R v LGB, 2021 ABQB 264

Court of Queen’s Bench of Alberta Citation: R v LGB, 2021 ABQB 264 Date: 20210407 Docket: 190612903S1 Registry: Wetaskiwin Between: LGB Appellant - and - Her Majesty the Queen Respondent _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice M.J. Lema _______________________________________________________ Appeal from the Conviction by The Honourable Judge G.A.G. Yake Convicted on the 18 th day of November, 2020 (Oral Decision , Docket: 190612903P1) A. Introduction [ 1 ] A mother appeals her conviction in Provincial Court for assaulting her then-ten-year-old son. She contends that the

Honourable Judge G.A.G. Yake erred in assessing her credibility and reliability and that that error led him to discount evidence that should have, at minimum, raised a reasonable doubt on that charge. [ 2 ] The mother was charged with two counts of assault, both alleged to have occurred in 2018. The first alleged incident (mother dragging the son down a hallway, digging her nails into his neck and causing bruising and soreness) involved only the two of them.

The second alleged incident (mother striking the son in the chest with the back of her hand) involved a third person, the mother’s then partner, in the immediate aftermath. [ 3 ] Judge Yake found the son to be a credible and reliable witness. He found the mother otherwise, emphasizing memory-of- dates-related concerns about her evidence of the first incident and perceived inconsistencies and evasions in her evidence of the second. [ 4 ] The judge accepted the son’s evidence of the first incident and found that no reasonable doubt arose from the mother’s evidence.

He accordingly convicted on that assault charge. [ 5 ] On the second count, the judge took the same view of the son’s and the mother’s credibility and reliability. However, he found that reasonable doubt arose from the evidence of the mother’s former partner, who gave evidence that the son had recanted his account of the mother hitting him. [ 6 ] I find that the judge erred in his assessment of the mother’s credibility and reliability and that her evidence raised, at minimum, a reasonable doubt on the hallway incident. [ 7 ] Accordingly, I allow the mother’s appeal and substitute an acquittal on count 1. B.

Standard of review [ 8 ] The focus here is the trial judge’s findings on the mother’s credibility and reliability. In R v Holdsworth , 2019 ABQB 856 Mandziuk J. distilled the standard of review for

summary conviction appeals (paras 28-33), including credibility assessments: Our Court of Appeal in R v Church , 2017 ABCA 421 at para 8 , held that credibility findings made by a trial judge “will not be reversed on appeal in the absence of palpable and overriding error” . [para 29] [ 9 ] That standard still applies, per R v LBC , 2020 ABCA 147 : Deference is owed to a trial judge regarding issues of credibility; an appeal should only be allowed where there is a palpable and overriding error such that the findings on credibility are clearly unreasonable or cannot be supported on the evidence: R v Gagnon , 2006 SCC 17 at para 10 ; R v W(

R) at 131. [para 11] [ 10 ] To the same effect, see also R v Morgan , 2021 ABCA 20 at para 20 and R v Stauth , 2021 ABCA 88 at para 63 . C. Analysis [ 11 ] I first examine each of the trial’s judge’s stated concerns about the mother’s credibility and reliability. Asserted problems with the mother’s timing-of-hallway-incident evidence [ 12 ] The son gave the following evidence in chief about the timing of the hallway incident: Q: Okay. So this thing that happened in the hallway, when did that happen? A: It was – it was at the end of 2018 . Q: Okay.

A: I’m not, like, for sure because there was a lot of events and different things happening at that time, so it was either start or end of 2018, somewhere in 2018 . Q: Okay. How – what was – how long had you been living there when this happened ? A: At that house, probably another year and a half probably. Q: You were living there for a year and a half before this happened or – A: Well – Q: -- after this happened? A: Well, she was seeing [a certain person] in [certain town] for about a year and a half, and then they bought that house about – yeah.

And then we lived there for another year and a half, and then al these events started happening . [emphasis added] [ 13 ] Later in chief, he testified that “… [the incident] down the hallway was at the start of 2018 …” and that that meant “like, January.”

[ 14 ] The mother gave the following evidence in chief about the hallway incident: Q: All right. Now, you’ve also heard [the son] testify today about a completely different incident that happened in early 2018 where he describes, for lack of a better phrase, the hallway incident. Did you hear him testify about that today? A: I did, yes. Q: Okay. Do you recall an incident where there was a discussion about money and you were taking [the son] somewhere down the hallway, the incident that he’s talking about?

A: Yes. [ 15 ] The mother then testified about the genesis of that incident, namely, the son’s wish to go dirt biking on an upcoming weekend (part of her parenting time) and her decision that he could not unless she could work out something with the son’s father, which apparently did not happen.

She also gave evidence of an underlying tension arising from her inability to provide material things (e.g. a dirt bike) on the same level as the father (“could not compete” with him). [ 16 ] In chief, the mother was not asked whether she agreed with the son’s timing (“early 2018”) evidence, only (as noted) whether she heard his testimony about that incident and whether she recalled a money-related discussion in the hallway (“yes” to both). [ 17 ] In cross, she gave the following related evidence: Q: When did this [no-dirt-biking] discussion happen? Was that during the week, on the weekend? A: It was in 2016.

Q: The – A: It was in October of 2016. Q: I’m sorry, maybe my question wasn’t clear. The discussion about going to dirt biking on the weekend – A: Happened in October of 2016. … Q: And that [same] discussion was in October of 2016? A: Yes. … Q: In January of 2018, you were talking to [the son] about money? A: No. Q: Okay. You – you were talking to him about his dad? A: No, I wasn’t. Not in January of 2018. [ 18 ] In re-direct, the mother gave this evidence: Q: I’m a bit confused on the date. The prosecutor asked you if you had a discussion with [the son] about money in January of 2018, and you said no.

Is that what you said? That’s correct? A: Yes. Q: Okay. So this discussion about money and the incident in the hallway, if it didn’t happen in January of 2018, to your [recollection] when did that happen? A: In October of 2016. Q: But that’s the incident he is talking about that I’ve referred to as the incident in the hallway? That’s the one you’re talking about? A: Yes. Q: And you say that was in October of 2016? A: It was. Q: Okay. Thank you. [ 19 ] In his judgment, the trial judge observed: The cross-examination of [the mother] by [the prosecutor] was interesting.

I won’t go through it all, but I will go through the parts of it that caused me some concern with her testimony .

In particular, during cross-examination [the mother] was asked about the hallway incident – and I just want to check with counsel on this because there was – and I’m going to rely on counsel’s notes because my notes aren’t clear here.

But she referred to a date of October 2016 in cross-examination and on redirect, and it’s not clear in my notes whether she was talking at that point about the discussion about going dirt biking or the discussions that preceded the allegation – the discussion that preceded the allegation of dragging down the hallway. [exchange between judge and counsel, who both confirmed the mother had testified to October 2016 timing for the dirt-bike-related conversation] So that’s what I had. It’s a discussion about dirt biking she said occurred in October of 2016.

Now the discussion about dirt biking is the discussion, as I understood it, that preceded – that occurred in the house at [certain town] and preceded what [the son] described as being dragged down the hallway. [exchange between judge and counsel, who both confirmed their similar understanding of that evidence] Okay.

I wanted to make sure there because it struck me in cross-examination that this would relate to count 1 [i.e. the hallway incident] and the evidence that [the mother] has given in cross-examination leads me to believe that she believed – that she remembers or she is testifying about an incident that occurred in October of 2016. So her testimony in relation to the hallway incident and the dirt biking discussion does not appear to answer the allegations made by [the son] in his evidence that he was dragged down the hallway by [the mother] in January 2018.

So that leaves me in the position where essentially it appears to me that [the mother] does not have a reliable recollection of the events described by [the son] in relation to count 1. Because when she’s testifying, she’s talking about something that happened in October 2016, and that causes me some concern with her memory and consequently with her reliability as a witness. And I was paying close attention to that because I thought, well, perhaps that’s just a slip of the tongue.

But in cross-examination, [the prosecutor] followed up on that, and [the mother] said three times that it was October of 2016, and, of course, [the defence] was alive to that, and on redirect, he rose and asked her again questions going to that issue, and she again says that that happened in October of 2016. So I have problems with her memory on that basis. DEFENCE: Your Honour, if I might just address you. On redirect, I did specifically bring to her attention January of 2018. THE COURT: You did, and said in answer, it happened in October 2016. DEFENCE: No.

But I asked her if there was anything in January of 2018 where she grabbed [the son] by the neck and dragged him down the hallway, and she said no. THE COURT: Oh, I’ve got – I understand that. DEFENCE: Okay. I just wasn’t sure if you had that too. THE COURT: I didn’t mean to confuse you. DEFENCE: No, that’s all right. I – THE COURT: No. I understand that. DEFENCE: Well, I confused, but I just wanted to bring that to your attention. THE COURT: I understand that she did say – and initially in examination in chief as well I understood she was referring to January 2018.

What I’m saying is that, on cross-examination, she changed that evidence, and she described it as occurring in October of 2016, and that causes me concern with her testimony because it wasn’t – with the reliability of her testimony – because it wasn’t said in just a slip of the tongue. It was said three times in cross-examination and again on redirect. So I have some significant issues with the reliability of [the mother] as a witness able to remember what actually happened on the offence date alleged in January of 2018 in relation to count 1. [emphasis added] [ 20 ] The mother did not change her evidence.

She was consistent that the hallway encounter described by the son happened in October 2016.

She also denied that, during that encounter, she dragged or otherwise physically interfered with her son. [ 21 ] Nothing in the mother’s testimony showed or even signaled the possibility of a separate hallway encounter, in January 2018 , which she could not remember or about which she otherwise could not, or would not, give testimony. [ 22 ] Effectively, the mother testified: “I recall the hallway encounter that my son testified about, but it did not happen when he said in did – January 2018 – or include any dragging of him by me.” [ 23 ] The trial judge erred here in proceeding on the basis that there were effectively two hallway encounters – one in October 2016 that the mother described and which the son did not even mention, and the other in January 2018 that the son described and which the mother (effectively) did not address. [ 24 ] The evidence as a whole confirms that both witnesses were talking about a single hallway encounter , albeit with different understandings of its nature and timing. [ 25 ] Accordingly, the trial judge erred in finding that the son’s hallway-incident evidence was unchallenged.

The net effect of that error was that he did not factor in the mother’s evidence of the hallway encounter when decided what happened.

[ 26 ] Alternatively, even if the trial judge effectively concluded that the mother was addressing the same incident but was mistaken about the timing , he did not explain why he accepted the son’s timing evidence over hers. Without that analysis (at minimum), he had no basis for drawing adverse conclusions about the mother’s reliability or credibility . [ 27 ] In any case, there was no basis for preferring the son’s timing evidence over the mother’s.

Here I emphasize: • the son’s initial timing evidence was “at the end of 2018”; • he then revised that to “either start or end of 2018, somewhere in 2018”, noting that “I’m not, like, for sure because there was a lot of events and different things happening at that time …”; • he later stated “start of 2018” and that that meant “January 2018”; • the son’s estimate was informed in part by his recollection that the hallway incident happened while he and the mother were living with the mother’s then partner and that they had “lived there [with that person] for [a] year and a half, and then all these events started happening”; • based on that evidence, the mother and the son started living with that person in summer 2016; • the son’s evidence confirmed that the mother-son discussion in question centered in part on the mother not having as much money as before separating from the father; • nothing else in the son’s evidence pointed to any particular timing of the hallway encounter; • the mother’s evidence was that the hallway encounter was in October 2016 i.e. within the all-living-together span described by the son; • when giving this evidence, the son was 12, and he was recalling events that occurred (per him) when he was 10; and • while the son was not asked about the dirt-biking aspect in cross, the mother’s evidence about that aspect makes seasonal sense, with dirt biking more likely to be happening, in Alberta, in October than January. [ 28 ] With the son’s timing estimate swinging by as much as a year and his acknowledgement that he was initially not sure of the timing (“a lot of events and different things happening at that time”), and with his “while we were living with [mother’s then partner]” evidence actually squaring with the mother’s October-2016-timing evidence, and with no other timing markers in the evidence, the trial judge would have had no basis for preferring the son’s timing evidence over the mother’s . [ 29 ] All to say: the trial judge erred in finding that the mother failed to address the hallway incident or, if she did, by not explaining why he preferred the son’s timing evidence over hers.

In any case, there would have been no basis for such a preference. Asserted inconsistencies in the mother’s evidence about the circumstances of the second incident [ 30 ] As explained by the mother, the genesis of the truck incident was the son’s threat that, if she did not purchase new hockey equipment for him, he would tell Child and Family Services (which had been working with this family) that she had abused him.

She denied striking her son during this conversation, but admitted becoming upset and having used stern language and a louder-than-normal voice in telling the son that it would be wrong to lie to CFS and accordingly that he should not make such a report. [ 31 ] The trial judge observed: … I had some concern with the answers she gave to questions that were put to her on cross-examination about her reaction to what she says was a threat by … [the son] to report her to Child Services, as she calls them.

And towards the end of her testimony, she testified … when it was suggested to her that she wanted to stop [the son] from reporting that to Child Services, she said – she denied that. She denied that suggestion, which is inconsistent with her earlier evidence to – which I take it to be she had essentially told him that it wasn’t right for him to do that, that that was a wrong thing to do essentially.

But then it just doesn’t make sense that she wouldn’t want him to – want to stop him from doing that, so I have a problem with that. [ 32 ] The trial judge appears to have zeroed in on these exchange in cross: Q: But you [the mother] didn’t want him [the son] to say [to CFS] what he told you he would say in the truck [that you had been abusing him]? A: I didn’t want him to lie. Q: So you tried to stop him? A: No. I phoned my [then partner], and I asked [him] to come home so that we could talk to [the son]. [and later] Q: And you were so concerned about him talking to [CFS] that you wanted to stop it?

A: No, not at all.

[ 33 ] These exchanges came on the heels of a long exchange in cross during which the mother reiterated that (1) she and the son had had fruitful dealings with CFS; (2) the son making a false report to CFS was the wrong thing to do; and (3) he should accordingly not make such a report. [ 34 ] The mother’s negative responses to “So you tried to stop him?” and “… you wanted to stop it?” cannot be fairly read as a repudiation of all of that testimony.

Instead, they can only be understood as explaining what she did after that discussion with her son i.e. not try to stop him (i.e. physically restrain him) from doing anything, instead deciding to enlist the assistance of her then partner i.e. in addressing the son’s threatened contact with CFS. [ 35 ] Her second response (in response to the “so concerned” question) must also be understood in the context of her entire CFS- related testimony. Per her, she had nothing to hide from CFS: her driving concern was that the son not make a false report.

Her response here is consistent with her core testimony i.e. she was not concerned about her son having any actual “leverage” with his “CFS threat”; it was more the phenomenon of him being prepared to lie to CFS and having to deal with whatever might come of that. [ 36 ] This squares with the mother’s evidence that the son “had all the opportunity to say whatever he wanted to [CFS], to his school, to his friends, to his grandparents, to anybody.” In other words, the mother had no concerns, in the abstract, about the son invoking CFS’s attention (again).

It was his motivation -- to make a false report -- that alarmed her. [ 37 ] The mother was not actually afraid of incremental CFS involvement. On her own (unchallenged) evidence, she contacted CFS in the aftermath of this incident: … I wanted [the son] to know that that’s not the right things to … to lie.

So that’s when I brought in – or that’s when I talked to Child Services both about it, and then they came to the home, and then they talked to [the son] about the lying as well and that he can’t use them for that sort of thing [i.e. leverage with his mother]. [emphasis added] [ 38 ] It is in this light that the mother’s questioned responses here must be understood.

She did not want him to contact CFS to make a false report , but she did not try to physically interfere with him trying to make contact, and she was not concerned about CFS involvement, other than the fall-out of a false report i.e. for her son. [ 39 ] The mother’s evidence about her reaction to the son’s threat was entirely consistent i.e. he should not make a false report. Accordingly, the trial judge erred in finding inconsistency here.

Asserted evasion by the mother in cross-examination [ 40 ] The trial judge also observed: I also found [the mother] to be, at times in her cross-examination, evasive, wouldn’t directly answer the question at the start of her cross- examination. She was asked by [the prosecutor] if, after she was told by [the son] that h would report her to Child Services, this was upsetting to her, and she didn’t directly answer the question. She went on a bit of a – engaged in a bit of a word salad about things. [ 41 ] I will not reproduce this segment of the cross-examination (pp 45-49 and p 52).

I will simply note that her testimony here (and elsewhere) was not evasive or unresponsive in any material way. Asserted “not common sense” answers re CFS aspect [ 42 ] The trial judge finally observed (re the mother): She was also asked in cross-examination whether she was angry that [the son] said he would report her to Child Services, and she said she was not really angry, that she was more scared and upset. I have a problem with that.

That doesn’t make sense, especially when you take into account her testimony that she had been dealing with Child Services … and she’s apparently, according to her testimony, essentially being extorted into buying new hockey equipment for this child, and she says that didn’t really make her angry. I can’t accept that. That doesn’t accord with common sense. [ 43 ] Here too the judge erred.

The mother acknowledged that, in response to what she described as her son’s “CFS threat”, she “talked sternly” to him, that her tone of voice was “strong”, that her voice was louder than usual (but not a “yelling kind of tone”), that she leaned in to him while talking to him (about 12 to 18 inches away), that she was upset, and that she was crying. Here is how she summed it up: I wasn’t [angry] – I was more scared and upset. I wouldn’t say angry. I worked really closely with Child Services, and it was – it was a really beneficial period of time.

We were able to just become a lot closer, and it was – they came into our home, and they – they also – we went to see them twice. [My son]’s seen them on – on his own once – once a week, and I [have] seen them on my own once a week. They were – it was a nice group. They actually [saw] no signs of any sort of violence at all – and they – ended the file. [and later] It didn’t make me angry. It made me sad because I had been dealing with [the] custody battle for 7 years regarding this stuff. [ 44 ] There is no standard or “common sense” reaction against which to gauge the mother’s reaction here.

Her descriptions of her reactions and the reasons for them did not constitute any basis for the trial judge to downgrade her testimony: see R v Delmas , 2020 ABCA 152 at para 31 (affirmed 2020 SCC 39 ). Trial judge’s overall assessment of mother’s evidence

[ 45 ] The trial judge concluded his assessment of the mother’s evidence this way: So in relation to her evidence and particularly in relation to her evidence with regard to count 1 (hallway incident), I don’t find her to be a reliable witness, and I don’t accept her evidence on count 1. Trial judge’s reasons for conviction [ 46 ] He thus concluded In relation to [count 1], I accept the evidence of [the son] …. There is no other evidence before me in relation to count 1. The evidence of [the son] satisfies me beyond a reasonable doubt of the accused’s guilt in relation to count 1.

On all of the evidence in relation to count 1, I do not have any reasonable doubt. Not only do I not accept [the mother’s] evidence, but on the evidence as a whole, hers and [the son’s], no reasonable doubt presents itself to me. It’s apparent to me that the Crown has proved beyond a reasonable doubt that between the 1 st day of January 2018 and the 31 st day of January 2018, both dates inclusive, at or near [certain town, Alberta], [the mother] intentionally and without the consent of [the son] applied force to his body, thereby committing the offence of assault contrary to

Section 266 of the Criminal Code . Cumulative effect of the trial judge’s errors concerning the mother’s evidence [ 47 ] The trial judge made palpable and overriding errors in his credibility and reliability assessments of the mother’s evidence. Unlike in R v McNish , 2020 ABCA 249 , I cannot say that “the trial judge’s credibility findings were grounded in the evidence before him … and were available on the evidence” [para 26].

Instead, the trial record reflects no reasons for concern about the mother’s credibility or the reliability of her evidence. [ 48 ] Assuming he or she were faced with the mother’s same (and now-seen-to-be credible and reliable) evidence and the complainant’s (as-seen-in-this-trial) credible and reliable evidence, a judge at a new trial would not be able to tell who was telling the truth as between the two witnesses. [ 49 ] Alternatively, the effect of the mother’s now-accepted-as-credible-and-reliable evidence would, at minimum, produce a reasonable doubt on count 1. [ 50 ] Either way, I see no prospect of a conviction on count 1 if a new trial were ordered. [ 51 ] In R v Penney , 2002 NFCA 24 , where Welsh JA (in dissent) held: In

summary, an appeal court may direct a verdict of acquittal where the verdict at trial is based primarily on the credibility of witnesses if, considering all the evidence and taking account of the advantageous position of the trial judge in assessing the testimony of witnesses, a jury or judge properly instructed, acting judicially, could not reasonably have convicted . [para 51] [ 52 ] See R v Buckley , 2009 NSSC 204 (per Beveridge J., as he then was): The trial judge made findings of credibility against the appellant. The evidence wrongly admitted put the appellant in a bad light .

While no one instance would necessarily be fatal, the cumulative effect cannot be ignored . The Crown has not satisfied me that the verdict would necessarily have been the same . The normal remedy under s. 686(2) for such errors would be to quash the conviction and order a new trial. Instead I quash the conviction and enter an acquittal . I do so as a result of my conclusion that the trial judge misapprehended significant evidence which led to an unreasonable verdict. [para 100] D.

Conclusion [ 53 ] I allow the mother’s appeal of the conviction on count 1 and substitute an acquittal. [ 54 ] I thank the parties for their helpful written and oral submissions. Heard on the 1 st day of April, 2021. Dated at the City of Wetaskiwin, Alberta this 7 th day of April, 2021. M. J. Lema J.C.Q.B.A.

Appearances: J. Paul Brunnen, Q.C. Barrister & Solicitor for the Appellant Christine Tays Alberta Justice for the Respondent