R. v. Benoit, 2022 NLSC 125

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Benoit , 2022 NLSC 125 Date : July 29, 2022 Docket : 202106G0014 Her Majesty The Queen v. Wallace Benoit Before: Justice Peter A. O'Flaherty On Appeal From: A Decision of the Provincial Court of Newfoundland and Labrador, File #0618A00305 dated the 29th day of April, 2020. Place of Hearing: Clarenville, Newfoundland and Labrador Date of Hearing: April 11, 2022 Appearances: Alison J. Manning Appearing on behalf of the Crown Philip C. Whalen Appearing on behalf of the Appellant

Authorities Cited: CASES CONSIDERED: R. v. W. (D.), (SCC), [1991] 1 S.C.R. 742; Farnya v. Chorny, (BC CA),[1952] 2 D.L.R. 354 (B.C.C.A.); R. v. Vokurka, 2013 NLCA 51; R. v. Dinardo, 2008 SCC 24; R. v. B. (P.S.), 2004 NSCA 25; R. v.Gagnon, 2006 SCC 17 , [2006] 1 S.C.R. 621 STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46 REASONS FOR JUDGMENT O'Flaherty, J.: OVERVIEW [1] This appeal challenges the conviction of an accused on a charge of uttering a threat to cause bodily harm contrary to s.264.1(1)(

a) of the Criminal Code. [2] Wallace Benoit (the “Appellant”), was convicted of uttering a threat to harm his former partner Aldeena Stanley (the“Complainant”). An incident occurred on November 3, 2018, in the driveway of the Complainant’s mother’s residence in Milton,Newfoundland and Labrador (“NL”). The Appellant had driven to the residence to drop off his daughter’s overnight bag and was parkedin the driveway.

The Complainant opened the driver’s door of his vehicle, some brief words were exchanged, and she closed his door.Shortly after the incident both parties independently contacted the RCMP, within 5 minutes of the other, to make a criminal complaint.The Complainant alleged a threat was made and the Appellant alleged the driver’s door of his vehicle was damaged. [3] An officer concluded he had grounds to charge the Appellant with uttering a threat. When the Appellant was informed, heattended the RCMP Detachment and was arrested.

He strenuously denied threatening the Complainant and showed the investigatingofficer the damage to the driver’s door which he claimed was caused in the incident. The Appellant alleged the Complainant hadfabricated the complaint that he uttered a threat because he told her he was going to report the vehicle damage to the police. He alsoclaimed the Complainant had fabricated a complaint of assault against him a few days earlier. This was the substance of his defence attrial. [4] The trial was heard between August 15, 2019, and January 10, 2020.

The court heard evidence from three witnesses, RCMPConstable Slobodesky, the Complainant and then the Appellant. On April 29, 2020, the Provincial Court Judge convicted the Accusedand issued written reasons for his decision. [5] In the trial judge’s reasons he reviewed the salient facts and instructed himself in detail on the law including as set out in R. v.W. (D.), (SCC), [1991] 1 S.C.R. 742.

In the analysis section, the trial judge first assessed the credibility of theAppellant’s evidence and then the credibility of the Complainant’s evidence, and he concluded his analysis with the statement “Itfollows then, that I accept Stanley’s version of the incident over Benoit’s,” finding that her evidence was credible in accordance with thetest of a truthful story referenced in Farnya v.

Chorny, (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.). [6] The Appellant submits the trial judge misapplied the law in W. (D.), by failing to assess his credibility in the context of theevidence as a whole and by conducting an impermissible “credibility contest”, and the trial judge relied upon improper and irrelevantfactors in assessing credibility. The Crown submits that the appeal is really an impermissible attempt to overturn the credibility findingsof the trial judge. [7] I find that the law in W. (D.) was not properly applied and a new trial must be ordered.

The trial judge’s credibility analysiswas conducted without any reference to the context of the evidence as a whole, and in particular to the evidence that tended to supportthe inference that the Complainant fabricated the complaint. In the circumstances, I cannot conclude that the trial judge assessed theAppellant’s evidence in the context of the evidence as a whole and found that it did not raise a reasonable doubt which the law in W. (D.)requires.

Based on my conclusion that the required credibility analysis was not conducted, the dispositive findings on reasonable doubtare that the trial judge disbelieved the Appellant and believed the Complainant, and his finding that “It follows, then, I accept Stanley’sversion of the incident over Benoit’s”. I find this reasoning path fails to apply the law in W. (D.). [8] The reasons confirm that the trial judge disbelieved the Appellant’s denial of the threat. Such a credibility assessment isentitled to deference but it is not immune from review for an error in principle or if irrelevant criteria were relied upon.

The trial judge’sreliance upon the Appellant’s dated criminal record for assault and his demeanor during an “outburst” in court as negative credibilityfactors, insofar as they were relied upon because they demonstrated “intemperate” behavior akin to the “intemperate” act of uttering athreat, amounted to an error in principle or the reliance on irrelevant criteria. I would also order a new trial on this basis. [9] The appeal by the Appellant is allowed and a new trial is ordered. GROUNDS OF APPEAL [10] The five grounds of appeal set out in the Notice of Appeal are as follows:

1. That the trial judge erred in law by considering evidence extraneous to trial evidence in his assessment of Mr. Benoit’s credibility. 2. That the trial judge inappropriately relied on Mr. Benoit’s criminal record to discredit Mr. Benoit. 3. That the trial judge erred in law by failing to apply the correct legal standard of proof as articulated in R. v. W. (D.) , thereby lowering the Crown’s burden. 4. That the trial judge erred in law by intervening in the trial and cross-examining Mr. Benoit. 5. Such other grounds as the Appellant may raise and the Court may allow.

THE TRIAL REASONS [ 11 ] The reasons commenced with the Complainant’s evidence about the incident and threat. The reasons recounted that the Appellant called the police to make a complaint shortly after the Complainant, and that the officer was unsuccessful in his attempts to contact the Appellant to take photos of the damage [1] .

The reasons then outlined the Appellant’s evidence about the incident, his denial of the Complainant’s allegation that he threatened her, and the Appellant’s evidence that he had “told her he was going to call the police (after she scratched his vehicle with her keys) and that’s the only reason this all this happened because she beat him to it first.” [ 12 ] In terms of the law, the reasons address the presumption of innocence, the burden of proof and the criminal standard of proof.

The trial judge then specifically instructs himself on the test for assessing the credibility of evidence in the context of the reasonable doubt standard, specifically where the Appellant had testified. In his review of the applicable law, the trial judge refers to the admonishment in appellate authority against conducting a “credibility contest” between the Complainant and the Appellant in a “she said/he said” case. [ 13 ] It is helpful to reproduce the analysis

section of the trial reasons, in its entirety: [29] In the matter before me the complainant and the accused had, at one time, been intimate partners and they had two children together. The relationship ended and the complainant has a new partner. It is evident from Benoit’s testimony and demeanour that he harbours animosity towards Stanley and Holloway in particular.

He is clearly unhappy, indeed angry, about his children spending time or living in Holloway’s residence. [30] Furthermore, during direct examination of Stanley by the Crown prosecutor Benoit interrupted her testimony with an outburst resulting in an admonition by the Court and a request for a recess by his counsel. [31] I note as well that Benoit acknowledges having convictions for assaults, albeit going back some twenty years or so. [32] According to dictionary.cambridge.org the word “intemperate” means “showing anger or violence that is too extreme and not well controlled.” [33] The very act of uttering threats is a clear manifestation of intemperate behavior.

So too are committing assaults and a spontaneous court room release of hostile emotions. [34] Ms. Stanley on the other hand presented as an earnest and resolute witness. She also lost her composure at one but she was distressed rather than aggressive. [35] When cross examined she did not, in my estimation, vacillate or contradict herself. On the points previously noted that did arise on cross I do not consider them to be particularly significant, certainly not to an extent that causes me to question her probity.

She was fundamentally consistent in her answers even if she did on one or two occasions use different words to describe the incident. I also do not consider anything to meaningfully turn on whether she did not initially say to police that she told Benoit she would be calling the police to make a complaint against him. To that extent I am in agreement with the Crown on this point – maybe she just didn’t consider it relevant until the police raised Benoit’s call with her.

[36] I note as well that there’s no evidence before me, nor indeed any suggestion, that Stanley fabricated the incident in order to denyBenoit access to their children. [37] It follows, then, that I accept Stanley’s version of the incident over Benoit’s. Hers is, to paraphrase Farnya and Chorney,harmonious with the circumstances, context and narrative of the evidence before me. [14] The trial reasons concluded with the statement that the Appellant was frustrated and angry regarding the relationship betweenthe Complainant and her new partner, and his children’s

part in that dynamic, and that the Appellant’s temper got the better of him andhe said he would punch her in the face and slit or cut her throat. As a result, the trial judge found the Appellant guilty of uttering a threat.The Appellant was later sentenced to a Conditional Sentence Order of 20 days incarceration, 12 months’ probation and a prohibitionorder under s. 110 of the Code. THE RIGHT OF APPEAL AND THE STANDARD OF REVIEW [15]

Part XXVII of the Code governs

Summary Convictions and s. 813 provides for rights of appeal in proceedings under that Part. [16] The Appellant has a right of appeal from his conviction under s. 813(a)(

i) of the Code: 813. Except where otherwise provided by law, (

a) the defendant in proceedings under this Part may appeal to the appeal court (

i) from a conviction or order made against him [Emphasis added] [17]

Section 822 of the Code provides that certain sections of

Part XXI – Appeals – Indictable Offences are applicable to an appealof a conviction under s. 813. By virtue of the provisions of s. 686(1)(a)(i)(ii) and (iii), an appeal lies to the appeal court under s. 813 onan unreasonable verdict, on a wrong decision on a question of law, or on a miscarriage of justice. [18] The standard of review I must apply on a question of law is correctness. This means that if I am satisfied that the trial judgeapplied the wrong legal principle, or misapplied the law, I have the power to substitute the correct legal analysis. [19] In R. v.

Vokurka, 2013 NLCA 51, our Court of Appeal discussed the standard of review for factual inferences, and byimplication findings of fact, made by trial judges on a criminal proceeding. If there was evidence to support the factual findings of a trialjudge, and they were not clearly wrong, the law directs that I afford the trial judge a “high degree of deference” on questions of fact. ANALYSIS Issue 1: Did the Trial Judge Fail to Properly Apply W.(D.)? [20] It is not in dispute that the misapplication of the law under W. (D.) amounts to an error of law.

If I conclude that the trial judgemisapplied the law, I have the power to correct the legal analysis. [21] In W. (D.), Cory, J. proposed a three-step instruction to the jury on the “question of credibility” in a criminal trial, and related itto the reasonable doubt standard as follows: 10. In a case where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue. The trial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses.

Specifically, thetrial judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused. Second,if they do not believe the accused's evidence but still have a reasonable doubt as to his guilt after considering the accused's evidence inthe context of the evidence as a whole. See R. v. Challice (1979), (ON CA), 45 C.C.C. (2d) 546 (Ont.C.A.), approved in R. v. Morin, supra, at p. 357. 11. Ideally, appropriate instructions on the issue of credibility should be given not only during the main charge, but on any recharge.

Atrial 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 whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

If that formula were followed, the oft-repeated error which appears in the recharge in this case would be avoided. The requirement that

the Crown prove the guilt of the accused beyond a reasonable doubt is fundamental in our system of criminal law. Every effort should be made to avoid mistakes in charging the jury on this basic principle. [ 22 ] Supreme Court of Canada authorities released after W. (D.) confirm that, depending on the context of the case, there is no requirement that all three steps be shown to have been followed. Rather, the decisive question in every case that turns on credibility is “whether the accused’s evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt” (see: R. v.

Dinardo , 2008 SCC 24 ). [ 23 ] In R. v. B. (P.S.) , 2004 NSCA 25 , Cromwell, J.A. summarized the application of the three step test in W. (D.) in helpful terms at paragraph 56: [56] … In brief, the trier must remember that the issue is not whether he or she believes the accused, but whether the evidence as a whole convinces the trier of fact of the accused’s guilt beyond a reasonable doubt. If the trier of fact believes the exculpatory evidence of the accused, an acquittal must follow.

However, even if the trier does not believe that evidence, the trier must ask him or herself if it nonetheless gives rise to a reasonable doubt.

Finally, if the trier does not believe the accused and is not left in doubt on that evidence, the trier must still address and resolve the most critical, in fact, the only question in every criminal case: Does the evidence as a whole convince the trier of guilt beyond a reasonable doubt? [ 24 ] From the foregoing statement of the law it can be seen that the W. (D.) principle is about applying the reasonable doubt standard to the credibility assessment in a criminal trial. The W. (D.) principle is often relied upon when triers of fact are faced with opposing versions of an incident.

It reminds the trier to avoid a reasoning path which simply compares the stories of a complainant and an accused and picks one over the other. Following such a reasoning process is not permitted because it can shift the burden of proof from the Crown, even subtly, and thereby deprive the accused person of the right to be presumed innocent.

The W. (D.) principle also reminds the trier of the pre-eminence of the decisive question. [ 25 ] Although the basic outline of the W. (D.) principle may be straightforward, the volume of appeal cases which have followed its release suggests that it is often difficult to apply in the context of a concrete case. [ 26 ] The Appellant argues the trial judge misapplied the law in W. (D.) in this case by failing to assess the credibility of the Appellant in the context of the evidence as a whole and by conducting an impermissible “credibility contest” in which the Complainant’s truthful version was ultimately selected over the Appellant’s version. [ 27 ] The Crown characterizes this ground of appeal as an attack on the trial judge’s assessment of credibility which fails to overcome the required standard of palpable and overriding error.

As to W. (D.) specifically, the Crown argues that the trial judge was alive to the law to be applied and that, read in their entirety, the reasons demonstrate that the trial judge properly assessed credibility and found the Appellant’s evidence not to be credible and not to raise a reasonable doubt. [ 28 ] The assessment of the Appellant’s credibility is set out at paragraphs 29-31 of the trial reasons. The trial judge provides three reasons why he did not accept the Appellant’s denial that he had threatened the Complainant. His reasons may be summarized as follows:

i) the Appellant was angry about his former partner’s new relationship, and the involvement of his children with the Complainant’s new partner; ii) in the courtroom the Appellant acted in an intemperate manner, and that type of behavior is consistent with another intemperate action, uttering a threat; and, iii) the Appellant has a criminal record for assault, albeit dated, and that type of past behavior is consistent with another intemperate action, uttering a threat. [ 29 ] Leaving aside the validity of the reasoning which follows, I conclude that there were three facts which the trial judge relied upon in finding he did not accept the Appellant’s denial that he threated the Complainant. [ 30 ] In this case there was also an evidentiary basis presented to support the claim that the Complainant had fabricated the complaint of uttering a threat because the Appellant told her he was going to report the damage to the vehicle.

The Appellant testified this was the only reason she made the complaint. In addition, the police officer confirmed there was a recent “unfounded” complaint of assault made by the Complainant against the Appellant, on October 28, 2018. The officer gave evidence that the related complaints were made within 5 minutes of each other, that there was damage to the Appellant’s vehicle photographed when he came to the Detachment, and that he did follow up regarding the Appellant’s complaint of property damage after that night.

The W. (D.) principle does not just apply to the Appellant’s evidence, it applies to any exculpatory evidence. In the circumstances, there was an evidentiary basis presented which could call into question exactly where the truth of the matter lay and, if accepted, give rise to a reasonable doubt. [ 31 ] While not every defence theory or evidentiary narrative must be tested, and a judge may accept all, some or none of the evidence of a witness, the law recognizes an obligation to address significant issues and problematic evidence like this in the assessment of credibility.

In this case, I find that the law required that the trial judge consider this live issue and conduct the credibility analysis of the Appellant’s evidence in the context of the evidence as a whole including this evidence. [ 32 ] Despite the evidentiary record and the submissions of counsel on the live issue, the trial reasons show that no credibility analysis of the Appellant’s evidence was conducted in the context of the evidence, as a whole, as required.

In particular, there was no consideration of the evidentiary basis presented to support the defence that the Complainant had fabricated the complaint of uttering a threat because he told her in the driveway he was going to report the damage to the vehicle. [ 33 ] The credibility assessment of the Complainant’s evidence was also conducted without reference to the live issue and the problematic evidence despite the fact that evidence of proof of a motive to fabricate goes directly to the credibility of the Complainant.

The Complainant’s credibility was assessed in a limited evidentiary context, which the trial judge discounted as “not particularlysignificant”, however none of the points addressed the substance of the live issue. The credibility analysis found that as compared to theAppellant’s demeanor her presentation in court was “earnest and resolute” and when she lost composure in court she was “distressed”rather than “aggressive”. The only motive to fabricate addressed in the credibility analysis was the absence of any motive by theComplainant to lie to deny access to the children.

This was not even an issue raised by the defence yet it was treated by the trial judge asa positive credibility factor for the Complainant. [34] This is not a case in which the trial judge explained why he found that the evidence, as a whole, raised no reasonable doubt andthe Appellant is pointing out piecemeal aspects of the evidence not referred to in the reasons. Similarly, this is not a case in which it isreasonable to infer from the detailed exposition of the law and the reference to Farnya v.

Chorny at the conclusion of the credibilityanalysis that the trial judge followed the law in W.(D.). [35] In the circumstances, I am unable to conclude on a fair reading of the trial reasons, and in the context of the record, that thetrial judge assessed the Appellant’s evidence in the context of the evidence as a whole and found that it did not raise a reasonable doubtas to his guilt.

I therefore must conclude that the trial judge failed to properly apply the law under W. (D.) amounting to an error of law. [36] The Appellant also argues that the trial judge in effect shifted the burden of proof by choosing the Complainant’s version ofevents which he preferred over the Appellant’s. The trial judge had specifically instructed himself in the trial reasons on the lawregarding “credibility contests” and there is no indication that the Appellant’s evidence was rejected because the Complainant’sevidence was believed.

Without a proper credibility analysis however, the only dispositive findings which remain on the issue ofreasonable doubt are that the trial judge disbelieved the Appellant and believed the Complainant, and the judge’s statement that “Itfollows, then, that I accept Stanley’s version of the incident over Benoit’s”. [37] With great respect, I find that the reasoning path which led to the express finding that the Complainant’s truthful version wasselected over the Appellant’s untruthful version resulted in an impermissible shift of the burden of proof.

In such circumstances, I findthat the trial judge failed to properly apply the law under W. (D.), amounting to an error of law. Issue 2: Did the Trial Judge Err in his Assessment of Credibility? [38] The question of credibility in a criminal trial is a question of fact. Credibility findings are owed special deference as they arefindings of fact based on the perceptions of the trial judge who watched and listened to the witnesses.

The law is that the factual findingsthemselves, insofar as they grounded in some evidence, are not to be overturned in the absence of palpable and overriding error. [39] The need for deference in reviewing credibility assessments does not mean they are immune from appellate review (see: R. v.Gagnon, 2006 SCC 17 , [2006] 1 S.C.R. 621).

Where the trial reasons, read as a whole and in the context of the record,demonstrate an error in principle or show that credibility was assessed using irrelevant criteria a legal error may nonetheless be theresult. [40] In his credibility analysis, the trial judge commented on the evidence and the demeanor of the Appellant which led him to theconclusion that the Appellant harbored animosity and anger towards the Complainant and her new partner.

He then noted that theAppellant had interrupted the evidence of the Complainant and had admitted a dated record for assault. [41] The trial judge’s reasons then draw a link between the alleged threat and the two factual findings, concluding that all threeexhibit “intemperate” behavior: [32] According to dictionary.cambridge.org the word “intemperate” means “showing anger or violence that is too extreme and not wellcontrolled.” [33] The very act of uttering threats is a clear manifestation of intemperate behavior.

So too are committing assaults and a spontaneouscourt room release of hostile emotions. [42] The Appellant argues that the trial reasons demonstrate that the trial judge committed legal error by comparing the“intemperance” of uttering a threat with the “intemperance” of assaulting a person and interrupting the court, and that he relied upon thecomparison to conclude the Appellant was not to be believed when he denied he uttered a threat, or he engaged in impermissiblepropensity reasoning. [43] The Crown argues that the Appellant introduced character evidence through the fact he had a criminal record, and through thelater statement he was not a “violent” person, thereby entitling the trial judge to rely upon the criminal record in assessing thetruthfulness of the Appellant as a witness and that he went no further. [44] As noted above, the trial judge’s findings at paragraphs 29-31 articulate three reasons for disbelieving the Appellant’s denial ofthe allegation of uttering a threat.

The evidence of the prior record of the Appellant and the “outburst” in court, as facts, may properlyinform part of that credibility analysis, however their use is only relevant in establishing whether the Appellant was a truthful andreliable witness. [45] The issue evident from paragraphs 32-33 of the trial reasons is that the prior record of the Appellant and the “outburst” in courtwere characterized as behaviour consistent with the Appellant committing the “intemperate” act of uttering a threat, and the trial judgerelied upon that reasoning to convict the Appellant.

It does not matter whether this issue is characterized as an error in principle or theimproper reliance upon an irrelevant factor in assessing credibility, or the trial judge straying into propensity reasoning. The result is thesame and I would also order a new trial on this basis. DISPOSITION

[ 46 ] The appeal is allowed and a new trial is ordered. _____________________________ Peter A. O'Flaherty Justice