R v J.A., 2023 SKCA 119

Restriction on Publication An order has been made in accordance with s. 486.4(1) of the Criminal Code and s. 110(1) of the YCJA directing that any information identifying the complainant or the young person shall not be published. Court of Appeal for Saskatchewan Docket: CACR3549 Citation: R v J.A. , 2023 SKCA 119 Date: 2023-10-30 Between: His Majesty the King Appellant And J.A. Respondent Before: Schwann, Barrington-Foote and Drennan JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Madam Justice Drennan In concurrence: The Honourable Madam Justice Schwann The Honourable Mr.

Justice Barrington-Foote On appeal from: Provincial Court, Beardy’s/Okemasis First Nation Appeal heard: September 19, 2023 Counsel: Erin Bartsch and Andrew Clements for the Appellant Carl Swenson and Nicole Bree for the Respondent Drennan J.A. I. INTRODUCTION [ 1 ] The Crown appeals from the acquittal of J.A. by a Provincial Court judge for charges pursuant to s. 271 and s. 151 of the Criminal Code . It argues that the trial judge committed two errors in law. First, it submits that the trial judge erred by failing to consider the whole of the evidence, and by misapprehending the evidence.

Second, it asserts that the trial judge erred in refusing to allow the Crown to re-examine the complainant. [ 2 ] As I will explain, I disagree with the Crown’s submission that the trial judge erred in the ways alleged. As a result, the appeal must be dismissed. II. THE TRIAL [ 3 ] The incident giving rise to the charges against J.A. occurred at a graduation party that was attended by approximately 80 people on July 10, 2021. The Crown witnesses and J.A. were present at that party.

They were youths at the time. [ 4 ] The complainant’s evidence at trial consisted of her statement to police, which was entered into evidence pursuant to s. 715.1 of the Criminal Code , and her viva voce testimony. To summarize, the complainant testified to being intoxicated on the night in question. She could not recall whose house the party was at. She was “blacked out” at various times and described herself as being 10 out of 10 on an intoxication scale (being “black out drunk”).

She had difficulties remembering many aspects of the evening. [ 5 ] The complainant testified that, at one point in the evening, she left the house to get water for a friend. While walking past a vehicle in the yard, she was grabbed by an individual. Her account of what happened evolved throughout her testimony, her evidence was that this person groped her and made her touch his penis over his pants. She later stated that he touched her vagina overtop of her underwear and penetrated her vagina with his fingers. [ 6 ] The complainant’s friend, M.S., also attended the party.

At some point during the complainant’s encounter with the assailant, the complainant testified to hearing M.S. ask who was with her (the complainant). The assailant replied, “[J.]”. M.S. then asked, “[J.A.]?”, to which the assailant responded, “Yeah, [J.]”. [ 7 ] The complainant identified J.A. in court as the person who had touched her. She testified that she did not know J.A. but had heard of him from friends. In cross-examination, the complainant conceded that she had no memory of what her assailant looked like but said she could “feel” him.

She testified that she did not see his face or know what he was wearing. [ 8 ] M.S. also testified to having attended the graduation party. According to M.S.’s testimony, while walking outside to get water for a friend, she saw the complainant and another individual up against a car. She said the individual was touching the complainant, grabbing her face, and kissing it. M.S. asked the complainant who she was with, and if the complainant would come with her. Both the complainant and the individual followed M.S. into the middle of a field. M.S. said it was dark and there were no lights. M.S. testified that

she put the following question to the individual “You’re [J.A.]?” to which he said, “Yes”. She then asked him if his brother was R.A., and he responded affirmatively. After this brief exchange, M.S. said she saw the complainant push the individual off of her. M.S. asked the complainant to come with her and began walking away. However, when she looked back, the complainant and the other individual were gone. M.S. did not see the complainant again until morning. [ 9 ] M.S. testified in cross-examination as follows: Q Okay.

So when you first are walking by this car, you see two people sitting up against it; you don’t know what time this is around? A I’d probably say 3. Q Three? A Yeah Q It was dark out? A Yes. Q And there’s no lights around? A No. Q And one of the people up against that car you recognized as [the complainant]. A Yes. Q And did you have a short conversation with her at this point? A Yes. Q And you -- at this point, you don’t see anything out of the ordinary. A What does that mean? Q Like, you didn’t notice that anything was off or wrong. A Yes. Q So you tell her that you’re going to find [T.]? A Yes.

Q Do you remember this exact conversation that you had? A Yes. Q So as soon as you get there, you see everything’s fine, you’re going to go find [T.]. A Yes. Q And you didn’t know who the person she was with, right? A Yes. Q You didn’t get -- you didn’t see his face. A No. [ 10 ] M.S. testified that she knew J.A. for years prior to the party, as she had played sports with his little sister. She identified J.A. in the courtroom as the person she saw touching the complainant. III. THE TRIAL DECISION [ 11 ] The trial judge gave an oral decision following a brief adjournment at the conclusion of the trial.

He found both the complainant and M.S. were honest and credible witnesses. He noted that they both had been drinking on the night in question, with the complainant having consumed more alcohol than M.S. and having significant gaps in her memory. [ 12 ] However, the trial judge was left with a reasonable doubt as to the identity of the assailant, which led him to acquit J.A. He summarized the pertinent evidence, and his conclusion, as follows: Beginning with [M.S.], what she saw, according to her testimony, is in the dark and the complainant up against a truck with an unknown male beside her.

There was nothing particularly out of the ordinary that she saw there. She said that the male, when she approached, took the complainant’s face in his hands and pulled her towards him to kiss her. Now, [M.S.] testified that she knows [J.A.] and has known him for some time. Yet apparently, it was so dark out that she could not see his face. And she had to ask the complainant who this guy was and the complainant said, I don’t know, I just met him. And then [M.S.] asked the guy what his name was and he said [J.].

And it’s not completely clear in my notes as to whether he said [J.A.] or whether she said, [J.], are you [J.A.]? And then asked about a brother or something. But she was close enough to be talking to both of them. She did not -- she testified that she knew [J.A.] and has known him for some time, and yet on that night of July 10th, or early morning July 11th last year, she did not recognize the fellow that was with her friend, [the complainant], as [J.A.].

More importantly, the complainant in her testimony and in examination in-chief, other than admitting that parts of her story she couldn’t quite remember, and the part of her story that in fact involved [M.S.] came mostly from [M.S.] and what [M.S.] had told her, she said that it was dark. She can’t remember what her assailant was wearing. Although, in the police -- in her statement to the police she described [J.A.] as someone who wears glasses, she didn’t -- she said that she didn’t see the face of the person who assaulted her.

She didn’t say that the person who assaulted her had glasses, let alone what he was wearing. She heard him tell [M.S.] that his name was [J.]. Now, she doesn’t have the background where she knew [J.] for a long period of time. But still, she didn’t say that she even saw glasses on the face of the person who assaulted her. And most importantly, in cross-examination, and the cross-examination was -- was careful and thorough but in no way sort of forcefully attacking the young witness, she became quite emotional as she got to the end of cross-examination and finally, admitted that she cannot

be sure that [J.A.] is the person who assaulted her that night. And frankly, if she can’t be sure that it was [J.A.], nor can I. That is the essence of what reasonable doubt is. So in the end, I am -- based on the testimony of both Crown witnesses, who as I say again, were both as honest as they could be aboutwhat they remembered, I am left with a reasonable doubt as to whether [J.A.] was the person who assaulted [the complainant] on the nightin question. And for that reason, I acquit him of all charges. IV. ANALYSIS [13] The Crown’s burden on an appeal from an acquittal is a heavy one (R v Morin, (SCC), [1988] 2 SCR 345 at374). For it to succeed, the Crown must demonstrate that (

a) the trial judge erred in law, and (

b) the legal error had a “material bearing onthe acquittal” (R v Legresley, 2023 SKCA 71 at para 23; R v Graveline, 2006 SCC 16 at para 14, [2006] 1 SCR 609; see also R v Sutton,2000 SCC 50, [2000] 2 SCR 595, citing R v Vezeau, (SCC), [1977] 2 SCR 277; R v Cullen, (SCC), [1949]SCR 658). [14] While the Crown need not prove that the verdict “would necessarily have been different” (R v Graveline at para 14), it mustshow with a “reasonable degree of certainty that the outcome may well have been affected” by the error in law (R v Morin at 374).

Inassessing whether an error had a “material bearing” on the verdict, the Crown is required to point to something more than “an abstract orpurely hypothetical possibility that the accused would have been convicted but for the error of law” (R v Graveline at para 14). [15] With these principles in mind, I will now address the Crown’s two assertions of error by the trial judge. A.

Failure to consider the totality of the evidence and misapprehension of theevidence [16] In its first argument, the Crown asserts that the trial judge erred in law by failing to consider the whole of the evidence onidentification (see R v J.M.H., 2011 SCC 45 at para 31, [2011] 3 SCR 197, and R v Necroche, 2018 SKCA 24 at para 38) and that hemisapprehended material evidence. Specifically, the Crown argues that the trial judge’s reasons suggest a failure to appreciate that(

a) M.S. did see the assailant and had been able to identify him at the time of the alleged incident, (

b) both M.S. and the complainant wereable to identify the assailant in court as being J.A., and (

c) the complainant’s “ambiguous” answer given in cross-examination (i.e., thatshe did not know the assailant’s name was J.A. at the time) did not undermine her identification of J.A. as the person who had assaultedher. The Crown’s overarching submission is that there was ample evidence identifying J.A. as the assailant, and that the trial judge erredby considering portions of that evidence in isolation. [17] Section 676(1)(

a) of the Criminal Code limits a Crown appeal from an acquittal to a question of law. The Crown frames thisaspect of its appeal as a failure to consider the totality of the evidence (being an error in law), or a misapprehension of the evidence (whichmay in some circumstances constitute an error in law, and in others, an error of mixed fact and law from which the Crown has no right ofappeal.

See: R v Chu, 2023 ONCA 183 at para 17; R v J.M.H. at paras 24–39; see also R v Solivio, 2022 SKCA 117 at para 54, [2022] 12WWR 594, citing R v Morrissey (1995), (ON CA), 97 CCC (3d) 193 (Ont CA); and R v Lohrer, 2004 SCC 80, [2004] 3SCR 732). [18] It is not necessary to determine whether this aspect of the Crown’s argument raises issues of pure law, or mixed fact and law, asI agree with J.A.’s submission that a functional review of the record does not disclose any mistreatment of the evidence by the trial judge,nor a failure to consider it in its totality.

The trial judge was alive to the key aspects of M.S.’s evidence, including her inquiry as to theassailant’s name, who his brother was, and the responses he gave to her questions. The trial judge correctly noted that at one point –although the applicable timeframe is somewhat unclear from the record – M.S. had testified that she did not see the assailant’s face. [19] The trial judge also summarized and considered the evidence of the complainant, which suffered from significant frailties.

Hecorrectly noted that at the time of the incident she could not identify the assailant as being J.A. – but also, importantly, that she did not seeher assailant’s face and could not describe him. [20] To summarize, the trial judge’s overall findings with respect to the identification evidence were open to him on the record andwere consistent with his having considered the totality of the evidence.

I am not persuaded that his statement that “if [the complainant]can’t be sure that it was [J.A.], nor can I” meant that he had considered her evidence alone, rather than as part of the evidence as a whole.He specifically concluded in his reasons that after considering the evidence of both M.S. and the complainant, he was left with areasonable doubt.

Although he did not mention every aspect of the testimony of each witness, this is not in and of itself an error of law (seeR v Pelletier, 2016 SKCA 62 at para 39, 480 Sask R 56, citing R v R.E.M., 2008 SCC 51 at para 64, [2008] 3 SCR 3) so long as thereasons show that he grappled with the substance of the live issues at trial. I am satisfied that they do. [21] For these reasons, I am unable to conclude that the trial judge erred by failing to consider the totality of the evidence or that hemisapprehended the evidence. B.

Refusal to permit the Crown to re-examine the complainant [22] The Crown’s second submission is that the trial judge erred by denying the Crown leave to re-examine the complainant forpurposes of clarifying what it describes on appeal as her ambiguous answer to the following question that was put to her by defencecounsel at the close of her cross-examination: Q So you just believed this was [J.] based on what this person was telling you? A Well, he said it was him. Like, he said, “yeah, [J.]”.

Q But you don’t know for sure if it was [J.A.].A No, I did not. [23] The Crown applied to re-examine the complainant in connection with that exchange, but defence counsel objected to theCrown’s request. The following discussion ensued, in which the trial judge ruled that there was no need to clarify the complainant’sresponse as he found it was “not confusing”: MS. BREE: Your Honour, prior to the complainant coming back in, defence wasobjecting to my friend’s question in re-direct.THE COURT: Okay. We might as well lay that out right now.MS.

BREE: But Your Honour, we are submitting that the question has been put tothe complainant a number of times in direct. So that question has beenasked and answered. And that it would be very prejudicial to the accusedto put that to the complainant yet again.THE COURT: Thank you. Ms. Laing.MS. LAING: The purpose of re-examination is largely rehabilitative and explanatoryas we all know. That is the state of the law. The answer or the questionput to the complainant by defence was confusing.

It should havebeen the basis for an objection, but I’m entitled to clarify thatambiguity in re-examination as well.THE COURT: How was it confusing?MS. LAING: What was asked is that -- I believe, is that what you’re saying is that youdon’t know it was [J.A.] who assaulted you.THE COURT: Right.MS. LAING: Which is confusing. She does know it was [J.A.]. She’s identified him incourt. She just didn’t know his last name.THE COURT: That’s not confusing. In my view.MS. LAING: Yeah. It’s not a strong point.

But if it’s not confusing, then I don’t see aneed to even go there again.THE COURT: And so re-examination is only if there is something new in -- that cameup in cross that wasn’t covered in -- in examination in-chief. Thequestion itself, in my view, is not confusing and there’s really nothingnew has been brought up in cross-examination that’s in relation to anyquestions that you started to ask her. So I’m not going to allow that lineof re-examination.MS. LAING: There’s really no need to. It’s just to clarify the confusing point thatwas left off on. But there’s really no need to.

I think it’s fairly clearon the record, so …THE COURT: Okay. (Emphasis added) [24] The Crown argues that the trial judge’s alleged legal error was bound up in the exercise of his trial management discretion, i.e.,that he misunderstood or misapplied the legal principles governing the right to re-examination, in determining that the complainant’sanswer did not require clarification, and thereby erroneously denied the Crown’s request to re-examine her. It asserts the answer providedby the complainant was ultimately material to the verdict, as evidenced by its specific mention in the trial judge’s reasons.

The Crownsubmits that it was permitted as of right to re-examine its own witness to clarify an ambiguous response arising from the cross-examination. It cites R v Evans, (SCC), [1993] 2 SCR 629 [Evans SCC], and R v Samaniego, 2022 SCC 9, 412 CCC (3d)7, for the proposition that the trial judge’s refusal to permit re-examination raises a question of law.

J.A. disagrees with the Crown’sposition, citing R v Fanjoy, (SCC), [1985] 2 SCR 233 at 238–239, in support of his argument that a trial judge’sdetermination on the question of whether to permit re-examination involves a question of mixed fact and law, from which the Crown hasno right of appeal. [25] The characterization of whether an error in the discretionary exercise of trial management powers, is one of pure law versusmixed fact and law, is, in my view, fact dependent. It will turn on the nature of the evidentiary principles engaged and the correspondinguse of a trial judge’s management powers.

For example, both the British Columbia Court of Appeal in R v Evans (1992), (BC CA), 70 CCC (3d) 489 (WL) (BCCA) at para 46, and the Supreme Court in Evans SCC treated the trial judge’s determination of theadmissibility of a line of questioning in re-examination as being a question of law. Other Courts have adopted a similar approach (see forexample, R v Nelson, 2021 NSCA 11). In R v Samaniego, a trial judge’s intervention in cross-examination and the evidentiary principlesgoverning it was also treated as a question of law (citing R v Biniaris, 2000 SCC 15 at para 23, [2000] 1 SCR 381).

In contrast, the PrinceEdward Island Court of Appeal in R v Stead, 2020 PECA 6 at paras 24–27, 390 CCC (3d) 117, treated a trial judge’s ruling on theadmissibility of a new matter in re-examination as being a question of mixed fact and law. [26] In this instance, I need not determine whether this ground of appeal raises a pure question of law, as suggested by the Crown.That is so because, in my view, the trial judge correctly exercised his trial management powers by determining that (

a) the complainant’sanswer was clear and unambiguous, and (

b) nothing new had arisen in cross-examination that required re-examination. I reach thisconclusion as the above quoted exchange between counsel and the trial judge is determinative of the issue in several ways. [27] First, Crown trial counsel articulated the correct law with respect to re-examination (as per Evans SCC) and framed her requestto re-examine the complainant as being for the purpose of clarification on a specific question and response only, as opposed to the broaderpurpose of witness rehabilitation.

In response to that argument, defence counsel objected to the request to re-examine the complainant,saying there was no need for clarification and that the matter had already been addressed in examination-in-chief. This exchange framedthe purpose and scope of the proposed re-examination for the trial judge’s consideration and ultimate ruling. [28] Second, the trial judge exercised his trial management discretion, ruled on the objection, and applied the relevant legal

principles in a manner that was responsive to how counsel had characterized the issue. The issue was confined to a request to clarify the complainant’s answer in light of the whole of her evidence, and the inquiries that had previously been put to her.

The trial judge’s conclusion that the question and answer was clear, and that no new matters had arisen, properly recognized that parties do not have an unfettered and open-ended right to re-examination of a witness. “ Questions permitted as of right on re- examination must relate to matters arising out of cross-examination which deal with new matters , or with matters raised in examination-in-chief which require explanation as to questions put and answers given in cross-examination” ( Evans SCC at 644, emphasis added; see also R v A. J.

D. , 2022 ONCA 867 at para 64 , citing R v Candir , 2009 ONCA 915 at para 148 , 250 CCC (3d) 139). [ 29 ] The central issue at trial was the identity of the assailant. This line of inquiry permeated the examinations of both Crown witnesses. The context for the complainant’s reply to this specific question could also not be viewed in isolation, notably her testimony that she (

a) did not see the face of her assailant (despite having told police in her statement that he was wearing glasses), (

b) could not describe what he was wearing, and (

c) had been told by her friend, M.S., after the fact who the assailant was. By way of bottom line, I see no error by the trial judge in his application of the relevant legal principles that governed the exercise of his trial management discretion. [ 30 ] Third, and finally, Crown trial counsel conceded that re-examination was not necessary. In her exchange with the trial judge, she stated, “Yeah. It’s not a strong point. But if it’s not confusing, then I don’t see a need to even go there again”, and later, “There’s really no need to [re-examine]. It’s just to clarify the confusing point that was left off on.

But there’s really no need to. I think its fairly clear on the record”. These submissions can be taken as an acknowledgment by Crown trial counsel that the trial judge’s ruling accorded with the appropriate legal framework for re-examination. [ 31 ] For these reasons, I am not persuaded that the trial judge erred in refusing to permit the Crown to re-examine the complainant. V. CONCLUSION [ 32 ] For the above reasons, I would dismiss the Crown’s appeal from J.A.’s acquittal. “Drennan J.A.” Drennan J.A. I concur. “Schwann J.A.” Schwann J.A. I concur. “Barrington-Foote J.A.” Barrington-Foote J.A.