Paul Martin APPELLANT v. :, 2022 NLSC 41

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Martin , 2022 NLSC 41 Date : March 18, 2022 Docket : 202001G5261 BETWEEN: Paul Martin APPELLANT AND : Her Majesty The Queen RESPONDENT Before: Justice Daniel M. Boone Edited Transcript of Oral Reasons for Judgment On Appeal From: A Decision of the Provincial Court of Newfoundland and Labrador, dated the 24th day of August, 2020. Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: March 18, 2022 Date of Oral Judgment: March 18, 2022

Summary: The Court allowed an appeal from a conviction for mischief, finding that the trial judge did not properly apply the burden of proof because he rejected the alibi evidence offered by the Appellant but then failed to consider whether the Crown evidence had proven the offence beyond a reasonable doubt. The Court dismissed an appeal from a conviction for distribution of intimate images without consent

because the Appellant demonstrated only that the trial judge failed to consider evidence related to a peripheral issue that would not haveaffected the outcome. Appearances: Jeffrey H. Slade Appearing on behalf of the Appellant Timothy P. O'Brien Appearing on behalf of the Respondent Authorities Cited: CASES CONSIDERED: R. v. W. (D.), (SCC), [1991] 1 S.C.R. 742; R. v. Vokurka, 2013 NLCA 51 TEXTS CONSIDERED: David M. Paciocco Doubt about Doubt: Coping with R. v. W. (D.) and Credibility Assessment, (2017) 22 Can.Crim.

L.R. 31 REASONS FOR JUDGMENT Boone, J.: INTRODUCTION [1] The Appellant was convicted by a provincial court judge of three offences under two separate Informations, which were joinedtogether for trial. He appeals from those convictions. [2] The first Information charged the Appellant with mischief and associated breaches of court orders. The conduct that was thesubject of the charges was playing loud music in his residence at night.

The complainants were his next-door neighbours. [3] The Appellant appeals his conviction on these charges on the ground that the trial judge misapprehended or ignored materialevidence from the Appellant’s landlord that supported his alibi that he wasn’t home when the music was played, and on the ground thatthe trial judge failed to apply the test in R. v.

W. (D.), (SCC), [1991] 1 S.C.R. 742 because, although he found that he didnot believe the Appellant’s testimony as to whether he was home at the material time, the trial judge failed to consider whether, on thetotality of the evidence, the Crown had proved the charges beyond a reasonable doubt. [4] The second Information charged the Appellant with distribution of intimate images without consent of the subject. Thecomplainant was his ex-girlfriend, who alleged that the Appellant has sent these images from the Appellant’s Facebook Messengeraccount to a teenage friend of his.

The Appellant appeals this conviction on the ground that the trial judge misapprehended or ignoredevidence from a friend of the Appellant who supported the Appellant’s defence that the complainant had sent the images herself whilepretending to be the Appellant as part of a vendetta against him. [5] I have decided that the appeal from the convictions for mischief and associated breaches of court orders should be allowed andthe appeal from the conviction for distributing intimate images without consent should be dismissed.

ANALYSIS The Appeal from the Mischief and Related Convictions The Ground that the Trial Judge Misapprehended or Ignored Evidence [6] The law relating to the misapprehension of evidence that justifies overturning a trial conviction was definitively set out by theCourt of Appeal in R. v. Vokurka, 2013 NLCA 51, at para. 20. The court said that an appellate court will apply a stringent standard to anappeal based on this ground.

The misapprehension of evidence in the context of a criminal appeal may be demonstrated either byshowing that the trial judge failed to consider evidence relevant to a material issue, made a mistake as to the substance of relevantevidence, or failed to give proper effect to the evidence. However, to justify appellate intervention the evidence misapprehended must beof a nature that it could have affected the verdict, and therefore it must have been directed to a matter of substance, and not a peripheralmatter.

Finally, the court said that the appellant must show that it was obvious the trial judge did misapprehend the evidence - it is notsufficient for the appellant only to show that the trial judge may have committed this error. [7] The mischief and related offences were allegedly related to a pattern of the Appellant playing loud music at night and thusdisturbing his neighbours, which led to the requirement to refrain from doing so being imposed as a condition under a court order. Onthe night in question, the neighbours complained to the police that the loud music was played around 11:30 at night. The police did not

arrive until 2:00 a.m. and at that time the music was not playing. The Appellant says that he was not home at 11:30 but was at his mother’s home, and he supported his alibi by saying that he recalled not being home because his girlfriend had called him at that time to tell him that pipes had ruptured and leaked in his basement, and that she had called friends to come help with the repair. [ 8 ] The Appellant called evidence from his landlord to support his alibi defence.

She testified that the Appellant had called her that evening to tell her that the pipes had burst, and that there was no music playing at the time of the call. The trial judge did not refer to this evidence in his decision and his failure to do so is the basis for the first ground of appeal. [ 9 ] The evidence of the landlord in essence was that she had spoken to the Appellant by telephone at 7:30 in the evening the offence was alleged to have occurred, that the pipes had burst, and that there was no music playing during the call.

Therefore, her evidence did not bear on the question whether the Appellant was home at the material time. It related to a peripheral issue and even if her evidence had been dealt with by the trial judge and he had given it full weight and credit, it could not have altered the outcome. [ 10 ] Moreover, if the evidence of the landlord had been considered and credited by the trial judge, this would have had the effect of undermining the Appellant’s testimony that he had been out of the house when his girlfriend had called him at around 11:30 p.m. to tell him of the leaking pipes in his basement.

Once again, if the trial judge had dealt with the landlord’s evidence in his decision, it has not been demonstrated that the outcome would have been different. [ 11 ] This ground of appeal is dismissed. The Ground that the Trial Judge Misapplied the Burden of Proof [ 12 ] The trial judge accepted the evidence of the Appellant’s neighbours that loud music disturbing their piece emanated from the Appellant’s house at around 11:30 on the evening in question. He then found that the Appellants story that he was out of the house at the material time was not credible.

On that basis, he convicted the Appellant. [ 13 ] The Supreme Court of Canada in W. (D.) set out a framework for applying the criminal standard of proof in cases where the accused person offers evidence inconsistent with guilt. That framework has been summarized in David M. Paciocco Doubt about Doubt: Coping with R. v. W. (D.) and Credibility Assessment , (2017) 22 Can. Crim. L.R. 31 in this manner:

(1) Criminal trials cannot properly be resolved by deciding which conflicting version of events is preferred;

(2) A criminal fact-finder that believes evidence that is inconsistent with the guilt of the accused cannot convict the accused;

(3) Even if a criminal fact-finder does not entirely believe evidence inconsistent with guilt, if the fact-finder is left unsure whether that evidence is true there is a reasonable doubt and an acquittal must follow;

(4) Even where the fact-finder entirely disbelieves evidence inconsistent with guilt, the mere rejection of that evidence does not prove guilt; and

(5) Even where the fact-finder entirely disbelieves evidence inconsistent with guilt, the accused should not be convicted unless the evidence that is given credit proves the accused guilty beyond a reasonable doubt [ 14 ] In this case, the trial judge accepted evidence that there was loud music playing from the Appellant’s house, and he rejected the evidence of the Appellant that he was not at home. But he did not consider whether the Crown had demonstrated that the Appellant had been the one playing the music, which was an essential element of the offences with which he was charged.

Therefore, he did not properly apply the burden of proof in convicting the Appellant. [ 15 ] The Appellant succeeds on this ground of appeal and his convictions on the mischief and related offences are quashed. During argument, the Crown conceded this outcome. Therefore, in the circumstances, an acquittal should be entered in respect of these charges.

The Appeal from the Conviction for Distribution of Intimate Images The Ground that the Trial Judge Misapprehended or Ignored Evidence [ 16 ] The trial judge did not address the evidence of the Appellant’s friend that she had received a message from a fake social media account purporting to be from the Appellant. [ 17 ] It is not required of a trial judge that every piece of evidence be analyzed and expressly considered in a decision.

What matters is that the trial judge considers all evidence that could bear on the outcome. [ 18 ] The Appellant relied on this evidence at trial to support his defence that it was the complainant herself, but pretending to be the Appellant, who sent the intimate images to a third party, as part of a vendetta against him. [ 19 ] The trial judge found that the intimate images were sent from the Appellant’s Facebook Messenger account. Indeed, the Appellant did not dispute this. Rather, his defence was that someone else had sent them, perhaps by hacking his account.

He offered no evidence to support the position that his account might have been hacked, or any evidence that the complainant might have had access to his account to send the pictures. The trial judge rejected the position that the complainant herself might have sent intimate pictures of herself from the Appellant’s account to a teenage boy solely in order to get the Appellant in trouble. [ 20 ] The evidence of the Appellant’s friend was not directed to the issue of whether the complainant had access to his Facebook Messenger account through hacking or otherwise.

She testified that someone, who the Appellant’s friend without any evidence believed was the complainant, pretended to be the Appellant on a fake social media account. That happened at a later period of time than when the images in question were shown to have been sent from the Appellant’s account. It was solely directed to the alleged motivation of the complainant to act in the way alleged by the Appellant, and not to one of the elements of the offence.

[ 21 ] The evidence of the Appellant’s friend was, therefore, directed toward a peripheral issue and not an issue of substance going to the elements of the offence.

Further, even if the trial judge had considered it, the Appellant has not shown that it would have affected the trial judge’s decision to accept the evidence of the complainant that she did not send the images because such a story was preposterous and not consistent with reasonable possibility, and, therefore to reject the defence theory that it was the complainant who sent the images from the Appellant’s account. [ 22 ] This ground of appeal is dismissed and the conviction for distribution of intimate images stands.

CONCLUSION and DISPOSITION [ 23 ] In the result, the appeals from convictions for mischief and related breaches of court orders are allowed, the convictions quashed and acquittals entered. [ 24 ] The appeal from the conviction for distribution of intimate images is dismissed. _____________________________ Daniel M. Boone Justice