2014 NBCA 18, 2014 NBCA 18

COURT OF APPEAL OF NEW BRUNSWICK 44-13-CA TRAVIS JOHN GAHAN APPELLANT TRAVIS JOHN GAHAN - and - - et - HER MAJESTY THE QUEEN RESPONDENT SA MAJESTÉ LA REINE Gahan v. R., 2014 NBCA 18 Gahan c.

R., 2014 NBCA 18 CORAM: The Honourable Chief Justice Drapeau The Honourable Justice Richard The Honourable Justice Green CORAM : l'honorable juge en chef Drapeau l'honorable juge Richard l'honorable juge Green Appeal from a decision of the Provincial Court: January 24, 2013 (conviction) Appel d'une décision de la Cour provinciale : le 24 janvier 2013 (déclaration de culpabilité) History of Case: Historique de la cause : Decision under appeal: Unreported Décision frappée d’appel : Inédite Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : s.o.

Appeal heard: September 10, 2013 Appel entendu : le 10 septembre 2013 Judgment rendered: April 8, 2014 Jugement rendu : le 8 avril 2014

Reasons for judgment by: The Honourable Justice Richard Concurred in by: The Honourable Chief Justice Drapeau The Honourable Justice Green Counsel at hearing: For the appellant: Gary A. Miller, Q.C. For the respondent: Christopher R. Lavigne Motifs de jugement : l’honorable juge Richard Souscrivent aux motifs : l’honorable juge en chef Drapeau l’honorable juge Green Avocats à l'audience : Pour l’appelant : Gary A. Miller, c. r. Pour l’intimée : Christopher R.

Lavigne THE COURT The application for leave to appeal on grounds that raise questions of fact or mixed law and fact is dismissed, as isthe appeal on grounds that raise questions of law. The following is the judgment delivered by RICHARD, J.A. I. Introduction [1] On December 27, 2010, an 18-year-old university student accompanied her cousin and a friendto a party at Mr. Gahan’s home in the Fredericton area. The young woman (“the complainant”) did not know Mr. Gahan, who was thesame age as her, nor did she know anyone at the party other than those she accompanied there.

At some point, the complainant and Mr.Gahan ended up alone in the bedroom of an apartment in the lower part of the house where sexual activity occurred. It is what happenedin that room that was to become the focus of a subsequent trial on a charge alleging Mr. Gahan sexually assaulted the complainant. Thetrial was to become yet another of the many cases where the principal issue to be determined essentially pits the credibility of acomplainant against that of an accused. Of course, the issue is not simply a matter of determining which version is believed.

Rather, therole of the trial judge in cases of this nature is to assess the testimony of the accused and determine whether the exculpatory testimony isbelieved, whether it raises a reasonable doubt, and, failing both, whether the prosecution has proven the case beyond a reasonable doubt:R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742, [1991] 1 S.C.J. No. 126 (QL). An affirmative answer to either of the first twoinquiries, or a negative answer to the third, must result in an acquittal.

Conversely, a conviction is only possible if the accused is notbelieved, if his evidence does not of itself raise a reasonable doubt, and if the prosecution has proven the case beyond a reasonable doubt. [2] On January 24, 2013, a judge of the Provincial Court pronounced Travis John Gahan guilty ofsexual assault (s. 271(1)(

a) of the Criminal Code, R.S.C. 1985, c. C-46), and, on March 4, sentenced him to a term of imprisonmentfollowed by probation, and subjected him to a number of ancillary orders. Raising six grounds of appeal, Mr. Gahan appeals theconviction. He submits the cumulative effect of a number of errors resulted in a miscarriage of justice. The Attorney General concedes

the trial judge committed some errors, but maintains these were insignificant and had no impact on the verdict. The Attorney General argues the curative proviso set out in s. 686(1)( b )(iii) of the Criminal Code should be applied and the appeal dismissed. This proviso enables the Court of Appeal to dismiss an appeal even if it concludes the judge erred on a question of law, “if it is of the opinion that no substantial wrong or miscarriage of justice has occurred.” II. Background [ 3 ] On December 27, 2010, the complainant, an 18-year-old university student, was visiting her cousin and family in Fredericton.

Her cousin and a friend invited her to accompany them to what they understood to be a “sliding” party at Mr. Gahan’s home. As a result, the three women brought their winter outerwear for this activity. Arriving at the Gahan residence, the complainant was introduced to a small group of people who were already there. For a while, the three young women sat in the kitchen with the others, and, at some point, Mr. Gahan and the complainant sat near one another and had a conversation. At trial, some would describe them as flirting with one another. Both Mr.

Gahan and the complainant were drinking alcoholic beverages, the complainant admitting to only one to three drinks of vodka and orange pop as well as a few sips of wine and Mr. Gahan to perhaps eight beers and a glass of wine over the course of the entire evening. After spending some time in the kitchen, the complainant made her way into the living room where she watched some television and played with a dog. It is the events that occurred from this point onward that would eventually become the critical factual issue at trial. [ 4 ] The complainant testified that, as she was sitting in the living room, Mr.

Gahan walked by, saw her and came over and sat close beside her. She says Mr. Gahan told her he was not being a good host because he had not shown her the house. She declined a tour of the house, but Mr. Gahan insisted, taking her by the wrist, pulling her up and telling her to come with him. Reluctantly, the complainant followed Mr. Gahan to the lower part of the split-entry home. He guided her to a bedroom, closed the door and turned on the lights. The complainant says that at that point, Mr. Gahan started kissing and touching her, while she tried to make excuses as to why she did not want to be with him.

He told her to take her clothes off, but she refused. He removed some of his own clothing, turned off the light, then removed some of her clothing and pushed her onto the bed. The two then engaged in sexual activity, the nature of which need not be described for the purposes of this appeal. Suffice it to say that the complainant testified she continued to say “no” and that, at one point, she began to cry. When the activity stopped, she dressed quickly, only to later realize she had put on her shirt inside out. Mr. Gahan asked her why she was crying, but the complainant did not reply.

She left the lower part of the house, ran upstairs to the kitchen and told her cousin and their friend what had just happened, telling them she thought she had just been raped. Without retrieving her outerwear, the complainant left the house on foot in what was described as blizzard conditions. Several cars pulled over as she was walking along the street and the occupants offered to help, but she refused assistance. It was not until her cousin and two others located her that she got into a car.

Her cousin had already called the complainant’s parents, so they met them nearby and from there proceeded to the hospital. [ 5 ] In contrast, Mr. Gahan testified to a markedly different version of events. He testified that as he was walking by the living room, he saw the complainant sitting in the living room texting on her phone and watching television. He went in the living room to see if they might eventually “hook” up, which he described as “having sexual relations.” He sat next to her, put his hand on her leg above her knee and said he was a terrible host for not having given her a tour of the house.

The complainant agreed to go with him. Together, they made their way to the lower part of the house, going first to a recreation room where they kissed passionately. In that room, Mr. Gahan took off his shirt and they caressed each other. Mr. Gahan then offered to show the complainant a basement apartment located nearby that was vacant because the tenant was away for the holiday season. She agreed. They first went into a utility room where they resumed kissing and caressing before proceeding into the apartment. They went into the spare bedroom of the apartment, where they undressed and engaged in sexual activity.

Mr. Gahan described all events as “consensual” and mutually pleasurable. He testified the complainant at no time expressed any reluctance to follow him downstairs and was a willing participant in all the activities leading to and during their sexual encounter. According to him, she would have had ample opportunities to refuse or to leave. Mr.

Gahan admits that while they were dressing after their sexual activity, he noticed the complainant was “a little bit upset” and that “her eyes were teared up a little bit.” He believes this to have been because the complainant was afraid her cousin would know she had had sex with Mr. Gahan. He told the complainant they need not tell her cousin and she agreed. Mr. Gahan then made his way to the kitchen and rejoined the party. A few minutes later, he noticed the complainant, her cousin and their friend in the living room and saw that all three looked upset.

He did not interact with them but went to the garage to smoke a cigarette with a friend. He told his friend he had been with the complainant and that it was “awkward and wasn’t meant to be”, testifying he had given this description because he had been unable to maintain an erection.

He later became aware the complainant had left his house and that the other two women had gone out looking for her. [ 6 ] The complainant was examined at the hospital, but the physician “did not see any obvious signs of trauma,” noting the absence of any bruising or laceration on her body. [ 7 ] The police were called, and the ensuing investigation led to Mr. Gahan being charged with sexual assault. At trial, several of the people who had been at the Gahan residence the evening of December 27, 2010, testified. In some respects, their accounts of the events, leading to and following the time Mr.

Gahan and the complainant had left the main part of the house, varied. None offered any direct insight on the critical events that took place in the lower part of the house.

[8] In rendering his decision, the Provincial Court judge began by reviewing the testimony of thevarious witnesses, including that of the complainant and Mr. Gahan. Having done this, the judge then described his task in the followingwords: It is obvious that the issue to be determined in this case is whether or not [the complainant] consented to the sexual activity she engaged[in] with Travis Gahan. One issue that need not be determined is the actus reus of the offence, because the defence conceded that it hadbeen proven.

As in most cases of these types, the issue will be determined in accordance with the principles as they are set out in R. v. W.D., a decisionof the Supreme Court of Canada (SCC), [1991] 1 S.C.R. 742: (1) if I believe the accused I must acquit; (2) if I don’tknow whether to believe the accused or the complainant, I must acquit; (3) if I do not reject the evidence of the accused, I must acquit; (4) [only] if I disbelieve the accused and I am convinced beyond a reasonable doubt that the Crown has proven each and every elementof the offence, can a verdict of guilty be registered.

Those are the principles which I am bound by to consider when determining thequestion of credibility. The next issue to be determined is a determination of proof beyond a reasonable doubt. That concept was defined, again, in the Supreme Court of Canada in R. v. Lifchus, (SCC), [1997] 5 C.R. (5th) 1 and R. v. Starr, 2000 SCC 40 , [2001] 36 C.R. (5th) 1. So what is proof beyond a reasonable doubt? Proof beyond a reasonable doubt is alive in every criminal trial and is attached tothe presumption of innocence. It isn’t proof of absolute certainty.

It is not proof beyond any doubt nor is it an imaginary or frivolousdoubt. It is based on common sense and reason, not on sympathy or prejudice. It falls much closer to absolute certainty than on abalance of probability, the principle enunciated in Starr. [9] The judge then went on and assessed the testimony of both the complainant and Mr. Gahan,noting that, in his view, the complainant’s testimony was not exaggerated whereas that of Mr.

Gahan was “as if somebody gave him ascript and he practiced it.” In the end, upon being convinced the complainant had not consented to the sexual activity and that theprosecution had “proven its case beyond a reasonable doubt on each and every essential element of the offence,” the judge convicted Mr.Gahan. III. Issues [10] Mr. Gahan appeals his conviction on grounds that involve questions of law and applies for leaveto appeal on those that involve questions of fact or questions of mixed law and fact. He enumerates his grounds of appeal as follows: 1.

Crown counsel’s improper cross-examination of the appellant’s access to disclosure material resulted in a miscarriage of justice; 2. The trial judge erred in failing to admonish Crown counsel for the improper cross-examination of the appellant on his access todisclosure and compounded the error by using it in his assessment of the credibility of the appellant and further prejudiced the defenceby focusing upon the appellant’s demeanor in making a negative decision regarding his credibility; 3.

The trial judge erred in cross-examining a defence [witness] and the appellant such that a miscarriage of justice has occurred; 4. The verdict is unreasonable in that the trial judge misapprehended the evidence in that he:

a) misapprehended the post-event conduct of the appellant;

b) misapprehended the evidence in holding that certain Crown evidence corroborated the complainant’s evidence;

c) failed to appreciate the significance of the “flirting” evidence that tended to corroborate the appellant’s evidence of consensual sex;

d) misapprehended and/or failed to consider other evidence which played a role in his decision to convict; 5. The trial judge erred in admitting the Statistics Canada statistical evidence and in relying on it in his judgment; 6. The trial judge erred in deciding the case on the basis of what “a reasonable person” would decide. IV. Analysis A. Crown counsel’s cross-examination (Grounds 1 and 2) [ 11 ] What follows is the exchange during the cross-examination of Mr. Gahan that forms the subject-matter of the first and second grounds of appeal: Q. Did anybody tell you what to say or tell you what words to use? A.

No. Q. You’ve had lots of time to go over everything, like you said it’s almost two years, right? A. Yes ma’am, it’s been almost two years. Q. Um-hmm. You’ve gone over the disclosure? A. Yes, ma’am, I’ve read the disclosure. Q. And you’ve read people’s statements? A. I have. Q. And then you’ve rehearsed your testimony numerous times, correct? A. I’ve read it; I’ve thought about what it – had happened that night. I’ve went over it in my mind many times since this in – since I was accused of this. Q. Um-hmm.

A. Yes I have. [12] To place this exchange in context, it occurred as the prosecutor was challenging Mr. Gahan onhis use of what she believed were technical terms to describe the events of what had taken place. Specifically, the prosecutor wasquestioning Mr. Gahan on his use of terms such as “consensual”, “compliant” and a “woven cotton cord” and was suggesting to him thatthese were not words he would commonly use to describe the activities he had just related in direct examination. Although admitting hehad rehearsed his testimony, Mr. Gahan stood his ground on his use of those terms.

This led to the impugned exchange. [13] Mr. Gahan submits this exchange constituted improper cross-examination, in that it referencedhis access to the disclosure materials. He says his credibility should not be attacked because he exercised his constitutional right todisclosure in making full answer and defence.

He submits the matter was compounded when, in her final arguments, the prosecutorsubmitted as follows: Now, I would submit to you Your Honour that the only thing that the accused’s testimony is consistent with is someone going throughwhat everyone else has said, either in their statement to police, on the stand, or both, rehearsing his testimony countless times. Countlessbeing his words that he used when I asked him.

And making his testimony fit, as best it could, with what he already knows the evidenceto be that came out. [14] To put that argument in context, it was made as the prosecutor was pointing out someinconsistency between a certain part of Mr. Gahan’s testimony and that of other witnesses. This is when the prosecutor alluded to Mr.Gahan having reviewed the statements or heard the testimony of others and having rehearsed his testimony, arguing that, for the mostpart, his testimony appeared “script[ed].” The prosecutor continued: You’ll recall I questioned Mr. Gahan on how many times he had rehearsed his testimony.

He, he said “countless”, eventually. Countlesstimes. I would submit to Your Honour that it was quite evident when he was testifying that he rehearsed his testimony countless times. Isay this because, obviously in your assessment of credibility, Your Honour has to take into account the demeanor of the witness. Thedemeanor of Mr. Gahan was somebody who had a script and had memorized it and had read it word for word, over and over and overagain. I gave him ample opportunity to tell me on cross-examination that he doesn’t normally use those words, but in preparing for histestimony he decided to use these words.

Something. Anything. But he wouldn’t tell me that. I asked him “When you talk about sex withyour friends, do you usually say “I had consensual sex”? “Oh yes.” he said, “Yes I do.” That word was used over and over and overagain. He stuck to exact phrases on direct, exact phrases on cross. When I asked him a question, usually wasn’t answered but he stuck tothe phrase that he had given us in direct. I would submit to you, Your Honour, when you’re assessing credibility you can look at thattestimony and realize that the accused was not testifying based upon his memory of what actually happened on that date.

THE COURT: So, in other words, he was testifying based on a script. MS. BLUNSTON: Yes. And I would submit when you look at the testimony of the other persons who testified, that that wasn’t the case. [15] Relying on several decisions of the Ontario Court of Appeal, Mr. Gahan says it was improperfor the judge to have allowed the prosecutor to cross-examine Mr. Gahan on the fact he had received disclosure of the prosecution’scase. Mr. Gahan says the error was compounded when the judge then made use of this improper line of questioning in makingcredibility findings. [16] In R. v. I.W., (ON CA), [1999] O.J.

No. 258 (C.A.) (QL), an accusedappealed his conviction on a charge of sexual assault. For the Court, Doherty J.A. saw some merit to the accused’s contention he hadimproperly been cross-examined in a way calculated to suggest his testimony was suspect because he had received full disclosure of theprosecution’s case.

While this ground of appeal was ultimately dismissed because the judge had given immediate and direct admonitionsto the jury “which undercut the improper suggestions implicit in the questions put by Crown counsel” and “were sufficient to dispel theharm done by the questions” (para. 21), Doherty J.A. nevertheless opined as follows: The line of questioning set out above seems calculated to suggest to the jury that the appellant's evidence was somehow suspect because

he had received full disclosure and had not been subject to cross-examination prior to choosing to testify at trial. Not only are thesuggestions improper, they are potentially prejudicial. As a matter of common sense, there may be considerable force to the suggestionthat a person who gets full advance notice of the other side's evidence and testifies last is in a position to tailor his or her evidence to fitthe disclosure. That inference, no matter how logical, cannot be drawn without turning fundamental constitutional rights into a trap foraccused persons.

Where any such suggestion seeps into the cross-examination of an accused, it must be eradicated by the trial judge. […] I do not intend to suggest that every line of cross-examination involving reference to disclosure is improper. Sometimes, it will benecessary for the Crown to establish that an accused received disclosure as a step in a legitimate line of cross-examination.

For example,the appellant had referred to telephone records of calls between himself and the complainant in the course of his examination-in-chief.He had used those phone calls to assist him in placing the times and dates of certain meetings with the complainant. In cross-examination, Crown counsel brought out the fact that the appellant had full access to those records before he testified.

This was propercross-examination intended to show that the appellant was aware of the contents of the phone records before giving his evidence and thatany suggestion that the records confirmed his testimony should be considered in that light. While questions concerning disclosure are appropriate in some situations, they are always potentially dangerous. I think the prudentcourse whenever Crown counsel wish to cross-examine on matters relating to disclosure is to vet the proposed line of questioning withthe trial judge in the absence of the jury. [paras. 20, 22-23] [17] In R. v. Shell, [2000] O.J.

No. 3633 (C.A.)(QL), the Court ordered a new trial because there hadbeen serious improprieties in the cross-examination of the accused and insufficient instructions to the jury. In that case, the prosecutorhad cross-examined the accused both on the fact he had initially remained silent and that he had reviewed the disclosure beforetestifying. This was compounded by the prosecutor’s argument to the jury that the accused had a long time to think about his testimony,had full disclosure, had listened to the testimony at the preliminary inquiry and at trial, and was in a position to tailor his evidence.

Forthe Court, Rosenberg J.A. held it “was wrong and unfair for Crown counsel to attempt to exploit the appellant's exercise of his rights”(para. 57). While the trial judge had later properly explained to the jury that no use could be made of the accused’s exercise of his rightto silence, the jury instructions had not featured any direction concerning the accused’s access to disclosure. [18] In R. v. Thain, 2009 ONCA 223, [2009] O.J. No. 1022 (QL), a trial judge convicted an accusedof “internet luring” (s. 172.1(1)(

c) of the Criminal Code). In rendering the verdict, the trial judge stated that the accused’s credibility hadto be assessed bearing in mind that his explanation for certain internet exchanges had come “long after disclosure was available to him.” On appeal, the accused argued the trial judge had erred in assessing his credibility and that this statement was one of several illustrationsof error. For the Court, Sharpe J.A. agreed.

He held that “[i]t is wrong to state as a general proposition that the credibility of an accusedmust be assessed ‘bearing in mind that his explanation comes long after disclosure was available to him’” (para. 20). He explained thatwhile there may be instances where the receipt of disclosure materials might be relevant to an attack on credibility, this case was not oneof them. Moreover, in that case, the use of the disclosure material in assessing credibility did not come from the prosecutor but ratherfrom the trial judge when the reasons were delivered.

Thus, the appellant had never been afforded an opportunity to refute such asuggestion and his counsel had not had an opportunity to address the point in argument. [19] In R. v. F.E.E., 2011 ONCA 783, [2011] O.J. No. 5738 (C.A.)(QL), the Court ordered a newtrial because the accused had been excluded from the pre-charge conference thus impairing the appearance of fairness and compromisingthe transparency of the trial proceeding. In the process, the Court nevertheless commented on some of the other grounds of appeal, oneof which related to a reference to disclosure during the cross-examination of the accused.

On this point, Watt J.A. had this to say: Whether cross-examination of an accused about his or her receipt of and familiarity with prosecutorial disclosure is permissible orimproper depends on the circumstances of each case: R. v. Thain, 2009 ONCA 223, 243 C.C.C. (3d) 230, at para. 24. One instance inwhich it may be appropriate for a prosecutor to refer in cross-examination to an accused's receipt of disclosure is to undermine a defenceof alibi, thereby to contend that the accused has tailored his or her evidence to fit the Crown's disclosure: Thain, at para. 24; R. v.

Khan(1998), (BC CA), 126 C.C.C. (3d) 523 (B.C. C.A.), at para. 50; R. v. Marshall (2005), (ONCA), 77 O.R. (3d) 81 (C.A.), at para. 74-75; and R. v. Simon (2001), (QC CA), 154 C.C.C. (3d) 562 (Que. C.A.), atpp. 573-574. On the other hand, a prosecutor's cross-examination of an accused that is calculated to suggest to the jury that an accused's testimonywas suspect because she or he had received disclosure, knew the prosecution's case and had not been asked to reveal her or his own caseuntil testifying at trial is at once improper and potentially prejudicial: R. v. White (1999), (ON CA), 42 O.R. (3d) 760

(C.A.), at pp. 767-768. Where a complaint is made about the propriety of prosecutorial cross-examination of an accused, we must always keep in mind that improper cross-examination of an accused may taint a trial by causing actual prejudice to the accused or by creating the appearance of unfairness: White , at p. 764. [paras. 71-73] [ 20 ] Finally, Mr. Gahan also relies on R. v. Jorgge , 2013 ONCA 485 , [2013] O.J. No. 3343 (QL), a case he says is analogous.

In that case, the trial judge had rejected the appellant’s evidence partly on the basis he “had ‘tailored’ his trial testimony to ‘fit’ the arguments raised on a voir dire into the admissibility of his statement to the police” (para. 2). For the Court, Laskin J.A. held that the trial judge’s “reasoning was improper because it subverted the appellant’s right to be present at his trial” (para. 12).

A new trial was ordered because the judge’s “error figured prominently in the trial judge’s adverse assessment of the appellant’s credibility” (para. 19). [ 21 ] I am in general agreement with the principles that can be derived from these Ontario decisions, which I summarize as follows: 1) While not every line of cross-examination involving reference to disclosure is improper, it is generally improper for a prosecutor to try to impugn an accused’s credibility because the accused exercised his or her constitutional right to obtain disclosure of the case against him or her; 2) Whether cross-examination of an accused about his or her receipt of and familiarity with prosecutorial disclosure is permissible or improper depends on the circumstances of each case; 3) In a jury trial, where improper cross-examination occurs, the trial judge must properly eradicate it by giving the jury appropriate instructions; 4) Even in cases where the use of the accused’s knowledge of disclosure is permissible, it is still improper for a judge to make use of it unless the accused was afforded an opportunity to refute such a suggestion and his counsel had an opportunity to address the point in argument; and, 5) In a judge alone case, where it is shown that reference to disclosure was improper and where this reference features prominently in the trial judge’s adverse assessment of the accused’s credibility, this constitutes an error of law and will likely lead to a new trial. [ 22 ] In the second ground of appeal, Mr.

Gahan submits the judge compounded the error of not admonishing the prosecutor for the improper cross-examination by using the fact Mr. Gahan had accessed disclosure in his credibility assessment and by focusing upon Mr. Gahan’s demeanour in making a negative decision regarding his credibility. For my analysis, I will break this ground in two parts: (1) whether the judge relied on improper cross-examination in making his credibility assessment; and, (2) whether the judge unduly focused on demeanour in making the credibility assessment.

While I will analyze the first of these two parts now, I will only turn to the second part when I address the sixth of Mr. Gahan’s grounds of appeal where I will review the factors that must be considered in making a credibility assessment. [ 23 ] The Attorney General agrees it was improper for the prosecutor to suggest that an accused’s credibility is diminished as a result of reviewing the disclosure materials. He nevertheless submits Mr. Gahan’s arguments have no merit because the impugned cross-examination did not influence the trial judge’s decision.

The Attorney General points out that the trial judge was an experienced judge and is presumed to know the law. Unlike the Thain case, the decision makes no reference to the review of disclosure as a factor that was considered to negatively impact the accused’s credibility. [ 24 ] In his decision, the trial judge notes that, in his view, Mr. Gahan’s testimony appeared to have been scripted, but nowhere does he expressly state he was drawing any unfavourable inference from the fact Mr. Gahan had reviewed the disclosure material before he testified.

[ 25 ] The judge’s impression that Mr. Gahan’s testimony appeared scripted was disclosed during defence counsel’s reply arguments. The exchange was as follows: MR. OLEY: I don’t know if it’s Your Honour’s practice to allow - to allow a short rebuttal or not I don’t know that – THE COURT: I don’t usually allow it but, I’ll give you two minutes. MR. OLEY: Alright. With respect to the scripted statement Your Honour, the accused said that he’s lived with this for two years. So he’s had ample time to go through this in his mind, as to what occurred. THE COURT: I’ll be honest with you Mr. Oley.

I made a comment yesterday to the stenographer. I’ve been on the bench now – I will be on the bench now for nine years and, it’s the first time I’ve come across a witness who testifies in a scripted way like that. So, I noticed it yesterday. But it doesn’t mean that – MR. OLEY: It doesn’t mean it’s not true. THE COURT: Exactly. It doesn’t mean that it’s not true, but, it, it marked, like – I noticed it. MR. OLEY: Yes, I understand you said that. Again, it doesn’t mean – THE COURT: I, I – MR. OLEY: - that it’s not - He’s had lots of time to think about it. THE COURT: I’m in total agreement with you.

And I’m in total agreement with you when you say he’s had lots of time to think about it. Lots of time to run it through his head. MR. OLEY: Yes. THE COURT: Which – rightly so, because these are serious matters. MR. OLEY: Exactly. THE COURT: And the decision that I have to hand down is going to affect two lives. [ 26 ] I cannot extrapolate from that exchange any suggestion the judge was contemplating giving any weight to any of the answers arising from the improper cross-examination on the question of the disclosure materials.

The point the prosecutor was making was that the testimony appeared rehearsed because of the language Mr. Gahan had used in direct examination. This is part of a witnesses’ demeanour, which the judge is expected to consider, albeit a consideration which, as we will see below in the analysis of the sixth ground of appeal, is of very limited value. In this exchange, Mr. Gahan’s counsel was alerted to the judge’s impression of the witness’ demeanour and being given an opportunity to address it. The judge rightfully acknowledged it was not unusual for Mr.

Gahan to have given much consideration to what he would be saying at trial. More importantly, the judge expressly stated that the fact the testimony may have appeared scripted “doesn’t mean it’s not true.” There is certainly no error in that statement.

[27] Neither do I detect from the judge’s reasons for decision any reliance on the impugned cross-examination. The trial judge states he listened attentively to Mr. Gahan’s testimony and had listened to the recording “numerous times”since then. He notes that Mr. Gahan had admitted he was not sober, although he had maintained he was not intoxicated to the point hecould not remember the events.

On the question of demeanour in the witness box, the judge says this: As I said after trial, or during arguments, I listened to his testimony and it seemed to me to be – it’s like as if somebody gave him a scriptand he practiced it, which he testified he practiced his testimony, but he never left the script. [28] I simply cannot read into the judge’s decision any improper reliance on the impugned cross-examination.

I acknowledge the cross-examination on access to the disclosure was closely related to the prosecutor’s questions on thetestimony being rehearsed or scripted, but the two were nevertheless entirely different matters. This case is unlike the Ontario cases thatresulted in new trials because there is no indication on the record the trial judge relied on Mr. Gahan’s access to the disclosure in makinghis credibility assessment. In my view, the disposition of this ground of appeal should be as in Brown and Murphy v. The Queen, (SCC), [1985] 2 S.C.R. 273, [1985] S.C.J.

No 57 (QL), where the Court also found the prosecutor had engaged in impropercross-examination. Although the Supreme Court found the trial judge had not sufficiently restricted the prosecutor in his cross-examination, the fact that it was evident from the trial judge’s reasons he had not based his conclusion on the impugned cross-examination justified the rejection of the appeal, because there was no miscarriage of justice. I come to the same conclusion with respectto the impugned cross-examination and the effect it had on the judge’s decision, which is none. B. The judge’s “cross-examination” (Ground 3) [29] Mr.

Gahan alleges the judge intervened after counsel’s questioning was completed and askedquestions of both the appellant and a defence witness in a way that effectively constituted cross-examination. [30] Relying on Lord Denning’s decision in Jones v. National Coal Board, [1957] 2 All E.R. 155, [1957] 2 K.B. 55 (C.A.), Mr.

Gahan recognizes that a judge can ask questions of a witness to “clear up a point that has been overlookedor left obscure”, but says that, beyond that, if the judge “drops the mantle of the judge and assumes the role of an advocate,” the judgetakes on a role that “does not become him well” and risks creating an appearance of partiality (p. 64). He quotes Limerick J.A. in Ogwav. Alli, (NB CA), 4 N.B.R. (2d) 423, [1972] N.B.J. No. 63 (C.A.) (QL): A trial judge should not intervene in the examination of witnesses except to clarify the evidence or to establish his jurisdiction.

If hedoes otherwise he runs the risk of becoming an advocate for one party or the other or of becoming involved in a disagreement with thewitness under conditions which can remove him from the category of at truly impartial judge. A judge’s function is to listen attentivelyand not to adduce evidence. [p. 439] [31] The facts that prompted Limerick J.A. to make that statement are explained in the two sentencesimmediately preceding the quoted passage: During the trial the Court examined seven witnesses.

The trial judge asked leading questions of the expert witness Jones and receivedanswers with which he did not agree, and then proceeded to cross-examine the witness at length. [p. 439] [32] Notwithstanding this, the appeal in Ogwa was not in the end determined on the basis of thejudge’s interference. [33] It is an established principle of law that a judge has “not only the right, but also the duty to putquestions to a witness in order to clarify an obscure answer or to resolve possible misunderstanding of any question by a witness, even toremedy an omission by counsel, by putting questions which the Judge thinks ought to have been asked in order to bring out or explainrelevant matters”: R. v.

Darlyn, [1946] B.C.J. No. 94 (C.A.) (QL) per Bird J.A., at para. 31, quoted with approval in R. v. Brouillard, (SCC), [1985] 1 S.C.R. 39, [1985] S.C.J. No. 3 (QL), at para. 21.

[ 34 ] It is also accepted that the nature and extent of a judge’s participation in the examination of a witness is a matter within the judge’s discretion: ibid ., Boucher v. Doiron , 2000 NBCA 18 , 230 N.B.R. (2d) 247, at para. 17 , and Pelletier v. St.-Onge , 2001 NBCA 22 , 236 N.B.R. (2d) 128, at para. 9 , both per Drapeau J.A. (as he then was).

Evidently, the discretion must be exercised judicially as part of the judge’s function to “keep the scales of justice in even balance between the Crown and the accused”: Darlyn, at para. 31, and Brouillard , at para. 21 . [ 35 ] Of course, if a judge, figuratively speaking, steps down from the bench and assumes the role of counsel to the point that a reasonable person would consider that the accused has not had a fair trial, a new trial will have to be ordered even if the verdict is not unreasonable having regard to the evidence and even if the judge has not erred with respect to the law and the facts: Brouillard , R. v.

Palosaari , 2004 BCCA 595 , [2004] B.C.J. No. 2429 (QL), and R. v. Konelski , [1989] A.J. No. 615 (C.A.) (QL) . The appearance of fairness is of as fundamental importance as fairness itself. [ 36 ] The first impugned judicial intervention relates to a witness who testified for the defence. Peter Dawson was one of those present at the party at the Gahan residence on December 27, 2010. He was a friend of both Mr. Gahan and the complainant’s cousin. He was at the Gahan residence when the complainant arrived with her cousin and their friend.

He was in and out of the house because he would often go to the garage to smoke. He noticed Mr. Gahan and the complainant spend a lot of time together conversing in the kitchen. He described their behaviour as “flirting”, explaining they were sitting close to one another and whispering in each other’s ear for a long period of time. He admitted he was drunk when he left that evening at about 1 a.m. but maintained he was not impaired when the events with the complainant occurred. At one point, he was in the garage to have a cigarette when Mr. Gahan joined him.

He asked him if he had had sex with the complainant, and he replied he had. Approximately 10 minutes later, he saw the complainant leaving the party. He did not recall whether she had a coat on or not. [ 37 ] Following a short reexamination of Mr. Dawson, the judge made the following inquiries: THE COURT: Mr. Dawson, I have a question for you. A. OK. THE COURT: You say you were in the garage talking with Travis about five minutes after. That’s your – A. Yes (inaudible). THE COURT: Those are your words. And you said that you noticed [the complainant] leaving. A. Um-hmm. THE COURT: Which door did she go out? A.

She – I’m trying to – I know which door she went out. I’m trying to like paint a picture for you. The front door – alright, the front door, like this is the house right here, this is the front door, the garage you have to go through like a different, like side. THE COURT: But don’t most people go through the garage to enter the house? A. Normally, I don’t know. I wouldn’t – I wouldn’t say.

THE COURT: Okay. Well let’s – A. Because it’s the garage doors – THE COURT: Let’s – let’s go back. When you arrived at the party. A. Yes THE COURT: Which door did you go into? A. The front door. THE COURT: The front door? A. Yes. THE COURT: You didn’t go through the garage? A. No, the garage would have been closed. THE COURT: Okay. So, you’re saying that [the complainant] exited the residence when she left by the front door. Is that what you’re saying? A. Yes. THE COURT: Did you notice her demeanour when she was leaving? A.

Well, ‘cause when – like I said when I seen her it was kind of at a distance; I couldn’t tell, like what her – THE COURT: Okay. What was the weather like that night? A. It was a snowstorm. THE COURT: Snowstorm? And it’s your testimony if I understand correctly from the questions from counsel, that at no time in the night did you see [the complainant] in the livingroom by herself, is that correct? A. I don’t recall seeing her there. THE COURT: Pardon me?

A. No. THE COURT: Okay. Now, you said that at one point, while being questioned by Ms. Blunston, that you were – [the complainant] was seated at the table talking across the table to Travis. Is that correct? A. No. THE COURT: Well, that’s what you said in your statement. A. When did I say – when did I say that? THE COURT: In your statement. A. Across the table? THE COURT: And that they were – Yeah. A. No, I said they were sitting together. THE COURT: Well that’s – Ms. Blunston, if I – maybe I’m wrong. MS. BLUNSTON: No. THE COURT: But I think – MS. BLUNSTON: That’s exactly right.

THE COURT: I think that you – you went through the state – Maybe show him his statement again. Mr. Dawson, can you read your statement please, and does that refresh your memory. A. The first line? Just start from the first line? THE COURT: Just read until you – A. “Has a (has

a) cousin that she brought with her and that’s the girl that – MS. BLUNSTON: Well, I – I don’t think he has to read it out loud.

THE COURT: No. MS. BLUNSTON: I think – I just – What you’re talking about across the table is near the top of that page. I just flipped it to page two but he certainly entitled to read. THE COURT: Just read it to yourself until you get to that part and see if that refreshes your memory. A. Okay. Okay. Yeah, using this – missed words in there then ‘cause they were sitting together. THE COURT: Oh, so, those are missed words? A. The ‘across the table’. I remember – I remember seeing them together, like side by side. THE COURT: But if I understand correct – A.

They were across the table at one point but - THE COURT: Okay. A. – I don’t think they were just like talking across the table on one another – as they were talking aloud. THE COURT: Yeah, but I – I recall your testimony when you’re saying that you notice that [the complainant] was texting. You said [the cousin] was seated here, – ah, [the complainant] was here and you were next to her. A. Yes. THE COURT: Where was Travis? A. I believe he was – he was – he was at the table. THE COURT: Where though? A. He would have been within one of the three other seats. THE COURT: So he wasn’t next to [the complainant]? A. No.

THE COURT: Okay.

A. But when she would – Like I said, she wasn’t – like when I said that text message thing, she wasn’t like talking to him, like, ‘Oh, like it – my boy – my boy – my boyfriend and me broke up two days ago’. She was saying it out loud. Like she wasn’t saying it necessarily to Travis but to everyone. THE COURT: Um-humm. A. So like that’s not – THE COURT: So she – A. – talking to Travis. THE COURT: She wasn’t talking to [the complainant] – to Travis I mean? A. No, she’s talk – talking around the table. THE COURT: Talking to everybody? A.

Yeah. [ 38 ] The judge then inquired of counsel if they had any questions arising out of those he had posed to Mr. Dawson. Neither of them had any. [ 39 ] In my view, this can hardly be characterized as a cross-examination. Evidently, the judge wanted to clarify three aspects of Mr. Dawson’s testimony. First, the judge wanted to better understand the layout of the house; second, he wanted to confirm the witness had not seen the complainant in the living room by herself; and, third, he was trying to make sense of what the witness had said about where the complainant had been sitting in relation to Mr.

Gahan when they were in the kitchen. The questions may have led the witness to the areas the judge wanted to explore, but they were not leading questions in the sense of questions that suggest the answer. [ 40 ] Clearly, there is nothing objectionable about the first two areas of the judge’s inquiry. As for the third, the witness had been cross-examined about a statement given to the police in which he had stated Mr. Gahan and the complainant were sitting across the table from one another, whereas he was now testifying they were seated next to one another whispering in each other’s ear.

The witness had also been confronted in cross-examination with the prosecutor’s assertion that no one else had reported Mr. Gahan and the complainant having been seated alone at the table. In these circumstances, it is perfectly understandable the judge would seek clarification. The judge’s questions on this third line of inquiry were evidently designed to provide the witness with an opportunity to explain the discrepancy between what was in his statement and his testimony. In fact, Mr. Dawson seized the opportunity and explained that, at one point, Mr.

Gahan and the complainant were sitting across the table from one another but that, at some point, he also remembers them sitting next to one another. [ 41 ] As for the inquiries at the close of the re-direct examination of Mr. Gahan, the judge began by asking questions Mr. Gahan concedes “could properly be categorized as clarification questions on the layout of his house.” It is what follows that line of inquiry that is submitted to be objectionable. The impugned exchange was as follows: THE COURT: Well, I’m curious about something.

You said it was – when you came back upstairs and – and you state that you saw [the

friend], [the cousin] and [the complainant] in the livingroom. A. Yes. THE COURT: And they looked upset. A. They did. THE COURT: Like [the complainant] was crying – or maybe all of them were crying. A. I don’t know if all of them were crying. THE COURT: I’m not sure. A. I don’t know either. THE COURT: And what’s the reason you didn’t want to go check? You just finished making – kind of hooked up with [the complainant]. [Mr. Gahan having testified that to him the term “hooked up” meant having sex] A. Yup. Why didn’t you want – you want to know why I didn’t – THE COURT: Why didn’t you go see why she was upset? A.

I seen that she was being comforted by [the friend] and [the cousin]. THE COURT: Yeah. A. Umm, I knew that her and [the cousin] obviously seemed close. I felt like them com – THE COURT: Well weren’t you close to [the cousin] and [the friend] also? A. I was fairly close, but like I had said, I had known them for – since five or six months at that point. I knew that they would be able to take care of her better than I could. At that point I felt like interjecting myself into that situation would only cause everything to be a lot more dramatic ‘cause I didn’t know what it was about.

But I did figure it was something to do with me having sex with her. THE COURT: It didn’t cause you concern to see friends of yours upset? A. Umm. Yeah, it did, I guess, yeah. What – it did cause me concern but I figured that it was about [the complainant] and that [the cousin] and [the friend] could comfort her better than I could.

[ 42 ] Again, the judge asked counsel if there were any questions arising out of his. Both answered negatively. [ 43 ] Mr. Gahan describes the above exchange as “a somewhat extensive cross-examination” whereas the Attorney General submits the questions were “extremely brief and could not have given the appearance that the Court had abandoned its role for that of an advocate.” I agree with the Attorney General. To borrow the words of Drapeau J.A. (as he then was) in Doiron , the judge’s questions were “focused and restrained.” Evidently the judge was troubled by Mr. Gahan’s behaviour after the fact.

The judge had the option to remain silent, in which case he evidently would have remained troubled by this aspect of Mr. Gahan’s testimony, or he could ask Mr. Gahan to explain. He chose the latter. [ 44 ] As stated in Doiron , “the limits of allowable intervention by trial judges are not etched in stone and the impugned conduct must be examined in the context in which it occurred to determine whether it exacted an intolerable toll on the fairness of the trial” (para. 18). Looking at it through this prism, I cannot conclude the judge exceeded the limits of allowable questioning.

When I look at the questions posed to Mr. Dawson and those to Mr. Gahan, either separately or combined, I simply cannot conceive that any reasonable observer would conclude the trial was unfair or the judge anything but impartial. [ 45 ] This case is far from similar to those where a new trial was ordered because the judge’s interference was reasonably perceived as rendering the trial unfair. For example, in Brouillard , Lamer J. (as he then was) summarized the impugned interventions in the following terms: In the case at bar, the least that can be said is that the judge was aware of his right to intervene.

He asked the witness Dominique Gauthier, the complainant's daughter and the accused's girlfriend and witness, some sixty questions, almost as many as the Crown, and interrupted her more than ten times during her testimony. During the accused's testimony the judge asked many more questions than the two counsel. In fact during the examination-in-chief he interrupted the examination being conducted by counsel for the defence almost twenty times, and cross-examined the accused. As a result he asked the accused, still during the examination-in-chief, twice as many questions as his own lawyer asked.

Since his questions were more in the nature of a cross-examination, he thus clearly gave the impression of assisting the Crown by doing precisely what he would have had to prevent the Crown from doing if necessary. The accused was interrupted by the judge a total of over sixty times in his answers in chief and in cross-examination.

Both the accused and the witness Gauthier were the object of sarcastic remarks. [paras. 26- 27] [ 46 ] In Konelsky , the judge’s behaviour was described as follows: In addition to the frequent interruptions of both counsel during their examination of witnesses the trial judge embarked on an examination of every witness at the conclusion of the examination-in-chief and cross-examination. While many of the questions posed by the Judge could be fairly described as questions seeking clarification, it is equally clear that much of the Judge's examination was in the nature of cross-examination.

The interventions clearly interfered with counsel's cross-examination. Since credibility was very much a live issue in this case such interventions were clearly an interference with counsel's attempts to test credibility. Both counsel in their summations agreed that credibility was most important in this case. Indeed, the Trial judge agreed and made very detailed and specific findings of fact in this respect.

Having performed the role of counsel to the extent that he did even with the best of intentions regarding impartiality, it is impossible to say that he would be viewed by the accused or by a reasonably minded observer as retaining his objectivity and impartiality. [para. 3] [ 47 ] In Palosaari , the judge actually re-called a witness on her own motion and then engaged in a lengthy cross-examination of the witness whom the judge clearly did not believe. [ 48 ] While the judge’s intervention in each of these cases might have justified setting aside the verdict because the judge had assumed the role of an advocate, the present case simply does not fall into that category.

C. Misapprehension of the evidence (Ground 4)

[49] Mr. Gahan argues the verdict is unreasonable because the judge misapprehended several aspectsof the evidence: (1) the post-offence conduct, (2) evidence he found corroborated the complainant’s evidence, (3) evidence of flirtingthat tended to corroborate Mr. Gahan’s testimony, and (4) other evidence that played a role in his decision, such as (

a) a statement thecomplainant’s cousin would have made on the way to Mr. Gahan’s home, (

b) certain minutia of the sexual activity the complainantdescribed, (

c) certain aspects of Peter Dawson’s testimony, and (

d) the length of time the complainant’s cousin testified the complainanthad been gone with Mr. Gahan (which Mr. Gahan argues the judge failed to consider at all). [50] Relying on cases from the Ontario Court of Appeal, Mr. Gahan says a misapprehension ofevidence occurs when the judge fails “to consider evidence relevant to a material issue, a mistake as to the substance of the evidence, ora failure to give proper effect to the evidence”: R. v. Morrissey, (ON CA), [1995] O.J. No. 639 (C.A.) (QL), at para.83, and R. v. George, (ON CA), [2000] O.J. No. 1696 (C.A.) (QL).

In these cases, the Court held that where it isargued that a verdict is based on a misapprehension of the evidence and results in an unreasonable verdict, “the court should firstconsider the reasonableness of the verdict” (para. 14 of George). If the verdict is not unreasonable, “then the court should determinewhether the misapprehension of evidence occasioned a miscarriage of justice” (para. 14 of George).

If the former, an acquittal mayresult, but, if the latter, a new trial is ordered. [51] While those cases stand for those propositions, they also stand for the following, which DohertyJ.A. articulated in Morrissey and the Court repeated in George: It is wrong to analyze a trial judge's reasons by dissecting them into small pieces and examining each piece in isolation as if it described,or was intended to describe, a legal principle applied by the trial judge. Reasons for judgment must be read as a whole ... A trial judge'sreasons cannot be read or analyzed as if they were an instruction to a jury.

Instructions provide a road-map to direct lay jurors on theirjourney towards a verdict. Reasons for judgment are given after a trial judge has reached the end of that journey and explain why he orshe arrived at a particular conclusion. They are not intended to be, and should not be read as a verbalization of the entire process engagedin by the trial judge in reaching a verdict ...

Appellate courts can offer that encouragement by approaching reasons for judgment, not as ifthey were intended to be a dissertation on the applicable law or comprehensive catalogue of the evidence, but rather as an attempt by thetrial judge to articulate the conclusions reached and the bases for these conclusions. Appellate courts must resist the invitation tomicroscopically examine reasons for judgment, lest trial judges decide that silence is indeed golden. [para. 31 of Morrissey, para. 22 ofGeorge] [52] In R. v.

C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5, Abella J. for the majority adopted this caution,saying that appellate judges should not “dissect, parse, or microscopically examine the reasons of a trial judge” (para. 11). In turn, themajority in R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, applied Justice Abella’s direction. [53] With respect, Mr. Gahan is asking us to engage in exactly what the Supreme Court says weshould not do. The issues in this ground of appeal, for the most part, raise questions of fact or mixed law and fact for which leave toappeal is required.

I would not grant leave because I am not convinced the trial judge significantly misapprehended any critical evidence.The judge was aware of the defence theory of the case, that is, that the complainant had engaged in consensual sex, immediatelyregretted it and was afraid her cousin would become aware of what she had done. The judge evidently rejected that the complainant’spost-offence conduct was in response to regret and her fear. As to Mr. Gahan’s post-offence conduct, the judge simply considered it asone factor among many in assessing credibility.

On the issue of “flirting,” the judge considered this description by some witnesses, buthe was certainly not required to come to this same conclusion. [54] As for what Mr. Gahan says are other mistakes in the judge’s apprehension of the evidence,these are, in my view, insignificant. Whether the complainant’s cousin warned the complainant not to hook up with her friends in ajoking manner is irrelevant. The complainant testified she considered it to be a joke. To the extent the evidence had any probative value,it could only relate to the complainant’s perception of what was said because it was only relevant to Mr.

Gahan’s theory that thecomplainant engaged in consensual sex, then regretted it and feared her cousin would know. [55] As for the description of the minutiae of the events leading to the sexual acts, this falls in thesame category as the error the judge made in relating the testimony of Mr. Dawson. While the judge may have made minor errors inrelating the evidence, or, stated differently, while some of his findings of fact might have been palpably wrong, these errors had noimpact on the ultimate finding of fact and thus were not overriding errors. [56] As for Mr.

Gahan’s argument the judge erred in not considering the testimony of somewitnesses regarding the length of time the complainant and Mr. Gahan might have been away from the party, I note that the SupremeCourt has ruled that in delivering reasons, a trial judge need not “detail his or her finding on each piece of evidence or controverted fact,so long as the findings linking the evidence to the verdict can be logically discerned”: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at

para. 20. Moreover, the judge was not required to accept the evidence of certain witnesses regarding the time frames. [57] In my view, the verdict is one that a properly instructed trier of fact, acting judicially, couldreasonably have rendered. As for the alleged misapprehension of the evidence, even if considered in the light most favourable to Mr.Gahan, these cannot be said to have occasioned a miscarriage of justice because none of the errors, even taken collectively, were of anoverriding nature.

Credibility findings are questions of fact to which great deference are owed, and I see no error that would justifygranting leave to appeal the judge’s findings of fact or his determination of questions of mixed law and fact. [58] On the question of the evidence the trial judge found corroborated the complainant’s testimony,the Attorney General says this raises a question of law. I will therefore address it separately. Mr.

Gahan submits the trial judge erred inholding that the complainant’s cousin and their friend corroborated the events that were said to have occurred after the sexual incident.He claims this was an error because there were significant differences in the evidence of the three witnesses. Mr. Gahan describes theseas follows: According to the complainant, she crouched down beside her cousin [the cousin] and whispered “I need to talk to you.” [The cousin]said nothing. Then she went to [the friend’s] left ear: “I really need to talk to you guys: can you guys come talk to me.

They got up andwent into the living room and she told what happened and was crying a lot. According to [the cousin], when the complainant reappeared after 30 to 45 minutes she was crying. Her shirt was inside out. She said “Ineed to talk to you.” She was not whispering, just taking. [The cousin] said “Where have you been?” twice and “I’ve been looking foryou.” She also said “no” to the request to talk. [The cousin] also said “you don’t realize the position this puts me in.” She told thecomplainant she was upset with her.

According to [the friend], the complainant came upstairs and asked to talk to us. [The cousin] said no, and the complainant came to [thefriend] and they went into the living room and talked. The complainant said that she “thought she’d just been raped”. [59] Mr. Gahan says the complainant’s detail of “whispering” to her cousin and her friend iscontradicted by both of them. That may be, but this is a finding of fact, and the judge was entitled to accept the evidence of thecomplainant in that regard.

Since his finding is supported by evidence, it cannot be said to be the result of a palpable and overridingerror. [60] I agree with the Attorney General that whether evidence constitutes corroboration is a questionof law: R. v. B.(G.), (SCC), [1990] 2 S.C.R. 57, [1990] S.C.J. No. 57 (QL), at para. 28. I do not believe, however, thatthe Attorney General has seized the essence of what Mr.

Gahan has argued in this part of his fourth ground of appeal. [61] In his decision, the trial judge stated as follows: [the cousin] and [the friend] also corroborate the events which would have occurred after the alleged sexual assault. They were allcrying when [the complainant] told them what happened in the living room. [The cousin] added that [the complainant] even showed herewhere the sexual assault occurred. [Their friend] did not follow. [62] The only error in that statement may be a factual one, for it is far from clear that all three werecrying when the complainant told them what had happened.

The testimony clearly shows the complainant was crying and the other twowere “upset.” The term upset never got defined. If there is an error of fact, like the others, it is certainly not an overriding one. [63] I certainly find no error of law. The testimony of the complainant’s cousin and their friendcorroborated the testimony of the complainant that after the incident she immediately asked to talk to them and immediately reported tothem what had happened. It is in that context the trial judge used the word “corroborate” as he was summarizing the testimonies in thefirst part of his decision.

D. The Statistics Canada evidence (Ground 5) [ 64 ] At trial, Mr. Gahan called as a witness Dr. Bonita Lynn Boone, a family physician who was at the Dr. Everett Chalmers Hospital during the early hours of December 28, 2010. While Mr. Gahan asked that Dr. Boone be recognized as an expert in family medicine and be allowed to provide an opinion regarding the use of a sexual assault kit, the request was withdrawn upon the prosecutor’s objection. Dr. Boone testified that she conducted an examination of the complainant and found “no signs of laceration or bruising.” [ 65 ] In cross-examination, Dr.

Boone said she noted the complainant was upset and was crying, although she was eventually able to “settle down.” The prosecutor asked the witness whether she would “agree with the Statistics Canada results when they state that 60 percent of sexual assaults victims present with no injuries?” Over Mr. Gahan’s objection, the judge allowed the question, and Dr. Boone answered that she “would agree with that statistic.” [ 66 ] In his decision, the trial judge expressly referenced this testimony. The judge specifically noted as follows: Dr.

Boone also testified that she conducted the sexual assault kit protocol on [the complainant]. She testified that no injuries were found; however, she also states that in 60% of sexual assaults no injuries would be found. [ 67 ] Mr. Gahan submits the statistic was inadmissible as hearsay and should not in any event even have been referenced by Dr. Boone because she had not been declared an expert witness. [ 68 ] The Attorney General recognizes this ground of appeal raises a question of law alone, in that it involves the admissibility of evidence, and concedes that the evidence should not have been admitted.

This is a wise concession in my view. In the context in which this evidence was adduced, it did not meet any requirement for admissibility and it ought to have been rejected. Moreover, the trial judge erred in relying on the evidence in rendering his decision. [ 69 ] This said, s. 686(1)( b )(iii) of the Criminal Code provides for the dismissal of an appeal in a situation where the appellate court finds the trial judge committed an error of law but the court of appeal is nonetheless of the opinion that no substantial wrong or miscarriage of justice has occurred.

In my view, this curative proviso should be applied in this case because the judge’s error in admitting the evidence and in making reference to it was inconsequential. [ 70 ] First, the judge referred to the statistic only in the context of reviewing the essence of Dr. Boone’s testimony and not in the course of conducting his credibility assessment of the complainant.

More importantly, there was no evidence to suggest that visible injuries would be expected in the circumstances of this case, nor did the judge draw an inference from the complainant’s description of the incident that one would expect signs of injury. Without such evidence or inference, Dr. Boone’s finding that there were no signs of laceration or bruising was really of no probative value.

Had someone properly qualified testified that one would expect a sexual assault as described by the complainant to have left signs of laceration or bruising, or had the judge inferred from the complainant’s description of the incident that injuries should have been visible, and had the judge then discounted that evidence on the basis of the inadmissible Statistics Canada evidence, the curative proviso would not be applicable. However, as it is, no one testified signs of laceration or bruising would be expected, and the judge did not draw such an inference from the complainant’s description of the incident.

Thus, the fact there were no visible injuries is not one that could be used to impeach the complainant’s testimony. Admitting the impugned evidence and referencing it were therefore meaningless errors. [ 71 ] For these reasons, I would hold the judge erred in admitting the impugned testimony and in referring to it, but nevertheless dismiss the ground of appeal because the error caused no substantial harm or miscarriage of justice.

E. The factors for assessing credibility (Ground 6 and part of Ground 2) [72] Mr. Gahan submits the judge decided the case on the basis of what “a reasonable person” woulddecide and not on the basis of the standard of proof required for a conviction in a criminal case. Evidently, if that were the case, theappeal would have to be allowed. It is an elementary yet fundamental tenet of criminal law that there cannot be a conviction unless theprosecution has proven each essential element of the offence beyond a reasonable doubt. Failing this, an accused must be acquitted.

Thisis so whether the reasonable doubt is founded upon either the belief of the accused’s exculpatory testimony, a reasonable doubt foundedupon that testimony, or a reasonable doubt arising from the facts that have been proven. [73] In support of this ground of appeal, Mr. Gahan points to statements the judge made in the courseof rendering his decision and argues these demonstrate the judge applied an objective standard based on a hypothetical reasonable personinstead of the applicable reasonable doubt standard. Mr.

Gahan points to three sentences in the judge’s decision: Would a reasonable person conclude based on these observations – What would a reasonable person conclude based on theseobservations? […] So when taking all those things into account I come to the conclusion that a reasonable person would come to the conclusion that [thecomplainant] did not – and I repeat – did not consent to the sexual activity she engaged with Travis Gahan. … Mr.

Gahan, for those reasons I am able to reject in the entirety your testimony and I accept [the complainant]’s testimony. [74] With respect to this ground of appeal, the Attorney General says the judge erred in makingreference to the reasonable person standard but that the error was effectively corrected when the judge immediately followed up with thefollowing statement: Pursuant to the provisions in Lifchus and in Starr, I find that the Crown has proven its case beyond a reasonable doubt on each and everyessential element of the offence, and therefore for the offence under section 271(1)(

a) of the Criminal Code of Canada, Mr. Gahan, Ifind you guilty of the said offence. In light of this, the Attorney General says we should apply the curative proviso. [75] With respect to both positions, I do not believe the trial judge articulated an improper standardfor the assessment of a criminal case. This case illustrates the wisdom for the direction that reasons for decision must be read as a whole,in the context of the evidence, the argument and the trial. As I will explain below, I conclude the trial judge’s use of the term “reasonableperson” was not applied to the standard of proof upon which Mr.

Gahan’s conviction was founded. [76] In delivering his decision, the judge began with a review of the testimonies. He thensummarized the legal principles upon which the case would have to be determined, laying them out as follows: As in most cases of these types, the issue will be determined in accordance with the principles as they are set out in R. v.

W.D., a decisionof the Supreme Court of Canada (SCC), [1991] 1 S.C.R. 742: (1) if I believe the accused I must acquit; (2) if I don’tknow whether to believe the accused or the complainant, I must acquit; (3) if I do not reject the evidence of the accused, I must acquit; (4) if I disbelieve the accused and I am convinced beyond a reasonable doubt that the Crown has proven each and every element of theoffence, can a verdict of guilty be registered. Those are the principles which I am bound by to consider when determining the question ofcredibility.

The next issue to be determined is a determination of proof beyond a reasonable doubt. That concept was defined, again, in the Supreme

Court of Canada in R. v. Lifchus, (SCC), [1997] 5 C.R. (5th) 1 and R. v. Starr, 2000 SCC 40 , [2001] 36 C.R.(5th) 1. So what is proof beyond a reasonable doubt? Proof beyond a reasonable doubt is alive in every criminal trial and is attached tothe presumption of innocence. It isn’t proof of absolute certainty. It is not proof beyond any doubt nor is it an imaginary or frivolousdoubt. It is based on common sense and reason, not on sympathy or prejudice.

It falls much closer to absolute certainty than on abalance of probability, the principle enunciated in Starr. [77] Understandably, no one has raised any issue with this portion of the judge’s reasons. [78] The trial judge then acknowledged that credibility would be a determinative feature of the case,and he set out the principles by which a court should assess credibility: … when a Court assesses credibility the Court must consider all the surrounding circumstances concerning the act itself. So I ask myselfwhy would she clench her fists when the sexual encounter had happened?

Why would she have tears in her eyes when it was over if itwas consent? Why wouldn’t Mr. Gahan inquire why when Mr. Gahan came upstairs and saw [the complainant], [the cousin] and [theirfriend] crying in the living room? It’s to be remembered that [the cousin] and [the friend] were his friends. One would think he wouldbe concerned why they were upset. According to him he didn’t want to get involved in the drama. Why would [the complainant] getdressed so quickly and put her shirt on inside out if everything was consensual?

Another why; why wouldn’t Travis Gahan try to stop[the complainant] leaving the residence in a blizzard without a jacket when he saw her going out the front door? Why would he shutdown the party so quickly after it happened under the pretext of having to go to work early the next morning? And remember the wordsof [the friend] that she was surprised because they had not gone sliding which was the purpose in the first place of the party.

Would areasonable person conclude based on these observations – What would a reasonable person conclude based on these observations? [79] It is in this context that the term “reasonable person” was first used; that is, the context ofarticulating the approach pursuant to which the judge would be making a credibility assessment. The judge then continues by adding thathe also considers Mr. Gahan’s demeanour as a factor in making his credibility assessment. This is the portion to which Mr. Gahan refersin the second part of the second ground of appeal to which I said earlier I would return.

The judge says he listened to Mr. Gahan’stestimony and found it to be “as if somebody gave him a script and he practiced it.” However, the trial judge does not make a credibilityfinding based on demeanour alone. It is crystal clear that the judge merely considers demeanour as one of many factors because heimmediately goes on to review some of the questions he says he will be examining in assessing credibility, such as why people wouldhave been so upset if the sexual activity had been consensual, why Mr. Gahan had not inquired when he noted the complainant, hercousin and their friend were upset, etc.

It is then that the judge says that “taking all those things into account I come to the conclusionthat a reasonable person would come to the conclusion that [the complainant] did not – and I repeat – did not consent to the sexualactivity” and followed this by his finding that “the Crown has proven its case beyond a reasonable doubt on each and every essentialelement of the offence.” [80] In setting out his argument in support of the second part of his second ground of appeal, Mr.Gahan refers to the oft-referred statement of O’Halloran J.A. in Faryna v. Chorny, (BC CA), [1951] B.C.J.

No. 152(C.A.) (QL), as setting out the guiding principles for assessments of credibility: If a trial Judge's finding of credibility is to depend solely on which person he thinks made the better appearance of sincerity in thewitness box, we are left with a purely arbitrary finding and justice would then depend upon the best actors in the witness box. Onreflection it becomes almost axiomatic that the appearance of telling the truth is but one of the elements that enter into the credibility ofthe evidence of a witness.

Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what hehas seen and heard, as well as other factors, combine to produce what is called credibility, and cf. Raymond v. Bosanquet (1919), (SCC), 50 D.L.R. 560 at p. 566, 59 S.C.R. 452 at p. 460, 17 O.W.N. 295. A witness by his manner may create a veryunfavourable impression of his truthfulness upon the trial Judge, and yet the surrounding circumstances in the case may point decisivelyto the conclusion that he is actually telling the truth.

I am not referring to the comparatively infrequent cases in which a witness is caughtin a clumsy lie. The credibility of interested witness, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether thepersonal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examinationof its consistency with the probabilities that surround the currently existing conditions.

In short, the real test of the truth of the story of awitness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person wouldreadily recognize as reasonable in that place and in those conditions. Only thus can a Court satisfactorily appraise the testimony of quick-minded, experienced and confident witnesses, and of those shrewd persons adept in the half-lie and of long and successful experience incombining skillful exaggeration with partial suppression of the truth.

Again a witness may testify what he sincerely believes to be true,but he may be quite honestly mistaken. For a trial Judge to say "I believe him because I judge him to be telling the truth", is to come to aconclusion on consideration of only half the problem. In truth it may easily be self-direction of a dangerous kind.

The trial Judge ought to go further and say that evidence of the witness he believes is in accordance with the preponderance of probabilities in the case and, if his view is to command confidence, also state his reasons for that conclusion. The law does not clothe the trial Judge with a divine insight into the hearts and minds of the witnesses.

And a Court of Appeal must be satisfied that the trial Judge's finding of credibility is based not on one element only to the exclusion of others, but is based on all the elements by which it can he tested in the particular case. [paras. 10-12] [ 81 ] Many courts across Canada have endorsed these statements; too numerous to list, although the case has apparently only been referenced once in this Court: Smith v. Agnew , 2005 NBCA 36 , 282 N.B.R. (2d) 95.

I suspect the reason for this is that the logic of O’Halloran J.A.’s words simply has not been challenged on appeal, although it has often been applied at trial as evidenced by the huge number of reported cases emanating from trial courts.

In any event, I agree with O’Halloran J.A. that the assessment of credibility is the function of weighing many factors, chief among them the opportunities for knowledge, the powers of observation, the witness’s judgment and memory, the witness’s ability to clearly describe what has been seen and heard, and in particular how the testimony of the witness harmonizes “with the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.” Demeanour – the appearance of telling the truth – “is but one of the elements that enter into the credibility of the evidence of a witness” (para. 10). [ 82 ] In my respectful view, the approach espoused in Faryna v.

Chorny is the very approach the trial judge adopted in determining credibility in the present case. Yes, the judge considered Mr. Gahan’s demeanour. However, the judge had previously indicated that even if the testimony appeared to be scripted, this did not mean it was not true. More importantly, the trial judge did not anchor his credibility findings on demeanour alone, if at all. The judge considered the other factors relevant to a credibility assessment, and in particular subjected the complainant and Mr.

Gahan’s respective testimonies to an examination of their consistency with the probabilities that surround the existing conditions. Evidently, both the complainant and Mr. Gahan had similar opportunities for knowledge and reasons to recall the events of the fateful night, although the judge was not wrong to note that Mr. Gahan consumed much more alcohol that evening than the complainant. In my view, the reasons for decision as a whole make it abundantly clear that when the judge asked “what would a reasonable person conclude” he was merely stating that he was filtering the testimony of both Mr.

Gahan and the complainant through the fine mesh of how each harmonized with the probabilities which a practical and informed person – that is a reasonable person – would readily recognize as likely in that place and in those conditions. The judge concluded that one would not reasonably expect that a young woman who has had consensual sex with someone she liked to have immediately been crying, dressed hurriedly with her shirt inside o

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