R. v. Downing, 2012 ABQB 287

Court of Queen ’ s Bench of Alberta Citation: R. v. Downing, 2012 ABQB 287 Date: 20120502 Docket: 100906148S1 Registry: Edmonton Between: Peter Gregory Downing Appellant - and - Her Majesty the Queen Respondent Corrected judgment: A corrigendum was issued on May 16, 2012; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice K.G. Nielsen _______________________________________________________

Summary Conviction Appeal The Honourable Judge Gardner Dated the 6 th day of June, 2011 Filed on the 12 th day of July, 2011 Docket: 100906148S1

I. Introduction [ 1 ] Peter Gregory Downing was convicted on June 6, 2011 in the Provincial Court of Alberta on a charge of uttering a threat. He was sentenced to a Conditional Discharge with a probationary period of nine months. Mr. Downing applies to quash the conviction, and for leave to adduce fresh evidence for consideration on the conviction appeal. The sentence has not been appealed. II. Background [ 2 ] Mr. Downing alleges that there was a miscarriage of justice in his Provincial Court trial. As a result, I will review those proceedings in some detail. [ 3 ] The single count Information against Mr.

Downing alleges that he: On or between the 1 st day of December A.D. 2009 and the 7 th day of December A.D. 2009, at or near St. Albert, in the Province of Alberta, did in person knowingly utter a threat to Melanie Francine Wade to cause serious bodily harm contrary to s. 264.1(1) (

a) of the Criminal Code . [ 4 ] At the time of the alleged offence and at the time of trial, Mr. Downing and Ms. Wade were husband and wife. Mr. Downing was a member of the RCMP. Ms. Wade complained to the police some seven months after the incident in question as a result of other incidents occurring between the parties. [ 5 ] Ms. Wade was the only witness called by the Crown at the trial. At the outset of Ms. Wade’s evidence, trial counsel for Mr. Downing (Trial Counsel) (not Mr. Anderson), sought to enter into a voir dire to address admissibility issues with respect to Ms. Wade’s competency to testify.

Trial Counsel took the position that Ms. Wade was not competent under s. 4 of the Canada Evidence Act , RSC, c C-5 or otherwise, as she and Mr. Downing were married at the time of the alleged incident and at trial. Trial Counsel argued that the onus was on the Crown to prove that Ms. Wade was competent to testify. [ 6 ] The Crown initially resisted the suggestion that a voir dire was appropriate, but then took the position that because Ms.

Wade was sworn in, the voir dire should ensue on the understanding that if she was found to be competent, her voir dire evidence would be applied to the trial proper and the Crown would not need to recall Ms. Wade. Trial Counsel raised no objection to this process. The voir dire proceeded on this basis. [ 7 ] During the voir dire , Ms. Wade testified that on the evening in question she and Mr. Downing were having an argument in their bedroom which was located on the second floor of their residence. Mr. Downing punched a standing fan and cut his hand.

With his bleeding hand he wrote the word “bitch”, or “something like that”, on the bedspread. At that point, Ms. Wade jumped up on the bed. She testified that Mr.

Downing then stated that “if [she] was going to get physical with him, he would throw her out the fucking window”. [ 8 ] Trial Counsel cross-examined her with respect to, among other things, two separate statements she had made to the police, why she jumped up on the bed, and whether there had been efforts at reconciliation. [ 9 ] Trial Counsel argued on the voir dire that the threat exception to spousal competency did not apply due to the nature of the threat, and the lack of a reasonable belief on the part of Ms. Wade that it would be carried out.

He argued that this was supported by the evidence that she did not find it necessary to absent herself from the house, but simply left the bedroom and stayed in the child’s bedroom next door. [ 10 ] The only evidence on the voir dire was the testimony of Ms. Wade. The trial judge, in rendering the decision on the voir dire stated that before Ms. Wade’s evidence could be admitted in the trial proper, he must be satisfied that one or both of the exceptions to

spousal competency (irreconcilable separation or threat) had been met on a balance of probabilities. [11] The trial judge found on Ms. Wade’s evidence that reconciliation was not a reasonable prospect, and that the threat to her tobe thrown from the second floor window was “one which meets the test”, citing in particular the rapidly deteriorating relationship at thattime, Mr.

Downing’s physical act of striking the fan thereby causing his hand to bleed, his alcohol consumption on the night in question,and his pattern of alcohol consumption, which was a consistent aggravating factor in their deteriorating relationship. Ms. Wade was,therefore, competent to testify and the evidence that Ms. Wade had given on the voir dire was applied to the trial proper. [12] Following the voir dire ruling, Trial Counsel did not cross-examine Mr. Wade further and the Crown closed its case againstMr. Downing. [13] Mr. Downing then testified. On the evening in question the parties had an argument.

He had been out drinking and hadconsumed four beer during the evening. He raised his voice and in anger hit a fan in the bedroom, cutting his hand. Mr. Downing deniedwriting the word “bitch” on the bedspread. Rather he stated he wiped the blood from his hand on the blanket. [14] At that point, according to Mr. Downing, Ms. Wade jumped up on the edge of the bed, growled and leaned forward in alunging manner at him. He thought she was going to “claw” his face. He then stated, “Are you fucking crazy, like I could throw you outthe window”.

He testified that he did not mean to threaten her in any way, but rather this was a defensive statement to stop her fromattacking him and to “snap her out of” the rage that she was in. He stated that he was trying to use the training he received in the RCMPto de-escalate the situation. [15] On cross-examination, Mr. Downing stated that he did not observe any indication that Ms. Wade was under the influence ofalcohol.

He made the “rhetorical statement” about throwing her out the window to attempt to stop her from doing what she was doing.He denied trying to intimidate her; he just did not want to get his eyes gouged. He agreed in cross-examination that he is 6 feet tall, andweighs approximately 240 pounds. He is a trained RCMP officer who has dealt with violent situations in the past. He agreed Ms. Wade isa small woman, probably weighing 100 pounds less than him.

When asked whether the concept of being thrown through a window isone that a person would take seriously, or is a serious issue, he replied: “If somebody was – I mean, if somebody – if I thought I wasgoing to be thrown through a window I would take it seriously”. He stated he was closer to the exit of the room than was Ms. Wade. Heagreed that he had the ability at that time simply to leave the room. He denied having made the threat in anger. Rather, he made it out ofconcern for himself. He was only angry in the preceding moments when he punched the fan and cut his hand. Mr. Downing suggestedthat Ms.

Wade twisted the story over time; she would initiate an argument and if he ever raised his voice in objection, she would referback to the incident. [16] Various matters were put to Mr. Downing in chief which had not been put to Ms. Wade in her cross-examination during thevoir dire, and the Crown sought to recall Ms. Wade to put those matters to her. Leave was granted to the Crown to recall Ms. Wade forthis purpose. [17] On re-examination, Ms. Wade agreed that she was screaming at Mr. Downing at the time, but denied that she lunged towardhim with her hands in claws. She denied ever going after him in any way.

She denied ever positioning her body or her hands so as to bethreatening. She denied that she was in a rage. She stated that they had a discussion the following morning during which she told him shewould leave if he did not stop drinking. She stated that subsequent to the incident, she told Mr. Downing that she was sure his buddy theinspector would like to know how he was treating her and threatening to throw her out the window. She agreed that he wrote the word“bitch” on the comforter. [18] At the conclusion of her re-examination, Trial Counsel attempted, but was not permitted, to put questions to Ms.

Wade whichdid not arise out of her re-examination. This ended Ms. Wade’s testimony and concluded the evidence in the case. [19] Trial Counsel in oral argument stated that the case was rather straightforward given the evidence, and that it was a situation inwhich the principles in R v W(D), (SCC), [1991] 1 SCR 742, 63 CCC (3d) 397 would apply. The Court signalled itsagreement. Trial Counsel then argued that if the statement was found to be a threat, it would fall under self-defence or proper de-escalation, but it was not intended to be a threat. Trial Counsel further argued that in testifying, Ms.

Wade was argumentative, sarcastic,had to be reminded by the Court to answer questions, and did not remember a significant number of events. Mr. Downing did not denyhitting the fan, nor uttering the words. In contrast, Ms. Wade was evasive, inconsistent, had delayed seven months before reporting, andeven admitted to threatening Mr. Downing that she would report him on at least one occasion. Further, the conditional nature of the

statement supported Mr. Downing’s version that he was concerned that Ms. Wade would attack him. [20] The Crown argued that leaving the room would have been an easy and obvious way out of the situation for Mr. Downing.The Crown submitted that Mr. Downing had a very clear memory of certain aspects of the evening, while he had no recollection of otheraspects.

The Crown referred to R v McCraw, (SCC), [1991] 3 SCR 72, [1991] SCJ No 69, in which the Court held thatto determine whether spoken or written words constitute a threat to cause serious bodily harm they must be looked at in the context inwhich they were spoken or written, in light of the person to whom they were addressed, and the circumstances in which they wereuttered.

They should be viewed in an objective way and the meaning attributed to the words should be that which a reasonable personwould give to them. [21] The trial judge found that during an argument in the second floor bedroom and while both were angry, Mr. Downing puncheda fan in anger, cutting his hand, and then Ms. Wade jumped on the bed upon which she had been sitting. She was fearful that he wouldpunch her. He said, “If you get physical with me, I will throw you out of the window”. At the time he was standing at the foot of the bed,near the window and between her and the door. Mr.

Downing acknowledged that prior to her jumping on the bed he did strike the fanwith his hand, but denied punching it as Ms. Wade described it. Both acknowledged that the contact with the hand to the fan causedbleeding. Ms. Wade stated that Mr. Downing used the bloodied hand to write the word “bitch” in blood on the bedsheet. Mr. Downingstated that he only wiped his hand (somewhat inexplicably according to the trial judge) on the sheet. The trial judge added that thisappeared curious. [22] The trial judge outlined the R v W(

D) test as follows: ...I must firstly determine if I believe the accused. If I do, of course I must acquit. Further, if I am uncertain as to whether I believe theaccused and the complainant, I must also acquit. If, in fact, I disbelieve the accused but find that there is credible evidence from thecomplainant which I believe as to all the aspects making out the offence, this then must result in a conviction. [23] The trial judge went on to state, regarding the issue of intent, that if the Mr.

Downing’s words, when viewed objectively inthe circumstances, would convey a threat of bodily harm to a reasonable person, the offence would be made out; if they were uttered, asMr. Downing claimed, to calm down the situation and to snap Ms. Wade out of her rage, this would constitute a defence to the charge. [24] The trial judge rejected Mr. Downing’s version of the events. He noted that Mr. Downing was very certain regarding whathappened in the bedroom, but uncertain about surrounding circumstances. The trial judge was particularly troubled that Mr.

Downingwould, in relying on his professional training as a police officer to de-escalate a volatile situation, use words which were so inherentlyviolent. The trial judge stated: It just does not make sense if he were trying to calm Ms. Wade down to threaten to throw her out of a window. I note his alsoimmediately preceding violent action of striking the fan, whether it was done with an open or a closed hand. He was closest to the doorand could simply have left the room. His words and his actions do not fit with his stated intent, as I said earlier, in his words, to snap herout of her rage.

They are much more consistent with an intent to intimidate and instill fear. [25] Regarding Ms. Wade’s evidence, the trial judge stated: ... I accept it without hesitation and find that the words spoken were as described to me in her testimony, and as I stated earlier, and thatshe made no aggressive moves towards the accused. She was simply fearful and backed away from him by jumping up on the bed. And Ialso find that the word as she described it was written on the sheet.

She was not shaken on cross-examination from her position and only became somewhat testy, if I can use that word, when confrontedwith the suggestion, when she was called in rebuttal because these matters were not put to her in cross-examination, that she had been thephysical aggressor in the confrontation. I find that she in fact did fear for her safety and that the words, “If you get physical with me, Iwill throw you out the window”, are the words that were used.

Nor am I concerned that her complaint to the police came when it did, that is, some months after the incident. While things weredeteriorating, there was never any actual physical violence in the relationship. Things calmed down that evening and did not escalate thefollowing morning. And I find that Ms. Wade was genuinely concerned about the ability of the couple working things out for a period oftime after the incident in question. And she was also concerned about the difficulty that reporting such a threat would present to herhusband given his employment.

Nothing in her evidence, I find, gives me the basis for a doubt and accordingly I find that all that isnecessary for the Crown to establish that a threat was conveyed or uttered to her on that occasion happened, and accordingly I find theaccused guilty of the charge that he is facing. III. Issues 1. Should Mr. Downing be granted leave to adduce fresh evidence on this appeal? 2. Was the assistance of Trial Counsel so ineffective as to render the verdict unreasonable or to result in a miscarriage of justice? 3. Should the conviction be quashed? IV. Standard of Review [26] Pursuant to s. 686(1)(

a) of the Criminal Code, RSC 1985, c C-46, an appeal against conviction may be allowed on threepossible grounds: 1. the verdict is unreasonable or cannot be supported by the evidence; 2. the judgment of the trial court demonstrates an error on a question of law; or 3. there has been a miscarriage of justice. [27] The standard of review on questions of law is correctness. The standard of review on questions of fact is palpable andoverriding error.

Trial judges are entitled to substantial deference on findings of fact: Housen v Nikolaisen, 2002 SCC 33, [2002] 2 SCR235). [28] The standard of review for unreasonable verdict is whether, on the whole of the evidence, a properly instructed trier of factcould reasonably have reached the same verdict, which is a question of law. Appellate courts must engage only in a limited re-weighingof the evidence. Decisions by the trier of fact on issues of credibility do not call for appellate intervention unless they are clearlyunreasonable or unsupported by the evidence.

Findings on credibility must be accorded great deference by appellate courts: R v W(R), (SCC), [1992] 2 SCR 122, 74 CCC (3d) 134; R v Jansen, 1998 ABCA 371, 228 AR 12; R v Chan, 2008 ABCA 88, 429AR 101. V. Analysis [29] The considerations and law relevant to the three issues set out above overlap to a considerable extent.

[ 30 ] Central to this matter is Mr. Downing’s submission that representation by Trial Counsel was generally ineffective because: - he pursued a voir dire on spousal competency when such a voir dire was neither required nor appropriate; - he failed to properly cross-examine Ms. Wade on matters beyond the common law exceptions to spousal competency; - he failed to challenge Ms. Wade on her evidence based on what he knew the evidence of Mr. Downing would be, thereby, breaching the principles in Browne v Dunn (1893), 6 R 67 (HL); - he failed to effectively address credibility issues as between Mr. Downing and Ms.

Wade; and - he failed to properly argue the effect of the Supreme Court of Canada decision in R v W(D) . Criteria for Admission of Fresh Evidence [ 31 ] Mr. Downing submits that the evidence which he seeks to introduce on the appeal is relevant to a consideration of whether the assistance he received from Trial Counsel was effective. [ 32 ] The proposed evidence consists of: - an affidavit by Mr. Downing - an affidavit by Trial Counsel - documents regarding Emergency Protection Applications by Ms. Wade against Mr. Downing - documents regarding the marital relationship between Mr. Downing and Ms.

Wade, and - a document related to the removal of firearms from Mr. Downing’s possession. [ 33 ] At the hearing of this appeal, counsel for the Crown was granted leave, in the course of the appeal hearing, to cross-examine Mr. Downing on his affidavit. The nature of the cross-examination related to when Mr. Downing became aware of the information that was now sought to be introduced on the appeal, and whether he had provided such information to Trial Counsel. [ 34 ]

Section 822 of the Criminal Code provides that where a

summary conviction appeal is taken pursuant to s. 813 of the Criminal Code , then ss. 683 to 689 , which apply to appeals of indictable offences also apply to a

summary conviction appeal (with certain exceptions not applicable here). [ 35 ] Section 683(1) of the Criminal Code provides in part: 683(1) For the purposes of an appeal under this Part, the court of appeal may, where it considers it is in the interests of justice,

(

a) order the production of any writing, exhibit or other thing connected with the proceedings, (

b) order any witness who would have been a compellable witness at the trial, whether or not he was called at the trial, (

i) to attend and be examined before the court of appeal, or (ii) to be examined in the manner provided by rules of court before a judge of the court of appeal, or before any officer of the courtof appeal or justice of the peace or other person appointed by the court of appeal for the purpose; (

c) admit, as evidence, an examination that is taken under subparagraph (b)(ii); (

d) receive the evidence, if tendered, of any witness, including the appellant, who is a competent but not compellable witness. [36] Our Court of Appeal in R v Carr, 2010 ABCA 386, 2010 Carswell Alta 2429, succinctly summarized the test for theadmission of fresh evidence on appeal: 25 This Court has a broad discretion to admit new evidence on appeal where it considers it in the interests of justice: section 683(1) ofthe Criminal Code. Generally speaking, fresh evidence may be tendered for two purposes.

First, such evidence may be directed toimpeaching a material finding at trial, and second, its admission may be for the purpose of impugning the integrity of the trial process bydemonstrating that an appellant did not obtain a fair trial: Cromwell J.A. (as he then served) in R v Wolkins, 2005 NSCA 2 (N.S.C.A.) atpara. 58, (2005), 192 C.C.C. (3d) 378 (N.S.C.A.).

The legal test for the admission of fresh evidence for each of the above purposesdiffers somewhat, but, common to both tests, the fresh evidence must demonstrate that its admission is required to prevent a possiblemiscarriage of justice. 27 The appellant submits that the fresh evidence discloses that material evidence, which was available at trial, was not adduced byreason of the ineffective assistance of counsel. Incompetent legal assistance can, of course, take several forms and may stand alone as thecause of a miscarriage of justice.

In this case, however, the allegation of incompetent representation arises in the context of a freshevidence application.

In these circumstances, it is appropriate to perform the analysis for its admission subject to the so-called Palmertest. 28 The criteria for the admission of fresh evidence are set out in R v Palmer (1979), (SCC), [1980] 1 S.C.R. 759(S.C.C.) at paras. 24 - 27 (1979), 106 D.L.R. (3d) 212 (S.C.C.): (1) the evidence should generally not be admitted if by due diligence it could have been adduced at trial, provided that this generalprinciple will not be applied as strictly in a criminal case as in civil cases: see McMartin v R, (SCC), [1964] S.C.R. 484; (2) the evidence must be relevant, in the sense that it bears upon a decisive or potentially decisive issue in the trial; (3) the evidence must be credible, in the sense that it is reasonably capable of belief; and (4) it must be such that, if believed, it could reasonably, when taken with the other evidence adduced at trial, be expected to haveaffected the trial. [37] LeBel J. for the Court in R v Taillefer, 2003 SCC 70, [2003] 3 SCR 307 at para 77 cited with approval R v Widdifield (1995),

(ON CA), 84 OAC 241 for the proposition that the Palmer test does not apply rigidly to new evidence which does notrelate to an issue decided at trial, but rather is required to establish a ground of appeal which puts in question the trial process itself. InWiddifield, Doherty J.A. for the Court held: 17 When a party tenders fresh evidence on appeal, a determination of "the interests of justice" requires an examination of the groundsof appeal raised, the material tendered and the remedy sought.

Here, the appellants allege that the conduct of their counsel in acting forboth of them at trial led to a miscarriage of justice. The conduct of trial counsel, including allegations of a conflict of interests, can beraised for the first time on appeal: R v Garofoli (1988), (ON CA), 41 C.C.C. (3d) 97 at pp. 150-52, 43 C.R.R. 252(Ont. C.A.), reversed on other grounds (SCC), [1990] 2 S.C.R. 1421, 60 C.C.C. (3d) 161; R v Silvini (1991), (ON CA), 5 O.R. (3d) 545, 68 C.C.C. (3d) 251 (C.A.).

When such allegations are raised, the court must consider theconduct of counsel and determine whether it resulted in a miscarriage of justice.

Since the court is charged with the responsibility ofquashing convictions which, because of the conduct of counsel, constitute a miscarriage of justice, it must follow that the interests ofjustice may require that the court consider material extraneous to the trial record but relevant to counsel's conduct. ... 19 Where an appellant contends that trial counsel's conduct resulted in a miscarriage of justice, the interests of justice will generallyrequire that this court receive otherwise admissible evidence relevant to that claim.

In so stating, I assume that the material sought to beadduced provides a basis upon which the court could conclude that a miscarriage of justice occurred. I also assume that the opposingparty has had adequate notice of the material, an opportunity to challenge it by cross-examination and an opportunity to offer additionalmaterial relevant to the issue.

If such material is tendered and received by the appellate court, it will be considered along with the trialrecord in the assessment of the appellants' claim. [38] The Court went on in Taillefer at para 91 to hold that in analyzing fresh evidence to assess its impact on the process, a courtmust not break the evidence down or address its individual parts; it must be analyzed as a whole. [39] Mr. Downing’s counsel submits that this application should be assessed under both tests: the Palmer test regarding evidencegoing to credibility, and the more relaxed test regarding evidence about assistance of counsel.

As the Court of Appeal in Carr noted atpara 25, under both tests it must be demonstrated that admission of the fresh evidence is required to prevent a possible miscarriage ofjustice. Ineffective Assistance by Counsel [40] The Supreme Court of Canada in R v B(GD), 2000 SCC 22, [2000] 1 SCR 520 addressed the topic of ineffective assistanceby counsel.

Major J. for the Court cited the Ontario Court of Appeal decision in R v Joanisse (1995), (ON CA), 102CCC (3d) 35 at page 57: Where counsel fails to provide effective representation, the fairness of the trial, measured both by reference to the reliability of theverdict and the adjudicative fairness of the process used to arrive at the verdict, suffers. In some cases the result will be a miscarriage ofjustice. [41] Major J. in R v B(GD) continued: 26 The approach to an ineffectiveness claim is explained in Strickland v. Washington, 466 U.S. 688 (U.S. Sup. Ct. 1984), perO’Connor, J.

The reasons contain a performance component and a prejudice component. For an appeal to succeed, it must be established,first, that counsel’s acts or omissions constituted incompetence and second, that a miscarriage of justice resulted. 27 Incompetence is determined by a reasonableness standard. The analysis proceeds upon a strong presumption that counsel’s conductfell within the wide range of reasonable professional assistance. The onus is on the Appellant to establish the acts or omissions ofcounsel that are alleged not to have been the result of reasonable professional judgment.

The wisdom of hindsight has no place in thisassessment.

28 Miscarriages of justice may take many forms in this context. In some instances, counsel’s performance may have resulted inprocedural unfairness. In others, the reliability of the trial’s result may have been compromised. 29 In those cases where it is apparent that no prejudice has occurred, it will usually be undesirable for appellate courts to consider theperformance component of the analysis. The object of an ineffectiveness claim is not to grade counsel’s performance or professionalconduct. The latter is left to the profession’s self-governing body.

If it is appropriate to dispose of an ineffectiveness claim on the groundof no prejudice having occurred, that is the course to follow (Strickland, supra, at p. 697). [42] The Alberta Court of Appeal followed this analysis in its decision in R v Carr. [43] The Ontario Court of Appeal in its decision in R v B(J), 2011 ONCA 404, 2011 CarswellOnt 3499 commented on the matterof ineffective counsel as follows: 2 There are several prerequisites which must be met before a court will set aside a conviction on the basis of ineffective assistance ofcounsel.

First, the appellant must establish the facts underlying the allegation on a balance of probabilities. Second, the appellant mustestablish that the acts or omissions amount to incompetence. Third, the appellant must establish that the ineffectiveness resulted in amiscarriage of justice, by undermining either the appearance of a fair trial or the reliability of the verdict. The court is to determine thelast question first, as, if competent representation could not have altered the verdict, it is unnecessary to undertake the other parts of theanalysis. (citations omitted). [44] The affidavit of Mr.

Downing in relation to the fresh evidence application relates solely to waiver of solicitor client privilegefor the purpose of this application.

The affidavit of Trial Counsel in relation to the fresh evidence application does not directly relate toan issue decided at trial, but rather to the trial process itself. [45] It is not in the interests of justice to receive evidence that simply purports to explain the thought process of counsel that led toa decision made at trial, and the record speaks for itself: R v Pilotte (2002), (ON CA), 156 OAC 1, 163 CCC (3d)225 at para 50. [46] I will, therefore, in the first instance consider the affidavits of Mr.

Downing and Trial Counsel under the more relaxed testregarding assistance of counsel, subject to the caution that generally the record speaks for itself as to whether any ineffectiveness resultedin a miscarriage of justice. The Voir Dire [47] Mr. Downing argues that the voir dire with respect to Ms. Wade’s competency to testify was inappropriate and that the rulingmade by the trial judge at the conclusion of the voir dire resulted in a miscarriage of justice. In particular, the trial judge ruled on abalance of probabilities that a threat had been made, and found Ms. Wade competent to testify. Mr.

Downing argues that this was a pre-judgment of the central question before the trial judge and foreclosed Mr. Downing’s ability to argue his defence from the position of aninnocent at law. Mr. Downing argues that as a result of the ruling on the voir dire he was obliged, effectively, to disprove that a threathad been made. [48] It was agreed on appeal that a voir dire was not necessary in the circumstances. The issue of spousal competency generallyarises in the context of an offence alleged to have been committed against a third party.

The common law exceptions to spousalincompetency - irreconcilability and a threat to the person of the spouse - must be analysed by a trial judge in such situations todetermine whether a spouse is competent to testify. [49] This case involves a situation in which Mr. Downing was charged with the offence of uttering a threat against his spouse. The

spousal incompetency rule does not apply where the charge involves a threat of injury to the person, liberty or health of the witness spouse: R v Couture , 2007 SCC 28 , [2007] 2 SCR 517 ; R v Schell , 2004 ABCA 143 , [2004] AJ No 495 at paras 33 to 38 . It is clear from the count on the Information that Ms. Wade is the complainant in relation to such a charge. Therefore, Ms. Wade was at all times compellable and competent to testify in relation to the charges which were personal to her, that is, in which she was the alleged victim. [ 50 ] There was, therefore, no need to enter into the voir dire . Ms.

Wade’s evidence should have been entered in the trial proper without any consideration of entering into a voir dire . The issue, therefore, is whether a miscarriage of justice resulted by proceeding with the voir dire . [ 51 ] Trial judges regularly enter into voir dires to determine whether evidence is admissible. The determination of admissibility of evidence in a voir dire is made on the basis of a balance of probabilities, so as to ensure that the ultimate decision of the trier of fact is not usurped by the trier of law.

In jury trials, once evidence has been ruled by the trial judge to be admissible, the jury, as the trier of fact, will decide the ultimate issue. In judge alone trials, after evidence has been determined to be admissible in a voir dire, it is the trial judge who decides the ultimate issue. Of course, in both situations the ultimate determination must be based on whether the Crown has proven the necessary elements of the offence charged beyond a reasonable doubt. Trial judges often make decisions in the context of a voir dire involving assessments of credibility.

This does not mean that they are unable to apply the proper test in the trial. [ 52 ] While the procedure followed in this case was unnecessary, there is nothing in the trial judge’s reasons to suggest that the ruling on the voir dire resulted in the burden of proof being placed on Mr. Downing on the ultimate issue. The reasons of the trial judge on the voir dire indicate that he determined the issue on a balance of probabilities. According to R v Schell , the trial judge had only to determine whether the subject matter of the charge was a threat of injury to the person, liberty, or health of the spouse.

The trial judge referred to Schell for the proposition that the policy rationale for the threat exception favours the protection of spouses over a narrow construct of the common-law rule on spousal incompetence. [ 53 ] Significantly, Mr. Downing testified during the trial proper as to the phrase in question which was the subject matter of the charge, and the circumstances in which it was uttered, largely corroborating Ms. Wade’s testimony on that point. There is no suggestion that Mr. Downing’s corroborating evidence somehow resulted from the voir dire having been held. [ 54 ] Mr.

Downing has failed to meet the onus on him to establish that the action of Trial Counsel in pursuing the voir dire resulted in a miscarriage of justice. Any such ineffectiveness on the part of Trial Counsel undermined neither the appearance of a fair trial, nor the reliability of the verdict in this respect. The affidavit evidence of Trial Counsel does not alter my conclusion on this point. [ 55 ] This does not resolve the issue entirely. Trial Counsel could have, but did not effectively pursue further cross-examination of Ms. Wade, and Mr.

Downing argues that this flowed from the particular manner in which the trial unfolded. This leads to a consideration of the cross-examination of Ms. Wade. Cross-examination [ 56 ] Whether or not the failure to adduce certain evidence at trial is attributable to incompetent advice is a question of fact: R v Carr at para 37 . [ 57 ] It is also important to note that courts are reluctant to second guess the exercise of trial counsel’s discretion in conducting a cross-examination.

The Alberta Court of Appeal in R v Carr commented on such decisions: 33 Generally speaking, an accused will be bound by decisions made by counsel acting on his behalf. A change of counsel who has different ideas of what evidence may or should have been called, and who would employ different trial tactics than the defence counsel at trial, does not warrant admission of evidence that was available at trial.

As Cromwell J.A. observed in Wolkins , at para. 88 : The deliberate choice not to call available evidence or to testify, which is not explained by incompetent advice or misapprehension of rights, must generally bind the accused. While this is only one of the relevant circumstances, it is one weighing heavily against the admission of the "fresh" evidence in this case.

[ 58 ] O'Connor A.C.J.O., speaking for the Court in R v LCT , 2012 ONCA 116 , [2012] OJ No 778 , held: 57 Appellate courts should be particularly cautious when asked to review counsel's performance during a cross-examination. Cross-examination is often referred to as an art, for good reason. While careful preparation is no doubt essential, counsel are frequently required to make judgments in the moment about how to word the next question and whether to pursue an issue or leave it alone .

In making decisions, counsel must be alive to the language used by the witness, the content of the answer, a witness' demeanour, the likelihood of what the witness may say in response, and, importantly, the impact on the trier of fact of what has come out to that point and what may yet come out . Successful cross-examiners may adopt different approaches to similar situations. Frequently, there is not one correct way to cross-examine a witness on a particular point. (emphases added) [ 59 ] As mentioned above, Mr. Downing’s own evidence largely corroborated the essential aspects of Ms.

Wade’s testimony: he had been drinking on the evening, there was an angry, loud confrontation between the two in the second floor bedroom, Mr. Downing hit the fan and cut his hand, he wiped his bloody hand on the bedspread, Ms. Wade jumped up on the bed, he had easy access to the door. Ms. Wade testified that Mr. Downing spoke words to the effect that if she was going to get physical with him, “he would throw her out the fucking window”.

He testified that in response to her physical stance, he stated: “Are you fucking crazy, like I could throw you out the window”. [ 60 ] The only element of the offence in issue before the trial judge was whether Mr. Downing knowingly made a threat to Ms. Wade. There was no dispute at trial or on appeal that words uttered to the effect of throwing someone out a second floor window would clearly constitute a threat, and if carried out, could cause serious bodily harm to the complainant. The issue, therefore, was whether Mr. Downing intended that the words be taken seriously and meant to intimidate Ms.

Wade or cause her to be afraid. [ 61 ] The proposed fresh evidence is in a binder containing Tabs 1 through 9. Tabs 1 and 2 of the proposed fresh evidence contain Mr. Downing’s waiver of solicitor client privilege and Trial Counsel’s affidavit regarding the strategy employed at trial. As mentioned above, the Court in R v Pilotte discouraged reliance on evidence that simply purports to explain the thought process of counsel that led to a decision made at trial. Suffice it to say that Trial Counsel’s affidavit outlines a conscious strategy which was followed at trial.

In my view, this evidence is not particularly helpful to Mr. Downing. [ 62 ] Tab 3 consists of an Emergency Protection Order (EPO) transcript from a telephone application on July 28, 2010. All relevant information was conveyed on that application by Cst. Hughes on behalf of Ms. Wade. Ms. Wade did not testify. An EPO was granted. [ 63 ] Tab 4 consists of an EPO transcript from August 6, 2010, in which all relevant information was conveyed by counsel. Again, Ms. Wade did not testify.

Kenny J. opined that the difficulty with EPOs is that the evidence is presented by a police officer who has no personal knowledge of anything. She opined that it could be a lack of communication or the officer might have been told things that were not accurate, because certain matters as represented were later contradicted in the affidavits before the Court. Kenny J. noted in particular that there was no evidence in any of the affidavits that Mr. Downing had uttered threats to cause harm, “other than the charge from December of 2009". [ 64 ] Tab 5 is Ms.

Wade’s affidavit of August 9, 2010 relating again to the EPO. It does not address any of the circumstances surrounding the December 2009 incident. [ 65 ] Tab 6 is Ms. Wade’s affidavit of August 24, 2010 in support of an application for interim custody and child support. Paragraph 19 recounts her version of the December 2009 incident which tracks the evidence she gave at trial. In paragraph 29, she denied that she was physically violent toward Mr.

Downing; she had not tried to lunge at him with her hands in a clawed fist. [ 66 ] Tab 7 relates to marital therapy which the parties attended on December 14, 2010. [ 67 ] Tab 8 relates to matters arising in July 2010 in relation to storage of firearms.

[ 68 ] Tab 9 consists of photographs of messages on Mr. Downing’s cell phone, apparently with respect to Ms. Wade’s pregnancy by Mr. Downing subsequent to separation. [ 69 ] Regarding the first factor set out in the Palmer test, the evidence now sought to be introduced, with the exception of the affidavits of Mr. Downing and Trial Counsel and the Tab 9 photographs, could have been available at the trial with due diligence. Mr.

Downing submits that some of the proposed fresh evidence may have been in hands of Trial Counsel at the time, but he may not have understood the use that could be made of it. [ 70 ] The Supreme Court of Canada held in R v B(GD) that the requirement for due diligence must not be rigidly applied, particularly in criminal cases. In its decision in R v A(J) , 2011 SCC 17 , 2011 CarswellOnt 2237 , the Supreme Court of Canada at paragraph 8 held that the “due diligence criteria should not trump the other R. v.

Palmer criteria”. [ 71 ] Therefore, while most of the evidence now sought to be relied upon could have been introduced at the trial, in the circumstances of this case, that alone is not a reason to preclude consideration of the evidence at this stage, particularly where ineffectiveness of counsel is raised. [ 72 ] With respect to the second factor in the Palmer test, all of the fresh evidence relates to the matter of credibility of Mr. Downing and Ms. Wade. Credibility was obviously central to the matters before the learned trial judge.

Therefore, the fresh evidence bears on a decisive issue at trial. [ 73 ] With respect to the third factor in the Palmer test, all of the proposed fresh evidence is capable of belief. Mr. Downing and Trial Counsel swore affidavits in relation to the fresh evidence application. All of the evidence with respect to the Emergency Protection Proceedings consists of either transcripts or affidavits from those proceedings. One letter is sought to be admitted from a Registered Psychologist and two documents are sought to be admitted from members of the RCMP.

These documents are provided by individuals in their professional capacity and such documents are therefore reasonably capable of belief for the purposes of this analysis. [ 74 ] The fourth Palmer factor is the most significant one in this case. The issue is whether the evidence, if believed and when taken with the other evidence adduced at the trial, could reasonably be expected to have affected the trial. Mr. Downing submits that Trial Counsel should have used the fresh evidence in cross-examination. He argues that Trial Counsel was ineffective in challenging Ms.

Wade’s credibility, and that this affected the reliability of the verdict, resulting in a miscarriage of justice. [ 75 ] Counsel on appeal agree that Ms. Wade was competent to testify. The trial judge found at trial that Ms. Wade was genuinely concerned about the ability of the couple to work things out for a period of time after the incident, and she was concerned about the difficulty that reporting such a threat would present to Mr. Downing in relation to his employment.

In my view, any material relating to the couple’s attempts to reconcile subsequent to the incident (Tabs 7, 8 and 9) could not reasonably be expected to have affected the outcome of the trial. [ 76 ] As for potential inaccuracies in the presentation by third parties of information to the Court in the EPO matter, it is difficult to see how submissions by the third parties or Kenny J. could usefully have been put to Ms. Wade so as to have affected the outcome in the trial. [ 77 ] The August 24, 2010 affidavit does contain a slight departure from Ms.

Wade’s evidence at trial in that she stated in that affidavit that she could not remember what Mr. Downing wrote on the duvet in his blood. However, during the voir dire her initial evidence was that he wrote the word “bitch”, or “something like that”. Trial counsel chose not to cross-examine her on this point. Later on re-examination, she first replied sarcastically to Crown counsel and then agreed that Mr. Downing wrote the word. Trial Counsel in oral argument did not raise this particular point, but did argue that Ms. Wade was inconsistent in her evidence. The trial judge noted the discrepancy between Ms.

Wade’s and Mr. Downing’s evidence regarding the blood on the bedsheet, stating: “He replies that he only wiped his hand, somewhat inexplicably, on the sheet. This appeared curious to me.” [ 78 ] Upon a review of the entire transcript, it is fair to say that Trial Counsel did not pursue a cross-examination of Ms. Wade on her credibility beyond matters raised in the competency voir dire. However, given that Mr. Downing’s own evidence as to what occurred

did not depart significantly from that of Ms. Wade, the key issue before the trial judge was not whether the events occurred, but whetherMr. Downing intended that the words he uttered be taken seriously, and meant to intimidate Ms. Wade or cause her to be afraid. The lawrequired the trial judge to assess this taking into account the words used, the context in which the words were used, and Mr. Downing’smental state at the time the words were used. [79] While other counsel may have relied on the August 24, 2010 affidavit to challenge Ms.

Wade’s credibility on the particularpoint of writing “bitch” in blood on the bedsheet, her initial evidence in the voir dire was somewhat equivocal on this point, andtherefore Trial Counsel was not deprived from pursuing this line of questioning. The August 24, 2010 affidavit might have been used inthis regard. However, both witnesses agreed that the events in question occurred in the course of a heated argument, Mr. Downing cuthis hand when he hit the fan, and he wiped his bloody hand on the bedspread. In my view, it cannot be said that putting the August 24,2010 affidavit to Ms.

Wade, when taken with the other evidence adduced at trial, could reasonably be expected to have affected the trial. Browne v Dunn [80] With respect to the matter of Browne v Dunn, it is clear that Trial Counsel did not put matters to Ms. Wade which weresubsequently testified to by Mr. Downing. The failure of counsel to satisfy the Browne v Dunn criteria may be used by the trial judge inassessing contradictory evidence led by the opposing party: R v Pasqua, 2009 ABCA 247. However, other remedies are available andwere resorted to in this case.

The error on the part of Trial Counsel was remedied by the trial judge by allowing the Crown to recallMs. Wade to testify on those relevant matters which arose on Mr. Downing’s examination in chief, and to which she had not previouslyhad an opportunity to respond. Therefore, any breach of Browne v Dunn was remedied. Trial Counsel was given an opportunity to cross-examine Ms. Wade further in relation to her re-examination. [81] Again, the affidavit of Trial Counsel outlining the trial strategy is not helpful to Mr. Downing on this point.

R v W(D) [82] It is clear from the trial transcript that Trial Counsel was alive to the importance of credibility to the case. Nothing in hisaffidavit suggests otherwise. His first statement in his Final Submissions was as follows: I would suggest that this case is rather straightforward given the evidence that has come out. This is a situation where W(

D) would apply. [83] While the balance of his submissions did not address the R v W(

D) analysis, it was obviously front and centre in his mind. Itis also clear that it was front and centre in the mind of the trial judge. [84] Trial judges are presumed to know the law regarding the presumption of innocence and the burden of proof. They are notrequired to explain in detail the process they followed to reach a verdict: R v Sheppard, 2002 SCC 26 , [2002] 1 SCR 869. Thetest laid out in R v W(

D) is not intended to be followed word for word as some magic incantation: R v S(WD), (SCC),[1994] 3 SCR 521. [85] In his reasons, the trial judge in this case stated as follows: On the issue of the exact words which could constitute words of threat and the intent associated with those words, I have only theevidence of the complainant and the accused. In that regard, I must firstly determine if I believe the accused. If I do, of course I mustacquit. Further, if I am uncertain as to whether I believe the accused and the complainant, I must also acquit.

If, in fact, I disbelieve theaccused but find that there is credible evidence from the complainant which I believe as to all the aspects making out the offence, thisthen must result in a conviction. [86] This is an imperfect articulation of the R v W(

D) test, particularly the second and third parts. The Supreme Court’s renditionof the test in R v W(

D) is as follows:

(1) if I believe the evidence of the accused, I must acquit; (2) if I do not believe the testimony of the accused but am left in reasonable doubt by it, I must acquit; (3) even if not left in doubt by the evidence of the accused, I still must ask myself whether I am convinced beyond a reasonable doubt of the guilt of the accused on the basis of the balance of the evidence which I do accept. [ 87 ] Judges are presumed to know the law but occasionally they misapply it: R v O'Brien , 2011 SCC 29 , [2011] 2 SCR 485 . What matters is the substance and not the form of the decision.

The relevant inquiry is whether the trial judge's reasons reveal that he ultimately correctly applied the law. [ 88 ] The trial judge gave reasons for rejecting Mr. Downing’s version of events as they related to the intent behind the threatening words he uttered. The trial judge’s “grave concerns” included Mr.

Downing’s very clear recollection of some aspects contrasted with his vague recollection of others, his use of violent words with the purported intent of de-escalating a volatile situation, and his proximity to the door which would have provided an obvious means of escape if he in fact was concerned for his own safety as he alleged. The reasons indicate that the trial judge carefully analyzed Mr. Downing’s evidence and explained why he rejected the argument that Mr. Downing made the statement intending to calm down the situation and snap Ms. Wade out of her rage. [ 89 ] He then commented on Ms.

Wade’s testimony, addressing the concerns raised by Trial Counsel and explaining his reasons for accepting her evidence. He concluded by stating that nothing in Ms. Wade’s evidence gave him a basis for a doubt. [ 90 ] The only real issue was whether Mr. Downing “knowingly” made the threat, that is, whether he intended that the words be taken seriously and be meant to intimidate Ms. Wade or cause her to be afraid. In making this determination, the trial judge was obliged to consider the context in which the words were spoken, the person to whom they were addressed, and the circumstances in which they were uttered.

Crown did not have to prove that Ms. Wade was actually threatened or made afraid by the words. Further, it did not matter whether Mr. Downing intended to carry out the threat. [ 91 ] Mr. Downing and Ms. Wade gave similar evidence as to most of the circumstances in which the words were spoken. It is implicit in the trial judge’s reasons that he did not in fact reject all of Mr. Downing’s evidence, given that much of it coincided with Ms. Wade’s description of the events. What he did reject was Mr. Downing’s explanation that he uttered the words in an attempt to de- escalate the situation and to snap Ms.

Wade out of her rage. Ms. Wade gave evidence as to her perception of the events, but of course could not comment on Mr. Downing’s intention in uttering the words. [ 92 ] In essence, by stating that Ms. Wade’s evidence gave no basis for a doubt, the trial judge revealed that he had asked himself the critical final question in the R v W(

D) analysis. That question was whether he was convinced of Mr. Downing’s guilt on the basis of the balance of the evidence which he did accept, being Ms. Wade’s evidence and implicitly also the evidence of Mr. Downing to the extent that it coincided with Ms. Wade’s evidence. [ 93 ] I find that the trial judge did properly apply the law. Therefore, even assuming Trial Counsel was ineffective in arguing R v W(D) , no miscarriage of justice resulted. VI. Conclusion [ 94 ] The fresh evidence sought to be introduced by Mr. Downing could not be said to be expected to have affected the trial and is, therefore, not admitted on this appeal.

[ 95 ] The assistance of Trial Counsel was not so ineffective as to render the trial verdict unreasonable or to result in a miscarriage of justice. [ 96 ] The appeal by Mr. Downing of his

summary conviction is dismissed. Heard on the 22 nd day of February, 2012. Dated at the City of Edmonton, Alberta this 2 nd day of May, 2012. K.G. Nielsen J.C.Q.B.A. Appearances: Derek J. Anderson Knisely Shipanoff LLP For the Appellant Rodney Clark Alberta Justice for the Respondent _______________________________________________________ Corrigendum of the Reasons for Judgment of The Honourable Mr. Justice K.G. Nielsen _______________________________________________________

Please note that the first page should have read:

Summary Conviction Appeal The Honourable Judge Gardner Dated the 6 th day of June, 2011 Filed on the 12 th day of July, 2011 Docket: 100906148S1