2020 QCCA 1105, 2020 QCCA 1105

Bensaadi c. R. 2020 QCCA 1105 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-006784-183 (500-36-008743-174) DATE: 2 SEPTEMBER 2020 CORAM: THE HONOURABLE GUY GAGNON, J.A. PATRICK HEALY, J.A. MICHEL BEAUPRÉ, J.A. TARIK BENSAADI APPELLANT - Accused v. HER MAJESTY THE QUEEN RESPONDENT - Prosecutor JUDGMENT There is a publication ban, pursuant to

section 486.4 of the Criminal Code , that prohibits publication of the names of any witnesses. [ 1 ] This is an appeal against a judgment of the Superior Court, sitting as a

summary-conviction appeal court (“SCAC”), that allowed a prosecution appeal from an acquittal and ordered a new trial. [1] [ 2 ] For the reasons of Justice Healy with which Justices Gagnon and Beaupré concur: THE COURT : [ 3 ] DISMISSES the appeal. GUY GAGNON, J.A. PATRICK HEALY, J.A. MICHEL BEAUPRÉ, J.A. Mtre Philippe C. Legault MORNEAU L’ECUYER LA LEGGIA ROULEAU For appellant Mtre Marianna Ferraro DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS For respondent Date of hearing: 13 November 2019

REASONS OF HEALY, J.A. [ 4 ] This is an appeal against a judgment of the Superior Court, sitting as a

summary-conviction appeal court (“SCAC”), that allowed a prosecution appeal from an acquittal and ordered a new trial. [2] It requires the Court to consider whether the prosecution has a right of appeal to the SCAC against a judgment of acquittal pronounced by the trial judge on the basis that there was a reasonable doubt on the whole of the evidence. If the prosecution has a right of appeal on this ground, the Court must also consider the basis on which the appeal might be allowed by the SCAC. Context [ 5 ] The appellant was charged by means of

summary procedure with one count of sexual assault. [3] At trial only the complainant testified and no defence was presented. The trial judge said that it is probable that the alleged assault occurred as it was described in the complainant’s testimony. He also identified several concerns raised by her testimony that in his view affected the reliability of her evidence.

Although the gaps and weaknesses that he identified did not diminish her account of the substantive elements of the alleged assault, they led him to conclude that on the whole of the evidence the prosecution had not proved the appellant’s guilt beyond reasonable doubt. Hence the acquittal. [ 6 ] The prosecution argued in the SCAC (“the appeal judge”) that the acquittal was unreasonable. [ 7 ] The appeal judge noted specifically that the essential elements in the complainant’s account of the alleged assault were uncontradicted.

She also noted that the trial judge’s reservations about the reliability of the complainant’s testimony concerned matters that did not impugn her description of the alleged assault. She could find no basis on which the trial judge might have had a reasonable doubt. On this basis she concluded that the trial judge had made a palpable and overriding error that materially affected the verdict.

For this reason she allowed the appeal and ordered a new trial. [ 8 ] Leave was granted for further appeal to this court on the following question: Est-ce que l’honorable juge de la Cour supérieure a commis une erreur de droit en faisant droit à un appel sur ce qui est identifié comme étant des questions mixtes de faits et de droit quant à un acquittement? [ 9 ] This is plainly a question of law concerning the jurisdiction of the SCAC. [4] The specific question for consideration must be framed more pointedly: Did the SCAC err in allowing an appeal from a judgment of acquittal based upon a reasonable doubt? [ 10 ] This question comprises three distinct questions: Does the SCAC in a prosecution appeal against acquittal under

section 813 have jurisdiction over a question of law, a question of fact or a mixed question? If its jurisdiction is not restricted to a question of law, does the SCAC have jurisdiction to hear a prosecution appeal against an “unreasonable acquittal?” If so, can the SCAC allow a prosecution appeal against an “unreasonable acquittal” that is based upon a finding of reasonable doubt at trial? Facts [ 11 ] The central facts in this matter are not disputed and may be reproduced from the statement provided by the trial judge. [5] Le 26 avril 2016, vers 20h, C...

M... rejoint sa copine Ch... au restaurant Tim Hortons situé au 7545 Maurice Duplessis à Montréal afin d’étudier pour se préparer à un examen le lendemain. [6] Vers 23h50, la paire décide de prendre un taxi pour rentrer à la maison. À l’arrivée du taxi, cinq minutes plus tard, la paire embarque sur les sièges arrière. De la musique pop joue à la radio et les amies rient et bougent la tête au son de cette musique. [7] Quelques paroles sont échangées entre le conducteur et les deux amies au sujet de cette musique. Environ trois minutes plus tard, le véhicule arrive chez Ch.... Elle mentionne à C...

M... en sortant « Quand tu arriveras chez toi tu me texteras ». [8] Le taxi reprend sa course vers la grand-mère de C... M... et un peu plus loin, sur la rue Roland- Paradis, le conducteur arrête son véhicule et mentionne à C... M... de prendre place à l’avant. C... M... lui demande pourquoi et le conducteur répond : « Parce que c’est mieux comme ça ». [9] Bien que réticente, C... M... descend du véhicule et prend place à l’avant côté passager. Le conducteur questionne alors C... M... sur ses études et lui demande son nom et sa nationalité.

Le taxi redémarre et continue sa route. [10] À l’intersection Rolland Paradis / boulevard Perras, le conducteur lui demande : « Est-ce que tu veux aller faire un tour? » C... M... répond non à cette question et mentionne « Je veux rentrer chez moi ». Il lui redemande : « Est-ce que tu es sûre de ne pas vouloir aller faire un tour » et C... M... lui dit non.

[11] En entrant dans l’allée où se trouve l’appartement de la grand-mère de C... M... le conducteur lui demande si « elle a du change et qu’il le prendrait avec un bisou ». C... M... répond : « Ça va être correct pour la course, merci pour le discount, mais non, je vais juste payer débit ». [12] Le conducteur lui touche alors le bras à deux reprises. C... M... lui dit : « Non, je n’aime pas ça ». Il met sa main sur la cuisse de C... M..., qui l’ôte par la suite. Il ouvre alors le coffre à gants, prend le terminal de paiement et le remet à C...

M... en lui caressant la main. [13] Elle paie le conducteur et lui laisse un pourboire, car c’est normalement ce qu’elle fait. Lorsque C... M... sort du taxi, il lui caresse le dos de haut en bas. [14] Alors que C... M... sonne à l’appartement de sa grand-mère, le conducteur du taxi recule et avance son véhicule tout en descendant sa vitre. C… M… lui mentionne alors : « Non merci, je suis correcte ».Par la suite, il appuie sur l’accélérateur lorsqu’il voit les lumières s’allumer dans l’appartement de la grand-mère de C... M.... [15] Chez sa grand-mère, C...

M... appelle la compagnie de taxi et par la suite, la police. [16] C… M… mentionne qu’elle est restée environ 12-13 minutes en présence du conducteur du taxi.

Elle ne se souvient pas de la remise du reçu de la course. [ 12 ] Before turning to the evidence the trial judge notes several points concerning credibility, reliability and reasonable doubt that must guide his assessment of the evidence: despite the apparent sincerity of a witness, the evidence as a whole must be considered; [5] reasonable doubt might emerge from the prosecution evidence; [6] reasonable doubt might remain even if the evidence of the complainant is not rejected; [7] there is a difference between credibility and reliability; [8] the evidence of a credible witness might still be unreliable, even if that evidence is uncontradicted. [9] [ 13 ] The judge then considers the evidence: [29] … le Tribunal est d’avis que la poursuite n’a pas prouvé hors de tout doute raisonnable la culpabilité de l’accusé étant donné les réserves suivantes concernant la fiabilité du témoignage de C...

M... : 1. C... M... n’a pas mentionné dans son interrogatoire en chef les paroles suivantes de l’accusé telles que relatées en contre- interrogatoire : « Au pire, tu dormiras chez moi et je vais te ramener demain »; 2. C... M... n’a pas été en mesure d’identifier l’accusé à la Cour malgré qu’elle soit restée avec lui 12-13 minutes dans le véhicule taxi, et, selon sa version, près de la moitié du temps alors qu’elle se trouve sur le siège avant passager, donc, à côté de l’accusé. Même si le Tribunal conclut que l’accusé est le conducteur du taxi, ce fait affecte la fiabilité générale du témoignage de C... M...; 3.

C... M... ne peut pas dire de manière affirmative si elle est allée faire son examen le 27 avril 2016 : « Je ne me rappelle plus, je crois que oui »; 4. Questionnée par le Tribunal, C... M... mentionne qu’elle ne se souvient plus si les policiers sont venus chez elle le lendemain alors qu’elle avait affirmé que c’était le cas lors de son interrogatoire en chef; 5. Pourquoi estimer à 12 $ le montant de la course de taxi quand on lui demande des informations, alors que le reçu (P-2) fait référence à un montant de 8.85 $.

Selon son témoignage, elle n’aurait pas regardé le compteur du taxi pour y voir le montant exact de la course. [30] Par conséquent, le Tribunal n’est pas convaincu hors de tout doute raisonnable de la culpabilité de l’accusé. Bien qu’il soit probable que les événements décrits par la plaignante aient eu lieu de la manière décrite dans son témoignage, le Tribunal n’en est tout simplement pas convaincu hors de tout doute raisonnable.

Summary-conviction appeal [ 14 ] The SCAC concludes that the trial judge made several errors. The appeal judge finds that the judge was mistaken with respect to the fourth point concerning the testimony of the complainant. By contrast, she finds on a review of the evidence that the complainant was consistently clear that the police interviewed her at her grandmother’s residence. The appeal judge described this as a palpable and overriding error. [ 15 ] Apart from this specific point, the appeal judge notes that the evidence established beyond reasonable doubt the identity of the respondent as the taxi driver.

The appeal judge concludes that the trial judge’s hesitations concerning the complainant’s testimony were otherwise concerned with matters peripheral or collateral to the complainant’s uncontradicted testimony regarding the essential elements of the offence charged. She finds no reason for the judge to doubt the complainant’s credibility or to find that her uncontradicted evidence was unreliable. She says that the trial judge required “faultless” testimony of the complainant.

In the result she concludes that the judge made a palpable and overriding error in acquitting on the basis of reasonable doubt and that this error justified an order for a new trial.

Does the SCAC in a prosecution appeal against acquittal under

section 813 have jurisdiction over a question of law, a question offact or a mixed question? [16] Several points about appeals are clear. There is no right of appeal unless it is given by statute and a court is granted jurisdiction to hear an appeal.[10] In criminal matters the Criminal Code provides for appeals in indictable cases in

Part XXI and forcases by

summary conviction in

Part XXVIII. The provisions in these two parts share many features but they are not identical; nor arethey symmetrical as between appeals by the accused and by the prosecution. Apart from what is clear, however, much is not clear withrespect to the jurisdiction and powers of appellate courts in indictable and

summary matters. As a result, the courts have been called uponto provide guidance to resolve gaps and ambiguities in many provisions concerning criminal appeals. [17] In

summary matters there are four mechanisms for review of proceedings in first instance.[11] Three of these have their originsin a time when

summary proceedings were typically conducted by lay magistrates. First, there was review by prerogative relief. Thiswas never strictly an appeal but a form of control used primarily for the supervision of a statutory court on questions of jurisdiction. It isof no concern in the present appeal. [18] Second, there was appeal by way of a stated case, which allowed a party to appeal on a point of law or jurisdiction on thebasis of the transcript of proceedings in first instance. It does not allow the SCAC to examine questions of fact.

Section 830 of the Codepreserves this form of appeal but it has fallen into desuetude. It is of no concern in the present appeal. [19] Third, there was appeal by trial de novo. This form of appeal is preserved in section 822(4) of the Code and it expresslyallows the SCAC to reconsider matters of fact. Until 1976 it was the principal form of appeal in

summary matters but it too has falleninto desuetude. It is of no concern in the present appeal. [20] Fourth, a major reform in

summary matters was enacted in 1976 to introduce a form of appeal on the record that resembles the theory and practice of appeals in indictable matters.[12] The rights of appeal and the powers of the SCAC are set out in sections 813 and822 respectively. Section 822(1) expressly provides that for

summary-conviction appeals under

section 813 “sections 683 to 689, withthe exception of subsections 683(3) and 686(5), apply, with such modifications as the circumstances require.” The amendment of theCode to provide for this form of appeal in

summary matters coincided broadly with the gradual elimination of lay magistrates and theirreplacement with legally-trained judges who have substantially the same conditions of tenure as federally-appointed judges. Virtually allappeals in

summary matters are conducted pursuant to these provisions. But, notwithstanding similarities between elements of

Part XXIthat apply in indictable matters and

summary-conviction appeals under

section 813 in

Part XXVII, there are also significant differences. [21] This case concerns an appeal by the prosecution under

section 813(b)(

i) against the dismissal of an information. 813Except where otherwise provided by law, […] (

b) the informant, the Attorney General or his agent in proceedings under this Part may appeal to the appeal court (

i) from an order that stays proceedings on an information or dismisses an information. [22] The dismissal of an information includes an acquittal, or a judgment of “not guilty,” after the hearing of evidence at trial but also dismissal for want of prosecution or for lack of jurisdiction and includes any other order that is tantamount to an acquittal.[13] [23] Unlike section 676(1)(a), which restricts prosecution appeals against acquittals in indictable matters to questions of law,section 813(b)(

i) imposes no such restriction. The clear consensus in the jurisprudence is that the prosecution has a right of appeal against acquittal in

summary matters not only on questions of law but questions of fact and mixed questions.[14] [24] This broad scope of jurisdiction is a conclusion that courts have reached as a matter of

interpretation, chiefly on the textualbasis that questions of fact and mixed questions are not expressly excluded. The jurisprudence has rejected the suggestion that the phrasein

section 822 concerning the powers of a SCAC – “with such modifications as the circumstances require” – cannot be read to limit the rights of appeal provided in

section 813.[15] It follows that the prosecution right of appeal against acquittal in

summary matters ismarkedly wider than the right of appeal against acquittal in indictable matters. It also follows that the SCAC may exercise the powersenumerated in

section 686 of the Criminal Code, with the exception of section 686(5). [25] This point was restated by the Court in R. v. Kammoun: [129] Il est vrai que le juge de la Cour supérieure paraît remettre erronément en question la possibilité d’un appel de la poursuivantesur des questions de fait. En revanche, il va de soi que la Cour supérieure ne peut, même lors d’un appel sur les faits, usurper le rôle dujuge du procès et substituer son opinion à la sienne : R. v. Morin (1997), (QC CA), 5 C.R. (5th) 331 (C.A. Qc);Regina v. Colbeck (1978), (ON CA), 42 C.C.C. (2d) 117 (C.A.

Ont.), tout comme d’ailleurs une cour d’appel ne peut le faire lorsqu’elle entend un appel d’un accusé sur des questions de fait.[16] [26] As the Court said here, the jurisdiction of the SCAC over questions of fact does not allow it to retry the case on appeal and tosubstitute its view of the facts for that of the trial judge. It permits the SCAC to intervene on a question of fact if the trial judge’sconclusions of fact cannot logically support the judgment. Further, it allows the appellate court to intervene on all questions with therange of powers provided in

section 686, with the exception of section 686(5). Does the SCAC have jurisdiction to hear a prosecution appeal against an “unreasonable acquittal?” [27] A question raised by this broad grant of a right of prosecution appeal against acquittal is whether the prosecution may appeal

against an “unreasonable acquittal.” On this question the jurisprudence is less clear. There are numerous instances in which courts havesaid that the concept of a prosecution appeal against an “unreasonable verdict” is inherently antithetical to the presumption of innocenceand, by extension, to the principles of protection against double jeopardy.

In Biniaris, for example, Arbour J. stated the point in theseterms: 32 In their written submissions, both the Attorney General for Ontario and the Attorney General of Manitoba (who participated in thecompanion cases) recognized that the law, as it stood at the time of the appeal, is clear that the Crown has no right of appeal from anacquittal on the ground that it was unreasonable, because the reasonableness of a verdict is a question of fact (or one of mixed fact andlaw). See, e.g., Sunbeam, supra, at p. 233; Lampard, supra, at pp. 380-81; Ciglen v.

The Queen, (SCC), [1970] S.C.R.804, at pp. 814-15, per Cartwright C.J., dissenting; R. v. B. (G.), (SCC), [1990] 2 S.C.R. 57, at pp. 70-71; R. v. H.(D.S.) and N. (J.D.), (SCC), [1994] 2 S.C.R. 392, rev’g (1994), 90 C.C.C. (3d) 564 (B.C.C.A.); R. v. Blundon (1993), (NL CA), 84 C.C.C. (3d) 249 (Nfld. C.A.), at pp. 279-80. There can be no suggestion that the Crown’s right ofappeal at first instance is being enlarged or expanded to include “unreasonable acquittals” as a result of the determination that thereasonableness of a verdict is a “question of law” as well as a “question of law alone”.

As before, the Crown is barred from appealing anacquittal on the sole basis that it is unreasonable, without asserting any other error of law leading to it. 33 There is no anomaly in this result. The powers of the court of appeal in the case of Crown appeals on a question of law arecontained in s. 686(4) of the Code. There is no reference in that

section to an unreasonable verdict. This is consistent with the limitedrights of appeal conferred on the Crown by s. 676(1). The absence of language granting a remedial power corresponding to s. 686(1)(a)(i), suggests that Parliament did not intend “unreasonable acquittals” to be appealable by the Crown at first instance. Further, and moreimportantly, as a matter of law, the concept of “unreasonable acquittal” is incompatible with the presumption of innocence and theburden which rests on the prosecution to prove its case beyond a reasonable doubt. See Lampard, supra, at pp. 380-81; Schuldt v.

TheQueen, (SCC), [1985] 2 S.C.R. 592, at p. 610; B. (G.), supra, at pp. 70-71. Since, different policy considerations applyin providing the Crown with a right of appeal against acquittals, it seems to me that there is no principle of parity of appellate access in the criminal process that must inform our

interpretation of this issue.[17]. [28] Expressions to the same effect can be found in many other cases but it cannot be affirmed that the jurisprudence categoricallyexcludes the possibility of a prosecution appeal against an unreasonable acquittal in a

summary matter. That possibility is certainly not excluded by the terms of

section 813(b)(

i) but there is no settled resolution of this issue in Canadian jurisprudence.[18] [29] There is no logical or conceptual difficulty in the notion of an unreasonable acquittal. If there is no logical bar to the conceptof “unreasonable conviction,” there is no bar to an “unreasonable acquittal.” The history of the principle of jury nullification makes thisobvious and it is clear that unreasonable acquittals could include a much broader array of cases than jury nullification. The widerquestion of appeals from unreasonable acquittals is more complex where there is no jury.

In an indictable case the Code stipulates thatthere could be a prosecution appeal against an unreasonable acquittal only if the reason for its unreasonableness can be characterised as aquestion of law. In

summary matters this restriction does not apply because the SCAC has jurisdiction over questions of fact and law. Itis necessary nonetheless that there be a demonstrable nexus between the error of law or fact and the acquittal. [30] In view of the extended jurisdiction over prosecution appeals on questions of fact in

summary matters, it is perhaps anexaggeration to claim that an unreasonable acquittal is inherently incompatible with the presumption of innocence. In an indictablematter an unreasonable conviction is clearly incompatible with the presumption of innocence because it cannot be reconciled with theelementary requirement of proof beyond reasonable doubt on the whole of the evidence in a trial untainted by an error of law or amaterial error of fact. An unreasonable acquittal is entirely compatible with this requirement but for a material error of fact.

It cannot besaid that it is contrary to the presumption of innocence for an accused person to benefit from its application when that benefit isdemonstrably unmerited in the circumstances of the case. [31] It is an exaggeration to say, without qualification, that there can be no prosecution appeal against an “unreasonable verdict”delivered in a trial by a judge sitting without a jury, including

summary matters. The vital qualification is described in J.M.H.: [25] It has long been recognized that it is an error of law to make a finding of fact for which there is no supporting evidence: Schuldt v.The Queen, (SCC), [1985] 2 S.C.R. 592, at p. 604. It does not follow from this principle, however, that an acquittal canbe set aside on the basis that it is not supported by the evidence. An acquittal (absent some fact or element on which the accused bearsthe burden of proof) is not a finding of fact but instead a conclusion that the standard of persuasion beyond a reasonable doubt has notbeen met.

Moreover, as pointed out in R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320, at para. 39, a reasonable doubt islogically derived from the evidence or absence of evidence. Juries are properly so instructed and told that they may accept some, all ornone of a witness’s evidence: Lifchus, at paras. 30 and 36; Canadian Judicial Council, Model Jury Instructions,

Part III, FinalInstructions, 9.4 Assessment of Evidence (online). [26] The principle that it is an error of law to make a finding of fact for which there is no supporting evidence does not, in general, applyto a decision to acquit based on a reasonable doubt. As Binnie J. put it in R. v.

Walker, 2008 SCC 34, [2008] 2 S.C.R. 245, at para. 22: A major difference between the position of the Crown and the accused in a criminal trial, of course, is that the accused benefits from thepresumption of innocence. . . . [W]hereas a conviction requires the prosecution to establish each of the factual elements of the offencebeyond a reasonable doubt, no such requirement applies to an acquittal which, unlike a conviction, can rest simply on the absence ofproof. [Emphasis deleted.]

[27] The point was expressed very clearly in R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 33: “. . . as a matter of law, theconcept of ‘unreasonable acquittal’ is incompatible with the presumption of innocence and the burden which rests on the prosecution toprove its case beyond a reasonable doubt.”

(2) The Legal Effect of Findings of Fact or of Undisputed Facts Raises a Question of Law [28] R. v. Morin, (SCC), [1992] 3 S.C.R. 286, lists this as one category of cases in which the trial judge’s assessment ofthe evidence may give rise to an error of law. As Sopinka J. put it, at p. 294: If a trial judge finds all the facts necessary to reach a conclusion in law and in order to reach that conclusion the facts can simply beaccepted as found, a Court of Appeal can disagree with the conclusion reached without trespassing on the fact-finding function of thetrial judge.

The disagreement is with respect to the law and not the facts nor inferences to be drawn from the facts. The same reasoningapplies if the facts are accepted or not in dispute. In short, the appellate court can simply apply the trial judge’s findings of fact to the proper legal principles; the trial judge’s error, ifthere is one, may safely be traced to a question of law rather than to any question about how to weigh the evidence.

(3) An Assessment of the Evidence Based on a Wrong Legal Principle Is an Error of Law [29] This is another category mentioned in Morin.

In that case, Sopinka J. stated at p. 295, “Failure to appreciate the evidence cannotamount to an error of law unless the failure is based on a misapprehension of some legal principle.” In B. (G.), Wilson J. addedimportant cautionary words concerning this basis for appellate intervention: . . . it will be more difficult in an appeal from an acquittal to establish with certainty that the error committed by the trial judge raised aquestion of law alone because of the burden of proof on the Crown in all criminal prosecutions and the increased importance ofexamining critically all evidence that may raise a reasonable doubt. [p. 75] [30] This proposition was said by Lamer J. (as he then was) in Schuldt to constitute the proper basis for the Court’s decision in Wild v.The Queen, (SCC), [1971] S.C.R. 101.

In Schuldt, at p. 610, it was affirmed that except in the rare cases in which astatutory provision places an onus upon the accused, it can sometimes be said as a matter of law that there is no evidence on which thecourt can convict, but never that there is no evidence on which it can acquit as there is always the rebuttable presumption of innocence.

This approach was also adopted in B. (G.) by Wilson J., at pp. 69-70, and the point was further underlined in the concurring reasons ofMcLachlin J. (as she then was), at p. 79, where she wrote: “In the absence of . . . misdirection the law is clear that doubts about thereasonableness of the trial judge’s assessment of the evidence [in the context of a Crown appeal of an acquittal] do not constitutequestions of law alone . . . .”

(4) The Trial Judge’s Failure to Consider All of the Evidence in Relation to the Ultimate Issue of Guilt or Innocence Is an Error of Law [31] This was Sopinka J.’s last category in Morin (pp. 295-96). The underlying legal principle is set out in another decision called R. v.Morin, (SCC), [1988] 2 S.C.R. 345. The principle is that it is an error of law to subject individual pieces of evidence tothe standard of proof beyond a reasonable doubt; the evidence must be looked at as a whole: see, e.g., B. (G.), at pp. 75-77 and 79. However, Sopinka J. sounded an important warning about how this error may be identified.

It is a misapplication of the Morin principleto apply it whenever a trial judge fails to deal with each piece of evidence or record each piece of evidence and his or her assessment ofit.

As noted in Morin (1992), at p. 296, “A trial judge must consider all of the evidence in relation to the ultimate issue but unless thereasons demonstrate that this was not done, the failure to record the fact of it having been done is not a proper basis for concluding thatthere was an error of law in this respect.” This was the basis of intervention relied on by the Court of Appeal, but as noted earlier, a fairreading of the trial judge’s reasons does not support this finding of legal error. [32] A trial judge is not required to refer to every item of evidence considered or to detail the way each item of evidence was assessed.

As Binnie J. pointed out in Walker, “Reasons are sufficient if they are responsive to the case’s live issues and the parties’ keyarguments. Their sufficiency should be measured not in the abstract, but as they respond to the substance of what was in issue” (para.20). Walker also clearly holds that the adequacy of a trial judge’s reasons is informed by the limited grounds for Crown rights of appealfrom acquittals (paras. 2 and 22).

As Binnie J. succinctly put it, “Caution must be taken to avoid seizing on perceived deficiencies in atrial judge’s reasons for acquittal to create a ground of ‘unreasonable acquittal’ which is not open to the court under the provisions of theCriminal Code” (para. 2). [33] Having reviewed four types of cases in which an alleged mishandling of the evidence may constitute an error of law alone, I returnto the appellant’s submissions.

He argues that on a Crown appeal from an acquittal, where the error of law is alleged to be a defect in thetrial judge’s assessment of the evidence, a reviewable error arises only where four conditions are met: (

a) an error of law has beencommitted; (

b) the misapprehension of the evidence is not properly characterized as either an unreasonable verdict or a miscarriage ofjustice; (

c) the Crown can show with a high degree of certainty that the error affected the verdict; and (

d) there has been a shift in a legalburden to the accused. For reasons I will develop, I cannot accept this submission. […] [39] […] As I explained earlier, the principle set out in Schuldt (and many other cases) is that a reasonable doubt does not need to bebased on the evidence; it may arise from an absence of evidence or a simple failure of the evidence to persuade the trier of fact to therequisite level of beyond reasonable doubt. The Court has twice, in Schuldt and B. (G.), explained the proper basis of the decision in Wild.

It is only where a reasonable doubt is tainted by a legal error that appellate intervention in an acquittal is permitted.[19] [32] While it is sometimes difficult to distinguish between a misapprehension of evidence that raises a question of law and aquestion of fact, the prevailing jurisprudence is that it is a question of fact when the critical issue is the assessment of credibility. In thisrespect the observations of Mainella J.A. in R. v. Jovel are apposite:

[34] In R v Whiteway (BDT) et al, 2015 MBCA 24, the following

summary was provided as to what is, and what is not, amisapprehension of the evidence (at para 32): A misapprehension of evidence may refer to a mistake as to the substance of evidence, a failure to consider evidence relevant to amaterial issue or a failure to give proper effect to evidence (R. v. Morrissey (R.J.) (1995), (ON CA), 80 O.A.C. 161 atpara. 83; and R. v. Sinclair, 2011 SCC 40 at para. 13, [2011] 3 S.C.R. 3). A misapprehension of the evidence is not to be confused with adifferent

interpretation of the evidence than the one adopted by the trial judge (R. v. Lee, 2010 SCC 52 at para. 4, [2010] 3 S.C.R. 99). Itis insufficient that the judge may have misapprehended the evidence; the error must be readily obvious (Sinclair at para. 53). [35] As part of its duty to not usurp the function of a trial judge, an appellate court cannot characterise a trial judge’s

interpretation ofevidence as a misapprehension simply because it does not agree with it, it raises some unease or concern, or it may be a mistake (see R vCJ, 2019 SCC 8, adopting 2018 MBCA 65 at paras 67-68; and Sinclair at para 53). This is particularly the case when the

interpretationof evidence is based on a credibility assessment, because assessing credibility is not a science and, given the many factors that go intosuch decisions, it is not always amenable to precise articulation by a trial judge (see Gagnon at para 20; and R v REM, 2008 SCC 51 at para 49).[20] [33] That issue does not arise in relation to

summary matters because the right of the prosecution to appeal against an acquittal isnot limited by the characterisation of the issue as a question of law. It follows in principle that the prosecution can appeal againstacquittal on any sufficient ground of unreasonableness in fact or law. If in principle the prosecution may appeal in a

summary matteragainst an unreasonable acquittal, it is unnecessary to consider in general terms what might constitute an unreasonable acquittal except toemphasise that the basis of unreasonableness must be demonstrably sufficient to compel the conclusion that the verdict could not besustained by the evidence. [34] The survival of the prosecution’s right of appeal against an unreasonable acquittal is a vestige of the forms of appeal insummary matters before the amendments of 1976 that in various ways effectively allowed a retrial.

It is anomalous that the prosecutionright of appeal should remain but there is no doubt that this affirms a right of appeal on a question of fact, which in turn sustains aprosecution right of appeal against an unreasonable verdict that is not confined to an error of law. This is a clear difference with thenature of appeal against unreasonable verdict in indictable matters and for this reason the principles established by the jurisprudence onappeals in indictable matters cannot be transposed without qualification to appeals in

summary matters.

Can the SCAC allow a prosecution appeal against an unreasonable acquittal that is based upon a finding of reasonable doubt attrial? [35] The specific question raised in the present appeal is whether the SCAC was entitled to reverse the acquittal on the basis thatthe trial judge erred in finding a reasonable doubt on the whole of the evidence or, to put it bluntly, an unreasonable doubt. [36] If the SCAC has jurisdiction to allow a prosecution appeal against an unreasonable acquittal, it must be limited to cases inwhich the appellant can demonstrate palpable and overriding error in the process of reasoning between the evidentiary premise and thelegal conclusion of reasonable doubt.

By analogy to unreasonable findings of guilt, the jurisprudence recognises that an error of this kindwill occur either where there is no evidentiary premise to support the conclusion or where there is an evidentiary premise and theconclusion drawn from it is illogical or otherwise irrational.

Both refer to palpable and overriding errors in reasoning and in the absenceof such error the intervention of an appellate court is nothing more than a substitution of its opinion of facts for that of the trial judge.This is precisely the difference between a modern appeal and trial de novo. [37] The standard for appellate intervention against an unreasonable verdict is thus very high.[21] The SCAC is not entitled to retrymatters of fact or to substitute its view of the facts for that of the trial judge.

It is held to a high standard of deference, which implies thatin the absence of palpable and overriding error in the process of reasoning the trial judge cannot be reversed for making a mistake. Appellate review is not allowed because the appellate court takes a different view but because upon re-examination of the evidence theappellate court is satisfied that no trier of fact could reasonably have reached the conclusion under appeal. [38] In the present case the SCAC states that the trial judge made adverse inferences about the credibility of the complainant. Ifhe did, he does not say so.

What he says is that on the whole of the evidence he concludes that the evidence is not sufficiently reliable toprove guilt beyond reasonable doubt. This is a qualitative assessment of the net effect of the weight or probative value of the evidence inwhich it is impossible to detect an error of reasoning, let alone a palpable and overriding error.

A different view of the probative value ofthe evidence in the SCAC in no way implies, without more, an error by the trial judge. [39] In Labadie Watt J.A. expressed considerable skepticism about the possibility of a successful appeal against an acquittal on thebasis of an “unreasonable reasonable doubt.” [60] Some courts of appeal, which have acknowledged the Attorney General's right of appeal under s. 813(b)(

i) on grounds involvingquestions of fact, have held that to succeed on appeal the Attorney General must demonstrate that the acquittal was unreasonable: R. v.Gross, 2001 MBCA 175 , [2001] M.J. No. 473, 160 Man. R. (2d) 111 (C.A.), at para. 16; Multitech, at p. 149 Man. R.; R. v.Hewlin, 1999 NSCA 54 , (NS CA), [1999] N.S.J. No. 70, 174 N.S.R. (2d) 93 (C.A.), at paras. 14-16. It maybe open to doubt, however, whether an acquittal based on a reasonable doubt can be unreasonable: Hewlin, at para. 15; R. v. Schuldt, (SCC), [1985] 2 S.C.R. 592, [1985] S.C.J. No. 76, at p. 610 S.C.R.; [page110] R. v.

Biniaris, 2000 SCC 15 , [2000] 1 S.C.R. 381, [2000] S.C.J. No. 16, at paras. 32-33.[22] [40] This skepticism is entirely well placed, not because an unreasonable reasonable doubt is logically or legally inconceivable butbecause it would be rare for an appellate court to detect it without usurping the fact-finding function of the trial judge.

This would not bethe case where the unreasonable reasonable doubt has no material bearing on the ultimate issue at trial and is contradicted by other evidence, supported by no evidence or is based upon clear factual error.[23] This is compatible with the view expressed in R. v. R.P.:

[9] To decide whether a verdict is unreasonable, an appellate court must, as this Court held in R. v. Yebes, (SCC),[1987] 2 S.C.R. 168, and R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36, determine whether the verdict is one that aproperly instructed jury or a judge could reasonably have rendered.

The appellate court may also find a verdict unreasonable if the trialjudge has drawn an inference or made a finding of fact essential to the verdict that (1) is plainly contradicted by the evidence relied on bythe trial judge in support of that inference or finding, or (2) is shown to be incompatible with evidence that has not otherwise beencontradicted or rejected by the trial judge (R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at paras. 4, 16 and 19-21; R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190).[24] [41] But the present appeal is one of those rare cases.

The complainant’s testimony concerning the substantive elements of theoffence charged was not contradicted. Her credibility was not impugned in any way with respect to her testimony on these elements. Inshort, the prosecution case was unchallenged. Nevertheless, the trial judge concluded that he had a reasonable doubt on the whole of theevidence and supported this conclusion with reference to peripheral elements that in no way diminished the strength of the prosecutioncase. Moreover, his references to some of those elements were plainly erroneous.

In effect, the trial judge acquitted the respondent onthe ground that he had a reasonable doubt with respect to the reliability of the evidence as a whole that arose from perceived weaknessesrelating to matters entirely peripheral to the credible and uncontradicted evidence of guilt. There is no question, of course, that in somecases evidence on peripheral matters might have a bearing on the assessment of the probative value of the evidence as a whole but that isnot the issue in the present case.

It is arguable that the trial judge erred because there was no evidence to support his conclusion but it isprobably more accurate to affirm that his error was an error in the inference of unreliability and the conclusion of reasonable doubt on theevidence that was before the court, in which case the error might better be characterised as an error of the type in Beaudry.[25] Whether the judge’s conclusion in this case is properly characterised as an error of the type in Beaudry or the type in Lohrer,[26] or both, isultimately inconsequential in a prosecution appeal against an unreasonable acquittal on a question of fact in a

summary-convictionmatter. It was a conclusion that was unsupported by the evidence and indeed contradicted by all of the evidence on material elements ofthe charge. It was an error that excluded acquittal as a plausible outcome.

It was an error that vitiated the reasoning of the judge andrendered the verdict unreasonable. [42] The appeal judge rightly concluded that the trial judge’s acquittal on the basis of unreasonable doubt disclosed palpable andoverriding error in the judge’s evaluation of the evidence and, moreover, that the outcome at trial would likely have been different but for the error.[27] Given that the SCAC has jurisdiction over questions of law and fact, it does not matter whether the error is characterisedas one of law or fact.

The appeal judge acted within her statutory jurisdiction and committed no error in her reasons or her conclusions,including the order for a new trial. [43] The SCAC and this court have the powers afforded to an appellate court under

section 686 of the Code, including the power toorder a new trial. It is not open in this case to this court to substitute a conviction without assuming the power to retry the case. The onlyplausible option is to order a new trial. Far from inconsistent with the presumption of innocence, an order for new trial will restore thepresumption of innocence. [44] I propose to dismiss the appeal. PATRICK HEALY, J.A. [18] See Abramoff v. The Queen, 2018 SKCA 21, para. 19: “The appellant then argues the Crown may not appeal to the

summaryconviction appeal court from an “unreasonable acquittal”, given the restrictions on the accused’s right of appeal, the presumption ofinnocence, and the burden of proof. Courts have questioned the Crown’s right to appeal on such a basis but have not determined thispoint: see R v Biniaris, 2000 SCC 15 at paras 32-33, [2000] 1 SCR 381; R v Paice, 2005 SCC 22 at para 22, [2005] 1 SCR 339; Labadieat para 60; R v Cullen, 2015 SKCA 142 at para 20, 472 Sask R 123.” See also R. v. Vesty, 2019 SKQB 49, paras. 6-10. [23] See R. v. Century 21 Ramos Realty Inc. & Ramos (1987), (ON CA), 58 O.R. (2d) 737 (C.A.), application for leave dismissed (S.C.C. File No 20365): “The

summary conviction appeal court is not empowered to retry the case and on a review ofthe record to substitute its findings on credibility for those of the trial judge; the

summary conviction appeal court is entitled to set asidean acquittal on questions of fact only where the verdict is unreasonable or cannot be supported by the evidence: R. v. Colbeck, supra; R.v. Medicine Hat Greenhouses Ltd. and German (1981), 1981 ABCA 114 , 59 C.C.C. (2d) 257, [1981] 3 W.W.R. 587, 26 A.R.617; R. v. Gillis, supra.” See also R. v. Pierone, 2018 SKCA 30, paras. 20-22; R. v. Fillatre, (NL CA), para. 2.