R. v. Wright, 2013 MBCA 109

Citation: R. v. Wright, 2013 MBCA 109 Date: 20131219 Docket: AR 12-30-07809 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Barbara M. Hamilton Mr. Justice Marc M. Monnin Mr. Justice William J. Burnett BETWEEN : ) J. L. Ostapiw HER MAJESTY THE QUEEN ) for the Appellant ) Respondent ) R. N. Malaviya ) for the Respondent - and - ) ) ) Appeal heard: NICHOLAS ALFRED WRIGHT ) April 26, 2013 ) (Accused) Appellant ) Judgment delivered: ) December 19, 2013 NOTICE OF RESTRICTION ON PUBLICATION: No one may publish, broadcast or transmit any information that could disclose the identity of the complainant(

s) or a witness(es) (see s. 486.4 of the Criminal Code ). BURNETT J.A. [ 1 ] The accused was convicted of sexual assault and sentenced to three years. At issue are the adequacy of the trial judge’s reasons and the reasonableness of the verdict. The trial judge’s credibility findings are key to both grounds of appeal. [ 2 ] To determine whether reasons are adequate, it is necessary to perform a contextual review of the evidence, the submissions of counsel and the live issues at trial ( R. v. R.E.M. , 2008 SCC 51 at paras. 55-57 , [2008] 3 S.C.R. 3 ).

When deciding whether a verdict is reasonable, it is necessary to perform a similar analysis – the verdict is to be measured against the totality of the evidence adduced at trial. And where the verdict is reached by a trial judge without a jury, the reasonableness of the verdict may also be assessed “by scrutinizing the logic of the judge’s findings of fact or inferences drawn from the evidence admitted at trial ” ( R. v. Sinclair , 2011 SCC 40 at paras. 15 , 69, [2011] 3 S.C.R. 3). [ 3 ] For the reasons which follow, this appeal must be allowed and the conviction set aside.

While the inadequacy of the reasons, standing alone, do not constitute reversible error when they are read in the context of the entire proceedings, it is my view that the logic of the trial judge’s findings of fact or inferences drawn from the evidence is not discernible and that the verdict is therefore unreasonable. The Evidence at Trial [ 4 ] On September 9, 2009, the complainant went to a party in search of company, to party and to use recreational drugs.

The complainant knew the accused, and he was present when she arrived. [ 5 ] During the course of the evening and the following morning, the complainant consumed significant quantities of beer,

cocaine and ecstasy, as well as a prescription drug provided to her by the owner of the house. The complainant acknowledged that she probably smoked marihuana, and there was evidence that at the time she was taking one or more of her own prescription drugs. [ 6 ] The accused also consumed various quantities of beer, cocaine, ecstasy and marihuana. [ 7 ] The accused and the complainant left the party a number of times.

At one point, they went to a baseball diamond or a school yard where they kissed and fondled each other. [ 8 ] Later that evening or early the following morning, the accused and the complainant went to a park. While the complainant acknowledged that there was more physical activity and that they touched each other’s genitals with their hands, she was adamant that their clothes were not off (other than her bra) and that there was no oral or vaginal sex.

The accused, on the other hand, testified that at the park their clothes were off, with the exception of the complainant’s shirt, and that they both engaged in oral sex and vaginal intercourse. [ 9 ] According to the complainant, throughout the evening the accused said that he wanted to have sex, but she told him that she was not interested and that it was never going to happen. The accused denied all of this and testified that they both agreed to the sex in the park and (subsequently) in the bedroom of the house. [ 10 ] The accused and the complainant returned from the park around 6:00 a.m. the next morning.

They subsequently went to an upstairs bedroom in the house and laid down on a bed. [ 11 ] According to the complainant, she was lying with her back to the accused when he pulled down her pants and engaged in anal sex. The complainant testified that she begged him to stop, but he continued for approximately ten minutes. [ 12 ] According to the accused, he and the complainant had consensual vaginal sex in the bedroom. They did not have anal sex and the complainant never asked him to stop or revoked her consent. In a prior statement to the police, the accused said that there was probably anal intercourse.

However, at trial he testified that there was no possibility he penetrated the complainant’s anus and that he was one hundred percent certain, although he might have penetrated her anus with his finger. [ 13 ] In his oral reasons, the trial judge noted (incorrectly) that there was trauma to the complainant’s vagina, but counsel for the accused conceded at the hearing of this appeal that, in context, this error was of little consequence.

In addition, the trial judge noted (correctly) that there were three superficial lacerations to the anus. [ 14 ] Later that day the complainant told a nurse that she thought there had been both vaginal and anal intercourse. The complainant advised the nurse that cunnilingus took place, but she was unsure whether the accused had put his penis into her mouth.

The Trial Judge’s Reasons [ 15 ] At the beginning of his reasons, the trial judge noted that counsel had agreed that he should focus on what happened in the bedroom on September 10, 2009, between 7:00 a.m. and 9:00 a.m., and that the issue: … is simply one of consent. In other words, has the Crown proven beyond a reasonable doubt that [the complainant] did not consent to the sexual activity, the sexual touching, which took place at about that time at that location? . . . . . …. Did she consent, or did she not consent? Did she voluntarily agree to have sexual relations with you at that time? Or did she not?

Did she want to have the type of sexual relations that were going on at that time? Or did she not? . . . . . One final point, then, in relation to the elements of the offence, as I understand it, incapacity to consent. In other words, [the complainant’s] condition is not being raised as an issue for the Crown.

In other words, the Crown is not saying that [the complainant] was incapable of consenting, but simply put again, they simply say she did not consent, and they have proven she did not consent, and she did not want to have sexual relations with [the accused] at that time at that place. [ 16 ] Before addressing those issues, the trial judge reviewed the evidence as to what transpired during the evening of September 9th and in the early morning hours of September 10th.

With respect to the trip to the baseball diamond or school yard, the trial judge found that it was common ground that “both parties made out with each other consensually.” With respect to the trip to the park, he found that there was more consensual activity, but he noted that the stories diverged as to whether there was oral and/or vaginal sex. [ 17 ] The trial judge found that the complainant was mistaken as to some of the events and that her perception “was skewed

by significant alcohol, cocaine, prescription and illicit drug use” as well as other factors, such as the length of the party, fatigue, the time that had passed between September 10, 2009 and the trial (May 2012), and by “rationalization as to what happened that night as against what she thinks she might have done with consent.” [ 18 ] With respect to the sexual activity in the park, the trial judge concluded: Objectively, at the end of the day, what we’re left with is a woman who says she doesn’t want to have sex, but has some relations with you.

And then it appears, and I accept that sexual activity took place in the park of vaginal sexual activity and oral sexual activity. I accept that evidence of [the accused]. I disregard her evidence in that particular regard, as she did not seem to be concerned about that in any way. I find that incredible that a person would not want to have sex, then have sex, and not make a complaint about that particular aspect of having sex.

It’s just inconsistent. [emphasis added] [ 19 ] Although the trial judge found the accused responsive and candid in relation to most of his testimony, the trial judge found his evidence difficult to accept in relation to what happened in the bedroom between 7:00 a.m. and 9:00 a.m. [ 20 ] The trial judge said that he found the accused’s testimony “difficult to accept” for a number of reasons. The accused had consumed a large amount of alcohol mixed with a number of drugs.

He was overly confident – his confidence in testifying on various points was “somewhat remarkable” and he was “simply too sure of what was going on for my comfort.” He gave inconsistent statements to police “on critical matters,” and in particular with respect to his testimony that he was “certain that [he] did not have anal sex with her.” Finally, he did not believe the accused’ s explanation for the question posed by the complainant after the alleged anal sex, namely, “Why did you do that?” [ 21 ] The trial judge ultimately determined that, in the park, there was consensual oral and vaginal sex and, in the bedroom, there was consensual sexual (undefined) activity, but the complainant revoked her consent when she perceived that anal activity was taking place.

Because the accused did not stop when the complainant’s consent was withdrawn, the trial judge found the accused guilty of sexual assault. [ 22 ] At the conclusion of the hearing, the trial judge attempted to provide a clarification of his reasons: THE COURT: …. I just want to make it clear as well, in relation to your consideration here, and the conviction that I’ve registered, I did not find that [the accused] intended to have anal sex with [the complainant]. It happened, but he didn’t intend it. [THE CROWN]: Okay.

And just so I’m clear, then, there’s a finding that there was vaginal intercourse that occurred in the bedroom, and the consent was revoked in terms of the anal intercourse that occurred? THE COURT: There’s a finding, in my view, that sexual activity took place, which may have been vaginal, it may have been anal. It wasn’t intended to be anal. [The complainant’s] perception as to what it was was that it was anal, and she revoked when she thought it was anal. [THE CROWN]: Yes. Thank you. THE COURT: And the revocation of sexual activity at that point was not, I don’t want anal, it’s okay if we do vaginal.

It was a clear revocation of any sexual activity at that point, because, for whatever reason, mistaken or otherwise, she thought it was anal. It may have been. It may not have been. I don’t think that’s important. The important point is sexual activity. Penetration at some point was taking place at that time that she revoked. …. [ 23 ] In his reasons for sentence, the trial judge referred to the “consensual sexual activity of various forms at various times throughout the evening” and added:

…. But fundamentally, at the end of the day, the understanding of counsel hopefully is that the conviction was registered on the basis ofa consensual act of intercourse having taken place in the bedroom some time around seven o’clock in the morning. That consent waswithdrawn or revoked in clear terms when [the complainant] thought that there was anal intercourse going on, and clearly [the accused]ignored that revocation and completed the act for at least some few minutes before the act was complete from his perspective.

Therewas a clear view from me as to accepting her version of events at that time in terms of her utterances to stop and things of that nature andhis ignoring that. The Accused’s Position [24] The accused’s evidence was that all sexual activity between himself and the complainant was consensual and that at nopoint did the complainant revoke her consent. [25] The accused asserts that the trial judge erred when he found him guilty of sexual assault given his negative credibilityfindings in relation to the complainant, that the reasons for conviction were inadequate and that the verdict was unreasonable.

As to thelast point, the accused says that the verdict was not one which a properly instructed jury or a judge could reasonably have rendered (R. v.Yebes, (SCC), [1987] 2 S.C.R. 168, and R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381), that the judge reached hisverdict by an illogical or irrational reasoning process (R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190, and Sinclair), and that one ormore of his essential findings are incompatible with evidence that he accepted (R. v. R.P., 2012 SCC 22, [2012] 1 S.C.R. 746).

The Crown’s Position [26] In her oral submission following trial, Crown counsel said that “[a]t the end of the day, consent is the issue in this caseand it’s the Crown’s position that she did not consent to sexual activity of any kind in the bedroom and that her evidence supports thatand that there is corroboration, as well, surrounding that to support it.” Consistent with the complainant’s evidence, the Crown did nottake the position that the complainant had consented to sexual activity in the bedroom and subsequently revoked her consent. [27] The Crown took a significantly different position on appeal.

The Crown now says that the conviction rests on thefollowing findings of fact: 1. there was consensual sexual activity in the bedroom; 2. the complainant perceived that the accused was engaging in anal sex; 3. the complainant said: Stop it.

No, I don’t want to do this; 4. the complainant revoked her consent at that point; and 5. the accused continued to engage in sexual activity. [28] It is the Crown’s position that the trial judge’s findings of fact are supported by the evidence, his credibility findingsare reasonable and entitled to deference, there is no palpable and overriding error, the findings are logical, and none of the tests toestablish an unreasonable verdict have been met. Standard of Review [29] The standard of review when assessing the sufficiency of reasons is adequacy. In R. v.

N.H.P., 2013 MBCA 30,Hamilton J.A. summarized the basic principles which apply when assessing the adequacy of reasons (at para. 19): As explained in R.E.M., the purpose of reasons is to “show why the judge decided as he or she did” (at para. 17). Reasons will beinadequate if they are found to be insufficient to fulfill their purpose to inform the parties of the basis of the verdict, to provide publicaccountability and to permit meaningful appeal.

This is to be discerned from a functional approach to the reasons “when looked at in thecontext of the evidence, the submissions of counsel and the history of how the trial unfolded” (ibid.). [30] When assessing credibility findings, an appeal court must defer to the conclusions of the trial judge unless there hasbeen a palpable and overriding error (R. v. Gagnon, 2006 SCC 17 at para. 10, [2006] 1 S.C.R. 621).

The importance of the trial judge’sunique position to see and hear witnesses was underscored by the Supreme Court in R.E.M. (at para. 48): The sufficiency of reasons on findings of credibility — the issue in this case — merits specific comment. The Court tackled this issue inGagnon, setting aside an appellate decision that had ruled that the trial judge’s reasons on credibility were deficient.

Bastarache andAbella JJ., at para. 20, observed that “[a]ssessing credibility is not a science.” They went on to state that it may be difficult for a trialjudge “to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses andattempting to reconcile the various versions of events”, and warned against appellate courts ignoring the trial judge’s unique position tosee and hear the witnesses and instead substituting their own assessment of credibility for the trial judge’s. [31] However, in R. v.

Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, Charron J., writing for the court, observed that the

deference to be afforded to a trial judge on credibility findings is not unqualified when analyzing the sufficiency of reasons (at para. 26): At the trial level, reasons “justify and explain the result” (Sheppard [2002 SCC 26, [2002] 1 S.C.R. 869], at para. 24). Where a caseturns largely on determinations of credibility, the sufficiency of the reasons should be considered in light of the deference afforded totrial judges on credibility findings. Rarely will the deficiencies in the trial judge’s credibility analysis, as expressed in the reasons forjudgment, merit intervention on appeal.

Nevertheless, a failure to sufficiently articulate how credibility concerns were resolved mayconstitute reversible error (see R. v. Braich, [2002] 1 S.C.R. 903, 2002 SCC 27, at para. 23). As this Court noted in R. v. Gagnon, [2006]1 S.C.R. 621, 2006 SCC 17, the accused is entitled to know “why the trial judge is left with no reasonable doubt”: Assessing credibility is not a science. It is very difficult for a trial judge to articulate with precision the complex intermingling ofimpressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events.

That is whythis Court decided, most recently in H.L. [2005 SCC 25, [2005] 1 S.C.R. 401], that in the absence of a palpable and overriding error bythe trial judge, his or her perceptions should be respected. This does not mean that a court of appeal can abdicate its responsibility for reviewing the record to see whether the findings of fact arereasonably available.

Moreover, where the charge is a serious one and where, as here, the evidence of a child contradicts the denial of anadult, an accused is entitled to know why the trial judge is left with no reasonable doubt. [paras. 20-21] [emphasis added] [32] And finally, the standard of review where an unreasonable verdict is asserted was recently summarized by the SupremeCourt in R.P., as follows (at paras. 9-10): 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, and R. v.

Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36, determine whether the verdict is one that a properlyinstructed jury or a judge could reasonably have rendered. The appellate court may also find a verdict unreasonable if the trial judge hasdrawn an inference or made a finding of fact essential to the verdict that (1) is plainly contradicted by the evidence relied on by the trialjudge in support of that inference or finding, or (2) is shown to be incompatible with evidence that has not otherwise been contradicted orrejected by the trial judge (R. v.

Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at paras. 4, 16 and 19-21; R. v. Beaudry, 2007 SCC 5, [2007]1 S.C.R. 190). Whereas the question whether a verdict is reasonable is one of law, whether a witness is credible is a question of fact. A court of appealthat 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, at para. 7). Analysis and Decision

i) Inadequate Reasons [33] The leading authorities on the issue of inadequate reasons are R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869; R. v.Braich, 2002 SCC 27, [2002] 1 S.C.R. 903; and R.E.M. The “simple underlying rule” was described in Sheppard as follows (at para.28): It is neither necessary nor appropriate to limit circumstances in which an appellate court may consider itself unable to exercise appellatereview in a meaningful way.

The mandate of the appellate court is to determine the correctness of the trial decision, and a functional testrequires that the trial judge’s reasons be sufficient for that purpose. The appeal court itself is in the best position to make thatdetermination. The threshold is clearly reached, as here, where the appeal court considers itself unable to determine whether thedecision is vitiated by error. Relevant factors in this case are that (

i) there are significant inconsistencies or conflicts in the evidencewhich are not addressed in the reasons for judgment, (ii) the confused and contradictory evidence relates to a key issue on the appeal,and (iii) the record does not otherwise explain the trial judge’s decision in a satisfactory manner. Other cases, of course, will presentdifferent factors. The simple underlying rule is that if, in the opinion of the appeal court, the deficiencies in the reasons preventmeaningful appellate review of the correctness of the decision, then an error of law has been committed. [emphasis added]

[ 34 ] In R.E.M. the Supreme Court provided further direction to appellate courts and made it clear that inadequate reasons will only constitute a basis for appellate intervention when an examination of the reasons and the entire record do not disclose the foundation of the conviction (at paras. 55-57): The appellate court, proceeding with deference, must ask itself whether the reasons, considered with the evidentiary record, the submissions of counsel and the live issues at the trial, reveals the basis for the verdict reached. It must look at the reasons in their entire context.

It must ask itself whether, viewed thus, the trial judge appears to have seized the substance of the critical issues on the trial. If the evidence is contradictory or confusing, the appellate court should ask whether the trial judge appears to have recognized and dealt with the contradictions. If there is a difficult or novel question of law, it should ask itself if the trial judge has recognized and dealt with that issue. If the answers to these questions are affirmative, the reasons are not deficient, notwithstanding lack of detail and notwithstanding the fact that they are less than ideal. ….

Appellate courts must ask themselves the critical question set out in Sheppard : Do the trial judge’s reasons, considered in the context of the evidentiary record, the live issues as they emerged at trial and the submissions of counsel, deprive the appellant of the right to meaningful appellate review? To conduct meaningful appellate review, the court must be able to discern the foundation of the conviction. Essential findings of credibility must have been made, and critical issues of law must have been resolved.

If the appellate court concludes that the trial judge on the record as a whole did not deal with the substance of the critical issues on the case (as was the case in Sheppard and Dinardo ), then, and then only, is it entitled to conclude that the deficiency of the reasons constitute error in law. [ 35 ] As I will explain, in my view this is one of those exceptional cases where inadequate reasons make it impossible to properly assess the reasonableness of the verdict. [ 36 ] The Crown conceded that credibility was the sole issue to be decided at trial.

In this case, and in Dinardo , the defence rested on the overall lack of credibility and reliability of the complainant’s testimony and on the accused’s testimony denying the complainant’s allegations. As Charron J. stated in Dinardo (at para. 29 ): …. In this context, it was incumbent upon the trial judge to explain, even in succinct terms, how he resolved these difficulties to reach a verdict beyond a reasonable doubt. [ 37 ] I am “well aware of the highly deferential standard required to overturn a trial judge on a credibility assessment” ( R. v.

Futic , 2013 MBCA 50 at para. 5 ), and of McLachlin C.J.C.’s admonition in R.E.M. where the appellate court (at para. 68): …. … fell into the trap identified in Gagnon of ignoring the trial judge’s unique position to see and hear witnesses, and instead substituted its own assessment of credibility for the trial judge’s view by impugning the reasons for judgment for not explaining why a reasonable doubt was not raised. [ 38 ] The focus here is not whether the trial judge made appropriate credibility findings.

The issue is whether his reasons adequately explain why he did not have a reasonable doubt in light of his credibility findings. [ 39 ] The complainant was adamant that she did not consent to any oral or vaginal sexual activity with the accused at any time. Notwithstanding that evidence, the trial judge accepted the accused’s evidence and found that there was oral and vaginal sexual activity in the park and that it was consensual.

He rejected the complainant’s evidence in that regard and characterized it as incredible and inconsistent. [ 40 ] The trial judge also rejected the complainant’s evidence in relation to the initial sexual activity in the bedroom, and he found that: … [T]here was initially the start of some further consensual sexual activity at that point. Until this point, I find that everything in these critical areas has been consensual. In other words, [the complainant] was a willing, volunteering participant in these matters. This is where it gets dicey, though, and this is where we get to the critical area.

And in this particular respect, we get to the issue of

whether or not [the complainant] consented to the sexual activities that then happened afterwards. [ 41 ] The findings of consensual sexual activity in the bedroom and revocation of consent to that activity are fundamental components of the trial judge’s decision. And this is where, as the trial judge observed, things get “dicey.” [ 42 ] The trial judge concluded that although consent was initially given, it was subsequently revoked when the complainant perceived that anal activity was taking place.

In arriving at that conclusion, the trial judge said that he believed the complainant and did not believe the accused. One reason he did not believe the accused was that he had consumed a large amount of alcohol mixed with a number of different drugs. But these factors did not prevent the trial judge from believing the accused’s evidence that the earlier sexual activity was consensual.

And the trial judge fails to explain why the complainant’s evidence should now be accepted when he had previously found that the complainant was affected by the same factors, as well as by fatigue, the passage of time, and a rationalization as to what had happened between the incident on September 10, 2009 and the trial in May 2012.

This failure to explain why the complainant should now be believed is of considerable importance given the trial judge’s previous findings relating to her credibility and his finding that at that particular point she was “messed up.” [ 43 ] In Dinardo , Charron J. observed that (at para. 27): Reasons “acquire particular importance” where the trial judge must “resolve confused and contradictory evidence on a key issue, unless the basis of the trial judge’s conclusion is apparent from the record” ( Sheppard , at para. 55 ).

Here, the complainant’s evidence was not only confused, but contradicted as well by the accused. As I will now explain, it is my view that the trial judge fell into error by failing to explain how he reconciled the inconsistencies in the complainant’s testimony on the issue of whether she invented the allegations.

I also conclude that the trial judge’s failure to provide such an explanation prejudiced the accused’s legal right to an appeal. [ 44 ] The need for explanation is particularly acute where the evidence of the complainant and the evidence of the accused conflicted on an essential issue, and where it is apparent that the trial judge generally accepted the accused ’s evidence on most of the other essential issues. This was not a case like R.E.M. where for most points the trial judge accepted the evidence of the complainant and rejected the evidence of the accused (see paras. 61, 66), or R. v.

Vuradin , 2013 SCC 38 , where the complainant’s evidence and the accused’s evidence conflicted, and the trial judge found the complainant’s evidence to be generally truthful and reliable. [ 45 ] I am aware, as was the trial judge, that he was free to accept or reject all, some or none of the complainant’s evidence, but that is not the issue. Fundamentally, the trial judge’s reasons are inadequate because they do not explain how he could disbelieve the complainant with respect to whether the sexual activity was consensual, but believe her with respect to the issue of revocation of consent.

In other words, the trial judge should have explained how, in the unique circumstances of this case, he reconciled his conclusion that the complainant was not to be believed when she said that she did not consent to oral or vaginal sexual activity in the bedroom (or elsewhere) with his finding that she was to be believed when she said she revoked her consent – a consent she said she never gave.

Without that explanation, the finding of consensual sex, on the one hand, and a finding of a revocation of consent, on the other hand, makes no sense based on the reasons and the record. [ 46 ] Inadequate reasons and an unreasonable verdict are distinct grounds of appeal which should not be conflated. The distinction and the importance of the distinction were described by this court in R. v. Mabior (C.L.) , 2010 MBCA 93 at paras. 23-26 , 258 Man.R. (2d) 166 . There is, however, a very important connection between the two grounds.

As Fish J. observed in Sinclair (at para. 25 ): …. … [I]n the absence of reasons that are adequate under Sheppard , a reviewing court could hardly assess their reasonableness under Beaudry . [ 47 ] In my view, the inadequacy of the reasons, standing alone, do not constitute reversible error given that some basis for the verdict may be made out from the record as a whole.

However, the failure to provide an adequate explanation for the matters described in paragraph 45 makes it impossible to assess the reasonableness of the verdict in the sense contemplated by Beaudry and leaves the accused and this court with an inability to understand why the judge was left with no reasonable doubt. ii) Unreasonable Verdict [ 48 ] Subsection 686(1) (

a) of the Criminal Code provides that this court may allow an appeal against conviction where it is of the opinion that the verdict is unreasonable. The focus is on the conclusion reached at trial, in particular whether the verdict is the error, and that is a question of law ( R.P. at para. 5 ). [ 49 ] The traditional test for an unreasonable verdict, described in Yebes and Biniaris , is whether the verdict is one that a properly instructed jury or judge could reasonably have rendered.

That test has been expanded for trials by judge alone, with the result that an appellate court may also find a verdict unreasonable if one or more of the trial judge’s essential findings are: 1. plainly contradicted by the evidence relied on by the trial judge in support of that inference or finding; or 2. shown to be incompatible with evidence that has not otherwise been contradicted or rejected by the trial judge.

(See Sinclair at para. 16, Beaudry at para. 98 and R.P. at para. 9.) Importantly, as noted in Beaudry, manifestly bad reasons areunreasonable because they are “illogical on their face” (at para. 97). [50] Although “unreasonable verdicts of the sort targeted by the Beaudry test ‘are exceedingly rare’ (para. 22)” (Sinclair atpara. 80), it is clear that the categories of errors warranting appellate intervention are not closed. For example, Fish J. notes (at para. 19): Illogical or irrational reasoning can render verdicts unreasonable under s. 686(1)(a)(

i) of the Code, in various ways. Beaudry identifiestwo. …. And in the same decision, Charron J. observes (at para. 84): …. (

c) The Beaudry test may apply in exceptional cases where the reasoning process of the trial judge is so irrational, or so at odds with theevidence, that it vitiates the verdict — even though that verdict is available on the evidence as a whole. In these rare cases, an appellatecourt will be justified in concluding that the verdict itself is unreasonable.

What precise kinds of errors would justify this conclusion is aquestion better left to be decided in cases where the issue will arise. …. [51] As noted previously, the reasonableness of the verdict is to be assessed by scrutinizing the logic of the trial judge’sfindings of fact or inferences drawn from the evidence. Here the trial judge disbelieved the complainant and found some aspects of herevidence to be inconsistent and incredible. In particular, he did not believe the complainant’s evidence that she did not consent to oral orvaginal sexual activity during the course of the evening and the following morning.

In doing so, he accepted the accused’s evidence. [52] The trial judge’s finding that the complainant revoked her previous consent to sexual activity goes to the “core” of hertestimony (R. v. Flores (R.B.), 2013 MBCA 4 at para. 44, 288 Man.R. (2d) 173) and is fundamental to his decision that a sexual assaulthappened in the bedroom. Absent an explanation, the trial judge’s finding that the complainant was not to be believed when she saysthat she did not consent to any sexual activity is not consistent with his essential finding that she was to be believed when she says thatshe revoked her consent.

And that essential finding is incompatible with his previous findings, which he neither contradicts nor rejects,concerning the complainant’s lack of credibility and her skewed perception. [53] While it may be argued that this case does not fall neatly within the two categories described in Beaudry and subsequentcases, I am of the view that, without an explanation, it is not possible to know or understand whether the trial judge’s reasoning processwas sound, and the trial judge’s assessment of the complainant’s credibility “cannot be supported on any reasonable view of theevidence” (R. v.

Burke, (SCC), [1996] 1 S.C.R. 474 at para. 7, R.P. at para. 10). In other words, the reasoning processof the trial judge is so at odds with his own credibility findings that it vitiates the verdict – even though that verdict may have beenavailable on the evidence as a whole (Sinclair at para. 84). Conclusion [54] For the foregoing reasons, I would ordinarily allow the appeal, set aside the conviction and order a new trial. However,the accused has already completed most, if not all, of his penitentiary sentence, and I do not believe that the interests of justice would beserved by retrying him. See R. v.

Grant (1975), (BC CA), 23 C.C.C. (2d) 317 (B.C. C.A.), R. v. Dillabough (1975), (ON CA), 28 C.C.C. (2d) 482 (Ont. C.A.), and R. v. P.L., [1995] O.J. No. 854 (QL) (C.A.), where the courts in thosecases came to a similar conclusion. [55] I therefore direct that the appeal be allowed and the conviction be set aside. J.A. I agree: J.A. I agree: J.A.