STERLING W. PETERSON, Appellant v. HIS MAJESTY THE KING,, 2023 NBKB 27

Citation: 2023 NBKB 027 Date: February 28, 2023 COURT FILE NO: FCA-l-2022 IN THE COURT OF KING'S BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF FREDERICTON BETWEEN: STERLING W. PETERSON, Appellant -and- HIS MAJESTY THE KING, Respondent Date of Hearing: August 3. 2022

Date of Decision: February 27, 2023 Subject Matter: Appeal -

Summary Conviction Before: Justice Terrence J. Morrison At: Burton, New Brunswick Appearances: Ben Reentovich, for the Appellant Nina Johnsen, for the Respondent DECISION Morrison. J. 1. INTRODUCTION [11 The appellant stood trial in Provincial Court on a charge of sexual assault. Following the trial, but before the provincial court judge rendered a verdict, the presiding judge died. The trial proceeded before a new judge ("the trial judge") pursuant to s. 669.2(1) of the Criminal Code .

The appellant and the Crown agreed jointly that the previously taken evidence from the original trial be admitted as evidence to be considered on the newly commenced trial. After considering the evidence from the original trial, the trial judge found the appellant guilty. [21 The appellant appeals the conviction on the following grounds: a. The learned trial Judge erred in law by failing to establish a proper record as to what evidence she was relying on to render her decision, as required by s. 669.2(3) of the Criminal Code . b.

The learned trial Judge materially misapprehended the evidence as to the timing and number of alleged incidents from the different witnesses resulting in a miscarriage ofjustice. c. The learned trial Judge committed an error in law by engaging in impermissible stereotypical reasoning as to how an allegation of sexual assault is to be dealt with in the workplace, which materially impacted her decision. II. FACTS [3] The facts are set out in the appellant's submission and are generally agreed to by the Crown. I borrow liberally from that

summary. [ 4 1 Mr. Peterson was charged that between November 1, 2019 and April 30, 2020, he did commit a sexual assault on M.G. contrary to s.271 (

b) of the Criminal Code . [ 1 A trial was held before the late Honourable Pierre Dubé on May 10, 2021. The Crown called three witnesses: the complainant, William Werenka and Troy Stewart. The accused and Jonathon Brawn testified for the defence. [6] The complainant testified to two instances of sexual assault, but, in total, the Crown witnesses testified to three separate instances of sexual assault, all of which took place at I-Iyundai Fredericton.

First Incident [711 The complainant testified to an incident that occurred in the stairwell sometime in November 2019 where, as she was descending the stairs and the accused was coming up the stairs, he reached across the stairwell and cupped her breast and then slid his hand across her breasts (",flrsl incident"). No one else was present during this incident and the complainant did not report this incident at the time. [81 The accused denied ever having made any contact with the complainant in a stairwell.

Second Incident [ 9 1 The complainant testified to a second incident that occurred in early December at her desk; she testified that as she was bent over her desk, the accused walked by and "grabbed her ass." ("second incident ") 2 [101 The complainant testified that she believed that both Will Werenka and Troy Stewart witnessed the incident through a large window and immediately came in and spoke to her about it. Specifically, she testified that Mr. Werenka said "Did I just see that happen?" and Troy Stewart said "You need to say something." [11] Mr.

Werenka testified that he did see an incident where the accused grabbed the complainant's bum but he just turned away

and "let it go." Mr. Werenka took no steps with respect to what he observed and just kept talking with the service advisor about the vehicle he was working on. Mr. Werenka specifically noted that he did not bring it up to his boss as he did not think "twice about it." [12] Mr. Werenka could not be specific as to dates and was not even sure when he worked at Fredericton Hyundai at the time. [13] The complainant testified that Mr. Stewart then reported this incident to the general manager, Jon Brawn.

The complainant did not want this incident reported as she was in her three-month probationary period and was worried about herjob. [14] In contrast, Mr. Stewart testified that he never witnessed any significant interactions between the accused and the complainant. Mr. Stewart never reported an incident where the accused allegedly grabbed the complainant's buttocks. [15] The accused denied ever having touched the complainant's buttocks but did testify to being in the lounge area with her while making coffee. Third Incident [16] Mr.

Werenka testified to an incident that occurred around Christmas where he observed the accused grab the complainant's breasts; he testified to making eye contact with the complainant when this occurred ("third incident"). Mr. Werenka testified that he approached the 3 complainant alone after waiting for some time at which time he asked if the accused and the complainant were in a relationship to which the complainant responded: "No it was — he just does it whenever he feels like it. And I don't really want to say anything because I'm on my probation period and I don't want to look bad" [171 Mr.

Werenka testified that he brought this incident to the attention of his supervisor, Troy Stewart. Mr. Stewart spoke with the complainant; Mr. Werenka was not with him. Mr. Stewart then reported that the appellant allegedly grabbed the complainant "by the tits" to Mr. Brawn. [18] The complainant testified that she spoke to Jon Brawn after he emailed her about the incident; her testimony was that Mr. Brawn had emailed her first. [19] In contrast, Mr.

Brawn testified that the complainant emailed him first to advise that: I just wanted to reach out to you in regards to what Troy talked to you about, Yes Sterling put his hands around my waist, and from where Troy and Will were standing in the shop it may have looked like it was elsewhere, I had asked Troy not to say anything to you, cause i do not want any work drama, I do not have any issues with Sterling, I think his flirtatious personality is innocent, and if in the future I do have any issues, I will let you know myself.

A copy of the email exchange was Exhibit P1 at trial; the date of the email exchange is December 23, 2019. [20] Mr. Brawn testified that he received the email from the complainant just as Mr. Stewart left his office after advising him of the alleged sexual assault. Based on the allegation raised by Mr. Stewart and how different it was from the email he received from the complainant, 4 Mr. Brawn met with both the accused and the complainant.

Both advised that "nothing had happened" and so he took no further steps. [211 The complainant never testified to any incident where the accused grabbed her breasts in a common space around Christmas that could have been observed by anyone else. [22] In June 2020, the accused was investigated for other workplace incidents, at which time the complainant raised these incidents with Human Resources; the accused received a 5-day suspension from work.

The complainant felt this was insufficient and chose to report the incidents involving herself to the police, stating "I felt if they couldn't protect me, 1 was going to protect myself'. [23] At the conclusion of the trial, Judge Dubé reserved his decision. Tragically, Judge Dubé died and his decision was never rendered. Counsel engaged with each other and the court in the ensuing months and ultimately agreed that the trial would be continued before another judge relying upon the previously taken evidence from the original trial. Ultimately, the trial judge found Mr. Peterson guilty. III. ANALYSIS AND DECISION A.

Did the Trial Judge err in law by failing to establish a proper record as to whal evidence she was relying on to render her decision as required by s. 669.2(3) of/he Criminal Code ?

[24] The appellant raises two interrelated issues with respect to this ground of appeal. First, the appellant submits that the trialjudge failed to establish a proper record by failing to have the transcript of the trial (the "Trial Transcript") and video of the proceedings(the "Video") duly 5 filed and in failing to obtain the consent of the parties on the record.

Second, the appellant submits that the trial judge misapprehendedthe procedure by characterizing the proceeding as a 'continuation" of the original trial rather than a "new trial" and this misapprehensionis an error in law which seems to explain why the trial judge did not seek the positions of the parties or consider what steps werenecessary to ensure there was a proper record before her. [251 The relevant portions of s. 669.2 are as follows: 669.2

(1) Subject to this section, here an accused or a defendant is being tried by (

a) a judge or provincial court judge. as the case may be. and the judge, provmclai court judge justice or other person dies or is for any reason unable to continue, theproceedings may he. continued betore another udge, provincial court judge, justice or other person. as the case may be, who hasjurisdiction to try the accused or defindant.

(3) Subject to subsections (4) and (5). if the trial was commenced but no adjudication was made or verdict rendered. the judge.provincial court judge. justice or other ierson before whom the proceedings are continued shall. without further election by an accused,commence the trial again as if no evidence on the merits had been taken. [26] S. 669.2(3) and the prevailing jurisprudence at the time, makes it clear that when a provincial court judge is unable tocontinue, the trial shall commence again as though it were a brand-new trial regardless of the positions of the parties. (R v AA, 2012ONSC 3270: Gauthier V.

R., 2020 QCCA 751) 6 [271 Subsequent to the decision in this case, the Supreme Court of Canada issued a decision dealing specifically with s.669.2(3). In R. v. ID., 2022 SCC 15 ("ID. ") the Court summarized the prerequisites for the use of a transcript at paragraph 29: [29] In sum, this statutory

interpretation exercise shows how straightforward the provision is. The only function of s. 669.2(3) is torequire a judge sitting alone to commence the trial again. Once the judge has done so, the parties have control over the presentation of their own evidence. Therefore, for the transcript of testimony given at the first trial to be admitted in the second trialas evidence on the merits, all that is needed is that the transcript be duly filed and that the parties consent to its being filed(Matheson v. The Queen, (SCC), 1981 CanLil 202 (SCC), [1981] 2 S.C.R. 214, at pp. 217-18). [Emphasis added] [28] There are two perquisites for the use of a transcript as evidence:

(1) That the transcript be duly filed; and

(2) The partiesconsent to it being filed. [29] The appellant submits that because the Trial Transcript was not marked as an exhibit and the trial judge did not obtain theconsent of the parties on the record that the prerequisites have not been satisfied.

The appellant therefore submits that the lack of aproper record deprives him of the opportunity for meaningful appellate review. [30] I will deal first with the question of whether the trial judge misconstrued the nature of the proceeding and, if so, whether ithas any material impact. [31] The transcript of the decision dated November 24, 2021, (Appeal Book, p. 11) (the "Decision Transcript") contains statementsby the trial judge that suggests that she considered that 7 she was "continuing" the trial commenced by the deceased judge.

The Crown, in its written submission, concedes that there are severalstatements by the trial judge indicating that she may have lost sight of the fact that it was an entirely new trial. However, in my viewnothing turns on these statements. It is clear that the trial judge reviewed that actual transcript of the original trial and the other evidenceagreed to by the parties.

As a result, even if there was a procedural error on the part of the trial judge it is immaterial as the result wouldhave been the same whether the trial judge approached it as a new trial or a continuation of the original trial. [32] Turning now to the question of the Trial Transcript, the Supreme Court of Canada in .1 D. directs that the transcript can be used if it is filed with the consent of the parties. The case does not specifically direct that the

transcript be marked as an exhibit or that the consent be placed on the record. The first question is whether the Trial Transcript was "filed".

Section 821 of the Criminal Code requires the Clerk of the appeal court (in this case the Court of King's Bench of New Brunswick) to notify the

summary conviction court of the Notice of Appeal and the

summary conviction court is required to transmit the conviction and all other material in its possession in connection to the proceedings to the appeal court. This includes a certified transcript. In this case the Clerk sent a Request for Record (Form 64-

C) to the Provincial Court pursuant to rule 64.03(7) of the Rules of Court. In response the Provincial Court forwarded the materials in its file consisting of 17 items, including exhibits and, notably, the original Trial Transcript certified by the Court reporter on October 8, 2021. In my view there can be no question but that the Trial Transcript was "filed". Although I believe a better practice would have been for the trial judge to mark the Trial Transcript as an exhibit, the failure to do so does not offend the Supreme Court's direction in .1.

D. 8 [33] Turning to the question of consent, the Crown points to a letter dated September 27, 2021, which was marked as Exhibit P-2 in an appearance before Judge Richards on September 29, 2021. The letter reads in part as follows: For the above reasons we would submit that if this Honourable Court would consider proceeding with the following evidence: the video and/or audio of the trial conducted, the transcript of the trial, and the exhibits tendered, then Ms.

Hearn and I would both consent to those items as being the body of the evidence agreed upon for the new trial of the matter before another provincial court judge. [34] On November 24, 2021, the parties appeared before the trial judge to receive her decision. This was the first and only time the parties were before the trial judge (other than for sentencing post-verdict).

At the opening of the session the trial judge stated (Decision Transcript p. 3 Lines 1-10): I have been asked by the Chief Justice of the Provincial Court of New Brunswick, the Honourable Marco Cloutier, to watch, listen and review this matter with a view to rendering a decision on his behalf. I have done this. I therefore wish to reassure all the parties that I have watched the entire trial. I have read a prepared transcript of the matter.

And I have taken the time to consider and weigh all necessary evidence and arguments including credibility, prior to rendering this decision [35] At that time counsel for the appellant raised no issues with respect to the trial judge's explanation of how she proceeded. In my view, the appellant's acquiescence with respect to the process was tantamount to consent. This, coupled with the explicit agreement contained in Exhibit P-2, satisfies the second prerequisite outlined in ID. [36] At this juncture I wish to address an argument raised by appellant's counsel.

He argued that the trial judge had a responsibility to formally put the parties' positions on the record 9 just as with a guilty plea. He submits that the trial judge's failure to formally put the appellant's position on the record undermined his procedural rights. I disagree. In iD. the Court determined that there is no reason for a trial judge to inquire into whether an accused's consent to the use of a transcript is voluntary, informed and unequivocal.

The Court specifically rejected any suggestion that consent to use of a transcript is analogous to acceptance of a guilty plea (para. 27). [ 37 1 I must also consider the trial judges' use of the Video. She made it clear in her comments that she watched the Video and considered it in making findings including those of credibility.

Although JD. dealt with a transcript, I see no principled reason that the Court's direction would not apply equally to any evidence from the original trial upon which the "new" judge relies. [38] Unlike the Trial Transcript, the Video was not included in the package of materials transmitted from the Provincial Court pursuant to the Request for Record. It is therefore impossible to determine whether the Video was "filed" as dictated by .1 D. It is my understanding that videos of courtroom proceedings, when activated, are created automatically.

Such videos are the same recordings which are used by the court stenographers in preparing transcripts. As such, the video recording and the transcript are inextricably linked. If, as I have concluded, the transcript meets the "filing" requirement than, in my view it follows that the recording upon which it was based was also "filed" and could be relied upon by the trial judge in this case. 10 [ 39 1 With respect to the consent requirement, again I refer to Exhibit P-2 where counsel for both parties consented to the court using the Video if the Court determined it was a useful tool.

That, coupled with the acquiescence of counsel referred to earlier constitutes consent. [40] In light of the foregoing, the appellant must fail with respect to his first ground of appeal. B. Did the Trial Judge materially misapprehend the evidence as to the timing and number of alleged incidents from the

different witnesses resulting in a miscarriage ofjustice? [41] The proper approach on appeals from convictions where misapprehension of the evidence is alleged is to first determinewhether the verdict is unreasonable and if found not to be unreasonable then to determine if the misapprehension resulted in amiscarriage ofjustice (Gavin v. R. 2019 NBCA 19 at paragraph 7). In this case, the appellant concedes that there was evidence capable ofsupporting a conviction and he does not advance an argument under s. 686(1 )(a)(

i) that the verdict was unreasonable. [42] The law with respect to misapprehension of evidence is well settled. The leading authorities are R. v. Lohrer 2004 SCC 80 andR. v Morrissey (ON CA).

It is clear from these authorities that if the appellant can show that the conviction flowsfrom a misapprehension of evidence then there should be a new trial even if there was evidence capable of supporting a conviction(Lohrer, paras. 1-3). 11 [431 In the present case, the appellant alleges that the trial judge misapprehended material aspects of the evidence and reliedon these misapprehensions in making her credibility assessments.

Appellate courts have long recognized that trial judges have theadvantage and privilege of seeing and hearing the witnesses at trial (an advantage that a written transcript cannot replicate). It is thereforenot the role of an appellate court to second guess a trial judge's credibility findings or re-weigh the evidence. The Supreme Court ofCanada has repeatedly and strongly discouraged appellate courts from parsing a trial judge's reasons in a "search for error". In R. v.

G.F.2021 SCC 20 the Court stated at paragraph 76: [761 Despite this Court's clear guidance in the 19 years since Sheppard to review reasons functionally and contextually,we continue to encounter appellate court decisions that scrutinize the text of trial reasons in a search for error, particularly insexual assault cases, where safe convictions after fair trials are being overturned not on the basis of legal error but on the basis ofparsing imperfect or

summary expression on the part of the trial judge. Frequently, it is the findings of credibility that are challenged.[Emphasis added] [44] The test the appellant must pass to succeed on the basis of misapprehension of evidence is a stringent one. It is succinctlysummarized in Lohrer at paragraph 4: A'ioriissev. it should be emphasized, describes a stringent standard. The misapprehension of the evidence must go to the substance ratherthan to the detail. It must he 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". [45] The proper approach to reviewing trial reasons was summarized in the recent sexual interference case of R. v. MPH. 2022BCCA 216 at paragraphs 37-38: 12 [37] Credibility findings are central in most sexual assault cases.

The task of articulating reasons supporting credibility findings isparticularly challenging because the crime is typically committed in private and there is often no objective, independent corroborative evidence to aid in assessing credibility: G.F. at para. 81. See also R. v. Gagnon, 2006 SCC 17 at para. 20. [38] In recognition of the privileged position of the trial judge to see and hear the witnesses in the courtroom, credibilityfindings deserve particular deference: G.E. at para. 81. They are also to be assessed in light of the presumption of the correctapplication of the law: G.E. at para. 82.

Appeal courts must nevertheless consider whether the trial judge turned their mind to therelevant factors affecting the believability of the evidence in the factual context of the case, including truthfulness (credibility) andaccuracy (reliability) concerns. It is noteworthy that "[a] trial judge's determination to accept or believe inculpatory witness evidenceincludes an implicit assessment of truthfulness or sincerity and accuracy or reliability": G.E. at para. 82. [46] The importance of showing deference to findings of credibility was emphasized by Karakatsanis, J. in G.

F. at paragraph 81: [81] As Slatter demonstrates, a trial judge's findings of credibility deserve particular deference. While the law requires somearticulation of the reasons for those findings, it also recognizes that in our system ofjustice the trial judge is the fact finder and has the benefit of the intangible impact of conducting the trial.Sometimes, credibility findings are made simpler by, for example, objective, independent evidence. Corroborative evidence can supportthe finding of a lack of voluntary consent, but it is of course not required, nor always available.

Frequently, particularly in a sexualassault case where the crime is often committed in private, there is little additional evidence, and articulating reasons for findings ofcredibility can be more challenging. Mindful of the presumption of innocence and the Crown's burden to prove guilt beyond a reasonabledoubt, a trial judge strives to explain why a complainant is found to be credible, or why the accused is found not to be credible, or whythe evidence does not raise a reasonable doubt. But, as this Court stated in Gagnon, at para. 20: Assessing credibility is not a science.

It is very difficult for a trial judge to articulate with precision the complex

intermingling of impressions that emerge after watching and 13 listening to witnesses and attempting to reconcile the various versions of events. [Emphasis added] [47] In Bright v. R. 2020 NBCA 79 Leblond, J.A. reiterated the approach to be taken when reviewing findings of credibility at paragraph 44 [44] I begin this part of the analysis with a restatement of the test applicable on appellate review of a finding of credibility: "[...] the appeal court must defer to the conclusions of the trial judge unless a palpable or overriding error can be shown.

It is not enough that there is a difference of opinion with the trial judge [...]" (Gillis v. R., 2014 NBCA 58 , 426 N.B.R. (2d) 1 , at para. 74 , citing R. v. Gagnon , at para. 10 ). To reverse a finding of credibility, the error must both be clear and central to the credibility finding such that it cannot stand ( Gillis , at para. 75 , citing J.N.C. v.

R., 2013 NBCA 59 , 409 N.B.R. (2d) 310 ). [Emphasis added] [48] Nevertheless, in Bright the Court overturned a conviction for sexual assault on the basis (among others) that the trial judge failed to reconcile inconsistencies in the complainant's testimony and in largely leaving unsaid her reasons for finding the complainant credible. [49] In the present case, the appellant alleges several errors on the part of trial judge. He submits that these errors are material and played an essential

part in his conviction as they go to why the trial judge did not believe the appellant and why she did believe the complainant. [50] The appellant submits that the trial judge misunderstood the nature of the incident which was reported by Mr. Werenka to Mr. Stewart who in turn reported it to Mr. Brawn. What was reported to Mr. Brawn was that the appellant grabbed the complainant's breasts. This occurred on or about December 13, 2019 and prompted the exchange of emails between Mr. Brawn and the complainant the same date.

It is clear from the Decision Transcript that the trial judge was confused 14 about what was reported to Mr. Brawn. The trial judge says that Mr. Peterson would have known that Mr. Werenka said he saw him touch Ms. Green at her desk (on the waist). The trial judge then goes on to describe the touching of the waist as "somewhat of a serious accusation". But what was reported to Mr. Brawn and what the plaintiff was confronted with was an accusation of touching the complainant's breasts on or about December 23, 2019. 1511 The confusion on the part of the trial judge is material.

The trial judge questions the appellant's credibility in part because of his reaction or lack of reaction to the allegation he was confronted with by Mr. Brawn. The trial judge concludes that it is "not logical" that the plaintiff would be surprised by the allegation and that he would not take action to clear the matter up. (Decision Transcript p. 21, Line 20 - p. 22, Line 13). This is problematic. The trial judge had already concluded that the breast touching incident reported by Mr. Werenka to Mr. Stewart was not credible (Decision Transcript p. 11, Line18 — p.22, Line 1).

In essence the trial judge finds fault with Mr. Peterson's denial and reaction to an incident that never occurred. An equally plausible inference is that the appellant's reaction of surprise and denial is reasonable given he was confronted with an incident that the trial judge concluded did not occur. Recall that the complainant did not testify about this alleged incident. [52] I agree with the appellant's submission that having found Mr. Werenka's evidence not credible with respect to the reported breast touching incident she could not then use it as a basis for undermining the appellant's credibility.

In Gil/is v. R. 2014 NBCA 58 the Court states at paragraph 91: [91] With respect, once the trial judge found Mr. Rogers' testimony was not credible on any material issue, the fact of differences between 15 his testimony and that of the appellant on any such issue could not, logically, tilt the balance against the defence. In other words, the trial judge could not, in one breath, find Mr. Rogers' testimony was not credible on material topics and, in the next breath, find the appellant's testimony on the very same points should be disbelieved because it differed from Mr.

Rogers' rejected testimony. [Emphasis addedj [ 53 1 The evidence at trial was that the allegation reported to Mr. Brawn by Mr. Stewart was that Mr. Werenka had witnessed the appellant grab the complainant's breasts. At about the same time he received the report from Mr. Stewart, Mr. Brawn received an email from the complainant to the effect that the appellant touched her waist but that she considered it innocent flirtation. Mr. Brawn then spoke to the appellant who was surprised by the allegation and denied it. Mr. Brawn testified that he was satisfied and

took no further steps. [541 It is apparent from the Decision Transcript that the trial judge confused the alleged buttock grabbing incident (thesecond incident testified to by the complainant) with the incident reported to Mr. Brawn. In finding that Mr.

Brawn lacked credibility thetrial judge stated at Decision Transcript p.15, Lines 3 — 11: It also seems odd, and somewhat not believable, that a general manager of a car dealership would not want to further investigate orreconcile three different versions of a story, that is, a report from a third party who is uninvolved that a senior employee had grabbed thebuttocks of an employee on probation, unprompted; or a report from the employee on probation saying that a senior employee hadgrabber her waist, at the workplace, chocking it up to potentially flirtatious behaviour; or the senior employee's assertion that nothing hadhappened at all. [55] The trial judge's finding that there was a report form a third party regarding a buttocks grabbing incident is factuallyincorrect.

There was no such report. The only report was 16 that made to Mr. Brawn that the appellant grabbed the complainant's breasts. Also, the email from the complainant to Mr. Brawn cannotbe characterized as her reporting an incident. A fair reading of the email is that it was a denial that an incident occurred. Further, theappellant's denial was not related to the alleged buttocks incident but to the alleged breast grabbing incident. [561 The trial judge relied upon this misapprehension to undermine the credibility of defence witness Mr. Brawn.

In doing soshe foreclosed the possibility that the appellant's reaction was consistent with being confronted with the alleged incident (the grabbing ofthe breasts), an incident that, it is safe to say, never occurred. [57] The plaintiff also submits that the trial judge failed to reconcile the contradictions in the testimony of the complainant andthat of Mr. Werenka and Mr. Stewart. [58] The complainant testified that the second incident involving the grabbed buttocks was witnessed by both Mr. Werenka andMr. Stewart and both approached her immediately afterward. She also testified that Mr.

Stewart reported the incident to Mr. Brawn. Mr.Werenka recalled seeing an incident where the complainant's buttocks were grabbed by the appellant at her desk but testified that he"didn't think twice about it" and did not talk to the complainant about it and did not report it. Mr. Stewart testified that he did not witnessany incidents himself. Further, he testified that Mr. Werenka came to him and reported that he saw the appellant touch the complainant'sbreasts and that he went to see the complainant alone. Mr. Brawn testified that the only report of an incident he received was that givento him by Mr.

Stewart as related to him by Mr. Werenka (the touching of the breasts on or about December 13, 2019). 17 [59] A review of the Decision Transcript reveals that the trial judge adequately dealt with internal consistencies in thecomplainant's testimony (Decision Transcript page 10, lines 14​21). However, in her assessment of the complainant's credibility there isnot one mention of the contradictions between the complainant's testimony and that of Mr. Werenka and Mr. Stewart noted above.Notably, the trial judge found that Mr.

Stewart testified in a "straight forward, credible, reliable and logical way" but she did notreconcile his recollection of events that was starkly different from that of the complainant. In my view, the discrepancies between theevidence of the complainant and that of Mr. Werenka and Mr. Stewart were significant. [60] The appellant also submits that the trial judge "cherry-picked" evidence of witnesses that corroborated the testimony of thecomplainant even though she found aspects of their testimony not credible. As an example, the appellant points to the trial judge's findingthat Mr.

Werenka essentially made up the unsubstantiated breast touching incident and yet she accepted parts of his testimony ascorroborative. I reject this argument. It is settled law that a trial judge is entitled to accept some, none or all of a witness's testimony.Accordingly, a trial judge can find a witness credible on one point and not credible on another.

That aspect of a witness's testimony thatis found credible and corroborative can be relied upon by a trial judge even if other aspects of the testimony (that found not credible)carmot. [61] The appellant also submits that the trial judge made an impermissible use of "prior bad acts" contrary to the Supreme Court ofCanada guidance in R. v. Arp (SCC), [1998], 3 SCR 339. Essentially, such evidence is inadmissible as prejudicialbecause it may engender propensity 18 reasoning in the trier of fact.

The plaintiff points to the trial judge's finding that the appellant's credibility was undermined by the way inwhich he reacted to a call with the HR department concerning allegations unrelated to the present charges. At page 21, line 2 — 13 of theDecision Transcript the trial judge states: Mr. Peterson's very scant and somewhat self serving description of the subject of his call with HR is perhaps an indication of how

seriously he takes any issues with fellow employees, claiming he thought that it was about a "joke that someone took out of context" or the fact that he was "helping out a friend", neither of which were elaborated upon and seemed qualified purposefully in non culpable ways. It also seems odd, and not believable to me in 2020 that someone would expect a greater workplace consequence for "telling a joke that others found inappropriate" or "helping a friend" than unwanted physical contact. [621 A fair reading of the trial judge's reasons on this aspect does not support the appellant's claim.

In my view the trial judge did not rely on the prior collateral incidents in the manner suggested by the appellant. The trial judge was assessing the appellant's response to the present allegations in light of his response to the prior allegations and assessing whether that response made sense. I agree with the Crown's submission that the use made of these past incidents had nothing to do with the quality of those acts and everything to do with the manner of the appellant's testimony about them.

I reject the appellant's submission in this regard. [63] In my view, the trial judge's confusion over the incident reported to Mr. Brawn permeates her decision and findings of credibility. Further, the trial judge's failure to reconcile the stark contradictions in the complainant's version of events and those of Mr. Wererika and Mr. Stewart, taken together with the other errors I have identified, convinces me that there has been a miscarriage ofjustice in this case which warrants a new trial. 19 [64] I come to this conclusion reluctantly.

I return to the authorities that clearly direct that credibility findings are to be given the utmost deference. The test an appellant must meet to succeed on the basis of misapprehension of evidence is a stringent one. This attitude of deference is in recognition of the privileged position the trial judge has to see and hear the witnesses. However, in this case the trial judge did not personally see and hear the witnesses. She relied on the Trial Transcript and the Video. They are poor substitutes for the actual courtroom experience.

Arguably, the circumstances that would have justified deference to the trial judge's findings of credibility are not present in this case. C. Did the Trial Judge commit and error in law by engaging in impermissible stereotypical reasoning as to how an allegation of sexual assault is to he dealt with in the workplace, which materially impacted her decision? [65] The appellant submits that in assessing Mr. Brawn's evidence the Trial Judge used a stereotypical reasoning. In particular, the trial judge concluded that Mr.

Brawn's lack of follow-up is nonsensical as a general manager having been made aware of such an allegation. In short, the Plaintiff submits that the trial judge measured Mr. Brawn's actions against how she believed a general manager should act in such circumstances. [66] In support of his position the appellant relies on Bright . In Bright it was suggested that the complainant made a false allegation of sexual assault to avoid an allegation of theft. In assessing the complainant's evidence, the trial judge found that she had not concocted the sexual 20 assault to avoid the theft charge.

In doing so he considered that a theft charge would not have been much of a concern to someone abusing drugs. At paragraphs 47-48 LeBlanc J.A. concluded the judge used impermissible stereotypical reasoning: [47] Second, both the Crown and defence agree a judge, in assessing credibility, cannot rely upon stereotypical assumptions relating to, in this case, the expected behaviour or response of drug abusers. Generally, judges must avoid speculative reasoning based on common sense assumptions that are not grounded in the evidence: R. v. Roth, 2020 BCCA 240 , [2022] B.C.J. No. 1333 (QL) , at para. 65 .

It is an error of law to use conjecture and speculation as the basis for findings and inferences: R. v. Martin, 2010 NBCA 41 , 361 N.B.R. (2d) 251 . [48] Unfortunately, and with the greatest respect to the judge, she did precisely that, as reflected in the above passage relating to how intravenous drug users, like A.C., with all her life's challenges, would not consider an allegation of theft against her as a serious issue.

There was no evidence to support this finding and, in fact, there was evidence A.C. took other legal disputes involving herself very seriously. [67] A judge is allowed to rely on logic, reason, and common sense in assessing credibility as stated by Marchand, J. in MPH at para 58: [58] Trial judges are entitled and expected to rely on their life experience and common sense in assessing the credibility of witnesses and the plausibility of their testimony.

Trial judges must be careful, however, to "avoid speculative reasoning that invokes 'common sense' assumptions not grounded in the evidence": Roth at para. 65 , citing R. v. Cepic, 2019 ONCA 541 at paras. 19 --27 and R. v. Perkins, 2007 ONCA 585 at paras. 30-42 . [68] It is often a fine line between the permissible use of logic, experience and common sense and the impermissible reliance on speculative or stereotypical reasoning. In my view, the 21

trial judge's assessment of the adequacy of Mr. Brawn's investigation, viewed as a whole, does not cross that line. I therefor dismiss this ground of appeal. IV. CONCLUSION [69] The appeal is allowed and a new trial in the Provincial Court is ordered. 22