R. v. Martin, 2021 NLCA 48

Corey Martin (appellant) v. Her Majesty the Queen(respondent) (19/59) Indexed As: R. v. Martin 2021 NLCA 48 7 C.A.N.L.R. 61 Court of Appeal of Newfoundland and Labrador Fry C.J.N.L., Welsh and Goodridge JJ.A. August 24, 2021

Summary: Corey Martin was convicted of sexually assaulting his former common law partner. He appealed the conviction, arguing that the reasonsgiven by the trial judge were insufficient as they failed to address why the trial judge was left with no reasonable doubt as to Mr.Martin’s guilt, despite his denial of any sexual contact. Held: Appeal dismissed. Goodridge J.A. (Fry C.J.N.L. and Welsh J.A. concurring): The trial judge’s reasons for finding Mr. Martin guilty were sufficient.

Thereasons demonstrate that the trial judge had seized the substance of the critical issue of reasonable doubt in the context of a credibilityassessment. The trial judge gave adequate reasons for accepting the complainant’s evidence, rejecting Mr. Martin’s evidence, andexplaining why he was not left with a reasonable doubt (paragraphs 12-22). Cases cited: R. v. W. (D.), (SCC), [1991] 1 S.C.R. 742 (S.C.C.) R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788 R. v. Vokurka, 2013 NLCA 51, 339 Nfld. & P.E.I.R. 248, aff’d 2014 SCC 22, [2014] 1 S.C.R. 498 R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3 R. v.

H.S.B., 2008 SCC 52, [2008] 3 S.C.R. 32 R. v. Ramos, 2020 MBCA 111, aff’d 2021 SCC 15 R. v. G.R.P., 2009 NLCA 37, 287 Nfld. & P.E.I.R. 56 R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5 Counsel: Derek J. Hogan, for the appellant; Kathleen O’Reilly, for the respondent. The appeal was heard on April 14, 2021 before Fry C.J.N.L., Welsh and Goodridge JJ.A.

The following judgment was filed on August 24, 2021 by Goodridge J.A. for the Court. ______________________________________________________________ Goodridge J.A.: [1] The appellant appeals a conviction for sexually assaulting his former common law spouse. The decision turned largely on adetermination of credibility, with the appellant denying any sexual contact.

As the sole ground of appeal, the appellant submits that thereasons for the decision given by the trial judge are insufficient because they fail to address why the trial judge was left with noreasonable doubt, despite the appellant’s denial of any sexual contact. [2] I am satisfied that the reasons were sufficient and I would dismiss the appeal.

LAW [3] The principle of reasonable doubt requires a trial judge to acquit if he or she does not believe the accused's evidence but still hasa reasonable doubt as to guilt after considering that evidence in the context of the evidence as a whole (Cory J., writing for the majority,in R. v. W. (D.), (SCC), [1991] 1 S.C.R. 742, at 757 (S.C.C.)). Cory J. suggested appropriate instructions (equallyapplicable in a jury trial or a judge alone trial) on the issue of credibility to ensure that the trier of fact remains focused on the principleof reasonable doubt (W.(D), at 757-758).

These suggested instructions included three steps, the second of which stated, “if you do notbelieve the testimony of the accused but you are left in reasonable doubt by it, you must acquit”. [4] If there is no acquittal, then the reasons for conviction should be sufficient to allow the accused to know why the trial judge wasnot left in reasonable doubt (Charron J., writing for a unanimous Court, in R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, atparagraph 25).

This degree of sufficiency does not require the trial judge to set out every finding or conclusion in the process of arrivingat the verdict (Hoegg J.A., writing for the majority, in R. v. Vokurka, 2013 NLCA 51, 339 Nfld. & P.E.I.R. 248, at paragraph 26, aff’d2014 SCC 22, [2014] 1 S.C.R. 498). In addition, a trial judge is not required to recite the three steps set out in W. (D.), but the reasonsmust demonstrate that the judge had seized the substance of the critical issue of reasonable doubt in the context of a credibilityassessment (McLachlin C.J., writing for a unanimous Court, in R. v.

R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at paragraph 46). [5] So long as the trial judge fulfills the purposes of giving reasons — to explain the decision to the parties, to provide publicaccountability and to permit meaningful appellate review — a court of appeal is not justified in interfering with the verdict on the groundof insufficiency of reasons (McLachlin C.J., writing for a unanimous Court, in R. v. H.S.B., 2008 SCC 52, [2008] 3 S.C.R. 32, atparagraph 2, and Mainella J.A., writing for the majority, in R. v.

Ramos, 2020 MBCA 111, at paragraph 46, aff’d 2021 SCC 15). [6] Dinardo laid out the approach that appeal courts must adopt when reviewing the sufficiency of reasons: [23] The majority rightly stated that there is nothing sacrosanct about the formula set out in W. (D.). Indeed, as Chamberland J.A.himself acknowledged in his dissenting reasons, the assessment of credibility will not always lend itself to the adoption of the threedistinct steps suggested in W. (D.); it will depend on the context (para. 112). What matters is that the substance of the W. (D.) instructionbe respected.

In a case that turns on credibility, such as this one, the trial judge must direct his or her mind to the decisive question ofwhether the accused's evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt. Putdifferently, the trial judge must consider whether the evidence as a whole establishes the accused's guilt beyond a reasonable doubt.

Inmy view, the substantive concerns with the trial judge's decision in this case can better be dealt with under the rubric of the sufficiency ofhis reasons for judgment. … [25] Sheppard [2002 SCC 26, [2002] 1 S.C.R. 869] instructs appeal courts to adopt a functional approach to reviewing the sufficiencyof reasons (para. 55).

The inquiry should not be conducted in the abstract, but should be directed at whether the reasons respond to thecase's live issues, having regard to the evidence as a whole and the submissions of counsel … An appeal based on insufficient reasonswill only be allowed where the trial judge's reasons are so deficient that they foreclose meaningful appellate review … [26] At the trial level, reasons "justify and explain the result" (Sheppard, at para. 24).

Where a case turns largely on determinations ofcredibility, the sufficiency of the reasons should be considered in light of the deference afforded to trial judges on credibility findings.Rarely will the deficiencies in the trial judge's credibility analysis, as expressed in the reasons for judgment, merit intervention onappeal.

Nevertheless, a failure to sufficiently articulate how credibility concerns were resolved may constitute reversible error … As thisCourt noted … the accused is entitled to know "why the trial judge is left with no reasonable doubt" … (citations omitted) [7] The key points relevant to the current matter, and arising from the above authorities, include: • the reasons must demonstrate that the judge had seized the substance of the critical issue of a reasonable doubt in thecontext of a credibility assessment; • sufficiency of the reasons should be considered in light of the deference afforded to trial judges on credibility findings; • a trial judge is not required to set out every finding or conclusion in the process of arriving at the verdict; • rarely will the deficiencies in the trial judge's credibility analysis merit intervention on appeal; • a failure to sufficiently articulate how credibility concerns were resolved may constitute reversible error; and

• the accused is entitled to know why the trial judge is left with no reasonable doubt. BACKGROUND [ 8 ] The trial was relatively brief, with evidence completed in one day, and closing summations completed in part of a second day. There were four witnesses, including, the appellant, the complainant, their 14-year-old child, and a police officer. [ 9 ] The appellant and the complainant had been cohabiting in a common law relationship for 25 years.

The complainant described the relationship as “not good”. [ 10 ] The complainant testified that on the afternoon of August 8, 2017 she was at home getting ready to attend a bachelorette party; the appellant expressed a desire to have sex; the complainant refused; the appellant applied force and engaged in non-consensual sexual intercourse. Her relevant testimony stated: Q. … if you could just go through with detail exactly what happened? A. Okay. I was in the bedroom, getting ready to have a shower to go to St. John’s to see my daughter. He came into the house and wanted to have sex, and I said no.

And he just kept pursuing. He wanted to, and I was like, “No. I’m getting ready, I’m going. No.” And he said, “Well, I’m going to anyways.” I said, “No. I don’t want to.” He pushed me down onto the bed, he forced my legs back with his legs and arms and he held me down, he pulled my pants down, he had sex with me. When he was done, he got up, he walked out, and he turned back, and he said, “You deserved it”. … (Transcript, at 34) [ 11 ] The appellant testified that this evidence from the complainant was false, and that there was no request for sex, no attempt at sex, and no sexual contact.

His relevant testimony stated: Q. Did you have sex with [the complainant] the day that she left? A. No. Q. Did you ask her to have sex with you the day she left? A. Not that I recall, because I was, like, going around the door doing something, if I am not mistaken, I was sawing wood or full of grease or something. I am always doing something out around the shed. Q. What do you have to say of her evidence that you forced yourself on her sexually? What do you have to say to that? A. She is telling lies. Q. Okay. Did that--did you have sex with her that day? A. No. Q. Did you try to have sex with her? A. No. Q.

Did you want to have with her? A. Well, I always want it. Q. Did you tell her that? Did you ask her? A. Yes, well, we--well, I don’t ask; we goes out, like you starts fooling around and that and, like-- Q. Yeah. A. --it leads to it, right? Q. But did that happen that day? A. No. Q. Okay, you are 100 percent certain about that? A.

Yes, I am 100 percent certain. (Transcript, at 97-98) ANALYSIS [ 12 ] The sole issue on this appeal, as stated above, is the trial judge’s alleged failure to address whether the appellant’s denial of any sexual contact gave rise to a reasonable doubt. [ 13 ] A failure to address whether the accused’s denial of the offence gave rise to a reasonable doubt was a factor in R. v. G.R.P. , 2009

NLCA 37 , 287 Nfld. & P.E.I.R. 56 , where this Court set aside a conviction. However, that was only one of several deficiencies in G.R.P. , which collectively established that the trial judge had shifted the burden of proof to the accused, and denied him the presumption of innocence. On its own, a failure to provide specific reasons, addressing whether the accused’s denial of the offence gave rise to a reasonable doubt, might not be problematic. What is important is that the reasons overall illustrate the correct application of the burden and standard of proof.

In G.R.P. , Wells C.J., writing the majority opinion, noted: [14] … The trial judge … did not express a significant aspect of the second [step of W.(D.) ], the entitlement of the accused to an acquittal if his testimony leaves the judge with a reasonable doubt. If the application of the burden and the standard were otherwise proper that might not be problematic. … At paragraph 11, Wells C.J. referred to comments of Abella J. in R. v.

C.L.Y. , 2008 SCC 2 , [2008] 1 S.C.R. 5 : [7] … [T]hese steps [from W.(D.) ] need not be religiously followed or articulated. … The key is whether the correct burden and standard of proof were applied, not what words were used in applying them. [ 14 ] The trial judge is presumed to know a principle as elementary as the presumption of innocence. The reasons in the current matter confirm that the trial judge knew and appreciated that principle and the correct burden and standard of proof.

In his oral reasons, he properly articulated the test from W. (D.) and the requirement of proof beyond a reasonable doubt: [T]here is absolutely no obligation on the Defence to put forward a theory in terms of what happened here. In addition, not only is there no obligation on the accused to put forward such a theory, the Court most certainly does not have to be convinced of that theory in order to find that the accused is not guilty. This is a case, of course, where the accused testified, so the Court must consider the criteria under the case of R. v.

W.D. and I will reiterate those three criteria even though they are fairly well-known. Firstly, if the court were to accept the testimony of the accused, the court must acquit the accused. Secondly, if the court does not accept the testimony of the accused, but is left in a state of reasonable doubt by that testimony, the court must acquit the accused. Thirdly, even if the court rejects the testimony of the accused, the court must still be convinced beyond a reasonable doubt of the guilt of the accused.

And, the burden is on the Crown, of course, to establish the proof of each of the essential elements beyond a reasonable doubt. The cases of Starr and Lifchus give guidance with respect to proof beyond a reasonable doubt. That standard is a proof that is closer to certainty than is the civil standard of proof, which is on a balance of probabilities.

So, against that backdrop the Court will, firstly, take a look at the evidence offered by the Defence in this case. (Transcript, at 146-147) [ 15 ] The reasons that followed this correct statement of the law demonstrate that the trial judge had seized the substance of the critical issue of a reasonable doubt in the context of a credibility assessment. [ 16 ] The judgment, as I detail below, gave adequate reasons for accepting the complainant’s evidence, rejecting the appellant’s evidence, and explaining why the judge was not left with a reasonable doubt by the appellant’s testimony. [ 17 ] In accepting the complainant’s evidence, the trial judge stated: [S]he presented her version of the events in a logical, reasonable order.

I found that her emotions as she was describing the events were certainly appropriate and what one would reasonably expect an individual would be feeling as they are recounting these events. I found that her testimony was clear in her description of the events. I did not find that her testimony was shaken or significantly contradicted on cross-examination. And I found that her testimony, most certainly, had a ring of truth about it.

The way that she described the events and the details that she described them in, to my mind, are certainly reasonable in the circumstances. … For those reasons, I find that the testimony of [the complainant] is one, not fabricated at all; two, clearly establishes a nonconsensual forcing by the accused of himself on [the complainant] for sexual purposes in the manner that she described in her testimony. (Transcript, at 154 and 157) [ 18 ] In rejecting the appellant’s evidence, the trial judge noted the following: • “inconceivable” that the appellant would be nonchalant, as he claimed, about the prolonged lack of sex in the relationship, considering his admitted desire to have sex all the time. • “I cannot imagine that this [prolonged lack of sex] would be something that he just brushed off as something he would have to put up with or something that he is not going to question.

That really does not make any sense at all in these circumstances.” • Not believable – “strikes me as very, very odd” -- that the appellant would be able to recall exact details of what his son was doing throughout the day of the alleged assault since it was just an ordinary day from the past (the complaint came 17 days after the incident and appellant testified that the complainant’s story was fabricated). (Transcript, at 151-153) [ 19 ] After pronouncing, “For these reasons the Court cannot accept the testimony of Mr.

Martin” (Transcript, at 153), the judgment continues with an explanation as to why the judge was not left with a reasonable doubt by the appellant’s testimony: So then I have to go to the second part, second criterion, in R. v. W.D. and ask whether or not that testimony gives me a reasonable doubt and, again, for the reasons that I have already indicated in the primary criteria and under R. v. W.D. the testimony of Mr. Martin does not

give the Court a reasonable doubt in this case. I do not find that it is logical; I do not find that it’s reasonable; nor do I find that it makes common sense that an individual on a nondescript, usual, ordinary day, would specifically remember what someone else was doing on that day and where they were. And, it is rather convenient, it seems to me, for [Mr. Martin’s son] to have been in his room the entire day. It just strikes me as just a little too convenient that [Mr.

Martin’s son] would have been in his room and therefore this could not possibly have happened or he would have heard everything that was going on. I do not accept that testimony. Now, having not accepted the testimony of the accused and having found that it does not give me a reasonable doubt in the circumstances I now need to consider the third criterion under R. v.

W.D. … (Transcript, at 153) [ 20 ] The judge was not left with a reasonable doubt by the appellant’s testimony because: the story was not logical; it was not reasonable for the appellant to recall details of conversations, activities, and interactions from a day in the past (17 days delay before complaint was made) that was just an ordinary day from the appellant’s perspective; it was “just a little too convenient” for the appellant to recall that his son was in a nearby bedroom for the entire day of the alleged assault and heard nothing. [ 21 ] The reasons also explained why the trial judge was not concerned about the 17-day delay before the complainant reported the assault, why the trial judge rejected the testimony of the 14-year-old child, and why the trial judge rejected the appellant’s argument that the complainant’s entire story was fabricated.

The reasons conclude with the trial judge’s finding that the Crown had proven all essential elements of the offence. [ 22 ] The trial judge did not set out every finding or conclusion in the process of arriving at the verdict, but that degree of detail is not required. What the judge did set out in his reasons was adequate, and therefore passes the threshold for sufficiency. The reasons establish the connection between the verdict and the basis for it, and demonstrate that the judge had seized the substance of the critical issue of a reasonable doubt in the context of a credibility assessment.

CONCLUSION [ 23 ] The trial judge’s reasons for finding the appellant guilty were sufficient. I would dismiss the appeal. Appeal dismissed.