R. v. G.S., 2013 NUCA 05

In the Court of Appeal of Nunavut Citation: R. v. G.S., 2013 NUCA 05 Date: 20130301 Docket: 08-11-007-CAS Registry: Iqaluit Between: Her Majesty The Queen Respondent -and- G.S. Appellant _______________________________________________________ The Court: The Honourable Justice E.D. Johnson Reasons for Judgment Appeal from an oral judgment of Mr. Justice Robert MacKinnon delivered on September 21, 2011, in Rankin Inlet

______________________________________________ Reasons for Judgment _____________________________________________ Johnson J.A.: A. INTRODUCTION [ 1 ] On September 21, 2011, the learned Trial Judge convicted the accused of sexually assaulting the complainant between January and September 2006. The complainant testified about the sexual assault but said she could not remember if the accused was under the influence of alcohol. Nevertheless, the Crown led evidence from the accused’s ex-girlfriend about the drinking history of the accused without objection by Defence counsel.

The accused testified and denied the allegations of the complainant. He was cross-examined about his drinking history and admitted that he was an alcoholic. Crown counsel noted in his submissions to the Trial Judge that alcoholics lie and for that reason the evidence of the complainant should be accepted. [ 2 ] In this appeal, the appellant argues that the Trial Judge erred in admitting the evidence of the drinking history of the accused without a voir dire because it was in the nature of bad character evidence.

The error was compounded when the Trial Judge misstated the evidence given by the accused or drew improper inferences from it. [ 3 ] The respondent argues that the evidence of the accused’s drinking history was relevant to his credibility and properly admitted. B. STANDARD OF REVIEW [ 4 ]

Section 813 of the Criminal Code (Code) grants the accused the right to appeal his conviction for a

summary conviction sexual assault charge.

Section 822 specifies that sections 683 to 689 of the Code are applicable to

summary conviction appeals with modifications as the circumstances require. [ 5 ] Section 686 (1) (

a) and (

b) of the Code set out the grounds for allowing or dismissing the appeal. [ 6 ] The appeal may be allowed where the court is of the opinion that: (a) (

i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence, (ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or (iii) on any ground there was a miscarriage of justice; [ 7 ] The court may dismiss the appeal where the court is of the opinion that: (b) (

i) the court is of the opinion that the appellant, although he was not properly convicted on a count or part of the indictment, was properly convicted on another count or part of the indictment,

(ii) the appeal is not decided in favour of the appellant on any ground mentioned in paragraph (a), (iii) notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph (a)(ii) the appeal might be decided infavour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred, or (iv) notwithstanding any procedural irregularity at trial, the trial court had jurisdiction over the class of offence of which the appellantwas convicted and the court of appeal is of the opinion that the appellant suffered no prejudice thereby; [8] The

interpretation of these sections was clarified by the recent judgment of the Supreme Court of Canada in R v Sinclair . 2011SCC 40, 270 CCC (3d) 421. Charron J. noted that all three sections share a common purpose that was described by Doherty J.A. in R. v.Morrissey (1995), (ON CA), 97 CCC (3d) 193, 38 CR (4th) 4 [Morrissey], as follows: While s. 686(1)(

a) provides three distinct bases upon which [an appellate court] may quash a conviction, each shares the sameunderlying rationale. A conviction which is the product of a miscarriage of justice cannot stand. Section 686(1)(a)(

i) is concerned withthe most obvious example of a miscarriage of justice, a conviction which no reasonable trier of fact properly instructed could havereturned on the evidence adduced at trial. Section 686(1)(a)(ii) read along with s. 686(1)(b)(iii) presumes that an error in law produces amiscarriage of justice unless the Crown can demonstrate the contrary with the requisite degree of certainty.

Section 686(1)(a)(iii)addresses all other miscarriages of justice not caught by the two preceding subsections. [Emphasis added.] [9] The appellant argues that there is no standard of review for the admission of the evidence of his drinking history becauseDefence counsel at trial did not object to the admission of the evidence at trial and, as a result, the Trial Judge was not called on to makea ruling. Since there was no ruling the appellant cannot argue the Trial Judge erred.

Instead the appellant argues that the Trial Judgemade palpable and overriding errors as described in Housen v Nikloaisen, 2002 SCC 33, 211 DLR (4th) 577 [Housen], in hisinterpretation of the evidence about his drinking history. [10] Housen confirms that the standard of review for a question of law is correctness. On the other hand, the standard of review forfindings of fact is the palpable and overriding error test. [11] As noted at para 68 in R v Bishop, 2013 NUCA 3 , [2013] Nu J No 3, 2013 NUCA 03 [Bishop], the failure to object attrial does not prevent an appellant from raising an issue on appeal.

A recent example of the application of the same principle can be seenin R v Halliday, (ON CA), [1995] OJ No 1688, 100 CCC (3d) 574. I am satisfied that I can consider the issue of theadmissibility of the drinking evidence as a separate ground of appeal even though there was no ruling by the Trial Judge. C.

ISSUES [12] Did the Trial Judge err in admitting the evidence of the drinking history of the accused? [13] Did the Trial Judge err by misstating the evidence on the drinking history of the accused or draw unreasonable inferences fromfacts that were in evidence in concluding the evidence of the appellant was “deeply flawed”? [14] If the Trial Judge erred, what is the appropriate remedy? D. EVIDENCE [15] The evidence of the complainant in examination-in-chief can be summarized as follows: (

a) At the time of the alleged offence the appellant was the boyfriend of the complainant’s older sister U.E. (

b) On a day in 2006, when the 17-year old complainant was 12 or 13 years old following an annual volleyball tournament, theappellant slept over at the complainant’s parents’ house (the house). (

c) The complainant, the complainant’s male cousin G. who was under 7 years old, possibly her younger 7 or 8 year old sister, theappellant, and U.E watched a movie on the television while laying on the bed in the master bedroom of the house.

(

d) The order of the four people in the bed was G., then the complainant, then the accused, and finally U.E. (

e) The complainant was wearing a bra, probably a T-shirt, panties and pajama pants. (

f) The complainant thought everyone had fallen asleep and then she fell asleep. (

g) The complainant woke up because someone was grabbing her bum. She did not know who it was because she never saw his face. She assumed it was the accused because she did not know who else it could have been. The contact was initially under her pajamas and on top of her panties but after 15 or 20 minutes the contact moved under her panties. (

h) After a while the complainant felt something else on her bum that she thought was a penis. By this time her pajama bottoms and panties had been pulled down and she felt a hard penis touch her skin. (

i) The complainant then felt the bed starting to shake many times and she concluded that the person was masturbating. His hand remained on her bum while this activity was taking place. (

j) The complainant did not know if the person completed the act of masturbation and estimated that from start to finish the time that elapsed was between 30 and 45 minutes. (

k) The complainant could not remember if the accused had been drinking that night. (

l) The complainant told a friend about the incident the next day and then in the summer of 2011, she complained to the police. (

m) She did not yell out when the sexual acts were taking place because she was scared. [ 16 ] In cross-examination the following additional evidence was obtained. (

a) U.E. had been the accused’s girlfriend for 8 to 10 years and the complainant always got along with the accused. The accused and U.E later broke up. (

b) Before the incident the accused had never shown any sexual interest in the 13-year old complainant. (

c) The complainant complained about the alleged sexual assault in a written statement given to the police in October 2010. (

d) The complainant complained to the police shortly after she had a disagreement with the accused’s current girlfriend. She was upset by the disagreement but denied complaining to the police to get back at the new girlfriend. (

e) At the time of the alleged incident the complainant was living in the two-bedroom house with her mother and stepfather. Her parents usually slept in the living room and she slept in her own bedroom. The master bedroom upstairs was where they watched television while sitting or laying on a bed. (

f) U.E. would sleep in the master bedroom when she returned from attending school out of town. (

g) All four persons were laying across the bed with G. at the top and U.E. at the bottom and were covered by a blanket. (

h) The television was at the foot of the bed on a television stand and the lights in the bedroom were off. (

i) By midnight they finished one movie and everyone but the complainant was asleep. The complainant then started watching a second movie. (

j) The complainant acknowledged that there was an inconsistency between her statement and her evidence about the position where everyone was laying on the bed. In her statement, she could not remember if she was next to G. However she insisted her recall was better in court than it was when she gave the statement. (

k) The complainant was lying on her side facing the television but then turned to face the wall when she went to sleep. She remained facing the wall throughout the incident and pretended to be asleep. (

l) The person touching her did not say anything to her and she did not tell him to stop. She did not turn to look at the person nor run downstairs to wake her parents. (

m) The complainant acknowledged that there was no mention in her statement about her panties being pulled down. (

n) The complainant did not see the penis that she thought was touching her bum. She felt something against her bum and assumed it was a penis. (

o) The complainant did not know what was shaking the bed and assumed the accused was masturbating. She did not know if the accused ejaculated. (

p) While this movement was going on a hand was still touching her bum. (

q) The complainant did not resist in any way.

[ 17 ] The Crown led evidence from U.E. that can be summarized as follows: (

a) She acknowledged she was in a relationship with the accused for 10 years. (

b) She did not remember the night described by the complainant where she was in bed with the accused, the complainant, and G. (

c) She testified that she had broken up with the accused in December 2007 and that throughout the relationship the accused drank alcohol. She described him as a heavy drinker and his drinking pattern as sometimes drinking everyday and then stopping for a few months before starting again. (

d) She found empty Vodka bottles around her house when she moved. [ 18 ] In cross-examination, Defence counsel established that U.E. was engaged to marry the accused in the spring of 2006. She also testified that the accused sometimes would sleep with her in the master bedroom of the house. She never saw the accused show any sexual interest in the complainant and he did not have any strange or unusual sexual preferences such as masturbating in her presence. [ 19 ] The accused testified that he slept over at the house two or three times. He knew U.E.’s parents well and was close to them.

He acknowledged that he was a heavy drinker in the past. When he stayed over with U.E. he would drink lightly and might have a few beers with her father. He did not recall ever being drunk during these overnight stays. [ 20 ] He acknowledged that it was not unusual for he and U.E. to fall asleep on the bed in the master bedroom with some of the household children while watching television. He had no recollection of sleeping right next to the complainant and denied ever touching her in a sexual way. A. Did the Trial Judge err in admitting the evidence of the drinking history of the accused?

A.1 Appellant’s argument [ 21 ] The appellant submits that the complainant testified that she did not recall if the accused had been drinking on the evening of the alleged sexual assault. U.E. did not remember being in bed watching movies as described by the complainant. [ 22 ] Since the accused’s drinking did not emerge from these Crown witnesses it should not have become an issue in the trial.

When the Crown then elicited the evidence of the accused’s drinking history from U.E., Defence counsel should have objected or the Trial Judge should have intervened and entered into a voir dire because it was inadmissible evidence of the bad character of the accused. [ 23 ] As held in R v Villeda, 2010 ABCA 351 , 265 CCC (3d) 433, bad character evidence is presumptively inadmissible.

To admit bad character evidence a trial judge must find that it was relevant to an issue at trial, outside the appellant’s general character, and that its probative value outweighed its prejudicial effect. [ 24 ] In the normal course, even a trial judge sitting alone might be called upon to distance himself or herself from inadmissible bad character evidence, particularly where no objection was made at the trial. In this case, it is clear that the Trial Judge did not consider whether the evidence was admissible or not.

A.2 Crown’s argument [ 25 ] The Crown argues that the evidence of the accused’s drinking habits was relevant to his credibility and thus properly admitted.

It did not amount to bad character evidence because there was no suggestion by the Crown or Trial Judge that the appellant was a personof bad or unsavoury character such that he was more likely to have committed the offence charged. [26] In the alternative, if the evidence of U.E. was not admissible the Crown argues that the evidence elicited from the accused incross-examination was admissible because the credibility of the accused was a live trial issue. There was no prejudice to the accusedbecause the Trial Judge did not refer to U.E.’s evidence in giving his judgment.

A.3 Analysis [27] The general rule on the use of character evidence was stated in R v G (SG) (SCC), [1997] 2 SCR 716, 116CCC (3d) 193 [S.G.G.] as follows: [63] It is trite law that "character evidence which shows only that the accused is the type of person likely to have committed the offencein question is inadmissible" (emphasis in original): see for example Morris v. The Queen, (SCC), [1983] 2 S.C.R. 190,at pp. 201-2; R. v.

B. (F.F.), (SCC), [1993] 1 S.C.R. 697, at p. 730. [28] As noted at p 42-43 of The Law of Evidence [Paciocco] , inferring from admissible evidence that the accused may be guiltybecause he is the kind of person who would commit the offence is also prohibited. “This “prohibited inference” has been described as a “primary rule of exclusion”, “one of the most deeply rooted and jealously guardedprinciples of our criminal law”.” [29] At 45-46, Paciocco notes the rule is also applicable where the Crown attempts to tender evidence of extrinsic misconduct by theaccused.

The term “similar fact evidence rule,” can, however, be misleading. In R v. D.(H.) [2000] S.J. No.209 for example, the Crown arguedthat the exclusionary rule did not apply because the Crown evidence would prove a number of outlandish things done by the accused thatwere dissimilar to the criminal allegation he was facing. The Crown claimed that it was not presenting “similar fact evidence”, but ratherevidence of “extrinsic misconduct” by the accused. The Saskatchewan Court of Appeal rightly rejected the submissions. The rule is notconfined in its application to cases where the Crown seeks to prove similar acts.

It applies, and must therefore be satisfied, in every casewhere the Crown is presenting evidence to establish the guilt of the accused that either directly or indirectly reveals discreditable orstigmatizing character of the accused…As the court noted in R. v. D.(H.), “whether the evidence is characterized as similar fact evidenceor evidence of extrinsic misconduct or evidence of discreditable conduct as Charron J.A. characterized it in R. v. B.(L.), the analyticalprocess is the same. [30] The evidence led by the Crown from U.E. about the accused’s drinking habits fits into the category of extrinsic misconduct.

Paciocco refined the definition as evidence “…that either directly or indirectly reveals the discreditable or stigmatizing character of theaccused.” [31] I am satisfied that U.E.’s evidence fits the definition of stigmatizing conduct. [32] In S.G.G., Cory J. held that properly admitted evidence of extrinsic misconduct relevant to a trial issue could be used inassessing the general credibility of the accused. As a result, the Crown should have asked the Trial Judge to make a ruling in a voir direbefore calling the evidence.

If that had occurred the Crown would have been required to establish that the drinking history of the accusedwas relevant to an issue in the trial. It is clear to me that the Crown could not have met that test. The complainant could not recall if theaccused had been drinking on the night of the alleged offence and U. E. could not remember the occasion. [33] As held in R v Rockey, (ON CA), [1995] SCCA No 288, 99 CCC (3d) 31 [Rockey], the failure of the TrialJudge to hold a voir dire to determine the admissibility of the drinking history of the appellant was an error of law.

The proper approachis to determine what the right conclusion of law would have been. If the conclusion is the evidence would have been admitted then theerror had no effect on the verdict. If the Court determines that the evidence should not have been admitted then it must consider s. 686

(1)(b)(iii) and trace the effect of the evidence and its effect on the verdict. [34] While the Trial Judge did not refer to U.E.’s evidence in his judgment it, had an impact on the Defence strategy and trialfairness as analyzed in the third issue. B. Did the Trial Judge err by misstating the evidence on the drinking history of the accused or draw unreasonable inferences from factsthat were in evidence in concluding the evidence of the appellant was “deeply flawed”?

B.1 Appellant’s argument [35] The appellant submits that the learned Trial Judge misstated the evidence about the blackouts experienced by the accused.Although the Trial Judge acknowledges that the appellant denied experiencing blackouts, he then stated that the appellant, on his ownevidence, experienced blackouts in 2006. [36] Although the Trial Judge accepted the accused’s evidence that he was an “alcoholic really during this period of time”, theaccused defined “alcoholic” as someone who needs to be near alcohol and not as someone who drinks to get drunk.

He only admitted tosipping alcohol and denies experiencing blackouts. As a result, there is no evidence to support the Trial Judge’s conclusion that in thiscase the use of the term alcoholic means drinking quantities of alcohol that would leave one’s memory “deeply flawed”. [37] The evidence about the accused’s alcohol consumption was scant. At its highest, the evidence before the court was that theaccused was a “heavy drinker” (the meaning of which is unclear) who “sipped” alcohol daily. In addition, the accused did not experienceblackouts in 2006 and did not have one at the time of the offence.

Whatever his consumption of alcohol it did not result in a loss ofmemory. [38] Absent an overt evidentiary link between the alcohol evidence and the reliability of the appellant’s testimony, the only way theTrial Judge could reach a conclusion about the impact of alcohol on the appellant was by way of inference. However, as held in R vMunoz, (ON SC), [2006] OJ No 446, 86 OR (3d) 134 [Munoz], in order to draw an inference one has to have a factualbase that reasonably leads to a conclusion.

Given the scant nature of the effect of alcohol on the appellant, the Trial Judge could not havereasonably inferred anything about the impact of alcohol on him. [39] The net result is that the learned Trial Judge erred in concluding that the appellant’s ability to observe, recall, and recount theevents of 2006 was “deeply flawed”. B.2 Crown’s argument [40] The Crown argues that the Trial Judge meticulously instructed himself on the R v WD, (SCC), [1991] 1 SCR742; (1991), 63 CCC (3d) 397 [WD], analysis. He assessed the appellant’s evidence in the context of the evidence as a whole andrejected it.

Even if the Trial Judge misapprehended the appellant’s evidence about experiencing “some blackouts”, there is no indicationthis led to his conviction. In fact, the Trial Judge expressly pointed out there was no evidence the appellant was blacked out on the nightof the offence. B.3 Analysis [41] The appellant testified in examination-in-chief that he was a heavy drinker in the past. When he stayed over with U.E. he woulddrink lightly and might have a few beers with her father.

He did not recall ever being drunk during these overnight stays. [42] During the cross-examination of the appellant (p 55-58 of the trial transcript), the following evidence emerged about the hisdrinking habits:

Q. Now my understanding is that you were an alcoholic really during this period of time? A. Yes. Q. Yes. Okay. And you were drinking Vodka, and you would even hide bottles of Vodka in the house? A. Em, I -- my own place, I really wouldn’t hide booze. There was really no reason to hide it. Just under – in the cupboards under the sink I would usually leave my booze. Q. But you had Vodka at hand at all times? A. Yes. Q. Yes. You were drinking every single day? A. I would sip every day, yes. Q. Hmm. And for how many years have you been an alcoholic, do you think? A. I - - I would say for three years to four years. Q.

Okay. Well, you were back in 2006, right? A. Yes. Q. Okay. And you would try to dry out on occasion? Go for lengthy periods - - A.Yes. Q.- - without drinking? A. Yes. It was a struggle. Q. Okay. Did you ever attend AA? A. Yes. Q. Okay. One of the things you learned, of course, and discussed is that alcoholics lie? A. Yes. Q. Okay. And if you are an alcoholic and are drinking every day, you sometimes blackout? A. I can’t recall the last time I blacked out. I haven’t blacked out in a very long time. Even when - - during that time period and before that. Q. But you were an alcoholic in 2006.

You would have blacked out then? A. I don’t recall blacking out. Q. Okay. You don’t recall it. It’s quite possible? A. I just never had a time where I blacked out. Q.Uh-huh. Alcoholics, and you’re one, wouldn’t be able to have just one little drink. They have to have many; isn’t that right? A. The way I understand alcoholism is just always having to be near alcohol. Q Uh-huh. A. Like no power over it. Q. Yes. Which is what you are? A. Yeps, just - - it wasn’t to get drunk. Q. But you had no power over it? A. No power over alcohol? Q. Right. And when you were drinking, you would try to hide it from others? A.

On occasion, yes.

Q. You don’t remember this specific night? A. No, I don’t recall a specific night where I had alcohol at Uja’s place. Like, it wasn’t common for me to bring alcohol over there. Q. But it is possible you were in bed with her, as she describes A. With A.(anonymized) Q. A. A. The way she describes it - - me near U.E. (anonymized), I could definitely say that was always the case, and the kids would always be behind us, like what order she describes, I can’t be specific because it was - - they’re just there, like I don’t notice who’s on which side. Q. Right. A. Yes. Q. I understand.

But it may well have been that U.E. (anonymized) was on the outside, and then there was you, and then there was A. (anonymized), and then there was little G.(anonymized)? A. That’s possible, yes. Q. All right. And it’s possible that you were drinking? A. Not - - not - - maybe before I got to the house, but not - - only time I would drink there is if I was - - Yves would have offered me a beer or something, so – q. But you might have been drinking before you got to the house, as you were an alcoholic? A. Yes. Yes. Q. And you have no control over alcohol? A. No control, like? Q. Yes.

And it’s possible that you got into bed and thought everyone was asleep and decided to masturbate? A. No nothing like that. Q. Nothing like that. A. No, that never happened. I’ve never ever done that in my life with U.E. (anonymized) or their family. [ 43 ]In re-examination (p 60), the appellant clarified his explanation about alcoholics lying as follows: Q. Let me try that again. Mr. Murdock asked you if it was true that alcoholics lie? A. Lie about their drinking? Very much so. Q. All right. And do you agree that you were an alcoholic in the past? A. Yes. Q.

Just to clarify, would you lie under oath in courtroom? A. No. Q. And everything that you’ve told the Court today is the truth, is that right? A. Yes. [ 44 ]The Trial Judge made the following conclusions about the evidence of the complainant (p 81): I find that Ms B. (anonymized) is an honest and reliable witness. She made a very good witness, a forthright, credible witness trying to tell the truth as she recalled it. I find that the inconsistencies pointed to by defense in cross-examination were individually and collectively minor and had no diminishing effect on her credibility…

I keep in mind her age at the time of the events complained of. I take into account that she has not or did not make an outcry at the time. That is not an essential ingredient of the offence, and in my view is not material at all to the analysis on this evidence. It is entirely reasonable considered objectively that she was, as I find she was, afraid and confused. I keep in mind the instruction of the Supreme Court of Canada in Regina v. DD, that people disclose if at all at different times for different reasons.

The delay in disclosure and the lack of any outcry are immaterial on the facts of this case, in my view. [ 45 ]He concluded (p 81-82) that the accused was not as reliable a witness as the complainant because of his drinking habits stating: Dealing with the evidence of G.S., he testifies now as a 33-year old man who is gainfully employed. He has risen beyond, I find, the alcohol difficulties that he had a number of years ago and has moved on with his life.

He still has, however, his past to deal with in this case, on the evidence, in that from his own evidence he had in 2006 a significant alcohol problem leading to some blackouts, and he was then a self-described alcoholic, drinking daily. He wouldn’t hide it, he said, but he had lots of Vodka around, and that he doesn’t recall being in bed with the complainant and with her sister and the others, as Ms B. (anonymized) clearly does. He says it is possible he was; he doesn’t remember the order. It is possible that the order of those in bed that she described, he said, was correct.

That’s the order of the persons in the bed. He also testified that it was possible he might have been drinking and he admitted he then had no control over alcohol. He denied getting into bed. He denied touching her. He denied masturbating. I find that in giving his answers and in giving his evidence that he was attempting today to be credible but that his evidence at this trial is entirely unreliable due to his alcohol involvement at the time of the events in issue. He ability to observe, recall and recount the 2006 events is deeply flawed.

I reject his evidence of his denial of the sexual activity as unreliable evidence and then proceed to the WD instruction. Do I accept the evidence favoring the accused and find it to be factually true when weighed against the contradictory evidence? No I do not. His testimony is unreliable and not credibile. It was unconvincing. Do I find as a fact that the evidence favouring G.S. on this matter is true but I have a reasonable doubt as a result of it? No I do not. As I have found, his ability to observe, recall and recount the 2006 events is flawed.

I find the evidence favouring the Crown, that is the evidence of the complainant, Ms B. (anonymized), to be reliable and credible, and factually true. I have no reasonable doubt about guilt, as the Crown has displaced the presumption of innocence. [ 46 ]The appellant interprets the Trial Judge as finding that the appellant had a blackout in 2006. In my view, it could be interpreted that way but could also be interpreted as blackouts during his drinking years in general. He came to this conclusion after noting (p 75) that: He testified that at that time he had no control over alcohol and was an alcoholic.

He said he had not blacked out for a long time before and doesn’t remember specifically blacking out that night. There is no evidence before the Court, however, that he blacked out that night. [ 47 ]The appellant’s evidence is a little confusing because after answering that he could not recall the last time he blacked out, he concluded with the statement that he just never had a time when he blacked out.

I am satisfied that there was some evidence for the Trial Judge to conclude that the appellant had at some time during his drinking days experienced a blackout. [ 48 ]The Trial Judge then concluded that the appellant was a self-confessed alcoholic drinking daily with lots of vodka around. He later noted that the appellant may have been drinking on the evening in question and when drinking he had no control over alcohol. The evidence could support this

interpretation but could also support the appellant’s

interpretation as someone who needs to be near alcohol and sipping steadily but not as someone who drinks to get drunk. [ 49 ]The real issue is whether these facts then support the inference that the appellant had a memory problem at the time of the incident because of his drinking. I agree that there is no direct evidence about the impact of alcohol on the appellant’s memory.

The Trial Judge inferred that the appellant’s memory was suspect from the fact that he was an alcoholic who had experienced a blackout at some time during his drinking days and who may have been drinking on the evening in question. [ 50 ]Was this a reasonable inference to draw? In Munoz, Ducharme J. carefully reviewed the law on drawing inferences. He noted Doherty J’s. description of the process of drawing inferences in Morrissey, as follows:

A trier of fact may draw factual inferences from the evidence. The inferences must, however, be ones which can be reasonably and logically drawn from a fact or group of facts established by the evidence.

An inference which does not flow logically and reasonably from established facts cannot be made and is condemned as conjecture and speculation. [ 51 Ducharme J. further noted at paras 29-30 that, where the established facts have been proven, courts have repeatedly cautioned against confusing a reasonable inference with mere speculation and that it is difficult, if not impossible, to define with any precision a bright line distinction between a reasonable inference and speculation.

However, he found the language of Aldisert J. in Tose v First Pennsylvania Bank, N.A., 648 F 2d 879 (3 rd Cir, 1981), [1981] USCA3 469, was helpful and so do I. The line between a reasonable inference that may permissibly be drawn by a jury from basic facts in evidence and an impermissible speculation is not drawn by judicial idiosyncrasies. The line is drawn by the laws of logic.

If there is an experience of logical probability that an ultimate fact will follow a stated narrative or historical fact, then the jury is given the opportunity to draw a conclusion because there is a reasonable probability that the conclusion flows from the proven facts. As the Supreme Court has stated, "the essential requirement is that mere speculation be not allowed to do duty for probative facts after making due allowance for all reasonably possible inferences favoring the party whose case is attacked." Galloway v. United States, 319 U.S. 372, 395, 63 S. Ct. 1077, 1089, 87 L.

Ed. 1458 (1943). [ 52 ]Ducharme J. concludes at para 31: Rather, the requirement of reasonable or logical probability is meant to underscore that the drawing of inferences is not a process of subjective imagination, but rather is one of rational explication. Supposition or conjecture is no substitute for evidence and cannot be relied upon as the basis for a reasonably drawn inference. Therefore, it is not enough simply to create a hypothetical narrative that, however speculative, could possibly link the primary fact or facts to the inference or inferences sought to be drawn. As Fairgrieve J. noted in R. v.

Ruiz, [2000] O.J. No. 2713 (C.J.), at para. 3 , "Simply because a possibility cannot be excluded does not necessarily mean that a reasonable trier could be justified in reaching such a conclusion on the evidence." The inference must be one that can be reasonably and logically drawn and, even where difficult, it cannot depend on speculation or conjecture, rather than evidence, to bridge any inferential gaps. [ 53 ]There is no evidence that the appellant was drinking on the evening in question. The complainant could not recall if the appellant was drinking and U.E could not remember the evening.

The appellant honestly admitted that he could have been drinking before he arrived at the house but he did not usually bring alcohol to the house. He admitted that the complainant’s father might have offered him a beer. The lack of recall of all three witnesses is not surprising because they were trying to remember things that had occurred five years earlier. [ 54 ]Alcoholism and its impact on memory is a complex subject. There are many types of alcoholics. Some are daily drinkers and others are binge drinkers. [ 55 ]There are two types of blackouts with different impacts on memory.

An “en bloc” blackout is one where the drinker is unable to recall any memories from the drinking period.

A fragmentary blackout is characterized by the ability to recall certain events from an intoxicated period yet be unaware that other memories are missing until reminded of the existence of these gaps in memory . [ 56 ]Although blackouts are commonly associated with the consumption of alcohol, there is some evidence to suggest they are not directly related to the amount of alcohol consumed . [ 57 ]To infer that the appellant had a deeply flawed memory on the night of the incident because he was an alcoholic who may have experienced a blackout and may have been drinking is, with all due respect to the Trial Judge, to engage in speculation.

It is not a logical probability and I am satisfied that the Trial Judge erred in making that inference. The error can be classified as a misapprehension of the evidence and, as held in Morrissey, was an error of law. C. If the Trial Judge erred, what is the appropriate remedy?

[ 58 ]Both errors fall within section 686(1)(a)(ii). However, as noted above in Rockey, the improper admission of the appellant’s drinking history without a voir dire mandates a consideration of s. 686 (1)(b)(iii). [ 59 ]The appellant is correct that the “blackout” evidence was critical to the Trial Judge’s decision to reject the appellant’s evidence because it was unreliable.

The Trial Judge appears to have accepted that the appellant was also a credible witness when he said (p 82, transcript): “I find that in giving his answers and in giving his evidence that he was attempting today to be credible.” [ 60 ]However, he rejected the appellant’s evidence because it was unreliable due to his alcohol involvement at the time of the alleged offence. [ 61 ]The introduction of the inadmissible character evidence by the Crown injected a collateral issue into the trial that tainted the careful WD analysis carried out by the Trial Judge.

Instead of the focus being on the credibility of the complainant and the accused, it moved to the character of the accused in the form of his drinking habits. Once the evidence was admitted the accused was forced to explain it. This is turn led to the cross-examination of his character as an admitted alcoholic and the inferences flowing from it that were fully exploited by the Crown. It included the admission by the appellant that alcoholics lie.

Although the admission was clarified in re-examination to lying about the amount of alcohol consumed, in its submissions the Crown expanded it to the sweeping generalization that alcoholics lie about everything. As conceded by the Crown on appeal these submissions were “overzealous”. [ 62 ]While there is no indication in the reasons for judgment that the Trial Judge was influenced by these overzealous remarks, I am satisfied that the overall impact of the inadmissible evidence and the results that flowed from it was significant.

Without this evidence before him the Trial Judge faced a common two-witness sexual assault trial with two credible witnesses trying to remember events that occurred five years earlier. It is probable that the Trial Judge’s WD analysis on that evidence would have resulted in a reasonable doubt and an acquittal. E. CONCLUSION [ 63 ]I am satisfied that the errors were serious enough to render the trial unfair. At para 98 of Bishop, the Court of Appeal described the policy behind section 686 (1)(b)(iii) as follows: The policy underlying s. 686's proviso is simple.

On the one hand, an absolutely pointless retrial is to be avoided. But on the other hand, trial or retrial is to be by a properly-instructed jury. Not by a jury misled as to the law or facts, and not by three appellate judges. So the test under s. 686 has to be somewhat like the test for a nonsuit, seeing what is possible. [ 64 ]I am satisfied there was a miscarriage of justice so as to exclude the application of section 686 (1)(b)(iii). As noted above, in my view it is probable that the admissible evidence would result in an acquittal because of a reasonable doubt.

However, the test I must apply is whether there is sufficient evidence to satisfy the test for a nonsuit. I am satisfied that the evidence is insufficient to grant a nonsuit. [ 65 ]The appeal against conviction is allowed and a new trial ordered. Appeal heard on February 12, 2013 Memorandum filed at Iqaluit, Nunavut This 1st day of March, 2013

______________________ Earl D. Johnson J.A. Appearances: Peter Harte for the Appellant C. Lirette for the Respondent