2011 NBCA 14, 2011 NBCA 14

COURT OF APPEAL OF NEW BRUNSWICK 38-10-CA L.C.M. APPELLANT L.C.M. APPELANT - and - - et - HER MAJESTY THE QUEEN RESPONDENT SA MAJESTÉ LA REINE INTIMÉE L.C.M. v. R., 2011 NBCA 14 L.C.M. c.

R., 2011 NBCA 14 CORAM: The Honourable Justice Bell The Honourable Justice Quigg The Honourable Justice Green CORAM : L’honorable juge Bell L’honorable juge Quigg L’honorable juge Green Appeal from a decision of the Court of Queen’s Bench: March 18, 2010 Appel d’une décision de la Cour du Banc de la Reine : Le 18 mars 2010 History of Case: Historique de la cause : Decision under appeal: 2010 NBQB 71 Décision frappée d’appel : 2010 NBQB 71 , 2010 NBBR 71 Preliminary or incidental proceedings: 2010 NBQB 54 Procédures préliminaires ou accessoires : 2010 NBQB 54 , 2010 NBBR 54 Appeal heard : January 18, 2011 Appel entendu : Le 18 janvier 2011 Judgment rendered: January 18, 2011 Jugement rendu : Le 18 janvier 2011

Counsel at hearing: For the appellant: Margaret Gallagher For the respondent: Lucie N. Mathurin Avocats à l’audience : Pour l’appelant : Margaret Gallagher Pour l’intimée : Lucie N. Mathurin THE COURT The appeal is allowed, the conviction is quashed anda new trial is ordered. LA COUR Accueille l’appel, annule la déclaration de culpabilitéet ordonne la tenue d’un nouveau procès. The following is the judgment delivered by THE COURT (Orally) [1] On March 2, 2010, a judge of the Court of Queen’s Bench found the appellant guilty of the offence set out in s. 271(1)(

a) of the Criminal Code , R.S.C. 1985, c. C-46, concluding that between the 1st day of July, 2002, and the 31st day ofAugust, 2002, the appellant had committed a sexual assault against his granddaughter. On March 18, 2010, the trial judge sentenced theappellant to a 33-month sentence of imprisonment and made ancillary orders pursuant to ss. 487.05, 490.012 and 109 of the CriminalCode. [2] The appellant submits the trial judge erred in law by applying an overly stringent test to his determination of“credible evidence”, including that offered by the appellant.

At paragraphs 28 and 29, the trial judge states: The law is also clear the Court is not obliged to accept any part of the evidence of a witness just because there is no denial of it. TheCourt can only accept evidence as being credible if it is believed to be true beyond a reasonable doubt. Having decided what evidence to accept the Court must consider it as a whole in arriving at the decision. [Emphasis added.] [3] This approach to the evidence is inconsistent with the jurisprudence set out in R. v. Morin, (SCC), [1988] 2 S.C.R. 345, [1988] S.C.J. No. 80 (QL), para. 41, R. v.

W.(D.), (SCC), [1991] 1 S.C.R. 742, [1991]S.C.J. No. 26 (QL), para. 26). The trial judge’s error eliminated from consideration individual pieces of evidence, which he did notbelieve beyond a reasonable doubt. A similar error resulted in a new trial being ordered by this Court in R.S.L. v. R, 2006 NBCA 64, 300N.B.R. (2d) 24: The jurors were clearly told that, in making a decision, they could not rely on evidence which they had not accepted as true beyond a

reasonable doubt. As was the case in R. v. Miller (1991), (ON CA), 68 C.C.C. (3d) 517 (Ont.

C.A.) at 541, thisinstruction "had the effect of eliminating from their consideration evidence which was neither accepted nor rejected, upon which theyentertained a reasonable doubt, and to consider only the residual evidence in arriving at their verdict." […] This instruction eliminated from consideration any evidence that was not believed beyond a reasonable doubt, even if such evidencemight, nevertheless, have caused the jury to entertain a reasonable doubt. [paras. 101, 103] The decision under consideration is tainted by similar errors. [4] It is apparent the trial judge eliminated from consideration evidence that could have raised a reasonable doubt.Recently, in R v.

R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, the Supreme Court concluded: More recently, in R. v. Dinardo, [2008] 1 S.C.R. 788, 2008 SCC 24, the Court, per Charron J., rejected a formalistic approach. The caseturned on credibility. The trial judge’s reasons failed to articulate the alternatives to be considered in determining reasonable doubt as setout in R. v. W. (D.), (SCC), [1991] 1 S.C.R. 742.

Charron J. stated that only the substance, not the form, of W. (D.) needbe captured by the trial judge, then went on to say: In a case that turns on credibility, such as this one, the trial judge must direct his or her mind to the decisive question of whether theaccused’s evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt. [para. 23] [para. 31] [5] For these reasons, we allow the appeal, quash the conviction and order a new trial. _____________________________ B. RICHARD BELL, J.A. _____________________________ KATHLEEN A.

QUIGG, J.A. _____________________________ BRADLEY V. GREEN, J.A.