R v Meeko, 2021 NUCA 8

ᓄᓇᕘᒥ ᐅᓐᓂᓗᖅᓴᖅᑐᓄᑦ ᐃᖅᑲᖅᑐᐃᕕᒃ Nunavunmi Apiqhuidjutainut Uuktuffaarutit Nunavut Court of Appeal Cour d'appel du Nunavut Citation: R v Meeko, 2021 NUCA 8 Date: 20210603 Docket: 13-18-006-CAP Registry: Iqaluit Between: Her Majesty the Queen Respondent - and - Johnny Meeko Appellant Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that may identify the complainant or witnesses must not be published, broadcast, or transmitted in any way. NOTE: This judgment is intended to comply with the identification ban. _______________________________________________________ The Court: The Honourable Madam Justice Shannon Smallwood The Honourable Madam Justice Jolaine Antonio The Honourable Mr. Justice Kevin Feehan _______________________________________________________ Appeal from the Convictions and Sentence by The Honourable Mr. Justice N. Sharkey

dated the 26th day of April, 2018 ( 2018 NUCJ 6 , Docket: NCJ Court File No. 13-12-69) _______________________________________________________ Memorandum of Judgment _______________________________________________________ Introduction [ 1 ] The appellant, Johnny Meeko, appeals his convictions for numerous historic sexual offences, and appeals his sentence. Background [ 2 ] From 1973 until his retirement in 2009, Mr.

Meeko worked for the territorial Department of Education at Nuiyak school in Sanikiluaq, starting as a classroom assistant and then as a teacher. [ 3 ] In 2012, he was charged with numerous sexual offences dating from 1972 to 2007 and involving nine victims. The victims were children, adolescent pre-teens, teenagers and one adult, most of whom were students at the school. [ 4 ] Following his arrest, the appellant gave a statement to the police in which he admitted he had sexually touched complainants known as X, Y, Z, A, B and C. He provided the name of a seventh complainant, known as D.

E and F, the eighth and ninth complainants, went to the police after the August 2012 interview. [ 5 ] A voluntariness voir dire was held before the trial began. The trial judge did not believe the appellant made his statements under duress. He admitted the appellant’s police statement into evidence. [ 6 ] After hearing testimony from each of the complainants and the appellant, the trial judge found the appellant guilty of offences against each complainant except F. [ 7 ] The Crown respondent concedes that the admission of the appellant’s statement was the result of a legal error.

It concedes that because the trial judge expressly relied on the appellant’s statement to corroborate the testimony of complainants A and B, the convictions on the corresponding counts should be overturned. The Crown submits that convictions would have been entered on the remaining counts even without the appellant’s statement, and therefore the appeals from those counts should be dismissed. Reasons of the Trial Judge: R v Meeko , 2018 NUCJ 6 [ 8 ] The trial judge found the complainants, with the exception of F, to be credible and rejected the defence claim of collusion.

He further found that, with the exception of F, the complainants were not motivated by the possibility of a civil claim against the appellant and his former employer. [ 9 ] Regarding the appellant’s credibility, the trial judge stated, “I was troubled by some of [the appellant]’s testimony about his interview with the police. And I was also troubled by some of [the appellant]’s testimony which had nothing to do with his police interview.” He identified four main areas of concern. [ 10 ] First, he considered the appellant’s contrasting statements regarding a reprimand he received from the Superintendent of

Schools in 2009. In response to allegations that he had touched some students inappropriately, he had said it was his practice to patprimary students on their bottoms to get them to sit down at their desks. At trial, he testified he could “not remember any of this at all”and he denied ever touching or patting students on their bottoms to get them to sit down. [11] The trial judge found the appellant was less than forthright in answering questions related to the reprimand.

He found theappellant’s professed absence of memory was disingenuous and a convenient way of avoiding the topic of touching students on theirbottoms. He did not accept the suggestion that the appellant’s memory had been affected by subsequent surgeries, particularly since hismemory of other non-contentious events was remarkably clear. The trial judge found the appellant intentionally lied under oath at trialwhen he denied ever touching students on their bottoms to get them to sit down at their desks. [12] Second, the trial judge was troubled by the appellant’s testimony regarding complainant F.

In examination-in-chief, theappellant denied having sex with any of the complainants. But in cross-examination, he testified he had consensual sex with F. Heexplained that F made a sexual advance towards him and that he only agreed to have sex with F “to calm her down”. The trial judgefound this explanation ludicrous. [13] Third, the trial judge was troubled by the appellant’s testimony regarding his disciplinary methods. On the stand, he deniedusing any physical discipline.

In his police statement, he had said he sometimes disciplined students by slapping their hands or spankingthem, and that the complainants were trying to get back at him for disciplining them in the past. The trial judge called this “a bigcontradiction”, material to his general credibility. It was also material that the appellant made no effort to explain the contradiction. [14] Finally, the trial judge was troubled by the appellant’s explanation of how he was able, during his police interview, to identifyD as a student he had sexually assaulted.

He rejected the appellant’s claims that the police had altered the video of the interview and thatthey had helped or directed him to identify D. The trial judge concluded it was true that the appellant had assaulted D. [15] Defence counsel argued that the statement should not be believed because the appellant felt pressured to please the police,even to the point of lying. The trial judge rejected that argument and accepted the confessions as true.

He rejected the appellant’stestimony regarding the offences and found it did not raise a reasonable doubt. [16] With the exception of complainant F, the trial judge accepted most of the testimony of the complainants, noting some pointsof concern with their evidence. He concluded that the testimony of complainants E, D, Y, X, Z, A and C proved the correspondingoffences beyond a reasonable doubt, without relying on the appellant’s confession. Regarding B, he had some reservations about hertestimony but they were “negated” by the appellant’s confession.

He set out his fact findings for each complainant and concluded thecounts concerning E, D, Y, X, Z, A and C had been proved beyond a reasonable doubt. Issue on Appeal [17] The appellant submits the trial judge erred in admitting the appellant’s confession. The Crown concedes this ground ofappeal.

We accept the Crown’s concession that the trial judge failed to identify or to consider all relevant inducements or circumstancesrelevant to oppression when he found the appellant’s statement to be voluntary, and thereby erred in law: R v Bitternose, 2013 ABCA220 at para 38, citing Harper v The Queen, (SCC), [1982] 1 SCR 2 at 14. [18] The appellant further submits that as a result of the error in law, a new trial must be ordered.

The Crown concedes the errortainted the convictions concerning complainants A and B, but submits section 686(1)(b)(iii) of the Criminal Code, known as the“curative proviso”, should be applied to uphold the remaining convictions. [19] Section 686(1)(b)(iii) provides: 686.

(1) On the hearing of an appeal against a conviction or against a verdict . . . the court of appeal . . . (

b) may dismiss the appeal where . . . (iii) notwithstanding that the court is of the opinion that on any ground [of a wrong decision on a question of law] … the appeal might bedecided in favour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred… Analysis [20] The curative proviso may be applied where (1) the error is harmless or trivial and could not possibly have affected the verdict,or (2) the evidence is so overwhelming that, not withstanding an error that is not minor, the trier of fact would inevitably convict: R vSekhon, 2014 SCC 15 at para 53, citing R v Bevan, (SCC), [1993] 2 SCR 599 at 617, aff’d in R v Khan, 2001 SCC 86,[2001] 3 SCR 823 at para 28. [21] The Crown does not suggest the incorrect admission of the appellant’s statement was a trivial error.

It relies on the secondbranch of the proviso, arguing that (

a) it was inevitable that the appellant’s evidence would be rejected and (

b) it was inevitable that theCrown’s evidence would be accepted. (

a) The appellant’s evidence

[22] The trial judge had four main areas of concern about the appellant’s testimony: his explanation for consensual sex withcomplainant F; his explanation of why he identified complainant D in his police statement; his lie about the 2009 reprimand incident;and the contradiction between his testimony and his statement on his use of corporal punishment.

The latter two concerns are arguablylinked in the credibility analysis, since the two out-of-court statements (one made to school officials and one to the police) were incontrast to the appellant’s testimony on the same subject. [23] The Crown asserts that two of the trial judge’s four areas of concern, the reprimand and the explanation for sex with F, areindependent of the tainted police statement and show that, even without the statement, rejection of the appellant’s testimony wasinevitable. [24] We cannot be confident that disbelieving the appellant was an inevitable outcome.

In addition to the two concerns the Crownrelies on, the trial judge also expressly based his credibility finding on conflicts between the appellant’s police statement and histestimony. He is presumed to have considered the evidence as a whole in reaching that conclusion: R v Dinardo, 2008 SCC 24 at para 23. [25] Beyond that, any conclusion that the appellant’s evidence would have been disbelieved would not end the analysis. Evenevidence that is disbelieved can contribute to a reasonable doubt.

We are not satisfied that, absent reliance on the police statement, theappellant’s evidence inevitably would have been rejected and inevitably would not have contributed to a reasonable doubt. (

b) The Crown’s evidence [26] Where an error made at trial is serious, to rely on the proviso, the Crown must establish that “the evidence against theappellant was overwhelming” or “the evidence is so overwhelming that the verdict would inevitably have been the same”: R v LKW(1999), (ON CA), 126 OAC 39, 138 CCC (3d) 449 at paras 95-96. The Supreme Court of Canada has repeatedlyaffirmed the need for “overwhelming” evidence, recently in R v Khan at para 31, citing R v Nijjar, (SCC), [1998] 1SCR 320; Alward v The Queen, (SCC), [1978] 1 SCR 559; and Ambrose v The Queen, (SCC), [1977]2 SCR 717.

The decision in Khan relied on R v S(PL), (SCC), [1991] 1 SCR 909, where Sopinka J said at 916: On the other hand, if the Court of Appeal finds an error of law with the result that the accused has not had a trial in which the legal ruleshave been observed, then the accused is entitled to an acquittal or a new trial in accordance with the law. . . .

There is, however, anexception to this rule in a case in which the evidence is so overwhelming that a trier of fact would inevitably convict. [27] Twice in his reasons, the trial judge said the testimony of most of the complainants, without regard to the statement, wassufficient to prove the corresponding offences beyond a reasonable doubt. On the first occasion, he listed complainants E, D, X, Y, Z, Aand C, and on the second, complainants X, Y, Z, A and C. The Crown submits this Court should take him at his word and conclude theevidence of complainants X, Y, Z and C would inevitably have been accepted.

It submits that the inclusion of A in the trial judge’s listwas a typographical error. It further submits that even though D and E were omitted from the second list, the reasons show the trialjudge accepted their evidence and did not rely on the appellant’s statement in corroboration. The Crown concedes the proviso cannotpreserve the convictions concerning complainants A and B, since the trial judge used the police statement to corroborate their evidence. [28] The trial judge observed that the appellant’s statement “contains sufficient narrative to corroborate” the testimony of X, Y, Z,A, C and B.

In assessing A’s evidence, the trial judge did not express the kind of reservations he had regarding B’s evidence, but he didexpressly note that one of her allegations was “corroborated by [the appellant’s] own statements during his police interview.” It is notclear the repeated inclusion of A in the trial judge’s list was a typographical error.

Rather, it gives rise to a lack of certainty as to howthe statement was used in A’s case. [29] Even assuming the trial judge would have believed the majority of the complainants regardless of the appellant’s confession,we cannot find that the Crown’s evidence was “overwhelming”. As the trial judge observed, there were some difficulties with theevidence of various complainants. This is not a criticism of the witnesses, particularly given the passage of time.

Inconsistencies are notnecessarily fatal to a witness’ testimony, but they must be weighed by the trier of fact in the context of all the evidence. [30] Further, as the trial judge pointed out, there was no evidence corroborating the witnesses’ accounts. Corroboration is not alegal requirement and its absence is by no means fatal to a prosecution or a conviction, but it has sometimes been a factor in decisions toapply the curative proviso: e.g. R v LKW, R v Cortes Rivera, 2020 SCC 44, upholding 2020 ABCA 76. The fact is that this case turnedon credibility.

In these particular circumstances, we do not find that the evidence against the appellant can be fairly described as“overwhelming”. Conclusion [31] To succeed in invoking the curative proviso in a case of serious error, the Crown would need to establish that its evidence attrial was so overwhelming that the trier of fact would inevitably convict. It has not done so. [32] We cannot conclude that the case against the appellant, viewed in its entirety, was “overwhelming” within the meaning of the

jurisprudence on the proviso. In particular, we cannot conclude it was inevitable that the appellant’s testimony would be rejected and would not contribute to a reasonable doubt even absent the police statement. In short, we cannot conclude that convictions were inevitable on the counts concerning C, D, E, X, Y and Z. [ 33 ] The appeal is allowed and a new trial is ordered on all counts on which convictions were entered. [ 34 ] Given this result, the sentence appeal need not be considered.

Appeal heard on May 11, 2021 Memorandum filed at Iqaluit, Nunavut this 3rd day of June, 2021 Authorized to sign for: Smallwood J. Antonio J.A. Feehan J.A. Appearances: E. Baasch for the Respondent E. Taché-Green for the Appellant