2021 NLSC 115, 2021 NLSC 115

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Noseworthy, 2021 NLSC 115 Date : September 14, 2021 Docket : 202006G0027 HER MAJESTY THE QUEEN v . ROBERT NOSEWORTHY Before: Justice Katherine O'Brien On Appeal From: Decisions of the Provincial Court of Newfoundland and Labrador, R. v. Noseworthy (Complaint of T.D.) , 2019 NLPC 0819 A00001 and R. v. Noseworthy (Sentencing) , 2020 NLPC 0819 A00001. Place of Hearing: Grand Bank, Newfoundland and Labrador

Date of Hearing: June 18, 2021

Summary: The Appellant appealed his convictions for five counts under the Criminal Code and his sentence for those five counts and four others.With respect to the convictions, the Appellant challenged the trial judge’s findings of credibility and his consideration of the Appellant’sevidence. The Appellant also alleged errors in the trial judge’s application of the law, including the rule in Browne v. Dunn, the law ofself-defence, and the test for circumstantial evidence.

The Appellant also sought a new trial on the basis that the trial judge had wronglyremoved him from the courtroom and had wrongfully denied him an adjournment. Although the Court found that the Appellant’sremoval from the courtroom was in error, that error could be remedied by the curative proviso of section 686(1)(b)(iv) of the CriminalCode. The Court dismissed the Appellant’s appeal from his convictions on all grounds. With respect to the sentence, the Appellantalleged that the sentence was unfit. The Court dismissed this ground of appeal as well. Appearances: Glen W. Picco, Q.C. and Jennifer A.

McCarthy Appearing on behalf of the Appellant Alison J. Manning Appearing on behalf of the Crown Authorities Cited: CASES CONSIDERED: Browne v. Dunn (1893), 1893 CanLII 65 (FOREP), 6 R. 67 (H.L.); R. v. W. (D.), (SCC),[1991] 1 S.C.R. 742; R. v. Kienapple, (SCC), [1975] 1 S.C.R. 729; Housen v. Nikolaisen, 2002 SCC 33; R. v. Ryan, 2011NLCA 53; R. v. Simon, 2010 ONCA 340; R. v. Meunier, (CSC), [1966] S.C.R. 399; R. v. Hertrich (1982), (ON CA), 137 D.L.R. (3d) 400, 67 C.C.C. (2d) 510 (Ont. C.A.); R. v. E. (F.E.), 2011 ONCA 783; R. v. Cloutier (1988), (ON CA), 43 C.C.C. (3d) 35, 4 W.C.B. (2d) 300 (Ont. C.A.); R. v.

Simon, 2010 ONCA 754; R. v. Culp (1987), B.C.W.L.D.2329, 2 W.C.B. (2d) 242 (B.C.C.A); R. v. Mohebtash, 2007 BCCA 307; R. v. Best, 2016 NLCA 10; Navarro v. Doig River First Nation,2015 BCSC 2173; R. v. Jordan, 2016 SCC 27; R. v. Dexter, 2013 ONCA 744; R. v. Blom (2002), (ON CA), 162O.A.C. 238, 167 C.C.C. (3d) 332 (Ont. C.A.); R. v. Quansah, 2015 ONCA 237, leave to appeal refused [2016] S.C.C.A. No. 203, [2016]C.S.C.R. No. 203; R. v. Barnes, 2021 NLCA 15; R. v. R.P., 2012 SCC 22; R. v. MacIsaac, 2013 NLCA 26; R. v. Smith, 2020 BCCA 271,rev’d 2021 SCC 16; R. v. M. (R.E.), 2008 SCC 51; R. v.

Cinous, 2002 SCC 29; R. v. Villaroman, 2016 SCC 33; R. v. Butler, 2019 NLCA21; R. v. McGrath, 2009 NLTD 45; R. v. Tulk, 2014 NLTD(G) 18 STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46; Charter of Rights and Freedoms,

Part I of the Constitution Act,1982, being

Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11; Canada Evidence Act, R.S.C., 1985, c. C-5; Access to Informationand Protection of Privacy Act, 2015, SNL 2015, c. A-1.2 RULES CONSIDERED: Rules of the Provincial Court of Newfoundland and Labrador in Criminal Proceedings, SI/2004-134 REASONS FOR JUDGMENT O'Brien, J.: INTRODUCTION [1] On November 4, 2019, the Appellant was found guilty following trial of the following offences under the Criminal Code,R.S.C. 1985, c. C-46: assault (section 266), mischief by damaging property (section 430(4)), theft (section 334(a)), breach of probation

(section 733.1) and breach of recognizance (section 811)) (the “Conviction Decision”). These charges arose from events on December31, 2018 that took place at the home of T.D., an intimate partner of the Appellant. The Appellant and T.D. were the only witnesses to theevents. The trial judge found that the Appellant and T.D. had an argument that led to a physical altercation during which the Appellantassaulted T.D. and willfully caused damage to her house and personal property. He also found that, a day or so earlier, the Appellantstole T.D.’s dog grooming shears.

The Appellant was sentenced for these offences on February 17, 2020 (the “Sentence Decision”). Hehas appealed both the conviction and sentence. [2] On December 3, 2019, the Appellant was found guilty following trial of the following Criminal Code offences: breach ofjudicial undertaking (section 145(3)), breach of probation (section 733.1), breach of undertaking given to an officer (section 145(5.1))and breach of recognizance (section 811). These charges arose from the Appellant contacting the mother of his children by text on March15, 2019, when he was prohibited from doing so.

The Appellant was sentenced for these offences on February 17, 2020 in the SentenceDecision. He has appealed the sentences only in relation to these charges. ISSUES [3] In relation to his conviction on the December 31, 2018 charges, the Appellant has raised the following grounds of appeal: 1. There was a miscarriage of justice when the trial judge removed the Appellant from the courtroom during his trial while the trialjudge and legal counsel discussed an evidentiary issue. 2.

There was an error of law or miscarriage of justice when the trial judge refused the Appellant’s request for an adjournment so thathe could get a call log from the Royal Canadian Mounted Police (“RCMP”). 3. The trial judge erred in his application of the rule in Browne v. Dunn (1893), 1893 CanLII 65 (FOREP), 6 R. 67 (H.L.), in assessingcredibility. 4. The trial judge misapprehended the evidence or failed to give proper effect to the evidence relevant to credibility, and the verdicts,based on his findings of credibility, were unreasonable. 5.

The trial judge erred in assessing the Appellant’s evidence pursuant to the principles set out in R. v. W. (D.), (SCC),[1991] 1 S.C.R. 742. 6. The trial judge erred in applying the legal test for self-defence. 7. The trial judge erred in applying the legal test for circumstantial evidence by not considering reasonable inferences other than guiltin relation to the charges of theft and mischief to property. [4] In relation to his appeal of his sentences, the Appellant initially alleged that the trial judge erred in his application of theprinciples set out in R. v. Kienapple, (SCC), [1975] 1 S.C.R. 729.

The Appellant withdrew that ground of appeal,however, and instead argued that the sentences imposed were unfit. I have dealt with this as Issue 8. LAW RELEVANT to appeals [5] The conviction appeal engages section 686(1) of the Criminal Code: 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; [6] The sentence appeal engages section 687(1) of the Criminal Code: 687

(1) Where an appeal is taken against sentence, the court of appeal shall, unless the sentence is one fixed by law, consider the fitnessof the sentence appealed against, and may on such evidence, if any, as it thinks fit to require or to receive, (

a) vary the sentence within the limits prescribed by law for the offence of which the accused was convicted; or (

b) dismiss the appeal.

[7] The standard of appellate review on questions of law is correctness and on findings of fact is palpable and overriding error. For questions of mixed fact and law and inferences of fact, generally the standard is palpable and overriding error although this can varydepending on the inferences or the mixture of fact and law (see: Housen v. Nikolaisen, 2002 SCC 33, R. v. Ryan, 2011 NLCA 53). Correctness is a lower standard than palpable and overriding error. If an error of law has occurred, the correctness standard permitsappellate judges to substitute their findings for those of the trial judge.

If the palpable and overriding error standard applies, appellatejudges must show great deference to trial judges with respect to their findings and inferences. [8] Having reviewed the law generally applicable to appellate review, I will analyze each issue in turn. Issue 1: Removal of the APPELLANT from the Courtroom Law related to the accused’s right to be present at trial [9]

Section 650 of the Criminal Code provides that an accused has the right to be present in court during his or her trial, subject tocertain exceptions: 650

(1) Subject to subsections (1.1) to (2) and

section 650.01, an accused, other than an organization, shall be present in court during thewhole of his or her trial.

(1.1) If the court so orders, and if the prosecutor and the accused so agree, the accused may appear by counsel or by closed-circuittelevision or videoconference, for any part of the trial other than a

part in which the evidence of a witness is taken.

(1.2) If the court so orders, an accused who is confined in prison may appear by closed-circuit television or videoconference, for any partof the trial other than a

part in which the evidence of a witness is taken, as long as the accused is given the opportunity to communicateprivately with counsel if they are represented by counsel.

(2) The court may (

a) cause the accused to be removed and to be kept out of court, where he misconducts himself by interrupting the proceedings so that tocontinue the proceedings in his presence would not be feasible; (

b) permit the accused to be out of court during the whole or any part of his trial on such conditions as the court considers proper; or (

c) cause the accused to be removed and to be kept out of court during the trial of an issue as to whether the accused is unfit to standtrial, where it is satisfied that failure to do so might have an adverse effect on the mental condition of the accused.

(3) An accused is entitled, after the close of the case for the prosecution, to make full answer and defence personally or by counsel. [10] An exclusion of an accused from trial that does not fall into one of the exceptions of section 650(2) and does not amount to abreach of the Charter of Rights and Freedoms,

Part I of the Constitution Act, 1982, being

Schedule B of the Canada Act 1982 (U.K.),1982, c. 11 (“Charter”)[1], may be subject to the curative proviso of section 686(1)(b)(iv) of the Criminal Code: 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 […] (

b) may dismiss the appeal where […] (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; … [11] Section 686(1)(b)(iv) of the Code came into force on December 4, 1985. Prior to that, procedural errors that caused trial courtsto lose jurisdiction were incurable even on appeal (R. v. Simon, 2010 ONCA 754 at para. 119). As such, cases such as R. v. Meunier, (CSC), [1966] S.C.R. 399 and R. v.

Hertrich (1982), (ON CA), 137 D.L.R. (3d) 400, 67 C.C.C. (2d)510 (Ont. C.A.), relied upon by the Appellant, must now be considered in light of the change in the law. [12] In the context of section 686(1)(b)(iv), “prejudice” includes both prejudice to an individual accused’s ability to defendthemselves and receive a fair trial, and also to prejudice in the broader sense of prejudice to the appearance of the due administration ofjustice (R. v. E. (F.E.), 2011 ONCA 783 at para. 33; R. v. Cloutier (1988), (ON CA), 43 C.C.C. (3d) 35, 4 W.C.B. (2d)300 (Ont. C.A.) at para. 51).

An appellant need not show that they have suffered prejudice in order to deprive the Crown of the curativeproviso, rather, it is the opinion of the appellate court that prevails (Cloutier, para. 48). In deciding whether the appellant has sufferedprejudice by reason of their exclusion, the appellant court should consider all of the circumstances (E. (F.E.), para. 36). The remedy isdiscretionary (Cloutier, para. 51).

Facts related to the Appellant’s removal from the courtroom [13] During examination-in-chief of the Appellant at trial, Crown counsel objected to defence counsel seeking to tender certain textmessages. Before the objection was dealt with, the trial judge asked the Appellant to leave the courtroom while he spoke to counsel.Neither counsel raised any objection or concern with the request. After the Appellant left the courtroom, the trial judge asked defencecounsel questions and made statements about the law of evidence which included a discussion of the Canada Evidence Act, R.S.C.,1985, c. C-5 and Browne v. Dunn.

The exchange took place between the trial judge, defence counsel and Crown counsel. The trial judgeidentified three problems that he felt defence counsel had in seeking to admit the text messages. The trial judge then asked defencecounsel if he wanted to have a voir dire or if he wanted to take some time and let the Crown counsel “see what he had”. Finally, the trialjudge asked defence counsel if he wanted to take a short break, which he did. [14] After the break, the Appellant returned to the courtroom with counsel.

The trial judge addressed him and, after explaining thathe did not like having the accused not present for the proceedings, he proceeded to summarize what he had discussed with counsel in theAppellant’s absence. His

summary was brief but generally covered what was discussed. Following the

summary, defence counselwithdrew his “attempt to tender” the text messages. Specifically, he stated, “we are going to be withdrawing our attempt to tender. We’vegone through it and these, I’ve been told they’re not even - these are from a different time. […] Yeah, they’re not relevant to –” (seeTranscript, pp 117-123.) Analysis of the Appellant’s removal from the courtroom [15] There is no doubt that the Appellant had the right to be present in the courtroom for his trial and that none of the exceptions ofsection 650(2) of the Criminal Code applied.

The trial judge did not give a reason for removing the Appellant and I am unable todetermine from the transcript what his motivation might have been. I find no evidence that the Appellant was misconducting himself asanticipated by section 650(2)(a), nor has Crown counsel argued that this subsection would be applicable. As such, I find that the trialjudge erred when he removed the Appellant from the courtroom. [16] There is also no doubt that this error amounted to a procedural irregularity and that the trial court had jurisdiction over the classof offences of which the Appellant was convicted.

Thus to determine whether I should exercise my discretion to apply the curativeproviso of section 686(1)(b)(iv) of the Criminal Code, I am left to consider whether the Appellant suffered any prejudice or whetherthere was, more generally, prejudice to the appearance of the due administration of justice. [17] In R. v. Simon, 2010 ONCA 754, Watt, J.A. laid out a non-exhaustive list of factors to assist me with this task: 123 To determine whether a breach of s. 650(1) may be salvaged by the application of the proviso in s. 686(1)(b)(iv) requires aconsideration of all the circumstances surrounding the violation.

Relevant factors may include, but are not limited to, (

i) the nature andextent of the exclusion, including whether it was inadvertent or deliberate; (ii) the role or position of the defence counsel in initiating orconcurring in the exclusion; (iii) whether any subjects discussed during the exclusion were repeated on the record or otherwise reportedto the accused; (iv) whether any discussions in the accused's absence were preliminary in nature or involved decisions about procedural,evidentiary or substantive matters; (

v) the effect, if any, of the discussions on the apparent fairness of trial proceedings; and (vi) theeffect, if any, of the discussions on decisions about the conduct of the defence. [18] In this case, the exclusion was deliberate and so the first of these factors weighs in favour of a finding of prejudice. However,none of the other factors do. The exclusion was of short duration, defence counsel did not object, the discussion was summarized for theAppellant on his return to court, and it was preliminary in nature.

Importantly, nothing seems to have turned on the discussion as defencecounsel appears to have decided not to seek to admit the text messages because he determined that they were not relevant. Additionally,the discussion was not about the substance of the evidence but rather about legal issues surrounding its admission. Furthermore, the trialjudge did not make any ruling, he just set out some considerations and then gave defence counsel time to determine whether he wanted toenter a voir dire.

In looking at the circumstances as a whole, I cannot find any adverse effect on trial fairness or any prejudice to theAppellant. [19] Having considered the above and having found no prejudice to the Appellant, I exercise my discretion and dismiss the appealon this ground pursuant to the curative proviso of section 686(1)(b)(iv) of the Criminal Code. I note that the same result has occurred incases with somewhat similar facts: R. v. Culp (1987), B.C.W.L.D. 2329, 2 W.C.B. (2d) 242 (B.C.C.A), E. (F.E.), Cloutier, and R. v.Mohebtash, 2007 BCCA 307. A note on

section 11(

d) of the Charter [20] The Appellant initially submitted that the trial judge’s request that he leave the courtroom was a breach of his

section 11(d)Charter right to a fair trial. However, he filed no law or argument in support of that position. At the oral hearing, I requested that theAppellant file further material in relation to this issue because the material before me was insufficient. The Appellant took advantage ofthe opportunity and filed further material but it focused on his right to be present at trial pursuant to

section 650 of the Criminal Code.He did not file anything in relation to

section 11(

d) of the Charter and I thus understand that he has abandoned that argument. This is notsurprising, as I see no basis for finding a breach of the Appellant’s

section 11(

d) Charter right in these circumstances. Issue 2: ReFUSAL of the Request for adjournment The law related to adjournments [21] The Newfoundland and Labrador Court of Appeal considered appellate review of a trial judge’s refusal to grant an adjournmentin R. v. Best, 2016 NLCA 10: 29. A judge’s decision respecting whether an adjournment ought to be granted for the purpose of procuring a witness is discretionary,and reviewable on appeal if the judge did not exercise his discretion judicially (R. v. MacDonald (1998), (NL CA),169 Nfld. & P.E.I.R. 351 (Nfld. C.A.)). MacDonald describes the judicial exercise of discretion as one that is based on reasons well

founded in law (paragraph 3). 30 . MacDonald identifies three factors for consideration of a request for an adjournment: 1) whether the proposed evidence would likely be material; 2) whether there was neglect by the lawyer seeking the adjournment in procurement of the witness; and 3) whether there is a reasonable expectation that the witness can be available at a reasonably close future date. [ 22 ] Although Best and MacDonald were specifically considering requests for adjournment to procure a witness, I find their guidance equally applicable to an adjournment to procure a document, as was the case here.

The three factors from MacDonald are important considerations but I do not take Best or MacDonald to limit the factors for consideration to these three. Other cases have listed factors to consider for requests for adjournments (see e.g. Navarro v. Doig River First Nation , 2015 BCSC 2173 ), and a trial judge should be able to consider all of the relevant circumstances in making such a decision. The trial judge’s consideration and refusal of the adjournment request [ 23 ] It is helpful to set out a timeline of events.

The Appellant testified to having called the RCMP on the night in question after he left T.D.’s home. On July 23, 2019, after his testimony was finished, the Appellant indicated that he wanted to seek a call log from the RCMP (Transcript, page 174). He indicated to the court that it would take a couple of weeks to obtain (Transcript, page 180). The trial judge allowed the request and the matter was set over to August 14, 2019, when the Appellant had another matter before the court. That other matter was before the court on August 14 and 16 and again on October 1 and 17.

As I understand it, all of the Appellant’s matters (there were three) were set over from date to date. [ 24 ] The present matter was not dealt with again until the October 17 appearance. At that time, the Appellant’s counsel sought an adjournment because he had not yet received the call log. He indicated to the court that he had made a request under the Access to Information and Protection of Privacy Act, 2015 , SNL 2015, c. A-1.2 (“ ATIPPA ”) to the RCMP on August 14, and his client had also made one on August 7, but that the RCMP had not yet processed the request.

There was no discussion as to why the ATIPPA request was not made on or near July 23 when the adjournment was initially granted, or why counsel waited until the first return date of August 14 to make his request or why the Appellant waited until August 7. The trial judge refused the request for adjournment. [ 25 ] The trial judge’s reasons for refusal are addressed at pages 324 to 327 of the Transcript and also in paragraphs 54 to 57 of the Conviction Decision.

His reasons included that the Appellant’s request for an adjournment failed to comply with the Rules of the Provincial Court of Newfoundland and Labrador in Criminal Proceedings , SI/2004-134 because no notice had been given and no written application had been filed. He also recited some of the history of the file, noting the long period of time that the Appellant had to get the documents. He further noted that no subpoena had been issued to compel the record holder to appear before the court.

Ultimately, he found that it was not appropriate to allow further delay in the matter. [ 26 ] It is clear from the trial judge’s reasons that he considered the second factor from MacDonald , that is, that there was neglect in the procurement of the document. He did not specifically address the third MacDonald factor, when the evidence would be available, but I note that neither the Appellant nor his counsel indicated how long of an adjournment was sought. Additionally, the trial judge considered the history of the file and expressed concern about delay.

I find this to be an appropriate consideration in the circumstances as timely trials are important to maintaining overall public confidence in the administration of justice ( R. v. Jordan , 2016 SCC 27 , paras. 25 to 28 ). I also find that it was appropriate for the trial judge to consider the noncompliance with the rules. As he noted at paragraph 57 of the Conviction Decision, if notice is given as required, the court may be able to use scheduled docket time to hear some other matter.

The proper administration of justice is a valid consideration on an adjournment application ( Navarro , para. 20 ). [ 27 ] The trial judge did not address the first MacDonald factor, that is, whether the call log was material to the issues before the court. However, a review of the transcript and of the Conviction Decision, leads me to conclude that the call log was not particularly material. The Appellant gave contradictory testimony as to when he called the RCMP.

In his assessment of the Appellant’s credibility, which is canvassed in detail later in this decision, the trial judge held this contradiction against the Appellant. In so doing, the trial judge was not concerned about whether the Appellant had called the RCMP or how many times he had called them. He wrote at paragraph 69 of the Conviction Decision: “It is unimportant how often the accused might have called the police.

What is important, however, is that he gave inconsistent descriptions of calling the police”. [ 28 ] The RCMP call log might have resolved when and how often calls were made, but it could not affect the contradictory testimony the Appellant had given. As such, I cannot see how it could have had much effect on the trial judge’s credibility assessment. Certainly, it would not have had any direct probative value to the question of whether the Appellant had assaulted T.D.

As such, I find that the relevance of the RCMP call log to the proceedings was low. [ 29 ] In exercising his discretion not to grant an adjournment, the trial judge considered relevant factors founded in law and explained his reasons for the denial. Even though he did not specifically consider the materiality of the proposed evidence, I find that the materiality was low such that this factor would have weighed against an adjournment. As a result, I find no reason to interfere with the trial judge’s decision in this regard.

Issue 3: the Rule in BrownE v. Dunn The rule in Browne v. Dunn [30] In Browne v. Dunn, Lord Herschell, L.C. explained that if a party intends to impeach a witness called by an opposing party, theparty who seeks to impeach must give the witness an opportunity, while the witness is in the witness box, to provide any explanation thewitness may have for the contradictory evidence. This rule, most often referred to as the rule in Browne v. Dunn, is rooted in trialfairness. Compliance with the rule does not require that every piece of evidence on which a party wants to contradict a witness be put tothe witness.

Only the nature of the proposed contradictory evidence and its significant aspects need be put to the witness. (R. v. Dexter,2013 ONCA 744 at para. 18.) [31] If the rule is not adhered to, there are at least two permissive options to rectify the breach. One is for the trial judge to takeinto account the failure to cross-examine when assessing a witness’s credibility and deciding the weight to be given to that witness’sevidence. Another is to allow counsel to recall the witness whose evidence has been impeached without notice.

Deference is owed to atrial judge’s exercise of discretion in deciding how to deal with a breach of the rule unless an error in principle is shown (Dexter, atparas. 21 and 22; R. v. Blom (2002), (ON CA), 162 O.A.C. 238, 167 C.C.C. (3d) 332 (Ont. C.A.), at para. 20). [32] In considering the rule in Browne v. Dunn on appeal in R. v. Quansah, 2015 ONCA 237, leave to appeal refused [2016]S.C.C.A. No. 203, [2016] C.S.C.R.

No. 203, Watt, J.A. made the following comments: [88] Two preliminary and oft-made observations serve as my point of departure for the discussion that follows. [89] First, it is too easily overlooked that the rule in Browne v. Dunn is not some ossified, inflexible rule of universal and unremittingapplication that condemns a cross-examiner who defaults to an evidentiary abyss.

The rule is grounded in fairness, its applicationconfined to matters of substance and very much dependent on the circumstances of the case being tried: Verney, at p. 376; R. v.Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 421, at para. 49. [90] Second, and as a consequence of the fairness origins of the rule, a trial judge is best suited to take the temperature of a trialproceeding and to assess whether any unfairness has been visited on a party because of the failure to cross-examine.

Consequently, thetrial judge’s decision about whether the rule has been offended and unfairness has resulted is entitled to considerable deference onappeal: Giroux, at para. 49. The trial judge’s application of the rule in Browne v. Dunn [33] The trial judge found that the Appellant breached the rule in Browne v. Dunn (see Conviction Decision, paras. 33, 78, and 83).A

summary of his findings and the consequence of the breach are set out in paragraphs 83 and 84: Counsel for the accused did not cross-examine the complainant on any alleged gap in time from the time that she went to the floor of theporch to the time that she went outdoors. It was never suggested to her during cross-examination that she had chased the accusedupstairs, that she had “raked” his shoulders with her fingernails while he was trying to get his terrier out from underneath the bed. This isa serious omission.

Given the frailties in the evidence of the accused, as discussed above, and nothing the failure to cross-examine the complainant on thispoint, I do not believe that TD went upstairs after the accused while he went to get the dog, if he did. [34] The Appellant submits that he did put the contradictory evidence of substance to T.D. on cross-examination and thus the trialjudge was wrong to apply the rule. He notes that his counsel suggested to T.D. that she broke her fingernails attacking him (Transcript,page 59, line 7-8) and asked her whether he went upstairs to get his dog (Transcript, page 56, lines 15-21).

T.D. replied “absolutely not”to the first suggestion and “if he went and got his dog, Bailey, that must have been when I was outside, when I left the house” to thesecond. Analysis of the trial judge’s application of the rule in Browne v. Dunn [35] While I accept that the Appellant’s counsel asked T.D. generally about whether she had attacked him, I cannot find that thetrial judge erred in finding that the rule in Browne v. Dunn was breached. T.D. was not asked about scratching the Appellant’s backwhile he was allegedly retrieving his dog from under the bed. She was not asked about chasing the Appellant upstairs.

The Appellantentered into evidence a photograph that he described as showing the left side of his back with scratches that he said T.D. had given tohim when he was trying to get his dog (Exhibit RN#2), but this photograph was not shown to T.D. In short, the significant aspects of thisevidence were not put to her. [36] Having found a breach, the trial judge chose to take into account the failure to cross-examine when assessing the Appellant’scredibility and deciding what weight to give to his evidence on these matters. He did not accept the Appellant’s evidence.

This was anoption that was open to the trial judge and his decision is due deference. As such, I do not find that the trial judge erred in applying therule in Browne v. Dunn. Issue 4: the trial judge’s apprehension of the evidence relevant to credibility and the reasonableness of the verdicts [37] The Appellant challenges the Conviction Decision on several grounds that are interrelated. He submits that the trial judge

misapprehended or failed to give proper effect to the evidence relevant to credibility and that the verdicts, based on his findings ofcredibility, were unreasonable and cannot be supported by the evidence. Law related to unreasonable verdicts [38] I have already noted that section 686(1)(a)(

i) of the Criminal Code allows an appeal against conviction if the reviewing court isof the opinion that the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence. JusticeHoegg of the Newfoundland and Labrador Court of Appeal addressed this

section recently in R. v. Barnes, 2021 NLCA 15: 67 The

interpretation of this

section has been developed through a series of Supreme Court of Canada decisions, with the Court’slater decisions building upon and occasionally clarifying the principles set out in the earlier judgments [cites omitted]. 68 In R. v. R.P., 2012 SCC 22, [2012] 1 S.C.R. 746, the Supreme Court referenced several of these decisions and provided a concisestatement of the test to determine whether a verdict is an unreasonable one: 9 To decide whether a verdict is unreasonable, an appellate court must, as this Court held in R. v. Yebes, (SCC), [1987] 2 S.C.R. 168 (S.C.C.), and R. v.

Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381 (S.C.C.), at para. 36, determine whether theverdict is one that a properly instructed jury or a judge could reasonably have rendered. The appellate court may also find a verdictunreasonable if the trial judge has drawn an inference or made a finding of fact essential to the verdict that (1) is plainly contradicted bythe evidence relied on by the trial judge in support of that inference or finding, or (2) is shown to be incompatible with evidence that hasnot otherwise been contradicted or rejected by the trial judge (R. v.

Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3 (S.C.C.), at also paras. 4,16 and 19-21; R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190 (S.C.C.)). [39] In R. v. R.P., 2012 SCC 22, the Supreme Court of Canada went on to consider unreasonableness with respect to findings ofcredibility: 10 Whereas the question whether a verdict is reasonable is one of law, whether a witness is credible is a question of fact.

A court ofappeal that reviews a trial court's assessments of credibility in order to determine, for example, whether the verdict is reasonable cannotinterfere with those assessments unless it is established that they "cannot be supported on any reasonable view of the evidence" (R. v.Burke, (SCC), [1996] 1 S.C.R. 474 (S.C.C.), at para. 7). [40] Justice Hoegg elaborated on how to properly strike the balance between deference and intervention in Barnes. Briefly stated,trial judges are in an advantageous position to assess credibility and their assessment is due great deference on appeal.

Although theircredibility assessments are not unassailable, appellate intervention will be rare (Barnes, paras. 78 and 79). Law related to the misapprehension of evidence [41] The test for misapprehension of evidence was addressed by Rowe, J.A. (as he then was) in R. v. MacIsaac, 2013 NLCA 26: 16 The test for misapprehension of evidence was set out by Doherty J.A. in R. v. Morrissey (1995), (ON CA), 97C.C.C. (3d) 193 (Ont.

C.A.), at paragraph 83: A misapprehension of the evidence may refer to a failure to consider evidence relevant to a material issue, a mistake as to the substanceof the evidence, or a failure to give proper effect to evidence. 17 The misapprehension of the evidence must be such that it could have affected the verdict. As Laskin J.A. wrote in R. v. G.(G.),(1995) (ON CA), 97 C.C.C. (3d) 362 (Ont.

C.A.), at paragraph 59: When an appellate court finds error, it has a duty to consider the nature of the error, its effect on the verdict, and when the verdict isrendered by a judge alone, on the reasoning process by which the verdict was reached. Obviously not every error in the apprehension orappreciation of evidence or in the drawing of a conclusion from evidence warrants quashing a conviction. But s. 686(1)(a)(

i) ofthe Criminal Code requires this court to intervene if the error leads to an unreasonable verdict, or if the error is an error of law whichcannot be cured by s. 686(1)(b)(iii), or if the error results in a miscarriage of justice. 18 In R. v. Lohrer, 2004 SCC 80 , [2004] 3 S.C.R. 732, Binnie J. wrote at paragraph 2: Morrissey, it should be emphasized, describes a stringent standard. The misapprehension of the evidence must go to the substance rather

than to the detail. It must be 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”. [42] Recently, Dickson, J.A. of the British Columbia Court of Appeal addressed the misapprehension of evidence in relation tocredibility findings in R. v.

Smith, 2020 BCCA 271: [45] […] Where, as here, a principal issue at trial is credibility such that the evidence of one witness is accepted and that of anotherwitness is thus excluded, the findings must be based on a correct apprehension of the evidence because “‘[w]rong findings on what theevidence is destroy the basis of findings of credibility’”: R. v. Dewar, 2001 BCCA 561 at para. 23, citing Whitehouse v.Reimer (1980), 1980 ABCA 214 , 116 D.L.R. (3d) 594 at 595 (Alta. C.A.). [46] However, as Justice Stromberg-Stein stated in R. v. Swales, 2014 BCCA 350, it is not enough for an appellant to suggest adifferent

interpretation of the evidence or to point to some evidence that arguably weighs against a judge’s factual findings. Meredifferences in

interpretation of the evidence do not establish that the evidence was misapprehended. Rather, they reflect disagreementwith the judge’s differing view of the evidence: at para. 49. [47] In R. v. Sinclair, 2011 SCC 40, Justice LeBel described the circumstances in which a misapprehension of the evidence will bematerial to the judge’s reasoning, and thus amount to a miscarriage of justice within the meaning of s. 686(1)(a)(iii) of the CriminalCode, namely, “if striking it from the judgment would leave the trial judge’s reasoning on which the conviction is based on unsteadyground”: at para. 56. In R. v.

Kaemmer, 2019 BCCA 136, Justice Hunter distilled the legal principles that emerged from Sinclair: [28] Two principles emerge from the

summary of the law set out in Sinclair: (

i) a misapprehension of the evidence will only vitiate a conviction if the error was a central element of the judge’sreasoning on which the conviction is based; and (ii) the means of determining whether the error was a central element of the judge’s reasoning is to consider whetherstriking it from the judgment would leave the trial judge’s reasoning on unsteady ground. [43] Justice Dickson was writing in dissent, however, an appeal of the decision to the Supreme Court of Canada was allowed,substantially for her reasons.

In a brief oral decision, reported at 2021 SCC 16, Brown, J. stated on behalf of the court: Determining whether a misapprehension of evidence has caused a miscarriage of justice requires that the appellate court assess thenature and extent of the error and its significance to the verdict (R. v. Morrissey (1995), (ON CA), 97 C.C.C. (3d) 193(Ont. C.A.), at p. 221). It is a stringent standard, met only where the misapprehension could have affected the outcome (R. v.Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 7).

While testimonial inconsistencies may be relevant when assessing a witness’scredibility and reliability, only some are of such significance that failing to consider them will meet this standard. In this case, we agree with Dickson J.A. that the inconsistencies — assuming they are inconsistencies — between the complainant’sstatements to her friend shortly after the assault and her trial testimony are not significant.

While it may have been preferable for the trialjudge to address them, her failure to do so does not cast doubt on her assessment of the complainant’s credibility and reliability or thesafety of the conviction. Consequently, the threshold for a miscarriage of justice has not been met. Submissions of the Appellant regarding evidence of T.D.’s credibility [44] The Appellant has identified evidence that he says was not properly considered by the trial judge in assessing T.D.’scredibility. He has reviewed a considerable amount of the evidence in his factum.

In some cases he has just pointed to instances wherehis testimony and T.D.’s testimony differed. In a number of these instances, his contradictory testimony was not put to T.D. on cross-examination. In some instances, he has identified portions of T.D.’s evidence but has not identified any specific inconsistency. Havingreviewed the transcript, I am not satisfied that there are any inconsistencies in T.D.’s evidence. I will not review all of the examples theAppellant has identified, but I will review the more significant ones.

Evidence regarding the missing shears [45] T.D. testified that she realized that her dog grooming shears were missing the night after the Appellant was at her house for afish fry in her shed. She was not certain of the date but the Appellant testified that it was the night of December 29 into the morning ofDecember 30. He spent the night at her house. T.D.’s evidence was that when she went to her shed (which she also used as a doggrooming salon) the next morning to clean up, she discovered that the shears were missing. T.D. testified that she and the Appellant werethe only two in the shed.

The Appellant has submitted that T.D. made no mention of asking him about the shears when she saw him onDecember 31. This is not accurate. T.D. testified that she had asked him if he had seen them and he said no (Transcript page 6, lines 19,20). Although the Appellant testified that T.D. had posted on Facebook asking if anyone had seen someone enter her property that couldhave taken the shears, this alleged post was not put to T.D. when she was on the stand. I did not find any inconsistency in T.D.’sevidence with respect to the shears.

Evidence of previous break up [ 46 ] The Appellant submits that he had text messages showing an attempt by him to break up with T.D. on December 16. He says T.D. first denied knowledge of this event but upon being shown the text messages admitted it happened. No cite in the transcript was provided. I did not find where T.D. purportedly denied an attempt to break up with her on December 16. She did “somewhat” recall the texts when they were shown to her (Transcript, page 48, line 10). She questioned what they had to do with the incidents of late December.

The evidence of both parties was that they were together on the night of the fish fry. I did not find any inconsistency in T.D.’s evidence on this point. Door spring [ 47 ] The Appellant says that T.D. testified that the door was open throughout the encounter in the porch (where the assault was found to have happened), but later admitted that there was a spring on the door. No cite in the transcript was provided. T.D. testified that the door was “wide open” when she went out through it as she was escaping from the assault.

She did not see the Appellant damage the door but, given that she later found it damaged, she wondered whether he had slammed it after she went out (Transcript, page 20, lines 15-18). On cross-examination she agreed that the door had a spring that pulls the door closed and prevents it from opening up too far and hitting the side of the house. It was put to her that she threw the Appellant’s bag out the door and, because the spring was pulling the door closed, the bag hit the door and damaged it. She denied this adamantly (Transcript, page 55 lines 8-21). I do not see any obvious inconsistency here.

It is not clear from the evidence if the spring prevented the door from opening wide or prevented it from being slammed. The dog in the shed/dog grooming salon [ 48 ] The Appellant states that T.D.’s evidence that his larger dog was in the shed when he arrived at her house that evening was inconsistent with her testimony that the shed was locked and that she later saw the Appellant leave her house with his two dogs. I do not see any obvious inconsistency here. It is possible that the dog was in the shed and that the shed door was locked. T.D. did not testify that she saw the Appellant get his dog.

She was not asked how he could have gotten it. There was no evidence as to whether the Appellant had access to a key. Submissions of the Appellant regarding mistakes as to the substance of the evidence [ 49 ] The Appellant submits that the trial judge made mistakes as to the substance of the evidence that he relied upon for his assessment of credibility. The trial judge found that there were a number of inconsistencies in the Appellant’s evidence. He noted that individually they might appear less significant but, taken together, they undermined the Appellant’s credibility (Conviction Decision, para. 63).

He gave three examples: the wine, the boots and the calls to the police. The Appellant submits that he was mistaken on all three. The wine [ 50 ] I agree with the Appellant that the trial judge made a mistake in assessing the evidence in relation to the wine. At paragraphs 64 and 65 of the Conviction Decision, the trial judge noted that in direct examination the Appellant said he put some wine and cheese in a bag but that during cross-examination he said that he did not try to take the wine, rather he just “wrote it off”.

The trial judge found that this was internally inconsistent: if the Appellant just wrote the wine off, how did it end up in the bag? The trial judge appears to have overlooked the Appellant’s evidence that when he came downstairs, he realized that T.D. had taken the wine out of the bag. It was at that point he said he just “wrote it off” (Transcript page 114, lines 19-21, page 115, lines 1-2, page 151, line 1). I cannot find any inconsistency in the Appellant’s evidence in relation to the wine.

The boots [ 51 ] At paragraphs 66 to 68 of the Conviction Decision, the trial judge noted that the Appellant was inconsistent in his testimony as to when he put on his boots. He testified to doing it at two different times and, in the words of the trial judge, “at no point did he suggest that he had taken his boots off”. The Appellant alleges that it was an error for the trial judge to consider this in his credibility assessment because the trial judge did not find that the Appellant had not taken the boots off in between, he simply noted that the Appellant had not said that he did.

I cannot agree with the Appellant that the trial judge made a mistake with respect to the boots. It is implicit in his reasons that he found that the Appellant had not taken off his boots and that he was inconsistent in his testimony about when he put on his boots. This was a finding that was open to the trial judge to make. The call to the police [ 52 ] At paragraph 69 of the Conviction Decision, the trial judge noted that the Appellant gave inconsistent descriptions of calling the police.

The Appellant has not identified any error that the judge made in apprehending this evidence, rather he has submitted that he clarified his evidence and that this should not be treated as an inconsistency. The judge was not mistaken about the substance of the evidence. The Appellant testified that he called the police when he got home (Transcript page 116, line 18). Later in his testimony, he said he was on the phone calling the RCMP when he left T.D.’s house (Transcript page 146, line 8).

It was open to the trial judge to treat the difference in the Appellant’s evidence as an inconsistency. [ 53 ] Overall, I am satisfied that the Appellant has established that the trial judge made one mistake with respect to his evidence, and that was in relation to the wine.

Analysis of the trial judge’s consideration of the evidence [ 54 ] The trial judge found T.D. to be credible and he found that the Appellant’s evidence did not have “the ring of truth” (Conviction Decision, paras. 70 and 73). He had the advantage of being present in the courtroom and hearing and observing the witnesses. His findings with respect to credibility are findings of fact that are due deference.

The question is not whether I would have reached the same conclusions, the question is whether the verdicts the trial judge reached are unreasonable or whether there has been a miscarriage of justice. [ 55 ] I cannot find the trial judge’s verdicts to be unreasonable. With the exception of his finding in relation to the wine, the inferences and findings he made were supportable by the evidence. Most of the alleged misapprehensions of the evidence identified by the Appellant are not true misapprehensions, rather they are matters of

interpretation of the evidence. The verdicts were ones that a properly instructed jury or judge could reasonably have rendered. [ 56 ] The trial judge did misapprehend the evidence in relation to the wine so I must consider the effect of that and whether the trial judge’s incorrect finding was a fact essential to his verdict or material to his reasoning. [ 57 ] The trial judge gave a number of reasons for preferring the evidence of T.D. over that of the Appellant.

He found other inconsistencies in the Appellant’s testimony and assessed his evidence in its entirety to determine that he did not find it credible (Conviction Decision, paras. 63 and 70). He found that T.D.’s evidence was corroborated or confirmed in multiple ways (Conviction Decision, para. 71). He also found it implausible that T.D. would have deliberately thrown the model of her father’s boat or damaged the photograph of her mother (Conviction Decision, paras. 72).

Although the trial judge misapprehended the evidence about the wine, it was only one of the factors he considered in his findings on credibility and it was not an essential or pivotal factor. If I strike the finding with respect to the wine from his decision, the trial judge’s reasoning still stands on steady ground. I cannot find that the error was so significant as to affect the verdicts.

Issue 5: the trial judge’s application of W. (D.) W. (D.) [ 58 ] The principles of W. (D.) are set out in paragraph 11 of that decision : Ideally, appropriate instructions on the issue of credibility should be given not only during the main charge, but on any recharge. A trial Judge might well instruct the jury on the question of credibility along these lines: 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 which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [ 59 ] The three principles above are frequently referred to as the W. (D.) analysis which is used by triers of fact regularly in their assessment of evidence of an accused. The W. (D.) analysis does not just apply to an accused’s testimony; it applies to any exculpatory evidence that an accused advances.

Position of the parties [ 60 ] The Appellant states that for the first two stages of the W. (D.) analysis, the trial judge did not provide sufficient reasons to find that the Appellant was not credible. He asserts that the reasons that the trial judge did provide were related to contradictions, which, on his review of the evidence, could be resolved in his favour.

The Appellant further submits that the trial judge did not comment on his demeanor or find that he was unreliable or untruthful. [ 61 ] Crown counsel has noted that the Appellant’s submission with respect to W. (D.) is related to his submissions on the reasonableness of the verdicts and the misapprehension of the evidence. She characterizes these grounds of appeal as a challenge to the trial judge’s findings of credibility and she has filed case law that addresses appellate deference to such findings.

Crown counsel states that the trial judge’s reasons are sufficient and his findings on credibility should be upheld. Analysis of the trial judge’s application of W. (D.) [ 62 ] This ground of appeal is closely related to the previous issue and I have already discussed the deference owed to a trial judge’s determination of credibility. I have also addressed the evidence that the Appellant has asked me to consider in assessing the trial judge’s findings. [ 63 ] In applying the W. (D.) analysis, the trial judge does not need to take a formal or rigid approach.

This was reiterated by the Supreme Court of Canada in R. v. M. (R.E.) , 2008 SCC 51 , where McLachlin, C.J. wrote for the court:

31 More recently, in R. c. Dinardo [2008] 1 S.C.R. 788, 2008 SCC 24 (S.C.C.), the Court, per Charron J., rejected a formalisticapproach. The case turned on credibility. The trial judge's reasons failed to articulate the alternatives to be considered in determiningreasonable doubt as set out in R. v. W. (D.), (SCC), [1991] 1 S.C.R. 742 (S.C.C.).

Charron J. stated that only thesubstance, not the form, of W. (D.) need be captured by the trial judge, then went on to say: In a case that turns on credibility, such as this one, the trial judge must direct his or her mind to the decisive question of whether theaccused's evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt. [para. 23] 32 Charron J. went on to state that where credibility is a determinative issue, deference is in order and intervention will be rare (para.26).

While the reasons must explain why the evidence raised no reasonable doubt, “there is no general requirement that reasons be sodetailed that they allow an appeal court to retry the entire case on appeal. There is no need to prove that the trial judge was alive to andconsidered all of the evidence, or answer each and every argument of counsel” (para. 30). [64] In M. (R.E.), the Supreme Court of Canada reviewed the law surrounding appellate review of the sufficiency of reasons.

TheSupreme Court highlighted the importance of reviewing reasons in the context of the record, the issues, and the submissions of counselat trial. Using a contextual review, an appellate court must determine whether the reasons show that the trial judge seized the substanceof the matter.

Provided this is done, detailed recitations of evidence or the law are not required (M. (R.E.), para. 43). [65] Importantly for the present case, the court in M. (R.E.) specifically addressed the sufficiency of reason on findings ofcredibility, writing: 49 While it is useful for a judge to attempt to articulate the reasons for believing a witness and disbelieving another in general or ona particular point, the fact remains that the exercise may not be purely intellectual and may involve factors that are difficult to verbalize.

Furthermore, embellishing why a particular witness’s evidence is rejected may involve the judge saying unflattering things about thewitness; judges may wish to spare the accused who takes the stand to deny the crime, for example, the indignity of not only rejecting hisevidence and convicting him, but adding negative comments about his demeanor.

In short, assessing credibility is a difficult anddelicate matter that does not always lend itself to precise and complete verbalization. [66] The Appellant has argued that the trial judge failed to address the testimony of Gary Lockyer who testified to being with theAppellant working on the afternoon of December 31, 2018 until around 6 p.m. Mr. Lockyer testified that the Appellant was not drinkinganything other than water. The Appellant submits that the trial judge should have considered this exculpatory evidence in his assessmentof T.D.’s credibility and it should have raised a reasonable doubt.

T.D. testified that when the the Appellant arrived at her house,sometime between 6 p.m. and 7 p.m., he was drunk. [67] Having reviewed the reasons, I find that the trial judge was alive to this issue. He reviewed T.D.’s evidence about theAppellant being drunk and drinking earlier in the day (Conviction Decision, para. 16); he reviewed the evidence of Gary Locker(Conviction Decision, para. 53); and, he noted the contradiction in the evidence as to whether the Appellant had been drinking(Conviction Decision, para. 59).

He did not make a specific finding as to whether the Appellant had been drinking, but he did not need to.Nor did he need to address all of the evidence in his reasons. It is enough that he explained why the evidence, as a whole, raised noreasonable doubt. [68] The Appellant has also submitted that the trial judge failed to address his evidence that T.D. had scratched his back. Again, Icannot agree. The reasons show that the trial judge was alive to the issue of the back scratches, even if he did not specifically referenceExhibit RN#2 (the photograph of his back tendered by the Appellant).

The trial judge dealt with this evidence specifically in hisconsideration of the rule in Browne v. Dunn (see Conviction Decision, paras. 76, 78, 83). Reading the trial judge’s decision in itsentirety, it is clear that he chose to give this evidence little to no weight because T.D. was not cross-examined on it. I have alreadyindicated that this was an option that was open to him and his decision to deal with the evidence in this way is due deference. [69] Ultimately, the trial judge gave a number of reasons for why he accepted the evidence of T.D. and not that of the Appellant.

He was not required to review all of the evidence in his reasons or address each argument of counsel. Nor was he required to makefindings with respect to the Appellant’s demeanor. Read in their entirety and in the context of the record, the issues and the submissionsof counsel, the trial judge’s reasons demonstrate that he seized the substance of the matter. I do not find any reviewable error in hisapplication of the W. (D.) analysis. Issue 6: the trial judge’s application of the law of self-defence The law of self-defence [70] Section 34(1) of the Criminal Code sets out the defence of self-defence. In

summary, in order to avail of the defence, theAppellant must have believed on reasonable grounds that force was being used against him, his conduct must have been for the purposeof defending or protecting himself, and his conduct must have been reasonable in the circumstances. Section 34(2) sets out a non-exhaustive list of factors for the court to consider in determining whether an accused person’s conduct is reasonable in thecircumstances. [71] In R. v.

Cinous, 2002 SCC 29, the Supreme Court of Canada considered self-defence and held that the defence should be put toa jury only if there is an “air of reality” to it. The “air of reality” test imposes a burden on the accused that is “merely evidential, notpersuasive”. If there is some evidence reasonably capable of supporting the inferences required for the defence to succeed, the “air ofreality” test is passed and the Crown must then establish beyond a reasonable doubt that the defence does not apply for a conviction toresult.

The position of the parties [ 72 ] The Appellant submits that the trial judge misapplied the law of self-defence by finding that there was no “air of reality” to the defence based on his disbelief of the Appellant’s evidence.

The Appellant submits that there was evidence of self-defence sufficient to meet the test, including the photographs he tendered of scratches on his neck and back, and that the onus should thus have been on the Crown to establish beyond a reasonable doubt that the defence did not apply. [ 73 ] Crown counsel submits that where the testimony of the witnesses is irreconcilable, the defence can only be evaluated once the trial judge makes findings of fact as to what occurred.

She relies on Best , a decision in which the Newfoundland and Labrador Court of Appeal considered a similar finding in a judge-alone trial and found no error on the part of the trial judge. Analysis of the trial judge’s application of the law of self-defence [ 74 ] The present case is similar to that of Best in which Hoegg J.A. addressed self-defence in a judge-alone trial: [ 13 ] Mr. Best’s trial was heard by a judge alone. In a judge alone trial, there is no requirement for a judge to explain why he or she is rejecting that defence.

It is enough if the judge gives sufficient reasons for rejecting the evidence on which an accused relies to support the defence. As noted above, the Judge rejected Mr. Best’s evidence that he “slapped” the Complainant in the face because she had punched him first. The Judge explained why he rejected Mr. Best’s testimony in this regard and gave detailed reasons for his finding of guilt. The fact that the Complainant admitted to having punched Mr. Best on a prior occasion unrelated to this incident is but one small piece of the evidence which informed the Judge’s consideration and rejection of Mr.

Best’s “self-defence evidence”. In any event, review of the Judge’s reasons demonstrates that they more than adequately address the requirements of section 34(1) as well as the factors listed in section 34(2) . In sum, the Judge’s decision shows that the evidence was not “reasonably capable of supporting the inferences required for the defence to succeed” and that there was therefore no “air of reality” to it.

Accordingly, I see no error on the part of the Judge and I would give no effect to this ground of appeal. [ 75 ] As in Best , I find that the trial judge’s reasons demonstrate why he found that the evidence was not capable of supporting the inferences required for self-defence to succeed. The judge rejected the Appellant’s evidence that T.D. had attacked him and found that there was “no credible evidence” which would have justified him grabbing her (Conviction Decision, para. 89). I have already found his reasons were sufficient to explain why he did not find the Appellant credible.

As such, I find no reviewable error in the application of the law of self-defence. Issue 7: The trial judge’s Application of the legal test for circumstantial evidence The legal test for circumstantial evidence [ 76 ] In R. v. Villaroman , 2016 SCC 33 , the Supreme Court of Canada clarified that where the Crown’s case depends on circumstantial evidence, the question is whether the trier of fact, acting judicially, could reasonably be satisfied that the accused’s guilt was the only reasonable conclusion available based on the totality of the evidence (para. 55).

In assessing such a case, the trier of fact must consider the evidence and any gaps in the evidence that may result in inferences other than guilt. But those inferences must be reasonable and based on logic and experience applied to the evidence or the absence of evidence, not speculative (paras. 36 and 37). Circumstantial evidence does not have to totally exclude other conceivable inferences.

Alternative inferences must be reasonable, not just possible (para. 42). [ 77 ] Villaroman makes clear that it is for the trier of fact in each case, and in this case that is the trial judge, to draw the line that separates reasonable doubt from speculation (para. 71). The question is not whether every trier of fact would have inevitably reached the same conclusion as did the trial judge, but whether that conclusion was a reasonable one (para. 69).

The trial judge’s consideration of circumstantial evidence [ 78 ] The Crown’s case for the theft of the dog shears was based on circumstantial evidence, as was its case for damage to property, other than the model boat. [ 79 ] The trial judge addressed the damage to the property at paragraph 91 of the Conviction Decision: I am also satisfied beyond a reasonable doubt that the accused willfully damaged the residence, including the damaged door and door faceting.

It is consistent with his having thrown the door open and then throwing the model boat out on the deck, as described by the complainant Given the emotional attachment of the complainant to the model of her late father’s boat, it is highly unlikely that she would have done anything to damage it. He knew that she had an emotional attachment to the model boat because he had taken the model boat away with him during an earlier spat between them. There were only the two of them there.

By the process of elimination, he is responsible for the damages. [ 80 ] The trial judge addressed the case for the shears at paragraph 92 of the Conviction Decision: The theft of the dog grooming shears is a circumstantial matter, in the sense that there is no witness who can say that he took them. Where the Crown’s case depends on circumstantial evidence, the question become whether the trial of fact, acting judicially, could reasonable be satisfied that the accused’s guilt was the only reasonable conclusion available on the totality of the evidence [ Villaroman cited].

On the evidence, the accused had exclusive opportunity to take the shears. The only logical conclusion to draw is that he took the shears. As a result, I find him guilty of the theft of the dog grooming shears.

Analysis of the trial judge’s consideration of circumstantial evidence [ 81 ] Although the trial judge did not specifically reference circumstantial evidence with respect to the property damage, it is clear that the trial judge found that there were only two people who had the opportunity to do the damage, T.D. and the Appellant, and that he eliminated T.D. as the one responsible. T.D. had testified that she saw the Appellant throw the model boat out the door to the patio and that when she went back into the house after he had left she saw the other damage.

She specifically stated that the door was in perfect condition when she left (see Transcript pages 19-20). There was thus evidence to support the trial judge’s findings and I cannot find that his conclusion was unreasonable. [ 82 ] With respect to opportunity to take the shears, I have already reviewed T.D.’s evidence on this point at paragraph 45.

Additionally, there was evidence from both T.D. and the Appellant to him having taken the shears before in relation to an argument. [ 83 ] While I agree with the Appellant that there was no evidence as to whether T.D. locked the shed that night before she left, or whether she checked to see if the shears were in their case then, reading the decision as a whole and in context, it is clear that the trial judge found the possibility that someone else came in and took the shears to be speculative. He accepted T.D.’s evidence that the Appellant was the only other person in the shed when the shears went missing.

Based on the totality of the evidence, I find that the trial judge could reasonably have been satisfied that the only reasonable conclusion was that the Appellant took the shears. As such, I will not interfere with his finding. Issue 8: Sentence The law of sentence appeals [ 84 ] Pursuant to

section 718 of the Criminal Code , a fit sentence must contribute to respect for the law and the maintenance of a just, peaceful and safe society. The sentencing sections of the Criminal Code seek to achieve this goal by setting out principles and objectives of sentencing to be applied to the facts and circumstances of each case, considering both the offence and the offender. [ 85 ] The Newfoundland and Labrador Court of Appeal recently addressed appellate review of sentences in R. v. Butler , 2019 NLCA 21 .

In Butler , the Court of Appeal made clear that sentencing judges have broad discretion in crafting sentences and that it falls to the sentencing judge to determine which objectives of sentencing merit the greatest weight.

The court also noted that sentencing judges are regarded as being in a better position than appellate court judges to determine appropriate sentences and therefore deference is owed to their sentencing decisions ( Bulter, para. 37). [ 86 ] Appellate courts should only intervene in a sentence if the sentencing judge made an error of law or principle that had an impact on the sentence imposed or if the sentence imposed is demonstrably unfit ( Butler , paras. 38 and 39 ).

An inquiry into fitness of a sentence is focused on the principle of proportionality, which is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Proportionality is determined both on an individual basis and by comparing the case in issue with similar cases, all the while taking into account the sentencing objectives of the Criminal Code .

Accordingly, a sentence will be demonstrably unfit if it is disproportionate to the conduct underlying the offence and constitutes a marked departure from sentences imposed for similar conduct ( Butler , paras. 40 and 41 ). The sentence imposed [ 87 ] The trial judge imposed the following sentence: a. With respect to the December 31, 2018 offences: i. Assault – 90 days ii. Breach of probation – 30 days, consecutive iii. Breach of recognizance – 30 days, concurrent iv. Mischief by damaging property – 30 days, concurrent v. Theft – 5 days, concurrent b. With respect to the March 15, 2019 offences: i.

Breach of judicial undertaking – 60 days, consecutive ii. Breach of probation – 60 days, concurrent iii. Breach of police officer undertaking – 60 days, concurrent iv. Breach of recognizance – 60 days, concurrent [ 88 ] This amounts to a global sentence of 180 days which the trial judge ordered to be served in an institution as he did not find that a conditional sentence was appropriate.

He also made several ancillary orders, including a year of probation. [ 89 ] The Appellant does not allege that the trial judge made any error of law or principle, rather he submits that the sentence imposed is unfit because it is not proportionate to the degree of his responsibility and that the trial judge placed too much emphasis on his criminal record and on general and specific deterrence and not enough emphasis on rehabilitation. The Appellant did not take issue with the ancillary orders, rather he focused on the imprisonment sentences.

[ 90 ] Crown counsel submits that the sentences imposed are within the range of sentences for similar offences, that they are not excessive based on the facts of the case and the Appellant’s antecedents and that, in cases involving intimate partner violence, this Court has repeatedly stated that the primary sentencing principles to be applied are general and specific deterrence ( R. v. McGrath , 2009 NLTD 45 and R. v. Tulk , 2014 NLTD(G) 18). Analysis of the sentence [ 91 ] The trial judge made no error of law or principle in imposing sentence.

His emphasis on general and specific deterrence was reasonable and appropriate for the offences involving intimate partner violence. He did not unduly focus on those factors. The trial judge did an assessment of the appropriate range of sentences for the offences involved and the sentences he gave are within those ranges. I cannot find that the sentences imposed are disproportionate to the circumstances of this case or the Appellant’s degree of responsibility. In short, I find no reason to interfere with the trial judge’s decision on sentence.

DISPOSITION [ 92 ] For the foregoing reasons, I dismiss the appeal with respect to the convictions and sentence. _____________________________ Katherine O'Brien JUSTICE