CITATION: R. v. Rattray, 2007 ONCA 164
DATE: 20070313
DOCKET: C45009
COURT OF APPEAL FOR ONTARIO
FELDMAN, GILLESE and ARMSTRONG JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
John Pearson for the respondent
(Respondent)
- and -
CONRAD RATTRAY
Richard Litkowski for the appellant
(Appellant)
Heard: February 12, 2007
On appeal from the convictions entered and the sentence imposed on February 15, 2006, by Justice Ramez Khawly of the Ontario Court of Justice.
GILLESE J.A.:
[1] Mr. Rattray was stopped by a police officer while he was driving a motor vehicle. The police officer told him that the licence plates on the car he was driving were stolen dealer plates. Mr. Rattray was charged with possession of the stolen plates.
[2] When Mr. Rattray arrived for the trial on the charge relating to the stolen dealer plates, he brought with him a letter which purported to explain that the dealer plates had been given to him in error. Although the letter was unsigned, it was on “Toronto Auctions” letterhead and showed that it had been prepared by “Ingrid Steenkamp, dealer services representative”. One of Ms. Steenkamp’s business cards was stapled to the letter.
[3] Based on the letter, Mr. Rattray was charged with obstructing the course of justice in a judicial proceeding, contrary to s. 139(2) of the Criminal Code, and with knowingly using a forged document, contrary to s. 368(1) of the Code.
[4] Ms. Steenkamp testified at Mr. Rattray’s trial on these charges. She testified that she never wrote the letter and would not have had any reason to write it, given her employment responsibilities.
[5] Mr. Rattray testified in his own defence.
[6] The trial judge convicted Mr. Rattray of both offences. In his reasons, the trial judge gave numerous examples of inconsistencies and inaccuracies in Mr. Rattray’s version of events and then rejected it.
[7] Mr. Rattray appeals from conviction on the basis that the trial judge erred by imposing on him an improper burden of proof. Rather than applying the reasonable doubt standard, it is argued that the trial judge asked whether Mr. Rattray’s evidence “could reasonably be true”. The error is said to be evident in the following passage from the reasons for conviction:
Therefore, what do we have before us? We have the evidence of Mr. Rattray, which not only did I not accept, but based on the comments I have made, cannot reasonably be true. [emphasis added.]
ANALYSIS
[8] Because Mr. Rattray testified, the trial judge was obliged to follow the three‑step analysis outlined in R. v. W. (D.) (1991), 1991 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.):
First, if you believe the evidence of the accused, obviously you must acquit.
Secondly, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
Thirdly, 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.
[9] Although the trial judge did not explicitly refer to W.(D.), his reasons appear to follow the prescribed analysis. At p. 9 of the reasons, the trial judge wrote:
At the end of the day, Mr. Rattray is spinning a web that unfortunately is so full of holes that there is no reasonable inference that the Court can make on his evidence, save and except for the one reasonable inference the Court can make, which is that it is unreasonable to accept any of the comments that he made based on the analysis I have made.
[10] This conforms with the first step of the W. (D.) analysis: the trial judge did not believe Mr. Rattray’s evidence and, therefore, did not acquit on that basis.
[11] The trial judge should then have moved to the second step of W. (D.), which would have required a determination of whether Mr. Rattray’s evidence, although disbelieved, raised a reasonable doubt. Instead, he made the impugned comments, set out above.
[12] The trial judge then undertook the third step of the W. (D.) analysis, albeit not expressly. He found Ms. Steenkamp’s evidence believable, and held that all elements of the offences had been proven beyond a reasonable doubt. He stated:
…[L]ooking at the evidence globally, I come to the following conclusion, which is that the only reasonable inference open to me, is that in fact Ms. Steenkamp never wrote that letter. This letter is in fact a forgery and … Mr. Rattray presented it in the hopes that it would be considered to be a genuine document.
[13] This court has repeatedly held that the “might reasonably be true” test should be avoided when dealing with contradictory evidence in cases where the presumption of innocence, and none other, applies. Use of the “might reasonably be true” test amounts to imposing an affirmative obligation on the defence to either introduce evidence disproving guilt, or risk conviction, and undermines the presumption of innocence. The proper approach, in accordance with the second step of W.(D.), is for the trier of fact to determine whether the accused’s evidence raises a reasonable doubt, and acquit if it does. See, for example, R. v. Phillips (2001), 2001 24121 (ON CA), 154 C.C.C. (3d) 345 at paras. 35‑36; R. v. G.H., 2002 49363 (ON CA), [2002] O.J. No. 3635 at paras. 14-15; and, R. v. Phung, 2007 ONCA 352, [2007] O.J. No. 352 at paras. 4-6.
[14] The problem with the “might reasonably be true” test was explained by Fish J.A. (as he then was) in R. v. Mathieu (1994), 1994 5561 (QC CA), 90 C.C.C. (3d) 415 (Que. C.A.): inquiring whether the accused’s evidence might reasonably be true reverses the onus of proof, and therefore does not accomplish the objective of the W.(D.) analysis. The “might reasonably be true” test emerges from the doctrine of recent possession which is based on the principle that “the accused risks conviction for certain theft‑related offences unless he or she furnishes a plausible explanation”. In theft cases, the absence of an explanation that might reasonably be true will usually lead the trier of fact to conclude that the fact of possession proves beyond a reasonable doubt that the accused is guilty.
[15] But, applying the “might reasonably be true” test to cases in which the trier of fact is faced with contradictory evidence would risk undermining the presumption of innocence. The accused is obliged neither to testify nor to disprove his or her guilt. Rather, the Crown bears the onus of establishing guilt beyond a reasonable doubt. There is an unacceptably high risk that the trier of fact, if permitted to ask whether the accused’s evidence might reasonably be true, will be drawn into choosing between conflicting versions of events. This would effectively impose an affirmative onus on the accused to disprove his or her guilt, which is obviously an error of law. Because of this danger, the “might reasonably be true” test should not be imported into the context of resolving credibility contests.
CONCLUSION
[16] In my view, the impugned language reveals that the trial judge erred at the second stage of the W.(D.) analysis. He was obliged to decide whether Mr. Rattray’s evidence raised a reasonable doubt. Mr. Rattray was not obligated to provide an explanation that could reasonably be true.
[17] However, it is clear that the trial judge completely rejected the appellant’s testimony and found the Crown’s case overwhelming. Accordingly, I am not persuaded that the error constitutes reversible error.
[18] This court has upheld convictions in prior cases where the trial judge inquired at the second stage of the W.(D.) analysis whether the accused’s evidence “might reasonably be true”. In Phillips, Moldaver J.A. stated that although it would have been preferable for the trial judge to have instructed the jury in accordance with W.(D.), the failure to do so did not constitute reversible error. He found that the trial judge’s instruction would have left the jury with the understanding that they “need not accept [the witness’] evidence as truthful before acting on it to find a reasonable doubt”.
[19] Similarly, in G.H., this court found that the trial judge misstated the second branch of W. (D.) by asking whether the accused’s evidence could reasonably be true. However, it upheld the accused’s conviction, saying at para. 15, that “in the circumstances of this case, it is clear that the trial judge completely rejected the appellant’s testimony and found the Crown case overwhelming”.
[20] Although this court’s most recent decision on point quashed the accused’s conviction, the trial judge’s reasons in that case revealed a much more fundamental error than in the present case. In Phung, the trial judge found the accused had failed to establish “on the balance of probabilities” that his evidence might reasonably be true. This court held that the trial judge had imposed an affirmative evidentiary burden on the accused to prove his innocence by furnishing an explanation that met the balance of probabilities standard of proof. As such, the trial judge had misapprehended, rather than misstated, the law.
[21] In my view, the trial judge’s error in the present case is akin to that in G.H. It is apparent that the trial judge unequivocally rejected Mr. Rattray’s testimony and, in fact, found it nonsensical. When read as a whole, the reasons for judgment indicate that the trial judge applied the proper standard of proof and was left with no doubt as to Mr. Rattray’s guilt.
DISPOSITION
[22] Accordingly, I would dismiss the appeal.
RELEASED: March 13, 2007 (“KNF”)
“E. E. Gillese J.A.”
“I agree K. Feldman J.A.”
“I agree Robert P. Armstrong J.A.”