R v Cormier, 2023 ABKB 543

Court of King’s Bench of Alberta Citation: R v Cormier, 2023 ABKB 543 Date: 20230928 Docket: 220093991S1 Registry: Calgary Between: His Majesty the King Crown/Respondent - and – Brian Cormier Accused/Appellant _______________________________________________________ Reasons for Judgment of the Honourable Justice M.A. Marion _______________________________________________________ Appeal from the Conviction by The Honourable Judge M.T.C. Tyndale Convicted on the 11 th day of December, 2022 (Docket 220093991P1) I. Introduction [ 1 ] Brian Cormier appeals his

summary conviction for assault under

section 266 of the Criminal Code , RSC 1985, c C-46 . He asserts two main grounds of appeal, namely: (

a) misdirection or mistakes in the application of the rule in Browne v Dunn (1893), CanLII 65 (FOREP), 6 R 67 (UKHL); and (

b) misapprehension of evidence, leading to concerns about uneven scrutiny in the assessment of witness evidence and a reasonable apprehension of bias. [ 2 ] For the reasons set out below, the appeal is dismissed. II. Background

[ 3 ] The amended January 27, 2022 Information alleged that Mr. Cormier, on or about the 13 th day of January 2022, at or near Rocky View County, Alberta, did unlawfully assault Ms. Kenesha LeFaivre contrary to

section 266 of the Criminal Code . [ 4 ] The one-day trial proceeded on August 5, 2022, before the Honourable Judge Tyndale ( Trial Judge ). The Crown called two witnesses: Ms. LeFaivre and Anthony Boucher, an RCMP officer. Mr. Cormier testified in his own defence. The Trial Judge reserved his decision. The parties provided written submissions in September (Mr. Cormier’s submissions), October (Crown’s submissions) and November (Mr. Cormier’s reply submissions). No final oral submissions were made. On December 11, 2022, the Trial Judge delivered oral reasons and convicted Mr.

Cormier of assault. [ 5 ] Sentencing was adjourned to May 3, 2023, and included a 6-month Conditional Sentence Order (which will be completed on November 3, 2023 if this appeal is not allowed) along with 6 months of probation. Mr. Cormier only appeals his conviction. III. Standard of Review A.

Rule in Browne v Dunn [ 6 ] The question of the definition of the rule in Browne v Dunn , and whether it is engaged, is a question of law reviewable on a standard of correctness: R v RJM , 2023 MBCA 28 at para 23 ; R v Abdulle , 2016 ABCA 5 at para 10 . [ 7 ] However, as stated by the Alberta Court of Appeal in R v Sawatsky , 2017 ABCA 179 , at para 21 (and as reconfirmed in R v SCDY , 2020 ABCA 134 at para 80 (footnote 82)): The “rule in Browne v Dunn ” is not absolute.

The trial judge is best suited to determine whether a party has failed to comply with the rule and whether the failure to cross-examine a witness on a certain point was unfair to the other side. The trial judge’s decision about whether the rule was violated, and whether any unfairness resulted, is entitled to considerable deference: R v Quansah , 2015 ONCA 237 at para 90 , 125 OR (3d) 81. The extent of the rule’s application “is within the discretion of the trial judge after taking into account all the circumstances of the case”: R v Lyttle , 2004 SCC 5 at para 65 , [2004] 1 SCR 193 .

When the rule has been breached, the remedy lies within the discretion of the trial judge: R v Werkman , 2007 ABCA 130 at para 9 , 404 AR 378. [ 8 ] The trial judge must be allowed to decide what is an appropriate remedy for breach of the rule, and deference is owed to the trial judge’s exercise of discretion in doing so unless error in principle is shown: SCDY at para 69; R v Lyttle , 2004 SCC 5 at para 65 , [2004] 1 SCR 193; R v Dexter , 2013 ONCA 744 at para 22 .

However, the question of whether a trial judge’s approach led to trial unfairness is reviewed on correctness standard: RJM at para 22 ; Abdulle at para 10 ; R v Schmaltz , 2015 ABCA 4 at para 13 . B. Misapprehension of Evidence [ 9 ] The standard of review for a misapprehension of evidence giving rise to a miscarriage of justice is high. The misapprehension must be “readily obvious” from the plain language of the reasons, go to substance rather than detail, be material rather than peripheral, and must play an essential

part in the reasoning process leading to conviction: R v SEB , 2023 ABCA 162 at para 20 ; R v Bowers , 2022 ABCA 149 at para 28 ; R v CLY , 2008 SCC 2 at para 19 ; R v Lohrer , 2004 SCC 80 at paras 1-2 ; R v RSF , 2019 ABCA 224 at para 13 . C. Findings of Fact [ 10 ] The standard of review for findings of fact is palpable and overriding error.

An appellate court may not overturn a trial verdict based on a “lingering or lurking doubt based on its own review of the evidence”: R v Wray , 2022 ABCA 1 at para 10 ; Housen v Nikolaisen , 2002 SCC 33 at para 10 , [2002] SCR 25; R v AKB , 2022 ABCA 170 at para 7 , citing R v Biniaris , 2000 SCC 15 at paras 24 , 37 and 38, [2000] 1 SCR 381. D.

Credibility Findings [ 11 ] Credibility findings are owed great deference and should only be interfered with if they are clearly wrong, unsupported by the evidence, otherwise unreasonable, or display palpable and overriding error: R v Sylvester , 2021 ABCA 312 at para 50 ; R v SMC , 2020 ABCA 19 at paras 18-19 ; R v Fuhr , 2018 ABCA 15 at para 30 . The ascribed error must be plainly identifiable and must have affected the result: Fuhr at para 31 ; R v Clark , 2005 SCC 2 at para 9 .

An appeal court is not entitled to interfere with credibility assessments unless they cannot be supported on any reasonable view of the evidence: R v Ibrahim , 2023 ABCA 94 at para 14 ; Bowers at para 27 ; R v Strathdee , 2020 ABCA 306 at para 8 . [ 12 ] If the credibility assessment is based on a wrong legal principle or derived from the misapprehension of a legal principle, such an error of law is reviewable on the standard of correctness: Bowers at para 27 ; R v Paulos , 2018 ABCA 433 at para 16 ; R v Wanihadie , 2019 ABCA 402 at para 23 ; Fuhr at para 30 .

E. “Uneven Scrutiny” [ 13 ] Engaging in “uneven scrutiny”, by applying a stricter standard of scrutiny to the evidence of the accused than a Crown witness, is an error of law that undermines the fairness of a trial and can give rise to a miscarriage of justice: R v Coreman , 2021 ABCA 107 at para 20 ; Strathdee at para 6 ; Wanihadie at para 22 ; R v Quartey , 2018 ABCA 12 at para 42 , aff’d 2018 SCC 659 .

F. Reasonable Apprehension of Bias [ 14 ] The standard of review where apprehension of bias is alleged is whether a fully informed observer, considering the context of the entire proceedings, would reasonably conclude the judge was not impartial: Karri v University of Calgary , 2022 ABCA 338 at para 12 ; R v Wilson , 2019 ABCA 502 at para 9 .

The standard of review for the appearance of a fair trial is whether the accused might reasonably consider that the accused had not had a fair trial or whether a reasonably minded person who had been present throughout trial would consider that the accused had not had a fair trial: Wilson at para 9 , R v Switzer , 2014 ABCA 129 at para 5 . IV. Issues [ 15 ] The issues on this appeal are: (

a) did the Trial Judge err by misdirecting himself or misapplying the rule in Browne v Dunn ? (

b) did the Trial Judge err by misapprehending the evidence, leading to the uneven scrutiny of evidence or a reasonable apprehension of bias? V. Analysis A. Did the Trial Judge Err in Respect of the Rule in Browne v Dunn ? 1. The Parties’ Positions [ 16 ] Mr. Cormier’s Browne v Dunn argument has several components. First, he asserts that the Trial Judge erred by relying on the rule in Browne v Dunn when the Crown did not object at trial to Mr. Cormier’s evidence allegedly given in breach of the rule, but rather waited until written submissions some months later.

Second, he asserts the Trial Judge relied on Browne v Dunn violations that were not raised by the Crown or were not matters of substance. Third, he asserts that the Trial Judge erred by failing to recall Ms. LeFaivre to address the Browne v Dunn concerns. [ 17 ] The Crown argues that it was open to the Trial Judge to find that Mr. Cormier breached the rule in Browne v Dunn , and to consider Mr. Cormier’s failure to confront Ms. LeFaivre on material aspects of his defence in assessing Mr. Cormier’s credibility. The Crown submits that Mr.

Cormier did not apply to recall the witness, it was not an error for the Trial Judge to fail to do that on his own initiative, and in any event would not have been appropriate in this case or would not have changed the credibility findings because they were otherwise well-founded. 2. Legal Framework [ 18 ] The rule in Browne v Dunn requires counsel to give notice to witnesses when the cross-examiner intends to challenge a part of the witness’ evidence and to give the witness an opportunity to answer the challenge: SCDY at para 70; R v Neilson , 2019 ABCA 403 at para 41 ; Lyttle at para 64 .

It is not some “ossified, inflexible rule of universal and unremitting application that condemns a cross- examiner who defaults to the evidentiary abyss”: Neilson , citing R v Quansah , 2015 ONCA 237 at para 39 .

The evidence in question must relate to matters of substance, not every “scrap” of evidence or points of “little significance”: R v Cupid , 2021 ABCA 386 at para 16 ; Sawatsky at para 25 ; Quansah at para 81 ; RJM at para 53 . [ 19 ] Where the rule has been breached by the defence, the Crown is obligated to make a timely objection, and has been criticized for not doing so: RJM at para 27 ; Quansah at paras 124, 130-131 ; Sawatsky at para 28 . [ 20 ] The failure of the Crown to object at the time the accused is testifying may, in some cases, compromise trial fairness, but the timing of raising the rule is one of several factors the trial judge may consider in exercising the court’s discretion in determining an appropriate remedy for a breach of the rule: Quansah at paras 117-124, 131 ; Dexter , at paras 20-21 ; SCDY at para 134; R v Werkman , 2007 ABCA 130 at para 9 ; Lyttle at para 65 ; RJM at paras 28-29 ; R v Dowd , 2020 MBCA 23 at para 27 . [ 21 ] If a trial judge finds there has been a breach of the rule in Browne v Dunn , there are various permissive options available in the exercise of the court’s broad discretion, including (1) taking into account the breach in assessing a witness’ credibility (or providing an appropriate instruction to the jury about the jury’s ability to do so); (2) placing less weight on the impeachment evidence of a witness called by the party that breached the rule (or providing an appropriate instruction to the jury about the jury’s ability to do so); (3) putting more weight on the evidence of the party who was not properly confronted; (4) re-calling the witness who was not properly confronted; (5) granting leave to call the witness in reply; or (6) directing counsel not to challenge the credibility of a witness on a point not covered in cross-examination: SCDY at paras 68-69; Werkman at para 9 ; Dexter at para 40 ; Quansah at paras 117-124, 126-128 ; RJM at para 29 .

The court might also choose not to provide any remedy: R v Cadotte (unreported, Action No 190403964S1, Transcript of Proceedings dated April 1, 2021). [ 22 ] However, if the court has concerns about a potential breach of the rule, it is generally required, in the interests of trial fairness, to raise the issue with the parties before rendering its decision: Cupid at para 16 ; RJM at para 28 ; Abdulle at paras 14-19 . It is up to the appeal court to decide whether a judge’s failure to do so creates a substantial wrong or miscarriage of justice: Abdulle at paras 17-19 ; R v Ahmad , 2021 ABQB 518 at para 52 . 3.

Did the Trial Judge Err in Concluding that Mr. Cormier Breached the Rule in Browne v Dunn ?

[ 23 ] The Trial Judge noted 21 specific aspects of Mr. Cormier’s evidence that he found had not been brought to Ms. LeFaivre’s attention during cross-examination. The Trial Judge then said: In his written reply to Crown’s submissions, Mr. Moldofsky cites the Quansah case and submits that only matters of substance need to be put to the witness rather than “every scrap of evidence”. In my opinion, the matters itemized above are indeed matters of consequence rather than scraps. One only has to consider the decimated state of the defence case if the above items were not in evidence. Essentially, Mr.

Moldofsky neglected to ask [Ms. LeFaivre] about the entire core of his client’s defence evidence. [...] [ 24 ] In written argument, Mr. Cormier argues that the 21 instances cited by the Trial Judge were “largely peripheral”, and then in oral argument only acknowledged that two of the instances were material or possibly material: that Mr. Cormier rolled back over and tried to go back to sleep after he laughed at her and made a specific remark “Bitch, you have no idea” (in response to his evidence that she had raised up with a clenched fist above him appearing to punch him), and that Ms.

LeFaivre kept poking and jabbing at Mr. Cormier asking to be driven home. The Crown argues that all 21 instances, when reviewed collectively, are material and the Trial Judge committed no error in finding that Mr. Cormier had breached the rule in Browne v Dunn . [ 25 ] The assessment of what is of substance and gives rise to an obligation to put contrary evidence to the witness will depend on the circumstances of each case.

In my view, each side’s precise narrative of “what happened” is critical for assessing credibility in a case involving one event that takes place over a short time-frame, where there is no photographic or video evidence, no other eyewitnesses of the event, and limited (if any) physical evidence. The fact that some of the narrative involves smaller details does not necessarily mean those details are mere “scraps” of evidence or immaterial. [ 26 ] Further, the 21 instances cited by the Trial Judge cannot be viewed in isolation.

They were the Trial Judge’s way of particularizing his main finding: that the “core” or substance of Mr. Cormier’s evidence, that was contrary to her testimony, was not put to Ms. LeFaivre. I agree that the matters the Trial Judge noted involved core elements of Mr. Cormier’s evidence, including: (

a) how Mr. Cormier woke up at 4 a.m.; (

b) the conversation they had after he woke up; (

c) when and how Ms. LeFaivre asked to be driven to Airdrie, what she paid him $40 for, and why she asked for the $40 back; (

d) why Mr. Cormier did not drive her to Airdrie and Ms. LeFaivre’s reaction to Mr. Cormier’s refusal to drive her to Airdrie; (

e) Ms. LeFaivre’s looking like she was going to punch Mr. Cormier while near him on the bed, and his reaction to it, including specifically laughing at her and saying “Bitch, you have no idea” and rolling over to go back to sleep, and then whether she continued to poke him to drive him to Airdrie; (

f) the circumstances involving when and how Ms. LeFaivre hit Mr. Cormier with a heater (the fact she hit him with a heater was agreed) and Mr. Cormier’s location and position at the time; (

g) the circumstances surrounding how and why Ms. LeFaivre left the house; (

h) the circumstances surrounding when, where, how and why Mr. Cormier pinned Ms. LeFaivre (which he admitted doing). [ 27 ] The nature of Mr. Cormier’s evidence provided a completely different narrative of what happened between the parties at and after 4 a.m. on January 13, 2022, was core to his defence and was material. I do not take the Trial Judge as suggesting that the exact wording of every instance he cited had to be put to Ms. LeFaivre in precisely the manner he cited. He found that core elements of Mr. Cormier’s evidence were not put to Ms. LeFaivre, and I agree. It was unfair to Ms.

LeFaivre not to squarely address Mr. Cormier’s evidence with her so she could respond to it. [ 28 ] I find that the Trial Judge committed no error in concluding that Mr. Cormier had breached the rule in Browne v Dunn . 4. Did the Trial Judge Err in Exercising his Discretion in the Face of the Breach of the Rule in Browne v Dunn ? [ 29 ] The Crown concedes that it did not object or raise the rule in Browne v Dunn at the time Mr. Cormier was testifying. The Crown clearly failed in its duty to raise the issue promptly.

That is a serious matter, and as noted earlier is an important consideration in fashioning an appropriate remedy for the accused’s failure to observe Browne v Dunn . [ 30 ] The Trial Judge’s decision of what to do in the face of the breach, and in the face of the Crown’s dilatory raising of it, was discretionary and is owed deference. Rather than recalling the witness, the Trial Judge decided to include the reality of the breach as one factor in assessing Mr. Cormier’s credibility and evidence. [ 31 ] Mr. Cormier has not shown any error in principle in the Trial Judge’s exercise of discretion.

This is not a case, like RJM , Abdulle or Dowd , where the trial judge decided credibility based on a breach of the rule in Browne v Dunn without giving the offending party the right to address it. The Trial Judge ordered a sequence of written argument. The Crown squarely raised the substance of the breaches of the rule in Browne v Dunn , which the Trial Judge later relied on, in its argument, and Mr. Cormier provide his response in his written reply submissions. The Crown did not request to recall Ms. LeFaivre or re-open its case. Mr. Cormier argued in his reply that it was open to the Trial Judge to recall Ms.

LeFaivre, but he did not apply for him to do so. Further, Mr. Cormier did not request further argument, or oral argument, on the point. The breach of the rule in Browne v Dunn was one of several factors the Trial Judge considered in assessing Mr. Cormier’s credibility and evidence. [ 32 ] Mr. Cormier relies on the unreported appeal decision of Justice Labrenz in Cadotte . In Cadotte , the trial judge found that

where there was a breach of the rule in Browne v Dunn , it was the court’s job to decide whether to give the testimony of the accused less weight or no weight. The trial judge did not explore with counsel whether the Crown wished to recall the witness. Justice Labrenz held that the trial judge made an error of law in determining that the trial judge only had two options in the face of the breach, and in failing to recognize that another option was not to provide any remedy. He also held that the trial judge failed in the exercise of its discretion by not considering the option of recalling the witness.

In my view, Cadotte is distinguishable. The Trial Judge’s options in this case were provided to him by counsel, and the Trial Judge was aware of those options as he expressly relied on Quansah . Further, while the Trial Judge did not expressly articulate that he considered recalling the witness, given that it was expressly raised with him as an option, it is implicit in his reasons that he considered and decided not to recall Ms. LeFaivre at that stage.

I do not think the Trial Judge’s reasons can be interpreted to suggest that the Trial Judge erred because he felt he was legally required to provide a remedy, or a particular remedy, or to use the breach of the rule in assessing Mr. Cormier’s evidence or his credibility. [ 33 ] I find that, in the circumstances, the Trial Judge did not err in the exercise of his discretion. He was in the best position to decide what to do in the face of the breach of the rule, and the Crown’s failure to make a timely objection.

His decision is owed deference. [ 34 ] I have also considered whether the Trial Judge’s approach created trial unfairness, and find that it did not – unlike other cases where an accused is ambushed by a trial judge relying on the rule in Browne v Dunn without addressing it with the parties, in this case the Trial Judge did not need to proactively raise it on his own motion because the issue was already squarely on the table: the Crown had expressly relied on it with a general assertion that Mr. Cormier’s version of events was not put to Ms. LeFaivre, citing several particulars, and then Mr.

Cormier had a meaningful opportunity to address the court on what to do about the alleged breaches of the rule. There was no trial unfairness, substantial wrong, or miscarriage of justice. B. Did the Trial Judge Err by Misapprehending the Evidence, Leading to Uneven Scrutiny or a Reasonable Apprehension of Bias? 1. Parties’ Positions [ 35 ] Mr. Cormier relies on several findings or conduct of the Trial Judge which he asserts collectively give rise to concerns over uneven scrutiny of evidence and a reasonable apprehension of bias. In particular, Mr. Cormier points to the Trial Judge’s: (

a) comments about Mr. Cormier’s counsel using leading questions or misquoting evidence; (

b) findings relating to whether the night in question was “very cold”; (

c) findings relating to whether a heater was thrown, or not, plugged in or not; (

d) findings relating to whether Ms. LeFaivre was on top of Mr. Cormier on their bed; (

e) findings relating to whether Ms. LeFaivre gave Mr. Cormier $40 to drive her to Airdrie; and (

f) raising his voice with Mr. Cormier’s counsel at trial. [ 36 ] I address these arguments below. 2. Did the Trial Judge Err in his Comments About Leading Questions and Misquoting Evidence? [ 37 ] Mr. Cormier argues that the Trial Judge’s finding that Mr. Cormier’s counsel used leading questions and misquoted evidence supports his argument that the Trial Judge misapprehended the evidence at the trial. [ 38 ] The Trial Judge made these comments in his reasons: Another problem arose concerning the assessment of Mr. Cormier’s evidence. On several occasions Mr. Moldofsky, his lawyer, asked Mr.

Cormier leading questions in examination in chief. That continued despite warnings from the court that answers given in response to leading questions would be given little weight. Further, in addition to asking a number of leading questions by his own witness…Mr. Moldofsky repeatedly misstated the evidence when asking them. [...] The Crown properly objected that Mr. Cormier had made no mention of anything of that nature in his testimony. As a result of Mr. Moldofsky’s persistence in leading his own witness, I have no choice but to afford little weight to those parts of Mr.

Cormier’s evidence thereby elicited. [ 39 ] I have reviewed the transcript of the trial. In the instances where the Trial Judge commented on Mr. Cormier’s counsel asking leading questions, I agree they were leading questions and, at times, counsel misstated or incorrectly summarized the evidence. There were also other instances where leading questions were asked and not objected to by the Crown or commented on by the Trial Judge. [ 40 ] It is trite law that leading questions may receive less weight: R v AMR , 2019 ABCA 421 at para 24 ; Siemens v Howard , 2018 BCCA 197 at para 27 .

The Trial Judge did not err in giving leading questions little weight. [ 41 ] I have considered the Trial Judge’s comment that he had “no choice” but to afford little weight to the parts of Mr. Cormier’s evidence elicited by leading questions. Had the Trial Judge been referring to a belief that he was, at law, required to give little weight to questions elicited by leading questions, that would have been a legal error because it is up to the Trial Judge to weigh the evidence and a

leading question is not a legal bar to the Trial Judge giving the answer weight. [ 42 ] However, when the Trial Judge’s comment is reviewed in context, and in particular with his other comments during the trial when leading questions or misquoted evidence were discussed, and in his reasons when he discussed the principles of assessment of credibility, it is clear that he did not feel legally bound to give the answers little weight.

Rather, his comment about having “no choice” was made in his overall assessment of the evidence, and in light of counsel’s questioning in the face of the court’s admonition not to lead the witness or misstate the evidence in his questions. He was not stating or suggesting that he was legally bound to give those answers little weight, but that upon the assessment of all the evidence he was giving them little weight. He did not err in doing so. [ 43 ] This aspect of Mr. Cormier’s appeal is rejected. 3. Did the Trial Judge Err in Respect of His Finding that the Night Was “Very Cold” [ 44 ] Mr.

Cormier impugns the Trial Judge’s finding that the night was very cold. Both parties testified that it was cold. In direct examination, Mr. Cormier testified that it was “really, really cold” and confirmed his testimony was that it was “very cold”. The Trial Judge did not find that it was minus 30 as asserted by Mr. Cormier in his argument. There is no palpable and overriding error. 4. Did the Trial Judge Err in respect of his Findings about the Heater? [ 45 ] Mr. Cormier impugns the Trial Judge’s “apparent” finding that the heater was not plugged in. In fact, the Trial Judge described Mr.

Cormier’s evidence about the heater being plugged in as problematic, because if it was plugged in when Ms. LeFaivre threw it, the heater could not reach Mr. Cormier’s head, yet he testified that Ms. LeFaivre threw it at him. Trial judges are entitled to use their common sense in assessing evidence. The fact the Trial Judge, when addressing this evidence in his reasons, did not specifically mention Mr. Cormier’s evidence that the heater may have been plugged in and come unplugged in the process of it being thrown does not establish an overriding and palpable error. 5.

Did the Trial Judge Err in respect of his Findings About Whether Ms. LeFaivre was on Top of Mr. Cormier? [ 46 ] Mr. Cormier did not articulate in his argument any particular error on this issue, but rather used it to highlight that the Trial Judge raised his voice (a matter discussed below). The Trial Judge made no overriding and palpable error in not accepting Mr. Cormier’s evidence that Ms. LeFaivre was near him looking like she was going to punch him. 6. Did the Trial Judge Err in respect of his Findings about the $40? [ 47 ] Mr. Cormier argues that the Trial Judge misapprehended Mr.

Cormier’s evidence about whether the $40 he alleged Ms. LeFaivre gave him was to drive him to Airdrie that night. I have reviewed the transcript and I find that Mr. Cormier has not shown a readily obvious misapprehension of evidence, or one that would give rise to a miscarriage of justice. The Trial Judge’s comments were supported by Mr. Cormier’s testimony. 7. Did the Trial Judge Err by Raising His Voice at Trial? [ 48 ] During the trial, on one occasion, Mr. Cormier’s counsel requested that the court refrain from raising its voice.

The Trial Judge acknowledged that he had probably expressed frustration due to the number of times the Trial Judge had to caution counsel. This does not create a misapprehension of the evidence. I address this point further under Mr. Cormier’s argument that there was a reasonable apprehension of bias. 8. Did the Trial Judge Err by Giving the Evidence Uneven Scrutiny? [ 49 ] In addition to the above points, Mr. Cormier also takes issue with the Trial Judge’s comments about Mr. Cormier’s evidence as to whether he was upset about being hit by a heater (Mr.

Cormier initially denied being angry but later acknowledged he was upset). Mr. Cormier then contrasts this with the Trial Judge’s comments about Ms. LeFaivre’s evidence and her credibility. Neither of these comments show a misapprehension of evidence or error in the assessment of credibility. [ 50 ] Effectively, Mr.

Cormier bundles all his arguments together and suggests they are indicative of the Trial Judge falling into the error of giving the witnesses’ evidence “uneven scrutiny”. [ 51 ] Allegations that trial judges engage in uneven scrutiny of the accused’s evidence compared to the Crown’s witnesses are common in judge alone trials where the evidence pits the word of the complainant against the denial of the accused and the result turns on the trial judge’s credibility assessments: Bowers at para 30 .

The argument asserts that the trial judge applied a different standard of scrutiny in assessing the credibility of witnesses, and is, therefore, a difficult argument to make given that credibility findings attract a high degree of deference: Bowers at paras 30 and 33-34 . Courts are often skeptical that raising uneven scrutiny is a thinly-veneered invitation to reassess credibility: Bowers at para 30 and 34-35 ; R v LRS , 2016 ABCA 307 at para 29 ; Wanihadie at para 34 . [ 52 ] To be successful on the argument of uneven scrutiny, the appellant must establish an error that falls within section 686(1) (

a) of the Criminal Code , namely unreasonable verdict, error of law, or miscarriage of justice: Bowers at para 29 ; R v Sheppard , 2022 ABCA 88 at para 11 ; Strathdee at para 6 . Uneven scrutiny arguments which are based on allegations about what might have been in the trial judge’s mind or that the trier of fact might have slipped on the foundational burden and standard, cannot be successful because they take the appeal court outside of its jurisdiction: R v SDH , 2023 ABCA 145 at paras 6-8 . The appeal court must be of the opinion that the trier of fact unreasonably departed from the criminal law burden and standard of proof: SDH at para 6 .

[53] Further, the Court of Appeal has recently held that uneven scrutiny cannot be used as a stand-alone ground of appeal, in theabsence of any other error. In Bowers, Justice Paperny, in Reasons for Judgment Reserved (concurred in by Rowbotham and StrekafJJA), stated at paras 45-46: There are legitimate, principled bases for appellate intervention. Uneven scrutiny in the absence of any other error is a dubious argumentat best. Bundling grievances about credibility findings under the rubric of uneven scrutiny does not promote the prospect of a successfulappeal in the absence of legitimate error.

Resort should not be had to an argument of uneven scrutiny where other, principled, argumentsare not sustainable on the record. It is, accordingly, unnecessary and, in my view, contrary to the principles governing appellate review, to rely on uneven scrutiny as astand alone ground of appeal.

It comes down to a question of first principles: deference is owed to the credibility findings of the trialjudge, which cannot be interfered with on appeal as long as they can be reasonably supported by the evidence: [R v CAM, 2017 MBCA70] Other courts have stated that this argument can only succeed where the reasons, or the record, demonstrate that there is “somethingsufficiently significant” (R v Phan at para 34) that establishes the trial judge employed a “faulty methodology” in deciding credibility(Paulos at para 17): Wanihadie at para 36.

Since there is no prescribed methodology to use in assessing credibility, in my view thealleged error, in order to succeed on appeal, must relate back to the bases for overturning a verdict: unreasonable verdict, error of law, ormiscarriage of justice. [54] This approach has been followed by the Court of Appeal since Bowers: R v Bennetts, 2022 ABCA 245 at para13; Ibrahim atpara 46; R v Clarkson, 2023 ABCA 212 at para 23. [55] I agree with the Crown that Mr. Cormier is effectively asking this court, on appeal, to re-assess the credibility of thewitnesses.

I have rejected all the grounds he has raised to support the uneven scrutiny argument, and he has not pointed to anything elsethat would support it. In the circumstances, his reliance on uneven scrutiny cannot stand and is rejected. 9.

Is there a Reasonable Apprehension of Bias? [56] Conduct on the part of a trial judge which gives rise to a reasonable apprehension of bias renders the trial unfair and theverdict cannot stand: R v Stephan, 2021 ABCA 82 at para 5; R v SRD, , [1997] 3 SCR 484, at paras 94, 99-100. [57] As noted earlier, the standard of review where apprehension of bias is alleged is whether a fully informed observer,considering the context of the entire proceedings, would reasonably conclude the judge was not impartial: Karri at para 12; Wilson atpara 9. [58] The onus is in the appellant to provide substantial evidence to establish the allegations – mere suspicion is insufficient; Karriat para 9, citing Cojocaru v British Columbia Women’s Hospital and Health Centre, 2013 SCC 30 at para 22, where the Supreme Courtof Canada stated: The basic framework for assessing a claim that the judge failed to decide the case independently and impartially may be summarized asfollows.

The claim is procedural, focussing on whether the litigant’s right to an impartial and independent trial of the issues has beenviolated. There is a presumption of judicial integrity and impartiality. It is a high presumption, not easily displaced.

The onus is on theperson challenging the judgment to rebut the presumption with cogent evidence showing that a reasonable person apprised of all therelevant circumstances would conclude that the judge failed to come to grips with the issues and decide them impartially andindependently. [59] In most circumstances, and within justifiable limits of reasonableness, a lack of nicety, a raised voice, expressing impatience,dissatisfaction, irritation, stubbornness, annoyance, or anger, or reasonable criticism or censure of counsel, while at times unsatisfactory,are insufficient to establish a reasonable apprehension of bias on their own: R v Chui, 2021 ABCA 137 at paras 57-58 (including casescited at footnote 83); R v Ibrahim, 2019 ONCA 631 at paras 99-112. [60] The Trial Judge’s frustration and admonition of counsel in this case comes nowhere near rebutting the high presumption ofjudicial integrity.

The Trial Judge’s overall approach was measured and fair, and no reasonable person would conclude that he failed todecide the issues impartially and independently. [61] This ground of appeal is rejected. VI. Conclusion [62] The appeal is dismissed. Heard on the 8th day of September, 2023. Dated at the City of Calgary, Alberta this 28th day of September, 2023.

M.A. Marion J.C.K.B.A. Appearances: Efrayim Moldofsky for the Appellant Geea Atanase for the Crown