Court File and Parties

Court File No.: CR-19-0030-00AP Date: 2020-01-09

Ontario Superior Court of Justice

Between: Her Majesty The Queen, Appellant A. Mason, for the Appellant

- and -

Randy Carmichael, Respondent K. Brindley, for the Respondent

Heard: November 29, 2019, at Thunder Bay, Ontario

Before: Mr. Justice W. D. Newton

Reasons For Appeal

Overview

[1] Mr. Carmichael was acquitted of assaulting his then girlfriend with the following reasons:

In a nutshell, what we have here is a boyfriend/girlfriend spat and as to exactly what happened, there is some question as to exactly what happened. Nothing was stated as it relates to the gravamen of the offence to the officers. And with that bit of uncertainty, the doubt goes to the accused and he’ll be found not guilty.

[2] The Crown appeals the acquittal arguing that the reasons are insufficient for appellate review and that the reasons reveal a reliance upon an impermissible inference and stereotypical thinking about how victims of domestic abuse will behave.

The Evidence at Trial

[3] The witnesses were one of the investigating officers and the complainant.

[4] The officer testified that he and his partner responded to a call of a disturbance at about 10:30 p.m., on October 23, 2016. He interviewed Mr. Carmichael while his partner spoke with the complainant. According to Mr. Carmichael, he and the complainant had an argument about the computer. He wanted to leave and that caused the complainant to have a panic attack. So he stayed and comforted her. The officer had no concerns for anyone’s welfare. In cross-examination, he advised that there was no indication of violence between the complainant and Mr. Carmichael. His partner, who interviewed the complainant, did not testify.

[5] The complaint was 18 when she testified. She became involved with Mr. Carmichael when she was 14 and he was 21. She ran away from home, and at the time of this incident, they were “couch surfing.” On the day of the incident, he played video games and she went out to meet friends. When she returned, he became abusive. She began recording the conversation on her phone. She testified that Mr. Carmichael took her phone to stop her recording. They struggled as she attempted to get her phone back. She said that Mr. Carmichael pushed her, and she fell onto some garbage. He then deleted her recording.

[6] She said that the police arrived as she was having a panic attack, crying and hyperventilating. She told the officer that “everything’s fine.” She said that she did not tell the police about the incident with the phone because she was “scared” and “had nowhere to go that night and I did not want to cause any more problems.” She left a few days later.

[7] In cross-examination, she admitted that she did not tell the police that Mr. Carmichael had pushed her or that she wanted to leave him. She remembers that she told the police that she was fine but does not recall the “full extent” of her conversation. She admitted that she did not tell the police about the assault because she decided not to pursue the complaint since she was going to leave Mr. Carmichael. She was “scared” to say something because he would still be there. The complainant testified that she contacted the police a few weeks later because Mr. Carmichael was threatening to charge her with theft. She had a sweater belonging to him and he had some of her possessions. She also admitted that they had multiple arguments that day.

[8] Mr. Carmichael did not testify.

[9] In argument, counsel for Mr. Carmichael argued that the complainant was not credible. Among other things, counsel pointed to an apparent change in her testimony from not being able to tell the police what happened because of a panic attack to not wanting to tell the police about the alleged assault because she was going to leave anyway. Counsel also raised the possibility that the motivation for her subsequent police complaint was to respond to the theft allegation by Mr. Carmichael.

Positions of the Parties

[10] Recognizing its right of appeal from an acquittal is restricted to questions of law alone, the Crown argues that there are two errors of law present in this case. First, the insufficient reasons of the trial judge do not allow for meaningful appellate review. Second, the trial judge relied on stereotypical assumptions of how a victim of domestic assault should or should not behave with respect to the complainant’s late reporting of the incident. The Crown argues that reliance on stereotypical reasoning amounts to an error of law.

[11] Mr. Carmichael argues that the onus is on the Crown not only to establish an error of law but also to satisfy the court that the error had a material bearing on the acquittal. Counsel for Mr. Carmichael argues that the reasons must be looked at in the context of the evidence and submissions. She argues that in this case, although sparse, the reasons demonstrate that the trial judge was left with a reasonable doubt. As to the impermissible inference, counsel argues that it is not an error of law to consider post-offence conduct and that the record neither expressly nor impliedly discloses an impermissible inference.

The Law

The Onus

[12] The very recent case of R. v. Lacombe, 2019 ONCA 938, [2019] O.J. No. 6023, sets out the Crown’s task:

29 The onus on the Crown on an appeal from acquittal is a heavy one: R. v. A.R.D., 2017 ABCA 237, 422 D.L.R. (4th) 471, at para. 24. Crown appeals of acquittals must be based on errors of law, which are reviewed on a standard of correctness: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 8. It is only where a reasonable doubt is tainted by a legal error that appellate intervention in an acquittal is permitted: R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197, at para. 39. Not only must the Crown identify an error of law, but the Crown must also establish a nexus between the error of law and the acquittal. [Emphasis added.]

Sufficiency of Reasons

[13] Many cases have explained the importance of and the rationale for reasons. In R. v. Sliwka, 2017 ONCA 426, 138 O.R. (3d) 473, the Ontario Court of Appeal stated:

[24] Trial judges must give reasons for their verdicts. Reasons that explain to the parties and the public the result arrived at by the trial judge are crucial to maintaining the proper level of transparency and accountability essential to the maintenance of the integrity of the trial process and public confidence in that process. Reasons for judgment allow the parties to know that their claims have been heard, understood and adjudicated upon in an objective and reasonable fashion that accords with the applicable legal principles: see R. v. Sheppard, [2002] 1 S.C.R. 869, [2002] S.C.J. No. 30, 2002 SCC 26, at paras. 15, 22, 24.

[25] On an appeal based on the trial judge's failure to give reasons, the appellate court measures the adequacy of the reasons against the requirement that the reasons permit meaningful appellate review of the trial decision. If the reasons serve that function, any shortcomings from a due administration of justice perspective do not justify appellate intervention. However, reasons that frustrate meaningful appellate review constitute an error in law. That error requires the quashing of the verdict unless the trial record as a whole permits effective appellate review of the verdict: see Sheppard, at paras. 25-33, 46. [Emphasis added.]

[14] In R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, the Supreme Court of Canada set out the task of the reviewing court in assessing reasons as follows:

55 The appellate court, proceeding with deference, must ask itself whether the reasons, considered with the evidentiary record, the submissions of counsel and the live issues at the trial, reveals the basis for the verdict reached. It must look at the reasons in their entire context. It must ask itself whether, viewed thus, the trial judge appears to have seized the substance of the critical issues on the trial. If the evidence is contradictory or confusing, the appellate court should ask whether the trial judge appears to have recognized and dealt with the contradictions. If there is a difficult or novel question of law, it should ask itself if the trial judge has recognized and dealt with that issue. [Emphasis added.]

Reliance on Stereotypes

[15] Counsel for Mr. Carmichael concedes that reliance on stereotypes is an error of law:

33 Reliance on discredited stereotypes in the assessment of credibility is an error of law: A.R.D., at para. 9. As stated by Paperny and Schutz JJ.A. in A.R.D., at para. 9, "[R]easonable doubt is not a shield for appellate review if that doubt is informed by stereotypical and therefore prejudicial reasoning." See: R. v. Lacombe, 2019 ONCA 938 [2019] O.J. No. 6023.

[16] Therefore, “[d]elayed reporting, standing alone, does not assist in evaluating whether an account alleging a consensual encounter is true or raises a reasonable doubt” (Lacombe, at para. 42). Similarly, failing to call the police within hours of the domestic assault cannot be an important factor in credibility. See R. v. Thompson, 2019 BCCA 1, [2019] B.C.J. No. 1. at para. 60.

Analysis and Disposition

[17] Do the trial judge’s reasons, considered with the evidence, the submissions of counsel, and the issues at trial reveal the basis for the verdict reached?

[18] Do the trial judge’s reasons reflect an assessment of credibility based on a discredited stereotype?

[19] The trial judge’s only reasons for the verdict are:

In a nutshell, what we have here is a boyfriend/girlfriend spat and as to exactly what happened, there is some question as to exactly what happened. Nothing was stated as it relates to the gravamen of the offence to the officers. And with that bit of uncertainty, the doubt goes to the accused and he’ll be found not guilty.

[20] The reasons reflect appreciation of the presumption of innocence and the evidentiary burden upon the Crown. The reasons also reflect some recognition of potentially contradictory statements by the complainant which was obviously an issue at trial.

[21] However, the sparseness of the reasons do not provide a basis for the rejection of the complainant’s evidence. The reasons thus frustrate meaningful appellant review. Furthermore, the comment, “Nothing was stated as it relates to the gravamen of the offence to the officers,” standing alone, could reflect an impermissible stereotypical inference. The lack of further explanation for that comment frustrates meaningful appellate review. As such, this is an error of law.

[22] The appeal is allowed. The acquittal is quashed and a new trial is ordered.

“Original signed by” The Hon. Mr. Justice W.D. Newton

Released: January 9, 2020