R v Oqutaq, 2019 NUCA 01

ᓄᓇᕘᒥ ᐅᓐᓂᓗᖅᓴᖅᑐᓄᑦ ᐃᖅᑲᖅᑐᐃᕕᒃ Nunavunmi Apiqhuidjutainut Uuktuffaarutit Nunavut Court of Appeal Cour d'appel du Nunavut Citation: R v Oqutaq, 2019 NUCA 01 Date: 20190212 Docket: 03-17-2-CAS Registry: Iqaluit Between: Her Majesty the Queen Respondent - and - Tony Oqutaq Appellant _______________________________________________________ Reasons for Decision of The Honourable Madam Justice Michelle Crighton _______________________________________________________ Appeal from the Conviction by The Honourable Madam Justice Bonnie Tulloch Dated the 1st day of December, 2016 ( Docket: 03-16-136)

_______________________________________________________ Reasons for Decision of The Honourable Madam Justice Michelle Crighton _______________________________________________________ I. INTRODUCTION [ 1 ] The appellant was convicted after trial of assaulting his common law spouse. He appeals conviction arguing that the trial judge failed to provide sufficient reasons to support her credibility findings and, further, applied different levels of scrutiny to the evidence of the complainant and the appellant.

The appellant fairly concedes that these two issues are connected and accordingly, the arguments necessarily overlap. [ 2 ] The trial was short and credibility was pivotal in the trial judge’s decision to convict. Credibility is a question of fact on which the standard of review is palpable and overriding error: R v Gagnon , 2006 SCC 17 at para 10 , [2006] 1 SCR 621 .

Where a case turns largely on determinations of credibility, as here, the sufficiency of reasons should be considered in light of the deference afforded to the trial judge’s credibility findings: R v DAH , 2019 ABCA 26 at para 5 [ DAH ] , citing R v Dinardo , 2008 SCC 24 at para 26 , [2008] 1 SCR 788 .

While the failure to sufficiently articulate how credibility concerns were resolved may constitute reversible error, the issue is whether the reasons, read in the context of the evidentiary record and the live issues on which the trial focussed, fail to disclose an intelligible basis for the verdict: DAH at para 7 , citing R v REM , 2008 SCC 51 at para 53 , [2008] 3 SCR 3 . II.

ANALYSIS [ 3 ] I have reviewed the trial judge’s reasons for decision and see no errors warranting appellant intervention either in the trial judge’s credibility analysis or in her reasons for decision. [ 4 ] In her reasons, the trial judge focussed on whether the appellant’s head-butting of the complainant was accidental or intentional. That was the only issue before her, given the evidence at trial.

In that context, there is a clear pathway to conviction in her reasons and she did not apply a different standard in assessing the credibility of the complainant and the respondent. [ 5 ] In assessing the complainant’s testimony, the trial judge had to resolve some internal inconsistencies with that evidence. The complainant’s testimony in her first language through an interpreter was clear and unambiguous. However, when she testified in English without

interpretation, the complainant’s evidence is less clear. The trial judge was alive to the language issue and, while she found that language was not “decisive in this case”, she nevertheless factored it into her credibility analysis to resolve the minor inconsistencies in the complainant’s evidence by placing greater weight on the answers provided in her first language and less weight on those provided in English. [ 6 ] The appellant, on the other hand, responded exclusively in English.

The trial judge assessed his credibility and in doing so, she concluded that his evidence on the central issue was incapable of belief. [ 7 ] In that regard, the appellant’s anger was relevant in the context of the argument. That the appellant accused the complainant of cheating on him and that they were yelling at each other was unchallenged. Further, the appellant agreed the complainant pushed him.

Again, in context, it is implicit in the trial judge’s reasons that she rejected the appellant’s claim that he accidentally head-butted the complainant – twice - and rejected his evidence that he had to get closer to the complainant so he could hear her and that the complainant grabbed the appellant to get away from him whereupon they fell and banged heads. III. DISPOSITION [ 8 ] The trial judge’s findings, including her credibility analysis, are entitled to deference.

Moreover, her reasons read in their entirety and in context, provide a clear pathway to conviction. [ 9 ] Accordingly, for all of those reasons, the appeal is dismissed. Application heard on February 12, 2019 Reasons filed at Iqaluit, Nunavut this 12th day of February, 2019

Crighton J.A. Appearances: S. Bailey for the Respondent P. Connelly for the Appellant