The Defence Toolkit – October 8, 2022

R v DEA, 2022 ABCA 308

[September 26, 2022] Functus Officio [Jack Watson, Ritu Khullar, and Anne Kirker JJ.A.]

AUTHOR’S NOTE: The end of the sentencing process marks the end of judicial authority over a matter. As with everything legal, there are exceptions and nuances to altering what has already occurred. For a judge to "correct" a decision on sentence that has already been released it appears there has to be some articulated basis in the record to demonstrate that their intention was incorrectly recorded in the final sentence. Here, the Court could find no evidence of a prior intention to impose consecutive as opposed to concurrent sentences. Consequently, they found the court was functus officio when it attempted to "correct" the sentence already imposed. 

I. Introduction

[1] The appellant, now 46, was sentenced on January 29, 2021, to imprisonment for five years on one count of sexual assault as to events on May 19, 2009 (Count 1) and to imprisonment for three years concurrent on another count of sexual assault as to events of February 11, 2019 (Count 2) on an Information described as No 687P1. The complainant on each count was the same person. The sentencing judge also imposed two sentences of imprisonment for 30 days on two summary conviction offences of “mischief and breach” on an Information described as No 910P1, which sentences were to run concurrently.

[2] On February 5, 2021, the sentencing judge recalled the parties before her and altered the sentences that she imposed on January 29, 2021, by making the 3-year sentence on Count 2 run consecutively to the 5-year sentence on Count 1 on Information No 687P1. She also made the 30- day sentences on Information No 910P1 run concurrently to each other but consecutively to the sentences on Information No 687P1. In other words, the total sentence on the appellant was increased from 60 months to 97 months.

[4] The appellant appeals the sentence on Count 2 on the information referred to as No 687P1 which was the three-year sentence. But we would include within the appeal, pursuant to s 675(1.1) of the Criminal Code , the total sentence of 30 days (concurrent and consecutive as above) imposed on the summary conviction counts on the Information referred to as No 910P1. The sentences on those summary conviction counts are implicitly included within the submissions for the appellant concerning functus officio in this case.

II. Circumstances

[6] The sentencing judge’s reasons of January 29, 2021, include the following:

[DEA], you are sentenced to a period of imprisonment in a federal penitentiary with respect to the first count for a period of 5 years for the (INDISCERNIBLE) sexual assault. With respect to count 2 on that same Information, there will be a concurrent term of 3 years. On the second count, there will be a lifetime SOIRA requirement and an order authorizing the taking of a number of samples of bodily substances reasonably required for DNA analysis.

With respect to the second Information, on counts 1 and 2, there will be further concurrent sentences of 30 days gaol with respect to each count 1 and 2. In the circumstances, to the extent it applies to all of these charges. I don't believe it matters, but you will be (INDISCERNIBLE), so a waiver of the victim fine surcharge, which wasn't discussed, but I'm not sure the timelines reflect the need for it, in any event.” [AT 33/34-34/4] [Emphasis added]

[9] Approximately a week after the sentencing, on February 5, 2021, the sentencing judge had the case brought back before her to make a ‘correction’ in her sentence. She explained the ‘correction’ as follows:

THE COURT: All right. Thank you everyone for reconvening this morning. I brought you all back to address an error. I intended, and had in mind, sentences that were consequence, I inadvertently misspoke in error, used the word concurrent. When I realized this error, I asked madam clerk to assist in getting us all back together again on the record. It was my intention to expressly make count 2 on Information ending 687P1 a sentence of consecutive to the five year gaol sentence for sexual assault in count 1. We had not discussed, and I had not contemplated, merging sentences. It was not my intention to do so and I used the wrong word to express my intention, and then erroneously agreed at the end of the WebEx call to that incorrect word.

Today I intend to use my residual jurisdiction to correct the sentencing error so that the endorsement for Information 687P1 reflects a five year sentence on count 1 and a three year consecutive sentence on count 2, with the ancillary orders made January 29th, 2021....

III. Discussion

[11] For almost a century and a half, functus officio has been an articulable doctrine. The concept itself derives from an old English civil case namely In re St. Nazaire Co. (1879), 12 Ch D 88 (CA), albeit because the Judicature Acts of 1873 and 1875 had created an appeal Court making reconsideration unnecessary: see In the matter of L and B (Children), [2013] UKSC 8 at paras 16-18, [2013] 1 WLR 634. The law arrived in Canada by adoption. At inception, the rule was that a court had no jurisdiction to reopen or amend a final decision, except in two cases: (1) where there has been a slip in drawing up the judgment, or (2) where there has been error in expressing the manifest intention of the court: see In re Swire (1885) 30 Ch D 239 (CA); Paper Machinery Ltd. v. JO Ross Engineering Corp, [1934] SCR 186.

[12] While the law has moved on to some degree since then – notably in Chandler v Alberta Association of Architects, [1989] 2 SCR 848 at para 19, which added statutorily allowed exceptions in some instances – there is no evidence of a ‘residual jurisdiction’ in statutory courts to explain their decisions more clearly a second time. We start with the issue of whether the sentencing decision was ‘drawn up’ in this case.

[13] Endorsements on the relevant Information as appear in the Appeal Record confirmed, in writing, the entry of convictions and the imposition of the sentences as done on January 29, 2021....

[17] There are, moreover, further documents in the Court record supplied to this Court which are informative. These include a document entitled ‘CONVICTION’ under s 570 of the Criminal Code apparently signed by a court officer that specifies the 5-year sentence on Count 1, and a second document also entitled ‘CONVICTION’ under s 570 of the Criminal Code that specifies the 3-year consecutive sentence on Count 2. It is noteworthy that both CONVICTION documents purport to refer to the imposition of the sentences having occurred on January 29, 2021....

[18] Considering all this, we are persuaded that on the face of the written Appeal Record, the Provincial Court was functus officio respecting the sentencing of the appellant because the dispositions of January 29, 2021, were reduced to writing in the court record. Accordingly, absent an applicable exception, functus officio applies to this statutory court on the case law respecting reducing the January 29, 2021 oral decision to writing accurately on that date as was done here. That is so even without considering case authorities. In addition, before case law is referenced, there is s 3.1 of the Criminal Code which provides:

Effect of judicial acts

3.1 (1) Unless otherwise provided or ordered, anything done by a court, justice or judge is effective from the moment it is done, whether or not it is reduced to writing.

[19] The case law read attentively reinforces the conclusion that the sentencing judge here was functus officio and had no jurisdiction to recall the case to ‘true up’ the outcome to her previously unexpressed intentions. The change made by her in the case at bar was far from correction of a “clerical error” or an “accidental slip”, which, as Major J pointed out in R v Burke, 2002 SCC 55 at para 54, [2002] 2 SCR 857 are “vague” terms that might apply to “minor” matters and that do not apply to any ‘correction’ which involves “reconsideration” of the substance.

[22] This Court dealt with functus officio briskly in R v P(JS), 1997 ABCA 30, at paras 3-4, 196 AR 151, where the sentencing youth court judge imposed a sentence of 18 months secure custody on that offender without specifying that the sentence would run consecutively or concurrently with an earlier sentence being then served by that offender. The next day the youth court judge had the matter brought back before her and changed the disposition to make the sentence run consecutively. This Court said “the sentencing judge became functus once she imposed the sentence on October 16. Accordingly, she did not have jurisdiction on October 17 to specify that the sentence was to be served consecutively . . . ”. Regardless of the decisions of other Courts, that decision of this Court still has authority here.

[24] As noted above, there can be no serious challenge to the reality that the Information No 687P1 charging the appellant here had been endorsed with the original sentence dispositions. Further the endorsements were consistent with the only available and relevant manifestation of judicial intent at the time, namely that the sentences would run concurrently. This reality is not changed by the fact that the ‘correction’ was also endorsed on the same Information – on the same page as discussed above.

[28] The Court in Malicia, at paras 33-34, placed weight on the fact that the submissions made to the sentencing judge involved a “shared understanding that any sentence imposed by the judge would be consecutive to the one he was already serving”. By contrast, on this Appeal Record there was no such shared understanding in this case communicated to the sentencing judge. Moreover, it is important to recall that there were three judgments in Malicia, and that the majority (Cronk and Simmons JJA) spoke at paras 48-50 and paras 61-62 respectively to situations where a proposed correction would be precluded when the matter was “tantamount to a reconsideration” and where issues of fairness or injustice or even reasonable apprehension of bias might arise in the case.

[30] As for Hasiu, the Ontario Court referred to Malicia and Krouglov, and reversed a change in a sentence. The Court in Hasiu distinguished Malicia for the lack of a “shared understanding” by counsel as to what was to come in relation to consecutiveness. Secondly, the Court in Hasiu also noted the lack of a “manifest intent” at the time of sentencing. Finally, Hasiu was a case where “the sentencing judge ha[d] not declared that he always intended to impose a consecutive sentence”.

[31] As to these latter two points in Hasiu, the sentencing judge in the case at bar asserted on the date of her ‘correction’ that she had such an intention to impose consecutive sentences on the earlier date. With respect, no such intention was manifest on the earlier date in the case at bar. Indeed, the circumstances are quite to the contrary.

[32] A reasonable observer would be very concerned by the dramatic adjustment of the sentence which, in this instance, was not only very different from the first total but significantly overshot even the Crown’s position. That concern would not be allayed simply by the sentencing judge’s assertion about what she always intended. While judges should be taken at their word, the ‘reasonable apprehension’ that the judge’s position (knowingly or otherwise) is post-facto would not be demolished by the judge’s reassurance.

....In Canadian Broadcasting Corporation v Manitoba, 2021 SCC 33 at paras 33-34, 461 DLR (4th) 635 we find this:

33 In its contemporary guise, functus officio indicates that a final decision of a court that is susceptible of appeal cannot, as a general rule, be reconsidered by the court that rendered that decision (see Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848, at p. 860; Reekie v. Messervey, [1990] 1 S.C.R. 219, at pp. 222-23; Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3, at paras. 77-79). A court loses jurisdiction, and is thus said to be functus officio, once the formal judgment has been entered (R. v. Adams, [1995] 4 S.C.R. 707, at para. 29; R. v. Smithen-Davis, 2020 ONCA 759, 68 C.R. (7th) 75, at paras. 33-34). After this point, the court is understood only to have the power to amend the judgment in very limited circumstances, such as where there is a statutory basis to do so, where necessary to correct an error in expressing its manifest intention, or where the matter has not been heard on its merits (Chandler, at p. 861, citing Paper Machinery Ltd. V. J.O. Ross Engineering Corp., [1934] S.C.R. 186; R. v. H. (E.) (1997), 33 O.R. (3d) 202 (C.A.), at pp. 214-15, citing The Queen v. Jacobs, [1971] S.C.R. 92; see also R. v. Burke, 2002 SCC 55, [2002] 2 S.C.R. 857, at para. 54).

[35] In our respectful view, there is a pressing and substantial basis to treat exceptions to functus officio in criminal sentencing cases with scrupulous care and circumspection to avoid the demoralization that the perception of ‘shifting sand’ justice would bring into play. Mere technical corrections of ambiguous paper records to accord with reality are not impermissible if they do not harm the accused: see eg R v Wharry, 2008 ABCA 293 at para 60, 234 CCC (3d) 338; R v Church, 2017 ABCA 421 at para 35, [2017] AJ No 1349 (QL); compare Westfair Foods Ltd v Watt, 1998 ABCA 337 at para 65, 223 AR 322. But the rule of law very much depends upon the apparent credibility and integrity of the system as well as administration of justice in fact. The principle of finality is, arguably, at one of its most demanding points when it comes to the imposition of criminal sentences of imprisonment.

[37] To this can be reiterated the fact that the Provincial Court is a statutory court. As exemplified in Stanley v Toronto (City) Police Service, 2020 ONCA 252 at paras 46-63, 81 Admin LR (6th) 254, a statutory decider must find an exception in the enabling enactment if the criteria of an established exception to functus officio does not exist. The Criminal Code does not express such an exception. Implied jurisdiction does not mean an ability to requisition a power withheld by the legislature. Superior courts have unexpressed inherent jurisdictions which we need not discuss.

[39] In the end, the decision of the sentencing judge to set aside her earlier sentences totalling 5 years by adding 3 years on Count 2 and by adding 30 days on lesser Counts was contrary to stare decisis and is invalid. That conclusion makes it unnecessary for us to address at any length the further submission that the second sentence package exceeded the Crown’s submissions.

IV. Conclusion

[40] The appeal is allowed and the sentence on Count 2 is restored as 3 years concurrent to the sentence on Count 1 on the Information referred to as No 687P1. We also would include within the present appeal, an appeal pursuant to s 675(1.1) of the Criminal Code of the 30 day consecutive sentence imposed on both Counts, albeit concurrent to each other, on the Information referred to as No 910P1. For clarity, the sentences on Information No 910P1 are altered to 30 days imprisonment on each Count to run concurrently to the five-year sentence on Count 1 of No 687P1. To end any doubt: the total sentence imposed on the appellant is reduced to five years running from January 29, 2021.

R v Weng, 2022 BCCA 332

[September 29, 2022] Mens Rea of Attempted Murder [Reasons by Dickson J.A. with Willcock and Griffin JJ.A. concurring]

AUTHOR’S NOTE: The mens rea for attempted murder is different from that of 2nd degree murder. Attempted murder requires the higher standard of intentional killing of another person. It is not sufficient to simply intend to cause bodily harm that one knows is likely to cause death. When a person holds the latter intention and fails to kill, they are not guilty of attempted murder. Factually, this is a rather fine line to find, but this case did so and it is a useful reminder of just how hard it is to prove attempted murder. 

Introduction

[1] Lee Chia Weng appeals his convictions by a judge sitting alone on charges of murder and attempted murder. The judge held that Mr. Weng murdered Shaoxin Zhang and attempted to murder Te “Ralph” Wu by shooting them during an altercation over an unpaid debt. The Crown theory was that Mr. Weng shot at Mr. Wu and, in doing so, wounded him and accidentally killed Mr. Zhang. The issues at trial were the identity of the shooter, Mr. Weng’s intent if he was the shooter, and the applicability of the defences of provocation, self-defence and the defence of others. The judge concluded that Mr. Weng shot Messrs. Wu and Zhang, found the defences lacked any air of reality and applied the “common-sense inference” that persons intend the natural and probable consequences of their actions to hold that Mr. Weng had the requisite intents.

[3] ....However, the judge failed to grapple with whether Mr. Weng intended to kill Mr. Wu, on the one hand, or, on the other, to cause him bodily harm he knew was likely to cause his death and was reckless as to whether death ensued. This distinction was irrelevant to the murder conviction but a matter of importance in relation to the attempted murder charge. Because the judge failed to make a finding on whether Mr. Weng intended to kill Mr. Wu, while he identified the mens rea requirement for attempted murder correctly, he failed to apply it correctly when convicting Mr. Weng on that charge.

[6] Mr. Tang asked Mr. Weng to help him collect the debt for the tickets. He and two friends, Calvin Ko and William Chen, drove to Mr. Weng’s home, where Mr. Tang explained the situation to Mr. Weng. Then he called Mr. Wu again and handed the phone to Mr. Weng. Messrs. Weng and Wu were not acquainted, but Mr. Tang had previously pointed Mr. Weng out to Mr. Wu and identified him as his “boss” or “big brother”.

[7] When they spoke on the phone, Mr. Wu told Mr. Weng to “fuck your mother”, an insult that angered Mr. Weng. In response, Mr. Weng told Mr. Wu he should come out and wear a bulletproof outfit. He also told Mr. Wu to get ready “to swallow some bullets”.

[8] After speaking with Mr. Wu, Mr. Weng informed Mr. Tang that the situation was now “my matter as well”. He retrieved a handgun from his house, invited Johnny Chen to join them and set off with the group to the parking lot. Mr. Weng travelled in Johnny Chen’s car. Mr. Tang travelled with Mr. Ko and William Chen.

[9] Mr. Wu and his friends arrived at the parking lot first. The Wu group included Mr. Wu, Mr. Zhang, Steve Cheng and Steven Tian. Two of Mr. Wu’s other friends, Eric Wang and Kathy Cheng, parked on the street. When Johnny Chen and Mr. Weng arrived, they parked near the Wu group. William Chen parked nearby and Mr. Tang walked over to the parking lot.

[10] When Mr. Tang arrived, he joined Mr. Weng in Johnny Chen’s car. Johnny Chen sat in the driver’s seat, Mr. Weng sat in the front passenger seat, and Messrs. Tang and Ko sat in the back seat. Someone motioned the Wu group over, and they approached Johnny Chen’s car from the driver’s side. Mr. Wu was at the front of the group, followed by Messrs. Zheng, Cheng and Tian.

[11] As the Wu group approached, both groups began to shout and swear at each other. Johnny Chen and Mr. Weng got out of the car, and Johnny Chen struck Mr. Wu on the head with a hard object. Then Mr. Weng walked toward the front of the car, raised his gun and fired multiple shots toward Mr. Wu from a distance of approximately 10 to 12 feet.

[12] Mr. Weng shot Mr. Wu in the shoulder and Mr. Zhang in the groin area. The bullet damaged two of Mr. Zhang’s major arteries and he quickly bled to death.

[13] After Mr. Weng shot Messrs. Wu and Zhang, he and Johnny Chen got back into the car and prepared to leave the parking lot. Mr. Wu tried to stop them by opening the driver’s side door of the car, but Mr. Weng pointed the gun at him and told him to “back off.” Mr. Wu let go of the door and Johnny Chen drove away.

[15] Mr. Weng left for Taiwan the day after the shootings. In 2018, he was extradited to Canada and interviewed by the police. In his statement, Mr. Weng admitted that he was at the parking lot on the night in question and that he went there with Mr. Tang to get Mr. Tang’s money back. However, he denied shooting anyone and stated he did not know Mr. Wu or Mr. Zhang.

Trial Judgment

[34] Next, the judge discussed the burden of proof in relation to the intent requirements of murder and attempted murder, together with the Crown’s submission on whether it had met the burden:

[46] The Crown must prove beyond a reasonable doubt a specific intent to kill. There is some question as to whether Mr. Weng intended to kill Mr. Wu. He was not carefully aiming at him. He had another opportunity to shoot him and he did not do so. On the other hand, he shot him in circumstances where a fatal wound would not be unlikely. The requirement in the case of Shaoxin Zhang is set out in s. 229(b) of the Criminal Code, “Where a person, meaning to cause death to a human being or meaning to cause him bodily harm that he knows is likely to cause his death, and being reckless whether death ensues or not, by accident or mistake causes death to another human being, notwithstanding that he does not mean to cause death or bodily harm to that human being,” is culpable of murder.

[47] The Crown submits that the specific intent to kill can be established if a common sense inference is that people intend the normal and probable consequences of their actions. The Supreme Court of Canada set out the common sense inference as follows in R. v. Seymour, [1996] 2 S.C.R. 252…

[48] The Crown submits that this applies to the case at hand. The only reasonable conclusion was that the accused used the .45 calibre as it was designed, to cause death. The Crown submits that if the accused did not have a specific intent, the only reasonable inference is that the accused meant to cause harm that he knew was likely to cause death and was reckless whether death ensued.

[49] The offence of attempted murder always requires proof beyond a reasonable doubt of a specific intent to kill as the mental element of the offence; R. v. Ancio.

[50] A specific intent to kill is always the necessary mental element of the offence of attempted murder. It is not necessary for the accused person to have set out to kill. If his or her intention was initially different, but changed to an intention to kill even for a brief time, that intent will suffice to establish the mental element so long as it coincides with the physical element. The physical element for the offence of attempted murder considers any act done by the accused person to fulfill his or her intention so long as that act is beyond mere preparation. The Crown submits that the only reasonable inference on the facts is that the accused meant to cause bodily harm whether he knew it was likely to cause death and was reckless whether death ensued.

[36] The judge concluded his reasons by quoting from R. v. Walle, 2012 SCC 41 and stating the inference applicable to the murder of Mr. Zhang and the attempted murder of Mr. Wu was “indistinguishable”. In the result, he found Mr. Weng guilty of both murder and attempted murder:

[51] In R. v. Walle, [2012] 2 S.C.R. 438, the court dealt with a case where one bullet was discharged from close range striking the accused in the heart. The court observed that applying the common sense inference:

I am satisfied, beyond a reasonable doubt, that when the accused Walle deliberately pulled the trigger, in the circumstances I have just described, he knew that the reasonable and probable consequence was that he would either cause Mr. Shuckburgh’s death or would cause him grievous bodily harm which would likely cause his death and was reckless, whether death ensued or not.

[52] In the case before me, the inference applicable to the murder of Shaoxin Zhang and the attempted murder of Te “Ralph” Wu is indistinguishable. Shots were fired in quick succession and struck Mr. Wu who was the intended victim and caught Shaoxin Zhang, as well. This falls within the meaning of 229(b).

[53] Accordingly, I find Mr. Weng guilty of attempted murder of Mr. Wu and murder of Shaoxin Zhang. None of the defences of provocation or defence of others have an air of reality.

Issues on Appeal

3. Did the judge misdirect himself by failing to identify and apply the mens rea requirement for attempted murder correctly?

Discussion

Did the judge misdirect himself by failing to identify and apply the mens rea requirement for attempted murder correctly?

[81] The leading authority on the mens rea requirement for attempted murder is R. v. Ancio, [1984] 1 S.C.R. 225. In Ancio, the Court concluded that, like other criminal attempts, the offence of attempted murder is distinct from the offence alleged to be attempted, namely, the offence of murder: at 247. The Court also concluded that “the mens rea for an attempted murder cannot be less than the specific intent to kill”: at 249.

[82] As Justice Doherty explained in R. v. Boone, 2019 ONCA 652, the offence of attempted murder “requires proof beyond a reasonable doubt that the accused intended to kill, coupled with conduct by the accused done for the purpose of carrying out that intention” which is more than merely preparatory: at para. 49. That being so, he stated, “[t]he intention to inflict harm, even significant harm, combined with recklessness as to the consequence of inflicting that harm, does not suffice to establish the mens rea for attempted murder”: at para. 51. He stated further that a specific intent to kill is established where the killer’s purpose is to kill another or the killer believes “with virtual certainty” that death will result from a course of action: at paras. 52–53.

[83] Mr. Weng submits that while the judge stated the mens rea requirement for attempted murder correctly, he failed to apply that requirement correctly.

[85] I agree that the verdict on the attempted murder charge is unsupportable based on the judge’s factual findings. As paras. 34, 36–37 and 46–50 of his reasons show, the judge correctly identified the mens rea requirement for attempted murder. However, he failed to apply this requirement. To do so, he had to determine that Mr. Weng specifically intended to kill Mr. Wu, and did not merely intend to cause him bodily harm that he knew was likely to cause his death, being reckless as to whether death ensued. The judge did not make this determination or even grapple with this critical question.

[86] As I have explained, immediately before convicting Mr. Weng of murdering Mr. Zhang and attempting to murder Mr. Wu, in determining Mr. Weng’s intent the judge applied the common-sense inference as articulated in Walle. As I have also explained, in Walle whether the accused intended to cause death and or intended to cause bodily harm which was likely to cause death was insignificant. Presumably for that reason, the trial judge in Walle did not distinguish between the two forms of intent in drawing the inference that he drew. However, in this case the distinction was highly relevant and judge was obliged to resolve the critical factual question in respect of the attempted murder charge, namely, whether Mr. Weng intended to kill Mr. Wu or intended to cause bodily harm he knew was likely to cause his death and was reckless as to whether death ensued. Although the judge identified the mens rea requirement for attempted murder correctly elsewhere in his reasons, he failed to apply it when he found Mr. Weng guilty without determining whether Mr. Weng specifically intended to kill Mr. Wu.

[87] Consequently, I would give effect to this ground of appeal.

R v MJ, 2022 SKCA 106

[September 28, 2022] Stereotypes and Findings of Credibility [Reasons by Barrington-Foote J.A. with Ottenbreit and Tholl JJ.A. concurring]

AUTHOR’S NOTE: Although the end result here was a loss for the defence, the court's comments on the application of stereotypes of human behaviour to the credibility of the accused highlighted a different way stereotypes can appear in judicial decision-making. Most of the time, stereotypes that cause appeals appear in the assessment of human sexuality. In this case, it was something more adjacent. In the context of suspected infidelity the trial judge found the proposition that the complainant would have looked a cell phone she had never seen the appellant use to check for suspicious messages to be "nonsensical." This led to credibility findings in her favour and against the accused. The Court of Appeal focused on this commentary because it appeared to be divorced from the assessment of the evidence as a whole and was based some stereotype of human behaviour applied to the facts of the case. This case is useful for application to stereotypes of human behaviour in contexts outside of human sexuality, where judges have yet to become as careful in their reasons as they are in sexual assault matters.

I. INTRODUCTION

[1] M.J. was convicted at trial of one count each of making child pornography, possession of child pornography, and voyeurism. The charges arose following the discovery of surreptitious videos of M.J.’s former stepdaughter, A.B., which were taken when she was 13 or 14 years old. The videos were stored on a cellphone that was owned, but no longer used, by M.J. The issue at trial was whether the Crown had proven beyond a reasonable doubt that the videos were taken by M.J.

[3] I have concluded that the trial judge erred in the course of his assessment of M.J.’s credibility, including in his identification and application of the principles reflected in W.(D.). However, I do not agree with M.J. that credibility was the only issue at trial. Rather, it is my view that the matters affected by the credibility analysis did not play a role in the finding of guilt. For that reason, it is my view these errors did not result in an unreasonable verdict or a miscarriage of justice, and that the appeal must accordingly be dismissed.

[7] B.D. testified that by March of 2019 she and M.J. had been arguing almost daily, and that she had discovered online conversations between M.J. and other women by looking at his cellphone and laptop. It was her evidence that on March 19, 2019, she saw him looking at an old phone in his bedroom office at the Alberta residence. She said that she recognized it as an old iPhone that he had kept in a nightstand drawer in the Saskatchewan residence, but that she had never before seen him use. She claimed that, when she entered the room, M.J. put the iPhone down immediately, changed the conversation, and ushered her from the room.

[8] B.D. testified that she had, since the move, seen the iPhone in the top drawer of the desk in M.J.’s office. She said that the next day, she entered the office to find the phone, explaining her reason for doing so as follows:

A So it was March 20th and I waited till he was at work to go look at it because I assumed I would find the women he’d been talking to since he’d set up an alias Facebook account. So I pulled it out of the drawer and it powered on, but the battery was very low, so I plugged it in.

Q Okay. Just to be clear, did you have to -- when you picked up the phone was it already in a powered on state or did you have to –

A No, I powered it on.

Q Okay. So you pressed the button to power it on. Okay. And again, just so I understand, it had enough battery to power on when you –

A Yes.

Q Okay. Please continue.

A Okay. So I looked through to go online. It wasn’t connected to our Wi-Fi, so I looked in messages and pictures. Then when I went in pictures I found the videos, it was not what I was prepared for.

[9] B.D. testified that she delivered the iPhone to the RCMP on March 21, 2019, and that she said nothing to M.J. about what she had found until July 30, 2019, when they had a major argument. When she then asked him what he thought had happened to the iPhone, he lost it, stating that his life was over, and that there was no recovering from this, and threatening suicide. She said that he claimed that he did not know why he took the videos, did not remember taking them and did not know why he had kept them. He said he was not attracted to A.B. in that way. After further discussion, M.J. contacted a lawyer and told her the lawyer had said he would likely face a year in jail.

[11] M.J. gave very different evidence relating to the iPhone and videos. He admitted that he had been messaging other women, looking for his next girlfriend. He claimed that he and B.D. had been arguing about money, particularly her failure to contribute, and that when he went home on July 30, they had again argued about money as she packed her belongings to leave him. He denied that B.D. confronted him about the iPhone, that he had threatened suicide, or that he had called a lawyer that day. It was his evidence that he did not make any inculpatory statements as B.D. alleged.

[12] M.J. also gave directly conflicting evidence as to his knowledge of the location and use of the iPhone after the move to Alberta. B.D. testified that the iPhone and the other contents of the nightstand drawer had been dumped in a bin for the move, that the bin was in the trailer, and that it was then dumped into the desk drawer at the Alberta residence. M.J., on the other hand, testified that B.D. had packed the contents of the nightstand drawer, that he did not know where the iPhone was, and that he did not see it during the move, at the trailer, or at any time when they were in Alberta.

[13] ....The videos were taken between August of 2016 and May of 2017, on occasions when A.B. was in the bathroom to shower. With one exception, they were recorded through a large crack in the door of the bathroom at the Saskatchewan residence, which, like the bedrooms, was located on the second floor. The forensic expert who examined the iPhone could not identify the exact dates the videos were taken but was able to say that videos 1 and 2 were taken on one day, 17 minutes apart; that video 3 was made the following day; and that video 5 was taken the day after. Video 6 had a file name that suggested it was made after videos 1–3 and 5, although the file for video 6 showed an earlier date than the date associated with videos 1–3 and 5.

[14] The iPhone also contained bookmarks for pornographic websites that were made at some point before it no longer provided internet access, which was in 2015. When questioned about the bookmarks, M.J. testified that he did not recall if he bookmarked anything similar with that phone, that he did not think he did, and that he did not know how they got there.

[15] I would finally note that M.J. was also charged with invitation to sexual touching. A.B. testified that he had entered her bedroom at the Saskatchewan residence and told her that he wanted to have intercourse with her. M.J. denied that allegation.

[17] The trial judge next referred to B.D.’s evidence that she had walked in on M.J. “handling the old iPhone” and that, when he saw her, he immediately put it away. He noted that B.D. suspected M.J. of communicating with other women and that it was for that reason she retrieved the iPhone from the drawer where she knew he kept it. He then made the following observation:

Now, either [M.J.] lied to the Court about not knowing or caring about what had happened to his old cellphone, or [B.D.] decided to check for suspicious messages, or searches on a cellphone she had never seen him using. Frankly, I think that the latter proposition is nonsensical.

[18] Having disposed of this question, the trial judge referred to the evidence relating to the bookmarks, dealt with that evidence and, having done so, stated his findings as to the credibility of M.J., B.D. and A.B.:

Detective Sergeant Bautista found dozens of pornographic internet sites bookmarked on [M.J.’s] iPhone 4. When asked in cross-examination whether he ever bookmarked any pornographic videos or sites, [M.J.] claimed that he did not recall doing it. Although he did not think it was possible that he had booked marked such sites, he did not suggest that anyone else might have done it. Once again, in my opinion, [M.J.’s] answers don’t make any sense. If you see a pornographic video, you don’t forget it, or you don’t forget that you saw it. Similarly, a person who searches for pornographic websites on the internet and books -- book marks some sites does not forget doing so. In the end, I do not believe much of [M.J.’s] testimony. Where his testimony conflicts with [B.D.’s] testimony or the complainant’s testimony, I prefer their evidence, as I found both to be forthright and credible witnesses.

[19] Having concluded his credibility assessment, the trial judge dealt with the possibility that anyone other than M.J. could have made the videos, stating as follows:

Although the Crown’s case against [M.J.] in relation to the voyeurism and child pornography charges is entirely circumstantial, I find that it has proven its case beyond a reasonable doubt. In -- in order for anyone other than [M.J.] to be the person who surreptitiously recorded the complainant, not only would he or she have been in [M.J.’s] [Saskatchewan] home on one or more of the few occasions when the complainant also was there, they also would have to be there when they knew that she was taking a shower, and they would have to know where [M.J.] kept the cellphone he did not use. And they would have to retrieve it from his nightstand, power it up, and then wait for the complainant to [sic] out of the shower before recording videos of her naked body.

Finally, all of this would have to happen without [M.J.] or [B.D.] catching that unknown person in the act. The way in which the Crown Prosecutor put it in his closing argument is “none of that makes a lick of sense”. I agree. The chances of such a confluence of events occurring once are slim enough. The chances of it happening more than once are so vanishingly small that on the evidence before me, the only reasonable conclusion I can come to is that [M.J.] is the person who created the videos of the complainant. For those reasons, I find [M.J.] guilty of counts 1, 2 and 3 in Information ending 921.

[20] The trial judge dealt last with the charge of invitation to sexual touching. He accepted A.B.’s evidence that M.J. had told her he wanted to have intercourse with her. However, he found that this statement was a declaratory statement rather than an invitation and accordingly acquitted him of that charge.

[21] I would first note that M.J. alleges, and the Crown concedes, that the trial judge’s statement of the approach specified in W.(D.) was incorrect. I agree. W.(D.) describes the following three-step process at page 758:

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.

[22] The error in this case in the trial judge’s self-instruction is with the second and third steps. The trial judge correctly instructed himself that if he believed M.J., he should acquit. However, he then said that if he did not believe him or was not sure whether to believe him, he “must assess all of the evidence to determine whether the Crown has proven its case against the accused beyond a reasonable doubt”.

[23] That was incorrect, in two ways. First, if the trial judge was not sure whether he believed M.J.’s denial that he took the videos, he was obliged to acquit, as that uncertainty would constitute a reasonable doubt. Second, this instruction contemplates the assessment of M.J.’s evidence – in effect, given the nature of the evidence, his credibility – prior to the assessment of “all of the evidence”. That too is incorrect. As Charron J. said in R v Dinardo , 2008 SCC 24, [2008] 1 SCR 788:

[23] … In a case that turns on credibility…the trial judge must direct his or her mind to the decisive question of whether the accused’s evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt. Put differently, the trial judge must consider whether the evidence as a whole establishes the accused’s guilt beyond a reasonable doubt. …

(Emphasis added)

....See also R v Ryon , 2019 ABCA 36 at paras 41–47, 371 CCC (3d) 225;

[31] Applying these principles to the conviction decision, it is my respectful opinion that the trial judge’s reasoning discloses legal errors. His analysis reflected one of the key flaws in his description of W.(D.) identified above; that is, he failed to consider M.J.’s evidence in the context of all of the evidence. This error was compounded by error in his analysis of the two specific issues he emphasized in assessing M.J.’s credibility. My reasons for these conclusions are as follows.

[32] First, the trial judge isolated and dealt expressly with only two narrow and discrete issues in his credibility analysis. To reiterate, he first made the following statement:

Now, either [M.J.] lied to the Court about not knowing or caring about what had happened to his old cellphone, or [B.D.] decided to check for suspicious messages, or searches on a cellphone she had never seen him using. Frankly, I think that the latter proposition is nonsensical.

[33] He then dealt with the second discrete issue – the evidence that bookmarks for pornographic websites had been found on the iPhone – and, having rejected it because it did not “make any sense”, made the following credibility findings: …

In the end, I do not believe much of [M.J.’s] testimony. Where his testimony conflicts with [B.D.’s] testimony or the complainant’s testimony, I prefer their evidence, as I found both to be forthright and credible witnesses.

[35] Further, I do not agree with M.J. that the either/or form in which the trial judge cast the first issue demonstrated that he treated this as a credibility contest. There was no dispute as to whether B.D. accessed the iPhone and that, but for the one occasion that he denied, she never saw him use the iPhone after they began living together. That being so, I read the trial judge’s statement as meaning that, as a matter of logic and human experience, it would not make sense for B.D. to look at the iPhone if she had never seen M.J. use it.

[36] However, this part of the reasons, read in light of the issues, the arguments, and the evidence at trial, does support the conclusion that the evidence taken into account for the purposes of the credibility analysis was not considered in the context of the evidence as a whole. The basic structure of the decision – while by no means conclusive – is of interest in this regard. It deals with credibility not only prior to but, on the face of it, separately from the circumstantial evidence that the trial judge referred to after concluding that analysis.

[37] In addition, there was undisputed evidence that B.D. had already looked at M.J.’s other devices, had found evidence he was conversing with other women, knew where his old iPhone was located, and looked at it to see if there was more of the same. The trial judge found that this was so. If the trial judge had considered that evidence when dealing with the first discrete issue, and the evidence that their relationship was on its final legs, he may still have concluded that B.D. found M.J. with the iPhone in hand. However, he could not reasonably have found the proposition that she would look at the iPhone absent that fact to be “nonsensical”. He either failed to take that evidence into account or relied on unwarranted and unfounded assumptions about human behaviour – an error of a different sort that is dealt with below.

[38] The analysis of the bookmarks issue also reflects error of a different sort. The trial judge rejected M.J.’s evidence that he did not remember creating the bookmarks and did not think he had done so, because the trial judge found that it did not “make any sense”. He explained why he reached that conclusion; that is: …

If you see a pornographic video, you don’t forget it, or you don’t forget that you saw it. Similarly, a person who searches for pornographic websites on the internet and books -- book marks some sites does not forget doing so. …

[39] This reasoning is either based on stereotypical inferences about human behaviour, or constitutes speculation based on common sense assumptions that were not grounded in the evidence or properly the subject of judicial notice. In either case, it constitutes error: see generally R v JC, 2021 ONCA 131 at paras 57–71, 401 CCC (3d) 433. These principles were nicely summarized by Fitch J.A. in R v Pastro, 2021 BCCA 149, 71 CR (7th) 296:

[40] As Justice Paciocco recently cautioned in R. v. J.C., 2021 ONCA 131 at para. 58, “judges must avoid speculative reasoning that invokes ‘common-sense’ assumptions that are not grounded in the evidence or appropriately supported by judicial notice”. The prohibition has found expression in a number of recent cases: see, for example, R. v. A.R.D., 2017 ABCA 237 at paras. 6-9, 28, 43-44, 71, aff’d 2018 SCC 6; R. v. Paulos, 2018 ABCA 433 at paras. 26-29, 34, 39, leave to appeal ref’d (2020), [2019] S.C.C.A. No. 336; R. v. C.M.M., 2020 BCCA 56 at paras. 138-139; R. v. Kodwat, 2017 YKCA 11 at paras. 27-28, 41.

[41] Judges are entitled, and expected, to rely on their life experience in making credibility findings. This necessarily includes drawing common-sense inferences from established facts. Juries are routinely instructed along the same lines—to come to commonsense conclusions based on the evidence they accept. Where it is apparent from a review of the reasons as a whole that a credibility assessment is rooted in the evidence, and is the product of a case-specific determination about what the complainant and accused did or did not do, there will be no basis for appellate intervention, absent palpable and overriding error in fact: see R. v. Mann, 2020 BCCA 353 at paras. 72-76; R. v. Quartey, 2018 ABCA 12 at paras. 21, 34-35, aff’d 2018 SCC 59. This is consistent with the deferential standard of review that applies to factual findings and with the profound functional and policy justifications that underlie it.

[42] The corollary is that judges must avoid purporting to make factual findings that are rooted in inappropriate behavioural assumptions and stereotypes. …

[43] As is apparent from the foregoing, judges risk falling into reversible error if they make credibility determinations by relying on assumptions about the type of behaviour that would “normally” be expected of a person without engaging with the evidence, includ would “normally” be expected of a person without engaging with the evidence, including the context in which contentious events arose: R. v. Roth, 2020 BCCA 240 at paras. 64-65, 71-73.

[42] There is no doubt that the trial judge’s conclusion that M.J. lacked credibility and that he believed B.D. where their evidence differed was important. That conclusion meant that the trial judge did not believe M.J.’s denial that he took the videos. It also meant that he believed B.D.’s evidence that M.J. knew where the iPhone was and kept it at hand, that she had seen him looking at it, and that he had made inculpatory statements when she finally confronted him. If the trial judge had relied on this evidence to convict M.J., I would have concluded that the convictions should be set aside, as they would have been grounded in a legally flawed credibility analysis.

[43] However, the trial judge did not rely on the results of his credibility analysis. To the contrary, he erroneously stated that “the Crown’s case against [M.J.] in relation to the voyeurism and child pornography charges is entirely circumstantial”. That this was more than a slip of the tongue is confirmed by what followed. Having made this statement, the trial judge proceeded accordingly. He analyzed the circumstantial evidence bearing on the question of whether someone other than M.J. could have created the videos in the manner required by R v Villaroman, 2016 SCC 33 at para 55, [2016] 1 SCR 1000 [Villaroman]; that is, “[w]here the Crown’s case depends on circumstantial evidence, the question becomes whether the trier of fact, acting judicially, could reasonably be satisfied that the accused’s guilt was the only reasonable conclusion available on the totality of the evidence”.

[46] Here, the trial judge did not, as Villaroman directs, draw the inference that the only reasonable conclusion was that M.J. created the videos based on the evidence as a whole. He did not advert to the evidence that M.J. had been found with the iPhone in hand and had made inculpatory statements when he was confronted by B.D. Nor did he advert to the exculpatory evidence given by M.J., including his direct denial that he created the videos. However, these errors played no role in the finding that the Crown had proved that M.J. had committed these offences, based as it was solely on other circumstantial evidence that the trial judge separately concluded was inconsistent with that denial.

[50] I recognize that this is an unusual outcome in light of my conclusion that the trial judge erred in a manner that affected his credibility analysis. However, this is an unusual case, in that the errors in the trial judge’s W.(D.) analysis were immaterial because the trial judge grounded the conviction solely on uncontested circumstantial evidence that was not affected by those errors. It is also important that if the trial judge had considered that circumstantial evidence in the course of the credibility analysis, that evidence – given his conclusion that, taken alone, it could support only a finding of guilt – would have weighed heavily in favour of his conclusion that M.J.’s exculpatory evidence was not credible. There is no basis to find that it might have led him to believe M.J.’s denials or to conclude that his evidence raised a reasonable doubt.

V. CONCLUSION

[51] For these reasons, I would dismiss the appeal. M.J. is hereby directed to surrender himself into custody at the Saskatoon Correctional Centre in Saskatoon, Saskatchewan, within 48 hours following the release of this judgment.