R. v. Andersen, 2018 NLCA 41

Darren Andersen (appellant) v. Her Majesty the Queen (respondent) (17/83) Indexed As: R. v. Andersen 2018 NLCA 41 3 C.A.N.L.R. 118 Court of Appeal of Newfoundland and Labrador Green, Welsh and Barry JJ.A. July 20, 2018

Summary: The appellant was convicted of aggravated assault for stabbing his former partner in the back with a steak knife and breach of probation for failure to keep the peace and be of good behaviour. He appealed his conviction for aggravated assault on the grounds that the trial judge misapprehended the facts, made findings of fact without an evidentiary basis, and failed to give sufficient reasons for his decision. Further he alleged the trial judge erred by concluding that neither self-defence nor accident applied in the circumstances.

He also appealed his sentence of four years in prison for the aggravated assault and two months, consecutive, for the breach of probation on the grounds that the judge failed to give proper consideration to his aboriginal status and his personal circumstances. Held: Appeal against conviction dismissed, appeal against sentence allowed (Green J.A. dissenting). Welsh J.A. (Barry J.A. concurring): The appellant submits that the judge erred by failing to address all the evidence, particularly the uncertainties in the complainant’s testimony.

There is a distinction between misapprehending the evidence and accepting certain of the evidence while dismissing other evidence that may be inconsistent with what the judge accepts. In this case, there was evidence on which the judge could conclude that Mr. Andersen had stabbed the complainant in the back. The submission that the judge misapprehended the evidence is without foundation. The test for whether a trial judge has provided sufficient reasons for a decision is based on a functional, substantive approach.

The reasons must be sufficient to fulfill their functions of explaining why the accused was convicted or acquitted, providing public accountability and permitting effective appellate review. An appellate court, proceeding with deference, must ask itself whether the reasons, considered with the evidentiary record, the submissions of counsel and the live issues at the trial, reveal the basis for the verdict reached. The trial judge recognized that self-defence was a live issue and gave reasons why he rejected the defence.

Although the appellant submits that the judge did not explain why he rejected the submission that the stabbing was an accident because it was not clear whether the appellant took the knife or the complainant dropped it, it is clear that having heard the testimony and counsels’ submissions, the judge was aware of the uncertainties in the complainant’s evidence.

While it may have been preferable for the judge to provide more detail regarding why he accepted that the appellant had taken the knife, in the end, it did not matter given his conclusion that the only plausible explanation for the complainant’s wound was that the appellant had stabbed her. The mens rea for aggravated assault is satisfied if the assailant intends to apply force either intentionally or recklessly. It was unnecessary for the judge to specify whether the appellant was reckless in applying force to the complainant with the result that she was stabbed with the knife or whether he intended to stab her.

On the facts, the appellant’s continuation of the assault with the knowledge a sharp object was involved was not an accident that would negate the mens rea of the offence. There is no basis on which to overturn the conviction. The appellant submits that the trial judge erred by failing to take into account his aboriginal status and his personal circumstances in

determining an appropriate sentence. The trial judge focussed on the seriousness of the offence and the offender’s degree of responsibility as being critical to the sentencing process, without consideration of the discussion of Mr. Andersen’s aboriginal status in the pre-sentence report and how his aboriginal status may be relevant to the analysis. This resulted in error which had an impact on the sentence, which must be varied.

There are many factors to be considered: the appellant’s aboriginal status, his related criminal record, the breach of trust arising from the spousal relationship with the victim, and the potential for rehabilitation. A sentence of two years less a day imprisonment for the aggravated assault followed by three years probation with conditions is an appropriate sentence. The sentence of two months for the breach of probation should be varied to be served concurrently.

Green J.A., dissenting: The appeal from the conviction for aggravated assault should be allowed and a conviction for assault causing bodily harm substituted. The keys to the conviction of Mr. Andersen for aggravated assault were the twin findings of fact by the trial judge that Mr. Andersen took the knife from the complainant and stabbed her in the back. On the reasoning of the trial judge, without the findings that Mr. Andersen took the knife from her and subsequently stabbed her in the back, there was no basis for conviction of aggravated assault.

A review of the record reveals that the complainant’s evidence on the crucial events was vague, uncertain, contradictory and punctuated with assertions of lack of memory. That is not to suggest that the verdict was unsafe based on problems with the complainant’s credibility but to point out that the effect of her evidence, given both on direct and on cross-examination, was not considered by the trial judge as a whole, with the result that skewed inferences were drawn that could not be supported on any version of what the Crown in fact was asserting.

It appears from the reasons given by the trial judge that his finding that Mr. Andersen took the knife from the complainant was based solely on her statement early in direct examination that “he took it away from me.” This was done without any reference to the qualifications and explanations in the remainder of her evidence both on direct and on cross. Having accepted that Mr. Andersen had taken possession of the knife, it would also appear that the judge drew the inference that because Mr. Andersen had possession of the knife, he must have stabbed her.

Of course, it was open to the trial judge to accept some but not all of the complainant’s evidence, provided there is some reasonable, understandable and transparent explanation for doing so. Without some allusion to how he arrived at his finding in this regard, it is reasonable to conclude that he misapprehended the evidence and thus a miscarriage of justice occurred under section 686(1) (a)(iii) of the Criminal Code .

The form of reasoning adopted by the trial judge also indicates that he either did not consider, or had closed his mind to, the possibility of accident as an explanation for the wound to the complainant’s back. The “defence” of accident usually amounts to a denial of the mens rea of the offence. In his reasons, the trial judge did not address at all the mens rea necessary to establish the offence of aggravated assault.

The test for sufficiency of reasons is whether they fulfill the three functions of explaining why the accused was convicted or acquitted, providing public accountability and permitting effective appellate review. If the evidence is contradictory or confusing, the appellate court should ask whether the trial judge appears to have recognized and dealt with the contradictions. The trial judge’s reasons do not provide any possible pathway to conviction for aggravated assault.

They provide no explanation of why he did not consider it necessary to address the submissions of accident, or the issue of mens rea generally, or why he reached the conclusions he did on the issue of aggravated assault. They do not reveal the basis for the verdict reached and do not show that he seized the critical issue on the trial. An error of law has been committed within section 686(1) (a)(iii) of the Criminal Code . The argument that Mr. Andersen did not take the knife from the complainant but that it somehow ended up on the bed and in those circumstances Mr.

Andersen could be said to have had objective foresight of the risk of bodily harm to the complainant from the knife if he kept assaulting her, punching her and holding her down on the bed was not raised by the Crown at trial as a pathway to conviction for aggravated assault nor did such an analysis figure at all in the reasoning of the trial judge. Evidence of this theory is not so overwhelming as to make it appropriate to invoke the proviso in section 686(1) (b)(iii) in this case.

A conviction for the included offence of assault causing bodily harm on the basis of facts that do not include a stabbing at the hand of Mr. Andersen should be entered. The conviction for breach of probation is affirmed. A sentence of eighteen months for the assault, followed by probation for three years and a consecutive sentence of two months for the breach of probation conviction should be imposed. Cases cited:

Welsh J.A.: R. v. Williams, 2003 SCC 41, [2003] 2 S.C.R. 134 R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732 R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3 R. v. Rodgerson, 2015 SCC 38, [2015] 2 S.C.R. 760 R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433 R. v. Bennett, 2017 NLCA 41 R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089 R. v. Poker, 2006 NLTD 154 , 2006 NLTD(G) 154, 261 Nfld. & P.E.I.R. 1 R. v. English, 2012 NLCA 64, 328 Nfld. & P.E.I.R. 14 R. v. Goodyear, 2013 NLTD(G) 71, 337 Nfld. & P.E.I.R. 324 R. v. O’Flaherty (2016), 379 Nfld. & P.E.I.R. 161 (Pv. Ct.) Green J.A. (dissenting): R. v.

Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732 R. v. Rodgerson, 2015 SCC 38, [2015] 2 S.C.R. 760 R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3 R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869 R. v. Williams, 2003 SCC 41, [2003] 2 S.C.R. 134 R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716 R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823 Counsel: Conor J. Mullin, for the appellant; Arnold W. Hussey Q.C., for the respondent. This appeal was heard on June 7, 2018 before Green, Welsh and Barry JJ.A.

The following judgment was delivered on July 20, 2018 by Welsh J.A., concurred in by Barry J.A., with separate dissenting reasons byGreen J.A. ______________________________________________________________ Welsh J.A.: [1] On May 29, 2017, Darren Andersen was convicted of aggravated assault and breach of probation. He was sentenced to fouryears in prison for the aggravated assault, in which the complainant was stabbed in the back with a steak knife, and two months,consecutive, for the breach of probation for failure to keep the peace and be of good behaviour. [2] Mr.

Andersen appeals his conviction for aggravated assault on the grounds that the trial judge misapprehended the facts, madefindings of fact without an evidentiary basis, and failed to give sufficient reasons for his decision. He appeals his sentence on the grounds that the judgefailed to give proper consideration to his aboriginal status and his personal circumstances. BACKGROUND

[3] In summarizing the factual background, the trial judge wrote (2017 NLPC 1716A00959): [3] The accused and the complainant were living together as a couple. On September 11, 2016, they went their separate ways. Thecomplainant was drinking during the day, estimating her consumption over the day and into the evening at a dozen beers. She arrivedhome late at night to find the house empty. She was on the couch downstairs when the accused came home. He came in the house. Hegot upset and started hitting her.

She said that he was upset for two reasons: first, she had been out late, without him, and, second, shewas after drinking his beer. [4] During the initial confrontation, she said to the accused, “Go ahead and hit me, that’s all you want to do.” He then struck her headwith his hands. [5] The complainant grew tired of being hit, and so she went upstairs. Before going upstairs, she went and got a steak knife from thekitchen, and she brought the knife upstairs with her.

She said that she brought the knife upstairs with her because she figured that theaccused would come upstairs and keep hitting her. [6] As it turned out, she was right. The accused came upstairs, and came into the spare room, where she was lying on a mattress onthe floor. He was berating her, accusing her of infidelity. The light was off, and it was dark in the room. He started hitting her again. He hit her head, and it was bruised the next day. She grabbed the knife, and tried to hit the accused with it.

She said that he was stillhitting her when she “poked” him with the knife a couple of times, and then he took the knife from her. [7] Then, she said, she felt a sharp pain in her back. She was bleeding from a wound to her back. The accused took her out of thehouse, and to the residence of Tom Okkuatsiak [to seek medical assistance]. He has a telephone, which they could use to call the medics. … [10] At the police station, at the request of the accused, his hands and face were photographed. He had no visible cuts to his hands, andsome minor superficial scratches to his nose, cheek, bicep and leg.

All of these cuts or scratches were on his left side. There is no directevidence as to how or when these cuts or scratches were caused. They may have been caused by the complainant “poking” him with theknife. It is clear, however, that he had no defensive, or other, wounds to his hands. [4] The judge concluded that Mr. Andersen had stabbed the complainant in her lower back, that he had not acted in self-defence,and that it was not an accident.

ISSUES [5] At issue is whether the trial judge erred: (1) by misapprehending the evidence or failing to give sufficient reasons for concluding that the elements of the offence of aggravatedassault had been proven beyond a reasonable doubt; (2) by concluding that neither self-defence nor accident applied in the circumstances; (3) with respect to sentence, by failing to give proper consideration to Mr. Andersen’s aboriginal status and his personal circumstances. ANALYSIS [6]

Section 268 of the Criminal Code provides for the offence of aggravated assault:

(1) Every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant.

(2) Every one who commits an aggravated assault is guilty of an indictable offence and liable to imprisonment for a term not exceedingfourteen years. [7] The mental element of the offence is described by Binnie J., for the Court, in R. v. Williams, 2003 SCC 41, [2003] 2 S.C.R. 134: [22] The mens rea for aggravated assault is the mens rea for assault (intent to apply force intentionally or recklessly or being willfullyblind to the fact that the victim does not consent) plus objective foresight of the risk of bodily harm … .

Appeal Against Conviction Misapprehension of Evidence [8] Pursuant to section 686(1)(a)(iii) of the Criminal Code, an appeal may be allowed where the Court is of the opinion that “on anyground there was a miscarriage of justice”. The test for applying this provision based on a misapprehension of the evidence is discussedin R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732. Binnie J., for the Court, explained: [2] Morrissey [ (SCC), [1993] 2 S.C.R. 226], it should be emphasized, describes a stringent standard. Themisapprehension of the evidence must go to the substance rather than to the detail.

It must be material rather than peripheral to thereasoning 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”. [9] Mr. Andersen submits that the judge erred by failing to address all the evidence, particularly the uncertainties in the

complainant’s testimony. The complainant gave evidence that Mr. Andersen took the knife from her, but on cross-examination she also said that she could not say for certain whether Mr. Andersen took the knife or whether it was knocked out of her hand or she dropped it. She was also uncertain about the position of her body when she was stabbed. Mr.

Andersen submits that some of the scenarios in the complainant’s testimony, such as that she was lying on her back and he was helping her up, would have made it impossible for him to have stabbed her. [ 10 ] In considering the testimony, the judge was aware of the complainant’s state of intoxication, that it was dark in the room, that Mr. Andersen had been and was assaulting the complainant when she was stabbed, and that, if Mr. Andersen did not know that the complainant had a knife, he at least knew she had a sharp object that she was “poking” him with.

There was no suggestion that she was cut, rather than stabbed with the knife. It was open to the judge to draw inferences from all the evidence, including the nature of the wound and the surrounding circumstances, in assessing whether Mr. Andersen had stabbed the complainant. [ 11 ] There is a distinction between misapprehending the evidence and accepting certain of the evidence while dismissing other evidence that may be inconsistent with what the judge accepts.

Where there are inconsistencies and uncertainties, it is the duty of the judge to consider the evidence as a whole in order to determine whether the offence has been proven beyond a reasonable doubt. In this case, there was evidence on which the judge could conclude that Mr. Andersen had stabbed the complainant in the back. The submission that the judge misapprehended the evidence is without foundation. Sufficiency of Reasons [ 12 ] The test for whether a trial judge has provided sufficient reasons for a decision is based on a functional, substantive approach. In R. v.

R.E.M. , 2008 SCC 51 , [2008] 3 S.C.R. 3 , McLachlin C.J.C., for the Court, explained: [15] … The reasons must be sufficient to fulfill their functions of explaining why the accused was convicted or acquitted, providing public accountability and permitting effective appellate review. [16] It follows that courts of appeal considering the sufficiency of reasons should read them as a whole, in the context of the evidence, the arguments and the trial, with an appreciation of the purposes or functions for which they are delivered … . [17] These purposes are fulfilled if the reasons, read in context, show why the judge decided as he or she did.

The object is not to show how the judge arrived at his or her conclusion, in a “watch me think” fashion. It is rather to show why the judge made that decision. … [Italics in the original.] [ 13 ] Following a more detailed discussion of the relevant principles, McLachlin C.J.C. summarized the role of the court on appeal: [55] The appellate court, proceeding with deference, must ask itself whether the reasons, considered with the evidentiary record, the submissions of counsel and the live issues at the trial, reveals the basis for the verdict reached. It must look at the reasons in their entire context.

It must ask itself whether, viewed thus, the trial judge appears to have seized the substance of the critical issues on the trial. If the evidence is contradictory or confusing, the appellate court should ask whether the trial judge appears to have recognized and dealt with the contradictions. If there is a difficult or novel question of law, it should ask itself if the trial judge has recognized and dealt with that issue. [ 14 ] In this case, it was necessary for the trial judge to address the question of self-defence, given that the complainant had taken the knife to bed with her.

Having discussed the relevant law, the judge rejected that defence, explaining: [27] … [Mr. Andersen] is bigger than [the complainant], stronger than her, and has been convicted in the past of assaulting her. … [28] The accused was entitled to use proportionate force to disarm the complainant when she tried to poke him with the knife. This he did. The more important thing is what he did once he had disarmed her.

Had the accused gotten up off of the complainant and walked away from her, he would have only committed the assaults (or assaults causing bodily harm) by punching her downstairs in the kitchen and then upstairs in the bedroom. Once he had taken the knife from her, there was no longer any justification for his use of force towards her. She was no longer any threat to him. [ 15 ] This explanation demonstrates that the trial judge recognized that self-defence was a live issue and gives reasons why he rejected the defence. It was clear from the evidence that, whether Mr.

Andersen took the knife from the complainant, or he knocked it out of her hand or she dropped it, the judge was satisfied that the complainant had lost control of the knife and was no longer a threat to Mr. Andersen. The reasons given were sufficient to explain why the judge rejected Mr. Andersen’s submission that he had acted in self- defence. [ 16 ] Mr. Andersen further submits that, in any event, the stabbing was an accident and that the trial judge failed to give sufficient reasons for rejecting that submission. In R. v.

Rodgerson , 2015 SCC 38 , [2015] 2 S.C.R. 760 , Moldaver J., for the Court, referenced accident in two ways – as a defence, that is, “involuntary act” accident, and accident going to mens rea . [ 17 ] In that case, Mr. Rodgerson had testified that Ms. Young had attacked him with a knife, that he had used physical force only to protect himself, that she died during the course of their struggle, and that he did not intend to cause her death. Moldaver J., for the Court, concluded: [48] To begin, there was no basis for providing instruction on the defence of “involuntary act” accident. While Mr.

Rodgerson did testify that Ms. Young’s death was an accident, this was a case of accident going to mens rea – i.e., Mr. Rodgerson’s claim that he did not intend to kill Ms. Young. [ 18 ] In the case before this Court, at trial, counsel for Mr. Andersen submitted: But, your Honour, I think the evidence makes quite clear that how that wound was suffered was an accident, and as my friend has said in

the case of R. v. Barnes , Judge Gorman had – it had occasion to discuss the defence of an accident largely quoting from one of his prior decisions; the case of R. v. Whitehorne and in that case he describes an accident as “a mishap or untoward event not expected or designed.” He goes on to directly quote from the case saying “When expected forces go awry, the result is an accident.” And, as my friend has said, accident is not an affirmative defence, rather it is a denial of the necessary mens rea and as we – as in our Defence submissions, the mens rea is not made out here.

The wound suffered by [the complainant] was caused by accident. [ 19 ] While counsel’s position is uncertain from this submission, given that the knife was involved in the assault, the circumstances are such that this clearly was not a case of “involuntary act” accident.

The question is whether the judge gave sufficient reasons for concluding that the necessary mens rea element of the offence had been proven, that is, that the stabbing was not an accident. [ 20 ] In determining whether the reasons are sufficient, the submissions of counsel, in addition to the evidentiary record and the live issues at trial, are properly considered. Those submissions are especially relevant in this case in assessing the factors taken into account by the judge. In particular, counsel for Mr. Andersen submitted at trial: … [Mr.

Andersen] did make an utterance at the scene when he was asked what happened and as Constable Sturge admitted on cross- examination what he said was “I stabbed her somehow.” Now, in her examination, Constable Sturge did not agree with me when I put to her that by saying “somehow” that this was a denial of intentionality, but I think that the qualifier “somehow” can only be taken by necessary inference as a denial of intentionality as Mr. Andersen had no idea how that knife wound up in her back. Constable Charlton, although he didn’t have it noted in his notes, said from memory that he believed Mr.

Andersen had said something along the lines of he stabbed [the complainant] in the back; however, when I put to him on cross-examination that is it possible, he said – what he said was “I stabbed her somehow”, Constable Charlton agreed that was possible. And when I put it to him further that is it – if it was possible that Mr. Andersen said “We got into an argument, things escalated, there was a knife and somehow it ended up in her back”, Constable Charlton, again, agreed that that was possible.

Counsel also made detailed submissions regarding the inconsistencies in the complainant’s testimony as to how she was stabbed, including explanations as to why “it would have been physically impossible for Mr. Andersen to have stabbed her in the back”. [ 21 ] Having heard all the evidence together with comprehensive submissions from counsel, the trial judge was satisfied that “the accused used the knife against the complainant” (paragraph 29). In addition to the bruising to the complainant’s head resulting from Mr.

Andersen’s blows, the judge stated: [21] But the assault, whether common assault or assault causing bodily harm, downstairs is only a prelude to the events upstairs in the bedroom. There, the accused straddled the complainant, and punched her. She responded by trying to “poke” him with the knife. He took the knife from her, and stabbed her in the back with it. There is no other plausible evidence ( sic ) about how she was stabbed, and the accused said that [the complainant] did not stab herself in the back. … [ 22 ] Mr.

Andersen submits that the reasons were insufficient because the judge erred by concluding that Mr. Andersen had taken the knife from the complainant despite the uncertainties expressed by the complainant as to whether Mr. Andersen had taken the knife from her, or whether she had dropped it or it had been knocked out of her hand. This submission is not persuasive. [ 23 ] Having heard the testimony and counsels’ submissions, the judge was aware of the uncertainties in the complainant’s evidence. While it may have been preferable for the judge to provide more detail regarding why he accepted that Mr.

Andersen had taken the knife, in the end, it did not matter given his conclusion that the only plausible explanation for the complainant’s wound was that Mr. Andersen had stabbed her. Whether Mr. Andersen had taken the knife or the complainant had dropped it or had it knocked out of her hand, the judge was satisfied that the only plausible conclusion in all the circumstances was that Mr.

Andersen had control of the knife at the critical time and that he had stabbed the complainant in the back. [ 24 ] In any event, as discussed above in Williams , the mens rea for aggravated assault is satisfied if the assailant intends to apply force either intentionally or recklessly. It was unnecessary for the judge to specify whether Mr. Andersen was reckless in applying force to the complainant with the result that she was stabbed with the knife or whether he intended to stab her. On the facts, it is clear that Mr. Andersen began assaulting the complainant before she went to bed.

He continued the assault in the bed. When the complainant tried to protect herself by “poking” him with the knife, Mr. Andersen knew that there was a sharp object in play. Nonetheless, he continued the assault. There is no indication that the complainant was doing anything other than trying to defend herself. [ 25 ] This amounted to recklessness by Mr. Andersen that satisfies the mens rea element of the offence even if Mr. Andersen did not, as the trial judge found, intentionally stab the complainant. This was not an accident that would negate the mens rea of the offence.

Summary [ 26 ] The trial judge did not err by misapprehending the evidence. There was evidence accepted by the judge establishing the elements of the offence of aggravated assault. Further, read in the entire context of the trial, the judge gave sufficient reasons for concluding that the elements of the offence had been proven beyond a reasonable doubt and for concluding that neither self-defence nor accident applied in the circumstances. Appeal Against Sentence [ 27 ] Mr. Andersen submits that the trial judge erred by failing to take into account his aboriginal status and his personal circumstances in determining an appropriate sentence.

Section 718.2 (

e) of the Criminal Code , which requires a court to take an offender’s aboriginal status into consideration when imposing sentence, is discussed in R. v. Ipeelee , 2012 SCC 13 , [2012] 1 S.C.R. 433 , at paragraphs 56 to 87 . LeBel J., for the majority, emphasized:

[60] … Counsel have a duty to bring that individualized information [regarding the offender’s aboriginal heritage or connection] beforethe court in every case, unless the offender expressly waives his right to have it considered. … … [87] … Therefore, application of the Gladue principles is required in every case involving an Aboriginal offender, … and a failure to doso constitutes an error justifying appellate intervention. See also: R. v. Bennett, 2017 NLCA 41, at paragraphs 23 to 27. [28] In this case, information regarding Mr.

Andersen’s aboriginal status is contained in the pre-sentence report, at page 10: Mr. Darren Andersen identifies himself as Inuk and a beneficiary of the Nunatsiavut Government. The Department of Health and SocialDevelopment Branch of the Nunatsiavut Government administers the Non-Insured Health Benefits Program on behalf of the Inuit andAboriginal Health Branch of Health Canada. This program pays for some or all of the cost of medical, dental and pharmacy services thatare not covered by other health plans for eligible Inuit. Being Inuit, Mr.

Darren Andersen is able to avail of the services of front line workers at community offices, the nearest of which for himwould be in Nain, NL. Staff at these offices can do a need’s assessment and decide what services if any he might require and begin the funding and referralprocess. Mr. Darren Andersen reported that while he is aware of the services available to him, he is not actively involved in any at present. Hereported that the department of Child, Youth and Family Services referred himself and [the complainant] to the Charles J.

AndrewTreatment Center in Sheshatshiu last year during which time they participated in addictions counselling from February 29, 2016 to April14, 2016. Mr. Darren Andersen informed that he would participate in programs required at the discretion of the court. [29] The trial judge, after referencing the requirements of

section 718.2(e), commented in the sentencing decision: [6] … It is important to note here that s. 718.2(

e) should not be taken as requiring an automatic reduction of a sentence, or a remissionof a warranted period of incarceration, simply because the offender is Aboriginal. See R. v. Gladue, (SCC), [1999] 1S.C.R. 688, at para. 88. [30] In my view, the trial judge’s reference to paragraph 88 in Gladue is taken out of context and ignores subsequent Supreme Courtof Canada jurisprudence such as the decision in Ipeelee.

In Gladue, at paragraph 88, the Court recognized that all relevant factors mustbe taken into account when determining an appropriate sentence, but at the conclusion of the paragraph, emphasized the importance ofaboriginal status as a factor: [88] … The provision is a direction to sentencing judges to consider certain unique circumstances pertaining to aboriginal offenders as apart of the task of weighing the multitude of factors which must be taken into account in striving to impose a fit sentence. It cannot beforgotten that s. 718.2(

e) must be considered in the context of that

section read as a whole and in the context of s. 718, s. 718.1, and theoverall scheme of

Part XXIII. … It may not always mean a lower sentence for an aboriginal offender. The sentence imposed willdepend upon all the factors which must be taken into account in each individual case. The weight to be given to these various factorswill vary in each case. At the same time, it must in every case be recalled that the direction to consider these unique circumstances flowsfrom the staggering injustice currently experienced by aboriginal peoples with the criminal justice system.

The provision reflects thereality that many aboriginal people are alienated from this system which frequently does not reflect their needs or their understanding ofan appropriate sentence. [Underlining in original.] [31] In this case, having made the above statement that aboriginal status does not result in the automatic reduction of a sentence, thetrial judge proceeded to focus on the seriousness of the offence and the offender’s degree of responsibility as being critical to thesentencing process, without consideration of the discussion of Mr.

Andersen’s aboriginal status in the pre-sentence report and how hisaboriginal status may be relevant to the analysis. This resulted in error which, as discussed in Ipeelee, justifies appellate intervention. The question, then, is whether the error had an impact on the sentence (R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paragraph44). [32] In imposing a sentence of four years imprisonment for aggravated assault, the judge considered that Mr. Andersen had a criminalrecord with “multiple prior convictions for violent crimes” (paragraph 18 of the sentencing decision).

In particular, the judge referred tothe following convictions and sentences: assault with a weapon (September 2007), 60 days, intermittent; assault causing bodily harm(August 2013), 90 days, intermittent; assault (December 2013), thirty days; forcible confinement, uttering a threat and assault(September 2015), two months, one month and one month, respectively. [33] These convictions indicate a propensity by Mr. Andersen to commit assaults. That conclusion is consistent with the evidence inthis case that, on the night in question, before the complainant was stabbed, Mr. Andersen had hit and punched her.

The complainanttestified that she had said to the accused, “Go ahead and hit me, that’s all you want to do.” Mr. Andersen, in fact, continued the assaultwith his fists after the complainant had gone to bed. [34] That said, the sentences imposed for the previous convictions ranged from one to three months in prison. These sentencessuggest that Mr. Andersen’s aboriginal status was taken into account and that the assaults did not, as happened in this case, result inserious injury to the victim. [35] In addressing the range of sentence, the trial judge referred to the following decisions from this jurisdiction. 1.

In R. v. Poker, 2006 NLTD 154 , 2006 NLTD(G) 154, 261 Nfld. & P.E.I.R. 1, a twenty-one year old Innu man was sentenced

to four years imprisonment for aggravated assault in which, while on probation, he “repeatedly stabbed, slashed and kicked his wife in an alcohol-fueled domestic argument, causing very serious injuries to her, including slashing her throat” (paragraph 10 of the sentencing decision). 2. In R. v. English , 2012 NLCA 64 , 328 Nfld. & P.E.I.R. 14 , this Court confirmed a sentence of eight months imprisonment for aggravated assault when Mr. English had bitten part of a man’s ear off during a fight in a bar. 3. In R. v. Goodyear , 2013 NLTD(G) 71 , 337 Nfld. & P.E.I.R. 324 , Ms.

Goodyear was sentenced to eighteen months imprisonment for aggravated assault when she stabbed her common law partner with a steak knife, severing an artery. The judge was satisfied that she had good prospects for rehabilitation. 4. In R. v. O’Flaherty (2016) 379 Nfld. & P.E.I.R. 161 (Pv. Ct.) , Ms. O’Flaherty was sentenced to four years imprisonment for aggravated assault when she had slashed the throat of her common law partner. The trial judge commented that she had “purposely placed [the victim] in grave danger” (paragraph 79). [ 36 ] Having set out case law regarding the range of sentence and Mr.

Andersen’s prior convictions, the judge concluded, in the sentencing decision: [20] Given the aggravating factors, including the breach of trust arising from the spousal relationship with the victim of the stabbing and his 6 prior convictions for violent offences, a reasonable sentence for the aggravated assault is four years. [ 37 ] Counsel for the Crown, while conceding that the trial judge failed to properly address Mr.

Andersen’s aboriginal status and that he made no reference to the pre-sentence report, submits that these omissions had no impact on an appropriate sentence. [ 38 ] Defence counsel submits that the sentence should be reduced to two years imprisonment. While recognizing that Mr. Andersen’s criminal record and the domestic nature of the assault are aggravating factors, counsel submits that, if Mr. Andersen’s aboriginal background is properly taken into account, in the circumstances, a sentence of two years imprisonment would be appropriate. [ 39 ] I am satisfied that the trial judge’s failure to consider Mr.

Andersen’s aboriginal status was an error that had an impact on the sentence for aggravated assault, and that the sentence must be varied. [ 40 ] There are many factors to be considered. Clearly, Mr. Andersen’s criminal record and the domestic nature of the assault are aggravating factors. Further, this assault was more serious than those previously committed due to the stab wound suffered by the complainant. Accordingly, a significantly harsher sentence than the one to three months imposed for prior assaults is justified. [ 41 ] While it does not excuse Mr.

Andersen’s conduct, he was not the one who brought the knife into the bedroom and introduced it into the altercation. That said, the complainant brought the knife to bed with the intention of stopping Mr. Andersen’s continuing assault against her. The presence of the knife brought heightened risk that the level of violence would be increased. [ 42 ] Mr. Andersen, a thirty-two year old Inuk, had been offered and was aware of programs available to the Inuit of Labrador to address mental health issues such as alcohol addiction and a propensity to violence.

He availed only of approximately six weeks of addictions counselling in March and April of 2016. [ 43 ] Regarding Mr. Andersen’s aboriginal status, in his factum, counsel referenced systemic factors such as “lower levels of educational attainment, higher levels of unemployment, higher levels of substance abuse, higher rates of suicide, higher rates of domestic violence and higher levels of involvement with both the criminal justice system and child welfare system”.

The Court is required to be conscious of these broad, systemic factors when determining an appropriate sentence for the particular individual. [ 44 ] By way of background the pre-sentence report indicates that Mr. Andersen resided with his maternal grandparents from when he was six years old. He reported that they provided a stable, loving and supportive home environment. His mother committed suicide when he was eight. He completed grade 12 and has taken post-secondary training in trades. However, he has been unsuccessful in retaining employment. [ 45 ] Mr.

Andersen admits he is an alcoholic who began drinking at the age of twelve, becoming a regular drinker by age sixteen. He would drink to get drunk and often experienced blackouts. He has attempted suicide several times. [ 46 ] Mr. Andersen had an intermittent common-law relationship with the complainant for approximately seven years before commission of the aggravated assault. He expressed remorse for his actions. While incarcerated awaiting sentence he began mental health and addictions counselling. [ 47 ] The trial judge did not address the potential for rehabilitation.

This is a difficult factor to assess and is not directly addressed in the pre-sentence report. Despite his earlier convictions and sentences, Mr. Andersen continued to assault the complainant. He is no longer a youthful offender. However, he told the writer of the pre-sentence report that, despite his history, “he has had a lot of time to think about how to become a better citizen and what he needs to do to achieve this goal” (page 11). [ 48 ] Taking all the above factors into account and considering Mr.

Andersen’s prior convictions and sentences, relevant case law, the seriousness of the aggravated assault and Mr. Andersen’s moral culpability, I am satisfied that a sentence of two years less a day imprisonment for the aggravated assault followed by three years probation with conditions is an appropriate sentence. In the circumstances, a lengthy period of probation with conditions, particularly requiring Mr.

Andersen to participate in rehabilitative programs available to him as a member of the Inuit of Labrador, is an important component of an appropriate sentence for this aboriginal offender. [ 49 ] Regarding the breach of probation for failure to keep the peace and be of good behaviour, to achieve the appropriate sentence including probation, I would vary the sentence of two months imprisonment by ordering it to be served concurrently.

[ 50 ] In the result, I would vary Mr. Andersen’s sentence by imposing sentences of two years less a day imprisonment for the aggravated assault and two months, concurrent, for the breach of probation, followed by three years probation with conditions. As ordered by the trial judge, the total sentence will be reduced by 543 days for time served while on remand. The ancillary orders made by the trial judge are not under appeal and are affirmed. [ 51 ] Finally, although not relevant for purposes of this appeal, at the hearing, Mr.

Andersen advised the Court that, while in prison, he has been involved in programs and activities that will assist him in dealing with his alcohol addiction and in making a positive connection with and contribution to his aboriginal heritage. These are encouraging indications that Mr. Andersen is on the road to rehabilitation.

SUMMARY AND DISPOSITION [ 52 ] The trial judge did not err by misapprehending the evidence. There was evidence accepted by the judge establishing the elements of the offence of aggravated assault. The judge gave sufficient reasons for concluding that the elements of the offence had been proven beyond a reasonable doubt and for concluding that neither self-defence nor accident applied in the circumstances. [ 53 ] The trial judge’s failure to consider Mr. Andersen’s aboriginal status was an error that had an impact on the sentence.

I would vary that sentence by imposing a sentence of two years less a day imprisonment for the aggravated assault and two months, concurrent, for the breach of probation, followed by three years probation with conditions. As ordered by the trial judge, the total sentence will be reduced by 543 days for time served while on remand. The ancillary orders made by the trial judge are not under appeal and are affirmed. [ 54 ] Accordingly, I would dismiss the appeal against conviction. I would allow the appeal against sentence and vary the sentence as set out above.

Conditions for probation shall be determined, without delay, in consultation with counsel. Green J.A. (Dissenting): [ 55 ] I disagree with the reasons of my colleagues for dismissing the appeal against conviction. I would allow the appeal from the conviction for aggravated assault and substitute a conviction for assault causing bodily harm, but I would affirm the conviction for breach of probation. I would impose a sentence of eighteen months for the assault, followed by probation for three years and affirm the consecutive sentence of two months for the breach of probation conviction.

The Centrality of the Issues of Possession of the Knife and the Stabbing [ 56 ] The keys to the conviction of Mr. Andersen for aggravated assault were the twin findings of fact by the trial judge that Mr. Andersen took the knife from the complainant and stabbed her in the back. He summarized his findings of fact succinctly: [16] … The accused came upstairs, got on top of her, and punched her again. She got the knife, and swung it at him. He took it from her. He stabbed her in the back with the knife. … [21] He took the knife from her, and stabbed her in the back with it.

There is no other plausible evidence about how she was stabbed, and the accused said that she did not stab herself in the back. [ 57 ] The case for the Crown was presented on the basis that Mr. Andersen had something in his hand which he had taken from the complainant, and that he must have known either that the object was a knife or was something dangerous that could have been used as a weapon. He, therefore, either intended to wound the complainant or was reckless as to whether bodily harm would result (Transcript, April 27, 2017, at 178-179).

Either version could have resulted in conviction. [ 58 ] On the reasoning of the trial judge, without the findings that Mr. Andersen took the knife (or some dangerous object) from her and subsequently stabbed her in the back, there was no basis for conviction of aggravated assault. Both of the Crown’s pathways to conviction required Mr.

Andersen to have taken something from the complainant and used it either intentionally or recklessly in causing the wound to her back. [ 59 ] Clearly, there was a basis for finding a common assault based on the earlier altercation downstairs and the punching upstairs, and also for assault causing bodily harm, as explained later, based on the bruising to the complainant’s head. But the finding of aggravated assault depended on Mr. Andersen inflicting a wound on the complainant by stabbing her in the back with the knife he took from her. [ 60 ] Mr. Andersen did not testify.

The trial judge concluded that the cautioned statement Mr. Andersen gave to the police, and which was admitted in evidence by consent, was so full of equivocation that it was “of limited, if any, utility in the fact-finding exercise” and was “due no weight” (Decision on Conviction, at para. 15). In it, however, Mr. Andersen did state on several occasions that he was not sure that the complainant had a knife until after she screamed following the wounding. [ 61 ] The evidence with respect to the crucial findings therefore had to come from the complainant who was testifying about events

that occurred in a darkened room after a time when she had consumed a dozen beers. A review of the record reveals that her evidence on the crucial events was vague, uncertain, contradictory and punctuated with assertions of lack of memory.

I mention this not for the purpose of suggesting that the verdict was unsafe based on problems with the complainant’s credibility but to point out that the effect of her evidence, given both on direct and on cross-examination, was not, in my view, considered by the trial judge as a whole, with the result that skewed inferences were drawn that could not be supported on any version of what the Crown in fact was asserting. [ 62 ] In summarizing the evidence, the trial judge said: “She said that he was still hitting her when she ‘poked’ him with the knife a couple of times, and then he took the knife from her (para. 6).

The evidentiary context in the complainant’s direct evidence was the following: A. … And then he starts throwing some more punches again and I gets tired of it so I just takes that knife from on side of the bed and then tries to hit him with it and somehow it ends up out of my hand . And – Q. Alright, I’ll stop you there. So you recover the knife. A. Um hm. … A. I poked Darren with it a few times and then he took it away from me. (Transcript, February 21, 2017, at 51) Q. So you’re poking it at him and you’re not sure you made any contact with him. You said that he took it from you. A. Yeah Q.

Can you tell the Court how that happened? A. I don’t know . (Transcript, February 21, 2017, at 52) Q. So, after you have the knife and you’re poking to [sic] Mr. Andersen, what’s the next thing you remember happening? A. I just remember having sharp pain going in through my back and then I tells him to stop. Q. Okay. So let’s talk about while you’re poking at Mr. Andersen. While you’re poking at Mr. Andersen, what is Mr. Andersen doing? A. He’s still punching me. Q. When do you realize that you don’t have the knife anymore? A. I don’t know . (Transcript, February 21, 2017, at 56) Q. How did you get that cut? A.

Darren. … Q. So, Ms. Semigak, what you’ve described so far you’re lying on the bed on your back and Mr. Andersen is on top of you while you’re poking at him with a knife. That wound obviously you’ve just indicated is a wound in your back. So does the position of yourself and Mr. Andersen change during this incident, whether before or after you lost the knife, or you – throughout all of this, are you on your back, or does your position and Mr. Andersen’s position change in the bed? A. It just changes. Q. Okay. Can you tell the --- tell me how it changed. A. How it changed? Q. Yeah.

So, at the point that you’ve described so far, you’re on your back, Mr. Andersen is on top of you punching you, you take the knife and you’re poking it at him. So, what changes with your positions on the bed? A. I don’t know . Q. But you’ve said the positions did change. Maybe we can work backward. So, Ms. Semigak, when you feel the pain in your back, how are you lying on the bed? A. I was trying to get up. Q. You were trying –

A. Darren was trying to help me get up. … Q. … but right at the time when you feel the pain in your back, how are you on the bed? A. I don’t know; kinda – sorta sitting down I guess. (Transcript, February 21, 2017, at 58-59) Q. So, where is he relative to you? Is he in front of you, to your side, is he behind you, on your other side? A. He’s in front of me . (Transcript, February 21, 2017, at 60) Q. So where were his hands on your body? A. Under my underarms I guess. Q. Under your underarms. And then at this point you feel the pain; is that right? A. Um hm. … Q. Ms. Semigak, you’ve said that Mr.

Andersen took the knife from you. So does that mean that Mr. Andersen had the knife? I just want to be clear about what you mean by him taking it from you. A. I don’t know how he took it from my hand . Everything just happened really fast. Q. But I want to be clear about what you mean by took it out of your hand. Do you mean he took it out of your hand and he had it, or he took it out of your hand as in he got rid of it and it went away? A. I can’t answer that question. I don’t remember . (Transcript, February 21, 2017, at 61) Q. … After he took the knife from you, where did Mr. Andersen have the knife? A.

I don’t know . (Transcript, February 22, 2017, at 77) (Underlining added throughout.) [ 63 ] It can be seen that the prosecutor struggled to determine what the complainant meant by her conclusory statement that Mr. Andersen took the knife from her. He got nowhere. She was incapable of explaining how the knife got from her hand and into Mr. Andersen’s possession. Was it just an assumption on her part that Mr. Andersen took the knife from her because at some point she lost possession of it?

Or did she have an actual memory that possession transferred from one to the other? [ 64 ] Furthermore, the complainant never stated that Mr. Andersen stabbed her. The closest she came to that was her answer “Darren” in response to the question “How did you get that cut?” But that answer is itself equivocal; it does not necessarily mean that Darren wielded the knife as part of a stabbing.

It could equally have meant that the cut would not have occurred had Darren not engaged in the altercation with her on the bed. [ 65 ] On cross-examination, these questions were explored further and it was raised as to whether Mr. Andersen ever had possession of the knife at all. Q. … And he’s still on top of you at this point. A. Yeah. Q. Okay. And you were lying down flat on your back? A. Um hm. Q. Okay. Was the back of your head on the mattress? A. Yeah. Q. Okay. And this whole time the light in your bedroom is off. A. Um hm.

Q. So you couldn’t see what you were doing . A. I couldn’t see . … Q. And you said that at some point Darren took the knife away from you. A. Yeah. Q. Do you know – how do you know that he took it away from you? A. I don’t know. Q. Okay. Do you remember him actually taking it out of your hand? A. No. Q. Do you remember that you had it and then you didn’t have it at another point? A. I can’t remember . Q. If – A. I can’t remember much being on the bed. Q. Okay. Is it possible that you just dropped the knife or it got knocked out of your hand? A.

Could be . (Transcript, February 22, 2017, at 92-93) Q. … show the Court how you were lying down and then how you moved to sitting up? A. Well, I was laying on my back with my legs straight. Q. Okay. A. And I – Darren was helping me get up slowly. Q. He was helping you get up slowly. A. Yeah. Q. Was this before or after you felt the knife in your back? A. After. Q. It was after, okay. So, when you were lying down flat, you didn’t feel the knife in your back. A. When I was laying on my back, I felt it . Q. You felt it. So yesterday you said you felt it when he tried to sit up.

Did – do you – is it -- did you feel it when you tried to sit up or when you were lying down? A. I don’t remember. Q. Okay. When you felt that – the knife go in your back, where was Darren? A. He was in front of me, I guess . Q. He was in front of you. A. Yes. Q. Was he lying down, was he sitting up, was he standing up? A. He was standing. Q. He was standing and you were – A. I think. Q. And you were lying down.

A. No. He was helping me get up. … Q. … And you said yesterday that when Darren was helping you to stand up that he had his hands in your armpits. A. Something like that. Q. Something – or under your arms I think is what you said; right? A. Yeah. Q. Okay. Christine, when you felt the knife go in your back, did Darren have it in his hand? A. I can’t remember . (Transcript, February 22, 2017, at 94-96) Q. So, Christine, … – after you felt the knife go in your back, you said you screamed. A. Yes, I screamed, but I forgot what I said. Q. Okay. And that’s when Darren turned the lights on. A. Yes, I think so. Q. Okay.

So up until this point the lights were off. A. Um hm. Q. So you couldn’t see, okay. And, once Darren checked your back and saw that it was bleeding, what was his reaction? A. Like he was shocked. … Q. Was he worried about you? A. Very. (Transcript, February 22, 2017, at 98) Q. … So, just to confirm, you said when you felt the knife go in your back you were lying down flat on your back; is that right? A. Yeah. Q. And Darren was standing up. A. No, he was on the bed with me. … Q. But you were lying flat on your back. A.

Yeah. (Transcript, February 22, 2017, at 101) (Underlining added throughout) Misapprehension of the Evidence [ 66 ] In his discussion of the evidence leading to the twin findings of fact that Mr. Andersen “took the knife” from the complainant and “stabbed” her in the back, the trial judge only referred to the following evidence from the complainant: [6] … She grabbed the knife, and tried to hit the accused with it.

She said that he was still hitting her when she “poked” him with the knife a couple of times, and then he took the knife from her. [7] Then, she said, she felt a sharp pain in her back… … [11] … During cross-examination, the complainant was asked about her position in the bed, and she said she was trying to get up, and that she was “sort of siting down, I guess”. She was asked whether the accused had his hands under her arms, and said, “I guess.” [ 67 ] There was no reference to the fact that the complainant could not explain how, in the darkened room, the knife got from her hand

into Mr. Andersen’s possession, nor that she acknowledged that she in fact did not know that he took it from her at all and had no recollection of him taking it from her hand, nor that she acknowledged that it could have been that she just dropped the knife or that it was knocked from her hand, nor that when she was in a sitting position and Mr. Andersen was trying to help her up, the knife puncture had already occurred, nor that she said she was lying flat on her back when she felt the knife enter her body and that Mr.

Andersen was in front of her at that time or at her side. [ 68 ] It appears from the reasons given by the trial judge that his finding that Mr. Andersen took the knife from her was based solely on her statement early in direct examination that “he took it away from me.” This was done without any reference to the qualifications and explanations in the remainder of her evidence both on direct and on cross. The complainant offered no experiential observation, just conjecture, for concluding that Mr. Andersen must have taken possession of the knife as opposed to it being dropped or knocked out of her hand.

Having accepted that Mr. Andersen had taken possession of the knife, it would also appear that the judge drew the inference that because Mr. Andersen had possession of the knife, he must have stabbed her. [ 69 ] Counsel for Mr. Andersen submitted both at trial and on appeal that given the complainant’s evidence that she was flat on her back with Mr. Andersen in front of her or at her side when she felt the knife entering her back, it would have been impossible for Mr. Andersen to have stabbed her in the back.

That impossibility also highlights the plausibility of alternative theories as to what had happened to the knife, namely that it could have been dropped out of the complainant’s hand and ended up on the bed, with her coming into contact with it during the rest of the assault. [ 70 ] A fair and reconciled reading of the totality of the complainant’s evidence was that at some point she lost possession of the knife and subsequently she felt the cut in her back. She, at best, assumed that Mr. Andersen took it from her and that he must have stabbed her.

Her conclusory statements that he took it from her and stabbed her were based on conjecture and assumption, not on anything she observed or could remember. [ 71 ] Of course, it was open to the trial judge nevertheless to accept some but not all of the complainant’s evidence, provided there is some reasonable, understandable and transparent explanation for doing so.

In the circumstances of the evidence in this case, however, one would expect that, given the centrality of the findings to the conviction, the trial judge would have provided some explanation for how he reached that conclusion rather than simply repeating, as fact, the complainant’s initial conjectural statement. [ 72 ] In his recitation of the evidence, the trial judge also referred to the evidence of police officers who said they heard Mr.

Andersen make un-cautioned and un-Chartered utterances following the incident to the effect that he had stabbed the complainant and that he would “go away for years.” Yet the judge did not refer to those utterances in his analysis when he made his findings of fact. If the judge regarded the utterances as an admission, he could simply have said so and that would essentially have been the end of the matter. Perhaps the reason was that the police officers also acknowledged (although not referred to by the judge) that the reference to stabbing was qualified by the word “somehow” which could have meant that Mr.

Andersen was not sure how the wound was inflicted. If the judge had not relied on his perception of the complainant’s evidence as affirming the stabbing, it is doubtful that, from the way the judge approached the matter, he would have made the findings he did, regardless of the utterances of Mr. Andersen. [ 73 ] Accordingly, on the record as it exists, there is no understandable way to get to the conclusion reached by the trial judge short of cherry-picking certain conclusory statements made by the complainant which are based on assumption and ignoring the qualifications in the rest of her evidence.

Without some allusion to how he arrived at his finding in this regard, it is reasonable to conclude that he misapprehended the evidence and thus a miscarriage of justice occurred under section 686(1)(a)(iii) of the Criminal Code . [ 74 ] R. v. Lohrer , 2004 SCC 80 , [2004] 3 S.C.R. 732 emphasizes a stringent standard for allowing an appeal on grounds of misapprehension of the evidence.

The misapprehension must go the “the substance rather than to the detail.” It must be “material rather than peripheral to the reasoning of the trial judge” and it “must play an essential part not just in the narrative of the judgment but ‘in the reasoning process resulting in a conviction’” (per Binnie J. at para. 2). Applied to the circumstances here, that test is met. The finding that Mr.

Andersen took the knife from the complainant and stabbed her is central to the trial judge’s reasoning and to the ultimate conviction for aggravated assault. [ 75 ] This can also be demonstrated by reference to the trial judge’s statement in paragraph 21 of his reasons, quoted previously: “There is no other plausible evidence about how she was stabbed , and the accused said that she did not stab herself in the back” (italics added). It is to be noted that the judge did not, as represented by my colleague Welsh J.A., say that “the only plausible explanation for the complainant’s wound was that Mr.

Andersen had stabbed her” (para. 23). The absence of plausible explanation was, instead, as to “how she was stabbed,” thus assuming the very point in issue. (I put aside for the moment the fact that the trial judge relied on Mr.

Andersen’s statement to the police for the observation that he said the complainant did not stab herself in the back, even though the judge had previously stated that the statement was due “no weight’.) The judge’s statement about there being no other plausible evidence was predicated on the conclusion that the complainant was in fact stabbed, not just cut or injured in the melee occurring on the bed. [ 76 ] Furthermore, and perhaps more importantly, the reference to Mr.

Andersen’s statement that the complainant “did not stab herself in the back” demonstrates a simple dichotomy in the trial judge’s thinking: either the complainant stabbed herself or Mr. Andersen did so. To achieve that analytical construct, it was crucial to place the knife in Mr. Andersen’s possession, again indicating the centrality of that issue. Accident [ 77 ] The form of reasoning adopted by the trial judge also indicates that he either did not consider, or had closed his mind to, the possibility of accident as an explanation for the wound to the complainant’s back.

At paragraph 17 of his judgment the trial judge listed the issues to be addressed by him as: onus and standard of proof; consent to a fight; and self-defence. Nowhere in his judgment did he consider whether there was some explanation for the wound other than Mr. Andersen taking the knife and stabbing the complainant, even though this submission was specifically made to him by defence counsel at trial who argued that the wound to the complainant’s back was caused by an accident (Transcript, April 27, 2017, at 180-181). This submission depended on the theory that the knife was not taken and used by Mr.

Andersen but was dropped or knocked out of the complaint’s hand onto the bed. Given the complaint’s

acknowledgement of this possibility and the absence of any other explanation given by her as to how the knife got into Mr. Andersen’s possession, it cannot be said that this theory had no air of reality to it. [ 78 ] The “defence” of accident usually amounts to a denial of the mens rea of the offence. Counsel for Mr. Andersen conceded that that was the sense in which he was raising the issue of accident. Thus, the other potential form of accident, known as “involuntary act accident” as distinguished by Moldaver J. in R. v.

Rodgerson , 2015 SCC 38 , [2015] 2 S.C.R. 760 , was not engaged. [ 79 ] In his reasons, the trial judge did not address at all the mens rea necessary to establish the offence of aggravated assault. There is nothing to indicate he was alive to the issue that objective foresight as to the risk of bodily harm was a requirement, and that it was therefore crucial to give careful consideration to all of the evidence to determine whether in fact Mr. Andersen took the knife from the complainant. If Mr.

Andersen did not in fact have possession of the knife, there would have been a different analysis that would have had to be undertaken. This would include questions as to whether, given the speed with which the events unfolded on the bed (the complainant’s evidence: “everything just happened really fast”) and Mr. Andersen’s statement that he did not know it was a knife until she screamed, it was reasonable that a person in the position of Mr.

Andersen would have had objective foresight of the risk of bodily harm to the complainant from the unidentified implement that she had had in her hand, after she let go of it. Insufficiency of Reasons [ 80 ] The test for sufficiency of reasons is whether they fulfill the three functions of explaining why the accused was convicted or acquitted, providing public accountability and permitting effective appellate review: R. v. R.E.M. , 2008 SCC 51 , [2008] 3 S.C.R. 3 .

The question in this case is whether the reasons, read as a whole in the context of the evidence, the submissions of counsel and the live issues at the trial “reveals the basis for the verdict reached” and shows that the judge “seized the substance of the critical issue on the trial” ( R.E.M. , at para. 55 ).

Relevant to the current case is the observation of McLachlin C.J.C. in R.E.M. regarding evidence that is contradictory and confusing: [55] … If the evidence is contradictory or confusing, the appellate court should ask whether the trial judge appears to have recognized and dealt with the contradictions. [ 81 ] Here, the evidence was, at best, confusing as to whether Mr. Andersen took the knife from the complainant or whether the complainant either dropped the knife or had it knocked from her hand.

Further, on the description by the complainant as to how she was positioned on the bed when she felt the wounding, it would have been impossible for Mr. Andersen to have inflicted the wound by his own hand. All told, the evidence was contradictory with respect to the Crown’s theories of what had happened. The trial judge’s reasons do not provide any possible pathway to conviction for aggravated assault.

They provide no explanation of why he did not consider it necessary to address the submissions of accident, or the issue of mens rea generally, or why he reached the conclusions he did on the issue of aggravated assault. They do not “reveal the basis for the verdict reached” and do not show that he “seized the critical issue on the trial.” [ 82 ] A review of the evidentiary record and submissions of counsel does not help in this analysis. In fact, if anything, it exposes the deficiencies in the trial judge’s analysis.

As Counsel raised the issue of accident, one would expect that the trial judge would at least acknowledge that the issue had been raised and explain why it was not dispositive or at least indicate (if indeed he thought so) that it had no air of reality. Further, the record of the complainant’s evidence clearly raises the question of whether in fact the wounding occurred by Mr. Andersen’s own hand (something the trial judge appears to have assumed from the outset) and, if not, whether mens rea had been established.

That can only be avoided by unexplained cherry-picking certain out-of-context statements made by the complainant and relying on them to the exclusion of the totality of the evidence. No explanation for doing so has been advanced. [ 83 ] In R. v.

Sheppard , 2002 SCC 26 , [2002] 1 S.C.R. 869 , which was referred to with approval in R.E.M. at paragraph 39 on this point, Binnie J., in affirming the need to look at the record, made it clear that: [46] …Where it is plain from the record why an accused has been convicted or acquitted, and the absence or inadequacy of reasons provides no significant impediment to the exercise of the right of appeal, the appeal count will not on that account intervene. Here, the adequacy of the trial judge’s reasons fails on both counts. It cannot be said to be plain from the record why Mr.

Andersen was convicted of aggravated assault. An appeal court, faced with a record that raises other possible explanations, and even impossibilities, with respect to the conclusions of the trial judge is provided with a significant impediment to addressing the matter effectively on appeal and fulfilling its appellate functions. Accordingly, I conclude that an error of law has been committed within section 686(1)(a)(iii) of the Criminal Code . Other Basis for Conviction? [ 84 ] It remains for consideration whether a conviction of Mr.

Andersen for aggravated assault can nevertheless be justified even if he did not take the knife from the complainant and that, instead, it was dropped or knocked from her hand (as acknowledged by the complainant as a possibility), ended up on the bed and entered the complainant’s back as a result of the scuffling that was occurring on the bed.

This, of course, is a plausible theory. [ 85 ] The mental element for the offence of aggravated assault involves the mens rea for assault simpliciter (intent to apply force intentionally or recklessly or being willfully blind to the fact that the victim does not consent) together with objective foresight of the risk of bodily harm: R. v. Williams , 2003 SCC 41 , [2003] 2 S.C.R. 134 . On the theory that Mr. Andersen did not take the knife from the complainant but that it somehow ended up on the bed, the question would be whether in those circumstances Mr.

Andersen could be said to have had objective foresight of the risk of bodily harm to the complainant from the knife if he kept assaulting her, punching her and holding her down on the bed. In those circumstances could it be said that he was reckless, even if not intentional, in his behavior? [ 86 ] But this argument was not raised by the Crown at trial as a pathway to conviction for aggravated assault nor did such an analysis figure at all in the reasoning of the trial judge.

[ 87 ] Section 686(1)(b)(iii) of the Criminal Code allows an appeal court to dismiss an appeal even if there was a wrong decision on a question of law if the court “is of the opinion that no substantial wrong or miscarriage of justice has occurred.” Where there are serious errors on the part of the trial judge (the situation here), the case against the accused must be so overwhelming that that a reasonably and properly instructed jury would inevitably have convicted the accused anyway before the proviso in section 686(1)(b)(iii) can be applied: R. v. Van , 2009 SCC 22 , [2009] 1 S.C.R. 716 ; R. v.

Khan , 2001 SCC 86 , [2001] 3 S.C.R. 823 . [ 88 ] Here, it is not possible to say – considering the quickly unfolding events on the bed and the absence of any evidence that Mr. Andersen knew, in advance of the wounding, that the implement the complainant was holding was a knife – that it would be inevitable that a reasonably instructed jury would convict Mr. Andersen. It is not an inevitable conclusion that a reasonable person in the position of Mr.

Andersen would have had foresight that there was a risk of bodily harm to the complainant if whatever she was holding, whether dangerous or not, fell on the bed near their scuffling bodies. Accordingly, it is not appropriate to invoke the proviso in section 686(1)(b) (iii) in this case. [ 89 ] It is further to be noted that the Crown did not, on this appeal, make any alternative argument for conviction for aggravated assault assuming that Mr. Andersen did not have possession of the knife, nor did counsel expressly seek to invoke the proviso.

I note in passing that in Sheppard , Binnie J. noted at paragraph 68 that “The crown has not sought to save the conviction under the proviso in s. 686(1)(b)(iii), and rightly so.” The same could be said here. [ 90 ] Whether or not to hold a new trial, in these circumstances, with respect to the charge of aggravated assault would be within the discretion of the Attorney General, bearing in mind that I would have entered a conviction for the included offence of assault causing bodily harm on the basis of facts that do not include a stabbing at the hand of Mr. Andersen.

Conclusion [ 91 ] For the foregoing reasons, I would allow the appeal in part and set aside the conviction for aggravated assault. I would, however, substitute a conviction for the lesser included offence of assault causing bodily harm. The complainant suffered severe and sustained punching at the hand of Mr. Andersen leading to lasting pain in and bruising to her head. Clearly, such harm would have been objectively foreseeable by a person in the position of Mr. Andersen.

In the circumstances of this case, I find that the nature and severity of the bruising takes the case beyond “merely transient or trifling” harm ( Criminal Code ,

Section 2) and justifies a conviction for assault causing bodily harm. [ 92 ] Treating the hybrid offence of assault causing bodily harm as indictable for this purpose, I would sentence Mr.

Andersen to a term of eighteen months for this conviction and impose a period of probation for three years, the conditions of which would include, in addition to the compulsory statutory conditions: • Report to a probation officer within one week and thereafter as required; • Subject to program acceptance, participate actively in rehabilitative and treatment programs, as directed by his probation officer and as may be available to him as an aboriginal person, for anger management and alcohol addiction. [ 93 ] I would affirm the sentence of two months, consecutive, for breach of probation.

Appeal allowed, Green J.A. dissenting.