R. v. Woolman, 2024 BCSC 206

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Woolman, 2024 BCSC 206 Date: 20240208 Docket: 43177 Registry: Campbell River Between: Rex Respondent And Kimberly Brenda Woolman Appellant Before: The Honourable Justice Thompson On appeal from: An order of the Provincial Court of British Columbia, dated April 13, 2023 ( R. v. Woolman , 2023 BCPC 66 ) Reasons for Judgment The Appellant, appearing in person: K. Woolman Counsel for the Respondent: W. Silliker Place and Date of Hearing: Campbell River, B.C. January 11, 2024 Place and Date of Judgment: Campbell River, B.C. February 8, 2024 [ 1 ] This is a

summary conviction appeal. The appellant was convicted of causing a disturbance by shouting and two counts of assault. The appellant asserts myriad grounds of appeal, many of which are manifestly without merit. However, the respondent properly acknowledges that the trial judge erred when she refused to allow the appellant to call character evidence.

As I understand the respondent’s submission, it argues for the application of s. 686(1)(b)(iii), the curative proviso. [ 2 ] Because I have concluded that the appeal must be allowed and verdicts of acquittal are to be entered, it is unnecessary to address the grounds of appeal other than the character-evidence ground. The facts that bear on this ground may be briefly stated. The appellant was shopping at a Campbell River grocery store on 24 April 2020, and was complaining with considerable persistence and vigour about the store’s enforcement of COVID safety protocols. She was attended by various store employees.

The trial judge found that in the course of events she shouted and disturbed store employees and other customers. The judge also found that she assaulted one employee by intentionally coughing in their direction, and assaulted another by intentionally pushing her shopping cart into him. [ 3 ] The appellant began the trial without counsel, but had counsel acting for her during a portion of the Crown’s case which consisted of the evidence of the two assault complainants, three other store employees, and some video-recordings. In the midst of the Crown’s case, the appellant discharged her counsel.

Shortly after, the appellant advised the trial judge that she intended in due course to call a character witness. Crown counsel (who is not counsel on this appeal) submitted that character evidence would be irrelevant. The judge ruled against admissibility, holding that character evidence can be helpful in sentencing proceedings, but character evidence is not admissible on a trial proper whether led by the Crown or an accused. After this erroneous ruling, the Court heard evidence from the last two Crown witnesses. The accused elected not to call evidence.

After hearing submissions and reserving judgment, the trial judge delivered her reasons for convicting the appellant on all three counts on the Information. [ 4 ] The respondent submits that the appeal ought to be dismissed despite the trial judge’s acknowledged wrong decision on a question of law. The respondent’s position is summarized in its factum as follows: 15. While acknowledging this error, appellate intervention is not required. As is clear through the evidence referenced above, this trial relied on oral testimony from several witnesses, as well as from video evidence.

This was not a case of mistaken identity. Character evidence would not have assisted the Appellant at trial. The question of whether she is of good character does not displace the video depicting the crime, nor does it displace the numerous eyewitnesses who testified and were found to be credible and reliable. 16.

If a trial judge was tasked to determine the identification of an alleged perpetrator and the court was provided with good character evidence which suggested that the accused appearing before the court was less likely to have committed that offence, then it is acknowledged that character evidence might have assisted the trier of fact. This was not the fact scenario with the case at bar.

[5] An appeal from a

summary conviction matter is governed by

Part XXVII of the Criminal Code. Section 822(1) provides thatss. 683 to 689 relating to appeals of indictable offences, except s. 683(3) and s. 686(5), apply.

Section 686 provides, in relevant part: 686

(1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminallyresponsible on account of mental disorder, the court of appeal (

a) may allow the appeal where it is of the opinion that … (ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or … (

b) may dismiss the appeal where … (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 . . .

(2) Where a court of appeal allows an appeal under paragraph (1)(a), it shall quash the conviction and (

a) direct a judgment or verdict of acquittal to be entered; or (

b) order a new trial. [6] Before the curative proviso may be invoked, the Crown must carry the heavy burden of establishing either a harmless error or anoverwhelming case: R. v. Sarrazin, 2011 SCC 54 at para. 28. These two possible routes to invocation of the proviso were addressed in R.v. White, 2011 SCC 13: [91] This Court recently reviewed the principles governing the application of the curative proviso in [R. v. Van, 2009 SCC 22].

LeBelJ., writing for the majority, noted that there are two categories of errors that satisfy the requirements of s. 686(1)(b)(iii): An error falling into the first category is an error that is harmless on its face or in its effect. The proviso ensures that an appellate courtdoes not need to overturn a conviction solely on the basis of an error so trivial that it could not have caused any prejudice to the accused,and thus could not have affected the verdict.

Indeed, it would detract from society's perception of trial fairness and the properadministration of justice if errors such as these could too readily lead to an acquittal or a new trial (e.g. Chibok v. TheQueen (1956), (SCC), 24 C.R. 354 (S.C.C.), at p. 359).... Errors might also be characterized as having a minor effect ifthey relate to an issue that was not central to the overall determination of guilt or innocence, or if they benefit the defence, such as byimposing a more onerous burden on the Crown (Khan, at para. 30).

The question of whether an error or its effect is minor should beanswered without reference to the strength of the other evidence presented at trial.

The overriding question is whether the error on itsface or in its effect was so minor, so irrelevant to the ultimate issue in the trial, or so clearly nonprejudicial, that any reasonable judge orjury could not possibly have rendered a different verdict if the error had not been made. [para. 35] [92] An appellate court can also uphold a conviction under s. 686(1)(b)(iii) in the event of an error that was not minor andthat cannot be said to have caused no prejudice to the accused, if the case against the accused was so overwhelming that a reasonable andproperly instructed jury would inevitably have convicted (R. v.

Khan, 2001 SCC 86, [2001] 3 S.C.R. 823 (S.C.C.), at para. 31). [93] Thus, the first category of error that satisfies the requirements of the curative proviso is that of "minor" or "harmless" errors. Indetermining whether or not an error had only a minor effect, the court may look at the entirety of the case for context, but should notassess the strength of the evidence against the accused (Van, at paras. 35 and 37).

For example, an error that appears significant inisolation may be minor because, in context, it only related to "a very minor aspect of the case that could not have had any effect on theoutcome" or concerned "issues that the jury was otherwise necessarily aware of" (Khan, at para. 30). [94] By contrast, the second category consists of errors that, while serious and prejudicial, can have had no impact on the verdictbecause the case against the accused was overwhelming.

Here, the appellate court must evaluate the strength of the other evidence todetermine whether a conviction would have been inevitable even if the serious error had not been made. If a properly instructed jurywould inevitably have convicted, upholding the conviction produces no significant injustice to the accused (Van, at para. 36). [Emphasis in original.] [7] It is not entirely clear from the respondent’s argument, quoted above, whether it relies on the first or second pathway to theproviso – or both.

Indeed, the argument does not specifically refer to the proviso or any cases interpreting or applying it. [8] I conclude with little hesitation that the error of law was not harmless or minor. The respondent’s submission related to theproviso focuses on identity not being a live issue at trial. However, character evidence can go to issues other than identity. Among thelive issues on the causing a disturbance count were whether the appellant was shouting, and on the assault counts whether there was anintentional application of force.

Complicating the analysis is the timing of the judge’s ruling, coming as it did in the midst of theCrown’s case: it is impossible to know whether the accused might have chosen to testify if the character evidence were not excluded. [9] The weight of the evidence heard by the judge supported her finding that the appellant shouted. However, the impressions of theCrown witnesses on this issue were not uniform.

At para. 20 of her reasons, the trial judge summarized one employee’s evidence onvoice volume as follows: “She began speaking in a ‘slightly aggressive tone’ that became elevated over time but never progressed to whathe considered yelling.” Of course, the weighing of the evidence is for the trial judge. But, the point is that the body of evidence she

weighed would not have been the same if the character evidence were heard. It is a reasonable supposition that the excluded characterevidence would have been to the effect that the appellant’s reputation is as a peaceable person, and the record may have includedevidence from the appellant about how loud she was speaking. [10] On the assault counts, it is a reasonable possibility that the character evidence, with or without the evidence of the appellant,could have affected the outcome. The findings of fact, including the

interpretation of the video evidence, were made without thisadditional evidence which may have been particularly germane to the issue of whether applications of force were intentional. [11] I am not satisfied that the character evidence ruling was harmless in that it related to a minor aspect of the case that could nothave had any effect on the outcome or that it concerned an issue (i.e. the appellant’s reputation in the community) that the judge wasotherwise aware of. [12] Turning to the second potential avenue to the curative proviso, the question is whether the Crown has established that the case isso overwhelming that a reasonable and properly instructed judge would inevitably convict.

Commenting on this branch of the test,Justice Deschamps observed in R. v.

Trochym, 2007 SCC 6 at para. 82, that this “standard applied by an appellate court … is asubstantially higher one than the requirement that the Crown prove its case ‘beyond a reasonable doubt’ at trial,” and that the higherstandard is a reflection of the difficulty for an appellate court to retroactively assess “the effect that, for example, excluding certainevidence could reasonably have had on the outcome.” [13] I instruct myself that it is not appropriate to invoke the curative proviso even if it could be said that the error of law is “highlyunlikely to have affected the result” or that the Crown’s case on each count would be “very strong” on a new record as envisioned: R. v.Sarazzin, at paras. 26-28.

The burden rests with the respondent to demonstrate that the case is sufficiently overwhelming on each elementof each count. I have reviewed the record and the trial judge’s reasons, and I cannot characterize the respondent’s case as overwhelmingon each element of any of the three charges.

In particular, as touched on earlier in these reasons, proof of the actus reus element ofshouting on the causing a disturbance charge is not a foregone conclusion, and on the assault charges the issues barring the application ofthe proviso include mens rea, i.e. whether, if force was applied, it was intentional. [14] The appeal is allowed and the convictions quashed. The remaining issue is whether verdicts of acquittal ought to be entered or anew trial ordered.

A new trial would usually be ordered in a case like this because there is a reasonable possibility of convictions on aretrial having regard to the record as it might be without the error of law. However, in R. v. Tom (1992), (BC CA),79 C.C.C.(3d) 84 at 95 (B.C.C.A.), Wood J.A., speaking for the division, said: This court has a discretion to order an acquittal under s. 686(2)(

a) of the Criminal Code, even though there is evidence upon which aproperly instructed jury, acting judicially, could reasonably convict if a new trial were held. That discretion has been exercised in the pastwhere part or all of a fit sentence has been served before a successful appeal from conviction: R. v. Dillabough (1975), (ON CA), 28 C.C.C. (2d) 482 (Ont.C.A.) . . . [15] In Dillabough, the appellant had served three weekends of a 30-day intermittent sentence (p. 483). In the case at bar, the trialjudge imposed an 18-month probation order, and the appellant has completed about a third of this sentence. In these circumstances, Idirect that verdicts of acquittal be entered. “Thompson J.”