M.J. Appellant v. His Majesty the King, 2022 SKCA 106

Restriction onPublication An order has been made in accordance with s. 486.4(1) of the Criminal Codedirecting that any information identifying the complainant shall not be published. Court of Appeal for Saskatchewan Docket: CACR3461 Citation: R vM.J., 2022 SKCA106Date: 2022-09-28Between:M.J.AppellantAndHis Majesty the KingRespondentBefore: Ottenbreit, Barrington-Foote and Tholl JJ.A.Disposition: Appeal dismissedWritten reasons by: The Honourable Mr. Justice Barrington-FooteIn concurrence: The Honourable Mr. Justice Ottenbreit The Honourable Mr.

Justice ThollOn appeal from: Provincial Court, SaskatoonAppeal heard: December 8, 2021Counsel: Ian McKay and Sarah Rankin for the Appellant Andrew Davis for the Respondent Barrington-Foote J.A. I. INTRODUCTION [1] M.J. was convicted at trial of one count each of making child pornography, possession of child pornography, and voyeurism.The charges arose following the discovery of surreptitious videos of M.J.’s former stepdaughter, A.B., which were taken when she was13 or 14 years old. The videos were stored on a cellphone that was owned, but no longer used, by M.J.

The issue at trial was whether theCrown had proven beyond a reasonable doubt that the videos were taken by M.J. [2] M.J. has appealed these convictions. He alleges that the trial judge misapprehended or failed to give effect to materialevidence and erred in his assessment of M.J.’s credibility, resulting in an unreasonable verdict pursuant to s. 686(1)(a)(

i) of the CriminalCode or a miscarriage of justice pursuant to s. 686(1)(a)(iii). He also contends that the trial judge erred in law in his identification andapplication of the test in R v W.(D), (SCC), [1991] 1 SCR 742 [W.(D.)]. [3] I have concluded that the trial judge erred in the course of his assessment of M.J.’s credibility, including in his identificationand application of the principles reflected in W.(D.). However, I do not agree with M.J. that credibility was the only issue at trial. Rather, itis my view that the matters affected by the credibility analysis did not play a role in the finding of guilt.

For that reason, it is my viewthese errors did not result in an unreasonable verdict or a miscarriage of justice, and that the appeal must accordingly be dismissed. II. BACKGROUND [4] M.J., A.B.’s mother, and A.B. resided in Saskatchewan [Saskatchewan residence], until March of 2016, when M.J. and A.B.’smother divorced, and A.B.’s mother and her children moved to Saskatoon. In the year following the divorce, A.B. returned to theSaskatchewan residence to visit her friends on approximately six occasions. She stayed with M.J. in the Saskatchewan residence duringthese visits.

In September of 2016, M.J.’s girlfriend, B.D., moved into the Saskatchewan residence. [5] The Saskatchewan residence was under constant renovation by M.J. during the period M.J. and B.D. lived there, with workprogressing as funds became available and with the regular assistance of three friends of M.J. B.D. confirmed that the renovations thatoccurred when she lived there included renovations to the bathroom, which, like the bedrooms, was located on the second floor. [6] In June of 2018, M.J. and B.D. moved to Alberta.

They lived for four months in a temporary trailer at a campground, movingto a house [Alberta residence] in November. [7] B.D. testified that by March of 2019 she and M.J. had been arguing almost daily, and that she had discovered onlineconversations between M.J. and other women by looking at his cellphone and laptop. It was her evidence that on March 19, 2019, she sawhim looking at an old phone in his bedroom office at the Alberta residence. She said that she recognized it as an old iPhone that he hadkept in a nightstand drawer in the Saskatchewan residence, but that she had never before seen him use.

She claimed that, when she enteredthe room, M.J. put the iPhone down immediately, changed the conversation, and ushered her from the room. [8] B.D. testified that she had, since the move, seen the iPhone in the top drawer of the desk in M.J.’s office. She said that the next

day, she entered the office to find the phone, explaining her reason for doing so as follows: A So it was March 20th and I waited till he was at work to go look at it because I assumed I would find the women he’d been talking to since he’d set up an alias Facebook account. So I pulled it out of the drawer and it powered on, but the battery was very low, so I plugged it in. Q Okay. Just to be clear, did you have to -- when you picked up the phone was it already in a powered on state or did you have to – A No, I powered it on. Q Okay. So you pressed the button to power it on. Okay.

And again, just so I understand, it had enough battery to power on when you – A Yes. Q Okay. Please continue. A Okay. So I looked through to go online. It wasn’t connected to our Wi-Fi, so I looked in messages and pictures. Then when I went in pictures I found the videos, it was not what I was prepared for. [ 9 ] B.D. testified that she delivered the iPhone to the RCMP on March 21, 2019, and that she said nothing to M.J. about what she had found until July 30, 2019, when they had a major argument.

When she then asked him what he thought had happened to the iPhone, he lost it, stating that his life was over, and that there was no recovering from this, and threatening suicide. She said that he claimed that he did not know why he took the videos, did not remember taking them and did not know why he had kept them. He said he was not attracted to A.B. in that way. After further discussion, M.J. contacted a lawyer and told her the lawyer had said he would likely face a year in jail. [ 10 ] A.B.’s brother, J.B., testified that he was living with M.J. and B.D. in March of 2019 in the Alberta residence.

He gave evidence that he was downstairs in the Alberta residence at the time and overheard a heated argument, including a threat by M.J. to kill himself. He also said that later that day, he had a conversation with M.J., who told him that B.D. had found things on the phone that were not appropriate. J.B. described M.J. as calm and searching for an explanation. M.J. suggested that a friend of J.B.’s younger brother, D., who was 10 or 11 years old and had also stayed at the Saskatchewan residence, must have gotten the phone. [ 11 ] M.J. gave very different evidence relating to the iPhone and videos.

He admitted that he had been messaging other women, looking for his next girlfriend. He claimed that he and B.D. had been arguing about money, particularly her failure to contribute, and that when he went home on July 30, they had again argued about money as she packed her belongings to leave him. He denied that B.D. confronted him about the iPhone, that he had threatened suicide, or that he had called a lawyer that day.

It was his evidence that he did not make any inculpatory statements as B.D. alleged. [ 12 ] M.J. also gave directly conflicting evidence as to his knowledge of the location and use of the iPhone after the move to Alberta. B.D. testified that the iPhone and the other contents of the nightstand drawer had been dumped in a bin for the move, that the bin was in the trailer, and that it was then dumped into the desk drawer at the Alberta residence.

M.J., on the other hand, testified that B.D. had packed the contents of the nightstand drawer, that he did not know where the iPhone was, and that he did not see it during the move, at the trailer, or at any time when they were in Alberta. [ 13 ] The videos at issue were found on an iPhone that M.J. had stopped using in mid-2015, as it would not connect to Wi-Fi and had battery life problems. The videos were taken between August of 2016 and May of 2017, on occasions when A.B. was in the bathroom to shower.

With one exception, they were recorded through a large crack in the door of the bathroom at the Saskatchewan residence, which, like the bedrooms, was located on the second floor. The forensic expert who examined the iPhone could not identify the exact dates the videos were taken but was able to say that videos 1 and 2 were taken on one day, 17 minutes apart; that video 3 was made the following day; and that video 5 was taken the day after.

Video 6 had a file name that suggested it was made after videos 1–3 and 5, although the file for video 6 showed an earlier date than the date associated with videos 1–3 and 5. [ 14 ] The iPhone also contained bookmarks for pornographic websites that were made at some point before it no longer provided internet access, which was in 2015.

When questioned about the bookmarks, M.J. testified that he did not recall if he bookmarked anything similar with that phone, that he did not think he did, and that he did not know how they got there. [ 15 ] I would finally note that M.J. was also charged with invitation to sexual touching. A.B. testified that he had entered her bedroom at the Saskatchewan residence and told her that he wanted to have intercourse with her. M.J. denied that allegation. III. THE CONVICTION DECISION [ 16 ] The trial judge delivered his oral decision on September 18, 2020, three months after the trial concluded.

After briefly reviewing the undisputed facts relating to the domestic history, the visits by A.B. to the Saskatchewan residence, M.J.’s use of the iPhone only until 2015, and the discovery of the videos on the iPhone by B.D. after the move to Alberta, the trial judge noted the concessions made by the defence as to when the videos had been made and that they were child pornography. He then commented as follows: … However, the accused denies recording the videos, and he denies knowing that they were on his old iPhone.

In fact, he says that after he replaced the iPhone 4, he put it in his junk drawer and never saw it again. In addition, he denies ever saying to the complainant that he wanted to fuck her. If I believe [M.J.], I must acquit him of all charges. If I disbelieve him, or if I’m not sure whether I believe him, I must assess all of the evidence to determine whether the Crown has proven its case against the accused beyond a reasonable doubt. [ 17 ] The trial judge next referred to B.D.’s evidence that she had walked in on M.J. “handling the old iPhone” and that, when he saw her, he immediately put it away.

He noted that B.D. suspected M.J. of communicating with other women and that it was for that reason she retrieved the iPhone from the drawer where she knew he kept it. He then made the following observation: Now, either [M.J.] lied to the Court about not knowing or caring about what had happened to his old cellphone, or [B.D.] decided to check

for suspicious messages, or searches on a cellphone she had never seen him using. Frankly, I think that the latter proposition is nonsensical. [ 18 ] Having disposed of this question, the trial judge referred to the evidence relating to the bookmarks, dealt with that evidence and, having done so, stated his findings as to the credibility of M.J., B.D. and A.B.: Detective Sergeant Bautista found dozens of pornographic internet sites bookmarked on [M.J.’s] iPhone 4. When asked in cross- examination whether he ever bookmarked any pornographic videos or sites, [M.J.] claimed that he did not recall doing it.

Although he did not think it was possible that he had booked marked such sites, he did not suggest that anyone else might have done it. Once again, in my opinion, [M.J.’s] answers don’t make any sense. If you see a pornographic video, you don’t forget it, or you don’t forget that you saw it. Similarly, a person who searches for pornographic websites on the internet and books -- book marks some sites does not forget doing so. In the end, I do not believe much of [M.J.’s] testimony.

Where his testimony conflicts with [B.D.’s] testimony or the complainant’s testimony, I prefer their evidence, as I found both to be forthright and credible witnesses. [ 19 ] Having concluded his credibility assessment, the trial judge dealt with the possibility that anyone other than M.J. could have made the videos, stating as follows: Although the Crown’s case against [M.J.] in relation to the voyeurism and child pornography charges is entirely circumstantial, I find that it has proven its case beyond a reasonable doubt.

In -- in order for anyone other than [M.J.] to be the person who surreptitiously recorded the complainant, not only would he or she have been in [M.J.’s] [Saskatchewan] home on one or more of the few occasions when the complainant also was there, they also would have to be there when they knew that she was taking a shower, and they would have to know where [M.J.] kept the cellphone he did not use. And they would have to retrieve it from his nightstand, power it up, and then wait for the complainant to [ sic ] out of the shower before recording videos of her naked body.

Finally, all of this would have to happen without [M.J.] or [B.D.] catching that unknown person in the act. The way in which the Crown Prosecutor put it in his closing argument is “none of that makes a lick of sense”. I agree. The chances of such a confluence of events occurring once are slim enough. The chances of it happening more than once are so vanishingly small that on the evidence before me, the only reasonable conclusion I can come to is that [M.J.] is the person who created the videos of the complainant.

For those reasons, I find [M.J.] guilty of counts 1, 2 and 3 in Information ending 921. [ 20 ] The trial judge dealt last with the charge of invitation to sexual touching. He accepted A.B.’s evidence that M.J. had told her he wanted to have intercourse with her. However, he found that this statement was a declaratory statement rather than an invitation and accordingly acquitted him of that charge. IV. ANALYSIS [ 21 ] I would first note that M.J. alleges, and the Crown concedes, that the trial judge’s statement of the approach specified in W.(D.) was incorrect. I agree.

W.(D.) describes the following three-step process at page 758: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [ 22 ] The error in this case in the trial judge’s self-instruction is with the second and third steps.

The trial judge correctly instructed himself that if he believed M.J., he should acquit. However, he then said that if he did not believe him or was not sure whether to believe him, he “must assess all of the evidence to determine whether the Crown has proven its case against the accused beyond a reasonable doubt”. [ 23 ] That was incorrect, in two ways. First, if the trial judge was not sure whether he believed M.J.’s denial that he took the videos, he was obliged to acquit, as that uncertainty would constitute a reasonable doubt.

Second, this instruction contemplates the assessment of M.J.’s evidence – in effect, given the nature of the evidence, his credibility – prior to the assessment of “all of the evidence”. That too is incorrect. As Charron J. said in R v Dinardo , 2008 SCC 24 , [2008] 1 SCR 788: [23] … In a case that turns on credibility…the trial judge must direct his or her mind to the decisive question of whether the accused’s evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt.

Put differently, the trial judge must consider whether the evidence as a whole establishes the accused’s guilt beyond a reasonable doubt. … (Emphasis added) See also R v Ryon , 2019 ABCA 36 at paras 41–47 , 371 CCC (3d) 225; R v Redden , 2021 BCCA 230 at para 81 ; R v Van Deventer , 2021 SKCA 163 at paras 21–25 , 407 CCC (3d) 291.

Failing to assess the accused’s credibility in the context of all the evidence could undermine not only the assessment of the accused’s evidence but the assessment of the other evidence, which would be coloured by a finding as to the credibility of the accused that had already been made. [ 24 ] The fact that the trial judge erred in his statement of the test from W.(D.) is, of course, not conclusive. Although that constitutes an error of law, it may not be material, as the reasons as a whole may demonstrate that the analysis does not reflect that error.

A trial judge is not required to reproduce the W.(D.) test at all, or, for that matter, adhere to that formula by compartmentalizing the analysis into the three distinct steps it describes: R v Groshok , 2019 SKCA 39 at para 22 . In R v J.H.S. , 2008 SCC 30 , [2008] 2 SCR 152, Binnie J. explained the reason that is so:

[13] … [T]he W. (D.) questions should not have attributed to them a level of sanctity or immutable perfection that their author neverclaimed for them. W. (D.)’s message that it must be made crystal clear to the jury that the burden never shifts from the Crown toprove every element of the offence beyond a reasonable doubt is of fundamental importance but its application should not result in atriumph of form over substance. In R. v.

S. (W.D.), (SCC), [1994] 3 S.C.R. 521, Cory J. reiterated that the W.(D.) instructions need not be given “word for word as some magic incantation” (p. 533). … (Emphasis in original) [25] Similarly, Karakatsanis J. had this to say in R v Vuradin, 2013 SCC 38, [2013] 2 SCR 639, in the context of a judge alone trial: [21] The paramount question in a criminal case is whether, on the whole of the evidence, the trier of fact is left with a reasonable doubtabout the guilt of the accused: W.(D.), at p. 758.

The order in which a trial judge makes credibility findings of witnesses is inconsequentialas long as the principle of reasonable doubt remains the central consideration. A verdict of guilt must not be based on a choice between theaccused’s evidence and the Crown’s evidence: R. v.

C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5, at paras. 6-8. … [26] I also note, to the same effect, these comments in R v Thalheimer, 2022 SKCA 25, 411 CCC (3d) 208 [Thalheimer]: [41] In R v Dinardo, 2008 SCC 24, [2008] 1 SCR 778 [Dinardo], Charron J. – referring to the decision there under appeal – explainedthe principles underlying W.(D.) as follows: [23] … What matters is that the substance of the W.(D.) instruction be respected.

In a case that turns on credibility, such as this one, thetrial judge must direct his or her mind to the decisive question of whether the accused’s evidence, considered in the context of theevidence as a whole, raises a reasonable doubt as to his guilt. Put differently, the trial judge must consider whether the evidence as a wholeestablishes the accused’s guilt beyond a reasonable doubt. … [42] To allege that a trial judge has erred in the application of W.(D.) is to allege that they have erred by failing to properly deal withthis decisive question.

Where, as here, credibility is important because the accused has given evidence which conflicts with the Crown’sevidence, a W.(D.) instruction highlights that this decisive question cannot be answered by conducting a credibility contest: see, forexample, R v Van Deventer, 2021 SKCA 163 at para 20 [Van Deventer]; R v Hoskins, 2021 SKCA 23 at para 98; and R v C.L.Y., 2008SCC 2 at para 6, [2008] 1 SCR 5. It stresses that a trial judge or jury may acquit even if they do not believe the accused.

Indeed, itemphasizes that they must consider all of the evidence and must acquit if they have a reasonable doubt, based on the evidence they doaccept. If a trial judge has failed to do these things they have erred in law. The question of whether they have done so is accordinglyreviewable on the correctness standard. [27] M.J. submits that the trial judge did not merely incorrectly describe the W.(D.) formula. Rather, he contends that the trialjudge’s reasons demonstrate that he conducted his analysis in accordance with that incorrect description, thereby failing to answer thedecisive question.

In his opinion, the trial judge conducted a credibility contest. [28] The Crown disagrees. It notes that the trial judge’s reasons must be read as a whole and in the context of the evidence andsubmissions of counsel. It relies on the proposition that an appellate court should not “parse” the reasons of the trial judge, and on thepresumption of correct application – that is, that a judge is presumed to know and apply the law. It points out that a trial judge need notrefer to all of the evidence, or indeed, to every frailty in the evidence. [29] These principles have been repeatedly affirmed by the case law.

I note, for example, the following

summary in R v Chung,2020 SCC 8, 386 CCC (3d) 523: [13] When interpreting a trial judge’s reasons, appellate courts should not parse the reasons of the trial judge in a line by line search forerrors. Instead, the reasons are to be “read as a whole, in the context of the evidence, the issues and the arguments at trial, together with‘an appreciation of the purposes or functions for which they are delivered’” (R. v. Laboucan, 2010 SCC 12, [2010] 1 S.C.R. 397, at para.16, quoting R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 16). Appellate courts must attempt to understand the reasoning of thetrial judge.

However, even if the trial judge articulates the right test, appellate courts may find an error of law if the judge’s reasoning andapplication demonstrate a failure to properly apprehend the law (George, at para. 16). [30] The last sentence in this passage reflects the fact that the principles emphasized by the Crown should not be interpreted in amanner that precludes effective appellate review and the careful consideration of the reasons.

The reasons, read in the context of theevidence, the issues and the arguments at trial, are all an appellate court has to determine if an accused has been found guilty inaccordance with the law. Appellate courts should not uphold judgments that disclose material errors that have resulted in an unreasonableverdict or a miscarriage of justice, simply because there was a correct route that could have been taken to achieve that result: R v Sinclair,2011 SCC 40 at paras 22–24, [2011] 3 SCR 3; R v Beaudry, 2007 SCC 5 at para 97, [2007] 1 SCR 190.

As this Court observed inThalheimer in dealing with the presumption of correct application: [56] None of this should be taken to mean that the specific and problematic language chosen by the trial judge that may signal an errorshould be glossed over or cannot be found to be highly significant. Such language is also part of the reasons as a whole and may,depending on the context, be an important factor in understanding those reasons.

As Brown and Rowe JJ. commented in their concurringjudgment in R v G.F., 2021 SCC 20, 459 DLR (4th) 375 [G.F.]: [108] … Whether an appellate court can be said to have appropriately reviewed or inappropriately “parsed” a trial judge’s reasons in asearch for error will depend entirely on the reasons and record in each case. … [58] … [T]he bedrock principle of contextual

interpretation always applies. … [59] Further, the presumption of correct application – which, as some commentators have pointed out, is based on questionableassumptions (David M. Tanovich, “Testing the Presumption That Trial Judges Know the Law: The Case of W. (D.)” (2001) 43 CR (5th)

298 ; Palma Paciocco, “Presumptions, Assumptions, and Reasons for Reasons: The Sufficiency of Trial Judgments After R. v. G.F. ” (2021) 71 CR (7th) 54 ) – has limited scope, relates only to the basic principles of criminal law, and is a presumption, not an invariable rule. Professor Don Stuart, Faculty of Law, Queen’s University, suggests that “decisions involving ambiguity on a key issue should not be resolved by a presumption of accuracy. It is the presumption of innocence and the standard of proof beyond reasonable doubt that are at stake” (“ R v G.F. , Criminal Reports – Comments” (WL)).

I would agree that these fundamental principles must always govern. [ 31 ] Applying these principles to the conviction decision, it is my respectful opinion that the trial judge’s reasoning discloses legal errors. His analysis reflected one of the key flaws in his description of W.(D.) identified above; that is, he failed to consider M.J.’s evidence in the context of all of the evidence. This error was compounded by error in his analysis of the two specific issues he emphasized in assessing M.J.’s credibility.

My reasons for these conclusions are as follows. [ 32 ] First, the trial judge isolated and dealt expressly with only two narrow and discrete issues in his credibility analysis. To reiterate, he first made the following statement: Now, either [M.J.] lied to the Court about not knowing or caring about what had happened to his old cellphone, or [B.D.] decided to check for suspicious messages, or searches on a cellphone she had never seen him using.

Frankly, I think that the latter proposition is nonsensical. [ 33 ] He then dealt with the second discrete issue – the evidence that bookmarks for pornographic websites had been found on the iPhone – and, having rejected it because it did not “make any sense”, made the following credibility findings: … In the end, I do not believe much of [M.J.’s] testimony.

Where his testimony conflicts with [B.D.’s] testimony or the complainant’s testimony, I prefer their evidence, as I found both to be forthright and credible witnesses. [ 34 ] This credibility analysis, which was both brief and almost entirely taken up by the reasoning relating to these two discrete issues, accords with the trial judge’s incorrect description of the W.(D.) test. That is not to say that, as M.J. submits, the trial judge considered only evidence relating to these two issues. He found that the testimony of both B.D. and A.B was “forthright and credible”.

That being so, I am unable to conclude that he did not advert to all of their evidence, including that which did not relate to these two issues, such as A.B.’s evidence of what B.D. had said to her. [ 35 ] Further, I do not agree with M.J. that the either/or form in which the trial judge cast the first issue demonstrated that he treated this as a credibility contest. There was no dispute as to whether B.D. accessed the iPhone and that, but for the one occasion that he denied, she never saw him use the iPhone after they began living together.

That being so, I read the trial judge’s statement as meaning that, as a matter of logic and human experience, it would not make sense for B.D. to look at the iPhone if she had never seen M.J. use it. [ 36 ] However, this part of the reasons, read in light of the issues, the arguments, and the evidence at trial, does support the conclusion that the evidence taken into account for the purposes of the credibility analysis was not considered in the context of the evidence as a whole. The basic structure of the decision – while by no means conclusive – is of interest in this regard.

It deals with credibility not only prior to but, on the face of it, separately from the circumstantial evidence that the trial judge referred to after concluding that analysis. [ 37 ] In addition, there was undisputed evidence that B.D. had already looked at M.J.’s other devices, had found evidence he was conversing with other women, knew where his old iPhone was located, and looked at it to see if there was more of the same. The trial judge found that this was so.

If the trial judge had considered that evidence when dealing with the first discrete issue, and the evidence that their relationship was on its final legs, he may still have concluded that B.D. found M.J. with the iPhone in hand. However, he could not reasonably have found the proposition that she would look at the iPhone absent that fact to be “nonsensical”.

He either failed to take that evidence into account or relied on unwarranted and unfounded assumptions about human behaviour – an error of a different sort that is dealt with below. [ 38 ] The analysis of the bookmarks issue also reflects error of a different sort. The trial judge rejected M.J.’s evidence that he did not remember creating the bookmarks and did not think he had done so, because the trial judge found that it did not “make any sense”. He explained why he reached that conclusion; that is: … If you see a pornographic video, you don’t forget it, or you don’t forget that you saw it.

Similarly, a person who searches for pornographic websites on the internet and books -- book marks some sites does not forget doing so. … [ 39 ] This reasoning is either based on stereotypical inferences about human behaviour, or constitutes speculation based on common sense assumptions that were not grounded in the evidence or properly the subject of judicial notice. In either case, it constitutes error: see generally R v JC , 2021 ONCA 131 at paras 57–71 , 401 CCC (3d) 433.

These principles were nicely summarized by Fitch J.A. in R v Pastro , 2021 BCCA 149 , 71 CR (7th) 296: [ 40 ] As Justice Paciocco recently cautioned in R. v. J.C. , 2021 ONCA 131 at para. 58 , “judges must avoid speculative reasoning that invokes ‘common-sense’ assumptions that are not grounded in the evidence or appropriately supported by judicial notice”. The prohibition has found expression in a number of recent cases: see, for example, R. v. A.R.D. , 2017 ABCA 237 at paras. 6-9 , 28, 43-44, 71, aff’d 2018 SCC 6 ; R. v.

Paulos , 2018 ABCA 433 at paras. 26-29 , 34, 39, leave to appeal ref’d (2020), [2019] S.C.C.A. No. 336; R. v. C.M.M. , 2020 BCCA 56 at paras. 138-139 ; R. v. Kodwat , 2017 YKCA 11 at paras. 27-28 , 41. [ 41 ] Judges are entitled, and expected, to rely on their life experience in making credibility findings. This necessarily includes drawing common-sense inferences from established facts. Juries are routinely instructed along the same lines—to come to common-sense conclusions based on the evidence they accept.

Where it is apparent from a review of the reasons as a whole that a credibility assessment is rooted in the evidence, and is the product of a case-specific determination about what the complainant and accused did or did not do, there will be no basis for appellate intervention, absent palpable and overriding error in fact: see R. v. Mann , 2020 BCCA 353 at paras. 72- 76 ; R. v. Quartey , 2018 ABCA 12 at paras. 21 , 34-35, aff’d 2018 SCC 59 . This is consistent with the deferential standard of review that applies to factual findings and with the profound functional and policy justifications that underlie it.

[ 42 ] The corollary is that judges must avoid purporting to make factual findings that are rooted in inappropriate behavioural assumptions and stereotypes. … [ 43 ] As is apparent from the foregoing, judges risk falling into reversible error if they make credibility determinations by relying on assumptions about the type of behaviour that would “normally” be expected of a person without engaging with the evidence, including the context in which contentious events arose: R. v.

Roth , 2020 BCCA 240 at paras. 64-65 , 71-73. [40] Further, it is only after considering the two discrete issues that the trial judge considered “all of the evidence”, and in particular, the circumstantial evidence relevant to the question of whether anyone other than M.J. might have created the videos. For the reasons explained above, that too was an error. [41] These errors had a major impact on the trial judge’s credibility analysis. However, the question remains as to whether they affected the reasoning that resulted in these convictions. In my view, they did not.

Let me explain. [42] There is no doubt that the trial judge’s conclusion that M.J. lacked credibility and that he believed B.D. where their evidence differed was important. That conclusion meant that the trial judge did not believe M.J.’s denial that he took the videos. It also meant that he believed B.D.’s evidence that M.J. knew where the iPhone was and kept it at hand, that she had seen him looking at it, and that he had made inculpatory statements when she finally confronted him.

If the trial judge had relied on this evidence to convict M.J., I would have concluded that the convictions should be set aside, as they would have been grounded in a legally flawed credibility analysis. [43] However, the trial judge did not rely on the results of his credibility analysis. To the contrary, he erroneously stated that “the Crown’s case against [M.J.] in relation to the voyeurism and child pornography charges is entirely circumstantial”. That this was more than a slip of the tongue is confirmed by what followed. Having made this statement, the trial judge proceeded accordingly.

He analyzed the circumstantial evidence bearing on the question of whether someone other than M.J. could have created the videos in the manner required by R v Villaroman , 2016 SCC 33 at para 55 , [2016] 1 SCR 1000 [ Villaroman ]; that is, “[w]here the Crown’s case depends on circumstantial evidence, the question becomes whether the trier of fact, acting judicially, could reasonably be satisfied that the accused’s guilt was the only reasonable conclusion available on the totality of the evidence”. [ 44 ] Importantly, there was no conflicting evidence as to the facts the trial judge took into account in his Villaroman analysis – that is, as to how the house was configured, where the iPhone was at the time, the condition of the iPhone and that it was not being used as a phone, and who was present in the house from time to time.

Further, there is nothing to suggest that the trial judge’s credibility findings indirectly influenced the Villaroman analysis. He found that the likelihood that someone other than M.J. was the perpetrator was “so vanishingly small that on the evidence before me, the only reasonable conclusion I can come to is that [M.J.] is the person who created the videos of the complainant”.

His reference to the “evidence before me” was to the uncontested circumstantial evidence, not the evidence affected by the credibility analysis. [ 45 ] In Villaroman , the Supreme Court of Canada affirmed that where a case turns on circumstantial evidence it is for the trial judge to decide whether the evidence as a whole and the absence of evidence, considered in light of human experience, excludes all reasonable inferences other than guilt (at para 69).

In R v Power , 2022 SKCA 24 , Kalmakoff J.A. summarized the standard of review to be applied to such a finding as follows: [75] When the Crown’s case depends substantially or entirely on circumstantial evidence the criminal standard of proof requires the trier of fact to be satisfied beyond a reasonable doubt that the accused’s guilt is the only reasonable inference to be drawn from the evidence as a whole ( Villaroman at para 20 ).

When a verdict based on circumstantial evidence is challenged as being unreasonable, the question for an appellate court is whether the trier of fact, acting judicially, could reasonably have been satisfied that the guilt of the accused was the only reasonable conclusion available on the evidence taken as a whole ( Villaroman at para 55 ; R v Groshok , 2019 SKCA 39 at para 40 ). [ 46 ] Here, the trial judge did not, as Villaroman directs, draw the inference that the only reasonable conclusion was that M.J. created the videos based on the evidence as a whole.

He did not advert to the evidence that M.J. had been found with the iPhone in hand and had made inculpatory statements when he was confronted by B.D. Nor did he advert to the exculpatory evidence given by M.J., including his direct denial that he created the videos.

However, these errors played no role in the finding that the Crown had proved that M.J. had committed these offences, based as it was solely on other circumstantial evidence that the trial judge separately concluded was inconsistent with that denial. [ 47 ] M.J. does not contend that the trial judge made a palpable and overriding error in deciding the Villaroman question as he did. Nor does he suggest that the Villaroman analysis is flawed as a result of the failure to consider his denial.

Rather, he asserts that the trial judge erred by failing to advert to other circumstantial evidence and, as a result, did not consider other reasonable alternatives to guilt.

He notes, among other things, the evidence as to the frequent presence of others in the house; his own frequent absences; the isolated second floor location of the only bathroom; the readily apparent hole in the door; the forensic evidence that suggested the videos were taken on only two of A.B.’s visits; and the evidence that he was not the only user of the iPhone. [ 48 ] I agree that the trial judge did not specifically refer to these details in his analysis. Nonetheless, I am not persuaded that he did not take them into account.

In his review of the undisputed facts, the trial judge pointed to the location of the bathroom, the condition of the door, and the forensic evidence. He noted where the iPhone was kept at the time the videos were made – in M.J.’s bedside drawer. He did not comment specifically about the evidence of renovations and the frequent presence of friends at the house.

However, that evidence was referred to by counsel for both the Crown and M.J. in their closing arguments, and the trial judge certainly considered the question of whether others who were present in the house could have repeatedly accessed the iPhone and made the videos.

In light of all of this, I am not satisfied the failure to expressly identify those various other actors who were present demonstrates that he did not consider the evidence about their comings and goings. [ 49 ] As noted above, the standard of review that applies to this aspect of the appeal is whether the trial judge, acting judicially, could reasonably have been satisfied that the guilt of the accused was the only reasonable conclusion available on the evidence. It is my view that the trial judge’s finding that the only reasonable inference to be drawn based on the circumstantial evidence he took into account

was that M.J. created the video was reasonable. For that reason, there is no basis for appellate intervention. [ 50 ] I recognize that this is an unusual outcome in light of my conclusion that the trial judge erred in a manner that affected his credibility analysis. However, this is an unusual case, in that the errors in the trial judge’s W.(D.) analysis were immaterial because the trial judge grounded the conviction solely on uncontested circumstantial evidence that was not affected by those errors.

It is also important that if the trial judge had considered that circumstantial evidence in the course of the credibility analysis, that evidence – given his conclusion that, taken alone, it could support only a finding of guilt – would have weighed heavily in favour of his conclusion that M.J.’s exculpatory evidence was not credible. There is no basis to find that it might have led him to believe M.J.’s denials or to conclude that his evidence raised a reasonable doubt. V. CONCLUSION [ 51 ] For these reasons, I would dismiss the appeal.

M.J. is hereby directed to surrender himself into custody at the Saskatoon Correctional Centre in Saskatoon, Saskatchewan, within 48 hours following the release of this judgment. “Barrington-Foote J.A.” Barrington-Foote J.A. I concur. “Ottenbreit J.A.” Ottenbreit J.A. I concur. “Tholl J.A.” Tholl J.A.