R. v. Philpott, 2021 NLSC 36

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Philpott, 2021 NLSC 36 Date : March 16, 2021 Docket : 201906G0082 HER MAJESTY THE QUEEN v. JAMES TROY ROBERT PHilPOTT Before: Justice Katherine O'Brien On Appeal From: A Decision of the Provincial Court of Newfoundland and Labrador, File # 0618S0018/19/20 dated the 4th day of May, 2019 (“Trial Decision”). Place of Hearing: Grand Bank, Newfoundland and Labrador Date of Hearing: March 4, 2021

Summary: The Appellant appealed his conviction for three counts under the Highway Traffic Act and his sentence for one of the counts. The Court found that the trial judge had properly assessed the Appellant’s evidence and had not undermined the presumption of innocence in assessing credibility, notwithstanding that he considered the Appellant’s motive to lie. The Appellant had put motivation at issue during the trial by arguing that the complainants were motivated to lie. The trial judge considered several factors in assessing the Appellant’s credibility and his findings were due deference.

His reasons, when considered in context, were sufficient. The trial judge did not err in his assessment of the complainants’ evidence either. The error on sentence was conceded by the Crown and the appeal was allowed on that issue only. Appearances:

Philip C. W. Whalen Appearing on behalf of the Appellant P. Cory Binderup Appearing on behalf of the Crown Authorities Cited: CASES CONSIDERED: R. v. W. (D.), (SCC), [1991] 1 S.C.R. 742; Housen v. Nikolaisen, 2002 SCC 33; R. v. Ryan,2011 NLCA 53; R. v. Clark, 2005 SCC 2; R. v. Gagnon, 2006 SCC 17; R. v. M. (R.E.), 2008 SCC 51; R. v. H. (J.C.), 2011 NLCA 8;Faryna v. Chorny, (BC CA), [1952] 2 D.L.R. 354, [1952] 4 W.W.R. 171 (B.C.C.A.); R. v. Laboucan, 2010 SCC 12;R. v. Vuradin, 2013 SCC 38; R. v. Corby, 2016 BCCA 76; R. v. H. (J.A.), 2012 NSCA 121; STATUTES CONSIDERED: Highway Traffic Act, R.S.N.L. 1990, c.

H-3; Criminal Code, R.S.C. 1985, c. C-46 REASONS FOR JUDGMENT O'Brien, J.: INTRODUCTION [1] The Appellant was convicted following trial of three

summary conviction offences under the Highway Traffic Act, R.S.N.L.1990, c. H-3: operating a vehicle without proper licence class (section 43(1)(b)), operating an unregistered vehicle (section 42(a)(i)(A)),and operating an unregistered vehicle (section 75(5)(b)). He has appealed his convictions and, with respect to the section 43(1)(b)charge, his sentence. [2] If the Appellant’s convictions are upheld, the Crown concedes that the sentence on the section 43(1)(

b) charge was incorrectin law and should be reduced to $50.00 plus a thirty percent victim surcharge. [3] At trial, the Crown called the investigating police officer and two complainants, a husband and wife who are the Appellant’sneighbours. The Appellant testified on his own behalf. There was no dispute that the Appellant owned a motorcycle that was notregistered or insured. There was also no dispute that the Appellant did not have the proper licence class to drive the motorcycle. Thekey issue at trial was whether the Appellant drove the motorcycle that he owned on the day in question.

The complainants testified thatthey saw him driving it and the Appellant testified that he did not. [4] The Appellant has raised three main grounds of appeal: 1. The trial judge erred in assessing the Appellant’s evidence pursuant to the principles set out in R. v. W. (D.), (SCC),[1991] 1 S.C.R. 742; 2. The trial judge reversed the onus of proof by assuming the Appellant would lie to obtain an acquittal; and 3. The trial judge failed to address inconsistencies in the complainants’ evidence. LAW [5] This is a

summary conviction appeal brought pursuant to

section 813 of the Criminal Code, R.S.C. 1985, c. C-46. Section686(1) of the Criminal Code sets out the powers of an appellate court to allow an appeal of this nature: 686

(1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminallyresponsible on account of mental disorder, the court of appeal (

a) may allow the appeal where it is of the opinion that (

i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence,

(ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or (iii) on any ground there was a miscarriage of justice; [6] The standard of appellate review on questions of law is correctness and on findings of fact is palpable and overriding error. For questions of mixed fact and law and inferences of fact, generally the standard is palpable and overriding error although this can varydepending on the inferences or the mixture of fact and law (see: Housen v. Nikolaisen, 2002 SCC 33, R. v. Ryan, 2011 NLCA 53).

Correctness is a lower standard than palpable and overriding error. If an error of law has occurred, the correctness standard permitsappellate judges to substitute their findings for those of the trial judge. If the palpable and overriding error standard applies, appellatejudges must show great deference to trial judges with respect to their findings and inferences. In R. v.

Clark, 2005 SCC 2, Fish J.,succinctly expressed the standard in the context of a criminal case at paragraph 9: Appellate courts may not interfere with the findings of fact made and the factual inferences drawn by the trial judge, unless they areclearly wrong, unsupported by the evidence or otherwise unreasonable. The imputed error must, moreover, be plainly identified.

And itmust be shown to have affected the result. “Palpable and overriding error” is a resonant and compendious expression of this well-established norm: …. [7] Having reviewed the law generally applicable to appellate review, I will analyze each issue in turn. Issue 1: Did The trial judge err in applying the principles of W. (D.)? [8] The principles of W. (D.) are set out in paragraph 11 of that decision: Ideally, appropriate instructions on the issue of credibility should be given not only during the main charge, but on any recharge.

A trialJudge might well instruct the jury on the question of credibility along these lines: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [9] The three principles above are now frequently referred to as the W. (D.) analysis which is used by triers of fact regularly intheir assessment of evidence of an accused. The first two principles focus on the credibility of the accused.

The third focuses on otherevidence, which must be considered even if the accused is not believed. [10] A trial judge’s determination of credibility of a witness, including an accused witness, attracts a high degree of deference. Thetrial judge is in a unique position to see and hear witnesses in the courtroom whereas an appellate judge typically has only a writtenrecord of proceedings. In R. v. Gagnon, 2006 SCC 17, Bastarache, LeBel and Abella JJ., writing for the majority, wrote at paragraph 20: Assessing credibility is not a science.

It is very difficult for a trial judge to articulate with precision the complex intermingling ofimpressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events. That is whythis Court decided, most recently in H.L., that in the absence of a palpable and overriding error by the trial judge, his or her perceptionsshould be respected. [11] In applying the W. (D.) analysis, the trial judge does not need to take a formal or rigid approach. This was reiterated by theSupreme Court of Canada in R. v.

M. (R.E.), 2008 SCC 51, where McLachlin C.J. wrote for the court: 31 More recently, in R. c. Dinardo [2008] 1 S.C.R. 788, 2008 SCC 24 (S.C.C.), the Court, per Charron J., rejected a formalisticapproach. The case turned on credibility. The trial judge's reasons failed to articulate the alternatives to be considered in determiningreasonable doubt as set out in R. v. W. (D.), (SCC), [1991] 1 S.C.R. 742 (S.C.C.).

Charron J. stated that only thesubstance, not the form, of W. (D.) need be 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] 32 Charron J. went on to state that where credibility is a determinative issue, deference is in order and intervention will be rare (para.26).

While the reasons must explain why the evidence raised no reasonable doubt, “there is no general requirement that reasons be sodetailed that they allow an appeal court to retry the entire case on appeal. There is no need to prove that the trial judge was alive to andconsidered all of the evidence, or answer each and every argument of counsel” (para. 30).

[12] The Appellant submits that the trial judge erred in law by misinterpreting his role as set out in W. (D.) and later cases, and byincorrectly concluding that he was required to decide upon a version of events.

In particular, the Appellant points to the trial judge’sreasons at paragraph 23 wherein he wrote: “I must carefully assess the evidence before me based on a multiple of factors and ultimatelymake a decision regarding a version of events which is congruent with the overall tone and tenor of the circumstances that are incommon and beyond dispute.” [13] I do not find that the trial judge misinterpreted the law in this regard.

Reading the trial judge’s reasons as a whole, it is clearthat he understood his obligation to consider all of the evidence and to decide whether, based on the evidence that he accepted, theCrown had proven the elements of the offences beyond a reasonable doubt. Specifically, the trial judge reviewed the principles of W.(D.) and directions from our Court of Appeal in R. v. H. (J.C.), 2011 NLCA 8 on how they should be applied (Trial Decision, paras. 21and 25).

He also reviewed the onus and the burden of proof (Trial Decision, paras. 13 to 18) and reminded himself that when engagingin credibility assessments a trial judge should not engage in a “credibility contest” by simply deciding which competing version of eventsis preferred (Trial Decision, paras. 22 and 23). [14] The sentence highlighted by the Applicant in paragraph 23 of the Trial Decision is simply the trial judge’s statement of the lawas set out in Faryna v. Chorny, (BC CA), [1952] 2 D.L.R. 354, [1952] 4 W.W.R. 171 (B.C.C.A.), and the trial judgestates this explicitly in the following paragraph. Faryna v.

Chorny is good law and has been adopted by our Court of Appeal onnumerous occasions. A trial judge does make findings of fact in determining whether the Crown has met its burden and, in so doing, canaccept all, some or none of any witness’s testimony. [15] The Appellant also argues that the trial judge engaged in a “reverse onus analysis”, applying presumptive guilt, notpresumptive innocence.

In support of this assertion, the Appellant points to the trial judge’s statement at paragraph 27 of the TrialDecision wherein he “concludes that the Stanleys [the complainants] are credible and reliable witnesses and that Mr. Philpott was thedriver of the motorcycle on or about May 15, 2018 as claimed by them.” I do not read this sentence as establishing any presumption. Upon reading the decision as a whole, I understand paragraph 27 as setting out the trial judge’s key conclusions at the beginning of his“Analysis and Findings” section.

In the paragraphs that follow, the trial judge explains why he came to those conclusions. [16] The sufficiency of his explanation is central to this appeal so I will comment on it further. In M. (R.E.), the Supreme Court ofCanada reviewed the law surrounding appellate review of the sufficiency of reasons. The Supreme Court highlighted the importance ofreviewing reasons in the context of the record, the issues, and the submissions of counsel at trial. Using a contextual review, anappellate court must determine whether the reasons show that the trial judge seized the substance of the matter.

Provided this is done,detailed recitations of evidence or the law are not required (M. (R.E.), para. 43). [17] Importantly for the present case, the Court in M. (R.E.) specifically addressed the sufficiency of reason on findings ofcredibility, writing: 49 While it is useful for a judge to attempt to articulate the reasons for believing a witness and disbelieving another in general or on aparticular point, the fact remains that the exercise may not be purely intellectual and may involve factors that are difficult to verbalize.

Furthermore, embellishing why a particular witness’s evidence is rejected may involve the judge saying unflattering things about thewitness; judges may wish to spare the accused who takes the stand to deny the crime, for example, the indignity of not only rejecting hisevidence and convicting him, but adding negative comments about his demeanor.

In short, assessing credibility is a difficult anddelicate matter that does not always lend itself to precise and complete verbalization. [18] Here, the trial judge gave numerous reasons for why he accepted the evidence of the complainants including that it wasconsistent and delivered in an earnest and direct nature (Trial Decision, para. 28). He addressed an inconsistency of the malecomplainant and concluded it was minor and inconsequential (Trial Decision, para. 30).

He also analyzed the reliability of thecomplainants’ identification evidence giving consideration to the daylight conditions, the line of sight, and their previous knowledge ofthe Appellant (Trial Decision, para. 32).

The trial judge considered the Appellant’s position that the complainants were motivated to liebecause of a past incident involving the Appellant’s mother and rejected it, specifically stating that he preferred the evidence of thefemale complainant on this point, which he described as strong and adamant, to that of the Appellant, which he described as being“tenuously and vaguely advanced.” Finally, the trial judge highlighted the consistency of the complainants’ evidence between eachother and with some of the evidence of the police officer and the Appellant. [19] The trial judge did not give as many reasons for why he did not find the Appellant credible with respect to his denial of drivinga motorcycle that day.

In assessing his reasons in this regard, I am mindful of the directions from M. (R.E.) at paragraph 49, citedabove. [20] There are similarities between M. (R.E.) and the present case. In M. (R.E.) the trial judge also gave less extensive reasons forhis consideration of the accused’s evidence than he had for the complainant’s evidence (M. (R.E.), para. 60). Ultimately, in M. (R.E.) theCourt held that the judge’s reasons were sufficient.

Paragraph 66 explains some of the rationale for that finding and is particularlyinstructive in the present case: Finally, the trial judge’s failure to explain why he rejected the accused’s plausible denial of the charges provides no ground for findingthe reasons deficient. The trial judge’s reasons made it clear that in general, where the complainant’s evidence and the accused’sevidence conflicted, he accepted the evidence of the complainant. This explains why he rejected the accused’s denial.

He gave reasonsfor accepting the complainant’s evidence, finding her generally truthful and “a very credible witness”, and concluding that her testimonyon specific events was “not seriously challenged” (para. 68). It followed of necessity that he rejected the accused’s evidence where itconflicted with evidence of the complainant that he accepted.

No further explanation for rejecting the accused’s evidence was required.In this context, the convictions themselves raise a reasonable inference that the accused’s denial of the charges failed to raise a reasonabledoubt. [21] As I have already explained, in the present case the trial judge gave ample reasons for why he believed the complainants’testimony that they saw the Appellant driving a blue and white motorcycle on the day in question and putting it in his garage. It follows

with necessity that the trial judge did not believe the Appellant’s evidence that, although he owned a blue and white motorcycle, he didnot drive it as the complainants reported. Moreover, it is clear from his verdicts of guilty that the Appellant’s denial did not raise anyreasonable doubt. While it may have been preferable for the trial judge to expand upon his consideration of the Appellant’s evidence, Ifind that the trial judge did not err in his assessment of that evidence.

ISSUE 2: Did the trial judge reverse the onus by assuming the accused would lie to obtain an acquittal? [22] The Appellant’s argument in this regard rests on paragraph 33 of the Trial Decision: Mr. Philpott acknowledges owning a motorcycle of the kind described by the Stanleys. More importantly, he had a strong motivation fornot owning up to driving it because at the time he was subject to a Conditional Sentence Order out of this court, a condition of which[was] that he not leave his property. [23] The Supreme Court of Canada considered a similar statement in R. v.

Laboucan, 2010 SCC 12, writing: 11 The fact that a witness has an interest in the outcome of the proceedings is, as a matter of common sense, a relevant factor, amongothers, to take into account when assessing the credibility of the witness’s testimony. A trier of fact, however, should not place undueweight on the status of a person in the proceedings as a factor going to credibility. For example, it would be improper to base a finding ofcredibility regarding a parent’s or a spouse’s testimony solely on the basis of the witness’s relationship to the complainant or to theaccused.

Regard should be given to all relevant factors in assessing credibility. 12 The common sense proposition that a witness’s interest in the proceedings may have an impact on credibility also applies to anaccused person who testifies in his or her defence. The fact that the witness is the accused, however, raises a specific concern. Theconcern arises from the fact that both innocent and guilty accused have an interest in not being convicted. Indeed, the innocent accusedhas a greater interest in securing an acquittal.

Therefore, any assumption that an accused will lie to secure his or her acquittal flies in theface of the presumption of innocence, as an innocent person, presumably, need only tell the truth to achieve this outcome. In R. v. B.(L.) (1993), (ON CA), 13 O.R. (3d) 796 (C.A.), Arbour J.A. (as she then was) succinctly described the inherentdanger in considering the accused’s motive arising from his or her interest in the outcome of the trial.

In an often-quoted passage, shestated as follows (at pp. 798-99): It falls into the impermissible assumption that the accused will lie to secure his acquittal, simply because, as an accused, his interest inthe outcome dictates that course of action. This flies in the face of the presumption of innocence and creates an almost insurmountabledisadvantage for the accused. The accused is obviously interested in being acquitted. In order to achieve that result he may have totestify to answer the case put forward by the prosecution.

However, it cannot be assumed that the accused must lie in order to beacquitted, unless his guilt is no longer an open question. If the trial judge comes to the conclusion that the accused did not tell the truthin his evidence, the accused’s interest in securing his acquittal may be the most plausible explanation for the lie.

The explanation for alie, however, cannot be turned into an assumption that one will occur. [Emphasis included in Laboucan] [24] The court went on to warn trial judge’s about considering an accused’s motive to lie in assessing credibility, noting that thisfactor is “simply unhelpful” and stating, as a general rule, that triers of fact would be well advised to avoid the path altogether, lest they“unwittingly err” by making the impermissible assumption that the accused will lie to secure an acquittal (Laboucan, para. 14).

However, the court stopped short of adopting an absolute prohibition, noting that in certain circumstances it may be appropriate for thetrier of fact to consider whether an accused person may have a motive to lie and stressing the importance of reviewing a trial judge’sreasons in context. The court summarized its task at paragraph 18: “It follows from these principles that the trial judge’s consideration ofMr. Laboucan’s “very great motive to be untruthful” must be placed within the context of the trial and the reasons as a whole.

At theend of the day, the determining question is whether the trial judge’s comments undermined the presumption of innocence.” [25] Ultimately, the trial judge’s reasons in Laboucan withstood scrutiny. Although some of the language he used may have causedconcern in isolation, when the reasons were read in their entirety and in light of the context of the trial, they revealed that the trial judgeproperly assessed and weighed the evidence of all of the witnesses, including the accused, without undermining the presumption ofinnocence or the burden of proof (Laboucan, para. 23).

One of the contextual issues considered in Laboucan was the fact that thecredibility of the main Crown witnesses had been challenged by Mr. Laboucan on the basis that they had a motive to lie and fabricateevidence against him. [26] In the present case, the trial judge’s statement in paragraph 33 of his reasons, taken in isolation, could indicate animpermissible assumption which would be an error of law. However, when I read them in the full context of the Trial Decision, I amsatisfied that they do not undermine the presumption of innocence or the burden of proof.

I note that the Appellant had put thecomplainants’ motive in issue. The trial judge specifically rejected the Appellant’s evidence with respect to his assertion as to why thecomplainants would lie. This rejection forms part of the trial judge’s assessment of the Appellant’s credibility and also gives context tohis addressing the Appellant’s motivation. [27] Although the trial judge did not expound on his reasons for rejecting the Appellant’s denial of driving the motorcycle, it isimplicit from his acceptance of the complainants evidence, which he addressed in detail, that he did (see R. v.

Vuradin, 2013 SCC 38,para. 19, and M. (R.E.), para. 66, cited above). It is also clear from the trial judge’s reasons that he did not believe the Appellant’sevidence that he did not own a blue and white motorcycle jacket as was described by the complainants. Although his consideration ofthe police officer’s evidence is placed in the Trial Decision after he concluded that the Appellant drove the motorcycle, the trial judgenotes that the police officer testified that the Appellant was wearing “a “heavy duty”, nylon-like, blue and white jacket” when she sawhim (Trial Decision, para. 36).

There is no reason for the trial judge to note this except to corroborate the evidence of the complainants

and as part of his assessment of the Appellant’s denial that he owned such a jacket. [ 28 ] As such, I am satisfied that although the reference to the Appellant’s motivation could have been better explained, the impugned remark was but one of several factors considered by him in his assessment of credibility. He was entitled to do this and his findings with respect to credibility are due great deference (see also R. v. Corby , 2016 BCCA 76 , and R. v. H. (J.A.) , 2012 NSCA 121 ). I am not persuaded that the comment undermined the presumption of innocence.

ISSUE 3: Did the Trial Judge fail to address inconsistencies in the complainants’ evidence? [ 29 ] As I have already set out in these reasons, the trial judge’s findings with respect to credibility are due great deference and although his reasons must explain why the evidence raised no reasonable doubt, he was not required to address all of the evidence or answer each and every argument of counsel. It must be remembered that this was a

summary conviction trial for offences under the Highway Traffic Act . Although the trial judge provided written reasons, they were not lengthy, and one would not expect them to be in this context. [ 30 ] In paragraph 18, above, I have reviewed many of the trial judge’s findings with respect to the evidence of the complainants.

He addressed a prior inconsistent statement of the male complainant, the motivation argument advanced by the Appellant, and the frailties of eye witness evidence. [ 31 ] When I asked him to identify what inconsistencies the trial judge failed to assess, counsel for the Appellant advised it was with respect to testimony about video surveillance. One of the issues at trial was the sight line that the complainants had from the window in their house, where they said they were, to the Appellant’s driveway and garage area. The trial judge found that they had an unimpeded view (Trial Decision, para. 28).

There was evidence that the complainants had video surveillance cameras set up around their house and the issue arose as to whether those cameras captured anything relevant. [ 32 ] The police officer testified that she had asked the female complainant for video images but that the female complainant had advised that the budding of the trees interfered with the camera’s picture. The police officer did not know the location of the video cameras nor did she see any footage.

The male complainant testified that he had cameras that covered his driveway and his property only, i.e. not the Appellant’s driveway and garage. He refused to say where the cameras were placed on his property. When asked about blooms and leaves on the trees, he replied that “there’s no leaves in May.” The female complainant testified that she did not have any video or photos of the Appellant but that she did not check all of the video cameras.

When asked on cross-examination, she denied that the trees were in bloom on the day in question. [ 33 ] The only possible inconsistency that I see with respect to video footage is that the police officer said that the female complainant told her that the budding of trees interfered with the video camera, and the female complainant did not confirm this statement in her testimony and when asked on cross-examination if the trees were in bloom, she testified that they were not.

To the extent that this may be an inconsistency, the trial judge dealt with it at paragraph 37 of the Trial Decision and accepted the female complainant’s testimony that the trees were not in bloom. [ 34 ] Given that the complainants testified that they observed the Appellant from a window and that there was no evidence that any video camera captured the view of the Appellant’s driveway or garage, the video camera evidence was not highly probative. That being said, the trial judge was clearly alive to the testimony as evidence by paragraph 37 and resolved a potential inconsistency in the complainant’s favor.

I see no failure on his part. DISPOSITION [ 35 ] For the foregoing reasons, I dismiss the appeal with respect to the convictions and uphold the appeal with respect to sentence. The sentence for conviction on section 43(1) (

b) of the Highway Traffic Act should be reduced to $50.00 plus a thirty percent victim surcharge. _____________________________ Katherine O'Brien JUSTICE