R. v. B., 2015 ONSC 3410
COURT FILE: SCA(P) 778/13
DATE: 2015 05 27
ONTARIO
SUPERIOR COURT OF JUSTICE
(Summary Conviction Appeal Court)
B E T W E E N:
HER MAJESTY THE QUEEN
A. T. Brun, for the Respondent
Respondent
- and -
K.B.
Z. Kerbel, for the Appellant
Appellant
HEARD: May 22, 2015 at Brampton
REASONS FOR JUDGMENT
[on appeal from conviction by
Bovard J. on October 10, 2013]
HILL J.
INTRODUCTION
[1] After a trial, K.B. was convicted of sexually assaulting B.R., the complainant.
[2] The prosecution called the complainant to testify as well as C.F. (B.R.’s aunt), S.R. (the complainant’s mother), and M.R. (B.R.’s boyfriend). The defence called no evidence submitting to the trial judge that the Crown failed to prove the appellant ever touched B.R. B.R. was described as an incredible and/or unreliable witness who had motive(s) to falsely accuse the appellant of assaulting her.
[3] Following the trial evidence and submissions, the trial judge adjourned for just over a month to read transcripts of evidence and deliberate upon his decision. The oral reasons for judgment of the trial court comprise 30 pages of transcript.
[4] On appeal against conviction, the appellant launched a broad-ranging attack on the trial court’s reasons as summarized at para. 17 of the Appellant’s Factum:
The case against the Appellant rested solely on the complainant’s credibility. Her allegation was an unusual one and was unconfirmed by any other evidence. Moreover, it was contradicted in many important respects by her prior statements to police and by the evidence of her aunt, Ms. C.F.. This was a case in which the trial judge’s assessment of the complainant’s credibility was crucial to a fair trial for the Appellant, and to the delivery of a true verdict. However, the trial judge’s reasons reflect that he misapprehended critical items of evidence that were material to the proper assessment of the complainant’s credibility. The trial judge’s reasons also disclose that he applied a higher degree of scrutiny to the evidence favouring the defence than he did to that favouring the Crown. Further, the trial judge’s reasons for judgment are insufficient. They fail to articulate how evidence favourable to the defence, that the trial judge did not accept or reject, did not raise a reasonable doubt about the Appellant’s guilt. The trial judge’s reasons for judgment also demonstrate that he erroneously adopted a piecemeal approach to the evidence which lead him to misapply the burden of proof. These errors, taken alone or in conjunction, occasioned a miscarriage of justice and necessitate a new trial.
FACTUAL OVERVIEW
[5] In May of 2012, the appellant resided with his common law wife (C.F.) and their young child in the basement of the complainant’s father’s home. By this time, the complainant had resided for six or seven years in the home along with her father whenever he would stay at the residence. B.R.’s bedroom was on the upper or second floor of the home.
[6] There was a door at the top of the basement leading to the main or ground level of the residence.
[7] In terms of aural privacy in the residence, B.R. gave this evidence in-chief:
Q. Did [you] ever go down to the basement?
A. Yes.
Q. In your experience, if you were in the basement, were you able to hear [what was] going on the rest of the house upstairs?
A. The main floor, no problem.
Q. Okay. In your experience, were you able to hear what was happening on the second floor if you were in the basement?
A. No.
Q. So, when is it that you would sleep?
A. I had a hard time sleeping because of their son. So, I was – I would sleep usually from finishing work until two, and then by that time Cici would have came upstairs to the main floor to make her son breakfast, and by that time I would also wake up and go downstairs.
[8] At trial, B.R. testified that on May 8, 2012, after dinner with her aunt and the appellant, she retired to an upstairs bedroom at about 7:00 p.m. to sleep before leaving for her work shift which commenced at about 10:00 p.m. She closed the bedroom door.
[9] On B.R.’s evidence, about an hour later, the appellant entered the bedroom without knocking. She was dressed and laying on her back on the bed under a quilt. She had her eyes closed but was not asleep.
[10] In her in-chief testimony, the complainant described the assault in these terms:
…K.B. had entered without knocking, he had pulled up the sheets shaking my shoulders for me to go buy him cigarettes. I told him no, and he asked again, and I told him that I need to sleep. He pushed his arm under my head, and wrapped his other arm around me. I was pushing him away, telling him to get off of me. He then slipped his hand up my shirt, grabbed my breasts once, but squeezed twice and grabbed my butt, and his fingers was, like, around my whole butt, and grabbed it once, but also squeezed twice. I was pushing him away, telling him to get him off of me. And he rocked back, looked behind him, said “Shhh,” while getting off the bed with one foot, and his knee was still on the bed, and he then turned around and left and closed the door.
The complainant did not say that the appellant closed the bedroom door after he entered.
[11] In further testimony, B.R. described the appellant as kneeling over her on the bed and “his whole body lying on top” of her. She kept pushing the appellant away. As to her reaction, B.R. testified that:
A. …I kept telling him to get off.
Q. What did you do when he squeezed your breast?
A. I was telling him to get off me.
Q. Are you – is that – are you yelling, or what tone of voice?
A. Yelling.
A. ... and then he had his one foot off the bed, and was looking back and was telling me to, “Shhh.” And then that’s when he got up and left and closed the door.
Q. After he gives a double squeeze on your butt cheek, can you describe how this situation ended?
A. He then got up and closed the door.
Q. Okay, and you eventually pushed him away, and then yelled. You yelled at him to stop, right?
A. Yes.
[12] Cross-examination of the complainant explored a number of issues including:
(1) contrary to B.R.’s evidence in-chief and under cross-examination that the appellant touched her breast and then her buttocks, the complainant informed the police that he first touched her buttocks
(2) at the time of the alleged assault, B.R. did not summon help from her aunt or phone anyone or even leave the bedroom immediately or the residence
(3) contrary to trial evidence that she did not go back to sleep after the assault and before leaving for work, B.R. told the police she had then fallen asleep
(4) whether B.R. moved into her boyfriend’s home on May 9 or May 12
(5) the delay of some days in reporting the incident to the police
(6) the circumstances of hugs with the appellant on May 11 and May 13
(7) the report to the police was by B.R.’s mother – this was after [B.R.] telling her parents she did not want the police involved and after she told her uncle that she did not want to be questioned about the matter or to go to court
(8) B.R. told her uncle the assault occurred on May 9.
[13] In her testimony, B.R. provided explanations for inconsistencies, discrepancies and other cross-examination issues including the course of her reporting or disclosure to others. Questioned as to motives to fabricate (garnering sympathy with her mother; an excuse to move in with her boyfriend), B.R. resisted the existence of any such motives.
[14] Asked in cross-examination what material she had reviewed in preparation for testifying, the complainant responded that she had access to a synopsis or summary of her videotaped statement to the police. Then, in re-examination, the complainant revealed the existence of a journal she had consulted prior to appearing as a witness which purported to detail the circumstances of the alleged assault.
[15] The complainant’s aunt, the second prosecution witness and the only other trial witness beyond B.R. who was present in the residence on the occasion of the alleged assault, testified that after dinner on May 8, 2012 the appellant left the basement at about 9:00 p.m. to have a cigarette. In her in-chief evidence, which it is necessary to quote at length, the witness provided this account:
A. I went to do dishes after dinner. K.B. and [B.R.] went outside for a cigarette. After that we went downstairs, K.B., myself and R.. [B.R.] went upstairs, I guess, to get ready for work or to take a nap before work. It was shortly after we went downstairs, K.B. was that night spending the night, he asked if he could go up for a cigarette. He went upstairs. I said, “On your way up, can you yell as ask [B.R.] to – make sure she’s up for work. I heard him call her, and then I heard him go outside for a cigarette. It was a short time after that he came back downstairs.
Q. So, around nine o’clock, what was it, exactly, you told K.B.?
A. He said he was going out for a cigarette, and I had asked him to holler up to [B.R.] and just make sure she was awake, so that she was ready for work. He then went for a cigarette and came back downstairs. I believe he asked her to pick him up a pack of cigarettes.
THE COURT: Sorry, you said, he went to – for a cigarette and then back downstairs?
A. Yes.
THE COURT: Okay.
CROWN COUNSEL: Q. So, while K.B. goes upstairs, are you still in the basement?
A. Yes, I was.
Q. And are you able to hear from the basement what’s going on upstairs?
A. Yes.
Q. How is it that you’re able to hear?
A. You can hear everything in the house, I’ve heard the neighbours fighting, I’ve heard [B.R.] says, “Is my laundry ready?” I’ve asked for her to come down and get her laundry. She’s managed to hear me, so I assume she could hear.
Q. So, K.B. told you he was going to ask [B.R.]…
A. Mm hm.
Q. …for cigarettes, but did you actually hear him asking?
A. I heard him say something about cigarettes, I don’t know if it was to grab a pack, or he – she had a cigarette, or – I don’t know.
Q. And from your vantage point in the basement…
A. Mm hm.
Q. …could you tell where K.B. was in the house when he was….
A. Yeah, I heard him go out the sliding door for a cigarette, through the kitchen.
Q. When you say you heard him saying something about cigarettes, where – where was he at that point?
A. Right at the top of the stairs outside the basement door.
Q. And do you know whether or not the basement door was open or closed at that point?
A. It was being closed at the time of his discussion.
Q. Did you hear any response from [B.R.] to what Mr. K.B.….
A. All I heard was her say she was up [sic] and then he went outside.
THE COURT: Sorry, did you say the basement door was being closed?
A. It was being closed as conversation was taking place.
THE COURT: Thank you.
CROWN COUNSEL: Q. And could you tell where [B.R.] voice was coming from when she said she was up?
A. She was upstairs on the top floor of the house.
Q. Now, is this conversation before or after K.B. had gone outside for his cigarette?
A. Before he went out for the cigarette.
Q. And roughly how long was K.B. – how long was he out of the basement in total?
A. Approximately five minutes tops. It was a quick conversation and then he went outside for his cigarette, so – it usually takes him two or three minutes to smoke.
Q. From where you were in the basement, are you able to hear people going up and down the stairs on the…
A. Yes.
Q. …on the second floor?
A. Mm hm.
Q. Okay. Did you hear anyone coming up or down the stairs?
A. No. All I heard was the sliding door.
[16] Ms. C.F.’s testimony provided other material contradicting the complainant’s evidence including the following:
(1) B.R. ate dinner with the witness and the appellant in the days immediately following the alleged assault – there appeared to be no change in the relationship between the two – “everything seemed like normal”
(2) on May 11 and 13, 2012, B.R. hugged the appellant
(3) B.R. did not move out until the May 12/13 weekend.
[17] The final two prosecution witnesses, B.R.’s mother and boyfriend, provided evidence respecting the disclosure process and the timing of the complainant’s move to her boyfriend’s home.
[18] Witnesses at trial were questioned as to physical touching between the complainant and the appellant on occasions other than May 8, 2012. B.R. testified that any grabbing or rough-housing was only initiated by the appellant. Her mother took the position in her testimony that the appellant touched B.R. but that pick-up hugs were “mutual”. Ms. C.F. informed the court that it was B.R. who initiated slaps, hugs and rough-housing. B.R.’s boyfriend testified that while B.R. may not have been an initiator, she and the appellant grabbed “each other” and grappled and “most” headlocks were by the appellant.
REASONS FOR JUDGMENT OF THE TRIAL COURT
[19] At the outset of Crown counsel’s closing submissions, some weeks before judgment was given, this exchange took place:
CROWN COUNSEL: Yes, Your Honour. Your Honour, in the case before, as with most cases of this nature, ultimately it will come down to a W(D) analysis.
THE COURT: Well, he didn’t ….
CROWN COUNSEL: The defence….
THE COURT: He didn’t….
CROWN COUNSEL: Yes.
THE COURT: …testify, so there’s no W(D) analysis.
CROWN COUNSEL: Well, I – I suppose in that sense it’s not a standard he said/she said as we don’t have a he said, but I’m sure my friend will raise that the Crown has not proven beyond a reasonable doubt. So, I suppose that does take us outside of the real of W(D).
(emphasis added)
[20] The trial judge commenced his reasons by observing that, “[t]he issues in the case are credibility and reliability of witnesses”.
[21] Part way through its reasons, the court stated that it accepted (“I accept”) the complainant’s evidence regarding “problematic aspects of Ms. C.F.’s evidence” dealt with to that point. Subsequently, as discussed more fully below, the court addressed other issues including what could be heard by persons on various floors of the subject residence.
[22] In summarizing the complainant’s evidence in the reasons for judgment, the trial judge noted that “she pushed Mr. K.B. away, yelling at him to get off of her”. The court also noted that B.R. “said that one could hear what happened on the main floor, but not on the second floor”.
[23] The court summarized Ms. C.F.’s evidence respecting what she heard on May 8 and what could be heard in the residence:
Ms. C.F. said that it’s easy to hear from the basement what’s going on, on the top floor of the house. She said that when Mr. K.B. went upstairs she heard him say something to [B.R.] about cigarettes, but she did not know what it was. She heard, however, [B.R.] say that she was up. Then she heard Mr. K.B. go outside through the sliding door in the kitchen.
[24] In terms of the conflicting evidence relating to the likelihood that Ms. C.F. would have heard the complainant yelling, the trial court stated:
Next, the defence submitted that it is implausible that Mr. K.B. would sexually assault [B.R.] in her house when Ms. C.F. was in the basement and one could hear everything that was going on throughout the house.
This may seem implausible, but it is not unusual that sexual assaults occur in a particular part of a house when others are present in other parts of the house. Moreover, in the case at bar, [B.R.] testified that someone in the basement cannot hear what’s happening on the top floor where the incident took place. Ms. C.F. said that you could hear everything that goes on throughout the house from the basement. However, I note that she wasn’t sure what Mr. K.B. told [B.R.] about getting cigarettes, so it appears that it is not as easy as she made out to hear everything from the basement that is being said on the top floor.
[25] The trial court’s only reference to the application of the burden of proof to credibility findings was the final conclusory sentence of the reasons for judgment:
After considering all of the evidence, counsels’ submissions, and the relevant law, I am convinced beyond a reasonable doubt that Mr. K.B. sexually assault [B.R.] and, therefore, Mr. K.B. is found guilty and a conviction is registered.
ANALYSIS
[26] It is unnecessary to consider all grounds of appeal raised by the appellant given error on the part of the trial court respecting application of the burden of proof.
[27] Because trial judges have the unique advantage of seeing and hearing witnesses testify, a judge’s appreciation of the evidence, and credibility and reliability findings, attract significant deference on appeal: R. v. O.M., 2014 ONCA 503, at para. 19; R. v. T.M., 2014 ONCA 854, at para. 31. Accordingly, the sufficiency of a trial court’s reasons should be considered in light of the deference afforded to trial judges on credibility findings: R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 26; R. v. T.S., 2012 ONCA 289, at para. 46.
[28] Where “credibility is a central issue in a jury trial, the judge must explain the relationship between the assessment of credibility and the Crown’s ultimate burden to prove the guilt of the accused to the criminal standard”: R. v. J.H.S., 2008 SCC 30, [2008] 2 S.C.R. 152, at para. 8. What has come to be known as a W.(D.) direction, or its functional equivalent, relating the standard of proof to witness credibility fulfils this obligation. In R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, at pp. 757-58, the court stated:
Ideally, appropriate instructions on the issue of credibility should be given, not only during the main charge, but on any recharge. A trial judge might well instruct the jury on the question of credibility along these lines:
First, if you believe the evidence of the accused, obviously you must acquit.
Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
Third, 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.
If that formula were followed, the oft repeated error which appears in the recharge in this case would be avoided. The requirement that the Crown prove the guilt of the accused beyond a reasonable doubt is fundamental in our system of criminal law. Every effort should be made to avoid mistakes in charging the jury on this basic principle.
[29] While rigid adherence to the W.D. formula is unnecessary (R. v. S.W.D., 1994 CanLII 76 (SCC), [1994] 3 S.C.R. 521, at p. 533; R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5, at para. 7), and particularly so in reasons for judgment in a judge-alone trial, it is nevertheless essential that “the substance of the W.(D.) instruction be respected” in a trial court’s reasons: Dinardo, at para. 23. In other words, it is generally considered critical that the record demonstrate an appreciation for and a proper application of the criminal standard of proof to the whole of the evidence: R. v. J.M.M., 2012 NSCA 70, at para. 72, leave to appeal refused [2012] S.C.C.A. No. 402. So, for example, in applying the principle of reasonable doubt to credibility assessment, a trial court must recognize that because “there is a distinction between a finding of credibility and proof beyond a reasonable doubt”, “a reasonable doubt can survive a finding that the complainant is credible” (R. v. J.W., 2014 ONCA 322, at para. 26) and a trial court must recognize that the W.(D.) analysis does apply in criminal trials where the accused does not testify.
[30] Without an accused testifying, evidence favourable to the defence may be grounded in evidence called by the defence or through the testimony of prosecution witnesses. Such evidence may engage the trier of fact in important credibility determinations respecting contradictory evidence. At paras. 37 and 39 of R. v. Smits, 2012 ONCA 524, the court stated:
There is now no doubt that in light of this court’s decision in R. v. D.(B.), 2011 ONCA 51, at para. 114, that, even if an accused does not testify or call any evidence, where there are credibility findings on a vital issue to be made between conflicting evidence arising out of evidence favourable to the defence in the Crown’s case, the trial judge must relate the concept of reasonable doubt to those credibility findings. The trial judge must do so in a way that makes it clear that it is not necessary for the trier of fact to believe the evidence favourable to the defence on that trial issue. Rather, it is sufficient if, viewed in the context of all the evidence, the conflicting evidence leaves the trier of fact in a state of reasonable doubt as to the accused’s guilt. In that event, the trier of fact must acquit.
Trial judges in a judge alone trial do not need to adhere slavishly to the W.(D.) formula. It should, however, be clear from an examination of the reasons that at the end of the day the trial judge has had regard for the basic principles underlying the W.(D.) instruction: see R. v. Minuskin (2000), 2003 CanLII 11604 (ON CA), 68 O.R. (3d) 577 (C.A.), at para. 22.
[31] Accordingly, the W.(D.) instruction, or its functional equivalent has application “to other exculpatory evidence that emerges during trial proceedings: R. v. B.D., 2011 ONCA 51…at paras. 113-114” and a trier of fact need not accept the evidence favourable to the defence in order to acquit if it is found capable of raising a reasonable doubt: R. v. Cyr, 2012 ONCA 919, at paras. 50, 58; R. v. Burnie, 2013 ONCA 112, at paras. 47-48; R. v. King, 2013 ONCA 417, at paras. 13-14; R. v. Dayes, 2013 ONCA 614, at paras. 51, 55-59; J.M.M., at para. 74; R. v. Grant, 2013 MBCA 95, at paras. 31-32, affd 2015 SCC 9; R. v. B.D. 2011 ONCA 51, at paras. 105, 113-114.
[32] With respect to legal concepts which a trial court routinely encounters, express self-direction is not required as it may be reasonably presumed that the trial judge knows that law: R. v. Youvarajah, 2013 SCC 41, [2013] 2 S.C.R. 720, at para. 47; C.L.Y., at para. 10; R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 51; R. v. Burns, 1994 CanLII 127 (SCC), [1994] 1 S.C.R. 656, at p. 664; R. v. Booth, 2007 ONCA 97, at para. 3; R. v. J.R., 2014 QCCA 869, at paras. 26-31, leave to appeal refused [2014] S.C.C.A. No. 385. That said, “[a] judge who knows the law may still make mistakes in a particular case”: Sheppard, at para. 54; R. v. Eastwood, 2008 ABCA 181, at para. 8; R. v. W.R.P., [2007] A.J. No. 596 (C.A.), at para. 18. Where the record reflects error respecting the application of the reasonable doubt standard, deference to the trial court’s credibility findings is jeopardized.
[33] As recognized by everyone at trial, credibility was a critical issue in determining whether the prosecution had proven its case beyond a reasonable doubt. The complainant’s evidence was effectively uncorroborated except, arguably, for the existence of some post-incident demeanour evidence. There were problems with B.R.’s testimony including material inconsistencies between her trial evidence and her videotaped statement to the police, and, her embellishment at trial as to material she accessed in preparation to testify. Aspects of the complainant’s evidence were contradicted by trial evidence other than that provided by her aunt.
[34] The complainant’s aunt was not a disreputable witness, was not found as a fact to be biased, and was supported on certain matters by the testimony of other witnesses for example B.R.’s boyfriend on the date as to when B.R. moved out of the residence.
[35] On review of the whole of the trial court’s reasons, given the legal misdirection and the content of the reasons, it cannot confidently be said that the trial judge properly applied the reasonable doubt standard to vital and conflicting credibility issues.
[36] The trial judge erred in law in holding that “no W.(D.) analysis” was required because the appellant did not testify. The reasons for judgment reflect this misdirection with only a single conclusory reference to the burden of proof and acceptance of the complainant’s evidence on certain points where it differed from the evidence of Ms. C.F.. Read as a whole, the reasons do not reflect consideration that the court did not have to accept C.F.’s evidence favourable to the defence in order to acquit if it was otherwise capable of raising a reasonable doubt.
[37] While the trial court’s errors regarding the test and application of the burden of proof to vital and conflicting credibility issues where the accused has not testified is, in my view, determinative of the appeal, a related and second issue is worthy of mention. At trial, an important part of the defence attack on the complainant’s credibility related to the evidence of what Ms. C.F. heard on the date of the alleged assault. The relevant evidence at trial included the following:
(1) B.R., who had lived in the residence for some years, testified that one could not, in her experience, hear “what was happening” on the upper or second floor if positioned in the basement
(2) Ms. C.F., who had lived day-to-day in the basement of the residence for some months, informed the trial court that from that location one can “hear everything in the house”
(3) on B.R.’s evidence, on May 8, 2012, the appellant opened the door of her upper floor bedroom and entered
(4) during the described assault, the complainant was “yelling” as she “kept telling” the appellant to get off of her
(5) B.R. testified that the appellant closed her bedroom door when he left
(6) according to Ms. C.F., positioned in the basement on the date of the alleged assault:
i. all she heard coming from the upper floor from B.R. was a response to the appellant’s call as to whether she was up for work
ii. she heard the appellant from his position on the main floor speak about cigarettes to B.R. who was on the second floor
iii. she heard the sliding door open on the main floor consistent with the appellant exiting to the outside for a cigarette
iv. at the relevant time, she heard no one using the stairs from the main floor to the upper floor.
[38] While a trial judge need not “expound on evidence which is uncontroversial” (R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, at para. 17; R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 20) or “answer each and every argument of counsel” (R. v. Walle, 2012 SCC 41, [2012] 2 S.C.R. 438, at para. 46; Dinardo, at para. 30; T.S., at para. 46; R. v. Spencer, 2008 ONCA 205, at para. 8) or peripheral conflicts in the evidence (R. v. F.C., 2015 ONCA 191, at para. 31; R. v. Antonatos, 2009 ONCA 884, at para. 3), the reasons must generally reflect a firm grasp of the evidence, the weaknesses or frailties in a principal prosecution witness’ testimony, and be responsive to “the case’s live issues and the parties’ key arguments”: R. v. Walker, 2008 SCC 34, [2008] 2 S.C.R. 245, at para. 20.
[39] There was conflicting or contradictory evidence on the material point as to whether B.R. yelled, an aspect of her account that a sexual assault occurred, which had to be resolved by the trier of fact if possible to do so. The trial court, set out the principal witnesses’ respective opinions respecting one’s ability to hear noise from two floors’ away. It is entirely unclear whether, beyond ordinary household sounds, those opinions were inclusive of consideration of an extraordinary sound such as repeated yells. The trial judge diminished the reliability of Ms. C.F.’s evidence, without ever expressly rejecting her evidence or considering whether, even if not accepted, it could raise a reasonable doubt, because of her lack of certainty in reporting at trial exactly what the appellant said to B.R. about cigarettes (“she wasn’t sure what the appellant told [B.R.] about getting cigarettes”).
[40] To repeat, Ms. C.F.’s evidence was:
A. I believe he asked her to pick him up a pack of cigarettes.
Q. …did you actually hear him asking?
A. I heard him say something about cigarettes, I don’t know if it was to grab a pack, or he – she had a cigarette, or – I don’t know.
[41] This testimony is reasonably capable of three interpretations:
(1) because the conversation about cigarettes had no real significance at the time, although she could hear the appellant, the witness did not pay close attention to everything he said
(2) although, on May 8, 2012, she heard everything the appellant said about cigarettes, 16 months later at trial she could not fully recall what she heard on the earlier date
(3) on May 8, she did not fully hear what the appellant said.
[42] The trial judge seized upon the last interpretation and while it is true that he saw the witness give her evidence, this approach exemplifies the court’s error in applying the reasonable doubt standard to evidence favourable to the defence permeating its treatment of a crucial evidentiary issue.
[43] In the circumstances, there is “a reasonable possibility that the verdict would have been different” had the error respecting the application of the reasonable doubt standard to credibility and reliable findings to be made between conflicting evidence arising out of evidence favourable to the defence in the Crown’s case not been made: R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at para. 28. Resort to the s. 686(1)(b)(iii) curative proviso will be “rare” in instances of misapplication of the reasonable doubt standard: B.D., at paras. 119-121. In R. v. Sekhon, [2014] 1 S.C.R. 277, at para. 46, the court stated:
Flowing from this principle…there are two situations where the use of s. 686(1)(b)(iii) is appropriate: (1) where the error is harmless or trivial; or (2) where the error is so overwhelming that, notwithstanding the error is not minor, the trier of fact would convict.
It is not appropriate to apply the curative proviso in this case.
CONCLUSION
[44] The appeal is allowed. The conviction is set aside and a new trial is ordered before a differently constituted summary conviction trial court. The appellant is ordered to appear on June 5, 2015 at 9:00 a.m. in Ontario Court of Justice courtroom 104 at the Davis Courthouse in Brampton to set a new trial date.
Hill J.
DATE: May 27, 2015
COURT FILE: SCA(P) 778/13
DATE: 2015 05 27
ONTARIO
SUPERIOR COURT OF JUSTICE
(Summary Conviction Appeal Court)
RE: R. v. K.B.
COUNSEL: T. Brun, for the Respondent
Z. Kerbel, for the Appellant
HEARD: May 22, 2015, at Brampton
REASONS FOR JUDGMENT
[on appeal from conviction by
Bovard J. on October 10, 2013]
Hill J.
DATE: May 27, 2015