R v Ahmad, 2021 ABQB 518

Court of Queen’s Bench of Alberta Citation: R v Ahmad, 2021 ABQB 518 Date: 20210707 Docket: 191218940S1 Registry: Edmonton Between: Her Majesty the Queen Respondent - and - Yasir Ahmad Appellant _______________________________________________________ Reasons for Decision of the Honourable Madam Justice S.E. Richardson _______________________________________________________ Appeal from the Conviction by The Honourable Judge F. K. MacDonald Convicted on the 12 th day of February, 2020 (Docket 191218940P1) 1. Introduction [ 1 ] The Appellant appeals his conviction for common assault (s 266) and choking (s 267(c)) CC after a trial where the only

evidence came from him and the complainant. 2. Overview [2] The Appellant and the complainant were spouses and parents of two school aged children.

They had a rocky relationship andmaintained separate bedrooms, although they continued to live in the same home with their children. [3] The Appellant testified that he had been mistreated by the complainant and her family when he first arrived in Canada (afterhaving been sponsored by them), and that the complainant had subsequently become aggressive and violent towards him. [4] The parties’ evidence about the incident was generally consistent, though they diverged in significant aspects.

They agreedthat an incident occurred in their home and that it began when the Appellant entered the home, and repeatedly asked the complainanthow she occupied her time during the day. The Appellant testified that his interest resulted from the fact that the complainant left thehouse after the children went to school and returned shortly before the children came home at the end of the school day. [5] This inquiry initiated a verbal dispute. The Appellant testified that during this verbal dispute, the complainant “gave him thefinger”.

The Appellant said their daughter awoke and they both proceed upstairs to put her back to sleep.

The complainant said that shewent upstairs to check on the child as a way to get away from the Appellant as the verbal dispute had escalated to him pushing her downon the sofa several times. [6] The parties agreed that they both participated in putting the child back to sleep. [7] The Appellant testified that afterwards he went outside to smoke, and returned to find the complainant at the kitchen table,whereupon he continued his questioning about how she occupied her time during the day. [8] The complainant said that after leaving the daughter’s room, the Appellant resumed the verbal argument in the hallway, andblocked her when she tried to walk away.

She managed to move around him and she went and sat at the kitchen table, accessing theirchildren’s SchoolZone website in an attempt to diffuse the situation. He came into the kitchen and resumed the argument. [9] The Appellant testified that in response to his repeated inquiries the complainant responded with verbal abuse about hisfamily, and he then suggested that she record herself on her phone “so she can reflect on what she is saying when she is less angry”. Thecomplainant agreed that the verbal argument continued. She said he was saying unkind things about her family.

She agreed with theAppellant that he suggested she use her cell phone to record this encounter. [10] The Appellant testified that, after telling her to record the encounter, he said that if she is going to say unkind things about hisfamily, he is going to say unkind things about her family, and he picked up her phone. He said he picked it up; she said he grabbed herphone. [11] The Appellant testified that while holding her phone, it vibrated and he saw a message that read “I love you. Can’t wait to seeyou again.

Hugs and kisses.” He claimed to be shocked and concluded that this was confirmation of an adulterous relationship. Heconfronted the complainant and she immediately attacked him by slapping and hitting him and pulling his hair. He decided to keep herphone and “leave until she calms down” and he retreated to the basement.

The Appellant also testified that he didn’t return the phone tothe complainant because if he did, she would delete the text message and “blame it [the incident] on me”. [12] The Appellant testified that when he was on the first step of the stairs to the basement, he heard the complainant leave thehouse and yell that he had choked her and had tried to kill her. The Appellant testified that he was shocked and panicked by this shoutedaccusation. [13] The complainant testified that the Appellant left the kitchen with her phone and she pursued him to the hallway to get herphone back.

While attempting to get her phone back, the Appellant used one hand to choke her by pushing her up against the wall in thehallway, and then pushed her to the ground. She described having neck pain and a bruised knee as a result. She described the Appellanttrying to break her phone during the altercation in the hallway. He continued into the basement and she went outside intending to ask aneighbour to call the police. [14] They both agreed that the Appellant followed the complainant outside as she left the house. They agreed that he apologized toher outside.

The complainant testified that he asked her not to call the police and offered to leave the house forever. He said he offered togive the phone back to her and she refused, saying she would get it from the police. [15] The complainant denied that the Appellant offered to return her phone and testified that she next saw her phone when it wasreturned to her by the police, at which point it was damaged, in safe mode and did not contain any recording of the incident. [16] The Appellant testified that after the complainant refused his offer to return her phone, he left the home having been picked upby his brother.

He explained that since he had been shocked and panicked about the false allegations, he needed to leave the home. TheAppellant testified that just before he left, he saw his daughter at the door and went to comfort her. He said he forgot that he had thecomplainant’s phone until later in the evening when the police rang the number. He said he returned the phone to the police in anundamaged condition. [17] The Appellant denied any assaultive behavior toward the complainant. [18] No evidence was tendered about the state of the phone when it was given to the police or how it might have been damaged.

Nor was any evidence tendered about the state of the complainant’s injuries. [19] The trial Judge was faced with a classic R v W(D), (SCC), [1991] 1 SCR 742, situation.

3. Issues [20] The Appellant argues against his conviction on several grounds: 1. The trial Judge erred in law in the application of the rule in Browne and Dunn (1893), 6 R 67 (HL), 2. The trial Judge erred in credibility determinations based on stereotypes or generalizations, 3. The trial Judge erred in law in applying different standards of scrutiny to the evidence of the Appellant and the complainant,and 4. The trial Judge erred in law in considering evidence of the after-the-fact conduct of the Appellant. 4.

Standard of Review [21] Issues of trial fairness and the application of the principle in Browne and Dunn, are questions of law reviewable on thecorrectness standard: R v Abdulle, 2016 ABCA 5 at para 10. [22] Credibility findings are entitled to deference given that the trial Judge is in a unique position as the “trier of fact”: R vFrancois (SCC), [1994] 2 SCR 827 at 838. The standard of review of specific credibility findings is reasonableness,absent an error of law or principle or a clear and manifest error in the appreciation of the evidence: R v Napope, 2015 ABCA 27 at para22.

A negative assessment of credibility based on an unfounded stereotype constitutes an error of law reviewable on the correctnessstandard: R v ARD, 2017 ABCA 237 at paras 28, 50, 57, aff’d (sub nom R v ARJD), 2018 SCC 6. [23] Applying different levels of scrutiny to the evidence of key witnesses is an error of law and therefore the standard of review iscorrectness: R v Wanihadie, 2019 ABCA 402 at para 22, [24] The use of after-the-fact conduct evidence to justify inferences on matters as to which that evidence is not capable of beingprobative raises a question of law and is reviewable on the correctness standard.

However, inferences drawn from such evidence, whereit is capable of being probative, are matters of fact and circumstantial evidence warranting deference: see R v Calnen, 2019 SCC 6 atparas 25-27, 111-112, 116-140, [2019] 1 SCR 301, R v Mela, 2021 ABCA 38 at para 27. 5. Analysis i.

Did the trial Judge misapply the rule in Browne and Dunn? [25] The Appellant submits that trial fairness was compromised because the trial Judge employed the rule in Browne and Dunn inin the absence of the issue being raised by the Crown and without his counsel having the opportunity to respond to the issue. [26] He argues as well that the trial Judge erroneously applied the rule to matters that were not matters of substance. There are twoareas of error claimed.

The first is in relation to stopping to comfort his child before leaving the scene and the second is whether heoffered to return the complainant’s phone before he left the scene. [27] The Crown Respondent argues that the trial Judge did not apply the rule to the issue of comforting his daughter. They alsoargue that the issue of the offer to return the phone was an issue of significance properly attracting the rule.

While the trial Judge did notraise this perceived breach of the rule with counsel, the Crown argues that the remedy applied was a small subset of a broader set ofreasons for rejecting the Appellant’s testimony and therefore it would be legally erroneous to fixate on this part of the decision. [28] The rule in Browne and Dunn requires counsel to put a matter to a witness if counsel intends to present contradictory evidenceon that point through a later witness. Where the rule is breached, the trial judge may take the failure into account in assessingcredibility.

The failure to cross examine must relate to matters of substance. Where the evidence is of little significance in the overallcontext of the case, the failure to cross examine should have no effect on the assessment of credibility: R v Abdulle, 2016 ABCA 5 atpara 11. [29] In Abdulle, the Alberta Court of Appeal found that trial fairness requires that where a trial judge applies the rule of Browneand Dunn, trial fairness requires that the judge raise the concern with counsel at the argument stage.

This permits counsel to argue thatthe issue was put to the witness, even obliquely, or to argue that the matter was not a matter of substance, so the rule ought not apply. [30] Just as the trial judge is best suited to determine whether a party has failed to comply with the rule and whether the failure tocross examine a witness on a certain point was unfair to the other side, (R v Sawatzky, 2017 ABCA 179), the remedy for any breach lieswithin the discretion of the trial judge (R v Werkman, 2007 ABCA 130 at para 9). [31] The trial Judge stated (at pp 5-6): I further note that his offer that he returns (sic) the phone to the complainant was not put to [the complainant] when she gave herevidence. [Trial counsel] did not ask that question to [the complainant] in cross examination.

It’s a significant Browne v Dunn problem. I give that evidence from Mr. Ahmad very much reduced weight. I simply don’t accept it.

… I also note, after his offer to return the phone is refused he observed his daughter at the door and goes to comfort her. That is not, again, a fact put to [the complainant] in her evidence. This, in my view, is also not indicative of shock or panic, but the action of a caring and thoughtful parent. [ 32 ] I agree with the Crown that the trial Judge did not apply the rule to the issue of the Appellant’s testimony about comforting his daughter before leaving the scene.

First, this evidence was insignificant and of no consequence to the Appellant’s narrative of events and could not have attracted the application of the rule. [ 33 ] Second, the trial Judge did not find a breach of the rule on this point, nor did he fashion a remedy. [ 34 ] The trial Judge was clearly alive to the nature of the rule, the discretion afforded the trial court to quantify any breach and the need to apply a remedy to any breach of the rule.

None of this was done to the evidence that the Appellant comforted his daughter before leaving. [ 35 ] The trial Judge found that the testimony of the Appellant that he comforted his daughter was internally inconsistent with his claim that he was in shock and panic, in the same way that his testimony that he offered to return the phone was inconsistent with his testimony that he was in shock and panic.

The passing comment that “This is not, again, a fact put to [the complainant]” was used only for that comparative purpose. [ 36 ] It is not disputed that the trial Judge applied the rule in Browne and Dunn to the Appellant’s testimony that he had offered to return the complainant’s phone to her.

Neither trial counsel raised issue of the rule in this respect and it was not canvassed with them. [ 37 ] Counsel for the Appellant argues that the issue of the offer to return the phone was not a matter of substance and as such, the rule ought not to have been engaged. [ 38 ] I disagree that the issue of whether the Appellant offered to return the phone to the complainant was a minor or insignificant issue.

The phone, any incoming message on the phone, possession of the phone, any recording of the events captured on the phone and the condition of the phone upon its eventual return to the complainant by the police were all important issues to the narrative of both witnesses. The Appellant testified that the phone held evidence that proved the complainant was in an adulterous relationship (which she denied), and this was the subject matter of his persistent verbal inquiries that day. He testified that he suggested the complainant use the phone to record their verbal dispute and that she obliged.

He testified that at this, he took the phone from her, fearing she would erase it and place the blame on him. He testified that he inadvertently left the scene with her phone, having forgotten that he had the phone with him at that time. [ 39 ] The reference by the trial Judge to the rule in Browne and Dunn was the conclusion of a long list of reasons articulating why the Appellant was not believed. These reasons included examples that anchored those conclusions.

The reference to the rule came after the trial Judge had already determined that the Appellant’s testimony, on its own, was contradictory, improbable, unbelievable, implausible and did not make sense. It was after parts of his testimony were found to be concocted and internally inconsistent. [ 40 ] Specifically, the trial Judge considered the implausibility of the Appellant’s testimony that the complainant would assault him to get her phone back and then refuse to accept it when he offered to return it moments later.

The trial Judge found that the Appellant’s explanation that he picked up the phone “to ensure that there are two sides to the story” was “concocted for the purposes offer [sic] explaining how he came into possession of her phone”. The trial Judge found that the Appellant’s testimony that he offered to return the complainant’s phone before leaving the house was inconsistent with his testimony about being in panic and shock at the time.

Finally, the trial Judge addressed the improbability of the Appellant offering to return the phone given that the complainant called the police from a neighbor’s phone. [ 41 ] While the remedy imposed was to give that part of the Appellant’s testimony (that he offered to return the phone to the complainant) “very much reduced weight”, it was not the only reason the trial Judge concluded that he disbelieved the Appellant on this point. [ 42 ] The Appellant relies upon R v Dowd , 2020 MBCA 23 , to support the argument that the trial Judge erred in law in law in applying the rule in the absence of the Crown suggesting the rule had been infringed and in the absence of the Appellant being provided with an opportunity to address the alleged infringement.

In Dowd , the application of the rule had to do with whether there was any opportunity for the accused to have committed the offence charged. He provided an explanation in his testimony that described

an act of unrelated coincidence which placed him and the complainant in close proximity, this proximity being observed by several witnesses, none of whom was cross examined on what the accused testified was a reason supporting his coincidental proximity to the complainant. Likewise, in Abdulle , the breach of the rule revolved around whether the accused was a bystander or involved in the robbery.

In both decisions, the appellate court found that the breach of the rule as found by the trial judge was fundamentally connected the issue of whether the accused committed the offence. [ 43 ] This is not an analogous situation to the present case. The claimed offer to return the phone, while a matter of substance, did not relate to the actus reus or the mens rea of either the assault or choking offence.

As well, unlike in Dowd or Abdulle , here the trial Judge restricted the remedy for the breach of the rule to assessing, along with other categories of concern, whether that offer occurred as a matter of fact and whether the Appellant was credible on that single claim. It was not used more generally to draw an adverse inference to any other part of the Appellant’s evidence. [ 44 ] I agree that where trial fairness is compromised, an error of law would be established and the standard of review in that case would be correctness. [ 45 ] In the present case, the trial Judge applied the rule in Browne and Dunn .

He applied it to a material and not a minor or inconsequential point. He did not raise his concern with the breach of the rule with counsel before the decision.

[46] It was an error of law to find a breach of the rule and apply a remedy without first raising the issue with counsel. Counselought to have had the opportunity to address this issue in final argument. [47] However, unlike in Abdulle, there is no suggestion on this record that the trial Judge misapprehended the evidence. [48] Significantly, no trial unfairness flowed from the omission of the trial Judge to raise this with counsel because the remedy hegranted for the breach of the rule was to give “very much reduced weight” to “that evidence from” the Appellant.

The breach of the ruleinformed the trial Judge’s finding only that he disbelieved the Appellant on his claim that he had offered to return the phone to thecomplainant. [49] In restricting the remedy to the discrete part of the Appellant’s testimony related to the offer to return the phone, the breach ofthe rule was not dispositive on this specific finding.

The trial Judge also included his assessment on this factual finding, that it wasinconsistent with the Appellant’s claim that he was in shock and panic at the time, it was internally inconsistent with the Appellant’stestimony that the complainant assaulted him for the purpose of getting her phone back, and then refused to accept the phone momentslater, it was improbable that she would refuse the return of her phone and then use the neighbor’s phone to call police, it was inconsistentwith the Appellant’s testimony that he didn’t trust the complainant and he knew if he returned the phone she would delete the claimedadulterous text message and blame it on him.

The breach of the rule was only one of a number of reasons for the trial Judge disbelievingthe Appellant on this point. [50] Finally, the breach of the rule was not applied to a generalized credibility assessment of the Appellant, it was restricted to theissue of whether the Appellant offered to return the phone. [51] When hearing a

summary conviction appeal, this Court is vested with the powers set out in s 686(1) of the Criminal Code.These powers, normally applicable only to a Court of Appeal, are granted to this Court by virtue of s 822(1) of the Code. This Court canallow the appeal if it is of the opinion that the verdict is unreasonable, that the trial judge erred in law, or that a miscarriage of justice hasoccurred.

Conversely, even if this Court is of the opinion that an error has occurred, it can dismiss the appeal if it is also of the opinionthat no substantial wrong or miscarriage of justice has occurred: R v SCDY, 2020 ABCA 134 at paras 18, 86. [52] In all of these circumstances, while it was an error for the trial Judge to conclude that the rule in Browne and Dunn had beenbreached in the absence of raising his concern with counsel, no substantial wrong or miscarriage of justice occurred. ii.

Did the trial Judge make credibility determinations basedupon stereotype or generalizations? [53] The Appellant argues that the trial Judge erred in law in making credibility determinations based on stereotype orgeneralization. He raises two examples. First, he points to the trial Judge’s comment that the Appellant would have no reason to flee thescene if he was the abused party. The Appellant asserts that this is based on a stereotypical assumption about how victims of domesticabuse behave.

Second, the Appellant takes issue with the trial Judge’s conclusion that the Appellant’s testimony that “he felt like a slave”living with the complainant in Canada, was an incredible statement “particularly given the events is his statement, that it was [thecomplainant] who, in fact, sponsored his entry into Canada.” The Appellant asserts that the finding that it is incredible that someonewould be treated poorly by the party who sponsors them is a generalization or stereotype not anchored in evidence. [54] The Crown argues that the trial Judge did not apply stereotype or generalizations to the credibility assessment of theAppellant, and argues that the precedents used to support this ground of appeal by the Appellant are based on the prohibition of usingmyths and stereotypes to assess the credibility of sexual assault complainants and as such, are not applicable to the Appellant’s situation. [55] It is never acceptable to rely on myths and stereotypes to assess credibility.

Trial judges are skilled in applying a dispassionateeye to the evidence before them. Indeed, the “beyond a reasonable doubt” threshold requires trial judges to apply “reason and commonsense which must be logically based upon the evidence or lack of evidence”: R v Lifchus, (SCC), [1997] 3 SCR 320 atpara 30. Triers of fact may rely upon “reason and common sense”, “life experience” and “logic” in making assessment of credibility:however, they fall into error if they rely on prejudicial or stereotypical reasoning in making such assessments: R v Delmas, 2020 ABCA152 at para 31.

Stereotypical thinking most frequently arises in the law in unfounded myths about how the victims of sexual assaultshould behave, negative expectations about the behavior of racialized persons, or negative assumptions about the ability of disabledpersons. Stereotypical thinking could include assumptions about how victims of domestic violence, and arguably, sponsoredimmigrants, conduct themselves. [56] I begin with the Appellant’s second complaint.

The trial Judge did not apply “generalizations or stereotype” in finding thatthe Appellant’s testimony that he “felt like a slave” while living with the complainant and her family upon first arriving in Canada wasnot credible.

He concluded that this testimony by the Appellant was inconsistent with the Appellant’s testimony about his actions duringthe incident and this comment was used by the trial Judge to conclude that the Appellant’s testimony was manufactured to craft anarrative designed to frame the Appellant as a “wronged man” and the complainant “in a negative light, as being dishonest and abusive”. [57] Neither of these findings were grounded in stereotype or generalization. Instead, it was part of the trial Judge’s concern aboutthe Appellant’s testimonial exaggeration and hyperbole.

The Appellant’s testimony in this regard was at odds with his narrative of theincident: his professed direct and persistent inquiry of the complainant, his estranged wife, about what she does during the day when sheleaves the family home. He pressed her on this point even after she refused to engage with him in this conversation, moving to anotherroom to avoid him. His inquiries implied an adulterous relationship. These are not the actions of someone who “felt like a slave” livingwith the complainant.

The trial Judge also found the Appellant’s use of this terminology to be part of a pattern of being gratuitouslynegative toward the complainant and used in support of a manipulated narrative that the Appellant was a “wronged man”. That is acorrect assessment of the Appellant’s testimony. It was not used for an improper purpose. [58] The comment by the trial Judge was not a stereotype about how sponsored immigrants or their sponsors behave. And this

was neither dispositive of the trial Judge’s finding that the Appellant’s testimony was internally inconsistent, nor his ultimate finding thatthe Appellant was not credible.

The substantive remainder of the trial Judge’s credibility assessment is based on his skepticism of theAppellant’s own evidence, and not a stereotypical assumption about how sponsored immigrants or their sponsors conduct themselves. [59] The prohibition against using generalizations or stereotype to inform credibility do not preclude the court from commentingon terminology used by the Appellant in his testimony and using the Appellant’s own choice of language to assess other parts of hisevidence. [60] Turning to the Appellant’s complaint about the trial Judge’s comment that the Appellant would have no reason to flee thescene of the incident if he were the abused or the wronged party, I do not agree with the submission that this was anchored in aprohibited stereotype about the expected behavior of victims of domestic violence. [61] Many of the cases cited by both counsel relate to the use of prohibited reasoning about how victims of sexual assault behaveand how these erroneous assumptions have infected the trial process and been improperly used to assess the credibility of complainants. [62] The necessity of appellate direction establishing such prohibitions arose because conclusions about the expected actions ofsexual assault victims had been grounded in fundamentally unjust and inaccurate misunderstandings about the gender dynamic oftenengaged in sexual assault claims, and offended Charter protections of equality before the law. [63] The Appellant cites R v ARJD, 2018 SCC 6, for the proposition that all stereotypical generalizations are impermissible.

However, that decision does not stand for the proposition that all stereotypes and generalizations are prohibited. The Alberta Court ofAppeal recently held that generalizations about how people act in the context of sexual activity or generally in the context of theirsexuality are impermissible, but generalizations about other behaviors are not necessarily unfair: Delmas, at para 35.

Setting aside for amoment that ARJD dealt with stereotypes about the actions of sexual assault victims, an area that has occupied now thirty years ofappellate jurisprudence since R v Seaboyer, (SCC), [1991] 2 SCR 577, and an area that is anchored in Charterprotections of equality and fairness under the law, the direction in ARJD was also based on the fact that the sole reason for the acquittalby the trial judge was the impermissible reasoning error, based as it was, on the stereotype of how a victim of sexual assault behavesafter the incident. [64] It is correct that the prohibition against using stereotypes about how people behave is not limited to the assessment ofcomplainant’s testimony.

In R v Roth, 2020 BCCA 240, the issue of the expected actions of “power lifters” played a critical role in thecross examination of the accused who was charged with sexual assault. In assessing his explanation of why he behaved in certain ways,the Crown suggested and the trial judge agreed, that his explanations were inconsistent with his assertion that he was a power lifter. [65] In the present case, the trial Judge found as a fact that the Appellant was not the abused/wronged party. He found as a factthat the Appellant was not falsely accused of assault.

These findings occurred before the trial Judge considered the fact that theAppellant fled the scene. These findings were based on a fulsome credibility assessment.

Importantly, the trial Judge relied heavily onthe Appellant’s acknowledged behavior on the day in question to conclude he was not “a wronged man”: the fact that he initiated theverbal altercation with the complainant, the fact that his inquiries were of a suspicious and deeply personal nature, the fact that hepersisted in his line of inquiry even after the complainant repeatedly refused to engage with the discussion and after she distanced herselfphysically from him, the fact that he pursued her to continue the verbal dispute after she left for the kitchen, the fact that he took herphone from her after she started to record the interaction, the fact that he pursued her outside and apologized for his behavior.

Thenarrative of the incident based on the Appellant’s own testimony supports the trial Judge’s conclusion that the Appellant was not theabused or wronged party. That conclusion does not demonstrate impermissible reasoning error based on stereotypical assumptions abouthow victims of domestic abuse behave. [66] Given that these findings of fact were based on the Appellant’s own testimony about his actions on the day in question, thereis no basis for arguing that the trial Judge applied a prohibited stereotype or generalization in assessing the Appellant’s credibility. iii.

Did the trial Judge apply uneven levels of scrutiny to theevidence of the two witnesses? [67] The Appellant argues that the trial judge erred by applying a more rigorous standard of scrutiny to his evidence compared tothe testimony of the complainant in two specific instances. First, he argues that the trial Judge used the specificity of his testimonyagainst him while the specificity of the complainant’s testimony was used to buttress her credibility.

Second, he argues that the absenceof evidence of the text message was used against him, while the absence of the recording on the complainant’s phone was of noconsequence to her credibility. [68] The Crown argues that there is nothing on the record to support a claim that the trial Judge actually applied differentstandards of scrutiny to the evidence of the witnesses and that this ground of appeal is an end run around the deferential standard owed tothe trial Judge on his credibility assessment. [69] Claims of uneven scrutiny are frequently made and can be used to camouflage a complaint that is nothing more than a blatantattack on the trial judge’s credibility findings: R v CGH, 2020 ABCA 362 at para 24. [70] It is well established that credibility findings are entitled to deference absent palpable and overriding error: R v MJB, 2015ABCA 146 at para 20; Wanihadie at para 43, R v Strathdee, 2020 ABCA 306 at para 8.

A trial judge is entitled to decide how muchweight to give to factors such as inconsistencies, particularly where a witness provides explanations for such inconsistencies: R v WH,2013 SCC 22, at paras 32-33. A trial judge is uniquely positioned to rely not only on all that they see and hear relative to a witness, butalso to apply contemporary common sense in the context of the trial: R v Mavros, 2020 ABCA 436 at para 43. [71] In order to succeed on a claim of uneven scrutiny, an Appellant must meet the threshold of demonstrating “something

sufficiently significant” in the reasons or the record establishing that a trial judge employed faulty methodology in deciding credibility: Rv Quartey, 2018 ABCA 12 at para 42, aff’d 2018 SCC 59; R v CJG, 2018 ABCA 130 at para 6; Wanihadie, at para 36; Strathdee, atpara 9: Mavros at para 44. [72] The high threshold for this argument is also grounded in the fact that witnesses are presumed to be telling the truth as theybegin their testimony, it is only after a full cross examination that credibility findings can be made (R v RDS, (SCC),[1997] 3 SCR 484 at para 131).

Trial judges who disbelieve a witness must of course put more fulsome detail into their reasons forcoming to that conclusion. This is owed to the witness who is disbelieved, so they understand why that conclusion was reached, as wellas to appellate courts who provide an avenue to challenge the trial judge’s findings. [73] In this case, it is correct that the trial Judge spent more time discussing the evidence of the Appellant, but that is because therewere multiple discrete reasons for his conclusion that the Appellant was an untruthful witness.

It is not an error for a trial judge to spendmore time discussing why the defence evidence is disbelieved than why the Crown evidence is believed: Strathdee, at para 7. Thecritical question is not the number of words devoted to this task, but the fairness of the fact-finder’s level of scrutiny and whether there isa compelling reason for the different level of scrutiny: CGH, at paras 24- 25. [74] In assessing the evidence of the Appellant and the complainant, the trial Judge was aided by the intersection of theirtestimony in many chronological areas of the event.

He was aided by the Appellant’s testimony about starting the verbal dispute, andthe Appellant’s testimony about what motivated him to initiate the verbal dispute. [75] The trial Judge reviewed the evidence of both the Appellant and the complainant fulsomely. He identified specificinconsistencies in each of their testimony and explained why that either caused him concern on the credibility assessment, or why it didnot cause him concern. The evidence of both witnesses was also assessed within the totality of the evidence.

The trial judge appliedreasonable doubt to that assessment. [76] Turning to the Appellant’s first complaint that the specificity in his testimony was used against him while the same level ofdetailed recollection by the complainant was used to buttress her credibility. [77] The trial Judge did not apply different levels of scrutiny to the parties’ evidence.

The Appellant’s unequivocal evidence thathe had been on the first step of the basement stairs when he heard the complainant depart the house yelling the he had choked her wasfound by the trial Judge to be “unlikely” and part of the Appellant’s overall inflexible testimonial narrative. Contrary to what is claimedby the Appellant, the record does not support his claim that the trial Judge used the complainant’s testimony that there was a three orfour stair difference between them at one point, as impacting her credibility.

In any event, that testimony is not as categorical as theAppellant’s claim to have been precisely on the first step of the stairs when he heard the complainant leave the house. The complainant’sdetailed recollection of being on the SchoolZone website when the Appellant approached her in the kitchen was grounded in theevidence that they had two school aged children and that the events described occurred in September, during the school year whenparents would be responsible for accessing this website.

It was also consistent with her evidence that she had gone onto this site in anattempt to diffuse the situation. [78] The Appellant’s second complaint concerns the trial Judge’s treatment of the absence of evidence. The Supreme Court hasheld that the “evidence or absence of evidence” can inform the reasonable doubt threshold: Lifchus at para 30. In addressing the absenceof evidence, it is critically important to avoid reversing the burden of proof. [79] The trial Judge did not reverse the burden of proof when he discussed the absence of any documentary evidence of theadulterous text message.

Instead, he considered the Appellant’s testimony that the reason he didn’t return the phone was that he knew ifhe did, the complainant would delete the text message and “blame it [the incident] on me”. In concluding that there was no adulteroustext message as claimed by the Appellant, the trial Judge noted that the Appellant had multiple different means to make a copy of thetext message and prevent it from being erased, the very action that he testified had motivated his retention of the complainant’s phone,yet there was no evidence to support that he ever took this step.

This was not a reversal of the burden of proof. [80] In contrast, the Appellant complains that the Crown’s failure to produce the recording from the complainant’s phone was ofno consequence to her credibility. That is an incorrect statement of the trial Judge’s finding. The recording was initiated on thecomplainant’s phone. The Appellant left the scene with her phone. He returned it to the police later that evening. All of these facts wereconfirmed in the Appellant’s testimony. When the police returned the phone to the complainant, the phone was damaged.

Thecomplainant testified that any recording that may have been on the phone was not accessible given the damaged state of the phone uponits return. The trial Judge found her explanation “a full answer” for the unavailability of the recording. It was not the case that therecording was simply not presented. Instead, there was evidence that it no longer existed, and that its loss occurred while the Appellanthad possession of the phone. [81] The trial Judge did not apply uneven scrutiny to the testimony of the Appellant and the complainant. iv.

Did the trial Judge err in law in considering evidence of theafter-the-fact conduct of the Appellant? [82] The Appellant argues that the trial Judge erred in law in his evaluation of the Appellant’s after the fact conduct and thisevaluation occurred while misapprehending the evidence. He argues that the after-the-fact conduct had no probative value and ought notto have been considered. [83] A misapprehension of evidence is a failure to consider evidence relevant to a material issue, a mistake as to the substance ofthe evidence, or a failure to give proper effect to evidence.

It will be made out where the plain language or thrust of the reasons reveal areadily obvious error. The reviewing court does not “dissect, parse or microscopically examine” the trial judge’s reasons to infer orspeculate that an error exists: R v Sinclair, 2011 SCC 40 at paras 52-54; R v Morrissey (1995), (ON CA), 22 OR (3d)

514 at para 83, 38 CR (4th) 4 (CA). The misapprehension will be a reviewable error of law where it goes to substance rather than detail,is material rather than peripheral to the reasoning, and plays an essential

part in the reasoning process resulting in a conviction ratherthan only the narrative of the judgment: R v Lohrer, 2004 SCC 80 at paras 2, 4; R v Matchatis, 2020 ABCA 435 at para 24. [84] The Alberta Court of Appeal in R v Lightning, 2018 ABCA 324 at para 37, cautioned that post-offence conduct raises specialconcerns, since an accused’s after-the-fact behavior may support more than one explanation – some consistent with innocence, othersconsistent with guilt. [85] The Appellant argues that the trial Judge improperly drew an adverse inference against him as a result of his departure fromthe residence where the dispute with the complainant had occurred.

He argues that leaving the scene had no probative value in this case,as it was as consistent with being falsely and publicly accused of doing something he did not do as with leaving the scene knowing thathe had actually committed an assault.

The Appellant also argues that the trial Judge misapprehended the after-the-fact conduct. [86] The Crown argues that the trial Judge referenced the proper legal test for after-the-fact conduct, applied the test properly tothe evidence, and used it only a piece of circumstantial evidence that informed the Appellant’s knowledge that he had done somethingwrong. [87] The consideration of after-the-fact conduct was undertaken by the trial Judge only after he had exhaustively assessed andmade conclusions as to the credibility of the Appellant and the complainant. [88] The trial Judge applied the four-step test from R v Arcangioli, (SCC), [1994] 1 SCR 129, and explained hisreasons for each step in the process.

He integrated his credibility findings into this process and used the Appellant’s own testimony,where he said to the complainant “It won’t happen again, I’m sorry”, to conclude that “the accused was fleeing to avoid contact with thepolice because of an altercation with his wife, and he was conscience (sic) of, in fact, wrongdoing”. [89] The Appellant’s flight from the scene was used as a piece of circumstantial evidence to support the finding that his testimonywas internally inconsistent.

The trial Judge concluded that the Appellant was not shocked and panicked at the false allegation as heclaimed, and his departure from the scene after the complainant called the police was a deliberate attempt to avoid contact with thepolice because of the altercation and his subjective appreciation of his wrongdoing. The fact that the Appellant left the scene afterapologizing to the complainant lends support to the trial Judge’s conclusion.

The trial Judge also indicated that the Appellant’sdeparture from the scene in order to avoid contact with the police was inconsistent with his narrative about being the abused party. Thefact that the Appellant left in possession of the complainant’s phone, which had been recording the incident, only adds to the weight tothe trial Judge’s conclusion on this point. [90] The Appellant is correct that fleeing the scene can be as consistent with being falsely accused as with consciousness of guilt.

However, given the circumstances, it was open to the trial Judge to conclude that the flight from the scene was a piece of evidence thatsupported an inference that the Appellant was conscious of the fact he had assaulted his wife. 6. Conclusion [91] The appeal is dismissed. Heard on the 4th day of March, 2021. Dated at the City of Edmonton, Alberta this 7th day of July, 2021. S.E. Richardson J.C.Q.B.A. Appearances: Deborah R. Hatch Deborah R. Hatch Criminal Law for the Appellant

Kerri Facchinutti Alberta Justice, Edmonton Prosecutions for the Respondent