R v Cain, 2011 ABQB 459

Court of Queen ’ s Bench of Alberta Citation: R v Cain, 2011 ABQB 459 Date: 20110712 Docket: 090868233S1 Registry: Edmonton Between: Her Majesty the Queen Respondent - and - Craig Jason Cain Appellant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Donald Lee _______________________________________________________ Overview [ 1 ] On July 16, 2009, a single count information was sworn regarding the Appellant. This information alleged: On or about the 31 st day of May A.D. 2009 at or near the City of Fort Saskatchewan in the Province of Alberta did commit an assault on Michelle Ashley contrary to

Section 266 of the Criminal Code of Canada .

[ 2 ] A plea of not guilty was entered, and the matter proceeded to trial in Fort Saskatchewan on February 2, 2011. At trial, the Appellant testified and was found guilty, and the matter was put over for sentencing. On March 30, 2011, the Appellant was sentenced to a fine of $2,000, plus a $300 surcharge. The Appellant was also placed on probation for a period of one year. Evidence at Trial [ 3 ] All of the evidence at trial was adduced through the testimony of the Complainant, Ms. Ashley, and of the Appellant, Mr. Cain. There were no independent witnesses to the alleged assault.

No police officers testified. [ 4 ] The Complainant testified that she had suffered a miscarriage on May 6, 2009, and that as a result, the Appellant “turned into an instant jerk” [Transcript, p. 3, II. 3-6]. On May 31, 2009, she and the Appellant were lying on the bed in their apartment [Transcript, p. 3, II. 31-33]: And he turned, and he pushed me off the bed. And when I stood up, he kicked me with both of his feet, right in the belly. And I went flying up against the wall. It was very hard kick too.

Very hard kick. [ 5 ] The Complainant could not remember if there was any discussion prior to the alleged kick, did not suffer any injuries, and did not seek any medical attention [Transcript, p. 4, II. 16-31]. She also denied having used any drugs or alcohol that evening [Transcript, p. 5, II. 2-3]. In cross examination, she amended this, to note that prior to the assault they were talking “just about life . . . .

And one moment he was telling me that everything was going to be okay and he loves me, and the next minute he’s kicking me” [Transcript, p. 6, II. 8-15]. [ 6 ] The Complainant and the Appellant had been in a relationship for “about a year.” They had been expecting a child, but the Complainant testified that she miscarried on May 5, 2009. After the miscarriage, what she referred to as the Appellant’s alcoholism took a more serious turn [Transcript, p. 3, 11 1-6, II. 23-27].

She testified that, as he kicked her, the Appellant, with “tears streaming down his face,” told her that all “he wanted was a son” [Transcript, p. 3, II. 36-37]. While she had not seen him drinking any alcohol the night of the assault, she could smell it. The Complainant was not certain as to the time of the assault, first testifying that if occurred at “6:45ish,” but then amending that to “about 9 o’clock” [Transcript, p. 5, II. 23-33].

In cross examination, when confronted with a statement she had made to the effect that the Appellant had called her a liar “with respect to this miscarriage,” the Complainant responded “that doesn’t really have anything to do with this matter, does it? He does think – well, he doesn’t think that I’m a liar, but that’s what he said on the stand in Red Deer, and he knows that’s not true” [Transcript, p. 8, II. 1-5]. [ 7 ] In cross examination, the Complainant noted that she had known the Appellant for 20 years [Transcript, p. 6, II. 30-33].

She had become pregnant, and subsequently moved from Radium Hot Springs, B.C. to Fort Saskatchewan, Alberta on May 1, 2009 to live with the Appellant. After the miscarriage, the Appellant “kept telling” the Complainant that he wanted her out of the apartment, and that he was not going anywhere. However, her name was on the lease as well as the Appellant’s, and so she refused [Transcript, p. 7, II. 1 8-22, II. 34-40].

This was despite the fact that she “didn’t know a single soul” in Fort Saskatchewan [Transcript p. 10, I. 10; p. 13, II. 37-39], was not working [Transcript, p. 18,11.6-7], and had – prior to the Appellant’s invitation – intended to move to Ontario [Transcript, p. 17, II. 11-12]. [ 8 ] The Appellant remained in the apartment until June 22, 2009. The Complainant continued to sleep with him until the night before he left.

The Complainant had made it clear to him that she wanted the Appellant’s name off of the lease and his person out of the apartment; as further incentive, she threatened to have an Emergency Protection Order made against him. The Appellant subsequently agreed to leave in exchange for the Emergency Protection Order not being obtained [Transcript, p. 8, II. 12-28].

As she put it, “he begged me... please don’t get one of those, if I go and take my name off the lease tomorrow, will you not get one of those?” “He said, If I promised to go and take my name off the lease and move out, will you not go and get an EPO against me?” [Transcript, p. 9, Il. 6-11]. In cross examination, the Complainant nonetheless clearly stated that she didn’t try to obtain an EPO [Transcript, p.8, II. 39-41; p. 9, II. 2-3].

Subsequently, she noted that she “got [the Appellant] kicked off the lease” [Transcript, p. 7, II. 39-40]. [ 9 ] However, after the Appellant moved out, the Complainant continued to phone him “more than [she] should have” [Transcript, p. 10, Il. 6-11]:

I was an emotional wreck. I just lost my baby and my boyfriend in the same couple of weeks. And you know what, I moved here, I didn’t know a single soul, and I’m human. I felt, and that’s how sometimes you don’t react the right way. [ 10 ] Ultimately, on July 7, 2009, the RCMP became involved and asked the Complainant to stop calling the Appellant, which she did [Transcript, p. 10, II. 19-35]. There was a significant delay of approximately six weeks between the offence and the Complainant providing a written statement to the police.

The Complainant explained that she had been dealing with a Constable Saunders, and had indicated to this officer that she would commence proceedings once the Appellant had moved out of the apartment. While he had moved out as of June 22, 2009, Cst. Saunders was away from June 22, 2009 to July 9, 2009. Once Cst. Saunders returned, the Complainant attended to the RCMP detachment and provided a written statement on July 9, 2009 [Transcript, pp. 11-12]. She had been advised by the officer that, if charges were laid prior to the Appellant moving out, he would be allowed back into the residence.

As a result, the officer advised that she wait “until he was out of the residence to charge him” [Transcript, p. 13, II. 37-41]. [ 11 ] The Complainant testified that she was receiving ongoing assistance from the Fort Saskatchewan RCMP, as “they all told me at that police station that they know [the Appellant] and they know that he’s guilty, and they said that they would work with me to put him where he belongs” [Transcript, p. 11, II. 27-29]. Furthermore, she noted that the “police officer was in touch with my landlord, and they were both working in my favour” [Transcript, p. 9, II. 18-20].

The Crown had declined to call Cst. Saunders, or any other involved officer, as a witness; subsequently, the Complainant’s evidence in regards to her dealings with Cst. Saunders, the advice she allegedly received from the police, and the nature of the police’s overall involvement was uncontested. [ 12 ] The Complainant provided a second statement to the police on July 20, 2009. This statement included a number of additional allegations, including that the Appellant had uttered threats against her [Transcript, p. 14, II. 2-20].

Her statements also were inconsistent as to whether anything was said after the alleged kick; in one statement, she alleged that nothing was said, while in another she refers to the Appellant saying “I wanted a boy, or, I wanted a son, or something to that effect” [Transcript, p. 14, II. 28- 29]. Evidence of the Appellant [ 13 ] In his evidence in chief, the Appellant testified that he believed his relationship with the Complainant was effectively over before she told him she was pregnant.

This new information motivated him to move the Complainant to Fort Saskatchewan [Transcript, 17, 11.10-1 9]: I called her to tell her that I did not want to be with her anymore. At that point she told me that she was pregnant and she was going to move to Ontario.... I said that I would move her here to Fort Saskatchewan to be with me, to raise our child. However, the miscarriage followed in short order [Transcript, p. 17, II. 22-36]: When she moved here, it was probably about a week or so after I moved her here, I came home from work, and she claimed to have had a miscarriage that day.

It was really no evidence of any miscarriage. She said it happened in Wal-Mart, and she just... took a cab home... herself. . . . I asked her – asked her if I could help take acre of – clean up the dirty clothes and stuff, which there would definitely have been. And they said she’d already taken care of it. [ 14 ] The Appellant did not believe that the Complainant had been pregnant, and never did fully believe. As a result, a couple of days after the incident, he told her that he thought she was a liar, and asked her to leave the apartment [Transcript, p. 17, II. 39-41; p. 18, II.1-3].

The Complainant, who by now was sleeping on the sofa, and who was not working, refused to leave, so the Appellant agreed to take his name off the lease and leave himself [Transcript, p. 18, II. 10-17]. Once done, he returned to retrieve his possessions, but discovered that the Complainant had changed all the locks and “stole all my stuff.” The police advised him at that time that it was a civil matter, and would not get involved [Transcript, p. 18, II. 28-30].

[ 15 ] On the day of the alleged assault, the Appellant testified that the Complainant, who was at the time “doing weekends for an impaired” returned home from gaol and commenced drinking with his friend [Transcript, p. 18, II. 35-40]. When he returned home from work, the Appellant’s friend asked him to go to retrieve the Complainant from a local bar, but he declined to [Transcript, p. 19, II. 35-41]. Instead, he went to bed, and was woken up when the Complainant returned “just loaded,” wanting to talk and work things out.

The Appellant subsequently announced that he would sleep on the couch, but once he had thus repaired the Complainant “started trying to jump on me and sit on me and wanting to talk and everything. Once again, I went into the bedroom” [Transcript, p. 20, II. 1-28]: This time when I went into the bedroom, she followed me into the bedroom, started taking off all her clothes. She got totally buck naked, started saying, I want to be your baby momma.... Tried to jump on me on the bed.

When she tried to jump on me, I rolled away like this with the blanket, and when she jumped on it, she fell off the other side of the bed. I did not kick anyone. I did not push anyone, nothing. She was smashed out of her tree and fell off when I pulled away on the blanket.... So then she starts saying, Oh, you hit me, you hit me. I didn’t hit her or anything, nothing.

So she got up, and then she went to the other couch, and she went to sleep.... ....And after this was all done and I was out of there, she would not stop phoning me, constantly, like, phone call after phone call after phone call. [ 16 ] The Appellant testified that he complained about the phone calls to the police, but they did not immediately respond. He “had to make about 11 reports to the police. For months it went on” [Transcript, P. 20, I. 40].

At first, the Complainant wanted to get back together with the Appellant, and he would, consider it, as she had everything he owned, and had changed the locks on the apartment. “I had one bag of clothes She had everything of mine. She had my bed, my table, my microwave, my – all my furniture, everything” [Transcript, p. 18, II. 28-30; p.21, II. 21-33]. [ 17 ] Asked if he had a criminal record, the Appellant noted that he had a record for assault and a breach [Transcript, p. 22, II. 10-17]. He was not asked if this was the full extant of his criminal record.

In cross examination, however, it was noted that his record was comprised of six offences: two assaults, causing a disturbance, common nuisance, and two breaches [Transcript, pp. 23-24]. [ 18 ] Further in cross examination, the Appellant asserted that he initially believed that the Complainant was pregnant because he wanted a baby very much; he did not care whether or not it was a son or a daughter so long as the baby was healthy.

When he learned that the Complainant was not pregnant, he was not relieved, but took the alleged miscarriage to mean that he had been correct in suspecting that the Complainant was lying about being pregnant [Transcript, p. 24, II. 15-39; p. 25, I. 1]. He also noted that on May 31, 2009, because he had been working all day, and because he was also working the next day, he was not drinking.

He did not see the Complainant drink any alcohol on that day, but assumed that she had as per the number of empty bottles in the apartment, which he considered too much for his friend, who was also present, to drink by himself [Transcript, p. 25, II. 18-39; p. 26, II. 1-8]. [ 19 ] While he denied hitting the Complainant, the Appellant admitted that he was angry with her because of both her lies and the fact that she refused to move out [Transcript, p. 26, II. 20-41]. After the Appellant moved out, he contacted her to try and get his personal effects back, but with no success [Transcript, p.27, II. 12-27].

Although the Complainant asked him to leave, she continued to ask him to get back together with her; the assault charge was laid when the Appellant refused [Transcript, p. 28, II. 4-16]. Reasons for Conviction [ 20 ] The Trial Judge commenced her reasons by addressing the evidence she accepted as truthful. As a result of the Complainant claiming she was pregnant, a mutual decision was made for her to move from Radium Hot Springs to Fort Saskatchewan, where a

two-bedroom apartment was engaged. The Appellant placed both of their names on the lease, and moved in one month prior to the Complainant’s arrival [Transcript, p. 30, Il. 29-40]. Shortly after her arrival, she suffered a miscarriage, and the relationship subsequently broke down [Transcript, p. 31, II. 1-9]: By the end of May, the parties were verbally fighting which escalated to the alleged assault on May 31st, 2009. The complainant states that on May 31st, 2009, she arrived home to the accused being under the influence of alcohol and that he was in bed.

She went in the bedroom to lay beside him on top of the covers. He pushed her off the bed, and when she stood up off the floor, he pushed her on the stomach with both feet. That – that push with his feet was sufficiently forceful that she went backwards. She sustained no injury, and she did not seek medical attention. She went to the other room for the night. [ 21 ] After the incident, the Complainant spoke with Cst.

Saunders regarding how she could have the Appellant “evicted or removed from the lease,” but the Appellant decided to move out when advised that the Complainant “was seeking an Emergency Protection Order.” He was off the lease as of June 18, 2009, and moved out on June 22, 2009. The Complainant provided a statement to Cst.

Saunders (who had been away, and who the Complainant specifically wanted to deal with) on July 5, 2009 [Transcript, p. 31, II. 11-21]. [ 22 ] The Trial Judge found the Complainant to be “consistent in her details and gave reasonable explanations for the actions she took in her efforts to remove herself from the relationship,” including her explanation of why there was a delay in her making a statement, and why she contacted the Appellant “after she left the residence” Transcript, p. 31, II. 23-26]. [ 23 ] The Trial Judge found that the Appellant “gave conflicting evidence” [Transcript, p. 31, II. 28-41; p. 32, II. 2-5]: He first states that on May 31st, 2009, the complainant was in prison, doing weekends for a

Section 253 Criminal Code conviction. He then stated that she and a friend were at the residence drinking, drinking so excessively, and then they went to the bar. And apparently she was at the bar for the majority of the evening. He does agree in his testimony that she came into the bedroom, when he was in bed, but he states that when she lay on the bed, he pulled the blanket that she was lying on, then that caused her to fall off the bed. He denies pushing her off the bed. He denies kicking her in the stomach.

But he does recall her stating when she fell to the ground, “You hit me, you hit me.” The accused states that he did not believe she was ever pregnant nor did she have a miscarriage, yet on her assertion that she was pregnant, which he claims he did not believe, he took out a lease on a two-bedroom apartment in both their names. And it was a two-bedroom for the future birth of his child. When the defence counsel asked about a criminal record, the accused admits to two entries, rather than the six entries on his record.

The accused states he was angry with the complainant by May 31st as by then he believed she had lied to him about being pregnant. [ 24 ] The Trial Judge concluded her findings with a recitation of what she believed to be the pertinent principles from R. v. W. (D) (1991), 63 C.C.C. before making her finding of guilt [Transcript, p. 32, II. 7-14]: Considering the internal and external inconsistencies in the testimony of the accused, I conclude I do not believe him. Nor am I left in reasonable doubt by his testimony.

I do accept the evidence of the complainant, and that evidence establishes that on May 31st, 2009, Craig Jason Cain assaulted Michelle Ashley first by pushing her off the bed and then by kicking her in the stomach. Stand. I find you guilty as charged. You may be seated. Issues on Appeal

[25] The issues on appeal are:– a. Did the Trial Judge misapprehend and/or mis-characterize the evidence of the Complainant, the Appellant, or both such that theverdict is unreasonable? b. Did the Trial Judge err in her application of the principles enunciated in W.(D.)?

Appellant’s Argument [26] It is the Appellant’s position that the Trial Judge misapprehended and/or mis-characterized a number of material points inevidence, and that these misapprehensions and/or mis-characterizations resulted in an incorrect application of the guidelines in W.(D.),(an error in law) such that her analysis culminated in a credibility contest between the Appellant and the Complainant, and subsequentlyproduced an unreasonable verdict. [27] The test for misapprehension of evidence sufficient to require appellate response was summarized in R v Y(C.L.), 2008 SCC2 , [2008] 1 S.C.R. 5 at paragraph 19:– This Court has said a material misapprehension of the evidence may justify appellate intervention.

In R. v. Lohrer, [2004] 3 S.C.R. 732,2004 SCC 80, at para. 1, Binnie J. cited, with approval, the following analysis by Doherty J.A. in Morrissey: Where a trial judge is mistaken as to the substance of material parts of the evidence and those errors play an essential

part in thereasoning process resulting in a conviction, then, in my view, the accused's conviction [page17] is not based exclusively on the evidenceand is not a "true" verdict... . If an appellant can demonstrate that the conviction depends on a misapprehension of the evidence then, inmy 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 ifthe evidence, as actually adduced at trial, was capable of supporting a conviction. [Emphasis added; p. 221.] As Binnie J. pointed out, this represents a stringent standard, and the misapprehension must "play an essential part not just in thenarrative of the judgment but 'in the reasoning process resulting in a conviction'" (para. 2). [28] The points in evidence that the Appellant submits that the Trial Judge misapprehended and/or mis-characterized are asfollows:– A. That the Appellant “pushed [the Complainant] off the bed [and] pushed her on the stomach with both feet....

She went tothe other room for the night” [Transcript, p. 31, II. 5-9]. [29] The evidence of the Complainant was that the Appellant “kicked me with both feet” and that she subsequently “went flyingup against the wall” [Transcript, p. 3, II. 31-33]. The Evidence of the Appellant was that the Complainant “tried to jump on me on thebed. When she tried to jump on me, I rolled away like this with the blanket, and when she jumped on it, she fell off the other side of thebed.... She was smashed out of her tree” [Transcript, p.20, II. 14-17].

It is submitted that neither the evidence of the Complainant nor thatof the Appellant agrees with the Trial Judge’s finding that the Appellant “pushed her on the stomach with both feet” [Transcript, p. 31, II.5-6]. With respect to the evidence of what happened next, it is only the Appellant who stated that the Complainant then “went to theother couch, and she went to sleep” [Transcript, p. 20, I. 241. The Complainant simply testified that she then “shut him out, went in theother room, and.., shut him out” [Transcript, p. 4, II. 34-35].

B. That the Appellant “gave conflicting evidence” regarding the events of May 31, 2009 [Transcript, p. 31, Il. 28-361. [ 30 ] It is submitted that the evidence of the Appellant was not inconsistent, rather his timeline of the evening was straightforward: the Complainant had apparently returned home from gaol (having served a portion of an intermittent sentence for an impaired conviction) on Sunday, May 31, 2009 while the Appellant was at work.

He surmised that she and a friend of his (who had spent the previous night on the Appellant’s couch) drank a significant amount of alcohol, owing to the remaining empties before the two ventured out to a bar. When the friend returned to the apartment around 10:30 p.m., he asked the Appellant to retrieve the Complainant from the bar; the Appellant declined to do so [Transcript, pp. 18-20].

In her evidence, the Complainant did not give any information whatsoever as to the events of May 31, 2009 prior to the alleged assault other than to state that she could smell alcohol on the Appellant when she came home; she placed the time of the alleged assault both at “6:45ish” and “about 9 o’clock” [Transcript, p. 5, II. 23-33]. The Appellant placed the incident shortly after 3:30 a.m. on June 1, 2009, which was approximately when the Complainant returned to the Apartment and woke the Appellant up [Transcript, p. 19, II. 39-41; p. 20, II. 1-5].

In cross examination, the Appellant testified that he had not been drinking that day, as he had been working all day [Transcript, p. 25, II. 18-23]. Although he did not see the Complainant drink any of his alcohol, he assumed that she had drank some of the alcohol as he believed his friend would have been “dead if he drank that much himself” [Transcript, p. 25, II. 25-39].

Moreover, as he noted in his evidence in chief, when the complainant returned early the next morning from the bar she was “just loaded.., smashed out of her tree” [Transcript, p.20, II. 1-17]. [ 31 ] It is submitted that this is not “conflicting evidence,” and can only be read as “conflicting evidence” if it is read as the Trial Judge appears to have intended it: the Appellant’s evidence conflicted with that of the Complainant, and so was not capable of belief for that reason. C.

That the Appellant gave conflicting evidence regarding whether or not he believed that the Complainant was pregnant, and that it is incredible that the Appellant, despite professing not to believe in the pregnancy, would engage a two-bedroom apartment for the purpose of accommodating the Complainant and future child [Transcript, p. 30, II. 35-40; p. 31, II. 3841]. [ 32 ] The Appellant’s evidence as to his decision to rent a two-bedroom apartment for himself, the Complainant, and their possible future child is not inconsistent, as the Trial Judge would have it, with a suspicion that the pregnancy was not, in fact, a reality.

The Appellant testified that his suspicions did not crystallize into outright disbelief until he was informed of the alleged miscarriage [Transcript, p. 17,11. 18-41; p. 18,11. 1-11]. It is submitted that the evidence speaks to a gradually deterioration of his acceptance of her pregnancy. The Trial Judge appears to have found it incredible that the Appellant did not believe the Complainant was pregnant as his decision to rent a two-bedroom apartment and invite the Complainant to live with him did not objectively corroborated it.

The Trial Judge it is submitted clearly took this decision as a clear contradiction of the Appellant’s assertion that he was suspicious of the Complainant’s claim. [ 33 ] However, as the Supreme Court of Canada in R v B.(E.H.) , [1987] S.C.R. 782 at paragraph 23 has stated in the context of an accused’s mistaken belief in consent, a subjectively held believe need not be reasonable nor corroborated – it only must be honestly held:– . . . a rule requiring corroboration of the accused’s testimony... will often work an injustice to the accused.

Clearly the best, and quite often the only, evidence of the accused’s subjective belief will be his or her testimony, and there is no basis in law or in principle for requiring corroboration.

In addition, this court decided in Pappajohn that the accused’s belief must be honest but need not be reasonable. [ 34 ] The Appellant submits that the Trial Judge misapprehended and/or mis-characterized the Appellant’s own evidence as to whether or not he believed the Complainant’s claim of pregnancy by requiring that it both be corroborated and objectively reasonable, and instead relied on her own subjective assumption that a person who disbelieved one who claimed to be pregnant would not try to support her and prepare for a birth. D.

That the Complainant was “consistent in her details and gave reasonable explanations for the actions she took in her evidence to remove herself from the relationship” in her evidence [Transcript, p. 31, II. 23-26].

[ 35 ] It is submitted that the evidence of the Complainant was often inconsistent and required frequent amendment. While she placed the alleged miscarriage on May 5, 2009, she claimed to be still bleeding” at the time of the alleged assault 26 days later, although she denied suffering any injury as a result of the assault [Transcript, pp. 3-41.

This further contradicts the uncontested evidence of the Appellant that the miscarriage was simple enough that the Complainant was able to take a cab home from Wal-Mart, where the miscarriage was said to have taken place, and that there were no soiled clothes to take care of [Transcript, p. 17, ll.22-36]. The Complainant also initially placed the time of the alleged assault at shortly before seven o’clock in the evening, and then amended the time to “about nine o’clock” [Transcript, p. 5, II. 23-33].

Originally, she could not remember if there was any discussion prior to the alleged incident [Transcript, p. 4, II. 16-19]; she later asserted they was talking 9ust about life,” and that he was “telling me everything was going to be okay and he loves me” [Transcript, p. 6, II. 14-15]. She initially denied calling the Appellants ex-girlfriend’s parent’s house, and then admitted to calling her “a few times” [Transcript, p. 11, II. 13-19].

In her narrative of the alleged assault, her viva voce testimony asserts that the Complainant said “I wanted a boy, or I wanted a son, or something to that effect,” while in an earlier statement she asserted that “nothing was said and nothing was done” at the time of the alleged kick [Transcript, p. 14, II. 28-36].

Despite claiming the assault was a result of the alleged miscarriage, she also asserted that the alleged assault “doesn’t really have anything to do with this matter She did not feel that the question of whether or not she lied about the pregnancy was unrelated, and she was even uncertain as to whether or not he believed she had lied, noting that “[h]e does think – well, he doesn’t think that I’m a liar, but that’s what he said on the Stand in Red Deer; and he knows that’s not true” [Transcript, p. 8, II. 1-5].

This is clearly not consistent testimony. [ 36 ] Furthermore, while the Trial Judge found that the Complainant testified that she was ‘seeking an Emergency Protection Order [Transcript, p. 31, Il. 13-161, the evidence of the Complainant was inconsistent on that point. Although she asserted that “[o]n June 17 I told him that that I was going to get an EPO” [Transcript, p. 8, II. 12-13], and that she had been advised by Cst. Saunders to this end [Transcript, p. 8, II. 30-41], her last assertion in cross examination was that she ‘did not try to obtain it” [Transcript, p. 9, I. 3].

She was very clear that her goal was not to obtain legal redress to a criminal wrong, but that she wanted to have the Appellant “kicked off the lease” [Transcript, p. 7, I. 40], and that “the police office?’ [Cst. Saunders, presumably] and her landlord were both working in her favour to such an extent that she was “going to win anyway” [Transcript, p. 9, II. 18-20]. [ 37 ] This evidence is not consistent with “seeking” an Emergency Protection Order, but is consistent with threatening the Appellant with obtaining an EPO in order to secure the apartment to her benefit.

Or, as put to the Complainant by Defence Counsel, she was trying to extort the Appellant into working out their relationship by holding the threat of gaol over his head [Transcript, p. 11, II. 31-32]. It is submitted that this “put to,” however, was not responded to as the Trial Judge interrupted with an admonishment that is not clearly explained on the record [Transcript, pp. 11-12]. [ 38 ] As to whether or not the Complainant provided reasonable explanations, it is submitted that she clearly did not.

The Complainant testified that she was advised by a member of the Fort Saskatchewan RCMP that the Appellant would be allowed to return to the apartment if an assault complaint was made against him while he still lawfully resided in the apartment [Transcript, p. 13, II. 39-41].

This assertion is not capable of sustaining belief, as it is a well known standard practice that, where an allegation of a domestic assault is made, where a charge is subsequently laid, and where the accused is subsequently released from custody, conditions of his or her release will bar the accused both from having any direct or indirect contact with the complainant and from being present at the residence of the complainant.

It is submitted that there was clear evidence that securing the apartment for her own benefit was her central motive, and that both the police and the landlord were working with her to this end [Transcript, p. 9, II. 18-20]. It is submitted that the evidence strongly suggests that not only did the Complainant want her relationship with the Appellant to continue, but that she started trying to force him out of the apartment as punishment when it became clear to her that it would not.

The Complainant continued to sleep in the same bed as the Appellant up to the day he finally moved out [Transcript, p. 8, II. 24- 28], although she had elsewhere shown herself capable of sleeping on the couch [Transcript, p. 20, I. 24).

Although she claimed to have only called the Appellant specifically in order to get a cell phone charger back [Transcript, p. 9, II. 32-36], she later admitted that she called the Appellant ‘more than I should have” – in fact a sufficient number of times to require the intervention of the RCMP [Transcript, p. 10, II. 4-21]. [ 39 ] It is also plainly neither a reasonable explanation nor consistent evidence that remaining in the apartment in Fort Saskatchewan was the only option available to the Complainant as she indicated a number of times that she “didn’t know a single soul” in Fort Saskatchewan (other than, implicitly, the Appellant) [Transcript, p. 13, II. 37-39, and other places], was not working [Transcript, p. 18,11.6-7], and had originally intended to move to Ontario [Transcript, p. 17, II. 11-12].

What this evidence is consistent with is the Appellant’s assertion-that the Complainant “wanted to work things out” [Transcript, p. 20, I. 2], and that she kept phoning the Appellant [Transcript, p. 20, I. 27-28] as she wanted to get back together [Transcript, p. 21, II. 21-22]. E. That the Appellant agreed with the Complainant’s testimony that, immediately prior to the alleged assault, the Complainant entered the bedroom and “lay on the bed,” at which point “he pulled the blanket that she was lying on” (Transcript, p. 31, II. 32-34].

[40] The evidence of the Appellant strongly diverged from that of the Complainant.

Rather than testifying that the Complainantentered the bedroom and “lay on the bed,” at which point “he pulled the blanket that she was lying on” [Transcript, p. 31, II. 32-34], theAppellant testified that the Complainant followed him from the sofa – where he had retreated to avoid her earlier attempts to engage him– into the bedroom, started taking off her clothes, and “[t]ried to jump on me on the bed.” As she jumped on the blanket, he rolled awayfrom her with the blanket, and she “fell off the other side of the bed” [Transcript, p. 20, II. 1-17].

It is submitted that not only is thefinding of an agreement between the Complainant’s and the Appellant’s evidence inconsistent with the evidence, it is also inconsistentwith the finding that the Appellant’s evidence was conflicting. [41] The rule in W.(D.), is stated as follows:– First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do riot 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 whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [42] A trial judge is not to allow his or her “analysis of the evidence to become a credibility contest between the Crown and thedefence witnesses as that will move the focus away from the fundamental question: whether, on the evidence, there is a reasonable doubtabout the guilt of the accused”: R v Amayaw, 2011 CarswellAlta 624, 2011 ABPC 132.

The trial judge is prohibited from concludingthat the Crown has proven its case beyond a reasonable doubt simply because he or she prefers the evidence of the Complainant over thatof the Accused: R. v.Hull, (ON CA), [2006] 70 W.C.B. (2d) 274. [43] Three reassessments of the rule in W.(D.) have been summarized in R v Farooq, 2008 CarswellOnt 3380 at paragraph 24:– . . .the Supreme Court of Canada has released three decisions dealing specifically with the issue of how trial judges are to approachassessing credibility and the application of the W.(D.) approach – R. v. Y. (C.L.), 2008 5CC 2 (S.C.C.); R. c.

Dinardo, 2008 5CC 24(5CC.); and, R. v. S. (J.H.), 2008 5CC 30 (S.C.C.). The following principles emerge from those cases: (

a) The W.(D.) procedure was not meant to be followed “word for word as some magic incantation”: R. v. S.(W.D.) (SCC), [1994] 3 S.C.R. 521, at p. 533. The key is whether the correct burden and standard of proof were applied, not what words wereused in applying them: Y.(CL.), para. 7. “There is nothing sacrosanct about the formula set out in W.(D.)... the assessment of credibilitywill not always lend itself to the adoption of the three distinct steps suggested in W.(D.): it will depend on the context”: Dinardo, para.23; (

b) What W.(

D) offered was a helpful map, not the only route. Its purpose was to ensure that triers of fact – judges or juries – understandthat the verdict should not be based on a choice between the accused’s and Crown’s evidence, but on whether, based on the whole of theevidence, they are left with a reasonable doubt as to the accused’s guilt: Y.(C.L.), para. 8; (

c) What matters is that the substance of the W.(D.) instruction be respected. In a case, that turns on credibility...the trial judge mustdirect 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 theaccused’s guilt beyond a reasonable doubt: Dinardo, para. 23. The main point is that lack of credibility on the part of the accused doesnot equate to proof of his or her guilt beyond a reasonable doubt: S.(J.H.), para. 13; and, (

d) W.(D.)’s message that it must be made crystal clear to the jury that the burden never shifts from the Crown to prove every element ofthe offence beyond a reasonable doubt is of fundamental importance, but its application should not result in a triumph of form oversubstance: S.(J.H.), para. 13. The ultimate test formulated by Cory J. in W.(D.) was whether “the jury could not have been under anymisapprehension as to the correct burden and standard of proof to apply”: S.(J.H.), para. 14.

[44] It remains imperative that a trial judge correctly instruct the trier of fact of just what the correct standard of proof is. The Supreme Court of Canada in R v Lifchus, (SCC), [1997] 3 S.C.R. 320 at paragraph 39promoted the following instructions as a suitable example:– The accused enters these proceedings presumed to be innocent. That presumption of innocence remains throughout the case until suchtime as the Crown has on the evidence put before you satisfied you beyond a reasonable doubt that the accused is guilty. What does the expression “beyond a reasonable doubt” mean?

The term “beyond a reasonable doubt has been used for a very long timeand is a part of our history and traditions of justice. It is so engrained in our criminal law that some think it needs no explanation, yetsomething must be said regarding its meaning. A reasonable doubt is not an imaginary or frivolous doubt. It must not be based uponsympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence. Even if you believe the accused is probably guilty or likely guilty, that is not sufficient.

In those circumstances you must give the benefitof the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt. On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is notrequired to do so. Such a standard of proof is impossibly high.

In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since thisdemonstrates- that you are satisfied of his guilt beyond a reasonable doubt. [45] The accrual of the “benefit of the doubt” to the accused is also asserted in R v White, (SCC), [1998] 2S.C.R. 72 at paragraph 52 the Supreme Court of Canada states:– This approach is consistent with the principle, enunciated in prior decisions of this Court, that where there is a question of credibilitybetween defence and Crown evidence on a vital issue, the jury should be told to consider the record as a whole and to give the benefit ofthe doubt to the accused’s version of events, rather than simply choosing the more believable of the two accounts: R. v.

Narieau, (SCC), [1984] 2 S.C.R. 570 (5CC.), at pp. 572-73; Morin supra, at p. 362; R. v. W.(D.), (SCC), [1991] 1S.C.R. 742 (5CC.), at pp. 749-50. Given the dispositive nature of the evidence in question, there is little risk that such an instructionwould be misleading, since a jury would ultimately have to apply the criminal standard to the evidence in any event by virtue of thegeneral instructions regarding the burden of proof.

Therefore, although the instruction does focus the jury’s attention on two pieces ofevidence, in its effect it is not much different from telling them that if all the evidence in the case raises a reasonable doubt in their mindsabout the guilt of the accused, they must acquit. [46] In the case under appeal, the Trial Judge framed her understanding of the W.(D.) principles as follows:– In reviewing the evidence, I reviewed the directions of the Supreme Court of Canada in the case referred as R v W.(D.).

Considering theinternal and external inconsistencies in the testimony of the accused, I conclude I do not believe him. Nor am I left in reasonable doubtby his testimony.

I do accept the evidence of the complainant, and that evidence establishes that on May 31st, 2009, Craig Jason Cainassaulted Michelle Ashley first by pushing her off the bed and then by kicking her in the stomach. [47] There is no evidence on the record that the Trial Judge instructed herself as to what “beyond a reasonable doubt” iscomprised of beyond finding only that she was not “left in reasonable doubt’ by [the Appellant’s] testimony” [Transcript, p. 32, II. 7-12],which it is submitted is an incorrect understanding of the W.(D.) principles and an error in law: she failed to conclude her analysis byconsidering whether, even if she was not left in doubt by the evidence of the accused, on the basis of the evidence which she did accept,she was convinced beyond a reasonable doubt by that evidence of the guilt of the Appellant.

And finally, in a trial where much of theevidence was diametrically opposed, she it is submitted clearly failed to grant the Appellant the benefit of the doubt as jurisprudencerequires.

[48] Instead it is submitted that the Trial Judge appears to have conflated the second and third W.(D.), elements. This would not, asper Farooq, necessarily be a problem.

However it is submitted that the Trial Judge’s conclusion (that she did not believe the Appellant,and that she did “accept the evidence of the Complainant” [Transcript, p. 32, II. 8-10]) indicates that she did not consider whether theevidence she did accept (which was explicitly that of the Complainant, although her reasons clearly indicate that she chose to believe theAppellant when his evidence was capable of corroborating the evidence of the Complainant) was capable of raising a reasonable doubt.In other words it is submitted that the Trial Judge drew her ultimate conclusion explicitly on a choice between the Complainant’sevidence and the Appellant’s evidence – a choice explicitly barred by Y.(C.L.) (Farooq, at paras. 24), and that she did not find theAppellant credible is not synonymous with finding him guilty as barred by S.(J.H.) (Farooq, at pars. 24).

To find otherwise is to requirethat the Appellant’s credibility to be sufficient to disprove the allegation made against him, thus reversing the onus of proof as barred byS.(J.H.) (Farooq, at para. 24). [49] This is further supported by the order in which the Trial Judge proceeded her analysis: first in regards to the evidence of theComplainant, which was accepted, before proceeding to the evidence of the Appellant.

It is submitted that the Trial Judge disbelievedthe Appellant’s evidence largely on the basis of it being incapable of corroborating that of the Complainant, which she largely mis-characterized and/or misapprehended.

In fact, she explicitly only accepts the Appellant’s evidence where she finds (correctly orincorrectly) that it did corroborate the evidence of the Complainant, as in the rational behind, and timing of, the Complainant’s move toFort Saskatchewan (which the Trial Judge correctly apprehended) [Transcript, p. 30, Il. 29-40], or the narrative of events immediatelypreceding the alleged assault (which the Trial Judge incorrectly apprehended) [Transcript, p. 20, 11.1-17; p. 31, II. 32-34]. [50] As Mr.

Justice Fish noted in dissent in Y.(C.L.), “[t]he very purpose of adhering to the procedure set out in W.(D.) is toforeclose an inadvertent shifting of the burden of proof where the complainant and the accused have both testified and the outcome of thetrial turns on their credibility as witnesses” (emphasis in original). [51] Moreover, as noted in R v Morin, (SCC), [1992] 3 S.C.R. 286 it is important to remember the principle thatthe evidence at trial is to be considered in totality, and each individual piece of evidence is not to be held up separately and the questionof whether or not it is capable of belief beyond a reasonable doubt:– 20 In R. v.

Morin, (SCC), [1988] 2 S.C.R. 345, 66 C.R. (3d) 1, 88 N.R. 161, 30 O.A.C. 81, 44 CCC. (3d) 193, wedecided that the trial judge erred in instructing the jury that they should examine individual pieces of evidence and subject thempiecemeal to the - criminal standard. We held that the criminal standard was to be applied to the ultimate issue and not in the weighing ofindividual pieces of evidence. With respect to the weighing of evidence, the manner in which the jury assessed individual pieces ofevidence was not a question of law in respect of which the trial judge was required to instruct the jury.

The basic requirement was thatthe jury was to be instructed that they must consider the whole of the evidence and determine on that basis whether the guilt of theaccused had been established beyond a reasonable doubt. See Morin, supra, at pp. 361-362 [S.C.R.]. [52] It is submitted that the Trial Judge examined the viva voce evidence of both parties in a piecemeal fashion, rather than as awhole, and found that she preferred that of the Complainant.

This examination included the already noted misapprehensions and/or mis-characterizations of evidence, and concluded with her decision as to whether each peace was reasonably capable of belief.

As alreadynoted regarding the Trial Judge’s conflation of the second and third W.(D.) principles, this prevented the Trial Judge from consideringthe evidence as a whole, and from asking herself whether, based on the evidence she did accept, a reasonable doubt was raised. [53] It is submitted that despite clear and cogent evidence to the contrary, she found that the Complainant was consistent in herevidence while the Appellant was inconsistent and incredible in his own [Transcript, p. 31, II. 11-26].

The Trial Judge found theexplanations given by the complainant regarding how she proceeded subsequent to the alleged assault “reasonable” [Transcript, p. 31, II.22-26]. In direct contrast, she implicitly found that the Appellants decision to bring the Complainant to Fort Saskatchewan to live withhim in a two-bedroom apartment rented expressly for that purpose unreasonable [Transcript, p. 31,11.38-41].

These findings (again,based largely on misapprehensions and/or mis-characterizations of the evidence) clearly indicate in the Accused’s argument that the TrialJudge’s subsequent finding of guilt was not based on a sound application of the principles in W.(D.), but on a preference for theComplainant’s evidence.

A simple preference for one party’s evidence over the other party’s is not the sole condition precedent for afinding of guilt beyond a reasonable doubt. [54] It is the Appellant’s position that the Trial Judge erred mis-characterizing and/or misapprehending the evidence of theComplainant and making a finding of guilty solely on the basis of a credibility contest in which she reversed the onus of proof and foundthe Appellant’s evidence was unable to disprove the evidence of an assault as presented by the Appellant.

Each piece of evidence wasconsidered individually as to whether or not it was capable of raising a reasonable doubt, and there was no consideration of whether, onthe basis of the evidence the Trial Judge did accept, a reasonable doubt was raised. For these reasons, the decision is not supported by the

facts and requires appellate reconsideration. [55] Under the authority held by this Court pursuant to s. 686(2)(

a) of the Criminal Code, the Appellant asks that this Court quashthe conviction entered by the Trial Judge and direct that an acquittal be entered in its stead. Alternatively, under the authority held by thisCourt pursuant to s. 686(2)(

b) of the Criminal Code, the Appellant asks that this Court quash the conviction entered by the Trial Judgeand direct that a new trial be held.

Conclusion [56] The Appellant argues that the Trial Judge erred in her application of the test enunciated in W.(D.). [57] The Appellant further argues that the Trial Judge misapprehended and/or mis-characterized the evidence such that the verdictis unreasonable. [58] While a finding of credibility is akin to a finding of fact and owed great deference, the failure to apply the correct legal test toa set of facts is an error of law, reviewable on the standard of correctness: R. v.

Sheppard, 2002 SCC 26 (S.C.C.) at paragraph 29. [59] However it is not open to an appeal court to disagree with the Trial Judge’s assessment of credibility, unless the reasonsdemonstrate a palpable and overriding error in appreciating either the law or evidence:– [10] There is general agreement on the test applicable to a review of a finding of credibility by a Trial Judge: the appeal court mustdefer to the conclusions of the Trial Judge unless a palpable or overriding error can be shown. It is not enough that there is a differenceof opinion with the Trial Judge (Schwartz v.

R., (SCC), [1996] 1 S.C.R. 254 (S.C.C.), at paras. 32-33; H.L. v. Canada(Attorney General), [20051 1 S.C.R. 401, 2005 SCC 25 (S.C.C.), at para. 74).... [20] Assessing credibility is not a science. It is very difficult for a Trial Judge to articulate with precision the complex interminglingof impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events. That iswhy this Court decided, most recently in H.L., that in the absence of a palpable and overriding error by the Trial Judge, his or herperceptions should be respected. (emphasis added) R. v.

Gagnon, 2006 SCC 17 , [2006] 1 S.C.R. 621. Setting Out the Test in W.(D.) and Reasonable Doubt [60] The Supreme Court of Canada in R. v. R.E.M., 2008 SCC 51 , [2008] 3 S.C.R. 3, 2008 S.C.C. 51 ruled that therecord must disclose a rational basis for concluding that the trial judge erred in appreciation of a relevant issue or evidence affecting thepropriety of his verdict for an appeal court to find an error of law has been committed.

It reasonable to infer that the trial judgeunderstands the basic principles of criminal law and he or she does not have to recite well-settled authorities in detail and the failure to doso is not an error of law. [61] A trial judge is not required to recite the rule set out in W.(D.) provided the reasons demonstrate that she seized upon the

substance of the issue of reasonable doubt in the context of assessing credibility: R v Dinardo, 2008 SCC 24 , 2008 S.C.C. 24; Rv Y.(C.L.), 2008 SCC 2 , [2008] 1 S.C.R. 5. [62] Justice Charron in R. v. Dinardo, at paragraph 23 explained:– 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 trialJudge must direct his or her mind to the decisive question of whether the accused’s evidence, considered in the context of the evidence asa whole, raises a reasonable doubt as to his quilt.

Put differently, the trial Judge must consider whether the evidence as a wholeestablishes the accused’s quilt beyond a reasonable doubt. [63] Appellate courts recognize that the assessment of credibility is not a science and it is often difficult to articulate withprecision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile thevarious versions of events.

An appeal court must not ignore the trial judge’s unique position to see and hear the witnesses and must becautious about substituting their own assessment of credibility for that of the trial judge’s. The question for the appeal court is whetherthe decision read as a whole shows the trial judge considered the evidence as a whole and considered whether that evidence has left herwith a reasonable doubt. [64] An appellant court may not intervene simply because it thinks the trial court did a poor job expressing itself. To justifyappellate intervention, there must be a functional failing in the reasons.

The reasons, read in the context of the evidentiary record and liveissues to be decided, must fail to disclose an intelligible basis for the verdict permitting meaningful appellate review. Further, theappellate courts should begin from a stance of deference to the trial judge’s perceptions of the facts. [65] The court in R v M.(R.E.) explains what the task of the appellate court is in reviewing a trial judge reasons:– The trial judge should not be found to have erred in law for failing to describe every consideration leading to a finding of credibility, or tothe conclusion of guilt or innocence.

Nor should error of law be found because the trial judge has failed to reconcile every frailty in theevidence or allude to every relevant principle of law. Reasonable inferences need not be spelled out. For example if, in a case that turnson credibility, a trial judge explains that he or she has rejected the accused’s evidence, but fails to state that he or she has a reasonabledoubt, this does not constitute an error of law; in such a case the conviction itself raises an inference that the accused’s evidence failed toraise a reasonable doubt.

Finally, appellate courts must guard against simply sifting through the record and substituting their ownanalysis of the evidence for that of the trial judge because the reasons do not comply with their idea of ideal reasons. As was establishedin R. v. Harper, (SCC), [1982] 1 S.C.R. 2 (S.C.C.), at p. 14, “[a]n appellate tribunal has neither the duty nor the right toreassess evidence at trial for the purpose of determining guilt or innocence....

Where the record, including the reasons for judgment,discloses a lack of appreciation of relevant evidence and more particularly the complete disregard of such evidence, then it falls upon thereviewing tribunal to intercede.” [66] Where a case turns largely on determinations of credibility, such as the case at barr the reasons should be considered in lightof the deference afforded to trial judge’s credibility findings. Rarely will the deficiencies in the trial judge’s credibility analysis, asexpressed in the reasons for judgment, merit intervention on appeal.

The assessment of the sufficiency of reasons should not occur in theabstract, but should be directed at whether the reasons respond to the case’s live issues, having regard to the evidence as a whole and thesubmissions of counsel.

A failure to sufficiently articulate how credibility concerns were resolved may constitute a reversible error whenthere is contradictory evidence on a key issue, if the basis of the trial judge’s conclusion is not apparent from the record. [67] While the Trial Judge in the present case did not proceed with a formulistic assessment of the evidence in accordance with thesteps in W.(D.), she clearly seized upon the critical issues, analyzed the evidence, made findings of fact, and formed conclusions as to hersatisfaction.

Reasonable Doubt [68] The Appellant argues that the Trial Judge erred when she failed to consider that the second step in the W.(D.) analysis, that is,she failed to consider whether the Appellant’s evidence, although disbelieved, raised a reasonable doubt when considered with the

evidence as a whole. [ 69 ] There is no indication in the record that the Trial Judge engaged in any improper reasoning, or that she failed to apply the principle of reasonable doubt to the evidence. She did not engaged in the type of forbidden reasoning that W.(D.) and other credibility cases caution against; that is, she did not simply engage in a credibility contest.

It is clear from her reasons that the Appellant’s evidence did not raise a reasonable doubt, and it is also clear that she considered whether the Crown’s case had been proven beyond a reasonable doubt by the rest of the evidence. [ 70 ] The Trial Judge did not reject the Appellant’s evidence simply because she found the complainant’s evidence to be more believable or merely because she had accepted her evidence. She rejected the Appellant’s evidence because she found his version of events to be internally and externally inconsistent.

She explains what those inconsistencies are. [ 71 ] Given that the Trial Judge rejected the Appellant’s evidence in its entirety, the Court was left with the evidence of the other witness as to what occurred.

The Court carefully assessed the complainant’s evidence, and went on to accept her evidence. [ 72 ] I conclude that the Record does not disclose a palpable error, or that the Trial Judge did not seize the substance of the issue of reasonable doubt in the context of assessing credibility. [ 73 ] Accordingly, there is no permissible basis to interfere with the findings of credibility made and the appeal is hereby dismissed. Heard on the 7 th day of July, 2011. Dated at the City of Edmonton, Alberta this 12 th day of July, 2011. Donald Lee J.C.Q.B.A. Appearances: Derek J.

Anderson Knisely Shipanoff LLP for the Appellant Greg Lyndon

Alberta Department of Justice for the Respondent Crown