R. v. B. (G.), 1990 CanLII 115 (SCC), [1990] 2 SCR 57

R. v. B. (G.), 1990 CanLII 115 (SCC), [1990] 2 SCR 57

G.B., C.S., H.H., S.S. and A.B. Appellants

v.

Her Majesty The Queen Respondent

indexed as: r. v. b. (g.)

File Nos.: 20905, 20931, 20933, 20932, 20919.

1989: November 29; 1990: June 7.

Present: Wilson, L'Heureux-Dubé, Gonthier, Cory and McLachlin JJ.

on appeal from the court of appeal for saskatchewan

Criminal law -- Appeals -- Powers of court of appeal -- Crown appeal against acquittal -- Criminal Code providing that Crown may appeal an acquittal on a question of law alone -- Whether Court of Appeal exceeded its jurisdiction in overturning acquittals and ordering a new trial ‑‑ Criminal Code, R.S.C. 1970, c. C-34, ss. 605(1), 613(4).

Appellants, who were elementary school students, were acquitted at trial of sexually assaulting a fellow student. The trial judge had a reasonable doubt as to their involvement in the alleged assault. He also found that the date of the offence was an essential element and that it had not been proved.

The complainant was eight years old at the time of the alleged offence and nine at the time of the trial. The Crown's other key witness, Z, a co-accused and accomplice who had pleaded guilty to the same charge, was fourteen at the time of trial. Both were sworn. The complainant's evidence, however, was found to be unreliable. Z's evidence was not accepted either.

The Court of Appeal allowed the appeal and ordered a new trial. The appeal had been lodged under s. 605(1)(a) of the Criminal Code, which provides for a Crown appeal on a question of law alone. The court justified its intervention in that the trial judge had erred in considering the evidence of the complainant and of Z in isolation from each other instead of considering the potential for corroboration. It also found that the father's testimony corroborated that of the complainant.

At issue here is whether the Court of Appeal exceeded its jurisdiction when it overturned the appellants' acquittals and ordered a new trial.

Held: The appeal should be dismissed.

Per Wilson, L'Heureux-Dubé and Cory JJ.: The Crown may appeal an acquittal on a question of law alone under s. 605(1)(a) of the Criminal Code. The reasonableness of a verdict or the sufficiency of the evidence does not raise a question of law alone. The narrower ground for appeal from an acquittal as opposed to appeal from a conviction reflects the fundamental principle that an accused is presumed innocent until proved guilty by proof beyond a reasonable doubt. In Harper v. The Queen, this Court held that an appellate tribunal has jurisdiction to review the record below to determine whether the trial court has properly directed itself to all the evidence bearing on the relevant issues. A misapprehension of relevant evidence will amount to an error of law alone pursuant to s. 605(1)(a) only if it is the result of misdirection. As this was the case here, the matter fell within the jurisdiction of the Court of Appeal.

The approach the trial judge takes to the evidence must be correct in law to ensure that the final step in the process, the weighing of the evidence, is not flawed. Individual pieces of evidence must not be examined in isolation, but must be considered in the context of all the evidence. In this case, the trial judge considered the evidence of the two key Crown witnesses separately, and failed to consider the evidence as a whole. He first considered the complainant's evidence in isolation, and rejected it as unreliable. He then moved on to Z's evidence, stating that it was all he had left. He also failed to consider the corroborative aspects of Z's testimony and of the evidence relating to the complainant's broken glasses. This viewing of the evidence without the support of other evidence amounted to serious misdirection according to this Court's decision in R. v. Morin. Finally, the trial judge erred in concluding that it was necessary for the Crown to establish with precision the date on which the alleged offence occurred, and this error heavily influenced his finding of a reasonable doubt.

Per Gonthier and McLachlin JJ.: The appeal should be dismissed and a new trial ordered in view of the trial judge's erroneous conclusion that the Crown was obliged to establish the precise time when the offence occurred. While it is an error of law for the trial judge to direct that the reasonable doubt standard must be applied to individual pieces of evidence, it is far from certain that he committed this error. He never stated that any piece of evidence was to be considered with respect to reasonable doubt in isolation from the rest of the evidence, nor did he suggest that any piece of evidence should be completely disregarded for failing to meet such a standard. With respect to the corroborative value of Z's testimony, where a trial judge is sitting as a trier of fact, it is open to him to reject the evidence of a witness as lacking credibility and hence not being capable of constituting corroboration.

Cases Cited

By Wilson J.

Referred to: Kendall v. The Queen, 1962 7 (SCC), [1962] S.C.R. 469; R. v. Hamilton-Middleton (1986), 1986 3142 (SK CA), 53 Sask. R. 80; Harper v. The Queen, 1982 11 (SCC), [1982] 1 S.C.R. 2; Sunbeam Corporation (Canada) Ltd. v. The Queen, 1968 33 (SCC), [1969] S.C.R. 221; Lampard v. The Queen, 1969 695 (SCC), [1969] S.C.R. 373; Schuldt v. The Queen, 1985 20 (SCC), [1985] 2 S.C.R. 592; Wild v. The Queen, 1970 148 (SCC), [1971] S.C.R. 101; R. v. Dixon (1988), 1988 2824 (BC CA), 26 B.C.L.R. (2d) 251; Belyea v. The King, 1932 1 (SCC), [1932] S.C.R. 279; R. v. Roman (1987), 1987 119 (NL CA), 38 C.C.C. (3d) 385; R. v. Morin, 1988 8 (SCC), [1988] 2 S.C.R. 345; Chamberlain v. The Queen (1984), 58 A.L.J.R. 133.

By McLachlin J.

Referred to: R. v. Morin, 1988 8 (SCC), [1988] 2 S.C.R. 345.

Statutes and Regulations Cited

Criminal Code, R.S.C. 1970, c. C-34, ss. 605(1), 613(4) [am. 1974-75-76, c. 93, s. 75].

Authors Cited

Ewaschuk, Eugene G. Criminal Pleadings and Practice in Canada, 2nd ed. Aurora, Ontario: Canada Law Book, 1987.

APPEAL from a judgment of the Saskatchewan Court of Appeal (1988), 1988 208 (SK CA), 65 Sask R. 134, allowing the Crown's appeal from appellants' acquittals on charges of sexual assault. Appeal dismissed.

Donna Taylor, Mervin Ozirny and Wayne Rusnak, for the appellants.

Kenneth W. MacKay, Q.C., for the respondent.

//Wilson J.//

The judgment of Wilson, L'Heureux-Dubé and Cory JJ. was delivered by

Judgment of Wilson J.

Wilson J. -- The appellants are young offenders who were acquitted of sexual assault at trial. The Crown's appeal to the Saskatchewan Court of Appeal was allowed and the appellants now appeal to this Court as of right. This judgment is the third in a trilogy dealing with the sexual assaults that allegedly occurred at Sheho Elementary School in Saskatchewan between September 1985 and May 1986. This appeal was heard together with R. v. B. (G.), [1990] 2 S.C.R. 000, and R. v. B. (G.), [1990] 2 S.C.R. 000, (hereinafter R. v. G.B., A.B. and C.S.), which are dealt with in two related judgments. The issue in this appeal is whether the Court of Appeal exceeded its jurisdiction in overturning the appellants' acquittals and ordering a new trial.

1. The Facts

1. The Facts

Each of the appellants was separately charged in informations alleging that:

On or between the 3rd day of September A.D. 1985 and the 30th day of September A.D. 1985 at Sheho in the Province of Saskatchewan being a young person within the meaning of the Young Offenders Act did commit a sexual assault on S.M. contrary to Section 246.1(1)(a) of the Criminal Code.

The two key witnesses for the Crown were S.M., the complainant, and C.Z., a co-accused and accomplice who had previously entered a plea of guilty to the same charge prior to trial. S.M. was eight years old at the time of the alleged offence and nine years old at the time of the trial. C.Z. was fourteen years old at the time of trial. Both witnesses were duly sworn by the trial judge.

The complainant identified C.Z. and each of the appellants as participants in the alleged assault. He testified that he thought the offence occurred in September of 1985. When cross-examined, however, he was uncertain when the incident occurred and agreed with defence counsel's suggestion that it may have been after Easter and thus in the spring of 1986. The trial judge summarized S.M.'s testimony as follows:

I was coming out of the bathroom, G.B. kicked the door open and pushed me back, and they sweared at me -- pulled my pants down and shoved a pencil in my bum and there was blood running out of my bum, and there was blood on the pencil. They pulled my penis and they pulled down their pants, and they forced me to pull their penis -- and banged my head against the wall and broke my glasses.

C.Z. gave similar evidence. He testified that he and the appellants came across the complainant in the school washroom just before recess, each kicked the complainant, put a pencil in the complainant's bum, and touched his penis. He testified that he did not recall seeing the appellants' penises at any time. With respect to the time of the offence C.Z. testified that the incident occurred between September 1 and September 30 of 1985 but could not remember if it was the beginning, middle, or end of September. During cross-examination C.Z. agreed with defence counsel that the alleged assault could have happened the last week of September or the beginning of October but stated that it could not have occurred at the end of October or in November.

The complainant's father and stepmother gave the only other evidence for the Crown. Neither had been told of the incident and had suspected nothing. The father testified that he had had the complainant's glasses repaired in September of 1985. The only other clear evidence of S.M. breaking his glasses was an incident later in the winter when the lens popped out during gym class after an incident with another student.

The appellants all testified and denied that they had sexually assaulted the complainant at any time. The defence also called a number of teachers who testified that there was constant supervision by teachers at the school and they were not aware of, nor advised of, anything untoward happening. One of the teachers, Shaunda Halldorson, testified that there had been a problem in the gym with S.M.'s glasses. All of the appellants were acquitted by the trial judge.

2. Issues

2. Issues

The sole issue for determination in this appeal is whether the Court of Appeal exceeded its jurisdiction in overturning the acquittals and ordering a new trial.

Section 605(1) of the Criminal Code, R.S.C. 1970, c. C-34 (now R.S.C., 1985, c. C‑46, s. 676(1)) authorizes the Attorney General to appeal an acquittal to the Court of Appeal. It reads:

605. (1) The Attorney General or counsel instructed by him for the purpose may appeal to the court of appeal

(a) against a judgment or verdict of acquittal of a trial court in proceedings by indictment on any ground of appeal that involves a question of law alone, . . .

Section 613(4) (now s. 686(4)) sets out the options available to the Court of Appeal on a Crown appeal of an acquittal:

613. . . .

(4) Where an appeal is from an acquittal the court of appeal may

(a) dismiss the appeal; or

(b) allow the appeal, set aside the verdict and

(i) order a new trial, or

(ii) except where the verdict is that of a court composed of a judge and jury, enter a verdict of guilty with respect to the offence of which, in its opinion, the accused should have been found guilty but for the error in law, and pass a sentence that is warranted in law.

2. The Courts Below

2. The Courts Below

Saskatchewan Provincial Court (Chorneyko Prov. Ct. J., unreported)

Saskatchewan Provincial Court

The trial judge first explained that his approach to the case would be to review the salient parts of the evidence without comment and then comment on that evidence in light of the legal principles. He proceeded to outline the evidence of the complainant and the participant C.Z. Commenting first on the evidence relating to the complainant's glasses, he expressed the view that the evidence of the parties on this aspect was completely neutral. It neither helped the Crown's case nor assisted the defence. As to the balance of the evidence, the trial judge reminded himself of Judson J.'s comment as to the inherent frailties of children's evidence in Kendall v. The Queen, 1962 7 (SCC), [1962] S.C.R. 469, at p. 473. He then concluded that the complainant's evidence was unreliable since it had become clear during his examination and cross-examination that with the proper approach one could get him to admit almost anything. He was also of the view that the complainant's testimony had been rehearsed. This therefore "leaves the evidence of C.Z."

The trial judge noted that C.Z. had given an earlier statement which was different from his testimony in court. C.Z. admitted that the first part of his testimony was lies and, when pressed, he could not indicate with any degree of certainty when the truth began. The trial judge referred to the fact that C.Z. testified that each of the boys hit S.M., pulled his penis, and stuck a pencil up his bum. The complainant was said to be crying and yelling at the time. The trial judge stated that, if this had really occurred, it would have taken longer than a couple of minutes and there would have been bleeding and discomfort displayed by the boy such as a difference in his walk. Common sense would also indicate that the crying and shouting would have been heard by others. There was absolutely no evidence to corroborate the bleeding, bruising, or crying. After discussing the logistical difficulties implied by the testimony of C.Z. the trial judge stated he could not accept his version of the alleged assault. There were just too many unresolved questions and too many doubts as to what actually happened.

Chorneyko Prov. Ct. J. next addressed the question of time. He said that after hearing all the evidence he could not form a view with any reasonable degree of certainty when the alleged offence took place. He referred to R. v. Hamilton-Middleton (1986), 1986 3142 (SK CA), 53 Sask. R. 80, as authority for the proposition that the date of an offence is an essential element and must be proven. He therefore refused the Crown's request to amend the information to conform with the evidence led. He said that C.Z., being fourteen years of age, should have been able to reconstruct when the alleged event took place with greater precision. He was left with a reasonable doubt that each of the appellants was involved in the alleged assault and therefore had to find each of them not guilty.

Saskatchewan Court of Appeal ((1988), 1988 208 (SK CA), 65 Sask. R. 134)

Saskatchewan Court of Appeal

The Court of Appeal (Vancise, Wakeling and Gerwing JJ.A.) unanimously allowed the Crown's appeal and ordered a new trial. Vancise J.A., for the court, acknowledged that it was not open to an appellate court on an appeal under s. 605 of the Criminal Code to consider the reasonableness of the trial judge's findings of fact but stated that it could review the record to determine whether the trial judge had properly directed himself to all the relevant evidence bearing on the relevant issues. He cited this Court's decision in Harper v. The Queen, 1982 11 (SCC), [1982] 1 S.C.R. 2, as authority.

In the opinion of the court an examination of the reasons for judgment of the trial judge revealed that he had examined the evidence of the complainant and of C.Z. in isolation from each other thereby failing to appreciate that the evidence of C.Z. was capable of corroborating the evidence of the complainant. Vancise J.A. stated that while there were discrepancies between the evidence of S.M and C.Z., they were relatively insignificant. It would be surprising, moreover, if there were no such discrepancies.

After reviewing the part of the judgment dealing with the testimony of C.Z., the court concluded that the trial judge must have ignored his evidence when he found that the event had not occurred. Accordingly the court was justified in interfering with his decision and ordering a new trial. Vancise J.A. stated at p. 146:

He did not take into account the evidence of C.Z. which was corroborative of the story of S.M., that is: (1) that it occurred in the boys' washroom; (2) that it occurred at the end of recess; (3) that six persons other than C.Z. were involved; (4) that G.B. initiated the assault; (5) that S.M. was kicked and pushed to the floor; (6) that his penis was pulled and that he was assaulted anally. All of that evidence was capable of confirming the story of S.M. which implicated all the accused. The trial judge ignored that evidence or failed to mention it and instead concentrated on evidence which he stated should have been led. In so doing he displayed a lack of appreciation of relevant evidence which could have had a bearing on the result which justifies this court interfering.

Vancise J.A. next addressed the evidence as it related to the breakage of the complainant's glasses, stating that the trial judge had also misapprehended that evidence. The complainant had testified that his glasses were broken during the alleged assault and his father had testified that his son's glasses were broken in September of 1985 and that he had had them repaired. Vancise J.A. noted that the glasses had been broken at other times but was of the view that the father's evidence corroborated the complainant's evidence of this particular breakage. Vancise J.A. also reviewed the evidence relating to the time of the offence and held that the trial judge should have amended the information as requested by the Crown.

Wakeling J.A. wrote additional reasons (Gerwing J.A. concurring) in which he commented on the trial judge's treatment of the evidence of child witnesses and the expert witness. However, since the appellants raised his comments directly in the related appeal of R. v. G.B., A.B. and C.S., I have dealt with them in that judgment.

4. Analysis

4. Analysis

The major submission of the appellants to this Court is that the Court of Appeal exceeded its jurisdiction in substituting its own views of the evidence for that of the trial judge. The appellants point out that the trial judge reached his conclusion that the event as described did not occur after noting that common sense would dictate discomfort by the child, bleeding, a different walk, bruising, and that the entire episode would take more than two minutes. The appellants claim that these were findings of fact which should not have been interfered with. The appellants further submit that the argument that a trial judge has failed to appreciate the relevant evidence makes sense in the context of an appeal from conviction but not in the case of an appeal against an acquittal. When a trial judge acquits he or she need only find a reasonable doubt; the rest of the decision is superfluous. However, if need be, the appellants submit that the trial judge did not disregard the relevant evidence.

In support of their argument the appellants cite Sunbeam Corporation (Canada) Ltd. v. The Queen, 1968 33 (SCC), [1969] S.C.R. 221, which dealt with the recurring problem of whether it is a question of law alone when the Crown establishes all the essential elements of the offence but the trial judge still acquits on the basis of a reasonable doubt. This question is, of course, very important in the case of an appeal by the Crown against an acquittal pursuant to s. 605(1)(a) since the Crown is confined under that subsection to an appeal on a question of law alone. The narrower ground for appeal from an acquittal as opposed to appeal from a conviction reflects the fundamental principle that an accused is presumed to be innocent until proved guilty by proof beyond a reasonable doubt.

In Sunbeam the corporation was charged with four counts of attempting to require or induce the maintenance of a resale price contrary to the Combines Investigation Act, R.S.C. 1952, c. 314. The corporation was convicted on two of the counts and acquitted on the other two on the ground that there was insufficient evidence of inducement. The Crown appealed the acquittals and a majority of the Ontario Court of Appeal (Laskin J.A. dissenting) allowed the appeal and entered convictions on both counts. Schroeder J.A., for the majority, was of the view that no person acting judicially and properly instructed as to the relevant principles of law could have reached the decision of the trial judge. He concluded that the court was therefore entitled to assume that some misconception of law was responsible for the decision.

On appeal to this Court the corporation submitted that the Court of Appeal had no jurisdiction to deal with the Crown's appeal because it was not on a question of law alone. Ritchie J., for the majority (Judson, Spence and Pigeon JJ. dissenting), agreed and reversed the Court of Appeal. He found that the trial judge had simply concluded that the evidence was not sufficient to satisfy him beyond a reasonable doubt that the accused was guilty. He stated at pp. 234-35:

In the present case the trial judge accepted the evidence as contained in the letters above referred to and thus gave full effect to s. 41(2) of the Combines Investigation Act, but he concluded that this evidence was not sufficient to satisfy him beyond a reasonable doubt that the accused were guilty on the 3rd and 4th counts. However wrong the Court of Appeal or this Court may think that he was in reaching this conclusion, I am of opinion, with all respect for those who hold a different view, that his error cannot be determined without passing judgment on the reasonableness of the verdict or the sufficiency of the evidence, and in my view these are not matters over which the Court of Appeal has jurisdiction under s. [605(1)(a)] of the Criminal Code. [Emphasis added.]

In reaching this conclusion Ritchie J. referred to the different standards set for appeals from acquittals and appeals from convictions under the Criminal Code and found that the different words used by Parliament in the different sections of the Code supported his conclusion. He stated at pp. 237-38:

Parliament has thus conferred jurisdiction on the Court of Appeal to allow an appeal against a conviction on three separate grounds, one of which is the very ground upon which the Court of Appeal allowed the present appeal, i.e., that "the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence". The fact that s. [613(1)(a)] recognizes this ground as being separate and distinct from "the ground of a wrong decision on a question of law" appears to me to be the best kind of evidence of the fact that Parliament did not intend the phrase "a question of law" as it is used in the Code to include the question of whether the verdict at trial was unreasonable or could not be supported by the evidence. It is noteworthy that having accorded the Court of Appeal jurisdiction to hear appeals against conviction on the ground that the verdict was unreasonable, Parliament did not confer the same jurisdiction on that Court in appeals by the Crown. No authority is needed for the proposition that appellate jurisdiction must be expressly conferred and with all respect for those who may hold a different view, I am of opinion that the Court of Appeal has exceeded its jurisdiction by allowing this appeal on a ground reserved for appeals against conviction which does not extend to appeals by the Attorney General. [Emphasis added.]

A few months after Sunbeam this Court considered the issue again in Lampard v. The Queen, 1969 695 (SCC), [1969] S.C.R. 373, in which the accused had been acquitted on charges of fraudulent manipulation of stock exchange transactions. The key issue in the case was the intent of the accused. McLennan J.A., for the Ontario Court of Appeal, reversed the trial judge's decision on the basis that there was only one reasonable inference that could be drawn from the evidence on the record, indeed an irresistible one, namely, that a guilty intention existed in the mind of the accused. In allowing the accused's appeal to this Court, Cartwright C.J. held that a person's intention is a question of fact and that in criminal cases there will always be some evidence upon which to rest an acquittal. He stated at pp. 380-81:

When the onus of establishing a certain fact lies upon a party it may be a question of law whether there is any evidence (as distinguished from sufficient evidence) to prove that fact. In the case at bar the onus was, of course, upon the Crown to prove that the appellant did the acts complained of with the guilty intention specified in the section. If the learned trial Judge erred in finding that that onus had not been satisfied, his error was one of fact, certainly not one of law in the strict sense. The applicable principles are clearly set out in the reasons of my brother Ritchie giving the judgment of the majority of this Court in the Sunbeam case, supra, and it is not necessary to repeat them.

In a criminal case (except in the rare cases in which a statutory provision places an onus upon the accused) it can sometimes be said as a matter of law that there is no evidence on which the Court can convict but never that there is no evidence on which it can acquit; there is always the rebuttable presumption of innocence. [Emphasis added.]

The correctness of these two cases was recently affirmed by this Court in Schuldt v. The Queen, 1985 20 (SCC), [1985] 2 S.C.R. 592, which is also relied on by the appellants in support of their position. Lamer J., for the Court, expanded upon the reasoning in Sunbeam and dealt with the confusion that had arisen with respect to Wild v. The Queen, 1970 148 (SCC), [1971] S.C.R. 101. In Wild Martland J., for a majority of this Court (Cartwright C.J. and Hall and Spence JJ. dissenting), held that where a trial judge has acquitted an accused on a charge of criminal negligence on the basis that the evidence raised a reasonable doubt that the accused was driving and where, on a proper view of the law, that evidence was not capable of creating such a doubt, a question of law is raised. Cartwright C.J. and Hall and Spence JJ., however, dissented on the ground that no question of law was raised. They relied on Sunbeam and Lampard as authority.

Lamer J. concluded that Wild had been correctly decided because the trial judge had speculated on the possibility that one of the other occupants might have been the driver of the car thus coming to a conjectural conclusion which he considered might be inconsistent with guilt. Lamer J. confirmed that this would indeed constitute an error of law. He further held, however, that while he agreed with Martland J. that a finding of fact made in the absence of any supportive evidence is an error of law, this will only happen in the case of an acquittal on the basis of a reasonable doubt if there has been a transfer to the accused by law of the burden of proof of a given fact. Lamer J. added that the majority decision in Wild should not be taken as detracting from this statement of the law.

In Schuldt the accused was charged with having attempted to break and enter a gun shop with the intent to commit an indictable offence. The accused had been acquitted at trial as the trial judge found that there was no proof that the accused had the requisite intention. The acquittal was set aside by the majority of the Manitoba Court of Appeal on the basis that the trial judge's finding of fact was not reasonable but fanciful and quite out of touch with the reality of the case. The Court of Appeal therefore found that there was no factual basis upon which to have a reasonable doubt and that this constituted an error of law. Relying on Sunbeam and Lampard Lamer J. concluded that the Court of Appeal had exceeded its jurisdiction. He explained why at p. 610:

In other words, absent a shifting of the burden of proof upon the accused there is always some evidence upon which to make a finding of fact favourable to the accused, and such a finding, if in error, is an error of fact. But when the burden of proof has been shifted (as is the case for proof of intent when a person is found in a place which he or she has broken into), it can be said, absent any evidence to the contrary, that there is no evidence upon which a reasonable doubt could exist as regards the intent of the accused, and an appeal against the ensuing acquittal raises a question of law alone.

In light of these authorities it was, in my view, clearly not open to the Court of Appeal to overturn the acquittal because it found it to be unreasonable or unsupported by the evidence. On an appeal from an acquittal as opposed to an appeal from a conviction an appellate tribunal exceeds its jurisdiction if it attempts to reassess the facts in order to determine whether the trial judge's findings were reasonable. However, even if Schuldt had the effect of narrowing the scope of a question of law for purposes of an appeal from an acquittal pursuant to s. 605(1)(a), as was suggested by the British Columbia Court of Appeal in R. v. Dixon (1988), 1988 2824 (BC CA), 26 B.C.L.R. (2d) 251, it only did so for cases in which the issue before the court is when, if ever, a finding of fact becomes a question of law.

It is my opinion, therefore, that this line of authority, while correctly stating the law, does not support the appellants' argument that the Court of Appeal exceeded its jurisdiction in this case. Indeed, both the Crown and the Court of Appeal acknowledge that it is not open to an appellate court to overturn an acquittal on the ground that it was unreasonable. There are, however, other questions of law arising in a case which will confer jurisdiction on an appellate tribunal. Aside from clearly established questions of law such as the admissibility of evidence, the interpretation of a statute, or whether evidence is capable of being corroborative, this Court has recognized appellate jurisdiction where the question of law originates from the trial judge's conclusion that he or she is not convinced of the guilt of the accused beyond a reasonable doubt because of an erroneous approach to, or treatment of, the evidence adduced at trial. The Wild case is an example of this. A question of law was raised in that case because the trial judge's "reasonable" doubt was based on pure conjecture.

An acquittal based on an erroneous conclusion of reasonable doubt constitutes a question of law where the trial judge has erred as to the legal effect of undisputed or found facts rather than the inferences to be drawn from such facts. Authority for this proposition is to be found in Belyea v. The King, 1932 1 (SCC), [1932] S.C.R. 279, the first appeal to come before this Court following the introduction of s. 605 into the Code. The accused had been acquitted of conspiracy charges at trial. Anglin C.J., for the Court, holding that the error of the trial judge raised a question of law, affirmed the judgment of the Ontario Court of Appeal which reversed the acquittal on the basis that the trial judge misdirected himself in finding that the Crown had not proved that the accused took part in the overt acts. Anglin C.J. noted that it was not essential to a finding of guilt of conspiracy to establish that the accused actually participated in the overt acts. He stated at p. 296:

The right of appeal by the Attorney-General, conferred by s. [605(1)(a)], Cr. C. . . . is, no doubt, confined to "questions of law". That implies, if it means anything at all, that there can be no attack by him in the Appellate Divisional Court on the correctness of any of the findings of fact. But we cannot regard that provision as excluding the right of the Appellate Divisional Court, where a conclusion of mixed law and fact, such as is the guilt or innocence of the accused, depends, as it does here, upon the legal effect of certain findings of fact made by the judge or the jury, as the case may be, to enquire into the soundness of that conclusion, since we cannot regard it as anything else but a question of law, -- especially where, as here, it is a clear result of misdirection of himself in law by the learned trial judge. [Emphasis added.]

Belyea was distinguished by Lamer J. in Schuldt but its correctness was not questioned. For a comprehensive list of the case law in this area see Ewaschuk J., Criminal Pleadings and Practice in Canada (2nd ed. 1987), at paras. 23:1010 and 23:1025.

A question of law may also arise, it seems to me, when the trial judge misdirects himself or herself with respect to the relevant evidence. Indeed, the Court of Appeal in this case reversed the acquittals after concluding that an error of law had arisen due to the trial judge's failure to properly direct himself to all the evidence bearing on the relevant issues. In its oral argument to this Court the Crown conceded that, if the trial judge's error was not the result of misdirection, then the Court of Appeal was without jurisdiction.

In support of its position the Crown relies on Harper v. The Queen, supra, as did the Court of Appeal. The accused in that case, a police officer, had been charged with assault but contended that all the complainant's injuries were sustained when he resisted arrest. The complainant and one witness testified that the accused had punched the victim in the face but the defence called four witnesses who testified that they had not seen the accused hit the complainant. In his reasons for judgment the trial judge stated that only the complainant and the other Crown witness had observed the events. The evidence of the defence witnesses was expressly not taken into account by the trial judge because he concluded they were not present at the crucial time but no finding was made as to their credibility. The accused was convicted at trial and his appeal to the British Columbia Court of Appeal was dismissed.

On appeal to this Court the issue was whether the trial judge's failure to consider the defence evidence constituted an error of law. Estey J., for the majority (Ritchie J. dissenting) concluded that rejecting the evidence of the defence witnesses was an error of law and a new trial was ordered. With respect to the jurisdiction of an appellate court generally Estey J. stated the following at p. 14:

An appellate tribunal has neither the duty nor the right to reassess evidence at trial for the purpose of determining guilt or innocence. The duty of the appellate tribunal does, however, include a review of the record below in order to determine whether the trial court has properly directed itself to all the evidence bearing on the relevant issues. Where the record, including the reasons for judgment, discloses a lack of appreciation of relevant evidence and more particularly the complete disregard of such evidence, then it falls upon the reviewing tribunal to intercede. This problem was before this Court in MacDonald v. The Queen, 1976 140 (SCC), [1977] 2 S.C.R. 665, when Laskin C.J. stated, at p. 673:

It does not follow, however, that failure of a trial judge to give reasons, not challengeable per se as an error of law, will be equally unchallengeable if, having regard to the record, there is a rational basis for concluding that the trial judge erred in appreciation of a relevant issue or in appreciation of evidence that would affect the propriety of his verdict. Where some reasons are given and there is an omission to deal with a relevant issue or to indicate an awareness of evidence that could affect the verdict, it may be easier for an appellate Court or for this Court to conclude that reversible error was committed. [Emphasis added.]

In dissent, Ritchie J. noted that an accused's appeal to this Court was limited to a question of law in the strict sense and expressed the view that the appeal did not raise a question of law alone because it concerned a difference of opinion as to the sufficiency of the evidence.

This Court has not yet applied Harper to an appeal from an acquittal. It was, however, applied to an appeal from an acquittal by the Newfoundland Court of Appeal in R. v. Roman (1987), 1987 119 (NL CA), 38 C.C.C. (3d) 385. The accused in that case were charged with illegal entry into Canadian fisheries waters contrary to the Coastal Fisheries Protection Act, R.S.C. 1970, c. C-21. The trial judge acquitted the accused on the basis that their equipment may not have been working properly. The Crown appealed the acquittals but the accused claimed that the appeal was not maintainable because no question of law was raised. In response the Court of Appeal, per Marshall J.A., said at p. 391:

There is a distinction between reassessment by an appeal court of evidence for the purpose of weighing its credibility to determine culpability on the one hand and, on the other, reviewing the record to ascertain if there has been an absence of appreciation of relevant evidence. The former requires addressing questions of fact and is placed outside the purview of an appellate tribunal by s. 605(1)(a) of the Code. The latter inquiry is one of law because if the proceedings indicate a lack of appreciation of relevant evidence, it becomes a reviewable question of law as to whether this lack precluded the trial judge from effectively interpreting and applying the law.

He cited Harper in support. He then reviewed the trial judge's treatment of the evidence which included testimony to the effect that the ship was in good working condition on the day in question. From this evidence the trial judge inferred that it could at times be in bad working condition and founded his reasonable doubt on that basis. The Court of Appeal held that the trial judge's inference in this regard constituted a misapprehension of the evidence given by the witnesses, which was evidence bearing on the central issue before him, and the conclusion drawn therefrom was a reversible error of law within the meaning of Harper. Relying on Wild the Court also found that the trial judge was in error in basing the acquittal upon an inference drawn from a conjectural possibility.

Assuming that Marshall J.A. was correct in finding that the trial judge's misapprehension of the relevant evidence amounted to an error of law within the meaning of Harper, it is my opinion that such an error will only amount to an error of law alone pursuant to s. 605(1)(a) of the Code if it is the result of misdirection. Thus while I do not think it is necessary to restrict Harper to appeals from convictions per se, I would add the essential caveat that the "misapprehension" or "lack of appreciation" of the relevant evidence must have been the result of the trial judge's misdirection of himself or herself as to the applicable law, which in my view, was the case in the present appeal. Of necessity it will be more difficult in an appeal from an acquittal to establish with certainty that the error committed by the trial judge raised a question of law alone because of the burden of proof on the Crown in all criminal prosecutions and the increased importance of examining critically all evidence that may raise a reasonable doubt.

I find support for my conclusion that the trial judge's errors of law in this case were the result of misdirection in R. v. Morin, 1988 8 (SCC), [1988] 2 S.C.R. 345. In Morin this Court had occasion to consider whether individual pieces of evidence should be examined in isolation and what the appropriate approach to weighing the evidence should be in the context of a Crown appeal from a jury acquittal on a charge of first degree murder. The Ontario Court of Appeal allowed the Crown's appeal and ordered a new trial on the basis that the trial judge had misdirected the jury when he invited them to apply the criminal burden of proof beyond a reasonable doubt to individual pieces of evidence. This Court unanimously upheld the decision of the Court of Appeal with respect to this ground of appeal, finding that the individual pieces of evidence should be examined in the context of all the evidence.

Sopinka J., writing for the majority (Lamer and Wilson JJ. concurring), first noted that there was ample authority for the proposition that it is misdirection to instruct the jury to apply the standard of reasonable doubt to individual pieces of evidence. The accused did not dispute this but argued that the charge did not invite a piecemeal examination of the evidence. However, on this Court's view of the jury charge, the trial judge had indeed made a serious error. Sopinka J. concluded at p. 358:

The effect of the misdirections referred to above may very well have been that the jury examined evidence that was crucial to the Crown's case in bits and pieces. Standing alone or pitted against the evidence of the accused without the support of other evidence, much of this evidence might have been discarded as not measuring up to the test. When the jury came to consider the Crown's case as a whole there may not have been very much left of it. We cannot know for certain, but this scenario is a very likely one and the charge therefore constituted a serious misdirection. [Emphasis added.]

The point of departure in the majority and minority decisions related to the accused's submission that while a piece of evidence must be examined in relation to the other evidence, it must nonetheless individually meet the test of proof beyond a reasonable doubt, calling therefore for a two-stage process of deliberation each attracting the application of the doctrine of reasonable doubt. My colleague, Lamer J., and I agreed with this submission. The majority rejected it. The whole Court agreed, however, that the evidence must be looked at as a whole.

I believe that Morin highlights the fact that the approach taken by the trial judge to the evidence must be correct in law so as to ensure that the final step in the process, the weighing of the evidence, is not flawed. In this case, even although the trial judge was sitting alone, he was wearing two "hats" at different stages. He was both the trier of law and had to direct himself as to the proper approach to the evidence and then, having done so, he became the trier of fact in weighing it.

A review of the trial judge's decision in this case makes it clear that he failed to consider the evidence in its totality. This was the result of misdirection and brought the matter within the jurisdiction of the Court of Appeal.

While Chorneyko Prov. Ct. J. did outline the evidence of both key Crown witnesses, he considered their evidence separately and failed to consider their evidence as a whole. He first considered the evidence of the complainant in isolation and rejected it as unreliable. He then moved on to the evidence of the accomplice, stating that, having found the evidence of the complainant unreliable, all he had left was the evidence of C.Z. Further, he looked only for discrepancies as to details in the evidence presented and did not consider the corroborative aspects of the evidence and the numerous elements of the alleged offence which were testified to by both witnesses capable of substantiating each other's story. The trial judge also did not consider the corroborative aspects of the evidence relating to the complainant's broken glasses. There was evidence of a breakage at the time of the alleged assault and this evidence would have been capable of corroborating the child's testimony so as to enhance its reliability and should have been viewed together with the rest of the Crown's evidence. I do not believe that the trial judge considered the individual pieces of evidence "in the context of all of the evidence". Rather, the evidence was viewed "without the support of other evidence". According to Morin this amounts to serious misdirection.

I find the words of the High Court of Australia in Chamberlain v. The Queen (1984), 58 A.L.J.R. 133, which was referred to in Morin, very much on point. Chief Justice Gibbs and Justice Mason stated at p. 139:

We have no doubt that the position is correctly stated in the following passage in R. v. Beble [1979] Qd. R. 278 at 289, that "It is not the law that a jury should examine separately each item of evidence adduced by the prosecution, apply the onus of proof beyond reasonable doubt as to that evidence and reject it if they are not so satisfied." At the end of the trial the jury must consider all the evidence, and in doing so they may find that one piece of evidence resolves their doubts as to another. For example, the jury, considering the evidence of one witness by itself, may doubt whether it is truthful, but other evidence may provide corroboration, and when the jury considers the evidence as a whole they may decide that the witness should be believed. Again, the quality of evidence of identification may be poor, but other evidence may support its correctness; in such a case the jury should not be told to look at the evidence of each witness "separately in, so to speak, a hermetically sealed compartment"; they should consider the accumulation of the evidence . . . . [Emphasis added.]

A final difficulty I have with the trial judge's reasons relates to the statements he made regarding the time of the offence. As was clearly established in the related appeal of R. v. G.B., A.B. and C.S., it is not necessary for the Crown to establish with precision when the alleged offence occurred. In view of the trial judge's reasoning in R. v. G.B., A.B. and C.S., I believe one can conclude with reasonable certainty that the trial judge's finding of a reasonable doubt was heavily influenced by his error with respect to the legal requirements regarding the time of the offence.

5. Disposition

5. Disposition

For all of these reasons I would dismiss the appeal. In my view, the Crown has established that the verdict would not necessarily have been the same absent the trial judge's misdirection. However, I am not confident that, absent the error of law, the appellants would have been found guilty and accordingly I agree with the Court of Appeal that a new trial is appropriate.

//McLachlin J.//

The reasons of Gonthier and McLachlin JJ. were delivered by

Reasons of McLachlin J.

McLachlin J. -- I agree with my colleague, Wilson J., that the appeal should be dismissed and a new trial ordered.

I base this conclusion on the third error of the trial judge to which Wilson J. refers -- his view that the Crown was obliged to establish the precise time when the offence occurred.

In my opinion, it is not clear that the trial judge misdirected himself with respect to the relevant evidence in the manner referred to by Wilson J. In the absence of such misdirection the law is clear that doubts about the reasonableness of the trial judge's assessment of the evidence do not constitute questions of law alone, and hence cannot support an appeal from acquittal.

The first misdirection Wilson J. suggests is that the trial judge directed himself that the evidence of the complainant and C.Z. must be independently considered. R. v. Morin, 1988 8 (SCC), [1988] 2 S.C.R. 345, establishes that it is an error of law for the trial judge to direct that the reasonable doubt standard must be applied to individual pieces of evidence. On re-reading the trial judge's reasons I am far from certain that he committed this error. He reviewed the evidence of the complainant and C.Z. in separate paragraphs, expressing doubts about the evidence of each. After stating that there were just too many unresolved questions and too many doubts as to what actually happened for him to accept the Crown's version, and after discussing the question of time, he concluded:

Taking these factors into account, I have a reasonable doubt that each of the accused was involved in the act, and therefore have to find each of the accused not guilty.

It is reasonable to conclude that the phrase "these factors" was intended to include all the evidence, the findings of credibility of particular witnesses referred to earlier, as well as the erroneous statement of law with respect to the issue of proof of time of the offence (which I agree is an error of law). The trial judge never stated that any piece of evidence was to be considered with respect to reasonable doubt in isolation from the rest of the evidence, nor did he suggest that any piece of evidence should be completely disregarded for failing to meet such a standard. Nor did his statements concerning the credibility of the witnesses' stories amount to an error in law, in my view. While the trial judge's statement may not be as clear as one might wish, it is not clearly in error and does not establish misdirection.

The second misdirection Wilson J. suggests is that the trial judge failed to instruct himself that the evidence of C.Z. should be looked at to see if it was capable of corroborating the evidence of the complainant. This might be valid if one were instructing a jury serving as the trier of fact. But where a trial judge is sitting as a trier of fact, it is open to him to reject the evidence of a witness as lacking credibility and hence not being capable of constituting corroboration. In those circumstances it would be wrong for a trial judge to instruct himself or herself that the evidence of the witness should be considered to see if it was capable of corroborating the other evidence. Again, this leaves me unable to conclude that there was error of law or misdirection.

For these reasons, I find myself unable to conclude that the trial judge's reasons disclose misdirection within the test in Morin or otherwise with respect to the first two errors referred to by Wilson J.

I would dismiss the appeal and order a new trial.

Appeal dismissed.

Solicitors for the appellant G.B.: Rusnak, Balacko, Kachur & Rusnak, Yorkton, Saskatchewan.

Solicitors for the appellants C.S., H.H. and S.S.: Ozirny, Fisher & Bell, Melville, Saskatchewan.

Solicitors for the appellant A.B.: Kyba, Yaholnitsky & Taylor, Yorkton, Saskatchewan.

Solicitor for the respondent: The Attorney General for Saskatchewan, Regina.