R. v. Sharpe, 2024 NLSC 25

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Sharpe , 2024 NLSC 25 Date : February 7, 2024 Docket : 202301G3199 His Majesty The king v. Thomas Randolf Sharpe Before: Chief Justice Raymond P. Whalen Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: January 29-31, 2024 Date of Oral Judgment: February 7, 2024

Summary: The Crown had not discharged its onus of proving beyond a reasonable doubt that the alleged events occurred. The Accused was accordingly acquitted on all counts. Appearances: Adrienne Janes Appearing on behalf of the Crown

Andrea K. Vizsolyi Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320; R. v. W. (D.), (SCC), [1991] 1S.C.R. 742; Faryna v. Chorny, (BC CA), [1952] 2 D.L.R. 354, 4 W.W.R. 171 (B.C. C.A.); R. v. H. (C.) (1999), (NL CA), 182 Nfld. & P.E.I.R. 32, 44 W.C.B. (2d) 162 (Nfld. C.A.); R. v. W. (R.), (SCC), [1992] 2S.C.R. 122; R. v. D.D., 2022 ONCA 786; R. v. G.F., 2021 SCC 20; R. v. T.P., (N.L. P.C.) STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c.

C-46 REASONS FOR JUDGMENT Whalen C.J.: INTRODUCTION [1] The Accused is charged with four offences as outlined in an Indictment filed on July 6, 2023, which reads as follows: Count 1 On or between the 1st day of January, 2009, A.D., and the 1st day of April, 2009, A.D., in the Town of Shearstown, in the Province ofNewfoundland and Labrador, did endanger the life of Nathan Reid, thereby committing an aggravated assault contrary to

Section 268 ofthe Criminal Code. Count 2 On or between the 1st day of January, 2009, A.D., and the 1st day of April, 2009, A.D., in the Town of Shearstown, in the Province ofNewfoundland and Labrador, did in committing an assault on Nathan Reid, use a weapon to wit a belt, contrary to

Section 267(

a) of theCriminal Code Count 3 On or between the 1st day of January, 2009, A.D., and the 1st day of April, 2009, A.D., in the Town of Shearstown, in the Province ofNewfoundland and Labrador, did in committing an assault on Nathan Reid, use a weapon to wit a knife, contrary to

Section 267(

a) of theCriminal Code Count 4 On or between the 1st day of January, 2009, A.D., and the 1st day of April, 2009, A.D., in the Town of Shearstown, in the Province ofNewfoundland and Labrador, did commit an assault on Nathan Reid, contrary to

Section 266 of the Criminal Code. [2] The Indictment was amended at trial, with the dates of the alleged offences in each count now reading: On or between the 1st day of December, 2008, A.D., and the 1st day of April, 2009, A.D. … [3] The trial of this matter took place on January 29, 30 and 31, 2024. The Court heard from four witnesses: Cst. Sheldon Dyke,Nathan Reid, Kelly Reid and the Accused.

issue Has the Crown proven beyond a reasonable doubt that the Accused committed the alleged offences? the law [ 4 ] The provisions of the Criminal Code , R.S.C. 1985, c. C-46 , setting out the basis for the charges laid against the Accused are sections 266 , 267 (

a) and 268 . The relevant portions of these sections are: Assault 266 Every one who commits an assault is guilty of (

a) an indictable offence and is liable to imprisonment for a term not exceeding five years; or (

b) an offence punishable on

summary conviction. Assault with a weapon or causing bodily harm 267 Every person is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years or is guilty of an offence punishable on

summary conviction who, in committing an assault, (

a) carries, uses or threatens to use a weapon or an imitation thereof, … Aggravated assault 268

(1) Every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant. Punishment

(2) Every one who commits an aggravated assault is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years. Excision

(3) For greater certainty, in this section, “wounds” or “maims” includes to excise, infibulate or mutilate, in whole or in part, the labia majora, labia minora or clitoris of a person, except where (

a) a surgical procedure is performed, by a person duly qualified by provincial law to practise medicine, for the benefit of the physical health of the person or for the purpose of that person having normal reproductive functions or normal sexual appearance or function; or (

b) the person is at least eighteen years of age and there is no resulting bodily harm.

Consent

(4) For the purposes of this

section and

section 265, no consent to the excision, infibulation or mutilation, in whole or in part, of the labiamajora, labia minora or clitoris of a person is valid, except in the cases described in paragraphs (3)(

a) and (b). [5] Fundamental to our system of criminal law is the requirement that the Crown prove beyond a reasonable doubt that an accusedperson is guilty of the offences charged. Any discussion on what reasonable doubt means in my view starts with reference to thejudgment of Cory J., in R. v.

Lifchus, (SCC), [1997] 3 S.C.R. 320 at paragraph 36: … the standard of proof beyond a reasonable doubt is inextricably intertwined with that principle fundamental to all criminal trials, thepresumption of innocence; the burden of proof rests on the prosecution throughout the trial and never shifts to the accused; a reasonable doubt is not a doubt based upon sympathy or prejudice; rather, it is based upon reason and common sense; it is logically connected to the evidence or absence of evidence; it does not involve proof to an absolute certainty; it is not proof beyond any doubt nor is it an imaginary or frivolous doubt; and more is required than proof that the accused is probably guilty — a jury which concludes only that the accused is probably guilty mustacquit. [6] In the case now before the Court, the Accused testified in his own defence.

Cory J., in R. v. W. (D.), (SCC),[1991] 1 S.C.R. 742 at paragraphs 9-11 stated that in such cases: … It is incorrect to instruct a jury in a criminal case that, in order to render a verdict, they must decide whether they believe the defenceevidence or the Crown’s evidence.

Putting this either/or proposition to the jury excludes the third alternative; namely, that the jury,without believing the accused, after considering the accused’s evidence in the context of the evidence as a whole, may still have areasonable doubt as to his guilt. … 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, ifthey do not believe the accused’s evidence but still have a reasonable doubt as to his guilt after considering the accused’s evidence in thecontext of the evidence as a whole. See R. v. Challice (1979), (ON CA), 45 C.C.C. (2d) 546 (Ont. C.A.), approved inR. v. Morin, supra, at p. 357 [(1988) 2 S.C.R.]. … 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 whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [7] The Complainant and Accused testified, with the Accused denying that the events occurred. Both witnesses appeared sincere. Neither was evasive nor argumentative, and this may well be a case where both believe they are telling the truth.

The reliability of thetestimony of both these witnesses must be assessed and examined for its consistency with other evidence, as well as for its harmony withthe given circumstances. [8] In Faryna v. Chorny, (BC CA), [1952] 2 D.L.R. 354, 4 W.W.R. 171 (B.C. C.A.), O’Halloran J.A., of theBritish Columbia Court of Appeal made the following observations on the issue of credibility, commencing at paragraph 9 of the

decision: If a trial judge’s finding of credibility is to depend solely on which person he thinks made the better appearance of sincerity in thewitness box, we are left with a purely arbitrary finding and justice would then depend upon the best actors in the witness box. Onreflection it becomes almost axiomatic that the appearance of telling the truth is but one of the elements that enter into the credibility ofthe evidence of a witness.

Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what hehas seen and heard, as well as other factors, combine to produce what is called credibility, see Raymond v. Bosanquet Tp. (1919) (SCC), 59 S.C.R. 452, at 460. A witness by his manner may create a very unfavourable impression of his truthfulness uponthe trial judge and yet the surrounding circumstances in the case may point decisively to the conclusion that he is actually telling thetruth. I am not referring to the comparatively infrequent cases in which a witness is caught in a clumsy lie.

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether thepersonal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examinationof its consistency with the probabilities that surround the currently existing conditions.

In short, the real test of the truth of the storyof a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informedperson would readily recognize as reasonable in that place and in those conditions. Only thus can a court satisfactorily appraise thetestimony of quick-minded, experienced and confident witnesses, and of those shrewd persons adept in the half-lie and of long andsuccessful experience in combining skilful exaggeration with partial suppression of the truth.

Again a witness may testify what hesincerely believes to be true, but he may be quite honestly mistaken. For a trial judge to say “I believe him because I judge him to betelling the truth”, is to come to a conclusion on consideration of only half the problem. In truth it may easily be self-direction of adangerous kind. The trial judge ought to go further and say that evidence of the witness he believes is in accordance with the preponderance ofprobabilities in the case and, if his view is to command confidence, also state his reasons for that conclusion.

The law does not clothe thetrial judge with a divine insight into the hearts and minds of the witnesses. And a court of appeal must be satisfied that the trial judge’sfinding of credibility is based not on one element only to the exclusion of others, but is based on all the elements by which it can hetested in the particular case. [emphasis added] [9] In R. v. H. (C.) (1999), (NL CA), 182 Nfld. & P.E.I.R. 32, 44 W.C.B. (2d) 162 (Nfld.

C.A.) at paragraph23, Wells C.J., provided helpful direction in a credibility assessment: One important aspect to be considered in assessing credibility, is consistency or lack of it in statements made by the witness whenaddressing the matter in the witness box and on other occasions. It is critically important therefore that a trial judge deal with indicatedinconsistencies when assessing credibility of an only, or a critical, witness testifying against an accused. As Galligan J.A. observed in R.v. G. (M.) (1994), (ON CA), 93 C.C.C. (3d) 347 (Ont.

C.A.) at p. 354-355: Probably the most valuable means of assessing the credibility of a crucial witness is to examine the consistency between what thewitness said in the witness-box and what the witness has said on other occasions, whether on oath or not. Inconsistencies on minormatters or matters of detail are normal and are to be expected. They do not generally affect the credibility of the witness. This isparticularly true in cases of young persons.

But where the inconsistency involves a material matter about which an honest witness isunlikely to be mistaken, the inconsistency can demonstrate a carelessness with the truth. The trier of fact is then placed in the dilemma oftrying to decide whether or not it can rely upon the testimony of a witness who has demonstrated carelessness with the truth. The effect of inconsistencies upon the credibility of a crucial witness was recently described by Rowles J.A. speaking for the BritishColumbia Court of Appeal in R. v.

B. (R.W.) (1993), 40 W.A.C. 1 at pp. 9-10, 19 W.C.B. (2d) 260: Where, as here, the case for the Crown is wholly dependent upon the testimony of the complainant, it is essential that the credibility andreliability of the complainant’s evidence be tested in the light of all of the other evidence presented. [emphasis in original] [10] Special consideration must be given to the fact that the Complainant, though an adult at the time of trial, testified to events thatoccurred during his early childhood.

The leading case respecting adults testifying to events that occurred when they were childrenremains the Supreme Court of Canada’s decision in R. v. W. (R.), (SCC), [1992] 2 S.C.R. 122. There, McLachlin J.,wrote at paragraphs 26 and 27: As Wilson J. emphasized in B. (G.), these changes in the way the courts look at the evidence of children do not mean that the evidence ofchildren should not be subject to the same standard of proof as the evidence of adult witnesses in criminal cases.

Protecting the liberty ofthe accused and guarding against the injustice of the conviction of an innocent person require a solid foundation for a verdict of guilt,whether the complainant be an adult or a child. What the changes do mean is that we approach the evidence of children not from theperspective of rigid stereotypes, but on what Wilson J. called a “common sense” basis, taking into account the strengths and weaknesseswhich characterize the evidence offered in the particular case.

It is neither desirable nor possible to state hard and fast rules as to when a witness's evidence should be assessed by reference to “adult” or “child” standards — to do so would be to create anew stereotypes potentially as rigid and unjust as those which the recent developments in the law’s approach to children’s evidence have been designed to dispel. Every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed by reference to criteria appropriate to her mental development, understanding and ability to communicate. But I would add this.

In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness.

Yet with regard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying. [ 11 ] The evidence of children, or adults testifying to events that occurred when they were children, does not reduce the standard of proof requisite to entering a finding of guilt in criminal proceedings. The jurisprudence acknowledges that children experience the world differently than adults do.

A child often will not be aware of peripheral information surrounding an event but, in order to ground a conviction, the central elements of an allegation must be able to withstand significant scrutiny. When assessing credibility, plausibility of the events occurring as alleged is an important aspect of the analysis, as was articulated in R. v.

D.D. , 2022 ONCA 786 , at paragraph 8 : … To be clear, there can be no issue taken with a trial judge finding that details provided by an adult witness about a childhood experience are the kinds of things a child would remember, or that details recounted by the adult witness provide plausibility or coherence to the account.

But what a trial judge cannot do is infer that such details, being provided by an adult witness, must be true because a child would not have the intelligence or experience to concoct those details. … [ 12 ] As an additional consideration, the jurisprudence distinguishes between credibility and reliability in a witness, with the former tending to refer to the witness’ honesty and forthrightness and the latter corresponding to the level of accuracy that can be attributed to testimony. In R. v.

G.F. , 2021 SCC 20 , the Supreme Court of Canada wrote at paragraph 82: Credibility findings must also be assessed in light of the presumption of the correct application of the law, particularly regarding the relationship between reliability and credibility.

The jurisprudence often stresses the distinction between reliability and credibility, equating reliability with the witness' ability to observe, recall, and recount events accurately, and referring to credibility as the witness' sincerity or honesty: … [ 13 ] A witness may indeed appear very credible in that she/he believes themselves to be telling the truth, but their evidence may nevertheless be insufficiently reliable to support a conviction with respect to the criminal standard of proof. [ 14 ] It is with these principles in mind that I assess the evidence before the Court. the evidence [ 15 ] The Complainant, now 19, testified about events that occurred 15 years ago when he was between four and five years old.

He stated that the Accused, for a period of time, hit him regularly with a belt. He further stated that, on one occasion while in the bath, the Accused held his head under the water until he “blacked out”. The Complainant also testified that on another occasion the Accused held a knife to his throat and threatened to kill him.

The Complainant stated that these events occurred when his mother was working. [ 16 ] The Accused denied each of these allegations, stating that the events described by the Complainant did not occur. [ 17 ] It is common ground that the Accused was married to the Complainant’s mother at the time of the alleged events and they lived together with the Complainant and a second child. The mother worked shifts outside the home. The Accused and the Complainant’s mother separated in June 2011 because of a breakdown of the relationship.

The Complainant’s mother testified that the separation was unrelated to the alleged abuse. She stated that she became aware of the alleged abuse about two weeks before separation, but did not raise the allegations of abuse with the Accused. At and around this time, in addition to the Complainant’s mother, the Complainant’s grandmother, grandfather, biological father and uncle were aware of the allegations.

The alleged incidents were not reported to anyone in authority. [ 18 ] In 2021, as a result of an unrelated investigation, the allegations of the Complainant became known to the police and charges were laid against the Accused. The Complainant provided a statement to the police on May 4, 2021 (the “2021 Statement”). The Complainant was a minor when he gave his 2021 Statement, and his mother was present during the interview.

There was some evidence at trial that the Complainant’s mother interjected and provided information when the Complainant was giving his statement, who was then speaking of events 12 years earlier. [ 19 ] There are a number of discrepancies between the Complainant’s 2021 Statement and his testimony at trial.

When these discrepancies were pointed out to the Complainant, the Complainant adopted the contents of his 2021 Statement over his viva voce testimony in the first instance. [ 20 ] It is also noteworthy that the Complainant made no reference to having blacked out in his 2021 Statement, but at trial described being held under water in the bathtub until he blacked out. [ 21 ] The Complainant testified that he was threatened by the Accused with a knife held at his throat and this happened while he was getting himself something to eat in the kitchen.

The Complainant’s mother testified that when the Complainant was four or five and he did not make food for himself. [ 22 ] There was also disparate testimony with respect to whether there was a belt in the house. The Complainant testified that he was regularly beaten by the Accused with a black belt. The Accused stated that for years prior to the times of the alleged abuse he never wore belts and did not own one. He further stated that he wore exclusively jogging pants or tracksuits. Further, he claimed that he does not own a belt to this day.

The Complainant’s mother did not appear certain but thought the Accused had a brown belt in the residence

and she confirmed that the Accused mainly wore jogging style pants. [23] The Complainant described the abuse as a number of strikes with a black belt on his buttocks while placed over the Accused’sknee, which occurred a number of times per week and over a period of time. The Complainant’s mother said she bathed the Complainantat least every second night but did not observe any red marks, welts or bruising on the child’s buttocks.

She said she observed only themarks and bruises as would be expected in a four to five year old little boy. [24] I note that both the Accused and the Complainant appeared honest in their testimony. They were forthright and to the point,and their demeanour did not suggest that they were testifying to anything other than that which they believed to be true. In this senseboth the Accused and the Complainant were credible witnesses. analysis [25] Given this review of the evidence as a whole, I conclude that it cannot support the charges to the standard of proof required inorder to enter a conviction.

The Complainant’s evidence with respect to the substance of the allegations is unreliable. [26] When following a W. (D.) analysis, the first question that must be asked is: Do I believe the testimony provided by theAccused? On its face, the Accused’s evidence is credible and is a denial of the assaults. The evidence of the Accused must be viewedfrom the lens of obvious self-interest, but overall, his evidence is consistent with the preponderance of the probabilities of what likelyoccurred.

The purpose of the W. (D.) analysis is to ensure that trials do not devolve into credibility contests between an Accused andComplainant. The Accused, independent of the corroborating evidence, was convincing. [27] The Complainant’s evidence was likewise convincing insofar as the Complainant appeared honest with a sincere demeanour. In the face of all the evidence as presented, I cannot answer either of the first two W. (D.) questions in the affirmative.

It is necessary tomove to the third part of the analysis. [28] In this case there were a number of inconsistencies within the Complainant's evidence and a number of inconsistencies betweenthe Complainant's evidence and the testimony of other witnesses. While it is true that minor inconsistencies may not unduly diminishthe credibility and reliability of a witness, a series of inconsistencies may become quite significant. [29] Further, there is no reduced standard of proof where the evidence is that of children or an adult testifying to events when theywere four or five.

Inconsistences of time, location, or number of events may be considered examples of peripheral matters where suchinconsistencies should not weigh too heavily on the reliability of testimony. However in this case, one cannot discount the significantnumber of inconsistencies in the Complainant’s evidence surrounding the alleged assaults. [30] There is no rule as to when, in the face of inconsistency, reasonable doubt may arise, but the totality of present inconsistenciesmust be looked at in order to assess whether any witness’ evidence is reliable.

This is particularly so when there is no supportingevidence on the central issue, which is the case here. [31] There are several distinct pieces of evidence I accept, that, when taken as a whole, give rise to a reasonable doubt as to the guiltof the Accused. Firstly, while there was inconsistent evidence with respect to whether there was a belt (the weapon) in the house, boththe Accused and the Complainant’s mother testified to the fact that there was no black belt in the residence.

While the colour of the beltused in an alleged assault may be a peripheral detail to the fact of the assault itself, the Complainant was consistent in describing a blackbelt and the evidence is unclear if any belt was in the residence that could be the weapon in question. [32] More significantly, the Complainant’s mother, who bathed the Complainant at least every second night, did not observe anyred marks or bruising on the Complainant.

The Complainant accepted the contents of his 2021 Statement that he was slapped on thebuttocks with a black belt five to six times for two to three hours every night his mother worked. The Complainant’s direct testimonysuggested he was struck two to three times for 20-30 minutes, twice a week. If the beating occurred as the Complainant alleged in eitherdescription, it is very likely that there would have been some red marks or more on the Complainant’s buttocks. The mother’s testimonyis that while bathing the Complainant every second night or more that she saw no marks on the Complainant.

This would not be inharmony with the child abuse described as one would expect some sign of the strapping. [33] Additionally, respecting the circumstances surrounding the incident with the knife, the mother testified that the Complainantwould not have been getting himself something to eat. One would not expect a four year old child to be preparing food. This was not aninsignificant part of the Complainant’s testimony describing the incident. It was central to how he described the events as unfolding inthe kitchen where there were kitchen knives around.

The Complainant in his testimony also gave contradictory descriptions of theseevents compared to his 2021 Statement. The Accused was standing to his side compared to approaching him from behind and the eventsoccurred the night after the bathroom incident compared to two to three months after that incident. [34] Finally, the Complainant’s own inconsistencies respecting the bathtub incident calls the veracity of the whole event intoquestion. The Complainant did not describe being held under water until blacking out in his 2021 Statement. This is not a peripheraldetail.

Coupled with this, the story as told by the Complainant was inconsistent with the probabilities that surrounded the existingconditions of the event. One could easily conclude that a child held under water until they lose consciousness is more likely to drownthan they are to wake up unattended as described by the Complainant. [35] In R. v. T.P., (N.L. P.C.) at page 13, the inconsistencies and improbabilities are “critical and numerous andthey go to the very detail of the assaults”.

The standard obliging the Crown to prove evidence beyond a reasonable doubt is exacting andin accordance with the third branch of W. (D.), I do not find that the Crown has discharged its burden. [36] This may have been a brutal assault(

s) and only the two parties may know the absolute truth. However, when reviewed in thecontext of all the evidence presented at trial, I believe the testimony of the Accused is more consistent with the preponderance ofprobabilities of what occurred in that time and place.

[ 37 ] The case of the Crown is wholly dependent upon the testimony of the Complainant, which evidence I find unreliable. Therefore, there is insufficient strength in the Crown’s case to support a conviction. When viewing the total of the evidence presented, the Crown has not proven beyond a reasonable doubt that the alleged offences occurred. conclusion [ 38 ] The onus is on the Crown to prove beyond a reasonable doubt that the events occurred, to prove the actus reus . The Crown has not discharged this onus and I am acquitting the Accused of all charges. _____________________________ Raymond P. Whalen Chief Justice