R v Dorie, 2023 SKCA 7

Restriction on Publication An order has been made in accordance with s. 486.4(1) of the Criminal Code directing that any information identifying the complainant shall not be published. Court of Appeal for Saskatchewan Docket: CACR3519 Citation: R v Dorie , 2023 SKCA 7 Date: 2023-01-11 Between: Stanley Dorie Appellant And His Majesty the King Respondent Before: Caldwell, Leurer and Barrington-Foote JJ.A.

Disposition: Appeal allowed Written reasons by: The Court On appeal from: CRM 18 of 2019, Swift Current Appeal heard: June 6, 2022 Counsel: Brady Knight for the Appellant Grace Hession David for the Respondent The Court I. INTRODUCTION [ 1 ] Following a trial before a Provincial Court judge, Stanley Dorie was convicted of two counts of sexual assault: R v Dorie , 2018 SKPC 67 [ Trial Decision ]. Mr. Dorie appealed those convictions, and the sentence imposed because of them, to the Court of Queen’s Bench.

A judge of that court [appeal judge] dismissed his appeal: R v Dorie (10 January 2022) Swift Current, CRM 18 of 2019 (Sask QB) [ Appeal Decision ]. [ 2 ] Mr. Dorie seeks leave to appeal from the Appeal Decision , so far as it upheld his conviction. He does not ask for the right to appeal from the appeal judge’s decision to uphold his sentence should his convictions be allowed to stand. [ 3 ] Mr. Dorie’s appeal is compellingly meritorious in the particulars of his case and denial of leave would result in an injustice going unaddressed: R v Bray , 2017 SKCA 17 .

We therefore grant to him leave to appeal from his conviction, allow his appeal and direct that a new trial be held. Our reasons follow. II. BACKGROUND A. The charges [ 4 ] Mr. Dorie was charged under an information that alleged that, in 2015, he committed two sexual assaults, contrary to s. 271 of the Criminal Code . The first allegation was that, on or about March 2, 2015, Mr. Dorie rubbed himself against the backside of one complainant, J.M., without her consent. The second was that, on December 17 of the same year, Mr.

Dorie hugged and kissed the other complainant, D.A., without her consent. [ 5 ] Both offences were said to have occurred at the Okimaw Ochi Healing Lodge. The healing lodge is a federal prison for women operated by Correctional Service Canada. Mr. Dorie was the healing lodge’s acting deputy director. At the time of the alleged offences, the complainants were serving sentences there. B. The evidence [ 6 ] As noted, we conclude that a new trial is necessary. This is because we find that, for the reasons specified later in this judgment, the trial judge misapprehended evidence material to his assessment of Mr.

Dorie’s credibility. We will, therefore, summarize only the circumstances of the alleged sexual assaults that are relevant to the ground of appeal that lead us to order a new trial. [ 7 ] Mr. Dorie was tried over several days in 2018. The Crown called five witnesses, including the two complainants. Mr. Dorie testified and called four other witnesses. [ 8 ] J.M. testified that, before lunch on March 2, 2015, she was working in the kitchen of the healing lodge. She explained that, while she was bent over a counter writing on a piece of paper, Mr. Dorie came up behind her, pulled her shoulders back and thrust his

groin area into her buttocks area. J.M. stated that she could feel Mr. Dorie’s erect penis. J.M. made an exclamation. Mr. Dorie asked her,“Did you feel it?” According to J.M., this verbal exchange caused the kitchen manager, who was in a nearby room, to come into the area.J.M. did not report this incident to anyone until she was contacted by the authorities some time later. [9] To counter J.M.’s testimony, Mr. Dorie secured a log of entrances to the healing lodge [sign-in sheet]. The sign-in sheetpurportedly recorded his entry into the facility at 1:00 p.m. that day.

After the other Crown witnesses testified, but before evidence wasled by the defence, J.M. was recalled so that she could be questioned with this information in hand. [10] In respect of the second count, D.A. testified that, on December 17, 2015, she was lying on the bed in her room when Mr. Dorieentered. She said that he came over to her, knelt on the side of the bed and lifted off a blanket that covered her. He then gave her a hug.Although D.A. initially reciprocated the hug, she then “retreated”, and placed her hands on top of herself. Mr.

Dorie then leaned in as if tohug her and began to kiss her left cheek and then her lips. D.A. said that she pushed herself back as far as she could into her mattress andshe pursed her lips, but Mr. Dorie persisted in his kiss. This lasted for 10 or 20 seconds, after which he stood up and asked if that was“okay”. D.A. replied that her husband probably would not think so. They had no further conversation and Mr. Dorie left. D.A. reported theincident to several other residents of the lodge. She also brought the matter to the attention of an official at the lodge. [11] Mr. Dorie testified on his own behalf.

He explained that, as acting deputy director, he was second in command of the healinglodge, and reviewed various aspects of the operation of the institution. He also discussed his dealings with both J.M. and D.A. He deniedassaulting either of them. [12] Mr. Dorie said he had no specific recollection about interacting with J.M. on March 2, 2015. However, he testified, based onthe sign-in sheet, he could not have assaulted J.M. as she claimed because he did not arrive at the institution until 1:00 p.m. that day. [13] In relation to D.A.’s allegations, Mr.

Dorie explained that on December 17, 2015, there had been reports of the smuggling ofcontraband into the institution. In that context, he offered advice to several residents, including D.A. She thanked him for this advice andgave him an impromptu hug. Later that same day, because the institution was short-staffed, he volunteered to do rounds. He stopped atD.A.’s room and spoke with her. He provided details of this conversation. He denied having any physical contact with her at that time.

Hesaid that her description of events was a “lie”, although he acknowledged that there had been four or five occasions on which he hadhugged her. He said that only one of these instances of physical contact had been initiated by him. On that one occasion, D.A. had come tohis office crying because she had been denied parole; they spoke, and then he hugged her. [14] In cross-examination, Mr. Dorie was questioned about omissions in the sign-in sheet. He was challenged about his claimedrecollections of his conversation with D.A.

He was confronted about differences between his testimony and details in a statement he madeto the police. He was also questioned about the timing of his rounds on December 17, 2015. C. Trial Decision [15] The trial judge began his reasons with some background and by setting out the positions of the Crown and the defence. Heobserved that “J.M. and D.A. testified that the sexual assaults occurred and Mr. Dorie testified that they did not”. He added that, as therewere “only two people present during the alleged assaults, the credibility of the witnesses present is central” (Trial Decision at para 5).

Healso recorded that the defence had argued that the two charges were related, as they were “part of a scheme to falsely accuse Mr. Dorie”,to create the basis for a civil claim against Mr. Dorie and Correctional Service Canada (at para 4). The trial judge then self-instructed onthe principles affirmed in R v W.(D.), (SCC), [1991] 1 SCR 742. [16] After laying this foundation, the trial judge organized the remainder of his judgment under headings and subheadings. One ofthe headings was the “Credibility of Mr.

Dorie”, which in turn was further divided into three subheadings titled: “Front entrance logbook”, “Maintaining transparency and third party observation when dealing with residents” and “Statement to the RCMP”. The trialjudge’s analyses under these subheadings are the only reasons given by him for finding Mr. Dorie not to be a credible witness. We returnto discuss the first of the three reasons the trial judge gave for finding Mr. Dorie not to be credible later in this judgment. [17] In relation to the charge involving J.M., the trial judge first considered Mr. Dorie’s alibi defence. He observed that Mr.

Dorie“testified that he has no independent recollection of the day [of] March 2, 2015” and that he said that he could not have committed theoffence on that date based on the contents of the staff sign-in sheet (at para 13). The trial judge reviewed the evidence surrounding themaking of that record. He found it to be a “self-serving document as it relates to Mr. Dorie” and “unreliable as to when Mr. Dorie attendedthe lodge on March 2, 2015”. Accordingly, he gave it “no weight” (at para 30). [18] The trial judge concluded that it was “not clear what date the alleged assault against J.M. took place”.

He also observed that“the alleged assault J.M. has testified to was on or about March 2, 2015, meaning that it could have been March 2 or another day nearMarch 2, 2015” (at para 37). The trial judge then reviewed the evidence. He concluded his analysis in relation to the charge involvingJ.M. by stating as follows: [131] I find that the incident occurred on or about March 2, 2015, but may not have occurred on March 2, 2015.

However, despite notbeing able to determine the exact date, I have no doubt that the sexual assault did occur in the manner that J.M. described. [132] In accepting J.M.’s testimony, I reject the defence argument that she was involved in a scheme with D.A. to fabricate falseallegations against Mr. Dorie in order to sue Corrections Canada for financial gain, so that D.A. could pay off her restitution order. Thereis no evidence to support such a position. [133] In applying the test of W.D., I reject Mr.

Dorie’s evidence that he did not sexually assault J.M., nor that he had actedinappropriately with her over the months prior. Considering all of the evidence that I accept, I find that the Crown has proven beyond areasonable doubt the charge that Mr. Dorie sexually assaulted J.M., and find him guilty as charged. [19] The trial judge structured his remaining consideration of the charge involving D.A. in a similar way. He reviewed the evidence.He concluded that “Mr. Dorie had a special relationship with D.A.”. He found that she had a “level of comfort” with Mr. Dorie “so that she

was comfortable in giving and receiving hugs from him” but that “Mr. Dorie took this relationship too far which resulted in inappropriateconduct when he kissed D.A. after a consensual hug”. He described this as “an unwanted kiss and it was for a sexual purpose onMr. Dorie’s part” (at para 165). The trial judge ended his judgment in relation to this charge by stating as follows: [170] I reject the evidence of Mr. Dorie as to the events in D.A.’s room on December 17th, 2015 for the same concerns about hiscredibility as previously outlined in this decision.

In applying the W.D. test, I find that I am not left with a reasonable doubt as to Mr.Dorie’s guilt. When looking at all the evidence that I accept, I find that the Crown has proven the charge of sexual assault by unwantedkissing beyond a reasonable doubt and I find Mr. Dorie guilty of sexual assault against D.A. [20] Ultimately, the trial judge sentenced Mr. Dorie to 15 months of incarceration for the offence pertaining to J.M. and to 12months’ incarceration for the offence pertaining to D.A. The latter sentence was to be served concurrently to the first. D. Appeal Decision [21] Mr.

Dorie appealed from both the convictions and the sentences to the Court of Queen’s Bench. The appeal judge rejected bothappeals. [22] Before the appeal judge, Mr. Dorie argued that the trial judge erred in his credibility findings. The appeal judge found “nobasis to interfere with the trial judge’s finding that Mr. Dorie lacked credibility which resulted in the trial judge not believing him andrejecting his evidence” (Appeal Decision at para 42). He similarly concluded that Mr.

Dorie had not “shown a need for appellateintervention respecting the trial judge’s assessment” of the credibility of either of the complainants (at para 55 in relation to J.M. and atpara 60 in relation to D.A.). [23] Mr. Dorie also argued that the trial judge erred in finding that the sign-in sheet was unreliable and should be given no weight.After considering the evidence and Mr. Dorie’s submissions, the appeal judge concluded that he could “see no basis to disturb thisfinding” (at para 66). [24] Mr. Dorie’s final argument was that the trial judge had erred in his W.(D.) analysis. Mr.

Dorie’s major point of attack under thisground was that, while the trial judge may have correctly applied the first branch of W.(D.), he “failed to engage the second and thirdbranches” (at para 70). The appeal judge rejected this submission. He found that, although “the language used by the trial judge did notpay specific homage to the wording in W.(D.), nevertheless it is clear that the trial judge used the second and third branch of the test tomake his determination of reasonable doubt” (at para 79). III. ISSUES [25] Mr. Dorie advances several grounds of appeal from the Appeal Decision.

We have determined that the appeal judge erred byfailing to conclude that the trial judge misapprehended the evidence surrounding the sign-in sheet. This error necessitates a new trial.Because of our conclusion on this issue, we do not need to address Mr. Dorie’s other grounds of appeal. IV. ANALYSIS A. The appeal judge’s failure to correct for the trial judge’s misapprehensionof evidence [26] The decisive ground of appeal in this case is the appeal judge’s failure to correctly address the trial judge’s misapprehension ofevidence in connection with the first of the three reasons he gave for finding Mr.

Dorie not to be a credible witness. This had to do with theevidence surrounding a sign-in sheet, found in a log book that was intended to record the entry and exit of people from the healing lodge [27] As part of his assessment of Mr. Dorie’s credibility, the trial judge wrote the following under the subheading “Front entrancelog book”: [105] Mr. Dorie stressed in his testimony how important it was that the sign-in sheet was properly done and the need for its accuracy. Heexplained the significant role the sheet played in the institution and to the safety of the people in the institution.

However, whenconfronted with a form that, for the most part, is rife with people not following the procedure, he then agreed that there was really noexplanation for why it was not fully completed as to [sic] policy, either by himself or others. He went on to say that the person in chargewas possibly away. [28] Before the appeal judge, Mr. Dorie advanced several arguments about this passage.

They were all premised on the propositionthat a misapprehension of evidence renders a trial unfair and results in a miscarriage of justice, where a trial judge was “mistaken as to thesubstance of material parts of the evidence and [that] those errors play[ed] an essential

part in the reasoning process resulting in aconviction” (R v Lohrer, 2004 SCC 80 at para 1, [2004] 3 SCR 732, quoting from R v Morrissey (1995), (ON CA), 97CCC (3d) 193 at 221 (Ont CA); see also: R v Haque, 2022 SKCA 124 at para 110; and R v Thalheimer, 2022 SKCA 25 at para 45, 411CCC (3d) 208). In Lohrer, Binnie J. added that this is “a stringent standard”, that “must go to the substance rather than to the detail” (atpara 2). [29] Two of Mr. Dorie’s specific arguments made to the appeal judge about paragraph 105 of the Trial Decision are continued inthis appeal. We will analyze these in order. [30] First, Mr.

Dorie argued before the appeal judge that the trial judge’s statement that the proper procedure was not followed

“either by himself or others” evinces a misapprehension of the evidence ( Trial Decision at para 105 , emphasis added). In the brief he filed in the Court of Queen’s Bench, Mr. Dorie stated that, not only was there no evidence in support of the statement that he did not follow policy, but “there is the uncontradicted testimony … that he did, in fact, follow the proper procedure and complete the parts of the sign-in sheet that were required of him”. The appeal judge rejected this submission.

He agreed that, while the trial judge did not set out the evidentiary basis for the conclusions he expressed in paragraph 105, “this can be found earlier in the [ Trial Decision ] where the court discusses Mr. Dorie’s alibi based on the sign-in sheets” ( Appeal Decision at para 29). The appeal judge referred specifically to paragraphs 16 to 29 of the Trial Decision , which appear under the subheading, “The alibi defence: Where was Mr.

Dorie on March 2, 2015?” The appeal judge then reproduced paragraph 29 of the Trial Decision , which states as follows: [29] I find the document unreliable as it is simply not being filled in as required as testified to by Mr. Dorie. It is an important document for the institution, and from the evidence it appears not to have been complied with. I find it is possible that the document was available to people, even if the principle entrance officer was away. [ 31 ] The appeal judge then gave the following reasons for rejecting Mr.

Dorie’s argument that the trial judge had misapprehended the evidence surrounding the sign-in sheet: [30] It was open to the trial judge to examine the evidence about the sign-in sheets. The end result is that it appears that the trial judge was concerned that Mr. Dorie was attempting in his testimony to establish the reliability of the sign-in sheets to support their use as his alibi. The trial judge decided that the sign-in sheets did not actually support the contention of fidelity advanced by Mr. Dorie.

In the trial judge’s opinion, this adversely affected the credibility of the accused – testimony advanced for a self-serving purpose that ultimately was essentially misleading. In my view, this conclusion is supportable on the evidence and does not require appellate intervention. [ 32 ] We agree with Mr. Dorie’s first criticism of this passage. In stating that the trial judge’s “conclusion is supportable on the evidence and does not require appellate intervention”, the appeal judge committed an error of law by applying the wrong standard of review in connection with Mr.

Dorie’s argument that the trial judge misapprehended the evidence. The question the appeal judge was required to answer was not whether the trial judge’s findings were “supportable on the evidence”. Rather, it was whether the Trial Decision reveals that the trial judge was “mistaken as to the substance of material parts of the evidence and [whether] those errors play an essential

part in the reasoning process resulting in a conviction” ( Lohrer at para 1 , quoting from Morrissey at 221). If his convictions depended on a misapprehension of the evidence, then it follows that Mr. Dorie did not receive a fair trial and that a miscarriage of justice occurred. To be clear about the standard of review, “this is so even if the evidence, as actually adduced at trial, was capable of supporting a conviction” ( Morrissey at 221). [ 33 ] However, the mere fact that the appeal judge applied the wrong standard of review does not justify interfering with the Appeal Decision .

Rather, the correctness standard of review that is applicable to our examination of the Appeal Decision requires that, having identified this error, we apply the appropriate standard of review; that is, we must ask afresh whether Mr. Dorie has demonstrated that the trial judge erred in law by misapprehending the evidence when he decided the proper sign-in sheet procedure was not followed “either by [Mr. Dorie] or others” (at para 105) and, if so, whether that error played an essential

part in the trial judge’s reasoning process resulting in the two convictions. Having done so, we are convinced that the trial judge did misapprehend the evidence relating to whether Mr. Dorie followed the procedures surrounding the sign-in sheet. We are also satisfied that this error played an essential role in the trial judge’s reasoning on Mr.

Dorie’s credibility under W.(D.) and thus, in the reasoning process that resulted in convictions on both of the charges of sexual assault. [ 34 ] To demonstrate the trial judge’s error and its materiality, we turn to the evidentiary basis for his conclusion that the sign-in sheet “was not fully completed as to policy, either by [Mr. Dorie] or others” ( Trial Decision at para 105 ). This is found in the trial judge’s earlier-expressed findings about the sign-in sheet, including that the sign-in sheet was “simply not being filled in as required as testified to by Mr. Dorie” (at para 29). [ 35 ] As Mr.

Dorie correctly observes – contrary to the statement made by the trial judge at paragraph 105 of the Trial Decision – there was no evidence that he did not follow the proper procedure or fail to utilize the sign-in sheet according to applicable policy. He testified, and the sign-in sheet reflected, that he had signed in and signed out as was required. There was no evidence to the contrary. It was open to the trial judge to determine the weight to be given to the sign-in sheet as evidence of when Mr. Dorie was in the institution. However, it was not open to him – absent a finding (which he did not make) that Mr.

Dorie had falsified the sign-in sheet – that Mr. Dorie had failed to comply with the policy. On a plain reading, in the context of his reasons as a whole, the trial judge’s finding that the sign-in sheet was not completed as to policy by Mr. Dorie is based on a misapprehension of the evidence. [ 36 ] There is a second misapprehension of evidence revealed in paragraph 105 of the Trial Decision . As we understand this part of the trial judge’s reasons, he doubted Mr. Dorie’s overall credibility because of his conclusion that what Mr.

Dorie said in his testimony about the sign-in sheet was contradicted by what he saw recorded on the sign-in sheet itself. More specifically, the trial judge concluded that Mr. Dorie had provided misleading evidence as to the fidelity of the sign-in protocol – a fidelity that he found not to be borne out from an examination of the sign-in sheet itself. [ 37 ] However, Mr. Dorie did not testify the sign-in sheets were always completed by everyone in accordance with policy. In particular, he never suggested that sign-in sheets were always properly initialled by those staffing the entrance.

Rather, he spoke in his testimony as to the need for employees arriving at the facility to always sign-in. He also testified that he was unaware of any non- compliance with that aspect of the policy. He was repeatedly asked why there were no initials in certain spots, but these questions did not relate to signing into the institution. Mr. Dorie offered several possible explanations for missing initials, including officers forgetting or not being present when someone signs in. However, nowhere does he state that in every aspect that sign-in protocol was followed.

This difference is important, because the specific instances where the trial judge found others not to have followed the proper procedure related to matters that Mr. Dorie had not mentioned in his explanation of the importance of signing in. [ 38 ] In substance, the trial judge misunderstood Mr. Dorie’s evidence and then made credibility findings based on his misunderstandings. Because Mr.

Dorie did not give evidence that it was important that the sign-in sheets be properly initialled and that they invariably were, he could not be found to be incredible on the basis that he had given such testimony and that it was inconsistent with the sign-in sheet itself. Again, his testimony that it was important to sign in and that he had signed in properly was unchallenged. The

Crown led no evidence that other correctional officers did not consistently sign in, or that Mr. Dorie did not do so on that or any other day. The result of all of this was that Mr. Dorie was found to be incredible based on something that was not in evidence before the trial judge. [ 39 ] We acknowledge that it is possible to read paragraph 105 of the Trial Decision as impugning Mr. Dorie’s credibility simply because he was not able to explain why aspects of the policy other than employees signing to enter the facility were not followed by others.

However, if this is what the trial judge intended to convey when he noted that Mr. Dorie “agreed that there was really no explanation for why [the sign-in sheet] was not fully completed as to policy”, we would find the trial judge’s reasons to be equally flawed. Mr. Dorie did, in fact, offer potential explanations when pressed to do so. Further, and in any event, we see no basis upon which the trial judge could have properly impugned Mr.

Dorie’s credibility based on his inability to explain why others had not followed the aspects of the policy that went beyond those parts of it that he said were always adhered to, and which the available evidence was that they were always adhered to. [ 40 ] We are satisfied that the trial judge’s misapprehension of evidence on the points we have mentioned rises to a level of significance that undermines trial fairness and, therefore, that a miscarriage of justice has occurred. The trial judge gave only three reasons for discounting Mr. Dorie’s credibility.

The first of these reasons was related to the evidence surrounding the sign-in sheet. It is possible that the trial judge’s assessment of Mr. Dorie’s credibility would have been the same had he not misapprehended the evidence about the sign-in sheet. However, that is not the question. The misapprehension led the trial judge to conclude that Mr. Dorie had provided misleading evidence. It is clear that this finding played a key

part in the trial judge’s determination that Mr. Dorie was not a credible witness in general and therefore in his conclusion that he did not have a reasonable doubt on either charge of sexual assault. [ 41 ] As a bottom line, we have concluded that the trial judge was mistaken as to the substance of material aspects of the evidence and those errors played an essential

part in the reasoning process resulting in the convictions. As his convictions depended on a misapprehension of the evidence, it follows that Mr. Dorie did not receive a fair trial and that a miscarriage of justice has occurred. Given this conclusion, we set aside the convictions and order a new trial on the two charges of sexual assault. B. Other issues [ 42 ] As we have noted, Mr. Dorie raised other grounds of appeal. At a new trial, the evidence and arguments may differ from those at the trial that was held.

Accordingly, also as previously observed, we have limited our reasons to what is essential to explain why a new trial is necessary and we decline to address those other grounds. V. CONCLUSION [ 43 ] For the reasons we have given, Mr. Dorie’s application for leave to appeal from his convictions is granted, and his appeal is allowed. The verdicts returned following his first trial are set aside and a new trial is ordered. “Caldwell J.A.” Caldwell J.A. “Leurer J.A.” Leurer J.A. “Barrington-Foote J.A.” Barrington-Foote J.A.