Court of Appeal for Ontario
Date: December 27, 2019 Docket: C66318
Feldman, Tulloch and Jamal JJ.A.
Between
Her Majesty the Queen Appellant
and
Nicholas Button Respondent
Counsel
Vallery Bayly, for the appellant
Gordon S. Campbell and William G. Stephenson, for the respondent
Heard
December 4, 2019
Appeal Information
On appeal from the acquittal entered on November 23, 2018 by Justice Nathalie Champagne of the Superior Court of Justice, sitting without a jury.
Reasons for Decision
Feldman J.A.:
Introduction
[1] The Crown appeals from the respondent's acquittal of the charges of assault with a weapon, breaking and entering, robbery and aggravated assault. The appeal is brought under s. 676(1)(a) of the Criminal Code, R.S.C., 1985, c. C-46, on the basis of a question of law alone: that the trial judge approached the evidence piecemeal and failed to consider how each piece of the evidence, when viewed together, built on the strength of the case. The Crown argues that, in so doing, the trial judge unjustifiably discounted or ignored material evidence in assessing reasonable doubt.
[2] While I agree with the Crown that the trial judge erred in law, I would nevertheless dismiss the appeal because the victim, a Crown witness who knew the respondent, testified that she was certain he was not her attacker. With that evidence that raised a reasonable doubt, the Crown has not met its onus to satisfy the court to a reasonable degree of certainty that without the trial judge's error, the verdict would not necessarily have been the same.
The Positions at Trial
[3] The Crown presented a compelling circumstantial case against the respondent. A break-in and assault occurred at the home of Michael Brown in Alexandria, Ontario. The assault victim, Cynthia Desmarais was the sister-in-law of Mr. Brown, and rented a room from him in the basement of his home. The respondent is married to Angela Brown, Michael Brown's sister.
[4] The break-in took place on the evening of the annual Santa Claus parade. Ms. Desmarais and her boyfriend missed the parade and arrived home while it was still going on. When she went downstairs, she saw a light on in Mr. Brown's office. A masked man emerged, blinded her with a flashlight, then smashed her head with a prybar. She fell, hit her head on the floor, and did not remember much after that. Her boyfriend came downstairs and struggled with the intruder. The intruder started up the stairs, then demanded they hand him a thin bag from the basement floor, making a gesture akin to holding a gun. He grabbed the bag and fled. The victim needed eight or nine stitches to her head.
[5] The boyfriend called the police, who arrived quickly. They found a prybar and two flashlights in the basement. They also conducted a canine search of the backyard where nothing was found. However, the next day, Mr. Brown found a toque in the backyard. The prybar and the toque contained the respondent's DNA.
[6] The Crown's circumstantial case included the following components:
the respondent's DNA was found on more than one item at the crime scene;
because the respondent said in a police interview that his wife was on bad terms with her brother, the homeowner, the Crown argued that the respondent had a motive to commit the crime;
the respondent had prior knowledge about the residence, which, the Crown argued, helped him commit the crime;
the respondent filed an online theft report to the police dated the morning after the attack, stating that he had been robbed of "pry bars" two nights before, although in his police interview he said he had the date wrong;
the respondent provided inaccurate information to the police in an interview, including inconsistent statements about his whereabouts on the night of the attack;
signals from the respondent's cellphone activity on the evening of the attack indicated he was in Alexandria;
the respondent's phone records indicated that he was constantly texting his wife on the evening of the attack, with a gap of approximately 10 minutes aligning almost precisely with the timing of the assault on the victim; and
text messages surrounding the date of the attack had been deleted from the respondent's phone.
[7] The respondent did not testify or call a defence. However, the Crown led two pieces of evidence that were potentially exculpatory of the respondent. One was an alternate suspect, a 16-year old observed by the police in Alexandria about 40 minutes after the break-in, wearing a toque. They searched his home and found a mask similar to the mask described in the search warrant. There was no other evidence linking the suspect to the crime scene.
[8] More significantly, the victim, who was a Crown witness and knew the respondent very well, testified that she was certain that the intruder was not him. Although he wore a mask so that she did not see his face, he had a different voice, different height and different build. The Crown did not impugn the victim's credibility, although regarding reliability, in closing the Crown referred to the dark and terrifying circumstances of the assault.
The Error of Law
[9] The Crown submits, correctly, that where a trial judge assesses the evidence in a piecemeal fashion and not in its totality, that can be an error of law that allows the Crown to appeal an acquittal: R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197, at para. 31. The Crown places significant reliance on this court's decision in R. v. Rudge, 2011 ONCA 791, 108 O.R. (3d) 161, leave to appeal refused, [2012] S.C.C.A. No. 64, where the court set aside an acquittal because the trial judge's reasoning was flawed, including because he considered each component of the case separately, so that "the persuasive effect of the totality of the evidence – the strength of the Crown's case – was taken out of play": at para. 66.
[10] In this case, the trial judge took the same approach, and respectfully, made the same error as in Rudge. She assessed each piece of potentially inculpatory evidence separately, and rejected it on its own, without considering it in light of other potentially inculpatory evidence.
[11] For example, the respondent reported that his tools had been stolen including prybars. This online theft report is dated the day after the attack. The coincidence of the timing of the report was relied on by the Crown to demonstrate that the respondent's report of the theft should not be accepted. When taken together with his claim that he was home sick in Maxville, Ontario on the night of the attack, despite cellphone tower data which indicated his cellphone was in Alexandria, the Crown argued that the respondent was effectively trying to establish a false alibi.
[12] This concern about the validity of the tool theft report and the respondent's whereabouts on the night of the attack was compounded by other comments the respondent made in his police interview a few months after the attack. In that interview the respondent acknowledged that he had submitted an online report of the theft of his tools dated Monday, November 30, which indicated his tools had been stolen on Saturday, November 28. He also told the officer that he and his wife discovered the tools had been stolen from their car when they went out for a drive on "Sunday night." However, that timing was incompatible with the respondent's statement that he was home sick on the night of the attack, Sunday, November 29. When the officer confronted the respondent with the inconsistency, he said he must have got the date wrong, that the tools were stolen earlier and he must have written down the wrong date in the report of the theft.
[13] In considering the evidence regarding the tool theft report, the trial judge found that the timing was "certainly suspicious", but accepted the respondent's explanation as "reasonable", and gave the evidence little weight. However, the explanation that the tools may have been stolen earlier did not in any way explain the coincidence of the timing of the online report that tools, including "pry bars", had been stolen, which report is dated the day after the attack.
[14] Furthermore, as the Crown submits, the trial judge accepted the explanation without considering the evidence of the timing of the report in the context of all of the other pieces of evidence that linked the respondent to the crime, including his DNA at the scene, his alleged motive and the deletion of his contemporaneous text messages. While in isolation the respondent's explanation could have been viewed as reasonable, evaluating his explanation in isolation was an error.
The Test for Setting Aside an Acquittal
[15] While the trial judge's approach to the evidence amounted to an error of law, such an error does not necessarily require or allow the court on appeal to set aside the acquittal. In R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609, the Supreme Court reiterated the test the Crown must meet, at paras. 14-16:
It is the duty of the Crown in order to obtain a new trial to satisfy the appellate court that the error (or errors) of the trial judge might reasonably be thought, in the concrete reality of the case at hand, to have had a material bearing on the acquittal. The Attorney General is not required, however, to persuade us that the verdict would necessarily have been different.
This burden on the Crown, unchanged for more than half a century (see Cullen v. The King, [1949] S.C.R. 658), was explained this way by Sopinka J., for the majority, in R. v. Morin, [1988] 2 S.C.R. 345:
I am prepared to accept that the onus is a heavy one and that the Crown must satisfy the court with a reasonable degree of certainty. An accused who has been acquitted once should not be sent back to be tried again unless it appears that the error at the first trial was such that there is a reasonable degree of certainty that the outcome may well have been affected by it. Any more stringent test would require an appellate court to predict with certainty what happened in the jury room. That it cannot do. [p. 374]
Speaking more recently for a unanimous court in R. v. Sutton, [2000] 2 S.C.R. 595, 2000 SCC 50, the Chief Justice stated:
The parties agree that acquittals are not lightly overturned. The test as set out in Vézeau v. The Queen, [1977] 2 S.C.R. 277, requires the Crown to satisfy the court that the verdict would not necessarily have been the same had the errors not occurred. In R. v. Morin, [1988] 2 S.C.R. 345, this Court emphasized that "the onus is a heavy one and that the Crown must satisfy the court with a reasonable degree of certainty" (p. 374). [para. 2]
See also: R. v. Goldfinch, 2019 SCC 38, 435 D.L.R. (4th) 1, at para. 135; R. v. Barton, 2019 SCC 33, 435 D.L.R. (4th) 191, at para. 160.
[16] The question for this court, therefore, is whether the Crown has demonstrated to a reasonable degree of certainty that if the trial judge had not made the error in her piecemeal approach to the analysis of the evidence, the verdict would not necessarily have been the same.
[17] In this case, I am not able to make that finding. This case is distinguishable from Rudge and other key cases relied on the Crown such as R. v. Curry, 2014 ONCA 174, 317 O.A.C. 329, leave to appeal refused, [2014] S.C.C.A. No. 185, and R. v. Knezevic, 2016 ONCA 914, because in this case, there was independent evidence that raised a reasonable doubt.
[18] At the end of her reasons, the trial judge pointed to two exculpatory pieces of evidence that raised a reasonable doubt for her about the guilt of the respondent. One was the alternative suspect. Because the evidence implicating him was weak, I could discount that evidence as a factor in the analysis.
[19] However, the second was the testimony of the victim. She knew the respondent both socially and through the auto shop where he worked. While she was not asked any questions in examination in chief by Crown counsel about the identity of the attacker or whether he was or could have been the respondent, in cross-examination she agreed that she did not know who the attacker was, but she was certain that the attacker was not the respondent. That evidence raised a reasonable doubt, and while it could be discounted by a trier of fact, it would be difficult to do so.
[20] In the face of that evidence, the Crown has not met its onus to satisfy the court to a reasonable degree of certainty that without the trial judge's error, the verdict would not necessarily have been the same.
[21] I would therefore dismiss the appeal.
Released: December 27, 2019
"K. Feldman J.A."
"I agree. M. Tulloch J.A."
"I agree. M. Jamal J.A."