J. 2003 SKQB 170 Q.B.A. A.D. 2002 No. 18 J.C.B. IN THE COURT OF QUEEN’S BENCH JUDICIAL CENTRE OF BATTLEFORD BETWEEN: ROBERT EDWARD TODD and HER MAJESTY THE QUEEN RESPONDENT Roderick M. Gillies for the appellant K. Scott Bartlett for the respondent JUDGMENT APRIL 9, 2003 KRUEGER J. [1] The appellant was convicted on October 23, 2002, of an assault on Dale Yvonne Emery, contrary to s. 266 of the Criminal Code. His sentence was suspended with a one-year probation order. He appeals from the conviction. [2] The stated grounds of appeal are:(a) The learned trial judge erred in law by making findings of fact based on evidence that did not exist;(b) The learned trial judge erred in law by making findings of credibility based on evidence that did not exist;(c) The learned trial judge erred in law by misapplying the appropriate standard of proof. [3] During argument on behalf of the appellant it was suggested that the trial judge made three errors of law leading to the conviction. One of those errors also amounted to an error of fact; (i) The trial judge referred to photographs depicting the extent, location and nature of injuries suffered by the complainant when no photographs existed or if they did were never tendered in evidence. This also amounted to an error of fact or mixed law and fact. (ii) Although correctly articulating the test in R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, the trial judge misapplied the test in determining credibility. (iii) The trial judge failed to apply the appropriate test for a defence of necessity. STANDARD OF REVIEW [4] Summary conviction appeals are authorized by s. 813 of the Criminal Code. The powers of the appeal court pursuant to s. 822 are the same as for the Court of Appeal under s. 686. The applicable portions of s. 686 are: 686. (1) Powers On the hearing of an appeal against conviction or against verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal (a) may allow the appeal where it is of the opinion that (i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence, (ii) the judgment of the trial court should be set aside on the ground of wrong decision on question of law, or (iii) on any ground there was miscarriage of justice; (b) may dismiss the appeal where (i) the court is of the opinion that the appellant, although he was not properly convicted on count or part of the indictment, was properly convicted on another count or part of the indictment, (ii) the appeal is not decided in favour of the appellant on any ground mentioned in paragraph (a), (iii) notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph (a)(ii) the appeal might be decided in favour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred; 686(2) Order to be made Where court of appeal allows an appeal under paragraph (1)(a), it shall quash the conviction and (a) direct judgment or verdict of acquittal to be entered; or (b) order new trial. EVIDENCE PHOTOGRAPHS [5] In rendering his decision the trial judge, after reviewing the appropriate standard, turned his attention to the evidence of the complainant. He stated at page 263 of the transcript: But this young lady was in relationship with the accused person, went up there to this cabin with no reason for apprehension whatever, and was suddenly subjected to this very pronounced mood change by the accused on his part, and she went ahead to describe in this court carefully series of events which involved the accused subjecting her to physical force, and we’ve seen photographs of some of her injuries and we’ve heard, of course, evidence of what her injuries were. [Emphasis added] [6] There were no photographs of any injuries introduced into evidence at the trial. The emphasized portion of the trial judge’s statement amounted to an error in law. Generally the judgment of trial court is set aside when wrong decision is made on question of law. An exception is when no substantial wrong or miscarriage of justice has occurred. [7] Section 265(1)(a) of the Criminal Code provides that person commits an assault where without the consent of the victim force is applied either directly or indirectly. If believed, there was evidence that after an argument developed between the appellant and the complainant in the truck in which they were riding, she fled into dense bush. The appellant pursued her and after further argument proceeded to physically force the complainant’s return to the truck. That force need not have resulted in physical injuries to constitute an assault. If applied without the consent of the complainant the force amounted to an offence under s. 266 of the Criminal Code. [8] Finding that there were photographs to corroborate the testimony of the complainant relating to her injuries was an error of law. No miscarriage of justice resulted from that error. It was immaterial whether there were injuries. The conviction cannot be set aside for that error of law alone. CREDIBILITY [9] The appellant denied that injuries suffered by the complainant resulted from the manner in which he returned her to the truck. He explained how the complainant could have injured herself when attempting to kick him while they were both seated on the ground. [10] As already stated, it was not necessary for the Crown to prove that the force used by the appellant caused physical injuries. If, however, believing in the existence of photographs enhanced the credibility of the complainant it could lead the trial judge to an error in law. At the top of page 263 of the transcript the trial judge assessed the evidence of the complainant this way: It was my assessment of her evidence that she was truthful witness. There are, as both Counsel have noted, number of features of this case where there’s no in effect, certain things are not subject to dispute, things that were agreed to by both the Crown witnesses and the accused. The trial judge clearly preferred the testimony of the complainant to that of the appellant where their recollection of events differed. He did not state why he preferred her testimony. [11] When applying the test required by R. v. W. (D.), supra, the trial judge stated at page 264: His (the accused’s) evidence does not leave me in situation where he has created reasonable doubt in my mind, and the third step in the W.D. case, am left in situation where on the basis of the evidence accept, am convinced beyond reasonable doubt by that evidence of the guilt of the accused. [12] Mr. Justice Cory, of the Supreme Court of Canada, in R. v. W. (D.) stated that where credibility is in issue, the trier of fact must follow three rules: (a) if the accused is believed, there must be an acquittal; (b) if the accused is not believed, but his/her evidence raises reasonable doubt as to guilt, there must be an acquittal; (c) even if left in no doubt by the evidence of the accused, the trier of fact must be convinced beyond reasonable doubt by all of the evidence before the accused can be convicted. The trial judge correctly stated, considered and applied the test where credibility is in issue. I am unable to conclude that his belief in the existence of photographs influenced his finding of credibility. Even if it did, there was still ample evidence to support a prima facie case of assault. Again no miscarriage of justice resulted. [13] Much of the appellant’s evidence was devoted to presenting defence of necessity. The appellant testified that when the complainant left his truck and retreated into the dense brush he became concerned for her safety. It was then approaching dusk and they were too far from his cabin for her to find her way back to civilization. The appellant was conscious of bears and insects that could threaten the welfare of the complainant at night. After considering as an alternative leaving to notify the police, the appellant decided that his most reasonable course of action was to force the complainant back to the truck for her own safety. [14] At page 264 the trial judge dealt with the defence of necessity: The defence of necessity as skillfully and carefully explained by both Counsel simply cannot apply to this situation when do not and will not believe the accused’s account of how her injuries came about, which largely [sic] and culminated in his explanations of his attempt to save her from various dangers that may well exist in the bush and in the country and in the night. The Supreme Court of Canada in R. v. Latimer (2001), 2001 SCC (CanLII), 150 C.C.C. (3d) 129, directed that three elements must be present for defence of necessity. There must be imminent peril or danger, an absence of reasonable alternative and proportionality between the harm inflicted and the harm avoided. The defence of necessity is considered in cases where there is an air of reality to it. That means that there must be sufficient evidence, if believed, to justify an acquittal. [15] In his reference to the defence of necessity, the trial judge stated at the bottom of page 264: So for that defence to apply, it has to be on an evidentiary basis, and simply cannot accept his evidence as giving foundation for the legal defence of necessity to be triggered by this factual situation. Clearly, these situations vary from case to case markedly. It is clear from the comments of the trial judge that he did not accept the appellant’s testimony when he stated that he did not cause injuries in forcing the complainant’s return to the truck. Crown counsel argued that the trial judge also did not accept the appellant’s testimony that he used force only to protect the complainant from the natural hazards that existed in that location at night. In support of that argument, the court was referred to the concluding comments made by the trial judge at page 265: So again, feel that all the witnesses were careful in attempting to be truthful with their evidence. Where it varies from the evidence of the accused on these points, do accept the evidence of Ms. Emery in preference to his evidence. [Emphasis added] The reference to “on these points” it was suggested relate to the appellant’s reasons for the use of force. [16] The complainant did not testify as to the conditions in the bush other than to acknowledge that she would not have been able to find her way back to the appellant’s cabin. She became frightened by the sudden verbal outburst of the appellant, fled into the bush and refused to return because the appellant’s mood had not changed. The only evidence presented relating to the defence of necessity came from the appellant. [17] If the trial judge believed the appellant when he spoke of the perils that existed at night in the bush and of the lack of reasonable alternatives, there was some evidence that could amount to an air of reality. In such case he ought to have embarked upon consideration of the three elements prescribed by the Supreme Court of Canada. cannot agree with Crown counsel that the concluding remarks by the trial judge indicated that he was not accepting any evidence of the accused.. The final comments of the trial judge do nothing to extend his disbelief about causing injuries to all of the appellant’s evidence. In my view, the trial judge failed to properly consider the defence of necessity. That was an error of law. [18] It would not be appropriate in the circumstances of this case to substitute an acquittal for the conviction. Had the trial judge applied the appropriate test, he may have come to the same conclusion. Accordingly, I allow the appeal, set aside the conviction and order a new trial before a judge of the Provincial Court for Saskatchewan.
The appellant, who received a suspended sentence with a one year probation order, appealed his conviction of assault (Criminal Code s.266) on the grounds the trial judge erred in law in making findings of fact and credibility based on evidence that did not exist (photographs of injuries that were not introduced into evidence at trial); by misapplying the appropriate standard of proof; although correctly articulating the test in R. v. W(D), misapplying that test in determining credibility; by failing to apply the appropriate test for a defence of necessity. The complainant, frightened by the sudden verbal outburst of the appellant, fled into the bush and refused to return because his mood had not changed. The trial judge did not accept the appellant's testimony that he used force only to protect the complainant from natural hazards in that location at night. HELD: The appeal was allowed. The conviction was set aside and a new trial was ordered. 1)Finding that there were photographs to corroborate the testimony of the complainant relating to her injuries was an error of law. No miscarriage of justice resulted from that error, as it was immaterial.  2)The trial judge clearly preferred the testimony of the complainant to that of the appellant but did not state why. It could not be concluded that his belief in the existence of photographs influenced the findings of credibility. Even if it did, there was still ample evidence to support a prima facie case of assault. Again no miscarriage of justice resulted. 3)The trial judge erred in law by failing to properly consider the defence of necessity. The three elements that must be present for a defence of necessity, as determined by the SCC in Latimer, include imminent peril or danger; absence of reasonable alternatives; proportionality between the harm inflicted and the harm avoided. The defence of necessity is considered in cases where there is an air of reality. The only evidence relating to the defence of necessity came from the appellant. It would not be appropriate in the circumstances of this case to substitute an acquittal. Had the trial judge applied the appropriate test, he may have come to a different conclusion.