R. v. Finck, 2019 NSSC 233

SUPREME COURT OF Nova Scotia Citation: R. v. Finck , 2019 NSSC 233 Date: 20190711 Docket: CR 483226 Registry: Amherst Between: Matthew James Finck Appellant v. Her Majesty the Queen Respondent D E C I S I O N Restriction on Publication: pursuant to s. 486.4 of the Criminal Code Judge: The Honourable Justice James L. Chipman Heard: July 11, 2019, in Amherst, Nova Scotia Oral Decision: July 11, 2019 W ritten Reasons: July 24, 2019 Counsel: Roger A. Burrill, for the Appellant Mary Ellen Nurse, for the Respondent By the Court: Introduction [ 1 ] On July 11, 2019 I allowed Mr. Finck’s

summary conviction appeal, with reasons to follow. These are my reasons. [ 2 ] By Notice of

Summary Conviction Appeal filed April 15, 2019, Mr. Finck appealed the decision of Provincial Court Judge Alain Bégin delivered on September 19, 2017. He also appealed the sentence passed on November 29, 2017. The grounds of appeal are: 1. That the trial judge erred in the use of inadmissible evidence for purposes of assessment of credibility; 2. That the trial judge misapprehended evidence in determining issues of credibility; 3. That the trial judge erred in his determination of “aggravating” factors for purpose of sentence; and 4.

That the trial judge failed to properly apply the principle of totality to the sentence. [ 3 ] Given my decision to allow the appeal on grounds 1 and 2, I have not considered the remaining grounds. Having said this, the Crown acknowledged during her oral submissions that the 23-month sentence (plus 2 years probation), “should be reduced”.

Background [4] The appellant was convicted following an August 31, 2017 trial, that he did between February 1 and 28, 2016 at or nearAmherst, Nova Scotia: Commit a sexual assault on [A.C.] contrary to

Section 271 of the Criminal Code; And furthermore at the same time and at the same place did commit an assault on [A.C.] contrary to

Section 266 of the Criminal Code. [5] The Crown called four witnesses: A.C. (the complainant); Sharon Gay; Amherst police deputy chief, Dwayne Pike; and,Jillian Martin. The appellant was the only witness called by the defence. [6] In his decision at paras. 20–27, the trial judge described the allegations as follows: The Alleged Assault 20 With regards to the alleged assault, the evidence related to the

section 266 assault charge stems from an incident in mid-February2016 when Mr. Finck, according to A.C., choked her so severely that the blood vessels in her eyes had burst, and she had choked on hervomit. A.C. stated after the incident, Mr. Finck would not allow her to go to the hospital. The Alleged Sexual Assault 21 The evidence relating to the

section 271 sexual assault charge stems from an incident in mid-February 2016. A.C. testified shehad packed her belongings to leave the relationship as she felt that she had to get out of the relationship, as Mr. Finck was getting moreviolent and angry over time. A.C. indicated that she told Mr. Finck that she was "not happy" and that she "wanted to leave". 22 A.C. stated that Mr. Finck accused A.C. of going to see her old boyfriend and that he called her a "cheating whore". A.C. waswearing her bra, t-shirt, underwear and jeans. She testified that Mr.

Finck tore all of these clothing items off of her. 23 A.C. testified that she was screaming "someone help me" as she hoped that a neighbour would hear her through the openbedroom window. Mr. Finck covered her mouth to stop her screams. 24 A.C. testified that after half an hour of struggling, she gives up the fight and lays lifeless on the bed. Mr. Finck then, while callingher a worthless whore, proceeds to take off his clothes and has sexual, vaginal intercourse with A.C. 25 When asked if she consented to the sexual intercourse, A.C. stated "no".

A.C. testified that she was screaming "no" and "get off ofme" while Mr. Finck was having intercourse with her. These words did not stop Mr. Finck 26 Mr. Finck then left A.C. alone in the bed. 27 A.C. testified that as a result of the intercourse, she suffered pain in her abdomen and cervix. Standard of Review [7] This appeal concerns the admissibility of evidence. The admissibility of evidence is assessed on the standard of correctness. [8] Where hearsay considerations apply, the Nova Scotia Court of Appeal stated the standard of review in R. v. Smith; R. v.

James,2007 NSCA 19, at para. 166 as: Appellate review of the admission of these statements must accept the trial judge’s findings of fact absent manifest error. However, thecorrectness standard of review applies to the questions of whether the judge invoked an incorrect legal standard, failed to consider arequire element of a legal test or made some other error in principle. [9] Prior consistent statement determinations are also decided on a standard of correctness (R. v. T(P), 2014 NLCA 6, at para. 12): Relying on prior consistent statements for an impermissible purpose constitutes error of law (see R. v.

Stirling, 2008 SCC 10, [2008] 1S.C.R. 272; R. v. Curto, 2008 ONCA 161, 234 O.A.C. 238). Errors of law are reviewable on the standard of correctness. [10] In R. v. Espinosa-Ribadeneira, 2019 NSCA 7, Justice Oland stated at para. 34: The Standard of Review 34 Sentencing involves the exercise of discretion by the sentencing judge. An appellate court should only interfere if the sentencewas demonstrably unfit or if it reflected an error in principle, the failure to consider a relevant factor, or the over-emphasis of theappropriate factors.

An error of law or an error in principle will only justify appellate intervention if the error had an impact on thesentence. An appellate court is not to interfere with a sentence simply because it would have weighed the relevant factors differently. SeeR. v. M.(C.A.), (SCC), [1996] 1 S.C.R. 500 at para 90; R. v. Nasogaluak, 2010 SCC 6 at para 46; R. v. Lacasse, 2015SCC 64 at para 43-44 and para 49. Analysis and Disposition [11] At trial, the complainant was cross-examined about her lack of timely disclosure to the Department of Community Services(DCS) of physical violence she allegedly endured from Mr. Finck.

By way of response, the Crown called Jillian Martin of DCS. Ms.Martin had no recall of injuries experienced by the complainant. She had no notes to this effect. The relevant trial transcript excerptreads as follows:

JILLIAN MARTIN , Direct Examination Q. In your file … have you reviewed your file? A. Yes, I did. Q. Is there any mention at any point of broken blood vessels because of choking? A. No, there’s not. Q. Does any of the case notes say anyone had called about the choking? A. Yes. There was a conversation that I had with [ … ], Ruth Hatfield. MR. RIDEOUT: I have to object to this again. THE COURT: Here’s the issue we have now. You brought up these notes, and you previously asked [A.C.] any comments anywhere in the notes about choking or … MR.

RIDEOUT: Again, I only ask … all that I ask is that they’re not introduced for the truth of their contents but as part of … not … THE COURT: You asked [A.C.] on a number of occasions. MR. RIDEOUT: Yes. THE COURT: And you’re saying this goes to her credibility – was this ever mentioned, was this ever mentioned by anyone. MR. RIDEOUT: Yes. THE COURT: And now I’m going to have some testimony whether or not it was noted by anyone in the notes. Ms. [A.C.] wasn’t aware of it, but I assume one of the authors of the notes is about to tell me whether or not there’s mention in the notes anywhere about it. MR.

RIDEOUT: Okay, but it was just that it came from someone else, and it may not be for the truth of its contents. That’s my … THE COURT: I don’t’ even know who wrote it yet, so I’m going to find out who wrote it … MR. RIDEOUT: Okay. THE COURT: … and what it said. MS. NURSE: So when you were reviewing the file, can you discuss how that note came about? A. Yes. I recall it was approximately … it would have been in March, the 1 st , I believe, of 2016. Q. Uh-huh. A. I had a phone call with Ruth Hatfield who is [ … ].

And she had reported to me an incident that had occurred a few days prior to this phone call where [A.C.} had saw Mr. Finck out on the street in front of the residence. [A.C.] had saw him and went out onto the road. And it was reported that Matt Finck had choked [A.C.] by her throat. And … Q. That day or … A. I believe that it was maybe a few days prior to this phone call. It may have occurred over the weekend. Q. Uh-huh. A. And she also indicated to me that police were called I guess to the matter and that. Q. Okay. A. Yeah. Q.

Did you yourself observe any red marks on … or marks on [A.C.] during the month of February? A. No. Q. How many times would you have met [A.C.] yourself during the month of February? A. I would say at least once, but there could have been more … Q. Okay.

A. … times that it could have happened. Q. Oaky. And normally what time of the month would you have met her? A. It would have been random at this point. I don’t recall the exact date that I would have met with her [ 12 ] The Crown also called deputy chief Pike and the relevant trial transcript excerpt reads: DEPUTY CHIEF DWAYNE PIKE, Direct Examination MS. NURSE: Constable Pike, can state your full name and rank for the record, please. A. Yes, it’s Dwayne Darrel Pike. I’m Deputy Chief with the Amherst police department. Q. And you were involved in a call to a home approximately February 24 th , [ … ]? A. Yeah.

We were called to [ … ] first. Q. Okay. A. … on the 24 th of February 2016, yes. Q. Okay. And at that time, did you have an opportunity to speak with a person named [A.C.]? A. I spoke to her briefly, and we were involved with helping her get some of her belongings from her residence on [ … ]. Q. Okay. And as a result of the conversation with [A.C.], did you pursue any charge or anything in relation to Matthew Finck? A. No. Q. Okay, and why is that? A.

The other member I was with had talked directly to [A.C.], and she had indicated to him at one point … this is what he told me … was that she indicated that she had been choked by Mr. Finck and this had happened a week, two weeks, some time before that. Constable Jobe was the other officer I was with. He indicated that he was going to try to see if she would provide a statement about that incident.. Q . Uh-huh A . He indicated that she had said there was marks left on her neck and some … MR . RIDEOUT: I have to object to this. It’s hearsay evidence … THE COURT: Here’s the problem we have.

You asked why there was no police investigation, police charges. Now they’re calling evidence to explain why there’s no police … (inaudible) charge at the time. MR. RIDEOUT: Yes. I think that … THE COURT: So just … this just goes to background to explain why. Not a lot turns on whether or not there’s an assault or sexual assault, but explains why … you were asking a lot of questions of [A.C.] why was there not a police investigation, so we’re finding that out now. MR. RIDEOUT: Yes. I just thought that it might be said that it wasn’t for the truth of the contents … THE COURT: No. MR.

RIDEOUT: … of what somebody said to him. That’s all I ask in that … THE COURT: I’m taking this all as background to explain why you were asking before, and we’re going to get the answer. A. Uh-huh. Yeah, so I had spoken to Constable Jobe, and he had said that she indicated that there had been some marks on her neck and also bursted blood vessel in her eye. Those markings and that injury to her eye wasn’t visible at that time. So he was going to try to get a statement from her. MS. NURSE: And to your knowledge was this bursting of blood vessels happened that day or in the past? A.

No, this had happened sometime in the past … Q. Okay. A. … within the last couple or three weeks or even more.

[ 13 ] Having permitted the above evidence of Ms. Martin and deputy chief Pike, the critical question arises as to whether this evidence drove the decision? In answering this, I am drawn to the concluding paras. of the judgment: 66 Mr. Finck acknowledged the broken blood vessels, but he does not know how they occurred. He suggested that perhaps he struck A.C. while he was sleeping.

If she in fact woke up one morning with burst blood vessels in her eyes, and this was not a result of a choking assault, there is no doubt whatsoever that in a supposedly loving relationship that an immediate visit would have been made to the hospital to ensure that A.C. had not suffered a stroke or some other medical emergency. The choking incident is mentioned in Department of Community Services documents, and also during a police visit to [ … ]. I find as fact that Mr. Finck assaulted A.C. by choking her in mid-February as she described in her testimony.

It is clear from the evidence that A.C. did not consent to this assault. Mr. Finck is guilty of that offence. 67 With regard to the sexual assault in mid-February of 2016, I again accept the evidence of A.C. and reject the evidence of Mr. Finck. A.C. was very clear that there was no consent to that sexual activity. For Mr. Finck to claim that A.C. often wandered around the trailer naked does not give him permission to do what A.C. testified occurred. Mr. Finck's denials were not believable. I find as fact that Mr.

Finck sexually assaulted A.C. in mid-February of 2016 and find him guilty of that offence. [ 14 ] I am of the view that the trial judge was incorrect in relying on inadmissible hearsay and prior consistent statements which led him to the path of convictions on both counts. Hearsay statements are prima facie inadmissible. They are out-of-court statements offered for the truth of their contents (see R. v. Bradshaw , 2017 SCC 35 at para. 1 ). Prior consistent out-of-court statements of a witness are also inadmissible (see R. v.

Dinardo , 2008 SCC 24 , paras. 36-40 ). [ 15 ] Hearsay and prior consistent statements may be admissible in certain limited circumstances for a restricted purpose. At the very least, out-of-court prior consistent statements may not be used for the truth of their contents or to bolster/confirm the credibility of the witness on the stand. Hearsay statements are only admissible for the truth of their contents in limited, proscribed circumstances. [ 16 ] Unfortunately, Ms.

Martin was permitted to relate from the DCS file a notation of a complaint of a choking incident from the an individual who was not called as a witness. Rather than hearing from Ms. Hatfield directly, the judge allowed the significant hearsay in. [ 17 ] Two things are significant in this inquiry: first, this information in the DCS file was not directly related to the charge of assault or sexual assault before the Court. It may have, perhaps, been relevant by reason of background/context into the nature of the relationship.

But, secondly, and more importantly, the judge referred to this annotation in the DCS file in his decision (see the excerpt at para. 13) as follows: “The choking incident is mentioned in the Department of Community Services documents, and also during a police visit to [ ... ]”. It is therefor apparent that the file comments provided the judge with corroboration for the complainant’s claim that she was choked and experienced broken blood vessels and cast discredit on the appellant’s denials. [ 18 ] If the complainant had indeed made an earlier complaint to Ms.

Martin, then it may have been appropriately used, not for the truth of its contents, but to rebut any defence suggestion that she had recently fabricated the allegation for some unknown, or perhaps known reason. The “Ruth Hatfield” notation in the file could not have been of value as a response to the defence line of questioning about the lack of prior complaint in the DCS file by the complainant.

The notation was hearsay – an out-of-court statement from another source offered, and apparently used, for the truth of its contents and as contradiction of the appellant’s testimony. [ 19 ] The trial judge also permitted the deputy police chief to testify as to what another officer told him the complainant had said to him. This “triple hearsay” was allowed to go into evidence and factored in the judge’s decision. The alleged author of the statement, Cst.

Jobe, was not called as a witness; thus the statement could not be properly tested through cross-examination. [ 20 ] In answer to these problems regarding the sexual assault count, the Crown argued at para. 43 of their factum: 43. First off, none of the issues pertaining to the inadmissibility of the evidence relate to the Sexual Assault allegation. The Respondent’s main ground of appeal is that the Trial Judge made obiter comment concerning “permission”. The Trial Judge explicitly stated that he “ accept[s] the evidence of A.C.”, and therefore he accepts that the sexual assault occurred.

He then further goes on to state that it occurred without A.C.’s consent.

In other words, the Trial Judge made a two-stage finding: first, that the event occurred as described by A.C., and second, that if the Appellant was implying consent by his comments on A.C.’s behaviour ( i.e. that she “ wandered around the trailer naked ”), his ruling was that this behaviour did not grant him permission to treat A.C. as he pleased. [ 21 ] At first blush this argument has some traction; however, having reviewed the entirety of the trial transcript and decision, I am of the view that the errors spilled over such that they did affect the judge’s ultimate decision.

For example, in para. 67 he says “… I again accept the evidence of A.C. …”. On this point it will be recalled that his acceptance of A.C.’s evidence over the appellant’s on the first count was predicated by the inadmissible evidence. [ 22 ] In the alternative the Crown raised the curative proviso which reads: s. 686(1) On the hearing of an appeal against a conviction […], the court of appeal […] (

b) may dismiss the appeal where (iii) notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph (a)(ii) the appeal might be decided in favour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred. [ 23 ] In my view the errors outlined in this matter are of such magnitude that the curative proviso cannot “save” the convictions. Further, on fair reading of the transcript, it cannot be said that the trial judge’s decision is an inevitable result.

Without question, the errors go to credibility assessment and a new trial is the only appropriate remedy. [ 24 ] In the result, I allow the appeal on grounds 1 and 2, set aside the convictions and order a new trial.

Chipman, J.