R. v. W.H., 2011 NLCA 59

Date: 20110914 Docket: 10/29 Citation: R. v. W.H. , 2011 NLCA 59

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. IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : W. H. APPELLANT AND : HER MAJESTY THE QUEEN RESPONDENT Coram: Wells, Barry and White, JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division (General) 200901T4624 Appeal Heard: June 8, 2011 Judgment Rendered: September 14, 2011 Reasons for Judgment by Barry, J.A. Concurred in by Wells and White, JJ.A. Counsel for the Appellant: Peter Ralph, Q.C.

Counsel for the Respondent: Stephen R. Dawson Barry, J.A.: [ 1 ] In a classic “she-said, he-said” case, after what both counsel accept was an error-free trial and jury instruction, a jury convicted W.H. of sexual assault and sexual interference. The complainant was his niece. W.H. received a five month conditional sentence and probation of two years.

He now appeals the conviction, submitting the verdict was unreasonable and could not be supported by the evidence because the complainant’s testimony contained many unexplained inconsistencies and improbabilities while his denial was plausible and unshaken on cross-examination. The difficult question for this Court is whether the circumstances give rise to one of those rare cases where appellate court interference with a jury decision is warranted.

BACKGROUND FACTS [ 2 ] W.H. was the complainant’s uncle by marriage and lived with his wife next door to the complainant’s father’s house, in a small Conception Bay community. [ 3 ] The complainant testified concerning three incidents. For ease of reference these may be identified by the place of occurrence: (

i) in the car of W.H.; (ii) in the computer room of W.H. ; and (iii) in the kitchen of W.H. . [ 4 ] The complainant also said there had been a fourth incident but all she could remember about it was that she went downstairs at the home of W.H. to watch T.V. after something happened and W.H. came down, asked her if she was mad at him, and said “You know I love you and I wouldn’t do anything to you like that”. [ 5 ] Because the appellant’s case is based upon alleged unexplained inconsistencies and improbabilities in the complainant’s testimony, it is necessary to set out the evidence in some detail.

It is also important to note the circumstances of her disclosure. [ 6 ] The complainant was born March 6, 1994. Her parents had separated when she was nine years old. On June 13, 2008, the complainant telephoned her mother and told her about an incident with her uncle on a drive to school the previous day. On June 28, 2008, the complainant went to visit her mother in Ontario. After her mother arranged for a medical appointment because of concern regarding the complainant’s use of alcohol, the complainant disclosed to a doctor information of a sexual nature involving W.H.

The complainant’s allegations were passed on to child protection authorities in Ontario, who in turn forwarded the information to the Child Protection Agency in Newfoundland and Labrador. That agency informed the R.C.M.P. on July 11, 2008. A male Ontario police constable interviewed the complainant at the request of the R.C.M.P. on July 23, 2008. [ 7 ] The R.C.M.P. were not satisfied with how the first interview had been conducted, finding it vague and with a lot of “I don’t remember” responses from the complainant.

A female member of the R.C.M.P. from Holyrood, with special training in the interviewing of sexually abused children, traveled to Ontario and conducted a second interview on November 15, 2008. [ 8 ] In the first interview the complainant said only one incident involving her uncle had occurred and that was in the home of W.H., when she and her uncle were alone there. She disclosed three other incidents in the second interview.

The complainant explained she disclosed more then because she did not feel comfortable with the male officer during the first interview and did not want to talk about matters in front of her mother. [ 9 ] After her parents separated in 2003, the complainant, then 9 years old, continued to live with her father, although her parents left her the option to move to Ontario with her mother. Her father’s work took him away for weeks at a time and during those periods the complainant would stay next door with her father’s sister and her husband, W.H.

Other times her father worked long shifts and the complainant would take her meals with her aunt and uncle. She also visited them nearly every day when her father was home, to use their computer or just to see them. [ 10 ] Her father and others testified the complainant openly expressed affection for her uncle. Her father said she had never indicated she did not want to go to the home of her aunt and uncle.

The complainant in June, 2008, after disclosing to her mother, informed her father about one incident only; she said W.H., in the fall of 2007, had “made a grab at her” while she was at his house. [ 11 ] The complainant’s first statement to the Ontario police officer referred to an incident involving touching by her uncle on her breasts and between her legs. She believed it happened while she was in Grade 7 but could not say why she thought this was the case. She could not remember specific details or where it happened. (

i) The incident in the car [ 12 ] During her testimony, when asked to select an incident of which she could recall details, the complainant described her uncle picking her up in his automobile at school to return home after a Christmas Ball. She was attending school in a neighboring community, where she did Grades 5 to 8. She thinks she was then in Grade 7, which would set the incident in December, 2006. She was able to describe the dress and shoes she was wearing.

She recalled her uncle’s car was a green Oldsmobile and that the drive had taken less than ten minutes. [ 13 ] The complainant testified that, as they were driving home, her uncle put his hand under her dress and on her vagina, over her underwear, for three or four seconds. She was pushing his hand away and she said he asked if she would “ever let him in there”. She testified they were almost home and as they were turning into the intersection with a side road the incident occurred. When asked if any

further discussion had occurred, she said her uncle had mentioned to her seeing a naked girl having sex on a picnic table with several men but she was not sure if this discussion had been on that particular night after the Christmas Ball. (ii) The incident in the computer room [ 14 ] The complainant also described how her uncle came up behind her on one occasion and put his hand on her breast, while she was printing something off her computer.

Her aunt and father were down the hall in the living room or kitchen at the time, within hearing range. (iii) The incident at the kitchen table [ 15 ] The complainant testified that on another occasion her uncle had reached around the kitchen table and touched her breast for a few seconds, while her aunt was across the table with her back turned, putting food into the microwave. The complainant said she did not react or say anything that her aunt would notice.

She could not recall if that was before or after the computer room incident. [ 16 ] The complainant also said that on another occasion, her last week in Grade 8, as her uncle drove her to school after she had missed her bus, he said “You know all you have to do is say the word and I’ll make love to you”. She said she had not told anybody about the incidents previously because she “just did not consider it that big of a deal at the time”. But she stated that day she got angry and told two friends when she went to school.

She said that was also the day or thereabouts when she telephoned her mother and told her. [ 17 ] The complainant said she did not tell her aunt about her uncle’s behaviour previously because she did not think her aunt would believe her and she “didn’t want to start anything”. She agreed she had been affectionate towards her uncle after the incidents, giving him hugs and kisses.

When counsel pressed her on cross-examination about the incident where she believed there had been inappropriate conduct by her uncle but she could not recall when it happened, what her uncle did, the time of the year, or where she was in the house, she agreed she had a “terrible memory”. [ 18 ] The complainant agreed her aunt was somewhat more strict with her about her socializing than her father had been.

She also, on cross-examination, testified that during the ride to school in June, 2008, her uncle had been having a conversation with her about the risk of becoming pregnant and advising that she should be careful in her conduct with boys. She said she could not remember telling him it was “none of his fucking business”, as her uncle alleged. Her uncle testified he had had some concern about the complainant’s behaviour because of comments by her he found in a blog on his computer regarding sexual activity and alcohol consumption.

INCONSISTENCIES AND IMPROBABILITIES [ 19 ] Defence counsel submits examination of the complainant’s testimony reveals the following unexplained inconsistencies and improbabilities that lead to the conclusion the verdict was unreasonable. (

i) Delay in reporting [ 20 ] The complainant did not complain about an assault until June 12, 2008, when she says she told her mother. The only date she could recall being touched was in December, 2006, approximately 18 months previously. (ii) Inconsistency as to number and nature of incidents [ 21 ] When the complainant first complained to her mother, father and the Ontario police officer, she noted only one incident but her description of it was not consistent. She told her mother an incident happened in the car of W.H. on the way to school.

She told the Ontario police officer the only incident happened in the home of W.H. She told her father that W.H. had “made a grab at her” in his house. When she spoke to the R.C.M.P. officer from this Province, she described 4 incidents. (iii) Inconsistency as to location [ 22 ] The complainant first said she was assaulted only in the home of W.H. Subsequently she testified about an incident in her uncle’s car in December, 2006. (iv) Inconsistency as to who was present in the home [ 23 ] The complainant first said she and her uncle were alone in the home of W.H. when she was assaulted.

She later said her aunt was present in the kitchen on one occasion and her father and aunt on another occasion. (

v) Inconsistencies and improbabilities as to nervousness [ 24 ] The complainant testified she had told her father on several occasions that she did not want to go to her uncle’s home. Her father testified she had never told him this. Her mother said the complainant had told her around 2007 that she did not want to be going over to the house of W.H. when her father was away but had not given her mother any reason for her reluctance to go over. The complainant admitted she had gone to her uncle’s home when he was there alone, even though she had no particular purpose in so doing.

She also went there to use the computer. Witnesses confirmed she exhibited affection for her uncle during the period between December, 2006 and June, 2008. [ 25 ] The complainant told the Ontario police officer that she was “frightened to death” to ask her uncle for a drive. But at the preliminary inquiry she testified she was never afraid to be in the car with him and there were never occasions when she would avoid being alone with him in the car. Indeed on at least one occasion she had asked her uncle to drive her when her father was available to do so.

(vi) Inconsistency as to touching in car [26] The complainant told the R.C.M.P. officer that W.H. had touched her in his car after they turned on to the side road. Shetestified at trial that he had touched her as he was about to make the turn. (vii) Complete memory failure regarding one incident [27] The complainant testified W.H. had acted inappropriately towards her on another occasion but she could not remember whatoccurred, where it happened or when.

THE LAW [28] The significance of improbabilities and inconsistencies in a witness’s evidence becomes clear in the cases discussing what itmeans for a finder of fact to act judicially in assessing credibility. Other cases on the requirement to give reasons assist in understandingthe concept of acting judicially in this respect. (

a) Unreasonable verdict – acting judicially on credibility [29] Section 686(1)(a)(

i) of the Criminal Code authorizes a court of appeal to set aside a conviction and order a new trial: 686.

(1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminallyresponsible on account of mental disorder, the court of appeal (

a) may allow the appeal where it is of the opinion that (

i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence. . . . [30]

Section 274 provides that no corroboration is required for a conviction: If an accused is charged with a offence under

section 151… [or] 271…, no corroboration is required for a conviction and the judge shallnot instruct the jury that it is unsafe to find the accused guilty in the absence of corroboration. [31] In R. v. Biniaris, 2000 SCC 15 , [2000] 1 S.C.R. 381, Arbour J. reviewed the authorities and confirmed the principlesto be applied by an appeal court in determining if a verdict is unreasonable: (

a) The test is whether on the whole of the evidence the verdict is one that a properly instructed jury, acting judicially, couldreasonably have rendered: R. v. Yebes, (SCC), [1987] 2 S.C.R. 168. (

b) A court of appeal must not merely substitute its view for that of the jury but in applying the Yebes test is entitled to review, analyzeand, within the limits of appellate disadvantage, weigh the evidence. (

c) The test applies equally to a jury and a judge sitting alone. In the latter case, the review may be easier because the appellate courtwill be able to examine the reasons provided by the judge, which may reveal a flaw in the evaluation of the evidence. Such a deficiencyin analysis may appear where a judge was not alive to an applicable legal principle or entered a verdict inconsistent with the factualconclusions reached. (

d) A reviewing court must articulate the basis upon which it finds that the conclusions reached by a jury were unreasonable. Alurking doubt or vague unease based on the court’s review is not sufficient justification for a finding of unreasonableness but may triggerincreased appellate scrutiny. (

e) A jury does not provide reasons for its verdict. To justify a finding of unreasonableness regarding the verdict of a properlyinstructed jury, the appeal court will not be able to point to express deficiencies in analysis. It must fall back upon and articulateinferences drawn from a review of the evidence to support its conclusion that the jury, in arriving at its guilty verdict, could not havebeen acting judicially. (

f) Jury instructions attempt to convey accumulated judicial experience to the jury. Still, in certain rare cases, the totality of theevidence and the peculiar factual circumstances will lead an experienced, legally trained, jurist to conclude that the fact-finding exerciseapplied at trial must have been flawed in light of the unreasonable results it produced. (

g) Acting judicially, in this context, means not only acting dispassionately in applying the law and adjudicating on the basis of the lawand nothing else. It means, in addition, arriving at a conclusion that does not conflict with the bulk of judicial experience. The reviewingcourt’s assessment must, in other words, proceed through “the lens of judicial experience” to identify and articulate, as precisely aspossible, those features of the case which suggest that the verdict was unreasonable.

There may be several causes of concern, none ofwhich, in isolation, might have required a particular warning to the jury. [32] Where a conviction is set aside on the ground that the verdict is unsupported by the evidence, the appellate court, absent legalerrors on the admissibility of evidence, will usually enter an acquittal: R. v. Beaudry, 2007 SCC 5 , [2007] 1 S.C.R. 190. [33] A verdict may be set aside as unreasonable, where the objection to the verdict is based upon credibility. In R. v.

François, (SCC), [1994] 2 S.C.R. 827, at pp. 835-836, McLachlin J. (as she then was) confirmed that in order to apply the Yebestest of a verdict “that a properly instructed jury, acting judicially, could reasonably have rendered”, the court of appeal “must re-examineand to some extent reweigh and consider the effect of the evidence”. She held the approach applies to cases where the objection toconviction is based on credibility. She gave as an example R. v. W.(R.), (SCC), [1992] 2 S.C.R. 122, where the

testimony available to the jury was “so incredible” that a verdict founded upon it had to be unreasonable. [34] In François, McLachlin J. quoted from W.(R.), at pp. 131-132, regarding the need for the appellate court to show greatdeference to findings of credibility made at trial because of “the special position of the trier of fact on matters of credibility” due to theadvantage of seeing and hearing the evidence of witnesses.

She had confirmed, however, in W.(R.), that “as a matter of law it remainsopen to an appellate court to overturn a verdict based on findings of credibility where, after considering all the evidence and having dueregard to the advantages afforded to the trial judge, it concludes that the verdict is unreasonable”. [35] In François, McLachlin J., at pp. 836-837, accepted that review for credibility “may involve consideration of the basis forconclusions which the witness has drawn”.

A circumstance of poor vantage point indicating unreliable identification, for example, maybe less problematic than a challenge to credibility based on the witness’ alleged lack of truthfulness and sincerity. McLachlin J.explained how juries might deal with inconsistencies: … The reasoning here is that the witness may not have been telling the truth for a variety of reasons, whether because of inconsistenciesin the witness's stories at different times, because certain facts may have been suggested to her, or because she may have had reason toconcoct her accusations.

In the end, the jury must decide whether, despite such factors, it believes the witness's story, in whole or inpart.

That determination turns not only upon such factors as the assessment of the significance of any alleged inconsistencies or motivesfor concoction, which may be susceptible of reasoned review by a court of appeal, but on the demeanour of the witness and the commonsense of the jury, which cannot be assessed by the court of appeal… In considering the reasonableness of the jury's verdict, the court of appeal must also keep in mind the fact that the jury may reasonablyand lawfully deal with inconsistencies and motive to concoct, in a variety of ways. The jury may reject the witness's evidence in itsentirety.

Or the jury may accept the witness's explanations for the apparent inconsistencies and the witness's denial that her testimonywas provoked by improper pressures or from improper motives. Finally, the jury may accept some of the witness's evidence whilerejecting other parts of it; juries are routinely charged that they may accept all of the evidence, some of the evidence, or none of theevidence of each witness. It follows that we cannot infer from the mere presence of contradictory details or motives to concoct that thejury's verdict is unreasonable.

A verdict of guilty based on such evidence may very well be both reasonable and lawful. McLachlin J. cautioned that appellate courts reviewing for unreasonableness must keep in mind that the jury may bring to the difficultbusiness of determining where the truth lies special qualities which appellate courts may not share. This is particularly true of sexualoffences where the examination turns on an infinite number of small details related to the credibility of the witnesses, the community inwhich the actors and the jurors live, the standards of conduct in that area, and so forth: Warkentin v.

The Queen, (SCC),[1977] 2 S.C.R. 355, at p. 381. [36] The following words of Rothman J.A. in R. v. Chevrier (1992), 49 Q.A.C. 37, at p. 42, approved in R. v. C. (R.), (SCC), [1993] 2 S.C.R. 226, were confirmed by François as a useful guide for an appellate court reviewing a jury verdict on thebasis of credibility: Credibility is, of course, a question of fact and it cannot be determined by fixed rules. Ultimately, it is a matter that must be left to thecommon sense of the trier of fact, in this case the trial judge (R. v. White, (SCC), [1947] S.C.R. 268).

Unless the recordreveals an error of law or in principle or a clear and manifest error in the appreciation of the evidence, a court of appeal should notintervene in that determination. [37] In R. v. Burke, (SCC), [1996] 1 S.C.R. 474, the Court confirmed that, despite the “special position” of thetrial court in assessing credibility, the court of appeal retains the power, under s. 686(1)(a)(

i) to reverse a trial court’s verdict where theassessment of credibility made at trial is not supported by the evidence. Sopinka J., at para. 6, acknowledged that, while this power of anappeal court should be used sparingly, reviewing courts should observe their statutory duty: This is not to say that an appellate court should shrink from exercising the power when, after carrying out its statutory duty, it concludesthat the conviction rests on shaky ground and that it would be unsafe to maintain it.

In conferring this power on appellate courts to beapplied only in appeals by an accused, it was intended as an additional and salutary safeguard against the conviction of the innocent. [38] In this Court, Marshall J.A. in R. v. C.D.G. (1995), (NL CA), 128 Nfld. & P.E.I.R. 312 (Nfld.

C.A.), madethe same point: [18] … The exercise of an appellate tribunal’s jurisdiction to interfere with findings of credibility comes into play at the point wherethe circumstances lead to a conclusion that the interest of justice so outweighs reliance upon the acknowledged advantage of the trialjudge in hearing and observing the witnesses as to make judicial review imperative. [39] Marshall J.A. went on to adopt the approach of O’Halleran J.A. in Faryna v.

Chorny, (BC CA), [1952] 2D.L.R. 354 (B.C.C.A.), who detailed a standard for trial judges in gauging credibility and stressed the need to test whether the evidenceis consistent with the probabilities that surround the existing circumstances. [40] Wells C.J.N. (as he then was), in R. v. C.H. (1999), (NL CA), 182 Nfld. & P.E.I.R. 32 (Nfld.

C.A.), alsodiscussed the importance of considering inconsistencies when assessing credibility: [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. As Galligan, J.A., observed inR. v.

G. (M.) (1994), (ON CA), 93 C.C.C. (3d) 347 (Ont.) C.A.) at p. 354-355: Probably the most valuable means of assessing the credibility of a crucial witness is to examine the consistency between what thewitness said in the witness-box and what the witness has said on other occasions, whether on oath or not. Inconsistencies on minormatters or matters of detail are normal and are to be expected. They do not generally affect the credibility of the witness. This is

particularly true in cases of young persons. But where the inconsistency involves a material matter about which an honest witness isunlikely to be mistaken, the inconsistency can demonstrate a carelessness with the truth. The trier of fact is then placed in the dilemma oftrying to decide whether or not it can rely upon the testimony of a witness who has demonstrated carelessness with the truth. The effect of inconsistencies upon the credibility of a crucial witness was recently described by Rowles, J.A., speaking for the BritishColumbia Court of Appeal in R. v.

B. (R.W.) (1993), 40 W.A.C. 1 at pp. 9-10, 19 W.C.B. (2d) 260: Where, as here, the case for the Crown is wholly dependent upon the testimony of the complainant, it is essential that the credibility andreliability of the complainant's evidence be tested in the light of all of the other evidence presented. In this case there were a number of inconsistencies in the complainant's own evidence and a number of inconsistencies between thecomplainant's evidence and the testimony of other witnesses.

While it is true that minor inconsistencies may not diminish the credibilityof a witness unduly, a series of inconsistencies may become quite significant and cause the trier of fact to have a reasonable doubt aboutthe reliability of the witness's evidence. There is no rule as to when, in the face of inconsistency, such doubt may arise but at the least thetrier of fact should look to the totality of the inconsistencies in order to assess whether the witness's evidence is reliable. This isparticularly so when there is no supporting evidence on the central issue, which was the case here.

That statement was adopted by Finlayson, J.A., speaking for this court in R. v. S. (W.) (1994), (ON CA), 90 C.C.C.(3d) 242 at pp. 252-4, 29 C.R. (4th) 143, 18 O.R. (3d) 509 (C.A.). [Emphasis added by Wells J.A.] [24] No authority need be cited to support the proposition that observing demeanour is a major tool in the kit of a trial judge whenassessing the credibility of a witness.

However, as important as it is, credibility of a complainant accepted on the basis of demeanouralone, is not a sufficient basis to convict an accused where the allegations are credibly denied or there is other contradictory evidence.Finlayson, J.A., in R. v. S. (W.) (1994), (ON CA), 90 C.C.C. (3d) 242 (Ont. C.A.), at page 250 said: It is evident from his reasons that the trial judge was impressed with the demeanour of the complainant in the witness-box and the factthat she was not shaken in cross-examination.

I am not satisfied, however, that a positive finding of credibility on the part of thecomplainant is sufficient to support a conviction in a case of this nature where there is significant evidence which contradicts thecomplainant's allegations. We all know from our personal experiences as trial lawyers and judges that honest witnesses, whether they areadults or children, may convince themselves that inaccurate versions of a given event are correct and they can be very persuasive. Theissue, however, is not the sincerity of the witness but the reliability of the witness' testimony.

Demeanour alone should not suffice tofound a conviction where there are significant inconsistencies and conflicting evidence on the record: see R. v. Norman (1993), (ON CA), 87 C.C.C. (3d) 153 at pp. 170-4, 26 C.R. (4th) 256, 16 O.R. (3d) 295 (Ont. C.A.), for a discussion on this subject. [25] In Burke, Sopinka, J., at p. 212, concluded "The nature of review under s. 686(1)(a)(

i) demands that I undertake a thoroughreview of the evidence of the complainants." This Court should therefore review the whole record in this case and consider whether ornot the trial judge reasonably subjected the complainant's story, to "an examination of its consistency with the probabilities" thatsurrounded the then existing conditions.

After according due deference to the trial judge, based on the advantageous position he was in,this Court must come to its own conclusion as to whether the complainant's story is in "harmony with the preponderance of probabilitieswhich a practical and informed person would readily recognize as reasonable in that place and in those conditions".

Finally, the courtmust consider whether, in light of those conclusions as to the credibility of the complainant, "a jury or judge properly instructed andacting reasonably" could have convicted the appellant, on all the evidence. [41] When considering whether a jury has acted judicially, a court of appeal must keep in mind that, when an accused testifies, afinder of fact has to proceed with its analysis substantially in the manner set out in R. v.

W.(D.), (SCC), [1991] 1 S.C.R.742, where Cory J. explained at pp. 757-758: A trial judge might well instruct the jury on the question of credibility along these lines: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accusedbut you are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, youmust ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by thatevidence of the guilt of the accused. [42] In R. v.

J.H.S., 2008 SCC 30 , [2008] 2 S.C.R. 152, Binnie J. for the Court noted certain criticisms of the way W.(D.)formulated these questions. Some believe the first question is oversimplified, because a jury may believe exculpatory elements of anaccused’s statement but reject the exculpatory explanation. As to the second question some wonder how, if the jury believes none of theevidence of the accused, such rejected evidence of itself may nevertheless raise a reasonable doubt. Some say the third question fails tocontemplate acceptance of exculpatory bits of evidence of the accused but not the exculpatory elements.

Binnie J. noted with apparentapproval the additional instruction suggested by Wood J.A. in R. v.

H.(C.W.) (1991), (BC CA), 68 C.C.C. (3d) 146(B.C.C.A.), at p. 155: I would add one more instruction in such cases, which logically ought to be second in the order, namely: If, after a careful consideration of all the evidence, you are unable to decide whom to believe, you must acquit. [43] As Binnie J. noted in J.H.S. at para. 13, the message from these cases is that “it must be made crystal clear to the jury that theburden never shifts from the Crown to prove every element of the offence beyond a reasonable doubt”. [Italics in original.] [44] In its most recent decision on an unreasonable verdict, the Supreme Court of Canada in R. v.

Sinclair, 2011 SCC 40, addressedthe distinction between a verdict that is unreasonable because of a misapprehension of evidence, that is, a mistake as to the substance ofthe evidence, as at issue in R. v. Lohrer, 2004 SCC 80 , [2004] 3 S.C.R. 732, and a verdict that is unreasonable because it wasreached illogically or irrationally, as in R. v. Beaudry, 2007 SCC 5 , [2007] 1 S.C.R. 190. A trial judge who is not mistaken asto the evidence but reaches a verdict by an illogical or irrational reasoning process commits an error under the principles set out in

Beaudry. [45] The Court in Sinclair confirmed that Fish J., dissenting in the result in Beaudry, carried the majority there on the question ofwhether a verdict reached illogically or irrationally was “unreasonable” within the meaning of s. 686(1)(a)(

i) of the Criminal Code. Averdict reached illogically or irrationally is “unreasonable” because it is not reached judicially, or in accordance with the rule of law. Nor does it become reasonable because another judge could reasonably have arrived at the same verdict on a different

interpretation ofthe evidence. [46] At paragraph 15 in Sinclair, Fish J., dissenting in the result but speaking for the majority on this point, confirmed that theBeaudry test “addresses the reasonableness of the judge’s verdict, notably by scrutinizing the logic of the judge’s findings of fact orinferences drawn from the evidence admitted at trial”. [Italics in original.] [47] To briefly summarize, in Yebes and Biniaris the Court made it clear that, even in a jury trial, no finding of fact is entirelyexempt from appellate court scrutiny. François accepted that this applied to findings of credibility.

The basis for intervening, if a juryverdict is perceived as unreasonable, is that the properly charged jury could not, in the words of Yebes, have been “acting judicially”:Biniaris, para. 39. In other words, the appellate court draws its own inference from the evidence admitted at trial as to the reasoningprocess of the jury and determines whether this could have been logical or rational in light of the verdict being reviewed.

Occasionally,“the totality of the evidence and the peculiar factual circumstances of a given case will lead an experienced jurist to conclude that thefact-finding exercise applied at trial was flawed in light of the unreasonable result that it produced”: Biniaris, para. 39 [48] This Court applied that approach in R. v.

Bromley, 2004 NLCA 30, overturned a jury verdict of guilty and entered an acquittal,where the number and nature of the contradictions in the complainant’s evidence “could only lead to a reasonable doubt” and the“explanations” offered by the complainant for those contradictions could not resolve the reasonable doubt. [49] While Fish J. in Beaudry and Biniaris stressed the difference between reviewing a verdict of a judge alone and that of a jury,because no express reasons are available in the latter case, this distinction blurs when the nature of the evidence, for example in this casea lack of explanation for inconsistencies, may lead to the inescapable inference that the jury members could not have been reasoninglogically and rationally, that is, “acting judicially” in their manner of approaching these inconsistencies in the context of the presumptionof innocence and the requirement for proof beyond a reasonable doubt.

The appellate court, in the rare cases it arrives at such aninference, has to proceed through the lens of judicial experience and apply a certain model of proper judicial reasoning against which totest the approach of the jury. Assistance in constructing this model may be obtained from those cases which set out the law regardingwhat is required of a trial judge in expressing reasons for a verdict. (

b) Providing reasons and acting judicially [50] In the case of a judge alone, in arriving at a guilty verdict, the judge must provide reasons which are “responsive to the case’slive issues and the parties’ key arguments”: R. v. Walker, 2008 SCC 34 , [2008] 2 S.C.R. 245, at para. 20. [51] The live issue in the present case was whether there could be proof beyond a reasonable doubt in light of the accused’sapparently plausible denial and the inconsistencies and improbabilities in the complainant’s testimony and statement.

Obviously a judgeacting as the finder of fact in the present case would have had to provide reasons which explained why the judge did not believe W.H.’splausible denial and why he believed the complainant despite the unexplained inconsistencies and improbabilities in her testimony.

These reasons, by indicating the judge’s process of analysis, would provide a basis for determining whether the judge had actedjudicially. [52] A court of appeal, in reviewing the reasonableness of a jury’s decision, must consider what would be entailed in the process ofanalysis by a judge to merit the conclusion that the judge acted judicially.

If no reasonable process of analysis by a judge could justifyconviction in the circumstances of the case, an appellate court will be justified in concluding a jury must not have acted judicially inconvicting. [53] In reviewing a judge’s decision to convict, where the complainant’s testimony contained inconsistencies, the court of appealwould consider whether the judge’s reasons adequately responded to the case’s live issues, one of which would be the truthfulness of thecomplainant in light of the inconsistencies. [54] We see this in R. v.

Dinardo, 2008 SCC 24 , [2008] 1 S.C.R. 788, where the accused had his conviction overturnedbecause the trial judge had erred in law by failing to explain how he resolved the significant issues of credibility concerning thecomplainant’s testimony, particularly in light of the accused’s testimony. The Court concluded that, in the context of the evidence andthe issues in the case, the trial judge’s reasons were insufficient to allow for meaningful appellate review on the question of credibility.

Charron J., at para. 26, confirmed that a failure to sufficiently articulate how credibility concerns were resolved may constitute reversibleerror, citing R. v. Braich, 2002 SCC 27 , [2002] 1 S.C.R. 903. In Braich at para. 23, Binnie J. referred to “Non-existent orinadequate reasons with respect to credibility” which may justify appellate intervention. (

c) Reconciling the cases [55] While the principles are reasonably clear, cases may be difficult to reconcile on the application of the principles to the facts. InBromley, the complainant’s evidence contained many inconsistencies, including contradictions about what had happened and the numberof occurrences. The accused denied the allegations. Cameron J.A., with Welsh J.A. concurring, allowed the appeal from conviction andentered an acquittal on the basis that the number and nature of the contradictions in the complainant’s evidence were such thatreasonable doubt was inevitable.

The majority concluded the “explanations” offered for these could not resolve the reasonable doubt. Rowe J.A. would have deferred to the jury’s evaluation of the complainant’s credibility. [56] For a different result see R. v. A.J.S. (1998), (NL CA), 167 Nfld. & P.E.I.R. 183 (Nfld. C.A.). There thisCourt upheld a conviction of sexual assault against a minor, where a jury had convicted despite a denial by the accused and discrepanciesin the complainant’s testimony. The incident happened while the accused sat next to the complainant on an airplane. An airline

employee refuted the complainant’s statement that she had been watching a movie (there was no movie shown on that flight) and that itwas dark on the plane (the interior light ordinarily would have been on). A third discrepancy related to her testimony at the preliminaryinquiry that afterwards she had been afraid of the accused and was never alone with him. At trial she testified she avoided him“whenever possible” (he was her neighbour and still her bowling coach).

Steele J.A. concluded for a unanimous Court that allegedimprobability and the credibility of the complainant were issues squarely before the jury and the conviction was reasonably supported bythe evidence. The Court held that the verdict indicated the jury accepted in large part the evidence of the complainant and were satisfiedthat the evidence in its entirety established the accused’s guilt beyond a reasonable doubt.

The Court did not expressly refer to theevidence which the Court believed had neutralized the inconsistencies so as to cause them to lose their power to raise a reasonable doubtin that case. [57] The scope of appellate review of credibility findings in judge-alone trials where the accused testifies, arose in R. v. R.E.M.,2008 SCC 51 , [2008] 3 S.C.R. 3. The accused testified and admitted having had sex with the complainant, his step-daughter,but only consensually after she turned 15 (the age for minor consent at the time was 14).

The accused denied all the other allegationsagainst him (the trial dealt with 11 incidents relating to 4 charges). The accused admitted one offence and denied the other 3 charges. He was ultimately acquitted of one of them and convicted of the 2 others. [58] The trial judge found the complainant to be a very credible witness, that much of her testimony was not seriously challenged,and that she was not prone to embellishment or vindictiveness.

The trial judge said he largely disbelieved the accused’s evidence,although at some points found that it was not seriously challenged. [59] The Court of Appeal found that the trial judge’s failure to explain why he rejected the accused’s plausible denial of the chargesplaced the reasons beyond the scope of meaningful appellate review and ordered a new trial. [60] The Supreme Court restored the verdicts of guilty.

McLachlin C.J.C. noted that the trial judge had discussed reasons forconcluding the complainant was a credible witness and accepting most of her evidence, while rejecting some portions that had beencontradicted by other evidence. The trial judge also gave some reasons for disbelieving the accused’s evidence. McLachlin C.J.C., atpara. 66 stated: Finally, the trial judge’s failure to explain why he rejected the accused’s plausible denial of the charges provides no ground for findingthe 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. To reconcile this statement with the presumption of innocence and the requirement for proof beyond a reasonable doubt one mustconclude that the Supreme Court found sufficient supporting reasons for believing the complainant, although these are not detailed in thejudgment.

THE ISSUE [61] The issue in this case is whether the properly instructed jury could have been acting judicially and reasonably in rendering averdict of guilty in light of the inconsistencies and improbabilities in the complainant’s evidence and the apparently plausible denial ofthe accused, unshaken on cross-examination and unremarkable as to demeanour.

ANALYSIS [62] For the reasons set out below, I have concluded that the conviction in this matter, in the words of Burke “rests on shaky groundand that it would be unsafe to maintain it.” I proceed on the assumption that this Court should show great deference to finders of fact attrial, which in this case is a jury. Nonetheless, as the Court made clear in Biniaris, even in a jury trial no finding of fact, including oneregarding credibility, is entirely exempt from appellate court scrutiny.

If the appellate court draws inferences from the evidenceestablishing that the reasoning process of the jury would not have been logical or rational in light of the verdict under review, the courtmay intervene on the basis that the jury could not have been acting judicially.

Applying that approach in the present case, I conclude thejury could not have been acting judicially and reasonably in finding proof of guilt beyond a reasonable doubt. [63] I agree with the appellant’s counsel that one important aspect to be considered in assessing credibility is consistency or lack ofit in statements made by the witness when addressing the matter in the witness box and on other occasions.

This Court must examine theconsistency between what the witness said in the witness box and what the witness has said on other occasions, and also examine theconsistency between the testimony of the complainant and that of other witnesses during the trial. As noted in Faryna, quoted in C.H.and C.D.G.: The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether thepersonal demeanor of the particular witnesses carried conviction of the truth.

The test must reasonably subject [the witness’s] story to anexamination of its consistency with the probabilities that surround the [then existing] conditions. [64] Consideration of the inconsistencies in the testimony and statements of the complainant has to lead to the conclusion that herevidence was not in harmony with the preponderance of probabilities which a practical and informed person would readily recognize asreasonable in the then existing circumstances of the complainant, taking into account all explanations given by her for thoseinconsistencies.

(

i) Delay in reporting [65] The first inconsistency relied on by the appellant is the conduct of the complainant in not reporting what allegedly occurred inDecember, 2006 until June 2008. The appellant submits this delay is inconsistent with any alleged offence having occurred in 2006. This submission carries little weight in itself. In R. v. D.D., 2000 SCC 43 , [2000] 2 S.C.R. 275, the Court noted there is noinviolable rule about how witnesses of sexual assault will react. The timing of the complaint is simply one factor to consider inassessing the complainant’s credibility.

The complainant gave a plausible explanation that she did not complain earlier because she didnot believe the assaults would be repeated. In the circumstances, I give no weight to delay in reporting. (ii) Inconsistency regarding number and nature of incidents [66] When the complainant first complained to her mother, father and the Ontario police officer about W.H., she described onlyone incident. Yet when she gave a statement to the R.C.M.P. officer she described four. This is a significant discrepancy which raisesconcern about the complainant’s truthfulness.

She testified that she felt more comfortable speaking alone to the female R.C.M.P. officerthan she did giving a statement to the Ontario policeman and wanted to avoid embarrassment speaking in the presence of her mother. Discomfort and embarrassment may help explain omitted incidents. But they do not adequately explain her express denial that any otherincidents had occurred.

Nor does it explain why the complainant initially gave different descriptions of what had occurred in the singleincident she disclosed – she told her mother of an incident in the car on the way to school, told the Ontario police officer the onlyincident occurred in the home of W.H. and told her father only about W.H. making “a grab” at her in his house. Also, she contradictedherself somewhat in her explanation in that at the preliminary inquiry she had said her memory had improved between the first andsecond police interviews while at trial she said she had deliberately decided not to discuss all incidents.

This leaves some seriousquestions about whether her testimony provides a safe basis for conviction. (iii) Inconsistency regarding location [67] The complainant told the Ontario police officer that the only incident had happened in the home of W.H. and nowhere else. Yet she testified at trial that the most serious incident and the only one she can put a date on happened in the vehicle of W.H. inDecember, 2006. The complainant did not provide any explanation for this discrepancy other than discomfort in speaking to a maleofficer in her mother’s presence.

Such discomfort would go somewhat towards explaining omissions but does not adequately explain herexpress denial of other locations. This inconsistency creates serious concern about her truthfulness overall. (iv) Inconsistency regarding who was present in the home [68] The complainant told the Ontario police officer that she and her uncle had been alone in the house when she was assaulted. She later said her aunt had been present on one occasion in the same room and her aunt and father on another in a different room, withinhearing range. She did not explain the reason for this discrepancy.

This leaves an additional question regarding her credibility. (

v) Inconsistencies regarding nervousness [69] The complainant’s father denied her testimony that she had told him she did not want to go to her uncle’s home. Also, thecomplainant admitted she had visited the home when she knew her uncle was there alone, sometimes to use his computer and other timesfor no particular reason.

On cross-examination, the complainant could not explain how this conduct could be consistent with herstatement that she did not wish to visit the home of W.H. [70] The complainant did not explain why she told the Ontario police officer she was “frightened to death” to drive with her unclealone yet at the preliminary inquiry testified she was never afraid to be with him in his car.

Nor did she explain why she had asked heruncle to drive her when her father was available. [71] It is not uncommon for young victims of sexual abuse to have continued association with an abuser and even to exhibit positivefeelings towards the abuser.

But the contradiction of her testimony by her father, her inconsistent statements regarding nervousness, hervisits to her uncle’s house while he was there alone, and her exhibited willingness to drive alone with him even when other drivers wereavailable, raise significant concerns about her credibility. (vi) Inconsistency regarding touching in the car of W.H. [72] The complainant told the R.C.M.P. officer that W.H. had touched her in his car after they had turned onto the side road. Attrial she testified that he had touched her as they were about to turn. She could not explain this discrepancy.

I place little weight on thisminor discrepancy. (vii) Complete memory failure regarding one incident [73] I do find it of concern that despite saying she vaguely recalled another incident where she believed her uncle had actedinappropriately, the complainant could not give a single detail regarding the nature of the conduct or where it happened in the house orwhen it happened. It is improbable that a victim’s memory would be completely blank on these details in such circumstances.

This addssome slight additional doubt regarding her credibility. [74] On the basis of these unexplained inconsistencies and improbabilities alone, the credibility of the complainant was damaged tothe extent that it is questionable whether a jury acting judicially could reasonably have convicted. But, in addition, the jury, if actingjudicially, had to consider the testimony of the complainant in the context of the accused’s denial of all allegations of the complainant. Nothing appears from the transcript which should have caused a juror to question his truthfulness.

His testimony was not shaken oncross-examination. He responded to questions directly, without hostility or argumentative responses. The closing statement of theCrown prosecutor made no reference to anything remarkable regarding W.H.’s demeanour.

[ 75 ] An experienced judge sitting alone, with the evidence presented in this case, would not be able to provide adequate reasons to explain how he or she could be convinced beyond a reasonable doubt of the accused’s guilt in light of the credibility concerns arising from the unexplained inconsistencies and improbabilities arising from the complainant’s testimony and statements. This is not a case where the jury would be entitled to accept the complainant’s explanations for deficiencies in her recollection and still be satisfied of the essential truth of her testimony.

The complainant provided inadequate explanations for her inconsistencies regarding the number of incidents. She did not explain why she first said the only incident had occurred in the home of W.H. and later placed the most serious alleged incident in the car. She did not explain why initially she said they had been alone in W.H.’s house when the incident occurred. She did not provide any explanation for inconsistencies relating to whether she was afraid to be alone with her uncle in his home or in his car.

Visiting his home when she knew he was there alone and asking that he drive her when other drivers were available raise particular concerns here. She could not explain why her memory was completely blank on another vague allegation of inappropriate conduct.

When tested on cross-examination, the complainant’s explanations in this case could not, unlike François , neutralize the inconsistencies so as to cause them to lose their power to raise a reasonable doubt. [ 76 ] This Court must also keep in mind that the accused in this case testified and denied the accusations and the record reveals no reason to prefer the complainant’s testimony over his.

Because of the unexplained inconsistencies and improbabilities noted above, we need not decide whether proper application of the presumption of innocence and the requirement for proof beyond a reasonable doubt could ever justify challenging the reasonableness of a jury conviction where no apparent feature of the evidence indicates who should be believed. See, W.(D.) . It is enough to say here that, on the whole of the evidence, and mindful of the jury advantage, the verdict of guilty is not one that a properly instructed jury, acting judicially, could reasonably have rendered.

A judge alone could have no adequate reasons on the evidence for getting past the concerns about credibility and arriving at proof of guilt beyond a reasonable doubt. The prosecutor could point to nothing remarkable regarding the demeanor of W.H. Therefore, in the circumstances, it is a reasonable inference that the jury could not have been acting judicially in convicting. DISPOSITION [ 77 ] The appeal is allowed and an acquittal is entered. ______________________ L. D. Barry, J.A. I concur: ______________________ C. K. Wells, J.A. I concur: _______________________ C. W. White, J.A.