Décision

WARNING: The trial court made an order under s. 486.4(1) Cr.C. directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way.

[1]                This is an appeal against findings of guilt by the Court of Quebec[1] on five counts: uttering threats against the appellant’s son,[2] two counts of sexual assault against his partner,[3] assault against his partner[4] and possession of firearms while bound by an order not to possess them.[5]

[2]                For the reasons of Schrager, J.A., with which Gagné, J.A. concurs, and for the reasons of Healy, J.A., THE COURT:

[3]                GRANTS the appeal in part;

[4]                QUASHES the finding of guilt on the count of uttering threats;

[5]                ACQUITS the appellant on the count of uttering threats;

[6]                DISMISSES the remaining grounds of appeal;

[7]                ORDERS the appellant to surrender to correctional authorities not later than June 26, 2023 at noon.

[8]                I agree with the manner that my colleague Justice Healy, J.A., proposes to dispose of the present appeal. Though I do not fundamentally disagree with his treatment of the Appellant’s argument that the guilty verdicts of sexual assault are unreasonable, I feel compelled to offer these concurring reasons.

[9]                I subscribe to the Respondent’s position that there is no contradiction between the acquittals for forceable confinement and the conviction for sexual assault because the acquittals arise from the judge’s erroneous belief that the factual elements upon which the counts of confinement rested needed to be independent of the facts giving rise to the sexual assaults:

I conclude that the Crown has nonetheless not discharged its burden of showing beyond a reasonable doubt that during these sexual assaults, you committed separate acts of forcible confinement. I therefore acquit you (…)

[10]           This constitutes an error of law. An appellate court can reverse a guilty verdict as unreasonable where it is incompatible with another finding of the adjudicating court.[6] However, where the acquittal arises from an error of law, the apparent contradiction can be reconciled so that the guilty verdict is not unreasonable and thus, immune from appellate intervention:[7]

[42]  (…) it is not an appropriate outcome to deem a demonstrably reasonable conviction to be unreasonable because of an inconsistent acquittal that is grounded in a clear legal error.[8]

I do not believe that the Crown need exercise its discretion to appeal the acquittal in order to raise this argument nor for the Court to consider such position in dismissing the argument that the guilty verdict is unreasonable.[9]

[11]           The application of force by the Appellant against the victim in this case was an integral part of both the sexual assaults and of the confinements. The violence forced the victim to act against her wishes and indeed deprived her of her freedom of movement, thus, constituting forceable confinement.[10] This same violence was an integral part of the sexual assaults.

[12]           While the possibility of a conditional stay of proceedings under the Kineapple principle might have been open to the judge, an acquittal for the reason that the behaviour giving rise to the confinements needed to be distinct from the assaults is erroneous. The acquittals are thus reconcilable with the convictions for sexual assault. The latter cannot in the result be considered unreasonable. The instant ground of appeal should fail for this reason.

[13]           I align with my colleague for the disposal of the appeal as he proposes.

[14]           This is an appeal against findings of guilt by the Court of Quebec[11] on five counts: uttering threats against the appellant’s son,[12] two counts of sexual assault against his partner,[13] assault against his partner[14] and possession of firearms while bound by an order not to possess them.[15] He was acquitted of four counts: two counts of assault against his son[16] and two counts of forcible confinement of his partner.[17] The respondent has not appealed against the acquittals.

[15]           The appellant advances three grounds of appeal. The first is a claim that the findings of guilt for sexual assault and assault are unreasonable because they are incompatible with the acquittals for forcible confinement. The second is that the finding of guilt on the count of uttering threats is wrong in law because it misconstrues the element of fault required for proof of the offence. The third is that the findings of guilt are unreasonable because the judge’s reasons with respect to the reliability of the witnesses’ testimony are insufficient for effective appellate review.

[16]           The respondent concedes the second ground of appeal on the basis that the trial judge did not conclude specifically that the element of fault in the offence of uttering requires proof that the accused subjectively intended his words to have an intimidating effect or to be taken seriously.[18] The trial judge had said that “[w]hether analysed objectively or subjectively, […] your words are likely to create […] a reasonable apprehension of real danger of injury if the acts were to be carried out.” The respondent concedes that this formulation fails to distinguish between the objective test of the actus reus in the offence[19] and the subjective element of intent, which means that the judge did not find the required standard of fault proved beyond reasonable doubt.[20] For this reason, the respondent submits that the Court should allow the second ground of appeal and order an acquittal on the count of uttering threats.

First ground: inconsistent verdicts

[17]           Where the appellant claims there is inconsistency between acquittals and findings of guilt, the jurisprudence is clear that the court cannot intervene unless it concludes that the findings of guilt are unreasonable.[21] The inconsistency might be sufficient to support this conclusion but not always because the findings of guilt might otherwise be reasonable conclusions after an assessment of all the evidence before a trier of fact who is properly instructed in law.

[18]           In the present case the appellant claims that the acquittals on charges of forcible confinement are inconsistent with findings of guilt on charges of sexual assault and assault. As all these offences were charged, there are in the abstract three possible conclusions. First, the offences of assault and sexual assault were committed without forcible confinement. Second, the offences of forcible confinement could be committed without proof of the assaults. Third, the evidence could prove both forcible confinement and the assaults. A claim of inconsistent verdicts will succeed only if the evidence that supports the acquittals cannot simultaneously support the findings of guilt.[22] That is the appellant’s position. He claims that the overlapping factual elements underlying these charges are so inextricably linked that the verdicts are necessarily incompatible.[23]

[19]           The respondent’s position is that the correct conclusion would have been the third, thus requiring a conditional stay of findings of guilt for forcible confinement.[24] The judge concluded that the appellant applied force to the complainant but that the evidence did not establish forcible confinement beyond reasonable doubt. The respondent submits that in view of the judge’s acceptance of the complainant’s testimony she erred in law by failing to find the appellant guilty of forcible confinement in the same transactions as the other offences against the complainant.[25] In this respect the respondent notes that the judge concluded in fact that the complainant was physically constrained by force in the same sequence of movements that comprised the assaults. The respondent submits as a result that in these circumstances the judge should have found the appellant guilty of the assaults and forcible confinement but entered a conditional stay on the latter counts.[26]

[20]           The respondent adopts the second approach and argues that the absence of an appeal against the acquittals in no way impugns the findings of guilt on the assaults, which in its view are amply supported by the evidence accepted by the trial judge.[27] As a result, notwithstanding the apparent error of law concerning the counts of forcible confinement, only the reasonableness of the verdict on the other counts remains to be considered.

[21]           The Court accepts the respondent’s submission that the factual determinations should have led the judge to consistent findings of guilt on the charges of forcible confinement and the assaults. It also accepts that the error in acquitting the appellant of forcible confinement does not demonstrate that the findings of guilt on assault and sexual assault are unreasonable.  The respondent’s position in this case is exactly what Moldaver J. described for the Supreme Court in R.V.:

[31] The ultimate inquiry for appellate courts then is whether the verdicts are actually inconsistent. Apparently inconsistent verdicts can be reconciled on the basis that the offences themselves are “temporally distinct, or are qualitatively different, or dependent on the credibility of different complainants or witnesses” (Pittiman, at para. 8). If verdicts are reconciled to reveal a theory on which the jury could have returned the verdicts without acting unreasonably, the verdicts are consistent and appellate intervention is not warranted.

[32] In my view, there are also cases, such as the one at hand, where the Crown can reconcile apparently inconsistent verdicts on the basis that they were the result of a legal error in the jury instructions. For such cases, I propose the following approach. 

[33]  Where the Crown attempts to rebut an apparent inconsistency on the basis of a legal error, the burden shifts from the accused to the Crown. That burden is heavy. The Crown must satisfy the court to a high degree of certainty that there was a legal error in the jury instructions and that the error:

(1) had a material bearing on the acquittal;

(2) was immaterial to the conviction; and

(3) reconciles the inconsistency by showing that the jury did  not find the accused both guilty and not guilty of the same conduct.

[34] If the court can find that these elements are satisfied with a high degree of certainty, the verdicts are not actually inconsistent. Instead, the legal error caused the jury to convict the accused either on different evidence or a different element than it believed was necessary for the charge on which it acquitted the accused. Any apparent inconsistency in the verdicts is thus reconciled, as the jury did not find the accused both guilty and not guilty of the same conduct. It follows that the jury did not act unreasonably in rendering their verdicts.[28]

[22]           In R.V. the Supreme Court noted that the law is unsettled whether the prosecution is obliged to cross-appeal where, as in the present case, it seeks to reconcile apparently inconsistent verdicts on the basis that despite the apparent error in the acquittals the findings of guilt on the remaining counts are independently sound.[29] On this point the Supreme Court affirmed the observation of Paciocco J.A. in Plein: “it is not an appropriate outcome to deem a demonstrably reasonable conviction to be unreasonable because of an inconsistent acquittal that is grounded in a clear legal error.”[30] Central to this view is that the respondent demonstrates that the findings of guilt are not unreasonable.

[23]           Despite the appearance of inconsistent verdicts, the reasons of the trial judge in the present case include unambiguous findings that in the continuous sequence of events between the initial application of force and the completion of the assaults the constituent elements of all three offences charged were proved. Moreover, the findings of the trial judge support the conclusion that the elements of forcible confinement in the sequence of events could not be separated from the elements of assault and sexual assault in such a manner as to prove distinct transactions.

[24]           But it does not follow that the elements of forcible confinement in this case were so indissolubly mixed with the elements of sexual assault and assault that the findings of guilt on those counts were necessarily unreasonable. Forcible confinement requires proof of the application of force caused “for any significant time period,” a deprivation of liberty, or freedom of movement,[31] whereas assault in a case such as this requires proof of the application of force without the consent of the person touched, which might or might not entail a deprivation of freedom of movement and which might have been momentary.

[25]           The respondent does not seek to argue that the acquittals were unreasonable verdicts. It argues that the findings of guilt were independently justified by the judge’s assessment of the evidence of sexual assault and assault because the evidence proves the application of force to the complainant by the appellant without her consent and, in the case of sexual assault, the application of force without her consent in circumstances of a sexual nature.[32] The respondent’s position rebuts the appellant’s claim that the acquittals and the findings of guilt are irreconcilable. The findings of guilt are amply sustainable on the evidence having regard to the constituent elements of the offences charged. Thus, this Court cannot conclude that those findings are unreasonable.

Third ground: sufficiency of reasons concerning the reliability of evidence

[26]           The appellant submits that the findings of guilt on the counts of assault, sexual assault and breach of firearms prohibition are errors of law because the conclusions of reliability are so tainted by contradictions and inconsistencies in the evidence that they cannot exclude reasonable doubt on each of them, thus amounting to unreasonable verdicts.

[27]           While the existence of an unreasonable verdict is characterized as a question of law for the accused, this determination calls for close attention to the factual determinations that explain the basis on which the verdict is based. In this regard the determinations that relate to credibility and reliability demand a high degree of deference on appellate review.

[28]           It is well settled that a judge’s reasons need not recite or examine every conflict or inconsistency in the evidence. The Supreme Court has affirmed that the sufficiency of reasons must be assessed pragmatically and flexibly with attention to the central issues that explain what the judge decided and the evidentiary foundation for those determinations.[33] This approach does not justify or require an exhaustive and surgical catalogue of factual assessments made by the trial judge; nor does it compel a formalized segregation of reasons concerning credibility and reliability.[34] Assuming that the evidence could otherwise allow a reasonable trier of fact to make a finding of guilt, reasons are sufficient, and thus a verdict is reasonable, if the judge identifies positively the grounds for essential conclusions and excludes plausible grounds that would be sufficient to negate them with regard to the applicable standard of persuasion.[35]

[29]           That describes the reasons in the present case, and it will be convenient for purposes of discussion to consider in turn the charges of assault and the breach of the firearms prohibition.

[30]           The judge makes many salient observations about the general context in which this case developed. She notes that there was a long-standing history of turbulent family relations, notably between the appellant and the complainant, but extending to other members as well. She notes that by itself this history discloses many elements that would affect the credibility of witnesses and the reliability of evidence presented at trial. Apart from sources of emotional conflict, she notes multiple instances of contradiction, inconsistency, and misperception in the evidence. At several points, she observes that family relations and discussion among its members presented a broad risk that the credibility of witnesses and the reliability of evidence might be contaminated or otherwise compromised. In short, the reasons of the trial judge make clear her awareness of the real and possible frailties in the evidence that could raise reasonable doubts about the coherence and the strength of the evidence. This is, for example, precisely why she acquitted the appellant of the charges of assault against his son: the evidence was simply insufficient to exclude pervasive doubt concerning the credibility of witnesses and the reliability of their evidence.

[31]           The same scrupulous approach is apparent with respect to the charges of assault and sexual assault against the appellant’s complainant partner. But the result is different. Once again, the judge notes inconsistencies and conflicts that could affect the reliability of the evidence, especially as they relate to the broad context in which events took place and the manner in which the case evolved. There is no question that such frailties are relevant to an assessment of the context of the case as a whole, but the existence of these frailties is insufficient, without more, to render a verdict unreasonable.[36]

[32]           But the decisive questions relate to the evidence of the complainant concerning the application of force to her by the appellant with the necessary element of fault and lack of her consent. After considering all the evidence, and despite any uncertainty concerning the events, the investigation and the presentation of the case, the application of force without consent (or the application of force without consent in a sexual context[37]) was proved beyond reasonable doubt.[38] These conclusions compel a high degree of deference. There is nothing in the evidence or the judge’s assessment of the evidence that could render these verdicts unreasonable on the basis that the trier of fact could not reasonably find them proved to the necessary standard of proof.[39] It certainly cannot be said that the credibility findings of the trial judge cannot be supported as a reasonable conclusion on the evidence presented.[40]

[33]           With respect to the charge of breach of the firearms order, this would appear to be a question of fact that is not properly before the Court because leave was not sought. But, assuming that it can be assimilated to the other grounds that claim an unreasonable verdict, it may be answered swiftly. The firearms order was in force on February 8th, 2018. The uncontradicted evidence of one witness testified that he saw the appellant hunting squirrels with a firearm after that date. Another witness also gave uncontradicted evidence that he saw the appellant with a firearm after that date. There is no basis on which to impugn the judge’s conclusion that this offence was proved beyond reasonable doubt.

[34]           I propose to grant the appeal in part; quash the finding of guilt and acquit the appellant on the count of uttering threats; and dismiss the other grounds of appeal.

[1]  Court of Quebec, Criminal and Penal Division, District of Bedford, File No 455-01-016185-187 (17 March 2021), Honourable Claire Desgens, J.C.Q.

[2]  Criminal Code, R.S.C. 1985, c. C-46, s. 264.1.

[3]  Criminal Code, s. 271(a).

[4]  Criminal Code, s. 266(a).

[5]  Criminal Code, s. 117.01(1).

[6]  R. v. Pittiman, 2006 SCC 9, [2006] 1 S.C.R. 381, para. 6.

[7]   R. v. R.V., 2021 SCC 10, para. 33; R. v. N.T., 2021 ONCA 754, para. 12.

[8]   R. v. Plein, 2018 ONCA 748, para. 42.

[9]   R. v. Bempong, 2022 ONCA 298, paras. 20-25; R. v. Napope, 2022 SKCA 61, paras. 94-98.

[10]   R. v. Sundman, 2022 SCC 31, para. 21.

[11]  Court of Quebec, Criminal and Penal Division, District of Bedford, File No 455-01-016185-187 (17 March 2021), Honourable Claire Desgens, J.C.Q.

[12]  Criminal Code, R.S.C. 1985, c. C-46, s. 264.1.

[13]  Criminal Code, s. 271(a).

[14]  Criminal Code, s. 266(a).

[15]  Criminal Code, s. 117.01(1).

[16]  Criminal Code, s. 266(a).

[17]  Criminal Code, s. 279(2).

[18]  R. v. McRae, 2013 SCC 68, paras. 17-19, 23.

[19]  R. v. Clemente, [1994] 2 S.C.R. 758, 763.

[20]  R. v. O’Brien, 2013 SCC 2, aff’g R. v. O’Brien, 2012 MBCA 6, para. 26. See R. v. Tutino, 2012 QCCA 889, para. 14.

[21]  R. v. Pittiman, 2006 SCC 9, para. 6.

[22]  R. v. R.V., 2021 SCC 10, para. 38; R. v. J.F., 2008 SCC 60, para. 23; R. v. Pittiman, 2006 SCC 9.

[23]  R. v. Pittiman, 2006 SCC 9, para. 8.

[24]  See N.D. v. R., 2006 QCCA 14, paras. 112-115; Francillon v. R., 2010 QCCA 2033, para. 56.

[25]  R. v. J.M.H., 2011 SCC 45, para. 28.

[26]  See note 10, supra.

[27]  See R. v. R.V., 2021 SCC 10, para. 33; R. v. Plein, 2018 ONCA 748; R. v. Horner, 2018 ONCA 971, para. 19. See also R. v. Bempong, 2022 ONCA 298.

[28]  R. v. R.V., 2021 SCC 10, quoting R. v. Pittiman, 2006 SCC 9.

[29]  R. v. R.V., 2021 SCC 10, paras. 46-48.

[30]  R. v. Plein, 2018 ONCA 748, para. 42.

[31]  R. v. Sundman, 2022 SCC 31, para. 21: “  To establish unlawful or forcible confinement under s. 279(2) of the Criminal Code, the Crown must prove that (1) the accused confined another person; and (2) the confinement was unlawful (R. v. Magoon, 2018 SCC 14, [2018] 1 S.C.R. 309, at para. 64). At its core, unlawful confinement involves a deprivation of a person’s liberty (R. v. Bottineau, [2006] O.J. No. 1864 (QL), 2006 CarswellOnt 8510 (WL) (S.C.J.), at para. 117, per Watt J. (as he then was), aff’d 2011 ONCA 194, 269 C.C.C. (3d) 227). Unlawful confinement occurs if, 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 (R. v. Luxton, 1990 CanLII 83 (SCC), [1990] 2 S.C.R. 711, at p. 723; R. v. Pritchard, 2008 SCC 59, [2008] 3 S.C.R. 195, at para. 24; Magoon, at para. 64). The person need not be restricted to a particular place or physically restrained (Magoon, at para. 64; R. v. Gratton (1985), 18 C.C.C. (3d) 462 (Ont. C.A.), at pp. 473 and 475, per Cory J.A. (as he then was); R. v. Lemaigre (1987), 1987 CanLII 4896 (SK CA), 56 Sask. R. 300 (C.A.), at para. 3; M. Manning and P. Sankoff, Manning, Mewett & Sankoff: Criminal Law (5th ed. 2015), at p. 1037). The restraint can be through violence, fear, intimidation or psychological or other means (Magoon, at para. 64). The purpose of the confinement is not relevant (Pritchard, at para. 31; R. v. Kimberley (2001), 2001 CanLII 24120 (ON CA), 56 O.R. (3d) 18 (C.A.), at para. 107; R. v. Johnstone, 2014 ONCA 504, 313 C.C.C. (3d) 34, at para. 45; R. v. Parris, 2013 ONCA 515, 300 C.C.C. (3d) 41, at para. 47).”

[32]  R. v. Ewanchuk, [1999] 1 S.C.R. 330.

[33]  R. v. G.F., 2021 SCC 20, paras. 68-75 and the cases there cited.

[34]  R. v. G.F., 2021 SCC 20, paras. 80-82.

[35]  R. v. W.H., 2013 SCC 22, para. 34.

[36]  See R. v. Jovel, 2019 MBCA 116.

[37]  R. v. Ewanchuk, [1999] 1 S.C.R. 330, para. 24.

[38]  See P.G. v. R., 2021 QCCA, 616.

[39]  R. v. P.(R.)., 2012 SCC 22; R. v. Clark, 2005 SCC 2.

[40]  R. v. E.H., 2020 ONCA 405.