RHONDA PARROTT Appellant And: HER MAJESTY THE QUEEN Respondent, 2019 NLSC 136

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Parrott , 2019 NLSC 136 Date : July 17, 2019 Docket : 201801G7610 Between: RHONDA PARROTT Appellant And: HER MAJESTY THE QUEEN Respondent Before: Justice Robert P. Stack On Appeal From: A Decision of the Provincial Court of Newfoundland and Labrador, File # 0118A00353 entered the 8th day of June, 2018 and the 24th day of October, 2018. Place of Hearing: St. John’s, Newfoundland and Labrador Date(

s) of Hearing: May 22, 2019

Summary: This is an appeal from a conviction for theft following a trial in the Provincial Court. It was held that the trial judge did not err in law by failing to give sufficient reasons for rejecting the Appellant’s testimony, nor did he make a palpable and overriding error by misapprehending

material evidence. The appeal was denied. Appearances: Derek J. Hogan Appearing on behalf of the AppellantAlana M. R. Dwyer Appearing on behalf of the Respondent Authorities Cited: CASES CONSIDERED: R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320; R. v. Villaroman, 2016 SCC 33; R. v. W. (D.), (SCC), [1991] 1 S.C.R. 742; R. v. M. (R.E.), 2008 SCC 51; R. v. Sheppard, 2002 SCC 26; R. v. Brake (1983), 43 Nfld. &P.E.I.R. 1, 127 A.P.R. 1 (Nfld. C.A.); R. v. S. (J.H.), 2008 SCC 30; R. v. H. (C.W.) (1991), (BC CA), 68 C.C.C. (3d)146, 3 B.C.A.C. 205; R. v. D. (J.J.R.) (2006), (ON CA), 215 C.C.C. (3d) 252, 218 O.A.C. 37; R. v.

Dinardo, 2008SCC 24; R. v. P. (G.R.), 2009 NLCA 37; R. v. S. (A.J.), 2011 ONCA 566; R. v. Gagnon, 2006 SCC 17; L.(H.) v. Canada (AttorneyGeneral), 2005 SCC 25; R. v. R. (W.), 2016 NLTD(G) 153; R. v. G. (C.D.) (1995), (NL CA), 128 Nfld. & P.E.I.R.312, 27 W.C.B. (2d) 51 (Nfld. C.A.); Faryna v. Chorny, (BC CA), [1952] 2 D.L.R. 354, 4 W.W.R. (N.S.) 171(B.C.C.A.); Stassis v. Amicus Bank, 2014 NLCA 38; R. v. S.O., 2019 NLCA 42; R. v. Vokurka, 2013 NLCA 51, aff’d 2014 SCC 22; R.v. Clark, 2005 SCC 2; R. v. Sinclair, 2011 SCC 40; R. v. Lohrer, 2004 SCC 80; R. v.

C. (R.) (1992), (SCC), 49 Q.A.C.37, 81 C.C.C. (3d) 417; R. v. Morrissey, (ON CA), 22 O.R. (3d) 514, 80 O.A.C. 161. STATUTES CONSIDERED: Criminal Code, R.S.C., 1985, c. C-46. REASONS FOR JUDGMENT Stack, J.: INTRODUCTION [1] This is an appeal from a conviction following a trial in the Provincial Court. It was alleged that the Appellant: On or about the 19th day of January, A.D., 2018, at or near St. John’s, in the Province of Newfoundland and Labrador, did unlawfullysteal monies, the property of Shirley Brenton, to a value not exceeding $5000.00 thereby committing an offence contrary to section334(

b) of the Criminal Code. [2] The parties agree that the appeal raises three issues: (

a) Did the learned trial judge err in law by failing to give sufficient reasons for rejecting the Appellant’s testimony? (

b) Did he err in fact by misapprehending material evidence? (

c) If he erred in law, should the Court invoke the curative proviso provided by sections 822(1) and 686(1)(b)(iii) of theCriminal Code, R.S.C., 1985, c. C-46? [3] The Crown, while not agreeing that there was an error of law committed by the trial judge, concedes that if he did err in law,then the matter should be remitted back to the Provincial Court for a retrial. Thus, I will not consider the third issue further. The Position of the Appellant [4] The position of the Appellant is that the trial judge found her guilty of theft of money in a hospital room because he found thatshe had exclusive opportunity.

The trial judge stated: “The question becomes, who could have stepped into that space around the bedunnoticed by Mr. And Ms. Brenton, open the purse, the wallet, [take] the money, close the purse and move away undetected. Other thanMs. Parrott, there is no one.”[1] The Appellant submits that this finding betrays reversible error because the trial judge gave no other reason for rejecting the testimony of the Appellant, who denied committing the theft. Furthermore, shesubmits that the trial judge misapprehended the evidence, which did not establish that no one but Ms.

Parrott could have stepped aroundthe bed unnoticed by Mr. Brenton.

The Position of the Crown [ 5 ] The Crown, on the other hand, submits that the trial judge gave adequate reasons for the judgment. Even if they were inadequate, however, the Crown argues that they do not prevent appellate review because the basis for the verdict is obvious on the face of the record. Furthermore, says the Crown, the evidence of Ms. Brenton was relied on heavily while the evidence of Mr. Brenton was relied upon only where it is corroborated by his wife. Therefore, submits the Crown, there was no misapprehension of material evidence. the trial [ 6 ] Except in one respect, the Crown accepts the Appellant’s

summary of the evidence which was set out in her factum as follows: 3. In the trial before Madden P.C.J. on May 7 th , 2018, the crown called four witnesses and the defence three – trial transcript p. 2– 81. In finding Ms. Parrott guilty of theft, Madden focused on the testimony of three witnesses: the complainant, Shirley Brenton, her husband, Joseph Brenton, and Ms. Parrott, a cleaner at St. Claire’s Hospital in January, 2018. The appellant will summarize this testimony. 4. Shirley Brenton – Ms. Brenton was visiting her husband at St.

Claire’s Hospital, who was in a room with three beds, two of which were occupied trial transcript p. 3 lines 1 – 19. Ms. Brenton’s brother asked her to go for a coffee and she took $20.00 from her wallet. She did not spend any of the $20.00 and, when she returned to her husband’s room and put the $20.00 back in her wallet, she noticed that she still had $200.00, all twenties ibid p. 4 lines 6 – 18. 5. Ms. Brenton sat on her husband’s bed with the back raised ibid p. 7 lines 19 - 21. Her purse was on a stand or a chair by the window where she always kept it Ibid p. 4 line 19 – p. 5 line 2 & p. 9 lines 18 – 20.

Her husband sat in a chair ibid p. 7 lines 19 – 21. Ms. Parrott was “back on to” Ms. Brenton ibid p. 7 line 19 – p. 8 line 3. 6. Ms. Parrott mopped in under Mr. Brenton’s bed, moved the nightstand next to the bed, leaned the mop against the bed, and, when Ms. Brenton glanced back, she was on her hands and knees behind the nightstand ibid p. 8 lines 8 – 15. After Ms. Parrott finished cleaning and moved the nightstand back, Ms. Brenton noticed that her purse had been moved to the far wall on the floor behind her, which made her suspicious ibid p. 9 lines 12 - 22.

She checked her purse and her money was gone p. 10 lines 1 – 5. 7. The zipper to the purse was closed when Ms. Brenton laid it by the window and when she later checked it ibid p. 10 lines 13 – 16. 8. The male patient in the other bed in the room and his wife were both absent when Ms. Parrott was in the room ibid p. 18 line 13 – 22; p. 22 lines 8 – 19; and aside from a male cleaner who briefly stood by the doorway, no one else entered the room ibid p. 8 line 19 – p. 9 line 7; p. 21 lines 8 – 15. 9. Ms. Brenton did not see Ms. Parrott handling her purse at any time ibid p. 21 lines 5 – 7. 10. Joseph Brenton – Mr.

Brenton was sitting in a chair reading a book and his wife was lying on his bed while Ms. Parrott was cleaning the room and moving stuff around trial transcript p. 25 lines 1 – 10. He did not pay much attention to her ibid line 9 – 10. 11. While he was reading and looking around, Mr. Brenton heard a bang and saw his wife’s handbag in front of the nightstand where Ms. Parrott was cleaning ibid p. 25 line 17 – p. 26 line 8. He did not know where the handbag was before this ibid p. 26 line 9 – 10 or whether money was in it ibid p. 25 lines 11 – 13 & p. 33 lines 14 - 17. 12.

There were lots of people in and out of the room that day and Mr. Brenton could not say whether anyone came into the room after Ms. Parrott did ibid p. 28 lines 8 – 14. The male patient in the other bed and his wife were in the room when Ms. Parrott was cleaning but not when Ms. Brenton discovered that her money was missing ibid p. 31 line 12 – p. 33 line 13. He also stated that he was not sure whether the couple was present when Ms. Parrott was cleaning the room ibid p. 33 lines 1 – 3. 13. Mr. Brenton misunderstood several of the questions by counsel ibid pp. 23 – 33.

14. Rhonda Parrott – Ms. Parrott first mopped the Brenton’s side of the room where she asked Ms. Brenton if she could move a dufflebag on the floor and wash underneath it. Ms. Brenton agreed trial transcript p. 73 lines 10 – 15. This was the only bag Ms. Parrottrecalled seeing bid p. 73 lines 14 – 15. She then mopped the other side of the room where the other male patient was staying ibid p. 72lines 9 – 20. He and his spouse came out of the bathroom and into the room before she left ibid p. 72 lines 18 – 20. 15. Ms. Parrott would have cleaned in and around the nightstand ibid p. 77 lines 1 – 7. 16. Ms.

Parrott was not on her hands and knees at any point ibid p. 72 lines 21 – 22. 17. Mr. Brenton was in a chair and Ms. Brenton on the bed ibid p. 73 lines 16 – 19. 18. Ms. Parrott denied taking anything in the room ibid p. 74 lines 17 – 20. [Underlining in original.] [7] The Crown would only add that in addition to paragraphs 10 through 13 in the Appellant’s factum addressing Mr. Brenton’stestimony, Mr. Brenton also testified that he believed the Appellant must have picked up Ms.

Brenton’s handbag because there was noone else there.[2] the decision following the trial [8] The oral decision of the trial judge comprised some 19 pages of the Transcript of Trial. The Appellant and the Crown agreethat although the trial judge extensively reviewed the evidence and the law, his decision on guilt was “abrupt”. [9] In his decision, the trial judge reviewed the applicable law, including: the meaning of proof beyond a reasonable doubt as setout in R. v.

Lifchus, (SCC), [1997] 3 S.C.R. 320; the requisite proof in a circumstantial evidence case as set out in R. v.Villaroman, 2016 SCC 33; and the three-step test when an accused testifies as set out in R. v. W. (D.), (SCC), [1991] 1S.C.R. 742. The principles of W.(D.) at paragraph 11 that govern a trier of fact where an accused testifies are particularly important in acase such as this: 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. [10] The trial judge stated that judges are expected to give reasons “explaining how they resolve credibility issues….”[3] [11] The trial judge concluded in his decision:[4] Now, the evidence as to when and how long the other couple were in the bathroom is not entirely consistent. While Ms.

Brenton may besure that the others were in the bathroom until she discovered the money missing. Ms. Parrott contradicts this. So, if I’m left in doubt onthis point as to who was in the room at what time, and I’m not talking about the bathroom, where are we [sic]. Well, it’s important toconsider the purse. I have no doubt that there was a purse; both the Brenton’s remember it. It is a very common

article for a woman tocarry a purse, just as it is common for a man to carry a wallet. If Ms. Brenton thought she had a purse and then discovered after Ms.Parrott left that there was no purse we would be here today hearing how her purse, rather than her money, was stolen. How Ms. Parrottdid not see this purse is a mystery to me. Ms. Brenton’s testimony was that she always kept her purse in a chair by the window. That’s not really an answer as to where it was atthat point in time. That’s merely a statement as to where she normally puts it.

At one point in court she pointed where the window wasin relation to the bed. She said that after Ms. Parrott left she noticed her purse was no longer where she had left it and, in fact, she said itwas on the floor in the area of the nightstand by the wall behind the bed. Now, you’ll recall that she described Ms. Parrott as beingbehind her as she sat on the bed. It was no doubt the fact that the purse had been moved and that it was now on the floor where she hadseen Ms. Parrott that caused the concern that resulted in the discovery of the empty wallet.

Her decision to check the purse is consistentwith her testimony that the purse had been moved to where she saw Ms. Parrott was on her hands and knees. It hangs together. Giventhe location of the purse whether it was on the chair or by the window or whether she put it on the floor by the nightstand, it reallydoesn’t matter if other people were in the room. The question becomes, who could have stepped into that space around the bedunnoticed by Ms. And Mr. Brenton, open the purse, the wallet, [take] the money, close the purse and move away undetected. Other than

Ms. Parrott, there is no one. Upon assessing everybody’s evidence, I find that the crown has proven their case beyond a reasonabledoubt and I’ll enter a finding of guilty in relation to Ms. Parrott.

That leaves the issue of sentencing. [12] This forms the background for the explanation of the law and the analysis that follows. the law and analysis Insufficient Reasons [13] Appellate courts take a functional approach to the reasons of a trial judge by asking: “[D]o the trial judge’s reasons, consideredin the context of the evidentiary record, the live issues as they emerged at trial and the submissions of counsel, deprive the appellant ofthe right to meaningful appellate review?” (R. v. M. (R.E.), 2008 SCC 51, at paragraph 57).

While deferring to the trial judge’s advantagein seeing and hearing the witnesses, the appellate court must address whether, as stated at paragraph 55 of M. (R.E.), “the trial judge appears to have seized the substance of the critical issues on the trial. If the evidence iscontradictory or confusing, the appellate court should ask whether the trial judge appears to have recognized and dealt with thecontradictions.” [14] Binnie, J. noted for the court in R. v.

Sheppard, 2002 SCC 26, at paragraph 23 that “it is widely recognized that having to givereasons itself concentrates the judicial mind on the difficulties that are presented” in a case. The difficulties can be insuperable—the trierof fact may be unable to resolve the conflicts in the evidence between the Crown and the defence. This can form the basis for a findingof reasonable doubt (see R. v. Brake (1983), 43 Nfld. & P.E.I.R. 1, 127 A.P.R. 1 (Nfld. C.A.) at paragraph 22). To similar effect, Binnie,J. in R. v.

S. (J.H.), 2008 SCC 30, at paragraph 12, quoted with apparent approval a jury instruction that Wood, J.A. suggested in R. v. H.(C.W.) (1991), (BC CA), 68 C.C.C. (3d) 146, 3 B.C.A.C. 205, that when an accused testifies, “If, after a carefulconsideration of all the evidence, you are unable to decide whom to believe, you must acquit.” [15] Doherty, J.A. commented in R. v.

D. (J.J.R.) (2006), (ON CA), 215 C.C.C. (3d) 252, 218 O.A.C. 37, atparagraph 53, that: An outright rejection of an accused’s evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth ofconflicting credible evidence is as much an explanation for the rejection of an accused’s evidence as is a rejection based on a problemidentified with the way the accused testified or the substance of the accused’s evidence. [16] Similarly, McLachlin, C.J.C. stated for the court in M. (R.E.) at paragraph 66 that, since the trial judge “gave reasons foraccepting the complainant’s evidence, finding her generally truthful and ‘a very credible witness’”, it “followed of necessity that herejected the accused’s evidence where it conflicted with evidence of the complainant that he accepted”, and no “further explanation forrejecting the accused’s evidence was required”. [17] Charron, J. stated for the court in R. v.

Dinardo, 2008 SCC 24, at paragraph 27, that reasons “acquire particular importance”where the trial judge must “resolve confused and contradictory evidence on a key issue, unless the basis of the trial judge’s conclusionsis apparent from the record”. [18] Charron, J. further stated in Dinardo at paragraph 23 that compliance with the substance of the W. (D.) instruction can beaddressed “under the rubric of the sufficiency” of reasons.

She also stated at paragraph 23 that in cases that turn on credibility: [T]he trial judge must direct his or her mind to the decisive question of whether the accused’s evidence, considered in the context of theevidence as a whole, raises a reasonable doubt as to his guilt. Put differently, the trial judge must consider whether the evidence as awhole establishes the accused’s guilt beyond a reasonable doubt. [19] The failure to give sufficient reasons for accepting the Crown’s evidence or for rejecting the accused’s can constitute reversibleerror (see, for example, R. v. P. (G.R.), 2009 NLCA 37 and R. v.

S. (A.J.), 2011 ONCA 566). [20] But, Charron J. stated at paragraph 32 of Dinardo: This Court emphasized in Sheppard that no error will be found where the basis for the trial judge’s conclusion is “apparent from therecord, even without being articulated” (para.55). If the trial judge’s reasons are deficient, the reviewing court must examine theevidence and determine whether the reasons for conviction are, in fact, patent on the record. [21] In R. v.

Gagnon, 2006 SCC 17, at paragraph 13 the court discusses Sheppard and states: Finding an error of law due to insufficient reasons requires two stages of analysis: (1) are the reasons inadequate; (2) if so, do theyprevent appellate review?

In other words, the Court concluded that even if the reasons are objectively inadequate, they sometimes do notprevent appellate review because the basis for the verdict is obvious on the face of the record. [22] The court in Gagnon at paragraph 19 comments that although it has consistently cautioned trial judges to explain their reasonson credibility and reasonable doubt in a way that permits adequate review by an appellate court, it would be counterproductive to dissectthe trial judge’s reasons in a way that undermines the trial judge’s responsibility for weighing all of the evidence at trial. The court

states at paragraph 19, “But appellate review does not call for a word-by-word analysis; rather, it calls for an examination to determinewhether the reasons, taken as a whole, reflect reversible error.” [23] The Court in Gagnon at paragraph 20 goes on to discuss assessments of credibility and indicates, citing L.(H.) v. Canada(Attorney General), 2005 SCC 25, that in the absence of a palpable and overriding error by the trial judge, his or her perceptions shouldbe respected. [24] Thus, trial judges may reject the evidence of an accused because they accept the Crown’s evidence as sufficient proof.

But theymust give reasons for accepting the Crown’s evidence in these circumstances. Position of the Appellant on the Sufficiency of Reasons [25] The Appellant submits that the trial judge decided that Ms. Parrott had exclusive opportunity to steal Ms. Brenton’s money and,therefore, was guilty of theft. Yet, she says, absent are any reasons why he accepted Ms. Brenton’s evidence that no one other than theAppellant could have stolen the money, or why he rejected Ms. Parrott’s evidence that she did not steal the money, or why he preferredthe Crown’s evidence to the evidence of the accused. He did not state that Ms.

Brenton was a reliable or alert observer of the movement of others in the room. Indeed, he declined to find that, as she testified, no one other thanMs. Parrott entered the room when the money was stolen. Nor did he state that Ms. Parrott was an incredible or unreliable witness. [26] For these reasons, says the Appellant, the trial judge erred in law. Although he gave a reason for finding Ms. Parrott guilty—that she had exclusive opportunity to steal the money—it is submitted that this finding misapprehended the evidence.

As McLachlin,C.J.C. noted in M. (R.E.) at paragraph 54, “deficient reasons may cloak a palpable and overriding error, requiring appellate intervention”. Position of the Crown on the Sufficiency of Reasons [27] The Respondent submits that the trial judge gave adequate reasons for the judgment, but even if the trial judge’s reasons wereinadequate, that they do not prevent appellate review because the basis for the verdict is obvious on the face of the record.

Analysis regarding Sufficiency of Reasons [28] The trial judge was left with assessing the credibility of the principal witnesses and, particularly, the Appellant and Ms.Brenton. How ought he to have gone about doing so? I addressed this issue in R. v. R. (W.), 2016 NLTD(G) 153, at paragraph 11, byrelying on the decision of Marshall, J.A. in R. v. G. (C.D.) (1995), (NL CA), 128 Nfld. & P.E.I.R. 312, 27 W.C.B.(2d) 51 (Nfld.

C.A.), who adopted the well-known reasoning of O’Halloran, J.A. of the British Columbia Court of Appeal in Faryna v.Chorny, (BC CA), [1952] 2 D.L.R. 354, 4 W.W.R. (N.S.) 171 (B.C.C.A.): [11] So then, how do I go about assessing the credibility of the witnesses? By what means shall I determine what to believe and whatnot to believe? In the case of [C.D.G.], Marshall, J.A. reviewed the assessment of credibility by a trial judge in a sexual assault trial.

Indoing so, he adopted the well-known reasoning of O’Halloran, J.A. of the British Columbia Court of Appeal in [Faryna]: [40] In convicting the appellant of sexual assault as charged, the judge stated that he found her to be credible and that he accepted herversion of the incident […] [41] The issue of consent in that charge, therefore, was resolved on the basis of credibility. In the course of his comments precedingthis finding the judge observed that, because sexual assault usually takes place in private, the credibility of the two parties involvedbecomes of paramount importance.

No exception can be taken with this statement. However, as O’Halloran, J.A., stated in […] Faryna,where there is a conflict of evidence relating to the credibility of witnesses: “… the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of probabilities which apractical and informed person would readily recognize as reasonable in that place and in those conditions … For a trial judge to say ‘Ibelieve him because I judge him to be telling the truth’ is to come to a conclusion on consideration of only half the problem.

In truth itmay easily be self-direction of a dangerous kind.” [42] These comments are quite apropos to the judge’s analysis of this charge. It is the very private nature of the sexual assault ofwhich the trial judge speaks which makes it critical that the finding of credibility, as important as it is, be tested against “its harmonywith the preponderance of the probabilities”. [Citations in original deleted.] [29] This approach has since been reiterated by the Court of Appeal in Stassis v. Amicus Bank, 2014 NLCA 38, per White, J.A. and,

most recently by Hoegg, J.A. writing for the court in R. v. S.O ., 2019 NLCA 42 . [ 30 ] It is evident that the trial judge accepted the evidence of Ms. Brenton in his decision (and to a lesser degree, Mr. Brenton where it has been corroborated by Ms. Brenton) on the issue of the purse being moved. He found that: It was no doubt the fact that the purse had been moved and that it was now on the floor where [Ms. Brenton] had seen Ms. Parrott that caused the concern that resulted in the discovery of the empty wallet.

Her decision to check the purse is consistent with her testimony that the purse had been moved to where she saw Ms. Parrott was on her hands and knees . It hangs together. Given the location of the purse whether it was on the chair or by the window or whether she put it on the floor by the nightstand, it really doesn’t matter if other people were in the room. The question becomes, who could have stepped into that space around the bed unnoticed by Ms. And Mr. Brenton, open the purse, the wallet, [take] the money, close the purse and move away undetected. Other than Ms.

Parrott, there is no one. [5] [Emphasis added.] [ 31 ] In the same vein, as to the testimony of the Appellant, the trial judge said: Now, the evidence as to when and how long the other couple were in the bathroom is not entirely consistent. While Ms. Brenton may be sure that the others were in the bathroom until she discovered the money missing. Ms. Parrott contradicts this. So, if I’m left in doubt on this point as to who was in the room at what time, and I’m not talking about the bathroom, where are we [ sic ]. Well, it’s important to consider the purse.

I have no doubt that there was a purse; both the Benton’s remember it. It is a very common

article for a woman to carry a purse, just as it is common for a man to carry a wallet. If Ms. Brenton thought she had a purse and then discovered after Ms. Parrott left that there was no purse we would be here today hearing how her purse, rather than her money was stolen. How Ms. Parrott did not see this purse is a mystery to me. [6] [ 32 ] It is implicit in the foregoing extract from his decision that the trial judge rejected the evidence of the Appellant when she said that she did not see the purse. This is the only direct reference he made to her credibility.

But, of course, it was open to him to accept some, all, or none of the Appellant’s testimony. What he did not articulate, however, was why he did not believe the Appellant’s denial of taking the money. In terms of the W. (D.) analysis, we can only infer that the trial judge did not accept the testimony of the Appellant on this point as well. But we have no basis for concluding that, despite not believing her testimony, the trial judge was not left with a reasonable doubt by it. We are left to infer his reasoning from the record as a whole.

Therefore, the reasons of the trial judge are deficient in this respect in a circumstantial evidence case based upon credibility such as this one. [ 33 ] But such a deficiency may not be enough to constitute reversible error. I must now ask myself whether the reasons prevent appellate review ( Gagnon at paragraph 13 ). [ 34 ] In the context of the evidence as a whole, it is obvious that the trial judge accepted the testimony of Ms. Brenton that the reason she checked the purse was because it had been moved to the floor where she had seen the Appellant. As he stated, the evidence of Ms.

Brenton “hangs together” and consequently he assessed the credibility of the witnesses’ testimony against its respective harmony with the preponderance of the probabilities presented based upon the totality of the evidence adduced as called for in Faryna . [ 35 ] The trial judge’s conclusion that he was satisfied beyond a reasonable doubt that the Appellant stole the money is what a practical and well-informed person would readily recognize as reasonable in that place and in those conditions.

This turns on the third branch of the W. (D.) principles: whether, even if not left in doubt by the evidence of the Appellant, on the basis of the evidence that he did accept he was convinced beyond a reasonable doubt of her guilt. [ 36 ] This is not a case like Dinardo where serious deficiencies in the complainant’s testimony were not addressed by the trial judge (the mentally challenged complainant and others testified that she often made things up).

Nor is it a case like P. (G.R.) where the evidence established that the accused did not smoke, yet the complainant testified that she smelled smoke on her assailant, and the reasons for convicting the accused rested largely on his opportunity to commit the offence. [ 37 ] As stated above, in finding the Appellant guilty the trial judge should have stated clearly why he rejected the evidence of the Appellant, including why it did not leave him with a reasonable doubt.

Or, he should have explained why he accepted the evidence of the Crown as proving the charge beyond a reasonable doubt (and thus implicitly rejecting the testimony of the Appellant). Yet, I am not prepared to find that the decision is so deficient so as to constitute reversible error. His reasons for accepting the evidence of Ms. Brenton are clear: she testified that she had $200 in her purse after she came back from having a coffee; she noticed the Appellant was on the floor near where the purse had been moved; this aroused a suspicion in Ms.

Brenton and so she checked the purse to find that the $200 was no longer there. The trial judge stated that he did not believe the Appellant when she testified that she had not seen the purse. Consequently, in the context of the evidence as a whole, he did not believe her denial of stealing the money and went on to conclude that he was not left with a reasonable doubt as to her guilt. [ 38 ] Thus, although I conclude that the trial judge’s reasons are deficient, considering them in the context of the entirety of the evidence, the reasons for conviction are patent on the record.

That is, it is obvious why the trial judge found the Appellant guilty. He examined the law relating to reasonable doubt, testimony by an accused, and a trial based upon circumstantial evidence. He was alive to and did not erroneously instruct himself as to any of these issues. The record as a whole provides ample basis upon which I can review the trial judge’s decision and find that no reversible error was made.

Misapprehension of Material Evidence [39] As an error of fact, a misapprehension of evidence must meet the standard of “palpable and overriding error” (see S.O., citing R.v. Vokurka, 2013 NLCA 51, aff’d 2014 SCC 22, quoting R. v. Clark, 2005 SCC 2). The error must be “readily obvious” (see Vokurka atparagraph 21 quoting R. v. Sinclair, 2011 SCC 40, at paragraph 33. In addition, as Binnie, J. emphasized in R. v. Lohrer, 2004 SCC 80, atparagraph 10, quoting Rothman, J.A. of the Quebec Court of Appeal in his dissent in R. v.

C. (R.) (1992), (SCC), 49Q.A.C. 37, 81 C.C.C. (3d) 417, at paragraph 10, that the appellate court must be satisfied that the trial judge “erred in his appreciation ofthe evidence in a manner that could have affected the outcome” (underlining in original). [40] “A misapprehension of the evidence may refer to a failure to consider evidence relevant to a material issue, a mistake as to thesubstance of the evidence, or a failure to give proper effect to evidence” (see R. v. Morrissey, (ON CA), 22 O.R. (3d)514, 80 O.A.C. 161, at paragraph 83).

Although this ground of appeal may entail a broad review of the trial judge’s assessment of theevidence, the applicable standard is stringent. The misapprehension of evidence must go to “substance rather than to the detail”, must be“material rather than peripheral to the reasoning of the trial judge”, and must be “essential…‘in the reasoning process resulting in aconviction’” (see Lohrer, paragraph 4). [41] This was a case where the principle issue was the credibility of the witnesses. We have already canvassed how a trial judge is toconduct such an assessment in accordance with the principles set out in Faryna.

To this, I would add the comments of Hoegg, J.A. atparagraph 16 of S.O.: “Assessing the credibility of witnesses is the province of trial judges, and many factors inform the result.Deference is owed to their assessments unless clear error is demonstrated.” Position of the Appellant on Misapprehension of the Evidence [42] Simply put, the Appellant submits that the trial judge failed to consider Mr. Brenton’s inattention when he found that no one butMs. Parrott “could have stepped into that space around the bed unnoticed by Ms. And Mr.

Brenton, open the purse, the wallet, [take] themoney, close the purse and move away undetected”[7] (emphasis added). This, she submits, constitutes material error. The Appellantconceded that Ms. Brenton did not show any obvious signs of inattention. Nevertheless, she says, because the trial judge relied upon Mr.Brenton’s evidence as well in finding that Ms. Parrott had exclusive opportunity to steal the money, he erred in his appreciation of theevidence in a manner that could have affected the outcome.

Position of the Crown on Misapprehension of the Evidence [43] The Crown submits that although the trial judge gave significant consideration to the evidence of Mr. Brenton, he made nomisapprehension of that testimony. Crown counsel points to where the trial judge stated, “I believe that [Joseph Brenton] was beingtruthful from his point of view, but I’m not so confident about his accuracy.”[8] Furthermore, the trial judge found issue with certain ofhis testimony, for example, about where the purse was in the hospital room; whether Ms.

Parrott threw the purse or not; and whether theother room occupants were present in the hospital room while Ms. Parrott was cleaning.[9] That is, the Crown maintains that the trialjudge found Mr. Brenton to be credible but lacked confidence in his reliability as a witness. [44] Nevertheless, the Crown submits that the trial judge took no issue with Mr. Brenton’s testimony that there was no one else nearthe purse other than Ms. Parrott, Mr. Brenton and Ms. Brenton. The Crown says that in his testimony, Mr. Brenton was clear and notconfused on this issue which was corroborated by Ms. Brenton’s testimony.

The trial judge accepted that the space in question was thatof a typical hospital bed and night stand and found that no one but Ms. Parrott could have stolen the money. Consequently, submits theCrown, the trial judge did not err in his apprehension of the evidence of Mr. Brenton. He weighed it with the other evidence(specifically that of Ms. Brenton and Ms. Parrott) and found that Mr. Brenton did not notice anyone else in his immediate area becausethere was no one else in this area.

Analysis on the Issue of Misapprehension of the Evidence [45] I agree with the Crown that the trial judge did not misapprehend the evidence. The Appellant places too much emphasis on thestatement by the trial judge that no one but Ms. Parrott “could have stepped into that space around the bed unnoticed by Ms. And Mr.Brenton, open the purse, the wallet, [take] the money, close the purse and move away undetected”[10] (emphasis added). From thecontext of the decision as a whole, it is clear that the trial judge did not assign equal weight to the evidence of Ms. Brenton and of Mr.Brenton; the testimony of Ms.

Brenton was relied upon heavily while Mr. Brenton’s testimony was relied upon only where it wascorroborated by Ms. Brenton. Both were found to be credible witnesses, although Ms. Brenton’s testimony was the more reliable overall. [46] The trial judge correctly summarized Villaroman. In a trial where the evidence is based all or in a large part upon circumstantialevidence - such as this one - if there are reasonable inferences that arise from the evidence other than guilt, then the Crown has not metthe onus of proving the charge beyond a reasonable doubt.

The key evidence as accepted by the trial judge was that Ms. Brenton had$200 in her purse while she was visiting her husband in hospital that day. She confirmed this after she returned from having a coffee andput $20 back in her purse. During a period of time when no one other than she and Mr. Brenton were in the area of the purse, theAppellant came in to clean the room in that area. The Appellant spent part of her time there on the floor. Shortly following theAppellant’s departure from the area, Ms. Brenton noticed the purse had been moved to the floor, became suspicious, and checked it.

Upon doing so, she observed that the $200 was no longer there. All of these evidentiary findings were supported by the testimony at trial.No reasonable inferences from the evidence arise other than that the Appellant stole the money. [47] I am unable to conclude that the trial judge made a palpable and overriding error by misapprehending material evidence.

dispostion [ 48 ] The appeal is denied. _____________________________ Robert P. Stack Justice