R. v. S.T.L., 2015 BCSC 1056

Editor’s note: Corrigendum released on June 25, 2014. Original judgment has been corrected with text of corrigendum appended. IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. S.T.L., 2015 BCSC 1056 Date: 20150619 Docket: 4051 Registry: Campbell River Between: Regina v. S.T.L. Before: The Honourable Madam Justice Sharma On appeal from: Provincial Court of British Columbia, dated December 16, 2014 ( Regina v. L. , Campbell River File No.: 4051-2-C).

Corrected Judgment: As per s. 110 of the Youth Criminal Justice Act , on June 25, 2015 the parties’ names have been anonymized and changes have been made in paragraphs 1 and 2. Reasons for Judgment Counsel for the Crown: T. Morgan Counsel for the Appellant: S. Runyon Place and Date of Trial/Hearing: Campbell River, B.C. June 3, 2015 Place and Date of Judgment: Campbell River, B.C. June 19, 2015 [ 1 ] S.L. appeals from her conviction for theft under $5,000 pursuant to s. 334 (

b) of the Criminal Code . She says the trial judge failed to instruct himself properly on the law relating to credibility and that the judgment does not meet the standard for the sufficiency of reasons. The two issues are somewhat intermingled. The parties agreed on the standard of review for both issues. FACTS [ 2 ] S.L. was 16 at the time of the offence. She ran into a neighbour and family friend (Ms. W.) at the WalMart in Campbell River. She asked Ms. W. if she could get a ride back with her to their town. Ms. W. agreed but said she needed to stop at the Superstore in Campbell River first. Ms.

L. stayed in the car while Ms. W. went into the store. [ 3 ] Ms. W. filled up a shopping cart, left it in the store and then went to her vehicle where she spoke with Ms. L. Ms. L. testified that Ms. W. claimed her back was sore and asked her to retrieve the cart full of goods. Ms. W. handed her two receipts. Ms. L. admits she did not look at those receipts. [ 4 ] Ms. L. went into the store, located the cart and walked towards the exit.

As she walked out of the store, she was stopped by the store’s loss prevention officer. [ 5 ] The store’s security cameras captured most of what is described above. [ 6 ] The trial was brief. Ms. L. testified. She claimed to have an honest but mistaken belief that the goods in the grocery cart had been paid for. The only witness for the Crown was the loss prevention officer and Ms. L. did not cross-examine him. [ 7 ] The surveillance tape was played in court. The Crown urged the trial judge to reject all of Ms. L.’s testimony. The trial judge convicted Ms. L. and the judge’s reasons, in their entirety are:

It’s not reasonable for her to believe on the subjective basis or any other basis that a cart that took her 40 seconds to move to the self-checkout was already paid for. I don’t find her credible at all and I find her guilty as a result. THE RELEVANT LEGAL PRINCIPLES [8] There was no dispute about the applicable legal principles. [9] The Supreme Court of Canada has confirmed that the reasonable doubt standard must be applied when assessing the credibilityof the accused: R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742. This results in a three step analysis: (

i) if you believe theevidence of the accused, you must acquit; (ii) if you do not belief the testimony of the accused but you still have a reasonable doubtabout the accused’s credibility, you must acquit; and (iii) even if you have no doubt about the accused’s lack of credibility, you mustconsider whether on the evidence that you do accept, you are convinced beyond a reasonable doubt about the accused’s guilt. [10] The second ground of appeal relies on the principle that the trial judge had a duty to ensure his reasons explain why Ms.

L. wasconvicted, in a way that provides for both public accountability and permitting appellate review: R. v. Sheppard, 2002 SCC 26. Anappellate court asked to review the sufficiency of reasons must view them in the context of how the trial unfolded, the record, and theissues and submissions of counsel at trial. The trial court is not expected to set out every finding or conclusion in the process of arrivingat the verdict, or intervene simply because it believes the trial court did a poor job of expressing itself. In R. v.

R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, the court states trial judges must explain the logical link between the “what” of the verdict and the “why”.The key is that when reading the reasons, it must be plain to understand why the accused was convicted. [11] In R. v. Dinardo, 2008 SCC 24, the Supreme Court of Canada emphasized that reviewing reasons for sufficiency is a functionalenquiry (at para. 26): Where a case turns largely on determinations of credibility, the sufficiency of reasons should be considered in light of the deferenceafforded to trial judges on credibility findings.

Rarely will the deficiencies in the trial judge’s credibility analysis, as expressed in thereasons for judgment, merit intervention on appeal. Nevertheless, a failure to sufficiently articulate how credibility concerns wereresolved may constitute reversible error [cites omitted]. As this Court noted in R. v. Gagnon, 2006 SCC 17 , [2006] 1 S.C.R.621; 2006 SCC 17, the accused is entitled to know why the trial judge is left with no reasonable doubt”. [emphasis added] [12] The two grounds of appeal intertwine. Ms. L. correctly concedes that the failure to invoke the words or citation of W.(D.) is notfatal.

Instead, she says the reasons do not demonstrate that the trial judge turned his mind to all three directives from W.(D.). Thereforethe insufficiency of reasons is an independent ground of appeal but also relates to the credibility analysis. [13] Not every case lends itself to be scrutinized with strict adherence to those three steps. In Dinardo, the court stated (para. 23): What matters is that the substance of the W. (D.) instruction be respected.

In a case that turns on credibility…the trial judge must directhis or her mind to the decisive question of whether the accused’s evidence, considered in the context of the evidence as a whole, raises areasonable doubt as to his guilt. [emphasis added] [14] The appellant says the fundamental flaw with the trial judge’s reasons is that one cannot discern the logical link between thetrial judge rejecting her honest but mistaken belief as credible based on the “40 seconds” it took to walk the cart out of the store. [15] The Crown’s submissions emphasized that the trial judge viewed the security tape twice.

Crown’s position is that the “locationof the cart took on some considerable significance in this trial”. Crown’s written submissions supported the sufficiency of the trialjudge’s reasons: “…Why would the “paid for “ cart be left in the middle of the seasonal section, some 40 seconds away from the exit from the store (theAppellant offered that it took her two minutes to find the cart) (i.e. walk from the entrance to the cart). Secondly, even on the appellant’sevidence, she says she was told by Ms.

W. the “paid for” cart was right beside the door….when pressed to say how she then located thecart, she offered that Ms. W. also told her to walk around” … . [emphasis in original] [16] There was only one issue at trial: did Ms. L. have an honest belief that the goods in the cart were paid for? The trial judge didnot find her to be a credible witness. That left him with two more considerations.

Does he have a reasonable doubt about her belief thatthe goods were paid for, and if not, does all the other evidence still support a finding of guilt? [17] Despite the brevity of the reasons, I find that they do meet the Shepperd standard. Where a case turns on credibility, anappellate must afford deference to the trial judge’s assessment on credibility. As noted above, this is a functional enquiry that must takeinto account how the trial unfolded.

In other words, I should not view the reasons in an isolated fashion; I must assess them in light of thefact that the trial consisted of the testimony and cross-examination of Ms. L., the testimony only of the loss prevention officer, and asurveillance tape that captured some of Ms. W.’s and Ms. L.’s actions. [18] The trial judge had the advantage of viewing the surveillance tape as an aid not only to what happened, but also to verify Ms.

L.’s claim. He also saw Ms. L.’s demeanour in the witness stand. Having reviewed that tape, the trial judge found there was no basis upon which one could conclude the goods had been paid for because it took her 40 seconds to walk the cart from where it was to the self- checkout. His reference to there being no subjective basis signals his rejection of Ms. L.’s honest belief. In my view, his reference to there being “no other basis” signals that in consideration of all other evidence at trial.

In my view, that does represent the essence of the W.(D.) analysis. [ 19 ] This is an appropriate case to defer to the trial judge’s findings of facts and credibility. If one read the reasons in a vacuum, with no knowledge of the evidence at trial, they may have been difficult to understand. But that is not the correct approach. Credibility was the sole issue at trial. Like a picture, the tape undoubtedly was worth a thousand words. Certainly, it would have been preferable if the judge had used some more of those words to elaborate on his reasoning, but his reasons are not deficient for failing to do so.

Therefore I dismiss the appeal. “Sharma J.” IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. S.T.L., 2015 BCSC 1056 Date: 20150625 Docket: 4051 Registry: Campbell River Between: Regina v. S.T.L. Before: The Honourable Madam Justice Sharma On appeal from: Provincial Court of British Columbia, dated December 16, 2014 ( Regina v. L. , Campbell River File No.: 4051-2-C). Corrigendum to Reasons for Judgment Counsel for the Crown: T. Morgan Counsel for the Appellant: S. Runyon Place and Date of Trial/Hearing: Campbell River, B.C. June 3, 2015 Place and Date of Judgment: Campbell River, B.C.

June 19, 2015 Place and Date of Corrigendum: Campbell River, B.C. June 25, 2015 [ 20 ] This is a corrigendum to my Reasons for Judgment dated June 19, 2015 (2015 BCSC 1056). As per s. 110 of the Youth Criminal Justice Act, the parties’ names have been anonymized. At paragraph 1, the last sentence should read: “The parties agreed on the standard of review for both issues.” At paragraph 2, the second sentence should read: “She asked Ms. W. if she could get a ride back to their town.” “Sharma J.”