2013 NBCA 31, 2013 NBCA 31

COURT OF APPEAL OF NEW BRUNSWICK 152-11-CA PHILIPPE DOIRON APPELLANT PHILIPPE DOIRON APPELANT - and - - et - HER MAJESTY THE QUEEN RESPONDENT SA MAJESTÉ LA REINE INTIMÉE Doiron v. R., 2013 NBCA 31 Doiron c.

R., 2013 NBCA 31 CORAM: The Honourable Justice Larlee The Honourable Justice Richard The Honourable Justice Quigg CORAM : L’honorable juge Larlee L’honorable juge Richard L’honorable juge Quigg Appeal from a decision of the Provincial Court: January 19, 2011 (conviction) Appel d’une décision de la Cour provinciale : Le 19 janvier 2011 (déclaration de culpabilité) History of Case: Historique de la cause : Decision under appeal: Unreported Décision frappée d’appel : Inédite Preliminary or incidental proceedings: [2011] N.B.J.

No. 443 (QL) and (NB CA), 383 N.B.R. (2d)25 Procédures préliminaires ou accessoires : [2011] A.N.-B. no 443 (QL) et (NB CA), 383 R.N.-B. (2e) 25 Appeal heard: September 25, 2012 Appel entendu : Le 25 septembre 2012 Judgment rendered: May 2, 2013 Jugement rendu : Le 2 mai 2013

Reasons for judgment: The Honourable Justice Richard Motifs de jugement : L’honorable juge Richard Concurred in by: The Honourable Justice Larlee The Honourable Justice Quigg Souscrivent aux motifs : L’honorable juge Larlee L’honorable juge Quigg Counsel at hearing: For the appellant: J. Denis Boudreau For the respondent: René Dumaresq Avocats à l’audience : Pour l’appelant : J. Denis Boudreau Pour l’intimée : René Dumaresq THE COURT The appeal from conviction is dismissed. English version of the judgment of the Court was delivered by RICHARD J.A. I. Introduction [1] On January 19, 2011, a judge of the Provincial Court convicted Philippe Doiron of assault with a weapon (s. 267(

a) of the Criminal Code ), and property damage (s. 430(4)). Mr. Doiron appeals the conviction on grounds that the judge: (1) did not properly apply the reasonable doubt standard and gave insufficient reasons for her credibility findings; (2) erred in not giving effect to the defences of self-defence and defence of property; and (3) erred in not finding that a police technique of having both Mr. Doiron and one of the potential

complainants sign a form indicating they did not want to proceed in the criminal courts constitutes an abuse of process. For the reasons set out below, I am of the view that: (1) the judge followed the proper analysis to apply the reasonable doubt standard and the reasons given are sufficient to allow for meaningful appellate review; (2) the judge did not err in rejecting the defences raised; and (3) although I find the police conduct in this matter to be most unusual, the judge did not err in finding that the evidence was insufficient to prove abuse of process. Accordingly, I would dismiss the appeal. II.

Background [2] Philippe Doiron and Christina Robichaud are the parents of a child born in 2002. Whether harmony ever reigned between them is uncertain, but acrimony is certainly what describes their current relationship. They separated in 2003, and the mother retained custody of their daughter with access to the father every second weekend. At the end of 2008, or in early 2009, the mother decided to relocate to Fredericton. In order to respect the access rights, they agreed Ms.

Robichaud would travel to the father’s home in Saint-Pons every second weekend, drop the child off at 6 p.m. on Friday, and return for her 48 hours later. On the second weekend of access pursuant to this arrangement, the acrimony dramatically re-surfaced. [3] Ms. Robichaud is now married to Jonathan Arseneau, with whom she lives in Fredericton with both the 10-year-old and their infant child. Mr. Doiron resides with Monica Basque and her young daughter. [4] On January 23, 2009, Ms. Robichaud and Mr. Arseneau dropped off Mr. Doiron’s daughter as agreed.

The events that eventually led to criminal charges against Mr. Doiron occurred two days later. To provide the necessary context, both the trial evidence and the investigatory process must be reviewed. A . The Prosecution [5] Ms. Robichaud and Mr. Arseneau both testified for the prosecution. According to them, on January 25, 2009, Ms. Robichaud called the Doiron residence five minutes before their arrival to ask that her daughter be waiting outside when they arrived. The call was made in order to avoid any confrontation with Mr. Doiron. However, when they arrived, the child was not

outside. After waiting a few minutes, Ms. Robichaud entered the Doiron residence, but the child was not ready to leave. Ms. Robichaud and Mr. Doiron exchanged words about the child’s clothing, and Ms. Robichaud left the residence to wait in the vehicle with Mr. Arseneau and their six-month old baby. [6] A few minutes later, Mr. Doiron exited the residence with the child’s suitcase and a bag full of the child’s clothing. Ms. Robichaud got out of the vehicle, took the suitcase and the bag from Mr. Doiron and placed them in the trunk. Mr. Doiron then forcefully closed the trunk.

A further verbal exchange ensued, and Ms. Robichaud demanded that Mr. Doiron go and get the child, while Mr. Doiron told her to get off his property because she was not being respectful. [7] Mr. Doiron turned to re-enter the residence and Ms. Robichaud followed. When they reached the porch, Mr. Doiron pushed Ms. Robichaud. At this point, Mr. Arseneau stepped in; the two men exchanged words, got into a shoving match, and fell to the ground. Ms. Robichaud hit Mr. Doiron to disengage him from Mr. Arseneau. [8] Mr. Doiron asked Ms. Basque to contact the police. Ms. Robichaud agreed. Mr. Doiron and Ms.

Basque went into the house and Mr. Arseneau and Ms. Robichaud returned to their vehicle. Ms. Basque called 911 from the residence and Ms. Robichaud called from her cell phone while waiting in the vehicle. At this point, Mr. Doiron came out of the residence with a baseball bat and went to the passenger side of the vehicle, where Ms. Robichaud was seated. He attempted to open the door, but it was locked. He then tapped the bat on the headlight on the passenger side of the vehicle without leaving any mark. [9] In the prosecution’s version, Mr. Arseneau became nervous and decided to back up in an attempt to leave.

However, he backed into a snow bank and the vehicle became stuck. Mr. Doiron crossed in front of the vehicle and proceeded to the driver's side, looked at Mr. Arseneau, and then struck the driver’s side window with the bat, causing the glass to shatter. Mr. Arseneau was scared, and he again attempted to leave. In doing so, the car became free of the snow bank, moved forward, causing Mr. Arseneau to quickly brake in order to avoid striking Mr. Doiron, and came to a stop two feet in front of him. At this point, Mr. Doiron struck the hood of the vehicle with the bat, leaving visible damage. Mr.

Arseneau then backed the vehicle out of the driveway and went to the nearby Community Centre to await the arrival of the police. B. The Defence

[10] The testimonies of Mr. Doiron and Ms. Basque painted a drastically different picture of the events of January 25, 2009. According to them, Ms. Robichaud did not telephone their residence before arriving to pick up the child. When Ms. Robichaud entered the residence at 6 p.m., the child was not ready and did not want to leave. Mr. Doiron asked Ms. Robichaud why she had sent as many clothes as she had for the child, and Ms. Robichaud began to scream at him. She then left the residence, slamming the door. Ms. Basque went with the child to pack, but heard both the screaming and the door slamming. Ms.

Basque also saw Ms. Robichaud push Mr. Doiron on the porch steps. She said that Mr. Arseneau, who had been waiting in his vehicle, got out of the vehicle and also pushed Mr. Doiron. The two men scuffled, landed on the ground, and Ms. Robichaud kicked Mr. Doiron in the ribs. [11] When Mr. Doiron got up from the ground, he asked Ms. Basque to call the police. Mr. Doiron and Ms. Basque repeatedly told the other couple to leave, but they refused. Mr. Arseneau and Ms. Robichaud finally returned to their vehicle. Ms. Basque re-entered the residence and Mr.

Doiron went to his own vehicle to retrieve something with which to protect himself. When he couldn't find anything, he went back to his residence where Ms. Basque gave him a baseball bat. Mr. Doiron went back outside with the bat to scare Mr. Arseneau and Ms. Robichaud into leaving. He pointed the bat at them and motioned for them to leave. At this point, Mr. Arseneau drove forward to scare Mr. Doiron, resulting in Mr. Doiron striking the vehicle with the bat, but not hard enough to cause any damage. Undeterred, Mr. Arseneau continued to advance , causing Mr.

Doiron, who has an amputated leg and wears a prosthetic device, to jump to the right to avoid the vehicle. In the process, he slipped and fell, and, as his arm went up, the bat struck the driver's side window causing it to shatter . [12] Mr. Doiron got up and Mr. Arseneau backed up. The vehicle struck a snow bank and then moved forward toward Mr. Doiron, stopping only two feet from him. This caused Mr. Doiron to strike the vehicle again, this time on the hood. Mr. Doiron says he was scared and defended himself. He had feared Ms.

Robichaud and her “entourage” for several years and wanted her to leave his property because she was being disrespectful toward him. C. The Process Leading to the Charges [13] Ms. Basque’s call to the RCMP was received at approximately 6:30 p.m. and the one from Ms. Robichaud about a minute later. Because of previous calls, no officer could be immediately dispatched to the scene. Two of them arrived, in separate vehicles, about an hour later. They first met with

Mr. Arseneau and Ms. Robichaud, who were waiting at the Community Centre, and took statements from them. One of the officers asked Mr. Arseneau if he wished to proceed with charges against Mr. Doiron. Mr. Arseneau stated he did not; he just wanted funds to repair the damage to his vehicle. The officer then produced a document titled [TRANSLATION] “Stay of Proceedings”, which, according to the officer, is used as a matter of policy by the RCMP when people do not want to proceed with criminal charges. The officer filled out the document and Mr. Arseneau signed it. The document states that Mr.

Arseneau acknowledges having contacted the RCMP on January 25, 2009, concerning damage to his vehicle; he does not want to testify in court on a future date concerning this incident; and he does not want the investigation to continue, or charges brought, because he will pursue the matter in civil court. Ms. Robichaud was uncertain of her intentions so she was not asked to sign such a document. [14] The officers then proceeded to the Doiron residence where they interviewed both Mr. Doiron and Ms. Basque. The officers advised Mr. Doiron that Mr.

Arseneau had signed a document to stay any further proceedings and inquired whether he would be willing to do the same. Mr. Doiron agreed and signed a similar form. Although the officer who presented this document to Mr. Doiron denied having encouraged him to sign it, he nevertheless admitted praising Mr. Doiron for signing it, stating that, in doing so, he was putting the best interests of his daughter first. One of the officers testified having explained to both Mr. Arseneau and Mr.

Doiron that, despite their wishes, any final decision to pursue the investigation rested with the police. [15] In the aftermath of this incident, the RCMP did nothing further regarding this matter until February 26, 2009. On that date, Ms. Robichaud contacted the police to “request” that Mr. Doiron be charged. [16] It is important to put Ms. Robichaud’s “request” in perspective. In the aftermath of the January 25, 2009 incident, Ms. Robichaud unilaterally stopped the access visits between her daughter and Mr. Doiron. On or about February 18, 2009, Ms. Robichaud was served with a Notice of Motion in which Mr.

Doiron was seeking custody of his daughter. The return date on the Notice of Motion was April 2, 2009. [17] Ms. Robichaud denied her receipt of the Notice of Motion precipitated her to contact the RCMP to insist charges be laid against Mr. Doiron. She maintained she had decided to communicate with the police before even learning of the motion and claims she had made unsuccessful attempts to contact the investigating officer.

[18] When initially questioned on point, Ms. Robichaud denied having asked the police to proceed with the charges before the April 2 return date on the Notice of Motion. However, when defence counsel suggested playing a recording of her conversation with the police, she then acknowledged having told the RCMP it might be important to proceed with the charges before April 2, 2009, because of the upcoming custody proceedings. [19] An RCMP officer swore an information against Mr. Doiron on June 3, 2009. D.

The Trial [20] In the arguments that followed the evidentiary portion of the trial, defence counsel argued in favour of an acquittal and invited the court to make credibility findings in favour of Mr. Doiron and Ms. Basque. He also invoked ss. 34 and 41 of the Criminal Code , arguing Mr. Doiron had been acting in self-defence and was justified in using force to remove Ms. Robichaud and her husband from his property. In addition, he submitted the prosecution was an abuse of the court's process. On this last point, he argued the police had acted improperly by convincing Mr.

Doiron to sign a document asking that any further criminal proceedings be stayed, and by leading him to believe the RCMP considered this to be a civil matter. Defence counsel invoked R. v. Regan , 2002 SCC 12 , [2002] 1 S.C.R. 297 , in support of this last argument, and sought a stay of proceedings as the appropriate remedy. As he was pressing the point, the trial judge expressed her own concern with the process that had led to the charge.

She stated she was dismayed at the police attitude and was particularly surprised the police would have led anyone, complainant or accused, to believe they had the power to request that further proceedings be stayed. The judge observed it is up to the police, in consultation with Crown counsel, to decide whether or not to proceed with criminal charges against anyone; it is not a matter left to the individuals involved in an incident. The judge said she would comment on this aspect of the case in her decision.

Neither the Provincial Court judge nor the experienced defence counsel had ever even heard of the [TRANSLATION] "Stay of Proceedings" document the police officers had used in this case, much less that its use was RCMP policy. [21] For his part, prosecution counsel argued in favour of a conviction, urging the judge to make credibility findings in favour of Ms. Robichaud and Mr. Arseneau and to reject the defences of self-defence and defence of real property. On the question of abuse of process, the prosecutor candidly admitted he had never seen a document of this kind used in the early part of an investigation.

He informed the Court he had seen such a document used on very rare occasions when charges had been laid against someone and a complainant was refusing to

cooperate. He did not approve of the way this document had been used in the presentcase, but argued the onus of proving an abuse of process was on the defence, andsuggested the circumstances did not lend themselves to such a finding or to a stay ofproceedings. E. The Trial Judge’s Decision [22] The trial judge rendered an oral decision onJanuary 19, 2011. She made credibility findings in favour of the prosecutionwitnesses and rejected both self-defence under s. 34 of the Criminal Code, anddefence of real property under s. 41. Her reasons will be more fully canvassed as Iaddress the various grounds of appeal.

As for the claim of abuse of process, the judgerejected it without giving any reasons other than that the defence had not adducedsufficient evidence. In the end, the trial judge convicted Mr. Doiron on both charges,and, some time later, sentenced him to a total of 60 days of imprisonment, to beserved intermittently, and to probation. She also issued ancillary orders underss. 109(1)(

a) and 487.051 of the Criminal Code. III. Issues on Appeal [23] Mr. Doiron appeals his conviction, raising fourgrounds of appeal. He says: (1) the trial judge did not provide sufficient reasons for her credibility findingsand misapplied the criteria set out in R. v. W. (D.), (SCC), [1991] 1S.C.R. 742, [1991] S.C.J. No. 26 (QL); (2) the trial judge erred in her application of s. 41 of the Criminal Code; (3) the trial judge erred in her application of self-defence; and (4) the trial judge erred in not giving effect to relief sought under s. 8 of theCriminal Code and s. 7 of the Canadian Charter of Rights and Freedoms for abuse ofprocess.

IV. Analysis A. Credibility Findings (Ground 1) [24] Relying on this Court’s decision in S. S. v. R. , 2011 NBCA 75 , 376 N.B.R. (2d) 146 , Mr. Doiron argues the trial judge did not provide sufficient reasons for her credibility findings and that she misapplied the criteria set out in W. (D.) . In particular, Mr. Doiron points to what he says are important contradictions in the testimonies of Ms. Robichaud and Mr. Arseneau that the judge did not address. These contradictions in part relate to the location of the vehicle when the baseball bat struck the driver’s side window.

The defence was arguing this occurred closer to the house, whereas Mr. Arseneau maintained it occurred as his vehicle was stuck in the snow bank. On this point, Ms. Robichaud does not appear to corroborate Mr. Arseneau’s version. On appeal, Mr. Doiron argues the judge should have made specific mention of these contradictions and should have explained why, despite these, she nonetheless accepted the testimony of Mr. Arseneau and why, despite these, she was not left with a reasonable doubt that the breaking of the window might have been accidental as described by Mr. Doiron and Ms.

Basque. [25] Failure to follow the W.(D.) analysis and insufficiency of trial reasons for decision are two grounds of appeal that, in days in the not so distant past, we would have said “caused a lot of ink to be spilled.” The modern equivalent is perhaps that these concepts have been the cause of wearing out many a keyboard. Nevertheless, they are frequently misunderstood. [26] W.(D.) sets out an analytical approach for reaching a verdict in a case where credibility is determinative. It provides that, in such cases, a verdict cannot be reached by simply choosing one version of the evidence over the other.

At all times the question is whether the prosecution has proven its case beyond a reasonable doubt. Where an accused has testified but the evidence is not believed, the testimony may nevertheless raise a reasonable doubt justifying acquittal. Even if it does not, a conviction cannot be sustained unless, on the whole of the evidence, the trier of fact is convinced of the guilt of the accused beyond a reasonable doubt. W.(D.) does not subject trial judges to recite a particular mantra.

So long as a trial judge gives effect to the approach and addresses the live issues in the case, a ground of appeal based on W.(D.) is bound to fail. This was recently explained in R. v. Randall , 2012 NBCA 25 , 393 N.B.R. (2d) 217 , at paras. 21-31 , and is captured in the following passages: […] trial judges, like juries, must apply the reasonable doubt standard, and where there is something in the reasons, or in the verdict,

that, when read in context, "demonstrate[s] a failure to properly apply the reasonable doubt standard" (para. 37 [of R. v. S.S., 2011NBCA 75, 376 N.B.R. (2d) 146]), there is a basis for appellate interference based on an error of law. The error is not, however, forfailing to provide reasons detailing well-settled law, but rather for failing to apply the proper standard to the case. In S.S., the majorityultimately found that the trial judge had "ignored the Crown's burden to prove guilt beyond a reasonable doubt." To summarize, Burns [R. v. Burns, (SCC), [1994] 1 S.C.R. 656, [1994] S.C.J.

No. 30 (QL)] instructs us that trial judgesare presumed to know the law, and cases such as R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, R. v. Walker, 2008 SCC 34, [2008] 2S.C.R. 245, and R.E.M. confirm that a detailed recitation of the law or even of the evidence is not required when reasons are providedthat, when read in the context of the record and the submissions on the live issues in the case, show that the judge has seized thesubstance of the matter. [paras. 31-32] [27] As for the alleged insufficiency of reasons forthe verdict, this, of itself, is not a valid standalone ground of appeal.

This is so becausetrial judges are not expected to give perfect reasons for their decision, nor are theyexpected to verbalize the evidentiary minutiae that led to every credibility finding. Quigg J.A. explains this fully in R. v. Penny, 2010 NBCA 49, 362 N.B.R. (2d) 255: In R. v. Sheppard, [2002] 1 S.C.R. 869, [2002] S.C.J. No. 30, 2002 SCC 26, the Supreme Court confirmed that courts have a duty toprovide reasons. In R. v. Dinardo, [2008] 1 S.C.R. 788, [2008] S.C.J. No. 24, 2008 SCC 24, Justice Charron stated: At the trial level, reasons "justify and explain the result" (Sheppard, at para. 24).

Where a case turns largely on determinations ofcredibility, the sufficiency of the reasons should be considered in light of the deference afforded to trial judges on credibility findings.Rarely will the deficiencies in the trial judge's credibility analysis, as expressed in the reasons for judgment, merit intervention onappeal. Nevertheless, a failure to sufficiently articulate how credibility concerns were resolved may constitute reversible error (see R. v.Braich, [2002] 1 S.C.R. 903, 2002 SCC 27, at para. 23). As this Court noted in R. v.

Gagnon, [2006] 1 S.C.R. 621, 2006 SCC 17, theaccused is entitled to know "why the trial judge is left with no reasonable doubt": Assessing credibility is not a science. It is very difficult for a trial judge to articulate with precision the complex intermingling ofimpressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events. That is whythis Court decided, most recently in H.L., that in the absence of a palpable and overriding error by the trial judge, his or her perceptionsshould be respected.

This does not mean that a court of appeal can abdicate its responsibility for reviewing the record to see whether the findings of fact arereasonably available. Moreover, where the charge is a serious one and where, as here, the evidence of a child contradicts the denial of anadult, an accused is entitled to know why the trial judge is left with no reasonable doubt. [paras. 20-21] Essentially, Sheppard directs appeal courts to adopt a functional approach when reviewing the sufficiency of reasons with respect tocredibility findings. Our Court recently reviewed this issue in R. v. R.D.H., [2009] N.B.J.

No. 141, 2009 NBCA 28, where Bell J.A.states: More recently, in R. v. Sheppard, [2002] 1 S.C.R. 869, [2002] S.C.J. No. 30, 2002 SCC 26, the Court again addresses the issue of thesufficiency of reasons. Binnie J., writing the judgment of the Court, states that "[t]he appellate court is not given the power to intervenesimply because it thinks the trial court did a poor job of expressing itself" (para. 26). Binnie, J. further states that the duty to give reasons"should be given a functional and purposeful

interpretation" (para. 53) and failure of this duty does not provide a "[...] free-standing rightof appeal and [...] entitlement to appellate intervention" (para. 53). Essentially, Sheppard holds that appellate courts should ask whetherthe reasons respond to the case's issues, having regard to the evidence as a whole and the submissions of counsel. An appeal based uponinsufficient reasons will only be allowed when the trial judge's reasons are so deficient that they foreclose meaningful appellate review(see also, R. v. Walker, [2008] 2 S.C.R. 245, [2008] S.C.J.

No. 34, 2008 SCC 34, where Binnie J. concludes that the duty to giveadequate reasons is founded upon the need for trial judges to justify and explain the result; to tell the losing party why he or she lost; toprovide for informed consideration of the grounds of appeal; and to satisfy the public that justice has been done).

In R. v. R.E.M. , [2008] 3 S.C.R. 3 , [2008] S.C.J. No. 52 , 2008 SCC 51 , the court was required to consider the adequacy of reasons of a trial judge in his assessment of the credibility of witnesses. McLachlin C.J. explains that credibility findings may involve factors that are difficult to verbalize. The Chief Justice goes on to state that an appellate court reviewing reasons for sufficiency should start from a deferential stance toward the trial judge's findings of fact.

Next, the appellate court, proceeding with deference, must determine whether the reasons, considered with the evidentiary record, the submissions of counsel and the live issues at the trial, reveal the basis for the verdict reached (para. 67) (see also New Brunswick (Minister of Family and Community Services) v. T.L.M. (Litigation guardian of) , [2009] N.B.J.

No. 19 , 2009 NBCA 8 regarding sufficiency of reasons). [paras. 7-8] Therefore, it is clear that appellate intervention should be avoided unless the trial judge's reasons are deficient to the point of foreclosing meaningful review. [paras. 25-26] [28] In the end, the law provides that to reach a verdict in a criminal case, a trier of fact must apply the reasonable doubt standard. Where there is something in the reasons, or in the verdict, that, when read in context, demonstrates a failure to apply this standard, there is a basis for appellate interference: S.S.

However, a detailed recitation of the law is not required in a judge alone case, nor is it necessary for a trial judge to review all the evidence provided that the record reveals that the judge considered the live issues of the case and effectively seized the substance of the matter: Randall . [29] Applying these principles to the facts of this case, I find no merit in this ground of appeal. With respect to the W.(D.) principles, the trial judge explicitly made reference to them in rendering her decision.

She recognized that the trial was not a simple credibility contest and that guilt had to be established beyond a reasonable doubt, a doubt that could be founded on the testimony of defence witnesses, including the accused, or on the whole of the evidence. This is a correct articulation of the law. [30] It is true the trial judge does not review every inconsistency in the evidence, be it among prosecution witnesses or between prosecution witnesses and defence witnesses. However, it is nevertheless clear the judge recognized the live issues in the case, including whether Mr. Doiron had intentionally struck Mr.

Arseneau’s vehicle or whether the blows had been accidental and in self-defence. On this point, the judge believed the testimony of Mr. Arseneau. She was not required to accept the testimony of Ms. Robichaud, Mr. Doiron, or Ms. Basque regarding the location of the vehicle when Mr. Doiron struck the side window with the bat, causing the glass to shatter. The judge found implausible the explanation of accidental slipping and striking of the window with the bat. The judge knew this was a critical finding and explicitly explained why she did not believe Mr. Doiron’s version.

While it is true that, on that point, the judge does not specifically refer to the corroborative version of Ms. Basque or to the testimony of Ms. Robichaud on the question of the location of the vehicle when it was stuck, the judge was nevertheless alive to the fact that her acceptance of Mr. Arseneau’s version was not determinative. The judge explains why she does not believe Ms. Basque, stating that her testimony

was contradictory, not spontaneous, and exaggerated. More importantly, the judge expressly recognizes that, in the end, she has to be satisfied of guilt beyond a reasonable doubt, stating that neither the testimony of Mr. Doiron nor that of Ms. Basque raises such a doubt, and, in the final analysis, concluded the prosecution had met its burden of proof. [31] In my view, the reasons for decision more than adequately allow for meaningful appellate review. A standard of perfection might have resulted in a more detailed explanation for accepting Mr. Arseneau’s version despite the unexplained contradiction with Ms.

Robichaud’s placement of the vehicle, but this is not the standard expected of busy trial judges. For clearly articulated and sound reasons, the judge believed Mr. Arseneau’s evidence and not that of the defence witnesses, and, on this point, evidently not that of Ms. Robichaud. The judge’s conclusion that Mr. Doiron intentionally wielded the bat to strike the window is one the evidence reasonably supports and it must be given deference. This is not one of those rare situations where deficiencies in the judge’s analysis would merit intervention on appeal. B.

Sections 41 and 34 of the Criminal Code (Grounds 2 and 3) [32] Mr. Doiron alleges the judge should have given effect to the defences set out in s. 41 or s. 34 of the Criminal Code . These provisions read as follows: Defence of house or real property 41.

(1) Every one who is in peaceable possession of a dwelling-house or real property, and every one lawfully assisting him or acting under his authority, is justified in using force to prevent any person from trespassing on the dwelling-house or real property, or to remove a trespasser therefrom, if he uses no more force than is necessary. Self-defence against unprovoked assault 34.

(1) Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself. Défense de la maison ou du bien immeuble 41.

(1) Quiconque est en possession paisible d’une maison d’habitation ou d’un bien immeuble, comme celui qui lui prête légalement main-forte ou agit sous son autorité, est fondé à employer la force pour en empêcher l’intrusion par qui que ce soit, ou pour en éloigner un intrus, s’il ne fait usage que de la force nécessaire. Légitime défense 34.

(1) Toute personne illégalement attaquée sans provocation de sa part est fondée à employer la force qui est nécessaire pour repousser l’attaque si, en ce faisant, elle n’a pas l’intention de cause la mort ni des lésions corporelles graves.

[33] The self-defence argument is simple to address. The trial judge ruled it did not apply because it was Mr. Doiron who had himself provoked [TRANSLATION] “this violent situation”. I agree that, upon the judge’s credibility determination and factual findings, it is Mr. Doiron who provoked the violent situation, but I go further in holding self-defence to be inapplicable. [34] The convictions stem not from the first altercation between Mr. Doiron and Mr. Arseneau outside the vehicle.

If that had been the transaction alleged in the information, self-defence might have taken on a different importance depending on the findings of facts. However, the transaction that is the subject of the charges occurred a short time after, when, according to the trial judge’s findings, Mr. Arseneau was trying to maneuver his vehicle to leave the premises and after everyone had retreated from the first altercation, Mr. Arseneau and Ms. Robichaud to their vehicle and Mr. Doiron to his house, and had agreed to call the police. It is Mr. Doiron’s return to the scene with the baseball bat intent on causing Mr.

Arseneau and his vehicle harm that constitutes the transaction that is the subject-matter of the charges. In the course of this transaction, on the facts as found by the trial judge, Mr. Doiron is not being unlawfully assaulted. He cannot even rely on the provisions of s. 41(2), which deem an assault when a trespasser resists an attempt to remove him from the property. This is so because at the time he is found to have wielded the bat to assault Mr. Arseneau and damage his vehicle, it cannot be said Mr. Arseneau or Ms.

Robichaud were resisting; they were, in fact, according to the factual findings, in the process of trying to leave. Mr. Doiron was not entitled to the s. 34 defence to repel any force, because none is being threatened. Had the credibility findings been resolved in favour of Mr. Doiron and the judge found he accidently fell, resulting in the bat striking the driver’s side window causing it to shatter, and that the subsequent swing of the bat was to cause Mr. Arseneau to stop coming toward him with the vehicle, then self-defence might have taken on a different role in this matter.

However, those are not the facts the trial judge found. She specifically accepted Mr. Arseneau’s version pursuant to which they were maneuvering the car to retreat from the situation when Mr. Doiron attacked them with the baseball bat. In those circumstances, s. 34 simply does not apply. [35] As for the defence of property, the trial judge disposed of that argument on two grounds. Referring to R. v. Gunning , 2005 SCC 27 , [2005] 1 S.C.R. 627 , at para. 25 , the trial judge began by correctly pointing out that there are various elements to justify the use of force under s. 41(1). They are as follows:

(1) Mr. Doiron must have been in possession of the dwelling-house; (2) his possession must have been peaceable;

(3) Mr. Arseneau and Ms. Robichaud must have been trespassers; and (4) the force used to eject them must have been reasonable in all the circumstances. The trial judge found that Mr. Arseneau and Ms. Robichaud were not trespassers. They had an express authorization to be on Mr. Doiron’s

property to retrieve Ms. Robichaud’s daughter pursuant to their access agreement. The judge acknowledged that, in some cases, one becomes a trespasser when, having lawfully entered premises one refuses to leave when the invitation or the license pursuant to which entry was gained is subsequently withdrawn or revoked. According to the judge, this case is different from the invitation to enter that is implied for everyone who enters someone’s property for a lawful purpose, because Ms. Robichaud was authorized to be on the property to pick up her daughter. The judge found that in these circumstances, Ms.

Robichaud and Mr. Arseneau did not become trespassers simply by being told to leave without the child. In addition, the judge found that, in any event, the force Mr. Doiron used in the circumstances was excessive. [36] In my view, the judge’s findings that the force used was excessive are unassailable and it is therefore not necessary to get into a detailed analysis of whether or not Mr. Doiron could order the mother of his child to leave the property when he had a legal obligation to turn the child over to her.

If one accepts they had become trespassers at some point, one might argue that coming out with the baseball bat to intimidate them into leaving the property was reasonable, but the argument would fail the moment one accepts they were in the process of leaving when the bat is wielded in an attempt to strike Mr. Arseneau and to damage the vehicle. The reasonableness of the force must be measured in light of all the circumstances, and these include the following: Ms. Robichaud and Mr.

Arseneau’s initial entry onto the property was lawful; they posed no threat to the property nor, at the point force was used, to the occupiers; they were in the process of leaving; and, the police had been called. There is no question that one who is lawfully on premises, but who might become a trespasser if told to leave, must, in such circumstances, be given a reasonable opportunity to leave the property before actual force can be used. In this case, the trial judge found Mr. Arseneau was retreating when Mr. Doiron attacked them with the bat, struck the vehicle and caused the glass to shatter.

In these circumstances, s. 41 simply has no application. [37] For the above reasons, I would dismiss these two grounds of appeal. C. Abuse of Process (Ground 4) [38] In R. v. Nixon , 2011 SCC 34 , [2011] 2 S.C.R. 566 , Charron J., for a unanimous Court, conveniently summarized both the doctrine of abuse of process and the test for granting a stay of proceedings. Paragraphs 33 to 42 of her decision are particularly apposite. From her detailed review, the following principles are applicable in determining Mr. Doiron’s final ground of appeal:

a) A trial judge has a residual discretion to stay proceedings to remedy abuse of process;

b) The common law doctrine of abuse of process and the Charter considerations that might apply to a particular case are merged under s. 7 of the Charter although, depending on the circumstances, different Charter guarantees may be engaged. Under s. 7, at least two categories of abuse of process have been identified: (1) prosecutorial conduct affecting the fairness of the trial; and (2) prosecutorial conduct that contravenes fundamental notions of justice and thus undermines the integrity of the judicial process;

c) Under the first category, the concern is about the fairness of the accused's trial. If the conduct alleged results in unfairness of the trial, the criteria is met, and there need not always be proof of actual “misconduct”;

d) Under the second category, the focus is not in the accused’s interests but rather on proof of prosecutorial conduct that tends to undermine society's expectations of fairness in the administration of justice.

e) The test for granting a stay of proceedings for abuse of process, regardless of whether the abuse causes prejudice to the accused's fair trial interests or to the integrity of the justice system, consists of determining if (1) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; and (2) no other remedy is reasonably capable of removing that prejudice.

f) A stay of proceedings should only be applied in the clearest of cases. [39] Applying these principles to the facts of the case, I am left to conclude, as did the trial judge, that sufficient evidence was not adduced to show an abuse of process. [40] I am of the view that the police conduct of having people sign a document stating that they do not want to pursue a matter in criminal courts has potential for unfairness and might, in appropriate circumstances, be seen as undermining the integrity of the judicial process.

Such would be the case where, for example, the conduct had the effect of lulling a person into believing the investigation would go no further and, as a result, the person failed to take certain measures that would otherwise have been taken. In some cases, this could result in trial unfairness. If done with the intent to induce a potential accused to act to his or her detriment, the use of such a document might be seen as undermining fundamental notions of justice.

The fact that neither the trial judge, the defence lawyer, the prosecutor, nor, in fact, any of the three judges on the panel hearing the appeal, had ever heard of police investigators resorting to a [TRANSLATION] “Stay of Proceeding” document, as was done in this case, shows the practice is not widespread.

This is undoubtedly so because it has the potential to lull someone into a false sense of security, leading him or her to believe there is no need to consult counsel or to secure evidence. [41] In the present case, there was no evidence the police conduct actually led to unfairness or that it would be susceptible to undermine the integrity of the judicial process because, as repugnant as one might find the practice of resorting

to a document such as that used, the uncontradicted testimony was to the effect that Mr. Doiron was expressly told Ms. Robichaud had not signed such a document and that the matter remained under police investigation. Thus, it was not established that Mr. Doiron was lulled into a false sense of security and, therefore, acted to his detriment. In fact, no evidence of unfairness was adduced nor was it established the police conduct was intended to compel Mr. Doiron to act to his detriment.

In short, there was insufficient evidence to establish an abuse of process, let alone one that would constitute a rare case where the abuse would have to be remedied by staying the proceedings. [42] The second aspect of Mr. Doiron’s contention of abuse of process is his argument that a criminal investigation is not a race to the police. It requires investigators and prosecutors to make informed and impartial decisions based on reasonable and probable grounds. He argues that, in the present case, one cannot but believe this prosecution would never have been brought had Ms.

Robichaud not demanded it because she wanted to unfairly secure an advantage for herself in the upcoming custody proceeding. [43] At trial, Mr. Doiron certainly raised the issue of Ms. Robichaud’s own motivation for insisting the police pursue their investigation, but the record is silent on the actual intentions of the officers involved. Moreover, in New Brunswick, the initiation of a prosecution is subjected to pre-approval by counsel for the Attorney General and there is certainly no evidence of any oblique motive for this prosecution.

In short, there is no evidence of prosecutorial misconduct that would undermine the integrity of the process. [44] Simply put, there was no evidence establishing an abuse of process and the trial judge was correct in ruling as she did. V. Disposition [45] For these reasons, I would dismiss Mr. Doiron’s appeal from conviction. _________________________________ J. C. MMarc Richard, j.c.a. _________________________________ M.E.L. Larlee, j.c.a. _________________________________ Kathleen A. Quigg, j.c.a.