Michael Zacharias van Deventer Appellant v. Her Majesty the Queen, 2021 SKCA 163

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in accordance with s. 486.4(1) of the Criminal Code directing that any information identifying the complainant shall not be published.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: CACR3397 Citation: R v Van Deventer , 2021 SKCA 163 Date: 2021-12-15 Between: Michael Zacharias van Deventer Appellant And Her Majesty the Queen Respondent Before: Jackson, Ryan-Froslie and Tholl JJ.A. Disposition: Appeal allowed Written reasons by: The Honourable Mr.

Justice Tholl In concurrence: The Honourable Madam Justice Jackson The Honourable Madam Justice Ryan-Froslie On appeal from: CRM 58 of 2019 (Sask QB), Saskatoon Appeal heard: November 3, 2021 Counsel: Jay Watson for the Appellant Pouria Tabrizi-Reardigan for the Respondent Tholl J.A. I. INTRODUCTION [ 1 ] Michael van Deventer was convicted of sexually assaulting a young child.

He asserts that the trial judge erred by shifting the burden of proof to him, by negatively assessing his credibility solely as a consequence of her positive assessment of the complainant’s credibility and reliability, and by valuing form over substance in her judgment. Mr. Van Deventer further argues that his conviction is an unreasonable verdict. Lastly, he contends that the trial judge failed to provide sufficient reasons. [ 2 ] For the reasons given below, the appeal is allowed, the conviction set aside and a new trial ordered. II. BACKGROUND [ 3 ] The complainant, M.S., was born in 2008.

When she was two years old, her parents separated and M.S. lived primarily with her mother, G.C., in Saskatoon. Mr. Van Deventer met G.C. on an online dating site during the spring or summer of 2013 and, four months later, began residing with her. They married shortly thereafter and purchased a house together in 2014. G.C. and Mr. Van Deventer began having marital difficulties in November of 2015, and he left the family home in January of 2016. There was no evidence that Mr. Van Deventer had any contact with M.S. after he moved out.

At the end of June of 2016, G.C. relocated to Europe and M.S. began living full-time with her father. [ 4 ] In May of 2017, M.S. made a disclosure to her father and her stepmother regarding Mr. Van Deventer. They reported their concerns to the police, and M.S. was interviewed by Sgt. Susan Diebert of the Saskatoon Police Service. During the interview, M.S. told the police officer that Mr. Van Deventer had done things of a sexual nature to her. As a result, Mr.

Van Deventer was charged with sexually assaulting M.S. between February 1, 2013, and January 31, 2016. [ 5 ] At trial, the Crown witnesses consisted of M.S., her father, her stepmother and Sgt. Diebert. After a contested voir dire , the Crown successfully tendered Sgt. Diebert’s video-recorded interview of M.S., pursuant to s. 715.1 of the Criminal Code . M.S. provided additional details of alleged sexual activity with Mr. Van Deventer during her testimony. Mr. Van Deventer testified on his own behalf and denied that any such activity had occurred. III.

TRIAL DECISION [ 6 ] The trial judge began her oral decision by outlining general principles regarding the presumption of innocence, the standard of proof beyond a reasonable doubt and the burden on the Crown to prove each element of the offence on that standard. She described the need to assess the credibility and reliability of each witness and the requirement to approach the testimony of children in a nuanced fashion without detracting from the necessity that the Crown prove guilt beyond a reasonable doubt.

[7] After summarizing these principles, the trial judge set out a detailed recitation of the evidence provided by the Crown’s fourwitnesses, including the video-recorded interview. In doing so, the trial judge reminded herself that her admission of the video-recordedinterview as testimony under s. 715.1 did not end her assessment of the credibility and reliability of that evidence or the weight to be givento it. The trial judge provided a similarly detailed

summary of Mr. Van Deventer’s testimony. [8] The trial judge noted that she must apply R v W.(D.), (SCC), [1991] 1 SCR 742 [W.(D).], becauseMr. Van Deventer had testified in his own defence. Her statement of the law on this point is as follows: The fact that Mr. Van Deventer testified in his own defence invokes the necessity of conducting a W.(D.) analysis. The W.(D.) case set outa framework for weighing the credibility and reliability of opposing witnesses in order to determine whether the Crown has proven theessential elements of the offence beyond a reasonable doubt.

Importantly, the W.(D.) framework does not create an exercise of decidingwhich of two versions of events to believe. A criminal trial is not and must not be a credibility contest, and I am not to simply compareMr. Van Deventer and [M.S.’s] evidence and choose whose evidence I prefer. Rather, the W.(D.) analysis has me walk the following path:If I believe the evidence of Mr. Van Deventer, I must acquit. If I do not believe the evidence of Mr. Van Deventer but I am left in areasonable doubt by it, I must acquit. Even if I am not left in doubt by the evidence of Mr.

Van Deventer, I must still go on to ask myselfwhether, on all of the evidence that I do accept, I am convinced of his guilt beyond a reasonable doubt. There is an interplay between the first two branches of the W.(D.) analysis, and this was discussed by Mr. Justice Layh in an unreported2018 decision, R. v. R.I.G. CRM 35 of 2017. He said: (As read) Importantly, the direction in W.(D.) requires the Court to consider the entire evidence at trial, not just Mr. [R.I.G.’s] testimony in isolationof the Crown’s witnesses.

Accordingly, steps one and two in the W.(D.) analysis are to be undertaken in the context of all of the evidence. In the remainder of that paragraph, Mr. Justice Layh referenced a decision of the Ontario Court of Appeal in R. v. Hoohing, 2007 ONCA577 at paragraph 15: (As read) The evidence of any witness, including an accused, may be believable standing on its own, but when other evidence is given that iscontradictory or casts doubt on the accuracy or reliability of the witness’s evidence, that evidence may no longer be believable or, in thecase of an accused, may no longer raise a reasonable doubt. Mr.

Justice Layh’s decision was upheld on appeal recently in R. v. R.I.G. 2020 SKCA 26. And so I must not consider Mr. Van Deventer’sevidence in isolation. Rather, I consider his testimony, his denial, in the context of the entirety of the evidence. I state again, however, thatI am mindful of avoiding weighing the evidence of [M.S.] as the complainant and Mr. Van Deventer as the accused and deciding which ofthem is more believable. That would be an improper analysis and would take me off the path laid in W.(D.). [9] The trial judge then turned to evaluating M.S.’s credibility and reliability at length.

After doing so over the course of threepages in the transcript, she concluded as follows: At the end of the day, I have considered the totality of the evidence, particularly that of [M.S.] and Mr. Van Deventer. [M.S.] wasunequivocal that she was sexually touched. She was unequivocal that she was sexually touched by Mr. Van Deventer. She wasunequivocal that the incidents took place in the guest room in the Rosewood home, which would place the offences in the time frame setout in the Indictment. [M.S.] was unshaken in her testimony in relation to the core elements of the offence.

She was both credible and reliable, and I accept herevidence. [10] The trial judge immediately followed this conclusion on M.S.’s credibility and reliability, without any analysis ofMr. Van Deventer’s credibility or reliability, by stating the following: The necessary corollary of this conclusion is that I do not believe and I reject Mr. Van Deventer’s denial. Further, in the context of thetotality of the evidence, particularly that of [M.S.], I am not left in reasonable doubt by Mr. Van Deventer’s denial.

Moving on to the final step of the W.(D.) analysis, on the basis of the evidence that I do accept, am I convinced beyond a reasonable doubtby that evidence of the guilt of Mr. Van Deventer? Yes, I am. In particular, the Crown has proven beyond a reasonable doubt thatMr. Van Deventer is the offender named in the Indictment; that the offence took place in Saskatoon, Saskatchewan, between the dates setout in the Indictment, being February 1st, 2013, and January 31st, 2016; that Mr.

Van Deventer intentionally touched [M.S.] in a sexualmanner. [M.S.] was between 5 and 8 years old at the time of the offence, and so consent is not an issue. In sum, based upon my examination of the totality of the evidence, placed against the backdrop of the applicable legal principles, I haveconcluded that the Crown has proven beyond a reasonable doubt that Mr. Van Deventer sexually assaulted [M.S.] as alleged in theIndictment. [11] Mr. Van Deventer was convicted of sexually assaulting M.S. and was sentenced to three years of incarceration. IV. ISSUES [12] The following issues arise in this matter: (

a) Did the trial judge err in her application of the burden of proof, particularly with regard to her evaluation ofMr. Van Deventer’s credibility? (

b) Did the trial judge err by focussing on form over substance in her analysis? (

c) Did the trial judge err by failing to provide sufficient reasons?

(

d) Was the verdict unreasonable? V. ANALYSIS A. Did the trial judge err in her application of the burden of proof, particularly with regard to Mr. Van Deventer’s credibility? [ 13 ] Mr. Van Deventer submits that the trial judge erred by determining she was required to find that he was not credible as a necessary consequence of finding M.S. to be credible and reliable.

He points to the absence of any analysis of his credibility after the finding that M.S. was credible and reliable and takes particular issue with the trial judge’s statement that “[t]he necessary corollary of this conclusion is that I do not believe and I reject Mr. Van Deventer’s denial”. He argues that this absence of analysis, combined with her use of mandatory language regarding the result that must flow from her findings about M.S.’s testimony, represented a misapplication of the burden of proof.

He further contends that by assessing the complainant’s credibility first, the trial judge engaged in a process that was unfair in relation to the assessment of his own testimony. In

summary, Mr. Van Deventer characterizes the entirety of the trial judge’s analysis as constituting a credibility contest. [ 14 ] The Crown counters this argument by submitting that the decision must be read as a whole. It points to the trial judge’s careful self-instruction, where she twice said that she must avoid a credibility contest. The Crown further notes that the trial judge was not required to give a step-by-step account of conflicting evidence nor was she bound to analyze the evidence in any particular order.

While recognizing the problematic nature of the necessary corollary wording, it contends that a careful reading of the judgment does not reveal that the trial judge found herself bound to disbelieve Mr. Van Deventer as a result of believing M.S. The Crown asserts that the trial judge’s reasons demonstrate that she seized on the substance of the matter and did not err in the manner asserted by Mr. Van Deventer. [ 15 ] The trial judge’s initial general self-instruction on reasonable doubt, credibility, reliability and the treatment of evidence from child witnesses was complete and flawless.

While I do not find her reliance on the excerpt from R v Hoohing , 2007 ONCA 577 , to be ideal, as it is not complete, this does not reveal an error when the judgment is read as a whole. However, the trial judge’s statement that she must reject and disbelieve Mr. Van Deventer’s testimony as a necessary corollary of finding M.S. to be credible and reliable, combined with no other analysis of his credibility, represents an error that necessitates a new trial.

A short expansion on the approach to be applied when an accused’s testimony consists of a bare denial of the sexual activity is warranted in order to explain why I find this to be so. [ 16 ] When I refer to the term bare denial , I do not mean to imply that Mr. Van Deventer did not testify at length or did not provide a significant amount of detail in his testimony.

I use this phrase because it appears to be the common wording used in the jurisprudence to describe a situation where an accused testifies that the alleged sexual activity did not occur. [ 17 ] I start with the well-settled and unchallenged principle that a trial judge’s finding regarding credibility is entitled to significant deference on appeal.

This was recently summarized in R v Dirksen , 2021 SKCA 6 , 398 CCC (3d) 411: [80] … A trial judge’s finding of credibility is a question of fact and is entitled to significant deference upon appeal on the palpable and overriding standard of review: R v Choli , 2019 SKCA 87 at para 52 , and R v R.D.A. , 2015 SKCA 100 at para 6 , 465 Sask R 313. Inherent in a trial judge’s assessment of credibility is an examination of what a witness says along with an evaluation of how he or she says it.

A trial judge is not required to comment on, much less resolve, every inconsistency in the evidence: R v R.A ., 2017 ONCA 714 at paras 44– 46 , 421 DLR (4th) 100 (aff’d 2018 SCC 13 , [2018] 1 SCR 307); R v Mehari , 2020 SKCA 37 at para 33 [ Mehari ] (rev’d 2020 SCC 40 [ Mehari SCC ], without disturbing the general principles set out by the majority). [ 18 ] In conducting a W.(D.) analysis, a trial judge is entitled to examine the credibility and reliability of the Crown witnesses before turning to the credibility analysis for the testimony of the accused: R v C.L.Y. , 2008 SCC 2 at paras 11–12 , [2008] 1 SCR 5 ; R v Vuradin , 2013 SCC 38 at para 21 , [2013] 2 SCR 639 [ Vuradin ]; and R v Ryon , 2019 ABCA 36 at paras 42–46 , [2019] 4 WWR 413 .

This principle is not altered by the fact that the accused’s testimony contains a bare denial. In its recent decision in R v Garford , 2021 ABCA 338 , the Alberta Court of Appeal reiterated that it is not an error in the application of the W.(D.) analysis for a trial judge to assess the credibility of the complainant’s evidence prior to assessing the credibility of the accused’s bare denial. In making that determination, the court stated the following: [29 ] The trial judge described Mr. Garford’s evidence as amounting to “an adamant flat denial”.

A bare denial case can be challenging for a trial judge, because the accused’s evidence on the central issue of whether the sexual acts occurred is necessarily succinct. It matters not whether an accused’s evidence is described as a “strict denial”, a “flat denial”, or a “bare denial”. That is simply shorthand for an accused who denies all of the allegations of criminal activity. [30 ] As a starting point, there are a number of ways a trial judge can fall into error in bare denial cases.

First, as this Court cautioned in CEK [2020 ABCA 2] at para 24, an accused’s denial of all criminal activity cannot be turned into a reason to disbelieve the accused. … [32 ] The corollary to these types of errors is that it does not automatically follow that an accused providing a bare denial of culpability is entitled to an acquittal unless the trial judge can identify and articulate reasons why the denial is rejected. An accused’s denial is ultimately assessed in the context of the whole of the evidence . It would be a perverse misinterpretation of W(

D) to suggest that the mere fact of the accused taking the stand, or otherwise leading defence evidence, is in itself sufficient to raise a reasonable doubt. … [33] No error has been demonstrated. The trial judge disbelieved Mr. Garford’s evidence, to the extent it conflicted with that of the complainant. He accepted evidence which established that the sexual assaults had occurred. [34] Nor do we agree that the trial judge reversed the burden of proof by first concluding that he accepted the evidence of the

complainant. The well-established formula in W(

D) does not conscript a trier of fact as to the order in which the evidence must beassessed. Substance trumps form. Particularly in the case of a bare denial, where it would often be an artificial and fruitless exercise toassess and weigh an accused’s evidence in a vacuum. (Emphasis added) [19] The need to consider all of the evidence at step one of the W.(D.) analysis was aptly described by Fichaud J.A. in R v Lake,2005 NSCA 162, 203 CCC (3d) 316 [Lake]: “The analysis of both the accused’s testimony and the Crown’s evidence is done with fullknowledge of all the evidence that has been adduced at the trial.

The first W.(D.) question does not vacuum seal the accused’s testimonyfor analysis” (at para 22). [20] Despite the inconsequential nature of the sequence of the credibility and reliability analysis, a trial judge must be careful toavoid a credibility contest between the accused and the Crown witnesses. A trial judge cannot simply compare the evidence of an accusedand the evidence of a complainant, or another Crown witness, and then choose which version of events they prefer.

Correspondingly, atrial judge cannot reject an accused’s testimony solely because it is inconsistent with the Crown’s evidence: see R v Hoskins, 2021 SKCA23 at para 98; R v Libertore, 2010 NSCA 82 at paras 11–12, 262 CCC (3d) 559 [Libertore]); and Vuradin at paras 21 and 26. [21] Although trial judges must exercise caution in order to avoid conducting a credibility contest between the complainant and theaccused when performing a W.(D.) analysis, the acceptance of the complainant’s testimony and other evidence that is inconsistent with anaccused’s bare denial can provide a sufficient explanation for the rejection of the accused’s inconsistent evidence: R v J.J.R.D. (2006), (ON CA), 218 OAC 37 (CA) at para 55; R v R.E.M., 2008 SCC 51 at para 66, [2008] 3 SCR 3 [R.E.M.]; and R vR.I.G., 2020 SKCA 26 at paras 74–78.

In making such an assessment, the testimony of the accused must not be isolated for a separateexamination or divorced from the remainder of the evidence: R v Menow, 2013 MBCA 72 at para 23, 300 CCC (3d) 415. These ideas arewell-synthesized by Dewitt-Van Oosten J.A. in R v Redden, 2021 BCCA 230: [81] A court does not assess the evidence of an accused in isolation: R. v. Wanihadie, 2019 ABCA 402 at para. 31.

As a result, there willbe cases where a denial, defences that rely heavily on the testimony of the accused, or hypothesized inferences are rejected outright“based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence”: R. v. D.(J.J.R.)(2006), (ON CA), 215 C.C.C. (3d) 252 (Ont. C.A.) at para. 53, leave to appeal ref’d, [2007] S.C.C.A. No. 69. Thisdoes not mean that the trial judge has erroneously chosen between competing narratives, simply preferring one to the other. To do sowould constitute reversible error.

Rather, it represents a finding that the testimony of the accused cannot stand in light of the cogency ofthe other evidence. [22] Further to this point, in the recent decision of R v G.C., 2021 ONCA 441, the Ontario Court of Appeal found that the trial judgedid not err in considering the evidence of the complainant while assessing the accused’s credibility. In doing so, the Court noted thefollowing: [15] … an accused person is not entitled to an acquittal simply because his evidence does not raise any obvious problems.

His evidencemay be rejected “based on considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence”which may provide “as much an explanation for the rejection of an accused’s evidence as is a rejection based on a problem identified withthe way the accused testified or the substance of the accused’s evidence”: [citations omitted]. [23] The decision in R v C.L.S., 2021 ABCA 147 [C.L.S.], further illustrates the flexibility of the order of the relevant analysis andthe need to consider all of the evidence: [45] It is sometimes thought that the proper approach to applying R v W(D), (SCC), [1991] 1 SCR 742 is to first assessthe defendant’s evidence in isolation from the rest of the evidence and decide whether it is accepted or, if not, whether it gives rise to areasonable doubt.

That way of proceeding is suggested by the sample jury instructions in W(

D) at p 575; R v Ryon, 2019 ABCA 36 atpara 41. However, it [is] now well-established that the formula in W(

D) is not a straightjacket and that the trier of fact may assess adefendant’s evidence in the context of the evidence as a whole: R v Dinardo, 2008 SCC 24 at para 8; Ryon at paras 45–47. (Emphasis added) [24] When an accused’s evidence contains a bare denial of the allegations, a trial judge should consider this denial in the context ofthe evidence of the complainant and, indeed, the evidence as a whole.

As long as the assessment of the entirety of the evidence follows adiscernable pathway through the W.(D.) analysis, a trial judge is permitted to examine the credibility of a complainant in their assessmentof the accused’s bare denial. An accused’s testimony should not be assessed in isolation at the first stage of the W.(D.) test. In order toproperly assess the accused’s denial, a trial judge must be permitted to consider the credibility and reliability of the allegations against theaccused.

In my view, it would be difficult to determine the credibility of a bare denial without also considering the entirety of theevidence. The evidence of the complainant provides the basis for an accused’s denial, so considering one without the other could often bea pointless exercise. [25] A finding of credibility and reliability regarding a complainant’s testimony about the alleged conduct can be the reason forrejecting the testimony of an accused, when considered in the context of the entirety of the evidence.

As long as a trial judge is mindful ofthe burden of proof and the principles from W.(D.), they can reject the accused’s evidence on the basis that the complainant’s evidence isaccepted to the extent that it leaves no room for reasonable doubt.

However, this does not address the issue of whether a finding ofcredibility and reliability for a complainant leads to the necessary corollary that a trial judge must disbelieve the accused. [26] An automatic finding of a lack of credibility for an accused, once the testimony of a complainant is found to be credible andreliable, was determined to be improper by the Nova Scotia Court of Appeal: “The point of W.(D.)’s first question is not to isolate theaccused’s testimony for assessment, but to ensure that the trier of fact actually assesses the accused’s credibility, instead of marginalizingit as a lockstep effect of believing Crown witnesses” (Lake at para 22). [27] The judgment of the Alberta Court of Appeal in C.L.S. further assists in demonstrating the error that arises in this appeal:

[43] … The trial judge disbelieved the appellant’s evidence denying the alleged sexual touching in the bed but that was not because it wasa “bare denial”. As we explained at para 38 above, the trial judge disbelieved the appellant’s evidence on this topic because it conflictedwith the balance of the Crown’s evidence, including the complainant’s. The trial judge gave an array of reasons for finding thecomplainant’s evidence to be compelling, credible and reliable, which it is unnecessary to repeat here.

Ultimately, the trial judge rejectedthe appellant’s evidence and concluded it did not raise a reasonable doubt because it was inconsistent with the complainant’s evidence(and the evidence as a whole) which did establish on the criminal standard that the sexual touching occurred. … [46] Thus, a trial judge is not obliged to find any particular fault with an accused’s testimony in order to convict.

A trial judge may reject adefendant’s evidence, and find that it does not give rise to a reasonable doubt, based on a reasoned acceptance beyond a reasonable doubtof conflicting credible evidence proving the essential elements of the offence: R v JJRD, (2006) (ON CA), 218 OAC37 at para 53 (ONCA); R v Gordon, 2015 ABCA 341 at para 22. [47] That is the approach the trial judge took in this case.

The trial judge did not say, “I reject the accused’s evidence because I accept thecomplainant’s evidence” but rather, “I reject the accused’s evidence because it is inconsistent with the evidence as a whole, including thecomplainant’s evidence, which establishes the accused’s guilt beyond a reasonable doubt”. This approach discloses no reviewable error. (Emphasis added) [28] The implication of paragraph 47 from C.L.S. is that it would be an error of law to automatically reject an accused’s evidencesolely because of the acceptance of a complainant’s evidence.

Finding a complainant to be credible and reliable does not mean that anaccused’s testimony could not also be found to be credible and reliable. In the specific context of this case, finding M.S. to be credible andreliable did not mean that Mr. Van Deventer’s testimony must be disbelieved and rejected. It is that problem that arose in the case at hand.It is worth repeating the words of the trial judge at this point: [M.S.] was unshaken in her testimony in relation to the core elements of the offence. She was both credible and reliable, and I accept herevidence.

The necessary corollary of this conclusion is that I do not believe and I reject Mr. Van Deventer’s denial. Further, in the context of thetotality of the evidence, particularly that of [M.S.], I am not left in reasonable doubt by Mr. Van Deventer’s denial. (Emphasis added) [29] I read the phrase necessary corollary as being equivalent to the imposition of a mandatory outcome at stage one of the W.(D.)analysis once M.S. was found to be credible and reliable.

Despite the trial judge’s otherwise careful and thorough self-instruction, it is myview that she fell into error by determining that she was required to reject Mr. Van Deventer’s bare denial once she found M.S. to becredible and reliable in relation to the alleged sexual activity. This determination did not leave room for an assessment ofMr. Van Deventer’s evidence or the evidence as a whole.

I also note that, at this point, my analysis does not rest on an examination of theadequacy of the reasons, such as was done in R.E.M., where the findings of credibility were challenged on the basis of sparse reasons.Here, the trial judge gave the reason why she found Mr. Van Deventer not to be credible. The trial judge clearly indicated that shebelieved she must, in a lockstep manner, reject and disbelieve Mr.

Van Deventer’s denial once she found M.S. to be credible and reliable.That was an error of law. [30] In arriving at this finding, I am cognizant that an analysis of a trial judge’s reasons on appeal cannot devolve into a quest tofind error. The decision must be read as a whole and the reasons for judgment must not be parsed too finely.

In conducting my analysis, Ihave considered the following caution from the majority of the Supreme Court in R v G.F., 2021 SCC 20, 459 DLR (4th) 375, although itwas provided in a slightly different context: [69] This Court has repeatedly and consistently emphasized the importance of a functional and contextual reading of a trial judge’s reasonswhen those reasons are alleged to be insufficient: [list of eight citations omitted]. Appellate courts must not finely parse the trial judge’sreasons in a search for error: Chung [2020 SCC 8], at paras. 13 and 33.

Their task is much narrower: they must assess whether thereasons, read in context and as a whole, in light of the live issues at trial, explain what the trial judge decided and why they decided thatway in a manner that permits effective appellate review. As McLachlin C.J. put it in R.E.M., “The foundations of the judge’s decisionmust be discernable, when looked at in the context of the evidence, the submissions of counsel and the history of how the trial unfolded”:para. 17.

And as Charron J. stated in Dinardo [2008 SCC 24], “the inquiry into the sufficiency of the reasons should be directed at whetherthe reasons respond to the case’s live issues”: para. 31. … [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. [31] It is the role of an appellate court to read a trial judge’s reasons for judgment in their entirety, in the context of the evidence andthe parties’ submissions. It should not isolate problematic words or sentences and elevate their importance beyond that which they shouldattract. This requirement is well captured by the comments of Mainella J.A. in R v Ramos, 2020 MBCA 111, 457 DLR (4th) 372, aff’d2021 SCC 15: [50] … Language is often open to “multiple

interpretations or characterizations” (Gagnon [2006 SCC 17] at para 19). Therefore, theappellate court should not dissect reasons minutely and must be cautious not to seize on ambiguous language (ibid; see also R v CLY, 2008SCC 2 at para 11). The task of the appellate court is to assess “the overall, common sense meaning, not to parse the individual linguisticcomponents” (Gagnon at para 19).

[ 32 ] Despite this cautious approach on appeal, I am faced with the inescapable conclusion that the trial judge fell into error in the application of the principles from W.(D.). I am not able to conclude that the sentence, “The necessary corollary of this conclusion is that I do not believe and I reject Mr. Van Deventer’s denial”, can be categorized as ambiguous, unfortunate or imprecise wording – the impact of which can be overcome by examining the judgment as a whole. The effect of this statement was central to the trial judge’s assessment of Mr. Van Deventer’s credibility.

In essence, it represented the entirety of her analysis of his credibility. The trial judge erred by finding herself bound to disbelieve Mr. Van Deventer at the first stage of her W.(D.) analysis as a mandatory consequence of having found M.S. to have been credible and reliable. In my view, this was a material error of law. As such, the appeal must be allowed and a new trial ordered. B.

Remaining grounds will not be addressed [ 33 ] None of the other grounds of appeal, in the circumstances of this matter, could potentially lead this Court to grant any remedy other than the ordering of a new trial: R v Schoenthal , 2007 SKCA 80 at paras 27–28 , 299 Sask R 1. This point was properly conceded by Mr. Van Deventer during oral argument. Therefore, given my determination on the first issue, which has resulted in the ordering of a new trial, I will not comment further or address the other arguments raised on appeal. VI. CONCLUSION [ 34 ] The appeal is allowed.

The conviction is set aside and a new trial is ordered. Tholl J.A. Tholl J.A. I concur. Jackson J.A. Jackson J.A. I concur. Ryan-Froslie J.A. Ryan-Froslie J.A.