence. In order to convict, the trier of fact must be satisfied beyond a reasonable doubt of the accused’s guilt.
[40] To keep true to this principle, Cory J. in W.(D.) made the following mild suggestion:
[28] 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.
If that formula were followed, the oft repeated error which appears in the recharge in this case would be avoided. The requirement that the Crown prove the guilt of the accused beyond a reasonable doubt is fundamental in our system of criminal law. Every effort should be made to avoid mistakes in charging the jury on this basic principle.
[41] With respect, the trial judge did not find as a fact that the touching of the complainant was not accidental. The judge rejected the respondent’s evidence that he had told Cst. Sparks he had accidentally touched the complainant. At no time in his decision did the trial judge find the respondent had applied force intentionally.
[42] The judge said this:
[29] I do not accept Mr. G.'s evidence that he told Cst. Sparks it was accidental. He also told Cst. Sparks in his recorded statement that "I knew I did something wrong".
[43] Later, the trial judge concluded he did not believe all of the respondent’s evidence. The judge pointed out the contradictions between his police statement and his trial evidence of an accidental touching. He said he did not believe the respondent’s testimony that he had told Cst. Sparks the contact was accidental:
[61] … Mr. G. suggested in his testimony that he told Cst. Sparks that the contact was accidental when he was in the police vehicle. I do not believe that to be true.
[44] It is not completely clear whether the judge was trying to express he disbelieved the respondent’s evidence any contact was accidental or his disbelief of the respondent’s claim he had told Cst. Sparks that was the case. In any event, it makes no difference.
[45] Disbelief of an accused’s exculpatory evidence cannot amount to a make-weight—a fact to be put into the Crown’s bin to meet its burden of proof. To permit such an approach would impermissibly distort the fundamental principle that the burden of proof is on the Crown (R. v. J.P., 2014 NSCA 29, leave to appeal refused, [2014] S.C.C.A. No. 255; R. v. O’Connor (2002), 166 O.A.C. 202).
[46] The respondent had no burden to prove he had not touched the complainant intentionally. Disbelief cannot be used to dilute the Crown’s burden of proof.
[47] The trial judge then turned to the second step in W.(D.). He concluded the respondent’s evidence alone did not raise a reasonable doubt:
[62] I also find that Mr. G.'s evidence does not alone raise a reasonable doubt that the touching was unintended for the reasons expressed above. I therefore need to proceed to the third step of W.(D.), an assessment of the evidence as a whole.
[Emphasis added]
[48] In the third step of W.(D.), the Crown says the trial judge erred by not viewing the respondent’s evidence as corroborative of the complainant and by reliance on the disbelieved evidence of the respondent to find a reasonable doubt.
[49] I start by saying, I do not doubt an accused’s evidence may be looked at to see if it corroborates aspects of the Crown’s case, and a trier of fact may decide not to credit defence evidence which they have disbelieved. But the question is always, is the trier of fact satisfied as to the guilt of the accused beyond a reasonable doubt based on the totality of the evidence?
[50] In this case, the trial judge referred to a number of decisions to inform his analysis. Early in his decision, he quoted from R. v. P.S.B., 2004 NSCA 25, in relation to the three-step W.(D.) framework:
[56] W.(D.) is concerned with how a trier of fact should apply the burden of proof in a criminal case where the accused testifies. In brief, the trier must remember that the issue is not whether he or she believes the accused, but whether the evidence as a whole convinces the trier of fact of the accused's guilt beyond a reasonable doubt. If the trier of fact believes the exculpatory evidence of the accused, an acquittal must follow. However, even if the trier does not believe that evidence, the trier must ask him or herself if it nonetheless gives rise to a reasonable doubt. Finally, if the trier does not believe the accused and is not left in doubt on the basis of that evidence, the trier must still address and resolve the most critical, in fact, the only question in every criminal case: Does the evidence as a whole convince the trier of guilt beyond a reasonable doubt?
[51] Later in his reasons, at the outset of his credibility and reliability analysis, the trial judge repeated the need to be focussed on reasonable doubt and not on trying to resolve the broad factual question of what happened:
[60] I wish to first refer to the comments of Justice Cromwell (as he then was) in R. v. Mah, 2002 NSCA 99, at para 41:
41 The W. (D.) principle is not a "magic incantation" which trial judges must mouth to avoid appellate intervention. Rather, W. (D.) describes how the assessment of credibility relates to the issue of reasonable doubt. What the judge must not do is simply choose between alternative versions and, having done so, convict if the complainant's version is preferred. W. (D.) reminds us that the judge at a criminal trial is not attempting to resolve the broad factual question of what happened. The judge's function is the more limited one of deciding whether the essential elements of the charge have been proved beyond reasonable doubt: see R. v. Avetysan, [2000] 2 S.C.R. 745, [2000] S.C.J. No. 57 (S.C.C.), at 756. As Binnie, J. put it in Sheppard, the ultimate issue is not whether the judge believes the accused or the complainant or part or all of what they each had to say. The issue at the end of the day in a criminal trial is not credibility but reasonable doubt.
[Emphasis by the trial judge]
[52] After detailing what he saw as the problems with the complainant’s credibility and reliability, particularly as it compared to defence evidence and other evidence, he concluded:
[68] Events may have happened as the complainant described. It is not my role to determine what happened in the living room that night or whether I prefer the evidence of the complainant more than the person charged. The question I have to answer is whether, based on all of the evidence, the Crown has proved beyond a reasonable doubt that Mr. G. committed a sexual assault.
[69] Having considered all of the evidence I find that I am left with a reasonable doubt as to whether Mr. G. intentionally touched the complainant.
[70] I find Mr. G. not guilty of the charge of sexual assault.
[Emphasis added]
[53] The Crown puts its argument as follows:
92. Even if A.H. had exaggerated, she could not have been inaccurate about touching having occurred, given the Respondent admitted to touching her. As stated, the Trial Judge did not believe the touching was accidental. He did not accept the Respondent’s evidence on this issue. When applying the third step of W.(D.), disbelieved evidence of an accused does not constitute evidence that can raise a reasonable doubt. (R. v. Haroun [1997] 1 SCR 593 at para. 20)
[Emphasis added]
[54] At the hearing, Mr. O’Leary acknowledged R. v. Haroun,[1] at para. 20, does not in fact stand for the proposition set out in para. 92 of the Crown’s factum. The concession is appropriate.
[55] In Haroun, the respondent stood trial on a murder charge. The respondent admitted he had committed manslaughter, but due to depression and consumption of alcohol lacked the intent to commit murder. Expert evidence was called. The trial judge attempted (but did not accurately follow) the suggested W.(D.) model. The jury convicted the respondent of murder.
[56] The majority of the Quebec Court of Appeal (Beauregard J.A., Philippon J. ad hoc concurring) allowed the appeal and ordered a new trial ([1996] J.Q. No. 67; 115 C.C.C. (3d) 261).
[57] Beauregard J.A. wrote as follows:
16 J'accepte l'argument de l'avocat de l'appelant suivant lequel il est erroné de dire à un jury de ne pas mettre dans la balance le témoignage d'un accusé que le jury ne croit pas. Il est exact qu'en toute logique un témoignage non cru ne prouve rien. Mais l'accusé n'a rien à prouver et, en bout de piste, le témoignage de l'accusé doit être pris en compte lorsque le jury se demande si l'ensemble de la preuve le persuade hors de tout doute raisonnable de la culpabilité de l'accusé.
…
19 Parce qu'après avoir tenté de diriger le jury suivant R. c. W.(D.), le juge a répété qu'un témoignage non cru ne constitue pas "de la preuve":
Alors il est de votre devoir de vous consulter d'abord, de discuter entre vous et de délibérer, c'est-à-dire d'envisager tous les aspects de la cause, de réfléchir et de tenter de vous entendre sur un verdict, un verdict juste et légal, c'est-à-dire un verdict fondé, basé uniquement et exclusivement sur la preuve qui a été faite devant vous. Alors seuls les faits révélés par les témoins qui ont été entendus et que vous avez décidé de croire constituent de la preuve, y compris en plus [...] les exhibits et les admissions.
20 Rapprochant la première et la deuxième directives, l'avocat de l'appelant nous propose que, si le jury suivait l'enseignement du juge et s'il n'était pas disposé à croire l'accusé, il ne pouvait avoir un doute raisonnable: un témoignage cru permet le doute raisonnable; un témoignage non cru ne constitue pas "de la preuve" et, en conséquence, ne sert à rien; donc un témoignage non cru ne peut susciter un doute raisonnable.
[58] Canada Law Book’s Canadian Criminal Cases (115 C.C.C. (3d) 261, at pp. 264-5) reports his reasons as follows:
I accept the argument of counsel for the appellant according to which it is an error to say to a jury not to take into consideration the accused’s testimony which the jury does not believe. It is correct that logically speaking, testimony not believed proves nothing. But the accused has nothing to prove and, at the end of the day, the accused’s testimony must be taken into consideration when the jury asks itself whether the whole of the evidence persuades it beyond a reasonable doubt that the accused is guilty.
[…]
Because after attempting to charge the jury in accordance with R. v. W.(D.), the judge repeated that testimony not believed does not constitute “proof” [translation]:
It is your duty to consult yourselves first, to discuss amongst yourselves and to deliberate, that is to envisage all the aspects of the case, to reflect and to attempt to agree among yourselves on a verdict, a fair and legal verdict, that is a verdict based solely and exclusively on the evidence called before you. Only the facts disclosed by the witnesses who were heard and that you have decided to believe constitutes proof, including in addition … the exhibits and the admissions.
Counsel for the appellant argues that the second and third instructions are erroneous. He argues that, if the jury followed the judge’s instructions and if they were inclined to believe the accused, there could not have been a reasonable doubt: testimony which is believed permits a reasonable doubt; testimony which is not believed does not constitute “proof” and, as a result, is useless; therefore testimony not believed cannot give rise to a reasonable doubt.
[59] Deschamps J.A., as she then was, dissented because there was no conflict for the jury to resolve about what the respondent had consumed. The W.(D.) formula was not sacrosanct and the jury charge taken as a whole was sufficient. Intervention was not warranted. She wrote:
27 Il est vrai que le juge a surtout traité de la preuve de façon globale. L'appelant cite d'ailleurs neuf extraits des directives où le juge commente le rôle du jury dans son appréciation de la preuve dans son ensemble. L'appelant plaide que le juge n'a pas suivi le modèle de directives suggérées par la Cour suprême dans R. c. W.(D.).
28 Eu égard au fait que l'appelant avait témoigné pour sa défense, il aurait été plus prudent et les directives n'en auraient été que plus claires si le juge avait, de façon distincte, traité de la règle voulant que la défense bénéficie du doute raisonnable quant à la crédibilité de l'appelant. L'appelant ne m'a cependant pas convaincue qu'il y a lieu d'intervenir.
29 En effet, d'une part, le juge a beaucoup insisté sur la suffisance d'un doute raisonnable sur l'intention de l'appelant pour permettre au jury de ne prononcer qu'un verdict d'homicide involontaire; d'autre part, le jury n'était pas confronté à des versions contradictoires. Seul l'appelant a témoigné de sa consommation. Son témoignage quant aux quantités consommées n'est d'ailleurs pas des plus précis. Outre les policiers appelés sur les lieux, son fils et sa fille ont témoigné de son attitude dans les moments qui suivirent l'homicide. Aucune version ne peut être qualifiée de contradictoire avec le témoignage de l'appelant. En ce sens, l'appréciation du témoignage de l'appelant pouvait difficilement être faite indépendamment de la preuve dans son ensemble. Il ne s'agissait pas comme dans R. c. W.(D.) d'apprécier des témoignages contradictoires donnés en défense et en poursuite.
30 La Cour l'a répété à plusieurs reprises, la formule de R. c. W.(D.) n'est pas sacramentelle. Les directives doivent être évaluées de façon globale. En l'occurrence, selon moi, elles ne prêtent pas à intervention.
[60] The C.C.C. version reports her reasons as follows:
It is true that the judge mostly dealt with the evidence in a global manner. The appellant furthermore quotes nine extracts from the charge where the judge commented on the role of the jury in the assessment of the evidence as a whole. The appellant argues that the judge did not follow the model charge suggested by the Supreme Court in R. v. W.(D.), [1991] 1 S.C.R. 742, 63 C.C.C. (3d) 397.
Having regard to the fact that the appellant testified in his defence, it would have been more prudent and the instructions would have been even clearer if the judge had dealt separately with the rule to the effect that the defence gets the benefit of the reasonable doubt with respect to the appellant's credibility. The appellant has not however convinced me that it would be proper to intervene.
On the one hand, the judge stressed that a reasonable doubt about the appellant's intention was sufficient to permit the jury to render a manslaughter verdict; on the other hand, the jury was not confronted with contradictory versions. Only the appellant testified with respect to his consumption (of drugs and alcohol). His testimony with respect to the quantities consumed is not the most specific either. Besides the police officers called to the scene, his son and daughter testified as to his attitude in the moments which followed the homicide. No version can be characterized as contradicting the appellant's version. In this sense, one could difficultly [sic] assess the appellant's testimony independent of the evidence as a whole. This is not a case like in R. v. W.(D.) where the jury had to assess contradictory testimony called by the defence and the Crown.
The Court repeated the formula in R. v. W.(D.) several times; it is not the only way. The instructions must be assessed globally. In the case at bar, in my view, they do not merit intervention.
p. 266-7
[61] The Crown appealed to the Supreme Court, as of right. La Forest J., for the majority (L’Heureux-Dubé and Gonthier JJ.), adopted without comment or elaboration Justice Deschamps’ dissent:
[1] For the reasons given by Deschamps J.A., dissenting in the Quebec Court of Appeal, [1996] Q.J. No. 67 (QL), J.E. 96-357, [ante, p. 263] I would allow the appeal, set aside the judgment of the Court of Appeal and restore the conviction for second degree murder.
[1997] 1 S.C.R. 393
[62] Sopinka J. in dissent (Major J. concurring) firmly rejected the concept that disbelieved evidence is to be siloed from the trier of facts’ determination whether the Crown’s case had been proven beyond a reasonable doubt. He explained:
[16] In the case at bar, the trial judge instructed the jury that the evidence is nothing other than what the jury believes and accepts out of the testimony and the exhibits. He then told them that even if they did not believe the accused's testimony, if they had a reasonable doubt "on the basis of the evidence as a whole" they had to acquit on the charge of second degree murder. Finally, he repeated that "only the facts disclosed by the witnesses you heard and have decided to believe constitute evidence". What these passages suggest is that if the jury did not believe the accused or Dr. Talbot, their testimony was by definition not included in "the evidence" and therefore could not be considered when the jury asked itself whether it had a reasonable doubt on the basis of the evidence as a whole. In other words, the trial judge clearly instructed the jurors that if they did not believe the accused, they could find a reasonable doubt only in the testimony of any other witnesses they had decided to believe.
[63] Sopinka J. added it would be wrong to have a trier of fact parse out of their deliberations evidence it has disbelieved:
[20] However, in the case at bar it is the appellant [Crown] who is proposing that the charge be subjected to minute scrutiny. It is by reading the charge as a whole that the error can be seen: since the disbelieved testimony of the accused does not constitute evidence, it cannot raise a reasonable doubt. There is therefore a reasonable possibility that the jury might have been misled by these misdirections.
[64] I see nothing in the reasons of Deschamps J.A., which the majority of the Supreme Court adopted, that is in any way contrary to Justice Sopinka’s analysis of the relevant principles.
[65] The Crown acknowledges it could find no cases to support its proposition that considering disbelieved evidence in the third step amounts to legal error. Instead, it points to comments by Justice Paciocco, writing extra-judicially, in his article, “Doubt about Doubt: Coping with R. v. W.(D.) and Credibility Assessment” (2017) 22 Can Crim L Rev 3. In that article, he wrote about the third W.(D.) step as follows:
The third component of the W. (D.) framework states:
“Thirdly, 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 you do accept, you are convinced beyond a reasonable doubt by the evidence of the guilt of the accused.”
This third component differs from the other two W. (D.) rules. They focus solely on the “inconsistent” or exculpatory evidence, whereas this component of the W. (D.) framework examines the sufficiency of the remaining evidence after the inconsistent or exculpatory evidence is rejected in its entirety, or “totally rejected” as untrue, beyond a reasonable doubt. In this sense, this rule reflects a proposition that applies in all criminal cases, even if no exculpatory evidence had ever been presented; the accused should not be convicted unless the evidence that is credited proves the guilt of the accused beyond a reasonable doubt.
p. 14-5 [Emphasis added]
[66] The logic of Justice Paciocco’s suggestion is unassailable. How can evidence that has been totally rejected as untrue, beyond a reasonable doubt, nonetheless play a role in a trier of fact’s ultimate determination?
[67] In all likelihood, it would not. But to accept that a jury should be told, or a judge must exclude from their consideration, admissible evidence in its ultimate determination of guilt or innocence would be highly problematic. It invites examination of evidence in a piecemeal fashion—a concept long ago rejected in R. v. Morin, [1988] 2 S.C.R. 345.
[68] In Morin, the jury at his first trial acquitted. The Ontario Court of Appeal ordered a new trial. The Supreme Court affirmed. Sopinka J., for the majority, rejected any piecemeal evidence assessment, including in cases which hinge on the credibility of defence evidence. Instead, the trier of fact must assess defence evidence in the context of all of the evidence:
[28] The appellant submits, citing R. v. Challice (1979), 45 C.C.C. (2d) 546 (Ont. C.A.), that different considerations apply where the credibility of defence evidence is at issue. In such cases the argument is that the defence evidence does not have to be believed but "only has to raise a reasonable doubt". That does not mean, however, that the defence evidence or the evidence which it contradicts or explains is to be examined piecemeal. The judgment of Morden J.A. in Challice, supra, which the appellant agrees expresses the traditional view and is consistent with the judgment of this Court in Nadeau v. The Queen, [1984] 2 S.C.R. 570, and R. v. Thatcher, [1987] 1 S.C.R. 652, correctly states the law in the following passage (at p. 557):
Understandably, a jury have to give careful consideration to issues of credibility when deliberating upon their verdict, and with respect to various pieces of evidence they may have differing views: total acceptance, total rejection, or something in between. An effective and desirable way of recognizing this necessary part of the process, and putting it to the jury in a way that accurately comports with their duty respecting the burden and standard of proof, is to instruct the jury that it is not necessary for them to believe the defence evidence on a vital issue -- but that it is sufficient if it, viewed in the context of all the evidence, leaves them in a state of reasonable doubt as to the accused's guilt: see R. v. Lobell, [1957] 1 Q.B. 547 at p. 551, per Lord Goddard, C.J. [Emphasis added.]
[69] Here, as noted, the Crown interprets Justice Paciocco’s discussion as requiring exclusion from the deliberative process on guilt or innocence all defence evidence that has been rejected on the criminal standard of beyond a reasonable doubt. Justice Sopinka in Morin explained why, in his view, this approach would be wrong in principle and unworkable in practice:
[36] The argument in favour of a two-stage application of the criminal standard has superficial appeal in theory but in my respectful opinion is wrong in principle and unworkable in practice. In principle it is wrong because the function of a standard of proof is not the weighing of individual items of evidence but the determination of ultimate issues. Furthermore, it would require the individual member of the jury to rely on the same facts in order to establish guilt. The law is clear that the members of the jury can arrive at their verdict by different routes and need not rely on the same facts. Indeed the jurors need not agree on any single fact except the ultimate conclusion. See Wigmore on Evidence (Chadbourn rev. 1981,) vol. 9, § 2497, at pp. 412-14; R. v. Lynch, Malone and King (1978), 40 C.C.C. (2d) 7 (Ont. C.A.), at p. 19; R. v. Bouvier (Ont. C.A.), supra, at pp. 264-65; R. v. Moreau (1986), 26 C.C.C. (3d) 359 (Ont. C.A.), at p. 389; R. v. Agbim, [1979] Crim. L.R. 171 (C.A.); R. v. Thatcher (1986), 24 C.C.C. (3d) 449 (Sask. C.A.), at p. 510, appeal dismissed, [1987] 1 S.C.R. 652, at p. 697.
[37] The matter is summed up in Cross on Evidence, op. cit., at p. 146:
It has been held by the Court of Appeal that it is unnecessary for a judge to direct the jury that it must be unanimous with regard to even one item of evidence bearing upon a particular count before convicting on it. It seems to be enough that all members of the jury find the accused guilty upon the basis of some of the facts bearing upon that count.
[38] In practice it is not practical not only because the jury would have to agree on the same facts but what individual facts prove. Individual facts do not necessarily establish guilt but are a link in the chain of ultimate proof. It is not possible therefore to require the jury to find facts proved beyond a reasonable doubt without identifying what it is that they prove beyond a reasonable doubt. Since the same fact may give rise to different inferences tending to establish guilt or innocence, the jury might discard such facts on the basis that there is doubt as to what they prove.
[70] I would respectfully agree. To accede to the Crown’s suggestion would be to elevate the language in the suggested jury charge in W.(D.) to a statutory formula—with the consequence that a judge who does not follow its strictures, commits legal error. Only the evidence the jury or the judge has decided to accept would be considered in the third step of the W.(D.) framework.
[71] Such an approach would be contrary to the thousands of appellate cases which have reinforced the reality that the W.(D.) formula is not a magic incantation. The fundamental purpose of the formula is to ensure triers of fact do not simply view the outcome of a criminal trial as a credibility contest—to chose one side over another (R. v. Cyr, 2012 ONCA 919, at paras. 48-53). To do so misapplies the burden of proof. At the end of the day, the key is whether the trier of fact understood the correct burden and standard of proof (see: R. v. Lifchus, [1997] 3 S.C.R. 320, at para. 41).
[72] Justice Paciocco’s own article recognizes the imperfect language of the suggested W.(D.) jury charge and the importance of keeping foremost the underlying purpose and principles of the suggested framework it advocates:
First, the W. (D.) framework is stated imperfectly. As will be illustrated, the rules that it articulates are imprecise reflections of its underlying principles. “Subtleties and complexities ... [left unaddressed in the W. (D). framework] can cause judges to misapply or misunderstand its various aspects.” The rule can best be understood, then, not by its language, but through its underlying purpose and the principles that purpose generates.
Second, although accurate references to the rule can reduce the risks of appellate intervention, compliance with the rules is a matter of substance, not form. Although it is helpful to do so, it is not enough to state the framework accurately. A judge's reasoning must conform to the underlying principles. In R. v. Y. (C.L.) the Supreme Court of Canada found, for example, that a trial judge who had properly articulated the test had inadvertently shifted the burden of proof in her reasoning, and so the conviction was overturned.
p. 3 [Emphasis added]
[73] There are also authorities that eschew any approach that would silo disbelieved defence evidence. For example in R. v. Dinardo, 2008 SCC 24, Charron J., for the unanimous Court, wrote:
[23] The majority rightly stated that there is nothing sacrosanct about the formula set out in W. (D.). Indeed, as Chamberland J.A. himself acknowledged in his dissenting reasons, the assessment of credibility will not always lend itself to the adoption of the three distinct steps suggested in W. (D.); it will depend on the context (para. 112). What matters is that the substance of the W. (D.) instruction be respected. In a case that turns on credibility, such as this one, the trial judge must direct his or her mind to the decisive question of whether the accused's evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt. Put differently, the trial judge must consider whether the evidence as a whole establishes the accused's guilt beyond a reasonable doubt. In my view, the substantive concerns with the trial judge's decision in this case can better be dealt with under the rubric of the sufficiency of his reasons for judgment.
[Emphasis added]
[74] In R. v. D.S.C., 2004 NSCA 135, Cromwell J.A., as he then was, writing for the Court, emphasized it is the whole of the trial evidence that is to be considered. He explained:
[21] That said, however, there is no question that the W.(D.) principle applies equally to the reasoning processes of judges and juries. A trial judge will be found to have erred, if upon review of the judge's reasons in light of the trial record, it appears that he or she simply chose between alternative versions offered by the Crown and the defence and, having done so, convicted if the Crown's version was preferred: see, for example, R. v. Mah (2002), 207 N.S.R. (2d) 262; [2002] N.S.J. No. 349 (Q.L.)(C.A.). Failure to specifically refer to the W.(D.) principle is not fatal on its own in a judge alone trial. The W.(D.) principle is not a magic incantation which trial judges acting as triers of fact must mouth to avoid appellate intervention. The question for the appellate court in a judge alone case is whether, upon consideration of the whole of the judge's decision and the evidence at trial, it appears that the judge did not apply the proper test and therefore did not apply his or her mind to the possibility that despite having rejected the evidence of the respondent, there might nevertheless be a reasonable doubt: R. v. Brown (1994), 132 N.S.R. (2d) 224; Sheppard at para. 65.
[Emphasis added]
[75] Binnie J., for the Court, in R. v. Sheppard, 2002 SCC 26, expressed the same point—rejected defence evidence can still be considered in the question of whether the Crown has established guilt beyond a reasonable doubt:
[65] Their problem, clearly, was their inability to assess whether the principles of R. v. W. (D.), [1991] 1 S.C.R. 742, at p. 757, had been applied, namely, whether the trial judge had addressed his mind, as he was required to do, to the possibility that despite having rejected the evidence of the respondent, there might nevertheless, given the peculiar gaps in the Crown's evidence in this case, be a reasonable doubt as to the proof of guilt. The ultimate issue was not whether he believed Ms. Noseworthy or the respondent, or part or all of what they each had to say. The issue at the end of the trial was not credibility but reasonable doubt.
[Emphasis added]
[76] Quite apart from my view that it is not legal error for rejected defence evidence to be considered in the third step of the W.(D.) framework, the Crown faces an insurmountable problem—the trial judge never actually rejected the respondent’s evidence that any touching had not been intentional.
[77] The trial judge clearly had doubts about the credibility of the respondent. Yet all he actually said was that “Having considered the evidence of Mr. G. carefully I find I do not believe all of the defendant’s evidence” (para. 61; emphasis added).
[78] The trial judge in the second step of the W.(D.) framework concluded:
[62] I also find that Mr. G.'s evidence does not alone raise a reasonable doubt that the touching was unintended for the reasons expressed above. I therefore need to proceed to the third step of W.(D.), an assessment of the evidence as a whole.
[Emphasis added]
[79] I have already quoted the trial judge’s concluding paragraphs. He properly directed himself it was not a question of preference between the complainant’s and respondent’s evidence. He asked himself, based on all of the evidence, had the Crown proven beyond a reasonable doubt the respondent committed a sexual assault.
[80] In light of all of the evidence, the judge found he had a reasonable doubt any intentional touching had occurred. This factual finding mandated an acquittal.
[81] I find no legal errors in the trial judge’s reasons. As a result, this Court lacks jurisdiction to intervene and I would dismiss the appeal.
Beveridge J.A.
Concurred in:
Derrick J.A.
Beaton J.A.