Nova Scotia Court of Appeal
Citation: R. v. J.P., 2014 NSCA 29
Date: 20140325
Docket: CAC 412682
Registry: Halifax
Between:
J.P.
Appellant
v.
Her Majesty the Queen
Respondent
Restriction on Publication: Pursuant to s. 486 of the Criminal Code of Canada
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Judges: |
Oland, Beveridge and Farrar, JJ.A. |
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Appeal Heard: |
September 25, 2013, in Halifax, Nova Scotia |
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Held: |
Appeal allowed, convictions quashed and new trial ordered, per reasons for judgment of Beveridge, J.A.; Oland and Farrar, JJ.A. concurring. |
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Counsel: |
Elizabeth Cusack, Q.C., for the appellant Marian Fortune-Stone, Q.C., for the respondent |
Order restricting publication – sexual offences
486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C‑34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C‑34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
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Editorial Notice
Identifying information has been removed from this electronic version of the judgment. |
Reasons for judgment:
INTRODUCTION
[1] In March 2010 a young woman disclosed to a friend, and then to various members of her family, that she had been the victim of inappropriate behaviour and touching by her uncle. Police were contacted. They took statements; charges of sexual assault, touching a person under the age of 14 for a sexual purpose, and inviting a person under the age of 14 to touch for a sexual purpose, followed. Her uncle is the appellant.
[2] The appellant was tried by The Honourable Justice Patrick J. Murray of the Nova Scotia Supreme Court, in a judge alone trial from June 12 to June 21, 2012. Justice Murray convicted the appellant on all charges in oral reasons for judgment delivered on August 20, 2012.
[3] The appellant was subsequently sentenced to twelve months’ incarceration for the offence of sexual assault. Concurrent sentences were imposed for the other offences. There was no request for a judicial stay of those offences pursuant to the Kienapple principle (the prohibition against multiple convictions for the same wrong).
[4] An eighteen month period of probation was also ordered. The usual ancillary orders were decreed. Justice Murray’s reasons are reported (2012 NSSC 365 and 2013 NSSC 65).
[5] The appellant appeals, as of right, from conviction. The grounds of appeal complain of legal error by the trial judge in failing to take judicial notice of weather conditions in Cape Breton, misapplication of the burden of proof in a criminal case, misapprehension of evidence, and that the trial judge committed a number of errors in his approach to, and in his findings of fact. In this latter regard, perhaps it is best to say the appellant suggests the verdicts are unreasonable and unsupported by the evidence.
OVERVIEW
[6] Like the vast majority of allegations of historical sexual assault, this was clearly a difficult case for the parties, and the trial judge. The appellant was 63 years old when he was required to defend himself on allegations that 18 years previous he started sexually assaulting H.M., his then six year old niece. The assaults were described as continuing for six years, from 1994 to 2000—only ending when the appellant exposed himself and asked the complainant if she wanted to touch his penis. It was this triggering event that was said to have caused the complainant to understand that what had been happening was not normal.
[7] Ten years passed. The appellant moved to Alberta for employment and remarried. The complainant disclosed her allegations of unwanted touching and behaviour to a friend, then to another friend, and then to her mother. The allegations were discussed with other family members. It appears that the family was troubled that perhaps the appellant had touched other young members of the extended family. No such concern crystallized.
[8] In any event, the police were called. The complainant spoke with Cst. Sam Cote. Details of her allegations were revealed. A video-taped statement was then given to Cst. Lisa MacDonald. The complainant’s evidence at trial differed from what she told these officers, and also to what her evidence was at the Preliminary Inquiry.
[9] For now it is sufficient to set out the essence of her complaint. She testified that the inappropriate behaviour by the appellant started when she was six. She said that at that time she lived with her mother and brother in her grandparents’ home in […], Cape Breton Regional Municipality. It was a large house, and upwards of 13 people would be living there at any given time.
[10] The appellant would visit at least twice a week with his wife, R. The exception to this general routine would be when R. was on the outs with her family. This was accepted as being not uncommon, and could last for days, weeks or even months at a time. In any event, when the appellant did visit, he was a most welcome guest.
[11] H.M. said things first started in her grandfather’s den. The appellant asked her for a kiss and when she went to do so, he turned his head. The kiss was not just on the lips, but also involved the appellant inserting his tongue into her mouth. Within a few months she said he started taking her in his car, a red Grand Prix, to a cemetery. The pretext was that he was going to Tim Hortons to get coffee for the adults.
[12] Instead of, or in addition to getting coffee, she said he would drive to a local cemetery. The inappropriate touching would occur when she sat on his lap while she ‘drove’ the car. He would assist her in getting over the centre console. Once on his lap, she said she would steer while he operated the pedals. While this was happening, she described the appellant putting his hands under her top and rubbing her chest, and down her pants.
[13] The trips to the cemetery would happen almost every time he came to visit, which she said was twice a week. Kissing incidents in the house apparently continued. Everything stopped when one day, also in the den, the appellant pulled out his penis when he was seated on the couch and asked the complainant if she wanted to touch it. It was this event that caused her to have an epiphany—this was not normal behaviour. Apparently, up to that time, none of the appellant’s behaviours had alarmed her or had been considered to be out of the ordinary.
[14] How can anyone prove a negative? The appellant tried to do so in a variety of ways. First of all he testified and absolutely denied any inappropriate behaviour. I will set out in more detail his evidence later. In addition, the appellant called the Warden of the local parish, W.A.L..
[15] Mr. L. was an independent witness. Records were consulted, and an exhibit prepared showing who was buried in the cemetery, and when, for the period between 1990 and 2000. He testified that he had been looking after the cemetery since 1969 or 1970. It was not plowed in the winter. The only time he recalled it being plowed was when he had it done in 2002 for the burial of his mother. In his view, there was a lot of snow there in the winter.
[16] Mr. L. described the layout of the cemetery, and the presence of a chain across the entrances, but people who visited would often not put it back up. He also described a house that was close to the cemetery. He visited the cemetery every week. On questioning by the trial judge, he said he never saw the appellant there.
[17] A great deal of time was spent during the trial with the introduction of photographs of the house on […] Avenue and of the cemetery. In addition, the appellant introduced his employment records for the years he worked at […], 1990 to being laid off in 1999. These records showed the shifts he worked, and the times he was off for courses or union business. He also testified, which was not challenged, that he then worked at the fish plant in […] seven days a week for four or five months.
[18] The appellant introduced records from the Registry of Motor Vehicles that established that he did not own a Grand Prix until October 8, 1997. The only other vehicle he owned during the relevant time frame of 1994 to 2000 was a 1988 Chrysler LeBaron. The records from the Registry showed that he acquired that vehicle in September 1994. The appellant transferred the LeBaron to a new owner in March 1998.
[19] The uncontradicted evidence of the appellant was that the LeBaron was wine coloured with a beige interior. There were no bucket seats, nor a centre console; it had a full bench front seat.
[20] The appellant denied ever being alone with the complainant in the den except when he helped her with homework. The adults would usually congregate in the kitchen. While he did not smoke, many family members did. He often left the kitchen to avoid the smoke. The appellant was well liked by all of the family, including the children.
[21] J.M., the brother of the complainant, testified that he viewed the appellant like a father. They spent a lot of time together, watching sports on TV, fishing, and playing catch. H.M. would be with them a lot, but, he said that the appellant would only ask H.M. to go to Tim Hortons. Although J.M. said he went to the store and other places with the appellant, he never went to Tim Hortons with him.
[22] The appellant denied taking H.M. alone to Tim Hortons; when he did go, other children also came; it was only for a short trip since the closest Tim Hortons was just minutes away in […]—in the opposite direction from the cemetery.
DECISION BY THE TRIAL JUDGE
[23] The decision by the trial judge was not an off-the-cuff oral decision. The judge reserved the right to edit the transcript if his reasons were subsequently released in writing.
[24] The decision, in its written format, is about 55 pages long. The judge took some care to direct himself on the burden of proof in a criminal case. Early on in his reasons he said:
[10] I note here that I have described the nature of the allegations in a general way, ever mindful of the need to analyze the evidence in detail, including any inconsistencies. So too, I am mindful throughout of how the Crown has the burden of proof, and that the burden never leaves the Crown, it being to establish the essential elements of the offences beyond a reasonable doubt. The accused, Mr. P., has to prove nothing. It is the Crown that has the burden.
[25] He added shortly afterwards:
[13] Thus, I wish to say further at the outset, that the onus of proof, which I have already said, is beyond a reasonable doubt, applies equally to the issue of credibility, and that I must be satisfied on the basis of that standard, whether evidence given is credible or not. Any reasonable doubt must be resolved in favour of the accused. Credibility is a question of fact.
[26] There’s more. The trial judge expressly recognized the need to apply the imperative not to let a credibility contest distort the need to respect the fundamental precept of proof beyond a reasonable doubt. The model jury instruction crafted by Cory J. in R. v. W. (D.), [1991] 1 S.C.R. 742 was designed to ensure juries did not distort that contest. The trial judge correctly directed himself as follows:
[17] This is a so-called W.D. case. Mr. P. gave evidence in his own defence. Therefore the well known case of R. v. W.(D), [1991] 1 SCR 742, 1991 CanLII 93 (SCC) applies, and if I believe the accused I must acquit him. Even if I do not believe him, I must ask whether his evidence leaves me with a reasonable doubt, in which event if it does, I must acquit him. Even if I am not left with a reasonable doubt, I must move on to further consider on the whole of the evidence whether the Crown has established the guilt of the accused beyond a reasonable doubt.
[18] The case law authority states the three part test need not be cited verbatim. The point of W.D., and its rationale, is for the Court to never lose sight of, and to always been mindful (that) the burden lies with the Crown to establish guilt beyond a reasonable doubt. That is the burden of proof. It is the Crown who must meet the burden, not the accused, in this case Mr. P.
[19] And so I may, according to W.D., accept all, part, or none of what a witness or a set of witnesses may say. Credibility here, as I’ve said, is extremely important, and the test in W.D. must be scrupulously applied. The test is designed not to simply allow the Court to apply the burden of proof as a credibility contest between the complainant and the accused. This is so notwithstanding that the only two parties, truly in a position to know are H.M. on behalf of the Crown, (as well as other Crown witnesses); but in particular H.M., and Mr. P. on his own behalf.
[27] The trial judge set out the respective positions of the Crown and the defence, more or less accurately. As one would expect, the Crown argued there were bound to be inconsistencies and contradictions, but there was opportunity for the appellant to have committed the acts alleged by the complainant, who was a truthful and credible witness.
[28] The defence, predictably, said otherwise. The appellant had little or no opportunity to have committed the alleged offences—they could not possibly have happened twice a week over a six year period; and if they did not happen as alleged, they did not happen at all. There were too many contradictions and inconsistencies in the evidence of the complainant to permit a conclusion that the allegations were proven beyond a reasonable doubt.
[29] The trial judge then set out the substance of the evidence about the house, the cemetery, and a précis of the appellant’s evidence. The judge analyzed the evidence about lack of opportunity. He concluded that opportunity existed on the basis of the layout of the house. Counsel for the appellant asked the trial judge to take judicial notice that snow and winter conditions would have prevented visits to the graveyard in the winter; hence no opportunity for the offence to have been committed as alleged by the complainant.
[30] The trial judge was prepared to say that he would accept that it usually snows in winter in Cape Breton, particularly in January and February, and it could also snow in other months, sometimes in abundance. From all of this, he recognized that it is a reasonable inference that visits to the graveyard in the winter months ranged from difficult to impossible without plowing. But on the other hand, such visits may have been entirely possible. The judge concluded:
[78] I have considered all of the foregoing in terms of opportunity and I am satisfied, for the reasons I have indicated, that Mr. P. did have the opportunity to commit these offences, in spite of the things he was doing and involved in. I have no doubt he was a busy man, but I am satisfied beyond a reasonable doubt that he still had the opportunity…
[31] The trial judge then turned his attention to the contradictions and inconsistencies in the Crown’s case. He said that there were 19 or 20 examples of contradictions or inconsistencies. The judge announced that he would deal with those that he considered to be of the most important or the most challenging in terms of credibility. He discussed and analyzed six, but said he had considered them all. I will refer to some of his analysis later.
[32] Although some of the inconsistencies and contradictions were said by the judge to have been troubling or cause for concern, there were some key pieces of evidence that swayed the judge’s view of the credibility of the appellant’s exculpatory evidence in favour of the inculpatory evidence. He found as a fact that the complainant was a credible witness; her evidence had what he called “the ring of truth to it” (¶127).
[33] After his analysis, the judge concluded as follows:
[129] Mr. P., as I said, is presumed innocent. I reject, however, the testimony of Mr. P. as to the lack of opportunity. Further, I do not accept or believe his evidence that he did not commit these offences, and having done so I have asked still whether his evidence gives rise to a reasonable doubt, or leaves me with a reasonable doubt. It does not.
[130] On the totality of the evidence I am satisfied the Crown has established proof beyond a reasonable doubt that Mr. P. committed the three offences in the indictment as amended, including each element thereof. I note in concluding there was virtually no evidence presented as to a motive to lie, and that it was not a live issue in this case.
ISSUES
[34] With this background I will return to the appellant’s complaints of error. The appellant reformulated his original six grounds of appeal. There is considerable overlap in the complaints. The Crown summarized the issues raised by the appellant as:
(i) Did the trial judge make overriding and palpable errors in his factual findings and application of those facts to the burden of proof?
(ii) Did the trial judge err in fact and law by failing to take judicial notice of snow and winter conditions in Cape Breton in the context of the evidence as a whole concerning the […] cemetery in […], N.S.?
(iii) Did the trial judge err in law or mixed law and fact by his application of recovered memory principles to H.M.’s testimony so as to explain her inconsistencies?
(iv) Did the trial judge assess the Appellant’s credibility based upon his ethnicity, manner of speaking and demeanor?
(v) Did the trial judge’s credibility assessments shift the burden of proof to the Appellant and in so doing, ignore the third step of W.(D.), [1991] 1 S.C.R. 742.
[35] This list is a fair and accurate summary of the appellant’s complaints. The parties in effect refined these further in the course of their submissions into four: error of law in failing to take judicial notice of snowy winter conditions; the verdicts are unreasonable and unsupported by the evidence; misapprehension of evidence; and the trial judge erred in law by not respecting the criminal burden of proof.
Judicial Notice
[36] Although the appellant frames his complaint as being one of failing to take judicial notice of snowy winter conditions in Cape Breton, in reality the appellant is disappointed that the judge failed to place sufficient significance on winter conditions in assessing the reliability or credibility of the complainant’s evidence. I will explain.
[37] Recall that the complainant testified that within a few months of the first kiss, the appellant began taking her to the cemetery, where he touched her inappropriately. She said the trips happened almost every time the appellant came to the house. The complainant made no exception about seasons.
[38] Neither party called expert evidence nor submitted documentary evidence about the winter weather conditions for the years 1994 to 2000. The only witness who spoke to the weather was W.L.. With respect to the amount of snow, he testified:
Q. Okay. What is your recollection of how much snow there would have been in the winters in those years compared to now?
A. Oh, there’s quite a bit of snow in there all the time.
[39] Mr. L. spoke of his experience in plowing his own driveway during those years with a four-wheeler, and the fact that sometimes he had to have a backhoe clear the snow. As caretaker he said he knew the cemetery had not been plowed at all during the years 1994 - 2000. His evidence was unchanged in cross-examination. The Crown attempted to soften the effect of Mr. L.’s evidence:
Q. Okay. So you’re not giving evidence that that cemetery was inaccessible the entire winter, correct, between 1994 and 2000?
A. I don’t unders...
Q. Are you suggesting, sir, that that cemetery was inaccessible?
A. That it wasn’t plowed.
Q. No. Inaccessible, meaning people could not get in there between 1994 and 2000 during the winter months.
A. That’s right, unless they plowed it.
Q. Okay. Unless there was snow on the ground that required it to be plowed.
A. Yeah. Uh-huh.
[40] Mr. L. acknowledged that he could not comment on how much snow was on the ground in the cemetery between 1994 and 2000.
[41] In my view, the trial judge did not refuse to take judicial notice that it snowed in Cape Breton during the winter months of 1994 - 2000. In fact, he said he was satisfied that it can be said it usually snows in winter:
[75] In regard to the first criteria and whether the matter is so well known, so notorious as not to be capable of a dispute among reasonable men (I add women), I am satisfied it can be said that it snows in winter. It would be more accurate in my view to say it normally snows in winter, meaning it usually does. Whether it snows less now than in years gone by, may be a common held belief but it is more difficult to say, that that is without dispute. As to what months it snows, that too is anyone’s guess but it would be safe to say that it usually occurs in January and February, but as has been heard in evidence, and as we know, snow can fall in other months, sometimes in abundance. Similarly there are mild winters and severe winters.
[42] In reality, the appellant’s complaint is that the trial judge erred by not taking judicial notice that the graveyard would always have been inaccessible during the winter months of 1994 - 2000. If he had done so, it would have been a telling blow to the reliability and credibility of the complainant’s claims of uninterrupted trips to the cemetery; a reasonable doubt should have followed.
[43] However, there is a considerable difference between taking judicial notice about general weather conditions in the winter in Cape Breton and whether those conditions would have made access to the cemetery impossible. The trial judge appreciated the distinction. He said:
[77] In my view the bare facts for which judicial notice can be taken are few and minimal. The more important point is what inference or conclusion maybe drawn from the fact that it usually snows during the winter months, whatever they maybe. The amount of snow and ice buildup at any given time is beyond the reach of the court as it is dependent on rain, melting conditions, temperatures from time to time, (and snow). It is a reasonable inference that visits to the graveyard would have been more difficult in winter months due to winter conditions, depending on the amount of snow and other conditions at any given time and in any given year. At times it may even have been impossible, without plowing, which was the evidence of Mr. L. in referring to two burials in his evidence. At other times it may have been entirely possible.
[44] I accept that the trial judge could have drawn an inference that winter conditions made the complainant’s evidence about going to the cemetery year round implausible; thereby creating a significant detriment to accepting at face value how she described the frequency of the cemetery trips.
[45] The problem is that the trial judge did not view the complainant’s evidence as being quite as definitive or literal about year round, and hence winter visits, as the appellant wanted. The complainant’s evidence was far from precise on this issue. She could not recall different seasons she went to the cemetery with the appellant. She thought it was warm. On the other hand, she was fairly consistent in saying that the appellant visited, once or twice a week, and pretty much every time asked her to go to Tim Hortons with him, and he would then take her on these drives. In direct examination she testified:
Q. And how often would he be taking you for these drives?
A. Whenever he asked me to go to Tim Horton’s with him.
Q. Okay. So my question is do you recall how oft... how many drives of that nature you would have gone on?
A. Maybe twice a week. When he’d come to visit, he would ask.
Q. Okay. And would it be every time he came to visit?
A. Prob... Pretty much, yes. I want to say yes.
[46] I described her evidence as fairly consistent because at one point she was cross-examined on an extract from a police statement where she had said that the cemetery visits, with inappropriate touching happened “a few times”. The complainant appeared to acknowledge this inconsistency, but explained it by saying, every time he came to visit, something happened. Her evidence was as follows:
He did it a few times. Now that’s different than he did it a lot and that’s different that he did it pretty well every time he came to visit...
A. Uh-huh.
Q. ...and he came to visit at least twice a week until you were about 12.
A. Uh-huh.
Q. He did it a few times.
A. Yes. I’m not sure of how many, exactly how many times he’s done it.
Q. A few times.
A. Yes.
Q. That’s really different than every time you went to the graveyard or almost every time he came to visit, isn’t it?
A. Every time he came to visit something happened.
[47] As to when the driving visits to the cemetery took place, she could not recall going in the winter, only when it was warmer. Her evidence was:
Q. Okay. Was there, do you know when, what time of year these visits to the cemetery would have taken place?
A. It was warmer. I remember it being warmer. I’m not a hundred percent what season but I know it was like, I remember going there when it was like somewhat warm.
Q. Right. What about winter?
A. I don’t remember going there in the winter.
[48] I earlier set out the trial judge’s acceptance, by way of judicial notice, that it usually snows during the winter months, and that it was a reasonable inference that visits to the cemetery would have been at times, not just more difficult, but impossible (¶77). What the trial judge did not do was to extend that acceptance to a conclusion that the appellant could not have committed the alleged acts due to a lack of opportunity. The trial judge reasoned:
[81] In terms of judicial notice of “snow”, H.M. was cross examined at length about the number of visits and when they took place. Consistently her response was, whenever he would ask me to go to Tim Horton’s. There were periods of time he did not visit, he said months and months, and he would visit for months and months at a time. A conclusion that every week or every two weeks meant in every month in every year, places too literal an assessment on the evidence and is not a fair one. They certainly would usually occur whenever Mr. P. would visit, that is the evidence of H.M.
[49] I see no error in law by the trial judge in failing to take judicial notice of bad weather in the winter and the effects it would have had on driving on an unplowed cemetery lane. In fact, the trial judge acknowledged that to be the case. What he did not do was to then use that to discount or diminish the credibility of the complainant’s evidence. I would not give effect to this ground of appeal.
Unreasonable Verdict
[50] Both parties argued several of the grounds of appeal together, including the issue of whether the verdict is unreasonable or not supported by the evidence. I will group some of the remaining complaints of error together due to how they overlap, but will consider the issue of unreasonable verdict separately.
[51] The case law on the proper approach to the statutory duty of an appellate court to review a verdict under s. 686(1)(a)(i) is voluminous. Yet, the principles are clear. An appeal court is not to retry the case, substituting its view of the evidence for that of the trier of fact. It is not to act like a thirteenth juror (R. v. Biniaris, 2000 SCC 15 at para. 40).
[52] Nonetheless, an appeal court has the duty to re-examine, and to some extent re-weigh the effect of the evidence, to ensure that the verdict is one that a properly instructed trier of fact, acting reasonably, could have reached. This duty, and consequent power to intervene, extends to verdicts founded on credibility assessments (See: R. v. W. (R.), [1992] 2 S.C.R. 122; R. v. Burke, [1996] 1 S.C.R. 474).
[53] In addition, where the verdict emanates from a judge alone trial, an appeal court may be persuaded that the verdict is unreasonable because, despite the existence of evidence to support a finding of guilt, the reasons of the trial judge demonstrate the verdict to be flawed by irrational or illogical findings—ones that are demonstrably incompatible with evidence, neither contradicted by other evidence, nor rejected by the trial judge, ( See: R. v. Beaudry, 2007 SCC 5; R. v. Sinclair, 2011 SCC 40; R. v. R.P., 2012 SCC 22).
[54] I am unable to agree that the verdicts are ones that a properly instructed reasonable trier, could not have reasonably rendered. The case was all about credibility in a broad sense. The complainant described acts which, if accepted as truthful and sufficiently reliable to satisfy the criminal burden of proof, made out the offences. The trial judge did not accept the denials of the appellant, and despite contradictions and inconsistencies in the testimony of the complainant, found on the totality of the evidence the offences established. This does not make the verdicts unreasonable.
[55] The submissions of the appellant on this ground of appeal amount to an invitation for us to retry the case, and to take a different view of the credibility or reliability of the evidence. This, with respect, we are not at liberty to do. An appeal is not a re-trial where a different judge or panel of judges re-applies concepts of proof beyond a reasonable doubt to our respective views of the reliability and credibility of the evidence we read in the transcript.
[56] This limitation on appellate review is neatly set out by Richard J.A. in R. v. Wilson, 2013 NBCA 38:
[43] Evidently, I must not proceed from this perspective. Provided the verdict is one the judge could reasonably have reached on the evidence, the role of an appellate court in assessing credibility matters is not to re-examine and re-weigh the evidence with a view of determining whether it raises doubts regarding the credibility of a complainant or that of an accused. We cannot intervene despite unease or a lingering or lurking doubt about an unsafe verdict just because we might have viewed the evidence differently. In an appeal invoking a ground of appeal such as the one raised in this case, the role of the appellate court is to determine (1) whether the reasons of the trial judge are sufficient to provide for meaningful appellate review, and (2) whether the proper standard was in fact applied.
[57] In my opinion, the verdict is one that a trier of fact could reasonably reach on the evidence. The appellant made no submission that the verdicts were unreasonable on the basis that the trial judge’s reasons were flawed in the sense described by the Supreme Court in Beaudry and Sinclair. I would therefore not give effect to this ground of appeal.
Burden of Proof, Credibility Analysis and Misapprehension of Evidence
[58] Frequently the resolution of criminal charges depends on the views taken by a trial judge about the weight of the evidence he or she has heard. By weight, I include both an assessment of the reliability and the credibility of the Crown’s evidence, and the evidence, if any, proffered by the accused. As already described, that assessment, if conducted free of error, is entitled to a very high degree of deference.
[59] The appellant argues the trial judge’s conclusion that the charges were made out is marred by the judge not properly applying the criminal burden of proof, misapprehending the evidence and not giving sufficient weight to what the appellant says are significant unexplained inconsistencies and contradictions. I will consider the first two complaints together.
[60] I have already described numerous instances where the trial judge referred to the fundamental requirement of proof beyond a reasonable doubt, and that this burden always rests with the Crown. Furthermore, the trial judge directed himself as to the requirements of W.D. (of course failure to do so is not fatal: R. v. R.E.M., 2008 SCC 51 at para. 46).
[61] But correct articulation of the W.D. jury instruction is no guarantee the burden was properly applied (see: R. v. D.D.S., 2006 NSCA 34 at para. 45; R. v. A.P., 2013 ONCA 344 at para. 39). This legal reality was eloquently explained by Watt J.A. in R. v. Wadforth, 2009 ONCA 716:
[50] In cases like this, involving near-equivalent opportunity to commit the offence charged and conflicting assertions and denials of responsibility, it is crucially important that the trial judge's reasons reveal an understanding of the relationship between reasonable doubt and credibility. The failure expressly to articulate the word formula of W. (D.) is not fatal. What must appear, however, from the reasons as a whole, is the trial judge's clear understanding of the relationship between reasonable doubt and the assessment of credibility and its application to the case at hand: W. (D.) at p. 758; R. v. Y. (C.L.), [2008] 1 S.C.R. 5, at paras. 7 and 9; R. v. M. (R.E.), [2008] 3 S.C.R. 3, at para. 46; R. v. S. (J.H.), [2008] 2 S.C.R. 152, at para. 13.
[51] The formula in W. (D.) is not a magic incantation, its chant essential to appellate approval and its absence a ticket to a new trial. Its underlying message is that the burden of proof resides with the prosecution, must rise to the level of proof beyond a reasonable doubt in connection with each essential element of the offence, and, absent statutory reversal, does not travel to the person charged, even if his or her explanation is not believed: S. (J.H.) at para. 13.
[62] In this case, not only did the trial judge accurately instruct himself on the proper application of W.D., he also recognized the raison d’etre for such an instruction: to prevent a trier of fact from viewing the outcome of a criminal charge as a credibility contest. It is useful to repeat some of what the trial judge said:
[19] And so I may, according to W.D., accept all, part, or none of what a witness or a set of witnesses may say. Credibility here, as I’ve said, is extremely important, and the test in W.D. must be scrupulously applied. The test is designed not to simply allow the Court to apply the burden of proof as a credibility contest between the complainant and the accused. This is so notwithstanding that the only two parties, truly in a position to know are H.M. on behalf of the Crown, (as well as other Crown witnesses); but in particular H.M., and Mr. P. on his own behalf.
[63] The trial judge referred to the appellant’s vehement denials and added:
[21] In considering this evidence the Court must not fall into the trap of deciding which witness’s story is more credible, in a manner that would lead one to conclude that one story is more probable than not, and falling short of deciding whether there is proof beyond a reasonable doubt. (R. v. L.J.W. 2006 NSSC 91)
[64] Despite these (and other) articulations of sound legal principles, there are a number of instances where things were said by the trial judge that indicate there was an improper application of the onus of proof.
[65] After finding that the appellant did have the opportunity to commit the offences alleged, the judge said the following:
[82] I will comment further (later) on the furniture in the den. At this time I am mindful and generally concur with the Crown, that these incidents were brief in nature in terms of time. What this case must turn on, in my respectful view is the issue of credibility, as the parties themselves have stated. In this vein the series of contradictions and inconsistencies in the Crown’s case as alleged by Mr. P. must be reviewed and considered.
[83] In my view, this will be determinative of the guilt or innocence of Mr. P. The law is of course he is presumed to be innocent of these offences, unless proven otherwise by the Crown, beyond a reasonable doubt.
[emphasis added]
[66] The highlighted words, in isolation, would amount to legal error. Consideration or review of contradictions or inconsistencies in the case presented by the Crown may well be important. Indeed failure to properly consider them may well amount to reversible error (R. v. B.W. (1993), 24 B.C.A.C. 1, [1993] B.C.J. No. 758; R. v. Stark (2004), 190 C.C.C. (3d) 496 (Ont. C.A.); R. v. J.M.M., 2012 NSCA 70).
[67] But consideration, or even satisfactory resolution of troublesome contradictions and inconsistencies in the Crown’s case, cannot dictate or be determinative of guilt or innocence. There is a further step. A judge must then determine if the evidence as a whole establishes the guilt of the accused beyond a reasonable doubt (R. v. Dinardo, 2008 SCC 24 at para. 23).
[68] The complaint by the appellant ignores the rest of what the judge said at the same time, virtually in the same breath, that the appellant is presumed to be innocent unless the Crown proves otherwise beyond a reasonable doubt (¶83). To find that the highlighted words amount to legal error, standing on their own, also asks that the remainder of the trial judge’s careful and accurate self-instruction to be mere window dressing.
[69] It is useful to recall the admonition of Abella J. in R. v. C.L.Y., 2008 SCC 2 at para. 11 (referencing Doherty J.A. in R. v. Morrissey (1995), 97 C.C.C. (3d) 193) that the role of appellate judges is not to dissect, parse, or microscopically examine the reasons of a trial judge. I do not find the impugned comment warrants appellate intervention.
[70] However, that is not the extent of the appellant’s complaint. He references two further specific passages where the trial judge dealt with the credibility of the appellant. They are as follows:
[111] A.M.’s evidence confirmed that H.M. and Mr. P. were alone, saying she felt guilty her kids were being singled out for special treatment, and that she encouraged it. For his part, therefore, I did not find Mr. P.’s evidence to be convincing on this point, and that casts doubt on the credibility of his other evidence.
[112] I did not believe him, and I am not left with a reasonable doubt by his evidence, in terms of his credibility. His delivery was smooth and even for the most part, but not persuasive to me, and therefore not credible.
[emphasis added]
[71] With all due respect to the trial judge, the reasoning revealed in these passages is flawed. It is an error in law for the trial judge to say that because he found the appellant’s evidence not convincing on one point, it casts doubt on the credibility of his other evidence. This is not a situation where a trial judge could draw an adverse inference against an accused due to an attempt by an accused to advance a demonstrably false alibi (or similar conduct) from which a consciousness of guilt might be inferred (see for example: R. v. Hibbert, [2002] 2 S.C.R. 445 at para. 62; R. v. O’Connor (2002), 170 C.C.C. (3d) 365 (Ont. C.A.), [2002] O.J. No. 4410 at para. 23).
[72] Mere disbelief of exculpatory evidence cannot be used to bolster the Crown’s case. The rationale is clear: if this were permitted it would diminish the fundamental principle that the burden of proof is on the Crown. O’Connor A.C.J.O., explains:
[19] The distinction between mere disbelief and a finding of fabrication has regard to the fundamental principle that the onus of proof remains on the Crown throughout a criminal trial and helps ensure that the trier of fact properly applies the burden of proof in cases where statements of an accused are tendered or an accused testifies. The distinction reduces the risk that a trier of fact may blur the need for the Crown to prove the offence charged beyond a reasonable doubt with the failure of the accused to provide a credible defence. The distinction also recognizes the danger that a trier of fact may attach undue weight to the rejection of an accused's explanation and may move too readily from mere disbelief to a finding of guilt. As was pointed out by Gibbs J. in Steinberg v. Com'r of Taxation (Cwth.) (1875), 134 C.L.R. 640 at p. 695, cited in R. v. Tessier (1997), 113 C.C.C. (3d) 538 at p. 553 (B.C. C.A.): “The fact that a witness [even the accused] is disbelieved does not prove the opposite of what he asserted”.
R. v. O’Connor, supra
[73] I agree with the appellant that the announced analytical path by the trial judge reversed the onus of proof. There is no requirement on an accused to convince the judge by his evidence—all that is needed is for a reasonable doubt to be raised. It is for the Crown’s evidence to convince. Furthermore, mere doubt or even non-acceptance of the appellant’s evidence on some point cannot be used to cast doubt on the credibility of his other evidence.
[74] I recognize that in the next paragraph (¶112) the judge used language that attempted to track the first two steps recommended in a W.D. instruction: that the judge did not believe the appellant and was not left with a reasonable doubt by his evidence “in terms of his credibility”. The problem is his explanation for the finding that the appellant was not credible.
[75] As highlighted in the excerpt above (¶112) the trial judge found no fault in how the appellant testified, describing him as having a smooth and even delivery, but reasoned his evidence was “not persuasive” and “therefore not credible”. No elaboration was given by the trial judge. Again, with respect, this logic is legally flawed.
[76] Simply because he did not view the appellant’s evidence as persuasive does not equate to a dismissal of it as not being “credible”. This smacks of a credibility contest between the Crown’s witnesses and the appellant. This was not the only instance the trial judge used language that reflected an incorrect application of the burden of proof.
[77] The trial judge described the complainant’s statement that the Grand Prix had an “air freshener” as a key piece of evidence (¶105). His analysis of this evidence is as follows:
[105] A key piece of evidence presented was the complainant’s statement that the Grand Prix had an “air freshener”. She did not describe it in detail except to say it was shaped like a race car. Mr. P. said in direct there was no air freshener.
[106] Mr. P. was less than sure whether there was an air freshener in the car when he returned after 2001. Mr. P. took a lot of pride in his car, he knew the license plate number, and still remembered it. J.’s evidence was that they would watch NASCAR, and A.M. said they would go to “speed races”.
[107] He hated smoking and would leave to avoid it. When she was asked about his vehicles, A.M. identified the air freshener. I was concerned she volunteered this, even though she was not asked specifically, but she described the vehicle in other ways as well…
[emphasis added]
[78] The appellant testified in direct, and in cross-examination, that he never owned an air freshener in any car he ever owned, including of course the bright red Grand Prix. The complainant’s mother, A.M. volunteered in direct examination that there was a […] air freshener in the car. She never said when she saw it there.
[79] The appellant left Cape Breton in 2001. The red Grand Prix was left with his wife, R. (A.M.’s sister). It was the uncontradicted evidence of the appellant that R. was a collector of things, particularly of […] memorabilia, and could have put one in the car after he left in 2001.
[80] This was what the appellant said in cross-examination:
Q. But there were no air fresheners.
A. While I had the car, no, sir.
Q. Never an air freshener in it.
A. While I had the car, no, sir.
Q. And was there a reason for that?
A. Because I had no reasons for an air freshener in it.
Q. [R.] would be in that car as well.
A. Oh, yes.
Q. And she, you said she was a collector of […]
A. Yes.
Q. So it’s not possible that she put an air freshener, racing car air freshener in that vehicle?
A. Not while I was driving it. Maybe after I left here she could have put it there, yes.
Q. After her, after 2001.
A. After, after I left here, yes.
Q. So from ‘97 to 2001 you’re saying there were no air fresheners in the car. Now did you have some type of objection to air fresh...
MS. CUSACK: The witness just nodded his head and didn’t speak.
BY THE WITNESS: A. No. There was no air fresheners in the car.
[81] This is how the trial judge concluded his analysis of this evidence:
[108] In terms of the air freshener I am skeptical about Mr. P.’s evidence that he had none. I did not find his evidence convincing. I don’t believe I need to determine whether there was, in fact, an air freshener to decide this matter; but I am not satisfied Mr. P. was being truthful on that point.
[emphasis added]
[82] There are a number of problems. First, there was no burden on the appellant for his evidence to be convincing on anything. Secondly, the trial judge appears to have misapprehended the evidence about the air freshener.
[83] The appellant was not somehow less sure about the existence of an air freshener in the car at the relevant time. Whether there was an air freshener after 2000 was completely irrelevant. The complainant never suggested that once she turned 12 (i.e. in 2000) the appellant ever took her for a drive in any car, let alone did or said anything inappropriate.
[84] What is also troubling from a legal point of view is that whether there was such an air freshener in the car was really not relevant, yet the trial judge viewed it as a key piece of evidence. The appellant did not suggest that the complainant was never in the car. Quite the contrary, the uncontradicted evidence was that she was in the vehicle many times. All the Crown witnesses said she was; as did the appellant—just not alone, except when he took her to the store.
[85] I am driven to the conclusion that despite the earlier proper description of the burden of proof, the reasons of the trial judge reveal he failed to properly apply it in his analysis. This is an error of law. The appellant is entitled to a trial untainted by legal error.
[86] Legal error may be excused by application of the proviso found in s.686(1)(b)(iii). But here, the error is in relation to the central issue of determining the guilt of the appellant based on the judge’s resolution of the credibility and reliability of the complainant and appellant. The Crown did not suggest that in these circumstances it would be appropriate to apply the proviso.
[87] I would not do so. The Crown’s case was by no means overwhelming. The outcome of a credibility analysis untainted by error is uncertain. I would therefore order a new trial on this basis alone.
[88] The appellant also claims that the trial judge misapprehended the evidence in the course of carrying out his credibility assessment. There are two aspects to this issue. The first is the trial judge’s characterization of the recall by the complainant of the events as being “recovered memory”. The second arises from concerns about the fact that the trial judge considered at least parts of the Preliminary Inquiry transcript in addition to the evidence he actually heard in the courtroom. These two aspects are cousins. They both relate to a judge being influenced by evidence he has not actually heard during the trial. I will elaborate.
[89] One of the leading cases on misapprehension of evidence is R. v. Morrissey (1995), 97 C.C.C. (3d) 193 (Ont. C.A.), [1995] O.J. No. 639. Doherty J.A. wrote the judgment for the Court. Justice Doherty articulated a number of important legal principles that govern a consideration of these issues. Before describing them, some background regarding the Morrissey case is helpful.
[90] The appellant was convicted of sexual and physical abuse of students. The events were said to have occurred 30 years prior to trial. The trial judge acquitted the appellant of allegations involving one complainant, but convicted him of charges of assault causing bodily harm, indecent assault, gross indecency and other counts involving three complainants. The appeal from the assault causing bodily harm conviction was dismissed.
[91] The remaining convictions were quashed and a new trial ordered. The trial judge had reasoned that documentary entries (made in the relevant time frame) that the appellant had displayed “evidence of emotional immaturity and of indiscretion” as permitting an inference that the appellant had experienced some sort of problem, and was consistent with the evidence of the complainants.
[92] Justice Doherty agreed with the appellant that no such inference was available. In addition, the trial judge was said to have erred in giving evidentiary value to the appellant having subsequently been assigned to teach a lower grade. Doherty J.A. concluded that the trial judge had erred in law by drawing factual conclusions based on speculation and not reasonable inferences. Since the trial judge had relied on these in the course of assessing credibility, those findings of fact could not figure in a consideration of whether the Crown could meet its burden in seeking invocation of the proviso.
[93] The trial judge had also concluded that the evidence of the two complainants was substantially corroborative of each other’s version of events. Doherty J.A. disagreed, citing a number of factual errors made by the trial judge in how he described their evidence, and by saying their evidence was different in detail, but substantially the same.
[94] Doherty J.A. defined what may constitute a misapprehension of evidence, and where, if made out, it fits in the legal landscape in conviction appeals. This is what he said may constitute misapprehension of evidence:
83 I will now address the effect of the trial judge's misapprehension of the evidence. Submissions premised on an alleged misapprehension of evidence are commonplace in cases tried by a judge sitting without a jury. A misapprehension of the evidence may refer to a failure to consider evidence relevant to a material issue, a mistake as to the substance of the evidence, or a failure to give proper effect to evidence. Where, as in the case of Crown appeals from acquittals (Criminal Code, R.S.C. 1985, c. C-46, s. 676(1)(a)) and appeals to the Supreme Court of Canada pursuant to s. 691, the court's jurisdiction is predicated on the existence of an error of law alone, characterization of the nature of the error arising out of the misapprehension of evidence becomes crucial. The jurisprudence from the Supreme Court of Canada demonstrates the difficulty in distinguishing between misapprehensions of the evidence which constitute an error of law alone and those which do not: Harper v. R., [1982] 1 S.C.R. 2, 65 C.C.C. (2d) 193; Schuldt v. R., [1985] 2 S.C.R. 592, 23 C.C.C. (3d) 225; R. v. Roman, [1989] 1 S.C.R. 230, 46 C.C.C. (3d) 321; R. v. B.(G.) (No. 3), [1990] 2 S.C.R. 57, 56 C.C.C. (3d) 181; R. v. Morin, [1992] 3 S.C.R. 286, 76 C.C.C. (3d) 193. The recent trend in that court suggests that most errors which fall under the rubric of a misapprehension of evidence will not be regarded as involving a question of law: R. v. Morin, supra; J. Sopinka, M.A. Gelowitz, The Conduct of an Appeal (Markham: Butterworths, 1993), pp. 85-89.
[emphasis added]
[95] After pointing out the lack of any need to classify a misapprehension of evidence as an error of law for jurisdictional purposes in appeals from conviction, Justice Doherty quoted s. 686(1)(a). This section defines an appellate court’s jurisdiction to quash a conviction. It is useful to repeat it here, and an appellate court’s related power in s. 686(3)(b)(iii) to uphold a conviction despite the presence of legal error:
686(1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal
(a) may allow the appeal where it is of the opinion that
(i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence,
(ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or
(iii) on any ground there was a miscarriage of justice;
(b) may dismiss the appeal where
…
(iii) notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph (a)(ii) the appeal might be decided in favour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred, or . . .
[96] Doherty J.A. viewed these powers as sharing a common rationale: a conviction which is the product of a miscarriage of justice cannot stand. A conviction which no reasonable trier of fact properly instructed could have rendered must be a miscarriage of justice. By virtue of the proviso found in s. 686(1)(b)(iii), a conviction tainted by an error in law can only be saved if the Crown can demonstrate that no substantial wrong or miscarriage of justice occurred. Section 686(1)(a)(iii) captures all other miscarriages.
[97] In terms of the proper analytical approach, Doherty J.A. recommended the following:
88 In my opinion, on appeals from convictions in indictable proceedings where misapprehension of the evidence is alleged, this court should first consider the reasonableness of the verdict (s. 686(1)(a)(i)). If the appellant succeeds on this ground an acquittal will be entered. If the verdict is not unreasonable, then the court should determine whether the misapprehension of evidence occasioned a miscarriage of justice (s. 686(1)(a)(iii)). If the appellant is able to show that the error resulted in a miscarriage of justice, then the conviction must be quashed and, in most cases, a new trial ordered. Finally, if the appellant cannot show that the verdict was unreasonable or that the error produced a miscarriage of justice, the court must consider the vexing question of whether the misapprehension of evidence amounted to an error in law (s. 686(1)(a)(ii)). If the error is one of law, the onus will shift to the Crown to demonstrate that it did not result in a miscarriage of justice (s. 686(1)(b)(iii)).
[98] With respect to convictions said to have resulted from an unfair trial, they must be quashed. To quash a conviction based on a miscarriage of justice due to misapprehension of evidence, the misapprehension must have played an essential part in the reasoning process that led to conviction. Doherty J.A. described the test as follows:
93 When will a misapprehension of the evidence render a trial unfair and result in a miscarriage of justice? The nature and extent of the misapprehension and its significance to the trial judge's verdict must be considered in light of the fundamental requirement that a verdict must be based exclusively on the evidence adduced at trial. Where a trial judge is mistaken as to the substance of material parts of the evidence and those errors play an essential part in the reasoning process resulting in a conviction, then, in my view, the accused's conviction is not based exclusively on the evidence and is not a “true” verdict. Convictions resting on a misapprehension of the substance of the evidence adduced at trial sit on no firmer foundation than those based on information derived from sources extraneous to the trial. If an appellant can demonstrate that the conviction depends on a misapprehension of the evidence then, in my view, it must follow that the appellant has not received a fair trial, and was the victim of a miscarriage of justice. This is so even if the evidence, as actually adduced at trial, was capable of supporting a conviction.
See: also R. v. Lohrer, 2004 SCC 80; R. v. Schrader, 2001 NSCA 20; R. v. Deviller, 2005 NSCA 71; R. v. D.D.S., 2006 NSCA 34; R. v. CLY, supra.
[99] With these principles in mind, I will turn to what appear to be mistakes about the substance of certain evidence.
[100] Early on in his reasons, the trial judge referred to the complainant’s memory of the alleged assaults as being “recovered memory”. He said this:
[11] I will say further at the outset that these offences, having alleged to have occurred, so many years ago, place the accused in a vulnerable position, as evidence is being recalled from years past, when the complainant was a child. Thus her recovered memory must be scrutinized carefully, before arriving at any conclusions or inferences. It is, of course, subject to some discrepancy by the sheer passage of time, and the number of years that have elapsed. Both Crown and Defence have acknowledged this, and agree the central issue in this case is one of credibility.
[101] If what the trial judge meant is that given the passage of time, one would expect discrepancies in peripheral details, there is no error. But later comments create considerable concern about whether the judge actually viewed the complainant’s memory as recovered, and as a consequence overlooked or excused discrepancies, contradictions and inconsistencies in her evidence.
[102] In the process of analyzing the complaints by the appellant as to the existence of numerous contradictions and inconsistencies in the evidence of the complainant, the trial judge reflected:
[115] In the case law provided to me (R. v. Z.E.B. 2006 Carswell NS 77), Gruchy, J. said, “prudence is necessary when accepting adult memories of children”. Similarly in R. v. D.(G.D.) 1995 NSJ No.529, Davidson, J. said, “it is helpful to enunciate some of the concerns long lapses of time have on recovered memory”. We have seen the effect a long lapse of time has on recovered memory. Peripheral details become sketchy. It is apparent from the evidence that H.M. would give evidence only on that for which she was certain.
[103] Both of the cases referred to by the trial judge involved “recovered memory” in the sense of memory recovered or perhaps influenced by therapy. In R. v. Z.E.B. the trial judge instructed himself about such memory:
[42] In my decision I do not intend to impugn the role of the therapist who counselled SS or WS. Nor do I intend to infer that the memories of either of these two witnesses would fall within the characterization of “false memory syndrome.” Rather, the treatment and or counselling of these witnesses are factors which, over 25 or 30 years, together with such family discussions, no matter how abbreviated, may well affect adversely the accuracy of the memories in question. False memory arises when memory has been erased and there is no suggestion of that phenomenon before me; but the accuracy of the adult memories of such young children may have been affected by therapy whether adversely or beneficially. Prudence in accepting such memories is necessary and I refer to the case of C. v. C. (1994) 114 D.L.R. (4th) 151.
[43] I have also referred to the decision of Davison J., in R. v. G.D.D. [1995] N.S.J. No 529, which while dealing with the matter of recovered memory is very helpful in enunciating some of the concerns which I have with respect to the effect of a long lapse of time on accuracy of memory.
[104] The case of R. v. G.D.D. also dealt with memory assisted by therapeutic intervention.
[105] The Crown concedes that this case was not one of “recovered memory.” I agree. There is absolutely no evidence that the complainant ever forgot or did not recall any of the events, only to remember them, or more details of them, through therapy. The Crown suggests that the description by the judge was nothing more than a misnomer, an awkward phrasing when the judge was considering past memory being recalled. And in any event, it is not a material error, and hence fails to meet the stringent test described by the Supreme Court in Lohrer and other cases.
[106] With respect, I am unable to agree. This case stood and fell on the trial judge’s assessment of the credibility and reliability of the evidence. He instructed himself that the effect of recovered memory causes “peripheral” details to become sketchy. I am not certain what details the judge considered to be peripheral, or upon what evidence—expert or otherwise—the judge could base such findings.
[107] The trial judge gave reasons saying that it was apparent that the complainant would give evidence only on things for which she was certain (¶115). By way of example, he quoted her evidence “I can only remember the Grand Prix” (¶116). That was not her evidence. She testified that the cemetery trips, twice a week from age six to 12, all happened in the Grand Prix. However, as noted above, her evidence on this could not be correct, because the appellant did not own the Grand Prix until the complainant was just 8 days shy of being nine years old.
[108] The trial judge concluded that the complainant was a credible witness. In doing so, he said he considered whether the therapy she had received may have adversely affected her memory:
[127] I find, as a fact, H.M. was a credible witness. In doing so I have considered whether the therapy she received and touched upon by her mother, may have adversely affected her memory. The evidence on this is quite thin. Upon her grandmother’s death she became depressed, and A. M. said, “occupied with death not suicide”. What I have considered and observed is that for a woman of 23 years she was, for the most, unshaken throughout her testimony. By this I mean she showed restraint. Any emotion she displayed was not only understandable, but in my view displayed predominantly her sincerity. In short her evidence had the ring of truth to it. She did not attempt to exacerbate what happened. For this reason I am prepared to accept her evidence as to the location of the couch in the den where she was sitting and watching t.v. when the exposure, invitation and unwanted kissing took place.
[109] With all due respect, there was no evidence that any therapy the complainant received after the death of her grandmother had anything to do with her ability, or lack thereof, to recall the details of what she says happened to her. It was never suggested to the complainant that this was the case. She was asked no questions in direct or cross-examination about her therapy, let alone what impact it had on her ability to recall details about the events.
[110] The judge misapprehended the evidence. But did it play an essential role in the decision to convict? Assessment of the complainant’s credibility was a key issue. Misapprehension or mischaracterizing evidence in the course of resolving credibility during the path to conviction can be fatal.
[111] In R. v. C.L.Y., supra the appellant was convicted in a judge alone trial of sexual assault. He had testified and denied the events occurred. The trial judge disbelieved him. In the course of giving reasons for saying his evidence did not have the ring of truth, the trial judge said the appellant had been loathe to admit any tickling had happened and that he had the capacity to remember a surprising amount of details.
[112] Abella J., for the majority, reviewed the transcript and concluded that the trial judge’s comments about reticence by the appellant to admit tickling were not supported; nor that he had demonstrated a capacity to recall a lot of details. One error was labelled critical in the judge’s appreciation of the evidence (¶16). The other, raised serious concern about the reliability of the ruling on credibility (¶18). The threshold had been met to establish, not just an error in the narrative, but in the reasoning process resulting in the conviction (¶19, 20).
[113] In this case, the credibility assessment by the trial judge was critical. He found that the complainant’s memory was recovered. This view impacted his decision to forgive or accept inconsistencies and a memory that could not recall: what grade she was in when the assaults were said to have happened; not one piece of clothing she ever wore on any of the occasions; what season or time of year she claimed the assaults happened; the inconsistent versions she gave to the police about what happened in the car; the kissing incidents; details about the den incident, and a host of other details.
[114] Even if I am wrong, and the trial judge’s misapprehension of this evidence cannot be said to have caused a miscarriage of justice, the trial judge made findings of fact for which there was no evidence. This amounts to an error in law (see: R. v. Martin, 2010 NBCA 41 at paras. 34-36). The burden is then on the Crown to demonstrate that that error, alone, and in conjunction with any other error of law, did not cause a substantial wrong or miscarriage of justice. For reasons already set out earlier, I am not satisfied that to be the case.
[115] I want to emphasize that the misapprehension of the evidence by the trial judge did not make the verdicts unreasonable. It does, however, along with the misapplication of the burden of proof, entitle the appellant to a new trial.
[116] I mentioned earlier that it appeared that the trial judge referred in his reasons to having read at least certain pages from the transcript of the Preliminary Inquiry. He said the following:
[125] I have reviewed pages 143 to 148 of the preliminary transcript. I accept her evidence that she was both; she thought it was normal, and then scared to tell anybody as she got older and realized it wasn’t. At the preliminary she said, “I just didn’t, and I don’t have an answer for that”.
[126] She did contradict herself saying at page 148, “I was scared up until 11, 12 on, I was scared”. At trial she said “I was just scared to tell. I don’t know when it was”. I infer from this she did not know exactly when it was.
[117] The parties agree that not all of the content from pages 143 - 148 of the Preliminary Inquiry was put to the complainant in cross-examination. The Court requested further input on this issue. Both parties filed supplementary submissions on this issue, which included copies of the pages the judge referenced.
[118] The appellant argues that at least some of what is contained in those pages is prejudicial because some of it is out of context. In addition, he says it is impossible to know when, and how much of, the Preliminary Inquiry transcript was actually read by the trial judge.
[119] The Crown acknowledged that it was “ill-advised” for the trial judge to have read the entirety of the pages in question. There are a number of dangers triggered by doing so, not the least of which is deciding a case based on evidence not actually admitted in the trial (see for example R. v. H.(J.J.M.), 2009 NLCA 27 at para. 23; R. v. Asapace, 2011 SKCA 139 at paras. 29 - 39).
[120] However, after reviewing the pages from the Preliminary Inquiry, I am satisfied that the substance of it was already in evidence. Hence, trial fairness was not compromised. The comments by Weiler J.A., writing for the Court, in R. v. Cloutier, 2011 ONCA 484 are also apt in this case:
[102] This was not a jury trial. The trial judge's extensive reasons do permit us to review the extent to which he referred to material not in evidence. Having reviewed those reasons, I would conclude that in each instance the trial judge's reference to material not in evidence was either not central to his conclusions or else the substance of the impugned reference was already in evidence elsewhere. Examples of the appellant's specific submissions as well as my comments are found below prior to my conclusion on the conviction appeal.
[103] What the impugned references do illustrate is the danger of a trial judge accepting a copy of the preliminary inquiry transcript or a prior statement of a witness which is being used in cross-examination and which, of course, is not part of the evidence unless the prior statement is specifically adopted by the witness. If counsel wish to assist the trial judge, it is preferable to give the judge a copy of the relevant portions of the pages used in cross-examination only and with the portions of the page that are not to be referred to in cross-examination blacked out.
[121] I would therefore place no reliance on this issue in determining the outcome of this appeal.
[122] In light of my conclusion that the trial judge erred in law in his application of the burden of proof, and misapprehended the evidence, I need not consider the appellant’s complaint about how the trial judge resolved the contradictions and inconsistencies in the complainant’s evidence.
[123] I would allow the appeal, quash the convictions, and order a new trial.
Beveridge, J.A.
Concurred in:
Oland, J.A.
Farrar, J.A.