R v Ejetsiak, 2022 NUCA 2

ᓄᓇᕘᒥ ᐅᓐᓂᓗᖅᓴᖅᑐᓄᑦ ᐃᖅᑲᖅᑐᐃᕕᒃ Nunavunmi Apiqhuidjutainut Uuktuffaarutit Nunavut Court of Appeal Cour d'appel du Nunavut Citation: R v Ejetsiak, 2022 NUCA 2 Date: 20220429 Docket: 03-20-012-CAP Registry: Iqaluit Between: Her Majesty the Queen Respondent - and - Eetooloo Ejetsiak Appellant _______________________________________________________ The Court: The Honourable Justice Jo'Anne Strekaf The Honourable Justice Bernette Ho The Honourable Justice Anne Kirker _______________________________________________________ Memorandum of Judgment

Appeal from the Conviction and Sentence by The Honourable Justice B. Tulloch Dated the 12th day of December, 2018 and the 11th day of May, 2020 (2020 NUCJ 23, Docket: 08-17-580) _______________________________________________________ Memorandum of Judgment _______________________________________________________ The Court: Overview [1] The appellant was convicted of assault causing bodily harm under s. 267(

b) and breaching a term of his recognizance orderunder s. 811(

a) of the Criminal Code, RSC 1985, c C-46. Both convictions stem from an incident involving his long-time friend, thecomplainant, on December 29, 2017. The appellant was sentenced to four years incarceration for the assault and two years concurrent forbreaching the recognizance order. He was also declared a long-term offender under s. 753.1(1) of the Criminal Code and a 10-year long-term supervision order (LTSO) was imposed. [2] The appellant appeals both his conviction and sentence.

On the conviction appeal, he alleges that the trial judgemisapprehended key evidence at trial and that certain comments she made gave rise to a reasonable apprehension of bias. On thesentence appeal, he seeks leave to appeal the 10-year LTSO on the basis that the trial judge erred in ordering the maximum length oftime for an LTSO without explanation or analysis and asks that a 5-year LTSO be imposed in its place. [3] For the reasons set out below, the conviction appeal in relation to the appellant’s conviction for assault contrary to s. 267(b)is allowed and the LTSO sentence is set aside.

The appellant’s conviction for breaching a term of his recognizance order contrary to s.811(

a) stands. He was sentenced to two years incarceration for this breach, which sentence has been served through a combination ofpre-trial and post-trial custody. Background [4] The appellant was charged with one count of assault causing bodily harm, two counts of assault with a weapon, one count ofuttering threats and two counts of breaching the terms of his recognizance order.

Trial proceeded in December 2019. [5] Given the appellant’s testimony at trial that he had consumed alcohol, the appellant conceded during closing submissionsthat count 6 of the indictment had been made out relating to breaching the terms of a recognizance order. On this basis, a conviction forbreaching a term of his recognizance was entered. [6] After considering the evidence, the trial judge convicted the appellant on count 1, assault causing bodily harm, and acquittedon count 4, uttering threats.

She stayed counts 2, 3 and 5 of the indictment based on the principle outlined in Kienapple v R, (SCC), [1975] 1 SCR 729, 15 CCC (2d) 524. Testimony of the Complainant and Appellant [7] On December 29, 2017, twelve days after the appellant was released from a penitentiary, the appellant and the complainantwere drinking alcohol and “stove toking” marijuana with two others at the complainant’s residence. Stove toking involves heating a knifeon the stove and inhaling smoke from the heated marijuana. Both the complainant and appellant testified at trial.

They offered differentversions of what happened after the two other people left the residence. [8] The complainant testified that the appellant found tape and taped the complainant’s mouth shut. The complainant said hethought the appellant was only joking around. He removed the tape and continued to consume marijuana. The appellant taped thecomplainant’s mouth shut again, and also placed tape over his eyes. The complainant testified that the appellant then proceeded to use

the hot butter knife to burn the complainant repeatedly on his hands, and once on each of his head and neck. He estimated that he wasburned about six or seven times. The complainant said he felt scared and angry. He managed to remove the tape. He continued toconsume more marijuana until the appellant had his back turned, and then he ran to the local RCMP station for help. [9] At the RCMP station, the complainant spoke to two officers, Constable Baines and someone the complainant agreed was a“woman corporal” with blonde hair, later identified as Corporal Dunphy.

The complainant testified that he told Constable Baines andCorporal Dunphy that he wanted the appellant removed from his house.

He said that he told them what the appellant had done “becausethey wanted a reason” and he told them he had been “tortured and taped up.” The complainant added, “I even showed the burn marks.”The appellant reiterated during cross-examination that he showed the burn marks to Constable Baines and “that woman corporal.” Thecomplainant was not asked – and did not say – that he showed the burn marks to anyone else that day. [10] The complainant testified that “three cops” attended the complainant’s residence and knocked on the door. No one answeredand they were unable to open the door.

The complainant was advised to find somewhere else to sleep, so he went to his sister’s residence. [11] The complainant agreed that he did not seek any medical attention for the burns. He said he kept them clean and they healed. [12] The only RCMP officer who testified at the trial was Constable Baines.

He confirmed that the complainant came to thestation on December 29, 2017, reported being scared and needing help because the appellant was causing problems at his house.Constable Baines said the complainant was wearing a green heavy coat and he did not notice anything unusual about the complainant.He did not recall the complainant being distressed, indicating he was injured or giving any information about how he had been scared.Constable Baines testified “there was nothing concerning with his demeanour” or obvious about his mood. [13] Approximately one week later on January 5, 2018, the complainant sought a peace bond against the appellant.

ConstableBaines saw the application, considered the seriousness of the allegations it contained and referred the matter to his supervisor. Thecomplainant was brought to the station for questioning and photographs of what appeared to be burn marks were taken. [14] According to the appellant, he left the complainant’s residence shortly after the other two people left. He denied harming thecomplainant in any way. His evidence was that they had a peaceful afternoon drinking, smoking, toking, talking and listening to theradio.

The Trial Judge’s Decision [15] Given the conflicting versions of events described by the complainant and the appellant, what the complainant told andshowed the RCMP officers on December 29, 2017 became an important issue at trial. [16] The trial judge reviewed the principles of reasonable doubt, burden of proof and the framework in R v W(D), (SCC), [1991] 1 SCR 742, 63 CCC (3d) 397. She found that both the appellant and complainant gave their evidence in a forthrightmanner and neither was swayed during cross-examination.

She noted that the appellant’s evidence stood on its own as a blanket denialwhile the complainant’s evidence was corroborated or supported in three important ways by Constable Baines’ evidence, whoseevidence, the trial judge found, was “credible and reliable”. First, the complainant attended the RCMP station on the afternoon ofDecember 29, 2017, reporting that the appellant was causing a disturbance and asking for assistance to get the appellant out of his house.Second, the complainant applied for a peace bond against the appellant a few days later.

Third, the Constable was concerned about theserious allegations contained in the complainant’s application for a peace bond, resulting in the complainant being brought in andphotographs being taken of his injuries on January 5, 2018. [17] The trial judge was mindful that Constable Baines was not the lead investigator in the case and only had brief contact with thecomplainant on December 29, 2017. Constable Baines testified that his plan was to turn the complainant over to someone else becausehis shift was over, and the usual shift change at the RCMP station was taking place at the time.

The trial judge also noted that ConstableBaines knew the complainant and that the Constable’s evidence was that when he saw the complainant on December 29, 2017, thecomplainant did not appear any different than normal. The complainant did not seem to be intoxicated and Constable Baines was notshown any injuries. [18] The trial judge went on to state: I find that whether or not at that time [the complainant] showed Constable Baines his burn marks bears little weight on the decision Ihave to make. I do find that [the complainant] showed the other officers.

He said he had to show them because they needed a reason to help him and heneeded them to get Mr. Ejetsiak out of his house that afternoon. [19] She also found the pictures of the injuries to be critical evidence that supported the complainant’s version of events becausethey depicted burn marks to the complainant’s hands, neck and head which were scabbed over and in the process of healing, and someappeared to be an imprint resembling the shape of a butter knife. [20] The trial judge concluded by saying: Upon careful review of the evidence, which I do accept in this case, and upon the careful application of W(

D) in this matter, I find thatthe [C]rown has proven its case beyond a reasonable doubt with respect to the first three counts on the indictment. [21] The appellant was convicted of assault causing bodily harm and breaching a term of his recognizance order. He was acquittedof the charge of uttering threats. All remaining charges were stayed.

Issues on Appeal [22] The appellant raises two grounds of appeal on the conviction appeal:

a) The trial judge misapprehended the evidence.

b) There was a reasonable apprehension of bias. [23] In advance of the hearing, the panel advised the parties that they also wanted to hear submissions about the trial judge’sapplication of W(D). Counsel provided a joint list of authorities that they referenced during oral submissions. Standard of Review [24] An appellate court must defer to a trier of fact’s assessment of credibility and should not interfere unless the credibilityfindings cannot be supported on any reasonable view of the evidence: R v Oullette, 2022 ABCA 40 para 63. However, the appellant’sallegation that the trial judge misapprehended the evidence and improperly applied W(

D) engages the correctness standard of review: R vThalheimer, 2022 SKCA 25 at para 49. Analysis [25] The Supreme Court of Canada has long recognized that there is nothing sacrosanct about the formula set out in W(

D) andwhat matters is that the substance of the W(

D) instruction be respected: R v Dinardo, 2008 SCC 24 at para 23. As noted in Dinardo, “[i]na 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.

Put differently, the trialjudge must consider whether the evidence as a whole establishes the accused’s guilt beyond a reasonable doubt”: ibid. [26] Appellate jurisprudence has also recognized that the acceptance of a complainant’s testimony and other evidence that isinconsistent with an accused’s bare denial can provide a sufficient explanation for the rejection of the accused’s inconsistent evidence: Rv JJRD, , 215 CCC (3d) 252 (Ont CA) at para 53. As Dewitt-Van Oosten JA recently explained in R v Redden, 2021BCCA 230 at para 81: A court does not assess the evidence of an accused in isolation: R. v.

Wanihadie, 2019 ABCA 402 at para. 31. As a result, there will becases where a denial, defences that rely heavily on the testimony of the accused, or hypothesized inferences are rejected outright “basedon a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence”: R. v. D.(J.J.R.) (2006), (ON CA), 215 C.C.C. (3d) 252 (Ont. C.A.) at para. 53, leave to appeal ref’d, [2007] S.C.C.A. No.69. This does not mean that the trial judge has erroneously chosen between competing narratives, simply preferring one to the other. Todo so would constitute reversible error.

Rather, it represents a finding that the testimony of the accused cannot stand in light of thecogency of the other evidence. [27] An alleged misapprehension of evidence may refer to a failure to consider evidence relevant to a material issue, a mistake as tothe substance of the evidence, or a failure to give proper effect to evidence: R v Morrissey, (Ont CA). In R v Lohrer,2004 SCC 80 at para 2, Binnie J wrote: … The misapprehension of the evidence must go to the substance rather than to the detail. It must be material rather than peripheral tothe reasoning of the trial judge.

Once those hurdles are surmounted, there is the further hurdle (the test is expressed as conjunctive ratherthan disjunctive) that the errors thus identified must play an essential part not just in the narrative of the judgment but “in the reasoningprocess resulting in a conviction”. [28] In R v Sinclair, 2011 SCC 40 at para 56, Lebel J wrote that, “an error in the assessment of the evidence will amount to amiscarriage of justice only if striking it from the judgment would leave the trial judge’s reasoning on which the conviction is based onunsteady ground”.

Notably, a misapprehension of evidence may also result in a failure to consider the evidence as a whole in the courseof a W(

D) analysis: Thalheimer at para 45. [29] The appellant acknowledged that the trial judge articulated the W(

D) test correctly but submitted that she erred in itsapplication. The appellant’s position is that the trial judge misapprehended the evidence leading her to erroneously choose between twocompeting narratives, simply preferring the complainant’s version of events. [30] Conversely, the Crown submitted that the trial judge did exactly what was required by Dinardo and similar authorities, in thatshe considered the whole of the record and concluded that the Crown proved its case beyond a reasonable doubt.

The Crown’s position isthat the trial judge committed no errors in convicting the appellant of assault causing bodily harm. [31] Our review of the record and the trial judge’s reasons reveals two issues; the first being that she misapprehended thecomplainant’s evidence; and the second being that she failed to properly analyse the exculpatory evidence in accordance with W(D).

Misapprehension of the Evidence [32] The complainant testified that he showed Constable Baines and Corporal Dunphy his burn marks, but Constable Baines hadno recollection of being shown any injuries by the complainant on December 29, nor did he recall the complainant being distressed.During cross-examination, Constable Baines agreed that the complainant gave him no cause to conduct a further investigation that day.

[ 33 ] The trial judge addressed the discrepancy between the complainant and Constable Baines’ testimony by concluding that whether the complainant showed the Constable his burn marks bore little weight to the decision she had to make. This reasoning was founded, at least in part, on the trial judge’s conclusion that the complainant showed other officers his burn marks because they needed a reason to help him to get the appellant out of his house. The trial judge’s finding of fact that the complainant showed his burn marks to other officers appears to have been material to her assessment of the complainant’s credibility, and thus played an essential

part in the reasoning process that resulted in the appellant’s conviction. Without this finding, there was only the complainant’s testimony and the discrepancy between the complainant and Constable Baines about whether the complainant showed Constable Baines any burn marks or injuries on December 29, 2017. [ 34 ] When reviewing what occurred on December 29, the trial judge stated: When [the complainant] got to the RCMP detachment he saw Cst. Joe Baines briefly before he was turned over to the other officers.

The evidence on this point is that the officer’s shift was over and he was focused on turning [the complainant] over. This accords with [the complainant’s] evidence. [The complainant] said that he told the officers that he was tortured, that was his word, and taped up by Mr. Ejetsiak and he showed them his burn marks. When questioned further he said that he had to do so because he needed them to go to his house and to get Mr. Ejetsiak out, and they needed a reason to do so. In any event, he says that three other officers went to his house and he followed.

They could not get into the house so he had to leave and stay with his sister. [ 35 ] A review of the trial transcripts reveals that the complainant did not testify that he told officers other than Constable Baines and Corporal Dunphy that he had been tortured and taped up. Nor did the complainant testify that he showed his burn marks to the other officers immediately following the December 29, 2017 incident.

Constable Baines was the only RCMP officer who testified at trial and the following was entered as an agreed fact before the trial judge: The police searched their data bases and canvassed with the members who were on duty on the night of the 29 th or the afternoon or the evening of the 29 th . There are no other occurrence reports or officer’s notes relating to this incident.

And no members other than Constable Baines has any – had any independent recollection of the events involving this case. [ 36 ] Therefore, there was no evidentiary basis for the trial judge’s finding that the complainant showed the other officers his burn marks because they needed a reason to help him. The trial judge’s description of the complainant’s evidence shows that she misapprehended the complainant’s testimony as to what he actually said, and to whom, on December 29, 2017.

In the circumstances of this case, as explained further below, the misapprehension was material to the trial judge’s reasoning process and contributed to a failure to consider the evidence as a whole in the course of her W(

D) analysis. The W(

D) Analysis [ 37 ] The trial judge found that both the appellant and complainant gave their evidence in a forthright manner and neither was swayed during cross-examination. She also observed that the appellant’s evidence stood on its own and amounted to a blanket denial of the events alleged.

The trial judge did not indicate that she rejected the appellant’s testimony because he lacked credibility or reliability, nor did she explain why the appellant’s testimony and Constable Baines’ evidence that the complainant did not give any indication of being injured on December 29, 2017 did not give rise to reasonable doubt. Rather, she preferred the complainant’s version of events on the basis it was corroborated in some respects by Constable Baines’ evidence, was consistent with her finding that the complainant showed the other officers burn marks on December 29 and with her

interpretation of the photographs taken of the complainant’s injuries approximately one week after the alleged incident. [ 38 ] While Constable Baines’ evidence was consistent with the complainant’s evidence in some respects, and the photographs provided evidence of some type of injury to the complainant, none of this evidence established when the injuries were sustained, and specifically, that they were sustained on December 29, 2017. [ 39 ] After indicating that the photographs entered as exhibits supported the complainant’s version of events, the trial judge immediately proceeded to indicate that, upon careful review of the evidence which she accepted, she found the Crown had proven its case beyond a reasonable doubt.

While she stated she applied W(D) , she did not explain why the appellant’s evidence and the other evidence that was inconsistent with the complainant having been injured on December 29 did not leave her with a reasonable doubt as to the appellant’s guilt. She fell into error by failing to consider the evidence as a whole, in part due to her misapprehension of the complainant’s evidence, and erroneously choosing the complainant’s version of events over that of the appellant.

Disposition [ 40 ] Given the foregoing, it is not necessary for us to address the appellant’s arguments respecting bias or the appeal of the LTSO sentence. [ 41 ] The conviction appeal in relation to the appellant’s conviction for assault contrary to s.267(

b) is allowed and the LTSO sentence is set aside. The appellant’s conviction for breaching a term of his recognizance order contrary to s.811 (

a) stands, and the appellant has already served his two-year sentence for this breach. A new trial is ordered except in relation to counts 4, 5 and 6 of the indictment because the trial judge acquitted the appellant of the charge of uttering threats (count 4), convicted the appellant of one count of breaching a term of his recognizance order (count 6) and stayed the other s.811 (

a) charge (count 5) on the basis of Kienapple .

Appeal heard on March 14, 2022 Memorandum filed at Iqaluit, Nunavut this 29 th day of April, 2022 Strekaf J.A. Ho J.A. Kirker J.A. Appearances: M. Bryant for the Respondent E. Tache-Green for the Appellant