TYLER ELSON APPELLANT AND: HIS MAJESTY THE KING RESPONDENT, 2024 NLCA 6

IN THE COURT OF APPEAL OF NEWFOUNDLAND AND LABRADOR Citation : R. v. Elson , 2024 NLCA 6 Date : February 12, 2024 Docket Number : 202101H0080 Restriction on Publication : By court order made under subsection 486.4(1) of the Criminal Code , information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way. BETWEEN: TYLER ELSON APPELLANT AND: HIS MAJESTY THE KING RESPONDENT Coram: W.H. Goodridge, F.J. Knickle and D.M. Boone JJ.A.

Court Appealed From: Provincial Court of Newfoundland and Labrador, Happy Valley-Goose Bay Appeal Heard: September 13, 2023 Judgment Rendered: February 12, 2024 Reasons for Judgment by: F.J. Knickle J.A. Concurred in by: W.H. Goodridge and D.M. Boone JJ.A. Counsel for the Appellant: Courtney O. Mills Counsel for the Respondent: Sheldon B.J. Steeves Authorities Cited: CASES CITED: R. v. Barton , 2019 SCC 33 , [2019] 2 S.C.R. 579; R. v. Ryan , 2011 NLCA 53 ; R. v. R.E.M. , 2008 SCC 51 , [2008] 3

S.C.R. 3; R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869; R. v. Summers, 2023 NLCA 8; R. v. Gladue, (SCC),[1999] 1 S.C.R. 688; R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433; R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424. STATUTES CONSIDERED: Criminal Code,

section 718.2(e). F.J. KNICKLE J.A.: [1] The appellant, Tyler Elson, was convicted of sexually assaulting a 13-year-old complainant by having non-consensualintercourse with her in his camper trailer (R. v. Elson, (NLPC), the “Conviction Decision”). Mr. Elson was 31years of age at the time of the commission of the offence. On a summer afternoon, Mr. Elson shared cannabis with the complainant. Thetwo were acquaintances. After sharing the cannabis, Mr. Elson then forced the complainant to have sexual intercourse with him despiteher protestations. [2] In sentencing Mr.

Elson, the trial judge concluded that the fit sentence for the offence of sexual assault would have been 5years imprisonment (R. v. Elson (Sentence), 2021 NLPC 1720A00446, the “Sentencing Decision”). At the time Mr. Elson was sentencedfor the sexual assault, he was also sentenced for breaches of an undertaking. Because Mr. Elson spent a considerable period of time inpre-trial custody, the ultimate sentence imposed in conjunction with sentences for other offences was a period of 1,598 days, or betweenapproximately 4 and 4.5 years. [3] Mr.

Elson appeals both the conviction and sentence imposed for the offence of sexual assault. [4] In respect of the conviction, Mr. Elson argues two errors. Firstly, he argues that the trial judge’s conduct during the trialrendered the trial unfair. Secondly, Mr. Elson argues that the trial judge’s reasons for conviction are insufficient and fail to explain howhe resolved alleged inconsistencies in the complainant’s testimony. [5] In respect of the sentence, Mr. Elson argues that the trial judge erred in principle because he failed to consider the mitigatingfactor of Mr. Elson’s Indigenous circumstances. Mr.

Elson argues this failure was an error in principle that resulted in an unfit sentence. [6] For the reasons that follow, I would dismiss both appeals. [7] The issues can be framed as follows: 1. Did the conduct of the trial judge render the trial unfair? 2. Did the trial judge err by failing to provide sufficient reasons for conviction? 3. Did the trial judge err by failing to consider Mr. Elson’s circumstances as an Indigenous offender? ISSUE 1: Did the conduct of the trial judge render the trial unfair? [8] Mr. Elson submits that the trial judge erred by interfering with Mr.

Elson’s counsel’s cross-examination of the complainant.He submits that the trial judge’s interruptions went beyond any proper purpose such as trial management or protection of a vulnerablewitness. He submits the trial judge’s interferences with his counsel’s cross-examination and comments to his counsel prevented Mr.Elson from making full answer and defence. Mr. Elson submits that an informed person, viewing the circumstances realistically andpractically would conclude that this interference rendered the trial unfair.

I disagree. [9] The interventions by the trial judge were reasonable and within his proper sphere. Most of the interventions by the trial judgewere in response to objections from the Crown to defence counsel’s questioning of the complainant. All of the trial judge’s interventionsrelated to the relevance of questions proposed by defence counsel. [10] There were five occasions during the cross-examination of the complainant where the Crown objected to the relevance ofquestions posed by defence counsel.

After hearing from the Crown on each of these objections, the trial judge provided defence counselthe opportunity to explain how or why the question was relevant. When the trial judge was satisfied that the question was appropriate, heallowed the question (e.g. Transcript, at 235). When the trial judge was not satisfied that the question was relevant, he disallowed thequestion (Transcript, at 192-193, 231-235, 238-240). [11] There were two interventions by the trial judge that were not the result of objections by the Crown but of his own accord.

Oneof the interventions occurred as follow-up to the complainant’s response to a question as to why she had not disclosed to the policecertain details to which she testified at trial (Transcript, at 212-213). The complainant had been asked whether or not Mr. Elson wore“protection” during the sexual encounter. The complainant responded to the question and elaborated that as a result of the sexualencounter, the following day she took a birth control treatment known as “Plan B”. It was then that defence counsel questioned her as towhy her testimony regarding “Plan B” was not disclosed to the police.

The complainant responded that she did not realize that she wouldhave to recount “every little detail” and stated “I’ve never been through this before”. [12] When counsel pressed the complainant further, the trial judge interjected and asked counsel to explain the relevance of thequestioning. Defence counsel explained that it was their view that the complainant was telling a story that was “more and more elaborateeach time it’s told”.

Counsel submitted it was necessary to ask the complainant about these new details that were emerging as this wasrelevant to the complainant’s overall credibility and reliability as a witness. [13] The complainant then asked to speak, which the trial judge allowed. Defence counsel then responded to the complainant thatwhether she took “Plan B” was “really not relevant”, while suggesting to her that there were “a lot of details” in the complainant’s

testimony that were not in her previous statements. At that point, the trial judge stated to defence counsel (Transcript, at 214): THE COURT: Listen, Ms. Mills, if it’s not relevant today, it wasn’t relevant then. Stop asking questions about it. Now do you have any questions- - Counsel: No, I am not talking about the Plan B. THE COURT: No, no, no, don’t say no to me. Listen to me.

Stop asking irrelevant questions of this witness. [ 14 ] The second intervention by the trial judge of his own accord, was in response to his concern that defence counsel had misstated the evidence of the complainant and was asking questions that were inappropriate, given the age of the witness (Transcript, at 219-221). The exchange occurred as follows: Q. Okay. So, again, though, when I asked you the question about had you ever been to his house before, you said yes, and that you went there and got stoned with him. But now you’re saying no, that’s not true, right? THE COURT: No, that’s not what she-- A.

That’s not what I said. THE COURT: That’s not what she said, Ms. Mills. That’s not what she said. When you’re cross-examining a teenager, you ought to be very cautious about mis-stating the evidence. That is not her evidence at all. And I have to say-- Q. I’m having a hard time following it. THE COURT: Well I’m very concerned about the cross-examination, because you’re misleading the witness. Q.

Well, it’s difficult to, you know, point out inconsistencies when it’s attributed to a mistake or etcetera, like, I mean, I would love to, like, I’m considering whether or not we need to listen to the audio statement so the Court can hear what was in it and what was excluded. The written one is the same thing. Like, that’s two prior inconsistent statements. THE COURT: How are they inconsistent statements? She--you’re asking a witness--you said to her, “Did you not think it was relevant?” She was 13. Do you expect a 13 year old to understand the concept of relevance in Canadian criminal law? Q.

Well I would say important. I used the word relevant because I speak in legal terms. THE COURT: Right. Q. I (unintelligible)-- THE COURT: Sure you do, but do you think--does a 13 year old? I wrote down what you said. You said, “Did you not think it was relevant?” How-- Q. Well there was no objection to the question. THE COURT: Well what kind of question is that? Q. Well, I mean, that’s--I can use whatever phrasing I like to. What the weight of the answer would be, I think, would be a-- THE COURT: Okay. Q. --decision for the Court to make. THE COURT: Okay. Q.

Not whether or not I’m phrasing it Analysis [ 15 ] There was nothing improper with any of the interventions by the trial judge either in response to objections from the Crown or of his own accord. Mr. Elson has not appealed the propriety of any of the trial judge’s rulings respecting the relevance of the questioning but complains that the interventions unfairly disrupted counsel’s examination. While at times the trial judge’s remarks appeared somewhat intemperate, a close review of the Transcript does not bear out Mr.

Elson’s complaints. [ 16 ] With respect to the objections by the Crown, the trial judge had a duty to respond and rule one way or the other as to whether the particular question was permissible. There is nothing inappropriate about the trial judge’s conduct in this regard, and there is no evidence that he unduly interrupted counsel in the course of resolving the objections by the Crown.

Counsel was consistently given the opportunity to explain the relevance of a particular question. [ 17 ] Similarly, the interventions by the trial judge of his own accord were justified because of his concern with the relevance and propriety of particular questions on what he viewed as collateral issues. Ensuring that the questions were relevant and not misleading was within his bailiwick.

While in many cases a trial judge might wait to see if opposing counsel will object before intervening, this does not mean that a trial judge who has concerns with the relevance of particular questions should always remain silent because opposing counsel has not objected. It is the duty of the trial judge as the ultimate gatekeeper to address the admissibility of evidence or the permissibility of questions (See R. v. Barton , 2019 SCC 33 , [2019] 2 S.C.R. 579, at para. 68 , R. v. Ryan , 2011 NLCA 53 , at para. 34 ).

[ 18 ] Further, despite the trial judge’s misgivings that defence counsel’s cross-examination extended into peripheral and collateral matters, there were extensive periods during which counsel’s cross-examination went uninterrupted (Transcript, at 199-212, 222-231). [ 19 ] None of the interventions were improper and they did not impede Mr. Elson’s ability to make full answer and defence, nor render the trial unfair. [ 20 ] I would dismiss this ground of appeal. ISSUE 2: Did the trial judge err by failing to provide sufficient reasons for conviction? [ 21 ] Mr.

Elson complains that the trial judge failed to provide adequate reasons for convicting him of the sexual assault. Mr. Elson submits that credibility was a central issue at trial. Mr. Elson submits that he and the complainant were the only witnesses and their versions of the events were diametrically opposed. Mr. Elson submits that it was critical that the trial judge adequately explain how he resolved the conflict between their competing versions of what happened. [ 22 ] Mr. Elson, in particular raises two concerns.

He submits that the trial judge rejected his testimony because it was “replete” with equivocation, but provided no explanation or examples. Mr. Elson also submits the trial judge failed to address inconsistencies in the complainant’s evidence or what Mr. Elson described as the “evolving narrative” of the complainant’s evidence. Analysis [ 23 ] The trial judge’s reasons for conviction were sufficient. While succinct, they are clear as to why the trial judge convicted and adequate to enable this Court to review his decision ( R. v. R.E.M. , 2008 SCC 51 , [2008] 3 S.C.R. 3, R. v.

Sheppard , 2002 SCC 26 , [2002] 1 S.C.R. 869). [ 24 ] Firstly, it is clear from his reasons that the trial judge did not find Mr. Elson a credible witness. The trial judge’s conclusion that Mr. Elson’s testimony was “replete” with equivocation was amply supported by his review of Mr. Elson’s testimony earlier in his decision (see Conviction Decision, at paras. 61-63, 67, 69, 71-73). For example, when Mr. Elson was asked how he and the complainant communicated, he responded that he “wasn’t really sure”.

Other responses to similar questions included such as “probably”, “I don’t know”, he “didn’t recall” or “I don’t remember”, and support the trial judge’s conclusion that Mr. Elson was less than credible. [ 25 ] Likewise, the trial judge’s reasons as to why he found the complainant to be credible is evident in his Decision. His reasons show he was alive to her alleged frailties as a witness. The trial judge stated at paragraph 112 of his Decision: I believed the complainant. She is and was at the time a teenager, a ward living in a group home.

She has struggled with suicidal ideation, and she was using cannabis at the age of 13 years. But even with all of those complications, she was clear and consistent in her evidence. She was a credible witness. [ 26 ] In finding that the complainant was “clear and consistent”, the trial judge did not accept that there were inconsistencies in her testimony that adversely affected her credibility. [ 27 ] At the hearing of the appeal, Mr. Elson’s counsel was asked by this Court to identify inconsistencies the trial judge failed to address. [ 28 ] An alleged inconsistency identified by Mr.

Elson’s counsel was the timing of the disclosure of the assault. At trial, the complainant testified that she did not disclose the assault until a year later when she disclosed it to her group home worker. Defence counsel put to the complainant that in her police statement, the complainant stated she told her cousin about the incident (Transcript, at 195, 201). The complainant testified that she only told her cousin that “she bought weed” from Mr. Elson and that he flirted with her, but not about the assault (Transcript, at 201). [ 29 ] Another alleged inconsistency identified by Mr.

Elson’s counsel was the manner in which the complainant re-dressed after the assault. At trial, the complainant testified that she pulled up her pants as she was leaving. Defence counsel suggested that what she told the police was that she had dressed in the woods after the assault (Transcript, at 221).

The complainant stated that what she told the police was what she testified to at trial, that she “got dressed” as she was leaving. [ 30 ] Defence counsel also suggested to the complainant that she told the police that, prior to the assault she was sitting on the bed, but at the trial she testified that she was sitting in a chair (Transcript, at 204-205). The complainant responded that the chair was attached to the bed and immediately next to the bed. [ 31 ] These alleged inconsistencies were specifically raised by Mr. Elson’s counsel in her submission on verdict.

Given the trial judge’s explicit reference to the complainant’s frailties, as referenced earlier, if the complainant’s testimony was inconsistent as alleged by Mr. Elson’s counsel, the trial judge concluded that the inconsistencies were peripheral or minor. Taking his decision in its entirety and in the context of the issues at trial, his decision adequately demonstrates that he was satisfied that the alleged inconsistencies did not undermine the complainant’s credibility. There is no basis for this Court to interfere with the trial judge’s conclusion.

The trial judge’s reasons adequately explain his basis for convicting Mr. Elson. [ 32 ] I would dismiss this ground of appeal. ISSUE 3: Did the trial judge impose an unfit sentence by failing to consider Mr. Elson’s circumstances as an Indigenous offender? [ 33 ] Mr. Elson submits that the trial judge erred in his approach to sentencing because he failed to give adequate consideration to Mr. Elson’s background as an Indigenous offender.

[34] As this is an appeal from sentence, the appellant must seek leave. The test for leave to appeal was described recently by thisCourt in R. v. Summers, 2023 NLCA 8, at paragraph 16: Leave to appeal is required in an appeal against sentence only (section 675(1)(

b) of the Criminal Code). The test to be applied is whetherthe appeal is “frivolous in the sense of having no arguable basis or sufficient merit” (R. v. Murphy, 2011 NLCA 16, 304 Nfld. & P.E.I.R.266, at paragraph 8). [35] The issue raised on appeal, that is whether the trial judge erred in principle by failing to consider Mr. Elson’s circumstances asan Indigenous, is not frivolous in the sense that there is no arguable merit.

Section 718.2(

e) of the Criminal Code requires sentencingjudges to take into account the circumstances of an offender who is Indigenous. It is an error in principle to fail to so do. I would grantleave to appeal. [36] While I would grant leave to appeal, this ground of appeal must also fail. [37] The principles governing appellate intervention on sentence are well established.

In the absence of an error in principle thatwould impact the sentence or a conclusion that a sentence is demonstrably unfit, an appellate court will generally not intervene. [38] I am not satisfied that either criteria has been met. [39] The trial judge’s decision on sentence shows that he was aware of his obligation to take into account Mr. Elson’s circumstancesas an Indigenous offender. [40] At paragraph 6 of his sentencing decision, the trial judge explicitly referenced counsel’s submissions that Mr. Elson’scircumstances as an Indigenous offender needed to be considered.

The trial judge then cited the Supreme Court of Canada’s decision inR. v. Gladue, (SCC), [1999] 1 S.C.R. 688, which interpreted the obligation to consider an offender’s circumstances asaboriginal, as directed by

section 718.2(

e) of the Criminal Code. The trial judge stated: In R. v. Gladue, (SCC), [1999] 1 S.C.R. 688 at paragraph 37, the Supreme Court of Canada [stated] that, “sentencingjudges should pay particular attention to the circumstances of aboriginal offenders because those circumstances are unique and differentfrom those of non-aboriginal offenders.” Both the accused and the victim in this case are Indigenous. [41] The trial judge also stated that in considering Mr. Elson’s circumstances, it would be with “reference to the pre-sentence/Gladue report” that had been prepared at the request of Mr.

Elson (Sentencing Decision, at para. 16). [42] The fact that the trial judge did not explicitly state that Mr. Elson’s circumstances as an Indigenous offender impacted sentence,did not mean he did not consider the circumstances. The trial judge referred to many details in the report (see for example SentencingDecision, at paras. 18-20, 23-25) which support that the trial judge was thoroughly familiar with the report’s contents. [43] The trial judge also observed that “both the accused and the victim in this case are Indigenous”.

In imposing sentence, thetrial judge summarized the circumstances, again referring to Mr. Elson’s status as an Indigenous offender (Sentencing Decision, at para.49). [44] The above supports that the trial judge was aware of his obligation to consider Mr. Elson’s Indigenous circumstances. [45] Having said that, while the judge’s reasons show that he was alive to his obligation, it would have been helpful for the trialjudge to explain how Mr.

Elson’s circumstances as Indigenous impacted the determination of the fit sentence, to the extent it wasreasonable and justifiable to so do (Gladue, at para. 72). [46] It is not enough to simply recite the relevant principles. A sentencing judge’s reasons should demonstrate how the principleswere applied. [47] But given the details in the report, it is unlikely that Mr. Elson’s circumstances as Indigenous had any substantial mitigatingimpact on sentence. While the report described turmoil in Mr.

Elson’s early life, including witnessing violence by his father upon hismother, and in the lives of his parents and grandparents owing to their Indigenous background, Mr. Elson’s upbringing was, on thewhole, positive. This was so notwithstanding that it was evident that Mr. Elson has struggled at times with his mental health and was aregular user of cannabis. Yet, the report repeatedly referred to his relationship and life growing up with his mother in positive terms. Atpage 8, the report stated: Mr. Elson characterized life with his mother after she left the abusive relationship in positive terms.

There were no maladaptive factorssuch as substance abuse; financial hardship or criminal involvement having a negative impact on Mr. Elson. There was no alcohol ordrugs in the home, apart from her partners consuming alcohol socially on occasion. He described involvement with hockey, spendingtime with friends, and enjoying Christmas and birthdays with the family. [48] Mr. Elson’s mother’s comments describe a similar viewpoint. At page 9, the report stated: Ms. Pardy communicated that she always had a close relationship with her son; they get along and have minimal issues.

She stated thatthroughout her sons teenage years, much of their discussions revolved around his cannabis use effecting his growth as a young adult;none the less she has always supported him and been there for him. Ms. Pardy believes that much of her son's pain stems from hisunhealthy relationship with his father as well as her unhealthy relationships he witnessed as a child. She stated that although she does notagree with many of her son's choices, she strives for them to maintain a positive relationship and supports him leading a healthy andhappy life.

They currently remain close and they talk regularly. [49] While there is no need to establish a causal connection between an offender’s circumstances as Indigenous and the crimecommitted, there was little in the report, nor was any other evidence tendered that Mr. Elson’s circumstances as an Indigenous offender

impacted the sentence for this offence ( R. v. Ipeelee , 2012 SCC 13 , [2012] 1 S.C.R. 433, at paras. 60 , 81-83). [ 50 ] Further, as stated in Gladue , at paragraph 79 , where an offence is violent or serious, there will often be no discernable difference between a sentence imposed for an Indigenous offender and a non-Indigenous offender. Mr. Elson’s circumstances as Indigenous had to be considered in the context of a serious crime committed against a child who was also Indigenous (See also Ipeelee , at para. 86 ). As stated in R. v.

Friesen , 2020 SCC 9 , [2020] 1 S.C.R. 424 : [70] Children who belong to groups that are marginalized are at a heightened risk of sexual violence that can perpetuate the disadvantage they already face. This is particularly true of Indigenous people, who experience childhood sexual violence at a disproportionate level (Statistics Canada, Victimization of Aboriginal people in Canada, 2014 (2016), at p. 10).

Canadian government policies, particularly the physical, sexual, emotional, and spiritual violence against Indigenous children in Indian Residential Schools, have contributed to conditions in which Indigenous children and youth are at a heightened risk of becoming victims of sexual violence (see British Columbia, Representative for Children and Youth, Too Many Victims: Sexualized Violence in the Lives of Children and Youth in Care (2016), at p. 8 (“ Too Many Victims ”); The Sexual Exploitation of Children in Canada: the Need for National Action , at pp. 29-33).

In particular, the over-representation of Indigenous children and youth in the child welfare system makes them especially vulnerable to sexual violence ( Too Many Victims , at pp. 11-12). We would emphasize that, when a child victim is Indigenous, the court may consider the racialized nature of a particular crime and the sexual victimization of Indigenous children at large in imposing sentence (T. Lindberg, P. Campeau and M. Campbell, “Indigenous Women and Sexual Assault in Canada”, in E. A.

Sheehy, ed., Sexual Assault in Canada: Law, Legal Practice and Women’s Activism (2012), 87, at pp. 87 and 98-99). [ 51 ] In these circumstances, the victim was especially vulnerable not only as an Indigenous child but because she was a ward of the state. In the trial judge’s view, the vulnerability of the victim attracted significant weight in fashioning the fit sentence. The trial judge stated at paragraph 49: In the case at Bar, the Indigenous accused gave cannabis to a thirteen year old Indigenous girl and then had sexual intercourse with her.

The case parallels the Alcorn decision, raises the same concerns about the exploitation of vulnerable children, and merits a similar sentence. [ 52 ] For these reasons, I am of the view it has not been shown that the trial judge erred by failing to consider Mr. Elson’s circumstances as an Indigenous offender. Taken as a whole, his reasons for sentence support that the trial judge was aware of this obligation to consider and did consider the impact, if any, Mr. Elson’s Indigenous circumstances had on the sentence for a serious sexual assault of a vulnerable 13-year-old girl.

In these circumstances, there would be little impact. There is no basis to interfere with the sentence imposed in these circumstances. [ 53 ] I would dismiss the appeal against sentence. CONCLUSION [ 54 ] The trial judge did not commit the errors as alleged in his conduct of the trial and his reasons adequately explain his decision to convict Mr. Elson of the offence. The trial judge also committed no error in principle that impacted the sentence imposed and the sentence is not otherwise demonstrably unfit. [ 55 ] I would dismiss the appeal from both conviction and sentence. _____________________________ F.J.

Knickle J.A. I Concur: _____________________________ W.H. Goodridge J.A. I Concur : _____________________________ D.M. Boone J.A.