R. v. Twinley, 2020 NSSC 266

SUPREME COURT OF Nova Scotia Citation: R. v. Twinley , 2020 NSSC 266 Date: 20201005 Docket: Hfx 494512 Registry: Halifax Between: Johnathan Twinley Appellant v. Her Majesty the Queen Respondent DECISION PUBLICATION BAN: s. 486.4 and s. 486.5 of the Criminal Code Judge: The Honourable Justice Jamie Campbell Heard: September 28, 2020, in Halifax, Nova Scotia Counsel: Pavel Boubnov, for the Appellant Mark Scott, Q.C., for the Respondent [ 1 ] Jonathan Twinley has appealed his conviction for sexual assault. He was found guilty by The Honourable Judge Jean Whalen after a trial in Provincial Court. Mr.

Twinley’s counsel has argued on his behalf that the trial judge’s decision was unreasonable and not supported by the evidence and that she did not “apply the test for reasonable doubt”. Evidence at Trial [ 2 ] The complainant and Mr. Twinley both worked at Halifax Regional Transit as bus drivers. The complainant said that he was standing in the drivers’ room at the Sackville Terminal, looking at the work assignment board. Mr. Twinley came up behind him, split his “butt cheeks”, said something to him and then reached over him to squeeze his chest.

The complainant could not remember the date of the incident and had some difficulty with pinpointing a time as well. [ 3 ] When the complainant left the room, he spoke with another bus driver about the incident. That driver remembered speaking with the complainant and confirmed that the complainant pointed out Mr. Twinley to him. The driver said that there was nothing out of the ordinary about the complainant’s tone of voice but that the complainant said to him, “I just had the weirdest thing happened to me.” [ 4 ] The complainant was upset for the rest of the day. When his shift was over, he saw Mr.

Twinley playing pool at the Burnside terminal with what the complainant described as “a shit eating grin on his face”. The complainant had never met Mr. Twinley and did not know his name. He recognized Mr. Twinley from seeing him during shifts and he was able to identify Mr. Twinley in court. [ 5 ] The work records from Metro Transit and the employee pass cards showed that on November 21, 2018 Mr. Twinley was in the staffroom with the complainant. The complainant was not able to remember the date of the incident and was incorrect about the time.

He said that he believed it to have taken place between 4:00 and 6:00 pm. At that time the two men were not together in the staffroom and could not have been in the staffroom together.

[ 6 ] Mr. Twinley testified and confirmed that he was present in the staffroom at the same time as the complainant. He said that he knew the complainant to see him. He said that he had no independent recollection of the details of his workday on November 21, 2018. He said that while it was possible that he saw the complainant in the staffroom that day, he denied ever touching him in any way. Trial Judge’s Decision [ 7 ] Judge Whalen reviewed the Crown’s theory of the case and the defence put forward by Mr. Twinley by which he denied having touched the complainant.

The Judge made reference to the presumption of innocence, the burden of proof on the Crown, the assessment of credibility having regard specifically to problems with recall and inconsistencies in evidence, the essential elements of the offence of sexual assault, and the instruction that pertains to the assessment of competing or contradictory versions of events, commonly known as the “ W.D . instruction”. [ 8 ] The Judge addressed those preliminary issues and then promptly went to the heart of the case. There was a denial. It is of course difficult to elaborate on a denial.

But, standing on its own, the denial was not contradictory or inherently untruthful. Standing on its own, without having regard to the other evidence in the trial, there would be no reason to not believe it. There was also the issue presented by the complainant’s mistaken recollection about when he and Mr. Twinley were in the staffroom together. The Judge concluded that the inconsistencies on date and time were understandable in the circumstances. Those mistakes did not undermine the basic allegation, which was corroborated by the exhibits that were filed.

The Judge noted that the complainant had no motive to lie. She said that his “clear, forthright and uncomplicated” evidence was “unshaken”. [ 9 ] The Judge said that Mr. Twinley’s denial had to be assessed having regard to all the evidence. While his evidence was internally consistent where it differed from that of the complainant, she rejected it. The complainant’s evidence was corroborated and consistent on material facts and was “compelling when viewed with the whole of the evidence”. [ 10 ] Mr. Twinley was found guilty of sexual assault.

His sentence was suspended, and he was ordered to be subject to probation for 18 months. Standard of Review [ 11 ] The standard on appeal is whether the verdict is supportable on any reasonable view of the evidence and whether proper judicial fact-finding applied to the evidence would preclude the conclusion that was reached. It is not whether the judge hearing the appeal agrees with the findings of fact or would have made the same findings of fact.

It is whether those findings could reasonably have been made. [ 12 ] The issue of whether a trial judge properly applied the standard of reasonable doubt involves a question of law so that the standard of review is whether the decision with regard to the application of that standard was correct. [ 13 ] An appeal is not a “do over” of the trial. It is not an opportunity to see if another judge, who reads the evidence rather than hearing and seeing it, might have a different impression. When a judge makes findings of fact at a trial, the judge on appeal does not decide whether the trial judge was right.

The judge on appeal must assess whether the findings that the trial judge made could reasonably be supported by the evidence at the trial. The person who reads the transcript may come away with quite a different impression and have a different opinion. That is not the question. What matters is whether the evidence that was before the trial judge could have reasonably supported the findings that were made. Credibility [ 14 ] Mr. Twinley, through his counsel, argues that the verdict is unreasonable. The trial judge believed the complainant’s evidence. Mr. Twinley says that she should not have.

That assertion is based on the problems with date and time and the demeanor of the complainant after the alleged sexual assault, as reported by another bus driver. Once again though the question is not whether, based on the transcript, the trial judge was or was not right. It is about whether the trial judge heard and saw evidence that would allow a reasonable person to conclude as she did. [ 15 ] The Judge addressed the contested potential concerns with the complainant’s evidence directly. Mr. Twinley could show that he was not in the staffroom between 4:00 pm and 6:00 pm that day.

The complainant offered his “best guess” as to the time. He did not specify with certainty a time when the incident was alleged to have taken place. This was not a situation in which the evidence supported a conclusion that the incident could not have taken place because the two men were not in the room together. The issue with the date and time was dealt with through the work records. Mr. Twinley himself confirmed that he and the complainant were present in the staffroom at the same time. The records confirm the date as November 21, 2018.

The fact that the complainant could not remember the date and time was not found by the trial judge to have been determinative of his credibility or the reliability of his evidence. That is not an unreasonable inference from the evidence. There are many situations in which people are involved in incidents about which they are able to give accurate details but simply cannot put a mental time stamp on it. [ 16 ] The defence argues that the complainant’s demeanor when speaking to another bus driver suggests that nothing had happened in the moments before.

How people react to a sexual assault or to any traumatic incident is highly individualized. No one could conclude from that brief interaction anything about whether a sexual assault had taken place. [ 17 ] The Judge addressed the complainant’s lack of a motive to lie. The defendant in a criminal matter is under no obligation or onus to show that the complainant had any motive at all. The fact that there was no motive for the complainant to lie was a factor that the Judge could and did take into account in assessing credibility. [ 18 ] The assessment of credibility is notoriously difficult to articulate.

The trial Judge has the benefit of seeing and hearing witnesses in order to make that assessment. Trials happen with witnesses and cross-examination so that judges can see and hear the witnesses and make that determination. Judge Whalen saw and heard the evidence. The credibility findings made by the Judge in this case are not unreasonable. They are not unsupported by evidence that is reasonably capable of being believed. Test for Reasonable Doubt

[ 19 ] Mr. Twinley argues that the Judge failed to apply the proper test for reasonable doubt. His counsel says that Mr. Twinley’s denial was plausible and believable. There was nothing within that denial that would cause one to doubt it. He was not moved from that denial on cross-examination. By then accepting the evidence of the complainant the Judge, on this argument, turned the case into a contest of credibility, preferring the complainant’s version of events over Mr. Twinley’s denial. [ 20 ] This is a problem faced in many sexual assault cases. There are only two witnesses.

The complainant gives evidence about a sexual assault having taken place. The defendant provides a denial that is forceful, internally consistent and consistent with all the other evidence, except that of the complainant. If a “contest of credibility” in that sense, were to be strictly avoided, a not guilty verdict would be required in every such case. But it is not. That is because a “contest of credibility” means a weighing of the evidence of one against the evidence of the other to determine which of the two is more worthy of belief.

Simply deciding which of the two witnesses is more believable and making a finding of guilt based on that determination is faulty legal reasoning. It fails to recognize the burden of the Crown to prove guilt beyond a reasonable doubt. [ 21 ] Assessing the evidence of the complainant against the evidence of the accused and assessing the evidence of the accused against the evidence of the complainant is part of the assessment of all the evidence as required in a criminal case. The purpose is not to determine which is more believable.

It is to determine whether the Crown has proven the guilt of the accused beyond a reasonable doubt. An accused person may provide a denial that is, on its face, believable. When considered in light of the complainant’s evidence however, it may no longer be as believable. The complainant’s evidence may cast doubt on the denial. Trial judges are required to struggle with those competing versions of events in many cases.

The issue is not just whether the accused person’s denial is less believable than the complainant’s evidence, or even if it is quite a bit less believable than the complainant’s evidence, but whether it raises a reasonable doubt as to the accused person’s guilt. [ 22 ] That process can become problematic when a trial judge accepts the evidence of the complainant and puts an unspoken onus on the accused person to disprove that evidence.

That process can also be problematic when the trial judge simply accepts a denial on its face without testing it against the other evidence in the trial, including the evidence of the complainant. Evidence is not assessed in a hermetically sealed compartment and only tested for internally inconsistencies. It is tested against all the other evidence and doing so does not create a contest of credibility. If a denial is assessed against all the other evidence and raises a reasonable doubt the accused person should be found not guilty.

A denial that raises a reasonable doubt, standing on its own, without being assessed against the other evidence, has not been properly assessed. [ 23 ] In this case the Judge properly assessed the evidence. She applied the standard of reasonable doubt. She accepted the evidence of the complainant after assessing all of the evidence including the denial put forth by Mr. Twinley. As part of that same process she assessed Mr.

Twinley’s evidence against all of the other evidence and determined not only that it was less believable than the evidence of the complainant but that it did not raise a reasonable doubt. [ 24 ] The trial Judge in this case applied the proper standard and committed no error. [ 25 ] The appeal is dismissed. Campbell, J.