2013 NBCA 38, 2013 NBCA 38

COURT OF APPEAL OF NEW BRUNSWICK 128-12-CA BRADLEY SCOTT WILSON APPELLANT BRADLEY SCOTT WILSON APPELANT - and - - et - HER MAJESTY THE QUEEN RESPONDENT SA MAJESTÉ LA REINE INTIMÉE Wilson v. R., 2013 NBCA 38 Wilson c.

R., 2013 NBCA 38 CORAM: The Honourable Justice Richard The Honourable Justice Quigg The Honourable Justice Green CORAM : L’honorable juge Richard L’honorable juge Quigg L’honorable juge Green Appeal from a decision of the Court of Queen’s Bench August 11, 2012 (conviction) September 7, 2012 (sentence) Appel d’une décision de la Cour du Banc de la Reine Le 11 août 2012 (déclaration de culpabilité) Le 7 septembre 2012 (sentence) History of case: Decision under appeal: 2012 NBQB 286 Preliminary or incidental proceedings: 2012 NBQB 326 Historique de la cause : Décision frappée d’appel : 2012 NBQB 286 , 2012 NBBR 286 Procédures préliminaires ou accessoires : 2012 NBQB 326 , 2012 NBBR 326 Appeal heard: March 28, 2013 Appel entendu : Le 28 mars 2013 Judgment rendered: June 13, 2013 Jugement rendu : Le 13 juin 2013

Counsel at hearing: For the appellant: Margaret Gallagher For the respondent: Cameron H. Gunn Avocats à l’audience : Pour l’appelant : Margaret Gallagher Pour l’intimée : Cameron H. Gunn THE COURT The appeal is allowed, the conviction is quashed and a new trial is ordered. The following is the judgment delivered by THE COURT [ 1 ] Mr. Wilson’s appeal against conviction is allowed. The conviction is quashed and we order a new trial on an indictment charging him solely with the offence for which he had been convicted. Reasons for our decision will follow. ______________________________ J.C.

MARC RICHARD, J.A. ______________________________ KATHLEEN A. QUIGG, J.A. ______________________________ BRADLEY V. GREEN, J.A.

COURT OF APPEAL OF COUR D'APPEL DU NEW BRUNSWICK NOUVEAU-BRUNSWICK BRADLEY SCOTT WILSON APPELLANT 128-12-CA BRADLEY SCOTT WILSON APPELANT - and - - et - HER MAJESTY THE QUEEN RESPONDENT SA MAJESTÉ LA REINE INTIMÉE Wilson v. R., 2013 NBCA 38 Wilson c. R., 2013 NBCA 38 CORAM: The Honourable Justice Richard The Honourable Justice Quigg The Honourable Justice Green CORAM : L’honorable juge Richard L’honorable juge Quigg L’honorable juge Green Appeal from a decision of the Court of Queen’s Bench August 11, 2012 (conviction) Appel d’une décision de la Cour du Banc de la Reine Le 11 août 2012 (conviction)

History of case: Decision under appeal: 2012 NBQB 286 Preliminary or incidental proceedings: 2012 NBQB 326 Historique de la cause : Décision frappée d’appel : 2012 NBQB 286 Procédures préliminaires ou accessoires : 2012 NBQB 326 , 2012 NBBR 326 Appeal heard: March 28, 2013 Judgment rendered: June 13, 2013 Reasons delivered: October 17, 2013 Jugement rendu : Le 28 mars 2013 Jugement rendu : Le 13 juin 2013 Motifs déposés : Le 17 octobre 2013 Reasons for judgment by: The Honourable Justice Richard Motifs de jugement : L’honorable juge Richard Concurred in by: The Honourable Justice Quigg The Honourable Justice Green Souscrivent aux motifs : L’honorable juge Quigg L’honorable juge Green Counsel at hearing: For the appellant: Margaret Gallagher For the respondent: Cameron H.

Gunn Avocats à l’audience : Pour l’appelant : Margaret Gallagher Pour l’intimée : Cameron H. Gunn

THE COURT The appeal is allowed, the conviction is quashed and a new trial is ordered on an indictment charging Mr. Wilson solely with the offence for which he had been convicted ( s. 271(1) (

a) of the Criminal Code ). LA COUR L’appel est accueilli, la déclaration de culpabilité est annulée et la tenue d’un nouveau procès est ordonnée sur la base d’un acte d’accusation lui imputant uniquement l’infraction dont il avait été déclaré coupable ( al. 271(1)

a) du Code Criminel ). The judgment of the Court was delivered by RICHARD J.A. I. Introduction [1] Raising a single ground, which invokes an elementary yet fundamental principle of criminal law, Bradley Scott Wilson appeals his conviction on a charge of sexual assault ( s. 271(1) (

a) of the Criminal Code, R.S.C. 1985, c. C-46). He maintains that, in rendering the verdict on August 11, 2012, the trial judge, a judge of the Court of Queen’s Bench, “did not apply the law regarding reasonable doubt.” Had the judge made even passing reference to the applicable framework the Supreme Court has set out for cases where the credibility of a complainant is pitted against that of the accused, or had he made use of the many available tools and precedents to better explain his reasoning, Mr. Wilson might know with certainty whether he was convicted on the proper standard. As it stands, Mr.

Wilson argues he cannot know whether the judge convicted him simply because he was not believed. [ 2 ] The judge’s reasons for decision are far from being a model of certainty and clarity. Mr. Wilson argues the reasons contain certain propositions that make him question the judge’s understanding of basic criminal law concepts. However, an appellate court cannot read the judge’s reasons in isolation. Rather, they must be scrutinized in their entirety, together with the evidentiary record, the submissions of counsel and the live issues at trial.

Moreover, an appellate court must begin with the presumption that trial judges know and understand elementary principles of law such as the presumption of innocence and the prosecution’s duty to prove a criminal case beyond a reasonable doubt. The appellate court must also not expect a trial judge to articulate in minute detail the precise reasoning path followed to reach a verdict. Provided the reasons for decision allow for meaningful appellate review, intervention on the ground Mr.

Wilson puts forth is only justified if the Court of Appeal is satisfied that the judge, in fact, did not properly apply the criminal law standard of proof. [ 3 ] In the present case, I am satisfied that the trial judge, having disbelieved Mr. Wilson, erroneously thought he could make no further use of his evidence and therefore failed to subject it to the reasonable doubt standard. Evidence that is not believed can nevertheless raise a reasonable doubt.

While an inference can be drawn that, by convicting an accused who testified denying the charges, a trial judge is implicitly saying the accused’s denial did not raise a reasonable doubt, the inference is not available where the reasons for decision reveal the judge did not in fact subject the accused’s testimony to the reasonable doubt standard. This is such a case. This is why, on June 13, 2013, I joined my colleagues in allowing Mr. Wilson’s appeal against conviction, quashing the verdict and ordering a new trial on an indictment charging him solely with the offence for which he had been convicted.

At that time, we indicated that reasons for our decision would follow. These are my reasons. II. Factual overview and trial decision [ 4 ] Considering the deference owed trial judges on findings of fact, the following overview of the factual matrix of the case is extrapolated, for the most part, from the trial decision. It is somewhat supplemented with some of the uncontradicted evidence from the trial record. [ 5 ] On January 11, 2012, Bradley Scott Wilson (age 25), an alcoholic with only a modest

employment record, earned some money helping a neighbour in Chance Harbour, New Brunswick. He was paid with three $100 bills. He was scheduled to attend Provincial Court the following day to answer to his third impaired driving-type charge. Mr. Wilson anticipated his appearance would result in him being ordered to undertake a 28-day rehabilitation program. He therefore considered January 11 to be his last opportunity to “drink and party” before entering the rehabilitation program. Ignoring his mother’s plea that he not go, Mr.

Wilson made his way to a bar in Saint John, where he consumed two beer[s] and another alcoholic drink. While there, he “‘hit on’ [the female bartender – a classmate from high school] by telling her that she had a nice bum.” At some point, his mother called him on his cell phone to urge him to stop drinking and get back home. Ostensibly as a result of that call, the time allotted on his cell phone expired. Mr. Wilson left the bar and walked to a convenience store to purchase a new phone card. His route took him by a second bar, described as a neighbourhood pub, and through the window, he saw an acquaintance.

After purchasing the new phone card, Mr. Wilson made his way back to the second bar. [ 6 ] The second bar is equipped with a video security system, consisting of various motion- activated cameras that intermittently record some of the activities in the establishment. On the night in question, a sole employee, the complainant (age 45), was working at the bar. Her responsibilities included both managing the establishment and serving the clients. [ 7 ] The security system shows Mr. Wilson entering the pub at 22:07. A few other customers were in the pub at that time. About 40 minutes later, Mr.

Wilson and the complainant, who knew each other from one of Mr. Wilson’s previous visits to the pub, are seen exiting through the back door of the pub. They both explained they went out to smoke. Both admit they kissed while outside, although “the precise nature of the kissing is not in evidence.” [ 8 ] Following this, Mr. Wilson sat with the man he had seen in the pub when he first walked by. This person described Mr. Wilson as “quite intoxicated.” Eventually, a woman joined them. Mr. Wilson invited both to “do some cocaine with him.” The man declined but the woman accepted, so she and Mr.

Wilson went into the same stall in the women’s washroom where Mr. Wilson rolled up a bill of paper money and “they took turns snorting the coke.” While in the stall, Mr. Wilson tried to kiss the woman, but she resisted. She describes Mr. Wilson as “a bit stumble ( sic ),” not being able to walk straight and that he “fumbled his speech ( sic ).” While they were still in the stall, the complainant entered the washroom and threatened to call the police, so the couple returned to the bar area. Before the woman left, Mr.

Wilson asked for her phone number, but she would not provide it. [ 9 ] Closing time for the pub was midnight. Near then, another woman entered the pub alone. She talked briefly with Mr. Wilson and then left. When the other customers left, Mr. Wilson stayed behind to finish his beer. [ 10 ] At 00:28 on January 12, 2012, the security system captures Mr. Wilson with the complainant in the kitchen area of the establishment. He claimed to have gone there to help her close up. The complainant is seen “shooing” him out of that area. Two minutes later, the complainant is seen trying to get Mr. Wilson to leave the pub.

By that point, Mr. Wilson had consumed “something in the order of 13 beer[s] and a couple of lines of cocaine and [one other drink].” Mr. Wilson refused to leave, as he wanted to finish his beer, use the washroom and get his coat. The trial judge describes what follows in these words: At 51 minutes after midnight, one of the cameras records part of a scuffle between Mr. Wilson and the complainant in the area outside the men's washroom. At that point, the complainant thought there was nothing sexual about the scuffle and that he was not looking for sex at that time.

She was wearing her coat over her red shirt and a black tank top and her bra. During that scuffle, her coat, her shirt and her tank top were all torn somewhat under the left sleeve area. Several buttons were torn off her shirt and she lost both her coat and her shirt. Her tank top was also torn and she says her bra was visible. That was the scuffle seen in the video and evidenced by the damaged clothing in evidence.

Then at 54 minutes after midnight or about three minutes after the scuffle started, the video records the complainant running without her coat and shirt out of the area of the men's washroom entry area toward the front door of the pub with Mr. Wilson running after her. Near the front of the pub, he caught up to her and she fell down. She thinks she fell because of a pressure on her back, which she implies was from him. He denies it. Another camera records him jumping over her and briefly going to try and lock the front door of the pub.

As I see those videos, he caught up to her again at a time of 54 minutes after midnight plus 20 seconds or 00:54:20. When she got up, she was using a chair to help her get up. The video shows that she was starting to run in the other direction. Because of the nature of the video with only, apparently, four frames per second and the poor visibility, it is not precisely clear whether or not she was then starting to run with a limp. Then both the complainant and Mr. Wilson went together to the women's washroom beyond video coverage. […] The video indicates that between an hour after midnight and 1:01, Mr.

Wilson walked out of the washroom with his pants down. Then he was back in the washroom until 1:23 where he was again out to the bar area to get a drink, this time with his pants up but a shirt over his head.

Those times indicate that very soon after the second phase of the chase at 54 minutes and 20 seconds after midnight Mr. Wilson had his pants open or down in the women's washroom with the complainant. [paras. 36-40 and 67-68] [ 11 ] It is what led to the scuffle and the sexual activity that happened in the women’s washroom that was the subject of differing versions at trial. [ 12 ] The complainant’s version is that Mr. Wilson had thrown his coat into the men’s washroom, so she went in to get it. Sensing him to be close behind, and fearing him, she took out her cell phone to call 911.

However, he knocked the phone out of her hand and they scuffled; he trying to keep her in the men’s washroom, and she trying to get out. She was able to escape his grasp by getting out of her coat and shirt. In the process, her clothes got ripped. The complainant ran away but, before reaching the door, she fell, injuring her leg. Mr. Wilson caught up to her and dragged her to the women’s washroom. On the vanity of the washroom, Mr. Wilson had a “piece of steel that is used as a pin to lock one of the back doors at night”, which the complainant perceived as a weapon.

Trying to minimize the situation, the complainant performed oral sex on Mr. Wilson until he started losing his erection. She took some of her clothing off and got up on the vanity from where she performed oral sex on him again while he digitally penetrated her. He was unable to maintain an erection, so there was no penile penetration, but, at some point, Mr.

Wilson produced what was described as a “glow tube” and tried to insert it in her anus. [ 13 ] The complainant says she engaged in the sexual activity “under duress for fear that if she did not consent to it and participate in it that her situation could get a lot worse.” [ 14 ] After the sexual activity ended, the complainant and Mr. Wilson returned to the bar and drank beer together. The complainant had a marijuana joint, which she shared with Mr. Wilson. According to her, this was all “part of calming him down so that she could get him out of there and get away.” [ 15 ] Mr.

Wilson’s version of those events is markedly different. He testified that when the complainant went to retrieve his coat, ostensibly to prompt him to leave the bar, she found in a pocket a hundred-dollar bill, which was part of the money he had earned that day. Upon finding it, she exclaimed “finders keepers.” According to him, the scuffle and the chase were over him trying to retrieve his money. He admits the complainant fell during the chase, but denies she was hurt in the fall. She got up from where she fell and ran toward the women’s washroom. When Mr.

Wilson caught up to her again and asked for the return of his money, the complainant “proposed a settlement that she would give him oral sex and they would forget about the hundred dollars.” He agreed, so they went in the women’s washroom. At some point, while they were engaging in a sex act, the complainant undressed. She tried to “get up on the vanity so they could engage in consensual sexual activity.” As she was pushing herself up, she fell awkwardly to the floor and hurt her leg. Mr. Wilson helped her up and then, because she had injured her leg, helped her get dressed.

He then helped her try to leave the pub, but she complained of too much pain, so they sat at the bar and drank and smoked together. Mr. Wilson asked her if she wanted to go to the hospital, but she declined. [ 16 ] The trial judge describes the events following those in the women’s washroom as follows: After the sexual activity in the women's washroom, the complainant and Mr. Wilson then together went to the bar. Both of them had a number of beers. The complainant had a joint of marijuana with her and shared it with him. There were some cigarettes too.

It is not clear exactly how many beer each consumed but it was something in the order of five or six. […] At 2:26, they discovered that the front door had not actually been locked when Mr. Wilson had tried to lock it. They learned that when a regular customer of the bar wandered in to ask if he could have a drink and use the washroom. She explained to him they were closed but let him use the washroom. Then he left. All that time there was a panic button nearby at the bar that she could have pushed that would have rung directly with the police. There was a telephone that she could have used to call the police.

She did not. She continued to try to manage the situation herself and calm him down and calm herself down and hope to put all this behind her. Mr. Wilson interprets all of that as an indication that they were just having a few drinks after hours after consensual sex and that there were no real issues. By then he was not suggesting that she still owed him a hundred dollars. When he started expressing concern about whether or not the $40 he had left was enough to get a cab home to Chance Harbour, he says that she gave him another $20. She would have had that amongst her tip money in her pouch.

She remembers giving him some money but she does not remember it as exactly $20. Eventually, she kept talking to him about how the cleaners were going to be coming and warned him if he did not want to end up in jail they would have to get out of there. Finally, she called the nearby taxi company to dispatch a car. The taxi company was the number she called, not 911, which she could have done when dialing the cab number. She had not asked the customer who had wandered in at 2:26 to do anything. She says she did not want to get him involved in anything.

At 2:59 the video shows her turning off the radio system, fairly close to the location of the panic button and the telephone. At 3:17, there is what appears to be a situation of them giving each other a hug. At 3:18, they are getting ready to leave and he is helping her with her left arm over his shoulder because she is hobbling, to get to the door and to try to activate the alarm system. They both get in the backseat of the cab. The driver takes them to her house in the north end first. She urges Mr. Wilson to stay in the cab, presumably so that the man she is living with will not see him.

The cab driver helps her hobble up to the first landing of the stairs. She eventually gets help and at 4:48, more than an hour later, is dropped off at the emergency room. After she is dropped off in the north end, the cab driver takes Mr. Wilson home to Chance Harbour. The only issue is Mr. Wilson spills some beer in the front of the car. As I understand it, Mr. Wilson made it to court in time in St.

Stephen that morning. [paras. 69 and 71-78] [ 17 ] The complainant testified that she was unable to climb the stairs to her apartment, so she called out for help and her partner eventually came to the bottom of the stairs. He drove her to the hospital and left her there while he went to work. Hospital records reveal the complainant registered at the Emergency Department at 04:48 on January 12, 2012.

She was diagnosed with multiple bruises and abrasions and a fracture of the tibial plateau, described as “the top of the big bone in the lower leg which is part of the knee system.” At the hospital, the complainant told the attending physician she had been assaulted. However, she told a nurse there had been no penile penetration of any kind, including oral. The police were called and eventually interviewed the complainant. At trial, there were inconsistencies between her statement to the police and her testimony. [ 18 ] In the aftermath of all this, Mr.

Wilson was charged with three counts under the Criminal Code : (1) aggravated sexual assault ( s. 273(2) ( b )); (2) assault causing bodily harm ( s. 267 ( b )); and, (3) unlawful confinement ( s. 279(2) ( a )). He was tried before a judge alone in the Court of Queen’s Bench. The final day of the trial was August 11, 2012. Immediately following the arguments, the judge adjourned the proceedings for a few minutes.

During the approximately 20-minute adjournment, the judge filed a written decision, which he rendered orally when the hearing resumed. [ 19 ] In the decision, the trial judge reviewed the facts, essentially as summarized above, making what I would describe as editorial commentaries as he went along. An example of this includes the judge’s statement, in commenting on the fact the complainant and Mr.

Wilson kissed while outside to have a cigarette, that “the tip system [for people working in a bar] would appear to encourage bartenders or wait staff such as [the complainant] to engage in flirtatious behaviour.” Another example is his observation that “in some parts of the province, especially in Francophone areas there is a lot of exchange of kisses at different times.” He also speculated that the kissing might have been the result of the complainant “managing the situation” although there was no evidence to support such a conclusion. [ 20 ] Having reviewed the facts and the different versions, the trial judge noted there were “a number of inconsistencies and weaknesses” in the versions of both the complainant and Mr.

Wilson. However, the only “inconsistency or weakness” the judge specifically addresses relates to Mr. Wilson’s testimony he had a hundred-dollar bill in his jacket. The judge says he does not believe that because Mr.

Wilson also had on his person other money as well as what was described as a “glow tube.” The judge said that “as [he] understand[s] human nature, people are much more careful with hundred dollar bills than to leave them with their coat when they could put them in their pants pocket or somewhere safe” (para. 81). [ 21 ] Although the judge states that his duty is to determine whether the prosecution had proved its case beyond a reasonable doubt, he immediately adds that he has “to attempt to resolve the inconsistencies and understand the whole case.” However, he neither specifically addresses the numerous inconsistencies and weaknesses in the complainant’s version, nor does he explain how he might have “resolved” these in order to be convinced on the criminal law standard of proof.

The judge simply jumps from his recognition that there are inconsistencies and weaknesses to his disbelief of Mr. Wilson’s “hundred-dollar bill” testimony and then to the conclusion of guilt. The judge concludes that “after considering all the circumstances and the legal principles for the cases that apply and the

definitions of the Criminal Code , [he is] satisfied beyond a reasonable doubt that the oral sexual activity and related sexual touching and other sexual touching was not consensual between the parties” (para. 86). [ 22 ] Having determined Mr. Wilson was guilty of sexual assault, the judge then turned to the question of whether aggravated sexual assault had been proven. According to him, an aggravated assault would be made out “if there was wounding in committing the sexual assault” (para. 88). The judge says that for guilt to be established, “there must have been some general intention on the part of Mr.

Wilson to wound the complainant in the course of sexual activity with her” (para. 90). He concluded this element had not been made out, stating that Mr. Wilson has been “trying ‘to get in her pants’ or get in her mouth” but not “trying to break her leg” (para. 90). He therefore found Mr. Wilson not guilty of aggravated sexual assault but guilty of the lesser and included offence of sexual assault.

[23] As for the other counts, the judge stayed those on the grounds he considered them “as being aduplication or overlap of the” sexual assault charge (para. 91). Regarding the unlawful confinement charge, he adds that he has “doubtsabout whether or not she was really confined the entire time until the taxi came to take them away” (para. 92), adding that “[a]t somepoint during that time, she would have had an opportunity to call for help with the panic button or the telephone before the taxi arrived atapproximately 3:18” (para. 93). [24] The trial judge eventually sentenced Mr.

Wilson to imprisonment for a period of 24 months less5 months for time spent while remanded, followed by probation for three years with conditions. He also made ancillary orders. III. Ground of appeal and arguments [25] Mr. Wilson appeals his conviction raising a single ground of appeal: “The judge did not applythe law regarding reasonable doubt.” He argues the trial judge should have given clear reasons for his decision because the sole issuerelated to credibility. He also maintains the judge should have demonstrated he was following the reasoning framework the SupremeCourt articulated in R. v.

W.(D.), (SCC), [1991] 1 S.C.R. 742, [1991] S.C.J. No. 26 (QL). Mr. Wilson argues the reasonsfor decision reveal the judge convicted him because the judge did not believe he had a one hundred-dollar bill in his coat pocket. [26] In reply, the Attorney General notes that trial judges are not required to recite the W.(D.)formula in each case and that they are presumed to know the law. The key is whether or not the judge applied the proper standard ofproof.

Arguing the judge clearly did so in this case, the Attorney General points out that the trial judge expressly acknowledged that theburden was on the Crown to prove guilt beyond a reasonable doubt. IV. Analysis [27] This appeal raises two rather elementary principles of criminal law: the standard of proof in acriminal case and a trial judge’s duty to explain why he or she has reached a particular verdict. The first of these is a long-standingprinciple; the second is a more recent development of the common law, finding its genesis in R. v. Sheppard, 2002 SCC 26, [2002] 1S.C.R. 869.

Both are often intermingled in appeals against conviction where an appellant argues, as here, that the trial judge “did notapply the law regarding reasonable doubt.” Both are relevant to this appeal. [28] The first principle is rather simple to articulate. It is one that is common to most adversarialsystems of criminal law.

It is intertwined with the presumption of innocence, and it requires that, in order to validate a conviction, theprosecution bears the burden of satisfying the trier of fact that the accused is guilty on the basis of proof beyond a reasonable doubt: R. v.Lifchus, (SCC), [1997] 3 S.C.R. 320, [1997] S.C.J. No. 77 (QL). [29] While the principle may be easy to describe, it is not always easy to apply.

This is especially soin cases where the prosecution is effectively grounded solely on the testimony of a complainant, and the defence on the diametricallyopposed testimony of the accused: “the accused did it” versus “no I did not”. The evident danger in these cases is to forget the burden ofproof and determine the case on the basis of which of the two one believes, or, conversely, on which of the two one does not believe: Ibelieve the complainant therefore you are guilty, or I do not believe you and therefore you are guilty. However, our criminal justicesystem is not meant to be a simple credibility contest.

Some people might present better than others, might be more articulate thanothers, or might be more persuasive than others. The law is not meant to impose criminal liability simply on the basis of who bestpresents or articulates his or her story. To say that criminal liability is a serious matter is an understatement. It is among the most seriousof matters, having the potential to irreparably ruin lives.

This is why more is expected from a criminal trial than a simple credibilitycontest. [30] All this was made evident in what has now arguably become the most cited case in Canadiancriminal law: the 1991 case of R. v. W.(D.). The case involved two charges of sexual assault and essentially pitted the testimony of thecomplainant against that of the accused. It was tried before a jury.

The judge initially gave the jury a proper charge on the burden ofproof, but then, in a short recharge on the issue of credibility, “characterized the core issue to be determined by the jury as whether theybelieved the complainant or whether they believed the [accused]” (para. 21). In the Supreme Court, all judges held that the directive inthe recharge was in error. Two of the five Supreme Court judges would have ordered a new trial, but the majority concluded that, on thewhole, the jury would have known they had to acquit if they had a reasonable doubt as to the guilt of the accused.

In articulating thereasons for the majority, Cory J. emphasized that “[i]n a case where credibility is important, the trial judge must instruct the jury that therule of reasonable doubt applies to that issue” and that the jury “need not firmly believe or disbelieve any witness or set of witnesses”(para. 27). He proposed a reasoning framework designed to avoid the oft-repeated error pursuant to which a trial is considered a

credibility contest. The formula he proposed is the following: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [para. 28] [31] Although Cory J. readily acknowledged that “the failure to use such language is not fatal if thecharge, when read as a whole, makes it clear that the jury could not have been under any misapprehension as to the correct burden andstandard of proof to apply” (para. 29), the failure to expressly apply this formula has become a popular ground of appeal againstconvictions.

This has prompted the Supreme Court to consistently point out that the W.(D.) formula was not meant to be followed "wordfor word as some magic incantation" (R. v. S. (W.D.), (SCC), [1994] 3 S.C.R. 521, [1994] S.C.J. No. 91 (QL), at para.24), that it does not serve “as a straitjacket for trial courts” (R. v. Boucher, 2005 SCC 72, [2005] 3 S.C.R. 499, at para. 29), that it is notmeant to be observed “as a catechism” (R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5, at para. 11) and that “there is nothing sacrosanctabout the formula” (R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 23).

Notwithstanding these clear directives, grounds ofappeal anchored on the W.(D.) principle abound as a common attack against convictions, at least in this Province. Recent examplesinclude Metallic v. R., 2010 NBCA 6, 354 N.B.R. (2d) 140; S.S. v. R., 2011 NBCA 75, 376 N.B.R. (2d) 146; Randall v. R., 2012 NBCA25, 393 N.B.R. (2d) 217; and Doiron v. R., 2013 NBCA 31, 405 N.B.R. (2d) 22. [32] As pointed out, W.(D.) was a jury case.

The formula Cory J. proposed is meant to make clear tothe jury that trials are not credibility contests and that, even if an accused is disbelieved and a complainant believed, reasonable doubtmay still prevail. However, it did not take long before trial decisions in judge alone cases also came under attack on the ground thejudge did not follow the W.(D.) formula.

When the Supreme Court imposed a positive duty on trial judges to give reasons for theirverdicts, a ground of appeal based on insufficiency of reasons was added to the mix. [33] In 2002, in Sheppard, the Supreme Court recognized a duty on trial judges to provide reasonsfor their verdicts. However, the Court did not go as far as making the failure to do so a self-standing ground of appeal.

Rather, Binnie J.wrote that a court of appeal must take a functional approach to the review of reasons and that appellate intervention is only warranted incases where “the deficiencies in the reasons prevent meaningful appellate review of the correctness of the decision” (para. 28). [34] Soon after Sheppard was released, verdicts came under attack not only on the ground the judgedid not apply the W.(D.) formula but also because the judge had not specifically articulated he or she was following the formula’s threesteps.

This prompted the Supreme Court to establish a number of principles for appellate review based on these grounds. In establishingthese, the Court observed that trial judges “often limit their reasons to the essential points” (Boucher, at para. 29), that they are“presumed to know a principle as elementary as the presumption of innocence” (C.L.Y., at para. 10), and especially that a trial judge is“not required to recite the rule set out in W.(D.), provided the reasons demonstrated he [or she] seized the substance of the critical issueof a reasonable doubt in the context of a credibility assessment” (R. v.

R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 46, referring toDinardo). [35] However, the cases have kept coming. In New Brunswick, the recent examples are S.S., Randalland Doiron. The most recent example from the Supreme Court is R. v. Vuradin, 2013 SCC 38, [2013] S.C.J. No. 38 (QL). In that case,the issues were specifically “whether the trial judge's reasons for judgment were sufficient and whether the trial judge properly appliedthe burden of proof in a criminal case” (para. 1). It was a case where “[t]he trial judge reasons [were] sparse and [did] not directlyaddress the [accused’s] evidence” (para. 4).

For the Court, Karakatsanis J. reviewed many of the principles established in earlier casesand held that there was no basis for appellate intervention. [36] The onslaught of appeals regarding the two grounds identified above has generated a multitudeof cases from which a number of principles can be derived. Many of them are reviewed and applied in Vuradin. Little would be gainedby undertaking a detailed jurisprudential review of how the various governing principles were developed. I consider it best to simplyextrapolate the principles from the many cases.

In doing so, I have loosely grouped them into three categories: (1) those that relate to thestandard of proof regarding credibility in criminal law cases; (2) those that relate to the sufficiency of reasons regarding credibilityissues; and, (3) those that relate to appellate intervention for failing to apply W.(D.) or for insufficient reasons. Admittedly, there is someduplication and certainly overlap. Some of the principles are elementary and apply broadly. Others are more complex and fact-specific.Some apply in this case. Others do not, but are included for ease of future reference. The list is non-exhaustive.

Making very liberal useof the language in the cases in which these principles have been developed or applied, with apologies for not attributing the words to aspecific author, established principles include the following: A. The standard of proof regarding credibility in criminal law cases

A.1 Proof beyond a reasonable doubt, the standard in criminal law matters, applies equally to the issue of credibility: W.(D.), atpara. 26. In other words, the issue at the end of a trial is not credibility, but reasonable doubt: Sheppard, at para. 65, and C.L.Y., at para.6. A.2 The ideal reasoning process to determine a matter, where the accused denies guilt and credibility is in issue, is to follow theW.(D.) formula: a. First, if the accused is believed, there must be an acquittal; b.

Second, if the accused is not believed but the trier of fact is left in a reasonable doubt by it, there must also be an acquittal; c. Third, even if the evidence of the accused does not raise a reasonable doubt, a conviction is only justified if the trier of fact isconvinced of guilt beyond a reasonable doubt on the basis of the evidence that is accepted: W.(D.), at para. 28. A.3 However, this formula is but a roadmap to remind the trier of fact the ultimate goal is proof beyond reasonable doubt and notmerely a credibility contest; it is not the only route: C.L.Y., at para. 8.

It is the substance of the test that must be respected, not its literaltripartite incarnation: R. v. Szczerbaniwicz, 2010 SCC 15, [2010] 1 S.C.R. 455, at para. 14. A.4 A trier of fact need not firmly believe or disbelieve any witness or set of witnesses: W.(D.), at para. 27. A reasonable doubtneed not rest upon the same sort of foundation of factual findings that is required to support a conviction. A reasonable doubt ariseswhere an inadequate foundation has been laid: R. v. Walker, 2008 SCC 34, [2008] 2 S.C.R. 245, at para. 26, quoting Sharpe J.A.,dissenting, in R. v. Kendall, (ON CA), [2005] O.J.

No. 2457 (C.A.) (QL). A reasonable doubt does not need to bebased on the evidence; it can arise from an absence of evidence or from a simple failure of the evidence to persuade the trier of fact to therequisite level: R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197, at para. 39. A.5 Trial judges are presumed to know the law with which they work day in and day out: R. v. Burns, (SCC),[1994] 1 S.C.R. 656, [1994] S.C.J. No. 30 (QL), at para. 18. A.6 By stating that the accused is not believed, a trial judge is implicitly addressing the first two steps in W.(D.): Boucher, atparas. 29 and 59. B.

Sufficiency of reasons regarding credibility issues B.1 The delivery of reasoned decisions is inherent in the judge’s role: Sheppard, at para. 55. In particular, in a criminal trial,where the accused’s innocence is at stake, there is a duty on the trial judge to give reasons: R. v. Braich, 2002 SCC 27, [2002] 1 S.C.R.903, at para. 19, Dinardo, at para. 24, R.E.M., at paras. 10 and 14. B.2 Trial judges are not held to some abstract standard of perfection and trial judges’ reasons are not the equivalent of juryinstructions: Sheppard, at para. 55.

However, the reasons should tell the parties what the judge has decided and why he or she made thatdecision: R.E.M., at para. 17. The judge need not, however, explain how he or she necessarily arrived at a particular conclusion: R.E.M.at para. 17. Trial judges deliver oral judgments every day and often limit their reasons to the essential points. It would be wrong torequire them to explain in detail the process they followed to reach a verdict: Boucher, at para. 29. B.3 There must be discerned from the reasons a logical connection between the verdict and the basis for it: R.E.M., at para. 17,referring to R. v.

Morrissey, (ON CA), [1995] O.J. No. 639 (C.A.) (QL). However, it is not necessary for the trialjudge to set out every finding or conclusion in the process of arriving at the verdict: R.E.M., at para. 18, referring to Morrissey. B.4 A trial judge's duty to give reasons is satisfied when the reasons are sufficient to serve the purpose for which the duty isimposed, i.e., a decision which, having regard to the particular circumstances of the case, is reasonably intelligible to the parties andprovides the basis for meaningful appellate review of the correctness of the trial judge's decision: Sheppard, at para. 55.

Stateddifferently, the reasons must be sufficient to fulfill their functions of explaining why the accused was convicted or acquitted, providingpublic accountability and permitting effective appellate review: R.E.M., at para. 15. B.5 Reasons are sufficient if they are responsive to the case's live issues and the parties' key arguments: Walker, at para. 20. Whatis required is that the reasons, read in the context of the record and the submissions on the live issues in the case, show that the judge hasseized the substance of the matter.

Provided this is done, detailed recitations of evidence or the law are not required: R.E.M., at para. 43. B.6 Reasons can be deficient if they render an appellate court unable to assess whether the principles of W.(D.) have been applied:Sheppard, at para. 65. B.7 An accused is entitled to know why the trial judge is left with no reasonable doubt: Braich, at para. 20, R. v. Gagnon, 2006SCC 17, [2006] 1 S.C.R. 621, at para. 21, Dinardo, at paras. 26 and 35.

In a case that turns on credibility, the trial judge must direct hisor her mind to the decisive question of whether the accused's evidence, considered in the context of the evidence as a whole, raises areasonable doubt as to his guilt, but need not enter into a detailed account of all conflicting evidence: Dinardo, at paras. 23 and 30,R.E.M., at para. 50. B.8 Reasons acquire particular importance where the trial judge must resolve confused and contradictory evidence on a key issue,unless the basis for the trial judge’s conclusion is apparent from the record: Sheppard, at para. 55 and Dinardo, at para. 27.

B.9 Non-existent or inadequate reasons with respect to credibility may justify appellate intervention: R. v. R.(D.), (SCC), [1996] 2 S.C.R. 291, [1996] S.C.J. No. 8 (QL); R. v. Burke, (SCC), [1996] 1 S.C.R. 474, [1996] S.C.J. No.27 (QL); and Braich, at para. 23. B.10 There is a presumption that judges know the law and deal properly with the facts: Sheppard, at para. 51. It is generallyreasonable to infer that the trial judge understands the basic principles of criminal law at issue in the trial.

Trial judges are presumed toknow the law with which they work day in and day out: Burns, at para. 18, and R.E.M., at para. 45. C. Appellate intervention for failing to apply W.(D.) or for insufficient reasons C.1 Failure to follow the W.(D.) formula is not fatal so long as the charge [or the reasons, as the case may be], makes it clear thatthe trier of fact could not have been under any misapprehension as to the correct burden and standard of proof to apply: W.(D.), at para.29.

C.2 In a jury case, where an error is made in the instruction on the burden of proof, the fact that the trial judge correctly instructedon that issue elsewhere in the charge is a strong indication that the jurors were not left in doubt as to the burden resting on the Crown: W.(D.), at para. 30.

C.3 Where, upon re-examining and re-weighing the evidence, a court of appeal would have reached a different view or entertainsdoubts regarding the credibility of a complainant, the court is nevertheless not empowered to overturn a conviction if the verdict is onethat a trier of fact could reasonably have reached on the evidence: Burns, at para. 14. A vague unease, or a lingering or lurking doubtabout an unsafe verdict is not sufficient to justify appellate intervention: R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 38,Braich, at para. 39.

C.4 Deficiency in reasons, by itself is not a stand-alone ground of appeal: Sheppard, at para. 42. Where it is plain from the recordwhy an accused has been convicted or acquitted, and the absence or inadequacy of reasons provides no significant impediment to theexercise of the right of appeal, the appeal court will not, on that account, intervene.

On the other hand, where the path taken by the trialjudge through confused or conflicting evidence is not at all apparent, or there are difficult issues of law that need to be confronted butwhich the trial judge has circumnavigated without explanation, or where there are conflicting theories for why the trial judge might havedecided as he or she did, at least some of which would clearly constitute reversible error, the appeal court may consider itself unable toproperly perform its review function: Sheppard, at para. 46.

This said, an appellate court is not given the power to intervene simplybecause it thinks the trial court did a poor job of expressing itself: Sheppard at para. 26. C.5 An appellate court considering the sufficiency of reasons should read them as a whole, in the context of the evidence, thearguments and the trial, with an appreciation of the purposes or functions for which they are delivered: R.E.M., at para. 16.

To justifyappellate intervention, there must be a functional failing in the reasons, in that the reasons, read in the context of the evidentiary recordand the live issues on which the trial focused, must fail to disclose an intelligible basis for the verdict, capable of permitting meaningfulappellate review: R.E.M., at para. 53. C.6 The mandate of an appellate court is to determine the correctness of the trial decision, and a functional test requires that thetrial judge's reasons be sufficient for that purpose. The appeal court itself is in the best position to make that determination.

Thethreshold is clearly reached where the appeal court considers itself unable to determine whether the decision is vitiated by error:Sheppard, at para. 28. C.7 Relevant factors in making the determination whether deficiencies in reasons prevent meaningful appellate review arewhether: (

i) there are significant inconsistencies or conflicts in the evidence which are not addressed in the reasons for judgment, (ii) theconfused and contradictory evidence relates to a key issue on the appeal, and (iii) the record does not otherwise explain the trial judge'sdecision in a satisfactory manner: Sheppard, at para. 28. C.8 Trial judges are presumed to know the law and especially a principle as elementary as the presumption of reasonable doubt:C.L.Y., at para. 10. Moreover, where a phrase in a trial judge’s reasons is open to two

interpretations, the one which is consistent withthe trial judge’s presumed knowledge of the applicable law must be preferred over one which suggests an erroneous application of thelaw: C.L.Y., at para. 11, quoting from Morrissey. C.9 However, in an appeal based on the sufficiency of reasons, the presumption is of limited relevance because learned judges canerr in particular cases, and it is the correctness of the decision in a particular case that the parties are entitled to have reviewed by theappellate court: Sheppard, at para. 55.

The presumption of knowledge of the law will not always prevail if the trial judge’s reasons on thequestion of credibility are insufficient to allow for meaningful appellate review: Dinardo, at para. 2. C.10 Where the trial decision is deficient in explaining the result to the parties, but the appeal court considers itself able to do so, theappeal court's explanation in its own reasons is sufficient. There is no need in such a case for a new trial. The error of law, if it were sofound, would be cured under the s. 686(1)(b)(iii) proviso: Sheppard, at para. 55.

C.11 If an accused is to be afforded a right of appeal it must not be an illusory right. An appellant must be in a position to look to therecord and point to what are arguably legal errors or palpable and overriding errors of fact. If nothing is said on issues that mightotherwise have brought about an acquittal, then a reviewing court simply cannot make an assessment and justice is not afforded to theappellant: Sheppard, at para. 66 quoting from R. v. Richardson, (ON CA), [1992] O.J. No. 1498 (C.A.) (QL).

Thereasons have to enable the court of appeal to determine whether the judge’s findings and reasoning are sound: R.E.M., at para. 23. C.12 The absence or deficiency in reasons precluding meaningful appellate review can result in an unreasonable verdict: Sheppard,

at para. 34. In most cases, however, it will be considered an error of law and lead to a new trial: Sheppard, at para. 50. C.13 In credibility cases, deference is generally in order and intervention will be rare. However, a failure to sufficiently articulatehow credibility concerns were resolved may constitute reversible error: Dinardo, at para. 26, and R.E.M., at para. 32. This might occurwhen the trial judge fails to explain how he or she reconciled important inconsistencies in the complainant’s testimony: Dinardo, at para.27.

C.14 In the context of a credibility assessment, a trial judge is not required to recite the rule set out in W.(D.), provided the reasonsdemonstrate the judge seized the substance of the critical issue of a reasonable doubt: R.E.M., at para. 46. C.15 Appellate courts must recognize that assessing credibility is a difficult and delicate matter that does not always lend itself toprecise and complete verbalization: R.E.M. at para. 49.

It may be difficult for a trial judge to articulate with precision the complexintermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions ofevents. As a result, appellate courts must not ignore the trial judge's unique position to see and hear the witnesses and must not substitutetheir own assessment of credibility for the trial judge's: Gagnon, at para. 20, and R.E.M. at para. 48. C.16 An appellate court reviewing reasons for sufficiency should start from a stance of deference toward the trial judge'sperceptions of the facts.

In the absence of a palpable and overriding error by the trial judge, his or her perceptions should be respected:H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401, Gagnon, at para. 20, and R.E.M., at para. 54. While true thatdeficient reasons may cloak a palpable and overriding error, requiring appellate intervention, the appellate court's point of departureshould be a deferential stance based on the propositions that the trial judge is in the best position to determine matters of fact and ispresumed to know the basic law: R.E.M., at para. 54.

C.17 The appellate court, proceeding with deference, must ask itself whether the reasons, considered with the evidentiary record, thesubmissions of counsel and the live issues at the trial, reveal the basis for the verdict reached. It must look at the reasons in their entirecontext. It must ask itself whether, viewed thus, the trial judge appears to have seized the substance of the critical issues on the trial. Ifthe evidence is contradictory or confusing, the appellate court should ask whether the trial judge appears to have recognized and dealtwith the contradictions.

If there is a difficult or novel question of law, it should ask itself if the trial judge has recognized and dealt withthat issue: R.E.M., at para. 55. C.18 The trial judge should not be found to have erred in law for failing to describe every consideration leading to a finding ofcredibility, or to the conclusion of guilt or innocence. Nor should error of law be found because the trial judge has failed to reconcileevery frailty in the evidence or allude to every relevant principle of law. Reasonable inferences need not be spelled out: R.E.M., at para.56.

C.19 In a case that turns on credibility, if a trial judge explains that he or she has rejected the accused's evidence but fails to state thathe or she has no reasonable doubt, this does not constitute an error of law because the conviction itself would raise an inference that theaccused's evidence failed to raise a reasonable doubt: R.E.M., at para. 56. C.20 Appellate courts must guard against simply sifting through the record and substituting their own analysis of the evidence forthat of the trial judge because the reasons do not comply with their expectation of ideal reasons. As was established in Harper v.

TheQueen, (SCC), [1982] 1 S.C.R. 2, [1982] S.C.J. No. 108 (QL) at p. 14, "[a]n appellate tribunal has neither the duty northe right to reassess evidence at trial for the purpose of determining guilt or innocence... Where the record, including the reasons forjudgment, discloses a lack of appreciation of relevant evidence and more particularly the complete disregard of such evidence, then itfalls upon the reviewing tribunal to intercede”: R.E.M., at para. 56.

C.21 A trial judge is not obliged to discuss all of the evidence on any given point, provided the reasons show that he or she grappledwith the substance of the live issues. Failure to mention some aspects of evidence does not constitute error. It is enough that the trialjudge has recognized, where applicable, that the witness' credibility was a live issue: R.E.M., at para. 64. C.22 A trial judge's failure to explain why he rejected the accused's plausible denial of the charges provides no ground for findingthe reasons deficient: R.E.M., at para. 66.

C.23 Where the trial judge accepts the complainant’s evidence that contradicts that of the accused, it follows of necessity that thejudge is rejecting the accused's evidence on that point. No further explanation for rejecting the accused's evidence is required: R.E.M., atpara. 66. C.24 A conviction, by itself, raises a reasonable inference that the accused's denial of the charges has failed to raise a reasonabledoubt: R.E.M., at para. 66. [37] The Supreme Court’s most recent application of several of these principles came in Vuradin,mentioned earlier.

That decision was released on June 27, 2013, two weeks subsequent to the rendering of judgment in the present case.It was an appeal as of right. Fortunately, the decision is reached by the application of established principles, and not by the creation ofnew ones. It therefore would have had no effect on our judgment in the present case. The case does illustrate how many of the principlesshould be applied in an appeal where the grounds allege insufficiency of reasons and the failure to properly apply the burden of proof ina criminal case. [38] Vuradin was a sexual assault case tried before a judge alone.

The trial resulted in a convictionbut the reasons for decision were “sparse and [did] not directly address the appellant’s evidence” (para. 4). Regarding the accused’sevidence, the judge simply said that “notwithstanding […] the denial, [he] had no reasonable doubt that the [accused] did commit the

acts which [the complainant] described” (para. 6). A majority of the Court of Appeal for Alberta concluded that the Sheppard requirement had been met and that the judge had applied the proper burden of proof. One judge dissented; hence, the appeal as of right to the Supreme Court. [ 39 ] Dismissing the appeal, Karakatsanis J. first concluded the reasons were sufficient because they told the appellant why the trial judge had decided as he had.

In doing so, Karakatsanis J. particularly relied on R.E.M. , pointing out that “a trial judge’s failure to explain why he rejected an accused’s plausible denial of the charges does not mean the reasons are deficient as long as the reasons generally demonstrate that, where the complainant’s evidence and the accused’s evidence conflicted, the trial judge accepted the complainant’s evidence” (para. 13).

She also points out that in those situations, “[n]o further explanation for rejecting the accused’s evidence is required as the convictions themselves raise a reasonable inference that the accused’s denial failed to raise a reasonable doubt” (para. 13).

The judge “was not obliged to discuss all of the evidence on any given point and answer each and every argument of counsel” (para. 17). [ 40 ] With respect to the application of the burden of proof, Karakatsanis J. noted that “[t]he order in which a trial judge makes credibility findings of witnesses is inconsequential as long as the principle of reasonable doubt remains the central consideration” (para. 21). In that particular case, the trial judge had adverted to the principles of W.(D.) in his reasons and had immediately proceeded to assess the complainant’s credibility.

The reasons as a whole revealed the judge had properly applied the burden of proof and was not simply comparing stories and shifting the onus on the accused. The rejection of the accused’s testimony raises a “reasonable inference that the accused’s denial of the charges failed to raise a reasonable doubt” (paras. 13 and 27, referring to R.E.M. , at para. 66 ). [ 41 ] In my view, the message is clear.

Successful appeals from a trial judge’s verdict in a criminal law case, on the grounds the judge did not provide sufficient reasons for a credibility assessment or that the judge did not properly apply the burden of proof, should be rare. Trial judges are presumed to know the law regarding the burden and standard of proof in a criminal case and are presumed to know how to apply it to the facts of a case. Deference is owed given their unique position to see and hear witnesses.

Appellate courts are not allowed to substitute their own assessment of credibility for that of the trial judge and must not impugn the reasons for judgment as a means of accomplishing that goal (See R.E.M. , at para. 28 referring to Gagnon ). Appellate courts must neither focus on omitted detail nor proceed “from a sceptical perspective”: R.E.M. , at para 68 .

They must not proceed from the perspective that the accused’s denial is plausible and then see if the judge had dispelled reasonable doubt in giving his or her reasons: R.E.M. , at para. 68 . [ 42 ] If we were to proceed from the perspective that the accused’s denial is plausible and then assess whether the trial judge had dispelled reasonable doubt, I candidly admit I would have much sympathy for Mr. Wilson’s position. Having reviewed the evidentiary record, it seems to me that the video surveillance is more consistent with his version of the events than with the complainant’s version.

The initial scuffle and what was described as a chase are consistent with his seeking to obtain something from the complainant, but, more importantly, the complainant does not appear to have broken her leg in the fall she suffered while attempting to get away from Mr. Wilson and certainly does not appear to have been dragged to the women’s washroom as she described. Mr.

Wilson’s version is also consistent with the fact that the complainant made no effort to activate a panic button linked to the police department, made no attempt to leave via one of the several exits from the pub, did not ask the individual who entered the bar at 02:26, whom she knew, to render assistance, did not ask the taxi dispatcher to render assistance when she called for a cab and did not ask the taxi driver, who had driven her home before, for help when he arrived. It is also consistent with the fact that, after the sexual encounter, the complainant consumed five or six beers sitting at the bar with Mr.

Wilson and shared with him one of her marijuana joints. If one accepts Mr. Wilson’s version, it is easy to understand why the complainant might have shared a cab with Mr. Wilson without fear of revealing to him where she lived and also why she would have given Mr. Wilson some money to help pay for his cab ride home. His version would also explain the taxi driver’s testimony that, other than complaining about her leg, there was nothing in the complainant’s demeanour or in what she said that led him to believe she was in any distress. [ 43 ] Evidently, I must not proceed from this perspective.

Provided the verdict is one the judge could reasonably have reached on the evidence, the role of an appellate court in assessing credibility matters is not to re-examine and re-weigh the evidence with a view of determining whether it raises doubts regarding the credibility of a complainant or that of an accused. We cannot intervene despite unease or a lingering or lurking doubt about an unsafe verdict just because we might have viewed the evidence differently.

In an appeal invoking a ground of appeal such as the one raised in this case, the role of the appellate court is to determine (1) whether the reasons of the trial judge are sufficient to provide for meaningful appellate review, and (2) whether the proper standard was in fact applied. [ 44 ] In my view, the trial judge’s reasons do provide the basis for meaningful appellate review. [ 45 ] As stated in my introduction, the trial judge’s reasons in this case are certainly not a model of certainty and clarity.

The judge does not even mention the W.(D.) formula and leaves to the reader the task of trying to decipher what are the “inconsistencies and weaknesses” and “the legal principles for the cases that apply and the

definitions of the Criminal Code ” to

which he vaguely alludes. Contrast the reasons in the present case with those of Rideout J. in R. v. Carson , 2011 NBQB 370, 382 N.B.R. (2d) 184 , and the deficiencies are even more glaring. In Carson , Rideout J. begins by setting out general principles of criminal law, explaining the presumption of innocence and the meaning of reasonable doubt. He explains how he must assess the case as suggested in W.(D.) and then reviews the essential elements that need to be proven before there can be a conviction, as well as the law relating to the key issues.

He then reviews the evidence and makes clear and reasoned credibility findings, taking into account the complainant’s acknowledged inconsistent testimony and mental health issues. He also explains why he does not believe the accused and why he is not left with a reasonable doubt. [ 46 ] This said, applying the principles set out above, I am unable to hold that the trial judge’s reasons for decision in the present case are deficient to the point of justifying appellate intervention.

The Supreme Court makes it clear that the judge was not obliged to make reference to the W.(D.) framework nor did he have to expressly state that Mr. Wilson’s testimony did not raise a reasonable doubt. The judge made it clear he was rejecting Mr. Wilson’s account of the struggle and the sexual encounter. Although the basis for his rejection is questionable, no one has argued that the judge made a palpable and overriding error in his credibility assessment. No one argued that the judge’s determination, that it goes against “human nature” for Mr.

Wilson to have kept the hundred-dollar bill in his coat pocket instead of on his person, ignores the fact that Mr. Wilson was quite intoxicated at the time and may not have been weighing his own actions in accordance with “human nature.” Nevertheless, what is in issue here is not whether the judge erred on the palpable and overriding standard in assessing credibility, but whether his reasons are sufficient to enable Mr. Wilson to meaningfully pursue an appeal. In my view, they are. Not only do they explain why Mr.

Wilson’s testimony was not believed, but the reasons also acknowledge inconsistencies and weaknesses in the complainant’s version. Although it would have been preferable for the judge to have listed these and addressed them all, there was no obligation for him to do so. It is made clear throughout the decision that the judge believed the complainant was “managing the situation” as best she could that night. [ 47 ] It seems clear to me that the judge responded to the live issues in the case.

He was under no obligation to enter in to a detailed account of all conflicting evidence or to set out every finding or conclusion in the process of addressing the credibility issue. The reasons inform Mr. Wilson he was convicted because the complainant was believed and he was not, and tell him why he was not believed.

In the circumstances, reading the reasons as a whole in the context of the evidence, the arguments and the trial, it cannot be said that the reasons do not allow for meaningful appellate review despite the meagerness of the analytical portion. [ 48 ] I turn now to the next issue, which is whether the reasons reveal an error in the application of the proper standard of proof. Here, again, I repeat that the trial judge was not required to recite the W.(D.) formula, and I acknowledge he is presumed to understand basic principles of criminal law.

Notwithstanding this, I do find error in the judge’s application of the criminal law standard of proof. [ 49 ] Immediately after stating he did not believe Mr. Wilson about the hundred-dollar bill, the trial judge repeated he had to consider whether the prosecution had proven guilt beyond a reasonable doubt and adds that he had “to attempt to resolve the inconsistencies and understand the whole context in this case.” This is not a correct statement of law. The judge did not have to attempt to resolve any inconsistencies.

The inconsistencies might have been resolved in the sense of being satisfactorily explained away, but it is not the judge’s role to “attempt to” resolve them. Rather, the judicial role is to consider unexplained inconsistencies in determining who to believe and how much to believe. The judge should also consider inconsistencies in determining whether reasonable doubt lingers notwithstanding disbelief. In the end, the trial judge must weigh “unresolved” inconsistencies in determining whether proof of the essential elements of the offence had been made beyond a reasonable doubt.

While inconsistencies may be explained away, and a trial judge may disregard them for proper reasons, to the extent they are relevant to the issue of credibility, if they are not satisfactorily explained, they should be weighed in the balance. It is not the trial judge’s role to attempt to resolve them. [ 50 ] The trial judge has to consider whether Mr. Wilson’s testimony, even though not believed, nevertheless raises a reasonable doubt. In my view, his reasons indicate he did not do that. Having disbelieved Mr. Wilson, the judge gave it no further thought.

This conclusion is in line with the same judge’s reasoning in three earlier cases where this Court held he was in error on this point. The first in time is R.S.L. v. R. , 2006 NBCA 64 , 300 N.B.R. (2d) 24. In that case, the judge used the following words in instructing the jury: You can only accept evidence as being credible if you believe it to be true beyond a reasonable doubt. Having decided what evidence you accept, you will consider it as a whole in arriving at your verdict.

You can't base your verdict, your decision on evidence that you feel is unreliable or on evidence which you feel is not believable as to be true beyond a reasonable doubt. Grey evidence, that's uncertain weight if you're not sure if it's true or not, that's not enough.

You have to be satisfied that you believe evidence to be true beyond a reasonable doubt before you can accept it and rely on it to make a decision. [para. 85] [ 51 ] This directive was held to be an error of law because the message that was communicated had “the effect of eliminating from the jury’s consideration evidence which it rejected, but about which it may have entertained a reasonable doubt” (para. 102, quoting from R. v. Allen , 1999 BCCA 117 , [1999] B.C.J. No. 488 (QL)).

In other words, the “instruction eliminated from consideration any evidence that was not believed beyond a reasonable doubt, even if such evidence might, nevertheless, have caused the jury to entertain a reasonable doubt” (para. 103).

[52] The second decision is L.C.M. v. R., 2011 NBCA 14, 368 N.B.R. (2d) 194. Therein, the samejudge used the same reasoning in convicting an accused of sexual assault, stating as follows: The law is also clear the Court is not obliged to accept any part of the evidence of a witness just because there is no denial of it. TheCourt can only accept evidence as being credible if it is believed to be true beyond a reasonable doubt. Having decided what evidence to accept the Court must consider it as a whole in arriving at the decision. [para. 2] [53] Again, this Court found such reasoning to be an error in law.

The Court held that the error“eliminated from consideration individual pieces of evidence [the judge] did not believe beyond a reasonable doubt” (para. 3). [54] A little over a year after this Court’s decision in L.C.M., the same judge rendered the thirddecision. In that case, the accused was convicted of mischief for willfully damaging property. The judge observed that “[t]he Court canonly accept evidence as being credible if the Court can believe it to be true beyond a reasonable doubt”: R. v. Banks, 2012 NBQB 132,[2012] N.B.J. No. 142 (QL), at para. 23. On appeal from that decision (Banks v.

R., 2012 NBCA 80, 396 N.B.R. (2d) 325), theconviction was upheld. The issue arising from that statement had not been raised as a ground of appeal. Nevertheless, Drapeau C.J.N.B.for the Court saw it appropriate to comment. He stated as follows: While this issue is not raised as a ground of appeal, some observations on point are nevertheless apposite. It is now settled that the rule ofreasonable doubt applies to the issue of credibility at least in any case where, as here, "credibility is important" (see R. v. W.(D.) [D.W.], (SCC), [1991] 1 S.C.R. 742, [1991] S.C.J. No. 26 (QL), at para. 27).

However, that principle does not mean the trier offact can disregard testimony whose credibility and reliability has not been established beyond a reasonable doubt. Indeed, a trier of factcould conclude to the existence of a reasonable doubt on the ultimate issue of guilt based upon testimony that might reasonably be true orwas probably truthful.

When the trier of fact eliminates from consideration testimonial evidence simply because its believability orreliability has not been established beyond a reasonable doubt the pool of available evidence is impermissibly reduced. [para. 18] [55] After adopting and reproducing the relevant portions of L.C.M., the Chief Justice continued: After noting Corrections Officer Hawkins had backed away from his earlier assertion that he had witnessed the appellant "throwingporcelain from the window", the trial judge went on to "disregard" all of his evidence "because it is not proof beyond a reasonable doubtif he is only saying that he is reasonably certain".

Because Corrections Officer Hawkins' testimony, viewed contextually and in the lightmost favourable to the appellant, provides absolutely no basis for a reasonable doubt as to guilt, the trial judge's flawed approach iswholly inconsequential. That will not always be the case, and everyone knows, or should know, that re-trials consume scarce publicresources and are easily avoided by the application of settled principles of law.

Nothing further need be added on the subject. [para. 19] [56] Although it is not as obvious in the present case as it was in R.S.L., L.C.M. and Banks, Inevertheless conclude that the same error in reasoning that is addressed in those cases is what led to Mr. Wilson’s conviction. The flawin the impugned reasoning in those three cases is that it wholly ignores the second step in the W.(D.) reasoning process. The trial judgewent from step 1 – deciding whether to believe the accused –directly to step 3, in which he decided whether the evidence he acceptedconvinced him beyond a reasonable doubt.

In the process, he ignored whether the evidence not accepted might have raised that doubt.This was exactly the flaw in reasoning meant to be corrected by the W.(D.) formula. [57] I recognize a trial judge is not obliged to strictly follow the W.(D.) formula provided that, in theend, the reasonable doubt standard is properly applied. I also recognize that by his verdict of guilty, it can be reasonably inferred theaccused’s denial of the charges failed to raise a reasonable doubt in the judge’s mind.

In Boucher, the Supreme Court held that if theaccused is not believed, a trial judge is implicitly addressing the first two steps in W.(D.). However, in my view, this inference isinapplicable when the reasons for decision themselves demonstrate a flawed reasoning process. This is so because in W.(D.) it wasspecifically held that failure to follow the formula “is not fatal if the charge, when read as a whole, makes it clear that the jury could nothave been under any misapprehension as to the correct burden and standard of proof to apply” (para. 29, citing R. v. Thatcher, (SCC), [1987] 1 S.C.R. 652, [1987] S.C.J.

No. 22 (QL)). This was before the Supreme Court imposed on trial judges a duty togive reasons. Modernized, that statement in W.(D.), taken together with the inference recognized in Boucher would provide as follows: if,in a judge alone case, the accused is not believed, the judge is implicitly addressing the first two steps in W.(D.), unless the reasons,when read as a whole, make it clear that the judge was under some misapprehension as to the correct burden and standard of proof. I findthat latter proposition to be the case here. After stating he did not believe Mr.

Wilson, the trial judge expressly states that he turns to thethird step in the W.(D.) analysis without at any time pausing to ask whether Mr. Wilson’s plausible denial might have, in itself, raised areasonable doubt. The judge then says he has to “attempt to resolve the inconsistencies” - something which is not his function, but whichhe would need to do only if he were applying the flawed reasoning process that he cannot make any use of evidence that he does notbelieve to be true beyond a reasonable doubt. [58] In my view, the judge’s decision makes it clear that Mr. Wilson’s testimony was never

subjected to the reasonable doubt standard because the judge did not believe it to be true beyond a reasonable doubt, the same error thesame judge committed in R.S.L., L.C.M. and Banks. This error displaces any presumption and does not allow us to draw the usualinference referred to in R.E.M. to the effect that the conviction, by itself, is indicative “that the accused’s denial of the charges has failedto raise a reasonable doubt” (para. 66). This is why I joined my colleagues in allowing Mr. Wilson’s appeal. [59] As noted above, the trial judge acquitted Mr.

Wilson of the more serious charge of aggravatedassault and stayed the charges regarding the other two counts. It would be of no moment if I were to harbour doubts about the proprietyof one or more of those rulings, since the Attorney General has not appealed these. The principle that applies in this situation is the sameas the one recently expressed in Messer v. R., 2013 NBCA 39, 405 N.B.R. (2d) 279: The Attorney General has not appealed any of the acquittals on the original charges. We therefore have no jurisdiction to order a newtrial with respect to these. Even with respect to the count in regard to which Mr.

Messer was convicted of the lesser and included offenceof assault simpliciter, we cannot order a new trial on the original count: R. v. Guillemette, (SCC), [1986] 1 S.C.R. 356,[1986] S.C.J. No. 24 (QL). Mr. Messer therefore stands acquitted with respect to the first count because the judge found him not guiltyof the offence charged and erred in law in finding him guilty of the offence set out in s. 264. He also stands acquitted of the assaultdescribed in the third count, regarding which there was no appeal.

As for the second count, he was acquitted of assault causing bodilyharm and that acquittal has not been appealed. He can therefore only be re-tried on a charge under s. 266(

a) relating to the transaction towhich the second count relates. In his notice of appeal, as amended, Mr. Messer requests that any new trial be held before a courtcomposed of a judge and jury. [para. 6] [60] The same applies here. We can only order a new trial on the charge for which Mr. Wilson hasbeen convicted. V. Disposition [61] It is for these reasons I joined my colleagues in allowing Mr. Wilson’s appeal againstconviction, quashing the verdict and ordering a new trial on an indictment charging him solely with the offence for which he had beenconvicted. ________________________________________ J.C.

MARC RICHARD, J.A. We concur: ________________________________________ KATHLEEN QUIGG, J.A.

________________________________________ BRADLEY V. GREEN, J.A.