R. v. Vokurka, 2013 NLCA 51

Date: 20130 805 Docket: 12/76 Citation: R. v. Vokurka , 2013 NLCA 51 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : ERIC VOKURKA APPELLANT AND : HER MAJESTY THE QUEEN RESPONDENT Coram: Welsh, Barry and Hoegg JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador, Trial Division (G) 201101G5882 Appeal Heard: May 8, 2013 Judgment Rendered: August ​​5, 2013 Reasons for Judgment by Hoegg J.A. Concurred in by Barry J.A. Dissenting Reasons by Welsh J.A. Counsel for the Appellant: Derek Hogan Counsel for the Respondent: Iain R. W. Hollett Hoegg J.A.: INTRODUCTION

[ 1 ] Eric Vokurka was convicted of aggravated assault in relation to the cutting of Hubert (Rod) Somerton’s arm at St. Philips, NL on June 26, 2010. Mr. Vokurka appeals his conviction, alleging that the trial judge misapprehended evidence and drew an unreasonable inference from the evidence, and that his decision was unreasonable. FACTS AND PROCEDURAL HISTORY [ 2 ] The evidence is not in dispute. [ 3 ] Samantha Clarke testified that she, Mr. Somerton and Mr. Vokurka were drinking at a local pub the night and early morning before the incident.

They returned home around 4 a.m. and the two men continued to drink liquor and beer into the day. [ 4 ] She said that around midday the three friends made their way to a park area at the lower beach in St. Philip’s, where they sat at a picnic table telling stories and having fun. Ms. Clarke decided to sunbathe and lay down on a nearby bench. The men continued to drink, enjoying each others’ company and laughing. Ms. Clarke said “there was no tension between them”. Then something Mr. Somerton said caught her attention. She explained it in an exchange with Crown counsel: Q. Oh, very good.

So you were, so you were lied, like – A. Flat down on the - Q. - flat down? Okay. A. Yeah. Q. And you said you, you looked up? A. Yeah, but, well, Rod made a statement, like, three times in a low voice – Q. Okay – A. And when he made the third statement, I – well, I sat up and looked. Q. Okay. What was that statement? A. He just asked why did he do that. Just like that: “Why did you do that?” Not yelling, not screaming. [ 5 ] On cross examination, Ms. Clarke acknowledged that Mr.

Somerton may have said “Look what you did” instead of “Why did you do that?”, but said the two comments meant the same thing to her. [ 6 ] Ms. Clarke saw that Mr. Somerton and Mr. Vokurka were still sitting next to each other at the picnic table facing her, and that Mr. Somerton’s left arm was “squirting” blood. She saw the blue-handled knife in Mr. Vokurka’s left hand. [ 7 ] She said that Mr. Somerton threw her his cell phone and told her to run. She ran from the scene to a local restaurant and called 911. The police arrived shortly afterwards. [ 8 ] Hubert Somerton testified that he and Mr.

Vokurka were friends, that they worked and socialized together, and that they had previously lived together for a short time. Mr. Somerton said that he was “heavily intoxicated” that day at the picnic table with Mr. Vokurka but they were having fun and laughing a lot. [ 9 ] Mr. Somerton said he did not recall how he sustained cuts to both his arm and abdomen or the comments that Ms. Clarke heard him make at the scene or to the police and paramedics. The following exchange with Crown counsel illustrates: Q. Okay. And did anything happen while you were there? A. This is where it gets hazy for me. Q. Okay. A.

I don’t remember much. Q. Okay. A. I remember seeing blood, and after that I thought I – subconsciously I, I don’t remember anything. Q. Okay. And where did you see blood? A. On my arm. Q. Which arm was that? A. On my left one. Q. Left arm? Okay. And do you know how that happened? A. Not really sure. It’s, it’s hazy. Q. Okay. Is there anything else you remember? A. Not till I was in the ambulance on the way to hospital. I remember the ambulance driver asking me if I was okay. That was the first thing I remembers, talking to him. Q. Okay. And do you recall when you saw blood, did you say anything at that time? A.

I, I don’t recall. This is two years ago, now, too. [ 10 ] Mr. Somerton agreed with Crown counsel that he did not cut himself. [ 11 ] Jason Carter testified that Mr. Vokurka patronized Mr. Carter’s convenience store in St. Philip’s to purchase cigarettes twice within a half-hour period around noon on a Saturday in late June 2010. Mr. Carter said that he saw a blue-handled pocket knife with the blade folded up in Mr. Vokurka’s hand as he rooted for change to pay for the cigarettes. He said that Mr. Vokurka was “obviously intoxicated” and “not speaking clearly”. Mr.

Carter’s evidence was supported by video surveillance evidence. [ 12 ] Dr. Simon Avis , a forensic pathologist, gave expert evidence based on photographs of Mr. Somerton’s wound. He described Mr. Somerton’s wound as “a clean, deep running cut the length of his arm with a downward extension”. He opined that it was not caused by a knife falling under its own force because of its length and depth and the fact that the cut went in two different directions. [ 13 ] When police arrived at St. Philip’s at 3:15 p.m. on June 26, 2010, both Mr. Vokurka and Mr. Somerton had already been transported to hospital.

The police seized a blue-handled knife from Mr. Vokurka’s knapsack, empty vodka flasks and two beer bottles. Shortly afterwards a police officer attempted to speak with Mr. Somerton at the hospital. The attempt was futile as Mr. Somerton was

“highly intoxicated”. Mr. Somerton refused to give a blood sample to police investigators. The police officer made a second attempt tospeak with Mr. Somerton two days later, but he refused to give a statement. Mr. Vokurka was unable to be interviewed as he was in aninduced coma. [14] At trial the parties agreed that the blood on the blue-handled utility knife was not Mr. Vokurka’s. [15] The defence called no evidence. The Trial Decision [16] At trial, Mr. Vokurka argued that the Crown had not proved that it was he who had cut Mr. Somerton’s arm.

Alternatively, Mr.Vokurka’s position was that if the trial judge found him to have injured Mr. Somerton, it was accidental and not intentional. In his oraldecision convicting Mr. Vokurka, the trial judge reviewed the evidence, instructed himself on the Crown’s burden to prove the offencebeyond a reasonable doubt and the presumption of innocence, and addressed Mr. Vokurka’s arguments. He ultimately determined thatMr. Vokurka had intentionally cut Mr. Somerton’s arm. He gave reasons for his decision. The Appeal [17] Mr. Vokurka argues four grounds of appeal.

He alleges: 1) that the trial judge misapprehended the evidence respecting his friendly relationship with Mr. Somerton by failing to appreciatethat it proved an absence of motive for him to harm Mr. Somerton. Mr. Vokurka says that this misapprehension resulted in a miscarriageof justice within the meaning of section 686(1)(a)(iii) of the Criminal Code; 2) that the trial judge misapprehended the evidence respecting his intoxication by failing to appreciate that “it militated in favour of afinding” that he accidentally cut Mr.

Somerton, and that this misapprehension resulted in a miscarriage of justice within the meaning ofsection 686(1)(a)(iii) of the Criminal Code; 3) that the trial judge’s inference that he (Mr. Vokurka) intended to cut Mr. Somerton from the evidence of the way Mr. Somertonreacted to being cut is unreasonable and led to either an unreasonable verdict (s. 686(1)(a)(i)) or a miscarriage of justice (s. 686(1)(a)(iii)); and 4) that the verdict is unreasonable and unsupported by the evidence within the meaning of section 686(1)(a)(

i) of the Criminal Code. THE LAW [18] A court of appeal can allow an offender’s appeal against conviction on any of the three grounds set out in section 686(1)(

a) ofthe Criminal Code: 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; [19] Mr. Vokurka’s appeal engages the law respecting 1) misapprehensions of evidence resulting in a miscarriage of justice, 2)unreasonable verdicts, 3) the standard of review for factual inferences, and 4) issues respecting the sufficiency of reasons. Misapprehension of Evidence [20] In R. v.

MacIsaac, 2013 NLCA 26, Rowe J.A. summarized the law relating to misapprehension of evidence: [16] The test for misapprehension of evidence was set out by Doherty J.A. in R. v. Morrissey (1995), (ON CA), 97C.C.C. (3d) 193 (Ont. C.A.), at paragraph 83: A misapprehension of the evidence may refer to a failure to consider evidence relevant to a material issue, a mistake as to the substanceof the evidence, or a failure to give proper effect to evidence. [17] The misapprehension of the evidence must be such that it could have affected the verdict. As Laskin J.A. wrote in R. v.

G.(G.),(1995) (ON CA), 97 C.C.C. (3d) 362 (Ont. C.A.), at paragraph 59: When an appellate court finds error, it has a duty to consider the nature of the error, its effect on the verdict, and when the verdict isrendered by a judge alone, on the reasoning process by which the verdict was reached. Obviously not every error in the apprehension orappreciation of evidence or in the drawing of a conclusion from evidence warrants quashing a conviction. But s. 686(1)(a)(

i) of theCriminal Code requires this court to intervene if the error leads to an unreasonable verdict, or if the error is an error of law which cannotbe cured by s. 686(1)(b)(iii), or if the error results in a miscarriage of justice. [18] In R. v. Lohrer, 2004 SCC 80 , [2004] 3 S.C.R. 732, Binnie J. wrote at paragraph 2: Morrissey, it should be emphasized, describes a stringent standard. The misapprehension of the evidence must go to the substance rather

than to the detail. It must be material rather than peripheral to the reasoning of the trial judge. Once those hurdles are surmounted, thereis the further hurdle (the test is expressed as conjunctive rather than disjunctive) that the errors thus identified must play an essential partnot just in the narrative of the judgment but “in the reasoning process resulting in a conviction”. [21] To this

summary I would add the statement of LeBel J., speaking for the majority in R. v. Sinclair, 2011 SCC 40, [2011] 3S.C.R. 3, to the effect that there is no misapprehension of the evidence if the alleged error is one which the trial judge “may” havecommitted. Rather, the error must be one that is “readily obvious” and was actually committed. Unreasonable Verdict [22] The law respecting the reasonableness of a verdict in a judge-alone trial was recently addressed in R. v.

W.H., 2013 SCC 22 atpara. 26: A verdict is unreasonable or cannot be supported by the evidence if it is one that a properly instructed jury acting judicially could notreasonably have rendered: R. v. Yebes, (SCC), [1987] 2 S.C.R. 168 at p. 185; R. v. Biniaris, 2000 SCC 15, [2000] 1S.C.R. 381 at para. 36. While the same test was traditionally applied to verdicts by both juries and trial judges, the more recentjurisprudence from the Court has expanded somewhat the scope of review for unreasonableness in the case of verdicts reached by trialjudges: R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190; R. v.

Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3. This development recognizes apractical distinction between reasonableness review of a trial judge’s verdict and of a jury verdict: judges, unlike juries, give reasons fortheir findings which the appellate court may review and consider as part of its reasonableness analysis. … [23] In R. v. R.P., 2012 SCC 22, [2012] 1 S.C.R. 746, Deschamps J. summarized how a trial judge’s verdict can be found to beunreasonable by an appellate court: [9] To decide whether a verdict is unreasonable, an appellate court must, as this Court held in R. v.

Yebes, (SCC),[1987] 2 S.C.R. 168, and R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36, determine whether the verdict is one that aproperly instructed jury or a judge could reasonably have rendered. The appellate court may also find a verdict unreasonable if the trialjudge has drawn an inference or made a finding of fact essential to the verdict that (1) is plainly contradicted by the evidence relied on bythe trial judge in support of that inference or finding, or (2) is shown to be incompatible with evidence that has not otherwise beencontradicted or rejected by the trial judge (R. v.

Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at paras. 4, 16 and 19-21; R. v. Beaudry,2007 SCC 5, [2007] 1 S.C.R. 190). Standard of Review for Factual Inferences [24] The standard of review for factual inferences made by trial judges is expressed by Fish J. in R. v. Clarke, 2005 SCC 2, [2005] 1S.C.R. 6 (para. 9): … Appellate courts may not interfere with the findings of fact made and the factual inferences drawn by the trial judge, unless they areclearly wrong, unsupported by the evidence or otherwise unreasonable. The imputed error must, moreover, be plainly identified.

And itmust be shown to have affected the result. “Palpable and overriding error” is a resonant and compendious expression of this well-established norm … [25] In H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401, the Supreme Court of Canada discussed appellatereview of factual inferences where the evidence supports more than one inference (at paragraph 74): I would explain the matter this way. Not infrequently, different inferences may reasonably be drawn from facts found by the trial judgeto have been directly proven.

Appellate scrutiny determines whether inferences drawn by the judge are “reasonably supported by theevidence”. If they are, the reviewing court cannot reweigh the evidence by substituting, for the reasonable inference preferred by thetrial judge, an equally — or even more — persuasive inference of its own. This fundamental rule is, once again, entirely consistent withboth the majority and the minority reasons in Housen. Sufficiency of Reasons [26] In R. v.

R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, McLachlin C.J. explains that a trial judge’s reasons are sufficient if they“fulfill their functions of explaining why the accused was convicted or acquitted, providing public accountability and permittingeffective appellate review” (paragraph 15). She elaborates at paragraph 18 that the degree of sufficiency required for this test to be met“does not require the trial judge to set out every finding or conclusion in the process of arriving at the verdict”.

In so doing, sheadopts Doherty J.A.’s statement in Morrissey, found at page 525: A trial judge’s reasons cannot be read or analyzed as if they were an instruction to a jury. Instructions provide a road map to direct layjurors on their journey toward a verdict. Reasons for judgment are given after a trial judge has reached the end of that journey andexplain why he or she arrived at a particular conclusion.

They are not intended to be, and should not be read, as a verbalization of theentire process engaged in by the trial judge in reaching a verdict. [Emphasis added.] [27] The Chief Justice further explains that a judge is not required to “expound on evidence which is uncontroversial, or detail his orher finding on each piece of evidence or controverted fact, so long as the findings linking the evidence to the verdict can be logicallydiscerned” (paragraph 20). ISSUES 1. Did the trial judge misapprehend the evidence respecting the effect of Mr. Vokurka’s relationship with Mr.

Somerton, and if so, didit result in a miscarriage of justice? 2. Did the trial judge misapprehend the evidence respecting the effect of Mr. Vokurka’s intoxication, and if so, did it result in a

miscarriage of justice? 3. Was the trial judge’s inference of intention from Mr. Somerton’s reaction to being injured unreasonable? If so, did it result in amiscarriage of justice or an unreasonable verdict? 4. Is the verdict unreasonable within the meaning of s. 686(1)(a)(

i) of the Criminal Code? ANALYSIS 1. Did the trial judge misapprehend the effect of the evidence respecting Mr. Vokurka’s relationship with Mr.Somerton? [28] Mr. Vokurka argues that the uncontroverted evidence of his friendly relationship with Mr. Somerton, including the fact that themen were enjoying themselves with no hint of discord up to and immediately prior to Mr. Vokurka cutting Mr. Somerton’s arm, is proofof an absence of motive on the part of Mr. Vokurka to harm Mr. Somerton. Mr. Vokurka asserts that this absence of motive “weighsheavily in favour of a finding that Mr. Vokurka lacked intention to cut Mr.

Somerton”, which the trial judge failed to appreciate, andmaintains that the trial judge’s alleged failure was material to his decision to convict Mr. Vokurka, thereby resulting in a miscarriage ofjustice. He relies on R. v. Lewis, (SCC), [1979] 2 S.C.R. 821 to support his argument. [29] In Lewis, the Court was considering whether a trial judge ought to have charged a jury on the issue of motive.

At paragraph 42of the decision, Dickson J. distinguished between evidence indicating the presence of motive and evidence indicating the absence ofmotive, saying that “[e]ach case will turn on its own unique set of circumstances. The issue of motive is always a matter of degree”. Inthe subsequent paragraph Justice Dickson explained that proof of the presence of motive versus proof of an absence of motive constitutesa continuum, and it is a question of degree where between the two extremes the evidence in a particular case may place the probativevalue of motive.

He also observed that a proven absence of motive can be very important evidence for an accused . [30] In finding that the matter of motive in Lewis was “squarely in the middle of the continuum”, that is to say that neither motive norabsence of motive was proved, Justice Dickson concluded there was no duty on the trial judge to charge on it, although it was open tohim to have done so. He noted, at paragraph 64, “that motive is always a matter of fact and evidence therefore primarily for the judgeand jury rather than the appellate tribunal”. [31] In this case, there was no evidence suggesting that Mr.

Vokurka had a motive to cut Mr. Somerton. Mr. Somerton did nottestify that Mr. Vokurka was motivated to harm or cut him, and neither did Ms. Clarke, a material witness. Mr. Vokurka did not testifyat all, so there was no evidence from him explaining that he had no motive to cut Mr. Somerton. [32] The evidence on which Mr. Vokurka relies to support his argument that the evidence established a proved lack of motive is thathe and Mr. Somerton were “friends”, and, while they were together in St. Philip’s on June 26, 2010, “there was a lot of laughing goingon” and “no tension” between them. Mr.

Vokurka also relies on Ms. Clarke’s evidence of Mr. Somerton’s statements “Why did you dothat?” or “Look what you did!” as supporting an absence of motive. [33] Whether evidence of good relations between a victim and an accused constitutes a proved absence of motive was considered bythe Manitoba Court of Appeal in R. v. Ilina, 2003 MBCA 20, 172 C.C.C. (3d) 240.

In Ilina, the appellate court stated that “evidence thatthe victim and the accused did not appear to have an unhappy or difficult relationship is not the type of evidence that in the normalcourse constitutes a proved absence of motive”. [34] The same issue was considered in R. v. White (1996), (ON CA), 108 C.C.C. (3d) 1 (Ont. C.A.), aff’d (SCC), [1998] 2 S.C.R. 72, wherein it was argued that the evidence of the friendship between the victim and the accusedproved absence of motive and that the jury ought to have been charged on it.

The appellate court observed that there is a “significantdifference between absence of proved motive and proved absence of motive”, and found that the evidence of friendly relations betweenthe offender and the victim did not prove an absence of motive but simply reinforced the absence of a proved motive, on which the trialjudge was not required to charge the jury. [35] In my opinion, the evidence of Mr. Vokurka’s and Mr. Somerton’s friendly relations prior to the assault and of Mr. Somerton’sstatements does not prove that Mr. Vokurka was motivated, or that he lacked motivation, to cut Mr. Somerton’s arm.

The evidence oftheir friendly relations, like in White, simply reinforces the absence of a proved motive. The evidence leaves open the possibilities thatMr. Vokurka was motivated to cut Mr. Somerton, or that Mr. Vokurka cut Mr. Somerton on a whim. Relationships can be complicated,especially when intoxicants are involved. [36] In any event, the evidence that Mr. Somerton and Mr. Vokurka were friends on good terms was before the trial judge forconsideration, and his decision shows that he was alive to the nature of their relationship (see pages 6, 8 and 9 of the transcript of his oraldecision).

It is not “readily obvious” from (Sinclair) (or even suggested by) his decision that he ignored the evidence respecting therelationship between Mr. Vokurka and Mr. Somerton or that he was mistaken as to its substance or effect (Morrissey). [37] Although evidence of motive or absence of motive, if it exists, is relevant to mens rea and could assist a trier of fact in comingto a verdict, motive is not an element of the offence of aggravated assault.

There was no requirement for the trial judge to specificallyaddress the issue of motive in his reasons in the same way he had to address the actus reus and mens rea of aggravated assault (R.E.M.,paragraph 20). The trial judge, like the jury in Lewis, was well aware of Mr. Vokurka’s and Mr. Somerton’s friendly relationship, andhis decision shows that he considered it in the context of the whole of the evidence, as he was required to do (Morrissey). [38] In the result, it cannot be said that the trial judge misapprehended the evidence respecting the nature of Mr. Vokurka’srelationship with Mr. Somerton. 2.

Did the trial judge misapprehend the evidence respecting the effect of Mr. Vokurka’s intoxication?

[39] Mr. Vokurka also argues that the trial judge ought to have related the evidence of his intoxication to his defence of accident, andbecause the trial judge did not do so, he must have failed to appreciate its effect. Mr. Vokurka contends that his intoxication made itmore likely that his cutting of Mr. Somerton was accidental rather than intentional. [40] Mr. Vokurka’s contention is similar to that of the appellant in R. v. Walle, 2012 SCC 41, [2012] 2 S.C.R. 438. In Walle, thecentral issue was whether the appellant had the requisite intent for murder when he shot the victim.

At trial, the appellant admitted hepulled the trigger but asserted that he did so unintentionally. On appeal, the appellant argued that if the trial judge had charged the juryspecifically in relation to his alcohol consumption (among other evidence) on the evening of the murder, the jury may have entertained areasonable doubt whether about the appellant had possessed the requisite intent for murder. The Alberta Court of Appeal dismissed hisappeal, and the appellant appealed to Supreme Court of Canada.

In dismissing the appeal, the Supreme Court explained that theevidence of the appellant’s alcohol consumption in the context of the whole of the evidence was before the jury, who were not left in astate of reasonable doubt as to the appellant’s intention. [41] The trial judge’s decision in this case is replete with statements showing that he was well aware that Mr. Vokurka wasintoxicated at the time of the incident (see pages 5, 6, 7, 8, 13 and 14 of the transcript of his decision). The trial judge was required toturn his mind directly to the substance and effect of the evidence concerning Mr.

Vokurka’s intoxication in considering of the provisionsof

section 33.1 of the Criminal Code, and correctly found that intoxication was not a defence to the charge of aggravated assault. [42] The trial judge did not directly relate the evidence of Mr. Vokurka’s intoxication to his alternative defence of accident. However, there was no obligation on the trial judge to do so. There was no evidence adduced for the purpose of supporting the defenceof accident. Mr. Vokurka did not testify that the cutting of Mr. Somerton was accidental or that he did not mean to cut Mr. Somerton,and neither did the evidence of Mr. Somerton and Ms. Clarke lend itself to such an

interpretation. While it may be that intoxicationincreases the general risk of accidents, it is not a logical imperative that Mr. Vokurka’s intoxication increased the likelihood that heaccidentally cut Mr. Somerton. Given the absence of any evidence suggesting that Mr. Vokurka’s knife accidentally came into contactwith Mr. Somerton’s arm, the trial judge had no evidentiary foundation for the defence of accident to which he could relate the issue ofmotive.

Even if there had been such evidence, the trial judge would not have been required to relate it to motive, for he does not have to“deal with every piece of evidence in his reasons for judgment” (R.E.M., paragraph 20). [43] Mr. Vokurka has not pointed to anything “readily obvious” in the trial judge’s decision that indicates that he misapprehendedthe evidence of Mr. Vokurka’s intoxication. The trial judge’s decision shows that he considered Mr. Vokurka’s intoxication in thecontext of all of the evidence. Accordingly, he did not misapprehend it or fail to give it proper effect. 3.

Was the trial judge’s inference of intention from Mr. Somerton’s reaction to being injured unreasonable? [44] After Mr. Vokurka cut Mr. Somerton’s arm, Mr. Somerton reacted by beating Mr. Vokurka. The trial judge relied on thisevidence to support his ultimate finding that Mr. Vokurka possessed the requisite intention for conviction, inferring that Mr. Somertonreacted violently because he (Mr. Somerton) thought that Mr. Vokurka cut his arm intentionally. Mr. Vokurka argues that this inferencewas unreasonable, because Mr. Somerton may have mistakenly believed that Mr. Vokurka’s act was intentional. [45] Mr.

Somerton did not testify to how his arm came to be cut, and there is no other evidence that indicates how Mr. Somertonperceived the infliction of his injury, except for what might be inferred from his communication to Ms. Clarke, upon throwing her hiscell phone, to “run”. While it is possible that Mr. Somerton may have been mistaken in perceiving that the infliction of injury to his armwas intentional, the trial judge did not see the evidence that way. The trial judge’s inference of intention from Mr. Somerton’s reactionis a logical one, i.e., if Mr. Somerton thought that Mr.

Vokurka acted intentionally then it is likely that he did. After all, Mr. Somerton’scomment reflects Mr. Somerton’s assessment of the situation – he was there. The fact that intention may not be the only inference thatone could draw from that evidence does not make the inference the trial judge drew an unreasonable one (see H.L,. and R. v. Barrett,2004 NSCA 38, 222 N.S.R. (2d) 182, para. 22). Accordingly, there is no basis on which to determine that this inference of intention isclearly wrong or unsupported by the evidence (Clarke). (See also paragraph 54 below.) 4. Was the verdict unreasonable? [46] Mr.

Vokurka argues that the case against him was circumstantial and that because the evidence is as consistent with accident asit is with intention, it was unreasonable for the judge to convict him. [47] The proposition on which Mr. Vokurka relies is that when a case is circumstantial, the evidence must be consistent with guiltand inconsistent with any other rational conclusion in order for a conviction to ensue. This proposition is known as the Rule in Hodge’sCase.

Hodge’s Case is an English case decided in 1838, “at a time when the accused, as a person interested in the result, was prohibitedfrom testifying on his own behalf” (see R. v. Cooper, (SCC), [1978] 1 S.C.R. 860, p. 874). [48] The Supreme Court of Canada set out the law respecting the application of this rule to circumstantial cases in R. v. Mitchell, (SCC), [1964] S.C.R. 471, a murder case.

At page 479 of the decision, Spence J. described the rule as “a formula toassist in applying the accepted standard of proof in relation to the first only of the two essential elements in a crime, i.e., the commissionof the act as distinct from the intent which accompanies the act” and observed that the “circumstances which establish [intent], beingevidence personal to one individual, will seldom, if ever, be wholly consistent with only one conclusion”.

The Mitchell Court concludedthat application of the rule only applies to proof of the actus reus of an offence, and that in any event, the safeguard addressed by the ruleis essentially encompassed in the Crown’s burden to prove an accused’s guilt to the standard of beyond a reasonable doubt. [49] In Cooper, a corruption case in which intention was the only issue, the Supreme Court of Canada (unanimously on this point)confirmed that the circumstantial evidence rule applies only with respect to proving the actus reas of the offence.

In his judgment,Laskin C.J. (as he then was), explained that the circumstantial evidence rule is not “an inexorable rule of law in Canada”. All justices ofthe court agreed that the Crown’s burden to establish an accused’s guilt beyond a reasonable doubt incorporates the safeguard inherent inthe circumstantial evidence rule. See also R. v. Griffen 2009 SCC 28 , [2009] S.C.J. No. 28 at para. 33. [50] The issue in Mr. Vokurka’s appeal is intention. Identification was found at trial and is admitted on appeal, so actus raes is no

longer an issue. Regardless, the trial judge instructed himself on his need to apply the standard of proof beyond a reasonable doubt, which incorporates the safeguards of the circumstantial evidence rule, and satisfied himself that that standard was met. [ 51 ] Mr. Vokurka maintains that the trial judge’s verdict of guilty was unreasonable. The trial judge gave three reasons for his decision that Mr. Vokurka intentionally cut Mr. Somerton’s arm: 1) the oral statements of Mr. Somerton; 2) Dr. Avis’ expert evidence; and 3) Mr. Somerton’s reaction to being cut. [ 52 ] The oral statements made by Mr.

Somerton suggest that he perceived Mr. Vokurka’s actions as deliberate. Whether Ms. Clarke heard Mr. Somerton say “Look what you did!” or “Why did you do that?”, intention can be inferred from both. “Look what you did” suggests that Mr. Somerton thought Mr. Vokurka’s actions were deliberate, and “Why did you do that?” invites an explanation from Mr. Vokurka for his actions because it was not obvious to Mr. Somerton that it was accidental. The trial judge’s inference of intention from these comments is logical and reasonably supported by the evidence. Just because Mr.

Somerton’s remarks could possibly admit of another

interpretation does not make the trial judge’s

interpretation of them in support of his ultimate decision unreasonable ( H.L. and Barrett ). [ 53 ] Dr. Avis’ evidence was that the cut to Mr. Somerton’s arm was deep and clean, with no bruising or abrasions, and that it went in two different directions. The change in direction of the knife wound suggests that the cut was made consciously, and its clear lines and depth suggest some force was used. Again, the trial judge’s inference that the person who did the cutting did so with intention is a logical one, reasonably drawn from the evidence. Even if it is possible that Mr.

Somerton’s wound was inflicted accidentally, the trial judge’s inference, especially in the absence of evidence explaining how an accident could have produced the kind of wound Mr. Somerton sustained, was reasonably drawn from the evidence ( Clarke ). [ 54 ] Mr. Somerton reacted to Mr. Vokurka cutting his arm by cautioning Ms. Clarke to run and by beating Mr. Vokurka. From this evidence, the trial judge inferred that Mr. Somerton believed that Mr. Vokurka’s actions were intentional, for if the cutting had been accidental, Mr. Somerton would not have reacted by warning Ms. Clarke or beating his good friend Mr.

Vokurka. If Mr. Somerton believed that Mr. Vokurka acted intentionally, it was open to the trial judge to infer the same. His inference of intention from this evidence is a logical one reasonably supported by the evidence ( Clarke. ). It does not become unreasonable because another inference (or no inference at all) was available on the evidence ( H.L. and Barrett ). [ 55 ] In

summary, the trial judge’s verdict is one which a properly instructed jury acting judicially could reasonably render ( W.H. ). Review of his reasons for decision shows that they, individually and collectively, are based on inferences reasonably drawn from the evidence. They have not been shown to be contradicted by the evidence relied on by him or incompatible with evidence not otherwise contradicted or rejected by him ( R.P. ). In the result, Mr. Vokurka has not shown that the verdict is unreasonable. DISPOSITION [ 56 ] None of Mr.

Vokurka’s grounds of appeal having succeeded, I would dismiss the appeal. ______________________________ L. R. Hoegg J.A. I Concur: ______________________________ L. D. Barry J.A. Dissenting Reasons by Welsh J.A.: [ 57 ] Eric Vokurka was convicted of aggravated assault contrary to

section 268 of the Criminal Code . The essence of his appeal is that the trial judge failed to consider the possibility, supported by the evidence, that the incident was accidental and that, therefore, the charge, which requires proof of intent, was not proven beyond a reasonable doubt. BACKGROUND [ 58 ] At the time of the incident, Mr. Vokurka and the complainant were living in the same residence. They were co-workers and friends who had known each other for four to five years. The incident took place about 3:00 p.m. on June 26, 2010 at a beach near St. Philips. Mr.

Vokurka and the complainant began drinking during the night of June 25 th . They continued to drink during the following day. Both were heavily intoxicated at the time of the incident. [ 59 ] Ms. Clarke, a female acquaintance of the men, was the only other person present at the time of the incident. She was lying on the beach beside a picnic table at which the two men were sitting. She was not paying attention and could not see what was going on, although she could hear what the two men were saying. It is clear that the complainant suffered a significant cut to his left arm which later required stitches.

The trial judge accepted the evidence that, after he had been cut, the complainant tossed a cell phone to Ms. Clarke and told her to run, which she did. She had seen the complainant bleeding from his arm and called 911. When the emergency personnel arrived, they found the complainant leaving the scene and bleeding from the wound on his arm as well as a cut to his abdomen. Mr. Vokurka was lying on the beach as a result of a beating administered by the complainant. The charge against Mr. Vokurka was based only on the cut to the complainant’s arm.

The complainant refused to cooperate with the police and, testifying as an adverse witness at trial, said that he did not remember what happened. [ 60 ] On appeal, Mr. Vokurka does not challenge the finding that his knife caused the wound to the complainant’s arm. The focus of

the appeal is whether the trial judge sufficiently considered and provided adequate reasons for determining that the wound was causedintentionally rather than accidently. ANALYSIS [61]

Section 268 of the Criminal Code provides: Every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant. [62] Mr. Vokurka’s appeal relates to the mental element of the offence which is described by Binnie J., for the Court, in R. v.Williams, 2003 SCC 41, [2003] 2 S.C.R. 134: [22] The mens rea for aggravated assault is the mens rea for assault (intent to apply force intentionally or recklessly or being willfullyblind to the fact that the complainant does not consent) plus objective foresight of the risk of bodily harm: R. v.

Godin, (SCC), [1994] 2 S.C.R. 484, at p. 485, and Cuerrier, [ (SCC), [1998] 2 S.C.R. 371], at para. 95. … [63] Mr. Vokurka presents his submissions, not as independent items to be considered in isolation, but as constituent parts of awhole. He submits that issues related to motive, effect of intoxication, Dr. Avis’ testimony, statements attributed to the complainant, andthe complainant’s reaction to being cut, must be considered in context and viewed as a whole. The foundation of Mr.

Vokurka’ssubmission is that, in finding the offence had been proven beyond a reasonable doubt, the trial judge erred by failing to consider whetheraccident was an equally rational conclusion. [64] At the core of this appeal is the requirement that the trial judge provide adequate reasons for determining that guilt has beenproven beyond a reasonable doubt. In R. v. Walker, 2008 SCC 34, [2008] 2 S.C.R. 245, Binnie J., for the Court, explained: [19] Sheppard [2002 SCC 26, [2002] 1 S.C.R. 869] recognized a duty to give adequate reasons on a number of broad policy grounds.

At the trial level, the reasons justify and explain the result. “Reasons for judgment are the primary mechanism by which judges accountto the parties and to the public for the decisions they render” (para 15). The losing party is entitled to know why he or she has lost. “Informed consideration can be given to grounds for appeal.

Interested members of the public can satisfy themselves that justice hasbeen done, or not, as the case may be” (para. 24). “Trial courts, where the essential findings of facts and drawing of inferences are done,can only be held properly to account if the reasons for their adjudication are transparent and accessible to the public and to the appellatecourts” (para 15). … [20] Equally, however, Sheppard holds that “[t]he appellate court is not given the power to intervene simply because it thinks the trialcourt did a poor job of expressing itself” (para. 26).

Reasons are sufficient if they are responsive to the case’s live issues and the parties’key arguments. Their sufficiency should be measured not in the abstract, but as they respond to the substance of what was in issue. … (Emphasis added.) [65] In the instant case, Mr. Vokurka submits that this is not a situation where the trial judge “did a poor job of expressing” himselfwhile giving adequate reasons for entering a conviction on the charge.

Rather, he submits that the trial judge failed to adequatelyconsider and explain why the evidence would not support a finding that the complainant was cut by accident, a finding that would haveresulted in an acquittal. I turn, then, to a consideration of the factors on which Mr. Vokurka relies. [66] Mr. Vokurka relies on his congenial relationship with the complainant immediately prior to the incident, which was accepted bythe trial judge, as indicative of the absence of motive to have intentionally cut the complainant.

He submits it is one of the factors, takenwith the remaining evidence, that should be used in assessing whether he acted intentionally within the meaning of

section 268 of theCriminal Code. In the trial judge’s oral decision, the only reference made to the issue of motive was that the “incident happened out ofthe blue, so to speak” (paragraph 14). He did not turn his attention to the possible relevance or effect of the fact that the incidentoccurred without explanation or apparent reason. [67] In Lewis v. The Queen, (SCC), [1979] 2 S.C.R. 821, Dickson J., for the Court, explained that the relevance ofmotive lies on a continuum. He set out and discussed six points encapsulating principles to be applied when motive may be aconsideration. He wrote, at pages 837 to 838:

(6) Each case will turn on its own unique set of circumstances. The issue of motive is always a matter of degree. The necessity of charging a jury on motive may be looked upon as a continuum, at one end of which are cases where the evidence as toidentity of the murderer is purely circumstantial and proof of motive on the part of the Crown so essential that reference must be made tomotive in charging the jury. … At the other end of the continuum, and requiring a charge on motive, is the case where there is provedabsence of motive and this may become of great significance as a matter in favour of the accused.

Between these two end points in thecontinuum there are cases where the necessity to charge on motive depends upon the course of the trial and the nature and probativevalue of the evidence adduced. In these cases, a substantial discretion must be left to the trial judge. In Imrich, for example, theevidence of exclusive opportunity was such that motive receded into the background. (Emphasis added.) [68] In the instant case, the evidence accepted by the trial judge is that, both in the longer term and immediately prior to the incident,there was no indication that Mr. Vokurka had any reason to wound the complainant.

Considered in light of the particular circumstancesdiscussed below, this factor falls toward the end of the continuum described in Lewis where lack of motive is a relevant consideration to

be assessed in the context of the whole of the evidence in determining whether guilt has been proven beyond a reasonable doubt. [ 69 ] I turn next to the evidence of Dr. Simon Avis. The trial judge accepted Dr. Avis’ testimony that the cut could not have resulted from the operation of gravity; that is, it did not result from Mr. Vokurka dropping the knife. In giving his opinion, Dr. Avis indicated that he did not see the wound but relied on photographs and the emergency room medical file. He referred to the length of the wound and the fact that it travelled in two directions, across and down the arm.

In addition, while there was no information as to the depth of the wound, Dr. Avis concluded that the use of sutures to close the wound implied that the injury was “the full thickness of the skin”. However, he did not believe that the wound was so deep as to require suturing by layers. The trial judge concluded that “the fact that the injury to the arm had to be sutured indicates it was a deep cut” (page 17). [ 70 ] Regarding Dr.

Avis’ testimony, the trial judge said, at pages 16 to 17: … This could not have been an accident of a knife falling or [the complainant] somehow passing his arm near a blade in the hand of Mr. Vokurka. According to the evidence of Dr. Simon Avis and the fact that the wound went in two directions and was a clear cut with no bruises or abrasions indicates it was not the result of a knife falling. The fact that [the complainant] was injured indicates that what [the complainant] was referring to when he made the statement, “Look what you did” or “Why did you do that?” was indeed an intentional act.

This clearly indicates an action by Mr. Vokurka towards [the complainant]. … [ 71 ] The trial judge referred to Dr. Avis’ testimony and to the statements which, Ms. Clarke testified, were made by the complainant at the time of the incident. The judge nowhere explains how that evidence is inconsistent with the conclusion that the wound was caused by accident by the complainant passing his arm near the blade. This omission must be considered in light of Dr. Avis’ testimony during cross-examination in which he clarified his use of the phrase “deliberate action” in his report.

He testified that he intended simply to indicate that it was unlikely that the wound resulted from a falling knife. [ 72 ] Dr.

Avis described the injury as an incised wound which he defined as “simply where a sharp instrument is drawn across the surface of the body”. Dr. Avis went on to say, “Well the instrument had to – the instrument – either the instrument changed direction or the person’s arm changed direction whilst the injury was occurring ” (emphasis added). This possibility was not addressed by the trial judge. However, its relevance is clear when viewed in light of the drunken state of both individuals and the congenial atmosphere immediately prior to the incident. Dr.

Avis’ testimony does not preclude, but suggests, the possibility that Mr. Vokurka had taken out his knife for some reason, perhaps to show it to the complainant, and that the complainant’s arm was accidently cut. [ 73 ] In addition to Dr. Avis’ testimony, the trial judge referred to Ms. Clarke’s testimony that she heard the complainant say, “Look what you did” or “Why did you do that?”. The trial judge accepted Ms. Clarke’s view that “Look what you did” and “Why did you do that?” meant the same thing. However, that is a conclusion to be made by the judge, not the witness. [ 74 ] Ms.

Clarke used different language on different occasions. “Look what you did” is the language that was used by Ms. Clarke in her statement to the police given shortly after the incident; “Why did you do that?” is the language that was used in her testimony at the preliminary inquiry. In the circumstances, “Look what you did” is equally consistent with an accident as with an intentional act by Mr. Vokurka. The trial judge did not address this possibility. Nor did he address why he considered the two statements to mean the same thing and what the effect of such a conclusion would be.

Indeed, was the second statement, “Why did you do that?”, used to colour the meaning of the first, “Look what you did”? [ 75 ] Finally, the fact that the complainant retaliated by administering a beating to Mr. Vokurka is not necessarily indicative of an intentional act by Mr. Vokurka. The complainant described himself as being heavily intoxicated. In the circumstances, an equally valid inference is that the complainant was reacting to the injury itself, without a thought as to whether it had been accidently or intentionally inflicted. [ 76 ] When Ms.

Clarke saw the two men immediately after the complainant had been cut, she testified that they were still sitting side by side, with Mr. Vokurka’s right arm beside the complainant’s left arm. The knife was in Mr. Vokurka’s left hand. Both men were very intoxicated, a condition that could be assumed to have affected their coordination. Indeed, this was the evidence of the store clerk who, some minutes prior to the incident, had served Mr. Vokurka. He testified that Mr. Vokurka was “obviously intoxicated”, “visibly impaired”, “swayed around”, “wasn’t speaking clearly”, and “stumbled out the door”. [ 77 ] Mr.

Vokurka does not rely on his intoxication as a defence to the charge, but as a factor to be taken into account when assessing the nature of the wounding. In the circumstances, the proximity of the men to each other could be as consistent with an accidental cutting of the complainant as with an intentional act by Mr. Vokurka. However, the trial judge, concluding correctly that the defence of intoxication was not available, did not consider the effect of the evidence of intoxication of both men in the context of the defence of accident. (See, for example: R. v.

Walker , supra , where the Court recognized that there may be circumstances in which action by an accused, in that case, firing of a gun, may be determined to be accidental where alcohol consumption played a significant role.) [ 78 ] Where two possible inferences may validly be drawn from a consideration of the evidence as a whole, one which supports a finding of guilt and the other which does not, it is incumbent on the trial judge to explain why the inferences leading to an acquittal are not accepted.

Guilt cannot be proved beyond a reasonable doubt if there is an equally plausible explanation which would result in an acquittal. [ 79 ] In the instant case, the trial judge erred by failing to explain why inferences supporting the defence of accident were not accepted. His few comments relating to the possibility of the injury being the result of an accident are conclusory. He failed to adequately assess the evidence as a whole, including issues related to motive, effect of intoxication, Dr.

Avis’ testimony, statements attributed to the complainant, and the complainant’s reaction to being cut, as discussed above. In the result, I would allow the appeal and quash the conviction. [ 80 ] I am of the view that this is a circumstance in which the appropriate remedy would be to enter an acquittal rather than order a

new trial. The evidence viewed as a whole could not support proof beyond a reasonable doubt that Mr. Vokurka intended to wound the complainant contrary to

section 268 of the Criminal Code . [ 81 ] Accordingly, I would allow the appeal, quash the conviction and enter a verdict of acquittal. ______________________________ B. G. Welsh J.A.