R. v. Saunders, 2011 NLCA 66

Date: 20111005 Docket: 10/73 Citation: R. v. Saunders , 2011 NLCA 66

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 : DWIGHT JONATHAN SAUNDERS APPELLANT AND : HER MAJESTY THE QUEEN RESPONDENT Coram: Wells, Barry and Harrington, JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division (G) 200901T3382 Appeal Heard: September 22, 2011 Judgment Rendered: October 5, 2011 Reasons for Judgment by Wells, J.A.

Concurred in by: Barry and Harrington, JJ.A. Counsel for the Appellant: Lori Marshall & Jennifer Curran Counsel for the Respondent: Robin Fowler Wells, J.A.: [ 1 ] The appellant was convicted, at trial before a judge and jury, on one charge of sexual assault contrary to section 271(1) of the Criminal Code of Canada ( Code ), and one charge of theft contrary to

section 334 (b)(i). He asks this Court to set those verdicts aside on the grounds that they are unreasonable or cannot be supported by the evidence. He challenges what must have been the jury’s conclusion that the Crown’s evidence provides proof beyond a reasonable doubt that a sexual assault had occurred and of his

identification as the offender. BACKGROUND FACTS [ 2 ] The complainant, a nineteen year old woman, has suffered from significant disabilities respecting her eyesight, speech, motor skills and balance, since age four. It was first thought to be cerebral palsy but about three years prior to the trial of this matter she was diagnosed as having mitochondrial disease. Her mother described a variety of medications she takes to alleviate the consequences, her use of a cane and splints in her boots, a notepad and pen or a computer to answer questions, and a variety of glasses to deal with fluctuations in her eyesight.

She indicated that some days her daughter can see fairly well when she gets up but other days cannot and explained that this fluctuation results from muscle spasms, including muscle spasms around her eyes. Her mother, who is used to her daughter’s speech, can understand her fairly well but says that for anyone who did not know her, her speech would be very difficult to understand.

Her evidence was given entirely by typing her answers through a special purpose computer and computer programming which also enables her to employ zooming to assist with her eyesight problems. [ 3 ] On a weekend in the fall of 2008, the complainant hosted, at her apartment, a birthday party for her then boyfriend, Chris Lane. One of their invited guests brought a friend, Christopher Collins. A short time later, on November 28, 2008, the complainant had another party and invited Collins. Later in the evening she asked her boyfriend to drive to the Avalon Mall to pick up Collins.

With a male and female friend, he left the apartment to do so, leaving the complainant and her friend Courtney Fleming alone in the apartment. [ 4 ] Shortly after, Christopher Collins knocked on the door and, with the complainant’s approval, Courtney Fleming admitted him and a second male. There is some disagreement as to the manner in which, and the name by which, Collins introduced the second male. The complainant indicated that Collins first introduced him as his brother John. Courtney Fleming indicated some uncertainty as to when he was introduced as Dwight Saunders but is quite certain that it occurred.

The complainant also said that he was referred to by Collins several times as Dwight and, prior to leaving that evening Collins confirmed that his name was Dwight Saunders. [ 5 ] The four of them drank some alcoholic beverage and there is evidence that Collins and his friend were drinking before they arrived at the apartment. According to the complainant, they were listening to music, and there was some dancing and the second male was kissing and “hitting on” her. Courtney Fleming denies dancing occurred or seeing kissing.

While the complainant was in the bathroom, Courtney Fleming left to walk to McDonalds to get some food before it closed. [ 6 ] The uncontradicted evidence of the complainant is that when she came out of the bathroom the second male grabbed her, picked her up, brought her into the bedroom and laid her on her back on the bed. She says she did not see his face when he picked her up from behind, and did not look at his face when he laid her on the bed because she was screaming and crying and trying to get away from him, and did not want to see his face.

When she resisted his advances, he placed her arms above her head and held both with his right hand while, with his other hand, pulling down her pants, undoing his own trousers and taking out his penis. [ 7 ] At this point, the complainant says, Collins came into the room, pulled the second male off her and took her into the bathroom. While there he started caressing her and attempting to kiss her and touch her breasts. He was quite drunk and she was able to push him away, as a result of which he fell backwards into the bathtub.

She ran out of the bathroom in time to see the second male running out of the apartment with her laptop and her camera. She again says she did not see his face but he had on the same coat as the second male had on when he came in. He grabbed his boots but did not put them on and ran out of the house with the cord of her laptop hanging down under his coat. She then pressed the button on her alarm system and went into her bedroom intending to get her cell phone but realized her boyfriend had taken it with him. [ 8 ] About five minutes after the second male left, Courtney Fleming returned.

The complainant says she was on the floor crying at this time. Courtney Fleming describes her in the same manner and says that Chris Collins was in the kitchen. Shortly thereafter the complainant’s boyfriend, Chris Lane, and his two friends returned. According to Chris Lane the complainant was still on the floor crying and complaining that her laptop had been stolen. He called the police and made Chris Collins leave the apartment.

Chris Lane says he was also told of the other events that had occurred while he was away from the apartment. [ 9 ] The appellant and Chris Collins were both charged with sexual assault, and the appellant was also charged with theft. Chris Collins pleaded guilty to common assault. [ 10 ] The appellant pleaded not guilty to both charges. At the preliminary inquiry and at trial, the complainant did not, on direct examination, identify the appellant in person.

She explained that she knew it was the appellant because she was told by Chris Collins that the man was Dwight Saunders and Collins called him Dwight several times. When, on cross-examination, she was asked why she did not mention his name in the two statements she had earlier given to the police, she explained that it was because she did not know how to spell his name.

Notwithstanding her earlier positions, when she was pressed by counsel for the appellant, she ultimately identified the person in the prisoner’s dock as the man who was in the apartment that night. [ 11 ] Courtney Fleming could not positively identify the appellant as the other male in the complainant’s apartment with Chris Collins. Chris Collins admitted lying about a number of matters including his earlier statements to the police incriminating the appellant.

He said he lied to incriminate the appellant because he was concerned about the possibility that he could be blamed for that assault instead of the appellant. He then asserted that he was so drunk he could remember none of what happened that night. [ 12 ] The jury found the appellant guilty as charged. He now appeals those convictions on the ground that they are unreasonable or cannot be supported by the evidence. He asks this Court to exercise its powers under section 686(1)(a)(i), to set aside the convictions and enter acquittals or order a new trial.

ISSUE [ 13 ] No issue respecting the trial judge’s instruction to the jury has been raised. In fact, at the hearing of the appeal, counsel for the Crown and for the appellant agreed that the trial was error-free. The parties are agreed that the sole issue is should the verdicts be set aside, pursuant to section 686(1) (a)(

i) of the Code , on the grounds that they are unreasonable or cannot be supported by the evidence?

THE LAW [14]

Section 686 of the Code defines the powers of a court of appeal hearing an appeal against conviction. The portion of thatsection relevant to this appeal reads: 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, (ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or (iii) on any ground there was a miscarriage of justice; (

b) may dismiss the appeal where … (ii) the appeal is not decided in favour of the appellant on any ground mentioned in paragraph (a), … It should also be noted that

section 274 of the Code provides that no corroboration is required for conviction on certain offences. Itreads: 274. If an accused is charged with an offence under

section 151, … 271… or 273, no corroboration is required for a conviction and thejudge shall not instruct the jury that it is unsafe to find the accused guilty in the absence of corroboration. [15] The extent of the discretion of an appellate court, exercising power under section 686(1)(a)(i), and the manner in which thatdiscretion is to be exercised, has been the subject of recent consideration by this Court (see R. v. W.H., 2011 NLCA 59).

In that case theCourt, after extensive review of relevant jurisprudence, identified the law applicable and did so primarily on the basis of the principlesidentified by the Supreme Court of Canada decisions in R. Yebes, (SCC), [1987] 2 S.C.R. 168, and R. v. Biniaris, 2000SCC 15 , [2000] 1 S.C.R. 381. [16] In W.H., Barry, J.A. wrote: [31] In R. v. Biniaris, 2000 SCC 15 , [2000] 1 S.C.R. 381, Arbour J. reviewed the authorities and confirmed the principles tobe 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,analyze and, 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 appellatecourt will be able to examine the reasons provided by the judge, which may reveal a flaw in the evaluation of the evidence. Such adeficiency in analysis may appear where a judge was not alive to an applicable legal principle or entered a verdict inconsistent with thefactual conclusions 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 thelaw and nothing else. It means, in addition, arriving at a conclusion that does not conflict with the bulk of judicial experience. Thereviewing court’s assessment must, in other words, proceed through “the lens of judicial experience” to identify and articulate, asprecisely as possible, those features of the case which suggest that the verdict was unreasonable.

There may be several causes ofconcern, none of which, in isolation, might have required a particular warning to the jury. [17] Consideration of the specific comment of Arbour, J., in Biniaris, comparing appellate review for reasonableness in the case oftrial by a judge alone with trial by a judge and jury, is particularly instructive in the disposition of this appeal. With respect to a judgesitting alone, she wrote that:

37. … The court of appeal will therefore be justified to intervene and set aside a verdict as unreasonable when the reasons of the trialjudge reveal that he or she was not alive to an applicable legal principle, or entered a verdict inconsistent with the factual conclusionsreached… With respect to appellate review in the case of trial by a judge and jury, she wrote: 38. The exercise of appellate review is considerably more difficult when the court of appeal is required to determine the allegedunreasonableness of a verdict reached by a jury.

If there are no errors in the charge, as must be assumed, there is no way of determiningthe basis upon which the jury reached its conclusion. But this does not dispense the reviewing court from the need to articulate the basisupon which it finds that the conclusion reached by the jury was unreasonable. It is insufficient for the court of appeal to refer to a vagueunease, or a lingering or lurking doubt based on its own review of the evidence.

This “lurking doubt” may be a powerful trigger forthorough appellate scrutiny of the evidence, but it is not, without further articulation of the basis for such doubt, a proper basis uponwhich to interfere with the findings of a jury. In other words, if, after reviewing the evidence at the end of an error-free trial which led toa conviction, the appeal court judge is left with a lurking doubt or feeling of unease, that doubt, which is not in itself sufficient to justifyinterfering with the conviction, may be a useful signal that the verdict was indeed reached in a non-judicial manner.

In that case, thecourt of appeal must proceed further with its analysis. [18] Thus, this Court must examine the evidence generally to determine whether, applying the Yebes test, there is any possible basisfor perceiving the conviction to be unreasonable. Unless that general assessment gives rise to “a lurking doubt or feeling of unease” as towhether the verdict is “one that a properly instructed jury, acting judicially, could reasonably have rendered”, it will not be necessary forthe Court to go further, and the appeal can and should be dismissed.

Even if the Court were left with a lurking doubt or feeling ofunease, that, in itself, would not be sufficient to justify interference with the verdict. The Court would then have to go further andcarefully consider whether, after a detailed review of the evidence, there is no possibility that the jury, acting judicially, could havereached the conclusion it did. ANALYSIS [19] In support of the appellant’s position that the convictions for sexual assault and for theft are unreasonable, counsel for theappellant makes two primary arguments.

The first is that the complainant could have fabricated the sexual assault claim because shewas so upset about the loss of her laptop and because her evidence is so fraught with inconsistencies and contradictions it cannot berelied upon to establish that a sexual assault in fact took place.

The second is that there is no evidence capable of proving, beyond areasonable doubt, that, if a sexual assault did take place, the appellant is the person who committed the assault and the person who stolethe laptop computer. [20] Counsel for the appellant draws attention to the Crown’s acknowledgement, in its opening address to the jury, that thecomplainant: … because of her disabilities cannot… identify the accused [and] … it will be through other evidence that we will be attempting to proveto you beyond a reasonable doubt that it was Mr. Saunders who attacked her in the bedroom”.

She then argues that no one of the three persons who were present in the apartment at the time when the alleged assault and theft is saidto have occurred credibly identified the appellant as the person who assaulted the complainant in her bedroom or the person who stolethe complainant’s laptop. [21] With respect to whether the complainant was sexually assaulted, or whether she fabricated the claim, there was direct evidencefrom four witnesses, two of whom were present in the apartment when the alleged event is said to have occurred. One is thecomplainant herself.

The other is Christopher Collins who says he brought the appellant to the party at the complainant’s apartment. The record indicates that in all other respects Collins has made totally contradictory statements as to what occurred. [22] Counsel for the appellant expresses particular concern that upon the return of Courtney Fleming, and some minutes later ChrisLane, the complainant’s first expressed complaint was not that she had been sexually assaulted but that her laptop had been stolen. Counsel submits that had she been sexually assaulted, one would expect that would have been her paramount complaint.

The Crownreplies that, in her circumstances, the computer was very important to her and, in any event, each individual would react in her own wayto being sexually assaulted. The Crown submits that the complainant’s reaction was not, therefore, unusual or unbelievable. [23] I am not satisfied that we should conclude that the jury should have relied on that reaction as a basis for doubting thecomplainant’s version of events. Although failure to raise an immediate “hue and cry” was accepted, as “a virtual self contradiction” of asexual assault allegation, by the Supreme Court of Canada as late as Kribs v.

The Queen, (SCC), [1960] S.C.R. 400 andthat decision followed in Timm v. The Queen, (SCC), [1981] 2 S.C.R. 315, that notion is now rejected. In R. v. D.D.,2000 SCC 43 , [2000] 2 S.C.R. 275. Major J. wrote: 62 Today and for some time, the rationale in Kribs has been repeatedly subjected to criticism, is not followed, and has beenoverruled.

The Report of the Federal/Provincial Task Force on Uniform Rules of Evidence (1982), at p. 301, as cited by Sopinka,Lederman and Bryant, supra, at p. 322, states: The expectations of medieval England as to the reaction of an innocent victim of a sexual attack are no longer relevant. A victim mayhave a genuine complaint but delay making it because of such legitimate concerns as the prospect of embarrassment and humiliation, orthe destruction of domestic or personal relationships. The delay may also be attributable to the youth or lack of knowledge of thecomplainant or to threats of reprisal from the accused.

In contemporary society, there is no longer a logical connection between thegenuineness of a complaint and the promptness with which it is made.

In response to this criticism, Parliament chose to abrogate the authority of Kribs and Timm by statute (see s. 275 of the Criminal Code,R.S.C., 1985, c. C-46). I would not, therefore, conclude that the complainant’s speaking first about the theft of her laptop, and only some minutes afterwardsabout the sexual assault, should be considered a significant factor in this Court’s assessment of the reasonableness of the jury’s verdict. [24] The evidence of the complainant that she was sexually assaulted by the appellant is not directly or indirectly contradicted byany other evidence.

The complainant described in detail the manner in which her assailant placed her on the bed, placed both her armsabove her head with her right arm against her left arm and held her right arm against her left upper arm. She then described the manner inwhich he was touching her body all over, including her breasts and her vagina and the manner in which he penetrated her vagina with hisfinger.

She indicated that, with his left arm, he then took down her pants, undid his own and took out his penis, at which point, she says,Christopher Collins came into the bedroom hauled the appellant off her and ran with her to the bathroom. None of that evidence hasbeen directly or indirectly contradicted by any witness. [25] Counsel for the appellant argues, however, that the evidence of the complainant is so full of inconsistencies and contradictionsthat her evidence cannot be credibly accepted.

Counsel submits that: The complainant repeatedly gave evidence at the trial which she had never given before in either her statements to the police or at thepreliminary inquiry. When questioned why she never gave this evidence before, she said it was as the result of improved memory,flashbacks or because she was no longer under a lot of pressure. Counsel also submits that the “complainant refused to be pinned down on any issue and always provided an explanation of her conduct,even if it was illogical”.

As a result, counsel argues, the complainant’s evidence lacks credibility and cannot be relied upon. [26] A simple reading of the transcript would indicate that there were some inconsistencies and contradictions and the complainantdid tend to put forward an explanation that did not always appear reasonable, for any aspect of her evidence that was questioned. Nevertheless, those inconsistencies or contradictions do not materially bear on the essentials of her evidence respecting the sexualassault and the theft of her computer. In addition, although

section 274 of the Code specifies that corroboration is not required, evidenceof other witnesses does serve to corroborate her allegations. [27] While the evidence of Chris Collins is so full of admitted lies and contradictions that the jury could well have concluded that itis totally lacking in credibility, and could not be relied upon to establish, beyond a reasonable doubt, any specific that was required to beso established, nevertheless, it cannot be said to have been entirely worthless to the jury.

Notwithstanding his assertions at trial that hecould not remember anything that happened that night, he was confronted with the statement he had given to the police, when the matterwas being investigated, which included a comment he made when, after being cautioned, he was momentarily left alone in the interviewroom and the recording equipment was operating. The transcript indicates he said: Dwight, man I should have beat your head in, I already grabbed ya.

I should have took it all the way, oh man. [28] In the following exchange, he was also questioned about several other statements he made during the police interview,including: I open, when I - when the guy opened the door, like I opened it. I knocked on the door and I heard something. And I opened the doorand I seen Dwight there with [the complainant] on top of [the complainant] and didn’t look like she was liking it. So then I said what’son the go and just something, I remember something in my mind just blacked me out. It just -” I opened the door.

I seen him basically forcing himself on her and everything went black. I don’t remember anything past that ‘cause Isnapped out. Q. Okay. I put it to you that you were asked by the police officer “How was he forcing himself on her?” And you indicated to thepolice, “He was on top of her basically. She was trying to get up and he wouldn’t let her up, basically kissing her and shit so.” So yousaid that to the police? A. Apparently, but I do not remember saying that. I don’t remember even being there. Q. Okay. A. I don’t even remember going talking to the police.

I actually got charged ‘cause I couldn’t defend myself for thissame thing. And you have me here as a witness for something I don’t remember – [29] It should also be noted that the jury were aware that Christopher Collins had already pleaded guilty to a charge of assaultingthe complainant when, the complainant says, he took her from the bedroom to the bathroom. Before the jury, he insisted that he had liedto the police officer because he didn’t know how serious the situation was and he was trying to cover up for himself so that he didn’t getinto any trouble.

His evidence before the jury was that he could not remember any of the events that took place that night and also thathe was drunk when he gave the statement to the police and could not remember making those statements. [30] There is also the evidence of Christine Whalen, a nurse who did a physical examination of the complainant when she wasbrought to the hospital shortly after the alleged assault. Ms. Whalen described the bruises and abrasions that she found. Her descriptionis quite consistent with the nature and extent of the assault alleged by the complainant.

Similar evidence was given by the complainant’smother, Cynthia Cahill, who visited her daughter the next day, examined the bruises and confirmed they had not been there the daybefore. [31] Counsel for the appellant cites this Court’s decision in R. v. H.(C.), (NL CA), [1999] N.J. No. 273, 182Nfld. & P.E.I.R. 32 and argues that it supports her proposition that the inconsistencies in the complainant’s evidence are such that itwould be dangerous to uphold the conviction for sexual assault. That case is clearly distinguishable from this one.

There, theinconsistencies and discrepancies related to the essential elements of the crime charged. That is not the case here. As well, in R. v. H.(C.) the Court concluded that “the evidence given by the appellant appears, from the transcript at least, to be totally straightforward, notin any manner inherently inconsistent, not in conflict with any other evidence, other than the allegations of the complainant and not at all

affected by cross-examination,…”. That circumstance does not exist in this case. The detailed evidence of the appellant as to the sexual assault in the bedroom is uncontradicted. Notwithstanding any inconsistencies or discrepancies in the evidence of the complainant, with respect to other events that evening, the evidence outlined above is evidence on which a properly instructed jury could find proof of sexual assault beyond a reasonable doubt. [ 32 ] The second argument of the appellant is that there is no direct proof that the appellant is the person who sexually assaulted the complainant and stole her laptop.

I would agree that the complainant’s in-the-dock identification of the appellant as the man who was in her apartment that night is quite inconsistent with her evidence that she did not want to look at his face while he was assaulting her, and her earlier statements and evidence that she was unable to specifically identify him. It would be unsafe to rely on it alone to establish beyond a reasonable doubt that it was the appellant who committed the crimes.

There is, however, significant other evidence upon which a jury properly instructed could conclude, beyond a reasonable doubt, that the appellant was the perpetrator of both crimes. [ 33 ] Notwithstanding the admitted lies of Christopher Collins, the many inconsistencies and contradictions in his evidence, and his ultimate resort to “I was so drunk I don’t remember”, as the Crown asserts, “the one and only point that Mr. Collins remains clear and consistent on was the identity of the appellant, Dwight Saunders… as being the other male in the complainant’s apartment”.

As well, when the complainant was asked how she knew that it was the person identified to her as Dwight Saunders that assaulted her in her bedroom, the complainant responded “because Chris Collins told us it was him and Chris Collins sang out Dwight a few times earlier that night”.

Both Courtney Fleming and Christopher Lane confirm the evidence of the complainant that Christopher Collins identified the other male in the apartment with him as Dwight Saunders, and Courtney Fleming confirms the complainant’s evidence that Christopher Collins, occasionally during the time they were there, referred to him as “Dwight”. [ 34 ] The theft of the computer is also relevant to the identification of the appellant as the perpetrator of both offences.

The complainant says she saw the man who assaulted her in her bedroom running out of her apartment with the cords from her computer hanging down under his coat and she discovered that her computer that had been in her apartment earlier that evening was missing. The evidence of Stephanie Saunders, a sister of the appellant, is that she was given a “book bag” by the appellant to return to Christopher Collins but she did not check to see what it contained.

The evidence of Christopher Collins is that the appellant told him it was being dropped off to be given back, and when Collins gave it to the policeman he said “This is something that was stolen from [the complainant]. To that must be added the evidence of the police that they received a laptop computer from Christopher Collins and returned it to the complainant and the evidence of the complainant that her password opened up the computer and it contained her software.

Although it was provided through a policeman’s notes, not from a recording, the jury also were entitled to consider the statement of the appellant after being cautioned , that “he never assaulted anybody, took the book bag from the house for Collins”. [ 35 ] The jury also had before them the evidence of the discovery, on the driveway outside the complainant’s apartment, of an oil company’s customer loyalty points card in the name of David Saunders whose address was also the appellant’s residential address.

Stephanie Saunders indicated that her brother David lived at that address with her and the appellant, her other brother. [ 36 ] In the face of the foregoing evidence the Court is not left with any lurking doubt or feeling of unease that would cause the Court to “go further” in reviewing and re-examining the evidence. It can safely be concluded that there is no basis for setting aside the convictions on the ground that they are unreasonable or cannot be supported by the evidence. [ 37 ] Accordingly, the appeal is dismissed. C. K. Wells, J.A. I concur: L. D. Barry, J.A. I concur: M. F. Harrington, J.A.