HER MAJESTY THE QUEEN Respondent - v. -, 2003 ABCA 104

R. v. Kehler, 2003 ABCA 104 Date: 2003 0402 Docket: 0103-0447-A3 IN THE COURT OF APPEAL OF ALBERTA ____________________________________________________ THE COURT: THE HONOURABLE MADAM JUSTICE McFADYEN THE HONOURABLE MR. JUSTICE BERGER THE HONOURABLE MR. JUSTICE RITTER ____________________________________________________ BETWEEN: HER MAJESTY THE QUEEN Respondent - and - RUSSELL ALLAN KEHLER Appellant (Accused) Appeal from the Conviction of THE HONOURABLE MR. JUSTICE SANDERMAN Dated the 16 th day of October, 2001

____________________________________________________ REASONS FOR JUDGMENT RESERVED ____________________________________________________ REASONS FOR JUDGMENT OF THE HONOURABLE MR. JUSTICE RITTER CONCURRED IN BY THE HONOURABLE MADAM JUSTICE McFADYEN DISSENTING REASONS FOR JUDGMENT OF THE HONOURABLE MR. JUSTICE BERGER COUNSEL: J.A. Bowron For the Respondent M.R. Bloos For the Appellant ____________________________________________________ REASONS FOR JUDGMENT OF THE HONOURABLE MR.

JUSTICE RITTER ____________________________________________________ [ 1 ] This appeal raises the question of what quality corroborating evidence must exhibit when it is relied upon by a trial judge in order to restore faith in evidence given by an accomplice or a disreputable witness. It also raises the issue of whether the evidence relied upon by the trial judge met that minimum standard. [ 2 ] It is my conclusion that the evidence must be capable of inducing a rational belief that the accomplice or disreputable witness was telling the truth.

In order to meet this standard, the evidence should support something that is “salient”, “material”, or “important” in the case. While it will always make the result less susceptible to challenge, it is not an essential requirement that the evidence specifically implicate the accused.

[ 3 ] With respect to this appeal, the trial judge was aware that the evidence did not implicate the appellant but found confirmation of a quality sufficient to restore his faith in the evidence of the impugned witness. An application of the standard of rationality to the evidence relied upon leads me to the conclusion that the trial judge could rationally rely on the confirmation he found in order to restore his faith in the testimony of the impugned witness. FACTS [ 4 ] The appellant was charged with several counts respecting robberies that occurred in Edmonton.

He was also charged with three counts relating to a robbery that occurred in Red Deer. [ 5 ] The sole issue at the trial was that of identity. The only evidence identifying the appellant as a participant in the robberies emanated from an accomplice with a long, significant criminal record who testified that the appellant was one of the participants in each of the robberies. The Trial Decision [ 6 ] The trial judge alerted himself that this witness was both an accomplice and a disreputable witness due to his lengthy criminal record.

The trial judge determined that this witness was the type of witness who called for a clear sharp warning to the attention of the trier of fact of the type that is referenced in the decision of the Supreme Court in R. v. Vetrovec , 1982 CanLII 20 (SCC) , [1982] 1 S.C.R. 811, 136 D.L.R. (3d) 89 Vetrovec cited to S.C.R.. Because the trial was by judge alone the trial judge instructed himself in the following terms: Here, in this case though, I’m of the view that a strong warning is required because of the credibility of Mr. Greenwood and the importance of his evidence to the Crown's case.

Now the reasons why a strong warning is required here are numerous. First of all, he is an accomplice. He admits to his involvement in four of these incidents. He has a terrible record. There are entries on his record, which is Exhibit 1 in the proceedings, for offences of dishonesty, where he has stolen property from other individuals. Every year from 1988 to the year 2000, there is a conviction entered against this individual. On the witness stand, he admitted to lying to the police on many occasions, when it suits him. Not just one lie, but on many occasions he has lied to the police.

He’s generally a person who one would consider low life, and when I use that phrase, I’m talking about how he treated his grandparents. These were individuals who have given him support when he’s been in trouble, yet he stole from them. A fairly indecent type of act that he would turn against his own grandparents and then take money from them. In the years 1999 and 2000 when these events were taking place, he was involved in the drug trade. He was by his own admission, he was selling drugs.

He was a significant user of drugs at that time, and this is borne out by the fact that on the night that he allegedly had the confrontation with Mr. Kehler in his apartment, he was either grossly mistaken or hallucinating in relation to what took place because the evidence that has been led before this Court clearly establishes that Mr. Kehler could not have come back into the apartment through the crawl space.

Now those are the reasons why one has to view his evidence with a tremendous amount of scepticism and look for corroboration before one could act upon it. [ 7 ] The trial judge also found that the witness did not receive a “sweetheart deal” when, prior to the trial which led to this appeal, he was sentenced for his involvement in the robberies.

[ 8 ] With respect to the robberies that occurred in Edmonton, the trial judge determined that the only confirmation that existed was some knowledge of the witness respecting what transpired during the robberies. He concluded that he was not able to rely upon this knowledge as being confirmation of the witness’s other testimony because the police officers investigating these robberies had disclosed information to the witness about what had occurred during these robberies.

He determined that the confirmatory evidence was thereby contaminated such that his faith in the witness could not be restored. [ 9 ] The trial judge did not have the same problem respecting the Red Deer, robbery, as the officers investigating that robbery did not provide any information to the witness, nevertheless the witness was able to describe the robbery with accuracy that could only have come from his involvement in it. [ 10 ] He also found confirmation n respecting the Red Deer, robbery, as several collector’s hockey cards which had been stolen during that robbery were in the possession of the witness.

Finally, he found that a phone call made by the witness while in Red Deer, together with the witness relating where items of clothing could be found, including shoes that were an exact match for a shoe mark left at the scene of the robbery, confirmed this witness’s testimony respecting the Red Deer robbery. [ 11 ] The trial judge was aware that none of this evidence directly implicated the appellant. He held that, on the authority of R. v. Michaud , 1996 CanLII 211 (SCC) , [1996] 2 S.C.R. 458, 107 C.C.C. (3d) 193 Michaud cited to S.C.R., it need not.

He also concluded that his faith in the witness’s testimony was restored to the point where he was not left with a reasonable doubt, and he convicted the appellant of the three counts relating to the Red Deer robbery. ANALYSIS [ 12 ] The modern law relating to corroboration commences with the decision of the Supreme Court in Vetrovec , supra . In that decision, Dickson J. (as he then was) delivered the decision for the unanimous court. He determined that the law relating to corroboration had become overly technical.

Indeed, he suggested that the word “corroboration” was antiquated and preferred use of the word “confirmation”. [ 13 ] After restating the rule relating to corroboration or confirmation as involving discretion, dependant on the facts of each case, he concluded his reasons with a short analysis of the quality of evidence relied on by the trial judge as confirmatory of the evidence of the impugned witness in Vetrovec .

He stated that the evidence was such that it was “capable of inducing a rational belief that [the impugned witness] is telling the truth and is for that reason corroborative” (at 833). [ 14 ] In my view, not every scintilla of evidence which may be regarded as confirmatory of the evidence of the impugned witness is capable of inducing a rational belief that the witness is telling the truth.

For example, the evidence of the phone call made by the impugned witness in this case while he was in Red Deer, standing by itself, would fail to meet that standard, as it does no more than establish that the witness was in a certain moderate-sized city at about the time the robbery occurred.

That by itself would not be enough to be capable of inducing a rational belief that the witness, who brings with him the significant deficits described earlier in these reasons, is telling the truth. [ 15 ] However, in this appeal, the record discloses that the trial judge rightly considered several other facts which tend to confirm substantial aspects of the evidence of the impugned witness. When the telephone call is added to these facts, it is able to constitute part of the confirmatory evidence. [ 16 ] In Vetrovec , supra , the confirmatory evidence also had the feature of implicating the accused.

In this appeal, the confirmatory evidence does not implicate the appellant, nor need it. This issue was resolved by the Supreme Court in Michaud , supra at 459, where Sopinka J., in commenting on the reasoning at the appeal court level, stated: With respect to the other grounds, counsel for the respondent properly conceded that the Court of Appeal erred in finding that the trial judge's charge was defective in treating as corroborative, evidence that did not implicate the accused. Such evidence need not, although it may, implicate the accused.

[ 17 ] The function of the trier of fact in credibility assessment also plays a

part in the analysis of this issue, as the trier of fact is in a unique position to assess credibility and to make the determination of how much confirmation is required in order to have their faith restored in the impugned witness. The role of an appellate court can be no more than to test whether the confirmation is capable of inducing a rational belief that the impugned witness is telling the truth. If a Vetrovec warning is called for, then surely the confirmatory evidence must be capable of meeting this minimum requirement. [ 18 ] Other appellate courts have also considered this issue. In R. v.

Gagnon (2000), 2000 CanLII 16863 (ON CA) , 136 O.A.C. 116 at para. 15 , 147 C.C.C. (3d) 193, the Ontario Court of Appeal stated: Third, the appellants submit that the proposed evidence should significantly support the inculpatory aspects of the suspect witness’ evidence. This submission is also misguided: the proposed evidence does not have to point to the accused’s guilt.

So long as the supporting evidence satisfies the trier of fact that the suspect witness is telling the truth about salient matters in the time frame of the events in question, the jury is entitled to take this evidence into account in deciding whether the suspect witness’ description of events can safely be relied upon to find the accused guilty: R. v. McCaw (W.D.) , [1998] O.A.C. Uned. 62; [1998] O.J. No. 730 (C.A.) , application for leave to appeal dismissed, [1998] S.C.C.A. No. 173; 234 N.R. 197 ; 118 O.A.C. 198 ; R. v.

Betker (A.) (1997), 1997 CanLII 1902 (ON CA) , 100 O.A.C. 81, 115 C.C.C. (3d) 421 (C.A.), application for leave to appeal dismissed (1998), 227 N.R. 153 ; 113 O.A.C. 399 (S.C.C.) ; [1997] S.C.C.A.

No. 461; [ R. v. ] Krugel [(2000), 2000 CanLII 5660 (ON CA) , 129 O.A.C. 182, 143 C.C.C. (3d) 367]. [ 19 ] The Court of Appeal in Gagnon also rejected the following articulations of the principles regarding confirmatory evidence: “[I]n order for evidence to be legally corroborative, it must be more consistent with the truth (as opposed to the falsity) of the suspect witness’ evidence on a vital or inculpatory aspect of his evidence” (at para. 12). [Overruled by Vetrovec , supra .] “[C]orroborative evidence must emanate independently of the suspect witness” (at para. 14). [“Not entirely accurate”, as illustrated by R. v.

Murphy et al. , 1976 CanLII 198 (SCC) , [1977] 2 S.C.R. 603; 9 N.R. 329; 29 C.C.C. (2d) 417. Rather, “[e]vidence that is corroborative need not emanate entirely independently of the suspect witness”.] “[C]ertain evidence given by the accomplices, that was either admitted or admitted and explained by the appellants, is ‘neutral’ evidence and not capable of constituting corroboration” (at para. 16). [Contrary to R. v. McNamara et al. (No. 1) (1981), 1981 CanLII 3120 (ON CA) , 56 C.C.C. (2d) 193 (Ont. C.A.).

Rather, “potentially confirmatory evidence does not lose that quality simply because the accused person has provided a non-inculpatory explanation of the evidence. If the jury rejects that explanation, they may then decide to accept the evidence as confirmatory”.] [ 20 ] In R. v. Campbell (2002), 2002 NSCA 35 (CanLII) , 202 N.S.R. (2d) 170 at para. 16 , 163 C.C.C. (3d) 485 (C.A.), the Nova Scotia Court of Appeal stated: [C]onfirmatory evidence need not directly implicate the accused in the crime, but must lend support to the witness’s overall testimony or material aspects thereof. [ 21 ] In R. v.

Lee (1998), 112 B.C.A.C. 202 at para. 16 , the British Columbia Court of Appeal approved the following charge to a jury in a trial involving evidence of three accomplices: Because these witnesses are regarded as being accomplices and as persons of unsavoury character you should examine all of the other evidence in the case and look for evidence that supports or confirms their testimony. In other words, you should look for evidence that makes you more confident that their testimony is true.

You should look for examples of independent evidence coming from other sources that is capable of supporting or confirming the evidence of these witness. I’m not suggesting that the whole of their evidence should be confirmed, but you should look to see whether there are important parts of it that are confirmed which makes you more confident that their testimony is true. It is for you to decide whether or not there is evidence that supports or confirms these three witnesses’ evidence in a material particular.

[ 22 ] In R v. B.(G.) (No. 1) , 1990 CanLII 113 (SCC) , [1990] 2 S.C.R. 3 at 26 and 28, 56 C.C.C. (3d) 161, the Supreme Court addressed what constitutes corroboration in the context of a child’s testimony, but the principles are equally applicable to an accomplice’s testimony: [C]orroborating evidence ... requires only that the evidence confirm in some material particular the story of the witness giving the evidence which required corroboration. [W]hat is required is additional evidence that renders it probable that the complainant’s story is true and may safely be acted upon.

Provided that the complainant’s evidence is corroborated in a material particular, with or without implicating the accused, the veracity of the witness will be strengthened. [ 23 ] These cases and others have led authors of texts on evidence to the same conclusion. Citing R. v. B.(G.) (No. 1) , supra , as well as R. v. Beliveau (1986), 1986 CanLII 1184 (BC CA) , 30 C.C.C. (3d) 193 (B.C. C.A.), R. v. Chayko (1984), 1984 ABCA 80 (CanLII) , 51 A.R. 382, 12 C.C.C. (3d) 157 (C.A.) and R. v. Jackson (1988), 1988 ABCA 77 (CanLII) , 84 A.R. 278, 58 Alta.

L.R. (2d) 207 (C.A.), The Law of Evidence in Canada states: Thus, corroboration is evidence which shows or tends to show the testimony of the suspect witness is true in relation to a material circumstance or is evidence which tends to support the allegation of a criminal act, but it need not confirm every element of the offence. [John Sopinka, Sidney N. Lederman and Alan W.

Bryant, The Law of Evidence in Canada , 2d ed. (Toronto and Vancouver: Butterworths, 1999) at 992.] [ 24 ] The Law of Evidence in Canada also states at 978: The common sense rule [regarding corroboration, as articulated in Vetrovec ] may be described as simply looking for evidence in relation to a material issue which confirms the story of the witness who potentially may lack credibility. [ 25 ] The above excerpt from an earlier edition of the text was cited with approval in R. v. Ross (1998), 1998 CanLII 18707 (NL SC) , 164 Nfld. & P.E.I.R. 214 at para. 43 (Nfld.

S.C.T.D.). [ 26 ] The authorities above suggest that the evidence of an accomplice may be confirmed or confirmatory where it supports “salient matters in the time frame of the events in question” or “the witness's overall testimony or material aspects thereof”. In order to confirm impugned evidence, the trier of fact may look to other evidence as supporting “important parts” of the accomplice’s testimony, or the accomplice’s testimony may support “evidence in a material particular” or a “material issue”.

As an accomplice’s testimony may be corroborative and require corroboration at the same time, it appears sufficient in some cases for the impugned testimony to confirm, and be confirmed by, other accepted evidence, essentially such that the pieces of evidence confirm each other on material points. [ 27 ] To even further abbreviate the points made in the cases cited, evidence may be of the type or quality that is capable of being confirmed, or confirming the events or facts, where it supports and is relevant to something “salient”, “material” or “important” in the case. [ 28 ] Here, the trial judge was alive to the deficits the impugned witness presented.

He carefully explained what confirmatory evidence he relied on and, while he was aware that the confirmatory evidence did not implicate the appellant, his faith in the witness was nevertheless restored. The evidence relied upon supports important parts of the witness’s testimony, it relates to material issues, and may be described as dealing with salient matters in the time frame of the events in question. I am satisfied that the evidence that the trial judge relied on was capable of inducing a rational belief in the veracity of the impugned witness.

[ 29 ] I would dismiss the appeal. APPEAL HEARD on JANUARY 31, 2003 REASONS FILED at EDMONTON, Alberta, this 2nd day of April, 2003 ______________________________ RITTER J.A. I concur:______________________________ Authorized to sign for: McFADYEN J.A. ____________________________________________________ DISSENTING REASONS FOR JUDGMENT OF THE HONOURABLE MR. JUSTICE BERGER ____________________________________________________ [ 30 ] The Appellant was convicted of a robbery in Red Deer and sentenced to 6½ years imprisonment. One Vincent Paul Greenwood, a participant in the robbery, testified for the Crown. Mr.

Greenwood, who was described by the trial judge as an unsavoury and untrustworthy witness, testified that the Appellant was a party to the Red Deer robbery. No other evidence implicated the Appellant. [ 31 ] Mr. Greenwood was also a participant and the only identification witness against the Appellant concerning five other robberies in Edmonton. Mr.

Greenwood’s evidence was not believed nor accepted by the Court with respect to the Edmonton robberies and the Appellant was acquitted. [ 32 ] As to the Red Deer robbery, the trial judge found that because of his long criminal record, his status as an accomplice, and the importance of his testimony, Mr. Greenwood’s evidence had to be viewed “with a tremendous amount of scepticism” and held that for his testimony to support a conviction there must exist independent corroboration. He reasoned as follows (at A.B. Vol. I. 259/47-260/33): “... Now the reasons why a strong warning is required here are numerous.

First of all, he is an accomplice. He admits to his involvement in four of these incidents. He has a terrible record. There are 25 entries on his record, which is Exhibit 1 in the proceedings, for offences of dishonesty, where he has stolen property from other individuals.

Every year from 1988 to the year 2000, there is a conviction entered against this individual. On the witness stand, he admitted to lying to the police on many occasions, when it suits him. Not just one lie, but on many occasions he has lied to the police. He’s generally a person who one would consider low life, and when I use that phrase, I’m talking about how he treated his grandparents. These were individuals who have given him support when he’s been in trouble, yet he stole from them. A fairly indecent type of act that he would turn against his own grandparents and then take money from them.

In the years 1999 and 2000 when these events were taking place, he has [sic] involved in the drug trade. He was by his own admission, he was selling drugs. He was a significant user of drugs at that time, and this is borne out by the fact that on the night that he allegedly had the confrontation with Mr. Kehler in his apartment, he was either grossly mistaken or hallucinating in relation to what took place because the evidence that has been led before this Court clearly establishes that Mr. Kehler could not have come back into the apartment through the crawl space.

Now those are the reasons why one has to view his evidence with a tremendous amount of scepticism and look for corroboration before one could act upon it .” [Emphasis Added] [ 33 ] The Court found that Mr. Greenwood’s testimony was corroborated by three things: 1. The fact that Mr. Greenwood made a phone call to a friend prior to the robbery. 2. The fact that there were Gretzky hockey cards taken during the robbery in Mr. Greenwood’s apartment, and 3. The fact that running shoes and sweat pants were recovered where Mr. Greenwood said they would be (thrown out the window along the highway). [ 34 ] Mr.

Greenwood, as an acknowledged participant in the robbery, would know all these things, none of which was in dispute. Nonetheless, the trial judge relied upon them holding that they “[support] and [buttress] the evidence of Mr. Greenwood so that it can be acted upon in good conscience.” (at A.B. 265/39-41): ANALYSIS [ 35 ] To the extent that a credibility assessment demands, in the opinion of the trier of fact, a search for confirming evidence of the testimony of a Crown witness, such evidence need not directly implicate the accused or confirm the Crown witness’s evidence in every respect.

The evidence should, however, be capable of restoring the trier’s faith in the relevant aspects of the witness’s account. R. v. Betker (1997), 1997 CanLII 1902 (ON CA) , 115 C.C.C. (3d) 421 (Ont. C.A.) at 429 per Moldaver, J.A. (leave to appeal to S.C.C. refused (1998), 121 C.C.C. (3d) vi); R. v. Michaud , 1996 CanLII 211 (SCC) , [1996] 2 S.C.R. 458 at 459 per Sopinka, J.; R. v. B.L. , [1998] O.J. No. 2522 (O.C.J. (G.D.)); R. v. Jan , [2001] O.J. No. 151 (O.C.J) . The issues in dispute help to define relevance.

By way of illustration, for the evidence to be corroborative, the context in Betker required that “it only had to be capable of restoring the jury’s faith, if need be, in the complainant’s ability to accurately recall particular events from her childhood” (at p. 429) because that was one of the critical issues in dispute. In the case at bar, there was no need to restore the trial judge’s faith in Mr. Greenwood’s admitted participation in the Red Deer robbery. It was not a relevant aspect of Mr.

Greenwood’s account in the sense that it necessitated the judge’s search for corroboration. [ 36 ] Put another way, corroborative evidence, in order to restore the trier of fact’s faith in the witness’s account, must confirm the testimony of that witness in a material particular. R. v. Brosseau , [2002] A.J. No. 547 at para. 95 (Prov. Ct.) ; Murphy and Butt v. The Queen (1976), 1976 CanLII 198 (SCC) , 29 C.C.C. (2d) 417 (S.C.C.); R. v. Vetrovec , 1982 CanLII 20 (SCC) , [1982] 1 S.C.R. 811. That which defines “material particular” is the trial context and the issue or issues in dispute. Mr.

Greenwood’s participation in the Red Deer robbery was not in dispute. There was no need to confirm it. Evidence confirming his participation was not material. It added nothing. It did not render it more probable that Mr. Greenwood’s testimony was true and could be safely acted upon.

[ 37 ] Nor was the “confirming” evidence independent . In R. v. Lee (1999), 112 B.C.A.C. 202 at pp. 204-205 , the British Columbia Court of Appeal approved the following charge to a jury in a trial involving evidence of three accomplices: “... Because these witnesses are regarded as being accomplices and as persons of unsavoury character you should examine all of the other evidence in the case and look for evidence that supports or confirms their testimony. In other words, you should look for evidence that makes you more confident that their testimony is true.

You should look for examples of independent evidence coming from other sources that is capable of supporting or confirming the evidence of these witnesses . I’m not suggesting that the whole of their evidence should be confirmed, but you should look to see whether there are important parts of it that are confirmed which makes you more confident that their testimony is true. It is for you to decide whether or not there is evidence that supports or confirms these three witnesses’ evidence in a material particular. ...” [Emphasis added] [ 38 ] Major, J. made the same point in R. v.

Brooks , 2000 SCC 11 (CanLII) , [2000] 1 S.C.R. 237 where (dissenting on other grounds) he stated (at. pp. 275-276): “... It [the Vetrovec warning] should plainly emphasize the dangers inherent in convicting an accused on the basis of such evidence unless confirmed by independent evidence . The warning does not come without risk to the accused as it should also be accompanied by a reference to the evidence capable of providing independent confirmation of the unsavoury witness’s testimony.

The independent confirmation relates to other evidence that would support the credibility of the unsavoury witness. ...” [Emphasis added] [ 39 ] I appreciate that”[a]ppellate courts should show great deference to the findings of credibility made at trial and the importance of taking into consideration the special position of the trier of fact in judging credibility and of having the advantage, denied to the appellate court, of directly observing the testimonies of the witnesses ( R. v. W.(R.) , 1992 CanLII 56 (SCC) , [1992] 2 S.C.R. 122, at p. 131).” ( R. v.

Brooks , supra , at p. 245). [ 40 ] That having been said, the quality of confirming evidence, dependent on the facts of each case, must be “capable of inducing a rational belief that [the impugned witness] is telling the truth and is for that reason corroborative” [emphasis added] ( Vetrovec at p. 833). The focus upon “rational belief” means that faith in the credibility of the otherwise discredited witness must be predicated upon reasoned contextual analysis. [ 41 ] In the case at bar, the sole issue was whether the Appellant was, in fact, the person who committed the robbery with the unsavoury witness.

It is clear that the trial judge would not have convicted the Appellant of the Red Deer robbery in the absence of evidence corroborating the testimony of Mr. Greenwood. The evidence, said to be corroborating and relied upon by the trial judge in the case at bar, supported only two conclusions: 1. the robbery was committed by at least two people, and 2. one of those two people was Mr. Greenwood. [ 42 ] It did not otherwise lend support to Mr. Greenwood’s testimony. No relevant, material or independent confirming evidence was provided capable of rationally restoring the trier’s faith in Mr.

Greenwood’s account of any issue in dispute, including the Appellant’s participation. That being so, the learned trial judge mistakenly relied upon the uncorroborated evidence of an unsavoury witness whose testimony the trial judge found untrustworthy.

[ 43 ] In R. v. G.(G.) (1995), 1995 CanLII 8922 (ON CA) , 97 C.C.C. (3d) 362 (Ont. C.A.), Laskin, J.A. held as follows (at pp. 377- 378): “Nevertheless, I consider the trial judge’s erroneous conclusion that the various incidents in the evidence were capable of bolstering A.G.’s story to be an error of law. Where evidence is capable of confirming a witness’s story and a trial judge concludes that the evidence is confirmatory, an appellate court should not interfere simply because it would have drawn a different conclusion.

Where, however, a trial judge concludes that certain evidence confirms a witness’s story and, as is the case here, the evidence is not capable of providing such confirmation, then an appellate court is entitled to intervene. The trial judge’s erroneous conclusion amounts to an error of law. As Wilson J. stated in R. v. B.(G.) (1990), 1990 CanLII 115 (SCC) , 56 C.C.C. (3d) 181 at p. 192, [1990] 2 S.C.R. 57, 77 C.R. (3d) 370, the question ‘whether evidence is capable of being corroborative’ is a question of law: see also R. v.

Hubin (1927), 1927 CanLII 79 (SCC) , 48 C.C.C. 172, [1927] 4 D.L.R. 760, [1927] S.C.R. 442. I regard this as similar to a finding of fact for which there is no evidence, which has always been considered an error of law: Parnerkar v. The Queen (1973), 1973 CanLII 149 (SCC) , 10 C.C.C. (2d) 253, 33 D.L.R. (3d) 683, [1974] S.C.R. 449; R. v. Morgentaler (1975), 1975 CanLII 8 (SCC) , 20 C.C.C. (2d) 449, 53 D.L.R. (3d) 161, [1976] 1 S.C.R. 616; R. v.

Squire (1976), 1976 CanLII 26 (SCC) , 29 C.C.C. (2d) 497, 69 D.L.R. (3d) 312, [1977] 2 S.C.R. 13.” [ 44 ] For these reasons, I would allow the appeal and quash the conviction. It is apparent that the quality of the Crown’s case will not improve on a re-trial. That being so, I would now enter an acquittal. APPEAL HEARD on JANUARY 31 , 2003 REASONS FILED at EDMONTON , Alberta, this 2nd day of April , 2003 ______________________________ BERGER, J.A.