R v Nelson, 2021 SKCA 37

Court of Appeal for Saskatchewan Docket: CACR3339 Citation: R v Nelson , 2021 SKCA 37 Date: 2021-03-11 Between: Her Majesty the Queen Appellant And Scott Nelson Respondent Before: Ottenbreit, Leurer and Kalmakoff JJ.A. Disposition: Appeal allowed Written reasons by: The Honourable Mr. Justice Leurer In concurrence: The Honourable Mr. Justice Ottenbreit The Honourable Mr. Justice Kalmakoff On appeal from: CRM 140 of 2019, Prince Albert Appeal heard: January 6, 2021 Counsel: Dean Sinclair, Q.C. for the Appellant Estelle Hjertaas for the Respondent Leurer J.A. I.

INTRODUCTION [ 1 ] On December 14, 2016, a calamitous riot occurred at the Saskatchewan Penitentiary. One inmate was killed. Other prisoners suffered serious personal injuries, several from shotguns fired by corrections officers and others at the hands of fellow prisoners. Damage exceeding $3 million was caused to the prison. [ 2 ] The respondent, Scott Nelson, was an inmate at the penitentiary at the time of the riot. Mr. Nelson was charged with three offences arising out of his participation in these events: (

a) mischief, by willfully causing damage to the penitentiary of a value in excess of $5,000, contrary to s. 430(3) of the Criminal Code ; (

b) attempting to obstruct, pervert or defeat the course of justice by obstructing video cameras at the penitentiary, contrary to s. 139(2) of the Criminal Code ; and (

c) taking

part in a riot while wearing a mask or other disguise to conceal his identity, contrary to s. 65(2) of the Criminal Code . [ 3 ] The trial was held over three days in December of 2019, and the judgment and sentence were rendered together shortly thereafter: R v Nelson (10 January 2020) Prince Albert, CRM 140 of 2019 (Sask QB). In connection with the first charge, the trial judge was convinced that Mr. Nelson had committed mischief, based on his painting over surveillance camera lenses, but not that the damage exceeded $5,000. As a result, the trial judge convicted Mr.

Nelson of an offence under s. 430(4) rather than s. 430(3) . The trial judge also convicted Mr. Nelson of the second charge, finding that Mr. Nelson painted over the camera lenses “for the purpose of obstructing the cameras from recording what was about to happen”. However, the trial judge acquitted Mr. Nelson on the third count. He held that he did not have “sufficient evidence as to Mr. Nelson’s participation in the actual riot to ground a conviction”. [ 4 ] The Crown appeals from Mr. Nelson’s acquittal on the third charge. Its principal argument is that the trial judge failed to consider that, even if Mr.

Nelson did not directly participate in the riot, he could be found guilty as an aider and abettor to those who did. I agree with the Crown’s argument on this score. For this reason, I would direct a new trial. II. ISSUES [ 5 ] The outcome of the Crown’s appeal rests on the answer to three questions: (

a) Did the trial judge err in law by failing to consider whether Mr. Nelson aided or abetted the rioters? (

b) If the trial judge committed legal error, does that error warrant a new trial? (

c) If a new trial is required, what is its scope? III. ANALYSIS A. Did the trial judge err in law by failing to consider whether Mr. Nelson aided or abetted the rioters? 1. Did the trial judge commit legal error? [ 6 ] Although the Crown advances several grounds of appeal, its principal contention is that the trial judge erred by failing to

consider whether Mr. Nelson had aided or abetted the rioters. It argues that Mr. Nelson did not have to personally participate in the riot to be guilty of the alleged contravention of s. 65(2) of the Criminal Code or the included offence under s. 65(1) . It says that if there “was evidence indicating he did something to aid others to participate in a riot or evidence indicating he did something to encourage others to participate in a riot, he was guilty as charged”. The Crown states the trial judge’s failure to consider Mr.

Nelson’s culpability as a party to the offence was a reversible error of law. [ 7 ] The Crown’s argument builds on the observation that a person who aids or abets the commission of an offence is a party to that offence, as much as the person who actually commits it. This follows from s. 21(1) of the Criminal Code , which provides: Parties to offence 21(1) Every one is a party to an offence who (

a) actually commits it; (

b) does or omits to do anything for the purpose of aiding any person to commit it; or (

c) abets any person in committing it. [ 8 ] In this case, the Crown says the trial judge considered only the possibility that Mr. Nelson was guilty of the offence charged in count 3 of the indictment because he “actually commit[ted] it” and thereby was a party to that offence pursuant to s. 21(1) (a). The proposition is that the trial judge should also have entertained the possibility that the evidence disclosed Mr. Nelson was a party to the offence pursuant to either ss. 21(1) (

b) or (c). [ 9 ] Consideration of the Crown’s argument begins with the evidence before the trial judge and the findings made by him in relation to the other two charges. Because I have determined that a new trial is necessary, my references to the evidence and the trial judge’s findings will be brief. [ 10 ] Inmates of the penitentiary are housed in ranges, or groupings, of cells. The December 14, 2016 riot began in ranges E3 and E4. Mr. Nelson’s cell was on range E3. It and range E4 are connected by a set of stairs. Range E4 is the upper range and it consists of a narrow walkway in front of a long row of cells.

The walkway overlooks the main floor on range E3. There are approximately 29 cells in each range and, for the most part, each cell is occupied by only one inmate. [ 11 ] In the days leading up to the riot, inmates and prison officials were involved in discussions to resolve a dispute about prison food. Inmates who worked in the kitchen had gone on strike. Prison officials informed all inmates they would be confined to their cells if they were not working or participating in programs.

On December 14, 2016, the inmates on ranges E3 and E4 refused to comply with that order. [ 12 ] Shortly after 1:00 p.m., the prison’s warden sent correctional officers to range E3 to speak to a large group of inmates who were refusing to return to their cells. One of the officers identified Mr. Nelson as being among the inmates who were refusing to “lock up”. The officer also testified that Mr. Nelson and two other inmates were “inciting” others. The officers were soon ordered by prison officials to leave the range. [ 13 ] There are several video cameras in the ranges.

These cameras allowed corrections employees to monitor the situation after the officers had left. One of the employees who was monitoring the video feed testified that she could see inmates begin to cover their faces with masks and to move items to create a blockade at the entrance before the cameras were covered and rendered disabled. The video itself was also admitted into evidence.

The trial judge described the video as showing “two inmates, masked, running from camera to camera, painting over the lenses using a small roller and paint tray”. [ 14 ] One of the key issues at trial was the identity of the persons who covered up the video cameras. The trial judge carefully summarized the evidence before him on this subject. After his detailed review, the trial judge found, as fact, that Mr. Nelson was one of the prisoners who painted over the video cameras: In reviewing all the evidence, I find that the Crown has proven the identity of the accused beyond a reasonable doubt.

I reach this conclusion having regard to the totality of the evidence placed before me. [A parole officer’s] recognition of the accused had a sufficient basis of familiarity with Mr. Nelson underlying it. She had weekly meetings with him, which is plenty of opportunity to get to know him, his looks, and his mannerisms. She easily traced him during his movements in the video. I also looked at the video itself. Mr. Nelson can clearly be seen entering and leaving his cell, cell number 12, in the first parts of the video.

While some other inmates come and go from his cell, none of those leaving, even -- even with faces masked, matched Mr. Nelson’s general appearance. Mr. Nelson has a distinctive appearance and physical shape and form of movement which transcends being masked. I could identify him as the person going from camera to camera painting over the lenses. [ 15 ] The trial judge went on and concluded that he was not satisfied as to the type of substance used to paint over the cameras and, therefore, he had a reasonable doubt as to the magnitude of the damage Mr. Nelson had caused. He was, however, satisfied that “Mr.

Nelson stopped the cameras from working by painting over the lenses with an unknown substance”, and therefore had committed the offence of mischief. [ 16 ] The trial judge also found Mr. Nelson to be guilty of the offence of attempting to obstruct, pervert or defeat the course of justice by obstructing video cameras, contrary to s. 139(2) . He stated as follows: Turning to the obstruction charge under Section 139(2) , being count 2 of the indictment, I am satisfied that it was Mr.

Nelson who painted over the camera lenses in ranges E3 and E4 and that he did this for the purpose of obstructing the cameras from recording what was about to happen.

Watching the videos as a whole, one can see the prisoners getting amped up. Watching, one gets the clear sense that they know something is about to happen. The “something” turns out to be a full-scale riot. From examining the totality of the evidence before me at this trial, I am fully satisfied as to each element of the obstruction offence being proven by the Crown to the standard of beyond a reasonable doubt, and I, therefore, find Mr.

Nelson guilty as charged 1 regarding count 2 of the indictment, obstruction. [ 17 ] The trial judge’s conclusions on these two counts meant that he was satisfied, beyond a reasonable doubt, that Mr. Nelson had painted over the camera lenses. The finding of guilt on count 2 meant that the trial judge was also satisfied that Mr. Nelson had engaged in this action for the purpose of attempting to obstruct, pervert or defeat the course of justice. [ 18 ] The second step in the Crown’s argument relates to the reasons the trial judge gave for entering the acquittal under count 3.

These reasons were tied directly to the reasonable doubt he held that Mr. Nelson personally participated in riotous conduct. The trial judge’s reasons on this point bear quotation at length: I turn to count 3, participating in a riot with his face masked. This count was amended at the trial, and I have assessed it -- the evidence based on the amended count. There is no doubt a riot occurred on December 14, 2016; that fact is admitted by Mr. Nelson. What it [ sic ] is in issue, is whether the Crown can prove that he participated in that riot with his face masked.

Sections 63 and 64 of the Criminal Code define unlawful assembly as an assembly of three or more persons who, with intent to carry out any common purpose, assemble in such a manner, or so conduct themselves when they are assembled, as to cause persons in the neighbourhood of the assembly to fear on reasonable grounds, that they, A, will disturb the peace tumultuously, or B, will by that assembly needlessly, and without reasonable cause, provoke other persons to disturb the peace tumultuously. An unlawful assembly becomes a riot under

Section 64 when it begins to disturb the peace tumultuously. It must be noted that under Sections 65 and 66, this distinction between unlawful assembly and riot is important. The punishments are different for each. They are separate offences. Mr. Nelson only stands charged with taking

part in a riot with his face masked. What evidence do I have that he actually participated in the riot? The donning of a mask could be for that purpose or it could be to shield breathing from gas, which the authorities would likely use to dispel it. The donning of a mask is not conclusive as to participation. It is equivocal. At the point Mr. Nelson is painting over the camera lenses, the assembly of prisoners, if it is anything, is perhaps an unlawful assembly, but it is certainly not yet a riot. The gathering has not yet begun to disturb the peace tumultuously, if at all.

The Crown relies on a British Columbia Provincial Court decision, R. v. Alexander , 2014 BCPC 134 . This charge arose from the 2011 Stanley Cup riots in Vancouver. However, the facts in that case are distinct from Mr. Nelson’s case. It was clear a riot had already begun. Evidence established that Mr. -- Mr. Alexander did certain things during the course of the riot, see paragraphs 8 to 19 of that decision, including destroying property and encouraging others to do so.

While the case suggests that the commission of a separate offence is not required to show participation in the riot (see paragraph 31(d)), there certainly must be some evidence showing participation. As well, it must be noted that R. v. Alexander is a sentencing decision, one where the accused pled guilty to charges under

Section 65. It is not at all a decision which decides criminal liability. It is not overly helpful, although I do agree with what is said at paragraph 31(d), which is that one can be culpable of participating in a riot by word, deed, or other manner so long as the person’s actions contributed to the excitement, fervor, intimidation, and dangerousness of the situation. As I have already noted from the evidence before me, the riot at Saskatchewan Penitentiary had not yet begun while -- when Mr. Nelson painted the camera lenses. That is, really, the only evidence that I have of Mr.

Nelson putatively participating in a riot “by word, deed, or other manner.” The Crown argues that the common purpose of this riot was to damage property and impede the operations of the prison, and I accept that. But this does not assist the Crown in pointing to behaviour or acts of this accused which supported that purpose. The Crown is only able to -- to point to the fact that the accused wore a mask, which I have already found not to be an unequivocal or conclusive act. Let me say, I am suspicious, but I am not convinced beyond a reasonable doubt.

While I have evidence such as that from corrections officers Klughart and Keddie as to the acts of the inmates as a group, I have nothing to prove beyond a reasonable doubt that the accused actually engaged in this sort of participation as those officers described. (Emphasis added) [ 19 ] The trial judge then turned to an argument made by Mr. Nelson based on R v Banks , 2012 NBQB 132 [ Banks ], a case I will discuss in greater detail later in these reasons. Following this, the trial judge concluded his analysis by stating that he did not have “sufficient evidence as to Mr.

Nelson’s participation in the actual riot to ground a conviction” and that he was not convinced beyond a reasonable doubt that Mr. Nelson “took

part in the prison riot” . [ 20 ] These reasons reveal that the trial judge proceeded on the basis that the only way that Mr. Nelson could be found to be guilty under count 3 would be through his actions during the occurrence of the riot itself . The Crown submits that the failure of the trial judge to consider if Mr. Nelson’s actions before the riot began might constitute the aiding or abetting of the rioters constitutes a legal error on the part of the trial judge. I would agree. [ 21 ] In effect, by asking himself what evidence he had that Mr.

Nelson “actually participated in the riot”, the trial judge inserted a temporal element that is not part of the offence. The Crown suggested that the situation here is like when a person supplies a handgun to another person with the intention to assist that second person in an armed robbery. A closer analogy would be where a person goes into a bank and disables the operation of security cameras to prevent the identification of the person who later arrives to commit the robbery itself.

In both hypothetical situations, the person will have done something prior to the robbery being committed for the purpose of aiding the person who later carried it out. In both cases, the person who facilitated the robbery could be guilty of the offence on the basis of s. 21(1) (b).

[22] R v Cowan, 2020 SKCA 77, 389 CCC (3d) 258 (leave to appeal to SCC granted, ) [Cowan], demonstratesthis reasoning in a context where s. 21(1)(

c) was at play. In that case, the accused was charged with armed robbery contrary to s. 344 ofthe Criminal Code and with having his face masked with intent to commit robbery contrary to s. 351(2). The accused had made astatement wherein he claimed to have been at a house when the robbery took place, but he admitted to having advised others that an easyway to get money would be to conduct a robbery and also to having provided explicit instructions about how to do so.

This Court foundthat the trial judge erred in failing to consider the accused’s potential liability as an abettor of the offence. [23] As explained by Kalmakoff J.A. in Cowan, the “effect of s. 21(1) of the Criminal Code is to put aiders and abettors on the samelegal footing, in terms of culpability, as principal offenders” (at para 26). In this case, in my respectful view, the trial judge failed toconsider Mr. Nelson’s responsibility on this basis. [24] Both the Crown and Mr.

Nelson refer to the following passage in R v Aden, 2015 SKCA 59, 323 CCC (3d) 514 [Aden], asbearing on this conclusion: [109] Given the Crown’s position at trial, it is neither appropriate nor possible for this Court to retry the case as though Mr. Thompsonand Mr. Omar aided and abetted the others in the commission of the offences of possessing drugs and crime proceeds – apart from theCrown’s joint enterprise theory.

It would only be an error of law for a trial judge to fail to refer to or to address the issue of party liabilitywhere it is advanced by the Crown at trial (see R v M.R., 2011 ONCA 190 at paras 16–23, 277 OAC 99; and R v Aranson (1992), (BC CA), 21 BCAC 20 at paras 184–187). … [25] The Crown asserts that Aden supports the need for a new trial in this case. Mr. Nelson argues that Aden stands for theproposition that a new trial is appropriate only if the trial judge failed to consider this route to finding criminal liability.

His counsel pointsto the following passage in the trial decision as evidencing that the trial judge had considered, but rejected, Mr. Nelson’s potential liabilityas an aider or abettor to the offence: I carefully reviewed the case of R. v. Banks, 2012 NBQB 132, particularly at paragraphs 16 and 17, which was cited to me by [Mr.Nelson’s counsel], which I found helpful. [26] Much like this case, Banks involved a jailhouse riot. Three inmates were charged. The trial judge in Banks concluded that theevidence did not support the conclusion that one of the accused, a Mr. Ross, had wilfully damaged any property.

The trial judge in thatcase then considered, but rejected, the possibility that Mr. Ross could be found guilty on the basis that he had aided or abetted others intheir commission of the offence. He reasoned as follows: [35] The next issue regarding Mr. Ross is whether under

Section 21 he is a party to the offence. The question is did he do or omit to doanything for the purpose of aiding any person to commit it. There is no evidence here that, for example, that he helped carry a toilet up tothe neighbourhood of the window so that somebody else could throw the toilet through the window. That would be doing something toaid any person to commit it. [36] If there were evidence that Mr. Ross specifically encouraged somebody else to throw a toilet through the window, for example,that would be abetting.

However we do not have that evidence. [37] There is a further provision that says “Where two or more persons form an intention in common to carry out an unlawful purposeand to assist each other therein and any one of them in carrying out the common purpose commits an offence, each of them who knew orought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a partyto that offence.” [38] Here I do not see evidence of an intention in common with other people and Mr. Ross to do that damage that was done to thisplace.

Putting it from another point of view, if this was just another tiresome day in Unit 4(

b) and an inmate was aggravated about thedifficulty of trying to call a lawyer or get Legal Aid through that telephone or disappointed with trying to get in touch with his family andhe hit the control room window with some object in the day room without damaging it, that would not be damaging anything anymorethan what Mr. Ross did.

Throwing a few things at a window without doing any damage or hitting something without doing any damage, asI see the law in the absence of proof of evidence of common intention or intention in common to carry out an unlawful purpose or to aidand abet other people leave me to conclude that on Count 1 it is my duty to find Charles Wayne Ross not guilty. [27] Mr. Nelson’s argument is that, given that the trial judge specifically indicated he had “carefully reviewed the case of [Banks]”,it is reasonable to understand that he had also reviewed these paragraphs and rejected Mr.

Nelson’s liability as an aider or abettor to therioters. I cannot agree with Mr. Nelson’s

interpretation of the trial decision. [28] It is helpful to put the trial judge’s reference to Banks in the context of the submissions made to him. In this regard, Mr.Nelson’s counsel argued as follows to the trial judge: In terms of whether or not Mr.

Nelson could be considered a party to an offence by being on the unit, it’s certainly not a situation where heor any other inmate could have left if they had wanted to, and that’s clear from the evidence from [a security intelligence officer employedby the penitentiary] and the others that the -- there is freedom of movement within the unit, within E3 and E4 once the doors were lockedbut that they were not able to leave the unit. And I’ll get into this more after but also that they weren’t able to lock themselves into theircells.

So even had they wanted to remove themselves, they couldn’t go into the cell and lock the door. They could close the door but not inany way that would prevent another inmate from entering. And so there wasn’t an option to leave, and the Banks case that I filed refers to-- to that I think in para 16. [29] As this passage reveals, Mr. Nelson’s counsel pointed the trial judge specifically to paragraph 16 of Banks.

Paragraphs 16 and17 from that decision, which the trial judge “found helpful”, addressed the difficult situation that inmates were in when they wereconfronted with a riot being carried on by other prisoners: [16] The inmates, 15 of them who were hearing an order from an angry Kayne Crothers, were in no position to treat him as they wouldif they were hearing somebody shout out in the street. They were not able to just walk away. They were stuck in this unit with Kayne

Crothers. This is not a situation like outside where people can just walk away. There are some group dynamics at play in Unit 4(b). [17] The Crown recognizes that. It understands that. It has not charged everybody who is in the Unit 4(

b) arising from this incident.The Crown has charged only five of the 16 individuals. Kayne Crothers has already pleaded guilty. One of them did not show up for a trialdate and a warrant has been issued for his arrest. This case is now about just these three individuals, Mr. Banks, Mr. McKinnon and Mr.Ross and the very specific charges against them. [30] Banks therefore supported the argument made by Mr. Nelson at trial that he was not free to walk away from the riot and,accordingly, did not commit a criminal offence simply by being in proximity to the rioters.

The trial judge accepted this argument.However, the trial judge’s reference to Banks said nothing about Mr. Nelson’s possible role as an aider or abettor to the rioters. [31] This understanding of the trial decision is made obvious when one reads on from the passage relied on by Mr. Nelson tosupport his argument: I carefully reviewed the case of R. v. Banks, 2012 NBQB 132, particularly at paragraphs 16 and 17, which was cited to me by [Mr.Nelson’s counsel], which I found helpful. I do have evidence that Mr. Nelson was injured, wounded by buckshot, but I cannot draw theinference the Crown seeks.

This is circumstantial evidence, and to convict based on an inference drawn from circumstantial evidence, thatinference of guilt must be the only available inference. Here, Mr. Nelson’s injuries could have been caused by being in a group but notactively participating. Buckshot spreads in a pattern, and this is exacerbated when a bounce shot is used. Buckshot is not specifically aimed at a specific target.The inferences to be drawn from these wounds are, again, equivocal. In short, I find I do not have sufficient evidence as to Mr.

Nelson’s participation in the actual riot to ground a conviction, to convince mebeyond a reasonable doubt that he took

part in the prison riot. I have no real evidence of such participation. I have no real evidence ofmens rea on his part. And regarding mens rea, see R. v. Brien [(1993) (NWT SC), 86 CCC (3d) 550 (NWT SC)], B-R-I-E-N, a 1993 case cited to me. I have no evidence that convinces me he took

part in either a riot or even an unlawful assembly whilemasked. I cannot convict him of this charge. [32] In this passage, the trial judge gives his reasons for why Mr. Nelson’s proximity to the rioters does not establish hisparticipation in the riot. He concluded in “short” by stating that he did “not have sufficient evidence as to Mr. Nelson’s participation in theactual riot” to ground a conviction (emphasis added). [33] Based on all of this, I am not able to interpret the reference to Banks in the trial decision as incorporating any consideration bythe trial judge of Mr.

Nelson’s potential liability as an aider or abettor. [34] In my respectful view, the trial judge erred in law by failing to consider Mr. Nelson’s potential liability as an aider and abettorto the actual rioters. 2. Did the trial judge commit other legal errors? [35] As I will explain, the scope of any new trial is limited by the legal error committed by the trial judge.

For this reason, it isnecessary to consider the Crown’s other grounds of appeal. [36] In addition to its argument based on s. 21 of the Criminal Code, the Crown asserts that the trial judge failed to consider theevidence in its totality when he entered an acquittal on the s. 65(2) charge. The Crown’s argument is based on the idea that the probativevalue of the sum of the evidence will often be greater than that of its individual parts. Justice Taschereau put it this way in R v Côté, (SCC), [1942] 1 DLR 336 (SCC) at 336–337: ...

It may be, and such is very often the case, that the facts proven by the Crown, examined separately have not a very strong probativevalue; but all the facts put in evidence have to be considered each one in relation to the whole, and it is all of them taken together, that mayconstitute a proper basis for a conviction. See also: R v Morin, 2017 SKCA 38 at para 21. [37] The Crown’s submission is built from the following statement made by the trial judge: What evidence do I have that he actually participated in the riot?

The donning of a mask could be for that purpose or it could be to shieldbreathing from gas, which the authorities would likely use to dispel it. The donning of a mask is not conclusive as to participation. It isequivocal. [38] The Crown says that there was much more in the evidence that spoke to Mr. Nelson’s personal participation in the riot than thathe had donned a mask. It argues therefore that the “trial judge’s failure to consider the totality of the evidence was plainly stated by thetrial judge himself”. [39] There are two problems with the Crown’s argument.

The first is that it is directly contradicted by the trial judge’s own self-instruction. In this regard, earlier in the trial judgment, he stated that he had “carefully self-instructed as to the standard of proof applyingto each element of the offence based on the totality of the evidence rather [than] to each individual piece of evidence”. He continued onfrom this as follows: The Crown need not prove every single fact or matter to that standard, nor must the Crown explain every issue or matter that arises in thecourse of a trial.

Rather, the Crown must amass sufficient evidence to satisfy the trier of fact of each element of the offences chargedbeyond a reasonable doubt. See R v. Morin, [ (SCC), [1988] 2 SCR 345] a 1988 decision of the Supreme Court of Canada. The principles enunciated in that case have been applied almost universally since and were more recently reiterated by the Saskatchewan

Court of Appeal in R. v. Alves, A-L-V-E-S, 2014 SKCA 82 at paragraphs 40 to 43. I will not read that lengthy extract into the record, but itbears reviewing when dealing with a criminal case. Alves was more recently applied in R. v. McKay, 2017 SKCA 4 and R. v. Abramoff,2018 SKCA 21.

In that regard, I have also self-instructed and emphasized that I must not review the evidence in a piecemeal fashion but must review all ofthe evidence as a whole. [40] The passage from R v Alves, 2014 SKCA 82, 314 CCC (3d) 313 [Alves], that the trial judge found too lengthy to read into therecord, states as follows: [40] In [R v J.M.H., 2011 SCC 45, [2011] 2 SCR 197], the failure to consider all the relevant evidence was the fourth situation in whicha trial judge’s assessment of the evidence can amount to an error of law.

The “underlying legal principle” of this error is that “it is an errorof law to subject individual pieces of evidence to the standard of proof beyond a reasonable doubt; the evidence must be looked at as awhole.” (at para. 31) This error was originally recognized by Sopinka J. in [R v Morin, (SCC), [1988] 2 SCR 345 [Morin(1988)]. [41] Sopinka J. in Morin (1988) explained that to subject individual pieces of evidence to the criminal standard results in a “piecemeal”consideration of only the evidence that is proved beyond a reasonable doubt, rather than a proper consideration of all the relevantevidence.

The problem that arises from subjecting individual pieces of evidence to the criminal standard is that the trier of fact is left withonly those (presumably) small parts of the Crown’s case that could be proved beyond a reasonable doubt. Indeed, The effect of the misdirections referred to above may very well have been that the jury examined evidence that was crucial to the Crown’scase in bits and pieces. Standing alone or pitted against the evidence of the accused without the support of other evidence, much of thisevidence might have been discarded as not measuring up to the test.

When the jury came to consider the Crown’s case as a whole theremay not have been very much left of it. [at pp. 358-9, Emphasis added] [42] However, as the Supreme Court noted in J.M.H., the application of this error is limited to circumstances where the trial judgeclearly subjects individual pieces of evidence to the criminal standard; it has no application where the trial judge has not offered reasons asto how each piece of evidence was assessed.

Explaining this limit in [R v Morin, (SCC), [1992] 3 SCR 286], Sopinka J.held at p. 296 that: To apply Morin, supra, as a basis of review of a trial judge’s findings of fact whenever the reasons for judgment fail to deal with aparticular piece of evidence, or the inference from such evidence would require a trial judge to record each piece of evidence and his or herassessment of it. This would be a misapplication of Morin to the trial process when the trial is by judge alone.

A trial judge must considerall of the evidence in relation to the ultimate issue but unless the reasons demonstrate that this was not done, the failure to record the factof it having been done is not a proper basis for concluding that there was an error in law in this respect. [Emphasis added] [43] In

summary, it is an error of law to subject individual pieces of evidence to the criminal standard of proof beyond a reasonabledoubt. To err in such a manner results in an improper and piecemeal consideration of only the evidence that the Crown could provebeyond a reasonable doubt.

However, this error does not arise if the trial judge has merely not explained how each individual piece ofevidence was assessed; it arises only if the trial judge subjected individual pieces of evidence to the criminal standard. (Emphasis in original) [41] Based on his self-instruction and his reference to Alves, it would be untenable to suggest that the trial judge was unaware thathe had an obligation to consider the evidence in its totality and was not permitted to consider it in a piecemeal fashion or apply thecriminal standard of proof to individual items of evidence.

The Crown is therefore left to argue that, although the trial judge was aware ofhis responsibilities, he somehow committed the very errors he had self-instructed against. [42] This conclusion leads to the second difficulty with the Crown’s argument, which is this: I see nothing in the trial judgment thatwould support the conclusion that the trial judge committed the legal error alleged by the Crown. To the contrary, the trial judge explicitlystated that the Crown’s case tended “to turn on several types of evidence, some direct evidence, some circumstantial evidence, video tapeevidence, and recognition evidence”.

Elsewhere in the judgment, the trial judge recounted the evidence and Crown counsel’s arguments asto why, based on that evidence, he should reach the conclusion that Mr. Nelson participated in the riot. For this additional reason, I amsatisfied that the trial judge’s reasons do not disclose the legal error of failing to consider the evidence in its totality. [43] In R v Bramley, 2009 SKCA 49, [2009] 7 WWR 226 [Bramley], this Court addressed the alleged failure by a trial judge toconsider the significance and collective weight of relevant evidence.

In his analysis, Richards J.A. (as he then was), stated the following: [39] It is necessary to begin the examination of this issue by noting that a trial judge is not obligated to record or catalog all of theevidence bearing on the issues before the court. See, for example, R. v. Sheppard, 2002 SCC 26. However, an error of law does arise inthose situations where a trial judge's reasons reveal that he or she failed to consider relevant evidence. This was recognized in two casesreferred to and apparently endorsed in R. v. Sheppard, 2002 SCC 26. The first is Macdonald v. The Queen, (SCC),[1977] 2 S.C.R. 665.

In it, Laskin C.J.C. expressed reservations about imposing a general duty on judges to give reasons but, nonetheless,said this at p. 673: It does not follow, however, that failure of a trial judge to give reasons, not challengeable per se as an error of law, will be equallyunchallengeable if, having regard to the record, there is a rational basis for concluding that the trial judge erred in appreciation of arelevant issue or in appreciation of evidence that would affect the propriety of his verdict.

See also: R v Thompson, 2017 SKCA 33 at para 34. [44] The reasoning found in Bramley addresses the Crown’s contention that the trial judge failed to consider the evidence in itstotality. It also answers the Crown’s additional argument that the trial judge applied the criminal standard in connection with variouspieces of circumstantial evidence. Simply because the trial judge stated that he was not convinced by individual items of circumstantial

evidence does not mean that he forgot to apply the appropriate basic legal principles. [ 45 ] The Crown next asserts that the trial judge speculated as to matters that were not in evidence and misinterpreted other matters. This submission is based on two passages in the trial judgment. The first was the statement by the trial judge that Mr. Nelson might have donned the mask “to shield breathing from gas, which the authorities would likely use”.

The second was the reference by the trial judge that the riot occurred in a prison context and, in the prison community, “an inmate could be regarded as a rat, and there certainly could be repercussions” if he left the vicinity of the rioters and it “is not possible for an inmate, simply, to leave the scene or stay inside their cells in all circumstances”. [ 46 ] I see nothing to support the Crown’s contention that the trial judge committed the error it alleges. One of the officers testified that, in his experience, prisoners will cover their face when they believe smoke or gas will be used.

Another officer testified that inmates commonly had security concerns, that violence on the ranges was common, and that prisoners would be vulnerable in a cell during a riot because they could not lock themselves behind a door. He also testified that it was very possible that inmates could be punished by fellow inmates for not participating in a riot.

While the word “rat” was not used in the officer’s testimony, the concept of repercussions was in evidence at trial and was appropriately considered by the trial judge in considering the entire context of the riot and the options that were realistically available to an inmate in Mr. Nelson’s circumstances. [ 47 ] For all these reasons, while, in my respectful view, the trial judge erred in failing to consider Mr. Nelson’s possible criminal responsibility as an aider and abettor to the rioters, he did not err in any of the other ways alleged by the Crown. B.

If the trial judge committed legal error, does that error warrant a new trial ? [ 48 ] Of course, not every legal error made by a trial judge while acquitting an accused will justify appellate intervention. The Crown “must demonstrate that any identified error, in the concrete reality of the case at hand with a reasonable degree of certainty, actually affected the ultimate acquittal” ( Cowan at para 38 ).

The test falls somewhere between “[a]n ‘abstract or purely hypothetical possibility’ of materiality” and “an error that ‘would necessarily’ have been material” ( R v George , 2017 SCC 38 at para 27 , [2017] 1 SCR 1021, quoting R v Graveline , 2006 SCC 16 at para 14 , [2006] 1 SCR 609). [ 49 ] In Cowan , Kalmakoff J.A. explained the actus reus and mens rea components of aiding and abetting: [26] The effect of s. 21(1) of the Criminal Code is to put aiders and abettors on the same legal footing, in terms of culpability, as principal offenders.

This does not mean, however, that the guilt of an aider or abettor is proved in precisely the same fashion as the guilt of a principal. In R v Huard , 2013 ONCA 650 , 302 CCC (3d) 469, Watt J.A., citing the Supreme Court of Canada’s decision in R v Briscoe , 2010 SCC 13 , [2010] 1 SCR 411, explained that the actus reus and mens rea components of aiding (under s. 21(1) (b)) and abetting ( s. 21(1) (c)) are distinct from those of the principal offender. Justice Watt noted that both s. 21(1) (

b) and s. 21(1) (

c) require proof of certain conduct and fault on the part of an aider or abettor: [62] The conduct element requires proof that the aider or abettor provided actual assistance to the principal by doing something that assisted the principal to commit the offence or encouraged the principal to do so. It is not enough that the conduct of the aider or abettor had the effect of helping or encouraging the principal or resulted in the principal’s committing the offence: Briscoe , at paras. 14-15 . [63] The fault element in aiding or abetting arises from the phrase “for the purpose of”, which is expressly stated in s. 21(1)(

b) and is implied in s. 21(1)(c). The fault element includes both intent and knowledge. The aider or abettor must intend to help or encourage the principal to commit the offence and must know that the principal intends to commit that offence: Briscoe , at paras. 16-17 . The aider or abettor need not share the intent of the principal to commit the offence: Briscoe , at para. 18 . [27] In R v Machushek , 2016 SKCA 41 , 476 Sask R 194, this Court took a similar approach noting, at paragraph 50, that in order for the Crown to establish an accused person’s guilt as a party to an offence under ss. 21(1)(

b) or (c), the Crown must “prove not only the doing of the act but also that the accused acted with the intention of aiding or abetting the principal offender”. [ 50 ] In this case, the trial judge found that Mr. Nelson painted over the video cameras and also had the necessary intent to commit the offence of attempting to obstruct, pervert or defeat the course of justice by obstructing video cameras, contrary to s. 139(2) of the Criminal Code .

Based on these two findings, I am satisfied that the required materiality threshold has been crossed in relation to the acquittal of the charge under s. 65(2) . [ 51 ] The Crown submitted that if this Court were to find that the trial judge committed a sufficiently material legal error, a new trial should be ordered. It did not contend that there is a basis for this Court to enter a conviction. I would agree. A new trial is required. [ 52 ] I turn now to the scope of the new trial that must be held because of the trial judge’s legal error. C.

If a new trial is required, what is its scope? [ 53 ] In Cowan , after this Court found a trial judge to have committed a similar legal error, the Court limited the scope of the new trial it ordered to be held. Justice Kalmakoff explained, given that the Court had “dismissed the Crown’s appeal with respect to the acquittal on the principal theory, the new trial will proceed from the footing that the question to be determined is whether Mr.

Cowan is guilty of robbery, as a party, on the basis of abetting or counselling” (at para 50). [ 54 ] The Crown advised the panel that an appeal to the Supreme Court has been taken from that aspect of the decision in Cowan and argued that Cowan should not be applied in this case. However, the fact that the Court’s decision has been appealed is not a proper basis for declining to apply it in the usual way. Accordingly, the new trial should be limited to Mr. Nelson’s possible liability as one who has given aid to, or who has abetted, the persons who rioted.

IV. CONCLUSION [55] In my respectful view, the trial judge erred in law by failing to consider Mr. Nelson’s potential criminal liability as an aider orabettor to the rioters. There is a very real possibility that this error affected the outcome of the trial and, as a result, a new trial is requiredin connection with the charge under s. 65(2). The new trial shall be limited to whether Mr. Nelson is guilty of the charged offence as anaider or abettor. “Leurer J.A.” Leurer J.A.I concur. “Ottenbreit J.A.” Ottenbreit J.A.I concur. “Kalmakoff J.A.” Kalmakoff J.A.

Court of Appeal for Saskatchewan Neutral Citation: 2021 SKCA 37 Corrigendum Date: 2021-03-11Her Majesty the Queen AppellantandScott Nelson Respondent Corrigendum The text of the judgment has been changed from its original 11 March 2021 release date to correct a misunderstanding relating to theoutstanding appeal in R v Cowan, 2020 SKCA 77, 389 CCC (3d) 258 (leave to appeal to SCC granted, ). Paragraph 54was amended on 11 March 2021 to reflect this correction.