R. v. Kennedy, 2019 NLSC 135

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Kennedy , 2019 NLSC 135 Date : July 16, 2019 Docket : 201703G0013 Her Majesty The Queen v. nicholas kennedy Before: Justice Daniel M. Boone Edited Transcript of Oral Reasons for Judgment On Appeal From: A Decision of the Provincial Court of Newfoundland and Labrador, dated the 31 st day of October, 2016. Place of Hearing: Grand Falls-Windsor, Newfoundland and Labrador Date of Hearing: June 29 and September 25, 2018 Appearances: Douglas E. Howell Appearing on behalf of the Crown Philip C.W. Whalen Appearing on behalf of the Accused Authorities Cited:

CASES CONSIDERED: R. v. W. (D.), (SCC), [1991] 1 S.C.R. 742; R. v. Lifchus, (SCC), [1997] 3S.C.R. 320; R. v. Vuradin, 2013 SCC 38; R. v. Kennedy, 2015 NLCA 14; R. v. H (C.) (1999), (NL CA), 182 Nfld. &P.E.I.R. 32, 554 A.P.R. 32 (Nfld. C.A.); R v. Liberatore, 2010 NSCA 82; R. v. Lake, 2005 NSCA 162 STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46 REASONS FOR JUDGMENT Boone, J.: INTRODUCTION [1] On October 31, 2016, following a trial before Provincial Court Judge Chalker, Nicholas Kennedy was convicted of two countsof common assault contrary to the Criminal Code, R.S.C. 1985, c. C-46,

section 266 and one count of unlawful confinement contrary tosection 279(2) of the Criminal Code. The offences were prosecuted by way of

summary conviction. Judge Chalker acquitted Mr.Kennedy of several other charges. Mr.

Kennedy appeals from his convictions. [2] The Appeal raises the following issues: • Did the Trial Judge err in law in assessing evidence on the wrong legal principles, effectively by misapplying the W(D)framework? • Did the Trial Judge err in law by misapprehending material evidence, in particular, by failing to account for inconsistencies in theevidence adduced by the Crown? [3] I have determined that the Appeal from the convictions for common assault should be allowed, but the appeal from convictionfor unlawful confinement should be dismissed.

The Standard of Review [4] The standard of review from criminal convictions is set out in the Criminal Code. The Crown proceeded with these chargesby

summary conviction process. Therefore, the following provisions of the Code set the appropriate standard the Appellant must meet: 822

(1) Where an appeal is taken under

section 813 in respect of any conviction, acquittal, sentence, verdict or order, sections 683 to 689,with the exception of subsections 683(3) and 686(5), apply, with such modifications as the circumstances require. 686

(1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminallyresponsible on account of mental disorder, the court of appeal (

a) may allow the appeal where it is of the opinion that (

i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence, (ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or (iii) on any ground there was a miscarriage of justice; (

b) may dismiss the appeal where (

i) the court is of the opinion that the appellant, although he was not properly convicted on a count or part of the indictment, wasproperly convicted on another count or part of the indictment, (ii) the appeal is not decided in favour of the appellant on any ground mentioned in paragraph (a), (iii) notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph (a)(ii) the appeal might be decided infavour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred, or (iv) notwithstanding any procedural irregularity at trial, the trial court had jurisdiction over the class of offence of which the appellantwas convicted and the court of appeal is of the opinion that the appellant suffered no prejudice thereby; [5] The Appellant relies on each of the grounds set out in subsections 686(1)(a)(

i) and (ii). Facts [6] The Appellant was charged with numerous offences, which were all tried together. Several of the charges related to events thatoccurred in 2012 and 2013. Judge Chalker acquitted the Appellant of those charges. The Appellant was convicted of charges related to

events that occurred in the early morning hours of May 3, 2015. [7] The victim of the offences of which the Appellant was convicted was his common-law partner at the time, Kelsey Penney. The material sequence of events began after dinner on May 2. As is so often the case, the history of their relationship, includingelements of jealousy and suggestions of excessive drinking, affected how the events unfolded, but there is no need in this decision to givea detailed description of that history. The Appellant and Ms. Penney were living in Botwood together with their young child.

Ms.Penney’s parents were living about 15 minutes away in Bishop’s Falls. Ms. Penney decided that the couple and their son would go toBishop’s Falls for the night to stay with her parents, Tanya and Jerry Penney. Ms. Penney also intended to attend a party that evening ata house located not far from her parents’ home. The Appellant did not intend to go to the party, and instead planned to spend the eveningwith other friends. [8] The essential events on which the charges were grounded began when the Appellant picked Ms. Penney up from the party ataround 3:30 a.m.

Over the next hour or so, the couple drove through Bishop’s Falls toward Botwood, bypassing Ms. Penney’s parents’home, and later drove toward Botwood and Northern Arm. The Appellant and Ms. Penney told different versions of what occurredduring that time. In order to highlight the decision Judge Chalker had to make, it is helpful to summarize the evidence given by eachparty, and then briefly recount the relevant evidence from some of the other witnesses. [9] According to Ms. Penney, when the Appellant picked her up from the party, he had been drinking beer and was drunk. Sheadmitted that she also was inebriated.

The Appellant was angry when he picked her up. He drove by her parents’ house. Although sheasked him to let her out there; he refused. He drove through Bishop’s Falls. As he drove, he continued to express his anger toward her. She asked several times that he bring her to her parents’ house, but he refused to do so. He stopped the truck in a gravel parking lot neara cemetery where both got out of the vehicle. They were at the parking lot for about 15 minutes during which time they continued toargue. During that time, the Appellant pushed her several times and she fell to the ground each time.

The last time he pushed her, she hither head on the gravel, which resulted in bleeding and a bump. She also hurt her back and went limp. The Appellant picked her up, puther back into the truck and drove off toward Botwood. She asked the Appellant to let her out of the vehicle, and he again refused. Shecalled her mother and told her that the Appellant was driving toward Botwood and would not let her out of the truck. She then dialed herfriend, Hollie Paul, and left the line open so that Ms. Paul could hear what was happening.

While the line was open, the Appellantstarted yelling at the Complainant again, and although she had presumed the Appellant was driving to their house, he drove past it againand stopped the vehicle in the community of Northern Arm near the Pendragon Trail. There, the couple got out of the truck again andcontinued to argue. He pushed her to the ground several more times. He then pushed her into the truck and, several times, prevented herfrom getting out of the vehicle. She did get out again, and she told the Appellant that her mother was calling the police. The Appellantthen left her there by the side of the road.

Ms. Penney then called her friend Ms. Paul and asked that she come get her. She had workedtogether with Ms. Paul as an EMT at a local ambulance services. Ms. Paul arrived with another EMT, Michael Roberts, and they took herto the ambulance depot and cleaned and treated her cut. The police and her mother came to the depot and she later was taken to hospital. [10] The Appellant said that he did not drink that evening. He went to a cousin’s house, and then a friend’s house to watch a hockeygame on TV. He later went to a local bar and then drove several people home. He picked Ms.

Penney up from the party after droppingoff the last of his passengers. When Ms. Penney came out of the party, he observed that she was “loaded drunk.” Ms. Penney wanted togo to her mother’s, but he thought that she was too drunk and he decided to go to their home in Botwood instead. Ms. Penney askedagain to be taken to her mother’s, and he pulled into the cemetery parking lot to turn around to take her there. However, when he droveinto the parking lot, she grabbed the steering wheel, which caused him to slam on the brakes. Ms. Penney then jumped from the truckand started to run away.

He got out of the truck and then she started to run toward him, running into him and knocking them both to theground. He then told her that he was going to return to Botwood, and she got back into the truck. He recalled that she was on the phoneduring some of this time, and he heard her saying to someone that he would not let her out of the truck. Then he stopped the truck nearthe Pendragon Trail, where they both got out again. He heard Ms. Penney say into the phone that he was beating her. He said that hecalled Ms. Penney’s mother and told her where Ms. Penney was located and to come get her.

He then drove away, leaving her there. Hedenied pushing or hitting Ms. Penney during any of this time, and said that she was loaded drunk and acting crazy. [11] There were other witnesses. Ms. Paul testified that Ms. Penney called her and said that the Appellant had left her on the side ofthe road and asked her to come pick her up from there. Ms. Paul asked Mr. Roberts, another ambulance attendant, to go with her. Theyfound Ms. Penney lying or sitting on the side of the road, bleeding from a cut to her head. They took her to the ambulance depot andtreated her injuries.

The RCMP were called to the depot, and the attending officer also testified to Ms. Penney’s having an injury to herhead. Both Ms. Paul and Mrs. Penney testified to the calls they each received from Ms. Penney and the argument and yelling they heardbetween her and the Appellant during those calls. Mrs. Penney called the police following the call with her daughter, and told the policeher daughter was in the truck with the Appellant who would not let her out of the truck. The RCMP witnesses confirmed that call fromMrs. Penney was received by RCMP dispatch.

The Decision under Appeal [12] The Trial Judge acquitted the Appellant on the charges arising from events that occurred in 2012 and 2013. In so doing, hemade varied findings regarding the credibility of the testimony of the Appellant, Ms. Penney and her parents. He rejected some of theirevidence in regard to those offences, and accepted the evidence from the Appellant as credible. [13] The Trial Judge convicted the Appellant on the two charges of common assault and the charge of unlawful confinement arisingfrom events of May 3, 2015. This Appeal is from those convictions.

The Grounds of Appeal [14] This Appeal is based on the Appellant’s submissions that the convictions were unreasonable, not supported by the evidence, andwrong on a question of law. In particular, for the following reasons: 1. The Trial Judge misapplied the framework in R. v. W. (D.), (SCC), [1991] 1 S.C.R. 742 in two ways: a. By equating rejection of the Appellant’s evidence with the Crown having proved its case to the requisite standard;

b. By failing to assess the Appellant’s credibility in the requisite manner. 2. The Trial Judge failed to assess crucial frailties in Kelsey Penney’s evidence. The Law [15] An accused person ought not be convicted of a criminal offence unless the Crown proves the offence beyond a reasonabledoubt. The accused is presumed innocent until his or her guilt is proven to that standard. The burden never shifts to the accused to proveinnocence. [16] The burden on the Crown is evident when the accused elects not to present evidence.

However, when the accused does adduceevidence, the trier of fact must take care not to shift the burden to the accused by determining guilt based only on an assessment of thecredibility of the defence evidence, either standing alone or in direct comparison to the evidence adduced by the Crown in support of thecharge. The Supreme Court of Canada has formulated the following articulation of the appropriate process in the majority decision ofthe Supreme Court of Canada in W. (D.) at paragraph 11: 11 … First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [17] The essence of the first two grounds of appeal in this case is the Appellant’s submission that the Trial Judge did not properlyapply the W. (D.) framework for principled protection of the presumption of innocence.

The third ground of appeal requiresconsideration of the Trial Judge’s assessment of the credibility of the Complainant. Analysis [18] The Trial Judge recited the correct legal principles in his judgment, including the following: • That the requirement for the Crown to prove the elements of an offence beyond a reasonable doubt is inextricably intertwined withthe presumption of innocence, citing R. v.

Lifchus, (SCC), [1997] 3 S.C.R. 320; • That determining guilt or innocence in a case where an accused person adduces evidence is not to be based on a choice betweenthat evidence and the evidence of the Crown, citing R. v. Vuradin, 2013 SCC 38; • That the appropriate framework for deciding a criminal case in which the accused person calls evidence is that set out in R. v. W.(D.), supra; • That triers of fact should apply the criminal standard of proof to the cumulative effect of all the evidence consistent with guiltweighed against the cumulative effect of all the evidence inconsistent with guilt, citing R. v.

Kennedy, 2015 NLCA 14; and • That one of the main indicators of the credibility of a witness is the internal consistency of the evidence they offer, and theconsistency of that evidence with other evidence adjudged credible, citing, inter alia, R. v. H (C.) (1999), (NL CA),182 Nfld. & P.E.I.R. 32, 554 A.P.R. 32 (Nfld. C.A.). [19] The authorities make clear that the mere recitation of the appropriate legal principles, including the W.(D.) framework, is notsufficient. The question is whether the Trial Judge ‘applied’ those principles: R v.

Liberatore, 2010 NSCA 82. [20] In considering whether a trial judge applied the correct legal principles, it is important to determine whether the judge directedhimself or herself to the right question. In this case, the Judge did so.

He asked himself: Has the Crown in all the charges proved all the elements of the offence beyond a reasonable doubt taking into account the presumptionof innocence and issues of credibility? [21] Considering the applicable legal principles, this was an accurate statement of the question that the Trial Judge was called uponto answer. [22] The Trial Judge recited the correct applicable legal principles, and set out accurately the question that those principles, with thebackground of the evidence, required that he answer.

The remaining exercise on this Appeal is to examine whether the Trial Judgecorrectly applied the law in answering the question he posed. The Appellant says the Trial Judge erred in applying R. v. W. (D.) (

i) Equating rejection of the Appellant’s evidence with proof beyond reasonable doubt

[ 23 ] The Appellant argues that the Trial Judge did not engage in the analysis required by the authorities as expressed in W. (D.) . Rather, the Appellant says, the Trial Judge rejected the evidence of the Appellant and convicted him of the assaults on that basis alone. He points to the following passage: While Ms. Penney had inconsistencies in her evidence about the number of times she was pushed to the ground, she was consistent and believable that she was pushed to the ground by the accused on a number of occasions at separate locations. And given the evidence of Ms. Paul and Mr. Roberts, Mrs.

Penney and Constable Crocker, which gives further credibility to her recollection of events from the evening and considering all the evidence, I reject Mr. Kennedy’s evidence. The Crown has proven beyond a reasonable doubt that the accused assaulted Ms. Penney on the night/morning of May 2 nd or 3 rd 2015 on two separate occasions… [ 24 ] However, close reexamination of the trial decision shows that the Trial Judge did more than compare the credibility of the Appellant and the Complainant.

This passage from the decision makes that clear: Beside the evidence of the complainant and the accused, there’s evidence of Ms. Paul who heard Ms. Penney yelling to the-- telling the accused to let her out of the truck and the evidence of Ms. Paul and Mr. Roberts who both agree that when they say [ sic ] Ms. Penney she was alone by the side of the road at--near Northern Arm, was inebriated and had an injury to her head. Her mother and Constable Crocker also noticed an injury to her head. [ 25 ] The Trial Judge determined that the evidence of Ms. Penney, her mother, Ms. Paul, Mr.

Roberts, and Constable Crocker, taken together, constituted proof beyond a reasonable doubt that the Appellant was guilty of the assaults.

He rejected the evidence of the Appellant, which he was entitled to do, but it was the totality of the evidence that convinced him of guilt on the appropriate standard. [ 26 ] This first ground of appeal fails. (ii) Failing to assess the Appellant’s credibility as required by W. (D.) [ 27 ] The position of the Appellant on this ground of appeal is that the Trial Judge rejected the evidence of the Appellant only because he believed the evidence of the Complainant without an independent analysis of the credibility of the Appellant. [ 28 ] The Appellant relies on R. v.

Lake , 2005 NSCA 162 , for the following exposition of the error, which he alleges in the trial decision: 19 … When the trial pits the credibility of the Crown witnesses against the credibility of the accused, the burden of proof is at risk in two ways. 21 Second is the concern which arises here. The trial judge may discount the accused’s testimony just because she has believed the Crown witnesses. The defence is neutered in the starting gate regardless of how the accused presents or testifies. The accused has not really been disbelieved. He has been marginalized.

So it is impermissible to reject the accused’s testimony solely as a consequence of believing Crown witnesses. The trier of fact should address both whether the Crown witnesses are believed and whether the accused is disbelieved. This is the rationale for W. (D.)’s first question. [ 29 ] The Trial Judge did not assess the credibility of the Appellant in relation to the two charges of common assault. He gave no reason for rejecting the evidence of the Appellant. The rejection of the Appellant’s evidence is based entirely on acceptance of the Crown evidence in this passage: And given the evidence of Ms.

Paul and Mr. Roberts, Mrs. Penney and Constable Crocker, which gives further credibility to her [the complainant’s] recollection of events from the evening and considering all the evidence, I reject Mr. Kennedy’s evidence. [ 30 ] Where the defence presents exculpatory evidence, the requirement for the Crown to prove the offence beyond a reasonable doubt mandates that the trier of fact must assess the credibility of the defence evidence independent of comparison of that evidence with that of the Crown. In this case, the Appellant, in his testimony, denied pushing the Complainant.

Therefore, to use the wording from W. (D.) , if the evidence of the Appellant had been believed, then he should have been acquitted. The evidence of Ms. Paul, Mr. Roberts, and Constable Crocker demonstrated that the Complainant had suffered an injury to her head, but that fact was consistent with the evidence of both the Appellant and the Complainant and those witnesses were not present at the time of the alleged assault.

The Trial Judge stated that he considered the Complainant’s evidence that she was pushed to the ground by the Appellant to be “consistent and believable.” However, he gave no reason whatsoever for rejecting the Appellant’s evidence that he did not push the Complainant, and that the two fell to the ground when the Complainant ran into him. [ 31 ] The failure of the Trial Judge to consider whether the Appellant’s testimony was credible effectively rendered the trial of the offences of common assault a credibility contest. This is a reversible error.

As the error involved a failure by the Trial Judge to assess the credibility of the Appellant, the only possible outcome is to order a new trial on the charges of common assault. This Court is not in a position to assess the credibility of the Appellant as a witness. [ 32 ] Given my conclusion on this ground of appeal, it is not necessary for me to consider whether the Trial Judge properly assessed the credibility of the Complainant related to the assaults, an issue raised by the third ground. [ 33 ] The Trial Judge assessed the evidence related to each offence separately.

Consequently, the result of the appeal against the convictions for assault does not control the outcome of the appeal from the conviction for unlawful confinement. [ 34 ] All three grounds of appeal raise issues regarding the assessment of credibility by the Trial Judge. The conviction on the charge of unlawful confinement did not depend on rejection of the Appellant’s evidence. Although the charge of unlawful confinement covered a period of approximately one hour, the conviction was for only one incident of confinement that occurred shortly after the Appellant

picked the Complainant up from the party. The Trial Judge, in effect, found that the evidence of the Appellant was not exculpatory: With respect to the charge of unlawful confined pursuant to Section 279(2) , it is clear that the accused would not let Ms. Penney out of his vehicle when she asked to be let out at her mother’s. Mr. Kennedy said he wouldn’t want to bring her back to wake the baby. There was conflicting evidence about this as Mr.--.Ms. Penney said the baby was not in her residence and was being looked after by an aunt. Even if the baby was at Ms.

Penney’s, the accused did not have a lawful reason not to allow her to leave his truck at her mother’s. The evidence shows that Ms. Penney did not consent to this; in fact the evidence showed that her friend Ms. Paul and Ms. [ sic ] Penney both heard her say that the accused would not let her out of the truck In the case of R. v. BSJ [2002] ABCA 143, the Court said at paragraph 41: Physical restraint standing alone will satisfy the minimum intent to perform the act which constitutes the actus reus of unlawful confinement.

Although the serious nature of the crime itself might be suggestive of the necessity of establishing an “ulterior intent”, over and above the minimal intent required for general intent offences, I am of the view that the minimal intent to effect deprivation of freedom of movement will suffice. A robber who instructs staff and customers to raise their hands as he empties the till does so in order to hold them captive. The minimal intent associated with unlawful confinement is to prevent the victim from leaving or from being removed. A temporary restraint will suffice if it is a purposeful detention.

Mr, Kennedy, in my opinion, had at least the minimum intent to deprive Ms. Penney of her liberty. … As such, he is convicted of this charge. [ 35 ] The grounds of appeal and the related submissions by the Appellant do not address the unlawful confinement charge. The Appellant has not demonstrated any error by the Trial Judge in the conviction on the charge of unlawful confinement.

The appeal from the conviction for unlawful confinement is therefore dismissed. [ 36 ] The Appellant was sentenced to 90 days for unlawful confinement and 30 days concurrent for each of the two assault charges, with the resulting 90-day sentence to be served intermittently. The sentence was stayed pending the outcome of this appeal and the Appellant has not served any portion of the sentence. Ancillary firearms prohibitions and DNA orders were made in respect of all three charges, so the dismissal of the appeal from conviction on the charge of unlawful confinement means that those orders remain in place.

The sentence also included a two-year term of probation. The Trial Judge did not specify whether the two-year term of probation was included in the sentence for each or either of the three offences, or in consideration of the totality of the offences, which the Trial Judge described as one criminal adventure. No appeal was taken from sentence. Disposition [ 37 ] In the result, the appeal from conviction on each of the two charges of assault is allowed.

A new trial ought to be held, but whether to proceed with a new trial on these charges is in the discretion of the Crown given the outcome of the appeal from conviction from the charge of unlawful confinement, which is dismissed. [ 38 ] A stay of sentence was entered pending determination of this appeal and therefore is no longer in effect. The Appellant is therefore ordered to report at 9:00 a.m. on Saturday, July 20, 2019, to begin serving his sentence of intermittent incarceration.

The stay of the ancillary and probation orders issued by the Provincial Court is vacated and those Orders now take effect. _____________________________ Daniel M. Boone Justice