R. v. Stailing, 2011 NSSC 391

SUPREME COURT OF NOVA SCOTIA Citation: R. v. Stailing, 2011 NSSC 391 Date: October 24, 2011 Docket: Amh. No. 350360 Registry: Amherst Between: Robert Bruce Stailing Appellant v. Her Majesty the Queen Respondent LIBRARY HEADING Judge: The Honourable Justice Cindy A. Bourgeois Heard: September 22, 2011 at Amherst, Nova Scotia Subject:

Summary Conviction Appeal

Summary: The Appellant was convicted of assault before the Provincial Court. He appealed on the sole ground that the learned trial judge erred by not giving consideration to whether the Crown ’ s failure to call corroborative evidence should give rise to an adverse inference. Issue: Was the trial judge required to consider and then apply an adverse inference in the facts before the Court? Result: There was no error on the trial judge ’ s part. Appeal dismissed. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET .

SUPREME COURT OF NOVA SCOTIA Citation: R. v. Stailing, 2011 NSSC 391 Date: October 24, 2011 Docket: Amh. No. 350360 Registry: Amherst Between: Robert Bruce Stailing Appellant v. Her Majesty the Queen Respondent Judge: The Honourable Justice Cindy A. Bourgeois Heard: September 22, 2011 at Amherst, Nova Scotia Counsel: Brian Casey for the Appellant Mary Ellen Nurse for the Respondent By the Court : BACKGROUND [ 1 ] The Appellant, Mr. Stailing, was charged that on or about the 3rd day of March, 2011, at or near Oxford, Nova Scotia, he did commit an assault on Valeria Darlene Stailing, contrary to

section 266 of the Criminal Code of Canada .

[ 2 ] Following a trial, the Appellant was convicted of the above noted offence by Chief Judge Curran of the Provincial Court, on May 5, 2011. [ 3 ] By way of Notice of

Summary Conviction Appeal filed June 10, 2011 the conviction is appealed based on a singular ground, stated as follows: "The learned trial judge erred in failing to draw an adverse inference against the complainant from the fact that evidence which she claimed would have corroborated her account was not called in the following circumstances: the complainant testified that the slap had left a mark which was plainly visible to the investigating officer; the investigating police officer was present in court and not called to testify. (The officer in fact noted, "no visible injuries")." POSITION OF THE APPELLANT [ 4 ] As noted above, the focus of the Appellant's argument is very narrow, limited to the alleged failure of the learned trial judge to draw an adverse inference from the Crown's failure to call an investigating officer to corroborate the complainant's evidence. [ 5 ] The trial evidence, accepted by both parties, is that on March 3, 2011, the Appellant and the complainant, who at the time were spouses, traveled via private vehicle to Oxford, N.S.

The Appellant was driving, with the complainant being a passenger. They had their dog with them. [ 6 ] The complainant alleges that at some point while the vehicle was stopped in Oxford, that the Appellant slapped her in the face.

The Appellant testified, denying that he slapped the complainant. [ 7 ] It is further unchallenged that on the same day, the couple traveled back to their home in Glen Haven, Nova Scotia. [ 8 ] The Appellant asserts that the trial judge erred by not turning his mind to whether an adverse inference should be drawn against the complainant due to the Crown's failure to call corroborative evidence from the investigating officer. Some excerpts from the Appellant's written submission are illustrative of his concern: 11.

The RCMP officer who took Valeria's statement in the early morning hours of March 4, 2010 was present in the court precincts, and was excluded from the courtroom because she was to be a Crown witness. She was not called as a witness by the Crown. At the conclusion of the Crown case, the Crown told the RCMP officer she was free to leave. 12. At the conclusion of the trial, defence counsel argued that the trial judge could draw an adverse inference from the fact the RCMP officer was not called as a Crown witness.

If as Valeria Stailing claimed, the "handprint was visible on her face" at the time she gave her statement to the police, that would corroborate her claim she was assaulted. It was the only corroboration for the key point in dispute in the trial. The Crown chose not to call the only evidence which was said to corroborate this claim. Because the witness was available and not called, the court could draw the inference the officer's evidence would not be helpful to the Crown case. 13.

The trial judge did not deal with that argument in his decision, although it was the entire submission of the defendant at trial. [ 9 ] The Appellant cites two authorities in support of his position that an adverse inference should have been considered by the trial judge, R. v. Joliet , 2000 SCC 29 and R. v. Lapen see , 2009 ONCA 646 . Again in his written submissions, it is argued:

18. Jolivet distinguishes between an inference that the witness would testify adversely to the party and the inference that a witnesswould be unhelpful. Here, it is fair to draw the inference that the witness would not have been helpful to the Crown: in other words,despite the assertion that "a handprint" from the assault was visible, the police noticed no evidence of it. and further, 20. The question is whether Valeria's rambling evidence, together with the evidence that the judge did accept, amounted to proof beyonda reasonable doubt.

The inference that the RCMP officer's evidence would have been unhelpful to the Crown would have assisted thetrial judge in deciding that question. In failing to address that issue in his judgment, he has committed reversible error. POSITION OF THE RESPONDENT [10] The Crown asserts that the evidence before the Court was inadequate to give rise to even the potential for an adverseinference to be considered by the trial judge.

It is submitted that the authorities relied upon by the Appellant simply do not apply to thepresent circumstances, as the Crown did not, at any time, raise that there was corroborative evidence to be called. [11] The Crown asserts that the Appellant has inaccurately portrayed the evidence that was before the learned trial judge as itrelates to the existence of potentially corroborating evidence. The Crown submits the trial judge did not err in the circumstances, and theappeal should be dismissed. STANDARD OF REVIEW [12] In R. v.

Nickerson, 1999 NSCA 168, Cromwell, J.A. (as he then was) described the standard to be applied by a

summaryconviction appeal court as follows: [6] The scope of review of the trial court's findings of fact by the

Summary Conviction Appeal Court is the same as on appeal againstconviction to the Court of Appeal in indictable offences: see sections 822(1) and 686(1)(a)(

i) and R.v. Gillis (1981), (NS CA), 60 C.C.C. (2d) 169 (N.S.S.C.A.D.) per Jones, J.A. at p. 176. Absent an error of law or a miscarriage of justice, the test to beapplied by the

Summary Conviction Appeal Court is whether the findings of the trial judge are unreasonable or cannot be supported bythe evidence. As stated by the Supreme Court of Canada in R. v. Burns (SCC), [1994] 1 S.C.R. 656 at 657, the appealcourt is entitled to review the evidence at trial, re-examine and reweigh it, but only for the purpose of determining whether it isreasonably capable of supporting the trial judge's conclusions. If it is, the

Summary Conviction Appeal Court is not entitled to substituteits view of the evidence for that of the trial judge. In short, a

summary conviction appeal on the record is an appeal; it is neither a simplereview to determine whether there was some evidence to support the trial judge's conclusions nor a new trial on the transcript. [13] The standard of review as articulated in Nickerson, supra has recently been re-iterated by the Court of Appeal in R. v. CE,2009 NSCA 79. [14] The standard for review for alleged errors of law is correctness, although simply establishing the existence of an error is notsufficient - the Court must consider whether the error affected the verdict. See R. v. Farrell, 2009 NSCA 3 and R. v. Spinney, 2010NSCA 4.

ANALYSIS [15] As noted above, the Appellant bases his argument upon the authority contained in R. v. Joliet, supra, a decision of theSupreme Court of Canada. For the purpose of this Court's determination, a review of the circumstances in Joliet is helpful.

[ 16 ] Mr. Joliet was charged with several counts of murder, and was tried by judge and jury. In his opening statement to the jury, Crown counsel indicated an intention to call a crown witness, Mr. Bourgade, who would corroborate certain aspects of another crown witness' testimony. Further, during the course of the trial and when questioning another witness, Crown counsel again suggested that Mr. Bourgade would be testifying and alleged his evidence would be corroborative in nature. Despite these statements, Crown counsel did not proceed to call Mr. Bourgade.

Defence counsel requested the opportunity in his jury address to comment upon the failure of the Crown to call this witness. This request was denied. Mr. Joliet was convicted. On appeal, a new trial was ordered by a majority of the Quebec Court of Appeal. The Crown subsequently appealed to the Supreme Court of Canada. [ 17 ] In rendering the Court's decision, Justice Binnie confirmed the principle "that the Crown is under no obligation to call a witness it considers unnecessary to the prosecution's case" (para. 14).

It was however, the Crown's comments to the jury regarding the intention to call corroborative evidence which triggered an obligation on the trial judge to consider what options should be utilized to address any unfairness created by the Crown's subsequent decision not to call Mr. Bourgade. Justice Binnie considered the possible options open to a trial judge in such circumstances, and noted: 22. Cook, supra , listed some possible options to rectify any prejudice created by the Crown's failure to call a witness. These included a defence comment on that failure in its closing jury address.

The purpose of making such a comment to the jury is inevitably to invite the jury to draw an adverse inference against the Crown's case. The questions at this point are, therefore, What circumstances justify such a comment, and What is the precise content of the adverse inference against the Crown's case that the defence is entitled to request? 23. Put at its highest, the Crown's failure to call Bourgade could in theory have lead the jury to draw the adverse inference that Bourgade's testimony, if called, would have been unfavourable to the Crown.

In my view, there was no basis to ask the jury to draw such a strong inference in this case. [ 18 ] The Court determined however, that the trial judge erred by not permitting Defence counsel to comment in the address to the jury, on the Crown's failure to call Mr. Bourgade. It is clear however, that this determination was driven not by the existence of another witness, but by virtue of the Crown's statements to the jury that the uncalled witness would be providing corroborative evidence later in the trial. This is illustrated in paragraphs 29 and 30 of the Court's decision: 29.

Applying these principles to the present facts, I think that if Crown counsel's explanation of his change of intention is accepted, the Crown acted in accordance with its ethical responsibilities, and an adverse inference that Bourgade would have given evidence unfavourable to the Crown would not be justified. If nothing had been said about Bourgade to the jury, that would have been an end to the matter.

The complicating factor is that Crown counsel, despite his misgivings, twice announced to the jury that Bourgade would be called, and these announcements perhaps led the jury to anticipate that the Crown's case was stronger than it turned out to be. It is because of those announcements that I think a defence comment would have been appropriate. 30. Crown counsel's comment had produced an element of prejudice by asserting the existence of corroborative evidence.

An adverse inference of "unhelpfulness" would have been a fair result of the Crown's failure to substantiate its assertion. [ 19 ] The Appellant has also submitted a more recent decision, R. v. Lapensee , supra , in support of his position. In that instance, a conviction was set aside due to the trial judge improperly drawing an adverse inference from an accused's failure to call a witness who may provide corroborative evidence. It follows the decision in Jolivet , supra . [ 20 ] With respect, neither of the above cases support the position being advanced by the Appellant.

The leading decision, Jolivet , supra , is distinguishable from the present appeal, in several material respects. Clearly, the impact of certain comments being made to a jury, was an important consideration in that instance. This matter, of course, was heard by a judge alone. A more important distinction in my view, is that in Jolivet , supra , Crown counsel had stated during the course of the trial that corroborative evidence would be called. Here, a review of the transcript fails to disclose that the Crown made any suggestion that the complainant's evidence would be corroborated in any fashion.

This is an essential distinction.

[ 21 ] The Appellant has made a number of assertions, which upon review of the trial transcript, do not appear to be reflected in the evidence. In the stated ground of appeal, reproduced earlier herein, the Appellant asserts an adverse inference should be drawn against the complainant due to evidence not being called " which she claimed would have corroborated her account" .

Nowhere in the transcript, does the complainant, or Crown counsel in her comments to the Court, state that either corroborative evidence existed, or that it would be called. [ 22 ] The ground also alleges "the complainant testified that the slap had left a mark which was plainly visible to the investigating officer" . Further, in his written submissions, Counsel for the Appellant asserts that Ms. Stailing testified the "handprint was visible on her face" at the time she gave her statement to police. With respect, I cannot agree that the transcript reveals such evidence being provided. At no time did Ms.

Stailing reference a "handprint" being left on her face. There are only two exchanges within the trial evidence relating to the alleged slap and any resulting physical signs thereof. The slap was referenced in the course of direct examination, at page 16, lines 16 through 19 as follows: Q. Okay. And did you sustain any injuries in relation to that slap across the face? A. Well it was there the next day and I had a headache. Q. Okay. [ 23 ] The slap was again referenced in cross-examination, at page 27, lines 15 through 20 as follows: Q. And you told us today that that slap mark was still visible the next day? A.

Yes, it was. Q. Okay. I have to tell you, Mrs. Stailing, that the police officer didn’t notice it. A. Well it was still visible. [ 24 ] As noted above, these are the only two references in the transcript of the alleged slap. There is no reference to a "handprint", nor can the Court accept that Ms. Stailing testified that the mark would be visible to the investigating officer. It was Defence counsel in his question who suggested the police officer did not notice a mark. Ms. Stailing did not adopt that view as her own testimony, rather responded that "it was still visible".

The factual propositions put forward in questions posed by Counsel do not form evidence, unless adopted by the witness. [ 25 ] In the case before the Court, there is evidence which establishes that the RCMP took a recorded statement from the complainant. At no time were specific statements contained therein ever put to the complainant, nor was there any attempt to have the statement put into evidence. In a similar vein, the Appellant referenced in his submissions that the investigating officer did not notice a mark on the complainant's face.

There is no evidence in the trial transcript of any notations made by a police officer. Although the Court can surmise that as part of Crown disclosure a recorded statement, and perhaps the officer's notes were provided to the Appellant, none of this material, nor the contents thereof were in evidence before the Court.

Further, there was no suggestion, or representation made by the Crown that the evidence of the investigating officer would corroborate the complainant's evidence. [ 26 ] In my view, there was nothing in either the evidence presented on behalf of the Crown, or in Crown counsel's submissions which would give rise to a necessity that the trial judge give consideration to whether an adverse inference would be appropriate in the

present case. It is clear however, in the exchange between Defence counsel and the trial judge, that the court had turned its mind to whether the circumstances justified the drawing of an adverse inference, and dismissed it, as there was nothing before the court to suggest evidence that the police officer would offer corroborative evidence - see page 50, lines 8 through 19. CONCLUSION [ 27 ] For the reasons stated above, the appeal is dismissed, and the conviction confirmed. J.