[May 25, 2023] Appeals: Judicial Ignoring of the Domestic Complainant, Assaults: the "Reckless" Assault [Richard C.J., Green and LeBlanc JJ.A.]
AUTHOR’S NOTE: Following what appears to have been a tour de force of trial level errors, the Court of Appeal of New Brunswick had the opportunity to remark upon many fundamental aspects of criminal law. Of particular interest was the core of the trial level problems. The NBCA outlined the legal fallout from the trial judge essentially ignoring the helpful testimony of a domestic assault complainant - a feature of many domestic trials. The phenomenon occurs something like the following: where the complaint provides evidence against the accused, this is treated as believable and where they provide evidence that exonerates the accused, that testimony is treated as the byproduct of ongoing abuse. The NBCA reminds us that it is not an option for judges to simply ignore evidence and the result is an unreasonable verdict. The second gem in this decision is the treatment of assault by recklessness. Here, the alleged reckless shutting of a door on the fingers of the complainant. Again, here there was no basis to conclude the accused "knowingly" undertook the risk when he slammed the door. The result was an unreasonable verdict. The case also covers the right to cross-examine the complainant on their criminal record and propensity for violence.
 It is rare for a trial decision to cast doubt upon a proper understanding of the fundamental tenets of criminal law. It is also uncommon for this Court to annul a conviction as unreasonable when that decision is rendered by a judge of the Provincial Court, because judges of that court routinely undertake the critical tasks of assessing credibility, evaluating evidence, and applying the law to the facts, to arrive at a definitive verdict on the charges before them. Remarkably, the present case falls within the realm of such extraordinary circumstances….
 Mr. Nagle was charged with the commission of four offences set out in two informations. The first charged him with three offences under the Criminal Code, which allegedly occurred on March 19 and 20, 2022: s. 267(b) (assault causing bodily harm); s. 279(2) (unlawful confinement); and s. 733.1(1)(a) (breach of probation). The second information alleged the commission of an offence on August 24, 2020, under s. 267(b) of the Code (assault causing bodily harm). The alleged victim in all matters was A.B., a woman with whom Mr. Nagle was in a common law relationship at the time. At the culmination of a trial, a judge of the Provincial Court convicted Mr. Nagle on all counts and eventually sentenced him to 12 months’ incarceration. At the hearing, Mr. Nagle’s counsel informed the Court that his client conceded the conviction for breach of probation under s. 733.1(1)(a) of the Code.
 In his appeal against conviction, Mr. Nagle raises several grounds. Most, though not all, are conceded. Crown counsel’s many concessions illustrate the discharge of his duty to serve the public interest by upholding the law and seeking justice rather than securing convictions at all costs, a duty which Crown counsel are expected to perform “with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings” (see Boucher v. The Queen,  S.C.R. 16,  S.C.J. No. 54 (QL), per Rand J.).
 At the conclusion of the hearing of Mr. Nagle’s appeal, we rendered an oral decision allowing it. The convictions under ss. 279(2) and 267(b) of the Code, relating to incidents that occurred in March 2022, were set aside and acquittals entered on those charges….
… The conviction under s. 267(b) of the Code, relating to the incident of August 2020, was set aside and a new trial was ordered on that charge. At the time, we indicated that reasons for our decision would follow. These are those reasons.
 At the time of the incidents described below, Mr. Nagle and A.B. were common law partners and had a relationship described during the trial as “problematic” and “toxic.”
A. Incidents of March 19 and 20, 2022
 … A.B. had been staying at Mr. Nagle’s residence since December 2021, but an interaction between the two on March 18, 2022, caused her to leave the residence, leaving behind some of her personal belongings. The next day, she returned…
 Once at the residence, they argued and A.B. became very loud. Mr. Nagle made allegations against her, and she decided to leave, just wanting her belongings returned to where she was staying. As she was in the process of leaving, Mr. Nagle believed she had his keys and other belongings of his and followed her down the stairs to retrieve them. As A.B. was leaving, Mr. Nagle slammed the door shut while her hand was on the door frame. When Mr. Nagle saw A.B.’s hand had been jammed, he ran upstairs to get an icepack.
 Mr. Nagle testified that he did not see A.B.’s hand on the doorframe and that he slammed the door shut because A.B. was loud, fearing what impact her yelling would have on his tenants and neighbours. R.L. also testified that A.B. was being very loud and that Mr. Nagle shut the door wanting to avoid the neighbours getting upset. A.B. denied being loud or raising her voice. In her testimony, she surmised Mr. Nagle slammed the door to keep her inside the house. Of critical importance regarding the charge of assault causing bodily harm, A.B. testified she did not believe Mr. Nagle intended to slam the door on her hand and that, possibly, he had not seen her hand on the doorframe. Two other witnesses said they heard arguing and raised voices that night, noting that a female voice was the loudest.
 A.B. ultimately left Mr. Nagle’s residence that evening but returned there very early in the morning of March 20, 2022. The door was locked, and she knocked until she was let in. Shortly thereafter, the police came to Mr. Nagle’s door. At this time, Mr. Nagle told A.B. to “remember the plan” and hide behind the refrigerator. A.B. herself described the “plan” as one conceived by Mr. Nagle some time prior and one to which she had agreed to avoid the police seeing both of them together. Mr. Nagle acknowledged they planned to hide A.B. if the police attended at his residence, due to her outstanding arrest warrants and his no-contact order. To that end, Mr. Nagle pulled out the refrigerator and A.B. got behind it and pulled it back into place while he answered the door. A.B. explained that she hid behind the refrigerator to avoid any trouble for Mr. Nagle; she was hoping the “plan” would work and that they could eventually work through their issues. She stated she acquiesced to the “plan” because she loved him, wanted him to be happy and did not want him to get into more trouble.
 The police found A.B. behind the refrigerator and took her to the police station….
B. Incident of August 24, 2020
 A.B. also testified about an incident which allegedly occurred on August 24, 2020, when she and Mr. Nagle were arguing upon their return to his residence. A.B. stated that she was being loud, something to which Mr. Nagle is sensitive because of his tenants, and that he pushed her on the back stairway. According to A.B., Mr. Nagle held her down by forcefully squeezing her and covering her mouth; she said during this time she heard a pop in her shoulder. After quieting down, A.B. ran up the stairs, through the front door and ran away. A.B. acknowledged using speed and consuming vodka that day, whereas Mr. Nagle was intoxicated on beer. She said she recalled the events of this day because it was Mr. Nagle’s birthday. A.B. attended at the hospital the next day….
 Mr. Nagle testified he was not with A.B. on his birthday but had spent the previous evening with her. He testified as to an altercation with A.B. resulting in a scar behind his right ear. According to Mr. Nagle, while at a location with other people, he heard A.B. yelling. She then headed toward him and punched, scraped, and scratched him. As he was trying to hold her back, one of A.B.’s hands got loose and she scratched the back of his neck, leaving a scar behind his right ear. During this altercation, they tumbled and fell, and this is when her shoulder was injured. He later found out that A.B. had seen a message on his Facebook page from a woman he had previously dated…
C. The convictions and sentencing
 In her decision, the judge convicted Mr. Nagle on all four counts. He was eventually sentenced to 12 months’ incarceration, less 270 days of remand credit since being taken into custody on March 20, 2022. Counsel informed us Mr. Nagle completed his sentence.
 The judge committed several errors of law. Mr. Nagle and Crown counsel agree on some, but not all, of these errors. Some, but not all, of the judge’s errors had a bearing on the outcome of Mr. Nagle’s trial. Even where there is agreement between the parties, the Court has an obligation to satisfy itself the shared position put forth by the parties is correct at law. In this matter, the sheer number of errors committed by the judge compels this Court, mindful of its oversight role, to comment on the most egregious of those errors, regardless of whether they affected the outcome of Mr. Nagle’s trial.
A. The conviction for unlawful confinement under s. 279(2) of the Code
 The essential elements to establish an unlawful confinement under s. 279(2) of the Code were recently discussed by the Supreme Court in R. v. Sundman, 2022 SCC 31,  S.C.J. No. 31 (QL). A conviction under s. 279(2) requires the prosecution to establish, inter alia, that “for any significant time period, a person is coercively restrained or directed contrary to their wishes, so that they cannot move about according to their own inclination and desire” (para. 21). The evidentiary record before the judge reveals that A.B. voluntarily agreed to get, and hide, behind the refrigerator in accordance with the “plan” to which she had agreed. The judge convicted Mr. Nagle under s. 279(2) notwithstanding this evidence. Mr. Nagle argues that the conviction under s. 279(2) of the Code is unreasonable. Crown counsel agrees. So do we.
 In R. v. C.P., 2021 SCC 19,  S.C.J. No. 19 (QL), the Supreme Court reiterated the unreasonable verdict standard on appeal where a trial judge is sitting alone and convicts the accused. There are two pathways for an appeal court to find a verdict was unreasonable:
When a verdict is reached by a judge sitting alone and explained in reasons for judgment, there are two bases on which a court of appeal may find the verdict unreasonable. First, a verdict is unreasonable if it is not one that a “properly instructed jury acting judicially, could reasonably have rendered” (R. v. Biniaris,  1 S.C.R. 381, at para. 36, quoting R. v. Yebes,  2 S.C.R. 168, at p. 185). In Biniaris, Arbour J. clarified that this standard, despite being expressed in terms of a verdict reached by a jury, also applies to the decisions of a judge sitting without a jury. She explained, however, that review for unreasonableness on appeal is “somewhat easier when the judgment under attack is that of a single judge,” since judges give reasons whereby
the reviewing appellate court may be able to identify a flaw in the evaluation of the evidence, or in the analysis, that will serve to explain the unreasonable conclusion reached, and justify the reversal. [para. 37]
Arbour J.’s comments in Biniaris led to the adoption, in R. v. Beaudry,  1 S.C.R. 190, and R. v. Sinclair,  3 S.C.R. 3, of a narrowly expanded, second avenue of review for unreasonableness. A verdict reached by a judge may be unreasonable, even if supported by the evidence, if it is reached “illogically or irrationally” (Beaudry, at paras….
…. This may occur if the trial judge draws an inference or makes a finding of fact essential to the verdict that is plainly contradicted by the evidence relied on by the judge in support of that inference or finding, or shown to be incompatible with evidence that has neither been contradicted by other evidence nor rejected by the trial judge (Sinclair, at paras. 4, 16 and 19-21; R. v. R.P.  1 S.C.R. 746, at para. 9).
The Beaudry and Sinclair inquiry into illogical or irrational findings or inferences is not an invitation for reviewing judges to substitute their preferred findings of fact for those made by the trial judge (Beaudry, at para. 98)….
… A court of appeal reviewing credibility assessments in order to determine whether the verdict is reasonable cannot interfere with those assessments unless they cannot be supported on any reasonable view of the evidence (R.P., at para. 10; R. v. Burke  1 S.C.R. 474, at para. 7). The inquiry into the logic or rationality of a judge’s essential findings under Beaudry and Sinclair is narrowly targeted at “fundamental flaws in the reasoning process” which means that the verdict was not reached judicially or in accordance with the rule of law (Sinclair, at paras. 4, 26 and 77). [Emphasis added; paras. 28-30]
 … The trial judge found that it was “much more rational, logical, and believable that [A.B.] did what she was being directed to do by Mr. Nagle, that is to hide from the police for fear of getting in trouble.” This finding is not consistent with A.B.’s testimony, which the trial judge professed to have accepted. A.B.’s testimony establishes that she voluntarily placed herself behind the refrigerator in the execution of a “plan” to which she had agreed and the purpose of which was to protect Mr. Nagle.
 It is for these reasons that we agreed with both Mr. Nagle and Crown counsel that the trial judge’s verdict regarding the charge under s. 279(2) of the Code was unreasonable, quashed the conviction, and entered an acquittal on this charge.
B. The conviction for assault causing bodily harm under s. 267(b) of the Code relating to the incident of March 19, 2022
 An assault, as defined in the Code, can occur only where, inter alia, the accused person intentionally applies force to another person, without that person’s consent (s. 265(1)). In the same context, the word “intentionally” has been interpreted to include recklessness (see R. v. D.J.W., 2011 BCCA 522,  B.C.J. No. 2463 (QL), at para. 70, aff’d on appeal to the Supreme Court of Canada at 2012 SCC 63,  3 S.C.R. 396, at para. 1). Consequently, an assault may occur where a person recklessly applies force to another person, without that person’s consent. A person engages in recklessness where they are subjectively aware of the risk associated with their actions and act in disregard of that risk (see Watts v. R., 2022 NBCA 34,  N.B.J. No. 160 (QL), at para. 28).
 In the context of this appeal, and in relation to the incident of March 19, 2022, the judge could convict Mr. Nagle under s. 267(b) of the Code if satisfied that: (1) Mr. Nagle was aware of the risk that slamming the door would result in a non-consensual application of force to A.B.’s body; and (2) Mr. Nagle nevertheless proceeded to slam the door, thereby disregarding the risk of which he was aware.
 … Crown counsel argued that, while this evidence speaks to whether Mr. Nagle purposely slammed the door, it does not speak to whether he recklessly did so. He argued the evidence established that A.B. opened the door in a small and confined space and while in the process of her exit from the premises, Mr. Nagle rushed down the stairs and slammed the door on her hand. He argued the evidence could give rise to a possible inference that Mr. Nagle was subjectively aware that slamming the door could cause an assault upon A.B. yet proceeded to slam the door despite this. He further argued that, while this inference may not be one this Court would have drawn, it was nonetheless an inference which was available for the judge to make.
 On appeal, the issue is whether the inference articulated by Crown counsel was one that no properly instructed jury could reasonably have drawn, thus rendering the conviction unreasonable. Mr. Nagle testified he did not see A.B.’s hand on the doorframe and A.B., herself, testified not only that she did not believe Mr. Nagle intended to slam the door on her hand, but also testified that she was unsure he had seen her hand on the doorframe. Based on the whole of the evidentiary record before the judge, we can come to no other conclusion but that an inference that Mr. Nagle was reckless was not one available for the judge to make and that her conviction of Mr. Nagle under s. 267(b) of the Code in relation to the incident of March 19, 2022, was unreasonable. [Emphasis by PJM]
D. Palpable and overriding errors of fact
 Mr. Nagle alleges the judge committed several palpable and overriding errors of fact related to the incidents of March 19 and 20, 2022. Crown counsel concedes the judge made palpable errors of fact but maintains they were not overriding.
 For an error to be “palpable,” it must be one that is “obvious, plain to see or clear”; an “overriding” error is one that is “sufficiently significant to vitiate the challenged finding of fact” (see J.N.C. v. R., 2013 NBCA 59, at par. 15, citing Waxman v. Waxman,  O.J. No. 1765 (C.A.); Doiron v. R., 2020 NBCA 31, at para. 62). If a palpable error is identified, the Court must then determine whether this error is overriding. If determined not to be overriding, the error will be ascribed little weight in the appellate analysis. Conversely, if determined to be overriding, it will taint the lower court’s decision to a degree such that appellate intervention will be required. A palpable error will be overriding if it goes to the root of the challenged finding of fact such that the trial judge’s conclusion “cannot safely stand on the face of that error” (see J.N.C. v. R., at para. 15, R. v. Doiron, at para. 62). The factual error or misapprehension of evidence will warrant appellate intervention only where it could have affected the outcome (see R. v. Smith, 2021 SCC 16,  S.C.J. No. 16 (QL), at para. 2).
 As the errors relate to the charges of unlawful confinement and assault causing bodily harm stemming from the March 2022 incidents, and considering we allowed Mr. Nagle’s appeal on these charges, set aside those convictions and acquitted him, we will comment no further on the judge’s errors in this regard other than to say the judge did, indeed, commit palpable errors in her findings of fact and credibility.
E. Errors resulting in a miscarriage of justice
(1) Cross-examination of A.B. on her criminal record
 Section 12 of the Canada Evidence Act, R.S.C. 1985, c. C-5, reproduced in Appendix “A” hereto, allows counsel to cross-examine a witness on their criminal record. In addition, an accused may adduce evidence of a victim’s propensity for violence if it is relevant to a fact in issue, for example, an accused advancing a claim for self- defence.
 At trial, during A.B.’s cross-examination, defence counsel tried to question her on her prior criminal history, initially asking about an assault against a police officer. Crown counsel at trial objected, stating that any aspect of A.B.’s criminal record would be irrelevant save and except offences involving deceit or contempt of court “or something along that line,” Recall Mr. Nagle’s testimony relating to the August 2020 incident that A.B. physically assaulted him after seeing a post on his Facebook page. Defence counsel attempted to explain to the judge the reasons for wanting to adduce evidence of A.B.’s acts of physical violence in the past, and specifically referencing A.B.’s claim that, in August 2020, Mr. Nagle assaulted her for no reason and her denial she had been the one to physically assault him that evening. Notably, the judge cut short defence counsel’s explanation, ruling that A.B.’s prior assault conviction constituted “propensity reasoning” and was irrelevant to the current charges. Defence counsel then limited his questions to a public mischief charge on A.B.’s record, which she did not recall and denied committing. Of note, in her confusion, A.B. did briefly testify about her conviction for assaulting a peace officer but based on the judge’s ruling, she would have precluded herself from relying on or considering A.B.’s answers regarding her conviction.
 Crown counsel concedes, and we agree, that the judge erred in curtailing defence counsel’s cross-examination of A.B. In her ruling, not only did the judge ignore the provisions of s. 12 of the Canada Evidence Act, but she also ignored and failed to recognize that Mr. Nagle had a right to adduce evidence of A.B.’s propensity for violence in accordance with the legal principles set out in Regina v. Scopelleti,  O.J. No. 3157 (QL) (see also Kitchen v. R., 2020 NBCA 69,  N.B.J. No. 247 (QL), at para. 23; Rossignol v. R., 2005 NBCA 11, 280 N.B.R. (2d) 312). The judge’s error was two- fold: (1) defence counsel did not require the judge’s permission to cross-examine A.B. on her criminal record; and (2) the judge failed to recognize that A.B.’s prior violent conduct was relevant to a live issue at trial and thus admissible. The judge’s ruling is even more disturbing considering she was the trial judge in Kitchen v. R., wherein this Court ruled that the refusal to allow defence counsel to cross-examine the victim on his propensity for violence was an error in law.
 … Crown counsel concedes, and we agree, that the judge’s error is not minor. It interfered with Mr. Nagle’s ability to adduce admissible evidence with the potential of supporting and corroborating his defence….
V . Disposition
 For the reasons articulated above, at the close of the hearing of Mr. Nagle's appeal, we allowed Mr. Nagle’s appeal, set aside the convictions relating to the incidents of March 20, 2022, under ss. 267(b) and 279(2) of the Code, and entered acquittals on those charges. The conviction under s. 733.1(1)(a) of the Code was undisturbed. In addition, the conviction under s. 267(b) of the Code, relating to the incident of August 24, 2020, was set aside and a new trial was ordered.