R. v. Roach, 2011 NSCA 95

NOVA SCOTIA COURT OF APPEAL Citation: R. v. Roach , 2011 NSCA 95 Date: 20111017 Docket: CAC 339422 Registry: Halifax Between: Barry Andrew Roach Appellant v. Her Majesty the Queen Respondent Judge: The Honourable Mr. Justice Jamie W.S. Saunders Appeal Heard: May 30, 2011 Subject: Aggravated Assault. Torture. Eyewitness Testimony. Credibility and Reliability. Photo Line-Ups. Bad Character Evidence. Admissibility. Unreasonable Verdict. Standard of Review.

Summary: Appeal from conviction for aggravated assault and assault with a weapon. The victim was tortured with utensils heated on a stove after intruders entered his home. He identified the appellant from a police photo line-up. The appellant said the trial judge erred in accepting the victim ’ s evidence as being credible and reliable; in admitting and treating prejudicial evidence concerning his criminal record and reputation; in misdirecting himself regarding prior consistent statements; in finding that identity had been proved beyond a reasonable doubt; and in rendering an unreasonable verdict.

Held: Appeal dismissed. No error by the trial judge in admitting or evaluating the evidence which ultimately led him to conclude that the appellant ’ s identity as the assailant had been proven beyond a reasonable doubt. On this record the verdict was clearly supported, and reasonable.

This information sheet does not form part of the court ’ s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 18 pages. NOVA SCOTIA COURT OF APPEAL Citation: R. v. Roach , 2011 NSCA 95 Date: 20111017 Docket: CAC 339422

Registry: Halifax Between: Barry Andrew Roach Appellant v. Her Majesty the Queen Respondent Judges: MacDonald, C.J.N.S.; Saunders and Oland, JJ.A. Appeal Heard: May 30, 2011, in Halifax, Nova Scotia Held: Appeal dismissed per reasons for judgment of Saunders, J.A.; MacDonald, C.J.N.S. and Oland, J.A. concurring. Counsel: Craig M. Garson, Q.C., for the appellant Mark A. Scott, for the respondent Reasons for judgment : [ 1 ] On July 22, 2009, around noon, Mr. Douglas Casey saw a car pull up in front of his house. Three people came to the front door. He recognized one as being an acquaintance of his son ’ s. Mr.

Casey invited the visitors to come in. He offered them refreshment. [ 2 ] For the next hour he was threatened and tortured with “ red hot ” knives that had been heated by one of the intruders on a burner of his kitchen stove. [ 3 ] Ultimately his assailants were interrupted and left the scene. The subsequent police investigation led to the arrest of the appellant and other individuals thought to be responsible. [ 4 ] After a six day trial before Nova Scotia Supreme Court Justice Peter M.S.

Bryson (as he then was), the appellant was convicted on various charges including aggravated assault and assault with a weapon and was sentenced to seven years imprisonment. [ 5 ] He now appeals his conviction but not his sentence. He asks that his conviction be overturned and an acquittal entered or, alternatively, that a new trial be ordered. [ 6 ] For the reasons that follow I would dismiss the appeal. To provide context for the discussion that follows I will start with a brief review of the facts. They are thoroughly canvassed in the trial judge ’ s decision now reported as R. v. Roach , 2010 NSSC 342 .

Further detail will be added when the appellant ’ s arguments are addressed.

Background [ 7 ] Douglas Casey, Sr. is 66 years of age. He is a retired shipyard worker with a modest formal education. On July 22, 2009, around noon, he saw a car pull up in front of his house. Three people came to his front door. He recognized one as "Skinner" who had visited his home on many other occasions with his son, Doug Casey, Jr. Skinner was joined by another man, and an unidentified woman. Mr. Casey invited the visitors in. Once inside, Skinner introduced his male cohort saying “ This is Roach". Mr. Casey offered his visitors a drink.

At one point Roach replied "I don't want to know you or know anything about you". Roach pulled a chair up very close to Mr. Casey. He looked in Mr. Casey's eyes and told him that he was going to torture him and that he was going to enjoy doing it. He then proceeded to burn Mr. Casey with utensils made "red hot" on the stove. Roach also threatened to heat up a steak knife and "gut him". [ 8 ] While Mr. Casey was suffering through this ordeal, he could hear Skinner in the adjacent bedroom making considerable noise. Later, the police said the room looked like it had been "tossed" (i.e., ransacked).

At one point Skinner came out of the bedroom carrying baggies and a pill bottle which Mr. Casey believed had been taken from his son's dresser. In response to something said by Skinner, Mr. Casey said "there are no guns or dope in this house". [ 9 ] Mr. Casey's torture was interrupted by two occurrences. The first arose when Mr. Casey spoke with his son by telephone, and asked him to come over, immediately. During this same call, Mr. Casey also spoke with Ms. Kelly MacKenzie, his son ’ s girlfriend. She testified that she asked him whether someone was hurting him. She said she also asked Mr.

Casey whether he wanted her to call 911. Skinner grabbed the telephone, argued with Casey's son, and then threw the phone against the wall disabling it for a time. The second interruption came later when two men showed up at Mr. Casey's house . After an exchange with Skinner and Roach, the newcomers left. Soon thereafter so did Skinner, Roach and the unidentified woman. [ 10 ] Justice Bryson found that the 911 call to the police was made by Kelly MacKenzie. The recorded 911 conversation was introduced as an exhibit at trial. The judge accepted that it was Ms. MacKenzie who had called Mr.

Casey, Sr., reaching him while his assailants were apparently still in the residence. The judge was satisfied that Skinner and Roach were inside Mr. Casey ’ s home for up to an hour. [ 11 ] Three RCMP officers responded to the call arriving at approximately 1:36 p.m. The trial judge found that the police arrived before Ms. MacKenzie. The officers searched the home and secured the scene. They seized various items from the house. One officer said a burner on the stove was “ cherry red ” . Neither Mr. Casey, Sr. nor Ms. MacKenzie were especially co-operative. Mr.

Casey informed the police that four men and two women had been at his house. Otherwise he said very little. [ 12 ] Ms. MacKenzie testified that when she arrived at the house Mr. Casey had deep burn wounds and was scared. She took him to her mother ’ s home. Arrangements were made to bandage the wounds. Mr. Casey was eventually seen in hospital. Photographs were introduced to document his injuries. [ 13 ] The trial judge found that the police did not take extensive notes because they “ were not sure what they were investigating ” . They described Mr. Casey ’ s speech as “ erratic ” and “ stuttering ” .

The extent to which Mr. Casey had been drinking features prominently in this appeal, especially as it relates to the issue of identification. I will address that point later in these reasons. [ 14 ] Two days after the incident, Mr. Casey attended at the police station to view two photo line-ups. The photo line-up procedure was both video and audio taped. Mr. Casey identified Barry Roach and Steve Skinner from the photo line-ups. Warrants were issued for their arrests in Toronto.

Further information introduced at trial confirmed that a Barry Roach and a Steve Skinner took a Westjet flight from Halifax to Toronto on July 24, 2009. [ 15 ] The appellant did not testify at his trial. [ 16 ] It is obvious from the cross-examinations, and defence counsel ’ s submissions at trial, that the central issue was the identification evidence proffered by the Crown, purporting to tie the appellant to the crime. The defence attacked the evidence as being completely unreliable especially due to Mr. Casey ’ s alleged impairment and inability to perceive, recall or communicate factual information.

[17] After a six-day trial, Bryson, J. reserved judgment . A few weeks later he rendered a lengthy oral decision (Roach, supra) inwhich he convicted the appellant on most counts (including the more serious aggravated assault, and assault with a weapon); stayed theother counts on the basis of the principle in Kienapple v. The Queen, (SCC), [1975] 1 S.C.R. 729; and acquitted himon a charge of uttering threats to kill an animal. [18] At a subsequent hearing, the appellant was sentenced to prison for (approximately) 7 years, and made the subject of variousancillary DNA and weapons’ orders.

The appellant appeals his conviction only. His notice of appeal lists two grounds of appeal. Hisfactum adds two others. He asks that an acquittal be entered or, in the alternative, that a new trial be ordered. In response, the Crownsays there is no merit to the appeal and says it ought to be dismissed. Alternatively, the Crown says that if any error occurred, thecurative proviso of s. 686(1)(b)(iii) should be applied, thus preserving the conviction.

Issues [19] In his extended factum, the appellant chronicles a litany of alleged errors which, he says, taints both the trial judge’s decisionand his conduct of the case from virtually start to finish. He says each of these mistakes, singly or in constellation, warrants reversal. [20] I respectfully disagree. In my opinion, the trial judge’s painstaking review of the evidence, his analysis of the issues thatdemanded special scrutiny, and his application of the law to the facts and the issues is beyond reproach. [21] The appellant raises four grounds of appeal, saying the trial judge erred in: (

i) finding that the Crown had proven his identity beyond a reasonable doubt; (ii) admitting highly prejudicial evidence tendered by the Crown concerning his criminal record and reputation; (iii) misdirecting himself regarding prior consistent statements; and (iv) rendering an unreasonable verdict. [22] Since the parties disagree in certain respects as to the appropriate standard of review, I will address that issue during myanalysis of each of the appellant’s grounds of appeal: Analysis (

i) whether the trial judge erred in finding that the Crown had proven his identity beyond a reasonable doubt [23] Here, the variety of complaints raised by the appellant come down to two principal points: that the judge ignored or did notgive proper weight to significant flaws in the Crown’s evidence on identification, specifically, Mr.

Casey’s capacity to identify theappellant as the man who tortured him, and mistakes made by the police in conducting the photo line-up. [24] In considering this ground of appeal the test we apply is whether the verdict is one a properly instructed jury, or trial judge,acting judicially, could reasonably have reached. Further, a judge’s conclusions with respect to identification are (like credibility)entitled to considerable deference.

[25] Having applied that standard of review, I would find that the appellant’s submissions are without merit. Justice Bryson’sdecision is replete with cautions, self-instruction and other references which clearly demonstrate that the problems in the Crown’sevidence loomed large in his analysis. The judge begins his reasons with a correct reference to the leading authorities obliging him totest the evidence for both credibility and reliability.

He wrote: [35] It is incumbent on a trial court to be especially cautious of identification evidence because of its frailties which has resulted inmany wrongful convictions. Such evidence is frail in at least two senses. First, it has been amply demonstrated that human powers ofobservation and recollection are fallible. Secondly, the circumstances in which identification of an accused is made can compromise theaccuracy and reliability of such identification. Circumstances such as how long a witness was able to view an accused; from whatposition; from what distance and with what lighting, are all important.

Whether the witness was personally acquainted with the accusedcan be a factor. What description the witness gives and whether the witness is able to identify the accused from a lineup can be critical.How much time passes between the event described and the identification to police is important. [26] He then meticulously reviewed every one of the defence arguments which had challenged the credibility and reliability of Mr.Casey’s eyewitness testimony as well as the manner in which the police conducted the line-up. I am satisfied that nothing wasoverlooked. [27] The appellant says the description Mr.

Casey gave to the police was very vague and ought not to have been considered reliable. When interviewed by the police Mr. Casey made no mention of any scar on the nose of the man who tortured him. Yet when he pickedthe appellant’s photograph out of the police line-up he is heard on the videotape to say “That ain’t a scar on his nose I hope”. On appeal,counsel complained that the trial judge failed to mention this “significant” point. I am not persuaded this “omission” is any reason todoubt the strength of the trial judge’s analysis and conclusions.

First, there is no requirement that a trial judge identify and answer everypiece of contradictory evidence in a decision. Second, this point was never raised by defence counsel at trial. Finally, we do not knowwhen the photograph of the appellant was taken. The scar (if that is in fact what it was) that appears in the photograph could have beenfar less prominent at the time Roach invaded Mr. Casey’s home so as to torture him. [28] The appellant’s complaint ignores much of the other evidence, accepted by the trial judge, which went to strengthen andcorroborate Mr.

Casey’s identification of the appellant, as well as his description of what happened when the intruders were in his home. The following examples will suffice. [29] Skinner was known to Mr. Casey, having been in the home about 20 times earlier as a friend of Casey’s son. The fact thatSkinner said “this is Roach” was a good substitute for any meagre description he later provided the police. Whether mention of the name“Roach” was true or not, was not the point.

Justice Bryson noted explicitly that the comment “this is Roach” was not admitted for itstruth, but rather to explain how the police came to include his photo in the line-up. The judge recognized the fact that Skinner’s mentionof the name when he entered the house was reason enough for the police to include the appellant’s photograph in the assortment. [30] As will be described later in these reasons, the videotape clearly reflects the immediate and visceral identification by Mr. Caseyof Roach as his assailant.

As the trial judge’s reasons made clear, he appreciated the important difference between the “certainty” of Mr.Casey’s identification, and its reliability. The judge noted that it is often the apparent confidence and certainty of eyewitnessidentification that makes such evidence fraught with unease with respect to its potential frailties. He addressed such concerns head on. As well, Mr. Casey identified Roach at both the preliminary inquiry and the trial.

These are all relevant factors for the judge to haveconsidered in the required assessment “of all of the circumstances”. [31] During the videotaped photo line-up Mr. Casey told the police “I looked in those fuckin’ eyes while he was burning me.” I amreminded of the comments of Justice Goldie writing for the British Columbia Court of Appeal in R. v. Doan (1996), (BC CA), 81 B.C.A.C. 192 where at para. 23 he observed: ... She testified the assailant threatened her with a knife not long after she entered the automobile and that she was terrified by his threats.

This is not an auspicious environment in which to study and commit to memory particular details of an assailant. [32] All of this permitted Justice Bryson to state in his reasons:

[67] ... On July 22, 2009, Mr. Casey had very good reason to be interested and attentive. He was confined in his own home, in challenging circumstances. But those circumstances afforded him an excellent opportunity to remember and recognize his assailant. The evidence of those circumstances which I accept were: ... 4. Although the circumstances were traumatic, Mr. Casey had a unique opportunity to connect with Mr. Roach. Certainly he gave a vivid description of things said and done to him by Mr. Roach which do not suggest memory impairment at the time he was enduring his ordeal .

The intensity of the experience itself clearly imprinted on Mr. Casey things that were said and done to him. It makes sense that the person doing and saying these things would also make a strong impression ... [Emphasis in Original] [ 33 ] Finally, there was evidence to support Mr. Casey ’ s account of what had occurred. He had burn marks on his body which matched the utensils and were documented in the photographs taken by the police. His son ’ s bedroom was obviously turned upside down by the home invaders. A police officer first on the scene confirmed seeing a burner on the stove “ cherry red ” .

Justice Bryson recognized the importance of this corroborative evidence. While these facts do not go to the principal issue of identification, they do underline the duration and nature of the assault, which the trial judge found supported the victim ’ s recollection and immediate identification of Roach as being reliable. [ 34 ] The defence attacked Mr. Casey as being a “ terrible historian ” whose mind was so muddled by alcohol, shock, and an inherent inability to express himself, that his identification of Mr. Roach as his assailant was virtually useless.

Justice Bryson rejected those assertions, but only after very careful reflection. He said, in part: [39] ... Mr. Casey admitted that he is an alcoholic. He conceded that he had memory problems. He conceded that he was in shock. He provided virtually no information to police on July 22 about what happened in his home on that day. ... [40] With respect to the events following the arrival of the police, Mr. Casey himself admitted that he had two double shots of rum by that time. The police thought that Mr. Casey was intoxicated. By his own admission, he got drunk that night.

Under these circumstances, it is not surprising that he has no clear recollection of what happened to him as and after he left his home on the 22nd. This does not necessarily mean that his recollection of his ordeal itself is therefore unreliable. ... [44] Mr. Casey also conceded in cross examination that in July of 2009, he was taking various medications for various ailments which he should not mix with alcohol. ... [47] ... it is important not to confuse poor articulation with poor recollection. Mr. Casey has a grade 8 education. He worked in the Shipyards.

He is not by nature, inclination, training or experience, a good communicator. But that does not necessarily mean he cannot recognize someone when he sees them. This brings us to the photo lineup itself. [ 35 ] At trial the defence mounted a vigorous challenge to the way in which the police had conducted their photo line-up. Their failure to follow proper procedure was carefully evaluated by the trial judge. Justice Bryson said: [51] Defence counsel correctly argues that Constable Brien did not completely follow police policy when administering the lineup.

Amongst other things, photos were not shown in perfect sequence. They were not in separate envelopes. The photos were not all kept out of Mr. Casey's view. There was some discussion with Mr. Casey at the conclusion of the viewing. Constable Brien did not take complete note of all comments. But the question is whether the failure to follow policy compromises Mr. Casey's evidence in any material respect. ...

[58] Criticism was also directed at the police regarding post identification investigative questions. For the most part, these questions were unobjectionable. But at one point, a police remark was made that was improper. Constable Brien commented on Mr. Casey's obvious emotional response when he made his identification. This may have encouraged Mr. Casey to believe that he had been somehow "correct" to identify Mr. Roach. But that did not impair the quality of the identification itself. ... Constable Brien should not have commented on Mr.

Casey’s re-action - but his remark did not prompt or influence that reaction or the identification that had already been made. [60] The Defence also argues that the photos were not shown "sequentially". ... I find this procedural irregularity to be immaterial. There is no indication that this had any impact on his identification of Mr. Roach. [61] Other alleged failures to follow photo lineup policy were mentioned. ... I am satisfied that they did not affect Mr. Casey's identification of Mr. Roach. [ 36 ] At trial the defence also challenged Mr.

Casey ’ s ability to identify anyone as his assailant because of his impairment at the time. Mr. Casey is a chronic alcoholic. He testified that he was forced to drink two double shot glasses of rum while the intruders were in his home. The trial judge found as a fact that Mr. Casey had not been drinking that day until forced to do so by his assailants during his ordeal. When the police arrived they suspected he had been drinking and may have been intoxicated. They described his conduct as being consistent with that. [ 37 ] Once the police left his house on July 22nd and Mr.

Casey went for treatment of his wounds, he said he resumed drinking and “ may have been drunk for a couple of days ” afterwards. [ 38 ] On appeal, the appellant says the trial judge “ missed ” this evidence which, he submits, ought to have persuaded the judge that Mr. Casey was drunk at the police station on July 24th when he picked Mr. Roach out of the police photo line-up as the man who had tortured him before. [ 39 ] I do not accept the appellant ’ s submission. First, it is trite law to observe that a judge does not have to describe and cogitate over every single piece of evidence introduced at trial.

Second, Justice Bryson ’ s reasons should be read in their entirety and not parsed one phrase at a time, with extracts lifted here and there from his decision, or the transcript. I am satisfied that when one considers his decision as a whole it is obvious that the judge considered the reliability and credibility of the Crown ’ s identification evidence at every interval, and from every angle. [ 40 ] The videotape showing Mr. Casey ’ s identification of Roach from the photo line-up at the police station belies any suggestion that he was “ drunk ” .

His conversations with the police appear perfectly normal and in no way impaired. His answers to their questions are responsive, clear and coherent. Having viewed the videotape, as of course did the trial judge, Mr. Casey ’ s immediate identification of Mr. Roach from the 12 photos in the line-up was visceral, and without hesitation. It left him shaken and terrorized. This in itself was very powerful evidence. After carefully reflecting on the whole of the case, the judge was satisfied as to both the credibility and reliability of the evidence proffered by the Crown to establish that Mr. Roach had tortured Mr.

Casey. In the words of the trial judge: [50] ... Constable Brien showed 12 photos to Mr. Casey who identified Barry Andrew Roach as his assailant. The photo lineup video discloses that Mr. Casey's identification of Mr. Roach was instantaneous and emphatic. Mr. Casey was visibly excited and swore with emotion. The video conveys no doubt about Mr. Casey's conviction. ... [53] ... I am satisfied that Mr. Casey had no doubt that he had correctly identified Mr. Roach to Constable Brien. ... [67] The Defence has strenuously argued that Mr. Casey is an unreliable witness and that it would be unsafe to find Mr.

Roach guilty on the basis of this evidence. It is quite true that, as a general proposition, Mr. Casey is a poor historian. But common sense tells us that

the reliability of memory is affected by many things, including interest and attention. On July 22, 2009, Mr. Casey had very good reason to be interested and attentive. He was confined in his own home, in challenging circumstances. But those circumstances afforded him an excellent opportunity to remember and recognize his assailant. The evidence of those circumstances which I accept were: 1. Time – Mr. Casey was in the immediate company of his assailant over a period of at least 45 minutes. He had ample time to take note of Mr. Roach; 2.

Lighting – It was around noon on a mid-summer's day, lighting was good, nothing obstructed Mr. Casey's view; 3. Proximity – Mr. Roach was in the same room with Mr. Casey virtually throughout Mr. Casey's ordeal; On some occasions, Mr. Roach was within a foot or two of Mr. Casey's face, particularly when Mr. Roach told him what he was going to do to him; 4. Although the circumstances were traumatic, Mr. Casey had a unique opportunity to connect with Mr. Roach. Certainly he gave a vivid description of things said and done to him by Mr.

Roach which do not suggest memory impairment at the time he was enduring his ordeal. The intensity of the experience itself clearly imprinted on Mr. Casey things that were said and done to him. It makes sense that the person doing and saying these things would also make a strong impression; 5. M. Casey had no difficulty recognizing the man named "Skinner" and recalling his presence and activities on July 22. [68] The importance of the foregoing factors needs also to be considered in light of the video-taped identification of Mr. Roach by Mr. Casey while viewing the photo lineup. Mr. Casey's identification of Mr.

Roach was instantaneous, dramatic and emphatic. He did not hesitate. He reacted visibly and strongly to the photograph of Mr. Roach. He testified as to his degree of certainty. He had no doubt in the court room and he conveys no doubt on the video. ... [72] ... The video confirms the speed with which Mr. Casey identified Mr. Roach. [73] In addition to the evidence in this case, I have given very careful consideration to the cases cited to me, especially on behalf of the Defence. I certainly endorse the many warnings about identification evidence, so eloquently expressed in the jurisprudence.

I am especially mindful of the remarks of the English Court of Criminal Appeal in Turnball , at pp. 137-138 of the Criminal Appeal Reports , as well as those of Twaddle, J.A. in Sophonow at pp. 440-441 of the Canadian Criminal Cases Report . Last, but not least, I am mindful of the cautions and recommendations of Justice Cory in his report on Sophonow .

Most of the cases which criticize or overturn convictions based on identification evidence, turned on surrounding circumstances (timing, light, distance, obstruction), highly objectionable police lineup procedure, which affected the integrity of the identification, or no lineups of any kind.

In my view, those factors do not obtain here. [74] Having considered all the evidence, and the arguments of counsel concerning alleged frailties in the evidence, and also taking into account the law regarding the care that must be taken regarding identification evidence, I am satisfied beyond a reasonable doubt that the accused, Barry Andrew Roach was the man introduced to Mr. Casey as "Roach" on July 22, 2009 in Mr. Casey's home, and who confined, threatened and assaulted him, as previously described. [ 41 ] At the hearing, when it was suggested to us that Mr.

Casey was “ still drunk ” at the police station, the panel asked Mr. Garson, the appellant ’ s counsel on appeal, why when viewing the photo line-up at the police station, there was no indication of Mr. Casey being intoxicated in the video? In response, Mr. Garson suggested that Mr. Casey was a “ career alcoholic ” and must have “ masked his condition ” . So, counsel argued, Mr. Casey would not have appeared to be impaired either during the police interview or when he was picked up and returned to his home by the police officers.

With respect, there was no evidence, expert or otherwise, to support such an assertion. Ultimately it was for the trial judge to very carefully evaluate Mr. Casey ’ s testimony along with the rest of the Crown ’ s evidence before deciding whether the identification of Roach as the man who had committed an aggravated assault upon Mr. Casey by torturing him with red hot kitchen utensils, had been established beyond a reasonable doubt. I am satisfied that the trial judge did exactly that.

[ 42 ] Finally, in support of the appellant ’ s argument that Mr. Casey was intoxicated on the day he picked his photograph out of the police line-up, he points to the evidence given by Constable McKenna that when he was photographing injuries to Mr. Casey ’ s back on July 27, 2009, he began to retch and left the room twice to vomit in the bathroom. The appellant says this proves the appellant was intoxicated every day following the incident. [ 43 ] Obviously, the trial judge was not prepared to draw that connection. In the judge ’ s eyes, this was simply another indicator of the trauma Mr.

Casey had suffered at the hands of the home invaders.

His interaction with the officers at the police station on July 24th and the speed and certainty with which he pulled the appellant ’ s photograph from the line-up showed no signs of impairment in the least. [ 44 ] I would dismiss this ground of appeal. (ii) Whether the trial judge erred in admitting highly prejudicial evidence tendered by the Crown concerning his criminal record and reputation [ 45 ] Here the appellant points to several extracts in the testimony of police officers and others which would suggest that he had a criminal record and had spent time in jail.

He says the judge erred in failing to prohibit the introduction of bad character evidence, and then relying upon such evidence for an improper purpose. For example, he points to the testimony of Det./Cst. Jefferies who, in answer to a question posed on direct examination as to how he had organized the photo line-up, answered: A. Okay. From reviewing the investigative reports in the file and speaking with Casey Senior, possible suspects had been identified as a Steve Skinner and Barry Roach. And that information was gained from within the report. Cst. Manuel had stated that he had received information that Mr.

Casey ’s son was friends with Steve Skinner and Barry Roach and had done jail time with them. And that was within the report. As well, from the KGB statement and from speaking with Casey Senior, it was learned that he knew one of the people involved in the incident, S. Skinner, and he stated that he knew this individual as he was friends with his son and that he had been to his home on several occasions. ... (Underlining mine) [ 46 ] The admissibility of evidence is, generally, a matter of law.

On the point raised by the appellant in this ground of appeal, while the trial judge ’ s ruling on admissibility was informed by the application of correct principles of law, it nonetheless required the judge to weigh the prejudicial impact against probative value, and therefore is entitled to deference. See for example R. v. Poulette , 2008 NSCA 95 at para. 16 ; R. v. West , 2010 NSCA 16 at para. 155 ; and R. v. Ward , 2011 NSCA 78 at para. 28 .

Applying that standard to this ground of appeal, I see no reason to intervene. [ 47 ] I am not persuaded that the trial judge erred in admitting or considering such evidence. First, much of the testimony about which the appellant now complains was led without objection. Further, the transcript and in particular, exchanges between the court and counsel, indicate that such evidence was not led to establish propensity, but rather, for another quite legitimate purpose. For example, when the appellant ’ s lawyer objected to Det./Cst.

Jefferies ’ answers quoted above, Justice Bryson answered: THE COURT : ...I am not a jury. I am not going to regard this as evidence of what this witness is saying for the truth of its contents. But the witness has to explain how he put the lineup together and it seems to me that this is a reasonable explanation of why he did what he did, .... [ 48 ] This and similar examples satisfy me that Justice Bryson understood the issues.

He instructed himself properly, and I am not persuaded the evidence was used for an improper purpose or otherwise undermines the verdict. [ 49 ] Finally, in this judge alone trial I attach little significance to remarks of Crown counsel in closing submissions which are now conceded to have been “ unfortunate ” . It can not be seriously suggested that trial counsel ’ s hyperbole left any impression on the trial judge. [ 50 ] I would dismiss this ground of appeal.

(iii) Whether the trial judge erred in misdirecting himself regarding prior consistent statements [ 51 ] This issue involves a question of law and will be reviewed on a standard of correctness. [ 52 ] Here, the appellant ’ s complaint concerns certain statements by the trial judge in his reasons which - he submits - shows the judge failed to understand or properly apply the law relating to prior consistent or inconsistent statements. To illustrate, the appellant points to para. 72 of the judge ’ s reasons as one of three places where it is said he misdirected himself: [72] Mr.

Casey was pressed in cross examination about his inability to give more details to police, particularly a more detailed description of his assailant. It was put to him that he told police he was "too fucked up" to remember details and that he was too scared to pay attention. He acknowledged using these words but said he was talking about what Skinner and Roach were wearing, not about what Mr. Roach's face looked like. No prior inconsistent statement was put to him on this. When further pressed that he was "too fucked up and didn't pay attention," Mr.

Casey emphatically objected and said "No that's how I knew him so fast in the lineup." The video confirms the speed with which Mr. Casey identified Mr. Roach. (Emphasis added by appellant in his factum) [ 53 ] I respectfully disagree with the appellant ’ s characterization. In my view, the judge did not err in his application of the law concerning prior consistent or inconsistent statements. Rather, his comments referenced in those and other extracts were meant as responses to various arguments put forward by the appellant ’ s trial counsel. For example, in para. 70 of his decision, where he said: ... Mr.

Casey was not contradicted on anything significant that was said or done by Mr. Skinner or Mr. Roach from any prior and inconsistent statement. the judge was simply addressing defence counsel ’ s complaint that Mr. Casey was a very poor historian. The judge did not say that he was going to use that information to “ bolster ” his belief in what Mr. Casey was saying. Rather, he was merely observing that Mr.

Casey remained unshaken on important matters when it came to identifying Roach as his torturer, and that other matters emphasized by the defence were peripheral, minor or incidental. [ 54 ] In conclusion, I am not persuaded that the impugned phrases from the trial judge ’ s lengthy and comprehensive reasons reflect any reversible error on his part. [ 55 ] I would dismiss this ground of appeal. (iv) Whether the verdict is unreasonable [ 56 ] On this question the test is settled law. In R. v. Ward , supra , this Court recently described it this way.

Recognizing that we are not here dealing with a jury ’ s verdict, but rather a decision of a judge sitting alone, nonetheless the approach we take when reviewing the reasonableness of the verdict is the same: [50] Whenever the reasonableness of a jury’s verdict is challenged on appeal, the test is whether the verdict is one that a properly

instructed jury, acting judicially, could reasonably have rendered. In applying that test on appeal, our task involves both an objective anda subjective assessment. It obliges us to re-examine, and to some extent re-weigh the evidence and its effect. We do that through ajudicial lens, informed by our legal training, and with a perspective honed over the years by the knowledge and experience acquiredwhen evaluating the merits of criminal appeals. R. v. Yebes, (SCC), [1987] 2 S.C.R. 168; R. .v. Biniaris, 2000 SCC15, 1 S.C.R. 381; R. v.

Hawkins, 2011 NSCA 6. [51] The analysis of a complaint that a jury’s verdict is unreasonable does not engage a question of law which would invite a standardof correctness. Rather, we are obliged to undertake a re-examination of the evidence in order to decide whether the verdict isunreasonable, or cannot be supported by the evidence. See as well R. v. Sinclair, 2011 SCC 40. [57] After completing such a re-examination of the record, I am satisfied that Justice Bryson’s verdict is reasonable and findsgenerous support in the evidence.

The appellant’s decision not to testify is also a relevant factor we are entitled to consider whenassessing the reasonableness of the verdict. See for example, R. v. Noble, (SCC), [1997] 1 S.C.R. 874, (Sopinka, J.,for the majority) at para. 102; R. v. Clayton, 2001 NSCA 72; R. v. Joehnck, 2006 SKCA 68; R. v. Oddleifson, 2010 MBCA 44; R. v.West, 2010 NSCA 16;and R. v. Ward, 2011 NSCA 78. This ground of appeal is dismissed. Conclusion [58] After carefully considering the record and counsels’ able and comprehensive submissions, I am satisfied that Justice Bryson’sdecision should be upheld.

I am not persuaded that he erred in admitting or evaluating the evidence which ultimately led him toconclude that the identity of the appellant as the assailant had been proven beyond a reasonable doubt. Based on the record before himthe verdict is clearly supported on the evidence and is reasonable. [59] I would dismiss the appeal. Saunders, J.A. Concurred in: MacDonald, C.J.N.S. Oland, J.A.