R v Nayneecassum, 2015 SKCA 129

Court of Appeal for Saskatchewan Docket: CACR2613 Citation: R v Nayneecassum , 2015 SKCA 129 Date: 2015-10-20 Between: Dwayne Leroy Nayneecassum Appellant And Her Majesty the Queen Respondent Before: Jackson, Ottenbreit and Ryan-Froslie JJ.A. Disposition: Appeal dismissed (orally) Written reasons by: The Honourable Madam Justice Ryan-Froslie In concurrence: The Honourable Madam Justice Jackson The Honourable Mr. Justice Ottenbreit On Appeal From: Provincial Court, J.C. of Regina Heard: October 20, 2015 Counsel: Corinne Maeder for the Appellant Beverly L. Klatt for the Respondent Ryan-Froslie J.A. I.

Introduction [ 1 ] Mr. Nayneecassum was convicted after trial of committing common assault on Misty Cyr contrary to s. 266 of the Criminal Code . He appealed that conviction to this Court on a number of grounds which focused on alleged errors by the trial judge in assessing the reliability of the complainant’s evidence. In sum, his position is that the verdict was unreasonable and cannot be supported by the evidence. [ 2 ] On hearing the appeal, we dismissed it with written reasons to follow. These are those reasons.

II. background [ 3 ] Only two witnesses testified at trial, both for the Crown—the complainant (Ms. Cyr) and one of the investigating officers (Cst. Ashley Ritter). [ 4 ] Ms. Cyr testified that Mr. Nayneecassum physically assaulted her on December 6, 2014. At the time, Ms. Cyr and Mr. Nayneecassum were romantically involved with each other. They were at a friend’s home where they, and a number of other individuals, were consuming alcohol. The trial judge found both Ms. Cyr and Mr. Nayneecassum were intoxicated. [ 5 ] At trial, Ms. Cyr testified that Mr.

Nayneecassum had gone outside for a smoke and that she eventually followed him. Ms. Cyr testified Mr. Nayneecassum was mad at her for some reason. He passed her his smoke and that was when he punched her on the jaw, hard enough that she saw light. He then gave her two more “cracks” on the cheekbone. Ms. Cyr fell down the stairs and started yelling and crying. Her parents, who lived just down the street, and her friends heard her and came to her assistance. Mr. Nayneecassum ran away. Ms.

Cyr testified she had a bruise on the side of her cheek and a lump on her jaw. [ 6 ] The police were called and two officers attended the scene, one of whom was Cst. Ashley Ritter. According to Cst. Ritter’s evidence, Ms. Cyr appeared intoxicated and her story was “kind of all over the place”. Ms. Cyr was emotional and in tears. Constable Ritter understood Ms. Cyr to say that she had been struck with a closed-fist near her hairline. The police officers took out their flashlights and examined Ms. Cyr’s head, but did not notice any injury. Constable Ritter testified she did not see any bruising to Ms. Cyr's face.

Because Ms. Cyr was intoxicated, Cst. Ritter did not think it was advisable to obtain a written statement from her at that point. She told Ms. Cyr to come to the police station to give a statement when she was sober. [ 7 ] Ms. Cyr did not attend the police station, so, on December 12, six days after the incident, Cst. Ritter went to Ms. Cyr’s home to obtain a statement. When that statement was given, Ms. Cyr appeared to be sober. The statement was consistent with Ms. Cyr’s evidence at trial, but did not conform to what she had told Cst. Ritter on the day of the incident. [ 8 ] The trial judge convicted Mr.

Nayneecassum of common assault. In doing so, he accepted Ms. Cyr’s evidence that she had been struck by Mr. Nayneecassum. [ 9 ] Counsel for Mr. Nayneecassum argued the trial judge committed reversible error in assessing Ms. Cyr’s credibility and reliability, and in particular that he failed to critically evaluate her evidence in light of its internal and external inconsistencies, and the fact that Ms. Cyr’s recollection was significantly impacted by the level of her intoxication. The inconsistencies included (

i) the disparity between what Ms. Cyr told Cst. Ritter immediately after the incident (she was hit once—a punch near the hairline) and what she said in her statement of December 12 and at trial (she was hit three times—once on the jaw and twice on the cheekbone); (ii) the fact Ms. Cyr could not recall the gender of the police officer she dealt with at the time of the incident; (iii) the fact Ms. Cyr thought she gave a written

statement on December 6; (iv) the fact Ms. Cyr did not recall the police officers examining her head with a flashlight; (

v) the fact thepolice officers did not see any injuries, while Ms. Cyr testified that her cheek was bruised and there was a lump on her jaw; and (vi) thatCst. Ritter noticed what she thought were fresh “track marks” on Ms. Cyr’s arm. III. analysis [10] Pursuant to s. 686(1)(

a) of the Criminal Code, an appellate court may overturn a conviction where the verdict is unreasonableor cannot be supported by the evidence. The Supreme Court of Canada in R v Yebes, (SCC), [1987] 2 SCR 168 at 185set out the test to be applied in making such a determination, that is “whether the verdict is one that a properly instructed jury actingjudicially, could reasonably have rendered”.

How an appellate court should apply that test was commented on by the Supreme Court ofCanada in R v Biniaris, 2000 SCC 15, [2000] 1 SCR 381 at para 36, where Arbour J. writing for the Court stated: 36 … That formulation for the test imports both an objective assessment and, to some extent, a subjective one. It requires the appealcourt to determine what verdict a reasonable jury, properly instructed, could judicially have arrived at, and, in doing so, to review,analyse and, within the limits of appellate disadvantage, weigh the evidence.

This latter process is usually understood as referring to asubjective exercise, requiring the appeal court to examine the weight of the evidence, rather than its bare sufficiency…. [11] In considering the reasonableness of a verdict, great deference must be given to a trial judge’s findings of credibility. That isso because trial judges have the advantage of seeing and hearing witnesses testify first hand (see R v François, (SCC),[1994] 2 SCR 827 at 837).

Having said that, credibility findings remain findings of fact and, accordingly, are to be reviewed on thestandard of palpable and overriding error. [12] In this case, the trial judge addressed all of the inconsistencies raised by Mr. Nayneecassum’s counsel and came to theconclusion that, despite those inconsistencies, he was satisfied beyond a reasonable doubt that Mr. Nayneecassum had applied physicalforce to Ms. Cyr, thus committing the offence of common assault. There was evidence to support his conclusions.

Given the test to beapplied in determining whether the verdict was unreasonable, having reviewed the whole of the evidence, and taking into account thedeference accorded credibility findings, we are of the view that the verdict is one that a properly instructed jury, acting judicially, couldreasonably have rendered. Accordingly, the appeal was dismissed.