Supreme Court

SUPREME COURT OF Nova Scotia

Citation: R. v. Walker, 2014 NSSC 423

Date: 2014-08-13

Docket: Hfx No. 427829

Registry: Halifax

Between:

Her Majesty the Queen

Applicant

v.

Barry Joseph Walker

Respondent

By the Court:

Introduction

[1]             This is an appeal by the Crown of the respondent’s acquittal on a charge under s. 20(2) of the Motor Vehicle Act, R.S.N.S. 1989, c. 293, which makes it an offence to display a license plate that is not clearly legible:

Every number plate assigned to an owner and required to be attached to a vehicle shall at all times be securely fastened to the vehicle so as to prevent the plate from swinging and at a height not less than 300 millimetres from the ground, measuring from the bottom of the plate, in a place and position to be clearly visible, and shall be maintained free from foreign materials and in a condition to be clearly legible.

[2]             This matter came to trial before a Provincial Court judge sitting as adjudicator on April 9, 2014. The adjudicator adjourned, and then found the accused not guilty on April 24, 2014. The matter came before me on appeal on August 13, 2014. The respondent had notice of the hearing, but did not attend.

The proceeding before the adjudicator

[3]             The respondent testified, as did the officer who issued the ticket, Cst. Ash Lewis of the Halifax Regional Police. Constable Ash said that while on patrol in a vehicle with two other officers, he saw the respondent’s vehicle driving on South Park St. in Halifax with a garbage bag hanging out of the open trunk and obscuring the license plate. He said the bag contained bottles. After he stopped the vehicle and explained the situation, he said, the respondent appeared to try to secure the trunk with rope and then drove off. The officers conducted a second stop and ticketed the respondent.

[4]             There was no cross-examination of Cst. Ash by the respondent, who was self-represented. The respondent went on to testify. He stated that the officer did not pull him over, but stopped while he was putting the bag of bottles in his trunk. He said he tied his trunk down and drove off, and the police car followed him, pulled him over, and ticketed him. He said that when he parked his car at home, the bag was not blocking the license plate.

[5]             During Crown submissions, the adjudicator queried several points, including a reference to cars “roaming around” as the reason for police needing to be able to check license plates (the adjudicator indicated that there was no evidence of that here). The adjudicator also queried the suggestion by the Crown that the respondent had been warned about a possible ticket when he was initially stopped. The adjudicator also challenged the suggestion that there was little difference between the evidence of the respondent and that of the ticketing officer.

[6]             After adjourning to consider the evidence, the adjudicator acquitted the respondent, without reasons.   

The Appeal

[7]             The Crown maintains that the adjudicator erred in law by failing to provide reasons, thereby preventing a meaningful appeal.

Standard of review

[8]              As Saunders J.A., for the Court of Appeal, noted in Ulnooweg Development Group Inc. v. Wilmot, 2007 NSCA 49, [2007] N.S.J. No. 172, in determining the applicable standard of review, an appeal court must characterize the question under appeal:

[25] An appeal is not a second trial. Our powers at the appellate level are constrained. On questions of law the judge must be right. Such questions are tested on a standard of correctness. Matters of fact, or inferences drawn from facts are owed a high degree of deference and will not be disturbed unless they resulted from palpable and overriding error. Matters said to be mixed questions of fact and law are also tested using the palpable and overriding error standard, unless the mistake can be easily linked to a particular and extricable legal principle, which will then attract a correctness standard. Where, however, the legal principle is not readily extricable, the question of mixed law and fact will be reviewable on the standard of palpable and overriding error…

[9]             As noted, the error alleged here is an error of law.

Sufficiency of reasons

[10]        The leading decision on sufficiency of reasons is R. v. Sheppard, 2002 SCC 26, [2002] S.C.J. No. 30. The court confirmed in Sheppard that, while a failure to give reasons is not an error of law in itself, a deficiency in the reasons that prejudices the appellant’s right to appeal by preventing meaningful appellate review can serve as a basis to overturn a decision. It is not enough that the trial court “did a poor job of expressing itself” (para. 26). Binnie J., for the court at para. 28, elaborated on what is required to establish that the court is unable to conduct meaningful appellate review:

It is neither necessary nor appropriate to limit circumstances in which an appellate court may consider itself unable to exercise appellate review in a meaningful way. The mandate of the appellate court is to determine the correctness of the trial decision, and a functional test requires that the trial judge's reasons be sufficient for that purpose. The appeal court itself is in the best position to make that determination. The threshold is clearly reached, as here, where the appeal court considers itself unable to determine whether the decision is vitiated by error. Relevant factors in this case are that (i) there are significant inconsistencies or conflicts in the evidence which are not addressed in the reasons for judgment, (ii) the confused and contradictory evidence relates to a key issue on the appeal, and (iii) the record does not otherwise explain the trial judge's decision in a satisfactory manner. Other cases, of course, will present different factors. The simple underlying rule is that if, in the opinion of the appeal court, the deficiencies in the reasons prevent meaningful appellate review of the correctness of the decision, then an error of law has been committed.

[11]        Where an appeal court considers the sufficiency of reasons, it “should read them as a whole, in the context of the evidence, the arguments and the trial, with an appreciation of the purposes or functions for which they are delivered”, according to McLachlin C.J.C., for the court, in R. v. R.E.M., 2008 SCC 51, [2008] S.C.J. No. 52, at para. 16. Reasons will be sufficient if “read in context” they “show why the judge decided as he or she did. The object is not to show how the judge arrived at his or her conclusion, in a "watch me think" fashion. It is rather to show why the judge made that decision”: R.E.M. at para. 17 (emphasis in original).

[12]        In R.E.M. the Chief Justice discussed the manner in which an appeal court should approach the sufficiency of credibility findings by the court below. She said, at paras. 48-51:

The sufficiency of reasons on findings of credibility - the issue in this case - merits specific comment. The Court tackled this issue in [R. v. Gagnon, [2006] 1 S.C.R. 621, 2006 SCC 17], setting aside an appellate decision that had ruled that the trial judge's reasons on credibility were deficient. Bastarache and Abella JJ., at para. 20, observed that "[a]ssessing credibility is not a science". They went on to state that it may be difficult for a trial judge "to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events", and warned against appellate courts ignoring the trial judge's unique position to see and hear the witnesses and instead substituting their own assessment of credibility for the trial judge's.

While it is useful for a judge to attempt to articulate the reasons for believing a witness and disbelieving another in general or on a particular point, the fact remains that the exercise may not be purely intellectual and may involve factors that are difficult to verbalize. Furthermore, embellishing why a particular witness's evidence is rejected may involve the judge saying unflattering things about the witness; judges may wish to spare the accused who takes the stand to deny the crime, for example, the indignity of not only rejecting his evidence and convicting him, but adding negative comments about his demeanor. In short, assessing credibility is a difficult and delicate matter that does not always lend itself to precise and complete verbalization.

What constitutes sufficient reasons on issues of credibility may be deduced from [R. v. Dinardo, [2008] 1 S.C.R. 788, 2008 SCC 24], where Charron J. held that findings on credibility must be made with regard to the other evidence in the case (para. 23). This may require at least some reference to the contradictory evidence. However, as Dinardo makes clear, what is required is that the reasons show that the judge has seized the substance of the issue. "In a case that turns on credibility ... 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" (para. 23). Charron J. went on to dispel the suggestion that the trial judge is required to enter into a detailed account of the conflicting evidence: Dinardo, at para. 30.

The degree of detail required in explaining findings on credibility may also, as discussed above, vary with the evidentiary record and the dynamic of the trial. The factors supporting or detracting from credibility may be clear from the record. In such cases, the trial judge's reasons will not be found deficient simply because the trial judge failed to recite these factors.

[13]        The appellant Crown maintains that the credibility of the respondent and the ticketing officer were fundamental issues, given their conflicting versions of the facts, and the lack of reasons renders it impossible to say which version the adjudicator accepted in acquitting the respondent. Among the factual disputes before the adjudicator were the question of whether the license place was covered at the time of the stop and the number of times the respondent was actually pulled over.

[14]        A finding of insufficient reasons will generally lead to a new trial, but where “the record cannot support a conviction, it is appropriate to enter an acquittal”: R. v. MacDonald, 2008 NSCA 53, at para. 25. The Crown submits that the lack of reasons makes it impossible to discern the facts or the legal principles on which the adjudicator relied. And while formal reasons are not necessary where the reasons for the acquittal can be deduced from the record (see Sheppard at paras. 46 and 55), the Crown says that is not possible here. As such, the Crown requests that the appeal be allowed, the acquittal set aside, and a new trial ordered.

Conclusion

[15]        I am satisfied that the absence of reasons for the adjudicator’s decision to acquit is a barrier to effective appellate review. The respondent and the ticketing officer gave very different accounts of the incident, and I cannot say with any confidence why the adjudicator came to the conclusion she did. As such, I am not in a position to determine whether there was any error in the substance of the adjudicator’s decision. Accordingly I set aside the acquittal and remit the matter to the Provincial Court for setting a date for a retrial.

MacAdam, J.

SUPREME COURT OF Nova Scotia

Citation: R. v. Walker, 2014 NSSC 423

Date: 2014-07-24

Docket: Hfx No. 427829

Registry: Halifax

Between:

Her Majesty the Queen

Applicant

v.

Barry Joseph Walker

Respondent

ERRATUM:

Please change the date in the top right corner of the decision from 2014-07-24 to 2014-08-13.