R. v. Meeko, 2019 NUCA 6

ᓄᓇᕘᒥ ᐅᓐᓂᓗᖅᓴᖅᑐᓄᑦ ᐃᖅᑲᖅᑐᐃᕕᒃ Nunavunmi Apiqhuidjutainut Uuktuffaarutit Nunavut Court of Appeal Cour d'appel du Nunavut Citation: R. v. Meeko, 2019 NUCA 6 Date : 2019-10-18 Docket: 08-18-009-CAS Registry : Iqaluit Between: Moses Meeko Appellant -and- Her Majesty The Queen Respondent _______________________________________________________ The Court : The Honourable Madam Justice Karan M. Shaner The Honourable Madam Justice Frederica Schutz The Honourable Madam Justice Sheila Greckol Memorandum of Judgment Appeal from the conviction by the Honourable Mr. Justice E. Johnson

MEMORANDUM OF JUDGMENT (NOTE: This document may have been edited for publication) I. INTRODUCTION [ 1 ] The appellant, Mr. Meeko, was convicted by a judge alone of counts of breaking and entering into a dwelling and committing assault while inside, contrary to s 348(1)(

b) of the Criminal Code , RSC 1985, c C-46 [ Criminal Code ] and assault contrary to s 266 of the Criminal Code . He also pled guilty to two counts of failing to comply with a probation order, which is not in issue in this appeal. Mr. Meeko appeals his convictions for breaking and entering and assault. II. BACKGROUND [ 2 ] The relevant facts are these. The complainant, Ms. A, was dating Mr. Meeko, who would sometimes stay at her apartment in Iqaluit. She described their relationship as “volatile”. [ 3 ] Ms. A testified that on the night of June 7, 2018, she was awoken by a noise and got up, finding Mr.

Meeko in her house by the door, whereupon he assaulted her. Mr. Meeko testified in his own defence and gave a very different account of the night in question. On his account, he, Ms. A and her sister drank during the afternoon, Ms. A fell asleep and when she woke up, they argued and Ms. A became angry and scratched him and threw things at him. She called her sister, who called the police. Mr. Meeko left the apartment when he heard that the police were coming and was arrested in the street. He denied breaking down the door or assaulting Ms. A. III. DECISION BELOW [ 4 ] The trial judge convicted Mr.

Meeko on both counts, giving brief oral reasons. On this case the accused, Moses Meeko, is charged with breaking into building 2215, unit ‘A’, and assaulting - committing an assault in that building on [Ms. A] on June 7th, 2018. The evidence of the complainant was that she was asleep. She has three children and she woke up from the sleep or was woken up from the sleep by some noise and then noticed the accused was in the building so that she became concerned. She then ended up upstairs in the bedroom where the accused proceeded to beat her in the legs a number of times.

She used twenty as being the number, and at some point she called her sister and then her sister called the police and the police arrived. The police officer, Cst. Stapleton, confirmed that the door was open when he arrived. He confirmed that [Ms. A] was very upset, that she had trouble walking. The accused testified and he told a different story where they were partying all afternoon and into the early evening, that [Ms. A] was passed out at some point and then she woke up.

They had an argument over the fact that there was some issues over sexually transmitted diseases that they had to deal with and there was an argument for about twenty minutes. She became agitated. Her sister was called and then he left, which is totally inconsistent with the evidence of the complainant.

The complainant, I was satisfied was a fairly honest witness. She struggled and was very hesitant to answer some of the questions, but she reluctantly admitted that she was drunk, which is contrary to her own interest, and overall I found her to be a credible witness. The accused did give fairly straightforward evidence as well. I do have to take into account his record, as indicated by the crown, but I am going to end up with the fact that I don’t have a reasonable doubt. I wrestled with it a little bit. My overall conclusion is that I do not believe the evidence of the accused.

He shouldn’t, he wasn’t supposed to be there. The police officer confirms the door was broken in and that it was open. [Ms. A] was quite adamant that the door was locked when she went to bed. So I am considering WD. I find myself I do not believe the accused and I am not left in a reasonable doubt, so as a result I am going to convict him of the charges. (Appeal Book, 25/1 – 26/2). IV. GROUNDS OF APPEAL [ 5 ] Mr.

Meeko advances the following grounds of appeal: (1) the trial judge gave insufficient reasons for convicting him; (2) the verdicts are unreasonable in that they cannot be supported by the evidence; (3) the trial judge erred in law by not applying the Kienapple principle when convicting Mr. Meeko of both breaking and entering into a dwelling and committing assault and assault simpliciter. V. STANDARD OF REVIEW [ 6 ] Failure to give adequate reasons may amount to a reversible error. The standard of adequacy is a functional one that asks whether the reasons satisfy the functions they are supposed to serve.

In R v Gagnon , 2006 SCC 17 , [2006] 1 SCR 621 at para 13 , the Supreme Court articulated the standard as follows: Finding an error of law due to insufficient reasons requires two stages of analysis: (1) are the reasons inadequate; (2) if so, do they prevent appellate review? In other words, the Court concluded that even if the reasons are objectively inadequate, they sometimes do not prevent appellate review because the basis for the verdict is obvious on the face of the record.

But if the reasons are both inadequate and inscrutable, a new trial is required. [ 7 ] A verdict is unreasonable or is not supported by the evidence if it is not one that a properly instructed trier of fact, acting judicially could have rendered: R v Biniaris , 2000 SCC 15 , [2000] 1 SCR 381 at para 36 ; R v WH , 2013 SCC 22 , [2013] 2 SCR 180 at para 26 . [ 8 ] Whether the trial judge failed to apply the Kienapple principle in circumstances where it applies is a question of law reviewable for correctness: Housen v Nikolaisen , 2002 SCC 33 , [2002] 2 SCR 235 at paras 8-9 . VI. ANALYSIS A.

Are the reasons inadequate? [ 9 ] This trial was very brief. [ 10 ] Ms. A testified that on June 7, 2018, she was dating Mr. Meeko who was staying with her on and off, despite a court order preventing contact. She went to sleep. She heard the door open, though she agreed she had locked the door. She woke up and found it was Mr. Meeko. The door was broken on one side. She texted her sister. Before her sister arrived, Mr. Meeko punched her, about twenty times on each leg. Her sister came, then the police. In cross-examination, Ms. A denied spending that day drinking with Mr. Meeko and her sister.

She acknowledged being drunk and their volatile relationship. She acknowledged that he accused her of cheating that night, but denied they discussed being diagnosed with venereal diseases.

[ 11 ] The investigating officer testified. He said that he responded to a call concerning a well-being check/assault at about 9:18 pm. The door was open and “looked like it had been kicked open”. Ms. A was very upset and crying. She looked like she was struggling to walk a little bit, walking very, very slowly. [ 12 ] Mr. Meeko testified that he slept with Ms. A the night of June 6, 2018. On June 7, 2018, he went to his probation appointment, then met Ms. A who was going to the liquor store. He went with her, purchased wine and beer, and they returned to her place where they met her sister.

The three of them drank and talked. Ms. A was drinking vodka. The sister left with her boyfriend and Ms. A passed out. They argued about infidelity and venereal disease. According to Mr. Meeko, Ms. A threw things at him and scratched him, then called her sister, who said the police were coming. Mr. Meeko denied kicking in the door, or hitting her, though he acknowledged being there in the face of a no-contact order. [ 13 ] We have quoted the trial judge brief oral reasons in full above. [ 14 ] The trial judge said he was satisfied that Ms.

A was “fairly honest”, admitted she was drunk, and overall was a “credible witness”. He found Mr. Meeko gave “fairly straightforward evidence as well”. He then went straight to the conclusion that he had no reasonable doubt and did not believe the accused, as he wasn’t supposed to be there. He found the police officer confirmed the door was broken in and open, though she had locked it. His application of W(

D) amounted to this: “I do not believe the accused and am not left in a reasonable doubt, so as a result I am going to convict him of the charges.” [ 15 ] Mr. Meeko argues that the trial judge’s decision fails to sufficiently explain his reasons for rejecting Mr. Meeko’s account and accepting the complainant’s evidence to show why he came to his verdict; he failed to identify and reconcile the inconsistencies of Ms. A’s evidence and failed to provide the basis for rejecting Mr. Meeko’s evidence; and he did not explain why he convicted Mr. Meeko. [ 16 ] The trial judge found both Ms. A and Mr.

Meeko to be credible. However, he provided no reasons as to why he ultimately did not believe Mr. Meeko and was not left with reasonable doubt by his evidence. In our view, the reasons are inadequate to meet the essential functions central to the rule of law and public confidence in the administration of justice: an explanation to Mr. Meeko of why he was convicted, and accountability to the public, so that justice is both done and seen to be done: R v Sheppard , 2002 SCC 26 , [2002] 1 SCR 869 [ Sheppard ] at paras 18 , 28, 33, 36, 50 and 55. B.

Given that the reasons are inadequate, do they prevent appellate review? [ 17 ] Reasons for judgement must provide for meaningful appellate review by enabling the appeal court to determine whether there is any reviewable error in the trial judge’s decision. Mr. Meeko argues the reasons do not provide a sufficient basis for meaningful appellate review. [ 18 ] We agree. The deficiencies in the trial reasons, even when supplemented by the trial record as a whole, preclude meaningful appellate review.

If a reviewing court cannot determine whether the decision is vitiated by error; or why a judge came to a certain determination, the conviction cannot stand: Sheppard at paras 28, 50 . [ 19 ] After reviewing the sparse record, and the brief reasons, we are at a loss to understand the basis for the trial judge’s ultimate credibility findings, and conclusion that he was left with no reasonable doubt. The conviction cannot stand.

The appeal is allowed on this basis, the conviction quashed, and the matter returned for a new trial. [ 20 ] Given our conclusion, it is unnecessary to determine whether the verdict was unreasonable. As to whether the trial judge erred in law by not applying the Kienapple principle, the Crown appropriately conceded that the assault conviction (count 2) should have been stayed under the Kienapple principle and that the 90-day sentence for this offence should be deleted from Mr. Meeko’s record. However, since the conviction has been quashed and the matter returned for a new trial, this ground of appeal is academic.

VII. CONCLUSION [ 21 ] The appeal is allowed, the conviction quashed, and this matter returned for a new trial. Appeal heard on September 17, 2019 Memorandum filed at Iqaluit, Nunavut This 18th day of October, 2019 ______________________ Shaner J.A ______________________ Schutz J.A. ______________________ Greckol J.A. Appearances:

B. Cowan, K. Selkirk for the Appellant A. Dion for the Respondent