Tony Grand Gray v. His Majesty the King –, 2023 NBKB 022

WCA/1/2022 IN THE COURT OF KING'S BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF WOODSTOCK Citation: Tony Grand Gray v. His Majesty the King – 2023 NBKB 022 Date: 20230221 BETWEEN: TONY GRAND GRAY, Appellant - and - HIS MAJESTY THE KING, Respondent Date of Hearing: February 13, 2023 Date of Decision: February 21, 2023 Before: Justice Richard G. Petrie

At: Woodstock, New Brunswick Appearances: Timothy T. Culbert for Tony Gray Geoffrey K. Hutchin for His Majesty the King D E C I S I O N Petrie, J. I. Introduction 1 . Mr. Gray appeals his

summary conviction on the following two charges: Count 1 - November 17, 2020 - Craig Flats, NB - S. 264.1(2)(

b) CC - did by telephone convey a threat to Tina Gray to cause death to Tina Gray – SC Count 2 - November 17, 2020 - Craig Flats, NB - S. 733.1(1)(

b) CC - while bound by a probation order made by Judge Tonning on July 28, 2020, and being bound to comply with conditions of said order did without reasonable excuse fail to comply with such conditions to wit: keep the peace and be of good behaviour – SC 2 . The appellant was convicted on both counts after a trial before Provincial Court Associate Chief Judge, Brian C. McLean. The trial occurred on November 26, 2021 and Judge McLean rendered his decision convicting the appellant on December 17, 2021. Sentencing was adjourned to March 23, 2022. 3 . The appellant filed his Notice of Appeal on January 12, 2022. 4 .

On April 26, 2022, the appellant was sentenced to a suspended sentence of twelve months and a victim fine surcharge of $200.00. 5 . Mr. Gray’s Notice of Appeal sets out four grounds. Grounds B and C were withdrawn before me. The appeal proceeded on grounds A and D. 6 . To summarize the Grounds: Ground A alleges an error of law or mixed law and fact by the trial judge failing to conduct a proper analysis on credibility as required by R v. W.(D.), [1991] SCR 742.

Ground D alleges the trial judge to have failed to consider evidence presented by the Defence and, a failure to provide sufficient reasons by failing to consider or explain the evidence called by the appellant.

7 . At trial, the Crown called two witnesses and the Defence chose not call any. Mr. Gray did not testify, as is his right to do so, and as mentioned by the trial judge, without any negative inference. The Defence cross examined both Crown witnesses. 8 . The Crown’s testimony was by the complainant, Tina Albert (formally known as Tina Gray), who happens to be Mr. Gray’s estranged spouse, and the investigating RCMP officer, Constable Louis-Philippe Chabot . 9 . The facts are not complicated. The appellant’s brief, at paragraphs 1 to 3, summarizes them quite well: 1.

On or about 17:13, November 17, 2020, the Complainant, Ms. Tina Albert (formerly known as Tina Gray)(the “Complainant”) , alleged to Royal Canadian Mounted Police (RCMP) that the Appellant, her ex-partner, conveyed by telephone a threat to her that same day that “If you do anything to my skidder I’ll fucking kill you” during a conversation about the skidder and its location (the Incident”). 2.

At the time of the alleged Incident, the Appellant was on probation and was required by the terms of the probation order made by Judge Henrik Tonning on the 28 th day of July, 2020 to maintain good behaviour and to keep the peace regarding the Complainant. 3. As a result of the alleged Incident, the Appellant was charged with violating

Section 264.1(2) (

b) of the Criminal Code, RSC 1985, c C-46 (“ Criminal Code ”) for “uttering Threats” and

Section 733.1(1)(b), supra for “Failure to Comply with Probation Order” in Information 2020-1688644, which was sworn on December 8 th , 2020. 10 . It should also be mentioned that, at trial, on cross examination, Cst. Chabot confirmed that the RCMP had not received any physical or documentary evidence from Ms. Albert related to the alleged threat, such as phone logs or text message records. The appellant says that, contrary to this, Ms.

Albert seemed to testify on cross, that she did have phone logs or text messages relating to the incident and the Defence maintains she also testified she had sent these to the RCMP. 11 . Further, on cross-examination of Cst. Chabot, it was confirmed that Mr. Gray refused to provide a statement to police but did state “ I did not do it”. 12 . The appellant, in his Brief, sets out the key issues before me at paragraphs 20(a), (b), (c), and (d): 20. The issues to be determined at the hearing for this matter are as follows: a. What standard of review should be applied to the within

summary conviction appeal? b. Did the learned trial judge err in law or in mixed fact and law by failing to conduct a W.(D.) analysis to the current case? c. Did the learned trial judge fail to consider key evidence, namely the presence or lack of phone records and text messages? i. Can the learned trial judge’s failure to consider key evidence be saved by applying the reasoning in the Supreme Court case of R v. R.E.M ., 2008 SCC 51 ? d.

By failing to consider key evidence presented by the defence, namely the presence or lack of phone records and text messages, was the decision of the learned trial judge unreasonable, an error of law and/or a miscarriage of justice? i. Can some or all of the errors identified above be cured by the curative proviso set out in S. 686(1)(b)(iii) of the Criminal Code of Canada ? 13 . The appellant at paragraph 22 argues: 22. The Appellant respectfully submits that the learned trial judge in this case made an error of law as to the applicable scope of W.

(D.) analysis and thus did not make any credibility findings on the Appellant as required in the second step thereof. By failing to considercertain key evidence, the trial judge’s decision is rendered unreasonable and was a miscarriage of justice. Standard of Review –

Summary Conviction Appeal 14. A

summary conviction appeal court, such as myself, has similar powers of review as the Court of Appeal of NewBrunswick. The standard of review on an appeal was explained by the Court of Appeal in R. v. Fowler, 2006 NBCA 90, as follows atparagraphs 17 and 18: 17. While the scope of a

summary conviction appeal to the Court of Queen’s Bench is broad enough to allow appeals onquestions of fact, the function of the

Summary Conviction Appeal Court is nevertheless not to retry a case or to second guess thefindings of facts made by the trial judge. Absent an error of law or a miscarriage of justice, the role of the

summary convictionappeal judge is to determine whether the findings of the trial judge are unreasonable or cannot be supported by the evidence . . . 18. I adopt the following formulation of the scope of review by a

Summary Conviction Appeal Court, articulated by Cromwell J.A. inR. v. Nickerson (W.S.) (1999), 1999 NSCA 168 , (NS CA), 178 N.S.R. (2d) 189 (C.A.) at para. 6, andconsistent with the jurisprudence in this province: The scope of review of the trial court's findings of fact by the

Summary Conviction Appeal Court is the same as on appeal againstconviction to the Court of Appeal in indictable offences: see sections 822(1) and 686(1)(a)(

i) and R. v. Gillis (1981), (NS CA), 60 C.C.C. (2d) 169 (N.S.S.C.A.D.) per Jones, J.A. at p. 176. Absent an error of law or a miscarriage of justice, the test tobe applied by the

Summary Conviction Appeal Court is whether the findings of the trial judge are unreasonable or cannot besupported by the evidence. As stated by the Supreme Court of Canada in R. v. Burns, (SCC), [1994] 1 S.C.R. 656 at657, the appeal court is entitled to review the evidence at trial, re-examine and reweigh it, but only for the purpose of determiningwhether it is reasonably capable of supporting the trial judge's conclusions. If it is, the

Summary Conviction Appeal Court is not entitledto substitute its view of the evidence for that of the trial judge. In short, a

summary conviction appeal on the record is an appeal; itis neither a simple review to determine whether there was some evidence to support the trial judge's conclusions nor a new trialon the transcript. (Emphasis added) 15. A reviewing judge is clearly not entitled to substitute his or her views of the evidence to those of the trial judge. However,intervention would be required if those findings are shown to be unreasonable or if there are otherwise shown to be errors of law or amiscarriage of justice. Ground A 16.

The key to the appellant’s argument on appeal is that the trial judge failed to make credibility findings in regards to theappellant. Further, the appellant argues that the trial judge appeared to hold the view that the circumstances before him did not require aW.(D.) analysis on credibility, as Mr. Gray had himself, not testified. There was discussion of this very issue involving the Crown(Munn), Defence (Culbert), and the trial judge at the end of the trial in argument. Mr. Culbert had provided a decision out of Alberta, R.v. Rana, 2010 ABPC 158. 17. In short, Mr.

Culbert’s point before me is that the W.(D.) analysis on competing credibility applies not only where anaccused actually testifies, but also where, through Crown witnesses, there is evidence favorable to the Defence arising from the Crown’scase. This could include, for example a statement by an accused to police. 18. Mr. Culbert says that Cst. Chabot on cross, confirmed Mr. Gray’s denial of the incident and Mr. Culbert maintains thatthis was an exculpatory statement that should have triggered a full W.(D.) analysis by the trial judge. The trial judge did not agree. 19.

The well-known W.(D.) analysis framework on credibility when an accused gives evidence or there is exculpatoryevidence otherwise, is set out by the Supreme Court as follows: 1. First, if you believe the evidence of the accused, you must acquit. 2. Second, if you do not believe the testimony of the accused, but you are left in reasonable doubt by it, you must acquit. 3. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of theevidence you do accept, you are convinced beyond a reasonable doubt of the guilt of the accused.

20 . To be clear, in my view, it is accurate to say that the principles underlying W.(D.) are not confined only to cases where an accused testifies and his/her evidence conflicts with the Crown’s witnesses on an important issue. It can apply to exculpatory evidence favorable to the Defence however presented at trial. See R v. Morningstar (2017), NBCA 39, paragraphs (6-12); and see R v. B.D. (2011), ONCA 51, (paragraph 105). 21 . Mr.

Culbert now argues that the trial judge’s comments that he did not need to apply a W.(D.) analysis in this case, also resulted in the judge failing to appropriately analyze the complainant’s credibility. I do not accept that characterization. I would note that the trial judge, in his decision of December 17, 2021, at page 5 of that transcript, clearly identified Mr. Gray’s denial comment made to Cst. Chabot to be “contextual background”. He also did not view that denial to be itself exculpatory evidence. In many respects, the cautionary words from the Court of Appeal in R v.

Dedam (2022), NBCA 41 need repeating: 89 In its written submission, the Crown outlined an important distinction in the law: where the Crown introduces any evidence, including a statement of the accused for the truth of its contents as an exception to the hearsay rule, and that evidence contains both inculpatory and exculpatory portions, there is no doubt that the principle set out by Richard J.A. in R. v.

R.S.L. applies, and a W.(D.) analysis is required (this commonly occurs where the Crown introduces into evidence the cautioned statement of an accused for the truth of its contents and that statement contains both inculpatory and exculpatory portions).

R.S.L. applies to any exculpatory evidence called by the accused as well. 90 However, where the Crown has introduced state of mind and narrative evidence for a non-hearsay purpose, and that evidence is neither inculpatory nor exculpatory, the accused is not entitled to transform that evidence into exculpatory evidence to be relied upon for the truth of its contents in order to support a request for a W.(D.) analysis. As the Supreme Court has explained, an accused is not entitled to extract his own exculpatory out-of-court statement from another witness and then seek an acquittal on that basis. Ms.

Martin's evidence created the exact scenario the Supreme Court has prohibited. Indeed, as the Court acknowledged, it is especially problematic for an accused to do so where he is not willing to later testify and subject himself to cross-examination while under oath. 22 . More importantly, everything has context. Evidence is not to be examined in isolation. Mr. Gray's so-called exculpatory statement that “I did not do it” to Cst. Chabot, standing on its own, is the barest of denials. It is virtually impossible to assess the veracity of a denial without more. The strength of a denial depends entirely on context.

I do not accept that that denial was a source of reasonable doubt, nor did the trial judge. I would almost equate the denial to be, itself, a plea of “not guilty”. The Crown must still prove, beyond a reasonable doubt, the essential elements of the offence in order to secure conviction. 23 . I agree entirely with the words of Provincial Court Judge, L.G. Anderson, in R. v. Rana at paragraph 15 and which was before Judge McLean: 15.

If the only context is the testimony of the complainant, then it seems that for all intents and purposes, the assessment of a bare denial, without more, is the much same as the analysis under the third leg of W.(D.). Does all of the evidence, including the denial and the complainant's testimony leave a reasonable doubt? A Court must be careful to not simply balance one version against the other. However, where the only context is the testimony of the complainant, the strength of the complainant's testimony necessarily becomes a significant consideration in assessing the credibility of a denial. 24 .

The Supreme Court’s decision in R. v . R.E.M. 2008 SCC 51 is an example where a court’s acceptance of the credibility of a complainant may sufficiently explain the rejection of the denial: 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. 25 . The trial judge in Mr. Gray’s case was certainly alive to the issue of W.(D.) as it was raised specifically in argument by Defence counsel.

He did not view this case to require a W.(D.) analysis and I happen to agree. Still, the trial judge did analyze the credibility of the complainant and he expressly accepted her evidence and rejected any notion that her credibility had been undermined by the cross-examination. Cst. Chabot’s credibility was simply not questioned.

26 . As in Morningstar , even if there is any so-called error by the trial judge suggesting W.(D.) does not apply as the accused did not testify or give a statement here, it was of no moment, no legal consequence at all. Similar to, if not even more than in Morningstar , the appellant here saying “I did not do it” can hardly be a source of reasonable doubt, nor one that, itself, would necessarily demand a full W.(D.) analysis. 27 . Keep in mind that any W.(D.) analysis itself need not be “religiously followed or articulated” in every case. (See paragraph 73 of R. v . Dedam ) 28 .

An implied answer to one of W.(D.) ’s questions is clearly acceptable. (See Dedam at paragraph 76) 29 . In reading his reasons as a whole, Judge McLean, while aware of the bare denial statement of Mr. Gray, in the end, found little evidentiary value in it and, based upon all of the evidence, accepted the Crown to have proven beyond a reasonable doubt both charges. He did not treat the matter as a credibility “contest”. Still, he did assess the complainant’s credibility and did so on more than just her demeanor. He also applied the burden of proof.

Again, the trial judge’s decision reflects this conclusion, based upon the strength of all of the evidence that was before him and, in particular, the credibility of Ms. Albert. In short, the trial judge believed Ms. Albert. 30 . To the extent this appeal goes to the sufficiency of reasons, I would repeat from the Supreme Court of Canada in R v. R.E.M ., paragraph 35 : 35. In

summary, the cases confirm:

(1) Appellate courts are to take a functional, substantive approach to sufficiency of reasons, reading them as a whole, in the context of the evidence, the arguments and the trial, with an appreciation of [page19] the purposes or functions for which they are delivered (see Sheppard, at paras. 46 and 50; Morrissey, at p. 524).

(2) The basis for the trial judge's verdict must be "intelligible", or capable of being made out. In other words, a logical connection between the verdict and the basis for the verdict must be apparent. A detailed description of the judge's process in arriving at the verdict is unnecessary.

(3) In determining whether the logical connection between the verdict and the basis for the verdict is established, one looks to the evidence, the submissions of counsel and the history of the trial to determine the "live" issues as they emerged during the trial. This

summary is not exhaustive, and courts of appeal might wish to refer themselves to para. 55 of Sheppard for a more comprehensive list of the key principles. 31 . A Court may reject the evidence of the Accused because they accept the evidence of the complainant. See R v. R.E.M. and R. v. Vuradin , [2013] SCC 38. 32 . In this case the trial judge felt the evidence of the complainant and the police officer was compelling enough to be satisfied that the elements of the offence had been proven beyond a reasonable doubt.

Any alleged failure by the trial judge to rationalize a lack of, at most, possible physical evidence was simply not established. I see no error in his conclusion. 33 . For the foregoing reasons, I see no merit to this ground of appeal. Ground D 34 . The other main complaint of the appellant relates to the argument that, as his counsel says, the trial judge did not sufficiently or, at all, grapple with the purported inconsistencies/discrepancies of the evidence arising from the complainant’s testimony. 35 . Mr. Culbert argues that the evidence he elicited from Ms.

Albert on cross-examination was shown to be full of inconsistencies and contradictions. (See generally page 43-46 of the transcript for instance). Mr. Culbert points to Ms. Albert’s suggestions that she had trace records and/or had given phone records to the RCMP and also text message records. This includes her answers on cross, possibly suggesting that she had documentary records of phone calls that were sent to the RCMP and which had not been produced for the Defence, along with the fact that Cst. Chabot had denied having received any such documents.

36. Mr. Culbert argues that the trial judge was thus obligated to consider or explain these contradictions and inconsistencies inhis credibility analysis of the complainant, and he failed to do so. 37. Mr. Culbert referred the Court to the Supreme Court of Canada Decision on R. Harper (SCC), [1982] SCJNo.108 beginning at the bottom of page 9 and top of page 10, to argue that an appeal court must ensure that a trial judge “properlydirects itself to all of the evidence bearing on the relevant issues”. 38.

I simply do not accept that the Defence was able to establish that the complainant’s evidence, described by Defencecounsel as “inconsistent” and “full of contradictions”, was in fact, just that, nor that it related to a material, vital, or relevant issue. Thecomplainant’s testimony on cross-examination was not shown to be as now characterized by the Defence. Her answers on cross-examination were not pursued sufficiently, or at all, by counsel in order to establish them to be material to the trial judge’s decision oncredibility or otherwise.

In short, the trial judge didn’t simply ignore this evidence, but rather he didn’t view it as establishing anythingrelevant or material as characterized by counsel. 39. A trial judge need not discuss all of the evidence that is put before him. The testimony of Ms. Albert which Mr. Culbertrelies upon here, may well be portrayed as confusing, but it was, in my view, up to counsel to follow up on cross in order to probe thecomplainants’ answers and to bring some clarity of her testimony for its intended purpose to the Defence’s case.

Without counsel askingexpected follow up questions it is not accurate, nor fair to suggest that the judge should simply be left to try to explain what is now beingcharacterized as untruths. 40. I wish to add that much of the cross-examination of Ms. Albert went to the level of hostility between these parties,something this Court is well aware of, in the civil context. The point of that cross-examination might have been to suggest an ulteriormotive to the complainant’s testimony. This could have included an argument that her testimony was fabricated.

Having said this, I don’tbelieve Defence counsel ever questioned the complainant to directly suggest that she had fabricated the alleged threat. Further, as seen atpage 40, line 3 of the transcript of November 26, 2021 in response to an inquiry of Judge McLean, Defence counsel expressly denied thatpurpose, but argued that it might relate to her credibility. 41. In any event, the so-called inconsistency in evidence with respect to the issue of whether there were documents or physicalevidence relevant to, if or when the alleged threat was ever made, is, in my mind, much to do about very little. 42.

From my read of the trial transcript, Ms. Albert did not actually say that she sent records to the RCMP, only that she“would have if asked”. She was not further questioned on that point. Whether there are such records remains arguably uncertain.However, what is clear is that Cst. Chabot did not receive any. 43. Furthermore, with respect to the alleged documents, Mr. Culbert did not ask Cst. Chabot if he had inquired about suchdocuments. Perhaps, if it was a Crown disclosure issue, it might have been open for Defence counsel to try to stop the cross-examinationand ask for the production of these documents as Ms.

Albert seemingly referred to them on cross. That was not done. 44. Still further, the appellant’s counsel did not probe the complainant further on what she meant by a “trace on her phone” orwhen she stated “I’m not physically able to get that. That has to come from the RCMP” (records). 45. In any event, there is no requirement for the Crown to produce documentary evidence in every case. A witness’stestimony alone can be sufficient to convict if that evidence is determined by the judge to be reliable and credible as it was in this case. 46.

The trial judge is in a much better position to make that determination and, of course, appeal courts show great deferencefor credibility findings by a trial judge, absent palpable and overriding error. (See R v. C. (J.N.), [2013] NBCA 59) 47. In addition, Mr. Culbert argues that he showed, on cross of Ms. Albert, a number of inconsistencies such as her prior KGBstatement, yet that KGB statement was never entered into evidence for the trial judge to consider.

48 . In the end, while I fully acknowledge that Ms. Albert and Mr. Gray have a most challenging past, that, in and of itself, was not sufficient for the trial judge to disbelieve the complainant. The trial Judge had the right to do so. 49 . In the end, I would also deny this ground of appeal, and for all of the foregoing reasons, I would dismiss the appeal. ________________________ Richard G. Petrie J.C.K.B.