2023 NBCA 35, 2023 NBCA 35

COURT OF APPEAL OF COUR D’APPEL DU NEW BRUNSWICK NOUVEAU-BRUNSWICK 100-22-CA ROBERT LEE NAGLE APPELLANT ROBERT LEE NAGLE APPELANT - and - - et - HIS MAJESTY THE KING RESPONDENT SA MAJESTÉ LE ROI INTIMÉ Nagle v. R., 2023 NBCA 35 Nagle c.

R., 2023 NBCA 35 CORAM: The Honourable Chief Justice Richard The Honourable Justice Green The Honourable Justice LeBlanc CORAM : l’honorable juge en chef Richard l’honorable juge Green l’honorable juge LeBlanc Appeal from a decision of the Provincial Court: August 12, 2022 (conviction) September 15, 2022 (sentence) Appel d’une décision de la Cour provinciale : le 12 aout 2022 (déclaration de culpabilité) le 15 septembre 2022 (détermination de la peine) 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 and judgment rendered: April 18, 2023 Appel entendu et jugement rendu : le 18 avril 2023 Reasons delivered: May 25, 2023 Motifs déposés : le 25 mai 2023

Counsel at hearing: For the appellant: Ben Reentovich For the respondent: Patrick McGuinty Avocats à l’audience : Pour l’appelant : Ben Reentovich Pour l’intimé : Patrick McGuintyTHE COURT The appeal is allowed, the convictions relating tothe incidents of March 20, 2022, under ss. 267(b)and 279(2) of the Criminal Code are set aside, andacquittals are entered on those charges. Theconviction under s. 733.1(1)(

a) of the Code isundisturbed. The conviction under s. 267(

b) of theCode, relating to the incident of August 24, 2020,is set aside and a new trial is ordered. LA COUR L’appel est accueilli, les déclarations de culpabilitérelatives aux incidents du 20 mars 2022, fondéessur l’al. 267b) et le par. 279(2) du Code criminel,sont annulées et des acquittements sont prononcésà l’égard de ces chefs d’accusation. La déclarationde culpabilité fondée sur l’al. 733.1(1)

a) du Codeest confirmée. La déclaration de culpabilité fondéesur l’al. 267b) du Code, relative à l’incident du 24août 2020, est annulée et la tenue d’un nouveauprocès est ordonnée. The following is the judgment delivered by THE COURT I. Overview [1] It is rare for a trial decision to cast doubt upon a proper understanding of the fundamentaltenets of criminal law.

It is also uncommon for this Court to annul a conviction as unreasonable when that decision is rendered by ajudge of the Provincial Court, because judges of that court routinely undertake the critical tasks of assessing credibility, evaluatingevidence, and applying the law to the facts, to arrive at a definitive verdict on the charges before them. Remarkably, the present case fallswithin the realm of such extraordinary circumstances. It pertains to an appeal lodged by Robert Lee Nagle. [2] Mr. Nagle was charged with the commission of four offences set out in two informations.

Thefirst charged him with three offences under the Criminal Code, which allegedly occurred on March 19 and 20, 2022: s. 267(b) (assaultcausing bodily harm); s. 279(2) (unlawful confinement); and s. 733.1(1)(a) (breach of probation). The second information alleged thecommission of an offence on August 24, 2020, under s. 267(

b) of the Code (assault causing bodily harm). The alleged victim in allmatters was A.B., a woman with whom Mr. Nagle was in a common law relationship at the time. At the culmination of a trial, a judge ofthe Provincial Court convicted Mr. Nagle on all counts and eventually sentenced him to 12 months’ incarceration. At the hearing, Mr.Nagle’s counsel informed the Court that his client conceded the conviction for breach of probation under s. 733.1(1)(

a) of the Code. [3] In his appeal against conviction, Mr. Nagle raises several grounds. Most, though not all, areconceded. Crown counsel’s many concessions illustrate the discharge of his duty to serve the public interest by upholding the law andseeking justice rather than securing convictions at all costs, a duty which Crown counsel are expected to perform “with an ingrainedsense of the dignity, the seriousness and the justness of judicial proceedings” (see Boucher v. The Queen, (SCC), [1955]S.C.R. 16, [1954] S.C.J. No. 54 (QL), per Rand J.). [4] At the conclusion of the hearing of Mr. Nagle’s appeal, we rendered an oral decision allowing

it. The convictions under ss. 279(2) and 267(

b) of the Code , relating to incidents that occurred in March 2022, were set aside and acquittals entered on those charges. The conviction under s. 733.1(1)(

a) of the Code was undisturbed. The conviction under s. 267(

b) of the Code , relating to the incident of August 2020, was set aside and a new trial was ordered on that charge. At the time, we indicated that reasons for our decision would follow. These are those reasons. II. Background [ 5 ] At the time of the incidents described below, Mr. Nagle and A.B. were common law partners and had a relationship described during the trial as “problematic” and “toxic.” A. Incidents of March 19 and 20, 2022 [ 6 ] Despite conflicting testimony in some respects, the essential facts are the following. A.B. had been staying at Mr.

Nagle’s residence since December 2021, but an interaction between the two on March 18, 2022, caused her to leave the residence, leaving behind some of her personal belongings. The next day, she returned to Mr. Nagle’s residence, having arranged for a friend, R.L., to be present to “support” Mr. Nagle should “things” not get resolved or further conflict were to ensue. [ 7 ] Once at the residence, they argued and A.B. became very loud. Mr. Nagle made allegations against her, and she decided to leave, just wanting her belongings returned to where she was staying. As she was in the process of leaving, Mr.

Nagle believed she had his keys and other belongings of his and followed her down the stairs to retrieve them. As A.B. was leaving, Mr. Nagle slammed the door shut while her hand was on the door frame. When Mr. Nagle saw A.B.’s hand had been jammed, he ran upstairs to get an icepack. [ 8 ] Mr. Nagle testified that he did not see A.B.’s hand on the doorframe and that he slammed the door shut because A.B. was loud, fearing what impact her yelling would have on his tenants and neighbours. R.L. also testified that A.B. was being very loud and that Mr. Nagle shut the door wanting to avoid the neighbours getting upset.

A.B. denied being loud or raising her voice. In her testimony, she surmised Mr. Nagle slammed the door to keep her inside the house. Of critical importance regarding the charge of assault causing bodily harm, A.B. testified she did not believe Mr. Nagle intended to slam the door on her hand and that, possibly, he had not seen her hand on the doorframe. Two other witnesses said they heard arguing and raised voices that night, noting that a female voice was the loudest. [ 9 ] A.B. ultimately left Mr. Nagle’s residence that evening but returned there very early in the morning of March 20, 2022.

The door was locked, and she knocked until she was let in. Shortly thereafter, the police came to Mr. Nagle’s door. At this time, Mr. Nagle told A.B. to “remember the plan” and hide behind the refrigerator. A.B. herself described the “plan” as one conceived by Mr. Nagle some time prior and one to which she had agreed to avoid the police seeing both of them together. Mr. Nagle acknowledged they planned to hide A.B. if the police attended at his residence, due to her outstanding arrest warrants and his no-contact order. To that end, Mr.

Nagle pulled out the refrigerator and A.B. got behind it and pulled it back into place while he answered the door. A.B. explained that she hid behind the refrigerator to avoid any trouble for Mr. Nagle; she was hoping the “plan” would work and that they could eventually work through their issues. She stated she acquiesced to the “plan” because she loved him, wanted him to be happy and did not want him to get into more trouble. [ 10 ] The police found A.B. behind the refrigerator and took her to the police station.

When the police noticed her hand was injured, she was taken to the hospital, where it was determined that two of her fingers had fractures. B. Incident of August 24, 2020 [ 11 ] A.B. also testified about an incident which allegedly occurred on August 24, 2020, when she and Mr. Nagle were arguing upon their return to his residence. A.B. stated that she was being loud, something to which Mr. Nagle is sensitive because of his tenants, and that he pushed her on the back stairway. According to A.B., Mr.

Nagle held her down by forcefully squeezing her and covering her mouth; she said during this time she heard a pop in her shoulder. After quieting down, A.B. ran up the stairs, through the front door and ran away. A.B. acknowledged using speed and consuming vodka that day, whereas Mr. Nagle was intoxicated on beer. She said she recalled the events of this day because it was Mr. Nagle’s birthday. A.B. attended at the hospital the next day. She testified that, at the hospital, she made up a story as to what had occurred. During cross-examination, A.B. acknowledged

that between August 24, 2020, and March 20, 2022, she had provided police with KGB statements regarding other assaults but had never mentioned this one. [ 12 ] Mr. Nagle testified he was not with A.B. on his birthday but had spent the previous evening with her. He testified as to an altercation with A.B. resulting in a scar behind his right ear. According to Mr. Nagle, while at a location with other people, he heard A.B. yelling. She then headed toward him and punched, scraped, and scratched him.

As he was trying to hold her back, one of A.B.’s hands got loose and she scratched the back of his neck, leaving a scar behind his right ear. During this altercation, they tumbled and fell, and this is when her shoulder was injured. He later found out that A.B. had seen a message on his Facebook page from a woman he had previously dated. Mr. Nagle also explained that, while walking home after the altercation, at a street corner she suddenly started running back to the location they had left while yelling “rape.” At this point, Crown counsel objected to Mr.

Nagle’s testimony as hearsay evidence, and the Court ruled the evidence was not relevant. C. The convictions and sentencing [ 13 ] In her decision, the judge convicted Mr. Nagle on all four counts. He was eventually sentenced to 12 months’ incarceration, less 270 days of remand credit since being taken into custody on March 20, 2022. Counsel informed us Mr. Nagle completed his sentence. III. Grounds of Appeal [ 14 ] Mr. Nagle raised several grounds of appeal, most, but not all, of which were conceded by Crown counsel. Those grounds are the following: A.

Was the conviction under s. 279(2) of the Code unreasonable, considering the evidentiary record before the judge? B. Was the conviction under s. 267(

b) of the Code , relating to the March 19, 2022, incident unreasonable, considering the evidentiary record before the judge? C. Did the judge commit an error in law by ruling that absent exculpatory evidence, the convictions had to stand, thereby reversing the onus of proof? D. Did the judge misapprehend the evidence to a degree such that it resulted in a miscarriage of justice, specifically by: i. Finding that Mr. Nagle failed to provide an explanation for closing the door although he had provided a clear one ; and ii. Finding that R.L. lacked credibility but then using his evidence to undermine Mr.

Nagle’s credibility? E. Did the judge commit errors in law resulting in a miscarriage of justice, including: i. Limiting cross-examination of A.B. on her prior criminal history; ii. Questioning Mr. Nagle in a manner constituting an improper intervention which compromised trial fairness; iii. Limiting Mr. Nagle’s evidence based on “hearsay” statements by A.B., notwithstanding that A.B. had already testified; and

iv. Relying on answers to improper “oath helping” questions put to A.B. by Crown counsel in her assessment of A.B.’scredibility? F. Did the judge commit an error in law in using her findings that Mr. Nagle lacked credibility in relation to his testimonyregarding the March 2022 charges to support her finding that he lacked credibility in his testimony regarding the August 2020 charge? G. Did the judge commit an error by imposing a publication ban contrary to law? IV. Analysis [15] The judge committed several errors of law. Mr. Nagle and Crown counsel agree on some, butnot all, of these errors.

Some, but not all, of the judge’s errors had a bearing on the outcome of Mr. Nagle’s trial. Even where there isagreement between the parties, the Court has an obligation to satisfy itself the shared position put forth by the parties is correct at law. Inthis matter, the sheer number of errors committed by the judge compels this Court, mindful of its oversight role, to comment on the mostegregious of those errors, regardless of whether they affected the outcome of Mr. Nagle’s trial. A.

The conviction for unlawful confinement under s. 279(2) of the Code [16] The essential elements to establish an unlawful confinement under s. 279(2) of the Code wererecently discussed by the Supreme Court in R. v. Sundman, 2022 SCC 31, [2022] S.C.J. No. 31 (QL). A conviction under s. 279(2)requires the prosecution to establish, inter alia, that “for any significant time period, a person is coercively restrained or directed contraryto their wishes, so that they cannot move about according to their own inclination and desire” (para. 21).

The evidentiary record beforethe judge reveals that A.B. voluntarily agreed to get, and hide, behind the refrigerator in accordance with the “plan” to which she hadagreed. The judge convicted Mr. Nagle under s. 279(2) notwithstanding this evidence. Mr. Nagle argues that the conviction under s.279(2) of the Code is unreasonable. Crown counsel agrees. So do we. [17] In R. v. C.P., 2021 SCC 19, [2021] S.C.J. No. 19 (QL), the Supreme Court reiterated theunreasonable verdict standard on appeal where a trial judge is sitting alone and convicts the accused.

There are two pathways for anappeal court to find a verdict was unreasonable: When a verdict is reached by a judge sitting alone and explained in reasons for judgment, there are two bases on which a court of appealmay find the verdict unreasonable. First, a verdict is unreasonable if it is not one that a “properly instructed jury acting judicially, couldreasonably have rendered” (R. v. Biniaris, 2000 SCC 15 , [2000] 1 S.C.R. 381, at para. 36, quoting R. v. Yebes, (SCC), [1987] 2 S.C.R. 168, at p. 185).

In Biniaris, Arbour J. clarified that this standard, despite being expressed in terms of a verdictreached by a jury, also applies to the decisions of a judge sitting without a jury.

She explained, however, that review forunreasonableness on appeal is “somewhat easier when the judgment under attack is that of a single judge,” since judges give reasonswhereby the reviewing appellate court may be able to identify a flaw in the evaluation of the evidence, or in the analysis, that will serve to explainthe unreasonable conclusion reached, and justify the reversal. [para. 37] Arbour J.’s comments in Biniaris led to the adoption, in R. v. Beaudry, 2007 SCC 5 , [2007] 1 S.C.R. 190, and R. v.

Sinclair,2011 SCC 40 , [2011] 3 S.C.R. 3, of a narrowly expanded, second avenue of review for unreasonableness. A verdict reached bya judge may be unreasonable, even if supported by the evidence, if it is reached “illogically or irrationally” (Beaudry, at paras. 96-97, perFish J. (dissenting in the result); Sinclair, at paras. 4 and 15-17, per Fish J. (dissenting in the result), and at para. 44, per LeBel J.).

Thismay occur if the trial judge draws an inference or makes a finding of fact essential to the verdict that is plainly contradicted by theevidence relied on by the judge in support of that inference or finding, or shown to be incompatible with evidence that has neither beencontradicted by other evidence nor rejected by the trial judge (Sinclair, at paras. 4, 16 and 19-21; R. v. R.P. 2012 SCC 22 ,[2012] 1 S.C.R. 746, at para. 9).

The Beaudry and Sinclair inquiry into illogical or irrational findings or inferences is not an invitation for reviewing judges to substitutetheir preferred findings of fact for those made by the trial judge (Beaudry, at para. 98). As MacPherson J.A. noted in the Court ofAppeal, the “fact that an appeal court judge would have had a doubt when the trial judge did not is insufficient to justify the conclusionthat the trial judgment was unreasonable” (para. 67, quoting R. v. A.G., 2000 SCC 17 , [2000] 1 S.C.R. 439, at para. 29).

Nor isit an invitation to unjustifiably interfere with a trial judge's credibility assessments. A court of appeal reviewing credibility assessments inorder to determine whether the verdict is reasonable cannot interfere with those assessments unless they cannot be supported on anyreasonable view of the evidence (R.P., at para. 10; R. v. Burke (SCC), [1996] 1 S.C.R. 474, at para. 7).

The inquiryinto the logic or rationality of a judge’s essential findings under Beaudry and Sinclair is narrowly targeted at “fundamental flaws in thereasoning process” which means that the verdict was not reached judicially or in accordance with the rule of law (Sinclair, at paras. 4, 26and 77). [Emphasis added; paras. 28-30] See also Russell v. R., 2021 NBCA 19, at para. 41; Dedam v. R, 2022 NBCA 41, [2021] N.B.J.

No. 104 (QL), at para. 94. [18] We reiterate that, for a conviction under s. 279(2) of the Code, a trial judge must be satisfiedbeyond a reasonable doubt, inter alia, that “for any significant time period, a person is coercively restrained or directed contrary to theirwishes, so that they cannot move about according to their own inclination and desire” (see R. v. Sundman, at para. 21). The evidence inthis case reveals that no properly instructed jury could have reasonably decided this threshold was met.

The trial judge found that it was“much more rational, logical, and believable that [A.B.] did what she was being directed to do by Mr. Nagle, that is to hide from thepolice for fear of getting in trouble.” This finding is not consistent with A.B.’s testimony, which the trial judge professed to haveaccepted. A.B.’s testimony establishes that she voluntarily placed herself behind the refrigerator in the execution of a “plan” to which shehad agreed and the purpose of which was to protect Mr.

Nagle. [19] In finding that it was “rational, logical and believable” that A.B. was being “directed” by Mr.Nagle to do what she did, the judge undoubtedly considered the toxic and abusive nature of the relationship between the parties. Trialjudges cannot be faulted for assessing evidence in a contextual manner.

The judge committed no error in considering the nature of therelationship between the parties but did err by relying on this consideration to the exclusion of the overwhelming evidence establishingthat A.B. was a willing participant in the preconceived plan of hiding behind the refrigerator. [20] It is for these reasons that we agreed with both Mr. Nagle and Crown counsel that the trialjudge’s verdict regarding the charge under s. 279(2) of the Code was unreasonable, quashed the conviction, and entered an acquittal onthis charge. B. The conviction for assault causing bodily harm under s. 267(

b) of the Code relating to the incident of March 19, 2022 [21] An assault, as defined in the Code, can occur only where, inter alia, the accused personintentionally applies force to another person, without that person’s consent (s. 265(1)). In the same context, the word “intentionally” hasbeen interpreted to include recklessness (see R. v. D.J.W., 2011 BCCA 522, [2011] B.C.J. No. 2463 (QL), at para. 70, aff’d on appeal tothe Supreme Court of Canada at 2012 SCC 63, [2012] 3 S.C.R. 396, at para. 1).

Consequently, an assault may occur where a personrecklessly applies force to another person, without that person’s consent. A person engages in recklessness where they are subjectivelyaware of the risk associated with their actions and act in disregard of that risk (see Watts v. R., 2022 NBCA 34, [2022] N.B.J. No. 160(QL), at para. 28). [22] In the context of this appeal, and in relation to the incident of March 19, 2022, the judge couldconvict Mr. Nagle under s. 267(

b) of the Code if satisfied that:

(1) Mr. Nagle was aware of the risk that slamming the door would resultin a non-consensual application of force to A.B.’s body; and

(2) Mr. Nagle nevertheless proceeded to slam the door, thereby disregardingthe risk of which he was aware. [23] At trial, all parties, including A.B. herself, gave evidence consistent with the notion that Mr.Nagle did not “intend” to close the door on A.B.’s hand, stating that the slamming of the door appeared to be “accidental,” and that Mr.Nagle did not do so “on purpose.” In his written submissions, Crown counsel argued that, while this evidence speaks to whether Mr.Nagle purposely slammed the door, it does not speak to whether he recklessly did so.

He argued the evidence established that A.B.opened the door in a small and confined space and while in the process of her exit from the premises, Mr. Nagle rushed down the stairsand slammed the door on her hand. He argued the evidence could give rise to a possible inference that Mr. Nagle was subjectively awarethat slamming the door could cause an assault upon A.B. yet proceeded to slam the door despite this. He further argued that, while thisinference may not be one this Court would have drawn, it was nonetheless an inference which was available for the judge to make.

[24] On appeal, the issue is whether the inference articulated by Crown counsel was one that noproperly instructed jury could reasonably have drawn, thus rendering the conviction unreasonable. Mr. Nagle testified he did not seeA.B.’s hand on the doorframe and A.B., herself, testified not only that she did not believe Mr. Nagle intended to slam the door on herhand, but also testified that she was unsure he had seen her hand on the doorframe. Based on the whole of the evidentiary record beforethe judge, we can come to no other conclusion but that an inference that Mr. Nagle was reckless was not one available for the judge tomake and that her conviction of Mr. Nagle under s. 267(

b) of the Code in relation to the incident of March 19, 2022, was unreasonable. [25] It is for these reasons that we allowed Mr. Nagle’s appeal, quashed the conviction, and enteredan acquittal on this charge. C. Reversal of the onus of proof [26] Mr. Nagle’s contention that the judge reversed the onus of proof is grounded in the judge’sconclusion, which she articulated as follows: […] While Mr. Nagle has offered the Court an alternate version of events, it does not have an air of reality, is not credible, and is notreliable.

Therefore, while it remains possible that something other than what was put forward by the Crown occurred on both dates, Mr.Nagle’s evidence alone has not convinced me that it is a reasonable possibility, nor has any evidence put forward by Mr. Nagle on hisbehalf. Therefore, the convictions stand. […] [Emphasis added; Appeal Book, p. 35] [27] Crown counsel acknowledged a compelling basis for Mr. Nagle’s submission and theproblematic nature of the judge’s comment, which contradicts the fundamental principle of the presumption of innocence.

Crowncounsel further acknowledged having struggled in articulating a response to this ground of appeal and urged the Court to read the judge’sdecision in a functional and contextual manner (see R. v. G.F., 2021 SCC 20, [2021] S.C.J. No. 20 (QL), at paras. 5 and 69).

While notminimizing the concern with the judge’s comment, Crown counsel struggled to accept the notion that the judge truly did not understandthe applicable burden of proof in the criminal law context. [28] The law requires that appellate courts read judgments rendered by trial judges in a functionaland contextual manner, while being alive to the notion that trial judges are presumed to know the law with which they work on a dailybasis (see R. v. G.F., at para. 74).

Crown counsel directed the Court to other portions of her decision that suggest she properly understoodthe applicable burden of proof. [29] The tenor of the judge's remarks suggests an element of uncertainty surrounding the sequence ofevents that transpired between the involved parties. Despite this ambiguity, she proceeded to find Mr. Nagle guilty because he had notraised any reasonable doubt. Such comments could potentially be construed to suggest that the onus was on Mr. Nagle to validate hisinnocence. [30] If this

interpretation were to hold true, it would signify a deeply troubling misapprehension of afundamental tenet of Canadian criminal law: the burden of proof lies not with the accused to establish innocence, but with theprosecution to establish guilt. While the comment necessitates more than a mere acknowledgement, having allowed the appeal on othergrounds, we will say no more. D. Palpable and overriding errors of fact [31] Mr. Nagle alleges the judge committed several palpable and overriding errors of fact related tothe incidents of March 19 and 20, 2022.

Crown counsel concedes the judge made palpable errors of fact but maintains they were notoverriding. [32] For an error to be “palpable,” it must be one that is “obvious, plain to see or clear”; an“overriding” error is one that is “sufficiently significant to vitiate the challenged finding of fact” (see J.N.C. v. R., 2013 NBCA 59,[2013] N.B.J. No. 315 (QL), at par. 15, citing Waxman v. Waxman, (ON CA), [2004] O.J. No. 1765 (C.A.); Doiron

v. R., 2020 NBCA 31, [2020] N.B.J. No. 93 (QL), at para. 62). If a palpable error is identified, the Court must then determine whetherthis error is overriding. If determined not to be overriding, the error will be ascribed little weight in the appellate analysis. Conversely, ifdetermined to be overriding, it will taint the lower court’s decision to a degree such that appellate intervention will be required. Apalpable error will be overriding if it goes to the root of the challenged finding of fact such that the trial judge’s conclusion “cannotsafely stand on the face of that error” (see J.N.C. v.

R., at para. 15, R. v. Doiron, at para. 62). The factual error or misapprehension ofevidence will warrant appellate intervention only where it could have affected the outcome (see R. v. Smith, 2021 SCC 16, [2021] S.C.J.No. 16 (QL), at para. 2). [33] It is a settled axiom of appellate review that trial judges’ findings of fact and credibility must beshown deference. This is so because trial judges have the benefit of seeing and hearing the witnesses testify at trial (see R. v. N.S., 2012SCC 72, [2012] 3 S.C.R. 726, at para. 25).

Deference will be set aside where a trial judge’s findings of fact or credibility are the productof one or more palpable and overriding errors. [34] As the errors relate to the charges of unlawful confinement and assault causing bodily harmstemming from the March 2022 incidents, and considering we allowed Mr. Nagle’s appeal on these charges, set aside those convictionsand acquitted him, we will comment no further on the judge’s errors in this regard other than to say the judge did, indeed, commitpalpable errors in her findings of fact and credibility. E. Errors resulting in a miscarriage of justice [35] Mr.

Nagle alleges the judge committed several procedural and evidentiary errors throughout thetrial which gave rise to a miscarriage of justice.

(1) Cross-examination of A.B. on her criminal record [36]

Section 12 of the Canada Evidence Act, R.S.C. 1985, c. C-5, reproduced in Appendix “A”hereto, allows counsel to cross-examine a witness on their criminal record. In addition, an accused may adduce evidence of a victim’spropensity for violence if it is relevant to a fact in issue, for example, an accused advancing a claim for self-defence. [37] At trial, during A.B.’s cross-examination, defence counsel tried to question her on her priorcriminal history, initially asking about an assault against a police officer.

Crown counsel at trial objected, stating that any aspect ofA.B.’s criminal record would be irrelevant save and except offences involving deceit or contempt of court “or something along that line,”Recall Mr. Nagle’s testimony relating to the August 2020 incident that A.B. physically assaulted him after seeing a post on his Facebookpage. Defence counsel attempted to explain to the judge the reasons for wanting to adduce evidence of A.B.’s acts of physical violence inthe past, and specifically referencing A.B.’s claim that, in August 2020, Mr.

Nagle assaulted her for no reason and her denial she hadbeen the one to physically assault him that evening. Notably, the judge cut short defence counsel’s explanation, ruling that A.B.’s priorassault conviction constituted “propensity reasoning” and was irrelevant to the current charges. Defence counsel then limited hisquestions to a public mischief charge on A.B.’s record, which she did not recall and denied committing.

Of note, in her confusion, A.B.did briefly testify about her conviction for assaulting a peace officer but based on the judge’s ruling, she would have precluded herselffrom relying on or considering A.B.’s answers regarding her conviction. [38] Crown counsel concedes, and we agree, that the judge erred in curtailing defence counsel’scross-examination of A.B. In her ruling, not only did the judge ignore the provisions of s. 12 of the Canada Evidence Act, but she alsoignored and failed to recognize that Mr.

Nagle had a right to adduce evidence of A.B.’s propensity for violence in accordance with thelegal principles set out in Regina v. Scopelleti, (ON CA), [1981] O.J. No. 3157 (QL) (see also Kitchen v. R., 2020NBCA 69, [2020] N.B.J. No. 247 (QL), at para. 23; Rossignol v. R., 2005 NBCA 11, 280 N.B.R. (2d) 312). The judge’s error was two-fold: (1) defence counsel did not require the judge’s permission to cross-examine A.B. on her criminal record; and (2) the judge failed torecognize that A.B.’s prior violent conduct was relevant to a live issue at trial and thus admissible.

The judge’s ruling is even moredisturbing considering she was the trial judge in Kitchen v. R., wherein this Court ruled that the refusal to allow defence counsel to cross-examine the victim on his propensity for violence was an error in law. [39] The curative proviso set out in s. 686(1)(b)(iii) of the Code allows a court of appeal to dismissan appeal from conviction where “no substantial wrong or miscarriage of justice has occurred.” Crown counsel submitted andemphasized he was not seeking the application of the curative proviso. Crown counsel concedes, and we agree, that the judge’s error isnot minor.

It interfered with Mr. Nagle’s ability to adduce admissible evidence with the potential of supporting and corroborating hisdefence. The proviso may only be invoked where “the error is harmless or trivial or where the evidence is so overwhelming that a

conviction was inevitable” ( see R. v. Samaniego , 2022 SCC 9 , [2022] S.C.J. No. 9 (QL) , at para. 65 ). In this case, the evidence was not overwhelming. Furthermore, the curtailment of defence counsel’s cross-examination was neither harmless nor trivial. We are of the view that the judge’s error gave rise to a miscarriage of justice, and it is on that basis that we set aside the conviction for assault causing bodily harm alleged to have occurred in August 2020, and ordered a new trial on that charge.

(2) The judge’s misunderstanding of hearsay evidence [ 40 ] Mr. Nagle raises the issue of the judge’s misunderstanding of hearsay evidence, recognizing that the disposition of his appeal does not turn on this issue. [ 41 ] There were instances at trial where Crown counsel objected to Mr. Nagle’s evidence based on hearsay during his direct testimony relating to both the March 2022 and the August 2020 incidents. On one occasion, defence counsel agreed with Crown counsel’s objection and the judge simply said she would disregard that piece of evidence relating to the March 2022 incident.

There was a similar scenario during Mr. Nagle’s direct evidence relating to the August 2020 incident, where defence counsel did not concede the objection. The judge did not rule on hearsay, simply stating that the evidence was not relevant. We have already determined, in our reasons regarding the ground of appeal pertaining to curtailment of Mr. Nagle’s cross-examination of A.B. on her criminal record, that the evidence was relevant. [ 42 ] We agree that the disposition of Mr.

Nagle’s appeal does not turn on this issue; we add, however, that the record before this Court shows the judge misunderstands the concept of hearsay evidence. Hearsay evidence consists of an out-of-court statement tendered for the truth of its contents ; it is presumptively inadmissible. The general exclusionary rule is a recognition of the difficulty for a trier of fact to assess what weight, if any, is to be given to a statement made by a person who has not been seen or heard, and who has not been subject to the test of cross-examination.

The defining features of hearsay are: (1) the fact that the statement is adduced to prove the truth of its contents ; and (2) the absence of a contemporaneous opportunity to cross-examine the declarant ( see R. v. Khelawon , 2006 SCC 57 , [2006] 2 S.C.R. 787 ). [ 43 ] In one instance, the evidence was not being offered for the truth of its contents but rather for narrative purposes and was neither inadmissible nor irrelevant. In the other instance, the evidence was being proffered at a time where A.B. had already testified.

We do not wish to speculate as to why defence counsel did not canvass with A.B., during his cross- examination of her, the reasons why A.B. told police the injury to her hand was an accident, but Mr. Nagle’s attempt to testify about how A.B. characterized her hand to police presented itself as a violation of the rule in Browne v. Dunn (1893), 1893 CanLII 65 (FOREP) , 6 R. 67 (H.L.) . [ 44 ] As the disposition of Mr.

Nagle’s appeal did not turn on this issue, we will add nothing further than to say that there is an obligation on trial judges to scrutinize the admissibility of evidence even without an objection from one of the parties. The discharge of the onerous duty imposed on trial judges to be the gatekeeper of the evidence requires them to have a correct understanding of the rules of evidence.

(3) Improper intervention by the judge [ 45 ] Mr. Nagle submits that the judge improperly intervened by asking questions of him in a way that constituted cross-examination. Crown counsel disagrees with Mr. Nagle’s characterization of the judge’s intervention. [ 46 ] During an exchange between Mr. Nagle and the judge regarding the March 2022 incident, the judge questioned Mr. Nagle’s location vis-à-vis A.B.’s location within or near the door. As Mr. Nagle attempted to answer, the judge interjected and stated, “So, you don’t know where you were?” Later, during the same exchange, the judge interrupted Mr.

Nagle in his response and stated: “that wasn’t the reason why it is you closed the door. The reason—you’re changing your answer now, Sir.” [ 47 ] This Court, in Gahan v. R. , 2014 NBCA 18 , 418 N.B.R. (2d) 104 , discussed the role of a judge in asking questions of witnesses: It is an established principle of law that a judge has “not only the right, but also the duty to put questions to a witness in order to clarify an obscure answer or to resolve possible misunderstanding of any question by a witness, even to remedy an omission by counsel, by

putting questions which the Judge thinks ought to have been asked in order to bring out or explain relevant matters”: R. v. Darlyn, [1946]B.C.J. No. 94 (C.A.) per Bird J.A., at para. 31, quoted with approval in R. v. Brouillard (SCC), [1985] 1 S.C.R. 39,[1985] S.C.J. No. 3 (QL), at para. 21. It is also accepted that the nature and extent of a judge’s participation in the examination of a witness is a matter within the judge’sdiscretion: ibid., Boucher v. Doiron, 2000 NBCA 18, 230 N.B.R. (2d) 247 , at para. 17, and Pelletier c.

St-Onge, 2001 NBCA 22, 236N.B.R. (2d) 128 , at para. 9, both per Drapeau J.A. (as he then was). Evidently, the discretion must be exercised judicially as part of thejudge's function to “keep the scales of justice in even balance between the Crown and the accused”: Darlyn, at para. 31, and Brouillard,at para. 21.

Of course, if a judge, figuratively speaking, steps down from the bench and assumes the role of counsel to the point that a reasonableperson would consider that the accused has not had a fair trial, a new trial will have to be ordered even if the verdict is not unreasonablehaving regard to the evidence and even if the judge has not erred with respect to the law and the facts: Brouillard, R. v. Palosaari, 2004BCCA 595, [2004] B.C.J. No. 2429 (QL), and R. v. Konelsky, [1989] A.J. No. 615 (C.A.).

The appearance of fairness is of asfundamental importance as fairness itself. [Emphasis added; paras. 33-35] [48] While the judge’s questions were incisive, they were not inappropriate considering the entiretyof her exchange with Mr. Nagle. One of her questions to him was exploratory in nature and related to the layout of his apartment. Whilethe judge should have been more tactful and less confrontational in her questioning of Mr. Nagle, we are unable to conclude she crossedthe line. In our view, an objective review of her interventions shows she was seeking to clarify Mr.

Nagle’s evidence rather than toimpugn it or discredit him.

(4) Impermissible use of oath helping [49] At the conclusion of A.B.’s testimony, Crown counsel asked her why she chose to “go throughthe whole process at this point now,” to which A.B. responded, in part, “because I want the truth to be heard” and “I want to recognizethat our behaviours weren’t right […]” [50] In her reasons for decision, the judge specifically recited this question and answer. Counsel forMr.

Nagle argued that the specific reference to this improper questioning in her decision, while deciding A.B.’s credibility, furtherundermined trial fairness in this case. [51] While neither the question put to A.B. nor her answer were relevant, there is no indication thejudge used this evidence to bolster A.B.’s credibility.

We agree that the question should not have been asked, but our review of therecord indicates that this issue did not impact the outcome of the trial. [52] Trial judges play a critical role as gatekeepers of the evidence; it is their responsibility tointervene when obviously improper questions are put to a witness, even absent an objection from opposing counsel. F. Conflation of credibility assessments [53] As previously stated, Mr. Nagle was charged with four offences set out in two informations. Atthe outset, the judge asked counsel whether there would be separate trials.

Defence counsel advised he had prepared for two trials, andthe Crown made no motion for the trials to be joined. The judge then advised counsel that the “administration of justice would certainlydictate” the most efficient hearing of the evidence possible, and that if his only objection was a concern about the facts of the two trialsbeing confused, based on her five years of experience, she would be able to disabuse herself of “what’s not appropriate for one date foranother.” [54] Mr. Nagle now appeals the judge’s decision to proceed with a single trial, claiming there was adanger the trial judge would use Mr.

Nagle’s evidence on one information to undermine his credibility on the other information. Heclaims this concern did, in fact, materialize as the judge’s reasons for decision demonstrated no clear analysis of his testimony as itrelated to the alleged offences of March 2022 as compared to the alleged offence of August 2020.

[55] The judge had the discretion to proceed with a joint trial. Crown counsel argues that, wherethere exists a sufficient legal and factual nexus between the informations, a joint trial is permissible (see R. v. Sciascia, 2017 SCC 57,[2017] 2 S.C.R. 539, per Moldaver J., at para. 1). Although the ruling in Sciascia applies to the joinder of provincial offences andsummary conviction offences under the Code (or, presumably, other federal

summary conviction offences), the Court was clear thatconducting a joint trial was both permissible and desirable where the provincial charges and the

summary conviction charges share asufficient factual nexus and it is in the interests of justice to try them together (see also R. v. Clunas, (SCC), [1992] 1S.C.R. 595, [1992] S.C.J. No. 17 (QL)). [56] In R. v. P.E.C., 2005 SCC 19, [2005] 1 S.C.R. 290, the Supreme Court dealt with an appeal onthe issue of whether a trial judge erred by failing to deal with the evidence on each count separately when she considered the evidencerelating to other counts in assessing the credibility of the appellant in respect of a particular set of counts.

Justice Charron, for the Court,wrote: The verdict on each count of an indictment must, of course, be based on evidence admissible with respect to that count; in assessing thecredibility of each witness, including the accused, the trial judge was entitled, however, to consider the totality of the evidence given bythat witness. […] [Emphasis added; para. 1] See also R v. M.R.S., 2020 ONCA 667, [2020] O.J. No. 4577 (QL), at para. 64; R. v. J.M.B., 2019 MBCA 14, [2019] M.J. No. 31 (QL),at para. 31; R. v. Nduwayo, 2008 BCCA 255, [2008] B.C.J. No. 1132 (QL), at para. 10). [57] Mr.

Nagle’s expressed concern that the judge “demonstrated no clear analysis of his testimonyas it relates to the alleged offences from March 2022 as compared to August 2020” does not consider that, in assessing Mr. Nagle’scredibility, the judge was entitled to consider the totality of his evidence without the necessity of engaging in a detailed analysis of histestimony as it related to each of the counts. [58] This ground of appeal, as expressed by Mr. Nagle, is dismissed.

The dismissal of this grounddoes not negate the numerous errors committed by the judge, some of which involve her findings of fact and credibility, that compelledthe Court to set aside the convictions as indicated above. G. Publication ban [59] Prior to trial, the judge imposed a publication ban pursuant to s. 486.5 of the Code, reproducedin Appendix “A” hereto, prohibiting the publication of any information that could identify the victim, by prompting Crown counsel attrial to request it. Although acknowledging the publication ban had no bearing on his convictions, Mr.

Nagle appeals the imposition ofthe publication ban based on Crown counsel’s failure to provide notice it would be seeking a ban. [60] The regime under s. 486.5 of the Code contemplates specific steps to be taken for a publicationban to be imposed, most notably a written application. Crown counsel acknowledges that there was no compliance with the noticeprovision but argues that this ground of appeal is irrelevant. [61] We agree that non-compliance with the notice provision did not prejudice Mr. Nagle’s interestsat trial.

That said, we take the opportunity to remind trial judges that a publication ban is the exception and not the rule. Parliament hasdetermined that, for specific offences under the Code that are highly personal in nature or for witnesses who present a high degree ofvulnerability, a publication ban is appropriate. The open court principle otherwise limits restrictions on publication, and most criminaloffences do not attract a publication ban. This ground of appeal is dismissed. V. Disposition [62] For the reasons articulated above, at the close of the hearing of Mr. Nagle's appeal, we allowedMr.

Nagle’s appeal, set aside the convictions relating to the incidents of March 20, 2022, under ss. 267(

b) and 279(2) of the Code, andentered acquittals on those charges. The conviction under s. 733.1(1)(

a) of the Code was undisturbed. In addition, the conviction under s.

267(

b) of the Code , relating to the incident of August 24, 2020, was set aside and a new trial was ordered. [ 63 ] Anticipating that the release of these reasons might prevent future errors of the type addressed herein, we invoke s. 24(2) of the Official Languages Act , S.N.B. 2002, c. O-0.5 , and direct that the decision be published first in the English language, and thereafter, at the earliest possible time, in the French language. APPENDIX A /

ANNEXE A Canada Evidence Act , R.S.C. 1985, c. C-5

Loi sur la preuve au Canada , L.R.C. 1985, ch. C-5 Examination as to previous convictions 12

(1) A witness may be questioned as to whether the witness has been convicted of any offence, excluding any offence designated as a contravention under the Contraventions Act , but including such an offence where the conviction was entered after a trial on an indictment. Proof of previous convictions

(1.1) If the witness either denies the fact or refuses to answer, the opposite party may prove the conviction. Interrogatoire sur condamnations antérieures 12

(1) Un témoin peut être interrogé sur la question de savoir s’il a déjà été déclaré coupable d’une infraction autre qu’une infraction qualifiée de contravention en vertu de la

Loi sur les contraventions , mais incluant une telle infraction si elle aboutit à une déclaration de culpabilité par mise en accusation. Preuve de condamnations antérieures

(1.1) Si le témoin nie le fait ou refuse de répondre, la

partie adverse peut prouver cette déclaration de culpabilité. Criminal Code , R.S.C. 1985, c. C-46 Code criminel , L.R.C. 1985, ch. C-46 Order restricting publication — victims and witnesses 486.5

(1) Unless an order is made under

section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice. Ordonnance limitant la publication — victimes et témoins 486.5

(1) Sauf dans les cas où une ordonnance est rendue en vertu de l’article 486.4, le juge ou le juge de paix peut, sur demande du poursuivant à l’égard d’une victime ou d’un témoin ou sur demande de la victime ou d’un témoin, rendre une ordonnance interdisant la publication ou la diffusion de quelque façon que ce soit de tout renseignement qui permettrait d’établir l’identité de la victime ou du témoin, s’il est d’avis que cela est dans l’intérêt de la bonne administration de la justice.