R. v. S.S.B., 2017 NLCA 33

S. S. B. (appellant) v. Her Majesty the Queen (respondent) (16/120) Indexed As: R. v. S.S.B. 2017 NLCA 33 1 C.A.N.L.R. 759 Court of Appeal of Newfoundland and Labrador Green C.J.N.L., Welsh and Hoegg JJ.A. May 24, 2017 Restriction on Publication: By court order made under subsection 486.5(1) of the Criminal Code, information that may identify thepersons described in this judgment as the victim/witness shall not be published, broadcasted, or transmitted in any manner.

Summary: S.S.B. appeals his convictions for one count each of sexual assault contrary to

section 271 of the Criminal Code and sexual interferencecontrary to

section 151 of the Code. The main focus of the appellant’s submissions was that the trial judge erred in assessing thecomplainant’s credibility, particularly with respect to the question of inconsistencies in her testimony at trial compared with herstatement to police and her evidence at the preliminary inquiry. The appellant also submitted that the trial judge erred by failing to applythe standard of proof beyond a reasonable doubt when he stated that the complainant’s version of events was the “most probable” in thecircumstances. The appellant also argued the trial judge misapplied R. v.

W.(D.), (SCC), [1991] 1 S.C.R. 742. Held: Appeal dismissed. Welsh J.A. (Green C.J.N.L. and Hoegg J.A. concurring): A reading of the judge’s decision leads to the conclusion that he was alive tothe inconsistencies in the testimony of the complainant and that, in the circumstances, he did not consider that they were such as to affecthis assessment of the complainant’s credibility. The judge’s finding that the complainant’s version of events was the “most probable” was not inconsistent with determining proofbeyond a reasonable doubt.

It is clear that in his ultimate conclusion, the judge expressed and applied the proper standard. The trial judge considered the evidence of each witness, gave reasons for accepting or preferring certain evidence and recognized thatultimately he must consider the whole of the evidence in determining whether the charges were proven beyond a reasonable doubt. Thereis no basis on which to conclude that he erred. Cases cited: R. v. C.H. (1999), (NL CA), 182 Nfld. & P.E.I.R. 32 (Nfld. C.A.) R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742. R. v. J.C.H., 2011 NLCA 8, 304 Nfld. & P.E.I.R. 141 Counsel: Robby D.

Ash, for the appellant; Sheldon Steeves, for the respondent.

This appeal was heard on May 19, 2017 before Green C.J.N.L., Welsh and Hoegg JJ.A. and the decision was rendered orally on thatdate. The following Memorandum of Disposition was filed on May 24, 2017 by Welsh J.A. for the Court. ______________________________________________________________ Welsh J.A.: [1] S.S.B. appeals his convictions for one count each of sexual assault contrary to

section 271 of the Criminal Code and sexualinterference contrary to

section 151 of the Code. His appeal was dismissed at the hearing. [2] The main focus of the appellant’s submissions was that the trial judge erred in assessing the complainant’s credibility,particularly with respect to the question of inconsistencies in her testimony at trial compared with her statement to police and herevidence at the preliminary inquiry. It was submitted that the judge erred by concluding that there were no “material inconsistencies”.

Counsel submitted that some aspects of the descriptions of what had taken place could not be reconciled and that these must becharacterized as material inconsistencies. [3] However, a reading of the judge’s decision leads to the conclusion that he was alive to the inconsistencies and that, in thecircumstances, he did not consider that they were such as to affect his assessment of the complainant’s credibility. [4] The appellant relied on the decision in R. v. C.H. (1999), (NL CA), 182 Nfld. & P.E.I.R. 32 (Nfld.

C.A.), inwhich Wells C.J.N.L., for the Court, wrote: [23] One important aspect to be considered in assessing credibility, is consistency or lack of it in statements made by the witness whenaddressing the matter in the witness box and on other occasions.

It is critically important therefore that a trial judge deal with indicatedinconsistencies when assessing credibility of an only, or a critical, witness testifying against an accused. … The concern expressed later in that paragraph was whether the inconsistencies may “demonstrate a carelessness with the truth.” [5] The importance and relevance of aspects of a complainant’s explanation of what occurred in relation to an offence cannot becharacterized in the abstract as material or not material.

In this case, in the context of all the evidence, the judge considered theinconsistencies in the complainant’s explanations of what had occurred. In contrast to demonstrating a carelessness with the truth, hewas satisfied that the complainant had not attempted to mislead, that her evidence “was given with clarity and sincerity”, and that “shewas honest and appeared to be concerned to tell the truth” (2016 NLTD(G) 204, at paragraph 30).

The judge accepted the complainant’sexplanations that, particularly with the passage of time, it was difficult to remember all the details of the events. [6] In the circumstances, the Court was satisfied that there was no basis on which to conclude that the judge erred in assessing thecomplainant’s credibility. [7] The appellant also submitted that the trial judge erred by failing to apply the standard of proof beyond a reasonable doubt whenhe stated: [30] … While [the complainant] was subject to a traumatic assault by her grandmother’s partner, a practical and well-informed personwould regard her version of the events as most probable in all the circumstances. … (Emphasis added.) [8] The Court did not accept the appellant’s submission that the use of the language “most probable” was inconsistent withdetermining proof beyond a reasonable doubt.

The judge used that language in assessing some of the evidence. That assessment wasnecessary in order to make his findings of fact and ultimate determination as to whether the charges had been proven beyond a reasonabledoubt. It is in any event clear that in his consideration of all of the evidence leading to his ultimate conclusion, the judge expressed andapplied the proper standard. [9] Finally, the appellant submitted that the trial judge erred in the application of the decision in R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742.

The analytical approach to assessing evidence set out in that case was discussed in R. v. J.C.H., 2011NLCA 8, 304 Nfld. & P.E.I.R. 141.

Rowe J.A., for the Court, cautioned: [13] … The danger in considering the evidence of the accused first and determining whether it is worthy of belief before consideringthe Crown evidence is that it may induce the judge to place too great an emphasis on the remaining evidence, i.e. the Crown evidence,without carefully scrutinizing that evidence in the context of the evidence as a whole to determine whether it can support the charges tothe standard of proof required. … That statement was provided to assist trial judges for the purpose of minimizing falling into error.

It is not a rule of law, but a suggestedanalytical approach. [10] In this case, the trial judge considered the evidence of each witness. He gave reasons for accepting or preferring certainevidence.

Furthermore, he recognized that ultimately he must consider the whole of the evidence in determining whether the chargeswere proven beyond a reasonable doubt. (See decision of the trial judge, at paragraph 32.) There is no basis on which to conclude thathe erred. [11] Having reviewed the evidence and made findings of fact, the judge concluded that the charges under sections 271 and 151 of theCriminal Code had been proven beyond a reasonable doubt. He dismissed the charge under

section 152 on the basis that an element of

the offence, the age of the complainant, had not been proven. [ 12 ] The Court, having found no error by the trial judge, dismissed the appeal. Appeal dismissed .