I.A. Appellant And: HER MAJESTY THE QUEEN Respondent Restriction on Publication: By court order made under subsection 486.5(1) of the Criminal Code , information that may identify the person described in this judgment as the victim shall not be published, broadcasted, or transmitted in any manner., 2021 NLSC 71

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. I.A. , 2021 NLSC 71 Date : May 26, 2021 Docket : 202006G0028 Between: I.A. Appellant And: HER MAJESTY THE QUEEN Respondent Restriction on Publication: By court order made under subsection 486.5(1) of the Criminal Code , information that may identify the person described in this judgment as the victim shall not be published, broadcasted, or transmitted in any manner. Before: Justice Robert P.

Stack On Appeal From: Decision of conviction by the Provincial Court of Newfoundland and Labrador, File # 0619A00023, rendered February 17, 2020. Place of Hearing: Clarenville, Newfoundland and Labrador Date of Hearing: May 7, 2021

Summary: The appellant appealed from his conviction by a Provincial Court Judge on a single count of uttering threats against his domestic partner contrary to

section 264.1(1) (

a) of the Criminal Code , R.S.C. 1985, c. C-46 . The appeal was allowed and the matter was remitted back to the Provincial Court for a new trial.

The trial judge made an error of law that led to a miscarriage of justice. The appellant was denied a fair trial because he may have reliedupon an erroneous evidentiary ruling by the trial judge during the course of final submissions. He thereby lost the opportunity to apply toreopen his case to adduce further evidence. The result is that the conviction rests on a foundation tainted by error and must beoverturned. Appearances: Philip C. W. Whalen Appearing on behalf of the Appellant P. Cory Binderup Appearing on behalf of the Respondent Authorities Cited: CASES CONSIDERED: R. v.

Abbott, (17 February 2020), Clarenville 0619A00023 (N.L. Prov. Ct.); R. v. Phelan, 2013 NLCA 33; R.v. Mahmood, 2011 ONCA 693, aff’d [2012] S.C.C.A. No. 111, 303 O.A.C. 388 (note), R. v. Morrissey (1995), (ONCA), 22 O.R. (3d) 514, 97 C.C.C. (3d) 193 (C.A.); R. v. Smith, 2021 SCC 16; R. v. W. (D.), (SCC), [1991] 1 S.C.R. 742; R. v. Dinardo, 2008 SCC 24; R. v. D. (B.), 2011 ONCA 51; R.v. L. (R.S.), 2006 NBCA 64; R. v. Sheri (2004), (ON CA), 186 O.A.C. 51, 185 C.C.C. (3d) 155; R. v. Liard, 2015 O.A.C. 12, 97 C.C.C. (3d) 362; R. v.

Hayward (1993), (ON CA), 67 O.A.C. 379, 86 C.C.C. (3d) 193 STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46 TEXTS CONSIDERED: Marianne Salih, “The Law on Prior Consistent Statements”, Ontario Bar Association, September 21, 2015 REASONS FOR JUDGMENT Stack J.: INTRODUCTION [1] The appellant was charged with a single count of uttering threats against his domestic partner contrary to

section 264.1(1)(

a) ofthe Criminal Code, R.S.C. 1985, c. C-46 (the “Code”). Following a trial, by a written decision delivered on February 17, 2020, the trialjudge convicted him (R. v. Abbott, (17 February 2020), Clarenville 0619A00023 (N.L. Prov. Ct.)). On February 26, 2020, the trial judgeimposed a suspended sentence of 12 months together with ancillary orders. The appellant appeals from his conviction; he has notappealed the sentence. [2] I will now explain why I would allow the appeal and order a new trial. issues [3] There are four issues to be decided on this appeal:

(1) Whether the trial judge made a reviewable error in his consideration of the evidence adduced on behalf of the appellant;

(2) Whether the trial judge’s reasons for convicting the appellant were so deficient as to result in a reviewable error;

(3) Whether the trial judge erred in law by relying on extraneous evidence to support the conviction; and

(4) Whether the trial judge caused a miscarriage of justice by first raising a question of the admissibility of certain evidence insubmissions. standard of review

[ 4 ] This

summary conviction appeal is made pursuant to

section 813 (a)(

i) of the Code . By section 822(1) of the Code , this Court has the same authority with respect to

summary conviction appeals as the Court of Appeal has in respect of appeals as granted by sections 683 to 689, subject to certain identified exceptions. [ 5 ] The standard of review from a conviction was reiterated by the Court of Appeal in R. v. Phelan , 2013 NLCA 33 at para. 14 , where Hoegg J.A. wrote for the court: 14 In criminal law, the standard of review for questions of law is correctness ( R. v. Shepherd , 2009 SCC 35 , [2009] 2 S.C.R. 527 (S.C.C.) at para. 18 ).

The standard of review for findings of fact and factual inferences is that of palpable and overriding error, succinctly expressed by Fish J. in R. v. Clark , 2005 SCC 2 , [2005] 1 S.C.R. 6 (S.C.C.), at para. 9 : ... Appellate courts may not interfere with the findings of fact made and the factual inferences drawn by the trial judge, unless they are clearly wrong, unsupported by the evidence or otherwise unreasonable. The imputed error must, moreover, be plainly identified.

And it must be shown to have affected the result. “Palpable and overriding error” is a resonant and compendious expression of this well- established norm …. [ 6 ] It is with these principles in mind that I will review the decision of the trial judge against the issues raised on this appeal. the trial [ 7 ] The complainant was the only witness on behalf of the Crown. She testified as to her “on again/off-again” relationship with the appellant and about what happened when she asked him to move out of their house. [ 8 ] The following exchange took place on examination in chief (Transcript of Trial, p. 8): [Mr.

Binderup]. We’re just looking for an idea. So you asked him to go to his father’s to give you some space, and I need you to be as, I need you to remember as best you can exactly what he said. A. He just said if I ever got him out of the house he would be out through the trees watching me and he would shoot me and he would bang, bang, bang. That’s it. Q. How did that make you feel? A. I was scared. Q. What did you do after hearing this? A. It was a while after that I moved out. [ 9 ] The defence called one of the arresting officers, Cst.

Renwick; the appellant, as was his right, did not testify. [ 10 ] The following exchange occurred between defence counsel and Cst. Renwick at the trial (Transcript of Trial, pp. 35-36): Q: Can you recall, officer, what sense of demeanour did [I.A.] exhibit once he was presented with these allegations? A: Well, when we showed up and we were speaking with [I.A.], the first thing we did was go through the Emergency Protection Order and the conditions of it. [I.A.] seemed a little shocked and confused we were there.

He did not seem to understand exactly what was in the Emergency Protection Order, so we went over the conditions with him and the grounds. Q: Okay. A: Of the Emergency Protection Order. Q: But what specifically with respect to him being arrested for uttering threats? You were there at that time as well?

A: Yes. Q: Okay. And can you tell the Court what [I.A.’s] reaction was, from your observations, okay? I don’t want you to tell me what you think he was feeling or thought or anything like that, but from your observations what was [I.A.’s] reaction? A: His reaction when he was arrested, again, he was shocked, and right off the bat, he denied the allegations. As soon as he was told he was being arrested for uttering threats, he denied that any threats occurred or that he had done any wrong. Q: Okay. I just want to understand how his, how did you find him in relation to cooperating with the RCMP?

A: [I.A.] was very cooperative. As I said, he seemed a little confused about what was occurring. He did admit that he had consumed some alcohol that night, but as far as his cooperation went, he was fully cooperative with us. [ 11 ] The trial judge referred to the testimony of Cst. Renwick at paragraphs 20 and 21 of his decision: [20] Cst Renwick, one of the attending RCMP officers, testified. He said that when the EPO was served on [I.A.] he seemed shocked and immediately denied the allegation.

He was cooperative with them and admitted to drinking that night. [21] No other evidence was called. [I.A.], as is his right and from which I draw no adverse inference, chose not to testify. [ 12 ] At the time Cst. Renwick testified, neither the Crown nor the court raised any issue with his testimony or its potential use in determining the matter before the court. [ 13 ] During submissions, the defence asked the trial judge to accept the appellant’s denial to Cst. Renwick as true.

Because the accused did not testify, however, the trial judge became concerned that the evidence may not have been admissible for that purpose. He adjourned the proceeding to permit counsel to make submissions relating to his concern. [ 14 ] On the recommencement of submissions, the following exchange took place (Transcript of Trial, p. 67): THE COURT: Now, Counsel. [I.A.] is with us. Good afternoon, sir. Counsel--Mr. Whalen, I’ll start with you. I don’t need to hear from you. MR. WHALEN: You don’t need to hear from me? THE COURT: No. MR. WHALEN: Okay. THE COURT: I’ll invite Mr.

Binderup to make some comments, if he has any. [ 15 ] In his submissions, Crown counsel acknowledged that counsel for the appellant took the position that if the trial judge was going to raise the admissibility issue, then he ought to have done so when the evidence was adduced. This would be to permit the defence to determine whether it needed to call any further evidence. [ 16 ] Crown counsel then went on to submit that the issue regarding the evidence of Cst. Renwick was the weight that should be ascribed to it by the trial judge as trier of fact.

The following exchange took place between the trial judge and Crown counsel (Transcript of Trial, p. 68): MR. BINDERUP: Ultimately you need to decide how much weight to be given that, and the Crown’s position is it goes one or two ways when people are charged with offences. They either immediately deny it or immediately say nothing. You know, those are the two options that happen, and I think that, you know, you need to take from that the very limited amount that you can take from that. THE COURT: Yeah. You know, I think that your difference with Mr.

Whalen’s position is really only one of degree, if I can put it that way. … [ 17 ] It appears that the trial judge intended to address the admissibility issue arising from Cst. Renwick’s testimony as a part of his

final decision. At the request of the defence, however, he gave his decision during the course of submissions (Transcript of Trial, pp. 68-69): MR. WHALEN: Well, I guess from my perspective it’s that, given that we were in what I understood to be final submissions, that aquestion of admissibility arose, which I believe my friend has, you know, rightly characterized, my position is that, you know, that needsto be determined prior to, I guess, final submissions or the Defence-- THE COURT: I hadn’t planned to do that, but I can if you want me to. MR. WHALEN: Hadn’t planned doing what?

THE COURT: I was going to give you a judgment on the whole works, but I can tell you now that I accept that what happened here wasreally part of a res gestae that the officer was entitled to recount for the Court, and what weight I put on that remains to be seen. MR. WHALEN: Okay. So the question-- THE COURT: So the wrench that I have thrown into this in terms of the issue of admissibility, I am past that now and I accept that-- MR. WHALEN: Okay. THE COURT: --it’s part of the record. MR. WHALEN: Yes. THE COURT: Part of the evidence. MR. WHALEN: Okay.

So if-- THE COURT: It constitutes the res gestae. [18] In the decision, the trial judge made no further reference to the appellant’s denial to Cst. Renwick. He found that thecomplainant gave credible and reliable evidence that proved the charge of uttering threats beyond a reasonable doubt. The appellant wasfound guilty.

ANALYSIS Consideration of the Evidence adduced by the Appellant [19] The appellant says that the trial judge erred in law by failing to properly address the evidence adduced by him as to his denialof the charge. [20] The standard of review where it is submitted that the trial judge misapprehended the evidence was set out by Watt J.A. in R.v. Mahmood, 2011 ONCA 693 at paras. 46-48 (leave to appeal refused, [2012] S.C.C.A.

No. 111, 303 O.A.C. 388 (note)): 46 A misapprehension of evidence may involve a failure to take into account an item or items of evidence relevant to a materialissue, or it may have to do with a mistake about the substance of the evidence. A misapprehension of evidence may also reflect a failureto give proper effect to evidence: R. v. Morrissey (1995), (ON CA), 22 O.R. (3d) 514, [1995] O.J. No. 639 (C.A.), atp. 538 O.R. 47 Every misapprehension of evidence does not render a trial unfair or result in a miscarriage of justice.

An appellate court mustdetermine the nature and extent of an alleged misapprehension and its significance to the decision under review, whether a determinationof admissibility or a final conclusion about guilt. Rulings on admissibility and final verdicts must be based exclusively on evidence

adduced at trial: Morrissey, at p. 541 O.R. 48 The standard applied where an appellant advances misapprehension of evidence as a ground of appeal is stringent. Themisapprehension of evidence, when advanced as a ground to impeach a final verdict, must be material, not merely peripheral to thereasoning of the trial judge, in other words, the reasons must play an essential

part in the reasoning process resulting in a conviction, notjust in the narrative of the judgment: R. v. Lohrer, [2004] 3 S.C.R. 732, [2004] S.C.J. No. 76, 2004 SCC 80, at para. 2. [21] The principles cited from R. v. Morrissey (1995), (ON CA), 22 O.R. (3d) 514, 97 C.C.C. (3d) 193 (C.A.),referred to in Mahmood, were most recently endorsed by Brown J. speaking on behalf of the Supreme Court of Canada in R. v. Smith,2021 SCC 16. [22] The principles involved where an accused calls evidence are set out in R. v.

W. (D.), (SCC), [1991] 1 S.C.R.742, which were distilled by Charron J. speaking on behalf of the Supreme Court of Canada in R. v. Dinardo, 2008 SCC 24. Atparagraph 23, she wrote: 23 The majority rightly stated that there is nothing sacrosanct about the formula set out in W. (D.). Indeed, as Chamberland J.A.himself acknowledged in his dissenting reasons, the assessment of credibility will not always lend itself to the adoption of the threedistinct steps suggested in W. (D.); it will depend on the context (para. 112). What matters is that the substance of the W. (D.) instructionbe respected.

In a case that turns on credibility, such as this one, the trial judge must direct his or her mind to the decisive question ofwhether the accused’s evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt. Putdifferently, the trial judge must consider whether the evidence as a whole establishes the accused’s guilt beyond a reasonable doubt.

Inmy view, the substantive concerns with the trial judge’s decision in this case can better be dealt with under the rubric of the sufficiency ofhis reasons for judgment. [23] The respondent suggests that the foregoing does not apply in this case because the appellant did not testify. It is wellestablished, however, that the same consideration of the evidence adduced on behalf of the accused applies whether or not the accusedtestifies (see R. v. D. (B.), 2011 ONCA 51 at para. 105, and R. v. L. (R.S.), 2006 NBCA 64, at paras. 97 and 98). [24] The appellant submits that his statement made to Cst.

Renwick could be admitted for the truth of its contents. That is, theappellant says that the trial judge erred because he did not consider the evidence of the accused’s denial when he evaluated the evidenceof the complainant. For this argument to succeed the testimony of Cst. Renwick as to the appellant’s denial would have to be admissiblefor the truth of its contents. Prior Consistent Statement Adduced by the Accused [25] The testimony of Cst. Renwick amounts to a prior consistent statement by the appellant insofar as it is consistent with his notguilty plea.

In the absence of the accused testifying, such evidence has generally been held to be inadmissible. As stated at paragraph 36of Dinardo, there are two primary justifications for excluding such statements: (1) they lack probative value; and (2) when adduced for the truth of their contents, they constitute hearsay. [26] There are, however, seven exceptions to the exclusionary rule just set out.

As stated by Marianne Salih in “The Law on PriorConsistent Statements”, Ontario Bar Association, September 21, 2015, at pages 1-2, such evidence may be admitted: (1) as part of the narrative; (2) as constituting res gestae; (3) to rebut an allegation of recent fabrication or bias; (4) where the statement is relevant to the accused’s state of mind; (5) where the statement is spontaneously made upon arrest or upon being confronted with an allegation; (6) where the statement is a mixed statement that is both inculpatory and exculpatory; and (7) where the statements are made with respect to previous identification of an accused. [27] For the purposes of this case, three of the seven bases for admissibility have possible application: narrative, res gestae, andspontaneous utterances made upon arrest.

I will consider them in turn. 1. Narrative [28] The denial by the accused to Cst. Renwick could have been admitted as part of the narrative. As such, however, it would notadvance the case of the appellant. Such statements are not admitted for the proof of their contents, but only to further the narrative of thecase (Dinardo at paragraph 7). Consequently, they would not form part of the evidence that the trier of fact would consider as part of ananalysis conducted in accordance with paragraph 23 of Dinardo. 2.

Res Gestae [29] The phrase ‘res gestae’ refers to spontaneous utterances that are made with, or as part of,

an act. In R. v. Sheri (2004), 2004

8529 (ON CA), 186 O.A.C. 51, 185 C.C.C. (3d) 155, the Ontario Court of Appeal identified two situations in which res gestaemay apply: (

a) declarations accompanying and explaining relevant acts; and (

b) spontaneous exclamations. [30] The appellant’s denial was not made contemporaneously with the alleged events of October 2018. It was made over a monthand a half later after the complainant had left the relationship. The denial therefore meets neither of the criteria set out in Sheri. As aresult, notwithstanding the finding by the trial judge to the contrary, the statement to Cst. Renwick is not res gestae. The trial judgemade an error in law in finding otherwise. 3.

Spontaneous Utterances Made Upon Arrest [31] Spontaneous exculpatory utterances made by an accused on arrest may be admitted to establish a reasonable doubt. [32] The issue arose in R. v. Liard, 2015 ONCA 414, where Ms. Laird was acquitted of first degree murder. The trial judge hadadmitted her statement given to the police some 13 hours after the murder. Citing R. v.

Edgar, 2010 ONCA 529, Laskin J.A. stated forthe court at paragraph 50: 50 Under Edgar, to put into evidence a previous exculpatory statement, an accused must meet three requirements: • The accused must testify. • The statement must be made when the accused was arrested or when first accused of committing a crime. • The statement must be spontaneous. [33] The second and third requirements from Edgar are established in this case.

However, the appellant wishes to put his hearsaystatement of denial before the trier of fact for the truth of its contents while at the same time avoiding the need to testify and be cross-examined. Thus, the first requirement for admission has not been met. For the appellant to adduce the statement made to Cst. Renwickfor anything more than the narrative, he needed to take the stand. Had he done so, the utterance could have been used by the trial judgeto assess his credibility and the reliability of his evidence. As it is, the evidence was not admissible under this exception.

Conclusion on the Analysis of the Treatment of the Evidence Adduced by the Appellant [34] An accused who does not testify at his trial is entitled to the same evidentiary safeguards as is an accused who does testify. Thetrier of fact must consider all of the evidence, including the evidence adduced by the accused, to determine whether the Crown hasproven its case beyond a reasonable doubt. [35] The trial judge erred in law by admitting the appellant’s utterance on his arrest for anything other than as part of the narrative.

As a result, there was no admissible evidence adduced by the appellant upon which the trial judge could conduct his analysis as towhether the Crown proved the charge beyond a reasonable doubt. I would not allow the appeal on this basis. Insufficiency of Reasons [36] The appellant says that the decision of the trial judge should be overturned because he failed to explain why he preferred theevidence of the complainant over the evidence adduced by him. [37] The Supreme Court of Canada most recently addressed sufficiency of a trial judge’s reasons in R. v.

G.F., 2021 SCC 20, whereKarakatsanis J. held for the majority at paragraphs 68 to 70: 68 The importance of trial reasons should not be understated. It is through reasoned decisions that judges are held accountable to thepublic, ensuring transparency in the adjudicative process and satisfying both the public and the parties that justice has been done in aparticular case: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at paras. 15, 42 and 55; R. J. Sharpe, Good Judgment: MakingJudicial Decisions (2018), at p. 134.

However, this Court in Sheppard emphasized that, for the purposes of appellate review, "the duty togive reasons is driven by the circumstances of the case rather than abstract notions of judicial accountability": para. 42. On appeal, theissue is whether there is reversible error. What is required are reasons that are sufficient in the context of the case for which they weregiven. 69 This Court has repeatedly and consistently emphasized the importance of a functional and contextual reading of a trial judge's reasonswhen those reasons are alleged to be insufficient: Sheppard, at paras. 28-33 and 53; R. v.

Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, atpara. 19; Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129, at para. 101; R. v. Dinardo,2008 SCC 24, [2008] 1 S.C.R. 788, at para. 25; R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 15; R. v. Laboucan, 2010 SCC 12,[2010] 1 S.C.R. 397, at para. 16; R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, at paras. 10, 15 and 19; R. v. Villaroman, 2016 SCC33, [2016] 1 S.C.R. 1000, at para. 15; R. v. Chung, 2020 SCC 8, at paras. 13 and 33.

Appellate courts must not finely parse the trialjudge's reasons in a search for error: Chung, at paras. 13 and 33. Their task is much narrower: they must assess whether the reasons, readin context and as a whole, in light of the live issues at trial, explain what the trial judge decided and why they decided that way in amanner that permits effective appellate review. As McLachlin C.J. put it in R.E.M., "The foundations of the judge's decision must bediscernable, when looked at in the context of the evidence, the submissions of counsel and the history of how the trial unfolded": para.17.

And as Charron J. stated in Dinardo, "the inquiry into the sufficiency of the reasons should be directed at whether the reasons

respond to the case's live issues": para. 31. 70 This Court has also emphasized the importance of reviewing the record when assessing the sufficiency of a trial judge's reasons. This is because "bad reasons" are not an independent ground of appeal.

If the trial reasons do not explain the "what" and the "why", but the answers to those questions are clear in the record, there will be no error: R.E.M. , at paras. 38-40 ; Sheppard , at paras. 46 and 55 . [ 38 ] Do the trial judge’s reasons, read in context and as a whole, in light of the live issues at trial, explain what he decided and why he decided that way in a manner that permits effective appellate review? In R. v. M. (R.E.) , 2008 SCC 51 , cited by Karakatsanis J. above, the court dealt with an argument closer to that at issue in this appeal.

At paragraph 66, McLachlin C.J.C. stated for the court: 66 Finally, the trial judge’s failure to explain why he rejected the accused’s plausible denial of the charges provides no ground for finding the reasons deficient. The trial judge’s reasons made it clear that in general, where the complainant’s evidence and the accused’s evidence conflicted, he accepted the evidence of the complainant. This explains why he rejected the accused’s denial.

He gave reasons for accepting the complainant’s evidence, finding her generally truthful and “a very credible witness”, and concluding that her testimony on specific events was “not seriously challenged” (para. 68). It followed of necessity that he rejected the accused’s evidence where it conflicted 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 reasonable doubt. [ 39 ] The appellant’s submission is that the trial judge limited his analysis to the complainant’s testimony without any consideration or analysis of the legal import of Cst. Renwick’s evidence. [ 40 ] Here, unlike in M. (R.E.) , there was no plausible denial by the appellant. As explained above, although the appellant called Cst. Renwick as a witness, he provided no admissible evidence for the trial judge to consider.

That did not end the trial judge’s inquiry, of course – he still had to be satisfied, based upon all of the admissible evidence, that the Crown proved its case beyond a reasonable doubt. [ 41 ] Upon review of the

summary of the evidence as set out in paragraphs 20 and 21 of the decision, it is clear the trial judge was alive to the onus on the Crown to prove the charge beyond a reasonable doubt. The trial judge provided the following analysis at paragraphs 22 to 27: [22] There is nothing in this exchange of Q and A’s that causes me to seriously question [the complainant’s] probity. In my estimation she honestly described an abusive relationship, a culminating incident, and an outcome by way of an EPO. I found her to be earnest, sincere, straightforward and lacking in hyperbole.

I accept her evidence as truthful. [23] There is of course no perfect witness. I am not terribly concerned that [the complainant] could not pinpoint the exact date in October when the incident occurred or that she did not police about earlier incidents or that there was confusion around whether she told them she was scared. [24] As trial judges we are reminded there is no predictable or dogmatic response to instances of spousal abuse.

And we are asked to guard against yielding to assumptions about how women – and it’s almost always women – are expected to react or remember details in such situations. [25] As I said above it is common to refer to a case such as this as a “he said/she said”. There is, for me, little value in such a phrase. It is not a legal term of art. It has though, and this is unfortunate, acquired a certain connotation that makes it tempting, if not all too easy, to be dismissive of an accusation which lacks firm, corroborative, third party, independent evidence.

This seems especially so where the “she” is the accuser. [26] I hasten to add that these admonitions are not meant to diminish in any way Viscount Sankey’s “golden thread”. It is ever present and constant. It is the sieve through which all evidence is strained. The presumption of innocence, however, is not a synonym for reasonable doubt. [27] The Crown bears a significant burden of proof.

But where a single complainant testifies in a manner and to an extent that is believable a finding of guilt may follow based solely on that complainant’s testimony. [ 42 ] The appellant referred to the last sentence of paragraph 27 of the trial judge’s decision, in particular, to assert that the trial judge was in error because there was testimony from a witness on behalf of the appellant. Based upon the record as a whole, however, implicit in the trial judge’s analysis is that he did not give any weight to the testimony of Cst. Renwick for the truth of the hearsay denial by the accused.

The trial judge did not need to expressly state why he did this. The answer is clear from the record. The trial judge admitted the hearsay evidence of Cst. Renwick (albeit wrongly) and said he would consider what weight to give it. The testimony of Cst. Renwick was explicitly referred to in his reasons, and was implicitly given little or no weight. [ 43 ] The trial judge adequately explained why he accepted the evidence of the complainant. He dealt with inconsistencies and gaps in her testimony. He explained why he accepted her evidence as truthful. There was nothing deficient in how he did so. The reasons, read

in context, explain what the trial judge did and why he decided the issues before him in a manner that permits appellate review. I wouldnot allow the appeal on this basis. Extraneous Evidence [44] The appellant submits that in his reasons, the trial judge made multiple generalized references to the social problem of “spousalabuse” and “domestic” violence against women in support of the complainant’s credibility. He points out that the Crown led no evidenceof that type.

The appellant asserts that the trial judge utilized evidence extraneous to the trial to buttress the Crown’s witness and ignoreddefence evidence pointing towards innocence. In both ways, says the appellant, the trial judge misapprehended trial evidence andsubjected him to an unfair trial process. [45] I have already addressed what the appellant refers to as defence evidence pointing towards innocence.

That evidence wasinadmissible for the purpose to which the appellant wanted it used. [46] As for the references by the trial judge to domestic abuse, the complainant’s testimony shows that she and the appellant werein a long-term relationship. She described serial disparagement of her by him and a pattern of breaking up, reconciling, and then therelationship returning to the same verbally abusive behaviour.

That evidence formed part of the narrative that ultimately led to thespecific evidence relating to the uttering threats charge. [47] There is nothing contained in the trial judge’s comments about “domestic/spousal” abuse, particularly in paragraphs 24 and 25,that indicates he used those comments to bolster the complainant’s credibility. The trial judge merely took note of common myths thatcan steer a trier of fact in a wrong direction when evaluating the testimony of a person in an abusive relationship – whether that abuse isphysical or psychological. The appellant cannot succeed on this ground of appeal.

Was there a Miscarriage of Justice? [48] The appellant submits that the trial judge erred by first raising his concerns about the admissibility of Cst. Renwick’s evidenceduring submissions. I have concluded that although the trial judge did not err in raising the issue when he did, he did err in the substanceof his ruling and in how he conveyed that ruling to the parties. [49] There was no error in the trial judge deciding the admissibility issue during the course of final submissions. When the defencecalled Cst. Renwick, it did not signify that he would be its only witness.

It was therefore within the purview of the trial judge to raisewith counsel during the course of submissions his concern about the use to which that evidence could be put. This permitted counsel toknow where they stood prior to concluding their respective submissions. Having done so, the trial judge went further to ensure trialfairness by asking counsel to address the matter and by recessing to permit them to do so in writing. [50] What constitutes a miscarriage of justice was considered by the Court of Appeal in R. v. Daniels (1999),(NL CA), 178 Nfld. & P.E.I.R. 91, 137 C.C.C. (3d) 527 at para. 19 (Nfld.

C.A.), per Roberts J.A., quoting from R. v. G. (G). (1995),(ON CA), 80 O.A.C. 12, 97 C.C.C. (3d) 362, where Laskin J.A., writing for the court, made these comments: 19. … As Doherty J.A. has indicated in R. v. Morrissey (1995), (ON CA), 97 C.C.C. (3d) 193, 22 O.R. (3d) 514, 26W.C.B. (2d) 436 (C.A.) , released concurrently with this judgment, errors in the apprehension or appreciation of evidence, though noterrors of law and not leading to a finding that the verdict was unreasonable, may none the less call for appellate review because theyresult in a miscarriage of justice.

Miscarriage of justice has usually been applied as a ground of review for an error during the trial which has affected the fairnessor appearance of fairness of the proceedings: see for example R. v. Stewart (1991), (ON CA), 62 C.C.C. (3d) 289, 43O.A.C. 109, 12 W.C.B. (2d) 20 (C.A.) , and R. v. Fanjoy (1985), (SCC), 21 C.C.C. (3d) 312, 21 D.L.R. (4th) 321,[1985] 2 S.C.R. 233 . But the phrase “miscarriage of justice” is a phrase of wide import. Any error which deprives an accused of a fairtrial may result in a miscarriage of justice.

In my opinion, an accused whose conviction rests on findings tainted by error has been denieda fair trial. [Emphasis added.] [51] The miscarriage of justice in this case arises from how the matter was decided by the trial judge during the course of finalsubmissions. As shown above, the trial judge was in error when he held that the hearsay evidence of an exculpatory statement by theaccused was res gestae. Ultimately, however, affording the hearsay evidence no weight (as is implicit in the trial judge’s decision)resulted in the same outcome as if the evidence had been ruled inadmissible.

Nevertheless, the trial judge’s error arises from himsignaling to the appellant that the evidence would be considered for the truth of its contents, with the only limitation being the weight tobe ascribed to it. [52] This ruling by the trial judge may have led the appellant to a false understanding. Because the trial judge ruled that the denialby the appellant was admissible as res gestae, it might have been accepted for the truth of its contents. Had the trial judge properly ruledthat the statement to Cst.

Renwick was not admissible for that purpose, the defence would know that there was no evidence of a denial ofthe charge before the court. That being the case, it would have been open to the defence to consider applying to reopen its case in orderto call the appellant as a witness. [53] It is well established that in a trial by judge alone, an accused’s case can be reopened at any time up to and includingconviction. In R. v. Hayward (1993), (ON CA), 67 O.A.C. 379, 86 C.C.C. (3d) 193, the Ontario Court of Appealexplains the circumstances where the defence can reopen its case during submissions.

There, a witness who the defence wanted to have

testify did not respond to the subpoena. The defence did not seek a postponement to ensure the witness’s appearance and closed its case. During submissions, however, the witness appeared at the courthouse. The defence application to reopen its case was denied by the trial judge. On appeal, that decision was found to be in error. [ 54 ] At paragraph 15, Doherty J.A. held that a trial judge sitting alone may permit reopening of the evidence at any time before sentence is passed. The decision is a discretionary one and so long as it is exercised judicially, an appeal court will not interfere.

In exercising their discretion, a trial judge should consider the following factors ( Hayward at paragraphs 17-19 ):

(1) Whether the proposed testimony is relevant to a material issue in the case;

(2) The potential prejudice to the other party if the case is reopened; and

(3) Whether reopening the case would have a significant negative impact on the ordinary and expeditious conduct of the trial. [ 55 ] At paragraph 20, Doherty J.A. held, “Certainly, an application to reopen the evidence based on nothing more than a desire to reverse an earlier tactical decision, perhaps because of some comment made during argument, could properly be refused as being detrimental to the orderly conduct of the trial proceedings.” [ 56 ] In this case, no application to reopen the case was made.

Because the trial judge’s decision on any such application would have been a matter of discretion, I will not speculate on whether it would have been successful. What is important for the consideration of trial fairness in this case is that the appellant was possibly led to conclude that he did not need to make such an application. The defence therefore lost the opportunity to apply to reopen the case.

This led to a miscarriage of justice. [ 57 ] The appellant was denied a fair trial because he possibly relied upon the erroneous evidentiary ruling by the trial judge and thereby lost the opportunity to apply to reopen his case. The result is that the conviction rests on a foundation tainted by error. I would allow the appeal on this basis. disposition [ 58 ] Having found that the trial judge made an error of law that led to a miscarriage of justice, the conviction is overturned.

The matter is remitted back to the Provincial Court to be tried by a different Provincial Court Judge. _____________________________ Robert P. Stack Justice