R. v. Lord, 2013 NBCA 51

COURT OF APPEAL OF NEW BRUNSWICK COUR D’APPEL DU NOUVEAU-BRUNSWICK 138-12-CA HER MAJESTY THE QUEEN APPELLANT SA MAJESTÉ LA REINE APPELANTE - and - - et - EVERETT KENNETH LORD RESPONDENT EVERETT KENNETH LORD INTIMÉ R. v. Lord, 2013 NBCA 51 R. c.

Lord, 2013 NBCA 51 CORAM: The Honourable Justice Deschênes The Honourable Justice Richard The Honourable Justice Quigg CORAM : L’honorable juge Deschênes L’honorable juge Richard L’honorable juge Quigg Appeal from a decision of the Court of Queen’s Bench: September 26, 2012 (conviction) November 8, 2012 (sentencing) Appel d’une décision de la Cour du Banc de la Reine : Le 26 septembre 2012 (déclaration de culpabilité) Le 8 novembre 2012 (sentence) History of Case: Historique de la cause : Decision under appeal: 2012 NBQB 342 Décision frappée d’appel : 2012 NBBR 342 Preliminary or incidental proceedings: Court of Queen’s Bench 2012 NBQB 413 Procédures préliminaires ou accessoires : Cour du Banc de la Reine : 2012 NBBR 413 Appeal heard and judgment rendered: May 21, 2013 Appel entendu et jugement rendu : Le 21 mai 2013

Reasons delivered: September 5, 2013 Motifs déposés : Le 5 septembre 2013 Reasons for judgment: The Honourable Justice Quigg Concurred in by: The Honourable Justice Deschênes The Honourable Justice Richard Motifs de jugement : L`honorable juge Quigg Souscrivent aux motifs : L’honorable juge Deschênes L’honorable juge Richard Counsel at hearing: For the appellant: Jeffrey L. Mockler, Q.C. For the respondent: Everett Kenneth Lord appeared in person Avocats à l’audience : Pour l’appelante : Jeffrey L. Mockler, c.r.

Pour l’intimé : Everett Kenneth Lord a comparu en personne THE COURT In the text that follows the Court provides the reasons for its dismissal, on May 21, 2013, of the Attorney General’s appeal against the respondent’s acquittal for fraud. In the Court’s view, the appeal, stripped to its core, does not raise an issue of law alone, a condition precedent to an appeal against acquittal. LA COUR Dans le texte qui suit, la Cour énonce les motifs pour lesquels elle a rejeté, le 21 mai 2013, l’appel interjeté par la procureure générale à l’encontre de l’acquittement de l’intimé qui était accusé de fraude.

La Cour est d’avis que, ramené à l’essentiel, l’appel ne soulève aucune question de droit seul, condition que doit remplir tout appel interjeté d’un acquittement. The following is the judgment delivered by Quigg J.A. I. Introduction [ 1 ] On September 26, 2012, the respondent, Mr. Lord, stood trial in the Court of Queen’s Bench of New Brunswick on four counts of fraud ( s. 380 of the Criminal Code, R.S.C. 1985, c. C-46) for actions taken by him while building a home for two residents of St. Andrews, New Brunswick (the “complainants”). The first count alleged fraud with respect to Mr.

Lord’s failure to register the house being built with the Atlantic New Home Warranty Program. The second and third counts pertained to funds paid by the complainants to Mr. Lord for a heat pump and cedar decking respectively. The fourth count involved funds earmarked for the purchase of doors and windows. Mr. Lord was found guilty on the fourth count and acquitted of the others. The Attorney General appeals only the acquittal on the first count. The Attorney General contends the trial judge erred in law in considering the elements of

proof required for a conviction under s. 380. In a decision delivered from the Bench on May 21, 2013, the Court denied the appeal withreasons to follow. Here are those reasons. II. Applicable Standard of Review [2] Section 676(1)(

a) of the Criminal Code limits appeals by the Attorney General against verdictsof acquittal to questions of law alone. In R v. Paulin, 2013 NBCA 15, 401 N.B.R. (2d) 163, Bell J.A. states: Section 676(1)(

a) of the Criminal Code provides that the Attorney General may appeal against a verdict of acquittal on any ground ofappeal that involves a question of law alone. For the purposes of this provision, the application of the law to the facts constitutes aquestion of law: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 43; R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at para.20; Black v. R., 2010 NBCA 36, 360 N.B.R. (2d) 132, at para. 18, and the decisions cited therein: R. v. Tran, 2010 ABCA 211, [2010]A.J. No. 736 (QL), at para. 23; R. v. J.M.H., 2011 SCC 45, [2011] S.C.J. No. 45 (QL), at para. 29.

In R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609, the Court defined the standard of review applicable to an appeal against a verdictof acquittal. Fish J., speaking for the majority stated: [...] It is the duty of the Crown in order to obtain a new trial to satisfy the appellate court that the error (or errors) of the trial judge mightreasonably be thought, in the concrete reality of the case at hand, to have had a material bearing on the acquittal. The Attorney General isnot required, however, to persuade us that the verdict would necessarily have been different.

This burden on the Crown, unchanged for more than half a century (see Cullen v. The King, (SCC), [1949] S.C.R. 658),was explained this way by Sopinka J., for the majority, in R. v. Morin, (SCC), [1988] 2 S.C.R. 345: I am prepared to accept that the onus is a heavy one and that the Crown must satisfy the court with a reasonable degree of certainty. Anaccused who has been acquitted once should not be sent back to be tried again unless it appears that the error at the first trial was suchthat there is a reasonable degree of certainty that the outcome may well have been affected by it.

Any more stringent test would requirean appellate court to predict with certainty what happened in the jury room. That it cannot do. [p. 374] Speaking more recently for a unanimous court in R. v. Sutton, [2000] 2 S.C.R. 595, 2000 SCC 50, the Chief Justice stated: The parties agree that acquittals are not lightly overturned. The test as set out in Vézeau v. The Queen, (SCC), [1977] 2S.C.R. 277, requires the Crown to satisfy the court that the verdict would not necessarily have been the same had the errors not occurred.In R. v.

Morin, (SCC), [1988] 2 S.C.R. 345, this Court emphasized that "the onus is a heavy one and that the Crown mustsatisfy the court with a reasonable degree of certainty" (p. 374). [para. 2] [paras. 14 to 16] In short, to be successful in this case, the Attorney General must not only show that the trial judge has committed an error of law, shemust also show that it is reasonable to believe that the error had a material bearing on the acquittal. [paras. 2-4] See also Hunter v. R., 2013 NBCA 36, [2013] N.B.J. No. 148 (QL), R. v.

Robichaud, 2012 NBCA 87, 395 N.B.R. (2d) 337 and R. v.Steeves, 2011 NBCA 88, 379 N.B.R. (2d) 222. III. Facts [3] In April 2009, Mr. Lord entered into a fixed price contract to build a home for thecomplainants in St. Andrews. As a result of certain actions undertaken by Mr. Lord during construction of the residence, he was chargedwith four counts of criminal fraud. We are only concerned with the first:

[B]etween the 15 th day of April, A.D., 2009 and the 30 th day of November, 2009 at or near the town of Saint Andrews, county of Charlotte and the Province of New Brunswick, did by deceit, falsehood or other fraudulent means defraud Guy Groulx and Laurie Taylor of an amount not exceeding five thousand dollars, by failing to register their home under the New Home Warranty program, thereby committing an offence contrary to section 380(1) (b)(

i) of the Criminal Code of Canada and amendments thereto. As is apparent, this count was particularized to a failure to register the complainants’ home under the “New Home Warranty program”. According to the complainants, it was important to them that the construction contract be documented and that the house be covered by the Atlantic Home Warranty program, the “New Home Warranty program”. As such, this was included in the written contract. Mr. Lord had become a member of the program in 1986, but his membership was terminated in 1996 for non-payment of annual dues. During the period he was a member, Mr.

Lord registered one home with the program. He did not re-register or re-apply to the program at any time prior to the termination of the contract with the complainants. In his defence, Mr. Lord asserted he had obtained the application package and asked an employee to fill in and forward the forms. Although it was Mr.

Lord’s testimony, both in direct and cross-examination, that he intended to forward the application in order to become a registrant with the warranty program, he did not state when he intended to do so. [ 4 ] A witness for the prosecution testified that registration in the program could be undertaken up to the completion of construction. The Crown also adduced evidence that Mr.

Lord had encountered financial difficulties, apparently for the purpose of showing he would have encountered difficulty in registering with the program, as one of the conditions to becoming a registrant is that the applicant be financially stable. Furthermore, Mr. Lord forwarded an email to the complainants wherein he advised that “we have begun the process of registering the residence....with Atlantic Home warranty. The inspection process has commenced...” However, the trial judge determined that Mr. Lord had “optimistic intentions” to register the home with the program.

Based on the evidence before him, the judge was not persuaded of Mr. Lord’s guilt beyond a reasonable doubt. IV. Grounds of Appeal [ 5 ] As mentioned, the Attorney General appeals only the acquittal in relation to the first count of fraud. She submits the trial judge erred as follows:

a) in his assessment and application of the necessary elements of proof with respect to an offence contrary

section 380 of the Criminal Code of Canada and amendments thereto;

b) by acquitting Mr. Lord on the basis of conjecture and on a finding having no basis in the evidence;

c) by misapprehending relevant evidence as a result of misdirecting himself on the meaning of proof beyond a reasonable doubt; […] V. Analysis [ 6 ] In his reasons for decision, the trial judge discusses Mr. Lord’s failure to register the home with the Atlantic Home Warranty Program: The fixed-price contract or agreement between the parties warranted that: “The home be covered under the Atlantic Home Warranty Program.” That responsibility was on Mr. Lord’s company to arrange.

As I understand the evidence of the officer of that program such a coverage or warranty could be arranged up until the completion of the construction. When the owners asked Mr. Lord about that warranty protection before they released a progress payment to him, he wrote them on June 12 th , 2009: “We have begun the process of registering the residence at 50 Ernest Street, St. Andrews, with Atlantic Home Warranty. The inspection

process has commenced and will continue throughout the construction of the home. The certificate will be issued upon completion of theproject.” I see nothing wrong with that letter. I find no fault with it at all. However, I note that all that Mr. Lord had actually done was to requestan application for registration and to ask his office assistant to start filling it out. He never actually sent an application to the warrantyorganization to register himself, his company or that home. The only inspection process that had actually commenced was the inspectionby the municipal building inspector.

The home was never covered under the Atlantic Home Warranty Program and a certificate wasnever issued. The Crown has emphasized that Mr. Lord in 2009 had some business difficulties. There was a judgment against him or his business by asupplier for approximately $500,000. As well, the Canada Revenue Agency put a lien or block on the bank account of one of hiscompanies. With those problems, the Crown emphasizes that it would appear to be doubtful that Mr. Lord or his companies wouldactually have been able to register the home with that warranty program and that in effect Mr. Lord must have known that.

However, I note that the evidence also indicates that some years before Mr. Lord had been able to complete such a registration foranother home. The evidence is that he has built something in the order of 30 homes. It appears that the complainants in this case hadvisited some of those homes and were very impressed with some of them. In such circumstances in my opinion the provision in the agreement a letter of June 12th, 2009 concerning the registration of the homeunder the Atlantic Home Warranty Program could be summarized as indicating that Mr. Lord had optimistic intentions.

On the evidencebefore me, I am not persuaded beyond a reasonable doubt that Mr. Lord was fraudulently dishonest regarding that registration with theAtlantic Home Warranty Program. On that count I find Mr. Lord not guilty. [paras. 13-18] [Emphasis added.] [7] Although the trial judge’s statements concerning Mr. Lord’s “optimistic intentions” haveopened the door to the Attorney General’s argument on appeal, there is evidence in support of the conclusion that, throughout theprocess, Mr. Lord intended to register the property with the program.

The trial judge found as a fact that the contract was terminatedprior to Mr. Lord being able to register the home. We can only intervene when material errors of law alone are made in the journey thatculminated with the verdict of acquittal. In R. v. Picot, 2011 NBCA 70, 395 N.B.R. (2d) 29, rev’d 2012 SCC 54, [2012] 3 S.C.R. 74, atparagraph 21, Richard J.A. (dissenting) states: The right of the Attorney General to appeal against a judgment of acquittal is limited to grounds of appeal that involve "a question of lawalone" (s. 676(1)(a)).

There is no such limitation to an appeal against conviction in proceedings by indictment, since the Criminal Codeprovides that, with leave, such an appeal can be founded on grounds that involve a question of fact or a question of mixed law and fact: s.675(1). The term "question of law alone" has often been the subject of debate in appellate courts and in the Supreme Court of Canada,and what clearly comes out of the decisions is that any question that calls for the appreciation or weighing of evidence is not a questionof law alone, unless the failure is based on the misapprehension of a legal principle.

To justify this statement, I can do no better thanborrow the analysis of Mitchell J.A. (later C.J.P.E.I.) in R. v. Poirier, (PE SCAD), [1997] P.E.I.J. No. 18 (C.A.) (QL),which involved an appeal in which the Crown alleged the trial judge had erred in failing to find that the prosecution had met the onus ofproof necessary to convict. In dismissing the appeal, Mitchell J.A., for the majority, explained: The Crown contends the trial judge's verdict of acquittal resulted from [the trial judge's] failure to appreciate the evidence. If that weretrue, it would still not, in itself, constitute an appealable ground.

A trial judge's "failure to appreciate the evidence cannot amount to anerror of law unless the failure is based on a misapprehension of some legal principle." R. v. Morin, (SCC), [1992] 3S.C.R. 286 (S.C.C.) at p. 294 per Sopinka J. The Crown argues the trial judge misapprehended the principle of reasonable doubt becausehe failed to reach the proper conclusion from the evidence. I cannot agree. Although one might disagree with the trial judge's view of theevidence, there is nothing at all to indicate he did not appreciate the doctrine of reasonable doubt.

To the contrary, he was obviously alertto the doctrine and seems to have understood it and applied it exactly as the Supreme Court of Canada has said a trier of fact should. Therespondent testified and denied committing the offences. The trial judge said: "I listened intently to Poirier on the stand and I believehim." Later in his judgment the trial judge said: "I am mindful of the fact that there is some evidence in the Crown's favour pointing toguilt; but considering all of the evidence, I am left with a reasonable doubt as to that evidence leading to guilt." Credibility was a key issue in this case. In R. v.

W.(D.), (SCC), [1991] 1 S.C.R. 742 (S.C.C.) at p. 757, Cory J., writingfor the Court, said that in a case where credibility is important, the rule of reasonable doubt applies and that the triers of fact should beinstructed that the accused must be acquitted in two situations. First if they believe the accused. Second, if they do not believe the accused's evidence but still have a reasonable doubt as to his guilt

after considering the accused's evidence in the context of the evidence as a whole. Accordingly, I fail to see how it can be said Ghiz J. misdirected himself with respect to the legal principle of reasonable doubt. Given thathe believed the respondent, and the reservations he had as a result of the weighing process of all the evidence, he had no legal recoursebut to acquit.

He might have been wrong in his assessment but, if so, his error was one of fact, not law, and that being the case, this Courthas no jurisdiction to interfere. [paras. 13-14] Mitchell J.A.’s majority decision in Poirier was upheld in the Supreme Court: (SCC), [1998] 1 S.C.R. 24. [8] In the present case, the trial judge states he was not “persuaded beyond a reasonable doubt”that Mr. Lord was “fraudulently dishonest” respecting the registration of the residence with the program. That critical finding led him toacquit Mr. Lord. It is apparent the judge understood the doctrine of reasonable doubt.

The judge’s determination that the alleged fraudwas not proven beyond a reasonable doubt is, with respect, a finding of fact. That finding may have been incorrect but, if that were thecase, the error would be one of fact, not law. In Picot, at paragraph 22, Richard J.A. states: […] Once again, I turn to the words of Mitchell J.A. in Poirier: If a trial judge errs in finding that the onus of proving guilt has not been satisfied, that is an error of fact, not law. Lampard v. R. (SCC), [1969] 3 C.C.C. 249 (S.C.C.).

The sufficiency of the evidence, and whether the guilt of an accused should beinferred from it, is a question of fact within the province of the trial judge. Sunbeam Corp. v. R. (SCC), [1969] 2 C.C.C.189 (S.C.C.). Absent a finding of fact that must, as a matter of law, result in a conviction (e.g., a shift of an onus), the failure of the trialjudge to infer guilt, even in the face of compelling evidence, is a question of fact, no matter how wrong that failure is regarded by theappellate court. Lampard, supra, and Sunbeam, supra.

In the case before us, the trial judge concluded the evidence was not sufficient tosatisfy him beyond a reasonable doubt that the respondent was guilty. Like Ritchie J. in Sunbeam, supra, at pp. 171-2, I am of theopinion that however wrong we may think he was in reaching this conclusion the error cannot be determined without passing judgmenton the reasonableness of the verdict or the sufficiency of the evidence which are matters beyond our jurisdiction under s-s. 676(1)(

a) ofthe Criminal Code. Appeals on the basis that the verdict is unreasonable and not supported by the evidence are reserved by the CriminalCode to cases of conviction. In Lampard, supra, the judges of the Supreme Court of Canada said they would not set aside an acquittal even though, in their view, guiltwas the "only one reasonable" and "irresistible" inference that could be drawn from the facts in the record. The Supreme Court judgestook that position because in their view such an error would be one of fact and not law and therefore not appealable. As Ritchie J. pointsout in Sunbeam, supra, at p. 175, it is obvious from a reading of s-s. 686(1)(

a) of the Criminal Code Parliament did not intend thequestion of whether the verdict was unreasonable or could not be supported by the evidence would be treated as a question of law. Thus,if the authority of Courts of Appeal is to be broadened so as to allow for correction of acquittal verdicts which are unreasonable or notsupported by the evidence, Parliament will first have to amend the Criminal Code to provide for it. [paras. 8-9] [Emphasis added.] [9] In short, at the conclusion of the hearing on May 21, 2013, I was of the view the AttorneyGeneral’s appeal did not involve a question of law alone.

It is for this reason that I joined with my colleagues in dismissing the appealfrom the Bench. ______________________________ KATHLEEN A. QUIGG, J.A. WE CONCUR:

_____________________________ ALEXANDRE DESCHÊNES, J.A. _____________________________ J.C. MARC RICHARD, J.A.