R. v. Moores, 2020 NLCA 23

Lloyd Moores (appellant) v. Her Majesty the Queen (respondent) (19/105) Indexed As: R. v. Moores 2020 NLCA 23 5 C.A.N.L.R. 560 Court of Appeal of Newfoundland and Labrador Welsh, O’Brien and Goodridge JJ.A. July 3, 2020

Summary: On April 10, 2019 Mr. Moores was convicted of three counts of assault, one count of sexual assault and two counts of uttering threats.All charges were based on domestic violence occurring in the family home against Mr. Moores’ former partner and her young daughter.Mr. Moores appeals the convictions on the basis that the trial judge erred in admitting evidence of his general character and pastbehaviour, and relied on same to reject Mr. Moores’ testimony denying the allegations. Held: Appeal dismissed. Goodridge J.A.: The alleged errors concern the trial judge’s permitting and/or considering: (1) the Crown’s cross-examination of Mr.Moores regarding (

a) conduct underlying a prior assault conviction, (

b) a previous assault charge (no conviction) and a resulting peacebond; (2) a prior assault conviction, even though the Crown did not prove the prior conviction, (3) a prior court imposed peace bond,even though the Crown did not prove its existence (paragraph 5). No error resulted from allowing the Crown’s cross-examination regarding conduct underlying a previous assault conviction.

Theappellant had adduced evidence of his good character providing the opportunity for the Crown to seek to cross-examine on prior specificacts of misconduct; prejudicial effect was minimized as the trial was by judge alone (paragraphs 7-18). No error resulted from allowing the Crown’s cross-examination on a previous charge (with no conviction), where the trial was by judgealone, character was in issue, no objection was raised by defence counsel, and the evidence was not used to infer guilt based on pastmisconduct (paragraphs 19-30).

No error resulted from the trial judge accepting that a previous conviction was proved by way of acknowledgement by the convictedparty (paragraphs 31-34). The trial judge erred in accepting that the previous conviction had been withdrawn in exchange for a peace bond where the evidencebefore the court did not establish the existence of the peace bond. However, this error did not result in a substantial wrong or miscarriageof justice (paragraphs 35-39). Cases cited: R. v. Morris, (SCC), [1979] 1 S.C.R. 405 R. v. Borden, 2017 NSCA 45 R. v. Corbett, (SCC), [1988] 1 S.C.R. 670 (S.C.

C) R. v. Brown (1999), (ON CA), 137 C.C.C. (3d) 400 (Ont. C.A.) R. v. L.K.W. (1999), (ON CA), 138 C.C.C. (3d) 449 (Ont. C.A.)

R. v. N.A.P. (2002), (ON CA), 171 C.C.C. (3d) 70 (Ont. C.A.) R. v. Koufis, (SCC), [1941] S.C.R. 481 (S.C.C.) R. v. McNamara (1981), (ON CA), 56 C.C.C. (2d) 193 (Ont. C.A.), aff’d (SCC), [1985] 1 S.C.R. 662(S.C.C.) R. v. Tilley, (ON CA), [1953] O.R. 609, 106 C.C.C. 42 (Ont. C.A.) R. v. Conway (1985), (ON CA), 17 C.C.C. (3d) 481 (Ont. C.A.) R. v. Deyardin (1998), (QC CA), 119 C.C.C. (3d) 365 (Que. C.A.) R. v. Khan, 2001 SCC 86 R. v. Van, 2009 SCC 22 Statutes considered: Criminal Code, sections 666, 730(3), 667, 686(1)(b)(iii) Canada Evidence Act, R.S.C., 1985, c. C-5,

section 12 Counsel: Derek J. Hogan, for the appellant; and Kathleen O’Reilly, for the respondent. The appeal was heard on May 24, 2020 before Welsh, O’Brien and Goodridge JJ.A. The following judgment was filed on July 3, 2020 by Goodridge J.A. for the Court. ______________________________________________________________ Goodridge J.A.: [1] On April 10, 2019, Lloyd Moores was convicted of three counts of assault, one count of sexual assault and two counts ofuttering threats. The context of all charges is domestic violence said to have occurred within the family home during 2015; thecomplainants are Mr.

Moores’ former domestic partner, and her young daughter. [2] The former partner said Mr. Moores: sexually assaulted her by forcing a vibrator, and his penis, into her vagina; threatened herwith bodily harm after she disclosed she was pregnant; threatened her with bodily harm after she disclosed that she was leaving him;assaulted her by choking; and assaulted her by slamming a door into her leg and arm. The young daughter said Mr. Moores assaulted herby whipping her with a dishtowel and pinning her against a wall. [3] At trial, Mr. Moores denied all allegations. [4] Mr.

Moores appeals the convictions on the basis that the trial judge erred in admitting evidence of his general character and pastbehaviour, and then relying on that evidence to reject his testimony denying the allegations. [5] The alleged errors raised on this appeal are that the trial judge: • erred in permitting and considering the Crown’s cross-examination of Mr. Moores regarding conduct underlying a priorassault conviction; • erred in permitting and considering the Crown’s cross-examination of Mr.

Moores regarding a previous assault charge (noconviction) and a resulting peace bond; • erred in considering a prior assault conviction, even though the Crown did not prove the prior conviction; and • erred in considering a prior court imposed peace bond, even though the Crown did not prove its existence. [6] For the reasons set out below, I would dismiss the appeal. ANALYSIS

Permitting and considering the Crown’s cross-examination of Mr. Moores regarding conduct underlying a previous assaultconviction [7] In this matter, Mr. Moores testified during his examination-in-chief that he had no criminal convictions in Newfoundland andLabrador. That testimony amounts to evidence of good character – an attempt by Mr. Moores to project the image of a law-abidingcitizen. In R. v.

Morris, (SCC), [1979] 1 S.C.R. 405 at 437-438 (S.C.C.), Pratte J., writing for the majority, found thatan accused who made a similar representation was adducing evidence of good character: “[T]he appellant put his character in issue whenhe stated that he had never been convicted nor arrested; these statements were nothing but an attempt on his part to lead evidence of goodcharacter”. [8] If an accused adduces evidence of good character then the Crown has the right to cross-examine on prior specific acts ofmisconduct, including previous criminal convictions, and the conduct underlying those previous convictions.

The trial judge, in the aimof achieving trial fairness, has the discretion to limit that cross-examination where the prejudicial effect of the evidence elicitedoutweighs its probative value. In R. v. Borden, 2017 NSCA 45 at para. 155, Beveridge J.A. (for the court) indicated that the prejudicialeffect of the evidence elicited “must” be outweighed by its probative value to justify admission. [9] Prior to commencement of his cross-examination, Crown counsel advised the Court that, because Mr.

Moores had adducedevidence of his good character during his examination-in-chief, the Crown intended to cross-examine “about his criminal record and soon”. Defence counsel at trial (who was not counsel on appeal) made no objection, and made no application under R. v. Corbett, (SCC), [1988] 1 S.C.R. 670 (S.C.C.), to limit the extent or nature of the cross-examination. [10] In R. v. Brown (1999), (ON CA), 137 C.C.C. (3d) 400 (Ont.

C.A.), Rosenberg J.A., for a unanimous panel ofthe Ontario Court of Appeal, stated at paragraph 29, “Where an accused puts his character in issue, as this appellant clearly did, he maybe cross-examined on prior specific acts of misconduct” (citations omitted). [11] In R. v. L.K.W. (1999), (ON CA), 138 C.C.C. (3d) 449 (Ont.

C.A.), Moldaver J.A., for a unanimous panel,stated that, where an accused puts his character in issue, the Crown is permitted to cross-examine regarding prior specific acts ofmisconduct including conduct underlying previous criminal convictions: [66] As a general rule, cross-examination of an accused on a prior criminal record should be restricted to the nature of the offence, thedate and place of the conviction and the penalty imposed.

Where, however, an accused places his or her character in issue, the samerestrictions do not apply and it is permissible for the Crown to cross-examine the accused on prior acts of discreditable conduct,including the details of prior convictions … (Citations omitted) [12] A similar view was expressed in R. v. N.A.P. (2002), (ON CA), 171 C.C.C. (3d) 70 (Ont. C.A.). DohertyJ.A., for a unanimous panel, indicated that, where an accused puts his character in issue,

section 666 of the Criminal Code, R.S.C. 1985,c. C-46 authorizes the Crown to cross-examine regarding conduct underlying previous criminal convictions: [32] If an accused puts his or her character in issue during examination-in-chief, the scope of cross-examination on the criminal recordpermitted by s. 666 goes beyond that allowed under s. 12 of the Canada Evidence Act. Since the cross-examination under s. 666 ispredicated on the accused having put his or her character in issue, the accused may also be questioned about the specifics underlying thecriminal convictions … (Citations omitted.) [13]

Section 666 of the Criminal Code, states: Where, at a trial, the accused adduces evidence of his good character, the prosecutor may, in answer thereto, before a verdict is returned,adduce evidence of the previous conviction of the accused for any offences, including any previous conviction by reason of which agreater punishment may be imposed. [14] Mr. Moores argues that, despite the failure of his counsel to raise objection, the trial judge, as the ultimate gatekeeper forensuring trial fairness, should have intervened to limit the cross-examination to the bare fact of the previous assault conviction.

In Mr.Moores’ view, the conduct underlying that previous assault conviction was not relevant or probative, and had significant prejudicialimpact on trial fairness; the balancing act between prejudicial impact and probative value favoured exclusion. [15] In my view, the evidence underlying the prior assault conviction as adduced by the Crown was relevant and probative inresponding to Mr. Moores’ character evidence, and was not excessive. Crown counsel asked Mr. Moores if he could recall what theassault was about, and, after Mr.

Moores replied, “I don’t recall”, Crown counsel indicated that, “we don’t need to go into details as towhat happened”. The cross-examination resulted in the admission that there was a prior conviction for assault on a former girlfriend, butwith no recollection of any details underlying the conviction: Q. You have a prior conviction for an assault? A. Yes. Q. Okay, and that was against a [M.M.]? A. Yes, it was. Q. I believe she was your girlfriend at the time? A. Yes. …

Q. Do you recall what the assault was? A. No, I don’t recall what the assault was. Q. So you’ve been convicted of a crime of assaulting your ex-partner, but you do not remember what the assault consisted of? A. It could have been (unintelligible) something. I don’t know. I don’t take--I’m just telling you as it is. Q. Okay. So--but you certainly remember your relationship with [M.M.]? A. I remember the relationship with [M.M.], yes, I do. Q. Okay. And then obviously there was something happened; we don’t need to go into details as to what happened, but you got a criminal conviction out of it? A.

I got a criminal conviction, obviously, yes, I did. … A. … I don’t know about the assault. Q. You are saying you never put your hands on her? A. Assault or--no, I never. Q. But you got a conviction for assault. A. I understand that. I see that there on paper. I can’t admit to something because it’s on paper because you have it there in front of you.

I can’t say--I can’t remember what the exact, what was done or said, Richard, I can’t. (Transcript of Proceedings, Volume II, pages 218-219, 226-228) [ 16 ] The prejudice to trial fairness, in allowing these questions, particularly in the context of a judge alone trial, was not significant. The main concern about prejudice relates to the risk that the trier of fact (be it judge or jury) will engage in propensity reasoning – relying on the evidence of prior misconduct to infer that the accused is more likely to be guilty. That did not occur here.

The reasons of the trial judge show that the evidence was not used for this improper purpose. The reasons reveal that the evidence was used to expose Mr.

Moores’ “very poor recollection”, “confrontational” disposition, and “evasive” answers, and in that way informed the credibility assessment: … I found it particularly striking on cross-examination that when the accused was referenced to his record, which had been accumulated in Alberta, the accused appeared to have a very poor recollection of the offences that he had been charged and convicted. … … … The accused was certainly confrontational on cross-examination.

The accused was most certainly evasive on particular points on cross-examination, including specifically with respect to the issue of his record, and with respect to other offences that he had been charged with outside of this province.

The accused’s memory of these events was, at best, vague, and it strikes me as very, very strange that an individual would not recall particularly serious offences that he had been convicted of, and in fact, had been charged with, and in one particular case, the charge had been withdrawn in exchange for a peace bond, and that was in relation to a previous partner. … This case is problematic for Mr. Moores in the sense of his evasiveness and combativeness, particularly on cross-examination. I do not believe that Mr.

Moores, quite simply, could have forgotten large portions of his record and large portions of his involvement in the criminal law system. It is rather convenient that Mr. Moores apparently had no awareness of some of these events, and particularly so when they relate very much to the type of offences that are before the Court. (Transcript of Proceedings, Volume II, pages 306-308) [ 17 ] Mr. Moores adduced evidence of good character, allowing the Crown to cross-examine on prior specific acts of misconduct , including conduct underlying his previous assault conviction.

The trial judge, as the ultimate gatekeeper for ensuring trial fairness, has discretion to screen evidence or limit cross-examination where the prejudicial effect outweighs its probative value. In this case, that balancing equation between prejudicial impact and probative value favoured admission. There was no need for the trial judge to intervene and limit the cross-examination. The silence from defence counsel indicates that he also did not feel the need to limit the Crown’s cross-examination. [ 18 ] There was no error by the trial judge in permitting and considering the Crown’s cross-examination of Mr.

Moores regarding conduct underlying his previous assault conviction. Permitting and considering the Crown’s cross-examination of Mr. Moores regarding a previous assault charge (no conviction) and a resulting peace bond [ 19 ] Mr. Moores acknowledged a previous assault charge during cross-examination, but he did not acknowledge the peace bond. The trial judge referred to the previous assault change and the peace bond in his reasons. Mr.

Moores says that the cross-examination by the Crown on the unproven criminal charge, and the unproven peace bond, was highly prejudicial and that the trial judge erred in allowing it,

and in considering it. [20] The Crown is not restricted to cross-examination on prior convictions when rebutting evidence of good character. This isconfirmed by Morris, at 439-440, where Pratte J., writing for the majority, stated that prior convictions are not the only form of evidenceof bad character that is permissible: I cannot agree either with the suggestion that evidence of good character can be rebutted solely by proof of prior convictions.

Wheneverthe accused puts his character in issue, it is open to the Crown to prove the bad character of the accused, i.e., that his general reputationor actual moral disposition is bad. While this is often done by the proof of prior convictions, this is not, by any means, the only form ofevidence of bad character that is permissible.

Section 593 [our current

section 666] of the Criminal Code has never been constructed soas to restrict solely to prior convictions the evidence of bad character that can be made against the accused, and I do not agree that itshould. … [21] The issue here is whether the cross-examination on an unproven assault charge, and peace bond, in the present context, went toofar – such that the prejudicial effect exceeded the probative value. [22] Mr. Moores relies on R. v.

Koufis, (SCC), [1941] S.C.R. 481 (S.C.C.), where the Court stated that an accusedcannot be cross-examined on other criminal acts supposed to have been committed, unless he or she has been convicted, subject tolimited exceptions (at 490). Koufis is not applicable to Mr. Moores’ situation. It was not a case where character was placed in issue, andaccordingly, it was not a case where the Crown had the right to cross-examine on prior misconduct.

Where an accused testifies and doesnot put his or her character in issue, as was the situation in Koufis, the Crown may not cross-examine on prior misconduct, excepting aspermitted under

section 12 of the Canada Evidence Act (prior criminal convictions). [23] R. v. McNamara (1981), (ON CA), 56 C.C.C. (2d) 193 (Ont. C.A.), aff’d (SCC), [1985] 1S.C.R. 662 (S.C.C.), is more on point in comparison to Koufis. That case discusses, in obiter dicta, the issue of whether a trial judge,presiding in a jury trial where character is in issue, should exercise discretion to limit cross-examination on previous misconduct notresulting in a conviction. In McNamara the accused had placed his character in issue during examination-in-chief.

The trial judgeallowed Crown counsel to cross-examine on prior supposedly illegal activity (where there was no conviction) in a business transaction,and that elicited evidence of the accused’s dishonesty. On appeal, the accused argued that the the prejudicial effect of the evidenceelicited on cross-examination outweighed its probative value, and the trial judge was obliged to exercise discretion and exclude it.

Thefive-judge panel, delivering its reasons per curiam, rejected this argument and held, “we are of the opinion that the trial Judge did noterr in ruling that the appellant had put his character in issue, and that the evidence was admissible” (paragraph 299).

The obitercomments (below) are of guidance in that they recognize the trial judge did have the discretion to prohibit cross-examination on previousmisconduct that did not result in a criminal conviction: [315] We are unable to accept the submission that this evidence was so prejudicial in relation to its probative value that the trial Judgeshould have exercised his discretion to exclude it. We are of the opinion that it had substantial relevance on the issue of credibility.

Wedo not wish to be taken, however, as holding that a trial Judge would not have a discretion, even when an accused had put his character inissue, to exclude cross-examination on previous conduct, not resulting in a conviction, that was remote in time, or of little probative valueon the issue of credibility and that was gravely prejudicial. [24] McNamara is certainly not a clear statement as to when a trial judge must exercise discretion to limit cross-examination onprevious conduct; however, it implies that the discretion should be exercised when the previous conduct is of little probative value and isgravely prejudicial.

When there is cross-examination on previous conduct involving unproven charges or suspicions, it will often beappropriate, depending on the context, for the trial judge to exercise discretion. Unproven charges or suspicions usually have littleprobative value and can be highly prejudicial, particularly with jury trials. As Roach J.A. stated in R. v. Tilley, (ONCA), [1953] O.R. 609, 106 C.C.C. 42 (Ont.

C.A.): [38] … It is elementary in the field of criminal jurisprudence that suspicions, though piled as high as the sky, are still only suspicions.They prove nothing. [25] The previous assault charge was raised in cross-examination, and acknowledged by Mr. Moores. He had been charged withassaulting a former girlfriend, and he testified that the charge was not pursued once they decided to reconcile. The Crown asked if thecharge was not pursued because Mr. Moores had agreed to enter into a peace bond.

He responded that he did not know if there was apeace bond and that he “can’t remember everything off the top of my head”. The relevant portions of the cross-examination are asfollows: Q. Have you ever been charged for assaulting [K.M.]? Charged; I am not saying convicted. A. Charged, I think, yes. Q. Okay, and what happened with that? A. Nothing ever happened with it. She filled out the papers up there to have it changed. Because we wanted to reconcile ourrelationship. But that’s all that came out of that. Q. Are you sure you didn’t enter into a peace bond? A. I don’t know. Honest to God. I don’t know. Q.

So you don’t know or don’t remember that you may have entered into a peace bond to have charge, you know, and charges werewithdrawn? A. I honestly--if you got it there, you have to show me, because I can’t remember everything off the top of my head.

… Q. [Y]ou remember assault charges being laid? A. Charge, yes, there was, yeah. Q. Okay. And-- A. And she filled out a paper after to have it dropped or something like that. … Q. I’m going to show you something here. This is from the RCMP … And on the bottom here, it says, accused Moores added toCPIC, charges dismissed, peace bond. A. What’s that? Accused Moores added what? What’s the CPIC? Q. CPIC is the Canadian Police Information Center. It’s where you get your criminal records … does this refresh your memory? Didyou enter into a peace bond? A. I don’t remember, honestly, Richard, I really don’t remember.

I don’t remember. Q. So you don’t remember being charged with something, the charges being dismissed-- A. I didn’t say I don’t remember being charged. I don’t remember being--having the peace bond. (Transcript of Proceedings, Volume II, pages 222-224) [26] In R. v. Conway (1985), (ON CA), 17 C.C.C. (3d) 481 (Ont. C.A.), character was in issue, and the accusedwas cross-examined about previous acts of violence. There was no error regarding the questions put during the cross-examination, butthe Court found that the trial judge erred in failing to caution the jury about how the responses could be used.

At page 488, HowlandC.J., for the unanimous panel, stated, “The jury should have been told also that such evidence was in the nature of evidence of badcharacter which could be used by them as a rebuttal of evidence of good character given on the appellant's behalf and for the purpose ofassessing the credibility of the appellant”. [27] In R. v. Deyardin (1998), (QC CA), 119 C.C.C. (3d) 365 (Que. C.A.), character was in issue and the accusedwas cross-examined on a previous criminal offence for which he received an absolute discharge.

Under section 730(3) of the CriminalCode, the effect of a discharge is that the offender is deemed not to have committed the offence. On appeal, the accused argued that thetrial judge erred in permitting this cross-examination by the Crown, and erred in failing to caution the jury about the appropriate use. Thecourt found that there was no error permitting the cross-examination, because it was allowed in rebuttal of the evidence of goodcharacter. However, the court held that there was an error in the trial judge’s failure to instruct on the use of this evidence.

MadameJustice Otis, writing for a unanimous panel, stated at pages 377-378: That being the case, the legal problem, which the question put during the cross-examination of the appellant raises, does not lie in theadmissibility of the prior conviction for which a discharge had been granted but rather in the treatment which the judge gave it in hischarge to the jury… The trial judge had to instruct the jury on the use of this evidence.

He had to clearly explain that the evidence of assault on a four-year-old child could only be used to challenge the general credibility of the accused and could not be used to prove that he was likely tocommit crimes on children or to react violently to them. … [28] Both of these decisions recognize that cross-examination, in rebuttal to evidence of good character, can involve questioningabout conduct that did not result in criminal conviction, provided the resulting evidence is not used for the prohibited purpose ofpresuming guilt is more likely based on past misconduct. [29] For the current matter, the cross-examination about the prior charge and peace bond had little probative value in rebutting theevidence of good character, but at the same time, the evidence was not used for a prohibited purpose.

The trial judge did not use theevidence to engage in prohibited propensity reasoning – presuming guilt is more likely based on past misconduct. The trial judge’sreasoning, from his written decision, reveals he used the evidence only in respect of the general credibility assessment of Mr.

Moores –“very, very strange that an individual would not recall … the charge had been withdrawn in exchange for a peace bond, and that was inrelation to a previous partner” (Transcript of Proceedings, Volume II, pages 307-308). [30] In the circumstances, namely, a judge alone trial where character is in issue, where no objection is raised by defence counsel, andwhere the reasons reveal the evidence was not used for an improper purpose of inferring guilt based on past misconduct, I find no errorin the trial judge permitting and considering the Crown’s cross-examination of Mr.

Moores regarding a previous assault charge andpeace bond. Considering a prior assault conviction, even though the Crown did not prove the prior conviction [31] Mr. Moores argues that the Crown did not prove his prior assault conviction, and that the trial judge erred in considering it. Mr.Moores’ position is that he did not acknowledge the prior assault conviction, and, under those circumstances, it had to be proven in themanner set out in section 12(2) of the Canada Evidence Act, R.S.C. 1985, c. C-5, or

section 667 of the Criminal Code. In my view, Mr.Moores did acknowledge his prior assault conviction, and that further proof was not required.

[ 32 ] A conviction does not need to be proven by the production of the official record; it is just as validly proven by the acknowledgment from the convicted party.

In Morris , at 418-419, Pratte J. recognized this principle: [5] It is well established that a conviction does not need to be proven by the production of the official record; it is just as validly proven by the admission of the convicted party. … A conviction that is admitted by a witness does not need to be otherwise proven and such evidence ought not to be disregarded except possibly in exceptional circumstances showing clearly that the admission was made in error. [ 33 ] Mr.

Moores’ replies, when asked on cross-examination about the prior assault conviction, varied from acknowledgment to uncertainty and back to acknowledgment. He initially admitted it (“Q. You have a prior conviction for an assault? A. Yes” page 218) ; then he was unsure (“ I’m not 100 percent sure; like, you got all the paperwork there” page 219). Ultimately, after he was shown the Canadian Police Information Center (C.P.I.C.) printout, he acknowledged the prior assault conviction: Q. So you do acknowledge that this is a reflection of your record? A. Yes. Q. Okay A. Yes, I do. Q. And do you see a conviction? A.

I guess … and if it’s there, it’s there. That’s something – that’s all I can, you know. Q. Okay, so we will have this entered as LM #2. (Transcript of Proceedings, Volume II, page 231) [ 34 ] The C.P.I.C. printout was entered as an exhibit after Mr. Moores acknowledged it. The prior assault conviction on the C.P.I.C. printout was proven by that acknowledgement; there was no error by the trial judge in considering it. Considering a prior court imposed peace bond, even though the Crown did not prove its existence [ 35 ] Mr.

Moores was cross-examined about a peace bond issued in Alberta; the trial judge referred to that peace bond even though it was not acknowledged by Mr. Moores and was not otherwise proven by the Crown. The relevant portion of the decision of the trial judge where he refers to this peace bond states: … And with respect to other offences that he had been charged with outside of this province.

The accused’s memory of these events was, at best, vague, and it strikes me as very, very strange that an individual would not recall particularly serious offences that he had been convicted of, and in fact, had been charged with, and in one particular case, the charge had been withdrawn in exchange for a peace bond, and that was in relation to a previous partner. (Transcript of Proceedings, Volume II, pages 307-308.) [ 36 ] The trial judge misapprehended the evidence and erred in stating that the previous charge had been withdrawn in exchange for a peace bond.

The evidence before the court did not establish the existence of the peace bond. [ 37 ] This misapprehension of evidence was an error of a minor nature having no impact on the verdict ( see R. v. Khan , 2001 SCC 86 , [2001] 3 S.C.R. 823 at para. 26 ). [ 38 ] The rejection of Mr. Moores evidence, and the verdict of guilt, was based on a multitude of factors, most notably, the overwhelming and credible evidence from the Crown witnesses. The trial judge gave detailed reasons explaining why he accepted the complainants’ evidence, and why he rejected Mr.

Moores’ evidence, and why he was satisfied beyond a reasonable doubt. Mr. Moores’ selective memory of significant events from his past; his vague, evasive, and occasionally inconsistent responses to questions; and his confrontational disposition; were included as part of the trial judge’s reasoning for rejection of Mr. Moores’ credibility. The peace bond, mentioned in the passage quoted above, was a minor item in a large package of evidence that informed the credibility assessment of Mr. Moores. [ 39 ] As recognized in R. v.

Van , 2009 SCC 22 , [2009] 1 S.C.R. 716 at para. 34 , not every error in a criminal trial warrants appellate intervention. Under section 686(1)(b)(iii) of the Criminal Code an appeal may be dismissed, where, despite an error, the court of appeal is of the opinion that no substantial wrong or miscarriage of justice has occurred. That is the situation here. The error was minor and had no impact on the verdict. Disposition [ 40 ] I would dismiss the appeal. Appeal dismissed.