R. v. Goodman, 2011 MBCA 22

Citation: R. v. Goodman, 2011 MBCA 22 Date: 20110215 Docket: AR 10-30-07469 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Michel A. Monnin Mr. Justice Martin H. Freedman Mr. Justice Richard J. Chartier BETWEEN: ) M. O. WalkerHER MAJESTY THE QUEEN ) for the Appellant ) Respondent ) C. A.

Vanderhooft ) for the Respondent- and - ) ) Appeal heard andDARREN RICHARD GOODMAN ) Decision pronounced: ) February 9, 2011 (Accused) Appellant ) ) Written reasons: ) February 15, 2011 MONNIN J.A. 1 This is an appeal from a conviction of aggravated assault and the sentence imposed following a trial. 2 Following very able and thorough submissions by counsel for the Crown, we nonetheless allowed the appeal, quashed theconviction and ordered a new trial, with short reasons to follow.

These are our reasons. 3 In his factum, the accused argued that the trial judge misdirected himself regarding the issues of credibility and reasonabledoubt. More precisely, he argued that the judge failed to consider and apply the principles set out in R. v.

W.(D.), (SCC), [1991] 1 S.C.R. 742. 4 The Crown conceded that the trial judge failed to refer to W.(D.), but argued that the reasons of the trial judge, when readin context and in their totality, cover the issues that W.(D.) deals with, namely, that the trial judge did not believe the evidence of theaccused and was not left with a reasonable doubt by it, and finally, that on the basis of the evidence which he did accept, he wasconvinced beyond a reasonable doubt of the guilt of the accused. In addition, the Crown argued, on the basis of the pronouncementscontained in R. v.

R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, and R. v.

Gagnon, (SCC), [1996] 1 S.C.R. 185, that even ifwe were to conclude that the trial judge erred in not applying the W.(D.) principles, the evidentiary record was sufficient to allow us touphold the conviction. 5 If one considered the reasons of the trial judge in isolation, the Crown’s argument might have merit, but statements madeby the trial judge during the course of closing submissions made by defence counsel render the judge’s silence with respect to the W.(D.)principles and their applicability to this case more than a trifling troublesome. 6 In those submissions, counsel for the accused argued that W.(D.) was applicable.

The trial judge maintained that the casebefore him was not one of credibility and that W.(D.) did not apply. The exchange was as follows: [Mr. Walker:] …. And I would ask Your Honour to consider the -- consider that in applying the test in W.D. Those are all mycomments. THE COURT: I don’t see how that works at all. I mean, how else would she perceive the incident -- I’m talking about the stabbing

incident -- but intentional? Why would she perceive it as an attempt -- a failed attempt to cut the receiver cord just below the telephone she was holding? I mean, why would -- he didn’t announce, stop everyone, I’m about to try and cut the cord just below where you’re holding it. I mean, obviously it was a spontaneous, even by his description, a spontaneous, off-the-wall type thing because even he said, I don’t know why I did that. You know, there were other places to cut. That came up in cross-examination: why didn’t you pick some remote area far away from the victim? So how does W.D. come in play?

I mean, how else could she -- where does credibility come? She got stabbed and what -- is it really plausible that anybody stabbed in these circumstances would think that it was unintentional? And why would you come to that conclusion? MR. WALKER: Well, I, I, I think Your Honour has to consider -- W.D. requires Your Honour to consider the evidence of, of, of the accused and, and obviously to consider all the evidence before the court. And I would submit that -- THE COURT: But it’s credibility that W.D. is all about and how does that play in to this scenario? MR. WALKER: Well, Mr., Mr.

Goodman is essentially -- THE COURT: She can -- she could -- she’s, I think -- quite frankly, my assessment of her evidence, I think she, she appears to sincerely hold with the idea, regardless of what the court thinks, that it was an intentional act; that it couldn’t conceivably have been otherwise, given the scenario. The court may come to a different conclusion. I’m not saying the court will agree with her but I don’t think it really goes to her credibility, that’s all. MR.

WALKER: So -- THE COURT: So W.D. isn’t in play. [emphasis added] 7 The Crown argued that the judge’s words in this passage refer only to the evidence of the complainant as it relates to the accused’s intent and not to the evidence as a whole. We beg to differ and, in our view, that position is reinforced by the judge’s absolute silence as to the W.(D.) principles in his reasons. 8 A trial judge’s failure to refer to the W.(D.) principles is not, by itself, a reversible error, but that is not what occurred here.

The judge, during the course of closing submissions, indicated his refusal to apply the essential principles of W.(D.) . In his reasons he does cover some of the W.(D.) elements, but in a very unorthodox manner. After finding that he did not believe the accused, he remains totally silent with respect to the second prong of the test, namely, whether that evidence might have raised a reasonable doubt in his mind. His reasons also demonstrate a lack of analysis with respect to the third prong of the test. He undertook no real analysis of the evidence of the complainant.

The issue here is not simply the credibility, or lack thereof, of the accused, but how that finding relates to the Crown’s burden of proof beyond a reasonable doubt. 9 Furthermore, it cannot be said that the failure to properly rely on W.(D.) was due to pressure of time caused by a heavy circuit load as the judge reserved his decision following the trial and delivered his reasons some months later. 10 In the circumstances of this case, the trial judge’s failure to analyze the evidence in the manner suggested by W.(D.) , let alone failing entirely to even refer to the principles involved in the W.(D.) three-step process, was, in our view, an error in law. 11 Accordingly, the appeal is allowed, the conviction is quashed, and because of the fact that this is a case where findings of credibility are crucial to its disposition, a new trial must be held. 12 Because of our decision on the conviction appeal, there is no need to deal with the sentence appeal.

J.A.

I agree: J.A. I agree: J.A.