R v TL, 2020 NUCA 10

ᓄᓇᕘᒥ ᐅᓐᓂᓗᖅᓴᖅᑐᓄᑦ ᐃᖅᑲᖅᑐᐃᕕᒃ Nunavunmi Apiqhuidjutainut Uuktuffaarutit Nunavut Court of Appeal Cour d'appel du Nunavut Citation: R v TL, 2020 NUCA 10 Date: 20200827 Docket: 08-19-010-CAS Registry: Iqaluit Between: Her Majesty the Queen Respondent - and - T.L. Appellant Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that may identify the complainant or witnesses must not be published, broadcast, or transmitted in any way. NOTE: This judgment is intended to comply with the identification ban. _______________________________________________________ Reasons for Decision of The Honourable Mr. Justice Jack Watson _______________________________________________________

Appeal from the Conviction by The Honourable Mr. Justice Johnson Dated the 23rd day of September, 2019 (Docket: 08-19-146) _______________________________________________________ Reasons for Decision of The Honourable Mr. Justice Jack Watson _______________________________________________________ I. Introduction [1] The appellant challenges his conviction for sexual assault of EP, the incident alleged to have occurred on February 23, 2019.The trial was compact. The only witness for the Crown was EP. The appellant and his common law partner KMP (a second cousin ofEP) testified for the defence.

All of the evidence of each witness was brief. It concluded on July 17, 2019. The trial judge gave oralreasons for judgment on September 23, 2019. As the Crown elected to proceed by way of

summary conviction on the count, the appealfrom conviction came on before me sitting alone under s 812(2) of the Criminal Code. II.

Grounds of Appeal [2] The appellant sets out five interlocking grounds of appeal: the trial judge (1) erred by failing to consider evidence in themanner required by the Supreme Court of Canada in R v W(D), (SCC), [1991] 1 SCR 742; (2) erred by convicting theappellant on a standard of proof below the criminal standard; (3) failed to consider the issue of the complainant’s consent as distinct fromher capacity to consent; (4) relied on stereotypical assumptions about the sexual behaviour of women in finding that the complainant didnot consent; and (5) failed to provide sufficient reasons. [3] The Crown’s response is essentially to say (1) the trial judge did not reason by a credibility contest; (2) the trial judgeapplied the proper standard of proof; (3) while the trial judge erred in failing to address consent and capacity to consent as distinct issuesand “erred by not fully elucidating which path he chose to convict the appellant”, there was no substantial wrong or miscarriage of justicein the conviction because the evidence of EP was that she did not consent to sexual contact with the appellant; (4) the trial judge did notrely on stereotypical assumptions about women’s sexuality in order to convict the appellant; (5) the reasons are sufficient to bereviewable (this latter point is imbricated in the Crown’s specific submissions).

III. Discussion [4] In my respectful view, there is at least some arguable merit to Grounds (3) and (4) on this record but it is unnecessary tocome to a final conclusion on those grounds because Ground (5) is irresistible. The reasons of the trial judge fail to meet the purposes ofeither intelligibility or reviewability as described in R v M(RE), 2008 SCC 51 at para 35, [2008] 3 SCR 3.

The inadequacy of the reasonsis also such that it is difficult to decide if there was an error as proposed in Grounds (1) and (2). [5] In writing on this, I do not wish to present a coruscating criticism of short oral decisions generally. Busy criminal trial courtscan only do what is humanly possible as noted prior to M(RE) in R v Burns, (SCC), [1994] 1 SCR 656 at paras 17-18and R v Barrett, (SCC), [1995] 1 SCR 752.

There are also reasons sounding both in practicality and in policy for notconverting the contention of inadequate reasons for judgment into an automatic question of law or into an automatic foundation for aclaim of miscarriage of justice under ss 686(1)(a)(ii) and (iii) of the Criminal Code (applicable here mutatis mutandis under s 822(1) ofthe Code).

Reasons are not required to be a “verbalization of the entire process engaged in by the trial judge in reaching a verdict”: seeM(RE) at para 18, quoting earlier authority from around the time of Burns. [6] As the law continued, it became evident that Burns may not have been adequately understood by some lower courts. Astatement that trial judges were not required to provide elaborate ‘watch me think’ tapestries may have translated in some precincts to

‘guess what I thought’. As a result, not long after Burns , it became necessary for the Supreme Court to issue the decision in R v Sheppard , 2002 SCC 26 , [2002] 1 SCR 869 to point out that Burns was not intended to insulate judges from giving reasons. Sheppard helpfully explained the important three primary functions of giving reasons (namely intelligibility, reviewability and accountability).

Ancillary benefits of the reasons-development process include engaging the judicial mind as a matter of good practice. [ 7 ] As for brevity of reasons as itself an issue, it has long been rightly said that being succinct is a virtue.

In Simetra Global Assets Ltd & Anor v Ikon Finance Ltd & Ors , [2019] EWCA Civ 1413 at para 46, [2019] 4 WLR 112 , Males LJ observed: 46 Without attempting to be comprehensive or prescriptive, not least because it has been said many times that what is required will depend on the nature of the case and that no universal template is possible, I would make four points which appear from the authorities and which are particularly relevant in this case. First, succinctness is as desirable in a judgment as it is in counsel's submissions, but short judgments must be careful judgments.

Second, it is not necessary to deal expressly with every point, but a judge must say enough to show that care has been taken and that the evidence as a whole has been properly considered. Which points need to be dealt with and which can be omitted itself requires an exercise of judgment.

Third, the best way to demonstrate the exercise of the necessary care is to make use of "the building blocks of the reasoned judicial process" by identifying the issues which need to be decided, marshalling (however briefly and without needing to recite every point) the evidence which bears on those issues, and giving reasons why the principally relevant evidence is either accepted or rejected as unreliable.

Fourth, and in particular, fairness requires that a judge should deal with apparently compelling evidence, where it exists, which is contrary to the conclusion which he proposes to reach and explain why he does not accept it.

This explanation was encapsulated recently by the United Kingdom Supreme Court in Shagang Shipping Company Ltd v HNA Group Company Ltd [2020] UKSC 34 at para 116. [ 8 ] Ultimately, as pointed out in Sheppard at para 46 , reasons can be short but they must reveal what was actually decided: 46 These cases make it clear, I think, that the duty to give reasons, where it exists, arises out of the circumstances of a particular case.

Where it is plain from the record why an accused has been convicted or acquitted, and the absence or inadequacy of reasons provides no significant impediment to the exercise of the right of appeal, the appeal court will not on that account intervene.

On the other hand, where the path taken by the trial judge through confused or conflicting evidence is not at all apparent, or there are difficult issues of law that need to be confronted but which the trial judge has circumnavigated without explanation, or where (as here) there are conflicting theories for why the trial judge might have decided as he or she did, at least some of which would clearly constitute reversible error, the appeal court may in some cases consider itself unable to give effect to the statutory right of appeal.

In such a case, one or other of the parties may question the correctness of the result, but will wrongly have been deprived by the absence or inadequacy of reasons of the opportunity to have the trial verdict properly scrutinized on appeal. In such a case, even if the record discloses evidence that on one view could support a reasonable verdict, the deficiencies in the reasons may amount to an error of law and justify appellate intervention.

It will be for the appeal court to determine whether, in a particular case, the deficiency in the reasons precludes it from properly carrying out its appellate function. [ 9 ] The complicating aspects of the evidence in this case reveals the problems with that evidence which the reasons given failed to address in a manner which rose to the challenges, and met the purposes of reasons.

Unquestionably trial judges are not going to be second guessed on credibility findings on appeal merely because an appeal court may come to a ‘lurking doubt’ about the evidence or its implications, or ‘re-trial’ approach arguing that somehow the judge evaluated the evidence unevenly because the outcome was unfavourable: see R v Wanihadie , 2019 ABCA 402 at paras 23 , 34-41, 99 Alta LR (6th) 56 and cases cited therein. [ 10 ] As stated in R v Quartey , 2018 ABCA 12 at para 42 , [2018 AJ No 55 (QL), affirmed 2018 SCC 59 , [2018] 3 SCR 687, the “fundamental rule, for the purpose of appellate review, is that if a trial judge’s credibility assessment can be reasonably supported by the record, it cannot be interfered with on appeal”, citing R v CAM , 2017 MBCA 70 at para 37 , 354 CCC (3d) 100.

The keystone of this, of course, is whether or not there is a credibility assessment for the appeal court to consider. I turn first to the evidence. [ 11 ] The direct evidence of EP was that she was a tenant of the appellant and KMP. They appear to have lived in units A and B of some sort of shared building. On the 22nd of February, 2019, EP became intoxicated by consuming more than 10 bottles of beer, half a bottle of wine and 4-5 marijuana joints. She fell asleep around 5:00 pm. She recalled waking up with a knock on her door around midnight.

She then recalled waking up again naked and with the appellant performing cunnilingus on her when she was on her “period”. She said “what the fuck are you doing” and kicked him. [ 12 ] She could not recall what happened after the knock on the door or after she kicked the appellant, explaining in her evidence “some parts I forget – I was still drunk”. She did say that she thought the appellant was intoxicated because he “smelled like alcohol”.

He also was nude. [AB 13/18-14/8]. [ 13 ] In his recital of EP’s evidence, the trial judge said EP “was very clear in her evidence that she did not consent to the sex.” [AB 74/5]. In direct, Crown counsel twice asked EP, “At any point did you ever give him consent to have sex with you?” and she said “No.” She gave no evidence that she and the appellant had sexual intercourse and referred only to the oral sex described above to which she said she had not consented.

When it was suggested in cross that the knock on the door around 1200 - 1230 am was KMP, EP did not recall that. [ 14 ] When it was suggested to her in cross that the appellant was with her when KMP came, and that she and the appellant had started some sex by then, EP was invited to disagree and she said “I don’t remember.” [AB 18/14-26]. When it was put to her that she and the appellant had sex again with a condom after KMP left, EP again said she did not recall that. It was also put to her that KMP at some point had been yelling at her. EP again said she did not remember. [AB 20/9-18].

She did say she left the apartment around 230 am and went to a friend’s place. [ 15 ] It might be noted that the approach of defence counsel was an impeccable application of the approach commended in Browne v Dunn (1893), 1893 CanLII 65 (FOREP) , 6 R. 67. (A description of the history and fuller description of the judicial reasons in the decision in Browne v Dunn appears in R v Y(SC) , 2020 ABCA 134 at paras 45-62 , [2020] AJ No 393 (QL)).

[16] Defence counsel ended her cross by suggesting that the appellant was in her apartment with EP’s consent, and “that you wereflirting around and then you had sex in the bedroom. I gather you disagree with all of that?” Her answer was “No. I don’t – no.” [AB21/4-10]. That double negative is problematic on paper but is not itself dispositive. That sort of mismatch between a question and theanswer is not atypical of events which a trial judge faces from time to time.

Depending on its significance, a trial judge might beexpected to explain what they made of exchanges like that. [17] Further, Crown counsel re-examined by asking EP, “How do you know you didn’t consent, if you can’t remember?” Heranswer was “I don’t know.” Asked a second time to the same effect she again said “I don’t know.” [AB 21/16-22/7]. The trial judge didrefer to this testimony in his recital of the evidence but it is not apparent what the trial judge made of this exchange [AB 75/6-9]. [18] The appellant’s version was that, after KMP went to bed some time before midnight, he went outside for a cigarette.

He metEP out there and she invited him in to her place [AB 25/6-14]. They had some beer and they were flirting with each other. His versionwas that they started having sex when KMP began knocking on the door. He said they got dressed and EP answered the door [AB 25/15-25]. [19] EP told KMP the appellant was not there. KMP did not accept the assertion that the appellant was not there since his jacketwas visible [AB 27/19-28/9]. After a conversation, KMP left and EP returned to the bedroom.

They disrobed again and, after EP locateda condom, they had sex again and then some more beer, after which the appellant then left [26/2-18]. The appellant said that EPconsented to having sex with him. He denied that she kicked him [AB 31/1-32/1]. He said she had been drinking but she was not drunkto the point of not knowing what she was doing [AB 34/25-37/17]. [20] The evidence of KMP did not match up with that of the appellant. She believed that she went to EP’s residence around 0125am and was upset because the appellant was there [AB 42/17-43/4].

When she knocked on the door no one answered the first time, butshe returned and knocked again. This time EP answered. KMP described the situation as “[EP] opened the door and all she said was inInuktitut “embarrassing.” [AB 43/13-14; AB 53/2-16; AB 54/12-21]. EP did not explain that comment and KMP did not ask [AB 43/21;AB 54/16-21]. KMP also testified that the appellant came out of the unit within seconds and looked drunk [AB 43/25-27; AB 55/17-26]. [21] The evidence of KMP was that she went to sit in her vehicle. She saw the appellant going back into the unit of EP.

A coupleof minutes later, EP came out and had a cigarette [44/2-12]. KMP said she swore at EP and drove off upset [AB 44/13-19]. KMPtestified that when she swore at EP and left, the appellant was still in EP’s unit [AB 49/20-50/9; AB 56/3-15] [22] The oral reasons of the trial judge commenced with a recital of the evidence. This recital was either as the trial judge noted itdown or was drawn from a transcript.

If the latter, then the accuracy of its content would not necessarily mean the trial judge had a clearmemory when composing the reasons later: compare R v Kristensen, 2010 ABCA 37 at para 21, 251 CCC (3d) 372. The trial judgedescribed the direct, cross and re-examination of EP [AB 72/19-75/9]. The trial judge then described the direct and cross of the appellant[AB 75/11-77/14].

The trial judge then described the direct and cross of KMP [AB 77/16-79/2]. [23] The trial judge then commenced what he described as his “analysis” by instructing himself that “a Court must be careful todistinguish between a complainant who was in a blackout and one who was so intoxicated that they had lost the capacity to consent to thesexual activity. It is possible that a complainant had the capacity to consent but cannot remember because of having a blackout.” [AB79/4-8].

The trial judge then cited R v Esau, (SCC), [1997] 2 SCR 777 for the quote that “Absent expert evidence, aloss of memory or a “blackout” is direct evidence of nothing except the fact that the witness cannot testify as to what happened during aparticular period”. This quote is actually from R v R(J), (2006) (ON SC), 40 CR (6th) 97, where a trial judge madethat statement and then used Esau to talk about the fact that loss of memory may still be significant.

The trial judge here seems to havebeen relying on his own prior decision in R v C(D), 2018 NUCJ 20 at para 34, [2018] Nu J No 23 (QL), which contains a similar mis-attribution to Esau. [24] The origin of what the trial judge in the case at bar seems to have been referring to about blackouts – which, as said, comesfrom the decision in R(

J) and not from Esau – is described in the concurring judgment of Hinkson JA in R v James, 2013 BCCA 159 atpara 40, 297 CCC (3d) 106. The lead judgment there, to which the judgment of Hinkson JA was a concurrence, was by Smith JAallowing a Crown appeal from acquittal and ordering a new trial. [25] In James, the trial judge’s error was not in using the blackout of the complainant as some form of evidence of consent. But asSmith JA pointed out, the trial judge in James got distracted by the reference to R(

J) and notably to the reference to expert evidencethere: 29 … This is evident from his conclusion at paras. 45 and 46 of his reasons (quoted in para. 21 above), that the Crown's lack of expertevidence and the lack of circumstantial evidence to support C.H.'s assertion that she did not consent to Mr.

James' sexual activity failedto meet the requisite burden of proof upon the Crown to establish the element of the absence of consent beyond a reasonable doubt.Without commenting on the correctness of R. (J.), the legal analysis from that decision was simply not applicable to the circumstances ofthis case. [26] Smith JA pointed out that the trial judge should have worked from the law expressed in R v Ewanchuk, (SCC), [1999] 1 SCR 330. (To update the point, trial judges should be working from R v Barton, 2019 SCC 33, 376 CCC (3d) 1.) TheSupreme Court of Canada upheld the Court of Appeal decision in James at 2014 SCC 5, [2014] 1 SCR 80 where, amongst the succinctreasons of Moldaver J for the Court, in finding that there was error in the trial decision, he stated: In our view, the trial judge’s reliance on evidence that did not form part of the record may have coloured his thinking on the issue ofconsent, particularly in assessing whether the complainant may have consented to sexual relations but forgot that she had done so due tomemory blackout, or, as she claimed, that she was unconscious at all material times and never consented to sexual relations.

Put another way, the specific influence of R(

J) in James was to contribute to the fabric of error of law noted by the Supreme Court ofCanada in James.

[27] Speaking for myself, and noting the confusion in the wake of R(J), and perhaps sharing some of the reticence of Smith JA inJames about R(J), I would suggest that the common-sense proposition that lack of memory proves nothing about what actuallyhappened can stand for itself. It is unnecessary to use R(

J) for that proposition. Indeed, amnesia does not even disprove that specificintent to kill existed at an earlier time. As long ago as R v Schonberger (1960), (SK CA), 126 CCC 113 at p 123 it wassaid that: “Admittedly amnesia would not be a defence to the charge of murder.

It is only evidence of a state of mind that might be adefence to the charge”; see also R v Hartridge, [1966] SJ No 202 (QL) at paras 82-84. (1967) (SK CA), 1 CCC 346. [28] More to the recent point that amnesia proves nothing about the factual events, I rather prefer the language chosen by Tholl JAdissenting in R v Kishayinew, 2019 SKCA 127 at paras 75 to 77, 382 CCC (3d) 560 on the effect of evidence of loss of memory. (TheSupreme Court will have he opportunity to consider this on October 9, 2020: [2019] SCCA No 475 (QL) (SCC No. 38962)). [29] Be all that as it may, the trial judge’s reasons in this case then returned to the evidence about how much of intoxicants EP hadconsumed [AB 79/26-80/11] and EP’s evidence that she awoke with the appellant performing cunnilingus on her.

After referring tocounsel’s submissions, the trial judge said “However, it is possible that she had a blackout and was also unconscious with the effects ofthe alcohol and marijuana when the sex occurred such that she did not have an operating mind with the capacity to consent.” [AB 80/8-12].

If this amounted to a finding of fact, it would seem to be that the appellant’s version of having had sexual intercourse with her wasaccepted, but it was “possible” EP did not have an operating mind to consent. [30] The trial judge then referred to the appellant’s evidence as being that EP was aware of “what was going on” but added that hewas “satisfied that the accused was not a credible witness.” [AB 80/15-16]. In its context, this conclusory statement raises a concern thatit might have been used as makeweight for the Crown and mere disbelief does not do so.

But even as it is, that statement is then followedby a discussion of the evidence relating to the relationship between the appellant and EP being “distant” and there were difficulties aboutthe lease arrangements [AB 80/17-81/2].

It eludes me how possible issues about rent or whatever it was – even if a negative view washeld by the appellant and his partner in this regard – would shed light on the outlook of EP on this date under the circumstances thenexisting. [31] Nonetheless, based on this, the trial judge considered it “difficult to believe that she interacted with the accused and invitedhim into the apartment and had a party with him before the sex occurred” [AB 81/3-7]. Setting aside whether this was a non-sequitur, itlends some support to the appellant’s submission that the trial judge lost track of where the burden of proof lay.

That concern aboutburden of proof is fortified by the fact that, after the trial judge briefly referred to the appellant’s prior criminal record, he stated “thatdoes not help his credibility”. [AB 81/9-10]. To this the trial judge added: He made no in admissions against his own interest and his demeanour had a air of untruthfulness. [AB 81/10-12] [32] It is difficult to understand this sentence. It is difficult to follow why the two points mentioned could lead to a conclusionbeyond a reasonable doubt under W(

D) or the famous golden thread from Woolmington v DPP, [1935] AC 462, [1935] UKHL 1.Although demeanour is relevant to credibility, it may be a shaky ground for assessment of credibility if it incorporates irrelevantconsiderations: compare Kristensen at paras 20-21. And in any event, demeanour of the accused as a witness is not makeweight in theCrown’s case. [33] The failure to provide a literal incantation of W(

D) is not itself reversible error: see eg R v Szczerbaniwicz, 2010 SCC 15 atpara 14, [2010] 1 SCR 455. That said, an accused person is entitled to the benefit of a doubt even if it is based on the absence ofevidence and it does not fall to the accused to “help” his case or to prove what is “difficult to believe”: compare R v Darnley, 2020ONCA 179 at paras 33-36, 387 CCC (3d) 200. As Viscount Sankey said in Woolmington about the presumption of innocence, “noattempt to whittle it down can be entertained”. [34] The trial judge then turned to EP’s evidence, saying it was “very credible”.

The trial judge would ordinarily get deference onthis conclusion but the trial judge went on to explain his view by saying “It is also difficult to believe that she consented to sex when shewas menstruating. It makes sense that she reacted by kicking him and swearing.” [AB 81/16-19]. [35] This passage is challenged by the appellant’s counsel as showing that the trial judge used stereotypical thinking citing R vCepic, 2019 ONCA 541 at para 14, 376 CCC (3d) 286 and R v Kiss 2018 ONCA 184 at para 101, [2018] OJ No 1011 (QL).

Thedecision in R v D(ARJ), 2018 SCC 6 at para 2, [2018] 1 SCR 218 warns of the hazards of inserting generalities of doubtful provenanceinto reasons for decision. The stereotypical reasoning defect is not a one-way ratchet: it has been seen to reject a defence or to prop up aprosecution witness on the one hand, or, more commonly, to discount a complainant’s evidence in a sexual assault case.

Either way it iserror. [36] Nonetheless, as there may be cases where the specific evidence of a specific complainant may reveal that a form of sexualactivity is or was not or would not be acceptable to that complainant, I decline to reach a final conclusion on whether the trial judge’sstatement should be taken to affront the principle in D(ARJ): compare Quartey. After all, it is up to a complainant what sexual activity iswith her consent: s 273.1 of the Criminal Code; Barton.

But considered in the larger context of the reasons in this case, this observationof the trial judge is problematic. [37] Furthermore, bearing in mind that the “sex” that the trial judge referred to earlier seems to have been intercourse, theapplicability of this “difficulty to believe” conclusion is also unclear. The appellant’s counsel also ties this point back to the trial judge’sdoubts arising from the “relationship” as landlord-tenant and infers that the trial judge may have been looking for signals of some priorsexual amity between EP and the appellant.

Such evidence would have been at least objectionable and would be presumptivelyinadmissible: see s 276ff of the Criminal Code; Barton; R v Goldfinch, 2019 SCC 38, 380 CCC (3d) 1. [38] Turning then to the evidence of KMP, the trial judge referred to the defence argument that in the exchange between EP andKMP at the door where EP was said to have spoken in Inuktitut “embarrassing”. About this, the trial judge said: I am not satisfied that that is the only conclusion that can be applied in that evidence.

She might have been embarrassed that she hadpassed out from substance abuse and thereby facilitated the accused taking advantage of her condition and upsetting the relationship

between the accused and [KMP]. [AB 82/1-7] [ 39 ] This passage is on its face conjecture. It finds no source in EP’s evidence. It once again implies that the trial judge accepted the appellant’s version of sexual intercourse. If the evidence of KMP was accepted - it was not expressly rejected by the trial judge - it fundamentally contradicted the narrative of EP and provided considerable support (although some contradiction) to the appellant’s version. The evidence of KMP coming to the door was partially bolstered by the direct evidence of EP that someone came to the door.

If EP answered the door and conversed with KMP as described, it was more likely that EP was in fact in control of her faculties by then as asserted by KMP. The evidence of KMP was that the appellant was in there and, indeed, that he went back in there after KMP swore at EP outside before driving away. [ 40 ] None of that could fit comfortably with EP’s version. As the crucial point here is that the reasons of the trial judge fall short, it does not matter that the evidence of KMP does not dovetail entirely with the appellant’s version.

In any event, the trial judge offered the explanation that by the time EP was speaking to KMP at the door it was 0130 am and “the effects of the complainant’s drinking in the day had worn off” [AB 82/14-15]. That, said the trial judge, would have been the reason she woke up when the appellant was performing cunnilingus on her. But EP suggested that she went back to sleep until 0230 am when she left to go to a friend’s house. [ 41 ] In sum, it is not at all apparent what the trial judge found beyond a reasonable doubt to be the facts of what happened such as to constitute the sexual assault of EP.

Although the trial judge said that all the evidence was considered in the trial judge’s review of the case, there was no actual determination of what was proven to have happened. [ 42 ] This deficiency in the trial judge’s reasons is not repaired by the fact that the bulk of the reasons contained a recital of the testimony. As pointed out in R v Achuil , 2019 ABCA 299 at para 23 , 92 Alta LR (6th) 270 under motion [2020] SCCA No 144 (QL) (SCC No 39149), in a concurrence of Slatter JA: 23 The first point to note is that summarizing the evidence of the witnesses is not the same thing as making findings of fact.

While the trial judge recited in great detail the evidence of the complainant, the appellant, and seven other witnesses, (including details of the examination, the cross-examination, and the re-examination of the witnesses) no clear findings of fact were made. Not surprisingly, the evidence of the witnesses was not entirely consistent, but the trial judge never reduced the recitation of the evidence into findings of fact. [ 43 ] A similar point is picked up in R v Sue , 2011 BCCA 91 at para 17 , 274 CCC (3d) 458 where the Court of Appeal noted that “Crown counsel says that the judge recounted the substance of Mr.

Sue's evidence correctly. That is true, but testimony is more than the content, else submission of transcripts or affidavits would suffice.” Where there are significant defects in the reasons or analysis offered, accurate reportage of the content of the evidence is not sufficient rescue. [ 44 ] In the end, I am forced to the conclusion that the trial judge’s reasons here do not in any manner illuminate the pathway to conviction. Moreover, there are numerous errors or seeming errors imbricated in the reasons that were given. IV. Conclusion [ 45 ] The appeal is allowed and a new trial ordered.

Since the appellant has or will have concluded the sentence imposed upon him arising from the conviction, the Crown will presumably think about whether a re-trial is appropriate. Application heard on July 21, 2020 Reasons filed at Iqaluit, Nunavut this 27th day of August, 2020 Watson J.A. Appearances: B. Flight for the Respondent

M. Martin for the Appellant