R. v. Drysdale, 2021 NSSC 285

SUPREME COURT OF NOVA SCOTIA Citation: R. v. Drysdale , 2021 NSSC 285 Date: 20210929 Docket: Hfx No. 506050 Registry: Halifax Between: Candie Marie Drysdale Appellant v. Her Majesty the Queen Respondent Decision Judge: The Honourable Justice Peter P. Rosinski Heard: September 7, 2021, in Halifax, Nova Scotia Counsel: Nicholaus Fitch, for the Appellant Kristyn Stevens, for the Respondent By the Court: Introduction [ 1 ] Ms. Drysdale is appealing her conviction for assault of a nine-year-old child in her care – s. 266 (

b) of the Criminal Code (“ CC ”). I am sitting in much the same position as an appellate court hearing an indictable appeal in the first instance. [1] [ 2 ] The incident occurred at a Swiss chalet restaurant on September 8, 2019. Ms. Drysdale was there with two adult friends - Tina Denny, Jim Davis and her two nieces and nephew for whom she had custody in loco parentis .

M was nine years old, P was seven years old and R was 10 years old. [ 3 ] His Honour Judge Perry Borden heard from four witnesses. [ 4 ] The Crown presented three witnesses: two patrons who were at the restaurant together: Josh Chapman and Chanelle Pearson; and Taylor Funnell, a server. [ 5 ] The evidence of these witnesses collectively painted a picture that during an approximately one-half hour interval, inter alia Ms. Drysdale: 1. forcefully yanked the arm of M and pushed her into the booth seat (causing her to bang her head on the seating booth) - seen by Mr.

Chapman (pp. 25-26 Decision, AB, pp.134-145 AB his testimony) and Ms. Pearson (pp. 24-25 AB decision; p. 100 (11) and pp. 109-112 AB her testimony) 2. gave her a painful “Indian burn” on her arm - seen by Ms. Pearson (p. 102 AB); and by Ms. Funnell (pp. 77-81 AB “the mother turned to her daughter angrily used both of her hands on the child’s right arm, twisted it and yanked her into the booth further… I could tell that [the child] was in pain and that it hurt … quite a bit of force…”)

3. and multiple punches to the torso area (for “maybe a minute or two” - p. 89

(13) AB per Mr. Chapman. [6] Judge Borden accepted that M has developmental issues. According to Ms. Drysdale, she “has a cognitive level of a three orfour-year-old” - page 187 Appeal Book (“AB”). [7] The Defence presented Ms. Drysdale. [8] Ms. Drysdale denied that she had been “stressed by M’s behaviour” that day (p. 182(3) AB), or that M was crying orscreaming (p. 187 AB). She testified that any physical contact she had with M was based on her concerns that M would act out, andperhaps run out of the restaurant. Ms.

Drysdale testified that she tempered her physical contacts and only physically touched M in orderto ensure she behaved and did not run away. [9] Regarding the alleged yanking of M’s arm and pushing her into the booth seat, Ms.

Drysdale testified: … I knew at that point, like her expression, I knew she was about to bolt… I had to get her situated and I kind of turned her around, butshe was fighting with me, so I had to, like kind of put her in the booth with like with like a little bit of force… like it was normal…because I needed to block her so she’s not running out from the booth… I remember after I got her in the booth, she tried to slide downunderneath the table to get out, so I had to kind of pick up her jeans and kind of sit her up straight because she was kicking P whichwould’ve been like in the middle [She testified this only happened once – p. 186(9) AB].… I remember like a couple staring over, but itwasn’t – I don’t remember. (pp.177-8 AB) [10] Notably, Mr.

Chapman testified that he made eye to eye contact with Ms. Drysdale and shook his head in disapproval - p. 79(24) AB; and Ms. Pearson also had been looking towards the Drysdale table. (pp. 100-101 AB) [11] Ms. Drysdale denied that she had “at any time… twist[ed] [the arm of any of the children] in an Indian burn”. (p. 179 AB) [12] Although she did not directly deny punching M in the torso, the implication of her testimony was that she did not punch M inthe torso. [13] Ms.

Drysdale relied upon s. 43 CC which permits persons standing in loco parentis to children to exert physical control overchildren if the force is used “by way of correction,… [and] does not exceed what is reasonable under the circumstances.” - see CanadianFoundation for Children Youth and the Law v Canada, 2004 SCC 4 , [2004] 1 SCR 76. 1 - The trial judge’s decision [14] In an oral decision given on December 18, 2020, His Honour Judge Borden concluded: I may only convict Ms. Drysdale of the indexed offence if proven beyond a reasonable doubt. Clearly there was a physical contactbetween Ms. Drysdale and M.

The question remains was that contact justified to curb M’s behaviour issues and prevent her fromrunning. I find the combined evidence consistent insofar as it related to Ms. Drysdale utilizing excessive physical contact that wasdirected towards M, specifically the yanking of the arm and pushing her into the booth, the Indian arm burn and the multiplepunches to the torso area. In this instance, the degree of force used created a prospect of physical harm and it was not reasonablein the circumstances and thus, does not engage

section 43 of the Code. However, based on the constellation of all the evidence, Iam not convinced beyond a reasonable doubt that M’s head was slammed into the back of the booth. Nevertheless, on the evidence that I do accept I conclude the Crown has proven beyond reasonable doubt that Mr. Drysdale assaulted Mcontrary to

section 266 of the Criminal Code. 2 - The grounds of appeal [15] The grounds of appeal in the Notice of Appeal read as follows:[2] The trial judge erred in 1. considering the subjective opinion of the witnesses [i.e. relied upon neutral factors to bolster Crown witness’s credibility - such astheir reactions to what they saw] that an assault had occurred; 2. granting the Crown’s motion to amend the information [from a victim identified as M - to an unknown child - this issue was notpressed on appeal, and I find the trial judge made no error in this respect in any event];

3. applying the principles discussed in R v WD, (SCC), [1991] 1 SCR 742, by not effectively requiring the Crown toprove the offence beyond a reasonable doubt. [16] The Defence expanded the ambit of the grounds of appeal to include an alleged error claiming the trial judge misapprehendedmaterial evidence.[3] 3 - The scope of appellate review [17] The extent of this court’s review on appeal is limited. [18] As Justice Coughlan recently stated in R v JGM, 2021 NSSC 60: 18 The role of a

summary conviction appeal court was set out by Cromwell, J.A. as he then was, in giving the Court of Appeal'sjudgment in R. v. Nickerson, 1999 NSCA 168: [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 tobe applied by the

Summary Conviction Appeal Court is whether the findings of the trial judge are unreasonable or cannot besupported by the evidence. As stated by the Supreme Court of Canada in R. v. Burns, (SCC), [1994] 1 S.C.R. 656 at657, the appeal court is entitled to review the evidence at trial, re-examine and reweigh it, but only for the purpose of determiningwhether it is reasonably capable of supporting the trial judge's conclusions. If it is, the

Summary Conviction Appeal Court is notentitled to substitute its 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 simple review to determine whether there was some evidence to support the trial judge's conclusions nor a new trial on thetranscript. … 27 The test as to how an appeal court is to deal with alleged misapprehension of evidence was addressed by Beveridge J.A. ingiving the Court's judgment in R. v. J.C., 2018 NSCA 72 at paras. 49 and 50: [49] This Court summarized the law with respect to misapprehension of evidence in R. v.

Izzard, 2013 NSCA 88: [40] To obtain a remedy on appeal based on an allegation that a trial judge misapprehended the evidence, the appellant mustshow two things: first, that the trial judge, in fact, misapprehended the evidence -- that is, she failed to consider evidence relevantto a material issue, was mistaken as to the substance of the evidence, or failed to give proper effect to evidence; and second, thatthe judge's misapprehension was substantial, material and played an essential

part in the decision to convict (see R. v.Schrader, 2001 NSCA 20; R. v. Deviller, 2005 NSCA 71; R. v. D.D.S., 2006 NSCA 34). [50] Material errors made in the course of credibility determination on the path to conviction can be fatal (see R. v. C.L.Y., 2008SCC 2; R. v. P. (J), 2014 NSCA 29; leave to appeal denied, [2014] S.C.C.A.

No. 255). [My bolding added] 4 - The standards of review for the argued material errors made by the trial judge [19] In assessing whether a trial judge’s reasons contain material error, appeal courts view those reasons through the lens of theapplicable standard of review. [20] In R v Grouse 2004 NSCA 108 Justice Cromwell (as he then was) made expansive comments regarding the standard of reviewin the context of an appeal regarding the voluntariness of an accused’s statement: 2.Voluntariness:

31. The second issue concerns the voluntariness of the appellant's statements. Before turning to the appellant's submissions, I must say aword about the standard of appellate review, provide an overview of the facts relating to the taking of the statement and a

summary ofthe judge's reasons for admitting it. (a)Standard of Review: 32. At first glance, some of the statements about the standard of review in confession cases seem inconsistent with each other and withthe law respecting appellate review in other contexts. For example, it has been said that the ruling on the admissibility of a confession isa matter of applying legal principles to the facts and is therefore a question of mixed law and fact or a question of fact: see for example R.v. Oickle, 2000 SCC 38 , [2000] 2 S.C.R. 3 at para. 22 and, in another context, R. v.

Buhay, 2003 SCC 30 , [2003] 1S.C.R. 631 at para. 45. However, the Supreme Court has also said in confessions cases that the admissibility of evidence is always aquestion of law: see e.g. The Queen v. Fitton, (SCC), [1956] S.C.R. 958 at 983 - 4 cited with approval in R .v.Ward, (SCC), [1979] 2 S.C.R. 30 at 34. Moreover, in other contexts, the Supreme Court has said that the application of alegal standard to the facts is a question of law alone: see Araujo v. The Queen, 2000 SCC 65 , [2000] 2 S.C.R. 992 at para. 18;R. v. Biniaris, 2000 SCC 15 , [2000] 1 S.C.R. 381 at para. 22. 33.

These apparent contradictions, however, are resolved by keeping in mind the difference between appellate jurisdiction andthe scope of appellate review. The former concerns which cases may be considered while the latter concerns what should be done withthem when they are. An issue may be characterized as a question of law, of fact, or of mixed law and fact as part of the analysis of bothof these questions.

The critical point is that the purposes of the characterization in these two settings are quite different and thecharacterization of an issue for one purpose does not necessarily inform its characterization for the other. … 44. In

summary, I would state the applicable principles of the standard of appellate review of a finding of voluntariness in aconviction appeal as follows: 1.The judge's findings of fact, including the weight to be assigned to the evidence and the inferences drawn from the facts, are tobe reviewed on the standard of palpable and overriding error: Buhay at para. 45. 2.The judge's statements of legal principle are to be reviewed on the standard of correctness: Oickle at para. 22. 3.The judge's application of the principles to the facts is to be reviewed on the standard of palpable and overriding error unlessthe decision can be traced to a wrong principle of law, in which case the correctness standard should be applied: Buhay at para.45; Housen at para. 37. [My bolding added throughout] [21] In R v Cooke, 2020 NSCA 66, Justice Beaton referred to a more recent recitation of the standard of review: 9 The applicable standard of review is determined by whether the assertion of error relates to matters of fact, law or mixed fact and law.In Laframboise v.

Millington, 2019 NSCA 43 Saunders J.A. explained the standards this way: [14] The standards of appellate review in cases such as this are so well-known as to hardly require elaboration. Questions of law arereviewed on a standard of correctness. When interpreting and applying the law the judge must be right. On questions of fact, orinferences based on accepted facts, or questions of mixed law and fact where the legal point is not readily extricable, a trial judge'sfactual findings will only be disturbed if they evince palpable and overriding error. "Palpable" means obvious.

"Overriding" meansdispositive; a mistake so serious as to have likely influenced the outcome. In appeals from a trial judge's exercise of discretion, deferenceis owed. We will only intervene if we are satisfied that in the exercise of that discretion the judge erred in law or the outcome is patentlyunjust. Unless an appellant can persuade us that the trial judge either erred in law, or erred in fact, or erred in the exercise of discretion inthe ways I have just described, the appeal will fail. See generally, Housen v.

Nikolaisen, 2002 SCC 33 at para 8 ff.; Gwynne-Timothy v.McPhee, 2005 NSCA 80 at paras 31-34; Laushway v. Messervey, 2014 NSCA 7 at paras 27-29; Homburg v. Stichting AutoriteitFinanciële Markten, 2016 NSCA 38 at paras 18-19; and McPherson v. Campbell, 2019 NSCA 23 at paras 17-20. 10 Both parties recognize in relation to the first ground of appeal the judge's findings of credibility are entitled to considerable deference,as she was in the best position to assess the evidence of the witnesses. On matters of credibility, appellate intervention must beconfined to legal errors: R. v. N.M., 2019 NSCA 4 at para. 17.

As noted by Beveridge J.A. in R. v. J.C., 2018 NSCA 72: [50] Material errors made in the course of credibility determination on the path to conviction can be fatal (see R. v. C.L.Y., 2008SCC 2; R. v. P.(J.), 2014 NSCA 29; leave to appeal denied, [2014] S.C.C.A. No. 255). [My bolding added][4]

[22] Even more recently, in R v Gerrard, 2021 NSCA 59, Justice Hamilton stated: “44 The standard of review as it applies to cases turning on credibility assessments was clearly set out in R. v. S.S.S., 2020 BCCA 180: [24] It is important to emphasize that while an appellate court is tasked with scrutinizing the reasons given by the trial judge,considerable deference is owed to the trial judge on issues of fact finding and credibility assessment. In R. v. Howe (2005), (ON CA), 192 C.C.C. (3d) 480 (Ont.

C.A.) Doherty J.A. outlined the rationale for the limited role of an appellate court: [46] Careful scrutiny of the trial judge's reasoning process is not ... to be equated with retrying the case. An appellate court mustalways bear in mind the significant advantage enjoyed by the trial judge when it comes to assessing credibility. ... A lifelesstranscript of the testimony cannot possibly replicate the unfolding of the narrative at trial.

Nor can oral argument and a selectivereview of the trial record possibly put an appellate court in as good a position as the trial judge when it comes to credibilitydeterminations: see R. v. Francois (1994), (SCC), 91 C.C.C. (3d) 289 at 296 (S.C.C.). [25] In R. v. Gagnon, 2006 SCC 17 at para. 20, the Court recognized that the bases for credibility assessments are not always easy toexpress, and re-emphasized the need for appellate courts to give deference to the findings of trial judges: Assessing credibility is not a science.

It is very difficult for a trial judge to articulate with precision the complex intermingling ofimpressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events. Thatis why this Court decided, most recently in [H.L. v. Canada (Attorney General), 2005 SCC 25 , [2005] 1 S.C.R. 401], that in theabsence of a palpable and overriding error by the trial judge, his or her perceptions should be respected. [Emphasis added] [26] The need for deference, however, does not mean that appellate review is abandoned altogether.

Where a judge's reasonsdemonstrate an error of principle in the assessment of credibility or show that credibility has been assessed arbitrarily or using irrelevantcriteria, appellate intervention may be required. 45 While this remains an accurate statement of the law, since then, the Supreme Court of Canada released several brief oraldecisions (R. v. Langan, 2020 SCC 33; R. v. Kishayinew, 2020 SCC 34; R. v. Slatter, 2020 SCC 36; R. v. Delmas, 2020 SCC 39; R. v.Mehari, 2020 SCC 40, R. v. W.M., 2020 SCC 42 and R. v.

Cortes Rivera, 2020 SCC 44) reminding appeal courts of the considerabledeference owed to findings of credibility made by trial judges. 46 These Supreme Court of Canada decisions approved certain principles of law that were applied in the appeal court decisions that gaverise to them. A review of these underlying decisions reminds appeal courts that credibility findings are findings of fact not to beoverturned in the absence of palpable and overriding error or an error in principle. It also reminds us to read the trial judge'sreasons as a whole and in the context of the entire record. … 48 Recently in R. v.

G.F., 2021 SCC 20, the Supreme Court of Canada reasoned: [79] To succeed on appeal, the appellant's burden is to demonstrate either error or the frustration of appellate review: Sheppard,at para. 54. Neither are demonstrated by merely pointing to ambiguous aspects of the trial decision. Where all that can be said is atrial judge may or might have erred, the appellant has not discharged their burden to show actual error or the frustration of appellatereview. Where ambiguities in a trial judge's reasons are open to multiple

interpretations, those that are consistent with thepresumption of correct application must be preferred over those that suggest error: R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5, atparas. 10-12, citing R. v. Morrissey (1995), (ON CA), 22 O.R. (3d) 514 (C.A.), at pp. 523-25. It is only whereambiguities, in the context of the record as a whole, render the path taken by the trial judge unintelligible that appellate review isfrustrated: Sheppard, at para. 46.

An appeal court must be rigorous in its assessment, looking to the problematic reasons in the context ofthe record as a whole and determining whether or not the trial judge erred or appellate review was frustrated. It is not enough to saythat a trial judge's reasons are ambiguous -- the appeal court must determine the extent and significance of the ambiguity. ... [81] As Slatter demonstrates, a trial judge's findings of credibility deserve particular deference.

While the law requires some articulationof the reasons for those findings, it also recognizes that in our system of justice the trial judge is the fact finder and has the benefit ofthe intangible impact of conducting the trial. Sometimes, credibility findings are made simpler by, for example, objective,independent evidence. Corroborative evidence can support the finding of a lack of voluntary consent, but it is of course not required, noralways available.

Frequently, particularly in a sexual assault case where the crime is often committed in private, there is little additionalevidence, and articulating reasons for findings of credibility can be more challenging. Mindful of the presumption of innocence and theCrown's burden to prove guilt beyond a reasonable doubt, a trial judge strives to explain why a complainant is found to be credible, or

why the accused is found not to be credible, or why the evidence does not raise a reasonable doubt. But, as this Court stated in Gagnon,at para. 20: Assessing credibility is not a science.

It is very difficult for a trial judge to articulate with precision the complex intermingling ofimpressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events. [82] Credibility findings must also be assessed in light of the presumption of the correct application of the law, particularlyregarding the relationship between reliability and credibility. ... 49 Nonetheless, we must remember, appellate intervention may be required if a judge's reasons demonstrate an error of principlein the assessment of credibility or show credibility has been assessed arbitrarily or using irrelevant criteria.” [My bolding added] [23] In

summary, I conclude that the following standards of review apply in relation to: 1. the articulation, and

interpretation of the so-called R. v. WD analysis, and other matters of law - a standard of correctness; 2. shifting the burden of proof from the Crown to Ms.

Drysdale - a standard of correctness; and 3. the analysis and assessment of the Crown witnesses’ credibility - on the standard of palpable and overriding error unless thedecision can be traced to a wrong principle of law, in which case the correctness standard should be applied. [24] Lastly, I keep in mind the following statement from R v Davis, (SCC), [1999] 3 SCR 759: 103 With respect to the cases of T.R. and D.A.S., in the course of reviewing the evidence, the trial judge said that he was "notconvinced" that the complainants consented to the sexual activity in question.

Read out of context, these comments suggest that the trialjudge may have reversed the burden of proof. However, in my view, this is simply plucking colloquial elements of the trial judge'sthorough reasons. I agree with Green J.A., who held at p. 316: It is not sufficient to "cherry pick" certain infelicitous phrases or sentences without enquiring as to whether the literal meaning waseffectively neutralized by other passages.

This is especially true in the case of a judge sitting alone where other comments made by himor her may make it perfectly clear that he or she did not misapprehend the import of the legal principles involved. As McLachlin J. saidin [R. v. B. (C.R.), (SCC), [1990] 1 S.C.R. 717, at p. 737]: "[t]he fact that a trial judge misstates himself at one pointshould not vitiate his ruling if the preponderance of what was said shows that the proper test was applied and if the decision can bejustified on the evidence." 5 - Greater specifics of Ms. Drysdale’s grounds of appeal [25] I will restate Ms.

Drysdale’s listed grounds of appeal. She alleges that the trial judge erred: 1 - By considering as relevant and material, evidence of the subjective opinions of the Crown witnesses, and by inferring from theirbehaviour at the material times when the alleged assault behaviours occurred that their opinions or reactions bolstered the credibility ofthe Crown witnesses.

a) regarding the subjective opinions of the Crown witnesses, see for example, the trial judge’s reference at line 17 p. 32 AB, to Mr.Chapman’s disdainful look toward Ms. Drysdale: “most telling, from his evidence, was the look he gave Ms. Drysdale to express his disdain for her actions towards M” which Ms. Drysdale says the trial judge relied upon as evidence to conclude that there had been an assault upon M which could not bejustified under

section 43 of the Criminal Code;

b) The trial judge erred in using their reactions/behaviour to bolster Mr. Chapman’s and Ms. Pearson’s credibility when he stated at p. 34 AB: I find most of the evidence of the Crown witnesses is credible and trustworthy. The observations disturbed the Chapman/Pearson table enough to request to be moved to another table. The behaviour was of such a concern that Ms. Pearson did not know what to do. She contacted her mother and then sought her advice. Further, she raised the issue with Mr. Funnell and she too, had similar observations and concerns. Ultimately, she contacted – she, being Ms.

Pearson, contacted the police. Accordingly, the evidence of Ms. Drysdale did not raise a reasonable doubt to the second branch of WD . [ 26 ] In

summary, Ms. Drysdale’s complaints are that the trial judge considered factors that should not have been used to make positive findings of credibility and reliability in relation to the Crown witnesses. [ 27 ] Ms. Drysdale identifies as those “factors”: 1. that Mr. Chapman/Ms. Pearson requested to move tables; 2. that Mr. Chapman gave a disapproving look at Ms. Drysdale; 3. that Mr. Chapman, Ms. Pearson (and Ms.

Funnell) believed it appropriate to involve the police as a result of the disturbing circumstances they observed and heard from the Drysdale table. 2 – The trial judge allegedly erred in his application of the principles in WD : that is, inter alia : He concluded that “the Crown witnesses were credible and trustworthy. Accordingly the evidence of Ms. Drysdale did not raise a reasonable doubt to the second branch of WD.” (p. 34 AB)-He therefore made it a credibility contest between the Crown and defence witnesses, rather than ask whether the evidence of Ms.

Drysdale raised a reasonable doubt. 3 – The trial judge allegedly misapprehended evidence, when he concluded that Ms. Pearson and Ms. Funnell’s evidence was “strikingly similar” in relation to the alleged Indian burn arm twist, because, Ms. Drysdale says, “a closer look at the evidence of Ms. Funnell and Ms.

Pearson shows that while they both described an arm twist, it is impossible for them to have viewed the same event and therefore impossible to use it to bolster the evidence of each. ” [see paras. 9-13 Appellant’s brief] [ 28 ] According to the Appellant, not only was his misapprehension of evidence itself a material error, but it also infected his credibility analysis, evident when he stated: Similarly, the evidence of Ms. Pearson and Ms. Funnell were strikingly consistent in observing what was described as an Indian burn.

On cross-examination they did not depart from their position, nor were they contradicted in their observations. Prior to September 9, 2019, these ladies were not known to one another or Ms. Drysdale. I find as a matter of fact, their evidence was consistent in relation to what was described as the Indian burn because that is what they observed. Accordingly, when I weigh the Crown’s witnesses against Ms. Drysdale’s evidence, I have no doubt about the accuracy of their observations. (p. 32 AB) 6 - Did the trial judge err in each manner argued by Ms. Drysdale?

A – Did the trial judge err in considering the reactions and opinions of the Crown witnesses to Ms. Drysdale’s interactions with M, in his assessment of witnesses’ credibility? [ 29 ] Ms. Drysdale makes the argument that the trial judge used the above-noted “neutral factors” arising from the evidence to bolster the credibility of those Crown witnesses. [ 30 ] It is helpful at this stage to cite Justice Beveridge’s reasons in R v Laing , 2017 NSCA 69 : 67 It is convenient to repeat what led to the verdict: . . . Upon examination of the evidence there is nothing to suggest that Ms. M is motivated to lie.

There is no evidence Ms. M was under the influence of alcohol or drugs that would affect her ability to recall and perceive the events on the date in question. The question that I had considered as well is, why would Ms. M send a text to the defendant saying, "It hurt, it didn't feel right, and I don't want to be around you anymore," and then follow through with that statement by having no further contact or communication with Mr. Laing.

68 The Crown reasonably concedes that the first two factors, no evidence of a motive to lie and lack of impairment, are, in fact, neutral.The absence of possible troublesome credibility detractors cannot be the basis to make a positive finding of credibility and reliability.” [31] Justice David Watt’s commentary about “relevance” in his textbook Watt’s Manual of Criminal Evidence, 2021 (ThomsonReuters, Toronto) neatly captures the concept: An item of evidence is properly characterized and rejected as irrelevant if it is not probative of the fact a party seeks to establish by itsintroduction by reasons of its natural common-sense connection with the fact.

An item of evidence is relevant where it is probative of thefact a party seeks to establish by its introduction through the same process of reasoning.

Any two facts to which the term ‘relevant’ isapplied, are so related to each other that, according to the common course of events, one, either taken by itself or together with or in thecontext of other facts, improves or renders probable the past, present or future existence or nonexistence of the other. [32] When Justice Beveridge refers to factors as “neutral”, I take him to mean factors that are not (in the sense of being relevant orprobative) legally capable of being used to support positive findings of credibility and reliability in relation to a witness. [33] The individual circumstances of each case must always be considered.

The case at Bar does not involve “the absence ofpossible troublesome credibility detractors”. It involves actions taken by multiple witnesses in response to what they saw and heardhappening between Ms.

Drysdale and M. [34] As Justice Hamilton stated in Gerrard: 49 Nonetheless, we must remember, appellate intervention may be required if a judge's reasons demonstrate an error of principle in theassessment of credibility or show credibility has been assessed arbitrarily or using irrelevant criteria. [35] Judge Borden’s reasons do not demonstrate an error of principle in his assessment of credibility, nor do they show thatcredibility has been assessed arbitrarily or using irrelevant criteria. [36] Firstly, it is important to distinguish between what is “evidence” (which can have multiple permissible uses in determining theoutcome of a criminal case) and what in the jurisprudence has been referred to as “factors” [e.g., the absence of motive to lie]. [37] The concern in relation to the mis-use of “factors” was aptly characterized by Justice Beveridge in Laing, 2017 NSCA 69, inthe following terms: “the absence of possible troublesome credibility detractors cannot be the basis to make a positive finding ofcredibility and reliability.” [38] As I noted earlier, neutral factors are those that are not legally capable of being used to support positive findings of credibilityand reliability in relation to a witness. [39] The reactions of the Crown witnesses are, in proper circumstances, legally capable of being used to support positive findings ofcredibility and reliability in relation to a witness.

They become a relevant consideration in assessing credibility when a trier of factproperly finds them analytically useful. In R v DDS, 2006 NSCA 34, Justice Saunders eloquently set out when this may be the case: 77 Before leaving the subject and for the sake of future guidance it would be wise to consider what has been said about the trier's placeand responsibility in the search for truth. Centuries of case law remind us that there is no formula with which to uncover deceit or rankcredibility.

There is no crucible for truth, as if pieces of evidence, a dash of procedure, and a measure of principle mixed together byseasoned judicial stirring will yield proof of veracity. Human nature, common sense and life's experience are indispensable whenassessing creditworthiness, but they cannot be the only guideposts. Demeanour too can be a factor taken into account by the trierof fact when testing the evidence but standing alone it is hardly determinative.

Experience tells us that one of the best tools todetermine credibility and reliability is the painstaking, careful and repeated testing of the evidence to see how it stacks up. Howdoes the witness's account stand in harmony with the other evidence pertaining to it, while applying the appropriate standard ofproof in a civil or a criminal case? 78 In this regard I find it helpful to repeat the lucid observations of Justice O'Halloran in the oft-cited case of Faryna v. Chorny, (BC CA), [1952] 2 D.L.R. 354 at 356: ...

But the validity of evidence does not depend in the final analysis on the circumstance that it remains uncontradicted, or thecircumstance that the Judge may have remarked favourably or unfavourably on the evidence or the demeanour of a witness; these thingsare elements in testing the evidence but they are subject to whether the evidence is consistent with the probabilities affecting the caseas a whole and shown to be in existence at the time; and cf. Brethour v. Law Society of B.C., (BC CA), [1951] 2D.L.R. 138 at pp. 141-2. ...

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether thepersonal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examinationof its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the storyof a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed

person would readily recognize as reasonable in that place and in those conditions. Only thus can a Court satisfactorily appraise the testimony of quick-minded, experienced and confident witnesses, and of those shrewd persons adept in the half-lie and of long and successful experience in combining skilful exaggeration with partial suppression of the truth. Again a witness may testify what he sincerely believes to be true, but he may be quite honestly mistaken. For a trial Judge to say "I believe him because I judge him to be telling the truth," is to come to a conclusion on consideration of only half the problem.

In truth it may easily be self-direction of a dangerous kind. ... While his comments were not expressed in the context of a criminal trial, observations similar to Justice O'Halloran's have often been emphasized in criminal cases, with suitable allowance for the different standard of proof. [I have left out some of the quotation cited by Justice Saunders, and bolded portions I would emphasize] [ 40 ] In

summary, the contemporaneous reactions of the Crown witnesses regarding what they directly heard and observed as Ms. Drysdale forcibly interacted with M, were a relevant consideration in assessing the credibility of the witnesses, because doing so was analytically useful in the case at Bar. As referenced in DDS citing Farnya : The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions.

In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. [Underling in the original – my bolding added] [ 41 ] Secondly, I am satisfied that the trial judge did not place undue weight on the reactions of the Crown witnesses in assessing the credibility of the witnesses. [ 42 ] The trial judge recognized that the Crown witnesses differed in some respects of their evidence, yet he concluded this was: not significant, as the evidence revealed by each has similar and yet distinct vantage points.

For instance, the observations of Mr. Chapman would have been different when Ms. Pearson was walking away from the table and when her back was to the Drysdale booth. What I mean by walking away from the table was when she was walking away to engage with Ms. Funnell. Moreover, Ms. Pearson was outside talking with the Halifax Regional Police dispatch; Mr. Chapman would’ve had a different view of things that Ms. Pearson would not be apprised of. Clearly, Mr. Chapman had the best vantage point from with – inside the restaurant. Logically it makes sense that his evidence would differ from Ms. Pearson and Ms.

Funnell as he had what could be described as the optimum vantage position. Most telling from his evidence, was the look he gave Ms. Drysdale to express his disdain for her actions towards M. [My italics added] [ 43 ] The phrase “most telling from his evidence” (line 17 p. 32 AB) should not be considered in isolation. [ 44 ] When the trial judge stated: “ most telling , from [Mr. Chapman’s] evidence, was the look he gave Ms. Drysdale to express his disdain for her actions towards M”, his comments should be seen in context: Ms. Drysdale acknowledged in her evidence that he did so. Thus, Ms.

Drysdale corroborates Mr. Chapman’s evidence. Arguably that was what the judge was referencing as “most telling”. [ 45 ] Ms. Pearson estimated that the Pearson/Chapman table was 10 feet away from Ms. Drysdale’s table (p. 104(23) AB) when they made their initial observations, before they asked to be moved. Ms. Funnell testified that while still at the table, Pearson/Chapman inquired whether the manager of the restaurant could call the police - but that request was declined, so Ms. Pearson did so. (p. 114-116 AB) [ 46 ] Mr.

Chapman was found to be in the best position of the three Crown witnesses by virtue of his better view of, and the longer duration he observed, the Drysdale table, since Ms. Pearson had left the table for significant periods of time and Ms. Funnell was busy with other customers. [ 47 ] Mr. Chapman testified that he gave Ms. Drysdale a “look” in order to cause her to stop abusing M. He would have seen more of what went on at the Drysdale table than the other two witnesses. Even Ms. Drysdale agreed that she did use some physical force in relation to M.

The central issue in dispute was what kind of force was used, and whether Ms. Drysdale had used excessive force. [ 48 ] Mr. Chapman’s reaction to what he saw and heard, and his disapproval of Ms. Drysdale’s treatment of M was directly addressed by him, and he was open to cross-examination thereon: [5]

I believe at that point she made eye contact with me, and I shook my head because I kind of thought that was my chance to let her knowthat I saw what was going on and after that the physical thing stopped that I had seen anyway. (pp. 135, 142-143 AB) [49] The reactions of the Crown witnesses relate directly to their observations (by sight and hearing) of the alleged crimes. They arepart of the narrative and context, and thus indirectly relevant to the credibility and reliability of the witnesses. The Crown witnesses eachtestified that they directly observed Ms.

Drysdale apply force to M, which at times caused M to cry and scream. [50] As I am sitting as an appeal court judge, it is appropriate for me to bear in mind the following remarks from R v GF, 2021 SCC20: 76 Despite this Court's clear guidance in the 19 years since Sheppard to review reasons functionally and contextually, we continue toencounter appellate court decisions that scrutinize the text of trial reasons in a search for error, particularly in sexual assault cases, wheresafe convictions after fair trials are being overturned not on the basis of legal error but on the basis of parsing imperfect or

summaryexpression on the part of the trial judge. Frequently, it is the findings of credibility that are challenged. 77 In three recent appeals as of right, this Court reinstated sexual assault convictions that were set aside on appeal, endorsing the reasonsof a dissenting justice. 78 In R. v. Langan, 2020 SCC 33, rev'g 2019 BCCA 467, 383 C.C.C. (3d) 516, this Court adopted the dissenting reasons of BaumanC.J.B.C. that held that the trial judge's ambiguous use of certain text messages did not demonstrate error on a functional and contextualreading.

Bauman C.J.B.C. concluded that since there was a permissible basis on which to admit the text messages, "we should notspeculate that the properly admitted evidence was improperly used, without clear indications to the contrary": Langan (C.A.), at para.103; see also para. 140. 79 To succeed on appeal, the appellant's burden is to demonstrate either error or the frustration of appellate review: Sheppard, at para.54. Neither are demonstrated by merely pointing to ambiguous aspects of the trial decision.

Where all that can be said is a trial judgemay or might have erred, the appellant has not discharged their burden to show actual error or the frustration of appellate review. Whereambiguities in a trial judge's reasons are open to multiple

interpretations, those that are consistent with the presumption of correctapplication must be preferred over those that suggest error: R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5, at paras. 10-12, citing R. v.Morrissey (1995), (ON CA), 22 O.R. (3d) 514 (C.A.), at pp. 523-25. It is only where ambiguities, in the context of therecord as a whole, render the path taken by the trial judge unintelligible that appellate review is frustrated: Sheppard, at para. 46.

Anappeal court must be rigorous in its assessment, looking to the problematic reasons in the context of the record as a whole anddetermining whether or not the trial judge erred or appellate review was frustrated. It is not enough to say that a trial judge's reasons areambiguous -- the appeal court must determine the extent and significance of the ambiguity. 80 In R. v. Kishayinew, 2020 SCC 34, rev'g 2019 SKCA 127, 382 C.C.C. (3d) 560, and R. v.

Slatter, 2020 SCC 36, rev'g 2019 ONCA807, 148 O.R. (3d) 81, this Court adopted the reasons of a dissenting judge holding that the trial judge did not err in conflating credibilityand reliability. In both cases, the trial judges accepted the complainants' evidence and found them to be credible, even if their reliabilityfindings were not explicit on the face of the reasons. 81 As Slatter demonstrates, a trial judge's findings of credibility deserve particular deference.

While the law requires some articulationof the reasons for those findings, it also recognizes that in our system of justice the trial judge is the fact finder and has the benefit of theintangible impact of conducting the trial. Sometimes, credibility findings are made simpler by, for example, objective, independentevidence. Corroborative evidence can support the finding of a lack of voluntary consent, but it is of course not required, nor alwaysavailable.

Frequently, particularly in a sexual assault case where the crime is often committed in private, there is little additionalevidence, and articulating reasons for findings of credibility can be more challenging. Mindful of the presumption of innocence and theCrown's burden to prove guilt beyond a reasonable doubt, a trial judge strives to explain why a complainant is found to be credible, orwhy the accused is found not to be credible, or why the evidence does not raise a reasonable doubt. But, as this Court stated in Gagnon,at para. 20: Assessing credibility is not a science.

It is very difficult for a trial judge to articulate with precision the complex intermingling ofimpressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events. 82 Credibility findings must also be assessed in light of the presumption of the correct application of the law, particularly regarding therelationship between reliability and credibility.

The jurisprudence often stresses the distinction between reliability and credibility,equating reliability with the witness' ability to observe, recall, and recount events accurately, and referring to credibility as the witness'sincerity or honesty: see, e.g., R. v. H.C., 2009 ONCA 56, 244 O.A.C. 288, at para. 41.

However, under a functional and contextualreading of trial reasons, appellate courts should consider not whether the trial judge specifically used the words "credibility" and"reliability" but whether the trial judge turned their mind to the relevant factors that go to the believability of the evidence in the factualcontext of the case, including truthfulness and accuracy concerns. A trial judge's determination to accept or believe inculpatory witnessevidence includes an implicit assessment of truthfulness or sincerity and accuracy or reliability: Vuradin, at para. 16.

Often, the term"credibility" is used in this broader sense to mean the believability of the evidence and it necessarily includes both truthfulness andaccuracy: McWilliams' Canadian Criminal Evidence (5th ed. (loose-leaf)), vol. 3, at pp. 30-1 and 30-2. For example, Black's LawDictionary (11th ed. 2019), at p. 463, defines credibility as "[t]he quality that makes something (as a witness or some evidence) worthyof belief" and model jury instructions include both truthfulness and accuracy within "credibility" assessments: G. A. Ferguson and M.

R.Dambrot, CRIMJI: Canadian Criminal Jury Instructions (4th ed. (loose-leaf)). Provided trial judges turn their mind to theseconsiderations, there is no requirement that they utter the word "reliable". [My italics added] [51] As I read the trial judge’s reasons, he was not concluding that merely because of their reactions (they were upset; Pearson andChapman’s request to change tables; and that they all agreed that this was an appropriate case for police intervention), that therefore their

testimony was more credible. [52] Rather, he concluded that the tumult at the Drysdale table involving M repeatedly caught and held their attention, andultimately motivated Pearson and Chapman to move to another table more distant from the Drysdale table, and to call the police. Thissustained attention, particularly by Mr. Chapman and Ms. Pearson, suggests that their testimony would be more fulsome and reliableregarding the allegation against Ms.

Drysdale. [53] Their testimony given from different vantage points and at different times is consistent in showing a pattern of arguablyexcessive force being applied when Ms. Drysdale yanked M forcefully into the booth, gave her a forceful “Indian burn” arm twist, andpunched her in the torso area repeatedly. [54] Two courts of appeal have recently addressed the question of stereotypes and generalizations, in the context of sexual assaults:R v JC, 2021 ONCA 131 and R v Pastro, 2021 BCCA 149.

The upshot of these cases is that “common sense” inferential reasoning andbehavioural generalizations remain acceptable reasoning if there is adequate support therefor in the evidence or from a judicial noticeperspective (paras. 58 and 40 respectively).

Stated otherwise, there are two overlapping prohibitions: “the rule against ungroundedcommon-sense assumptions” and “the rule against stereotypical inferences”. [55] These authorities generally elaborate upon when trial judges are permitted to consider evidence as a rising to the level of beingprobative in relation to the making of credibility assessments- credibility being an amalgam of veracity and reliability. Neither of theserules are violated in the case at Bar. [56] I am satisfied that Judge Borden properly considered the evidence of the Crown witnesses and of Ms.

Drysdale about Ms.Drysdale’s application of force to M, and that he did not err as argued in making his decision to find her guilty. [57] In

summary, I conclude that the appellant has not established that the trial judge committed a material error of law during hiscredibility assessments. B – Did the trial judge err in his application of the principles in WD?

a) The trial judge concluded that: “the Crown witnesses were credible and trustworthy… Accordingly, the evidence of Ms. Drysdaledid not raise a reasonable doubt to the second branch of WD.” - Ms. Drysdale says he therefore made it a credibility contest between theCrown and defence witnesses, rather than ask whether the evidence of Ms. Drysdale raised a reasonable doubt. [58] The Trial judge came to this conclusion during step 2 of the WD process. It is well accepted that the evidence of the accused isnot to be considered in isolation during this process.

Thus, the trial judge necessarily had to consider the evidence of the Crownwitnesses in making such an assessment. He found the Crown witnesses truthfully and reliably testified that (in

summary): Ms. Drysdale gave M an aggressive Indian burn [Ms. Funnell - pp. 11(17) and 24 AB Decision; Ms. Pearson - pp. 11(17) and 25(8) ABDecision]]; punched her repeatedly in the torso area [Mr. Chapman - pp. 12(1) and 25(24) AB Decision], and yanked her arm and pushedher back into the booth in a manner that was either disproportionate or unjustified [Ms. Pearson - pp. 11(20) and 25(1) AB Decision; Mr.Chapman - pp. 11(25) and 25(21) AB Decision] Ms.

Drysdale did not deny that she had yanked M’s arm and pushed her back into the booth – she did deny the application of the “Indianburn” and punching of M in the torso area. (pp. 179(5) and 187 AB) [59] The trial judge did not err in his application of the principles in WD. His decision must be read as a whole.

Doing so sheds lighton his proper application of those principles. [60] A reading of his treatment of step 1, step 2, and step 3 of the suggested WD process confirms that he properly understood howto correctly apply those principles, and did so in this case. [61] The trial judge noted that he found some internal inconsistencies in Ms.

Drysdale’s testimony and that “her evidence in cross-examination [was] guarded and defensive”. [62] Regarding the core allegations, he found “the evidence of the Crown witnesses credible and trustworthy”. [63] At the third step he found that he was satisfied that the Crown had proved all the elements of the offence beyond a reasonabledoubt. [64] As the court stated in R v RA, 2018 ONCA 714 (affirmed 2018 SCC 13), in relation to step 3: 56 The trial judge was entitled to reject the appellant’s evidence “based on a considered and reasoned acceptance beyond a reasonabledoubt of the truth of the conflicting credible evidence”: R. v.

J.J.R.D. (2006), (ON CA), 218 O.A.C. 37 (C.A.), atpara. 53.

C – Did the trial judge misapprehend the evidence in a material manner when he stated : [6] Similarly, the evidence of Ms. Pearson and Ms. Funnell were strikingly consistent in observing what was described as an Indian burn… They did not depart from their position, nor were they contradicted in their observations… While I find parts of Ms. Drysdale’s evidence appear to be credible, it is not reliable, especially as it relates to the silent tantrum and the attempted running episode.… I find most of the evidence of the Crown witnesses credible and trustworthy. [ 65 ] Ms.

Drysdale put her argument in writing as follows: A closer look at the evidence of Ms. Funnell and Ms. Pearson shows that while they both described an arm twist it is impossible for them to have viewed the same event and therefore impossible to use it to bolster the evidence of each (see Ms. Funnell’s testimony: p. 14(20)- 15(4) and 31(25)-32(3) AB.) [ 66 ] Ms.

Drysdale argues that this undermines the trial judge’s conclusion that there was “strikingly consistent” evidence which was the basis for his positive credibility finding for those two witnesses. [ 67 ] I return to Justice Coughlan’s decision in R v JGM cited earlier: 27 The test as to how an appeal court is to deal with alleged misapprehension of evidence was addressed by Beveridge J.A. in giving the Court's judgment in R. v. J.C . , 2018 NSCA 72 at paras. 49 and 50 : [49] This Court summarized the law with respect to misapprehension of evidence in R. v.

Izzard , 2013 NSCA 88 : [40] To obtain a remedy on appeal based on an allegation that a trial judge misapprehended the evidence, the appellant must show two things: first, that the trial judge, in fact, misapprehended the evidence -- that is, she failed to consider evidence relevant to a material issue, was mistaken as to the substance of the evidence, or failed to give proper effect to evidence; and second, that the judge's misapprehension was substantial, material and played an essential

part in the decision to convict ( see R. v. Schrader , 2001 NSCA 20 ; R. v. Deviller , 2005 NSCA 71 ; R. v. D.D.S. , 2006 NSCA 34 ). [50] Material errors made in the course of credibility determination on the path to conviction can be fatal ( see R. v. C.L.Y. , 2008 SCC 2 ; R. v. P. (J) , 2014 NSCA 29 ; leave to appeal denied, [2014] S.C.C.A. No. 255 ). [My bolding added] [ 68 ] Thus, I ask myself: 1. Did Judge Borden in fact misapprehend this evidence? And if so, 2. Was his misapprehension substantial, material, and did it play an essential

part in the decision to convict? [ 69 ] Judge Borden correctly self-instructed himself: I am entitled to believe all, some, or none of a witness’s testimony. Further, I am entitled to accept parts of the witness’ evidence and reject other parts. Similarly, I can afford different weight to different parts of the evidence that I have accepted. (p. 19 AB) [ 70 ] Ms. Pearson’s evidence suggests that she was initially seated approximately 10 feet away from the Drysdale table. [ 71 ] As a result of disturbing events she and Mr.

Chapman had seen taking place at the Drysdale table, she had an approximately 10-minute discussion with Ms. Funnell away from the table. They agreed that Ms. Funnell would call the police. [ 72 ] Ms. Pearson returned to the table where Mr. Chapman had remained seated. Shortly thereafter Ms. Pearson saw an arm-twisting incident. When Ms. Funnell came back to their table with their drinks, she advised that she was unable to contact police. That’s when Ms.

Pearson herself decided to call the police: So, I then had turned and noticed the little girl leaning over the table… the mom extremely angry… and then she pulled the little girl back onto the booth and slammed her head against the wall against the back of the booth and the little girl was screaming and crying…… at that point our waitress had come back over and I mentioned to her, and I said ‘do you see anything wrong with the family over there?’ And she said ‘yes, I’m feeling like, I don’t know we should call the police’; and I said ‘I feel like we should’; and then we had gone to another part of the restaurant and talked … So she left and then I remember I looked back at the table and the little girl was getting up from her seat again… the mom… took her arm and twisted it super hard, and I remember the little girl screaming again … So, I went outside the restaurant and called… a police line… so I got back to the table and talked to Josh and he said other things have happened since you were gone … after that point we talked to the waitress and we asked to be moved on the other side of the restaurant. (pp. 101-103, p. 104(23) and pp. 114(21)-116(16) AB) [My bolding added] [ 73 ] She continued in her testimony: I do remember then talking to the waitress when she had come over and I said ‘I don’t feel comfortable talking to you at the table because they’re right there and I don’t want them to overhear’ so we went on the other side of the restaurant and talked for about 10 minutes… So that’s when we agreed that she would call the police and then I went back and sat down and then I remember the little girl standing up on the booth… and the mom turns over… in a bit of an angry tone and twisted her arm extremely hard and the little girl screamed again and started crying… she grabbed it with both hands and twisted the arm a different way than the socket was, so just as if you were to want to intentionally hurt somebody… The waitress came back over to the table with our drinks… she said she wasn’t able to reach the police … and that’s when I told Josh that I was going to call the police and he said ‘okay’, so I went outside… and I was on the line for a long time… then finally I got through… I went back in, and Josh had then said a few other things had happened… . (p. 116 AB/ see also pp. 60(16) and 127(6) AB) [Notably, she left the table from which they were moved twice to see about calling the police - p. 123(16) AB.

My bolding added] [ 74 ] The cross-examination of Ms. Pearson reveals: Question – you mentioned an arm twisting occurring at some point and you went through it a couple of times… Answer – but it was two hands when it was on the twisting of the arm… the child’s left arm… I was able to see because at that point I looked out over the booth. I made a point to look more because it was very concerning… Question – you called the non-emergency police line?

Answer – I think I had – yes, at that point yeah and then I believed they had directed me to someone else in the department and then I don’t know who I spoke to from there but… (pp. 125 and 127 AB) [ 75 ] Ms. Funnell had worked as a server at the Swiss Chalet for six years. It was the day of hurricane Dorian, and the restaurant was exceptionally busy. [ 76 ] She was adamant that there were only two children at the Drysdale table with three adults – p. 75(20) and 85(11) AB. The Crown witnesses and Ms. Drysdale all agreed there were three children and three adults. (p. 172 AB) [ 77 ] Ms.

Funnell stated: They were quiet when I went over. I got their drink and that was that. Question – you get their drinks. What happens next?

Answer – I bring it back down and I can’t remember whether I took their order when I came back down or at the same time as the drinks. It all depends on if they’re ready – if they were ready or not, so I can’t remember that , but I would’ve left them and let them know that their food would be on its way. I knew we were busy so I may have told them that it could be longer and then I left. Question – and what happens next? Answer – so I had other tables, so I would’ve checked them. I know that this one table was witnessing stuff before I saw the arm twisting so I, they asked to move.

I did move them to another table further away where they weren’t seen . Question – so you move the other table and what is the next thing that happened? Answer – I – myself, after that, I saw the arm twisting. For my other guests I know that they called the police. … Answer – so I was rounding the corner to go down to my

section and the child was still sitting on the edge facing outward when the mother turned to her daughter angrily, used both of her hands on the child’s right arm, twisted it and yanked her into the booth further … Question- and you mentioned an arm twist occurred. Can you describe the person that was doing the twisting? Answer – it was a mother figure. She had the same colour of hair… I’m just trying to think back. She didn’t really look fazed if I remember correctly.

I’m trying to think back where it was a year ago , but I don’t remember her looking angry. (pp. 77-78 AB) [My bolding added] [ 78 ] She also testified that: When I was coming back, I brought them [the Drysdale table] down, I took their order and went on my way.

Later in the service I had another guest come over, I had just taken their drinks and brought them down and they asked to move because they were uncomfortable was sitting next to my other guests and I said ‘okay not a problem’, and I moved them to another area further away and I asked if everything was okay and they told me ‘no’- that they had witnessed my other guest hurting her child and it made them very uncomfortable. So, I said ‘I apologize profusely’, and went on my way.

I was then going down to check on this table that they were uncomfortable with [the Drysdale table] when I saw the mother, presumably grab her child with both her hands and the child’s right arm and kind of twisted like an Indian burn and yank her into the table … At this point I did know there was an issue with the presumed mother hurting her child, so I was more cognizant of her actions afterwards. (pp. 71-2 AB) [My bolding added] [ 79 ] Immediately after Ms.

Funnell saw the arm twist which shocked her, she “acted like nothing had happened… and just went about checking on them and other tables”: Question – and, I’m sorry, what was it that happened next?

Answer – I believe I just checked on them, and I know the cops showed up afterwards, but I can’t remember the timing of it all . (p. 82 AB) [My bolding added] [ 80 ] Ms. Drysdale says that Ms. Funnell testified that she saw the “Indian burn” after she had moved Pearson/Chapman to a table further away from the Drysdale table –pp. 71(23); 77(21)-78(4) and 95(1) AB. Ms. Funnell also testified that from the table where Pearson/Chapman were moved they were no longer able to see the Drysdale booth – p. 94(23) AB.

Let me next review the precise words used by the trial judge in his decision regarding this issue: These are my findings from the trial that had occurred in relation to this matter… In her dealings with the Drysdale booth, Ms. Funnell observed a sad female child who, unlike the remainder of the table, did not order a drink. Ms. Funnell and Ms. Pearson observed Ms. Drysdale grab the child by the arm and give what they described as an aggressive Indian burn. (pp. 10-11 AB) [ 81 ] I add here that Ms.

Funnell testified she was only 8 feet away from the Drysdale table when she observed the Indian arm twist. (p. 81 AB) [ 82 ] Mr. Chapman testified: We were seated near the back of the restaurant near the washroom… I noticed over my right side there was a full-size booth with the accused, and three children and an older woman… forcefully grabbed the child by the upper arm threw her into the booth, sat down so the child couldn’t get out of the booth… started hitting the child on the side forcibly, repeatedly, and saying “stop it” over and over… I then notified… [my then] girlfriend to what was going on behind us.

She said, ‘we have to do something’. I agreed. So, she went to talk to restaurant management… I continued watching the situation. It kind of continued… a lot of rough with the child. The child was crying saying “ow”. At one point the woman made eye contact with me and I shook my head as if to say this is not appropriate… At some point an older man came and joined them at the table.

My ex-girlfriend returned to the table, told me that the police were on their way, so we both agreed that we wanted to be moved to another seat in the restaurant to be away from the situation when the officer arrived. (pp. 134-5 AB ) [ 83 ] Notably, he also testified: Question – So after hitting on the side, what happens next… I believe at that point she made eye contact with me, and I shook my head because I kind of thought that was my chance to let her know that I saw what was going on, and after that the physical thing stopped that I had seen anyway. (pp. 144-5 AB) [ 84 ] I am satisfied that Judge Borden did not in fact misapprehend the disputed evidence - he was not mistaken about the substance of the evidence, nor did he fail to give proper effect to the evidence. [ 85 ] Ms.

Drysdale denied that she administered an “Indian burn” arm twist to M. [ 86 ] It is important to recall that the Crown and Defence did not make oral submissions on the case, but rather provided Judge Borden with written submissions. [ 87 ] Both drew attention to the timing (and location within the restaurant) difference between when Ms. Pearson and Ms. Funnell stated the “Indian burn” arm twist happened. [ 88 ] Ms. Drysdale filed her submissions first, on or about November 19, 2020.

In her submissions she stated: … Taylor Funnell… described it as an extremely busy service with every table being in use due to the storm. Later in the service a guest came up to her asking to be moved to another table. Ms. Funnell moved the guest to another table. She described seeing the accused twist the arm of one of the children at her table. [ 89 ] Ms. Crewe for the Crown filed her submissions on or about December 7, 2020. Therein, she wrote at paragraph 38: Three witnesses describe actions that they observed that day, which included Ms.

Drysdale grabbing M and pushing her into a booth, hitting M while at the table in a way that was described as “a lot of punching”, slamming her head against the booth, and an arm twist while M was standing on the seated portion of the booth that appeared to twist her arm in the opposite direction. Another arm twist was described as an ‘Indian burn’ and yank back into the table after Ms. Funnell had moved Ms. Pearson to Mr. Chapman to another table. It is unclear whether this is the same arm twist described by Ms. Pearson .

[My bolding added] [90] This issue was very clearly drawn to the attention of Judge Borden. He was aware of it, and its importance, when he gave hisdecision eleven days after receipt of the Crown’s brief. The testimony of Ms. Pearson and Ms. Funnell as to the timing (and location) ofthe Indian burn twisting incident was considered by Judge Borden. [91] Firstly, his oral decision may reasonably be interpreted as him having simply concluded that in relation to the timing of a singleinstance of an arm twist, Ms. Pearson’s evidence was reliable in that respect, whereas that of Ms.

Funnell was not. [92] Their testimony is not distinguishable regarding what they saw happen – they differ only as to when it happened. [93] Ms. Pearson was not shaken on the details or timing of what she saw from a close distance. The evidence is clear that later shewas not able, nor did she go out of her way, to see the Drysdale table from the table she and Mr. Chapman had moved to. [94] Ms. Funnell was very busy trying to take orders, communicating them to the kitchen staff and keeping an eye on the varioustables she was responsible for that day. Her testimony is at times understandably ambiguous.

She made statements that reasonably leadone to conclude that her memory of what happened that day in the restaurant was uncertain. [95] Secondly, Judge Borden may have concluded in relation to the timing, that Ms. Pearson saw Ms. Drysdale administer an armtwist before Pearson/Chapman moved tables, and Ms. Funnell saw Ms. Drysdale administer an identical arm twist afterPearson/Chapman moved tables, yet he found them to be part of an ongoing offence occurring in close temporal proximity, and as such,strikingly consistent angry reactions by Ms.

Drysdale to perceived misbehaviour by M. [96] Even if one concluded that Judge Borden did misapprehend the timing of the arm twists, that misapprehension was notsubstantial, was not material, and did not play an essential

part in the decision to convict. [97] Finally, I note that Ms. Drysdale was charged with a single count of assault. Any one of the three physical actions were arguedto constitute an assault: the forcible yanking of the arm of M (propelling her against the seating bench); the repeated punching in thetorso area; and the “Indian burn” arm twist(s). Conclusion [98] His Honour Judge Borden did not err on any of the grounds as argued by Ms. Drysdale. [99] Consequently, her appeal is dismissed without costs. Rosinski, J. [1] Regarding the differences between the Nova Scotia Court of Appeal reviewing the decision of a

summary conviction appeal courtdecision and reviewing the decision of a trial judge regarding an indictable offence, see R v CSM, 2004 NSCA 60, per Fichaud JA., reliedupon in R v Sypher, 2021 NSCA 41 per Beveridge JA. [3] Ms. Drysdale is not arguing that the verdict is unreasonable. [4] Notably, in R v JP, 2014 NSCA 29, the material error made by the trial judge was identified by Justice Beveridge at para. 71: “It isan error in law for the trial judge to say that because he found the appellant's evidence not convincing on one point, it casts doubt on thecredibility of his other evidence.

This is not a situation where a trial judge could draw an adverse inference against an accused due to anattempt by an accused to advance a demonstrably false alibi (or similar conduct) from which a consciousness of guilt might be inferred(see for example: R. v. Hibbert, 2002 SCC 39 , [2002] 2 S.C.R. 445 at para. 62; R. v. O'Connor (2002), (ONCA), 170 C.C.C. (3d) 365 (Ont. C.A.), [2002] O.J. No. 4410 at para. 23).” [5] Ms. Drysdale acknowledged that Mr. Chapman was “looking at [her] and shaking his head. (p. 187(8) AB)