NOVA SCOTIA COURT OF APPEAL Citation: R. v. Deviller, 2005 NSCA 71 Date: 20050428 Docket: CAC 235613 Registry: Halifax Between: Sidney Darrell Deviller v. Her Majesty the Queen Respondent Publication Ban: pursuant to s. 486(3) of the Criminal Code Judges: Cromwell, Chipman and Oland, JJ.A. Appeal Heard: March 23, 2005, in Halifax, Nova Scotia Held: Conviction set aside and a new trial ordered per reasons for judgment of Cromwell, J.A.; Chipman and Oland, JJ.A. concurring. Counsel: Craig M. Garson, Q.C., for the appellant Kenneth W.F. Fiske, Q.C., for the respondent Publishers of this case please take note that Section 486(3) of the Criminal Code applies and may require editing of this judgment or its heading before publication. The subsection provides: (3) Order restricting publication Subject to subsection (4) where an accused is charged with (a) an offence under section 151, 152, 153, 155, 159, 160, 170, 171, 172, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347, (b) an offence under section 144, 145, 149, 156, 245 or 246 of the Criminal Code, chapter C-34 of the of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or (c) an offence under section 146, 151, 153, 155, 157, 166 or 167 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988, the presiding judge or justice may make an order directing that the identity of the complainant or of witness and any information that could disclose the identity of the complainant or witness shall not be published in any document or broadcast in any way. Reasons for judgment: [1] The appellant was convicted of sexual assault. He testified at trial, denying the charge, but the trial judge disbelieved his evidence. On appeal, the appellant says that his conviction is miscarriage of justice because the trial judge based her rejection of his testimony on material misapprehensions of the evidence. [2] In my respectful view, the judge’s reasons for rejecting the appellant’s evidence are based on misapprehension of his evidence because she drew an inference from it that is not supportable in law or logic. It follows, in my view, that the conviction constitutes a miscarriage of justice and must be set aside. II. FACTS AND DECISION AT TRIAL: [3] The appellant appeals his conviction by Crawford, J.P.C. on a charge of sexual assault. [4] The complainant, who was between the ages of and 11 during the period charged in the information, testified that the appellant was frequent visitor in her home. While there, she said that he sexually abused her. She was uncertain as to how often this occurred, but said that it was at least once month. The abuse consisted of touching her vagina with his hand and trying to stick his penis into her vagina. On an unspecified number of occasions, he succeeded in putting his penis partly into her and on occasion he ejaculated. After the alleged abuse came to light, she remembered being taken to see doctor, but did not remember how recently before that she had been sexually abused by the appellant. [5] The doctor testified that she had examined the complainant in early January of 2003 and that she had superficial, one centimetre tear in the perineum stretching towards the anus but no contusions or abrasions. In chief, the doctor opined that she had seen this type of injury more than 30 times and that she had never seen an injury like it that had not been caused by sexual assault. However, in her brief written report and under cross-examination, her evidence was that the injury could have been caused or was likely caused by sexual assault. [6] The appellant testified and denied the charge. [7] The trial judge found that she did not believe the appellant’s evidence and that it did not give rise to reasonable doubt. [2] Applying the test in the Crown against D.W., do not believe the defendant’s denial, nor does it raise reasonable doubt in my mind due to the interior inconsistencies of his testimony and to his decreased credibility because of the criminal record he has for offences of dishonesty. [3] In particular, the defendant attempted to portray himself as being good to the children, including the complainant, as being there to get the meals, as providing food for them. Yet, he admitted on cross-examination that the children had been removed from the home because of allegations of physical abuse and lack of food. [4] He also stated that he spent three or four hours day at their home in their presence, yet asked to never be left alone with them because he was afraid of being charged with sexual abuse. [5] When confronted with his criminal record he was defensive and at first denied recollection until the Court’s reply to an objection by his counsel made it clear that unfounded denials would go to his credibility. (Emphasis added) [8] The appellant raises number of grounds of appeal but, in my view, it is only necessary to address one of them: that the judge’s reasons for rejecting the accused’s testimony and finding that it did not raise reasonable doubt are based on misapprehensions of the evidence. 1. Legal Principles: [9] This Court may allow an appeal in cases such as this if persuaded that there has been miscarriage of justice: see s. 686(1)(a)(iii) of the Criminal Code of Canada, R.S.C. 1985, c. C-46. trial judge’s misapprehension of the evidence may result in miscarriage of justice, even though the record contains evidence upon which the judge could reasonably convict. [10] What is misapprehension of the evidence? It may consist of “... failure to consider evidence relevant to material issue, mistake as to the substance of the evidence, or failure to give proper effect to evidence ...”: R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193 (Ont. C.A.) at p. 218. trial judge misapprehends the evidence by failing to give it proper effect if the judge draws an “unsupportable inference” from the evidence or characterizes witness’s evidence as internally inconsistent when that characterization cannot reasonably be supported on the evidence: Morrissey at p. 217; R. v. C.(J.) (2000), 2000 CanLII 1931 (ON CA), 145 C.C.C. (3d) 197 (Ont. C.A.) at para. 11. In Morrissey, for example, the trial judge stated that the evidence of two witnesses was “essentially the same”, conclusion not supported by the record. This was held to be misapprehension of the evidence. In C. (J.), the trial judge was found to have erred by characterizing the accused’s evidence as “internally inconsistent” when this conclusion was not reasonably supported by the record: at para. 9. [11] Not every misapprehension of the evidence by judge who decides to convict gives rise to miscarriage of justice. conviction is miscarriage of justice only when the misapprehension of the evidence relates to the substance and not merely the details of the evidence, is material rather than peripheral and plays an essential part in the judge’s reasoning leading to the conviction: see Morrissey, supra at 221; R. v. Lohrer, 2004 SCC 80 (CanLII), [2004] S.C.R. 732; S.C.J. No. 76 (Q.L.) at paras. [12] It follows, therefore, that to succeed on appeal, the appellant must show two things: first, that the trial judge, in fact, misapprehended the evidence in that she failed to consider evidence relevant to material issue, was mistaken as to the substance of the evidence, or failed to give proper effect to evidence; and second, that the judge’s misapprehension was substantial, material and played an essential part in her decision to convict. 2. Did the judge misapprehend the evidence? [13] The appellant submits that the judge misapprehended his evidence in relation to his treatment of the children and their removal by the child welfare authorities. As noted earlier, the judge said in her reasons “... the [appellant] attempted to portray himself as being good to the children, including the complainant, as being there to get the meals, as providing food for them. Yet, he admitted on cross-examination that the children had been removed from the home because of allegations of physical abuse and lack of food.” The appellant says that in this passage, the trial judge concluded that he was liar because she erroneously found an inconsistency between him portraying himself as being good to the children when, according to the judge’s erroneous conclusions, he was somehow responsible for physically abusing and starving them. [14] In my respectful view the judge misapprehended the appellant’s evidence on this point because she failed to give proper effect to the evidence. The judge, respectfully, found an inconsistency which is not supported by the record and attributed to this evidence relevance which it does not possess in either law or logic. There was no evidence before the court of the truth of the allegations of mistreatment of the children referred to by the appellant. There was, therefore, no inconsistency in the appellant’s evidence on this point. [15] It will be helpful to review the trial evidence on this point in more detail. [16] The appellant acknowledged in his testimony that he was in relationship with the complainant’s mother and that the mother and he had child together. In all, counting the complainant and that child, there were five children in the household. The appellant testified that while visiting the household, he often made meals and contributed to the purchase of groceries. His evidence-in-chief was: Q. ...And can you describe typical when first of all, when [the complainant’s mother] was living on William Street back in 2001 2002, can you describe or tell us how much time you spent at that residence? A. Well, spent little bit of time, but not all the time, completely all the time. In the mornings used to go to the wharf at night and look after the staynors and unload them and then would say somewhere around 6:00 or 6:30 I’d go and wake up the kids and that, make sure they had their breakfast and that, get ready. Get up and get ready and go to school. Q. And then how long would you stay there in the morning? A. would stay would stay there till somewhere would say 8:00 or 9:00. Just about the time that [the complainant’s mother] was going to school. At the time that she was going to school to upgrade her license or whatever it was that she was doing. And then I’d go from there and go back to work again. Q. And then when would you return back to the residence on William Street? A. would return somewhere around would say around 4:00. Between 3:30 and 4:00. Q. And how much time would you spend there in the afternoon? A. would stay there somewhere between would say about three hours at the most. Three to four hours at the most and would cook the kid’s supper and then after they were done would leave there somewhere around would say between 7:30, 8:00. don’t know exactly. Sometimes would stay little bit longer. Q. ... When did [the complainant’s mother] and the kids move? A. In the year the year 2002. In October. November. In November. We moved in there the 15th think it was the 15th or 14th of November we moved into Chebogue. can’t say for sure. Q. And did you spend any more or any less time at the residence in Chebogue after the family relocated? A. spent maybe an extra hour, that was about it, you know because it was deer hunting time and went down in the woods there and was deer hunting and that and left from there and went home. Q. How was your relationship with the [A.]’s children? A. Well, the way the way everybody says that was bad to them and my relations, figured that was good to the children. loved them very much. (Emphasis added) [17] would just note at this point that the appellant made no bones about the fact that people claimed he treated the children badly, but felt that this was not an accurate assessment of his role. [18] This subject was addressed during cross-examination. The appellant agreed that the children had been removed from the home by Children and Family Services because of allegations of inadequate food and physical abuse. His testimony was: Q. But you’d do anything for the kids. You were talking about how nice you were with the kids, right? You like them. You like [the complainant] best, right? A. Yes. Q. Those those children, where are they now? A. They’re in foster homes. Q. Foster homes. A. don’t know where they’re at, but Q. So they were removed by Children and Family Services? A. Yes, with no permission, er, any information. Only thing come out is that guess it started from the oldest boy said that we were starving him to death. Q. You you agree that part of was because of alleged physical abuse on [N.], right? That’s part of why of they took the children that you know, right? A. Yes. (Emphasis added) [19] There was no evidence as to the truth of the allegations which apparently resulted in the children being removed by Children and Family Services. There was no other relevant evidence about child protection proceedings or the appellant’s treatment of the children other than the complainant. The appellant’s evidence during cross-examination was that the children had been removed on the basis of “no information”. [20] The trial judge saw significant inconsistency between the appellant’s evidence-in-chief and cross-examination on this subject. She said that the appellant “attempted to portray himself as being good to the children...” and yet had admitted on cross-examination “... that the children had been removed from the home because of allegations of physical abused and lack of food.” [21] There are two possible explanations as to how the judge thought that the appellant’s evidence on this subject had “interior inconsistencies.” [22] First, the judge may have thought that the accused was suggesting that he was well regarded for his kindness to the children when, in fact, quite the opposite was the case. But that line of reasoning is not available on this record. The problem with this line of reasoning is that the appellant readily acknowledged in his direct evidence that “everybody” said he did not treat the children well although he thought that he had. The fact that particulars of the nature of his alleged mistreatment were canvassed during his cross-examination does not reveal any inconsistency with respect to how he felt his actions were regarded and the way others regarded them. Quite the opposite: he said in-chief that “... everybody says was bad to them.” This first possible line of reasoning does not justify the judge’s finding of inconsistency in the appellant’s evidence on this point. [23] second possible line of reasoning is this. The judge may have treated the evidence that the children had been removed amidst allegations of abuse as some evidence that the appellant had, in fact, mistreated them. On that line of reasoning, there would be significant inconsistency between the appellant’s stated treatment of the children and his actual treatment of them. This is the appellant’s main point. He submits that the judge found him to be liar because he claimed to have been good to the children when he was in fact responsible for physically abusing and starving them. [24] agree with the appellant that this line of reasoning was not open to the judge on this record. The appellant’s evidence about the involvement of Children’s Services did not permit the judge to draw any inference that the children had, in fact, been badly treated or that the appellant was responsible for such treatment. The appellant did not admit any mistreatment; he testified about an allegation. But an allegation is simply that. It is not evidence of its truth. The appellant’s evidence that Children’s Services acted is not evidence of the truth of the allegations leading to the removal of the children. Drawing such an inference is like inferring guilt from the fact that person is arrested and charged. It was no more inconsistent for the appellant to say that he thought he treated the children well even though Children’s Services had intervened than it would be for person who had been arrested and charged with crime to say that he had not broken the law. [25] Apart from the two possibilities have discussed, there is no other way in which the appellant’s evidence on this subject could be viewed as internally inconsistent. But in the circumstances of this case, either use of this evidence results from failure to give proper effect to the evidence. Either use reveals a chain of reasoning which is not available to the judge in law or in logic on this record. [26] I conclude therefore that the judge misapprehended the evidence on this point by failing to give proper effect to this evidence. 3. Was the evidence substantial, material and essential to the conviction? [27] In my view, the judge’s misapprehension of the evidence was substantial. She ascribed to the evidence about the involvement of Children’s Services, relevance that it simply could not have. The inference which the judge drew from this evidence could not have been more unjustified. [28] The misapprehension was, in my view, also material. Credibility was critical issue at this trial. It was virtually two witness case: the complainant said the appellant abused her and the appellant denied it. Thus, evidence bearing on the appellant’s credibility was highly material to that critical issue. [29] That leaves for consideration whether the misapprehended evidence played an essential part in the judge’s reasoning leading to the conviction. To consider that question, it is helpful to place the misapprehension in the context of both the judge’s reasons as whole and the whole of the evidence at trial. [30] The trial judge gave two main reasons for rejecting the appellant’s evidence. One was the “interior inconsistencies” in his testimony. With respect to these “interior inconsistencies”, the judge refers “in particular” to the evidence which have just discussed in relation to Children’s Services which she misapprehended and to the appellant admitting that he had spent three or four hours day at the children’s home yet testifying that he had asked never to be left alone with them. It bears noting that these are the only two specific “interior inconsistencies” referred to in the judge’s reasons and the reasons do not suggest that there were others which are not specifically mentioned. [31] The judge also referred to second main reason for disbelieving the accused: his “decreased credibility” because of his criminal record for “offences of dishonesty”. [32] It seems, therefore, that these two main points, of which the misapprehended evidence is one of three specific examples, were important to the judge’s conclusion respecting the appellant’s credibility and, therefore, to her finding of guilt. The misapprehended evidence in relation to Children’s Services is, therefore, one of the three matters specifically referred to in the judge’s reasons for rejecting the appellant’s evidence. It is given at least as much emphasis as the others. It was not presented as secondary consideration. The only reasonable conclusion, in my view, is that it was sufficiently important in the judge’s mind that it was an essential part of her reasoning leading to the conviction. [33] An examination of the judge’s other reasons for disbelieving the appellant in the context of the trial record does nothing to detract from the conclusion that this misapprehension was essential to the conviction. The judge’s reasoning on the other points is also problematic. [34] Consider the judge’s second point of supposed internal inconsistency in the appellant’s evidence. As noted, the judge found inconsistency between the appellant’s evidence that he spent three or four hours day in the children’s home and his evidence that he asked never to be left alone with them because he was afraid of being charged with sexual offence. In my respectful view, this finding of inconsistency rests on mistake as to the substance of the appellant’s evidence on this point or at least on questionable adverse interpretation of evidence that was ambiguous. [35] The judge seems to have thought that the appellant said that he had asked not be left with the children as group whereas his testimony seems to have been that he had asked not to be left alone with any one of the children. [36] The appellant’s evidence was as follows: Q. And did you ever spend any time alone with [the complainant] when [the complainant’s mother] was away from the home? A. No, never did. Q. Can you remember one time when you spent time alone with [complainant] at the house? A. No, never, ever asked [the complainant’s mother] never, ever let me leave me alone with none of the children and she asked me why told her. said lot of friends of mine got charged for molesting kids and said wouldn’t want that on me and now have. Q. And you say that you wouldn’t have been alone because you asked [the complainant’s mother] not to leave you alone with the kids because you were afraid A. With none of the children. A. With none of the children. Q. You were afraid that you might be charged with sexual assault or allegations of that? A. No, didn’t say that. said asked her not to leave me with any of her children because had few friends that was charged for that same offence and do not want it on me, is that’s that’s what told her. Q. And so you’re telling us that you never spent time alone with any of those children No, sir. (Emphasis added) [37] The record, in my respectful view, does not support the judge’s conclusion that there was some significant inconsistency within the appellant’s evidence about spending time with the children and his not wanting to be left alone with them. His evidence appears to have been that he asked not to be left alone with any one child, but at the very least, his evidence is equally consistent with that interpretation as the one on which the judge’s finding of inconsistency is based. [38] The judge’s reasons and the record on this point do not in any way undercut the importance of the misapprehension in relation to the involvement of Children’s Services. [39] The judge also said that she rejected the appellant’s evidence because of his criminal record and the way he had testified about it. The appellant admitted in cross-examination that he had several convictions for “break and enter” on his record. In relation to this testimony, the judge said in her reasons that “... [w]hen confronted with his criminal record he was defensive and at first denied recollection until the Court’s reply to an objection by his counsel made it clear that unfounded denials would go to his credibility.” [40] With respect, it is difficult to see in this record either that the appellant “at first denied recollection” or that the judge made it clear to him that “unfounded denials would go to his credibility.” The Crown concedes that the trial judge may have overstated the case in this respect. The appellant’s evidence, in relevant part, was as follows: MR. SCOVIL [Crown counsel]: You told my friend you haven’t been charged with sexual assault at any time, right? A. was charged for indecent exposure, not charged for sexual assault. Q. You were charged and convicted, correct? A. Yes, was. Q. For indecent exposure. A. Yes. Q. That was Q. And was think was 17 years old at the time. Q. In 1996 [sic], correct? You got one month probation on that A. Yes. Or six months probation A. Yes. Q. -and one month custody, correct? A. Well, don’t remember that. A. That’s been quite few years ago. Q. In 1971 [sic] you were convicted and correct me if I’m wrong A. Oh, whoa, go back. What year did you say that was? Q. 1977 [sic]. A. The first time? Q. 1976, sorry. A. No, not me. Sorry, you got the wrong person. Q. You were convicted of indecent exposure. A. No, sir, indecent exposure way back when was about 16 years old. You got two charges there, no, no. No. Q. From the 8th of March, 1976. A. That’s quite few years ago. remember being charged once for for indecent exposure and that was it. Q. You were convicted of break and enter on A. What’s that got to got with this? Q. You were convicted just answer my questions. Q. On the 7th of September, 1971, you were convicted of break and enter and you got three months for that, correct? A. don’t remember. Q. You were convicted of break and enter in 1972 Yes Q. on the 8th of A. If could say something. I’ve been in trouble since was 16 years old Q. No, I’m asking the questions, so you just answer and if Okay, Q. anything that I’m asking is improper A. Okay. MR. ROBICHAUD [Defence counsel]: Your Honour, don’t know if the property related criminal history is relevant to the to the MR. SCOVIL: Well- THE COURT: It’s relevant only to credibility and if the witness answers “yes” or “no” and that’s the end of the matter. We don’t hear any details about the convictions, simply whether or not they happened. MR. SCOVIL: And certainly under Corbett application if one is saying I’ve never been convicted THE COURT: Right. MR. SCOVIL: of this and that, then it raises THE COURT: Then it becomes relevant. MR. SCOVIL: and that’s what was there and therefore and of course those kinds of crimes of dishonesty and THE COURT: Uh, huh. MR. SCOVIL: that effects always question of credibility. THE COURT: Right. MR. SCOVIL: You were convicted on the 8th of May, 1972 of break and enter, again one count and you received suspended sentence of two years, correct? Q. You were convicted in 1973 of three counts of break and enter, one count of theft, er, two counts of theft under for which you received total of six months, is that correct? A. Yes. Q. And in 1974 you were convicted of break and enter and you given 18 months for that, correct? 18 months custody? A. For what year was that? Q. Break and enter. Q. And you already mentioned the indecent exposure. In 1974 you were again convicted of break and enter and you got 90 days intermittent on that. A. Yes. Q. And in 1990, or, 1982, the 5th of January, you were convicted of break and enter for which you received six months, correct? A. Yes. Q. And in 1994 you were convicted of break and enter for which you received suspended sentence and 18 months probation. [41] The accused readily admitted his conviction for indecent exposure and made no attempt to hide the fact that he had been in trouble since he was 16 years old. It is, with respect, not fair summary of the substance of this evidence to say, as the judge did, that the appellant “at first denied recollection” of his criminal record or that his responses changed only when the judge made it “clear to the accused that unfounded denials would go to his credibility”. [42] With respect, the learned trial judge was mistaken as to the substance of the evidence in this regard. Once again, the record on this point does not to my mind in any way undermine the importance of the misapprehension of the evidence in relation to the appellant’s treatment of the children and the involvement of Children’s Services. [43] An examination of the rest of the record does not detract from the centrality of this misapprehension of the evidence to the conviction. The rest of the evidence certainly justified conviction if accepted beyond reasonable doubt. But it had its difficulties. The medical evidence “assisted” the judge, but appears not to have been decisive in her reasoning. As the judge acknowledged in her reasons, there were weaknesses in the complainant’s testimony. The judge appears to have attributed some of these weaknesses to the unduly complicated questions put to the complainant. The judge said that perhaps more helpful answer would have been elicited if the complainant had been asked simply how may times she had been assaulted. Unfortunately, the judge misapprehended the evidence on this point. The record discloses that the complainant was asked precisely that question. [44] I would conclude, therefore, that the judge’s finding adverse to the appellant as regards his credibility is based on a misapprehensions of the evidence. Viewed in the context of the reasons and the record as a whole, that misapprehension played an essential part in the judge’s reasoning leading to the appellant’s conviction. The misapprehension is, therefore, one that gave rise to a miscarriage of justice. V. DISPOSITION: [45] I would set aside the conviction and order a new trial. Cromwell, J.A. Concurred in: Chipman, J.A. Oland, J.A.
The appellant was convicted of sexual assault. The court disbelieved his evidence, principally because it was found to be internally inconsistent. The court found that the appellant had attempted to portray himself as being good to the children but had admitted on cross-examination that the children had been removed from the home due to allegations of physical abuse and lack of food. There was no evidence before the court as to the truth of these allegations and the appellant had stated in his evidence that everyone thought that he treated the children badly. The appellant appealed. Appeal allowed; conviction set aside; new trial ordered. The trial judge misapprehended the evidence because she attributed to it a relevance that it could not have in law or in logic. The appellants evidence about the involvement of Childrens Services did not permit the judge to draw any inference that the children had, in fact, been badly treated or that the appellant was responsible for such treatment. The misapprehension, examined in the context of the judges reasons as a whole and the entire record was substantial, material and played an essential part in the judges reasoning leading to the conviction; the misapprehension had given rise to a miscarriage of justice.