R. v. D.C.M., 2011 NLCA 62

Date: 201109 30 Docket: 10/133 Citation: R. v. D.C.M. , 2011 NLCA 62

Section 486.4 of the Criminal Code respecting the non-publication of the identify of a complainant or of a witness and any information from which they might be identified applies to this judgment. THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : D.C.M. APPELLANT AND : HER MAJESTY THE QUEEN RESPONDENT Coram: Green, C.J.N.L, Barry and Rowe, JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division (General), Gander 200905T0102 Appeal Heard: September 16, 2011 Judgment Rendered: September 30, 2011 Reasons for Judgment by Barry, J.A. Concurred in by Green, C.J.N.L.

Concurred in in part by Rowe, J.A. Counsel for the Appellant: Franklin R. A. Layte

Counsel for the Respondent: Stephen R. Dawson Barry, J.A.: [1] A jury convicted D.C.M. on two counts of sexual assault committed against S.B., the daughter of D.C.M.’s common lawspouse. D.C.M. testified and denied S.B.’s accusations, saying they were untrue and did not happen. He now appeals on the ground thatthe verdict was unreasonable or cannot be supported on the evidence. THE LAW [2] Counsel do not differ on the law to be applied in determining when the circumstances establish one of those rare cases wherean appellate court should interfere with a jury verdict.

They accept this Court should be guided by R. v. Biniaris, 2000 SCC 15 ,[2000] 1 S.C.R. 381, R. v. A.G., 2000 SCC 17 , [2000] 1 S.C.R. 439, and R. v. Francois, (SCC), [1994] 2S.C.R. 827. I recently reviewed these cases in R. v. W.H., 2011 NLCA 59. I will not repeat in detail what I set out there. A briefsummary will, however, be useful. [3] Section 686(1)(a)(

i) of the Criminal Code authorizes a court of appeal to allow an appeal where it is of the opinion that “theverdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence.” [4] The court in Biniaris confirmed the test of an unreasonable verdict stated in R. v. Yebes, (SCC), [1987] 2S.C.R. 168: Whether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered. Appellate courts should show great deference to finders of fact at trial.

But even in a jury trial no finding of fact, including one regardingcredibility, is exempt from appellate court scrutiny: François; R. v.

Burke, (SCC), [1996] 1 S.C.R. 474. [5] In rare cases “the totality of the evidence and the peculiar factual circumstances of a given case will lead an experiencedjurist to conclude that the fact-finding exercise applied at trial was flawed in light of the unreasonable result that it produced”: Biniaris,para. 39. [6] Although no express reasons for verdicts are available in jury cases, the nature of the evidence in a particular case, forexample, a lack of explanation for inconsistencies, may lead to the inescapable inference that the jury members could not have beenacting logically and rationally, that is, in the words of Yebes, “acting judicially”, in the manner of approaching the inconsistencies in thecontext of the presumption of innocence and the requirement for proof beyond a reasonable doubt.

In those rare cases the appellate courthas to proceed through the lens of judicial experience and test the approach of the jury by applying a model of proper judicial reasoning. [7] As noted in Biniaris, however, before upsetting a jury verdict, a reviewing court must be able to articulate the basis uponwhich it finds that the conclusions reached by a jury were unreasonable.

By articulating inferences drawn from a review of the evidence,the appellate court must be able to point to express deficiencies in the jury’s analysis to support its conclusion that the jury, in arriving atits guilty verdict, could not have been acting judicially.

Being left, after close scrutiny, only with the lurking doubt or vague uneasewhich initially triggered the increased appellate scrutiny is not sufficient justification for a finding of unreasonableness. [8] The mere fact an appellate court judge would have had a doubt when the trial judge or jury did not is insufficient to justifythe conclusion that the verdict was unreasonable: R. v.

A.G., 2000 SCC 17 , [2000] 1 S.C.R. 439. [9] The Court in A.G. rejected the view that in “oath-against-oath” trials, where one witness’s testimony is starkly pitted againstanother’s, conviction on the basis of belief in the uncorroborated evidence of a complainant necessarily impairs the integrity of thepresumption of innocence. The Court confirmed that a trial judge in a sexual assault case as in any other case is entitled to believe theuncorroborated evidence of a complainant (para. 30). [10] In R. v.

R.E.M., 2008 SCC 51 , [2008] 3 S.C.R. 3, McLachlin C.J.C. discussed what constitutes sufficient reasons by atrial judge in assessing credibility. Her analysis assists in arriving at the proper balance - what Woods J.A. in R. v.

K.(V.) (1991), (BC CA), 68 C.C.C. (3d) 18 (B.C.C.A.), at p. 35, described as avoiding replacing in sexual assault cases “the gender-related stereotypical thinking that led to [improper] assumptions about the credibility of complainants” with “an equally pernicious set ofassumptions about the believability of complainants which would have the effect of shifting the burden of proof to those accused of suchcrimes”. [11] McLachlin, C.J.C. discussed rejection of an accused’s plausible denial in R.E.M., at paras. 48, 56 and 66: [48] The sufficiency of reasons on findings of credibility — the issue in this case — merits specific comment.

The Court tackled thisissue in [R. v. Gagnon, 2006 SCC 17 , [2006] 1 S.C.R. 621] setting aside an appellate decision that had ruled that the trialjudge’s reasons on credibility were deficient.

Bastarache and Abella JJ., at para. 20, observed that “[a]ssessing credibility is not ascience.” They went on to state that it may be difficult for a trial judge “to articulate with precision the complex intermingling ofimpressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events”, and warnedagainst appellate courts ignoring the trial judge’s unique position to see and hear the witnesses and instead substituting their ownassessment of credibility for the trial judge’s. [56] … The trial judge should not be found to have erred in law for failing to describe every consideration leading to a finding ofcredibility, or to the conclusion of guilt or innocence.

Nor should error of law be found because the trial judge has failed to reconcileevery frailty in the evidence or allude to every relevant principle of law. Reasonable inferences need not be spelled out. For example if,in a case that turns on credibility, a trial judge explains that he or she has rejected the accused’s evidence, but fails to state that he or she

has a reasonable doubt, this does not constitute an error of law; in such a case the conviction itself raises an inference that the accused’sevidence failed to raise a reasonable doubt. Finally, appellate courts must guard against simply sifting through the record and substitutingtheir own analysis of the evidence for that of the trial judge because the reasons do not comply with their idea of ideal reasons. As wasestablished in Harper v.

The Queen, (SCC), [1982] 1 S.C.R. 2, at p. 14, “[a]n appellate tribunal has neither the duty northe right to reassess evidence at trial for the purpose of determining guilt or innocence. . . . Where the record, including the reasons forjudgment, discloses a lack of appreciation of relevant evidence and more particularly the complete disregard of such evidence, then itfalls upon the reviewing tribunal to intercede.” [66] Finally, the trial judge’s failure to explain why he rejected the accused’s plausible denial of the charges provides no ground forfinding the reasons deficient.

The trial judge’s reasons made it clear that in general, where the complainant’s evidence and the accused’sevidence conflicted, he accepted the evidence of the complainant. This explains why he rejected the accused’s denial. He gave reasonsfor accepting the complainant’s evidence, finding her generally truthful and “a very credible witness”, and concluding that her testimonyon specific events was “not seriously challenged” (para. 68). It followed of necessity that he rejected the accused’s evidence where itconflicted with evidence of the complainant that he accepted.

No further explanation for rejecting the accused’s evidence was required. In this context, the convictions themselves raise a reasonable inference that the accused’s denial of the charges failed to raise a reasonabledoubt. [12] The comments in paragraph 66 must be considered in the context of the trial judge’s findings in R.E.M. that the complainantgave her testimony “in a very forthright manner”, was not seriously challenged on cross-examination and provided so much detailregarding one count that, in the opinion of the trial judge, it would be difficult for anyone to fabricate such an incident.

He also foundshe had not embellished where she could have nor did she exhibit vindictiveness. [13] Although not expressly discussed in W.H., the authorities there cited make clear that an appellate court may intervene to setaside a jury verdict on the ground it is unreasonable, even though sufficient evidence existed to require the case going to the jury. [14] In Biniaris, at para. 39, Arbour J. for a unanimous court, confirmed that even though a jury has been adequately charged andwarned about the frailties of certain evidence, “it remains that in some cases, the totality of the evidence and the peculiar factualcircumstances of a given case will lead an experienced jurist to conclude that the fact-finding exercise applied at trial was flawed in lightof the unreasonable result that it produced”.

This might be due to an analytical flaw by the jury in arriving at its verdict. [15] Earlier, in François, at p. 835, the Court reaffirmed that, where a lurking doubt regarding the reasonableness of a verdicttriggers thorough appellate scrutiny, the appellate court “must re-examine and to some extent reweigh and consider the effect of theevidence” (quoting R. v. Yebes, (SCC), [1987] 2 S.C.R. 168, at p. 186), even where the objection to the conviction isbased on credibility.

The Court made clear in François, however, at p. 839, that it was for the jury to initially weigh the significance ofany alleged inconsistencies or contradictions and consider whether explanations offered provided a means of reasonably resolving thedoubt created by the inconsistencies. [16] Recently, in R. v. Sinclair, 2011 SCC 40, the majority of the Court concurred with the conclusion of Fish J. (dissenting in theresult) that his earlier decision in R. v.

Beaudry, 2007 SCC 5 , [2007] 1 S.C.R. 190, concurred in by Binnie J. on this point, atparas. 77-80, that a verdict may be unreasonable even if supported by the evidence, set out the current law. This is true, not only in thecase of inconsistent verdicts, but also where a decision has been “reached illogically or irrationally” (see Sinclair, paras. 17 and 44-45). [17] It would be wrong, therefore, for a trial judge to remove from a jury the task of weighing the evidence and attempting toresolve inconsistencies in the process of assessing credibility.

But Sinclair confirms that even in a jury trial no finding of fact, includingone regarding credibility, is entirely exempt from appellate court scrutiny. In rare cases, after a finder of fact has reached its verdict, theappeal court may still intervene and overturn a conviction.

In those cases the inescapable inference is that the finding of credibility is sodemonstrably incompatible with the evidence that it had to have been reached illogically or irrationally and, therefore, is unreasonablebecause it was not reached “judicially” or in accordance with the rule of law. (See Sinclair, paras. 21, 26 and 30.) THE EVIDENCE AND ANALYSIS [18] Defence counsel correctly and frankly conceded in the present case that the transcript of evidence does not reveal as manysignificant inconsistencies in S.B.’s testimony as were present in the complainant’s evidence in W.H.

Neither are the allegedinconsistencies as compelling here in assessing credibility. I will review and examine each of the concerns raised by defence counsel. (

i) Delay in reporting [19] S.B. did not disclose anything about the alleged 2005 sexual assaults until early 2008. There is no inviolable rule about howwitnesses of sexual assault will react: R. v. D.D., 2000 SCC 43 , [2000] 2 S.C.R. 275. The timing of the complaint is simplyone factor to consider in assessing the complainant’s credibility. S.B. provided a credible explanation for the delay. She testified shefeared losing her relationship with her mother.

I attach little weight to delay in reporting in this case. (ii) Reason and timing for trip to Alberta [20] S.B. testified she was twelve when the offences occurred. She said she remembered because she went to Alberta with hermother shortly after it happened. S.B. would not have been thirteen until March 25, 2006. Defence counsel suggested her mother’stestimony that they went to Alberta in March, 2006, raised doubt about S.B.’s credibility because she would have been thirteen in 2006.

But S.B. said she and her mother left for Calgary either the end of February or the beginning of March and her mother confirmed the tripoccurred before March 26, 2006. So no inconsistency arose here. [21] Defence counsel also suggests S.B. implied she and her mother went to Calgary to get away from D.C.M., while her mothertestified they went to be with her other daughter who was having a difficult pregnancy. I find nothing in the transcript to support thesuggested implication. S.B. testified simply, “… when this happened and I told my Mom about this incident, we left and went away toCalgary”.

When asked why she went to Alberta she said she just went because her mother was going. These are statements of fact

which, read in context, do not bear the implication alleged by defence counsel. S.B. merely raised the Calgary trip in the context of establishing why she recalled the year the offences occurred. (iii) Denial by mother that S.B. disclosed [ 22 ] S.B.’s mother denied that S.B. had told her about the incidents before the police became involved. S.B. said she told her mother shortly after the second incident. This is a significant inconsistency and it was pointed out to the jury by both defence counsel and the trial judge.

The jury was entitled to assess its impact on the credibility of S.B., keeping in mind the mother’s possible desire to maintain her relationship with D.C.M. (iv) Disclosure to father [ 23 ] S.B. testified she told her father but he was drunk at the time and afterwards he could not remember. She said she did not tell him again because she felt ashamed. The jury had this information and was entitled to assess any impact on credibility in the light of their common sense experience. (

v) S.B. lied to her mother on another matter [ 24 ] A young teenager’s lie to her mother regarding the peripheral matter of which girlfriend she was visiting does not carry much weight in the circumstances. [ 25 ] Careful scrutiny of the alleged inconsistencies noted above do not lead me to the conclusion that an experienced judge sitting alone would be unable to provide adequate reasons to explain why he or she had been convinced beyond a reasonable doubt of the guilt of D.C.M. in light of credibility concerns and D.C.M.’s denial of the charges.

This is not the type of case discussed in R.E.M. , at para. 56 , where the record discloses a lack of appreciation of relevant evidence or the complete disregard of it. W.H. may be distinguished as there a reasonable inference arose that the jury had disregarded the inconsistencies in the complainant’s evidence and failed to properly apply the presumption of innocence and the requirement for proof beyond a reasonable doubt.

In the present case, a judge, like the jury, could consider the mother’s corroboration of S.B.’s testimony that S.B. would come to their bed while the mother and D.C.M. lay there, although D.C.M. testified he could not recall that happening.

Also, some support for S.B.’s allegations arises from the testimony of her girlfriend that S.B. had disclosed the inappropriate conduct of D.C.M. to the girlfriend before disclosing to her guidance counselor, who in turn informed the police. [ 26 ] Although the mother’s contradiction of S.B.’s testimony and the basically unshaken denial of D.C.M. does leave me with some vague unease, I am unable to infer after a thorough review and re-examination of the evidence and the circumstances of this case that the jury could not have been acting judicially in convicting.

The vague unease I am left with after re-examination of the evidence does not meet the test which the cases set for interfering with a jury conviction.

SUMMARY AND DISPOSITION [ 27 ] In

summary: (

i) The alleged inconsistencies in the present case do not establish a situation where, after a close re-examination of the evidence and the circumstances, I am left with anything more than the vague unease which often remains in this type of case. (ii) The appeal is dismissed. _______________________ L. D. Barry, J.A. I concur: ______________________ J. D. Green, C.J.N.L. Concurring in Part by Rowe, J.A. [ 28 ] I agree with the result set out by my brother Barry. I also concur in his reasons, save for paras. 13 – 17. In those paragraphs, he deals with matters not necessary to decide this appeal.

As such, his comments are obiter , as are mine below. [ 29 ] It is settled law that the trial judge should enter an acquittal and not put a count to the jury if there is insufficient evidence for the jury properly to convict. It has been my understanding that, as a corollary, if an appeal court holds that a conviction was unreasonable, then the court is implicitly saying that, as a matter of law, the trial judge should not have put the count to the jury, but rather should have entered an acquittal. Justice Barry states a different view.

He says that even where there is sufficient evidence for the jury properly to convict, nonetheless, the appellate court can set aside the verdict. Thus, appellate courts are free to substitute their own verdict for that rendered by a jury, even where the jury had before it evidence sufficient for them properly to convict. If Justice Barry’s reliance on Fish J. in R. v. Sinclair , supra, and his reading of earlier Supreme Court cases is accurate, then this is the law. Not needing to resolve the matter for the purpose of deciding this case, I leave it for the future. _______________________________ M. H. Rowe, J.A.