R v Trotchie, 2019 SKCA 43

Restriction on Publication An order has been made in accordance with s. 486.4(1) of the Criminal Code directing that any information identifying the complainant shall not be published. Court of Appeal for Saskatchewan Docket: CACR3121 Citation: R v Trotchie , 2019 SKCA 43 Date: 2019-05-23 Between: Wendell Ray Trotchie Appellant And Her Majesty the Queen Respondent Before: Jackson, Ottenbreit and Whitmore JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Mr. Justice Ottenbreit In concurrence: The Honourable Madam Justice Jackson The Honourable Mr.

Justice Whitmore On Appeal From: 2018 SKQB 129 , Battleford Appeal Heard: December 13, 2018 Counsel: George Green for the Appellant W. Dean Sinclair, Q.C., for the Respondent Ottenbreit J.A. I. Introduction [ 1 ] Wendell Trotchie was convicted of sexual assault under s. 271 of the Criminal Code and received a sentence of 33 months incarceration. He appeals his conviction. For the reasons hereinafter set forth, his appeal is dismissed. II. Facts and Background [ 2 ] Mr. Trotchie operated a corral-cleaning business. C.L., a 16-year-old female, and two teenage boys, M.L. and L.A., worked for Mr.

Trotchie evenings and weekends. [ 3 ] In May 2016, Mr. Trotchie obtained a job near Wilkie, Saskatchewan. On May 13, C.L., M.L. and L.A. travelled to the job in one of Mr. Trotchie’s trucks towing a fifth-wheel trailer, which was to serve as accommodations at the job site. Mr. Trotchie, who was travelling separately, instructed C.L., M.L. and L.A. to stop and meet him for a drink at a bar in Landis, Saskatchewan, owned by a woman named Karen. Mr. Trotchie’s three employees arrived at the bar at approximately 5:30 p.m. and began drinking alcohol with Mr. Trotchie. [ 4 ] At about 9:30 p.m., Mr.

Trotchie decided that the group would not move on to Wilkie, but would stay the night in Landis and sleep in the fifth-wheel trailer. As the evening wore on, C.L. continued to drink and became extremely drunk. A man named Ted flirted with her during the evening and at one point followed her to the washroom. C.L. told him to stop annoying her. Ted left the bar. About an hour after Ted left, at approximately 11:30 p.m., she went to the trailer to sleep. Her boyfriend, M.L., went with her. After C.L. got to the trailer, she became sick to her stomach.

M.L. ensured that C.L. was okay and in bed, and went back to the bar. Over the next hour or so, M.L. periodically checked on her to make sure she was okay. [ 5 ] Mr. Trotchie left the bar 30–60 minutes after C.L., depending on which witness’s evidence is accepted, and also went to sleep in the trailer. Shortly after Mr. Trotchie had left the bar, C.L. came back inside the bar crying and screaming. She told M.L. that Mr. Trotchie had “raped her”. L.A. estimated that C.L. had come back into the bar anywhere from 20–25 minutes after Mr. Trotchie had left it.

M.L. estimated that time to be 5–10 minutes. [ 6 ] On C.L. telling M.L. that Mr. Trotchie had raped her, M.L. and L.A. ran to the trailer to confront Mr. Trotchie. They found him on or near the bed. C.L. heard M.L. yelling at Mr. Trotchie and she heard Mr. Trotchie denying he had done anything wrong. [ 7 ] In a videotaped statement given to the police, C.L. explained what had happened in the trailer. She was asleep on the couch when she heard the trailer door open. It was dark and she could not see the person who entered. She assumed it was her boyfriend.

A man lay down beside her on the couch and she immediately realized it was not her boyfriend. This was because the man weighed much more than her boyfriend did. He put his arms around her and she tried to push him away. She started to cry. The man started stroking her hair and telling her that everything would be fine. He told her to calm down.

[8] The man said “be quiet Kirsten”. Although C.L.’s name was not Kirsten, Mr. Trotchie often called her Kirsten by mistake.No one else called her Kirsten. When she heard the man address her as Kirsten, she knew that it was Mr. Trotchie who had lain downbeside her. C.L. recognized Mr. Trotchie’s voice. Additionally, even though it was dark, she was able to make out his facial featureswhen his face got close to hers. [9] C.L. told the police that Mr. Trotchie had sexually assaulted her twice by digital penetration.

When she tried to get up off thecouch he had put more of his body weight on top of her to keep her pinned down. She eventually was able to get away from him and raninto the bar for help. [10] Mr. Trotchie said he had left the bar at the same time as his friend Dennis and did not know where C.L. was when they leftthe bar. He did not see her when he entered the trailer.

He said he was drunk and lay down to sleep on the bed and remembered nothingafter that until 7:45 in the morning when Karen woke him up and told him that C.L. was accusing him of sexual assault. [11] The Crown applied to have C.L.’s videotaped statement to the police admitted as evidence pursuant to s. 715.1 of theCriminal Code. Mr. Trotchie agreed the videotape was admissible. The Crown also applied to have C.L.’s statements to M.L. and L.A.accusing Mr. Trotchie of raping her or sexually assaulting her admitted under the res gestae or spontaneous utterance exception to thehearsay rule.

This application was not opposed and the trial judge admitted the statements into evidence on that basis. III. Decision of the Trial Judge [12] At trial, Mr. Trotchie contended that C.L.’s account of having been sexually assaulted was false. He also argued that heridentification evidence was not credible or reliable. [13] The trial judge concluded that C.L. had been sexually assaulted. He determined this on the basis of her spontaneous utterancethat she had been raped when she came back into the bar, together with the whole of the other evidence before him.

He found C.L.’swords and actions immediately following her return to the bar, as well as her emotional state then and in the following hours entirelyconsistent with a sexual assault having happened even though what had happened to her was not technically rape.

Moreover, he observedthat, although the defence did not concede a sexual assault had happened, it did not, expressly or by implication, question that on cross-examination. [14] The trial judge noted the consistency of all the evidence, including C.L.’s spontaneous utterances, her statement to the policeand her sworn testimony, as supporting his conclusion that she had been sexually assaulted. He stated that any inconsistencies in herevidence were related to other issues and not whether she had been sexually assaulted.

He determined the evidence did not support aconclusion that she was not assaulted. [15] The trial judge rejected as unfounded speculation, with no basis in evidence or logic, Mr. Trotchie’s argument that C.L. hadfalsely accused him because her boyfriend, M.L., had expressed an interest in buying his corral-cleaning business and she thereforewanted to eliminate him as a competitor. [16] On the issue of identification, the trial judge began by noting Mr. Trotchie denied ever touching C.L. or sexually assaultingher. Mr.

Trotchie testified he went to the trailer to sleep, slept soundly and when he was awakened the next morning, had no knowledgeor recollection of what had transpired the night before. [17] The trial judge first instructed himself on the principles of R v W.(D.), (SCC), [1991] 1 SCR 742. He rejectedMr. Trotchie’s testimony that he did not sexually assault C.L., noting the essential elements of his testimony conflicted with the evidencegiven by other witnesses.

This included the evidence about the times certain events had happened as well as his denial of the significantconfrontation with M.L. and L.A. in the trailer about C.L.’s allegations. [18] He found Mr. Trotchie had also attempted to mislead the Court when he changed his testimony about when Karen woke himthe next morning to tell him that C.L. was accusing him of rape. He determined Mr. Trotchie, hoping the change would not be noticed,was willing to alter his testimony to maintain consistency with his story that he knew nothing about what had happened the night before. [19] The trial judge concluded that Mr.

Trotchie was dishonest throughout the pertinent parts of his testimony and his lack ofrecollection of the allegations made against him and the confrontation with M.L. and L.A. was not attributable to alcohol impairment. Hefound even if it was due to such impairment his denials could be given no weight. [20] The trial judge concluded that he did not believe the evidence of Mr.

Trotchie that he went to the trailer and slept soundlyuntil he was awakened by Karen the next morning and that he did not sexually assault C.L. [21] The trial judge next turned to the issue of whether on all the evidence he was satisfied beyond a reasonable doubt that Mr.Trotchie was the person who had sexually assaulted C.L. Mr. Trotchie had argued that C.L.’s evidence and the evidence of the otherCrown witnesses germane to that issue was not sufficiently credible or reliable for various reasons. [22] With respect to C.L., Mr.

Trotchie submitted the trailer was dark and she could not have known who her assailant was. Heargued her powers of observation were compromised because she was drunk. He noted that C.L., in her videotaped statement and in hertestimony at the preliminary inquiry, said it was completely dark in the trailer but then testified at trial she could see Mr. Trotchie’s facein the dark when he got close to her. Mr.

Trotchie argued that, although C.L. had told the police she had sustained an injury as a result ofthe assault, the doctor who examined her could find no such injury. [23] The trial judge addressed each one of these arguments and dismissed them. He found no basis to conclude that C.L. wasbeing dishonest in her testimony about her ability to see Mr. Trotchie’s face despite that it was dark in the trailer. Turning to the issue of

the reliability of C.L.’s identification evidence, he instructed himself on the law regarding the frailties of such evidence. [ 24 ] The trial judge found multiple bases for C.L.’s identification of Mr. Trotchie as her assailant. This included that she knew Mr. Trotchie, his body size, weight, his voice, that he called her Kirsten, as was his habit to do so, and the fact that she could see his face when it got close to hers. He determined that darkness was not an impediment to identification and did not compromise the reliability of the other elements of her identification.

Her identification was an accumulation of her sensory experiences over a 10–15 minute period during which her attention would have been very focused on who her assailant was. The trial judge found no basis to conclude that C.L. was impaired to such a degree by alcohol that her powers of observation and recollection were unreliable. [ 25 ] The trial judge noted that C.L.’s identification of Mr. Trotchie was corroborated by the evidence of other witnesses in that Mr. Trotchie was alone in the trailer on the bed where C.L. last saw him before she ran to the bar after the sexual assault. [ 26 ] Mr.

Trotchie argued the Crown had not eliminated the possibility that Ted, who had been flirting with C.L. earlier in the evening, was her assailant. The trial judge noted that on the evidence there was no air of reality to Ted having been C.L.’s assailant. Ted had left the bar earlier in the company of his employer and, in any event, Ted was physically much different, i.e., tall and skinny, than the description given by C.L. of her assailant. [ 27 ] Mr. Trotchie last submitted there were various inconsistencies, exaggerations and errors in the evidence of the other Crown witnesses.

The trial judge concluded that any inconsistencies, exaggerations or errors in the evidence of the Crown witnesses were irrelevant to the core issue of identification of Mr. Trotchie as the assailant. For example, he did not rely on the evidence of M.L. and L.A. regarding the state of the trailer when they confronted Mr. Trotchie. [ 28 ] The trial judge concluded: [75] The accumulation of C.L.’s identification evidence, coupled with the immediate attendance of M.L. and L.A. in the trailer, finding [Mr.

Trotchie] the only occupant, the absence of any credible or reliable evidence that Ted was potentially the assailant and coupled with the actions of [Mr. Trotchie] the next morning satisfies me beyond a reasonable doubt that it was [Mr. Trotchie] who sexually assaulted C.L. [ 29 ] The trial judge was satisfied beyond a reasonable doubt that Mr. Trotchie had sexually assaulted C.L. and convicted him. IV. Issues [ 30 ] Mr. Trotchie raises three issues which can fairly be stated as follows: (

a) Did the trial judge improperly use C.L.’s videotaped statement to the police and her spontaneous utterances as prior consistent statements in support of her credibility and reliability regarding whether a sexual assault occurred? (

b) Did the trial judge err in determining C.L.’s identification evidence was credible and reliable? (

c) Did the trial judge err by allowing Crown counsel to cross-examine Mr. Trotchie about why he did not tell the police about Ted? V. Analysis A. Did the trial judge improperly use C.L.’s videotaped statement to the police and her spontaneous utterances as prior consistent statements in support of her credibility and reliability regarding whether a sexual assault occurred? [ 31 ] Mr. Trotchie first submits the trial judge erred by using C.L.’s videotaped statement under s. 715.1(1) of the Criminal Code as a prior consistent statement in support of her credibility and reliability. He points to paragraph 54(

f) of the trial judge’s decision as an indication that he accepted C.L’s evidence that a sexual assault had occurred because her evidence at trial was consistent with her previous spontaneous utterances and videotaped statement. This paragraph reads as follows: [54] I am satisfied from the evidence as a whole that, in fact, C.L. was sexually assaulted on May 14, 2016, at Landis, Saskatchewan. My reasons for this finding are as follows: … (

f) C.L.’s statement to the police some days following May 14, while providing significant additional detail, is consistent with her spontaneous utterances and actions the morning of May 14. She testified at trial that her statement to the police was true and her evidence at trial was for the most

part consistent with her statement to the police. [ 32 ] Mr. Trotchie cites R v Aksidan , 2006 BCCA 258 , 209 CCC (3d) 423 [ Aksidan ], in support of his submission the trial judge erred in this respect. [ 33 ] The particular issue is whether the trial judge could take into account the consistency between C.L.’s s. 715.1(1) statement,

on the one hand, and her spontaneous utterances and actions on the morning of the incident and her evidence at trial, on the other. The videotaped statement of C.L. was admitted pursuant to s. 715.1(1) . It became part of her in-court testimony. It is not properly characterized as a prior consistent statement as suggested by Mr. Trotchie, but is accorded the same treatment as if it had been made at trial. The rule against prior consistent statements was not engaged.

However, what can be made of the statement is a live issue. [ 34 ] The law represented by Aksidan has in part been overtaken by more recent jurisprudence.

In R v Untinen , 2017 BCCA 320 , 355 CCC (3d) 371 [ Untinen ], the Court, dealing with an argument that the trial judge erred by suggesting that a s. 715.1(1) statement may by virtue of its consistency with the complainant’s testimony be used for corroborative purposes, referred to Aksidan and said: [64] While this is sufficient to dispose of this ground of appeal, I wish to address the Crown’s further contention that this Court erred in law by holding in J.A . and K.P.S. that consistencies between a complainant’s video-recorded statement and trial testimony can never assist a trier of fact in resolving issues relating to a complainant’s credibility or reliability, as doing so would necessarily involve a form of impermissible self-corroboration. … [68] In my respectful view, this Court’s judgments in J.A . at paras. 38–44, and K.P.S. are capable of being read as precluding a trier of fact from having regard to consistencies between a complainant’s video-recorded statement and her in-court testimony, even in cases where the defence relies on inconsistencies between the two to undermine the complainant’s credibility or reliability.

The reasoning of the Court, in both cases, appears to be, that doing so necessarily engages impermissible reasoning—in other words, doing so, uses the consistency of the way the events were related over time to corroborate or bolster the complainant’s account of the events. I do not agree with this reasoning.

To the extent that J.A. and K.P.S . may be read as authority for that proposition, in my view, they should not be followed in the future. [69] In some cases, and this case is a good example, the video-recorded statement will have independent cogency and a permissible use that goes beyond improperly bolstering the testimony of the witness on the basis of consistent repetition.

Further, consistencies between what was said in the out-of-court statement and what was said at trial may be of assistance to the trier of fact in assessing a defence claim that inconsistencies between the two accounts so undermine the witness’s credibility or reliability as to raise a reasonable doubt. [70] In my view, there is a subtle but important distinction to be drawn in this context between using a video-recorded statement introduced under the Code for the limited purposes of assisting in the assessment of a witness’s credibility and reliability, and using it for the impermissible purpose of corroborating the truthfulness of the witness’s trial testimony. … [76] In my view, a fair and principled assessment of credibility or reliability cannot take place based on an assessment of inconsistencies alone.

Where inconsistencies are raised to challenge the credibility of the complainant when a video statement is tendered, the truth-seeking function of the trial demands that the entirety of the complainant’s account be scrutinized, including internal consistencies as between her video statement and trial testimony, in deciding whether the inconsistencies relied on by the defence so impact on the credibility or reliability of the complainant as to give rise to a reasonable doubt. … [80] In

summary, consistencies between a complainant’s out-of-court video statement and her in-court testimony may provide important context that informs the trier of fact’s evaluation of a defence challenge to her credibility or reliability. Consistency of account could dispel, or at least blunt, a defence claim that inconsistencies undermine the witness’s credibility or reliability. Again, this is not using internal consistency to corroborate the witness’s evidence.

Although not made in the context of video-recorded statements admitted under the Code provisions, I find persuasive, and applicable to this context, the analysis of David M. Paciocco (now Paciocco J.A.) in The Perils and Potential of Prior Cons istent Statements: Let’s Get It Right , (2013), 17 Can. Crim. L. Rev. 188 at 198: There is nothing, therefore, to prevent a party from pointing to the consistency between the prior related statement and the testimony of their witness.

This is not done to prove that the witness was being truthful in their testimony on those matters -- the mere making of prior consistent statements does not prove credibility nor do prior consistent statements of a witness corroborate their in-court testimony. The consistencies are relevant solely to enable the decision-maker to judge whether the relevant statement is really materially inconsistent when looked at as a whole, and to gauge the impact that any differences in detail should have on the overall credibility and reliability of the witness.

In effect, the consistent features of the prior statement do not add affirmative weight to the party’s scale.

They are used simply to knock the “inconsistency” challenge off of the opposing party’s scales, or to reduce the weight of those inconsistencies that may remain. [81] For these reasons, to the extent this Court’s judgments in J.A. and K.P.S . may be read as suggesting that no use can be made of consistencies between a complainant’s video-recorded statement and in-court testimony, they should not be followed in the future. (Emphasis added) [ 35 ] The foregoing clarifies that in appropriate circumstances a trier of fact may consider all of a witness’s evidence, including all of the consistencies and inconsistencies, when assessing credibility and reliability. [ 36 ] That said, Untinen reiterated that Aksidan remains good authority that a s. 715.1(1) statement cannot be used to bolster the truthfulness of a complainant’s trial testimony simply because it is consistent with that testimony (at para 52).

Such a statement cannot add weight to a complainant’s account of events at trial. [ 37 ] The trial judge’s comments at paragraph 54(

f) were made in the context of assessing C.L.’s credibility as to whether a sexual assault occurred. In light of the above jurisprudence, the trial judge was entitled to consider the consistency of C.L.’s videotaped

statement with her spontaneous utterances and actions on the morning the assault occurred to make that determination. [38] The trial judge did not rely on consistencies between the videotaped statement and in-court testimony as a form ofimpermissible self-corroboration. Mr. Trotchie argued that the Crown had not proven C.L. was sexually assaulted.

He submitted that theevidence of C.L. was exaggerated, inconsistent and on some points false and, as a result, the cumulative weight of her evidence alongwith the evidence of other witnesses lacked sufficient credibility and reliability on the issue of whether an assault occurred. In view ofthis position, it may be inferred the trial judge used the consistencies and inconsistencies between the two to assess that defence positionand whether the evidence of C.L. in that respect was credible and reliable. I see no error in the trial judge’s use of C.L’s videotapedstatement in that manner.

On the basis of the foregoing law, Mr. Trotchie’s submissions on this point have no merit. [39] Mr. Trotchie also submits the trial judge impermissibly used C.L.’s spontaneous utterances that Mr. Trotchie had raped her asa prior consistent statement in support of her credibility rather than for the restricted purpose of res gestae. This is a specious argumentthat ignores long-established law. [40] It was agreed by Mr.

Trotchie at trial that C.L.’s utterances after the sexual assault when she ran to the bar were to beadmitted into evidence pursuant to either the res gestae or spontaneous utterances exception to the hearsay rule. At trial there was noissue that this evidence was admissible for the truth of its contents such as it was (even though it was accepted by all parties that no rapehad occurred). The spontaneous utterance is part of the narrative of what transpired immediately after the assault.

Such evidence has longbeen held to be an exception to the rule against prior consistent statements (see R v Foster (1995), (SK CA), 128 SaskR 292 (CA) at para 20, leave to appeal to SCC refused, [1996] 2 SCR vi; R v Smith, 2010 ONCA 155 at para 4 [Smith]). It forms part ofthe totality of the evidence as to whether the assault occurred. That evidence was relevant to the complainant’s demeanour immediatelyafter the incident and, therefore, relevant to her credibility (Smith at para 4). [41] Accordingly, Mr. Trotchie’s submission fails. B.

Did the trial judge err in determining C.L.’s identification evidence wascredible and reliable? [42] Mr. Trotchie notes that in her videotaped statement C.L. said it was “pitch black” in the trailer when she was assaulted. Heargues that the trial judge determined C.L. had said it was merely dark thereby misapprehending her evidence. Mr. Trotchie submits thetrial judge could not therefore have properly adjudicated whether C.L.’s testimony for the first time at trial, that she could see his faceduring the assault, was inconsistent with her evidence on the videotape.

He submits this misinterpretation caused the trial judge to rejecthis argument that C.L.’s identification evidence was inconsistent and neither sufficiently credible nor reliable to find guilt beyond areasonable doubt. [43] Mr.

Trotchie argues the trial judge erroneously concluded C.L. did not give inconsistent evidence because he determined “anoccupant could well have had some limited vision and the ability to recognize a face when close, with it also being accurate to describethe trailer as dark”. [44] The trial judge dealt with the defence arguments that C.L.’s identification evidence was not credible and unreliable because itwas too dark as follows: [67] The defence’s other significant attack on the credibility or reliability of C.L. relates to the question of whether or not it was toodark in the trailer for C.L. to visually recognize [Mr.

Trotchie]. It is a fact that in her videotaped statement to the police, C.L. stated that itwas dark in the trailer and did not make any reference to identifying her assailant by vision. Further, I accept the defence’s position thatin her evidence at the preliminary inquiry she made no reference to being able to see [Mr. Trotchie]. That, however, does not cause me toconclude that C.L. was being dishonest at trial and attempting to buttress her previous evidence by stating that when [Mr.

Trotchie]’sface got close to hers she could recognize him. [68] During his evidence-in-chief, M.L. testified that it was pretty dark in the trailer but you could still see a bit because the trailer hadwindows. This evidence was not challenged on cross-examination. It is logical to conclude that if the trailer had windows and with somelight available from streetlights and exterior lights to Karen’s Bar and Grill, an occupant could well have had some limited vision and theability to recognize a face when close, with it also being accurate to describe the trailer as dark.

I find no basis to conclude C.L. wasbeing dishonest during her cross-examination at trial when she stated for the first time that although the trailer was dark, when she gotused to the lighting, she did see [Mr. Trotchie]’s face when it was right up to her. [45] There was significant cross-examination of C.L. on the difference between her testimony on the videotape and her testimonyin court regarding the light conditions in the trailer.

The trial judge had the benefit of defence counsel’s arguments that C.L. was lyingabout the visual identification given the “pitch black lighting conditions” and the fact that she had never claimed to have seenMr. Trotchie’s facial features before she testified to that at trial. The trial judge clearly set out in his decision the defence argument thatshe had told the police it was completely dark in the trailer (at para 65). In short, the trial judge was aware and appreciated that C.L. hadgiven inconsistent evidence.

He was also aware and appreciated there was an issue whether it was so completely dark in the trailer thatnothing or very little could be seen of the assailant’s face. In this context, his reference that C.L. said in her statement “it was dark in thetrailer” is therefore neither here nor there. [46] The trial judge explained why he did not accept the lighting conditions inside the trailer were “pitch black” andMr. Trotchie’s arguments on that issue. He concluded that any inconsistency between C.L.’s earlier statement and in-court testimony wasnot the result of any dishonesty.

He also took into account the testimony of M.L. who said the trailer had windows and one could see abit. M.L.’s testimony on this point was not challenged. [47] I can see no indication that the trial judge was unable to properly adjudicate the lighting issue. He was entitled to take intoaccount C.L.’s evidence, both in her statement and at trial, and M.L.’s evidence of the lighting conditions and, on the basis of all the

evidence, determine there was some light which allowed some vision. The resolution of the issue as set forth above was therefore supported by the evidence. [ 48 ] Accordingly, I find the trial judge did not misapprehend the evidence. He understood it well. This argument therefore fails. C. Did the trial judge err by allowing Crown counsel to cross-examine Mr. Trotchie about why he did not tell the police about Ted? [ 49 ] Mr. Trotchie makes a number of arguments about his testimony concerning why he did not mention Ted to the police.

He first submits it coloured the trial judge’s decision regarding his credibility. He argues his fundamental right to silence was infringed. Mr. Trotchie also submits that, as a result of the questioning, the trial judge made a finding he had recently fabricated his testimony by dismissively referring to Ted as a “phantom”. He argues that it cannot be concluded that the trial judge’s rejection of his evidence was not based on the acceptance of improper evidence elicited by the Crown.

Finally, he submits the trial judge’s error resulted in an unfair trial and asks that this Court set aside the verdict of guilty and enter an acquittal or order a new trial. To assess these submissions it is necessary to turn to the record to gain some perspective on how the matter of Ted became an issue and how the trial judge’s error arose. [ 50 ] Mr. Trotchie’s counsel in cross-examination of C.L. established that a man named Ted had followed her into the bathroom at the bar. In examination-in-chief, Mr.

Trotchie also testified Ted was present at the bar and socialized with him and his associates, including C.L. In cross-examination, Mr. Trotchie acknowledged that the morning after the sexual assault he texted M.L. and referred to Ted possibly giving a DNA sample in relation to the assault. Mr. Trotchie testified he had not talked to Ted at the time he sent the text and he was being sarcastic in his response to M.L. who had texted him earlier. Mr.

Trotchie then stated that Ted had been hanging around (i.e., flirting with) C.L. the prior evening and that it was possible Ted was C.L.’s assailant. [ 51 ] Crown counsel attempted to ask Mr. Trotchie why he had not mentioned Ted to the police. On defence counsel objecting to that question, there ensued some discussion between both counsel and the trial judge, centered around whether given Mr.

Trotchie’s right to remain silent the Crown could pursue that line of questioning. [ 52 ] Crown counsel took the view he was entitled to explore this line of questioning and explained why: Very -- very simply: He is -- I think I have a right to know if he’s now denying totally that he did anything, that I’m entitled to explore, well, why didn’t he then assist the police in redirecting their investigation to somebody he did think had done it (i.e., Ted)? … Well, I’m cross-examining the accused, and it seems to me I’m entitled to test his credibility in whatever way I see fit, and this is a way of testing his credibility on the denial of anything happening. [ 53 ] During those discussions, the trial judge said: Crown counsel is saying -- basically he is saying, I want to ask if this witness -- okay, if you suspected maybe it was Ted, you didn’t have to say anything about you, why wouldn’t you share that with the police?

Is that -- how is that an inappropriate question? [ 54 ] Defence counsel then advised the Court: I think I can answer that:

(1) I -- I can say that, look it, the fact is, did he say anything about Ted during this investigation? No. So I think the fact is that he didn’t, and I think that’s as far as the question can go, but actually I do have at least some case law that can assist on this, and it’s case law that essentially says that an accused is under no obligation to investigate and to provide evidence of other possibilities.

And I can provide that case. [ 55 ] After some further submissions by counsel and an adjournment, the trial judge made the following ruling: Well, counsel, on the basis of -- on the basis that I don’t have anything specific on point already provided to me, I go back to basic principles. There is an absolute right on the part of Mr. Trotchie to remain silent. There is a right against self-incrimination embodied in

Section 7 of the Charter . What the Crown says is they’re not here infringing on his right to remain silent or his right against self-incrimination. They say this is pursuing questions about possible involvement of some other individual. So on the one hand there is the right to remain silent. On the other hand, the Crown, when a witness takes the witness stand, every witness exposes himself to cross-examination. This witness has exposed himself -- himself to cross-examination, and the Crown has the right to test credibility as well on cross-examination.

The case that you provided to me, the Villaroman case, as you indicate, paragraph 19 really isn’t on point about this right. It’s about what a proper inference is to draw reasonably. I don’t find that helpful, and I’m returning it to you. I have concluded that Mr. Trotchie, having taken the witness stand, and because the question that counsel proposes to ask does not in view -- in my view, infringe upon his right to remain silent before or his right against self-incrimination.

It involves a question of why, if he has said was a possibility he considered that maybe Ted was the responsible individual, why didn’t he ask the -- why didn’t he tell the police that? I think the question is appropriate and Crown counsel can pursue this line of cross-examination.

[ 56 ] The cross-examination of Mr. Trotchie then continued as follows: Q So Mr. Trotchie, when you were talking to the police, you had an opportunity to tell them that you were -- you suspected this Ted fellow had done something; is that right? A (NO AUDIBLE RESPONSE). Q You had this opportunity to tell them something about Ted? A Yeah, I probably had an opportunity. Q But you didn’t? A No. Q And I think the reason for that is you didn’t really believe had done anything? A I never thought about Ted at the time.

Q So when you said, in your text message -- and it’s already been referred to: Ted said he’d give one -- that was kind of like a joke. It was being flippant; is that right? A Yes. Q So you really had no concerns about Ted that night; is that right? A Not at that point. Q Well, at one point then? A Well, later on when I got more information what was happening. Q And was that before you went to talk to the police? A No, after. Q So you didn’t go back to the police -- A No. Q -- and tell them about this? A No, I’m not a detective. Why would I go and -- Q All right.

W hat w a s th i s f urther in f or m ati o n y ou got? A About wh a t? Q W h at we j u st talked a b out, about Ted? A W e l l, I heard -- it’s a ll hears a y . Y o u hear it. I t ’s -- so y o u hear it. Q W e l l, don’t wor r y a bo u t that. The Judge -- A Yeah. Q -- will let u s know ab o ut that? A Ok a y . Q W h at was t hat other in f o r m ation? A It’s all hear s a y I ju s t t o ld y ou. Q So y ou’re not goi n g to tell us?

A Yeah. [ 57 ] Defence counsel in his closing submissions made various comments about Ted: The defence submits that should it be determined that an offence was, in fact, committed against [C.L.], that [Mr. Trotchie] played absolutely no

part in it, and there is a reasonable possibility it was committed by another person, that person being [Ted], the man who had earlier in the night followed [C.L.] into a bathroom stall in the woman’s washroom. …

There is -- there is no evidence of where he went, but yes, that -- that certainly has to be taken into account in -- into the balance and consideration of whether -- that -- that Ted is a reasonable possibility. So I submit that evidence certainly is there, and the evidence is left that, yeah, he did leave earlier. We don’t know where he went. We don’t know if he went to sleep in a truck. We don’t know if he went home.

We don’t know those things, but we do know there was a person there with some sexual interest in her, and I’ll get to that. … It’s the Crown’s duty to exclude all reasonable possibilities, and by leaving this Ted alone, and not following up on Ted, there is a candle lit, and that candle is that guy, and it was not extinguished. And when the Crown, law enforcement, the police, fail to extinguish a possibility like that, a reasonable one, because it’s not based on pure speculation, it’s based on a guy who had sexual interest in her that night, and that was following her around.

And when you couple that with her unreliable identification because it was totally dark, the person smelled of whiskey, you take all that into account, there is reasonable doubt, and that’s where we can’t convict. That’s where it would be very dangerous, and we risk a wrongful conviction. [ 58 ] The trial judge also referred to Ted during defence counsel’s submissions: THE COURT: Go back to that earlier, her initial statement to the police it was based upon her saying she recognized his voice, his use of the name “Kirsten”, which he had made the mistake of calling her.

His body size, according to her, was consistent. She immediately recognized that it wasn’t her boyfriend, who was of slight build, when we saw him here in the courtroom, and what I gathered from the evidence was that this phantom Ted was also of slight build. [DEFENCE COUNSEL]: Well, I might take issue that he is a phantom. I don’t think there is any dispute that he is a real person.

THE COURT: No, no, he was there, but we don’t know -- we don’t know much about him. [ 59 ] Crown counsel made various references to Ted during his closing submissions, some of which were as follows: The case for the defence consists primarily of an outright denial by the accused that he had done anything to C.L.

The defence also attempted to suggest that someone named [Ted], who it appears was employed by a Dennis, who was referred to in the evidence, was a friend of the accused, and who were both present at the bar and grille socializing with the accused, C.L., M.L. and L.A., along with two other females, one of whom came to be known as Jennae. There was evidence from -- from Karen (or K.M.) that she found C.L. with Ted in the female bathroom stall and told him to leave the bathroom. There was no evidence anything of a sexual nature was happening.

C.L. readily admitted that a male had followed her into the bathroom, and she told him to get out. She described him as being 18, and slim build, and of no physical resemblance to the accused. M.L. also described him as not looking at all like the accused. K.M. said Ted had come with his boss, who must have been Dennis, and we had evidence that Ted left the bar before the accused, at 10:30 or -- to 11 PM, sometime in that area, and wasn’t seen in the bar again. … He agreed that he didn’t say anything about Ted to the police or anybody, and that -- but he’d said nothing about himself either.

He agreed that he probably did have an opportunity to tell the police about Ted. He readily admitted that he didn’t have any concerns about Ted at all really. And then we got into an exchange where his counsel had to raise -- rise and ask -- tell him to answer the questions about how he knew that -- why we should be getting Ted’s DNA or that Ted -- Ted was in the bathroom stall. And then he says, I’m not going to tell you about any further information about Ted. … Is there any other evidence which raises a reasonable doubt?

The only evidence which might do so is the evidence of a possible involvement of Ted, who appears to have had a sexual interest in C.L. that night.

Clearly, however, given the weight of all the Crown evidence, which is consistent and in conformity with the actions of human beings and common sense, and the fact that any possible involvement with Ted is merely conjecture, the Crown urges the Court to find that there is no evidence which raises a reasonable doubt that this accused committed the sexual assault on C.L., as she described, and that’s corroborated by the evidence. [ 60 ] From all the foregoing, it is clear that Mr. Trotchie’s primary defence was that no assault had occurred.

His alternative defence was that if an assault had occurred he did not commit it. The details of that defence had two prongs. First, he had slept through the night oblivious to the assault. Second, there was a reasonable possibility that Ted was the assailant. The alternative defence posited that the evidence about Ted’s interest in C.L. together with C.L.’s limited ability to see her assailant because of light conditions in the trailer had raised a reasonable doubt about Mr.

Trotchie’s guilt. [ 61 ] What is also clear from the foregoing references to and excerpts from the record is that the stated purpose of the Crown’s improper questioning was to test Mr. Trotchie’s credibility; presumably to show that he was not being sincere in raising Ted as a possible assailant. Apart from this, the Crown’s approach to Ted was to argue that the evidence about him did not raise a reasonable doubt given the difference in body build between Ted and C.L’s description of the body build of her assailant, which was similar to Mr.

Trotchie’s. [ 62 ] The trial judge noted that Ted had left the bar after 10:00 p.m. and possibly as late as 11:00 p.m. He also noted that it was the defence’s position that Ted was possibly the assailant. However, he did not review the impugned cross-examination or comment in his reasons about Mr. Trotchie not having told the police about Ted.

[63] He dealt with the issue of Ted as a possible assailant as follows: [74] I find it highly improbable that [Mr. Trotchie], who just moments before had left the Bar, could have gone to sleep andremained asleep in his bed while someone else was sexually assaulting C.L. while she was crying and screaming for M.L. While thedefense suggested the possibility of another assailant, namely Ted, who had earlier shown interest in C.L., C.L.’s evidence provided aclear description of Ted (six feet tall and very skinny) which was much different than the physical description of the individual assaultingC.L.

Further, the evidence was that Ted had left the Bar earlier in the company of his employer. There is simply no basis on the evidenceto conclude that there is an air of reality to the suggestion that C.L.’s assailant was Ted. [75] The accumulation of C.L.’s identification evidence, coupled with the immediate attendance of M.L. and L.A. in the trailer,finding [Mr. Trotchie] the only occupant, the absence of any credible or reliable evidence that Ted was potentially the assailant andcoupled with the actions of [Mr. Trotchie] the next morning satisfies me beyond a reasonable doubt that it was [Mr.

Trotchie] whosexually assaulted C.L. [64] The Crown on appeal acknowledges that it was presumptively improper for Crown counsel to cross-examine Mr. Trotchieabout his failure to mention Ted to the police and, for the purposes of this appeal, accepts the trial judge erred in law by permittingCrown counsel to ask those questions. Indeed, based on the foregoing excerpts from the record, it appears Crown counsel led the trialjudge into error by his insistence that the cross-examination was proper. That said, the trial judge, while accepting Mr.

Trotchie’s right tosilence, glossed over the implications of allowing Crown counsel to cross-examine as he did and was not alive to the impropriety ofdoing so. [65] Mr. Trotchie submits that the trial judge’s error is of a kind that cannot be cured. He relies on the following three cases insupport of his argument.

In R v Parrington (1985), (ON CA), 20 CCC (3d) 184 (Ont CA), the trial judge’s failure toadvise the jury to disregard the improper cross-examination of the accused about why he did not disclose an alibi to the police and toadvise them that he had the right to remain silent was one of five factors, but not the determining factor by itself leading to a new trial.The Court noted that the cross-examination so diluted and demeaned the right of the accused to remain silent as to render it meaningless(at 188). [66] In R v Schell (2000), (ON CA), 148 CCC (3d) 219 (Ont CA), Crown counsel had attempted to exploit theappellant’s silence with respect to self-defence upon arrest and at the preliminary inquiry before the jury.

Again, this factor was one of anumber of factors which resulted in a new trial being ordered.

The Court noted (at para 55) that the appellant had the right to remainsilent and there was no permissible use of his silence, citing R v Noble, (SCC), [1997] 1SCR 874 at 918. [67] In R v Wojcik, 2002 MBCA 82, 166 CCC (3d) 418, the improper cross-examination was replete with interruptions, theaccused was invited to comment on the veracity of the Crown’s witnesses, and on three separate occasions the accused was askeddirectly whether he had provided the police, who attended the scene of the incident, with an explanation for what had occurred orprovided them with any other pertinent information.

The trial judge failed to intervene during the accused’s cross-examination. Counselfor the accused asserted that the cumulative effect of this misconduct on the part of Crown counsel, especially the questions directed atthe accused’s failure to provide the police with an explanation, undermined the presumption of innocence and his right to remain silent,resulting in an unfair trial. The Court agreed and ordered a new trial.

The Court noted that the trial judge was obliged to provide someindication that she was alive to the improprieties of the Crown’s cross-examination and in particular the breach of the accused’s right tosilence and that she was not placing reliance on evidence arising therefrom (at para 29).

The Court remarked on the importance of theright to silence: [17] Succinctly stated, the right to silence is of such importance that the accused’s invoking of the right cannot directly or indirectlybe used as proof of guilt. [68] The Crown submits here the curative proviso in s. 686(1)(b)(iii) of the Criminal Code applies and that the conviction can besustained despite such error.

The Crown argues the error did not result in any prejudice because it was harmless on its face or in its effectand, in any event, even if there was prejudice the case was so overwhelming that a reasonable and properly instructed jury would haveinevitably convicted. [69] The curative proviso reads as follows: 686.

(1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminallyresponsible on account of mental disorder, the court of appeal … (

b) may dismiss the appeal where … (iii) notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph (a)(ii) the appeal might be decided infavour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred[.] [70] To assess the Crown’s submissions, I turn to the the law governing the application of the proviso as summarized by thisCourt in R v Montague-Mitchell, 2018 SKCA 78, 368 CCC (3d) 322 [Montague-Mitchell]: [40] Section 686(1)(b)(iii) provides that, even if a trial judge has made an error of law, a court of appeal may dismiss an offender’sappeal if it is of the opinion no substantial wrong or miscarriage of justice has occurred.

This so-called curative provision can be invokedin two situations. The first is in respect of harmless errors or errors of a minor nature having no impact on the verdict. The second

concerns errors which have prejudiced the accused and would justify a new trial but where, nonetheless, the evidence overall is sooverwhelming that a conviction would have been inevitable.

See: R v Khan, 2001 SCC 86 at para 26, [2001] 3 SCR 823; R v Sekhon,2014 SCC 15 at para 53, [2014] 1 SCR 272. [71] In R v Van, 2009 SCC 22, [2009] 1 SCR 716, LeBel J. explained what constitutes the first category of errors caught by theproviso, i.e., those which are harmless or minor: [35] … The question of whether an error or its effect is minor should be answered without reference to the strength of the otherevidence presented at trial.

The overriding question is whether the error on its face or in its effect was so minor, so irrelevant to theultimate issue in the trial, or so clearly non-prejudicial, that any reasonable judge or jury could not possibly have rendered a differentverdict if the error had not been made. [72] With respect to the second category of errors, the Court in R v Trochym, 2007 SCC 6, [2007] 1 SCR 239, stated: 82 The instant case is one that falls squarely within the second category of serious errors that will justify a new trial unless theproperly adduced evidence is so overwhelming that a conviction is inevitable, or would invariably result.

This standard should not beequated with the ordinary standard in a criminal trial of proof beyond a reasonable doubt. The application of the proviso to serious errorsreflects a higher standard appropriate to appellate review. The standard applied by an appellate court, namely that the evidence against anaccused is so overwhelming that conviction is inevitable or would invariably result, is a substantially higher one than the requirementthat the Crown prove its case “beyond a reasonable doubt” at trial.

This higher standard reflects the fact that it is difficult for an appellatecourt, in particular when considering a jury trial, since no detailed findings of fact will have been made, to consider retroactively theeffect that, for example, excluding certain evidence could reasonably have had on the outcome. [73] It is also necessary to review the law governing improper cross-examination when determining whether the curative provisoapplies in this case.

This law has recently been summarized in R v Mohamad, 2018 ONCA 966, 369 CCC (3d) 211: [176] Several basic principles impose limitations on the scope of cross-examination of witnesses in a criminal trial. [177] First, the law imposes well-established limits on the scope of cross-examination in which Crown counsel is permitted to engage.Some apply to all witnesses. Others apply only where the witness is an accused: R. v.

R. (A.J.) (1994), (ON CA), 20O.R. (3d) 405, at p. 412. [178] Second, Crown counsel is entitled and sometimes expected to conduct a vigorous cross-examination of an accused: R. (A.J.), atpara. 22. [179] Third, although isolated transgressions of the rules governing cross-examination of an accused by Crown counsel may be oflittle consequence, repeated improprieties are different.

Serial infractions may become abusive and contribute to the danger of amiscarriage of justice: R. (A.J.), at para. 23. [180] Fourth, to determine on which side of the line an allegedly improper cross-examination falls, a reviewing court should keep inmind that every improper cross-examination does not require appellate reversal. Each case is different. A function of its owncircumstances. And so it is that each case demands a case-specific analysis.

What may render one trial unfair may not have the sameeffect in another case. [181] The case-specific analysis requires consideration of the alleged improprieties in the context of the entire cross-examination,indeed in the environment of the entire trial. We should consider whether the allegedly improper cross-examination resulted in a juryhearing or seeing evidence that they should not have heard or seen, for example evidence of extrinsic misconduct. We should considerwhether the impugned cross-examination was brief or protracted and whether it attracted objection from defence counsel or remainedunchallenged.

Any ameliorating steps taken by the trial judge, for example curative instructions specific to the impropriety claimed orthose of a more general nature, are also important antidotes to any claim of prejudice: R. v. E. (F.E.), 2011 ONCA 783, 108 O.R. (3d)337, at paras. 76-78; R. v.

Daly (1992), 57 O.A.C. 70 (C.A.). [74] In R v Bear, 2008 SKCA 172, 320 Sask R 12, this Court commented on what is necessary for an appeal to succeed on thegrounds there was improper cross-examination: [26] Nonetheless, for an appeal to succeed on this ground, this Court must conclude that the appellant was, in the context, prejudicedby the questions. See Boyd, supra. We note that this was not a jury trial, unlike most of the cases cited above.

Nor did the trial judgehimself appear to place any weight on these questions or in any way shift the onus of proof to the accused, as in Vandenberghe, supra.Finally, in the context of the entire cross-examination, these questions and the appellant’s responses were, in my view, relativelyinnocuous, and did not play a major role in the evidence of the appellant. See R. v. E.(T.), 2007 ONCA 891. [75] The Crown accepts the law outlined above but proffers R v Brown, (SCC), [1985] 2 SCR 273 [Brown], insupport of its argument that despite any error, the curative proviso can be applied in this case.

The Crown submits the trial judge did notrely on the improper cross-examination to convict and there is therefore no prejudice to Mr. Trotchie. The Crown argues that the errorwas harmless as described in Montague-Mitchell but even if it was not and there was some prejudice, the case was so overwhelming thatthe trial judge would have inevitably convicted. [76] In Brown, the Court found the prosecutor had engaged in improper cross-examination and the trial judge had not sufficientlyrestricted the prosecutor in his cross-examination.

The Court observed, however, that there was evidence before the trial judge uponwhich he could have reached his conclusion on credibility, and it was evident from his reasons that he did not base that conclusion on theimpugned cross-examination but upon the conflicting evidence which was before him. The Supreme Court affirmed the decision of theCourt of Appeal, which had applied the curative proviso on the basis there was in the circumstances no prejudice to the accused. [77] I now return to Mr. Trotchie’s arguments and the matter of the application of the curative proviso. As a first observation, the

record seems to indicate that Mr. Trotchie’s counsel acknowledged that Mr. Trotchie had not said anything to the police about Ted andagreed that the Crown could cross-examine him to that extent. However, that fact has little if any impact on the issue of whether thecurative proviso applies in this case given the Crown has acknowledged the trial judge erred in law. [78] Looking at the improper cross-examination in the context of the entire cross-examination and the trial as a whole, I cannotsay the evidence from the impugned cross-examination prejudiced Mr.

Trotchie, affected the credibility findings of the trial judge oraffected the verdict. I conclude that this is a case similar to Brown. I will explain. [79] First, unlike the cross-examination in the cases cited by Mr. Trotchie above, the improper cross-examination was relativelybrief and pointed in the context of the entire cross-examination of Mr. Trotchie. Second, despite that the Crown’s stated purpose of thecross-examination was to test Mr.

Trotchie’s credibility, I see no indication that the impugned cross-examination coloured or had anyeffect on the trial judge’s finding that he was not credible. [80] The details of Mr. Trotchie’s alternative defence that he was not the assailant were that he was drunk, he went to sleep beforeC.L. got to the trailer, he slept soundly through the night and he had no knowledge about the assault in the trailer until he awoke the nextmorning and was advised of the assault by Karen. [81] The trial judge’s findings that Mr. Trotchie was not credible in giving this testimony was based on a number of factors.

Thefirst one was the inconsistency of the essential elements of his evidence with that of other witnesses. These inconsistencies included (i)evidence of the time and circumstances in which he left the bar for the trailer, and (ii) his denial of any confrontations about anddiscussions of the assault with M.L., L.A. and Karen. Second, the trial judge concluded that Mr. Trotchie changed his testimony aboutwhen he awoke the next morning when confronted with the timing and content of his text messaging to M.L. and L.A. on awakening.The trial judge concluded Mr.

Trotchie was being dishonest and willing to alter his testimony in an attempt to try to maintainconsistency. Third, Mr. Trotchie unreasonably refused and/or resisted answering questions about whether he had made statements in thepast to C.L. that had sexual connotations and only answered upon the Court directing that the Crown was entitled to pursue the topic. [82] The trial judge, based on all the foregoing factors, concluded: [56] … (

l) It is my finding that I do not believe the evidence of [Mr.Trotchie] that he went to the trailer and slept soundly until awoken by Karenthe next morning, nor do I believe his evidence that he did not sexually assault C.L. [83] It is clear from the foregoing that the trial judge’s findings of credibility were grounded on factors which had to do with thedetails inherent in Mr. Trotchie’s evidence, i.e., that he had slept through the night and was not aware of the assault rather than anythingto do with Ted or the fact he did not tell the police about Ted.

In my view, the evidence derived from the cross-examination formed nopart of the basis for the credibility finding regarding Mr. Trotchie. [84] I am also not satisfied that the trial judge’s reference to Ted as a “phantom” disclosed, as argued by Mr. Trotchie, that he wasdismissive of his evidence or believed he had fabricated his testimony about Ted. It is clear he did not make up a false story to meet theexigencies of the case. There was undisputed evidence that Ted was present at the bar and had shown an interest in C.L. Mr.

Trotchie’sclaim in his evidence was that, having slept through the night, he believed Ted could have been the assailant. [85] There is no indication that anyone, including the trial judge, believed his testimony about Ted’s presence was a fabrication.Despite his use of the term “phantom”, the trial judge clearly articulated and understood the alternative defence position that Ted couldhave been the assailant. He considered this as part of his analysis about whether Mr. Trotchie was the person who assaulted C.L.

Thisdefence was not accepted in part because, as the trial judge commented, there was an absence of any credible or reliable evidence thatTed was potentially the assailant. It was not about whether Mr. Trotchie failed to tell the police about Ted. The trial judge’s commentduring defence counsel’s submissions about Ted being a “phantom” is best explained by the fact that little was known about Ted and hismovements after he left the bar. From this, I am reaffirmed in my view that the impugned cross-examination did not prejudice Mr.Trotchie’s alternative defence. [86] Mr.

Trotchie also argues that the impugned cross-examination made the trial unfair. This argument was not well developedeither in Mr. Trotchie’s factum or in oral argument. As indicated by the foregoing cases, whether improper cross-examination as a wholemakes the trial unfair is case specific. I am not satisfied that the error of the trial judge in allowing the improper cross-examinationaffected trial fairness in the circumstances of this case. [87] Last, Mr.

Trotchie argues that because there is no reference in the trial judge’s reasons to the improper cross-examination, itcannot be concluded his rejection of his evidence was affected by it. [88] This argument is undoubtedly based on defence counsel’s use throughout the trial of “candles of reasonable doubt”, whichappeared to be accepted by the trial judge as a valid metaphor. This metaphor posits that the Crown starts each trial with a number ofcandles representing reasonable doubt and each and every such candle must be extinguished by the Crown before the trial judge canconvict.

Although colourful, it is not an appropriate metaphor because it invites the trial judge to erroneously approach the evidence in apiecemeal fashion and apply the reasonable doubt standard in relation to each item of evidence (or candle) (see R v Morin, (SCC), [1988] 2 SCR 345 at 357; R v Learning, 2019 SKCA 5 at para 31). There is only one candle of reasonable doubt burning in everytrial and the trial judge must determine if the Crown has extinguished that candle on all the evidence. [89] The curative provision in s. 686(1)(b)(iii) applies.

In my view, the trial judge’s error was of the first kind set forth in thegoverning cases. Looking at the record as a whole and in the context of this case, it was a harmless or minor error that had no impact onthe verdict. Unlike the jurisprudence cited by Mr. Trotchie, this is not a case where there are a large number of errors that cumulativelyhad an effect on his conviction or would result in a miscarriage of justice if the conviction were allowed to stand.

The error on its face orin its effect was irrelevant to the ultimate issue in the trial and clearly non-prejudicial such that any reasonable judge could not possiblyhave rendered a different verdict if the error had not been made.

[ 90 ] Even if it can be said there was some prejudice to Mr. Trotchie arising from the error, the case against him based on the evidence taken as a whole was so overwhelming that a conviction was inevitable or would invariably result. On the basis of the foregoing, the trial judge’s error cannot justify an acquittal or a new trial. VI. Conclusion [ 91 ] The appeal is dismissed. “Whitmore J.A.” for Ottenbreit J.A. I concur. “Jackson J.A.” Jackson J.A. I concur. “Whitmore J.A.” Whitmore J.A.