R. v. K.D.S., 2017 NSCA 20

Nova Scotia Court of Appeal Citation: R. v. K.D.S. , 2017 NSCA 20 Date: 20170301 Docket: CAC 451901 Registry: Halifax Between: K.D.S. Appellant v. Her Majesty the Queen Respondents Restriction on Publication: s. 486.4 of the Criminal Code Judge: The Honourable Chief Justice J. Michael MacDonald Appeal Heard: November 23, 2016, in Halifax, Nova Scotia Subject: Criminal law; ineffective counsel; unfair trial process; miscarriage of justice

Summary: The Appellant seeks to overturn his sexual assault conviction because of a serious error made by his trial counsel. Specifically, counsel neglected to tender several documents despite being instructed to do so. Issues: Was trial Counsel’s error serious enough to cost the appellant a fair trial, thereby leading to a miscarriage of justice? Result: Appeal allowed and new trial ordered. One of the untendered documents would likely have affected the trial judge’s credibility assessment. With credibility being a central issue, this led to a miscarriage of justice.

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 16 pages. Nova Scotia Court of Appeal Citation: R. v. K.D.S. , 2017 NSCA 20 Date: 20170301 Docket: CAC 451901 Registry: Halifax Between: K.D.S. Appellant v. Her Majesty the Queen Respondent Restriction on Publication: s. 486.4 of the Criminal Code Judges: MacDonald, C.J.N.S.; Hamilton and Fichaud, JJ.A. Appeal Heard: November 23, 2016, in Halifax, Nova Scotia

Held: Appeal allowed and new trial ordered, per reasons for judgment of MacDonald, C.J.N.S.; Hamilton and Fichaud, JJ.A. concurring Counsel: Zebedee P. Brown, for the appellant Marian Fortune-Stone, QC, 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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (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, 172.2, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 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 stepdaughter), 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 ] The main issue in this appeal is whether the appellant’s sexual exploitation and sexual assault convictions must be set aside as a result of a serious mistake made by his counsel. Specifically, counsel failed to tender certain exhibits provided by his client. The question for us is whether that cost the appellant a fair trial, thereby constituting a miscarriage of justice. BACKGROUND The Trial [ 2 ] HM is now a university student. Before Provincial Court Judge, Paul Scovil, she testified to being sexually assaulted as a child by her then stepfather, the appellant.

She would have been in grade primary or one at the time. The allegations are terrible, including forced oral and anal sex. Judge Scovil explained: [ 3 ] As indicated HM started school when her family lived on S Street. She attended A Elementary School. She also described in detail the floor plan of the family home on S Street. Her mother worked outside the home during this period and the accused was a truck driver.

Given that her mother worked shift work at a local call center, and that the accused was sometimes outside of the home with his work, there was a collection of babysitters for HM consisting mainly of family and neighbours.

[4] HM described two sexual encounters with her stepfather. The first occurred during the period when she was first beginningschool. She recalled the accused telling her that she had a choice of either being assaulted orally or anally. While she had no independentrecollection of prior sexual episodes, HM surmised that there was likely a history of that activity as she knew what those options meant.She testified that she chose to have sex orally and that she had to perform fellatio on the accused until he ejaculated.

She further recalledthat the phone rang shortly after the accused was done and that the person on the other end of the phone was her mother. The accusedwarned her not to tell her mother about what had occurred. She also recalled that the accused went and got her a glass of water. [5] The second incident was described by HM as occurring on a sunny day and described the accused having anal intercourse withher and that she could see during this incident out the window of her residence. She noted that it was a sunny day.

She recalled theaccused standing behind her with his hands on her hips as he anally penetrated her. She described afterwards going to the bathroom andhaving a white liquid come out of her anal area. The accused once again told her not to tell her mother. [3] These events would have occurred in the months leading up to the appellant’s separation from HM’s mother and his leavingthe family home. Although the record is not entirely clear, this appears to have been the winter of 2002.

The judge explained: [6] Both incidents happened while HM lived on S Street and both occurred some months prior to the accused moving out of thefamily home, upon KS splitting up with HM’s mother. The incidents she described occurred with no one being home except for herbrother C. The evidence from HM and others described C as having developmental issues which led to the family locking him in hisroom from time to time. HM commented that during the second incident she could hear C yelling. [4] At trial, the appellant maintained a complete denial.

To support his position, he tried to demonstrate that his opportunity tocommit these crimes would have been limited. His evidence included business records from his employer. Purportedly, they woulddemonstrate that, during the relevant time period, the appellant was either working fulltime or out of town completing an apprenticeshipprogram. [5] The problem is that his defence counsel, Mr. James White, tendered only one of the four documents the appellant providedhim. The appellant’s new counsel on appeal maintains that this omission jeopardized his fair trial.

To support this contention, he hasasked us to accept these three additional documents as fresh evidence. We accepted them provisionally, reserving judgment on theirultimate admission. The Judge’s Decision [6] With HM’s allegations pitted directly against the appellant’s complete denial, credibility became Judge Scovil’s primaryfocus. He explained: [28] The legal issues before this Court clearly surrounds the law relating to credibility.

Wrapped up in this is an examination ofcredibility of both the accused and the complainant HM. [29] It is fundamental in this case, as in all cases before the criminal courts that the burden of proving the guilt of the accused restssquarely on the prosecution. Before any accused can be convicted of an offense the Court must be satisfied beyond any reasonable doubtof the existence of all the essential elements of the offence. (See R. v. Vaillancourt (SCC), [1987] 2 S.C.R. 636). Thisprinciple of reasonable doubt applies to the issues of credibility as well as it does facts. (See R. v. Ay (BC CA), [1994]B.C.J.

No. 2024 B.C.C.A.). ... [33] In turning to the assessment of credibility of the witnesses I must keep in mind the test as set out in R. v. Faryna and Chorney (BC CA), [1952] 2 D.L.R. 354 where Justice O’Halloran of the British Columbia Court of Appeal stated: The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether thepersonal demeanor of the particular witness carried conviction of truth.

The test must reasonably subject his story to an examination of itsconsistency with the probabilities that surround the currently existing conditions.

In short the real test of the truth of the story of awitness in such a case must be the preponderance of the probabilities which a practical and informed person would readily recognize asreasonable in that place in those conditions. [7] The judge was also careful to respect the presumption of innocence: [30] It is imperative as well that the trier of fact in these types of cases keeps at the forefront of his or her mind the definition of“reasonable doubt” as set out by the Supreme Court of Canada in R. v.

Lifchus (SCC), [1997] 3 S.C.R. 320. [31] In cases such as this, the Court must not view it as being simply an either or choice between the evidence of the complainant andthat of the accused. To do that would be abandoning the principles of ensuring that the Crown has proven each and every element of theoffence beyond a reasonable doubt. [32] I must also apply in this case those principles set out in R. v. WD (SCC), [1991] 1 S.C.R. 742. If I believe theaccused in his denial of sexual activity with HM, I must acquit him. If I am left unsure of whether I believe the accused or HM I mustacquit.

If I disbelieve the accused but his evidence, or that of other defense witnesses, leave me with a reasonable doubt then I mustacquit. If I reject the whole of the evidence of the accused, then even before I can convict I must be convinced beyond a reasonable doubtof the guilt of the accused on the whole of the evidence. [8] Then, after articulating the applicable legal principles, the judge completely rejected the appellant’s denial: [34] The evidence given by the accused in its entirety is incredible. I reject his testimony.

His evidence regarding his workdays isexaggerated in order to make it appear that he was never at home but spent his time at work. His evidence consisted of working 8 a.m. to

5 p.m. at Peterbilt, working away from home weeks at a time on long-haul trucking runs into being at home playing video games withhis nephew six hours each day. His log book evidence did not support his testimony. Further on cross-examination he agreed he wouldhave the opportunity to be alone with the children, including the complainant, during the time in question. Presumably this was to leadevidence that showed a lack of opportunity to commit the offences.

Instead the evidence showed a lack of credibility. [9] Note that the appellant’s attempt to demonstrate limited opportunity appears to have done more harm than good in that it“showed a lack of credibility”. That finding figures prominently in my analysis that follows. ANALYSIS [10] The Criminal Code authorizes this Court to set aside a conviction if it represents a miscarriage of justice [s. 686(1)(a)(iii)].Furthermore, a conviction grounded on an unfair process would be considered a miscarriage of justice. Cromwell, J.A. (as he then was)in R. v.

Wolkins, 2005 NSCA 2 explains: 88 But what is a miscarriage of justice? 89 The clearest example is the conviction of an innocent person. There can be no greater miscarriage of justice. Beyond that, it ismuch easier to give examples than a definition; there can be no "strict formula ... to determine whether a miscarriage of justice hasoccurred": R. v. Khan, 2001 SCC 86 , [2001] 3 S.C.R. 823 per LeBel, J. at para. 74. However, the courts have generally groupedmiscarriages of justice under two headings. The first is concerned with whether the trial was fair in fact.

A conviction entered after anunfair trial is in general a miscarriage of justice: Fanjoy, supra; R. v. Morrissey (1995), (ON CA), 97 C.C.C. (3d)193 (Ont. C.A.) at 220-221. Emphasis added. [11] So how serious was this error? Did it cost the appellant a fair trial? For the reasons that follow, I conclude that it did. Theconvictions must, therefore, be set aside. [12] The significance of this error is best understood in the context of the appellant’s testimony about his work history generally andspecifically about the one work record that was tendered.

The appellant began this aspect of his direct evidence by highlighting the factthat in June of 2001, he received his diploma in heavy equipment repair. Q. Okay. Now we have some employment records here. Let's start in 2001. Where were you working in 2001? A. Well, in 2001 until June, I was still in school at Nova Scotia Community College, and I was working at Peterbilt in Nova Scotiain 2001. Q. And what hours did you have at Peterbilt? A. Well, it was a regular shift, 8 to 5, but I was also on-call with the service. Q. I'm going to show you Defence Exhibit 5, I think. THE COURT: Not Defence exhibit. It's ... MR.

WHITE: Pardon me? THE COURT: It's an exhibit of the trial. MR. WHITE: Yeah, okay. EXHIBIT 4 - NSCC DIPLOMA FOR HEAVY EQUIPMENT REPAIR IN THE NAME OF KS (MARKED AND ENTERED) THE CLERK: Exhibit 4. MR. WHITE: Exhibit 4? THE COURT: 4? MR. WHITE: Just one, yeah. Can you tell us what this is? A. This is my diploma from Nova Scotia Community College for my heavy-duty equipment repair course. Q. And it indicates that you graduated on the 14th day of June 2001? A. Yes. [13] He then testified to working fulltime at Peterbilt after graduation. Q. And after you graduated, you worked for Peterbilt? A. Yes. Q.

And where was that? A. Harrington Road in Kentville-Coldbrook. I don't know what's ...

Q. Okay. And what were your hours there? A. It was a regular shift, 8 to 5 but, again, I was on-call as well. Q. And so that would have been for the balance of 2001 and into 2002. A. Yes, pretty much all of 2002 I was there as well. Q. And where was A working at that time? A. 2001, well, she ... I can't remember her working anywhere before online support. Q. Yes. And what time did she ... when did she start that position? A. I would say end of maybe July, August maybe of 2001. [ 14 ] Then the one work record entitled “Record of Hours in Occupation” was introduced as exhibit 5.

It went in without objection, despite it not being an original document and there being no attempt to follow the process for tendering business records. A copy is attached as Appendix A. [ 15 ] Once tendered, the appellant spoke to the document in his direct evidence. Note he again purported to work fulltime during the relevant time period: Q. Perhaps you could tell us what that is. A. Thank you. This is my log book hours from my apprenticeship. Q. And your apprenticeship was after your course. A. After ... yes.

I worked up until January of 2002, and then I went to UCCB Cape Breton for my first year of apprenticeship. Q. Okay. And what dates were you in Cape Breton? A. January ... I started in January and I was home the end of February, February 24th, I believe it was. Q. And at that time, you moved into your sister's place. A. Yes, shortly after I got back, yes. Q. Yeah. And while you were at UCCB, what were your hours? A. It was basically 8 to 5. It was school hours is what it was. I wasn't working. This was my apprenticeship courses ... Q. Right. A. ... that I had to complete. Q. And when would you drive up? A.

I drove up in January and ... Q. And during the week. A. Yeah, yeah. Q. Were you home on the weekends? A. I think I come home maybe two weekends through the eight weeks. Q. Okay. A. And it was travelling with someone so ... Q. And when you came home, would you come home Friday night or Saturday or ... A. It would be Friday night so ... Q. And then you ... A. I wouldn't get back until late Friday. Q. And then you would leave again when? A. Sunday. Q. At what time?

A. Sunday afternoon around noon. Q. Okay. A. Because it's a six-hour drive back to UCCB so ... [ 16 ] It is significant that the appellant was asked about only one entry: namely his time as an apprentice at University College of Cape Breton from January 7 th , 2002 to February 22 nd , 2002. [ 17 ] Yet, on cross examination, Crown counsel zeroed in on the first entry – his time with “Peterbilt of NS”, highlighting that it did not support fulltime work: Q. So shown here in Exhibit number 5, it has your record of hours in the occupation. A. Uh-huh. Q. And this is for your apprenticeship. A. Yes. Q.

And it has you working at Peterbilt Nova Scotia from it looks like April 30th, 2001 up until, if I'm reading correctly, January 4th of 2002. A. Okay. Q. And for a total number of 240 hours at Peterbilt. Is that right? Does that sound about right to you? A. I was at Peterbilt almost two years. But yeah, by this, that's what it's saying there, yes. Q. Okay. A. April 2002. Q. So ... yeah, so from April until January, April 2001 until January 2002, you worked out there for 240 hours. A. Yes. Q. And that doesn't sound like necessarily full-time employment to me. A. It was. Q. It was? A. Yes. Q. 240 over that period?

A. Yeah. [ 18 ] It is clear that the Crown was using this document to attack the appellant’s credibility. He testified to working fulltime at Peterbilt. Yet the Crown used this document to suggest that he worked only 240 hours for the roughly eight months from April 30 th , 2001 to January 4 th , 2002. Based on a 40 hour week, that would represent only six weeks of work. This would clearly serve to hurt the appellant’s credibility and, as I will explain, puts Mr. White’s error into sharp focus. [ 19 ] Yet note the business record attached as Appendix B. It is one of the documents that Mr. White failed to tender.

Had it been tendered, based on the trial judge’s stated approach to credibility, the damage to the appellant’s credibility would likely have been mitigated. [ 20 ] For example, this record is signed by the same “Mike Blenus” on behalf of Peterbilt. It purportedly overlaps the time period referenced in exhibit 5. It demonstrates two things. Firstly, it would appear that Crown Counsel misread exhibit 5 (albeit innocently).

What he thought was a “4” in the first entry is clearly a “7”, meaning that the timeframe referenced in exhibit 5 was actually from July 30 th , 2001 (as opposed to April 30 th , 2001) to January 4 th , 2002. This would be consistent with the appellant’s June 2001 diploma and his going to work there “after graduation”. That would mean 240 hours over five as opposed to the suggested eight months. [ 21 ] More importantly, however, this new document contradicts exhibit 5 in that it shows more hours over a shorter time frame – 640 from July to October. Based on a 40 hour week, 640 hours would translate into 16 weeks.

Although we do not know the beginning date in July or the ending date in October, this would appear to be consistent with fulltime work, as the appellant contended. [ 22 ] It is clear that the Crown’s effort to use exhibit 5 to impeach the appellant’s credibility worked. It left the judge to conclude: “[h]is evidence regarding his workdays is exaggerated…” and “[i]nstead the evidence showed a lack of credibility.” More importantly, the judge highlighted no other inconsistences that he felt damaged the appellant’s credibility. [ 23 ] All this makes Mr.

White’s error very significant and, with credibility being so central to the trial, in my view, it cost the appellant a fair trial.

[24] In reaching this conclusion, I am fully aware of the Crown’s able and detailed submission that the proposed fresh evidencedoes nothing more than add further confusion to the already confusing exhibit 5. None of the four workplace documents would havehelped him, especially since he admitted having the opportunity (however limited) to commit these crimes. That might be so. But that isnot the issue. The point is not that exhibit 5 was of no help. The point is that, whether it should have been tendered or not, it appeared tohave seriously hurt the appellant’s case.

Based on the trial judge’s stated approach, this damage would likely have been mitigated hadMr. White done what his client had requested. In a case that was all about credibility, this represents a miscarriage of justice that must becorrected. The Fresh Evidence Motion [25] This conclusion directly impacts my ruling on the proposed fresh evidence. The appellant’s package consists of: (

a) the threeuntendered documents; (

b) the appellant’s affidavit explaining that it always had been his instructions to tender all four documents; and(

c) an affidavit from Mr. White essentially admitting that it was all his fault and that his failure to tender resulted from inadvertence asopposed to trial strategy. [26] What then should be admitted and why? [27] The Supreme Court of Canada, in R. v. Stolar, (SCC), [1988] 1 S.C.R. 480, suggests the following process fordealing with fresh evidence motions: [14] The procedure which should be followed when an application is made to the court of appeal for the admission of fresh evidenceis that the motion should be heard and, if not dismissed, judgment should be reserved and the appeal heard.

In this way, the court ofappeal has the opportunity to consider the question of fresh evidence against the whole background of the case and all the other evidencein the case. It is then in a position where it can decide realistically whether the proffered evidence could reasonably have been expectedto affect the result of the case. If, then, having heard the appeal, the court should be of the opinion that the evidence could notreasonably have affected the result, it would dismiss the application for the introduction of fresh evidence and proceed to a disposition ofthe appeal.

On the other hand, if it should be of the view that the fresh evidence is of such nature and effect that, taken with the otherevidence, it would be conclusive of the issues in the case, the court of appeal could dispose of the matter then and there.

Where,however, the fresh evidence does not possess that decisive character which would allow an immediate disposition of the appeal but,nevertheless, has sufficient weight or probative force that if accepted by the trier of fact, when considered with the other evidence in thecase, it might have altered the result at trial, the court of appeal should admit the proffered evidence and direct a new trial where theevidence could be heard and the issues determined by the trier of fact. [28] We have followed that process so far, by hearing the motion and reserving judgment until conducting the appeal proper. [29] Continuing with the Stolar process, my analysis above demonstrates that, while far from dispositive, the first of the threeomitted documents “has sufficient weight [and] probative force that if accepted by the trier of fact, when considered with the otherevidence in the case, it might have altered the result at trial”.

As such it should, along with the supporting affidavits, be admitted onappeal. [30] The remaining two omitted documents offer nothing to my analysis, and I would reject them for the purposes of this appeal. [31] In reaching this conclusion, I acknowledge that, typically, we should not admit documents that, if by due diligence, could havebeen tendered at trial. See R. v. Palmer, (SCC), [1980] 1 S.C.R. 759. However, this pre-requisite is deemed to have beenmet when, like here, the failure to tender results from ineffective counsel. See R. v.

Appleton, (ON CA), [2001] O.J.3338 at ¶ 23 and ¶ 24. [32] I also wish to acknowledge again the Crown’s concern about the relevance and admissibility of all these documents, includingexhibit 5. I agree that they could indeed be irrelevant or otherwise inadmissible. However, I have assessed relevance only for the purposeof this appeal. It is as simple as this. A document that was tendered without objection, appeared to hurt the appellant’s credibility. Asecond document was supposed to have been tendered (no doubt as well without objection).

Had it been tendered, based on the judge’sstated approach to credibility, it would likely have undone some or all of the harm. Whether any, some, or all of these documents wouldbe considered relevant or otherwise admissible at a new trial, will be for that judge to decide. [33] My conclusion on this issue disposes of the appeal. I need not consider the appellant’s other grounds. However, I will brieflyaddress just one. I do so to provide guidance to future appellants. [34] It involves the appellant’s third issue where he challenges the judge’s handling of the evidence. He identifies three subjects,namely: (

a) the timing of the alleged offences; (

b) the complainant’s demeanor, and (

c) the appellant’s evidence about his pierced penis.The appellant explains the timing issue this way: 56. At its strongest — from the Appellant’s standpoint — the evidence indicated that the two alleged assaults occurred close in time,shortly before April 1, 2002, a period when the Appellant was either attending classes in Cape Breton or was in Kentville but no longerbabysitting the Complainant. This was meaningful circumstantial evidence, capable of supporting an inference inconsistent with theallegations.

Even if the words used by the Complainant including “shortly after” and “within two months” were given a large and liberalinterpretation, the narrowed period of the allegations set against the evidence of the Appellant’s activities at specific times may still havebeen capable of contributing to reasonable doubt. 57. The trial judge did not consider the significance of the timing evidence as potentially affording circumstantial support for theAppellant; he did not, in fact, consider the timing evidence in detail at all.

He restricted his analysis to confirming that the timingevidence was consistent with the Crown case in the broadest possible strokes, i.e. whether it fell within the period alleged on theinformation and whether the Appellant had any opportunity during that entire period to commit the offences. (Decision at para. 34). …

[59] The “disconnect” in the Complainant’s evidence of the timing was no less significant than the disconnect in the Appellant’swork history evidence. The evidence on timing presented several facets that were capable of contributing to reasonable doubt andtherefore warranted consideration in light of the whole of the evidence. [35] In his demeanor issue, the appellant feels that the judge should have been more circumspect about HM’s apparent normalbehaviour after the alleged incidents: 72.

Evidence of the Complainant’s unchanged demeanour toward and around the Appellant was important circumstantial evidence,unchallenged and unanswered by the Crown, that should have been considered by the trial judge. [36] The appellant describes the “pierced penis” issue this way: 73. The Appellant testified that several years prior to the offences, he had his penis pierced and acquired a penis ring called a “PrinceAlbert”. A photograph taken three days before the Appellant testified showed the ring to be conspicuous and bulky.

The Complainantwas unable to remark on the presence of the ring, despite observing the Appellant’s penis to the degree that she claimed to be “prettysure” that he was circumcised. This inconsistency could reasonably have contributed to raising a reasonable doubt on the whole of theevidence, but again it was disregarded by the trial judge. [37] Before us, the appellant has cast these issues as alleged errors of law. In my view, that is a mischaracterization. Instead, theyought to have been cast as an attack on the verdict. [38] To explain, I must begin with the fundamentals.

The Criminal Code allows only three ways in which a court of appeal canoverturn a conviction; namely, an unreasonable verdict, an error of law or a miscarriage of justice. 686.

(1) Powers – On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or notcriminally responsible on account of mental disorder, the court of appeal (

a) may allow the appeal where it is of the opinion that (

i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence, (ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or (iii) on any ground there was a miscarriage of justice; [39] Furthermore, not every error of law will lead to a conviction being set aside. Specifically, where no substantial wrong ormiscarriage of justice results, we might allow the conviction to stand: 686.

(1) Powers – On the hearing of an appeal against a conviction … the court of appeal… (

b) may dismiss the appeal where … (iii) notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph (a) (ii) the appeal might be decided infavour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred [40] These three complaints target the judge’s assessment of the evidence. As such, in my respectful view, they can only be viewedas attacking the verdict. In other words, they must be addressed in the context of an alleged unreasonable verdict under s-s. 686(1)(a)(i). [41] In this context, our role is limited.

Saunders J.A. of this Court in R. v. M, 2012 NSCA 70 explains: [35] Whether a verdict is unreasonable is a question of law. Perhaps the most familiar test for deciding whether a verdict isunreasonable is to ask whether the verdict is one that a properly instructed jury or judge could reasonably have rendered. R. v. Yebes, (SCC), [1987] 2 S.C.R. 168 (S.C.C.), and R. v. Biniaris, 2000 SCC 15 (S.C.C.). But that is not the only test.

We mayalso find a verdict unreasonable if the trial judge has drawn an inference or made a finding of fact essential to the verdict that: 1. is plainly contradicted by the evidence relied upon by the trial judge in support of that inference or finding; or 2. is shown to be incompatible with evidence that has not otherwise been contradicted or rejected by the trial judge. See for example: R. v. P. (R.), 2012 SCC 22 (S.C.C.); R. v. Sinclair, 2011 SCC 40 (S.C.C.); R. v. Beaudry, 2007 SCC 5 (S.C.C.); and R.v. Clark, 2005 SCC 2 (S.C.C.). [42] Here HM provided ample evidence to support the verdict.

The judge addressed the evidence in a comprehensive way. He didnot have to refer to every aspect. None of his findings were contradicted or incompatible with the evidence. I would dismiss this groundof appeal. DISPOSITION [43] I would allow the appeal and order a new trial. MacDonald, C.J.N.S.

Concurred in: Hamilton, J.A. Fichaud, J.A. Appendix “A” Appendix “B”