SUPREME COURT OF CANADA
Between:
Her Majesty The Queen
Appellant
and
Terrence Sinclair
Respondent
- and -
Director of Public Prosecutions of Canada
and Attorney General of Ontario
Interveners
Coram: McLachlin C.J. and Binnie, LeBel, Deschamps,
Fish, Abella, Charron, Rothstein and Cromwell JJ.
Reasons
Dissenting in Result:
(paras. 1 to 42)
Reasons for
Judgment:
(paras. 43 to 63)
Reasons
Concurring in Result With Those of LeBel J.:
(paras. 64 to 86)
Reasons
Concurring in Result With Those of LeBel J.:
(para. 87)
|
Fish J. (McLachlin C.J. and Binnie and Cromwell JJ.
concurring)
LeBel J. (Deschamps and Rothstein JJ. concurring)
Charron J.
Abella J.
|
R. v. Sinclair, 2011 SCC 40, [2011] 3
S.C.R. 3
Her Majesty The Queen Appellant
v.
Terrence Sinclair Respondent
and
Director of
Public Prosecutions of Canada
and Attorney General of Ontario Interveners
Indexed as: R. v. Sinclair
2011 SCC 40
File No.: 33359.
2010: December 14; 2011: July 28.
Present: McLachlin C.J. and Binnie, LeBel,
Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.
on appeal from the court of appeal for manitoba
Criminal law — Appeals
— Powers of Court of Appeal — Unreasonable verdict — Misapprehension of
evidence — Accused convicted of manslaughter — Court of Appeal setting aside
conviction on basis of trial judge’s misapprehension of evidence — Whether
Court of Appeal applied proper test in setting aside conviction — Whether trial
judge misapprehended evidence — Criminal Code, R.S.C. 1985, c. C-46,
s. 686(1) (a)(i).
A driver observed
three males kicking and stomping Adam Lecours on a roadway. They left him
lying on the street bleeding. Another driver failed to see Mr. Lecours
lying in the road in time to avoid hitting him. Mr. Lecours died from his
injuries. The trial judge convicted accused and a co‑accused of
manslaughter. The Court of Appeal set aside the conviction on the basis that
the trial judge had misapprehended evidence by accepting that there was evidence that the accused
had planned to go out to commit a robbery together with his co‑accused
and a youth, and by inferring from this evidence that the accused was with his
co‑accused at the scene of the crime. In setting aside the conviction,
the Court of Appeal partially based its decision on this Court’s decision in R.
v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190.
Held (McLachlin C.J and Binnie, Fish and
Cromwell JJ. dissenting): The appeal should be allowed. The
order for a new trial should be set aside and the conviction restored.
I. The Beaudry Issue
Per McLachlin C.J. and Binnie, Fish and
Cromwell JJ.: R. v. Beaudry has no application to the error
committed by the trial judge in this case. This error falls squarely within R.
v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732. Nothing in Beaudry
modifies the principles set out in R. v. Yebes, [1987] 2 S.C.R. 168, and
R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381. Yebes and Biniaris
continue to apply where the issue is whether the verdict could have been
reached reasonably by a properly instructed jury or a judge sitting alone. Beaudry
serves an important function of limited scope on an appellate review for
unreasonableness under s. 686(1) (a)(i) of the Criminal Code . It
addresses the reasonableness of the judge’s verdict, notably by scrutinizing
the logic of the judge’s findings of fact or inferences drawn from the evidence
admitted at trial. A trial judge who is not mistaken as to the evidence
but reaches a verdict by an illogical or irrational reasoning process commits
an error under Beaudry. A misapprehension of evidence invites appellate
scrutiny under Lohrer. To conflate these conceptually distinct errors
is to disregard the rationale of Beaudry and the jurisprudential gap it
fills.
A verdict reached illogically or
irrationally is “unreasonable” because it is not reached judicially, or in
accordance with the rule of law. Further, as stated in Beaudry, a
verdict that was reached illogically or irrationally is hardly made reasonable
by the fact that another judge (who never did and never will try the case)
could reasonably have convicted or acquitted the accused. A court of appeal
may intervene pursuant to Beaudry where a trial judge draws an inference
or makes a finding of fact that is plainly contradicted by the evidence relied
on for that purpose by the judge or that is demonstrably incompatible with
evidence that is not otherwise contradicted or rejected by the trial judge.
Unreasonable verdicts of this sort are rare. But when they do occur, appellate
courts are authorized — indeed bound — to intervene.
Per LeBel, Deschamps and
Rothstein JJ.: The Court of Appeal erred in law to the extent that it
based its judgment on R. v. Beaudry. Beaudry has no application
to a mistake as to the substance of the evidence. Rather, errors of this sort
are governed by the standard set out in R. v. Lohrer. Beaudry
expanded the traditional scope of s. 686(1) (a)(i) of the Criminal
Code . Fish J. carried a majority in Beaudry on the question
whether a verdict reached “illogically or irrationally” was “unreasonable”
within the meaning of s. 686(1) (a)(i) and his reasons in Beaudry
represent the state of the law on this point. Furthermore, the reasons of
Fish J. in this case correctly reflect the position that was taken by the
majority in Beaudry, and there is concurrence with his reasons to that
extent.
Per Abella and Charron JJ.: The Court of
Appeal should not have rested its judgment on R. v. Beaudry. Beaudry
did not change any of the existing tests for appellate review under
s. 686(1) (a). Beaudry did, however, effect an expansion of
the test for unreasonableness under s. 686(1) (a)(i). The expanded
test for unreasonableness is better understood if the focus remains on the
verdict reached at trial, rather than on the kind of errors that may have
occurred in the appreciation of the evidence or in the fact‑finding process.
While the reviewing court may now consider flaws in
the reasoning process in the assessment for reasonableness, the focus must
remain on the conclusion reached at trial. A verdict‑focussed
approach avoids reviewing courts having to make rather fine distinctions
between different types of mistakes in order to identify the applicable test.
It is also more consistent with the wording, legislative context and history of
s. 686(1) (a)(i) of the Criminal Code . Any error in reasoning identified under the Beaudry test
must be carefully assessed in context to determine whether it vitiates the
verdict. It would be wrong to conclude that whenever there is an error in
reasoning, even if of the kind “demonstrably incompatible” with the
uncontradicted evidence at trial, the verdict is unreasonable.
Under a s. 686(1) (a)(i)
inquiry in judge‑alone trials, the reviewing court should first apply the
Yebes/Biniaris test. If the verdict is not one that a properly
instructed jury, acting judicially, could reasonably have rendered on the
evidence as a whole, the inquiry is over, and an acquittal is entered. If the
verdict is available on the evidence, the reviewing court may go on to assess
the reasonableness of the verdict under the Beaudry test by scrutinizing
the actual findings of fact and inferences made by the trial judge. It is not necessary to conduct this assessment in every
case. The Beaudry test may apply in exceptional cases where the
reasoning process is so irrational, or so at odds with the evidence, that it
vitiates the verdict — even though that verdict is available on the evidence as
a whole. In these
rare cases where Beaudry applies, a new trial is ordered, as the court
will already have determined that the verdict is otherwise available on the
evidence.
II. The Application of R. v. Lohrer
Per LeBel, Deschamps, Abella and
Rothstein JJ.: The Court of Appeal erred in its application of Lohrer.
It failed to identify any error that justified appellate intervention. The
trial judge did not find that the accused was involved in a plan to commit a
robbery and she did not rely on such evidence to infer that the accused was
with his co‑accused throughout the night and was therefore one of the
assailants. The trial judge based her finding that the accused was present at
the crime scene on other evidence: he was out of the residence at the same
time as his co‑accused at time of the assault; he knew that his co‑accused
had been stabbed and stormed into the house minutes after the incident; he led
efforts to locate his co‑accused; DNA linked the co‑accused to the
crime; and the co-accused’s blood was found on the accused’s jeans and hoodie.
Nothing supports a finding that she accepted the Crown’s theory of a planned
robbery, and her reasoning discloses no mischaracterization of the evidence.
Furthermore, the Court of Appeal referred to the trial judge’s “apparent
acceptance” of evidence that the accused had planned to commit robbery with his
co‑accused. Ordering a new trial based on a misapprehension of evidence
requires more than an apparent mistake. The reasons must disclose an actual
mistake.
Even if the trial judge did err,
the misapprehension was not materially linked to her verdict. The accused was
charged with manslaughter, not conspiracy to commit robbery. In light of the
circumstantial evidence the trial judge accepted, it cannot seriously be
doubted that she would nonetheless have found the accused was at the crime
scene at the time of the assault.
Per Charron J.: The trial judge did
not misapprehend the evidence. For the reasons set out by LeBel J., the
Court of Appeal erred in finding that the trial judge made an error that met
the standard set out in R. v. Lohrer.
Per McLachlin C.J. and Binnie, Fish and
Cromwell JJ. (dissenting): The trial judge misapprehended the substance
of the evidence on a material matter, and the Court of Appeal explicitly and
correctly applied the Lohrer test. The Court of Appeal’s reference to
the trial judge’s apparent acceptance that there was evidence of the accused
and his two co‑accused planning to go and commit another robbery aptly
describes an actual mistake. The trial judge’s mistaken view of the evidence
coloured her evaluation of the other circumstantial evidence upon which the
Crown relied. The supposed plan of the accused and his co‑accused to
stay together throughout the night underpinned her inference that the accused
was at the scene of the crime. The evidence does not establish the accused’s
participation in the assault or his presence at the assault. No DNA evidence
links him to the scene. Most importantly, even if his presence at the scene
had been established, that would not have proven that he participated in the
assault.
Cases Cited
By Fish J. (dissenting)
Applied: R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732; explained: R.
v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190; referred to: R.
v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869; R. v. Yebes, [1987]
2 S.C.R. 168; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381; R. v. Morrissey (1995),
97 C.C.C. (3d) 193; R. v. Pittiman, 2006 SCC 9, [2006]
1 S.C.R. 381.
By LeBel J.
Applied: R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732; explained:
R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190; referred
to: R. v. Yebes, [1987] 2 S.C.R. 168; R. v. Biniaris,
2000 SCC 15, [2000] 1 S.C.R. 381; R. v. O’Brien, 2011 SCC 29, [2011] 2
S.C.R. 485; R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5; R. v. Morrissey (1995), 97 C.C.C. (3d) 193.
By Charron J. (concurring with LeBel
J. in the result)
Applied:
R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732; explained:
R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190; referred to: R.
v. Yebes, [1987] 2 S.C.R. 168; R. v. Biniaris, 2000 SCC 15, [2000] 1
S.C.R. 381; R. v. Morrissey (1995), 97 C.C.C. (3d) 193; R. v. Pittiman,
2006 SCC 9, [2006] 1 S.C.R. 381; R. v. Jaw, 2009 SCC 42, [2009] 3 S.C.R.
26.
By Abella J. (concurring with LeBel J. in the result)
Referred to: R. v.
Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190.
Statutes and Regulations
Cited
Criminal Code, R.S.C. 1985, c. C‑46,
ss. 686(1) (a), (b).
Authors Cited
Canadian Oxford Dictionary, 2nd ed. Don Mills, Ont.: Oxford University
Press, 2004, “apparent”.
APPEAL from a judgment of the Manitoba Court of Appeal
(Monnin, Hamilton and Freedman JJ.A.), 2009 MBCA 71, 240 Man. R. (2d) 135, 456 W.A.C. 135, 245 C.C.C.
(3d) 331, 69 C.R. (6th) 163, [2009] 8 W.W.R. 581, [2009] M.J. No. 252
(QL), 2009 CarswellMan 342, setting aside the conviction entered by Simonsen
J., 2007 MBQB 219, 219 Man. R. (2d) 63,
[2007] M.J. No. 324 (QL), 2007 CarswellMan 352, and ordering a new trial.
Appeal allowed, McLachlin C.J and Binnie, Fish and Cromwell JJ. dissenting.
Elizabeth A.
Thomson and Ami Kotler, for
the appellant.
Richard J.
Wolson, Q.C., and Evan J. Roitenberg, for
the respondent.
James D.
Sutton and Carole Sheppard, for
the intervener the Director of Public Prosecutions of Canada.
Joan
Barrett, for the intervener the Attorney General of Ontario.
The reasons of McLachlin C.J. and Binnie,
Fish and Cromwell JJ. were delivered by
Fish
J. (dissenting) —
I
[1]
Terrence Sinclair was tried and convicted of
manslaughter in the Manitoba Court of Queen’s Bench (2007 MBQB 219, 219 Man. R.
(2d) 63). The Court of Appeal set aside Mr. Sinclair’s conviction and ordered a
new trial (2009 MBCA 71, 240 Man. R. (2d) 135). This is an appeal by the Crown
against that judgment, with leave of the Court, and the issue raised concerns
the governing test for unreasonable verdicts under s. 686(1) (a)(i) of
the Criminal Code, R.S.C. 1985, c. C-46 , pursuant to R. v. Beaudry,
2007 SCC 5, [2007] 1 S.C.R. 190.
[2]
I agree with the Court of Appeal that the
appellant’s conviction must be set aside and that a new trial must be had.
More particularly, and with respect, I agree that the trial judge
misapprehended the substance of the evidence on a material matter and that this
error was essential to the trial judge’s reasoning. Finally, I agree that the
trial judge’s misapprehension of the evidence is therefore fatal to her
verdict.
[3]
While a verdict that rests on a mistake as to
the substance of the evidence may well be “unreasonable” in the broad sense of
that term, Beaudry has no application to errors of this sort. Rather,
they are governed by R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732.
Nor does Beaudry govern trial court decisions that are rendered
inscrutable by an absence of sufficient reasons, as in R. v. Sheppard,
2002 SCC 26, [2002] 1 S.C.R. 869.
[4]
Nothing in Beaudry should be taken as a
departure from the well-established principles of appellate review set out in R.
v. Yebes, [1987] 2 S.C.R. 168, and R. v. Biniaris, 2000 SCC 15,
[2000] 1 S.C.R. 381. Yebes and Biniaris continue to apply where
the issue is whether the verdict could have been reached reasonably by a
properly instructed jury or a judge sitting alone. Beaudry, as we shall
see, involves a narrower inquiry. Its concern is whether it can be seen from
the reasons for judgment that the trial judge’s conclusion ― that is to
say, the judge’s verdict ― was reached illogically or
irrationally. As Justice Charron puts it, Beaudry is concerned with
“fundamental flaws in the reasoning process that led to [the trial judge’s
verdict]” (para. 77).
[5]
In short, Beaudry serves an important
function of limited scope on an appellate review for unreasonableness under s. 686(1)(a)(i) of the Code. And I agree with the Crown that the Court of Appeal, to the extent
that it appears in some measure to have done so, should not have rested its
judgment in this case on Beaudry. The decisive error it identified
does, however, fall squarely within Lohrer, and the Court of Appeal,
notably at paras. 94-97 of its judgment, applied the Lohrer test
explicitly and correctly. I would affirm the judgment of the Court of Appeal
for that reason, and for the reasons that follow.
II
[6]
Mr. Sinclair was jointly tried with Dallas
Pruden-Wilson on charges of manslaughter and aggravated assault. The trial
judge convicted them both of manslaughter. Having concluded that a new trial
should be had, I will say no more about the facts than is necessary to explain
my conclusion.
[7]
Essentially, the trial judge rested her finding
of guilt on the circumstantial evidence adduced by the Crown. In her view,
that evidence supported the inferences that Mr. Sinclair and the co-accused
were together throughout the night and that Mr. Sinclair participated in the
assault of the victim, Adam Lecours. It is undisputed that Mr. Lecours was
left lying in the street by his assailants, where he was later run over and
killed by a passing automobile.
[8]
In her reasons for judgment, the trial judge
began by noting what she understood as a reference by the Crown to “evidence
that, prior to the assault, [Mr.] Pruden-Wilson, [Mr.] Sinclair and [a] youth
[separately charged] planned to go out together to commit another robbery”
(para. 21). This, along with evidence that the three accused were out of the
house at the same time and other apparently incriminating circumstantial
evidence, satisfied the trial judge that Mr. Sinclair was guilty of
manslaughter (paras. 21-22).
[9]
The Court of Appeal set aside the verdict
unanimously. In the court’s view, the trial judge’s reasons were generally
“clear, comprehensive, cogent and consistent with the evidence” (para. 72), but
contained a fatal error. The trial judge, said the court, had misapprehended
the evidence on an essential point: She mistook for evidence the Crown’s
theory concerning a planned second robbery and Mr. Sinclair’s presence
when it was committed (para. 94).
[10]
After a thorough review of the entire trial
record, the Court of Appeal concluded that no such evidence had been adduced,
and that the inference drawn by the trial judge was thus based in part on
non-existent testimony. Because there may nonetheless have been “evidence
capable of supporting a conviction”, it ordered a new trial (paras. 99-100).
III
[11]
The Court of Appeal framed the issue before it
this way:
We must, therefore, ask whether in reaching
her verdict, the judge relied (and, we would add, on a material matter) on
evidence not in the record. If she did, then according to Beaudry,
her reasons cannot serve as a basis for the verdict. [Emphasis added; para.
93.]
[12]
I agree, of course, that a verdict based on an
erroneous understanding of the evidence with regard to a material matter cannot
support a finding of guilt. As mentioned earlier, I agree as well that this
sort of misapprehension of the evidence may well render the verdict at trial
“unreasonable” within the meaning of s. 686(1) (a)(i) of the Criminal
Code .
[13]
In R. v. Morrissey (1995), 97 C.C.C. (3d)
193 (Ont. C.A.), Doherty J.A. explained that misapprehensions of the evidence
include not only a mistake as to the substance of the evidence, but also “a
failure to consider evidence relevant to a material issue” and “a failure to
give proper effect to evidence” (p. 218). I agree with Justice Doherty that
“[i]n cases tried without juries, a finding that the trial judge did
misapprehend the evidence can . . . figure prominently in an argument that the
resulting verdict was unreasonable” (p. 220).
[14]
While a misapprehension of the evidence may help
to establish that a verdict is unreasonable within the meaning of Yebes and
Biniaris, Beaudry does not govern an error of this sort.
[15]
Rather, the Beaudry test addresses the
reasonableness of the judge’s verdict, notably by scrutinizing the logic of the
judge’s findings of fact or inferences drawn from the evidence
admitted at trial. A trial judge who is mistaken as to the evidence admitted
at trial misapprehends the evidence, inviting appellate scrutiny under Lohrer,
not Beaudry; a trial judge who is not mistaken as to the evidence but
reaches a verdict by an illogical or irrational reasoning process commits an
error under Beaudry, not Lohrer. These are conceptually distinct
errors. To conflate them is to disregard the rationale of Beaudry and
the jurisprudential gap it has filled.
[16]
An appellate court will thus be justified in
intervening, pursuant to Beaudry, where a trial judge draws an inference
or makes a finding of fact that is (1) plainly contradicted by the evidence
relied on for that purpose by the judge, or (2) demonstrably incompatible with
evidence that is not otherwise contradicted or rejected by the trial judge.
[17]
In Beaudry, all nine justices
agreed that a verdict may be unreasonable even if supported by the evidence.
While four members of the Court pointed in this regard only to inconsistent
verdicts (R. v. Pittiman, 2006 SCC 9, [2006] 1 S.C.R. 381, at para. 14,
cited in Beaudry, at para. 57), five justices characterized as
unreasonable, within the meaning of s. 686(1) (a)(i) of the Criminal Code , decisions by a trial judge “reached illogically or irrationally”
(my reasons, at para. 97; Binnie J., concurring in substance, at paras. 77-80).
[18]
I think it helpful, for the sake of context, to
reproduce here this passage from my reasons in Beaudry:
It
is important to remember that the unreasonable verdict
test has more often than not been described and explained in cases involving
jury trials, where particular considerations govern: See, for example, R. v.
Yebes, [1987] 2 S.C.R. 168.
Unlike
judges, juries are neither required nor even permitted to give reasons. Their
reasons, in this country at least, are forever shrouded in the compelled
secrecy of their deliberations: Section 649 of the Criminal Code prohibits
the disclosure, subject only to narrow exceptions, of any information relating
to the proceedings of a jury. Why the jury concluded as it did is thus beyond
the ken of the court, both at trial and on appeal.
Appellate
courts are no more entitled to speculate about than to
know how or why the jury reached its verdict. The jury is presumed to have been
composed of reasonable people acting reasonably. It follows that its verdict
must be deemed to be reasonable unless no properly instructed jury could
reasonably have reached that verdict or, in the words of s. 686(1) (a)(i),
it “cannot be supported by the evidence”.
The
same, however, cannot be said for the verdict of a
judge. The delivery of reasoned decisions is inherent in the judge’s role: R.
v. Sheppard, [2002] 1 S.C.R. 869, 2002 SCC 26. And evaluating the
reasonableness of those reasons is not a matter of speculation. Moreover, while
the necessary degree of detail will vary according to the circumstances of the
case, the reasons must be sufficient to permit meaningful review on appeal.
There would be no need for this requirement if the sole test of
unreasonableness under s. 686(1) (a)(i) is whether there is any evidence
capable of supporting the verdict. [Emphasis in original; paras. 90-93.]
[19]
Illogical or irrational reasoning can render
verdicts unreasonable under s.
686(1)(a)(i) of the Code, in various ways. Beaudry identifies two. First, a verdict is unreasonable
where the judge draws an inference or makes a finding of fact essential to the
verdict that is “plainly contradicted by the very evidence from which it was
drawn” or upon which it has been made to rest (para. 105). In that case, the
essential finding is illogical or unreasonable in light of the evidence relied
upon in making the finding. Here, the rule of law speaks the language of
logic: From accepted evidence “X”, a court cannot lawfully infer “not X”.
[20]
I found in Beaudry that the trial judge
had committed an error of this sort. The issue in that case was whether the
accused had the specific intent to obstruct, pervert or defeat the course of
justice when he decided not to take the breath samples needed to charge a
fellow officer. In concluding that he did, the trial judge relied on evidence
which in my view demonstrated that Mr. Beaudry did not seek to conceal
the offence and did not wish to foreclose the possibility of prosecution
(para. 111). Accordingly, I found that the judge’s inference that Mr. Beaudry
intended to obstruct justice was plainly contradicted by the very evidence from
which it was drawn and that his verdict was therefore “unreasonable” within the
meaning of s. 686(1) (a)(i).
[21]
A verdict is likewise unreasonable where the
judge draws an inference or makes a finding of fact essential to the verdict if
that inference or finding of fact is “‘demonstrably incompatible’ with evidence
that is neither contradicted by other evidence nor rejected by the trial judge”
(Beaudry, at para. 79, per Binnie J.). Here, an essential
inference that appears compatible with the evidence from which it is drawn
implodes on contextual scrutiny. This is so where a trial judge infers from some
of the available evidence that an accused had the requisite intent to obstruct
justice and this inference is supportable on the evidence relied upon but is
not supportable on consideration of other evidence that has been neither
contradicted by other evidence nor rejected by the trial judge. Here, too, a
verdict of guilt “would lack legitimacy and would properly . . . be treated as
‘unreasonable’” (ibid.).
[22]
Fortunately, unreasonable verdicts of either
sort are exceedingly rare. But when they do occur, appellate courts are authorized
― indeed, bound ― to intervene.
[23]
The remedy will depend on the circumstances of
the case. Where the verdict is found to be unreasonable under Beaudry
and, in any event, unavailable on the record, an acquittal will ensue pursuant
to Biniaris. But where the verdict is found to be unreasonable under Beaudry
and the record discloses “evidence capable of supporting a conviction”, a new
trial will be ordered (Beaudry, at para. 97).
[24]
The rationale for ordering a new trial in the
latter case was explained this way in Beaudry:
No
one should stand convicted on the strength of manifestly bad reasons . . . on
the ground that another judge (who never did and never will try the case) could
but might not necessarily have reached the same conclusion for other
reasons. A verdict that was reached illogically or irrationally is hardly
made reasonable by the fact that another judge could reasonably have convicted or
acquitted the accused. [Emphasis in original; para. 97.]
[25]
Here, “manifestly bad reasons” refers to the fatal
flaw in the reasoning process that underpins the trial judge’s conclusion, not
to the insufficiency or inadequacy of the reasons in other respects. As
mentioned earlier, Beaudry complements but neither duplicates nor
displaces Sheppard, which continues to govern the requirement of
adequate reasons to ensure meaningful appellate review. Indeed, in the absence
of reasons that are adequate under Sheppard, a reviewing court could
hardly assess their reasonableness under Beaudry.
[26]
A verdict reached illogically or irrationally is
“unreasonable” because it is not reached judicially, or in accordance
with the rule of law.
IV
[27]
I agree with the Court of Appeal that the record
in this case contains “evidence capable of supporting a conviction” (para.
100). Since a properly instructed jury, acting judicially, could reasonably
have reached the same conclusion as the trial judge, her verdict is not
unreasonable within the meaning of Biniaris. Nor can it be
characterized as unreasonable within the more limited scope of Beaudry.
[28]
Accordingly, as mentioned at the outset, I agree
with the Crown that the Court of Appeal, to the extent that it appears in some
measure to have done so, could not rest its judgment in this case on Beaudry.
But I think it right to remember that the Court of Appeal did not have the
benefit of these reasons, which more fully explain the conceptual distinction
between Beaudry and Lohrer.
[29]
As I mentioned as well, I believe the Court of
Appeal nonetheless reached the right conclusion for substantially the right reason.
[30]
Speaking for a unanimous Court in Lohrer,
Binnie J. stated:
This is an appeal as of right from
convictions of the appellant for aggravated assault and uttering a threat. A
majority of the B.C. Court of Appeal affirmed the convictions. Hollinrake J.A.
dissented. He found applicable to this case what was said by Doherty J.A. of
the Ontario Court of Appeal in R. v. Morrissey (1995),
97 C.C.C. (3d) 193, as follows at p. 221:
Where
a trial judge is mistaken as to the substance of material parts of the evidence
and those errors play an essential part in the reasoning process resulting in a
conviction, then, in my view, the accused’s conviction is not based exclusively
on the evidence and is not a “true” verdict.
Later in the same paragraph, Doherty J.A.
stated:
If
an appellant can demonstrate that the conviction depends on a misapprehension
of the evidence then, in my view, it must follow that the appellant has not
received a fair trial, and was the victim of a miscarriage of justice. This is
so even if the evidence, as actually adduced at trial, was capable of
supporting a conviction.
We agree with these observations. Where a
miscarriage of justice within the meaning of s. 686(1) (a)(iii) of
the Criminal Code, R.S.C. 1985, c. C-46 , has been demonstrated an
accused appellant is not bound to show in addition that the verdict cannot “be
supported by the evidence” within the meaning of s. 686(1) (a)(i). [para.
1]
[31]
The decisive error identified by the Court of
Appeal in this case falls squarely within Lohrer, and the court applied
the Lohrer test explicitly and correctly, notably at paras. 94-97 of its
extensive and unanimous reasons:
The judge appears to have accepted that
there was evidence that Sinclair and the other two planned to go out together
to commit another robbery. She said that there was evidence that they were out
together. She described [these] matters as evidentiary, when they were not. As
has been explained above, this was more than factual findings based on
inference; this amounted to a mischaracterization or misapprehension of the
evidence.
. . .
Since the judge treated as evidentiary that
which was not, she did not consider inferences, other than that the three men
were out together, that were available to be drawn on the evidence. For example,
there was evidence, particularly of Audy relating to the potential use of the
phone at the store, that could have led the judge to a different inference
about Sinclair’s whereabouts and involvement.
Moreover, these mischaracterizations [in
essence, misapprehensions of the evidence] were not on peripheral points. As
stated by Binnie, J., for the Supreme Court in R. v. Lohrer . . . (at
para. 2): “The misapprehension of the evidence must go to the substance rather
than to the detail. It must be material rather than peripheral to the reasoning
of the trial judge.” It was obviously a fundamental question whether Sinclair
was at the scene of the crime. The two “evidentiary” matters, among other
evidence, on which the judge relied to establish that he was indeed at the
scene were essential to her ultimate verdict. It cannot be stated with
confidence that, had she not mischaracterized the evidence, she would have
found as she did.
[32]
I believe it important to add that the Court of
Appeal, in ordering a new trial, took care to recall expressly that
“[a]ppellate courts should not parse and dissect reasons of trial judges as if
under a microscope” (para. 72). I agree, of course. In my respectful view, care
must likewise be taken not to attribute to a single word in the reasons of the
Court of Appeal a fatal significance divorced from its context and contrary to
its literal and ordinary meaning.
[33]
The Court of Appeal was troubled, as am I, by
the trial judge’s “apparent acceptance . . . that there was evidence of Sinclair,
Pruden-Wilson and the young person planning to go out together to commit
another robbery” (para. 61). According to the Canadian Oxford Dictionary
(2nd ed. 2004), at p. 61, the primary meaning of “apparent” is “readily visible
or perceivable”. And, in this sense, the judge’s error is indeed apparent
― not speculative, or even imputed by inference.
[34]
After noting the Crown’s submission that
circumstantial evidence established Mr. Sinclair’s participation in the assault
of the victim, the trial judge states: “The Crown refers to the evidence
that, prior to the assault, Pruden-Wilson, Sinclair and the youth planned to go
out together to commit another robbery” (para. 21 (emphasis added)). With
respect for those who read this sentence differently, it seems plain to me that
the Court of Appeal’s reference to the trial judge’s “apparent acceptance” of
this “evidence” is entirely grounded in the trial judge’s own words. It is, I
repeat, hardly “speculative”: It aptly describes an actual mistake.
[35]
Moreover, this mistaken view of the evidence
appears from the trial judge’s ensuing reasons to have coloured her evaluation
of the other circumstantial evidence upon which the Crown relied. Citing an
example, the Court of Appeal explained: “Since the judge treated as evidentiary
that which was not, she did not consider inferences, other than that the three
men were out together, that were available to be drawn on the evidence”
(reproduced above, at para. 31).
[36]
The supposed plan of the three accused to commit
a robbery ― and to stay together for this purpose throughout the night
― underpinned the judge’s inference that Mr. Sinclair was at the scene of
the crime. It was the first step of the reasoning that led her to that
conclusion. At no point did the judge state explicitly, or even suggest
indirectly, that the “evidence” referred to by the Crown simply did not exist.
[37]
For the sake of clarity, I reproduce the judge’s
words once more: “The Crown refers to the evidence that, prior to the
assault, Pruden-Wilson, Sinclair and the youth planned to go out together to
commit another robbery” (emphasis added). Bearing in mind the plain and
ordinary meaning of these words and the context in which they appear, I see no
basis for assuming that the trial judge meant “the Crown submits” when
she said the “Crown refers to the evidence”.
[38]
Finally, and with respect, I am unable to share
Justice LeBel’s view (at para. 60) that the evidence established Mr. Sinclair’s
participation in the assault or even his presence at the scene when the crime
was committed.
[39]
First, there was “no DNA evidence linking [Mr.
Sinclair] to the scene” (para. 21 of the trial judge’s reasons). Second, Mr.
Sinclair bore no burden to prove that he was not the third “mysterious
individual whose identity remains unknown to this day” (para. 60 of Justice
LeBel’s reasons). It was for the Crown to prove that he was.
[40]
Third, Mr. Sinclair was not bound to explain the
undated cuts in his jeans and lacerations of his legs. The evidence in this
regard is inconclusive on its own, and unsupported by forensic evidence of any
sort. It is no more probative of Mr. Sinclair’s presence at the scene of the
crime than the fact that blood of another accused was on the victim’s
knife.
[41]
Fourth, and perhaps most important, mere
presence at the scene of the crime ― even if it had been established
― would not suffice to prove, as a matter of fact or matter of law, that
Mr. Sinclair had participated in the assault. Indeed, as Crown counsel conceded
on the hearing of this appeal, there was evidence that “earlier in the evening,
[Mr. Sinclair] had been present but had not participated in another robbery”
(transcript, at p. 32).
V
[42]
For all of these reasons, I would dismiss this
appeal, affirm the judgment of the Court of Appeal, set aside the respondent’s
conviction, and order a new trial.
The judgment of
LeBel, Deschamps and Rothstein JJ. was delivered by
[43]
LeBel J. — I have had the benefit of reading the reasons of my colleague
Fish J. With respect, I cannot agree with him that the Manitoba Court of Appeal
was right to order a new trial on the ground that the trial judge had misapprehended
the evidence in her reasons and had thus made an error that met the standard
set out in R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732. For the
reasons that follow, I would allow the appeal and restore the respondent’s
conviction.
[44]
Before turning to the core of my disagreement
with my colleague, I wish to briefly address the legal issues raised by this
case. First and foremost, the Court must clarify in this appeal whether Fish J.,
dissenting in the result in R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190,
expanded the “traditional scope” of s. 686(1) (a)(i) of the Criminal
Code, R.S.C. 1985, c. C-46 (at para. 77), as delineated in R. v. Yebes,
[1987] 2 S.C.R. 168, and R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R.
381. On this point, I agree that, because Binnie J. concurred in substance in
Fish J.’s reasons in Beaudry, Fish J. carried a majority on the issue
of whether a verdict reached “illogically or irrationally” (para. 97) is “unreasonable”
within the meaning of s. 686(1) (a)(i) of the Criminal Code
(reasons of Fish J., at para. 17). I also acknowledge that Fish J.’s reasons in
Beaudry represent the state of the law on this point.
[45]
In light of this conclusion, the second — and
more subtle — issue in the case at bar concerns the nature of the error
requiring appellate intervention under s. 686(1) (a)(i) that Beaudry
purported to identify. Fish J. sets out clearly, in comments with which I
fully agree, what Beaudry does not stand for (at paras. 3-4):
While a verdict that rests on a mistake as
to the substance of the evidence may well be “unreasonable” in the broad sense
of that term, Beaudry has no application to errors of this sort. Rather,
they are governed by R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R.
732. Nor does Beaudry govern trial court decisions that are rendered
inscrutable by an absence of sufficient reasons, as in R. v. Sheppard, 2002
SCC 26, [2002] 1 S.C.R. 869.
Nothing
in Beaudry should be taken as a departure from the well-established
principles of appellate review set out in R. v. Yebes, [1987] 2
S.C.R. 168, and R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381.
Fish J. adds that “the Beaudry
test addresses the reasonableness of the judge’s verdict, notably by
scrutinizing the logic of the judge’s findings of fact or inferences drawn
from the evidence admitted at trial” (para. 15 (emphasis in original)).
Despite the fact that I concurred with the opinion of Charron J. in Beaudry,
I am convinced that Fish J.’s reasons in the instant case correctly reflect the
position that was taken by the majority in that case. Accordingly, I concur
with his reasons to that extent.
[46]
My disagreement with Fish J. does not therefore
pertain to his interpretation of how Beaudry fits into the expanded
scope of s. 686(1) (a)(i). Nor does it relate to his opinion that, to the
extent that the Manitoba Court of Appeal appears to have based its judgment in
the instant case on Beaudry, it erred in law. Rather, the only point on
which I disagree with Fish J. relates to the application of Lohrer to
the facts of this case. I do not agree that the Court of Appeal identified an
error in the trial judge’s reasons that “fall[s] squarely within Lohrer”
(reasons of Fish J., at para. 5). In my respectful opinion, the trial
judge did not commit an error that justified appellate intervention.
[47]
Hamilton and Freedman JJ.A., writing for a
unanimous Court of Appeal, held that the trial judge had misapprehended the
evidence by asserting that Mr. Sinclair had been involved in a plan to
commit a robbery (2009 MBCA 71, 240 Man. R. (2d) 135). In their view, as a
result of this misapprehension, the trial judge’s reasoning process was flawed
in two respects. They wrote:
The
judge drew an inference that Sinclair and Pruden-Wilson were together
throughout, but she based this inference partially on that “evidence” referred
to by the Crown, when there was no such evidence. Moreover, she then found that
Sinclair was one of the participants in the assault, basing this in part on the
“evidence” that he and Pruden-Wilson were out together. [para. 71]
Fish J. agrees with this
reading of the trial judge’s reasons. He writes that “[s]he mistook for evidence
the Crown’s theory concerning a planned second robbery and Mr.
Sinclair’s presence when it was committed” (para. 9 (emphasis in original)).
[48]
In the view of Hamilton and Freedman JJ.A., this
two-fold misapprehension of the evidence thus amounted to a miscarriage of
justice within the meaning of s. 686(1) (a)(iii) of the Criminal
Code . They saw it as a basis, along with a number of other factors, for the
inferences drawn by the trial judge that Mr. Sinclair was at the crime
scene at the time Mr. Lecours was brutally assaulted and that he participated
in the assault. They added the following comment:
Moreover,
these mischaracterizations were not on peripheral points. . . .
It was obviously a fundamental question whether Sinclair was at the scene of
the crime. The two “evidentiary” matters, among other evidence, on which the
judge relied to establish that he was indeed at the scene were essential to her
ultimate verdict. It cannot be stated with confidence that, had she not
mischaracterized the evidence, she would have found as she did. [Emphasis
added; para. 97.]
[49]
While I agree that the record does not disclose
any evidence of a planned robbery involving Mr. Sinclair, I do not agree that
the trial judge relied on such “evidence” to infer that Mr. Sinclair was at the
crime scene. In my view, the trial judge did not actually commit the error the
Court of Appeal said she had committed. She drew two key inferences to find Mr.
Sinclair guilty: (1) that he was at the crime scene; and (2) that he was one of
Mr. Lecours’s assailants (2007 MBQB 219, 219 Man. R. (2d) 63). It is important
not to be misled about the evidence that led the trial judge to draw these two
inferences. Regarding Mr. Sinclair’s presence at the crime scene, she considered
the circumstantial evidence adduced by the Crown and found
-
that Mr. Sinclair, Mr. Pruden-Wilson and the
youth were all out of the residence at the time of the assault on the victim
(para. 21);
-
that Mr. Sinclair knew Mr. Pruden-Wilson had
been stabbed, because (1) he stormed into the house only minutes after the
incident and (2) he led the subsequent efforts to locate Mr. Pruden-Wilson
while the latter was still bleeding in the snow (paras. 12, 19 and 21); and
-
that DNA evidence linked Mr. Pruden-Wilson to
the crime, and Mr. Pruden-Wilson’s blood was found on Mr. Sinclair’s jeans
and hoodie (para. 21).
[50]
From this evidence, which she assessed
correctly, the trial judge drew the inference “that Sinclair and Pruden-Wilson
were together throughout and that Sinclair was at the scene” (para. 21). The
record supported this inference even though there was no evidence of a plan to
commit a robbery, and the trial judge’s reasoning discloses no
mischaracterization of the evidence. With respect, it is inaccurate to state
that the trial judge relied on the existence of a plan to commit a robbery to
infer that Mr. Sinclair was at the crime scene. Indeed, nowhere in her reasons
can support be found for the view that she accepted the Crown’s theory of
a planned robbery involving Mr. Sinclair. All she did was to refer to such a
plan as part of the Crown’s theory (at para. 21):
As
for Sinclair, there is no DNA evidence linking him to the scene. Rather, the
evidence is circumstantial. The Crown submits that the circumstantial
evidence proves beyond a reasonable doubt Sinclair’s presence at the scene and
his involvement in the unlawful act of assaulting Lecours. The Crown refers to
the evidence that, prior to the assault, Pruden-Wilson, Sinclair and the youth
planned to go out together to commit another robbery. Although nobody saw
the three leave 110 Kushner together, there was clearly a period of time, in
the early morning hours, when all three were out of the residence. Further,
when Sinclair returned to 110 Kushner, he knew that Pruden-Wilson had been
stabbed. The Forensic Reports show that Pruden-Wilson’s blood was on Sinclair’s
jeans and hoodie. As well, Audy’s evidence was that Sinclair led their
subsequent efforts to locate Pruden-Wilson, and Constable Tully testified that
Audy and Sinclair were running (and arrested) in the area where Pruden-Wilson
was in the snow, bleeding. I am satisfied that the only rational inference to
be drawn from all of this evidence is that Sinclair and Pruden-Wilson were
together throughout and that Sinclair was at the scene. [Emphasis added.]
[51]
Although I concede that this passage from the trial
judge’s reasons could have been better written, it is not ambiguous. Read in
context, it does not support a conclusion that the trial judge mistook the
Crown’s theory about a planned robbery involving Mr. Sinclair for evidence.
Rather, she stated clearly that she inferred that Mr. Sinclair was at the crime
scene despite the fact that there was no evidence, such as the simultaneous
departure of the three young men, confirming the existence of a plan. In my
opinion, the trial judge’s reasons thus indicate that she was satisfied beyond
a reasonable doubt — regardless of whether the Crown had made out its case with
respect to the planned robbery — that Mr. Sinclair was at the crime scene. In
the first part of the paragraph quoted above, the trial judge presented some of
the Crown’s submissions, while in the second part, she explained how she
reached the conclusion that Mr. Sinclair was at the crime scene. The Court of Appeal
was not justified in turning the trial judge’s description of a part of the
Crown’s theory into an acceptance of its evidentiary foundation.
[52]
I wish to emphasize the fact that the Court of
Appeal did not find that the impugned error was explicit in the trial judge’s
reasons. Indeed, Hamilton and Freedman JJ.A. referred to her “apparent
acceptance . . . that there was evidence of Sinclair, Pruden-Wilson and the
young person planning to go . . . commit another robbery” (para. 61 (emphasis
added)). In the absence of an explicit acceptance by the trial judge, the Court
of Appeal appears to have “inferred” that her explanation of the basis for her
inference was flawed. As a result, the Court of Appeal’s decision to order a
new trial in this case rests solely on this implicit, but “apparent”, mistake.
[53]
When reasons are reviewed on appeal, silence
should not be taken to mean acceptance (R. v. O’Brien, 2011 SCC 29,
[2011] 2 S.C.R. 485, at para. 16). In my opinion, for an appellate court to
decide to order a new trial on the basis of a miscarriage of justice resulting
from a misapprehension of the evidence, more is needed than an “apparent”
mistake (e.g., an error that the trial judge may have committed) in the
reasons. A court of appeal should not, in applying the Lohrer test,
order a new trial unless the trial judge has made a real error; its decision
cannot be speculative. The plain language or the thrust of the reasons must
disclose an actual mistake. When such errors are in fact committed, appellate
courts have no difficulty in explaining why they caused the trial judge’s
reasoning process to be fatally flawed and where they may be found in the
reasons. In such situations, the errors are readily obvious.
[54]
In R. v. C.L.Y., 2008 SCC 2, [2008] 1
S.C.R. 5, Abella J. observed that in the oft-cited decision in R. v.
Morrissey (1995), 97 C.C.C. (3d) 193 (Ont. C.A.), on which the Lohrer
test is based, Doherty J.A. had rightly “caution[ed] appellate judges not to
dissect, parse, or microscopically examine the reasons of a trial judge” (para. 11).
With respect, the Court of Appeal’s reasoning in the case at bar, which my
colleague Fish J. endorses, disregards this cautionary rule. The order for a
new trial results from an overly critical reading of the trial judge’s reasons
and is not faithful to the thrust of her reasoning. This is illustrated by the
fact that neither the Court of Appeal nor Fish J. in this Court has been able
to identify a point in the trial judge’s reasons at which she accepted the
Crown’s theory that Mr. Sinclair was involved in a plan to commit a
robbery, or to satisfactorily explain why this “misapprehension” was central to
her reasoning process.
[55]
It is therefore my view that the trial judge did
not infer that Mr. Sinclair was at the crime scene on the basis of the
“evidence” referred to by the Crown concerning a planned robbery. It is clear
from the plain language of her reasons that, after considering all the relevant
evidence, including evidence that the individuals were all out of the residence
at the time of the assault, that Mr. Sinclair reported that Mr. Pruden-Wilson
had been stabbed shortly after it happened, and that Mr. Pruden-Wilson’s blood
was found on Mr. Sinclair’s jeans and hoodie, she inferred from this that the
three young men had been “together throughout” and that Mr. Sinclair had
been at the crime scene.
[56]
Even if I were prepared to accept, for the sake
of the argument, that the trial judge agreed with the Crown’s theory that Mr.
Sinclair had been involved in a plan to commit a robbery, it would nonetheless
be my view that the misapprehension was not materially linked to the inference
she drew with respect to Mr. Sinclair’s presence at the crime scene. For a
misapprehension of evidence to be material within the meaning of the Lohrer test,
it must go to a central element of the trial judge’s reasoning on which the
conviction is based (Lohrer, at para. 2, per Binnie J.). As
Binnie J. correctly stated in Lohrer, the standard described by Doherty
J.A. in Morrissey is a stringent one (para. 2). In other words, an error
in the assessment of the evidence will amount to a miscarriage of justice only
if striking it from the judgment would leave the trial judge’s reasoning on
which the conviction is based on unsteady ground.
[57]
In the case at bar, striking the “error” would
not have this effect. In light of the circumstantial evidence the trial judge
accepted, it cannot seriously be doubted that she would nonetheless have found
that Mr. Sinclair was at the crime scene at the time of the assault on Mr.
Lecours. In my opinion, if the trial judge could in fact be assumed to have
accepted the “evidence” of a plan to commit a robbery, that acceptance would
clearly have been incidental to her finding that Mr. Sinclair was at the crime
scene. How little importance she attached to the alleged plan to commit a robbery
should also come as no surprise: Mr. Sinclair was charged with manslaughter,
not with conspiracy to commit robbery. Although evidence of such a plan would
likely have strengthened the inference that Mr. Sinclair and Mr. Pruden-Wilson
had been “together throughout”, it did not need to be central to the trial
judge’s reasoning, because it was not an element of the Crown’s burden.
[58]
In his reasons, Fish J. downplays the
persuasiveness of the evidence on which the trial judge based the verdict by
referring to it as “apparently incriminating circumstantial evidence” (para.
8). In this respect, the fact that Mr. Sinclair reported that Mr.
Pruden-Wilson had been stabbed only minutes after it happened and the fact that
his clothes were stained with Mr. Pruden-Wilson’s blood are undisputed pieces
of evidence that are more than “apparently incriminating”. Furthermore, my
colleague’s interpretation of the weight of this circumstantial evidence does
not accord with the trial judge’s reasoning. It is important to reflect upon
the meaning of the position he has adopted.
[59]
In essence, Fish J. suggests that the reasoning
process that led the trial judge to convict Mr. Sinclair was dependent upon the
“evidence” of a planned robbery. He thus endorses the Court of Appeal’s
position that “[i]t cannot be stated with confidence that, had she not
mischaracterized the evidence, she would have found as she did” (para. 97). In
my respectful view, not only does this position exaggerate the importance of
the trial judge’s reference to this planned robbery, but it suggests,
erroneously, that had the trial judge not misapprehended the evidence in this
regard, she could plausibly have had a reasonable doubt about Mr. Sinclair’s
presence at the crime scene.
[60]
This implies that the trial judge might have
been inclined to conclude that Mr. Lecours was brutally attacked by three men,
including a mysterious individual whose identity remains unknown to this day,
and that, for his part, Mr. Sinclair simply happened to fortuitously come
across his wounded friend in the minutes following the attack. I have
difficulty understanding how she could logically have been inclined to reach
such a conclusion. It is even more difficult to understand how that might be if
the evidence of Mr. Sinclair’s presence at the crime scene is considered in
conjunction with the evidence on which the trial judge relied to infer that he
had participated in the assault. In this respect, the evidence accepted by the
trial judge shows
- that Emilia Rzedzian, who
was found to be a credible witness, observed three young males kicking the
victim (paras. 15 and 22);
- that a knife was found at
the scene and Mr. Pruden-Wilson’s blood was found on its blade (para. 19);
- that Mr. Sinclair’s jeans
had cuts in them, as did Mr. Pruden-Wilson’s (paras. 20-22); and
- that the police photos
show lacerations on Mr. Sinclair’s legs in the approximate areas of the cuts
(para. 22).
[61]
Ultimately, I agree with the Crown that the
conclusion that “some other unknown third male, also wearing light coloured
clothing, took part in the attack on the deceased, only to then disappear just
as [Mr. Sinclair] suddenly appeared in an isolated and out-of-the-way field to
assist Pruden-Wilson while also somehow coincidentally acquiring cuts on his
clothes and legs similar to those suffered by the other assailants, is utterly
speculative and improbable” (A.F., at para. 67). Nothing in the trial judge’s reasons
suggests that she might have been inclined to come to such an illogical
conclusion if she had expressly rejected the Crown’s theory about the evidence
of a planned robbery. The contrary is much more consistent with her actual
words. She wrote that the only “rational inference” that could be drawn was
that Mr. Sinclair was at the crime scene, which implies that it would be
irrational to conclude that he was not there.
[62]
From a factual standpoint, there were only two
possible conclusions in this case: either Mr. Sinclair was present at the crime
scene and, on the basis of the evidence accepted by the trial judge, he was one
of the assailants, or he was somewhere else at the time of the assault. In light
of both the language and the structure of her reasons for judgment, I am
persuaded that the trial judge found the circumstantial evidence to be
seriously incriminating for Mr. Sinclair. In my view, her reasoning process was
not disturbed by the question of the planned robbery to the extent my colleague
Fish J. suggests. Therefore, even assuming that she did misapprehend the
evidence concerning the existence of a plan to commit a robbery, the error would
not have been material within the meaning of the Lohrer test. The
contention that an explicit acknowledgement of the absence of evidence in this
regard could have raised a reasonable doubt in the trial judge’s mind about Mr.
Sinclair’s presence at the crime scene is inconsistent with the reasoning that
led her to convict him.
[63]
For all these reasons, I would allow the appeal
and restore the respondent’s conviction.
The
following are the reasons delivered by
Charron J. —
1. Introduction
[64]
Following his trial by a judge sitting without a
jury, the respondent, Terrence Sinclair, was convicted of manslaughter (2007
MBQB 219, 219 Man. R. (2d) 63). The conviction was based on the trial judge’s
finding that Mr. Sinclair had participated, together with his co-accused and a
youth, in the assault that resulted in the victim’s death.
[65]
On appeal to the Manitoba Court of Appeal, Mr.
Sinclair challenged his conviction as unreasonable. The Court of Appeal held
that the trial judge mischaracterized or misapprehended the evidence by
inferring both that Mr. Sinclair had planned to go out with his co-accused and
the youth to commit a robbery, and that they were out together at the time the
fateful assault was committed. In its view, these inferences were based, at
least in part, on “evidence” of those facts when there was no such evidence.
The court further held that these were not peripheral matters. In its view,
“the substratum of findings on which to a material extent the verdict rests is
not present” (2009 MBCA 71, 240 Man. R. (2d) 135, at para. 98). Thus,
purportedly on the authority of this Court’s decision in R. v. Beaudry,
2007 SCC 5, [2007] 1 S.C.R. 190, the court concluded that the verdict was
unreasonable and, as there was evidence capable of supporting a conviction,
ordered a new trial.
[66]
The Crown appeals with leave of this Court and
raises two issues. First, the Crown asks this Court to clarify the test for
unreasonable verdicts under s. 686(1) (a)(i) of the Criminal Code,
R.S.C. 1985, c. C-46 , set out in Beaudry. In Beaudry,
the Court was divided five-four in favour of adopting an expansion of the
traditional test for unreasonable verdicts, but then split differently on the
application of the proposed test. This division led to some uncertainty about
the governing test. Second, the Crown argues that none of the
subparagraphs of s. 686(1) (a) provides a basis for overturning the
verdict in this case. As there was no error of law, miscarriage of justice or
unreasonable verdict, the Crown submits that the Manitoba Court of Appeal erred
in ordering a new trial and asks that the conviction be restored.
[67]
I have had the benefit of reading the reasons of
LeBel J. and Fish J. On the first issue, I agree with much of Fish J.’s
reasons on the import of this Court’s decision in Beaudry regarding the
test for unreasonable verdicts under s. 686(1) (a)(i). In particular, I
agree that Beaudry does not change any of the existing tests for
appellate review under s. 686(1) (a). As Fish J. states:
Nothing in Beaudry should be taken as
a departure from the well-established principles of appellate review set out in
R. v. Yebes, [1987] 2 S.C.R. 168, and R. v. Biniaris, 2000 SCC 15,
[2000] 1 S.C.R. 381. [para. 4]
.
. . Nor does Beaudry govern trial court decisions that are rendered
inscrutable by an absence of sufficient reasons, as in R. v. Sheppard,
2002 SCC 26, [2002] 1 S.C.R. 869. [para. 3]
[68]
Further, nothing in Beaudry should be
taken as a departure from the test established in R. v. Lohrer, 2004 SCC
80, [2004] 3 S.C.R. 732. Thus, in this appeal, I agree with Fish J. that “the
Court of Appeal, to the extent that it appears in some measure to have done so,
should not have rested its judgment in this case on Beaudry” (para. 5).
As he explains, “[w]hile a misapprehension of the evidence may help to
establish that a verdict is unreasonable within the meaning of Yebes and
Biniaris, Beaudry does not govern an error of this sort” (para.
14). If the trial judge had indeed misapprehended the evidence as
contended by the Court of Appeal, Fish J. rightly states that this kind of
error would fall squarely within Lohrer. However, I agree with
LeBel J. that the Court of Appeal erred in finding that the trial judge made an
error that met the standard set out in Lohrer. I would therefore allow
the appeal and reinstate Mr. Sinclair’s conviction for the reasons of
LeBel J.
[69]
While none of the existing tests have been
changed, the approach adopted by the majority in Beaudry, and
reiterated in this appeal, did effect an expansion of the test for
unreasonableness under s. 686(1) (a)(i). Under the traditional Yebes/Biniaris
test, the reasonableness of the verdict is to be
measured against the totality of the evidence adduced at trial (R. v.
Yebes, [1987] 2 S.C.R. 168; R. v. Biniaris, 2000 SCC 15, [2000] 1
S.C.R. 381). This test continues to apply. However, where the verdict under
review is that of a trial judge without a jury, the reasonableness of the
verdict may also be assessed, as Fish J. puts it, “by scrutinizing the
logic of the judge’s findings of fact or inferences drawn from the evidence
admitted at trial” (para. 15 (emphasis in original)). Explaining how this
added dimension of the reasonableness test should be applied on appellate
review is somewhat more difficult. This is where I depart from Fish J.’s
analysis.
[70]
As I read his reasons, Fish J. explains how this
expanded approach may play out by describing the kind of errors in the
appreciation of the evidence or in the fact-finding process that may result in
a verdict which would properly be treated as unreasonable. See in particular
paras. 16 and 19-21. There may well be a logical connection between certain
mistakes with respect to the substance of the evidence and the reasonableness
of the verdict. However, with great respect, I find my colleague’s
“reasoning-based approach”, if I may describe it that way, unhelpful.
Reviewing courts would have to make rather fine distinctions between different
types of mistakes in order to identify the applicable test. This distinction
is especially hard to make because the fact-finding process is difficult to
articulate with precision. For example, at what point is the trial judge
making a finding of fact “that is . . . plainly contradicted by the evidence
relied on for that purpose by the judge” (reasons of Fish J., at para. 16),
rather than a “mistak[e] as to the substance of material parts of the evidence”
(Lohrer, at para. 1, citing R. v. Morrissey (1995), 97 C.C.C.
(3d) 193 (Ont. C.A.), at p. 221)? What, really, is the difference between a
“mistak[e] as to the substance of . . . the evidence” (Lohrer) and
a finding that is “demonstrably incompatible with evidence that is not
otherwise contradicted or rejected by the trial judge” (reasons of Fish J., at
para. 16)?
[71]
This appeal exemplifies the difficulty. As Fish
J. himself concludes, the impact on the verdict of errors in the trial judge’s
assessment of the evidence and reasoning process of the kind identified by the
Court of Appeal was to be assessed, not by asking whether the verdict was
unreasonable, but by asking whether it resulted in a miscarriage of justice
within the meaning of s. 686(1) (a)(iii).
[72]
In my respectful view, the scope of the test for
unreasonableness under s. 686(1) (a)(i), as expanded in Beaudry,
is better understood if the focus remains on the conclusion reached
at trial, rather than on the trial judge’s appreciation of the evidence or the
reasoning process that led to the verdict. As I will explain, a
verdict-focussed approach is more consistent with the wording of the provision,
the legislative context and history, and the established jurisprudence. It
also avoids any unnecessary blurring of the line between unreasonable verdicts
under s. 686(1) (a)(i) and misapprehensions of evidence resulting in a
miscarriage of justice under s. 686(1) (a)(iii).
2. Analysis
[73]
The question that occupies us is one of statutory interpretation. A proper
understanding of the scope of s. 686(1) (a)(i) requires that this power
of appellate intervention be considered in context, according to its
grammatical and ordinary sense, harmoniously with the scheme and object of the
Act, and with the intention of Parliament. I start
with the statutory context.
[74]
In s. 686 of the
Criminal Code , Parliament has provided a complete set of appellate
powers to address both procedural and substantive errors that may take place
during a trial. The provision at issue here is s.
686(1) (a)(i), which I refer to at times in brief form as the
“unreasonable verdict” ground. The unreasonable verdict ground is one of the
three grounds of appellate intervention on an appeal against conviction which
are set out in s. 686(1) (a). The three grounds are the following:
686. (1) On the
hearing of an appeal against a conviction or against a 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 a wrong
decision on a question of law, or
(iii) on any ground there was
a miscarriage of justice;
[75]
The power to intervene with the judgment of the
trial court on the ground of a wrong decision on a question of law under s.
686(1) (a)(ii) is qualified by the terms of s. 686(1) (b)(iii):
(b) [the Court of
Appeal] may dismiss the appeal where
. . .
(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 . . .
Notably, this provision,
commonly referred to as the curative proviso, does not apply to unreasonable
verdicts under s. 686(1) (a)(i).
[76]
Read together, it is
apparent that the three grounds allowing an appellate court to overturn a
conviction share a common purpose. Doherty J.A. usefully described the
underlying rationale in Morrissey, as follows (at p. 219):
While
s. 686(1)(a) provides three distinct bases upon which [an appellate
court] may quash a conviction, each shares the same underlying rationale. A
conviction which is the product of a miscarriage of justice cannot stand. Section
686(1)(a)(i) is concerned with the most obvious example of a miscarriage
of justice, a conviction which no reasonable trier of fact properly instructed
could have returned on the evidence adduced at trial. Section 686(1)(a)(ii)
read along with s. 686(1)(b)(iii) presumes that an error in law produces
a miscarriage of justice unless the Crown can demonstrate the contrary with the
requisite degree of certainty. Section 686(1)(a)(iii) addresses all
other miscarriages of justice not caught by the two preceding subsections.
[Emphasis added.]
[77]
Of course, in describing the scope of the
reasonableness test, Doherty J.A. is referring to the traditional Yebes/Biniaris
test. I will return to this test later. However, as the wording makes
plain, the focus under s. 686(1)(a)(i) is on the conclusion
reached at trial. It provides that the verdict is set aside when it
is unreasonable or cannot be supported by the evidence. In Beaudry,
Fish J. expressed the view that the use of the disjunctive “or” in s. 686(1)(a)(i)
was indicative of a “clear Parliamentary intention to differentiate between
verdicts that cannot be supported by the evidence and verdicts that may
properly be characterized as unreasonable on some other ground” (para.
89 (emphasis in original)). I agree that a verdict can be unreasonable even if
it can be supported by the evidence. As I noted in Beaudry, the case of
inconsistent verdicts is one obvious example (R. v. Pittiman, 2006 SCC
9, [2006] 1 S.C.R. 381, at para. 14, cited in Beaudry, at para.
57). The majority in Beaudry held further that a verdict may be
unreasonable because of fundamental flaws in the reasoning process that led to
it.
[78]
However, in my view, the disjunctive “or” should
not be read as indicative of Parliament’s intention to change the focus of
the reasonableness analysis in judge-alone trials from the conclusion reached
at trial to the reasoning process that led to it. As the intervener the
Attorney General of Ontario rightly argues, such an interpretation does not
accord with the legislative history of s. 686(1) (a) of the Criminal
Code . The legislative history is succinctly summarized in its factum as
follows (at para. 7):
In
Canada, the power to overturn a conviction on the ground it is “unreasonable”
or “cannot be supported by the evidence” has existed since 1923, and is modeled
on s. 4 of England’s Criminal Appeal Act. Originally, the power was
expressly limited in its application to jury verdicts. The 1955 [sic]
amendments to the Code altered the phrase “verdict of the jury” to “the
verdict”, thereby availing this ground to verdicts rendered in judge alone
trials. Nothing suggests however that this amendment was intended to alter the
purpose of this provision beyond ensuring the reasonableness of the conclusion
reached. The “unreasonable verdict” provision has remained unchanged since
1955. [Emphasis deleted.]
Given this legislative
history, it is clear that the phrases “unreasonable” and “cannot be supported
by the evidence” both apply to a bare jury verdict as much as they do to a
trial judge’s verdict. As such, Parliament’s use of the word “or” in
s. 686(1) (a)(i) does not mandate a focus on the reasoning process
that led to the verdict on appeals from a trial judge’s verdict. Indeed, when
that provision is considered in its statutory context, and according to its
grammatical and ordinary sense, it indicates that the appellate court’s focus
should be on the verdict.
[79]
Until this Court’s decision in Beaudry, the test for the
application of the unreasonable verdict ground under s. 686(1) (a)(i) was
settled. It involved an assessment of the reasonableness of the verdict when
measured against the totality of the evidence adduced at trial. In Yebes,
a case involving a jury, the Court stated the test as follows (at p. 186):
The
function of the Court of Appeal, under s. 613(1) (a)(i) of the Criminal
Code , goes beyond merely finding that there is evidence to support a conviction.
The Court [of Appeal] must determine on the whole of the evidence whether
the verdict is one that a properly instructed jury, acting judicially, could
reasonably have rendered. While the Court of Appeal must not merely
substitute its view for that of the jury, in order to apply the test the Court [of
Appeal] must re-examine and to some extent reweigh and consider the effect of
the evidence. This process will be the same whether the case is based on
circumstantial or direct evidence. [Emphasis added.]
[80]
The Yebes test is
expressed in terms of a verdict reached by a jury. The question that occupied
this Court in Beaudry and in this appeal is whether the test for an unreasonable
verdict is the same when the verdict is reached by a judge sitting without a
jury. The Court was divided on this issue in Beaudry. As I have
indicated at the outset, this division led to some uncertainty about the
governing test. In this appeal, the Court confirms that the Yebes/Biniaris test
continues to govern, but that Beaudry has effectively added a new
dimension to the test for unreasonableness in judge-alone trials, albeit one of
limited scope. In exceptional cases, flaws in the trial judge’s reasoning
process may result in an unreasonable verdict even though the verdict is
otherwise available on the evidence. As Fish J. notes, unreasonable verdicts
of the sort targeted by the Beaudry test “are exceedingly rare” (para.
22).
[81]
In my view, it is important
to stress that, while the reviewing court may now look beyond the evidence
adduced at trial and consider flaws in the reasoning process in the assessment
for reasonableness, the focus must remain on the conclusion reached at
trial. For s. 686(1)(a)(i) to be properly invoked, it is the verdict
that must be in error. As such, it would be wrong to conclude that whenever
there is an error in reasoning, even if of the kind “demonstrably incompatible”
with the uncontradicted evidence at trial, the verdict is unreasonable. As
stated by LeBel J. in R. v. Jaw, 2009 SCC 42, [2009] 3 S.C.R. 26, “[a]n
error in proceedings that does not lead to an unreasonable verdict, a wrong
decision on a question of law or a miscarriage of justice is indeed an error,
but one without legal effect” (para. 29).
[82]
Under each ground of appeal
set out in s. 686(1)(a), any error must be assessed in context. For
example, before an appellate court concludes that a misapprehension of evidence
has resulted in a miscarriage of justice under s. 686(1)(a)(iii),
it must consider whether the misapprehension played “an essential part not just
in the narrative of the judgment but ‘in the reasoning process resulting in a
conviction’” (Lohrer, at para. 2). Likewise, not every error of law
will require a new hearing under s. 686(1)(a)(ii). Section 686(1)(b)(iii)
provides that the conviction may be affirmed where “no substantial wrong or
miscarriage of justice has occurred”. Similarly, any error in reasoning
identified under the Beaudry test must be carefully assessed to
determine whether it vitiates the verdict.
[83]
It is useful in the
assessment of reasonableness to recall that the curative proviso does not apply
to an unreasonable verdict under s. 686(1)(a)(i). Thus, if the
reviewing court focusses on the type of error committed in the reasoning process,
rather than on the verdict itself, it may wrongfully leap to the conclusion
that a simple error in logic in the trial judge’s reasons necessitates a new
trial. For example, as the Crown states in its factum, “[i]t would be
incongruous if a conviction could be affirmed under [the curative proviso] . .
. in a case where the trial judge had incorrectly admitted a piece of evidence
(e.g., on the basis that the other evidence in the case was overwhelming) but
not in a case where the trial judge had correctly excluded the evidence but
then mistakenly referred to it in convicting the accused” (para. 53).
[84]
In my view, the s. 686(1)(a)(i) inquiry
in judge-alone trials should proceed as follows:
(a) The reviewing court should first
apply the test in Yebes/Biniaris. The
question is whether the verdict is one that a properly instructed jury,
acting judicially, could reasonably have rendered on the evidence as a whole.
If not, then the test is met, the inquiry is over, and an acquittal is entered.
(b) If the verdict is available on the
evidence, the reviewing court may go on to assess the
reasonableness of the verdict under the Beaudry test by scrutinizing the actual findings of fact and inferences
made by the trial judge. As stated earlier, an unreasonable verdict of the kind
identified in Beaudry will be exceedingly rare. It is therefore not
necessary to conduct this assessment in every case. Unless the issue is
specifically raised, or the circumstances clearly call for this further
inquiry, the impact of errors in the reasoning process that led to the
verdict falls to be assessed under either s. 686(1)(a)(ii) (errors
of law) or s. 686(1)(a)(iii) (miscarriage of justice).
(c) The Beaudry test may apply
in exceptional cases where the reasoning process of
the trial judge is so irrational, or so at odds with the evidence, that it vitiates
the verdict — even though that verdict is available on the evidence as a
whole. In these rare cases, an appellate court will be justified in concluding
that the verdict itself is unreasonable. What precise kinds of errors would
justify this conclusion is a question better left to be decided in cases where
the issue will arise. If the reviewing court so concludes, a new trial is
ordered, as the court will have already determined under the Yebes/Biniaris test
that the verdict is otherwise available on the evidence.
[85]
In the present case, the Court of Appeal rightly
concluded that the evidence adduced at trial was capable of supporting a
conviction. Thus, Mr. Sinclair cannot meet the Yebes/Biniaris test.
Nor can he properly invoke the Beaudry test as there is no fundamental
flaw in the reasoning process that led to the trial judge’s verdict. Finally,
for the reasons of LeBel J., I conclude that the trial judge did not
misapprehend the evidence in finding that Mr. Sinclair had participated in the
assault that resulted in the victim’s death.
3. Disposition
[86]
For these reasons, I would allow the appeal, set
aside the order for a new trial and restore the conviction.
The following are the
reasons delivered by
[87]
Abella J. — I agree with Charron J.’s analysis on the application of the Beaudry
test (R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190). Like her, I also
agree with LeBel J. that the trial judge did not misapprehend the evidence.
Therefore, I would allow the appeal, set aside the order for a new trial, and
restore the conviction.
Appeal allowed, McLachlin C.J. and Binnie, Fish and Cromwell JJ. dissenting.
Solicitor for the
appellant: Manitoba Prosecution Service, Winnipeg.
Solicitors for the
respondent: Gindin, Wolson, Simmonds, Winnipeg.
Solicitor for the intervener the
Director of Public Prosecutions of Canada: Public Prosecution
Service of Canada, Gatineau.
Solicitor
for the intervener the Attorney General of Ontario: Attorney General
of Ontario, Toronto.