R. v. J.K., 2015 NLCA 14

Date: 201503 30 Docket: 13/19 Citation: R. v. J.K. , 2015 NLCA 14

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 : J.K. APPELLANT AND : HER MAJESTY THE QUEEN RESPONDENT Coram: Rowe, White and Harrington JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division (G) 201001G7057, (2012 NLTD(G) 101) Appeal Heard: January 16, 2015 Judgment Rendered: March 30, 2015

Reasons for Judgment by Rowe J.A. Concurred in by White and Harrington JJ.A. Counsel for the Appellant: Rosellen Sullivan Counsel for the Respondent: Lisa Stead Rowe J.A.: [1] This is an appeal of a conviction for sexual assault.

The complainant testified that J.K. had non-consensual sexual intercoursewith her in his car. [2] The evidence at trial included, inter alia, the complainant’s testimony, testimony by a friend of the complainant, testimony byJ.K.’s girlfriend, evidence by a nurse relating to the complainant’s physical condition, forensic evidence relating to the complainant’sclothing, forensic evidence relating to J.K.’s car, and text messages exchanged between J.K. and the complainant. [3] While in this appeal issues were raised concerning the admissibility of evidence (e.g. the nurse’s testimony) and the weightgiven to evidence (e.g. the forensic evidence relating to the complainant’s clothing), I am not going to deal with those issues. [4] I am not going to do so because errors by the trial judge in the application of reasonable doubt require that the conviction beset aside and a new trial held.

Given that result, it is better not to deal with the admissibility of evidence or the weight that evidenceshould be given. Those are matters for the court in the new trial. [5] Misapplication of the doctrine of proof beyond a reasonable doubt occurred at several passages in the judge’s reasons fordecision. These passages indicate that the trial judge did not apply reasonable doubt to the cumulative effect of all the evidence pointingaway from the guilt of the accused, weighed against the cumulative effect of all the evidence pointing toward the guilt of the accused.

Rather, the judge applied reasonable doubt to items of evidence in a piecemeal fashion. It is settled law that this constitutes a legal error. [6] In R. v. Morin, (SCC), [1988] 2 S.C.R. 345, Sopinka J. wrote at page 354: [I]t is misdirection to instruct a jury to apply the standard of reasonable doubt to individual items of evidence. There is ample authorityfor this view: Stewart v. The Queen, (SCC), [1977] 2 S.C.R. 748, at pp. 759-61; R. v. Bouvier (1984), (ON CA), 11 C.C.C. (3d) 257 (Ont.

C.A.), at pp. 265, aff’d (SCC), [1985] 2 S.C.R. 485. [7] Sopinka J. set out the correct way to apply reasonable doubt, which is to consider the “cumulative effect” of the evidence. Atpage 359, he adopted a passage from Thomas v.

The Queen, [1972] N.Z.L.R. 34 (C.A.), in which the trial judge charged the jury in thefollowing language (at page. 36) Now whilst each piece of evidence must be carefully examined, because that is the accused’s right and that is your duty, the case is notdecided by a series of separate and exclusive judgments on each item or by asking what does that by itself prove, or does it prove guilt?That is not the process at all. It is the cumulative effect… [8] In R. v. B.(G.), (SCC), [1990] 2 S.C.R. 57 the Supreme Court affirmed the foregoing from R. v.

Morin (butsplit as to whether the trial judge had or had not examined the evidence piecemeal). Wilson J. (for the majority) adopted the followingpassage from Chamberlain v. The Queen (1984), 58 A.L.J.R. 133 (also referred to in R. v. Morin). In Chamberlain, Chief Justice Gibbsand Justice Mason wrote at page 139: We have no doubt that the position is correctly stated in the following passage in R. v. Beble, [1979] Qd.

R. 278 at 289, that “It is not thelaw that a jury should examine separately each item of evidence adduced by the prosecution, apply the onus of proof beyond reasonabledoubt as to that evidence and reject it if they are not so satisfied”. At the end of the trial the jury must consider all the evidence, and indoing so they may find that one piece of evidence resolves their doubts as to another.

For example, the jury, considering the evidence ofone witness by itself, may doubt whether it is truthful, but other evidence may provide corroboration, and when the jury considers theevidence as a whole they may decide that the witness should be believed.

Again, the quality of evidence of identification may be poor,but other evidence may support its correctness; in such a case the jury should not be told to look at the evidence of each witness“separately in, so to speak, a hermetically sealed compartment”; they should consider the accumulation of the evidence …. (Emphasis added by the Supreme Court of Canada.) [9] In R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197 at paragraph 31, the Supreme Court relied on R. v. Morin and R. v.

B.(G.)for “the principle … that it is an error of law to subject individual pieces of evidence to the standard of proof beyond a reasonable doubt;[rather] the evidence must be looked at as a whole.”

[10] I turn now to the passages in the trial judge’s decision that indicate she committed the error of law identified above. [11] The first occurs at paragraph 49, where the trial judge stated: The standard of proof beyond a reasonable doubt also applies to an assessment of credibility of witnesses. Read in light of what followed it indicates the judge embarking on the path of legal error. [12] In paragraph 54, the judge dealt with whether J.K. and the complainant were together on the evening in question.

J.K.’sgirlfriend had testified that he spent the night with her. [13] The complainant testified that J.K. had assaulted her earlier in the evening, before he went to his girlfriend. At paragraph 54,the trial judge wrote: I am satisfied on the evidence before me that the complainant and the accused were together on the night [in question].

The evidence of[his girlfriend] does not raise any reasonable doubt in this regard. [14] In paragraph 58, when dealing with inconsistencies in the complainant’s testimony, the judge wrote: I do not find her credibility diminished to the point of raising a reasonable doubt. [15] In paragraph 59, the judge dealt with four items of evidence: (1) no blood was found on the seat of J.K.’s car, whereas the complainant had said that she had bled heavily on the seat as a result offorced intercourse; (2) the accused’s DNA was not recovered from the complainant’s clothing; (3) the dashboard of the accused’s car wasn’t damaged, whereas the complainant had said her shoes had scuffed it; and (4) a tee-shirt worn by the accused and stained with the complainant’s blood was not found.

Regarding the foregoing, the judge wrote: None of these factors raises a reasonable doubt in my view. [16] In paragraphs 54, 58 and 59, the trial judge assessed individual items of evidence that pointed away from guilt of the accusedand concluded that they did not raise a reasonable doubt. But that is not how reasonable doubt should be applied.

Rather, as indicatedabove, what should have occurred was consideration of the “cumulative effect” of the evidence pointing away from the guilt of theaccused weighed against the “cumulative effect” of all the evidence pointing toward the guilt of the accused. [17] In contrast to the foregoing piecemeal, item-by-item analysis, in paragraph 70, just before entering the conviction, the judgewrote: Based on the whole of the evidence and putting the burden of proof on the Crown, I find that the evidence of the complainant was certainand consistent enough to meet the very high standard of proof beyond a reasonable doubt required to enter a conviction. (Emphasis added.) [18] Does this reference to deciding “based on the evidence as a whole” cure the defective piecemeal analysis that preceded it?

Itdoes not. What matters is not whether the trial judge described what standard should be applied (she referred to R. v. Lifchus, [1977] 3S.C.R. 320 and R. v. Starr, 2000 SCC 40 , [2000] 2 S.C.R. 144), but rather whether that standard was in fact applied. [19] In R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5 at paras. 32-33, Fish J. (partially concurring) said: A correct statement of the law can scarcely save its evident misapplication … [J]udges may know the law, yet err in its application.

That is what occurred in this case. [20] There was evidence upon which a jury properly instructed could have entered a conviction; thus, the verdict is notunreasonable. However, in light of the foregoing legal error, the verdict is unsound. Accordingly, the conviction is set aside and a newtrial is ordered. ____________________________________ M. H. Rowe J.A.

I Concur: __________________________________ C. W. White J.A. I Concur: __________________________________ M. F. Harrington J.A.