2013 NBCA 69, 2013 NBCA 69

COURT OF APPEAL OF NEW BRUNSWICK KIRK DONALD HOLLAND APPELLANT 68-13-CA KIRK DONALD HOLLAND APPELANT - and - - et - HER MAJESTY THE QUEEN RESPONDENT SA MAJESTÉ LA REINE INTIMÉE Holland v. R., 2013 NBCA 69 Holland c.

R., 2013 NBCA 69 CORAM: The Honourable Justice Richard The Honourable Justice Bell The Honourable Justice Quigg CORAM : l’honorable juge Richard l’honorable juge Bell l’honorable juge Quigg Appeal from a decision of the Provincial Court: March 28, 2013 (conviction) June 5, 2013 (sentencing) Appel d’une décision de la Cour provinciale : le 28 mars 2013 (déclaration de culpabilité) le 5 juin 2013 (sentence) History of case: Decision under appeal: Unreported Preliminary or incidental proceedings: N/A Historique de la cause : Décision frappée d’appel : Inédite Procédures préliminaires ou accessoires : S.O.

Appeal heard: November 13, 2013 Judgment rendered: December 12, 2013 Appel entendu : le 13 novembre 2013 Jugement rendu : le 12 décembre 2013 Reasons for judgment by: The Honourable Justice Richard Motifs de jugement : l’honorable juge Richard Concurred in by: The Honourable Justice Bell The Honourable Justice Quigg Souscrivent aux motifs : l’honorable juge Bell l’honorable juge Quigg Counsel at hearing: For the appellant: Margaret Gallagher, Q.C. For the respondent: Cameron H. Gunn, Q.C. Avocats à l’audience : Pour l’appelant : Margaret Gallagher, c. r. Pour l’intimée : Cameron H. Gunn, c. r.

THE COURT The appeal is dismissed. The judgment of the Court was delivered by RICHARD J.A. [ 1 ] On March 28, 2013, a judge of the Provincial Court found Kirk Donald Holland guilty of break and enter with intent to commit an indictable offence (s. 348(1)(

a) of the Criminal, R.S.C. 1985, c. C-46 ). The evidence at trial had unquestionably revealed that Mr. Holland had broken and entered into a dwelling house the night of September 8, 2012. The only issue was whether he had done so “with intent to commit an indictable offence therein.” [ 2 ] Mr. Holland testified that, after a night of heavy drinking, thinking he might be a hero and thwart a crime, he had followed another individual who had stated he would break into a home. At some point, this other person turned on Mr. Holland in a threatening way and then, armed with a piece of wood in which nails were embedded, chased him, causing Mr. Holland to seek refuge by breaking into a home.

[3] The occupants were awakened and found Mr. Holland in their home. Upon confronting him,Mr. Holland told them to call the police. When the police arrived and arrested Mr. Holland, he told them he was with the FBI and wasthere to save the occupants. After his arrest, he also talked about people from Afghanistan coming (presumably to attack the homeoccupants). [4] At trial, Mr.

Holland contended he had rebutted the presumption set out in s. 348(2) of theCriminal Code, pursuant to which evidence that an accused broke and entered a place is, in the absence of evidence to the contrary, proofthat the accused broke and entered the place with intent to commit an indictable offence therein. Mr. Holland maintained his level ofintoxication could be inferred from his rather bizarre behaviour and argued it negated the specific intent required in order to establishguilt.

In other words, he maintained that the evidence of intoxication constituted evidence to the contrary to rebut the presumption he hadbroken into the house with intent to commit an indictable offence therein. [5] In addition to Mr. Holland’s testimony as to his intoxication, one of three police officers whotestified opined Mr. Holland was intoxicated at the time of his arrest. On the other hand, two others officers joined with one of theoccupants of the house in stating that no obvious sign of intoxication was noted. [6] The trial judge did not believe Mr. Holland. The judge concluded Mr.

Holland had entered thehouse with the intent to commit an indictable offence, and, when the homeowner caught him, he spun a tale to try to extricate himselffrom the situation. Mr. Holland was therefore convicted of the offence charged. [7] Mr. Holland appeals the conviction. In his notice of appeal, he raised three grounds, but thesehave now been condensed into two: (1) whether the trial judge erred in law in his application of the principles set out in R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742, [1991] 1 S.C.J. No. 126 (QL); and, (2) whether the judge erred in law in failing to considerMr.

Holland’s intoxication as evidence to the contrary sufficient to rebut the presumption. [8] In my view, there is no merit to either ground of appeal. [9] A ground of appeal based on the W.(D.) analysis must be scrutinized in light of the principlesthat have been elaborated in a number of Supreme Court and appellate decisions. These were recently summarized in R. v. Wilson, 2013NBCA 38, [2013] N.B.J. No. 304 (QL). It is true that, after stating he did not believe Mr. Holland, the trial judge did not expresslyaddress the second branch of the W.(D.) analytical framework, that is, whether Mr.

Holland’s testimony nevertheless raised a reasonabledoubt. However, by stating the accused was not believed, the trial judge was implicitly addressing the first two steps in W.(D.): Wilson,at para. 36 A.6. Moreover, in a case that turns on credibility, it is not an error of law for the judge, upon rejecting the accused’s evidence,to fail to add that it does not raise reasonable doubt.

This is so because the conviction itself raises an inference that the accused's evidencefailed to raise a reasonable doubt: Wilson, at para. 36 C.19. [10] As for the allegation the judge failed to consider intoxication as evidence to the contrary to rebutthe presumption, Mr. Holland does make one valid point. The trial judge articulated the standard to rebut the presumption as follows: “Imust find evidence sufficient to rebut the presumption on the balance of probabilities.” Mr. Holland argues this is not the correctstandard. I agree.

So does the Attorney General, who concedes that point. [11] The presumption set out in s. 348(2) reflects the legal and logical relationship between theproven fact of Mr. Holland having broken and entered the victim’s home and the inference that, as he had no right to be there, he musthave done so with the intent to commit an offence. In the usual course of things, people have no business breaking and entering into astranger’s home, and it is logical to presume that, where one has done so, it is for an improper purpose. Of course, in some cases, theremay be an innocent explanation.

Thus, the legal effect of the presumption is that it is applied unless there is evidence to the contrary. [12] In a criminal case, the onus of proof is on the prosecution to prove all elements of an offencebeyond a reasonable doubt. Where, as in s. 348(2), a provision creates a presumption that applies “in the absence of evidence to thecontrary”, it is wrong to say that there is an onus on the accused to rebut the presumption on a balance of probabilities. The presumptionapplies unless there is any evidence, not expressly disbelieved, that would negate it.

All the accused has to do is point to evidence to thecontrary that could reasonably be true. Unless that evidence is affirmatively rejected, it will negate the effect of the presumption and thenrequire the prosecution to prove the mens rea element of the office beyond a reasonable doubt: R. v. Proudlock (1978), (SCC), [1979] 1 S.C.R. 525, [1978] S.C.J. No. 100 (QL).

[13] As Pigeon J. points out in Proudlock, the presumption, in what is now s. 348(2), is not oneexpressed in terms as to require the accused to “establish” or “prove” a given fact or excuse. All the accused has to do is raise areasonable doubt. “If there is nothing in the evidence adduced by the Crown from which a reasonable doubt can arise, then the accusedwill necessarily have the burden of adducing evidence if he is to escape conviction.

However, he will not have the burden of proving hisinnocence, it will be sufficient if, at the conclusion of the case on both sides, the trier of fact has a reasonable doubt” (p. 549). Pigeon J.summarizes as follows: The standard of evidence required for a conviction, including the standard of the evidence required to overcome a prima facie caseagainst the accused, is just as basic a principle as the right of the accused to remain silent. In fact, it may be considered as a qualificationof this principle.

The accused may remain silent but, when there is a prima facie case against him and he is, as in the instant case, theonly person who can give "evidence to the contrary" his choice really is to face certain conviction or to offer in testimony whateverexplanation or excuse may be available to him.

If the prima facie case is made up by the proof of facts from which guilt may be inferred by presumption of fact, the law is clear on theauthorities that, because the case in the end must be proved beyond a reasonable doubt, it is not necessary for the accused to establish hisinnocence, but only to raise a reasonable doubt. This he may do by giving evidence of an explanation that may reasonably be true, and itwill be sufficient unless he is disbelieved by the trier of fact, in which case his testimony is no evidence.

In any case, the evidence givenby himself or otherwise, has to be such as will at least raise a reasonable doubt as to his guilt; if it does not meet this test the prima faciecase remains and conviction will ensue. [p. 550 - 551] [Emphasis added.] [14] In the present case, Mr. Holland relied on two aspects of the evidence in arguing there wasevidence to the contrary that would displace the presumption and raise a reasonable doubt as to his guilt. [15] First, he testified he had broken into the home in an effort to escape the pursuit of one whomeant him harm. This evidence was affirmatively rejected.

The trial judge expressly stated he did not believe Mr. Holland’s testimonyregarding the presence of another individual. The judge explained that Mr. Holland did not act in an innocent manner: he did not cry forhelp either outside the home or upon entry. It was only when the homeowner caught him in the home that he spun what the judgeconsidered to be a tale in an effort to extricate himself from the situation. [16] Second, Mr. Holland testified he was intoxicated. He points to his unusual behaviour and to hisreferences to the FBI and to people from Afghanistan as proof he was not in a sound state of mind.

He also points to the evidence of oneof the police officers as support for his claim of intoxication. The evidence of the officer alone, he says, especially coupled with hisunusual behaviour, should be sufficient as evidence to the contrary. [17] The Attorney General points out the incongruity of Mr. Holland’s position. Mr. Holland claimshe had the presence of mind to know he was being threatened and to alert the homeowner to call the police, yet he maintains he wasintoxicated to the point of not being able to form the specific intent required to commit an offence under s. 348(1)(a).

Moreover, if Mr.Holland had the presence of mind to purposefully spin a tale to both the homeowner and the police in an attempt to extricate himselffrom the situation once he was caught in the home, it must follow he was not intoxicated to the extent of being unable to form thespecific intent to commit an indictable offence in the home. [18] Nevertheless, pointing to R. v. Quin, (SCC), [1988] 2 S.C.R. 825, [1988] S.C.J.No. 99 (QL), the Attorney General recognizes that “drunkenness, depending upon the evidence, is a defence to crimes of specific intent”(para. 15).

However, the Attorney General argues it is not all levels of intoxication that will provide a defence to a crime of specificintent and that can thus constitute evidence to the contrary. [19] Relying on R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, the Attorney General maintains that“mild” intoxication, or what has been described as alcohol-induced relaxation of both inhibition and socially acceptable behaviour, hasnever been accepted as an excuse in determining whether an accused possesses the requisite mens rea.

Rather, there must be proof of anadvanced state of intoxication, that is, intoxication to the point where the accused lacks the foresight of the consequences of his or heract. To simply say I had been drinking, without more, the Attorney General argues, is not evidence to the contrary. The accused mustpoint to evidence that shows he was intoxicated to the point of not being able to form the specific intent required to be found guilty of theoffence created by s. 348(1)(a). I agree.

[ 20 ] To simply say there is evidence I was drinking and therefore I could not have formed the intent to commit an indictable offence in the house into which I broke and entered is insufficient. The state of an accused’s intoxication must be examined in light of all the circumstances. If these suggest an advanced state of intoxication sufficient to raise a reasonable doubt that the accused lacked the foresight of the consequences of his or her act, then intoxication may constitute evidence to the contrary: R. v. Campbell , [1974] O.J. No. 351 (C.A.) (QL), at para. 9 .

Otherwise, it does not. [ 21 ] In the present case, although the trial judge erred in stating Mr. Holland had to rebut the presumption on a balance of probabilities, the error is of no consequence. Pointing to the testimony of two officers described as “highly trained [and] used to dealing with intoxicated people”, both of whom did not consider Mr. Holland to be intoxicated, and even considering the testimony of the officer who thought otherwise, the judge specifically found there was “nothing to indicate that [Mr.

Holland] was incapable of forming the intent to break and enter the [victims’] home.” The judge found Mr. Holland intentionally broke down the door and entered the home “with intent to commit a criminal offence, which he did [meaning a threatening gesture the judge found Mr. Holland to have made when he was caught by the homeowner].” [ 22 ] In my view, it is abundantly clear the trial judge rejected Mr. Holland’s suggestion of advanced intoxication, including the support that might be found in the officer who noted a smell of alcohol.

Having rejected this evidence, it could not constitute evidence to the contrary. The judge found Mr. Holland had the presence of mind to spin a tale to try to extricate himself from the situation after the homeowner caught him in the home. Both the finding of spinning the tale and of having the presence of mind are supported by the evidence and therefore could not be overturned on the palpable and overriding standard. In fact, these findings have not been attacked on appeal. [ 23 ] Where the evidence of advanced intoxication was expressly rejected, it could not have constituted evidence to the contrary.

It therefore matters not that the judge thought he had to be convinced on a balance of probabilities of Mr. Holland’s advanced state of intoxication. In reality, on the facts as he found them – findings that are amply supported by the evidence – there was no evidence to the contrary to displace the presumption. Thus, while the judge articulated the wrong test, he did not err in finding Mr. Holland guilty as charged. [ 24 ] For these reasons, I would dismiss the appeal. __________________________________ J.C. MARC RICHARD, J.A. WE CONCUR: ________________________________ B.

RICHARD BELL, J.A. ________________________________ KATHLEEN A. QUIGG, J.A.