R. v. G.E.H., 2012 NSCA 69

NOVA SCOTIA COURT OF APPEAL Citation: R. v. G.E.H., 2012 NSCA 69 Date: 20120629 Docket: CAC 343902 Registry: Halifax Between: G.E.H. Appellant v. Her Majesty The Queen Respondent Restriction on Publication: Pursuant to s. 486.4 of the Criminal Code of Canada Judge: The Honourable Justice Linda Lee Oland Appeal Heard: February 9, 2012, in Halifax, Nova Scotia Subject: Criminal Law - Credibility - Reasonable Doubt

Summary: The appellant testified in his defense against charges of historic sexual assault and assault against his daughter. Indenying her allegations, he used certain phrases on many occasions. The judge found the complainant credible and the appellant’sevidence not credible, and concluded that the Crown had proved him guilty beyond a reasonable doubt. Issue: Whether the judge erred in his assessment of credibility and reliability of the appellant’s evidence such as to err in hisapplication of the criminal standard of proof. Result: Appeal dismissed.

The portion of the judge’s decision which allegedly showed that he used the appellant’s manner ofexpression to determine credibility addressed reliability rather than credibility. Nothing in his decision indicates that he erred bydetermining credibility based on the appellant’s phraseology or demeanor. His reasons, in context, reveal the basis for his decision onthe whole of the evidence and the judge did not err in his appreciation and application of the test in R. v. W.(D.), (SCC),[1991] 1 S.C.R. 742.

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 12 pages. NOVA SCOTIA COURT OF APPEAL Citation: R. v. G.E.H. , 2012 NSCA 69 Date: 20120629 Docket: CAC 343902 Registry: Halifax Between: G.E.H. Appellant v. Her Majesty The Queen Respondent Restriction on publication: Pursuant to s. 486.4 , of the Criminal Code of Canada Judge(s): Saunders, Oland, Hamilton, JJ.A.

Appeal Heard: February 9, 2012, in Halifax, Nova Scotia Held: Appeal against conviction dismissed per reasons of judgment of Oland, J.A.; Saunders and Hamilton, JJ.A. concurring. Counsel: Roger A. Burrill, for the appellant Kenneth W. F. Fiske, Q.C., for the respondent

Order restricting publication – sexual offences 486.4

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347, (ii) an offence under

section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or (iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or

section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs ( a )(

i) to (iii). Reasons for judgment : [ 1 ] This is an appeal from conviction for what is called a historical sexual assault, that is, one which took place years before the matter came to trial. [ 2 ] On April 20, 2010 Provincial Court Judge Richard J. MacKinnon convicted the appellant of sexual assault between December 1995 and June 1999, and assault between January 1990 and February 2001, on one of his daughters. The appellant appeals only the conviction for sexual assault.

He has served his sentences, namely eight months in custody for sexual assault and two months in custody consecutive for assault. [ 3 ] For the reasons which I will develop, I would dismiss the appeal. Background [ 4 ] The charges laid against the appellant identified two alleged victims, both of whom are his daughters. He was charged with three offences between December 1995 and June 1999 against A.H. (now A.L.), namely sexual interference

contrary to s. 151 of the Criminal Code, sexual exploitation contrary to s. 153(1)(a), and sexual assault contrary to s. 271(1); a furtheroffence between January 1990 and March 2001, against her, namely assault contrary to s. 266; and one offence between September 1987and April 1988 against S.H., namely against sexual assault contrary to s. 246.1. [5] During the two day trial in January 2010, the judge heard the evidence of the two complainants, theappellant’s wife, her sister, and the appellant himself. A.L. accused her father of beating her and molesting her.

The appellantacknowledged striking her, but denied her allegations of sexual abuse. The judge reserved his decision. [6] In his unreported decision (2010 NSPC 99) dated April 20, 2010, the judge referred to the presumptionof innocence, the onus on the Crown to prove all elements of an offense beyond a reasonable doubt, and the law as set out in R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742 where Cory J. stated at p. 758: 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 judge then reviewed in turn the evidence of the two complainants and the appellant. Hecontinued: [56] I make the following comments about the evidence of [G.E.H.]. He frequently used expressions such as “I’m not one hundredpercent sure”, “I’m not really sure”, “I really don’t recall”, and “I don’t believe”.

By virtue of his use of these expressions on manyoccasions I conclude that he is not a very reliable witness.

His Defence Counsel submits that because he acknowledged he did somethingwrong by readily admitting to striking [A.L.] when she was young and even when she was older, his evidence as a whole should bebelieved, or alternatively, should raise a reasonable doubt about his guilt. [57] Although [G.E.H.] expressed reservation about his ability to recall many events, he has no reservations whatsoever about recallingthat his daughter, [A.L.], was a child who lied, who stole things and who got into trouble at school. He had no reservations whatsoeverabout portraying [A.L.] as a child who was extremely untruthful.

He also had no reluctance in testifying about several occasions when[A.L.] was untruthful after she was older. He had a good recollection of her making a false accusation of assault against him to thepolice. When he was asked if he sexually touched his daughters, he first talked about whether or not his drinking could prevent himfrom remembering that this occurred, then decided that even if he had been drinking he would remember and it didn’t happen. [58] Mr. [H.] was asked the following questions and gave these answers to his Counsel during the course of his testimony: Q.

During the course of the one year at [. . .] your oldest daughter [S.H.] has testified to certain events that she claimedoccurred in that house. A. That’s correct. Q. You’ve been aware of those accusations made against you for sometime now. A. I have.

Q. Can you tell the court what your recollection, what your memory, and what your evidence is with respect to those accusations. A. You know, I drank some of the time, and drinking or not, you know if this stuff would have happened, I would have had to remember it. There’s no way that I wouldn’t. Q. And therefore can you tell the court whether in your memory it ever occurred. A. No. Q. Now, during this period of time from, I guess in the context of what [A.L.] has testified to this court that somewhere shortly before the age of 11 up to the age of almost 14, if not 14, you did a lot of things to her sexually. A.

Again, I certainly do not, you know, it didn’t happen. Whether I was drinking or not, like I said, I would have to remember that stuff. Q. So she testified there was conduct around the bathroom door, what can you tell the court about that. A.

No it didn’t happen. [59] If these things did not occur, Mr. [H.] would not have to consider whether or not his drinking affected his memory of the events occurring. [60] I have carefully considered the submissions by his Defence Counsel that Mr. [H.]’s evidence should be believed and I reject Mr. [H.] ’s evidence where that evidence conflicts with the evidence of [A.L.] and [S.H.].

Mr. [G.E.H.] ’s evidence is not credible, I do not believe his evidence, and his evidence does not raise a reasonable doubt about his guilt. [61] In arriving at this conclusion I am mindful of the comments of Saunders J.A. of the Nova Scotia Court of Appeal in R. v. P-P. (S.H.) [ R. v. S.H.P. , 2003 NSCA 53 ] , where he stated at paragraph 28: 28 While demeanour is a legitimate marker in the assessment of the veracity and reliability of someone taking the stand, it is not the only measure and must, I respectfully suggest, always be approached with caution. 29 One is not judging character.

The obligation is to ascertain the truthfulness and reliability of a person’s testimony. Appearances alone may be very deceptive. A most reprehensible witness may well be telling the truth. A polished, well-mannered individual may prove to be a consummate liar. 30 Reasons of intelligence, upbringing, education, race, culture, social status and a host of other factors may adversely affect a witness’s demeanour and yet may have little bearing on that person’s truthfulness.

Consequently, quite apart from that witness’s appearance or mood, his or her testimony must be carefully considered for its consistency and inconsistency with all of the other evidence presented at trial before any decision can be made concerning its acceptance, in whole or in part, or the weight to be attached to it. The trial judge’s reference to M.T. “mimicking...woman” and referring to them in derogatory language as “ho’s” may well lead the trier of fact to conclude that the witness is rude, ill-mannered and disrespectful of women.

However, such behaviour ought not to detract from the critical question, namely whether the trial judge found the individual to be a credible and reliable witness and then whether that person’s testimony or any other evidence left her with any reasonable doubt about the guilt of the accused.

[62] In applying the foregoing test as set out in R. vs. W.D I have rejected the evidence of [G.E.H.] and I have found that his evidence does not raise a reasonable doubt as to his guilt . . . . [Emphasis added] [ 8 ] The judge proceeded to explain why he placed little reliance on the evidence of the appellant ’ s wife and concluded that it did not raise a reasonable doubt as to guilt.

He set out the arguments raised by defence counsel and the Crown, and continued: [71] In deciding the case in accordance with the law as set out in W.D ., I must decide which evidence I accept and whether or not the Crown has proven beyond a reasonable doubt all elements of any of the offences as charged. . . . [ 9 ] The judge found S.H. credible with respect to what happened to her as a child. However, after setting out the test of proof beyond a reasonable doubt in R. v. Starr , 2000 SCC 40 , he determined that her evidence did not meet that standard of proof.

He found the appellant not guilty of sexual assault against that daughter. [ 10 ] The judge then explained why he found A.L. ’ s testimony with respect to her allegations of physical and sexual assault credible: [71] ... I found [A.L.] to be a credible witness. Her evidence that her father disciplined her as a child by striking her with his belt, a wooden spoon, and a strap was compelling and believable. Her evidence that as a result of her father striking her with these things that she suffered bruising and cracks on her skin that caused bleeding again was compellable [sic] and believable.

In the context of a child who was frequently disciplined by her father, this evidence makes sense and except for the amount of force that was used or any harm or injury that was caused, her evidence on this point did not differ that much from the evidence that her father gave about disciplining her by using his belt or a wooden spoon and did not disagree with the evidence of her mother about her mother observing that bruises were caused on her hands.

When one looks at her evidence about her father disciplining her in this way, when one looks at her father’s evidence about her crying or screaming even before he disciplined her when she thought she was going to be disciplined, and the evidence of her mother intervening and telling her father that that was enough all makes sense in the context of the whole of the evidence that was tendered at trial. [72] [A.L.]’s evidence about her father coming into her bedroom after her mother had gone to bed and removing the bed covers and putting his hand under her shirt and touching her on the breast and her evidence about putting his hand under her clothing and touching her on the vagina and her evidence that on one occasion he removed his clothing and touched her with his penis was also credible evidence and I accept her evidence that these events occurred.

She was testifying as an adult about what she was observing happening as a child and that can be taken into account in considering her evidence with respect to the degree of detail that was provided, the degree of understanding on her part when these things were happening to her, and what effect these things would have on her in terms of her ability to readily disclose what happened or to be unwilling to disclose that these things happened and therefore be unwilling to act in a way which would lead other persons to suspect that something like this had happened to her. [ 11 ] The judge found the appellant guilty of assaulting A.L. on several occasions by striking her with more than reasonable force under the circumstances.

With respect to the other charges, he stated: [80] I accept the evidence of [A.L.], and in accepting the evidence of [A.L.], I conclude that the Crown has proven beyond a reasonable doubt that [G.E.H.] is guilty of one of either Counts 1, 2 or 3 on the Information with respect to [A.L.]. . . . [ 12 ] The judge convicted the appellant for sexual assault and entered judicial stays on the charges of sexual interference and sexual exploitation. He sentenced the appellant to ten months imprisonment followed by two years probation, and imposed a 20 year prohibition order, a SOIRA order, and a DNA order.

Issue [13] The appellant frames his single ground of appeal from conviction for sexual assault thus: The trial judge erred in his assessment of credibility and reliability of the evidence of the appellant such as to err in his application of thecriminal standard of proof. The criminal standard of proof is, of course, proof beyond reasonable doubt. Standard of Review [14] The standard of review for this issue on the application of the criminal standard of proof is correctness. The trial judge must have correctly identified and applied the relevant law.

We would defer to his factual findings, short of palpable andoverriding error. Analysis [15] The appellant submits that the judge erred in his assessment of credibility and reliability. The uniqueposition that a trial judge enjoys in being able to see and hear the witnesses has been emphasized many times: see R. v. Gagnon, 2006SCC 17 at ¶ 11; R. v. R.E.M., 2008 SCC 51 at ¶ 68. Findings of credibility are entitled to deference and intervention on appeal is rare: see R. v. Dinardo, 2008 SCC 24 at ¶ 26. Appellate courts have been cautioned against substituting their decisions on credibility.

Theyshould not parse, dissect or microscopically examine a trial judge’s reasons for judgment: R. v. C.L.Y., 2008 SCC 2 at ¶ 11. Rather, thedecision should be read as a whole. [16] According to the appellant, the judge fell into error by rejecting his testimony based upon his particularmanner of expression and demeanor, isolating his testimony and, contrary to the test in W.(D.), failing to assess his evidence within thetotality of the evidence before him. [17] The appellant summarized the argument regarding his phraseology in his factum as follows: 37.

The trial judge focused on the appellant's use of expressions that might lead one to think of evasiveness. And, indeed, it is quite truethat the appellant's phraseology throughout the proceedings is strikingly unique and marked by the use of a particular form of expressionthat might connote vagueness of recall or outright evasiveness. Then, again, on the other hand, it might speak to a manner of speech, orcultural affinity for such phraseology. The trial judge has made a determination of credibility based on a turn of phrase, or use of anexpression.

The trial judge did not apply the rigorous methodology proposed in E.M.W. [2009 NSPC 33]. He did not consider theappellant's testimony "in the context of, and in contrast to, the complainant's evidence": Jaura, supra, [2006 ONCJ 385] para. 22. Nordid he assess the appellant's evidence such that it reaches a level of confidence in guilt taking into account all the evidence. In fact, quitethe opposite. The appellant's evidence was rejected because of his way of turning a phrase or the appellant's reference to drinking habitsin advance of a denial of responsibility.

The trial judge seized on legal crumbs to convict! [18] The appellant also submits that the judge’s decision to base a credibility assessment on the appellant’suse of certain expressions was indicative of an improper use of demeanor evidence to assess credibility: see R. v.

Jeng, 2004 BCCA 464, 2004 B.C.C.A. 464. [19] The appellant’s argument is directed to ¶ 56 of the decision where the judge set out certain expressionswhich the appellant frequently used in his testimony, such as “I’m not really sure” and “I don’t believe.” In addition to those described inthe decision, another phrase that the appellant used several times in prefacing his responses were variants of “near as I can remember.” The appellant argues that the judge inappropriately relied on such wording in determining his credibility.

[ 20 ] In my view, this statement was a fair assessment by the judge, given that the wording to which he referred indicated that the appellant was not sure of certain matters. More importantly, at this point in his reasoning, the judge was not assessing the appellant ’ s credibility or truthfulness . Rather, he was explaining that these phrases led to his conclusion with respect to the reliability of the appellant ’ s testimony.

The judge ’ s statement expressly referred to reliability. [ 21 ] In addition, I am not persuaded that the judge rejected the appellant ’ s testimony because of the appellant ’ s demeanor. This is an experienced trial judge. It is noteworthy that, in his decision at ¶ 61, the judge expressly stated that, in arriving at his conclusion that the appellant ’ s evidence was not credible and did not raise a reasonable doubt about his guilt, he had reminded himself of dangers in using demeanor to assess truthfulness, as set out in S.H.P.

I cannot detect anything in his reasons that indicates that the judge was distracted by the appellant ’ s use of language so as to have ignored the caution against relying on demeanor to decide credibility. [ 22 ] The appellant submits that the judge erred by taking into account the fact that, when asked about the accusations made by his daughters, he did not immediately deny them. Rather, in each case, he answered by first referring to his drinking habits and whether they would have affected his memory of such actions.

The appellant says that his manner of speech meant that he often used phrases that began “ I would have.. . ” and that the judge took this as indicative of evasiveness or vagueness. He says that the judge improperly seized upon the “ legal crumbs ” of his reference to his drinking before making any denial, and such wording, to convict. [ 23 ] With respect, I cannot agree with the appellant ’ s submission. The judge had to determine credibility.

As explained earlier in my reasons, based on testimony that often began “ I ’ m not sure ” and its equivalent, he decided that parts of the appellant ’ s evidence were not reliable. He observed in ¶ 57 of his decision that, in contrast, the appellant ’ s testimony regarding matters which portrayed A.L. in a negative light or as untruthful was clear and unequivocal.

He also was of the view, as expressed in ¶ 59, that if the impugned acts did not occur, the appellant would not have to first consider whether or not his drinking affected his memory of the events. [ 24 ] The challenges faced by a judge of assessing the credibility of witnesses were described by the majority of the Supreme Court of Canada in Gagnon at ¶ 20 thus: Assessing credibility is not a science.

It is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events.

That is why this Court decided, most recently in H.L. , that in the absence of a palpable and overriding error by the trial judge, his or her perceptions should be respected. [ 25 ] In R.E.M. , McLachlin, C.J. writing for the court observed at ¶ 49: While it is useful for a judge to attempt to articulate the reasons for believing a witness and disbelieving another in general or on a particular point, the fact remains that the exercise may not be purely intellectual and may involve factors that are difficult to verbalize.

Furthermore, embellishing why a particular witness’s evidence is rejected may involve the judge saying unflattering things about the witness; judges may wish to spare the accused who takes the stand to deny the crime, for example, the indignity of not only rejecting his evidence and convicting him, but adding negative comments about his demeanor.

In short, assessing credibility is a difficult and delicate matter that does not always lend itself to precise and complete verbalization. [ 26 ] Here, based on the evidence before him, the judge discussed in some detail the reasons for his findings as to the appellant ’ s credibility. He articulated the impressions he had gathered from testimony.

I see no palpable and overriding error in his factual finding pertaining to the appellant ’ s credibility. [ 27 ] The appellant then argues that, although the judge did not believe his evidence or was left in a reasonable doubt by it, the judge failed to proceed to assess his evidence against the totality of the evidence against him. He says the judge failed to consider the third step in the W.(D.) test.

[ 28 ] In this case, A.L. accused her father of sexually molesting her on several occasions. The appellant categorically denied those accusations. The two versions are diametrically opposed; they cannot stand together. Where they conflicted, the judge accepted the daughter ’ s evidence. [ 29 ] In R.E.M. , the accused claimed that the sexual activity had been consensual, contrary to the evidence of the complainant. The trial judge largely accepted the evidence of the complainant and rejected that of the accused.

The British Columbia Court of Appeal found that the judge failed to explain why he rejected the accused ’ s plausible denial and that the accused was entitled to the benefit of any reasonable doubt raised by his evidence.

The Supreme Court of Canada considered the adequacy of reasons of a trial judge on the credibility of witnesses in a criminal trial. [ 30 ] In allowing the appeal and restoring the verdicts of guilty in R.E.M. , McLachlin, C.J. writing for the court stated: [66] Finally, the trial judge’s failure to explain why he rejected the accused’s plausible denial of the charges provides no ground for finding the reasons deficient. The trial judge’s reasons made it clear that in general, where the complainant’s evidence and the accused’s evidence conflicted, he accepted the evidence of the complainant.

This explains why he rejected the accused’s denial. He gave reasons for accepting the complainant’s evidence, finding her generally truthful and “a very credible witness”, and concluding that her testimony on specific events was “not seriously challenged” (para. 68). It followed of necessity that he rejected the accused’s evidence where it conflicted with evidence of the complainant that he accepted. No further explanation for rejecting the accused’s evidence was required.

In this context, the convictions themselves raise a reasonable inference that the accused’s denial of the charges failed to raise a reasonable doubt. [ 31 ] Here, the judge had reminded himself of the test in W.(D.) . He recognized that credibility was a critical issue. He accepted A.L. ’ s evidence. He found her to be a credible witness and described her evidence as “ compelling and believable ” . He rejected the appellant ’ s evidence where it conflicted with A.L. ’ s evidence and determined that the appellant ’ s evidence was not credible.

His reasons, in context, reveal the basis for his decision on the whole of the evidence. As in R.E.M. , the conviction raises the reasonable inference that the appellant ’ s denial failed to raise a reasonable doubt based on all the evidence. The judge made no error of law in his appreciation and application of the test in W.(D.) . Disposition [ 32 ] I would dismiss the appeal against conviction. Oland, J.A. Concurred in: Saunders, J.A. Hamilton, J.A.