R. v. Bowden, 2016 NSCA 41

Nova Scotia Court of Appeal Citation: R. v. Bowden, 2016 NSCA 41 Date: 20160525 Docket: CAC 445142 Registry: Halifax Between: Lewis Bowden Appellant v. Her Majesty the Queen Respondent Judges: Beveridge, Saunders and Bourgeois, JJ.A.Appeal Heard: May 17, 2016, in Halifax, Nova ScotiaHeld: Appeal dismissed, per reasons for judgment of Beveridge, J.A.; Saunders and Bourgeois, JJ.A.concurringCounsel: Lewis Bowden, appellant in person Jennifer MacLellan, Q.C., for the respondent Reasons for judgment: [1] Mr.

Bowden appeals from convictions entered by The Honourable Judge Barbara Beach for common assault, damage toproperty, uttering threats and consequent breaches of probation. There is no appeal from the sentence of 12 months’ incarceration, lessremand time. [2] Mr. Bowden does not have legal counsel to assist him on his appeal. The sole argument advanced by the appellant in hisNotice of Appeal is that the evidence at trial cannot support the verdicts. [3] The factum filed by Mr. Bowden provides details. In essence, the appellant insists that the evidence of the complainant isneither credible nor reliable.

He sets out numerous reasons why the trial judge should have doubted, if not outright rejected, thecomplainant's version of events. [4] Making findings of fact, including resolving issues of the credibility and reliability of the testimony, are matters for a trialjudge. Great deference is paid to those findings because of the trial judge's distinct advantage in seeing and hearing the witnesses givetheir evidence. An appeal is not the opportunity for a second trial where facts can yet again be presented, challenged and determined.

That is why an appeal court is not entitled to review the record afresh and come to different findings or substitute its own factualinferences and conclusions for those of the trial judge. [5] That is not to say we are powerless. We can and should intervene if we are convinced that, although a trial judge did not err inlaw, he or she made findings of fact that are unreasonable or not supported by the evidence. [6] The proper approach to exercise such a power is well-known. Justice McLachlin, as she then was, in R. v.

W.(R.), (SCC), [1992] 2 S.C.R. 122 wrote: It is thus clear that a court of appeal, in determining whether the trier of fact could reasonably have reached the conclusion that theaccused is guilty beyond a reasonable doubt, must re-examine, and to some extent at least, reweigh and consider the effect of theevidence. The only question remaining is whether this rule applies to verdicts based on findings of credibility. In my opinion, it does. Thetest remains the same: could a jury or judge properly instructed and acting reasonably have convicted?

That said, in applying the test thecourt of appeal should show great deference to findings of credibility made at trial. This Court has repeatedly affirmed the importance oftaking into account the special position of the trier of fact on matters of credibility: White v. The King, (SCC), [1947]S.C.R. 268, at p. 272; R. v. M. (S.H.), (SCC), [1989] 2 S.C.R. 446, at pp. 465-66. The trial judge has the advantage,denied to the appellate court, of seeing and hearing the evidence of witnesses.

However, as a matter of law it remains open to anappellate court to overturn a verdict based on findings of credibility where, after considering all the evidence and having due regard tothe advantages afforded to the trial judge, it concludes that the verdict is unreasonable.

pp. 131-2 [7] More recently, in R. v. R.P., 2012 SCC 22 , [2012] 1 S.C.R. 746, Justice Deschamps reviewed the approach that anappellate court must take in reviewing a verdict based on the argument that it is unreasonable or not supported by the evidence: [9] 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, at para. 36, determine whether the verdict is one that a properly instructed jury ora judge could reasonably have rendered.

The appellate court may also find a verdict unreasonable if the trial judge has drawn aninference or made a finding of fact essential to the verdict that (1) is plainly contradicted by the evidence relied on by the trial judge insupport of that inference or finding, or (2) is shown to be incompatible with evidence that has not otherwise been contradicted or rejectedby the trial judge (R. v. Sinclair, 2011 SCC 40, at paras. 4, 16 and 19-21; R. v. Beaudry, 2007 SCC 5). [10] Whereas the question whether a verdict is reasonable is one of law, whether a witness is credible is a question of fact.

A court ofappeal that 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). [8] Therefore, to test if a verdict is unreasonable or cannot be supported by the evidence, an appellate court must re-examine and,to some extent, reweigh the evidence and consider its effect.

The question to be answered is whether the verdict is one that a properlyinstructed jury, acting judicially, could reasonably have rendered. An appellate court may also find a verdict unreasonable if a trial judgehas drawn an inference or made a finding of fact essential to the verdict that is plainly contradicted by the evidence relied upon by thejudge in support of the inference or is shown to be incompatible with evidence that is not contradicted or rejected by the trial judge. [9] The appellant forcefully set out numerous inconsistencies between what the complainant told the police and her trialtestimony. Mr.

Bowden emphasizes the general lack of evidence (expert and lay) that should have been available to confirm thecomplainant’s version of events and the overall implausibility of it. [10] Almost all of these points were made by Mr. Bowden’s counsel at trial. The trial judge considered them. Judge Beachnonetheless found the complainant to be a credible witness. She did not believe the appellant’s version of events. She rejected hisevidence, found it did not raise a reasonable doubt, and, based on the evidence she did accept, was satisfied beyond a reasonable doubt ofMr.

Bowden’s guilt on most, but not all, of the charges he faced. [11] Despite Mr. Bowden’s heartfelt advocacy, after carefully reviewing the whole of the record, I am satisfied that there wasevidence which a properly instructed trier of fact, if accepted, reasonably supports the findings of credibility, findings of fact, and theverdicts the trial judge ultimately rendered. [12] I would therefore dismiss the appeal. Beveridge, J.A. Concurred in: Saunders, J.A. Bourgeois, J.A.