R. v. O'Quinn, 2014 NLCA 23

Date: 201405 27 Docket: 12/95 Citation: R. v. O'Quinn, 2014 NLCA 23

Section 486.4 of the Criminal Code respecting the non-publication of the identity 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: MATTHEW O’QUINN APPELLANT AND: HER MAJESTY THE QUEEN RESPONDENT Coram: Welsh, Rowe and Harrington JJ.A. Court Appealed From: Provincial Court of Newfoundland and Labrador, Stephenville Appeal Heard: May 6, 2014 Judgment Rendered: May 27, 2014 Reasons for Judgment by Harrington J.A. Concurred in by Welsh and Rowe JJ.A. Counsel for the Appellant: Jennifer Curran Counsel for the Respondent: Frances Knickle Q.C.

Harrington J.A.: [ 1 ] The appellant appeals his convictions for offences committed during a two-week period in July 2012 while in a romantic relationship with C.K. At trial, the appellant was convicted of a number of serious offences. [ 2 ] Relying on C.K.’s evidence, the trial judge found Mr.

O’Quinn guilty of breaking and entering, three counts of assault against C.K., uttering threats against C.K. and her daughter, pointing a firearm at C.K., and two counts of forcibly confining C.K. during the two weeks in July 2012. [ 3 ] This appeal is based upon the trial judge’s acceptance of the credibility of the complainant’s testimony where her evidence was central to convicting the appellant and the insufficiency of reasons in support of the trial judge’s decision. For the reasons which follow, the appeal is dismissed. ISSUES [ 4 ] The issues on this appeal are:

(1) Did the trial judge err by failing to give sufficient weight to inconsistencies in C.K.’s testimony, particularly with respect to her finding that C.K. had been unlawfully confined?

(2) Did the trial judge err in failing to give sufficient reasons in her decision to accept C.K.’s evidence as credible in convicting the appellant? ANALYSIS Credibility of C.K.’s Testimony [ 5 ] C.K. agreed to hike with the appellant into a heavily wooded area near Stephenville where they ultimately took shelter in an unoccupied cabin. C.K. soon became disenchanted with the hardship of trekking through the dense terrain and brush with the appellant which she found exhausting and about which she complained to the appellant. C.K. testified that her complaints angered the appellant.

C.K. alleged and the trial judge held that the appellant pointed a loaded .22 caliber gun at C.K. in response to her complaints and made verbal threats to slit her throat and to “chop her [daughter] up”. These threats were alleged to have been made concurrently with the appellant pointing the gun at C.K. [ 6 ] On these matters, the trial judge wrote: [38] In deciding this issue I have considered the evidence of C.K. While C.K. did voluntarily accompany Mr. O’Quinn to the cabin, C.K. testified that at a later time, she felt that she could not leave. She testified that on one occasion when she suggested to Mr.

O’Quinn that she go to the police to see why they wished to speak with her, Mr. O’Quinn threatened to slit her throat and cause harm to her child. On another occasion C.K. testified that when she suggested to Mr. O’Quinn that perhaps they should separate, he hit her with the back of his hand.

For the reasons I have already set out, I accept C.K.’s evidence as it relates to the threats and the assault. [ 7 ] C.K.’s credibility was challenged on the basis that she was confused about important details such as the number of occasions when she and the appellant visited at his parents’ home, her whereabouts with the appellant during the two-week period in the bush, the sequence of visiting certain specific locations, and the occasions and circumstances supporting the allegations that she was unlawfully confined by the appellant during the two-week period. [ 8 ] Appellant’s counsel emphasized that C.K. testified that she had visited the appellant’s parents at their residence once during the two-week period yet the trial transcript indicated that she visited the appellant’s parents’ home on two occasions, once at the beginning and another at the end of the period.

On this particular point, the trial judge wrote: [40] … I have considered the Defence position that C.K.’s inability to provide a consistent description of her and Mr. O’Quinn’s movements throughout the two week period raises a doubt as to her credibility in regard to the unlawful confinement charge. I have considered C.K.’s evidence as it relates to when she went to Mattis Point and where she was prior to her arrest at the O’Quinn home. I have also considered C.K.’s evidence in light of the evidence presented by Bernadette O’Quinn. I do not accept C.K.’s evidence that she and Mr.

O’Quinn only went to his parents’ home once over the two week period. I believe she is mistaken in this regard. I acknowledge her inconsistency; however when I consider her evidence in its totality I am satisfied that she is a credible and reliable witness. [41] When I consider all of C.K.’s evidence, I am satisfied beyond a reasonable doubt that on the two occasions she described, Mr. O’Quinn, through fear, intimidation and use of physical force, confined C.K. without lawful authority contrary to s. 279(2).

A conviction will be entered in relation to Information #2. [ 9 ] The trial judge described C.K.’s testimony as “forthright”, “clear” and “straight forward”. She acknowledged the fact that C.K. was “frustrated” during her testimony but nevertheless concluded that her testimony demonstrated “no vindictiveness” towards the appellant and she did not “embellish” or “exaggerate” her evidence.

The trial judge also acknowledged that C.K., the key Crown witness, possessed a criminal record which was taken into account in assessing C.K.’s credibility. [ 10 ] The trial judge noted that C.K. had clear recollections of ammunition for a .22 caliber rifle being hidden in a pouch inside of a pipe in a secluded area near the cabin she and the appellant were occupying and that her recollections led to the police recovering the said ammunition.

Further, C.K. was able to describe in detail the type of rifle which the appellant had had in his possession, the caliber of the ammunition for the rifle, and the features of the pouch holding a small number of bullets. The father of the appellant confirmed at trial that his son possessed and used this type of firearm, which he was prohibited from having in his possession. The trial judge relied on this evidence to enter a conviction on the related charges of pointing a firearm, using a firearm while uttering threats, and possessing

ammunition in breach of a court order. [ 11 ] The focus of the evidence affecting credibility related to alleged inconsistencies by C.K. in her testimony with respect to the charge of unlawful confinement. Appellant’s counsel emphasized that C.K. had testified that at one point during the two-week sojourn in the woods she had been willing to give the appellant a “second chance”, which counsel argued weakened her claims of forcible confinement.

The respondent’s counsel replied to the appellant’s submission by demonstrating the context within which this admission was made during the two week period C.K. was with the appellant. The portion of the transcript referred to by appellant’s counsel was followed by the explanation in response to Crown counsel: A. Yes. By the time we got to his mother’s, I was – I was giving him a second chance. Q. Okay. A. ‘Cause I was too scared to say no. Q. And why were you too scared to say no? A. Because he’d be all right to talk to.

He would – if I agree to, like, - - like agree with him – like, to go away with him or something like that. Then we were talking about stuff like that. But then I went and I said, “Well, how about you go away”, or something, “And I just – I’ll come up after you”, or something like that, right? And see, he’d get bad. Q. Okay. A. I was just trying to make ways to - - to get away. Q. Okay. You said if - - when you told him you’d like to go separate ways, is that what you mean? A. Yeah. Yeah. And I told him, I’d meet up with him some other time. Like, meet up with him later on or something. Q.

And what did he say about that? A. Oh, he flipped. Q. And what do you mean by that? A. He give me a - - he backhanded me when we were walking, he backhanded me. And it wasn’t hard - - it wasn’t hard at all. Just a little hit. And then he started telling me off.

Like, “You stupid bitch”, and saying that we already had this conversation, “Now you’re going to switch it around”, and stuff like that. [ 12 ] C.K.’s testimony clearly indicated that she felt under pressure to stay with the appellant notwithstanding the strained relationship which included the assault she described as being “backhanded”. [ 13 ] The trial judge acknowledged the inconsistencies in C.K.’s testimony but concluded that “C.K.’s inability to provide a consistent description of her and [the appellant’s] movements throughout the two week period” did not detract from her finding that C.K. had been forcibly confined on two occasions.

The trial judge accepted that C.K. was restricted for two lengthy periods of time when the appellant was carrying the rifle while hiking with C.K. in wooded areas and had pointed it directly at C.K. while reacting angrily to her complaints of exhaustion and expressions of a desire for both of them to surrender themselves to the police. The trial judge relied upon the reasons in R. v.

Pritchard, 2008 SCC 59 , [2008] 3 S.C.R. 195 where the Supreme Court reviewed the elements of the offence of “forcible confinement” under section 279(2) of the Criminal Code in these terms: [24] The authorities establish that if for any significant period of time Mrs. Skolos was coercively restrained or directed contrary to her

wishes, so that she could not move about according to her own inclination and desire, there was unlawful confinement within s. 279(2)… [14] Here, as it was discussed in R. v. Lohrer, 2004 SCC 80, [2004] S.C.R. 732 the appellant argues that there was an obviousmisapprehension of the evidence by the trial judge by failing to recognize the importance of the inconsistencies in C.K.’s evidence inrelation to her credibility. However, Binnie J. in Lohrer wrote at paragraph 2 referring to R. v. Morrissey, (ON CA),[1995] 22 O.R. (3d) 514 (Ont.

C.A.), that any alleged errors rooted in inconsistencies in the Crown’s witness: … must go to the substance rather than to the detail. It must be material rather than peripheral to the reasoning of the trial judge.

Oncethese hurdles are surmounted, there is the further hurdle (the test is expressed as conjunctive rather than disjunctive) that the errorsidentified must play an essential part not just in the narrative of the judgment but “in the reasoning process resulting in a conviction.” [15] At trial, counsel for the appellant pursued lines of questioning of C.K. regarding her criminal record, drug abuse, lapse ofmemory regarding the number of visits to the home of the appellant’s parents, and the sequence of the hiking to Mattis Point in relationto the visit to the parents’ home.

She was uncertain about the time frame that she was in the cabin in the wooded area. The trial judgeclearly addressed these points in her reasons and found that they were unrelated to the substance of the charges against the appellant.

Sufficiency of Reasons [16] The appellant argues that the trial judge “did not adequately address inconsistencies in C.K.’s testimony in her reasons” andmore specifically, failed to explain how “she reconciled these concerns in coming to this decision.” Counsel further submits that theseinconsistencies were related to dates when C.K. and the appellant were together as well as “periods when she had contact with friendsand relatives by phone, information concerning contact with residents in the area and … providing false or misleading information to thepolice …”. [17] In R. v.

Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, Charron J., referencing R. v. Sheppard, 2002 SCC 26 , [2002] 1S.C.R. 869, wrote at paragraph 25: [25] Sheppard instructs appeal courts to adopt a functional approach to reviewing the sufficiency of reasons (para. 55). The inquiryshould not be conducted in the abstract, but should be directed at whether the reasons respond to the case’s live issues, having regard tothe evidence as a whole and the submissions of counsel (R. v. D. (J.J.R.) (2006), (ON CA), 215 C.C.C. (3d) 252(Ont. C.A.), at para. 32).

An appeal based on insufficient reasons will only be allowed where the trial judge’s reasons are so deficientthat they foreclose meaningful appellate review: Sheppard, at para. 25. [18] I do not agree with the submissions by appellant’s counsel on this issue for the reasons given regarding the merits of theappeal. The credibility of C.K. was a critical element of the Crown’s case.

The trial judge wrote clear and detailed reasons with respectto the various convictions entered against the appellant. [19] I am satisfied that the trial judge properly acknowledged the weaknesses of some aspects of C.K.’s testimony by properlyassessing whether they went to the substance of the charges. Such analysis is evident from the trial judge’s careful assessment ofevidence relating to the unlawful confinement charge which resulted in a finding of guilt with clear reasoning to justify the convictions.

In terms of appellate deference, Justice Charron succinctly wrote in Dinardo: [26] At the trial level, reasons “justify and explain the result” (Sheppard, at para. 24). Where a case turns largely on determinations ofcredibility, the sufficiency of the reasons should be considered in light of the deference afforded to trial judges on credibility findings. Rarely will the deficiencies in the trial judge’s credibility analysis, as expressed in the reasons for judgment, merit intervention onappeal.

Nevertheless, a failure to sufficiently articulate how credibility concerns were resolved may constitute reversible error (see R. v.Braich, 2002 SCC 27, [2002] 1 S.C.R. 903 at para. 23). As this Court noted in R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, theaccused is entitled to know “why the trial judge is left with no reasonable doubt” … [20] C.K. spent two weeks in a remote, heavily wooded area hiding with the appellant from the authorities. He was frequentlyarmed and behaving in a paranoid manner about the prospect that C.K. might expose their whereabouts to the police.

C.K. gave evidenceof being struck, threatened, having a loaded rifle pointed at her in anger while fearing for the safety of her daughter and herself. Thetrial judge clearly made findings of credibility in favour of C.K. at trial on key elements of the charges and deference is owed to thesefindings. [21] The appellant has not demonstrated that errors were committed by the trial judge in her identification and consideration of theprincipal elements of the offences for which convictions were entered for breaking and entering, assault, uttering threats, pointing afirearm and forcible confinement.

DISPOSITION [22] In the result, the appeal is dismissed. ______________________ M. F. Harrington J.A.

I concur: ______________________ B. G. Welsh J.A. I concur: ______________________ M. H. Rowe J.A.