2013 NBCA 59, 2013 NBCA 59

COURT OF APPEAL OF NEW BRUNSWICK 154-12-CA J.N.C. APPELLANT J.N.C. APPELANT - and - - et - HER MAJESTY THE QUEEN RESPONDENT SA MAJESTÉ LA REINE INTIMÉE J.N.C. v. R., 2013 NBCA 59 J.N.C. c.

R., 2013 NBCA 59 CORAM: The Honourable Justice Richard The Honourable Justice Bell The Honourable Justice Quigg CORAM : L'honorable juge Richard L'honorable juge Bell L'honorable juge Quigg Appeal from a decision of the Provincial Court: September 26, 2012 (conviction) Appel d'une décision de la Cour provinciale : Le 26 septembre 2012 (déclaration de culpabilité) History of Case: Historique de la cause : Decision under appeal: Unreported Décision frappée d’appel : Inédite Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : s.o.

Appeal heard: June 11 and September 17, 2013 Appel entendu : Le 11 juin et 17 septembre 2013

Judgment rendered: September 17, 2013 Reasons delivered: October 24, 2013 Jugement rendu : Le 17 septembre 2013 Motifs déposés : Le 24 octobre 2013 Counsel at hearing: For the appellant: James J. Matheson For the respondent: Robert A. Murray, Q.C. Avocats à l'audience : Pour l’appelant : James J. Matheson Pour l’intimée : Robert A. Murray, c.r. THE COURT The application for leave to appeal and the appeal are allowed, the conviction is quashed, and a new trial is ordered.

LA COUR La demande d’autorisation d’interjeter appel et l’appel sont accueillis, la déclaration de culpabilité est annulée et la tenue d’un nouveau procès est ordonnée. The following is the judgment delivered by THE COURT [ 1 ] On September 26, 2012, a judge of the Provincial Court convicted J.N.C. of sexual assault ( s. 271(1) (

a) of the Criminal Code , R.S.C. 1985, c. C-46) and sexual interference ( s. 151 ). The offences were alleged to have occurred between 1997 and 2009 and to have consisted of brief touching over the clothes of a young complainant. [ 2 ] The prosecution’s sole witness to the alleged offences, the complainant, was aged 16 at the time of trial. She testified to three occasions when her great-uncle touched her breasts over her clothes for “a couple of seconds” as he was tickling her. She claimed the first incident occurred when she was very young and the last when she was 14 years old.

She also alleged that on a separate occasion her great-uncle touched her buttock area, again “over” her clothes and for a “couple [of] seconds.” [ 3 ] The complainant described the first incident as having occurred on her great-uncle’s boat when she was touring it for the first time. She did not know exactly when the incident had occurred, but thought she might have been as young as two years old. The complainant said she did not disclose any of these incidents until she was fourteen years old because she did not want to cause any pain to her grandparents (whom she considered as her parents).

The disclosure was made to her mother in the course of an unspecified argument with the complainant’s brother. As her mother was getting angry with her brother, the complainant blurted out “yeah, I kinda have a problem too” and then made the allegations against her great-uncle. [ 4 ] The accused testified at trial. He denied any sexual assault or sexual interference. He stated the incident on the boat could not have occurred when the complainant was two, as she alleged, because he only came into possession of the boat in 1999 when the complainant was 4 years old.

Given the boat’s use and storage schedule, the complainant could not possibly have been on the boat until 2000, when she was five.

[5] This case pitted the testimony of the complainant against that of the accused. It was exactly thetype of situation the Supreme Court of Canada contemplated when it devised an analytical framework for the assessment of evidence incredibility cases. The overarching principle is always that the prosecution bears the burden of establishing guilt beyond a reasonabledoubt. In a jury case, the jury should be instructed to approach these types of cases by asking themselves if they believe the accused’sdenials. If so, they must acquit.

If not, they should ask if the testimony of the accused, even if not believed, leaves them with areasonable doubt. Again, if so, they must acquit. In the third step of the analytical framework, the jury, having rejected the testimony ofthe accused and determined it did not, by itself, raise a reasonable doubt, must nevertheless be satisfied that the essential ingredients ofthe offence have been proven beyond a reasonable doubt. Only then can they convict. [6] This framework, formulated in R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742,[1991] 1 S.C.J.

No. 126 (QL), has been the subject of much jurisprudence and frequently features as a predominant ground of appealagainst conviction. Since formulating the W.(D.) framework, the Supreme Court has explained that the approach was never meant torequire a formulistic recitation of these principles, especially in judge alone cases. While trial judges are required to adhere to theprinciples espoused in W.(D.), they are presumed to know the law and to understand the presumption of innocence and the burden ofproof applicable in a criminal case: R. v. S.S., 2011 NBCA 75, 376 N.B.R. (2d) 146; R. v.

Randall, 2012 NBCA 25, 393 N.B.R. (2d) 217;R. v. Doiron, 2013 NBCA 31, 405 N.B.R. (2d) 22; and even more recently, Wilson v. R., 2013 NBCA 38, [2013] N.B.J. No. 168 (QL)and the cases cited therein.

This said, a reference to the W.(D.) framework is strongly encouraged as it will usually demonstrate that thejudge’s decision was informed by the correct principles and may give comfort to interested parties that the matter has been determinedon the basis of the reasonable doubt standard. [7] In this case, J.N.C. alleges the “trial judge erred in law in failing to assess the appellant’s ownevidence in the manner prescribed by R. v. W.(D.).” The appellant acknowledges that the judge mentioned the W.(D.) framework, but heargues the judge must do more than pay lip service to it; he must apply it.

J.N.C. invokes the recent decision in R. v. A.P., 2013 ONCA344, [2013] O.J. No, 2291 (QL), where Rouleau J.A. for the Court stated that “[c]orrectly setting out the W.(D.) approach is notdeterminative of the correctness of a decision – the critical issue is whether the reasons reflect its correct application” (para. 39). [8] This allegation was initially J.N.C.’s sole ground of appeal.

In the arguments made in supportof the ground, J.N.C. pointed to what he said was a clearly erroneous flaw in the judge’s reasoning in making a key credibility findingand stated that this bolstered his argument that the trial judge had not properly considered the W.(D.) principles. [9] Shortly after J.N.C.’s appeal was heard, the Supreme Court released its reasons in R. v.Vuradin, 2013 SCC 38, [2013] S.C.J. No. 38 (QL).

Recently, in Wilson, this Court explained the scope and effect of Vuradin: […] the decision [in Vuradin] is reached by the application of established principles, and not by the creation of new ones. It thereforewould have had no effect on our judgment in the present case. The case does illustrate how many of the principles should be applied inan appeal where the grounds allege insufficiency of reasons and the failure to properly apply the burden of proof in a criminal case. Vuradin was a sexual assault case tried before a judge alone.

The trial resulted in a conviction but the reasons for decision were “sparseand [did] not directly address the appellant’s evidence” (para. 4). Regarding the accused’s evidence, 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 hadapplied the proper burden of proof. One judge dissented; hence, the appeal as of right to the Supreme Court.

Dismissing the appeal, Karakatsanis J. first concluded the reasons were sufficient because they told the appellant why the trial judge haddecided 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 herejected an accused’s plausible denial of the charges does not mean the reasons are deficient as long as the reasons generally demonstratethat, 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 theconvictions 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).

With respect to the application of the burden of proof, Karakatsanis J. noted that “[t]he order in which a trial judge makes credibilityfindings of witnesses is inconsequential as long as the principle of reasonable doubt remains the central consideration” (para. 21). In thatparticular case, the trial judge had adverted to the principles of W.(D.) in his reasons and had immediately proceeded to assess thecomplainant’s credibility. The reasons as a whole revealed the judge had properly applied the burden of proof and was not simplycomparing 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). 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 notprovide sufficient reasons for a credibility assessment or that the judge did not properly apply the burden of proof, should be rare. Trialjudges are presumed to know the law regarding the burden and standard of proof in a criminal case and are presumed to know how toapply it to the facts of a case.

Deference is owed given their unique position to see and hear witnesses. Appellate courts are not allowedto substitute their own assessment of credibility for that of the trial judge and must not impugn the reasons for judgment as a means ofaccomplishing 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.” They must not proceed from the perspective that the accused’s denial is plausible and then see if thejudge had dispelled reasonable doubt in giving his or her reasons: R.E.M., at para. 68. [paras. 37-41] [10] Following the release of the Supreme Court’s reasons in Vuradin, we ordered a further hearingin the present matter so that counsel could address the impact, if any, of that case.

At the same time, we questioned whether J.N.C.’sallegation of an error in the trial judge’s assessment of credibility raised a question of fact for which leave to appeal was required. Theparties returned before us on September 17 to address these issues. At that time, J.N.C. moved to amend his Notice of Appeal in orderto: (1) seek leave to appeal on a question of fact; and, (2) if leave was granted, seek reversal of the verdict or a new trial on the groundthe judge had committed a palpable and overriding error in his assessment of credibility.

The Attorney General did not oppose this lateamendment, so the motion was allowed. At the end of the hearing, we granted J.N.C. the required leave, allowed the appeal, quashed theconvictions and ordered a new trial. We indicated then that reasons for our decision would follow. These are those reasons. [11] In the present case, the three of us have reviewed the entire record and not one of us canunderstand why the trial judge was not left with a reasonable doubt. The complainant’s testimony was sketchy at best while theaccused’s denials were firm and not in any way assailed in cross-examination.

Nevertheless, Vuradin reminds us of the Supreme Court’srepeated admonitions that it is not the role of appellate courts to reassess credibility. Nor can we expect perfection in the articulation oftrial judgments. In R. v.

R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, McLachlin C.J. explained that a “trial judge’s failure to explain why herejected the accused’s plausible denial of the charges provides no ground for finding the reasons [for decision] deficient” and that wherethe judge gave reasons for accepting the complainant’s evidence and where it follows of necessity that he rejected the accused’sevidence, “no further explanation for rejecting the accused’s evidence was required” (para. 66). [12] Applying the principles that govern our role as an appellate court, we cannot give effect toJ.N.C.’s initial ground of appeal.

We cannot allow our unease or lurking doubt about the verdict, or the fact we would have reached adifferent view about the credibility of the complainant, to be the basis for overturning the verdict: Wilson, at para. 36 C.4. Withoutmore, we would be required to uphold the verdict. [13] In Wilson, what allowed the appellant to prevail was this Court’s finding that the reasons fordecision themselves demonstrated a flawed reasoning process, pursuant to which it was obvious Mr. Wilson’s testimony had never beenproperly subjected to the reasonable doubt standard.

The same cannot be said of the reasons for decision in the present case. Althoughcertainly not a model of clarity, the judge’s reasons benefit from the presumptions and inferences we are required to apply and draw. Wedo not find them impregnated with a flaw of the type that was apparent in Wilson. [14] In light of the above, we owe deference to the trial judge’s credibility findings unless J.N.C. canshow that these are the product of a palpable and overriding error: R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 10. [15] In R. v.

Arsenault, 2005 NBCA 110, 295 N.B.R. (2d) 123, at para. 26, and in other cases,including R. v. Mollins, 2011 NBCA 62, [2011] N.B.J. No. 237 (QL), at para. 14, this Court has adopted the definition of “palpable andoverriding” articulated in Waxman v. Waxman, (ON CA), [2004] O.J. No. 1765 (C.A.) (QL): The "palpable and overriding" standard addresses both the nature of the factual error and its impact on the result. A "palpable" error isone that is obvious, plain to see or clear: Housen at 246.

Examples of "palpable" factual errors include findings made in the completeabsence of evidence, findings made in conflict with accepted evidence, findings based on a misapprehension of evidence and findings offact drawn from primary facts that are the result of speculation rather than inference. An "overriding" error is an error that is sufficiently significant to vitiate the challenged finding of fact.

Where the challenged finding offact is based on a constellation of findings, the conclusion that one or more of those findings is founded on a "palpable" error does notautomatically mean that the error is also "overriding". The appellant must demonstrate that the error goes to the root of the challengedfinding of fact such that the fact cannot safely stand in the face of that error: Schwartz v. Canada, (SCC), [1996] 1

S.C.R. 254 at 281.[paras. 296-97] [ 16 ] In our view, the trial judge committed such an error in the assessment of credibility in this case. Recall that the complainant testified the first incident would have occurred on her great-uncle’s boat.

The trial judge went to great lengths to explain that, although he did not believe the incident had occurred when the complainant was two years old, as she had alleged, “the standard of the reasonable adult is not necessarily appropriate in assessing the credibility of young children” and that “inconsistencies particularly as to peripheral matters such as time and location should be considered in the context of the age of the witness at the time of the events to which she is testifying.” There is nothing wrong with those statements.

However, the trial judge went on to find he was impressed by the complainant’s specific recollection of how she embarked onto the boat and with her description of the vessel, and, because she was able to give those descriptions , the judge says he was left with no doubt as to her credibility. To use his words: “they [the complainant’s details regarding the boat] leave no doubt in my mind as to her credibility of that incident, as to what had happened on that boat as she described it in her testimony.” Therein lies the palpable error.

The judge’s credibility finding assumes two things: (1) that the complainant accurately described the accused’s boat; and, (2) that, but for the event to which she testified, she would not have had the knowledge necessary to describe the boat. However, this reasoning process is flawed in the present case for two reasons. First, the complainant’s description of the boat was so generic it could have been one of virtually any boat that has a cabin.

Second, it was not open for the judge to conclude that, but for the event to which she testified, the complainant would not have had the knowledge necessary to describe the boat. This is so because there was no dispute that the complainant had been on J.N.C.’s boat. J.N.C. testified to that event and his version was at least as plausible as that of the complainant.

If the complainant had been on the boat on some innocent occasion, her description of the boat would not bolster her testimony of the event she describes as a sexual assault, that is when J.N.C. is said to have tickled her, when she was between two and five years old, and, in the process, touched her breasts for “a couple of seconds.” This is not a case where an accused denies the complainant was ever at a certain place but where the complainant can accurately describe the place in question. This is a case where the accused admits the complainant was there.

Thus, her description of the place – assuming her to have been in fact describing J.N.C.’s boat – is rendered neutral. [ 17 ] With respect, there is simply no correlation between the complainant’s description of the boat and her credibility regarding the event she describes as a sexual assault. The complainant’s knowledge of the boat was not a matter that led to the inescapable conclusion she was being truthful with respect to the acts that form the basis of the charges against the accused.

In our view, it was illogical for the judge to have concluded that, because the complainant was able to describe a boat and how she embarked, she must then be telling the truth about everything else, especially when there was evidence that neutralized the value of her descriptions. [ 18 ] Of course, our finding that the trial judge made a palpable error in his assessment of credibility is of no moment unless that error is also an overriding one. In our view, the error falls into that category.

The trial judge went to great lengths to explain how he was convinced of the “boat” incident, and thereafter simply stated he concluded the complainant was truthful regarding the other alleged incidents, without any detailed analysis of any testimony regarding these. In the circumstances, it is abundantly clear that the judge’s misguided credibility analysis regarding the boat incident affected the balance of his findings. In other words, the judge anchored his entire credibility findings on the complainant’s description of the accused’s boat.

That being a palpable error, it is also, in these circumstances, an overriding one. In the final analysis, the trial judge convicted J.N.C. because he believed the complainant, and he believed her because she could describe the boat. This is a palpable and overriding error in the assessment of credibility. [ 19 ] Of course, as an appellate court, we do not have the advantage of seeing the witnesses. As a result, despite our unease or lurking doubt about the verdict, we have no way of knowing how a credibility analysis, devoid of any palpable and overriding error, might be resolved in this case.

This is why, in the final analysis, we allowed both the application for leave to appeal and the appeal, quashed the conviction and ordered a new trial should the Attorney General choose to proceed with one. __________________________________ J.C. MARC RICHARD, J.A. WE CONCUR:

________________________________ B. RICHARD BELL, J.A. ________________________________ KATHLEEN A. QUIGG, J.A.