2012 NBCA 80, 2012 NBCA 80

COUR D’APPEL DU NOUVEAU-BRUNSWICK 26-12-CA LUKE BANKS APPELLANT LUKE BANKS APPELANT - and - - et - HER MAJESTY THE QUEEN RESPONDENT SA MAJESTÉ LA REINE INTIMÉE Banks v. R., 2012 NBCA 80 Banks c.

R., 2012 NBCA 80 CORAM: The Honourable Chief Justice Drapeau The Honourable Justice Robertson The Honourable Justice Green CORAM : L’honorable juge en chef Drapeau L’honorable juge Robertson L’honorable juge Green Appeal from a decision of the Court of Queen'sBench: February 29, 2012 Appel d’une décision de la Cour du Banc de la Reine: Le 29 février 2012 History of Case: Historique de la cause : Decision under appeal: 2012 NBQB 132 Décision frappée d’appel : 2012 NBQB 132 , 2012 NBBR 132 Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : s.o.

Appeal heard: September 12, 2012 Appel entendu : Le 12 septembre 2012 Judgment rendered: September 12, 2012 Jugement rendu : Le 12 septembre 2012

Counsel at hearing: Luke A. Banks appeared in person For the respondent: Cameron H. Gunn Avocats à l’audience : Luke A. Banks a comparu en personne Pour l’intimée : Cameron H. Gunn THE COURT The appeal against conviction is dismissed with reasons to follow. LA COUR L’appel de la déclaration de culpabilité est rejeté, avec motifs à suivre. The following is the judgment delivered by The COURT [1] The appeal against conviction is dismissed with reasons to follow. _____________________________________ J. ERNEST DRAPEAU, CHIEF JUSTICE OF NEW BRUNSWICK _____________________________________ J.T. ROBERTSON, J.A. ______________________________________ BRADLEY V. GREEN, J.A.

COURT OF APPEAL OF NEW BRUNSWICK 26-12-CA LUKE BANKS APPELLANT LUKE BANKS APPELANT - and - - et - HER MAJESTY THE QUEEN RESPONDENT SA MAJESTÉ LA REINE INTIMÉE Banks v. R., 2012 NBCA 80 Banks c. R., 2012 NBCA 80

CORAM: The Honourable Chief Justice Drapeau The Honourable Justice Robertson The Honourable Justice Green CORAM : L’honorable juge en chef Drapeau L’honorable juge Robertson L’honorable juge Green Appeal from a decision of the Court of Queen’sBench: February 29, 2012 Appel d’une décision de la Cour du Banc de laReine : Le 29 février 2012 History of Case: Historique de la cause : Decision under appeal: 2012 NBQB 132 Décision frappée d’appel : 2012 NBQB 132 , 2012 NBBR 132 Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : s.o.

Appeal heard and judgment rendered: September 12, 2012 Appel entendu et jugement rendu : Le 12 septembre 2012 Reasons delivered: November 8, 2012 Motifs déposés : Le 8 novembre 2012 Reasons for judgment by: The Honourable Chief Justice Drapeau Motifs de jugement : L’honorable juge en chef Drapeau Concurred in by: The Honourable Justice Robertson The Honourable Justice Green Souscrivent aux motifs : L’honorable juge Robertson L’honorable juge Green Counsel at hearing: Luke A. Banks appeared in person For the respondent: Cameron H. Gunn Avocats à l’audience : Luke A.

Banks a comparu en personne Pour l’intimée : Cameron H. Gunn

THE COURT The appeal is dismissed. LA COUR L’appel est rejeté. The judgment of the Court was delivered by DRAPEAU, C.J.N.B. I. Introduction [1] The appellant, along with fellow inmates Michael McKinnon and Charles Ross, stood trial inthe Court of Queen’s Bench on two charges of mischief, the first for wilful damage to property at the premises where they wereincarcerated (s. 430(3)(

a) of the Criminal Code), the second for wilfully obstructing, interrupting or interfering with the lawful use,enjoyment or operation of that property, which the Indictment described as “contrary to the provisions of Section 430(4)(a)”. In adecision reported at 2012 NBQB 132, [2012] N.B.J. No. 142 (QL), Mr. Ross was acquitted of both charges, while the appellant and Mr.McKinnon were convicted of mischief under s. 430(3)(a). Applying the principle articulated in R. v. Kienapple, (SCC),[1975] 1 S.C.R. 729, [1974] S.C.J.

No. 76 (QL), the trial judge directed a stay for the second charge in favour of both the appellant andMr. McKinnon. Issue is not taken with that disposition or the basis upon which it was made. [2] The appellant, who is now self-represented, appeals his conviction, arguing lack of evidenceand ineffective assistance of counsel. Following the hearing, the Court dismissed the appeal and indicated reasons would follow. Hereare those reasons. II. Background [3] The appellant was one of 16 inmates sharing 12 cells in Unit 4(

b) of the Saint John RegionalCorrectional Centre. Unit 4(

b) also featured: (1) a “day room,” containing, among other things, a television and a telephone; and (2) acontrol room, referred to as the “bubble”, from which corrections officers were able to supervise the inmates of Unit 4(

b) as well as thosein an adjacent sector, Unit 4(a). [4] On January 9, 2010, an inmate of Unit 4(b), Kayne Crothers, was observed handing a packageto Mr. McKinnon in the exercise yard. Mr. McKinnon was subsequently taken inside the building where, following the package’s search,contraband was seized. Meanwhile, Mr. Crothers was returned to the “day room”, where he eventually “rallied” other inmates andinstigated what the trial judge described as a “rampage”. [5] Five hours of chaos followed. During that time, several inmates caused extensive damage toproperty in Unit 4(b).

Specifically, sprinkler heads were broken and the contents of the cells and the “day room” (except for thetelephone) were destroyed, using the Unit’s porcelain toilets as projectiles. In this fashion, the inmates succeeded in breaching thesecurity of the “bubble” by smashing the window overlooking Unit 4(b). During the “rampage”, inmates wearing makeshift maskscaused several windows to be obstructed. They also ignited a small fire by smearing hand sanitizer on one of the control room’s windowsand setting it ablaze. Related repairs to Unit 4(

b) took more than two months and cost over $350,000. [6] At trial, several corrections officers identified the appellant as an active participant in themayhem. It was their testimony that he damaged sprinkler heads, hurled the first toilet to hit the control room window, and threw piecesof broken toilet into the “day room”.

III. Grounds of Appeal [7] The appellant’s primary objection is best described as an assertion that the verdict of guiltyentered at trial is unreasonable. In that regard, the appellant submits: (1) there was “absolutely no physical evidence” he committed theacts underlying the charge for which he was convicted; (2) the guards who testified “were coached into what to say on the stand”; and(3) he was convicted on “reputation not facts”.

The appellant also complains his counsel provided ineffective representation by failing tocompetently highlight, through cross-examination, the “contradictions” and “inconsistencies” in the accounts provided by correctionsofficers called as Crown witnesses. IV. Law and Analysis A. Verdict unreasonableness [8] Section 686(1)(a)(

i) provides that a court of appeal may allow an appeal against convictionwhere it concludes the verdict is “unreasonable or cannot be supported by the evidence”. In Hubbard v. R., 2009 NBCA 28, 360 N.B.R.(2d) 1, Bell J.A., writing for the Court, provides a helpful

summary of the jurisprudence dealing with the scope of review envisaged by s.686(1)(a)(i): An appellate court may allow an appeal if it concludes the verdict is unreasonable within the scope of s. 686(1)(a)(

i) of the CriminalCode. The test is whether a verdict is unreasonable and not whether it is unjustified: Corbett v. The Queen, (SCC),[1975] 2 S.C.R. 275, [1973] S.C.J. No. 157 (QL). The function of this court is not to substitute itself for the jury, but to decide whetherthe verdict is one that “a properly instructed jury, acting judicially, could reasonably have rendered” (p. 282). Subsequent Courtdecisions including R. v. Yebes, (SCC), [1987] 2 S.C.R. 168, [1987] S.C.J. No. 51 (QL), R. v. Burke, (SCC), [1996] 1 S.C.R. 474, [1996] S.C.J. No. 27 (QL), R. v. A.G., [2000] 1 S.C.R. 439, [2000] S.C.J.

No. 18 (QL), 2000 SCC 17, R. v.Biniaris, [2000] 1 S.C.R. 381, [2000] S.C.J. No. 16 (QL), 2000 SCC 15, have applied the law as set out in Corbett. In R. v. A.G., ArbourJ. for the majority states that “[…] [a]s this Court’s s. 686(1)(a)(

i) jurisprudence makes very clear, the fact that an appeal court judgewould have had a doubt when the trial judge did not is insufficient to justify the conclusion that the trial judgment was unreasonable”(para. 29). […] In undertaking a review under s. 686(1)(a)(i), the appellate court must be mindful of the advantageous position of the trial judge inassessing the credibility of the witnesses, including the accused […][paras. 11-12] [Emphasis added.] [9] In R. v.

Deschênes, 2012 NBCA 10, 382 N.B.R. (2d) 334, the appellant contended hisconviction rested upon unreliable testimony and, consequently, that he should be acquitted. The Court rejected this submission on thefollowing basis: It has consistently been held that an appellate court should not retry cases. The role of the court of appeal was described as follows in R.v. Simon, [1999] N.B.J. No. 393 (QL), at para. 2: Since this Court is a court of review, its function is not to retry an accused.

Rather, its role is essentially to review the record of theproceedings below to determine whether the accused received a fair trial on proper evidence and according to the law. Matters ofcredibility are clearly within the province of the trier of fact and this Court is duty bound to respect a trial judge’s conclusions in respectof such matters except in the most unusual cases. See R. v. Léger, [1999] N.B.J. No. 43, (January 27, 1999 (N.B.C.A.).

Indeed, thecredibility of witnesses, including the accused, is a question of fact and leave to appeal on this ground must first be obtained pursuant tos. 675(1)(a)(ii) of the Code. See also R. v. Shalala (R.H.) (2000), (NB CA), 224 N.B.R. (2d) 118, [2000] N.B.J. No. 14 (C.A.) (QL) leave toappeal refused, [2000] S.C.C.A. No. 133 (QL); Boudreau v. R., 2004 NBCA 87, [2004] N.B.J. No. 416 (QL); Sweeney v. R., 2005NBCA 91, [2005] N.B.J. No. 431 (QL); Moffitt v. R., 2006 NBCA 100, [2006] N.B.J. No. 464 (QL) and Thomas v. R., 2007 NBCA 3,310 N.B.R. (2d) 342. [para. 3]

[ 10 ] In sum, intervention pursuant to s. 686(1) (a)(

i) is out of the question unless we conclude the contested verdict is one that was not reasonably open to the trial judge, acting judicially. In making that determination, great deference is owed to the trial judge’s findings of fact, including his credibility findings, and the court must remain faithful to its role, as described in R. v. Deschênes . [ 11 ] Stripped to its essential nature, the present appeal is no more than an invitation to engage in an exercise beyond our jurisdiction: a trial de novo .

That said, I will undertake a brief analysis of the record to ensure the appellant “received a fair trial on proper evidence and according to the law” (see R. v. Simon , [1999] N.B.J. No. 393 (QL), at para. 2 ). [ 12 ] In his reasons for decision, the trial judge addresses each of the factual controversies that emerged at trial and have been raised on appeal. Although the appellant did not testify, credibility remained central to the Crown’s case.

The evidence proffered against the appellant consisted of arguably inconclusive video recordings and testimony from a number of corrections officers whose credibility was challenged at trial. The judge emphasized the importance of credibility in cases such as the present one and adopted the following approach to the determination of that critical issue: […] In deciding whether a witness is worthy of belief it is necessary to bring to bear common everyday experience in such matters and exercise good commonsense.

The Court is entitled to believe all the evidence given by a witness, part of that evidence or none of it. In determining whether to believe a witness, the Court should consider such things as his or her ability and opportunity to observe, his or her appearance and manner while testifying, his or her power of recollection, any interest, bias or prejudice he or she may have, any inconsistencies in his or her testimony and the reasonableness of his or her testimony when considered in the light of all the evidence in this case.

The Court can only accept evidence as being credible if the Court can believe it to be true beyond a reasonable doubt. [para. 23] The judge then undertook an analysis of the evidence in light of defence arguments that: (1) window coverings and the masks worn by the inmates impeded the officers’ ability to observe events and to identify participants in the mayhem; and (2) the appellant’s reputation as a “difficult inmate” may have influenced testimony against him.

The judge further acknowledged that names of inmates did not appear in most of the corrections officers’ incident reports and were only provided later in statements to police, a state of affairs which in the appellant’s submission undermined the credibility and reliability of all Crown witnesses. [ 13 ] Nevertheless, upon consideration of the evidence as a whole, the trial judge concluded the appellant’s guilt had been proven beyond a reasonable doubt. He substantiated that conclusion by providing a

summary of the key evidence: Correctional Officer Monteith near the start of the incident saw him busting a sprinkler head with a broom handle or something like a broom handle and then the water coming down on him. She was sent away to turn off the water. Correctional Officer Richards says that she saw him throwing porcelain, that is broken toilet pieces of porcelain as I understand the evidence, from the top landing into the games room. Officer Hawkins also saw him throwing porcelain from the window. He then backed off a bit and described himself as reasonably certain not absolutely certain.

I will attach no weight to that evidence and disregard Mr. Hawkins' evidence because it is not proof beyond a reasonable doubt if he is only saying that he is reasonably certain. The shift supervisor, Michael Lewis, says that he saw Mr. Banks throw the first toilet cracking the bubble window. At the time, the person who threw that toilet had their head covered with some sort of pillowcase or some other material. Mr. Lewis says that he was a hundred percent certain that it was Mr. Banks who he knew by the way he walks and because he is one of the bigger inmates. Correction Officer John Lowe says that he saw Mr.

Banks at the top of a landing with a large piece of the toilet trying to smash out a window into the lounge or games room next door or adjacent. Correction Officer Surette says that he saw Mr. Banks breaking sprinkler heads and although there was a pillowcase over his head, he recognized him by the tattoos on his neck. He at one point said that he was the only inmate on this unit that had tattoos on his neck but

then on cross-examination conceded that Kayne Crothers also had tattoos on his neck too and was in that unit. I have considered all the evidence about the role of Mr. Banks in committing mischief by willfully damaging the property of the correctional centre. I am satisfied that he has been proven guilty beyond a reasonable doubt on Count 1. [paras. 39-46] [ 14 ] In his quest for reversal, the appellant provided the Court with an extensive analysis of the testimony in first instance.

This analysis was designed to buttress his contention that the trial judge overlooked, or was insufficiently alive to, a number of testimonial inconsistencies which, it is argued, ought to have given rise to a reasonable doubt. In particular, the appellant took issue with the account of events provided by the corrections officers, placing some emphasis on the matter of the sprinkler system’s activation.

Indeed, many of the appellant’s fact-related objections are grounded in his understanding that the facility’s sprinkler system could only be activated once , making it impossible for officers to have, as they claimed, witnessed him activate sprinkler heads at different times . However, when questioned on point, Corrections Officer Monteith confirmed the sprinkler heads were activated individually.

There is no evidence to the contrary. [ 15 ] Moreover, and despite the appellant’s assertions to the contrary, Crown witnesses were competently cross-examined, and the trial judge’s reasons for decision reveal he was alive to all factual controversies. Having carefully considered the record, I am satisfied the appellant received a fair trial and that there was ample evidence to support the verdict at issue. In the result, the case for verdict unreasonableness has not been made and, thus, we are not at liberty to intervene under the authority of s. 686(1) (a)(i). B.

The claim of ineffective legal assistance [ 16 ] The law on point is summarized by Richard J.A., writing for the Court, in R. v. Gardiner , 2010 NBCA 46 , 362 N.B.R. (2d) 179: It is incontestable that, in the modern Canadian criminal justice system, a person who chooses to be represented by a lawyer has the right to the “effective assistance” of that counsel. This proposition goes to the very heart of the adversarial system upon which our criminal justice system is founded. It is a principle the Supreme Court of Canada recognized in R. v.

G.D.B ., 2000 SCC 22 , [2000] 1 S.C.R. 520, as a principle of fundamental justice that is “derived from the evolution of the common law, s. 650(3) of the Criminal Code of Canada , and ss. 7 and 11(

d) of the Canadian Charter of Rights and Freedoms ” (para. 24). It follows, therefore, that in some circumstances, the ineffective assistance of counsel at trial may form the basis for appellate intervention. However, the standard is high. To be successful in an appeal based on an ineffectiveness claim, an appellant must establish that his counsel’s “acts or omissions constituted incompetence” (the performance component) and that “a miscarriage of justice resulted” (the prejudice component).

Appellate interference is only justified when both components have been established. […] […] [I]n the course of a trial, defence counsel is called upon to make a number of strategic judgment calls, and judges should not lightly “second guess the tactical decisions of counsel” (see R. v. S.G.T ., 2010 SCC 20 , [2010] S.C.J. No. 20 (QL), at para. 37 ).

As the Supreme Court said, “[i]n an adversarial system of criminal trials, trial judges must, barring exceptional circumstances, defer to the tactical decisions of counsel” and there is “a ‘strong presumption’ that defence counsel are competent in advancing the interests of their clients” (para. 36). Appellate judges are likewise duty bound to apply that deferential approach. [paras. 1, 2 and 10] See also E.K.M. v. R ., 2012 NBCA 64 , [2012] N.B.J. No. 261 (QL). [ 17 ] In order to satisfy the performance component of the test adopted in R. v.

G.D.B. , 2000 SCC 22 , [2000] 1 S.C.R. 520, the appellant points to what he contends are flaws or weaknesses in his counsel’s cross-examination. As I understand the appellant’s complaint it also targets what he perceives as a lack of aggressiveness on his counsel’s

part in challenging Crown witnesses. There is no merit to the appellant’s complaint. In my respectful judgment, defence counsel was both thorough and appropriately respectful in his questioning of Crown witnesses and it is to his credit that he did not behave as the appellant argues was his

duty. Additionally, it bears noting that, in crafting his written submission to this Court, the appellant relied, to a significant extent, onanswers elicited by his counsel’s cross-examination. In my view, the appellant has not come close to establishing sub-par performance onthe part of his counsel at trial. C. The trial judge’s disregard of Corrections Officer Hawkins’ testimony [18] While this issue is not raised as a ground of appeal, some observations on point are neverthelessapposite.

It is now settled that the rule of reasonable doubt applies to the issue of credibility at least in any case where, as here,“credibility is important” (see R. v. W.(D.) [D.W.], (SCC), [1991] 1 S.C.R. 742, [1991] S.C.J. No. 26 (QL), at para. 27).However, that principle does not mean the trier of fact can disregard testimony whose credibility and reliability has not been establishedbeyond a reasonable doubt. Indeed, a trier of fact could conclude to the existence of a reasonable doubt on the ultimate issue of guiltbased upon testimony that might reasonably be true or was probably truthful.

When the trier of fact eliminates from considerationtestimonial evidence simply because its believability or reliability has not been established beyond a reasonable doubt the pool ofavailable evidence is impermissibly reduced. In that regard, I can do no better than reproduce the Court’s observations in R. v. L.C.M.,2011 NBCA 14, 368 N.B.R. (2d) 194: The appellant submits the trial judge erred in law by applying an overly stringent test to his determination of “credible evidence”,including that offered by the appellant.

At paragraphs 28 and 29, the trial judge states: The law is also clear the Court is not obliged to accept any part of the evidence of a witness just because there is no denial of it. TheCourt can only accept evidence as being credible if it is believed to be true beyond a reasonable doubt. Having decided what evidence to accept the Court must consider it as a whole in arriving at the decision. [Emphasis in original.] This approach to the evidence is inconsistent with the jurisprudence set out in R. v. Morin, (SCC), [1988] 2 S.C.R. 345,[1988] S.C.J. No. 80 (QL), para. 41, R. v.

W.(D.), (SCC), [1991] 1 S.C.R. 742, [1991] S.C.J. No. 26 (QL), para. 26). Thetrial judge's error eliminated from consideration individual pieces of evidence, which he did not believe beyond a reasonable doubt. Asimilar error resulted in a new trial being ordered by this Court in R.S.L. v. R, 2006 NBCA 64, 300 N.B.R. (2d) 24: The jurors were clearly told that, in making a decision, they could not rely on evidence which they had not accepted as true beyond areasonable doubt. As was the case in R. v. Miller (1991), (ON CA), 68 C.C.C. (3d) 517 (Ont.

C.A.) at 541, thisinstruction "had the effect of eliminating from their consideration evidence which was neither accepted nor rejected, upon which theyentertained a reasonable doubt, and to consider only the residual evidence in arriving at their verdict." [...] This instruction eliminated from consideration any evidence that was not believed beyond a reasonable doubt, even if such evidencemight, nevertheless, have caused the jury to entertain a reasonable doubt. [paras. 101, 103] The decision under consideration is tainted by similar errors.

It is apparent the trial judge eliminated from consideration evidence that could have raised a reasonable doubt. Recently, in R v. R.E.M.,2008 SCC 51, [2008] 3 S.C.R. 3, the Supreme Court concluded: More recently, in R. v. Dinardo, [2008] 1 S.C.R. 788, 2008 SCC 24, the Court, per Charron J., rejected a formalistic approach. The caseturned on credibility. The trial judge's reasons failed to articulate the alternatives to be considered in determining reasonable doubt as setout in R. v. W. (D.), (SCC), [1991] 1 S.C.R. 742.

Charron J. stated that only the substance, not the form, of W. (D.) needbe captured by the trial judge, then went on to say: In a case that turns on credibility, such as this one, the trial judge must direct his or her mind to the decisive question of whether theaccused's evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt. [para. 23][para. 31]

[paras. 2-4] [ 19 ] After noting Corrections Officer Hawkins had backed away from his earlier assertion that he had witnessed the appellant “throwing porcelain from the window”, the trial judge went on to “disregard” all of his evidence “because it is not proof beyond a reasonable doubt if he is only saying that he is reasonably certain”. Because Corrections Officer Hawkins’ testimony, viewed contextually and in the light most favourable to the appellant, provides absolutely no basis for a reasonable doubt as to guilt, the trial judge’s flawed approach is wholly inconsequential.

That will not always be the case, and everyone knows, or should know, that re-trials consume scarce public resources and are easily avoided by the application of settled principles of law. Nothing further need be added on the subject. V. Conclusion [ 20 ] It is for the reasons outlined above that I joined my colleagues in dismissing the appeal. ____________________________________ J. ERNEST DRAPEAU, CHIEF JUSTICE OF NEW BRUNSWICK WE CONCUR: ____________________________________ J.T. ROBERTSON, J.A. _____________________________________ BRADLEY V. GREEN, J.A.