COURT FILE NO.: CR-19-176
DATE: 20211022
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
Ryan Morrow for the Respondent
- and –
JOSEPH FERREIRA-SMALL
Jason Bogle for the Appellant
HEARD: May 12, 2021
SUMMARY CONVICTION APPEAL JUDGMENT
[On appeal from the judgment of Mr. Justice A.D. Cooper of the Ontario Court of Justice dated November 4, 2019]
D.E HARRIS J.
[1] The Appellant was found guilty of impaired driving. He raises a W.(D.) ground in his appeal from conviction: R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, 63 C.C.C. (3d) 397 (S.C.C.).
[2] The evidence was simple. On March 17, 2018, St. Patrick’s Day, the Appellant was at a bar called Shoeless Joe’s on Main Street East in Milton. Officer Rivers of the Halton Police was watching the car. According to the officer, the Appellant exited the bar and got in his car at about 4:30 p.m. He reversed and almost struck a vehicle next to him. Driving on the city streets, he made a wide right turn. He stopped late for a red light and almost struck the vehicle in front of him. He then crossed over a double yellow line to make a left turn, almost hitting a car in the process. At this point, the officer stopped the vehicle.
[3] The Appellant pulled over, rubbing his tires on the curb. There was alcohol on his breath. There were indications of impairment: red, glazed eyes, slow and slurred speech. He was unsteady while walking although it is true that he was wearing large steel toed boots. He swayed to the left and right about two inches. He was arrested. The breathalyzer officer also was of the view that the Appellant was severely impaired.
[4] The Appellant testified at trial. He said he had been at the bar for about an hour but only had two pints. He could not recall almost hitting other vehicles. He admitted the wide right turn but offered an explanation. He had other exculpatory explanations for his driving. He denied the indications of impairment and said he was not impaired. The trial judge convicted the Appellant.
WAS THERE A W.(D.) ERROR MADE BY THE TRIAL JUDGE?
THE NATURE OF A W.(D.) ERROR
[5] At the critical, concluding portion of his reasons for judgment, the trial judge found that, when the evidence of the officer and the accused conflicted, he accepted the evidence of the officer. The trial judge did not refer to the reasonable doubt standard in this final part of his reasons. The Appellant relies on these two aspects in arguing that a W.(D.) error was made.
[6] The three-steps from W.(D.) are (pp. 757-58),
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; and
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.
[7] In assessing an allegation of W.(D.) error, it is essential to first understand why Justice Cory enunciated the three-step formulation. Justice Cory explained at p. 757 the problem in this way:
… It is incorrect to instruct a jury in a criminal case that, in order to render a verdict, they must decide whether they believe the defence evidence or the Crown’s evidence. Putting this either/or proposition to the jury excludes the third alternative; namely, that the jury, without believing the accused, after considering the accused’s evidence in the context of the evidence as a whole, may still have a reasonable doubt as to his guilt.
In a case where credibility is important, the trial Judge must instruct the jury that the rule of reasonable doubt applies to that issue. The trial Judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses.
[8] The three stage W.(D.) instruction was designed for one specific purpose: to correct the natural tendency to decide a credibility case by a mere preference between the version of event given by the Crown witness and the version given by the accused. In R. v. Avetysan, 2000 SCC 56, [2000] 2 S.C.R. 745, (S.C.C.) at para. 19, the majority wrote,
[T]he question is really whether, in substance, the trial judge's instructions left the jury with the impression that it had to choose between the two versions of events.
[Emphasis Added]
[9] Deciding a criminal case based on choosing the preferred version lowers the criminal burden of proof resting on the Crown and, simultaneously, places an onus on the defence to prove innocence. The net effect is that the civil burden of a balance of probabilities is substituted for the criminal standard of beyond a reasonable doubt: R. v. R. (J.) 2014 QCCA 869, [2014] Q.J. No. 3957 at para. 38.
[10] The temptation to lapse into this way of resolving factual disagreements, even for experienced trial judges, is strong. In the case of diametrically opposed versions of events, like the case here, the factual reality is that in the majority of circumstances one person is telling the truth while the other is not. In our everyday lives, we resolve these types of irreconcilable factual conflicts by choosing which one we believe. The decision making is zero sum. If one version is accepted, the opposing version is necessarily rejected. The two versions become dependent on one another.
[11] The everyday method of fact finding is, as Chief Justice Dickson put it, a “binary” process: either accept the evidence or reject it (see R. v. Thatcher, 1987 CanLII 53 (SCC), [1987] 1 S.C.R. 652 (S.C.C.) at p. 701). But the burden and standard of proof dictates a three-part process. Martin J.A. emphasized this in considering a trial judge’s conclusion that, to acquit, he would have to find that the complainant was “framing” the accused. Justice Martin stated in R. v. Nimchuk (1977), 1977 CanLII 1930 (ON CA), 33 C.C.C. (2d) 209 (Ont. C.A.) at p. 210:
There was, of course, a third alternative, namely, if a reasonable doubt existed, in view of the conflicting testimony, as to exactly where the truth of the matter lay, it would, of course, require an acquittal.
[12] There is a danger in making a decision in a criminal credibility case of falling into the trap of applying the ordinary way of deciding factual disputes, omitting the beyond a reasonable doubt legal overlay which constitutes the “fundamental rule of the game”: Sopinka J. dissenting in W.(D.), at p. 750. A two-step decision-making process must be forced into a three-step box. The sheer volume of W.(D.) case law demonstrates the seductive attraction of this burden of proof error. The error was already rampant before W.(D.) was released in 1991: see e.g. R. v. Challice, (1979), 1979 CanLII 2969 (ON CA), 45 C.C.C. (2d) 546 (Ont. C.A.), at p. 556; R. v. Chan, (1989) 1989 ABCA 284, 52 C.C.C. (3d) 184 (Alta. C.A.), at p. 186, leave to appeal to S.C.C. refused [1990] S.C.C.A. No. 9; R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345, at p. 362; R. v. Nadeau, 1984 CanLII 28 (SCC), [1984] 2 S.C.R. 570; Carrier v. R. 1972 CanLII 2254 (QC CA), [1972] 23 C.R.N.S. 243 (Que.C.A.); R. v. Nykiikforuk, [1946] 33 D.L.R. 609 (Sask. C.A. ); R. v. Calhoun (1949), 1949 CanLII 104 (ON CA), 93 C.C.C. 289 (Ont. C.A.); Rex v. Tuffnell and Jasper, [1947] O.W.N. 515 (C.A.). The error is so prevalent that it has been said that W.(D.) is the most cited case in Canadian history: R. v. Grant, 2016 ONCA 639, [2016] O.J. No. 4419, at para. 114; R. v. S. (J.H.), 2008 SCC 30, [2008] 2 S.C.R. 152, at para. 8.
[13] In evaluating an allegation of W.(D.) error, it is helpful to keep in mind the rationale behind the instruction itself. As the case law emphasizes, the three steps are not a ritualistic mantra that must be enunciated in every case. It is the underlying principle that must be adhered to, not the rote three-steps set out by Cory J. Two tell-tale signs of a W.(D.) error are when the trial judge appears to have simply chosen between the Crown and defence versions without the interposition of the reasonable doubt standard and if the acceptance of the Crown evidence more or less automatically has led to a rejection of the accused’s evidence, or vice-a-versa.
WAS THERE A W.(D.) ERROR IN THIS CASE?
[14] In his reasons finding the Appellant guilty of impaired driving, the trial judge said:
I am obliged to apply the principles in R. v. W.D., 1991 CanLII 93 (SCC), [1991] S.C.J. No. 26 to the evidence of the defendant.
In my view, the evidence of Officer David Rivers was credible and reliable and his evidence was not shaken in cross examination. Although, he was the investigating officer, he was also a qualified breath technician and a drug recognition officer. After seeing Mr. Ferreira-Small leave the bar, he described his extremely poor driving behaviour and the driving behavior, in my view, was entirely consistent with that of an impaired driver. The defendant’s explanation for his driving and apparent symptoms of impairment were not believable in my view.
It seemed to me that the Crown cross examination was correct and focusing on the fact that initially, he had said he quit work at 12 and it could have been an opportunity for him to be in there all afternoon so that when he was stopped, he was stopped at 4:26 p.m., he may have had far more than he said, which is consistent with the way he was driving. And Mr. Ferreira-Small’s contention was that he had two large beers, which he drank quickly, which may have had an effect on him, but not to the extent that he was impaired.
In [the accused’s evidence], he claimed he did not recall those events, which were not in his favour, or he attempted to offer us an innocent explanation for his driving and physical condition. He also disagreed with certain of the evidence of Officer Rivers. I find as a fact that his evidence was internally inconsistent and defied common sense and where his evidence conflicted with that of Officer Rivers, I accept the evidence of the Officer. Not only was the defendant driving in the manner that the officer said he was, his ability to operate a motor vehicle was impaired by the consumption of alcohol. And as the Crown submitted, the symptoms were overwhelming.
The defendant is found guilty of the charge of impaired driving.
(Emphasis added)
i. The Appellant’s Exculpatory Explanation was “Not Believable.”
[15] Of course, there is nothing unusual or objectionable about a finding that the accused’s testimony is not believable. However, a finding that an accused’s testimony is not believable, without more, is insufficient to reject his evidence. Not believing the accused performs only the function of the first W.(D.) step. It answers in the negative the question, “[I]f you believe the evidence of the accused, obviously you must acquit.” It then points the finder of fact on to the second W.(D.) step: that is, “[I]f you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.”
[16] Not long after W.(D.) was released, it was suggested that this second step is nothing more than a reprise of the first step. Justice McLachlin, as she then was, dissenting in R. v. S. (W.D.), 1994 CanLII 76 (SCC), [1994] 3 S.C.R. 521, said at p. 544,
53 I note in passing that the second branch as stated by Cory J. [ in W.D.] has given rise to some academic debate: [citations omitted]. It has been suggested that if one rejects the evidence of the accused, it is logically inconsistent to have a reasonable doubt with respect to it. Such a doubt, it is argued, would not be reasonable.
[17] Justice McLachlin did not endorse this view. She was raising it only to show that at the time, there was some controversy over the three W.(D.) steps. It is true that the separation of step one from step two may seem to be based on a false distinction. Yet differentiating between the two is crucial. Believing an accused is a positive finding, akin to the civil standard of a balance of probabilities. On the other hand, not believing an accused still leaves room to be left in a state of reasonable doubt, the lowest factual finding for an acquittal premised on the accused’s evidence.
[18] The line between not believing and being in a reasonable doubt is a constitutional delineation. One may not believe an accused’s evidence but nonetheless be in state of reasonable doubt with respect to it. The gradation between the two is a fine line but it is critical under our law.
[19] Not believing the accused does not equate to proof beyond a reasonable doubt. As Justice Binnie said at para. 13 of S. (J.H.),
The main point is that lack of credibility on the part of the accused does not equate to proof of his or her guilt beyond a reasonable doubt.
[20] Similarly, Justice Lamer as he then was, said in Nadeau at p. 573,
Moreover, the jury does not have to choose between two versions. It is not because they would not believe the accused that they would then have to agree with Landry’s [the Crown witness’s] version. The jurors cannot accept his version, or any part of it, unless they are satisfied beyond all reasonable doubt, having regard to all the evidence, that the events took place in this manner; otherwise, the accused is entitled, unless a fact has been established beyond a reasonable doubt, to the finding of fact the most favourable to him …
ii. The Appellant’s Evidence “defied common sense” and “where his evidence conflicted with that of Officer Rivers, I accept the evidence of the Officer.”
[21] The conclusion that the Appellant’s evidence was “inconsistent” and “defied common sense” indicates that the trial judge rejected his evidence (see quotation from the reasons above at para. 14). This could satisfy the second W.(D.) step, leaving only the third step of whether the Crown had proved its case beyond a reasonable doubt.
[22] But the rejection of the accused’s evidence should not be viewed in isolation. The next sentence in the reasons refers to the accused disagreeing with the officer’s evidence. The trial judge then says, “where his [the Appellant’s] evidence conflicted with that of Officer Rivers, I accept the evidence of the Officer.”
[23] This is an oft-seen formulation. The evidence of the accused is set up in diametric opposition to the evidence of the officer, and between the two, the trial judge expresses a preference for that of the officer. A binary “either/or” choice between the two versions is made. That is the very mischief the W.(D.) formulation was designed to guard against. The impression that a simple choice was made could have been tempered if the trial judge had referred to reasonable doubt or the third W.(D.) step requiring the Crown to prove its case to this level. But he did not.
Does R. v. D. (J.J.R.) assist the Crown?
[24] I do not agree with the Crown that R. v. D. (J.J.R.) (2006), 2006 CanLII 40088 (ON CA), 215 C.C.C. (3d) 252 (Ont. C.A.), leave refused [2007] 1 S.C.R. x (note), is of any solace in defending this appeal.
[25] The issue in D. (J.J.R.) was not W.(D.) but rather the adequacy of the trial judge’s reasons and whether they permitted effective appellate review. Justice Doherty held that the reasons were adequate for this purpose. The oft-quoted passage and the one relied upon by the Crown in this appeal is from para. 53 of the judgment,
…The trial judge rejected totally the appellant’s denial because stacked beside A.D.’s evidence and the evidence concerning the diary, the appellant’s evidence, despite the absence of any obvious flaws in it, did not leave the trial judge with a reasonable doubt. An outright rejection of an accused’s evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused’s evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused’s evidence.
[Emphasis added]
[26] This quote from D.(J.J.R.), although superficially resembling the erroneous W.(D.) reasoning, describes a correct, error-free means of finding guilt in a credibility contest in which the accused testifies. The similarity to the W.(D.) error arises from an apparent choice being made between the complainant’s and accused’s evidence. The two are linked and dependent on each other, such that acceptance of the Crown’s version implies a rejection of the accused’s version. But care is taken to be mindful of the burden and standard of proof. The accused’s evidence has been rejected based on its own weakness and does not leave a reasonable doubt. The complainant’s evidence has been accepted beyond a reasonable doubt over the evidence of the accused. The inclusion of the beyond a reasonable doubt standard ensures that there is no danger of inadvertently slipping into a W.(D.) error. The third option of being in a reasonable doubt based on the accused’s evidence is preserved.
[27] It is perfectly appropriate for a trial judge to find an accused guilty in a credibility case when she finds that the complainant’s evidence is strong and the defendant’s is weak and should be rejected. But this way of proceeding must not be based cannot be based on a choice being made between the two, compromising the need for proof to be beyond a reasonable doubt.
[28] With respect to the trial judge’s reasons in this case, the trial judge never went on to find the Crown’s case was proved beyond a reasonable doubt, the third W.(D.) step. The beyond a reasonable doubt standard was not applied as suggested in D.(J.J.R.). The rejection of the Appellant’s evidence led to the acceptance of the officer’s evidence.
[29] The Crown also relies on R. v. D. (R.), 2016 ONCA 574, 30 C.R. (7th) 373, 342 C.C.C. (3d) 236 (Ont.C.A.) and says that the trial judge’s reasons are similar to the trial reasons approved in that case. I do not agree. Justice Laskin described the trial judge’s reasons in that case this way,
22 … He [the trial judge] expressly instructed himself that he must “avoid an either/or approach in choosing between competing versions of what actually happened”. He said that “[g]uilt or innocence is to be determined by considering all of the evidence.” And then he found:
Standing alone the evidence of the accused cannot support a finding of guilt, but when weighed against the totality of the evidence and in particular the evidence of the complainant, I am not left with a reasonable doubt regarding the guilt of the accused.
[30] The trial judge in D.(R.) properly adhered to the approach from D.(J.J.R.). He specifically recognized the W.(D.) pitfall of choosing which version to believe and correctly applied the standard of beyond a reasonable doubt.
[31] In contrast, the case at bar is much closer to what Laskin J.A. warned against earlier in his D.(R.) reasons,
20 … a trial judge who says only “I reject the accused’s evidence because I accept the complainant’s evidence” risks being held by an appellate court to have chosen which of the two parties to believe and failed to determine whether, on all the evidence, the accused’s guilt had been proved beyond a reasonable doubt.
[32] Here, the reasons rejecting the accused’s evidence were not as stark as in the example. But rejection was to a significant extent, if not completely, based on the accused’s evidence disagreeing with the officer’s evidence. The decisive factor is that neither the acceptance nor the rejection was viewed in the context of the beyond a reasonable doubt scale.
[33] Finally, the presumption that trial judges understand the law cannot establish that a W.(D.) error was not made. Justice Binnie said in R. v. Sheppard 2002 SCC 26, [2002] 1 S.C.R. 869 at para. 55(9):
While it is presumed that judges know the law with which they work day in and day out and deal competently with the issues of fact, the presumption is of limited relevance. Even learned judges can err in particular cases, and it is the correctness of the decision in a particular case that the parties are entitled to have reviewed by the appellate court.
See also para. 54
[34] The trial judge alluded here to W.(D.) and the reasonable doubt standard at page 9 of his reasons, just before concluding that the officer was not shaken in cross-examination, while the accused was “not believable.” Even with the presumption that this trial judge knew the law, that general reference to the correct criminal burden and standard is not sufficient to refute the appearance that an error was committed.
[35] There is little doubt that the three-step W.(D.) formulation describes a well-trodden path of which trial judges are well aware: R. v. G.F., 2021 SCC 20, [2021] S.C.J. No. 20 (S.C.C.) at para. 75. It is easy enough to intone the reasonable doubt standard as it applies to a credibility case. Every trial judge in the province has the three-step W.(D.) formulation committed to memory. The challenge is to avoid the temptation of either/or reasoning and simply choosing which version to believe. The mountain of case law in which trial judges have made a W.(D.) error demonstrates that it is the application of W.(D.) to the evidence which is the difficulty, not the mere recitation of the three steps. The reality that a trial judge knows the W.(D.) steps does not count for much given the conspicuous problem posed by the W.(D.) error over several decades of judicial experience.
[36] In my view, the Appellant has made out an error of law with respect to the burden of proof. A new trial is required. The Appellant is ordered to appear in courtroom 1 at 9 a.m. in the Burlington courthouse on November 8, 2021 to set a date for a new trial.
D.E HARRIS J.
Released: October 22, 2021
COURT FILE NO.: CR-19-176
DATE: 20211022
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
Respondent
- and –
Joseph Ferreira-Small
Applicant
SUMMARY CONVICTION APPEAL JUDGMENT
D.E HARRIS J.
Released: October 22, 2021