R v Hoskins, 2021 SKCA 23

Restriction onPublication An order has been made in accordance with s. 486.4(1) of the Criminal Code directing that anyinformation identifying the complainant shall not be published. Court of Appeal for Saskatchewan Docket: CACR3291 Citation: R v Hoskins2021 SKCA 23Date: 2021-02-16Between:Dustin HoskinsAppellantAndHer Majesty the QueenRespondentBefore: Richards C.J.S., Schwann and Tholl JJ.A.Disposition: Appeal dismissedWritten reasons by: The Honourable Madam Justice SchwannIn concurrence: The Honourable Chief Justice Richards The Honourable Mr.

Justice ThollOn appeal from: CRM 7 of 2018 (QB), EstevanAppeal heard: September 11, 2020Counsel: Suzan Wurtz for the Appellant Andrew Davis for the Respondent Schwann J.A. I. Introduction [1] Following a four-day trial before a Court of Queen’s Bench judge, Dustin Hoskins was convicted of sexual assault contrary tos. 271 of the Criminal Code and trafficking in cocaine contrary to s. 5(1) of the Controlled Drugs and Substances Act, SC 1996, c 19.

Hewas acquitted of forcible confinement contrary to s. 279(2) of the Criminal Code: R v Hoskins (3 May 2018) Estevan, CRM 7 of 2018(Sask QB) [Trial Decision]. [2] The charges relate to events that transpired over several days in early October of 2017 involving the complainant, Ms. R.R.,and Mr. Hoskins. As Mr. Hoskins testified in his own defence, the trial turned on the credibility findings of the trial judge. [3] Mr. Hoskins appeals from his conviction on a number of grounds. The focus of his concern is with how the trial judge dealtwith the testimonial evidence of the witnesses. Mr.

Hoskins argues that, in assessing credibility, the trial judge applied an uneven level ofscrutiny to Crown and defence evidence that caused the trial to be unfair and thereby resulted in a miscarriage of justice. Along much thesame theme, Mr. Hoskins also argues the reasons are not sufficient, the trial judge misapplied R v W.(D.), (SCC), [1991]1 SCR 742 [W.(D.)], and that the verdict is unreasonable and cannot be supported by the evidence. [4] For the reasons that follow, I would dismiss Mr. Hoskins’s appeal. II.

Background [5] The facts of this matter are most usefully set out in the following timeline of key events. A. Saturday, September 30, 2017 [6] At 6:00 p.m. on September 30, 2017, Ms. R.R. and a friend went to a bowling alley to celebrate the birthday of a mutualacquaintance. Ms. R.R. testified that she had two double whiskey and coke drinks while at the bowling alley. Around 10:00 p.m., Ms. R.R.and several friends left the bowling alley and went to a bar. While there, Ms. R.R. recalls having a double whiskey and coke and possiblyanother alcoholic drink that had been purchased for her by a friend.

She did not recall speaking to Mr. Hoskins at the bar. Ms. R.R.’s lastmemory of what transpired at the bar was taking a selfie picture of herself in the bathroom. She testified that she has no memory of whathappened thereafter until “waking up” at Chantel Lizuck’s kitchen table. [7] Mr. Hoskins testified that Ms. R.R. had made eye contact with him at the bar. He says he invited her to a hot tub party at afriend’s house and that they left together in his truck. [8] Throughout the course of the evening, and into the wee hours of the next day, Ms. R.R. had been in contact with her fiancé,Mr.

S.S., either by text or phone call. Mr. S.S. could tell from Ms. R.R.’s communications with him that, as the night wore on, she hadbecome increasingly intoxicated. When they spoke at 2:30 a.m., he could tell she was significantly “more drunk”. The battery toMs. R.R.’s mobile device died around 3:00 a.m.

B. Sunday, October 1, 2017 [ 9 ] In the early morning hours of October 1, around 3:10 a.m., Mr. Hoskins and Ms. R.R. left the bar. Although he initially intended to go to a friend’s house with Ms. R.R., Mr. Hoskins picked up Ms. Lizuck and another person by the name of Daniel from Ms. Lizuck’s place of work instead. Ms. Lizuck was a friend of Mr. Hoskins and acquainted with Ms. R.R. The four of them proceeded to Ms. Lizuck’s apartment. As mentioned, the next thing Ms. R.R. could recall was sitting at Ms. Lizuck’s kitchen table drinking vodka and consuming cocaine.

She said this went on until roughly 6:00 a.m. that morning. Ms. R.R. testified that all four of them did cocaine, including herself, even though she was a recovering addict who had not used drugs since the birth of her first child. She recalls Mr. Hoskins taking the cocaine out of his pocket and providing it for everyone’s use. [ 10 ] Mr. Hoskins denied supplying cocaine; in fact, both he and Ms. Lizuck denied there was cocaine at her apartment. [ 11 ] Ms. Lizuck went to her bedroom around 6:00 a.m. followed soon after by Daniel. Thereafter, Ms. R.R. moved from the kitchen to the couch.

She said she felt quite tired. She recalls Mr. Hoskins joining her on the couch and sitting unusually close to her. According to Mr. Hoskins, around 10:30 a.m. or so he arranged for whiskey and cigarettes to be delivered to Ms. Lizuck’s apartment. [ 12 ] Ms. Lizuck testified to waking up around noon. She had received a text message from her daughter to the effect that Ms. R.R. was missing and that her friends and family were looking for her. Ms. Lizuck said she showed the message to Ms. R.R. and then ordered both Mr. Hoskins and Ms. R.R. to leave her apartment. She was certain this happened around noon. Both Ms.

R.R. and Mr. Hoskins testified that it was much later in the afternoon when Ms. Lizuck asked them to leave. According to Mr. Hoskins, the parties remained at Ms. Lizuck’s apartment until late into the afternoon. He recalled leaving for 45 minutes or so in the early afternoon to show his car to a friend but said that he returned. [ 13 ] Mr. Hoskins testified that he had suggested to Ms. R.R. they get a motel room and that she simply nodded in reply. Mr. Hoskins ordered a taxi and he and Ms. R.R. left Ms. Lizuck’s apartment around 4:30 p.m. [ 14 ] According to Ms. R.R., Mr.

Hoskins produced more cocaine and whiskey when they first arrived at the motel. At his urging, she used the cocaine he had produced and had two more alcoholic drinks. Ms. R.R. testified that when she got to the motel room she knew she was in a bad situation but thought it would only get worse if she became defensive or tried to leave. Ms. R.R. testified that she was tired and did not want to have sex with Mr. Hoskins, but did not know what to do. [ 15 ] Ms. R.R. testified that she was tired. When she leaned back, Mr. Hoskins began removing her tights. Ms.

R.R. testified that she did not know how to react to what was happening and that she drifted in and out of consciousness. When she came to, she recalls Mr. Hoskins having rough sexual intercourse with her while at the same time choking her with his hand. She testified that the sexual intercourse between them occurred more than once and that at one point she threw up. [ 16 ] Ms. R.R. said that she tried to retrieve her clothing with a view to leaving the motel room but Mr. Hoskins told her that he wanted to have sex again. According to Ms. R.R., Mr.

Hoskins grabbed her from behind her knees and pulled her towards him whilst she said to him “No, no, no, no”. Mr. Hoskins did not respond to her protestations and once again engaged in sexual intercourse with Ms. R.R. She testified that she felt terrified and had a sunken feeling. [ 17 ] Ms. R.R. testified that she was finally able to get dressed and leave the motel room. As she was leaving, she said to Mr. Hoskins “this is bad”. He did not respond other than to have a sad expression on his face. The motel surveillance camera shows Ms. R.R. leaving the motel room at 2:02 a.m. on Monday, October 2, 2017. C.

Monday, October 2, 2017 [ 18 ] Ms. R.R. arrived home at around 2:45 a.m. She learned that she was the subject of a missing person report and that Mr. S.S. was at the police station dealing with the matter. On hearing of her return, Mr. S.S. immediately returned home where he found Ms. R.R. incoherent, emotional, confused and shaking. He saw bruises on her wrists and knew something was wrong. [ 19 ] The police arrived at Ms. R.R.’s residence shortly after Mr. S.S. returned home. Cst. Kaczmar testified that Ms. R.R. seemed disoriented, reserved, and “out of it”. She described Ms.

R.R. as unhealthy looking with red eyes and very dark circles under them. She did not believe Ms. R.R. was sober. When Cst. Kaczmar had an opportunity to speak with Ms. R.R. privately, she asked her if the sex was consensual. Ms. R.R. hesitated then said it was. Ms. R.R. testified that she did not report the sexual assault to the police at that time because she was extremely fatigued. In her words, she just wanted to have a shower, go to bed and “fix what I fucked up”. D. Tuesday, October 3, 2017 [ 20 ] Ms. R.R. went to the police station on October 3, 2017, to lay a sexual assault complaint against Mr. Hoskins.

Ms. R.R. was taken to the local hospital by the police where she underwent a rape kit examination and had photographs taken of her body. Those photographs depicted extensive bruising. III. Trial decision [ 21 ] The Crown called six witnesses at the trial. Mr. Hoskins testified in his own behalf and called Ms. Lizuck as a defence witness. Over the span of 22 pages in his written decision, the trial judge thoroughly summarized the evidence of all eight witnesses. Mr.

Hoskins does not take issue with the accuracy or thoroughness of the trial judge’s recitation of the testimonial evidence nor does he suggest the trial judge only gave passing, incomplete or inaccurate reference to the defence evidence. [ 22 ] The analysis portion of the Trial Decision followed the trial judge’s

summary of the evidence. Here, the trial judge briefly set

out the law respecting sexual assault, forcible confinement and trafficking in a controlled substance. He understood that the Crown’s caseturned on the credibility of the witnesses. The trial judge specifically referenced W.(D.) and R v C.W.H. (1991), (BCCA), 68 CCC (3d) 146 (BCCA), and the staged process utilized by a trier of fact to resolve credibility and reasonable doubt when anaccused testifies. [23] The trial judge then made the following findings of fact: (

a) Mr. Hoskins’s denial concerning possession of cocaine and not providing any cocaine to Ms. R.R. was not believable; (

b) Ms. R.R. did not consume sufficient quantities of alcohol over a two-day period to account for the state she was in when shefinally returned home on October 2; (

c) Mr. Hoskins provided Ms. R.R. with cocaine at Ms. Lizuck’s apartment and over the next 18 hours; (

d) Mr. Hoskins took advantage of Ms. R.R.’s vulnerabilities, both as a previous addict and because she was 13 years his junior; (

e) Ms. R.R. was reluctant to return home to her partner and her children because of the state she was in; (

f) Ms. Lizuck was not a credible witness and he rejected her testimony with respect to the cocaine use at her apartment; and (

g) Ms. Lizuck knew Mr. Hoskins well enough to know that he was taking advantage of a vulnerable young woman. [24] Based on those findings, the trial judge rejected Mr. Hoskins’s denial that he had shared cocaine with Ms. R.R. both atMs. Lizuck’s apartment and later at the motel room. Turning to the Crown’s evidence, he accepted what Ms. R.R. had said about theevents that had transpired: namely that Mr. Hoskins had prepared lines of cocaine at Ms.

Lizuck’s apartment and at the motel for her use,and that she had consumed the cocaine he had provided, which caused her to become drug impaired over an extended period of time. Thetrial judge found Ms. R.R.’s “description of the … effect that the substance had on her that day and her previous experience as a drugaddict” particularly compelling. [25] As to the sexual assault allegation, the trial judge made the following findings of fact or inferences drawn from those findings(at para 78): (

a) Mr. Hoskins intentionally took Ms. R.R. to the motel to, as he put it, “have his way with her”; (

b) Ms. R.R. did not consent to engage in sexual activity with Mr. Hoskins. Even if Mr. Hoskins had believed the sexualintercourse was consensual when they first arrived at the motel, Ms. R.R. clearly withdrew her consent when she said “No, no, no, no” toMr. Hoskins as he grabbed her behind the knees and pulled her toward him to re-engage in sexual intercourse; (

c) Ms. R.R. had numerous bruises on her body that were consistent with non-consensual sexual activity; and (

d) Ms. R.R. was confused and in a disoriented state when she arrived home in the early morning hours of October 2. [26] Given those findings of fact, the trial judge rejected Mr. Hoskins’s assertion that the sexual activity was consensual and wenton to conclude that his depiction of the events did not give rise to a reasonable doubt. In contrast, the trial judge found Ms. R.R. to be acogent and compelling witness whose testimony was corroborated by the bruising to her body and the physical and emotional state shewas in when she returned home the following day. He concluded as follows on the sexual assault charge: [79] In

summary, I do not believe Mr. Hoskins’s version of the events that occurred in the motel room. On the other hand, I do believe[Ms. R.R.’s] version of the events that occurred in the motel room, corroborated by the bruising on her body and the state that she was inwhen she arrived at her home and in the following days. Not only do I not believe Mr. Hoskins, but I also find nothing in his evidencewhich raises a reasonable doubt that he committed the sexual offence charged. Finally, I am satisfied based on the evidence which I doaccept, that Mr. Hoskins applied force intentionally to [Ms.

R.R.] without her consent, that he knew that she was not consenting, and thatthe assault was of a sexual nature. I therefore find Mr. Hoskins guilty of the offence of sexual assault against [Ms. R.R.] under s. 271 ofthe Criminal Code. [27] Finally, the trial judge acquitted Mr. Hoskins on the forcible confinement charge because the Crown had not proven thatoffence beyond a reasonable doubt. IV. analysis [28] Mr. Hoskins advances the following four grounds of appeal that he asserts give rise to an error of law: (

a) uneven scrutiny of Crown and defence evidence; (

b) insufficient reasons; (

c) failure to properly apply W.(D.); and (

d) unreasonable verdict. [29] He characterizes each as an error of law, reviewable on the standard of correctness. I will deal with these arguments in turn. A. Uneven scrutiny of Crown and defence evidence

[30] Mr. Hoskins argues the trial judge erred by applying a more stringent standard of scrutiny to his evidence than he did toMs. R.R.’s and, for that reason alone, he submits that his conviction cannot stand because he did not receive a fair trial. He relies on theNova Scotia Court of Appeal decision in R v D.D.S., 2006 NSCA 34, 207 CCC (3d) 319, for the proposition that uneven scrutiny can arisewhere there is no critical assessment of inconsistencies in the Crown’s case. [31] On a more specific level, in his factum, Mr.

Hoskins points to numerous instances where the trial judge allegedly “failed tocritically assess R.R.’s evidence in any significant way leading to a lack of scrutiny on her evidence, while the Appellant’s evidence wasrejected almost outright”. Each of those inconsistencies is discussed in detail below. [32] Mr. Hoskins goes on to suggest that the trial judge was prejudiced by the photographs of bruising on Ms. R.R.

Thesephotographs, he argues, led the trial judge to conclude that the bruising could only have come from non-consensual sex and that he hadrejected any other rational explanation for them because the narrative did not conform to the Crown’s theory of the case. Mr. Hoskins saysthe trial judge took a similar, laser-focussed approach with respect to the evidence about the state Ms. R.R. was in when she arrived home.The trial judge found Ms. R.R.’s disoriented state was due to prolonged drug use but, as Mr. Hoskins argues, that finding ignores theevidence of Cst. Kaczmar who had testified that Ms.

R.R.’s condition could have been due to a lack of sleep. [33] In sum, Mr. Hoskins argues the trial judge erred by glossing over the problematic areas of the Crown’s case that, takentogether, should have given rise to reasonable doubt. In contrast to a rather lenient and forgiving approach with regard to Ms. R.R.’sevidence, Mr. Hoskins suggests the trial judge readily rejected defence evidence without giving it serious and meaningful consideration. 1. Applicable legal principles [34] Mr.

Hoskins’s argument is grounded on what the majority in R v Mehari, 2020 SKCA 37, 387 CCC (3d) 147 [Mehari CA], hadto say about this type of error: “Where a trial judge has applied different standards to the assessment of the evidence, the accused has notreceived a fair trial and there has been a miscarriage of justice, even if the evidence is capable of supporting a conviction …” (at para 29).Mehari CA was appealed to the Supreme Court (R v Mehari, 2020 SCC 40 [Mehari SCC]), where, in a brief, two-paragraph decision,Martin J. overturned the majority decision, stating the following: [1] The Court– This Court has not decided whether uneven scrutiny, if it exists, can amount to an independent ground of appeal or aseparate and distinct error of law.

In any event, we see no error in respect of this argument that would have warranted intervention onappeal. [2] Accordingly, the appeal is allowed and the matter remitted to the Court of Appeal to decide the grounds of appeal the majority did notaddress. [35] Mr. Hoskins’s appeal to this Court was argued before Mehari CA was heard in the Supreme Court. Both sides argued thisappeal on the basis of the legal principles then in existence. Since I conclude Mr.

Hoskins’s uneven scrutiny argument cannot succeed onthe existing case law, I find it unnecessary to resolve the issue of whether uneven scrutiny should be recognized as an independent groundof appeal or a distinct error of law. Even if the law is cast or understood in the way most favourable to Mr.

Hoskins, i.e., as recognizinguneven scrutiny as an independent ground of appeal or a distinct error of law, his argument on this front still fails. [36] The extant case law indicates that an allegation of uneven scrutiny of trial evidence is an allegation that the trial judgecommitted a methodological error that resulted in an accused not receiving a fair trial and, hence, a miscarriage of justice: Mehari CA atparas 29, 32 and 87 and R v Wanihadie, 2019 ABCA 402 at para 36, 99 Alta LR (6th) 56.

The precise nature of this error was recentlyaffirmed by this Court in R v M.G.S., 2021 SKCA 1 [M.G.S.]: [41] … The majority in Mehari CA referred to R v Wanihadie, 2019 ABCA 402 at para 36, 99 Alta LR (6th) 56, as authority for theproposition that “in order to succeed on the uneven scrutiny ground, an appellant is required to identify something sufficiently significantin the reasons or record to establish that the trial judge employed a faulty methodology in deciding credibility” (Mehari CA at para 32,emphasis added).

The dissent made the same point at paragraph 87, with reference to the following passage from R v Owen (2001), (ON CA), 150 OAC 378 (CA): [3] While an appellate court must defer to a trial judge’s assessment of credibility, intervention is appropriate where a trial judge’s reasonsreflects [sic] legal error in the method used to assess credibility. In particular, this court has held that the application of a stricter standardof scrutiny to the evidence of an accused than that used to assess the evidence of Crown witnesses amounts to legal error justifyingappellate intervention: see R. v.

C (J.) (2000), (ON CA), 145 C.C.C. (3d) 197, R v. C.S., [1999] O.J. No. 2200 and R. v.Gostick (1999), (ON CA), 137 C.C.C. (3d) 53. (Emphasis added by the dissenting judge in Mehari CA) See also R v Dirksen, 2021 SKCA 6 at para 81 [Dirksen]. [37] The application of a stricter standard of scrutiny to the trial evidence of either the prosecution or the defence amounts to a legalerror that justifies appellate intervention.

The standard of review for an error of this nature is correctness: R v C.A.M., 2017 MBCA 70 atpara 33, 354 CCC (3d) 100 [C.A.M.]; R v Radcliffe, 2017 ONCA 176 at paras 23–26, 347 CCC (3d) 3 (leave to appeal to SCC refused,) [Radcliffe]; and M.G.S. at para 42. [38] The Court of Appeal for Ontario in Radcliffe commented on the difficulty presented by this type of argument.

At its core, anallegation of uneven scrutiny brings into question the credibility findings of a trial judge for which appellate intervention is warranted onlywhere the impugned findings are the product of a palpable and overriding error (see para 26): also see R v Gagnon, 2006 SCC 17 atpara 20, [2006] 1 SCR 621 [Gagnon]; Mehari CA at para 28; and R v Choli 2019 SKCA 87 at para 52. [39] A useful

summary of the applicable principles is found in Radcliffe:

[23] First, as the appellant recognizes, this is a difficult argument to make successfully. The reasons are twofold. Credibility findings arethe province of the trial judge. They attract significant appellate deference. And appellate courts invariably view this argument withskepticism, seeing it as little more and nothing less than a thinly-veneered invitation to re-assess the trial judge’s credibility determinationsand to re-try the case on an arid, printed record: R. v. Howe (2005), (ON CA), 192 C.C.C. (3d) 480 (Ont. C.A.), atpara. 59; R. v.

George, 2016 ONCA 464, 349 O.A.C. 347, at para. 35. [24] Second, to succeed on an uneven scrutiny argument, an appellant must do more than show that a different trial judge assigned thesame task on the same evidence could have assessed credibility differently.

Nor is it enough to show that the trial judge failed to saysomething she or he could have said in assessing credibility or gauging the reliability of evidence: Howe, at para. 59. [25] Third, to succeed on the argument advanced here, the appellant must point to something, whether in the reasons of the trial judge orelsewhere in the trial record, that makes it clear that the trial judge actually applied different standards of scrutiny in assessing theevidence of the appellant and complainant: Howe, at para. 59; George, at para. 36. [26] Fourth, in the absence of palpable and overriding error, there being no claim of unreasonable verdict, we are disentitled to reassessand reweigh evidence: George, at para. 35; R. v.

Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 20. (Emphasis in original) [40] Several points can be drawn from Radcliffe and the cases that have followed it. First, an appellate court must guard againstconflating an assertion of uneven scrutiny of the evidence “with a challenge to the actual findings of fact made by the trial judge or thereasonableness of the verdict” (Mehari CA at para 88). Second, an appellate court must stay within its lane and not “overstep its role andretry the case” or assess the evidence afresh (C.A.M. at para 36).

Third, an appellate court must guard against a veiled attack on thesufficiency of the reasons for – as noted in Radcliffe – it is not enough for an appellant “to show that the trial judge failed to saysomething she or he could have said in assessing credibility or gauging the reliability of evidence …” (at para 24). See also R v Howe(2005), (ON CA), 192 CCC (3d) 480 (Ont CA) at para 59 [Howe].

As discussed below, arguments about insufficientreasons must be assessed against the considerable body of law that has evolved on that topic. [41] An appellant who advances this line of argument must do more than show how credibility could have been assessed differentlyor point to a thin credibility analysis as evidence of uneven scrutiny.

Rather, an appellant must show something in the reasons or therecord “that makes it clear that the trial judge actually applied different standards of scrutiny in assessing the evidence of the appellant andcomplainant” (Radcliffe at para 25): also see R v Phan, 2013 ONCA 787 at para 34, 313 OAC 352 [Phan], and Howe at para 59. Anappellant must show there is “something sufficiently significant that the heavy door of deference is opened to the domain of the trialjudge, where credibility is assessed” (Phan at para 34): also see C.A.M. at para 34.

Finally, an appellant’s assertion is subject to thiscaution: “if a judge’s credibility assessment can be reasonably supported by the record, it cannot be interfered with it on appeal” (C.A.M.at para 37). 2. Application to the facts [42] In his factum, Mr. Hoskins points to numerous examples said to reveal how the trial judge “failed to critically assess R.R.’sevidence in any significant way leading to a lack of scrutiny on her evidence, while the Appellant’s evidence was rejected almostoutright”. I will deal with each example in turn. a. Ms. R.R.’s blackout [43] Ms.

R.R. testified that she had a “blocky” memory and had memory gaps after she took the selfie at the bar. Mr. Hoskins claimsthe trial judge failed to assess the believability of Ms. R.R.’s testimony given the small amount of alcohol that she had consumed. He saysthe trial judge should have approached this evidence skeptically because Ms. R.R. had only had a couple of whiskeys at the bowling alleyand bar before she inexplicably blacked out around 10:30 p.m. [44] Mr. Hoskins similarly challenges the trial judge’s failure to critically analyze Ms. R.R.’s testimony about her cocaine use.

Heframes his argument in this fashion in his factum: [62(ii)] … There was no evidence before him about an offer to do cocaine. R.R. did not want to admit that she even saw the Appellant atthe bar, and she was clearly not too intoxicated from the couple drinks she had to not remember whether she had seen him.

If the trialjudge’s reasoning is to make sense then he would have had to find that R.R. was too intoxicated to know what she was doing when sheencountered the Appellant, or he is correct and the offer to do cocaine was what led R.R. to leave the bar with the Appellant, in which casethe trial judge should have had concerns about her credibility given her unwillingness to provide complete evidence. There was no criticalanalysis on this point. [45] Mr. Hoskins’s argument assumes Ms. R.R. would not have been impaired after consuming three, possibly four, doublewhiskeys on an empty stomach. While Mr.

Hoskins may take issue with Ms. R.R.’s tolerance for alcohol, his argument is based on thesupposition that the amount of alcohol she said she had consumed could not have caused her memory to become blocky or for her toseriously lose her inhibitions with regard to cocaine use later that night. With respect, this argument is a speculative theory that the trialjudge did not accept. In any event, there was direct evidence from Ms. R.R. about how much she had to drink plus confirmatory evidencefrom Mr. S.S. who testified that she had become increasingly intoxicated as the evening wore on. Ms.

R.R. had also testified that she was arecovering addict, a fact that seemed to resonate with the trial judge. [46] Evidence of the amount of alcohol Ms. R.R. had consumed, coupled with evidence about her consumption of cocaine later thatevening, produced a plausible explanation for her poor memory. Simply pointing to Ms. R.R.’s blocky memory does not demonstrateuneven scrutiny of the evidence. What it demonstrates, rather, is that the trial judge did not accept Mr. Hoskins’s argument that Ms. R.R.should not be believed because there was no basis for her to have had a blocky memory. Ms.

R.R.’s susceptibility to Mr. Hoskins’s offerof cocaine was explained by her admission that she was a recovering addict along with her rather candid testimony that she would not callsomeone to pick her up when cocaine was available.

b. Rejection of Ms. Lizuck’s evidence [ 47 ] Mr. Hoskins takes issue with the trial judge’s rejection of Ms. Lizuck’s testimony, which, he argues, was only rejected because “it did not conform to his finding of fact”. As I understand this argument, Mr. Hoskins suggests the trial judge purposefully rejected Ms. Lizuck’s testimony because it did not meld with the narrative that he had adopted, i.e., that Ms. R.R. had consumed a considerable amount of cocaine at Ms. Lizuck’s apartment, which caused her to fall into a drug-induced stupor and facilitated Mr.

Hoskins’s ability to, as the trial judge put it, “have his way with her” later at the motel. [ 48 ] Under cross-examination, Ms. Lizuck admitted that she was aware the police had knocked on her patio door in the early morning hours of October 2. She declined to answer the door. Nor did she tell the police later that day when she returned their telephone call that Ms. R.R. had been at her apartment. Further, when Ms. R.R.’s friend had approached Ms. Lizuck about Ms. R.R.’s whereabouts, Ms. Lizuck conceded she had told that person that she had not seen Ms. R.R. According to Ms. Lizuck, she wanted no

part in whatever was going on. [ 49 ] It is trite law that a trial judge may accept some, all or none of a witness’s testimony. In this case, the trial judge rejected Ms. Lizuck’s testimony about the presence and use of cocaine at her apartment because he found her completely unbelievable. The trial judge explained his reasoning in these terms: [77] I have also considered that evidence of Ms. Lizuck to the effect that no one consumed cocaine at her home in the early hours of October 1, 2017, after Mr. Hoskins picked her up at work. I do not believe Ms. Lizuck. In my view, the actions of Ms.

Lizuck in failing to inform anyone that [Ms. R.R.] was in her home and in the company of Mr. Hoskins is best explained by the fact that she did not want anyone to know that Mr. Hoskins had brought cocaine to her home and shared it with others. This would explain her statement that she did not want people coming into her home and why she did not answer to the knocking on her patio door when the police attended at 1:00 in the morning. It was not because she did not want to be part of [Ms. R.R.’s] situation, as she claimed. I am of the view that Ms.

Lizuck did not want anyone to know that this missing person had been at her place for most of the day in a drug-induced stupor, least of all the … police. In short, I find Ms. Lizuck’s conduct in refusing to disclose to [Ms. R.R.’s] friends and family that she had been in her company for most of the period that she was considered missing to be nothing short of despicable. Ms. Lizuck knew Mr. Hoskins well enough to know that he was taking advantage of a vulnerable young woman the same age as her own daughters. [ 50 ] Respectfully, the rejection of Ms.

Lizuck’s evidence does not amount to uneven scrutiny of the evidence. The trial judge explained why he did not accept her evidence. His explanation had a rational basis to it. The mere fact the trial judge found Ms. Lizuck’s actions despicable – albeit a rather harsh epithet – does not amount to uneven scrutiny of the evidence. c. The testimony of the cab diver and motel clerk [ 51 ] Next, Mr. Hoskins points to inconsistencies between Ms. R.R.’s evidence and that of the cab driver and motel clerk, which he says the trial judge failed to consider. [ 52 ] Ms.

R.R. testified that when she got into the taxi she did not know where it was going yet somehow assumed the driver was going to take her home. She claimed to have engaged in small talk with him. When Ms. R.R. realized the driver was not taking her home, she says she became fearful and scared. She was coming down from the drugs and found the process exhausting. She described it as a “high–low feeling”: on the one hand she felt hungover yet, on the other hand, she felt alert and awake from the cocaine. [ 53 ] Mr. Dosanjh, the cab driver, testified that it was Mr. Hoskins who had done the talking and that Ms.

R.R. had not been overly talkative. He could not recall if either of them was impaired. [ 54 ] Under cross-examination, Mr. Dosanjh confirmed that Ms. R.R. had little to say. When pressed on whether she was intoxicated, this exchange took place: Q Okay. Now, you said to my friend earlier … that you’ve driven lots of intoxicated people? A M-hm. Q You remember if it’s an intoxicated person that you drove, right? A I wasn’t understanding your question? Q If it was somebody that you drove that was super intoxicated -- A Yeah. Q -- you would remember that you had driven an intoxicated person, right?

A Yeah, 90 percent we can judge them -- Q Okay. A -- while talking, or but 10 percent, like, when they are sitting at the back, we don’t know, like, are they intoxicated or no. Q Okay. A But 90 percent when they over-talk or they behave differently, like way too much interaction with us, then we can judge. But it was a little small ride, and it was not much communication. I don’t think so I can judge in that time . Q Okay. So you couldn’t say for certain -- I guess let me back up. So you’re saying if it was an intoxicated person, you wouldn’t necessarily know?

A In 2, 3 minutes, I don’t think so I can judge somebody sitting, like, behind me that it’s intoxicated or no . (Emphasis added) [ 55 ] With respect, the trial judge was alert to minor discrepancies between the evidence of Ms. R.R. and that of Mr. Dosanjh. A fair inference is that the trial judge found his testimony unhelpful. There was some conversation between Ms. R.R. and Mr. Dosanjh, albeit

minimal. Mr. Dosanjh testified that it was a short, two- to three-minute ride and he was thus unable to judge whether someone sitting behind him – who did not speak much – was intoxicated. Further, Mr. Dosanjh stated repeatedly that his memory of the event was faulty and that he did not know if Ms. R.R. was intoxicated. Finally, Ms. R.R. did not say she was intoxicated when she was in the cab; she said she was feeling both awake and alert from the drugs but also exhausted. Mr. Dosanjh’s testimony does not detract from her testimony in that respect. At best, these so-called inconsistencies were minor discrepancies in their evidence, which was captured in the trial judge’s

summary of the evidence. [ 56 ] Mr. Hoskins next points to Ms. R.R.’s interactions with Mr. Patel, the motel clerk. He puts it this way: [62(v)] R.R. states she does not remember anything from the lobby of the Motel 6. In the video she presents as looking perfectly fine – able to stand on her own two feet and conversing with the Motel 6 employee. In contradiction to her evidence that she felt scared and fearful, she is seen leaning against the Appellant to help him fill out the card.

At one point she is seen brushing the Appellant’s jacket sleeve for a prolonged period of time, which accords with his version of events (that she was wearing his jacket and her hair was all over it) and not with her version of events … . [ 57 ] There are two problems with Mr. Hoskins’s argument. First, whether Ms. R.R. was wearing Mr. Hoskins’s jacket or not is collateral to the issue of consent. Second, and perhaps more importantly, Mr. Patel’s testimony did not touch on whether Ms. R.R. was in a drug-induced stupor. All Mr. Patel could say was that neither Ms. R.R. nor Mr.

Hoskins was intoxicated by alcohol. [ 58 ] However, as the Crown points out, Ms. R.R. did not testify to being drunk at this juncture; in fact, her evidence was that her last alcoholic drink had been consumed well beforehand. Ms. R.R. testified that, when she got to the motel, it was “like the end of alcohol” – she had a “sick hangover feeling but [was] feeling alert and awake from cocaine kind of mixed together”.

As the Crown notes in its factum, “The failure of people who had relatively minimal contact with R.R. to observe that she was still experiencing the effects or after- effects of cocaine and alcohol does not rais e a material inconsistency, nor was the trial judge’s failure to accede to the appellant ’ s argument on that score indicative of uneven scrutiny”. I agree with the Crown’s assessment of the matter. In any event, I see no inconsistency between the evidence of Ms. R.R. and Mr. Patel nor with how the trial judge approached their evidence. As I see it, Mr.

Hoskins’s complaint is that the trial judge failed to specifically comment on this piece of evidence in assessing Ms. R.R.’s credibility. d. Motel video [ 59 ] At trial, Ms. R.R. was shown a video of her and Mr. Hoskins in the motel lobby when they checked in at 4:24 p.m. on October 1, 2017. Ms. R.R. could not recall being in the lobby or talking with the clerk, Mr. Patel. The video depicts Ms. R.R. standing next to Mr. Hoskins. As discussed in the appellant’s factum, she appears to exhibit a calm demeanor: for example, she is able to stand on her own two feet and converse with Mr. Patel and Mr. Hoskins.

On a superficial level, this video seems to be in contrast with Ms. R.R.’s testimony that she felt scared and had a sunken feeling in her stomach. At one point, the video shows her leaning against Mr. Hoskins and then brushing his jacket sleeve for a prolonged period, which, according to Mr. Hoskins, accords with his version of events and not hers. Mr. Hoskins characterizes the video as irrefutable evidence that Ms. R.R.’s version of events was fabricated. [ 60 ] Ms. R.R. was vigorously cross-examined about this video: Q Okay. And your evidence is that at this point, you were fearful?

A I just know how I am, and it’s just hard. It may be hard to, like, to explain, but I mean I know. Like, looking at myself in this video and seeing myself walking and talking and doing things is scary because I don’t -- I wasn’t there. Q Would you agree with me that you could have gone behind the counter if you were scared of Dustin? A I could have done a lot of things different. Q That’s true. A And I didn’t. Q But in this situation, you could have just slided around the counter, right? A I could have. … Q MS.

WURTZ [defence counsel]: Do -- do -- sorry, would you agree with me that you’re leaning in to Dustin, close to him there? A To read whatever it was, yeah. Q Okay. Do you recall reading whatever that was? A No. I don’t know what anything said in there. Q Okay. But you would agree with me that’s you in the video leaning in against Dustin? A Yes. … Q MS. WURTZ: … I don’t know if you watched the last couple of seconds, but how would you describe what you’re doing there? A That is a completely normal thing for me to do. I have dogs and people who have hair on them.

I’m not -- honestly, that doesn’t -- Q Would you -- A -- wouldn’t surprise me to see that of myself doing that. Q Okay. Would you agree with me that you’re brushing something off his sleeve? A I would have assumed it would have been dog hair, cat hair or something. Q Okay. And if I suggested to you that was your hair from wearing his jacket earlier that night? A I don’t know. Q Okay. But you are agreeing that you’re brushing something off the sleeve there? A Yeah. … Q Okay. So based on your evidence right now, you’re saying in this entire scenario, you’re fearful?

A I felt fearful. I felt scared and uncertain. Q Okay. Felt scared of the individual beside you? A Just of the situation. I didn’t know what was going to happen. I didn’t know anyone. I didn’t realize what was going on. I mean I don’t -- I don’t even remember anything being there. Like, how do I mean look at myself doing something and not knowing what the fuck? But why? … Q Is it -- is it usual for you to leave the thing that scares you? A I think it’s more common for me to sit in it than act upon it. I’m not one to jump up and stand up for myself.

I’m more of a sit in the corner and cry about it for a while. [ 61 ] The video was played a number of times at trial. It was admitted into evidence and, as such, it was up to the trial judge to determine what to make of Ms. R.R.’s behavior in the video and how much weight, if any, to give it. The fact that he did not interpret Ms. R.R.’s demeanor depicted in the video as undermining her testimony about the lack of consent does not mean the trial judge took a relaxed and uncritical approach to Ms. R.R.’s evidence. [ 62 ] Like much of the other evidence, the trial judge discussed the video in his

summary of the facts. True, he did not dwell on it or, for that matter, examine it in the analysis portion of his judgment. Nor did he say if this video undermined his confidence in Ms. R.R.’s believability. That said, failure to grapple with a piece of evidence or, in this case, discuss whether the video undermined the credibility of Ms. R.R.’s testimony does not, on its own, amount to uneven scrutiny.

While it would have been preferable for the trial judge to have addressed the video evidence in a more head-on fashion, on the evidence before him it was open to the trial judge to find that the video was not incompatible with Ms. R.R.’s testimony that she was in a drug-induced stupor or that she did not consent to having sex with Mr. Hoskins after they entered the motel room. Since the trial judge’s assessment of Ms. R.R.’s credibility on this point “can be reasonably supported by the record, it cannot be interfered with on appeal” ( C.A.M. at para 37 ). e.

Bruising and length of time spent in the motel room [ 63 ] Ms. R.R. described the sexual encounter with Mr. Hoskins as rough sex. She recalled being choked when Mr. Hoskins had his hand on her neck and him grabbing her by the legs and pulling her toward him. Ms. R.R. testified that her body was sore for a considerable period of time afterwards and that she had bruises everywhere. The police took photographs of Ms. R.R. on October 3 at the hospital. Those photographs depicted bruising on various parts of Ms. R.R.’s body, except on her neck. Ms.

R.R. testified that she did not have any of the bruises before the incident with Mr. Hoskins. [ 64 ] In his factum, Mr. Hoskins argues that “[w]hile R.R. presented at the hospital with a number of bruises on her pale skin there were no bruises on her throat or behind her knees”. Because he pointed this out in oral argument at trial, Mr. Hoskins is critical of the trial judge for not squarely addressing this specific point. He suggests this omission is another example of the trial judge’s failure to critically assess Ms. R.R.’s evidence.

He also argues that the photographs of the bruising – such as they were – prejudiced the trial judge’s thinking. [ 65 ] With respect, the photographs were not prejudicial; they were strong independent corroborative evidence of Ms. R.R.’s testimony about rough, non-consensual sex. If they were prejudicial to Mr. Hoskins, as now suggested by him on appeal, defence counsel could have objected to their admission at trial. I see no such objection on the record. The trial judge found the bruising consistent with Ms. R.R.’s allegation of non-consensual sex.

Moreover, the photographs were meant to be corroborative, not dispositive, and it was unnecessary for Ms. R.R. to have had bruising in specific locations on her body for the trial judge to have believed her: [78] … In the circumstances, I find that Mr. Hoskins did not have the consent of [Ms. R.R.] to engage in the sexual activity in question. In addition, should Mr. Hoskins have believed that he did have [Ms. R.R.’s] consent when the sexual activity started, I am satisfied that [Ms.

R.R.] did, in fact, verbally tell him “No, no, no, no” when he grabbed her behind the knees and pulled her toward him to re-engage in rough sexual intercourse at a time when she said she was already extremely sore . I am further of the view that the numerous bruises found on [Ms. R.R.’s] body are consistent with the sexual activity not being consensual. (Emphasis added) [ 66 ] Mr. Hoskins also argues that “[t]he amount of time R.R. stayed in the motel room is inconsistent with somebody who was sexually assaulted shortly after she first got to the room”.

Regrettably, this submission seems to rely on an outdated myth about how victims of sexual assault should behave. The trial judge believed Ms. R.R.’s explanation concerning how tired she was and that she had blacked out periodically. f. Ms. R.R.’s interactions with Cst. Kaczmar [ 67 ] Ms. R.R. spoke with Cst. Kaczmar shortly after she returned home in the early morning hours of October 2. Constable Kaczmar asked Ms. R.R. if the sex with Mr. Hoskins had been consensual. Ms. R.R. said it was. In spite of that admission, Ms. R.R. attended the police station the following day with an allegation that Mr.

Hoskins had sexually assaulted her. Mr. Hoskins contends the trial judge failed to address this key evidence and chalked up Ms. R.R.’s confused and disoriented state to drugs and alcohol, even though Cst. Kaczmar had agreed with defence counsel under cross-examination that the state Ms. R.R. was in could have been from lack of sleep. He argues “the trial judge gave no credence to the officer’s comments”. [ 68 ] Clearly, Cst. Kaczmar’s testimony was important evidence that – on its face, at least – undermined the Crown’s case.

As such, it would have been preferable for the trial judge to have examined this evidence more closely and discussed what, if any, weight he gave to it. That said, the trial judge was obliged to consider Cst. Kaczmar’s testimony as a whole, which also included the following exchange: Q Okay. What -- what were your observations in respect to her sobriety?

A I do not believe that she was sober, red eyes, very dark circles under her eyes. Still to this day I can picture the dark circles under her eyes. I’ve never seen such evident and obvious dark circles underneath somebody’s eyes . She did not look healthy at all and seemed very disorientated and out of it, very reserved and not okay . … Q Yeah. And in speaking to [Ms. R.R.], what were your observations without telling us what she said? A She just seemed very, again, disorientated and reserved. Like, she wasn’t very obviously talkative or to -- she was cooperative, but she was not very talkative.

She just seemed out of it. … Q Okay. And why did you give her your business card, given that she’d sort of -- she’d already declined ? A Based on the circumstances and what I had known, I guess, about the complaint, I just had a feeling that there was more to it that she didn’t want to go to at that time . Q And you said, If something had gone on. What sort of something did you mean? A Any type of assault or sexual assault . Q Yeah. Was there a particular reason that you described what happens in a sex assault investigation to her?

A Based on what she said to me when I went there to check how she was. (Emphasis added) [ 69 ] With respect, there is support in the record for how the trial judge dealt with Cst. Kaczmar’s evidence and his implicit conclusion that Ms. R.R.’s initial statement to her should not be given much, if any, weight. g. Outright rejection of Mr. Hoskins’s evidence and irrational inferences [ 70 ] Mr. Hoskins argues that, in contrast to the way in which the many problematic areas of Ms. R.R.’s evidence were brushed over, the trial judge all too readily rejected his evidence.

He points to certain details in his testimony – such as his knowledge that Ms. R.R. was a “whiskey girl” and had a foot phobia – to demonstrate his superlative recollection and enhance his believability. While Ms. R.R.’s evidence on these points was less precise than that of Mr. Hoskins, and her memory was admittedly blocky compared to that of Mr. Hoskins, this evidence is largely collateral detail that was not really in dispute at trial and did not go to the core issue of consent. [ 71 ] Furthermore, the trial judge had accepted that Ms.

R.R.’s memory was, as she put it, blocky, and that she could not recall everything that had happened. In any event, her lack of precise recall about a foot incident and saying she was a whiskey girl did not contradict her testimony about the core events of non-consensual sex and the version of events the trial judge accepted. As I see it, there was no need for the trial judge to have mentioned this evidence. [ 72 ] Mr. Hoskins also alleges that glossing over of the problematic parts of Ms.

R.R.’s testimony caused the trial judge to make f indings of fact that were not rooted in the evidence and that he did so simply to give effect to the Crown’s narrative of what happened. He points to the finding that Ms. R.R. was obviously reluctant to go home in the state she was in yet claims Ms. R.R. never testified to a reluctance to going home. [ 73 ] Mr. Hoskins’s argument ignores the fact that, given the overall context of what had occurred that night, along with his other findings of fact, it was open to the trial judge to draw this inference. In any event, there was some support for it from Ms.

R.R. herself: Q But you didn’t ask for anybody’s phone to call for a ride or anything? A Not when there was drugs on the table when I’m struggling with addiction. I -- you know, it’s … … Q And at that point, did you tell [the police] what had happened in the hotel? A No, I didn’t. Q Why not? A I wanted to shower. I just didn’t want to deal with it. I wanted to go to bed and fix what I fucked up. Q And when you say fix -- fix what you did, what do you mean? A Being gone. Like, I felt guilty obviously just being away and being away from my kids, so I just wanted to go to bed and start over. [ 74 ] Ms.

R.R. did not need to specifically say something along the lines of, “I was reluctant to go home”, in order for the trial judge to draw an inference that she was, in fact, reluctant to go home. His finding on this point does not reveal uneven scrutiny of the evidence. [ 75 ] Finally, Mr. Hoskins takes issue with his conviction on the drug charge in the absence of any corroborative or forensic medical evidence to support it. While the cocaine charge was not corroborated by forensic evidence, it did not have to be. There was evidence from Ms.

R.R. – whom the trial judge believed – along with other witnesses who had observed Ms. R.R.’s disoriented state. 3. Conclusion on uneven scrutiny argument [ 76 ] To succeed with an argument of uneven scrutiny, it is not enough for an appellant to show that credibility could have been assessed differently or that the trial judge failed to say something that should have been said. An appellant must point to something in the reasons or elsewhere in the record that makes it clear the trial judge engaged in some form of methodological error. As the jurisprudence

repeatedly cautions, an argument on this ground is very difficult to make out because it so often amounts to a backdoor attempt to have anappellate court re-do the credibility assessment, unchained from the rigours of the more deferential palpable and overriding error standardof review. I see no evidence of a methodological error in deciding credibility here. [77] As I see it, Mr. Hoskins’s real complaint is that the trial judge failed to explain why he disbelieved him but was not left with areasonable doubt by the Crown’s evidence.

More specifically, this argument appears to be advanced on the footing that the trial judgeglossed over or failed to consider a number of inconsistencies in Ms. R.R.’s testimony. With respect, this is an argument aboutinsufficiency of reasons not about uneven scrutiny of the evidence (Mehari CA): [91] … An allegation that a trial judge “glossed over” something can only be taken as a suggestion that the evidence was examined by thetrier of fact but closer scrutiny would have resulted in greater acuity.

This, in turn, is nothing but a request that this Court conduct its owncredibility assessment, which is not allowed under this line of argument. [78] For the reasons given, I am not satisfied that the trial judge applied a different level of scrutiny to Mr. Hoskins’s evidence thanhe did to the Crown’s evidence. This ground of appeal cannot succeed. B. Insufficient reasons 1.

Applicable legal principles [79] It is an error of law for a trial judge to fail to provide an explanation for their decision that is “sufficiently intelligible so as topermit appellate review” (R v Sheppard, 2002 SCC 26 at para 1, [2002] 1 SCR 869 [Sheppard]). The test for evaluating sufficiency ofreasons is based on a “functional context-specific approach to the adequacy of reasons in a criminal case” (R v R.E.M., 2008 SCC 51 atpara 35(1), [2008] 3 SCR 3 [R.E.M.]).

This means a trial judge’s reasons “must be sufficient to fulfill their functions of explaining why theaccused was convicted or acquitted, providing public accountability and permitting effective appellate review” (at para 15): also see R vBraich, 2002 SCC 27 at para 31, [2002] 1 SCR 903 [Braich]. The reasons need to enable an appellate court “to review the correctness ofthe trial decision” (Braich at para 31).

In determining whether the trial judge’s reasons were sufficient, an appellate court “should readthem as a whole, in the context of the evidence, the arguments and the trial, with an appreciation of the purposes or functions for whichthey are delivered” (R.E.M. at para 16). [80] In determining whether reasons fulfil their purpose and are sufficient, an appellate court must focus on whether the reasonsshow why the trial judge made the decision that was made, rather than on how it was done: see R.E.M. at para 17 or R v R.I.G., 2020SKCA 26 at para 74 [R.I.G.].

In R.E.M., McLachlin C.J.C., adopting the reasoning in R v Morrissey (1995), (ON CA),80 OAC 161 (CA), said as follows concerning the object of the reasons: [17] … The decision of the Ontario Court of Appeal in Morrissey predates the decision of this Court establishing a duty to give reasons inSheppard. But the description in Morrissey of the object of a trial judge’s reasons is apt. Doherty J.A. in Morrissey, at p. 525, put it thisway: “In giving reasons for judgment, the trial judge is attempting to tell the parties what he or she has decided and why he or she madethat decision” (emphasis added).

What is required is a logical connection between the “what” – the verdict – and the “why” – the basis forthe verdict. The foundations of the judge’s decision must be discernable, when looked at in the context of the evidence, the submissions ofcounsel and the history of how the trial unfolded. [81] In explaining the why of a decision, judges are not required to set out each and every conclusion reached in the process ofarriving at a verdict: see R.E.M. at para 18 and R.I.G. at para 74.

Furthermore, a trial judge is not obligated to “refer to or resolve everyinconsistency raised by the defence in the course of his or her reasons” (R v R.A., 2017 ONCA 714 at para 45, 421 DLR (4th) 100 (aff’d2018 SCC 13, [2018] 1 SCR 307)). Nor is a judge required to detail findings on each piece of evidence or controverted fact, “so long asthe findings linking the evidence to the verdict can be logically discerned” (R.E.M. at para 20).

Chief Justice McLachlin expanded on thisapproach in R.E.M. in these terms: [18] Explaining the “why” and its logical link to the “what” does not require the trial judge to set out every finding or conclusion in theprocess of arriving at the verdict. Doherty J.A. in Morrissey, at p. 525, states: A trial judge’s reasons cannot be read or analyzed as if they were an instruction to a jury. Instructions provide a road map to direct layjurors on their journey toward a verdict.

Reasons for judgment are given after a trial judge has reached the end of that journey and explainwhy he or she arrived at a particular conclusion. They are not intended to be, and should not be read, as a verbalization of the entireprocess engaged in by the trial judge in reaching a verdict. [82] Where a case turns on credibility, the sufficiency of reasons cannot be divorced from the deferential stance afforded to trialjudges in relation to this sort of finding.

What constitutes sufficient reasons on issues of credibility was addressed in R v Dinardo, 2008SCC 24, [2008] 1 SCR 788: [26] At the trial level, reasons “justify and explain the result” (Sheppard, at para. 24).

Where a case turns largely on determinations ofcredibility, the sufficiency of the reasons should be considered in light of the deference afforded to trial judges on credibility findings.Rarely will the deficiencies in the trial judge’s credibility analysis, as expressed in the reasons for judgment, merit intervention on appeal.Nevertheless, a failure to sufficiently articulate how credibility concerns were resolved may constitute reversible error (see R. v. Braich,[2002] 1 S.C.R. 903, 2002 SCC 27, at para. 23). As this Court noted in R. v.

Gagnon, [2006] 1 S.C.R. 621, 2006 SCC 17, the accused isentitled to know “why the trial judge is left with no reasonable doubt”: Assessing credibility is not a science. It is very difficult for a trial judge to articulate with precision the complex intermingling ofimpressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events. That is whythis Court decided, most recently in H.L. [2005 SCC 25], that in the absence of a palpable and overriding error by the trial judge, his or herperceptions should be respected.

This does not mean that a court of appeal can abdicate its responsibility for reviewing the record to see whether the findings of fact are reasonably available. Moreover, where the charge is a serious one and where, as here, the evidence of a child contradicts the denial of an adult, an accused is entitled to know why the trial judge is left with no reasonable doubt. [paras. 20–21] [ 83 ] Finally, as discussed in Sheppard and Braich , determining the adequacy of reasons is not an abstract inquiry.

The assessment of this ground involves a contextual approach that asks whether the reasons perform the function for which they are required. As mentioned above, reasons will be sufficient if they inform the parties of the basis for the verdict, provide public accountability and permit meaningful appellate review: see Sheppard at para 55 and Braich at para 31 . If the “absence or inadequacy of reasons provides no significant impediment to the exercise of the right of appeal, the appeal court will not intervene” ( Sheppard at para 46 ). 2. Application to the facts [ 84 ] In his factum, Mr.

Hoskins argues that “a more clearly articulated motive to fabricate on a sex assault allegation would be difficult to imagine”, and, in light of this, it was incumbent on the trial judge to articulate how he overcame Ms. R.R.’s motive to lie in finding her credible. More specifically, Mr. Hoskins argues that Ms. R.R.’s evidence was nothing more than an after-the-fact cover story that she devised to explain away her disappearance over a prolonged period and smooth over her relationship with Mr. S.S. He argues the evidence referred to above – particularly the video evidence – seriously undermined her credibility.

Furthermore, Mr. Hoskins maintains that he “deserves to know how he was convicted on either the sex assault or the cocaine trafficking based on the words of a complainant who should have had significant credibility issues”. In the paragraph from his factum that follows, Mr. Hoskins makes the observation that the trial judge devoted very little of the Trial Decision to Ms. R.R.’s credibility or her motivation to lie and, as such, he erred in law: 86. The Appellant is entitled to know how and why the trial judge found R.R. credible given her significant motive to fabricate.

R.R. went “missing” from her fiancé and 2 children for over 24 hours, during which time she attended a motel room with the Appellant for around 10 hours before attending back home where her fiancé had already deduced that she had been with the Appellant for all that time and had sex with the Appellant. Furthermore, at the time R.R. came home, her fiancé was at the police station making a missing person report. When R.R. initially spoke to Cst.

Kaczmar she told the officer that the sex with the Appellant had been consensual. [ 85 ] To determine the adequacy of the trial judge’s reasons, it is useful to return to the germinal decision of R.E.M. , where McLachlin C.J.C. reasoned as follows: [21] This is what is meant by the phrase in Sheppard “the path taken by the trial judge through confused or conflicting evidence” (at para. 46). In Sheppard , it was not possible to determine what facts the trial judge had found.

Hence, it was not possible to conclude why the trial judge had arrived at what he concluded – the verdict. [22] The charge in Sheppard was the theft of two windows. The only evidence connecting the accused to the windows came from an estranged girlfriend who had vowed to “get him”. The trial judge convicted with these formulaic words: Having considered all the testimony in this case, and reminding myself of the burden on the Crown and the credibility of witnesses, and how this is to be assessed, I find the defendant guilty as charged. [23] The reasons said nothing about the facts.

They said nothing about the credibility of the witnesses. And they said nothing about the law on the offence. They repeated stock phrases of what a trial judge is expected to do, but did not show that he had done it. There was nothing in the reasons to tell the accused why the trial judge was convicting him. There was nothing to tell the public why the conviction had been entered. And there was nothing to tell the Court of Appeal whether the trial judge’s findings and reasoning were sound.

The reasons were clearly inadequate from a functional perspective. [ 86 ] In contrast to the stock phrases used in Sheppard , the trial judge, in this case, thoroughly summarized the facts and, in so doing, displayed a command of the evidence. As mentioned, Mr. Hoskins does not take issue with that part of the Trial Decision . The trial judge made findings of fact and then rejected Mr. Hoskins’s testimony where it conflicted with Ms. R.R.’s and provided reasons for doing so. Turning to the Crown’s evidence, he found Ms.

R.R. to be a credible and a compelling witness and explained how her believability was supported by independent and circumstantial, corroborative evidence. [ 87 ] As I see it, Mr. Hoskins’s concern is simply with the lack of detail or thoroughness in the trial judge’s analysis. This argument cannot succeed. The mere fact the trial judge’s reasons could have been more thorough does mean the reasons were insufficient within the meaning of accepted jurisprudence.

An appellate court must assess the sufficiency of reasons in light of the record as a whole, including the submissions of the parties. [ 88 ] This point was addressed in R.E.M. Speaking for the Court, McLachlin C.J.C. found the appeal court to have erred in this way: [43] The answer is provided in Dinardo and Walker [2008 SCC 34] – what is required is that the reasons, read in the context of the record and the submissions on the live issues in the case, show that the judge has seized the substance of the matter.

Provided this is done, detailed recitations of evidence or the law are not required. [44] The degree of detail required may vary with the circumstances. Less detailed reasons may be required in cases where the basis of the trial judge’s decision is apparent from the record, even without being articulated. More detail may be required where the trial judge is called upon “to address troublesome principles of unsettled law, or to resolve confused and contradictory evidence on a key issue”: Sheppard , at para. 55 , point 6.

Also see R v J.A. , 2016 SKCA 153 , R v Thompson , 2017 SKCA 33 , and R.I.G . [ 89 ] In my view, the basis for the trial judge’s decision can be gleaned from his reasons and the record. He was not asked to address troublesome principles of unsettled law. He knew it was a credibility case and he was clear in his decision that he found Ms. R.R. to be credible. The foundation for his decision is discernable when examined in the context of the evidence, the submissions of counsel, and how the trial unfolded: R.E.M. at para 17 and R.I.G. at para 73 .

[ 90 ] As discussed under the uneven scrutiny ground of appeal, the record helps fulfill an important function. In this case, a review of the trial transcripts enables this Court to follow why the trial judge arrived at his decision in relation to the points of concern raised by Mr. Hoskins. [ 91 ] While the trial judge’s reasons in the analytical portion of his decision are not extensive, Mr. Hoskins’s criticism overlooks the trial judge’s comprehensive recitation of Crown and defence evidence, including the shortcomings brought out through cross-examination. As noted earlier, Mr.

Hoskins raises no objection with the sufficiency or accuracy of that part of the Trial Decision . Furthermore, I am satisfied that the analytical portion of the decision is sufficient to tell Mr. Hoskins why the trial judge convicted him. The issue at trial was consent in connection with the sexual assault charge. The reasons disclose that the trial judge was alive to this issue and, more narrowly, to the credibility of Ms.

R.R. [ 92 ] While the trial judge’s credibility analysis could have been more complete, I am mindful of the observations in R.E.M . concerning findings of credibility and the difficulty articulating those findings with any degree of precision. [48] The sufficiency of reasons on findings of credibility – the issue in this case – merits specific comment. The Court tackled this issue in Gagnon , setting aside an appellate decision that had ruled that the trial judge’s reasons on credibility were deficient. Bastarache and Abella JJ., at para. 20, observed that “[a]ssessing credibility is not a science”.

They went on to state that it may be difficult for a trial judge “to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events”, and warned against appellate courts ignoring the trial judge’s unique position to see and hear the witnesses and instead substituting their own assessment of credibility for the trial judge’s. [ 93 ] I will turn, therefore, to the question of whether the trial judge’s reasons permit appellate review.

As Bastarache and Abella J.J. observed in Gagnon , “even if the reasons are objectively inadequate, they sometimes do not prevent appellate review because the basis for the verdict is obvious on the face of the record” (at para 13). If, on the other hand, a trial judge’s reasons are found to be “both inadequate and inscrutable, a new trial is required” (emphasis added, at para 13). [ 94 ] My analysis of the record in the context of the uneven scrutiny argument is relevant to Mr. Hoskins’s insufficient reasons argument.

It will not be repeated other than to observe that, in my judgment, the reasons permit proper appellate review of the convictions. The findings of fact made by the trial judge, examined in light of the record as a whole, established that the essential elements of the sexual assault and the drug offence were proven beyond a reasonable doubt. In my view, the record adequately fills in any gap left by the reasons and, as such, appellate intervention is precluded.

See, for example, R v Montgomery , 2009 BCCA 41 at paras 60 and 70 , 241 CCC (3d) 469. [ 95 ] For the reasons given, I find this ground of appeal to be without merit. C. Failure to properly apply W.(D.) [ 96 ] Mr. Hoskins next argues that the trial judge erred by treating the trial as a credibility contest between him and Ms. R.R. and thus reduced the question of his guilt or innocence to a matter of whom he believed. Mr. Hoskins submits that the fact that he was not believed should not have inexorably led the trial judge to conclude that he had to believe Ms. R.R.

Rather, as the argument goes, the trial judge was required to assess the Crown’s evidence at the third stage of the W.(D.) analysis by asking himself whether the Crown had proven its case beyond a reasonable doubt based on the Crown’s evidence as a whole. [ 97 ] Mr. Hoskins builds on this argument by once again pointing to alleged inconsistencies between Ms. R.R.’s evidence and some of the other evidence: namely the testimonial evidence of Cst. Kaczmar, Ms. Lizuck, the cab driver and motel clerk; the motel video; and the length of time Ms. R.R. spent in the motel room. Taken together, Mr.

Hoskins believes this body of evidence should have given rise to reasonable doubt. However, since it did not, Mr. Hoskins argues the only reasonable conclusion to be drawn is that the trial judge skated past this evidence and simply determined guilt based on a simple, yet prohibited, credibility contest between Ms. R.R. and himself. [ 98 ] The law is not in dispute. It is an error of law to treat the standard of proof as a credibility contest or to reject an accused’s evidence solely because it is inconsistent with the Crown’s evidence: R v Liberatore , 2010 NSCA 82 at para 12 , 262 CCC (3d) 559.

Neither is it appropriate for a trial judge to approach the assessment of testimonial evidence “with the objective of determining which version he or she finds to be the most probable” ( Dirksen at para 95 ). [ 99 ] Mr. Hoskins’s assertion must be considered in light of the Trial Decision . As discussed, the trial judge began with a

summary of the evidence. It was thorough and had not been reproached. Not only was the Crown evidence summarized, but the trial judge referred to various weaknesses or inconsistencies in Ms. R.R.’s testimony that had cropped up in the course of her cross-examination. The trial judge also devoted 18 paragraphs to Ms. Lizuck’s and Mr.

Hoskins’s evidence; and, in a similar fashion to how he treated the Crown’s evidence, he highlighted the weaknesses and inconsistencies in their testimony that had been brought out through cross-examination. [ 100 ] The trial judge next oriented himself properly to the W.(D.) framework and the applicable law. Mr. Hoskins takes no issue with the trial judge’s self instruction. The trial judge was alert to the reality that the evidence presented “diametrically opposed versions of events, some of which are irreconcilable” (para 74), as is so often the case in sexual assault trials. He understood that Mr.

Hoskins had denied committing the alleged offences and that his testimony was at variance from Ms. R.R.’s in key respects. [ 101 ] Having done all of that, the trial judge then expressly rejected Mr. Hoskins’s evidence where it contradicted with Ms. R.R.’s concerning the use and possession of cocaine. As mentioned, he provided two reasons for this finding. First, he found Ms. R.R. could not have ended up in the state she was in on October 2 by alcohol consumption alone. Second, he found Ms. Lizuck – who had supported Mr.

Hoskins’s testimony on the cocaine issue – lacked credibility and went so far as to find her somewhat complicit in the whole affair. The trial judge gave the following reasons as to why he came to that conclusion (repeated here for ease of reference): [77] … In my view, the actions of Ms. Lizuck in failing to inform anyone that [Ms. R.R.] was in her home and in the company of Mr. Hoskins is best explained by the fact that she did not want anyone to know that Mr. Hoskins had brought cocaine to her home and shared it with others.

This would explain her statement that she did not want people coming into her home and why she did not answer to

the knocking on her patio door when the police attended at 1:00 in the morning. It was not because she did not want to be part of[Ms. R.R.’s] situation, as she claimed. I am of the view that Ms. Lizuck did not want anyone to know that this missing person had been ather place for most of the day in a drug-induced stupor, least of all the … police. In short, I find Ms. Lizuck’s conduct in refusing todisclose to [Ms. R.R.’s] friends and family that she had been in her company for most of the period that she was considered missing to benothing short of despicable. Ms. Lizuck knew Mr.

Hoskins well enough to know that he was taking advantage of a vulnerable youngwoman the same age as her own daughters. [102] With respect, this credibility finding regarding Ms. Lizuck, which, of course, was open to the trial judge to make on the evidencebefore him, had a significant bearing on Mr. Hoskins’s evidence concerning the cocaine use since his testimony and Ms. Lizuck’smirrored each others. [103] After dealing with the cocaine charge, the trial judge turned to the sexual assault allegation. He began by stating that he did notbelieve Mr.

Hoskins’s version of events of what occurred in the motel room and, later in his judgment, found that nothing in his evidencegave rise to reasonable doubt. The trial judge then turned to the Crown’s case. As mentioned above, the trial judge found Ms. R.R.’sversion of events to be “cogent and compelling” (para 74). He accepted that she was a prior addict and was in a drug-induced state causedby the cocaine Mr. Hoskins had provided to her over a prolonged period of time. The trial judge said he believed Ms.

R.R.’s version ofevents concerning what went on at the motel, notably that she did not consent to sexual activity with Mr. Hoskins and, importantly, wenton to conclude that even if Mr. Hoskins thought he had Ms. R.R.’s consent at the start, he was satisfied that Ms. R.R. had made it clear tohim that she did not wish to re-engage in sexual intercourse when she said “No, no, no, no”. Finally, and not insignificantly, the trial judgefound Ms. R.R.’s version of events was corroborated by her bruising and the physical and emotional state she was in when she returnedhome. [104] Mr.

Hoskins goes on to argue that the trial judge failed to undertake the last wing of the W.(D.) analysis: i.e., he failed to considerwhether the evidence as a whole raised a reasonable doubt. I see no error here. As stated above, the trial judge exhaustively canvassed theevidence, noting the problematic parts of Ms. R.R.’s testimony that had been brought out in cross-examination. He knew there was adivergence of opinion on the critical issues. While the trial judge’s analysis was relatively brief, it is clear to me that he believedMs.

R.R.’s testimony on the central issues because he found it to be logical and made sense of the sequence of events. Furthermore, thetrial judge said he found that Ms. R.R.’s credibility was bolstered by independent corroborative evidence. That evidence did not have to bedispositive for the trial judge to give it weight. [105] I am satisfied that the trial judge did not reverse the burden of proof or turn the decision-making exercise into a simple choicebetween Mr. Hoskins and Ms. R.R. He gave himself a proper W.(D.) instruction and explained that he disbelieved Mr.

Hoskins becausehis testimony did not fit logically with other accepted facts. My conclusion in relation to this argument is reinforced by the fact the trialjudge acquitted Mr. Hoskins on the forcible confinement charge based on reasonable doubt arising from Ms. R.R.’s testimony. D. Unreasonable verdict [106] By way of a final argument, Mr. Hoskins argues the verdict is unreasonable and cannot be supported by the evidence.Mr. Hoskins points to two findings of fact that he says were not rooted in the evidence but led the trial judge to draw an improperinference.

Taken together, he argues, they make the guilty verdict unreasonable. [107] An appellate court may set aside a verdict of guilt where it is found to be unreasonable and unsupported by the evidence(s. 686(1)(a)(

i) Criminal Code). To assess whether a verdict is unreasonable within the meaning of that provision, an appellate court mustdetermine if “the verdict is one that a properly instructed jury or judge could reasonably have rendered” (R v R.P., 2012 SCC 22 at para 9,[2012] 1 SCR 746 [R.P.]).

While an appellate court is entitled to review and analyze the evidence, the purpose of doing so is to determineif “the evidence is ‘reasonably capable of supporting the trial judge’s conclusion …’” (R v Farnham, 2016 SKCA 111 at para 40, [2016]12 WWR 635, quoting R v Burns, (SCC), [1994] 1 SCR 656 at 663). [108] A verdict may be unreasonable if the trier of fact has incorrectly drawn an inference (R.P.): [9] To decide whether a verdict is unreasonable, an appellate court must, as this Court held in R. v. Yebes, (SCC), [1987]2 S.C.R. 168, and R. v.

Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36, determine whether the verdict is one that a properlyinstructed jury or a judge could reasonably have rendered. The appellate court may also find a verdict unreasonable if the trial judge hasdrawn an inference or made a finding of fact essential to the verdict that (1) is plainly contradicted by the evidence relied on by the trialjudge in support of that inference or finding, or (2) is shown to be incompatible with evidence that has not otherwise been contradicted orrejected by the trial judge (R. v.

Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at paras. 4, 16 and 19-21; R. v. Beaudry, 2007 SCC 5, [2007] 1S.C.R. 190). [109] As discussed above, this trial turned on credibility. Where an unreasonable verdict is alleged as a ground of appeal in the contextof credibility findings, a reviewing court cannot interfere with the verdict unless the finding of fact is plainly contradicted by the evidencethe trial judge relied on to support the inference or, to put it another way, the finding cannot be supported by any reasonable view of theevidence: R.P. at para 9 and R v Burke, (SCC), [1996] 1 SCR 474 at para 7 [Burke].

Since credibility findings arequestions of fact subject to a deferential standard of appellate review, the scope of appellate review is narrow. This was addressed by thisCourt in R v Wolff, 2019 SKCA 103, 380 CCC (3d) 223 [Wolff]: [40] Credibility findings involve questions of fact, not law: R v Boyer, 2018 SKCA 6 at para 56, [2018] 6 WWR 322; R v W.H., 2013 SCC22 at 33–34, [2013] 2 SCR 180. As such, assessments of credibility are subject to a highly deferential standard of review.

An appellatecourt cannot interfere with a trial judge’s assessment of credibility unless it is established that such assessment cannot be supported on anyreasonable view of the evidence: Boyer at para 58; Burke at para 7; R v R.P., 2012 SCC 22 at para 10, [2012] 1 SCR 746 [R.P.]; R vPiapot, 2017 SKCA 69 at para 40, 15 MVR (7th) 1. Findings of reliability are also factual determinations and subject to the samedeferential standard of review: R v Schaff, 2017 SKCA 103 at para 44; R v Murphy, 2019 SKCA 8 at para 17, [2019] 6 WWR 216. See also R.P. at para 10, R.I.G. and Burke.

[ 110 ] The test for unreasonable verdict does not engage a piecemeal evaluation of the evidence but “demands an assessment of the cumulative effect of all the evidence …” ( Wolff at para 77 ). See also R v Montague-Mitchell , 2018 SKCA 78 at para 60 , 368 CCC (3d) 322, and R v Farnham 2016 SKCA 111 at para 45 , [2016] 12 WWR 635. [ 111 ] I turn to the specific arguments raised by Mr. Hoskins under this ground of appeal. First, he takes issue with the finding that Ms. R.R. was susceptible to cocaine use. He says the trial judge drew this inference principally from her testimony that she had too much to drink.

I have already addressed this line of argument in the context of the uneven scrutiny ground of appeal and find it no more persuasive in support of Mr. Hoskins’s unreasonable verdict argument. In any event, the trial judge’s inference about Ms. R.R.’s susceptibility only says something about how she ended up at Ms. Lizuck’s apartment and, eventually, in a drug-induced stupor. It does not mat

[…]