Court File and Parties
COURT FILE NO.: 12-7676 DATE: 2017/04/07 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent – and – JOHN MORRISON Appellant
Counsel: Moiz Karimjee, for the Crown Solomon Friedman, for the Appellant
HEARD: February 8, 2017
On appeal from the decision of the Honourable Madam Justice C. Kehoe of the Ontario Court of Justice on November 5, 2014.
Reasons on Appeal
MARANGER J.
1On November 05, 2014, Justice C. Kehoe of the Ontario Court of Justice found John Morrison guilty of assault causing bodily harm. On February 10, 2015, he was sentenced to 90 days imprisonment, to be served on an intermittent basis and 12 months of probation.
2John Morrison appeals his conviction on the following two grounds:
a. That the trial judge erred by dismissing the appellant’s application for a mistrial on the grounds of a reasonable apprehension of bias. b. That the trial judge erred by misapprehending the evidence.
Overview
3The trial of this matter concerned an assault allegation where a 13 year old daughter/complainant said her father hit her with a cribbage board. The alleged incident occurred on or about July 05, 2012. The complainant was 15 years old at the time of trial and testified to having a learning disability, in that she “couldn’t understand hard words, and could not remember very long.”
4The complaint arose when the child’s mother noticed an injury on her daughter’s shoulder. At the trial, the father denied ever striking his daughter. The central issue in this trial was the daughter’s credibility, to be assessed along with other corroborating evidence supporting her allegation. Her evidence was juxtaposed to the father’s denial and the evidence of witnesses who testified in support of his version.
5In a 32-page oral judgment which included a detailed analysis of the evidence, the trial judge came to the following conclusions:
- This is a credibility case and R v. W.D applies. I reject Mr. Morrison’s version of events and do not find that his evidence raises a reasonable doubt. I am satisfied, based on the evidence of TLM (the complainant), ALM, the photographs and Ms. Tracy Lorrain, that the Crown has proven beyond a reasonable doubt that Mr. Morrison lost his temper when TLM yelled back at him, accused him of being a bully and being mean, and struck TLM with the cribbage board.
- I find that TLM was an honest and credible witness. It was evident from the outset that TLM tried to hide her injury and did not want what happened to come out. TLM hid her injury and did not tell anyone the details of what happened until her mother saw the injury on her shoulder on July 15, 2012.
- I find the photos corroborate Ms. Lorrain and T LM’s evidence concerning the injury and the very specific markings that are consistent and specifically so with being hit in the back shoulder area by a cribbage board. On July 15, 2012 when the police photographs are taken, the very distinct red markings of the holes on the cribbage board are readily visible and this is at least 10, 11 or 12 days after the incident. There is no other plausible explanation for such distinct markings other than being hit with some force by a cribbage board. The bruising, as described by Ms. Lorraine, is visible in the photographs.
6The record of the testimony and evidence presented at trial, supports the verdict arrived at and the trial judge correctly instructed herself on the relevant legal principles throughout her decision.
Ground one - Reasonable apprehension of bias
7The apprehension of bias argument was based upon three specific areas of concern raised by counsel for the appellant including:
- The trial judge repeatedly interfered with and or/interrupted Defence Counsel’s cross-examination of the complainant and inappropriately coached the complainant.
- The trial judge did not allow Defence Counsel the opportunity to cross-examine the complainant on a specific issue relating to a cribbage board and whether the cribbage board was ever broken in half.
- Finally, at one point during an exchange with Defence Counsel the trial judge indicated on two separate occasions the following: “well, you’re just setting up an appeal basically.” And “you’re setting this up as an appeal if I make that ruling.”
8The following, are examples of contextualized excerpts taken from the trial transcripts of some of the impugned exchanges between the Court, and Defence Counsel during the cross-examination of the complainant:
An issue arose as to whether a new cribbage board had been brought into the house, Defence Counsel was pressing the complainant as to when that would have happened which led to the following exchange:
Q: “Do you know how long how much later it was? A. time-I don’t remember. Q. You don’t remember okay. Was it a week? A. I’m sorry, I don’t remember. Q. You don’t remember, okay. Was it more than a day? The Court: I think she said twice that she doesn’t remember. Defence Counsel: Okay. The Court: You can answer, if you wish, Taylor. But if you don’t know. That is, fine. A. I’m sorry, I don’t know.”
An issue arose as to when the complainant discussed the incident with her mother. She stated that she did, but could not remember when or what she told her mother. In cross-examination, her memory was tested which led to the following exchange between counsel and the Court:
Defence Counsel: “I think, Your Honour, I’m entitled to at least explore it, it is cross-examination. I can try to probe some specifics and if the witness doesn’t remember, I have to live with that. The Court: to the complainant/witness: All right so Taylor you understand it, even though Mr. Cipriano (Defence Counsel) asked you a question basically, for the second time the same question; he’s asking a little bit differently and you’re free to say whatever your answer is including, I don’t remember.”
Defence Counsel cross-examined on the issue of whether the complainant had gone to a movie without her father’s permission, something that had not been mentioned in the original police statement:
Q: “There was. And they say that one of the reasons that your dad was upset was because you were supposed to go to the movies on Thursday… A. Yes. Q. … But that you changed plans and you went without his permission on the Friday at a time when he was still at work. Is that fair? A. Yes. Q. Okay. So, is that what happened? A. I’m not-I don’t really remember actually, like, going when I went. Q. Okay. So you didn’t go then to the movie? A. I’m not sure. Q. So, when I say that, in fact, you were supposed to go to movie on Thursday but you changed plans for Friday, that’s true? A. I-I don’t really remember if I went or not. Q. Okay and that when you did you go, you went at a time earlier than what you had told your father, so there’s… The Court: Well I don’t think her evidence was that she went. Her evidence has been she didn’t go to the movie and now she doesn’t remember if she went or not. Defence Counsel: Yes, I’m just suggesting something to her Your Honour. The Court: Well you need to make it clear that you’re suggesting something to her. And as I said before Taylor just because Defence Counsel or Crown counsel or suggesting something to you, it doesn’t mean it’s true. So you’re free to say that you agree, I disagree or any other answer that you wish.”
The complainant had alleged that her father had broken the cribbage board on her shoulder that it was broken in half. Which led to the following exchange:
Q. “Okay. You said the board broke when he hit you? A. Yes. Q. In two? A. Yes. Q. It broke in half? A. Yes. Q. Okay. So, if I were to have retrieved that board… A. Yes. Q. You understand what that means? A. Yes. Q. If I go and get it… A. Yes. Q.… Do you think is going to be in one piece or two pieces? A. Two. Q. Two pieces? A. Yes. Q. Okay. And if it’s in one piece, would that mean this that this incident, as you repeated it, is incorrect? A. No. Q. No? A. No. Q. Okay, so you’re saying it would still have been-you would be able to put it back together? A. What do you mean by that, like… Q. Well if I were to get the board… A. Yes. Q. Okay, you said it would be in two pieces? A. Yes. Q. If I show you the board and it’s in one piece, I’m going to say that the incident didn’t happen. A. Okay. Q. Is that fair? A. Yes. Q. You agree with me that the incident didn’t happen? The Court: That’s totally confusing. The Crown: Yes. Defence Counsel: I was going to break it down for her, Your Honour. The Court: well it’s totally confusing. Can you come in please? You’ll have to step out of the room again I’m sorry Taylor. The Court: First of all, you’re telling her that it is the board and we have no evidence that it is’ the board.’ Her evidence is that he bought another one, or whoever -somebody bought another one and put it in the house. So that would be in one piece as opposed to the one that’s broken. So your question is so theoretical and ambiguous I don’t think she knows what she’s answering, so I don’t know what the quality of the evidence is. The Crown: I can indicate. Your Honour, that I assume what Mr. Cipriano was doing was trying to address the rule in Browne and Dunn, but with that last question there, that’s where I was listening to his questions carefully, but with the last question I do think it’s become so convoluted. Because her evidence is very clear on the point as to what happened to the board and what she knows of it from there. She also, as you’ve touched on, has given evidence that she saw a new board come into the house. So, I mean, Mr. Cipriano can present whatever admissible evidence he wishes, but your Honour’s heard evidence on the topic. So, you know, at the end of the day it is going to be up to you if you’re presented with a cribbage board to decide whether you can determine whether that’s, in fact, the board. And as she just said herself, it could be repaired too. So-or, actually, I think it was Mr. Cipriano who said that. I don’t think that is helpful evidence; I don’t think it sheds light on anything. The Court: I don’t think she understood what you were saying. Defence Counsel: Well I was going to try to break it down for her. The Court: I know but she’s answering and it’s like -I think her evidence is clear. Maybe cross-examine her on her evidence; that you say that the board was in two pieces and it was thrown out. I mean, what quality is-if I have a board that’s in one piece and I show it to you, does that mean the incident didn’t happen. Like, I don’t think she understands that. I mean, you can try and break it down if you want, but I still think it’s very confusing and I was confused.”
Defence Counsel then produced an unbroken cribbage board: the following questions and exchanges occurred:
Q. Okay. I just want to have you look at something. Taylor. Can you have a look at this for me, Taylor. This is a cribbage board. Can you see that board there? A. Yeah. Q. Design familiar to you? A. Yeah. Q. How does it look to you? A. I remember the holes for the pieces. Q. Yeah. And what else do you remember? A. The colours. Q. Yeah. What else? A. The shape. Q. Yeah. And from when do you remember it? A. When we were at my dad’s. Q. Okay, and do you want to turn around to see what the back looks like. Are you feeling okay, Taylor? A. Yeah Q. Okay. Do you want to take a break or … A. Yes…. Yes please. The Court: Yes, no problem. We will take 15, 20 minutes or whatever time you need. I’ll just be in my office.”
Upon resuming it was determined that the presentation of a cribbage board to the complainant was causing her distress. Which led to the following exchange in part:
The Court:.“You presented it to her, we’ve had a reaction, there’s no need to let her see it again. Defence Counsel: Well I’m not done with the board. Your Honour, I think it’s a big part of my case and… The Court: No but she’s seen it, she’s held it in her hand. You can refer to the board that you showed her, but you don’t need to show it to her anymore. Defence Counsel: but I plan to make it an exhibit and I think… The Court: You can do that, but you don’t need to show it to her anymore. Defence Counsel: And I understand that Your Honour can’t see the board but we are in a different room it’s one of the limitations of the CCTV system, but I plan to have brought it into the courtroom once we’re done. But it’s a very important part of my case and… The Court: Right. You’ve already shown it to her, she’s seen it, she’s held it in her hand, you don’t need to show it to her anymore. You can still ask her questions about it, but you don’t need to show it to her anymore. So. You can just bring it in and make an exhibit. Defence Counsel: Okay is that your ruling? The Court: Well… Defence Counsel: Because as I said, it’s a big part of my case; to deal with the actual board itself. I have some more questions… The Court: What else do you want to ask about the board that she needs to have it in her hand while you’re asking? Defence Counsel: Well because of the Crown’s going to say one of the questions that was-I’m not done with the identification of the board itself, so I want to ask… The Court: What else do you need to ask or that requires you to have it in her hand… Defence Counsel: Well, she doesn’t have to have it, she can have it in front of her and look at it. The Court… given the reaction. What question do you need to have it in front of her? Defence Counsel: Well, more questions about the identification of the board. The Court: Okay so what question that she can’t do without it being in front of her? Defence Counsel: Well because she may have to refer to it. The Court: if she needs to we’ll come and get it-if she asked-, but otherwise it’s just something that has… Defence Counsel: And there’s marks on the board and so on and I want to see if she can identify it; the way the board is shaped. The Court: She’s already looked at the board. Defence Counsel: I don’t mean a rectangular shape. The board is warped and I want her to identify that to see if that triggers memories and so on. So, it is very important to my case I have the board present with me. She doesn’t have to touch it, but is very important to my case. The Crown: Your Honour, I just want to state for the record that this witness has been clear that what she was hit with was broken and so on, what she is now being presented with cannot be the same board. And frankly, I think it’s trickery to present this to her and say that it’s part of my case. The fact that an intact cribbage board exist in the world, that’s what we’re suggesting to her. Defence Counsel: Well, I disagree. We’re putting the cart before the horse. The witness has said that but that doesn’t mean that that’s a fact yet. The Court: That’s her evidence. The Crown: Well, in Mr. Morrison’s… Defence Counsel: That’s her evidence, but I’m allowed to put contradictory evidence to her. So the fact that she said so doesn’t preclude me from presenting her with contradictory evidence. The Crown: And the contradictory evidence is in the form of an intact cribbage board, and that’s what I’m saying. That’s unfair, it’s not contradictory evidence, it is an object that could have been found any number of places in the world, so… The Court: Can you get the board bring it in I want to look at it please?”
The exchange over the cribbage board ends with the following sequence:
The Court: “And can I see the bag, too, please? Are you referring to the board being twisted, in terms of what you’re saying; warped? Defence Counsel: Yes, warped, yes. The Court: What relevance does that have to this witness; that it is warped? Defence Counsel: well, because it may be relevant to her-triggering her memory… The Court: Of what? Defence Counsel: … Of that actual board, that that’s the board that she saw all along. There is, like, paint mark on the board, there is some scuff marks on it. The Court: Okay. I want you to keep it in the bag and ask the witness whether this is the board that hit her. Defence Counsel: I was going to lead up to that, that wasn’t my next question to Your Honour. The Court: Well, I’m not having this in front of her, like upsetting her the way it has; that she barely could hold it or testify, to satisfy whatever-I want to get to the question. She said she recognize it from her dad’s house. I don’t know if that means she recognizes this exact board from her dad’s house or whether she recognizes it as a board, cribbage board, the kind of-the same one. Defence Counsel: Well I wasn’t done yet. That’s when I asked if she was okay. So I wasn’t done yet. The Court: No, she wasn’t okay and it’s obvious it is my job to protect the witness, so… Defence counsel: No, I understand that and that’s why I asked if her she was okay I saw her and she wasn’t okay and if she wanted to break that’s why I had asked. The Court: … So, ask her if this is the board that she was hit with and if she says no then ask her, if this is the board that was brought into the house after. If she says yes or no, maybe that there will be a few more questions. But we’re not going on for half an hour with this thing in front of her. Defence Counsel: Okay I just want to know is Your Honour directing me to ask those two specific questions next? The Court: Yes. Defence Counsel: Because those weren’t my next questions. The Court: What was your next question? Defence Counsel: Well, I mean, I am being put in a very difficult situation here, Your Honour, because I don’t have any obligation to identify my cross- examination. I think I’ve indicated the areas. The Court: So your position is you’re allowed to go on asking those questions, putting that item in front of her and perhaps putting it in her hand… Defence Counsel: I am not saying just a touch it, no, no, I’m not saying… The Court: … Knowing that it’s upsetting her and that she’s having difficulty dealing with it, and I’m supposed to just say, no problem go ahead? Defence Counsel: No, I’m not saying that she has to handle it but I-for the answers have relevance she should have to see it, at the very least. The Court: And, I am directing you to say-because if she says she doesn’t recognize it then all your questions are irrelevant. Defence Counsel: I appreciate where your Honour is coming from. My view is, and I am taking instruction from Your Honour, but my view is that it wouldn’t be effective of me to conduct the cross-examination as Your Honour has instructed, but if you’re honour wishes me to I will do so. The Court: Well you’re just setting up an appeal, basically. Defence Counsel: No.”
9As a result of these types of exchanges, Defence Counsel brought an application before the trial judge for a mistrial on the basis of a reasonable apprehension of bias. In dismissing Defence Counsel’s application the trial judge in part stated the following:
The Court was simply trying to find a solution to the impasse of counsel for the applicant, requiring the Court to direct that the witness was required to continue the cross-examination with the cribbage board being placed back in front of the witness.
If the Court had pre-determined the issues of credibility and reliability of the case as a whole, the Court would not have continued to attempt to find a resolution as to whether or not it was required to put the cribbage board back in front of the witness, heard argument on the issue, made the ruling and then continued to hear the cross-examination of the witness, including questions concerning the cribbage board, without it being present in front of the witness, or all the witnesses who followed.
The comment that counsel for the applicant was setting up an appeal was based solely on counsel’s refusal to indicate how the cribbage board being placed back in front of the witness was relevant and-or necessary or to indicate what areas or questions in the cross-examination required the physical presence of the cribbage board. Further, it was based on counsel for the applicant’s question to the Court as to whether the Court was directing/limiting his cross-examination when two questions he was directed to ask to determine the relevance and/or necessity of placing the cribbage board back in front of the witness when the questions directed were not “his next questions.”
The Governing principles and their application
10In R. v. S. (R.D.), [1997] 3 SCR 484, the Supreme Court of Canada set out the governing principles in determining the issue of whether a Judicial Officer has exhibited a reasonable apprehension of bias at paras. 109-113:
(iv) The Test for Finding a Reasonable Apprehension of Bias
109 When it is alleged that a decision-maker is not impartial, the test that must be applied is whether the particular conduct gives rise to a reasonable apprehension of bias. Idziak, supra, at p. 660. It has long been held that actual bias need not be established. This is so because it is usually impossible to determine whether the decision-maker approached the matter with a truly biased state of mind. See Newfoundland Telephone, supra, at p. 636.
110 It was in this context that Lord Hewart C.J. articulated the famous maxim: “[it] is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done”: The King v. Sussex Justices, Ex parte McCarthy, [1924] 1 K.B. 256, at p. 259 …
111 The manner in which the test for bias should be applied was set out with great clarity by de Grandpré J. in his dissenting reasons in Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369, at p. 394:
[T]he apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information. . . . [The] test is “what would an informed person, viewing the matter realistically and practically -- and having thought the matter through -- conclude. . . .”
This test has been adopted and applied for the past two decades. It contains a two-fold objective element: the person considering the alleged bias must be reasonable, and the apprehension of bias itself must also be reasonable in the circumstances of the case. See Bertram, supra, at pp. 54-55; Gushman, supra, at para. 31. Further the reasonable person must be an informed person, with knowledge of all the relevant circumstances, including “the traditions of integrity and impartiality that form a part of the background and apprised also of the fact that impartiality is one of the duties the judges swear to uphold”: R. v. Elrick, [1983] O.J. No. 515 (H.C.), at para. 14 ….
112 The appellant submitted that the test requires a demonstration of “real likelihood” of bias, in the sense that bias is probable, rather than a “mere suspicion”. This submission appears to be unnecessary in light of the sound observations of de Grandpré J. in Committee for Justice and Liberty, supra, at pp. 394-95:
I can see no real difference between the expressions found in the decided cases, be they ‘reasonable apprehension of bias’, ‘reasonable suspicion of bias’, or ‘real likelihood of bias’. The grounds for this apprehension must, however, be substantial and I entirely agree with the Federal Court of Appeal which refused to accept the suggestion that the test be related to the “very sensitive or scrupulous conscience”. [Emphasis added.]
Nonetheless the English and Canadian case law does properly support the appellant’s contention that a real likelihood or probability of bias must be demonstrated, and that a mere suspicion is not enough. See R. v. Camborne Justices, Ex parte Pearce, [1954] 2 All E.R. 850 (Q.B.D.); Metropolitan Properties Co. v. Lannon, [1969] 1 Q.B. 577 (C.A.); R. v. Gough, [1993] 2 W.L.R. 883 (H.L.); Bertram, supra, at p. 53; Stark, supra, at para. 74; Gushman, supra, at para. 30.
113 Regardless of the precise words used to describe the test, the object of the different formulations is to emphasize that the threshold for a finding of real or perceived bias is high. It is a finding that must be carefully considered since it calls into question an element of judicial integrity. Indeed an allegation of reasonable apprehension of bias calls into question not simply the personal integrity of the judge, but the integrity of the entire administration of justice. See Stark, supra, at paras. 19-20. Where reasonable grounds to make such an allegation arise, counsel must be free to fearlessly raise such allegations. Yet, this is a serious step that should not be undertaken lightly.
11In the very recent decision of Lloyd v. Bush, 2017 ONCA 252, 2017 CarswellOnt 4246, Justice Rouleau of the Ontario Court of Appeal succinctly restated the test at paragraphs 112 and 113 of that decision:
[112] The test for reasonable apprehension of bias has recently been summarized by the Supreme Court of Canada in Yukon Francophone School Board, Education Area No. 23 v. Yukon (Attorney General), 2015 SCC 25, [2015] 2 S.C.R. 282. The court cited the classic, undisputed test as follows, at para. 20:
What would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude? Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly?
[113] Judges are afforded a strong presumption of impartiality that is not easily displaced (Yukon, at para. 25; Cojocaru v. British Columbia Women’s Hospital and Health Centre, 2013 SCC 30, [2013] 2 S.C.R. 357, at para. 22). However, as the court noted in Yukon, the presumption of a trial judge’s impartiality can be rebutted by the trial judge’s conduct, particularly by the manner and frequency of his or her interventions.
12My review of the trial transcripts confirm that the trial judge frequently interfered with Defence Counsel’s cross-examination and it did seem at times to be unnecessary and overly protective of the witness. Some trial judges interject frequently, some rarely. Whether a judge’s actions during a trial create an apprehension of bias is fact specific and must always be considered in the context of the trial as a whole.
13The trial judge’s interventions and ultimately, her unfortunate choice of the words “setting up an appeal” have to be taken in the context of her dealing with a vulnerable and intellectually-challenged child witness.
14It seems to me that Defence counsel ought to have explained why he couldn’t ask questions about the cribbage board without it being physically presented to the complainant. This is especially so given the witness’ adverse reaction to it. Absent evidence to the contrary, suggestions about the board could have been made without it physically being shown to the complainant.
15Furthermore, it was open to this trial judge to find that the questions being asked in cross-examination about the cribbage board were confusing. The Crown also objected to the nature of the cross-examination on that basis. The trial judge, by her reaction, agreed with the objection.
16The trial judge was trying to find a solution which can serve to explain many of the interventions and the ultimate use of the words “setting up an appeal.”
17All things considered, an ‘informed person viewing the matter realistically and practically and having thought the matter through’ would not see what transpired in this case as sufficiently problematic so as to displace the strong presumption that the trial judge would decide the matter impartially. Therefore, I would not give effect to this ground of appeal.
Ground two - Misapprehension of evidence
18This ground relates to the trial judge’s specific mistaken finding set out in her reasons for judgment that one of the defence witnesses, Mr. Horner “minimized his own criminal record.” The finding is not supported by any evidence heard of the trial. There was never any evidence tendered as to this witness having a criminal record by either counsel. This was clearly a mistaken finding.
19Counsel for the appellant argued that this constituted an error of law justifying a new trial.
20The Ontario Court of Appeal R. v. Morrissey, 1995) 514 (ONCA) dealt with the thorny and complex issue of appellate intervention in cases where there has been some misapprehension of evidence. In that the decision the Court stated the following:
I will now address the effect of the trial judge's misapprehension of the evidence. Submissions premised on an alleged misapprehension of evidence are commonplace in cases tried by a judge sitting without a jury. A misapprehension of the evidence may refer to a failure to consider evidence relevant to a material issue, a mistake as to the substance of the evidence, or a failure to give proper effect to evidence. Where, as in the case of Crown appeals from acquittals (Criminal Code, R.S.C. 1985, c. C-46, s. 676(1)(a)) and appeals to the Supreme Court of Canada pursuant to s. 691, the court's jurisdiction is predicated on the existence of an error of law alone, characterization of the nature of the error arising out of the misapprehension of evidence becomes crucial. The jurisprudence from the Supreme Court of Canada demonstrates the difficulty in distinguishing between misapprehensions of the evidence which constitute an error of law alone and those which do not: Harper v. R., [1982] 1 S.C.R. 2, 65 C.C.C. (2d) 193; Schuldt v. R., [1985] 2 S.C.R. 592, 23 C.C.C. (3d) 225; R. v. Roman, [1989] 1 S.C.R. 230, 46 C.C.C. (3d) 321; R. v. B.(G.) (No. 3), [1990] 2 S.C.R. 57, 56 C.C.C. (3d) 181; R. v. Morin, [1992] 3 S.C.R. 286, 76 C.C.C. (3d) 193. The recent trend in that court suggests that most errors which fall under the rubric of a misapprehension of evidence will not be regarded as involving a question of law: R. v. Morin, supra; J. Sopinka, M.A. Gelowitz, The Conduct of an Appeal (MarkhamButterworths, 1993), pp. 85-89.
The need, for jurisdictional purposes, to classify a misapprehension of the evidence as an error of law, as opposed to an error of fact or mixed fact and law, does not arise in this court where the appeal is from conviction in proceedings by way of indictment. Section 675(1)(a) gives this court jurisdiction to consider grounds of appeal which allege any type of error in the trial proceedings. The wide sweep of s. 675(1)(a) manifests Parliament's intention to provide virtually unobstructed access [See Note 3 below.] to a first level of appellate review to those convicted of indictable offences.
The scope of this court's power to quash convictions is commensurate with the broad jurisdiction given to it by s. 676(1)(a). Section 686(1)(a) provides that:
686(1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal
(a) may allow the appeal where it is of the opinion that
(i) the verdict should be set aside on the ground that is unreasonable or cannot be supported by the evidence,
(ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or
(iii) on any ground there was a miscarriage of justice;
The powers granted in that section are qualified to some extent by s. 686(1)(b)(iii) and (iv). For present purposes I need reproduce only s. 686(1)(b)(iii):
(b) [the Court of Appeal] may dismiss the appeal where
(iii) notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph (a)(ii) the appeal might be decided in favour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred . . .
While s. 686(1)(a) provides three distinct bases upon which this court may quash a conviction, each shares the same underlying rationale. A conviction which is the product of a miscarriage of justice cannot stand. Section 686(1)(a)(i) is concerned with the most obvious example of a miscarriage of justice, a conviction which no reasonable trier of fact properly instructed could have returned on the evidence adduced at trial. Section 686(1)(a)(ii) read along with s. 686(1)(b)(iii) presumes that an error in law produces a miscarriage of justice unless the Crown can demonstrate the contrary with the requisite degree of certainty. Section 686(1)(a)(iii) addresses all other miscarriages of justice not caught by the two preceding subsections. In so far as the operation of s. 686(1)(a) is concerned, the distinction between errors of law and all other types of error has only one significance. Where the error is one of law the Crown bears the burden of demonstrating that the error did not result in a miscarriage of justice. Where the error is not one of law alone the appellant bears that burden.
In my opinion, on appeals from convictions in indictable proceedings where misapprehension of the evidence is alleged, this court should first consider the reasonableness of the verdict (s. 686(1)(a)(i)). If the appellant succeeds on this ground an acquittal will be entered. If the verdict is not unreasonable, then the court should determine whether the misapprehension of evidence occasioned a miscarriage of justice (s. 686(1)(a)(iii)). If the appellant is able to show that the error resulted in a miscarriage of justice, then the conviction must be quashed and, in most cases, a new trial ordered. Finally, if the appellant cannot show that the verdict was unreasonable or that the error produced a miscarriage of justice, the court must consider the vexing question of whether the misapprehension of evidence amounted to an error in law (s. 686(1)(a)(ii)). If the error is one of law, the onus will shift to the Crown to demonstrate that it did not result in a miscarriage of justice (s. 686(1)(b)(iii)).
In considering the reasonableness of the verdict pursuant to s. 686(1)(a)(i), this court must conduct its own, albeit limited, review of the evidence adduced at trial: R. v. Burns, supra, at pp. 662-63 S.C.R., pp. 198-99 C.C.C. This court's authority to declare a conviction unreasonable or unsupported by the evidence does not depend upon the demonstration of any errors in the proceedings below. The verdict is the error where s. 686(1)(a)(i) is properly invoked. A misapprehension of the evidence does not render a verdict unreasonable. Nor is a finding that the judge misapprehended the evidence a condition precedent to a finding that a verdict is unreasonable. In cases tried without juries, a finding that the trial judge did misapprehend the evidence can, however, figure prominently in an argument that the resulting verdict was unreasonable. An appellant will be in a much better position to demonstrate the unreasonableness of a verdict if the appellant can demonstrate that the trial judge misapprehended significant evidence: R. v. Burns, supra, at p. 665 S.C.R., p. 200 C.C.C.
I need not pursue the relationship between a misapprehension of the evidence and an unreasonable verdict any further. On the evidence adduced in this case and bearing in mind the errors made by the trial judge in his appreciation of that evidence, I cannot say that the convictions of counts 1, 2, 3, and 6 were unreasonable.
21In this case, the trial judge’s erroneous conclusion concerning Mr. Horner’s criminal record was a finding of fact and not an error of law as it didn’t pertain to a specific legal construct, and the error did not impact the substantive issues the judge had to decide. As the trial judge indicated in her judgment “Mr. Horner’s evidence was of little value as he was not inside the residence and not paying close attention to what was going on after Mr. Morrison returned home.”
22The erroneous finding of fact did not involve significant evidence, the verdict in this case was not unreasonable and the misapprehension did not result in a miscarriage of justice. I would not grant the appeal on the basis of this ground.
23Therefore, for the reasons above, the appeal is dismissed.
Maranger J.
Released: April 7, 2017