R. v. Ellis, 2012 NLCA 75

Date: 2012 1205 Docket: 12/32 Citation: R. v. Ellis , 2012 NLCA 75

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 : ANTHONY JEROME ELLIS APPELLANT AND : HER MAJESTY THE QUEEN RESPONDENT Coram: Welsh, Rowe and Harrington JJ.A. Court Appealed From: Provincial Court of Newfoundland and Labrador, Clarenville, NL Appeal Heard: November 14, 2012 Judgment Rendered: December 5, 2012 Reasons for Judgment by Harrington J.A. Concurred in by Welsh and Rowe JJ.A. Counsel for the Appellant: Derek Hogan Counsel for the Respondent: Vikas Khaladkar

Harrington J.A.: [1] Anthony Ellis appeals his conviction on a charge of touching a fourteen-year-old complainant for a sexual purpose. The trialjudge considered a prior statement by a Crown witness for the truth of its contents. However, the witness did not adopt his priorstatement as true at the trial, the Court did not conduct a voir dire to determine whether the statement was reliable, and the statement didnot meet the pre-requisites for past recollection recorded. Crown counsel concedes and I agree that the trial judge made a serious errorin his consideration of the out-of-court statement.

Thus the focus of this appeal is whether the curative proviso in section 686(1)(b)(iii)of the Criminal Code can be applied to uphold the conviction despite the error by the trial judge, or whether a new trial must be ordered. For the reasons which follow, a new trial is ordered. BACKGROUND [2] The complainant and her girl friend attended a party with other young people at the appellant’s family home in August, 2009.

A considerable amount of alcohol was consumed by many of the young people who attended the party, particularly those who figureprominently in the recounting of the circumstances leading to the conviction of the appellant. [3] In his reasons, the trial judge stated: The problem with this case is that all the parties involved, other than Constable Galway, as he gave evidence here, were under theinfluence of alcohol.

The accused, by his own admission, [drank] 24 bottles of beer, the complainant herself said she was drinking[vodka] and beer and was sick and drunk. [The witness] was drunk. [4] The appellant, who was twenty years of age on the date of the incident, denied the complainant’s allegations that he had hadsexual intercourse with her in one of the bedrooms of his family’s residence. The incident was not reported by the complainant to anyonebut was reported by her girl friend to the complainant’s mother in February 2010. [5] The complainant and the appellant gave evidence at trial.

Except for testimony by the investigating officer, the only otherCrown witness was the complainant’s purported boy friend (the Witness) who was also an acquaintance of the appellant. The Witnesshad previously given a written statement to the police during an investigation.

He reported having seen the appellant and thecomplainant on a bed in a basement bedroom of the appellant’s residence in circumstances which caused him to conclude that the twowere having sex. [6] At trial, the Witness resiled from key portions of his written statement by testifying that he had no recollection of what hadtaken place in the basement bedroom between the complainant and the appellant. At no time did he adopt as true his written statement tothe investigating officer, nor was a voir dire conducted by the trial judge in accordance with the procedure set forth in R. v.

B. (K.G.), (SCC), [1993] 1 S.C.R. 740 to determine the reliability of the statement. [7] In convicting the appellant, the trial judge relied on portions of the Witness’ police statement in his reasons in favourablyassessing the credibility of the complainant’s evidence while expressing doubt about that of the appellant. A key aspect of the statementwas a reference by the Witness to having seen the complainant and the appellant under the blankets of the bed and believed that theywere having sex.

The trial transcript indicates that the memory of the Witness was vague while giving viva voce evidence with regard towhat he had observed. He was presented with his statement to the police by Crown counsel, the contents of which he generally could notrecall. The Witness at no point adopted his statement as true, and no voir dire was conducted by the court with respect to the statement’sreliability. [8] The trial judge in his oral reasons for convicting the appellant relied on the portion of the statement regarding who the Witnesssaw on the bed and what the couple appeared to be doing.

The record indicates that notwithstanding the demeanor of the witness, whichthe trial judge described as “reticent, evasive and reluctant” and reflective of “a convenient memory”, he concluded that the Witness’police statement “appeared to be forthright” and was “an honest statement when he gave it to the police officer”. The trial judge foundthat, while the Witness did not see the complainant and the appellant “in the act of sexual intercourse”, he believed that they wereengaged in such activity.

The trial judge elaborated on his reasons for relying on the statement of the Witness as follows: … I’m also satisfied that the witness was reluctantly dragged into this but that he gave a forthright and honest statement when he gave itto the police officer. The witness did not actually see the accused and the complainant in the act of sexual intercourse but believed fromthe situation that he saw them in that they were, in fact, having sex. And although there is a … I wouldn’t say an inconsistency whetheror not it was on top of the covers or underneath the covers, I have no doubt that Mr.

Baker believed that these two persons were havingsex … ISSUE [9] Can section 686(1)(b)(iii) of the Criminal Code be relied upon to uphold the conviction of the appellant notwithstanding theerror of the trial judge in considering the out-of-court statement of the Witness absent its adoption by the witness or a voir direrespecting its reliability?

ANALYSIS - Position of the Crown [10] Having conceded an error by the trial judge with respect to his reliance upon the contents of the written statement of theWitness, the burden on this appeal shifted to the Crown to establish grounds for application of the curative proviso of section 686(1)(b)(iii) of the Criminal Code in order to have the appellant’s conviction affirmed by this Court. Section 686(1)(b)(iii) reads:

(1) On the hearing of an appeal against a conviction … the court of appeal … (

b) may dismiss the appeal where … (iii) notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph (a)(ii) the appeal might be decided infavour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred. [11] Crown counsel argues that the trial judge made a finding that the complainant’s evidence was honest and forthright. Absent theevidence of the Witness who entered the bedroom, the only remaining evidence was that of the appellant, creating a “he said/she said”situation.

Absent the Crown’s ability to rely on the statement of the Witness, Crown counsel contends that the trial judge could haverelied on other aspects of the evidence of the Witness, independent of the Witness’ statement to corroborate the complainant’stestimony. This trial evidence was described by the Crown as follows: (

i) He saw the complainant and the appellant going into the appellant’s family residence; (ii) He entered the bedroom of the residence where the complainant and the appellant were present after the complainant’s mothercalled to give her her cell phone to take that call; (iii) He described the bedroom as being downstairs by the bedroom door; (iv) He testified that the appellant and the complainant were sitting on the bed; (

v) He testified that they were wearing clothes but could not remember if they were fully clothed; (vi) He testified that he thought they were underneath the blankets of the bed. [12] Crown counsel submits that even though the case may be characterized as a “he said/she said” situation the trial judge couldconvict if he found the evidence of the complainant to be credible and the evidence of the accused not to be, provided the test in R. v.

W.(D.), (SCC), [1991] 1 S.C.R. 742 is met. [13] In any event, Crown counsel emphasized that the evidence of the Witness separate, from the contents of his statement,corroborated the complainant’s evidence by confirming that he went into the bedroom with the complainant’s cellular phone, whichclearly contradicted the appellant’s story that his mother had brought a house phone down to the complainant without any involvement ofthe Witness.

The Crown also submitted that the Witness verified that the complainant and the appellant were under the blankets of thebed, clearly contradicting the appellant’s evidence that he was never under the blankets of the bed with the complainant. [14] The Crown further contends that the Witness also impugned the credibility of the appellant by contradicting the appellant’saccount of the cause of the fight that took place between them after the discovery of the complainant and the appellant in the bedroom.

This evidence contradicted the appellant’s evidence that the Witness had in fact struck the appellant’s father prior to the fightcommencing between the appellant and the Witness. The Witness denied that there had been any altercation with the appellant’s father. [15] Crown counsel acknowledges that the application of the curative proviso is an exceptional circumstance, particularly whencredibility is at issue. Justice Sopinka in R. v.

S.(P.L.), (SCC), [1991] 1 S.C.R. 909 at pages 915-916 described theapplicable test in these terms: … if the Court of Appeal finds an error of law with the result that the accused has not had a trial in which the legal rules have beenobserved, then the accused is entitled to an acquittal or a new trial in accordance with the law. The latter result will obtain if there islegally admissible evidence on which a conviction could reasonably be based.

The court cannot substitute its opinion for that of the trialcourt that the evidence proves guilt beyond a reasonable doubt, because the accused is entitled to that decision from a trial judge or jurywho have had all the advantages that have been so often conceded to belong to the trier of fact. If the Court of Appeal were to make thatdecision the accused would be deprived of a trial to which he or she is entitled, first, by reason of the abortive initial trial and second bythe Court of Appeal.

There is, however, an exception to this rule in a case in which the evidence is so overwhelming that the trier of factwould inevitably convict.

In such circumstances, depriving the accused of a proper trial is justified on the ground that the deprivation isminimal when the invariable result would be another conviction. … (Emphasis added.) [16] However, the Crown submits that the evidence is so overwhelming that a trier of fact would nevertheless convict the appellantbased on the complainant’s evidence and on the testimony of the Witness, aside from his statement. - Response of the appellant to the Crown’s submission [17] The onerous test that is to be applied by this Court when considering the curative proviso in the wake of a serious error in ajudge-alone proceeding is outlined in R. v.

Pavlov, 2009 NLCA 44, 287 Nfld. & P.E.I.R. 19 at para. 21: … As Sopinka J. indicated in S.(P.L.), at para. 43, and the majority confirmed in Khan, at paras. 29-31, once an error as to law hasinfluenced a verdict so as to remove it from the category of “harmless” error, the appropriate inquiry is whether “the evidence is sooverwhelming that ​a trier of fact would inevitably convict”. [Emphasis added in original.] The question is whether any trial judge, notthe particular judge who heard the case, would inevitably have had to come to

the same conclusion as to guilt beyond a reasonable doubt, when the credibility of the accused is properly assessed. (Underlining in original; italics added.) [18] In Pavlov, Barry J.A. emphasized that the curative proviso could not be applied to serious errors to avoid an order for a new trialunless the evidence adduced was so overwhelming that a conviction was inevitable. He cited the following reasons of JusticeDeschamps for the majority in R. v.

Trochym, 2008 SCC 7, [2007] 1 S.C.R. 239 at para. 82, which identified the standard to be met bythe Crown before the curative proviso can be invoked: The instant case is one that falls squarely within the second category of serious errors that would justify a new trial unless the properlyadduced evidence is so overwhelming that a conviction is inevitable, or would invariably result. This standard should not be equatedwith the ordinary standard in a criminal trial with proof beyond a reasonable doubt. The application of the proviso to serious errorsreflects a higher standard appropriate to appellate review.

The standard applied by appellate court, namely that the evidence against anaccused is so overwhelming that conviction is inevitable or would invariably result, is a substantially higher one than the requirementthat the Crown prove its case “beyond a reasonable doubt” at trial.

This higher standard reflects the fact that it is difficult for anappellate court, in particular when considering a jury trial, since no detailed findings of fact will have been made, to considerretroactively the effect that, for example, excluding certain evidence could reasonably have had on the outcome. (Emphasis added.) [19] Barry J.A. also addressed the particular concerns relating to cases on appeal turning on credibility. He wrote at paragraph 17 ofPavlov: Where credibility is critical for the issue of reasonable doubt, the statement of Abella J. for the majority in R. v.

C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5, at paras. 6 and 8, warrants emphasis: [6] … This Court has consistently warned that verdicts of guilt should not be based on ‘whether [triers of fact] believe the defenceevidence or the Crown’s evidence’ … . Rather, the paramount question remains whether, on the whole of the evidence, the trier of factis left with a reasonable doubt about the guilt of the accused … . The following suggested steps in [R. v.

W.(D), (SCC),[1991] 1 S.C.R. 742, at p. 758] are intended to ensure that the trier of fact remains focused on the principle of reasonable doubt: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but 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, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. ….. [8] … the verdict should not be based on a choice between the accused’s and Crown’s evidence, but on whether, based on the whole ofthe evidence, [triers of fact] are left with a reasonable doubt as to the accused’s guilt… . [20] Given the higher standard required from the Crown in seeking the application of the curative proviso, the error of the trial judgein considering the contents of the Witness’ police statement cannot be overcome by substituting certain portions of his testimony.

TheCrown has simply not established, within the confines of the remaining evidence this Court can consider, that the evidence against theappellant is so overwhelming that his conviction is inevitable or would invariably result.

SUMMARY AND DISPOSITION [21] Having acknowledged that the trial judge committed a serious error, the Crown has failed to establish grounds for theapplication of the curative proviso of section 686(1)(b)(iii) of the Criminal Code for the purpose of affirming the conviction of theappellant. [22] The appeal is therefore granted and a new trial is ordered. _________________________ M.F. Harrington J.A. I concur: _____________________ B.G. Welsh J.A. I concur: ______________________ M. Rowe J.A.