R. v. H.S.B., 2008 SCC 52, [2008] 3 SCR 32

                                                 SUPREME COURT OF CANADA

Between:

Her Majesty The Queen

Appellant

and

H.S.B.

Respondent

‑ and ‑

Attorney General of Ontario

Intervener

Coram: McLachlin C.J. and Binnie, LeBel, Fish, Abella, Charron and Rothstein JJ.

______________________________

R. v. H.S.B., [2008] 3 S.C.R. 32, 2008 SCC 52

Her Majesty The Queen                                                                                                    Appellant

v.

H.S.B.                                                                                                                               Respondent

and

Attorney General of Ontario                                                                                            Intervener

Indexed as:  R. v. H.S.B.

Neutral citation:  2008 SCC 52.

File No.:  32046.

2008:  May 16; 2008:  October 2.

Present:  McLachlin C.J. and Binnie, LeBel, Fish, Abella, Charron and Rothstein JJ.

on appeal from the court of appeal for british columbia

Criminal law — Trial — Judgments — Reasons for judgment — Accused convicted of four offences relating to sexual abuse and threat — Whether judge’s reasons on credibility of witnesses in criminal trial sufficient.

The complainant alleged sexual abuse by the accused when she was a child.  She also testified that the accused threatened to kill her.  He was convicted of four offences relating to the abuse and threat.  After giving reasons for the convictions, the trial judge allowed the accused’s application to re‑open the trial and to call fresh evidence.  Upon hearing the fresh evidence, the trial judge issued a second verdict confirming the earlier convictions.  The second set of reasons primarily dealt with the fresh evidence, whereas the first set of reasons addressed the other evidence.  Although the accused did not raise insufficiency of reasons as a ground of his appeal from conviction, the Court of Appeal concluded that the appeal should be allowed on that basis.

Held:  The appeal should be allowed and the verdicts of guilty restored.

The bifurcation of the trial judge’s reasons into two separate, overlapping deliberations on the trial issues complicates the analysis of how he dealt with the central issue of whether the offences were committed.  However, it is not fatal because the reasons, considered as a whole, are functionally sufficient in the sense described in R. v. R.E.M., [2008] 3 S.C.R. 3, 2008 SCC 51.  The trial judge explained his view of why any errors in the complainant’s testimony did not undermine her credibility as to the central issue; he said that much of the testimony was unchallenged, that the inconsistencies and contradictions in her testimony were related to peripheral matters and that frailties in her testimony were attributable to the difficulty of recalling childhood events.  It is thus reasonable to infer from the reasons that, despite any errors in the complainant’s testimony, there remained a body of credible evidence capable of proving the offences beyond a reasonable doubt.  The trial judge’s reasons thus explain the basis for the verdict reached.  In meeting this standard, the trial judge’s reasons fulfilled their purposes.   That being so, the Court of Appeal was not entitled to substitute its own view of the complainant’s credibility in the guise of impugning the sufficiency of the reasons.  [7] [15]

Cases Cited

Applied:  R. v. R.E.M., [2008] 3 S.C.R. 3, 2008 SCC 51.

APPEAL from a judgment of the British Columbia Court of Appeal (Thackray, Newbury and Chiasson JJ.A.) (2007), 219 C.C.C. (3d) 492, 238 B.C.A.C. 267, 393 W.A.C. 267, [2007] B.C.J. No. 579 (QL), 2007 CarswellBC 610, 2007 BCCA 181, setting aside the accused’s convictions and ordering a new trial.  Appeal allowed.

Fred Tischler, for the appellant.

Richard C. C. Peck, Q.C., and Eric V. Gottardi, for the respondent.

M. David Lepofsky and Amanda Rubaszek, for the intervener.

The judgment of the Court was delivered by

[1]     The Chief Justice — The Crown appeals from the British Columbia Court of Appeal’s order  quashing the accused’s conviction for various offences relating to sexual abuse ((2007), 219 C.C.C. (3d) 492, 2007 BCCA 181).  As in the companion to this case, R. v. R.E.M., [2008] 3 S.C.R. 3, 2008 SCC 51, the appeal court’s order was based on its view that the trial judge’s reasons for judgment were insufficient.  Also, like in the companion case, the trial revolved primarily around the issue of witness credibility. 

[2]     I would allow the appeal, substantially for the reasons set out in R.E.M.  A trial judge’s reasons for judgment do not need to meet a standard of perfection.  So long as the trial judge fulfills the purposes of giving reasons — to explain the decision to the parties, to provide public accountability and to permit meaningful appellate review — a court of appeal is not justified in interfering with the verdict on the ground of insufficiency of reasons.  The purposes of giving reasons are fulfilled where the reasons for judgment, read in context, establish a logical connection between the verdict and the basis for it — in other words, the reasons must explain why the judge made his or her decision.  A detailed description of the judge’s process in arriving at the verdict is unnecessary.  The trial judge’s reasons met this standard.  It follows that no error of law has been established and that there was no basis for the British Columbia Court of Appeal’s order for a new trial.

I.  Factual and Judicial History

[3]     The complainant in this case alleged ongoing acts of sexual abuse committed by the accused, H.S.B.  In her testimony, the complainant described a number of incidents of escalating seriousness, ranging from sexual touching to full vaginal intercourse, and occurring over the course of several years when she was a child.  She also testified that the accused threatened to kill her when she was almost 15 years old.

[4]     The accused was charged with four offences relating to the abuse and threat, and the trial judge convicted him on all four counts.  After the conviction was entered, but before sentencing, the trial judge agreed to re‑open the trial to allow the accused to call additional evidence said to provide an alibi defence.  Specifically, the evidence was submitted to show that the accused was at work when the sexual abuse was said to have taken place.  The trial judge upheld the four convictions.  He found that inconsistencies in the complainant’s evidence were about details peripheral to the sexual acts in question.  He commented that some inconsistencies are to be expected in a case involving such a great number of incidents said to have occurred several times a week over a period of several years.  He commented further that the complainant’s young age at the relevant time, and the fact that the memories were bottled up for a long period, explained her confusion.  He concluded that “the complainant was a credible witness, not deliberately trying to mislead the court” (B.C.S.C., No. X065184-4, January 17, 2005, at para. 18).  The trial judge found that the complainant’s evidence was contradicted on some points by other witnesses’ testimony, but that it was not an attempt to mislead or construct evidence.  The “alibi” evidence did not change his view on the complainant’s credibility.  Rejecting the evidence of the accused, the trial judge found that he was not a credible witness “in general”, and that he was prone to exaggeration.

[5]     Although the accused did not raise insufficiency of reasons as a ground of his appeal from conviction, the Court of Appeal, per Thackray J.A., concluded that the appeal should be allowed on that basis.  

[6]     Thackray J.A. found that the trial judge inadequately dealt with evidence on 4 out of the 14 incidents described at trial.  Thackray J.A. extensively examined and reproduced the record relating to these four incidents, finding the evidence to be contradictory.  In each case, according to Thackray J.A., the trial judge failed to explain how he overcame the conflicting evidence to find in favour of the complainant’s credibility.  One of these factual matters (the “green nightie” incident) was not peripheral but was directly related to “the core issue” — presumably, whether the sexual act alleged had in fact occurred.  The defence had been based in part on the allegation of complainant concoction.  Thackray J.A. said that the trial judge misunderstood the issue as being whether the complainant was trying to mislead the court, whereas the real issue was her credibility regardless of how honestly she gave her testimony.  Where the other witnesses gave contradictory testimony, said Thackray J.A., the judge should have commented on their credibility.  Thackray J.A. concluded that the insufficiency of the trial judge’s reasons constituted an error of law, and that, given the inconsistencies and perceived gaps in the evidence, the Crown’s case was not overwhelming in the sense that the error was irrelevant.

II.  Analysis

[7]     This case involved a fresh evidence issue that potentially skewed the process of rendering the decision.  After giving reasons for the convictions, the trial judge allowed the accused’s application to re-open the trial and to call additional evidence that was argued to provide an alibi defence.  Upon hearing the fresh evidence, the trial judge issued a second verdict confirming the earlier convictions.  The second set of reasons primarily dealt with the fresh evidence, whereas the first set of reasons addressed the other evidence in considerable detail.  The bifurcation of the trial judge’s reasons into two separate, overlapping deliberations on the trial issues complicates the analysis of how he dealt with the critical issues at trial.  However, it is not fatal, provided the reasons, considered as a whole, are functionally sufficient in the sense described in  R.E.M.   Be that as it may, I would add that, although it is not contested here, the trial judge’s re-opening of the trial after having already entered a guilty verdict is highly unusual and not the desirable way to proceed.

[8]     As explained in R.E.M., a trial judge’s reasons serve three main functions — to explain the decision to the parties, to provide public accountability and to permit effective appellate review.  These functions are fulfilled if the reasons for judgment explain the basis for the decision reached.  The question is not whether a different verdict could have been reached on the evidence.  Nor is the question whether the reasons detail every step of the reasoning process or refer to every piece of evidence or argument led by counsel.  The task for the appellate court is simply to ensure that, read in the context of the entire record, the trial judge’s reasons demonstrate that he or she was alive to and resolved the central issues before the court.  

[9]     In the trial judge’s first set of reasons, he recounted in part what he called the “extremely detailed” evidence given by the complainant.  He then acknowledged the accused’s argument that the complainant’s evidence was contradictory and inconsistent, but went on to note that several specific allegations were not challenged on cross-examination.  He also explained his view that most inconsistencies were ancillary or peripheral to the fundamental question of whether the sexual abuse happened and that, in any case, the inconsistencies were excusable, given the high volume of incidents and the young age of the complainant when they occurred.  The trial judge considered in detail certain inconsistencies in the evidence regarding the complainant’s disclosure to her family members about the abuse.  He concluded that he was not left with a reasonable doubt on any of the four charges.

[10] In his second set of reasons, the trial judge began by stating his task of determining whether a reasonable doubt had been raised.  He then characterized the fresh evidence not as alibi evidence, but as evidence as to whether the accused had the opportunity to commit the offences, or, in other words, whether he had access to the complainant over the years in question.  The trial judge remarked, at para. 8:

It is cogent evidence.  It is evidence that must be weighed with the whole of the evidence in respect of the credibility of the complainant who gave evidence that, when the accused was living in her home, sexual abuse was occurring almost on a daily basis and certainly on most days of the week.

[11] Upon summarizing the fresh evidence led by the defence, the trial judge concluded that the accused’s work schedule left substantial opportunity for him to access the complainant during his time off.  In light of the fresh evidence, he found the complainant’s evidence as to the frequency and duration of the incidents unreliable.  However, he also found that the frailties in the complainant’s evidence were explicable as the natural distortion that occurs when events from childhood are recounted at an older age.  He found, moreover, that the frequency and duration of the incidents were secondary to the main issue as to whether the abuse in fact took place.  The trial judge dealt with some discrepancies in the complainant’s evidence as to the time a particular incident occurred, and concluded that the time was ancillary to the issue of whether the event actually happened.  He concluded that in general the accused was not credible and was prone to exaggeration.  The trial judge also found the accused’s offer of a motive for why the complainant might fabricate her allegations “defie[d] all logic”.  He concluded, for the second time, that no reasonable doubt had been raised as to whether the accused had committed the four offences.

[12] The Court of Appeal agreed that much of the complainant’s testimony was consistent and uncontradicted, and that several of the inconsistencies and contradictions that did exist were “not of great moment” (para. 22).  Its fundamental objection to the trial judge’s reasons for judgment was that they failed to explain why errors in details of the complainant’s evidence did not undermine her credibility.  The Court of Appeal stated, at para. 46:

The issue was not whether the complainant was deliberately trying to mislead the court.  The complainant’s testimony that the judge found to be incorrect had to be weighed by the judge in assessing her credibility even if it was honestly given.  The evidence was found to be incorrect, but no analysis was given as to how the critical errors could be subsumed into the conclusion that being non‑deliberate they did not undermine her credibility.  Simply put, the judge’s reasons do not give any insight into how the judge overcame the improbabilities in the complainant’s testimony. [Emphasis added.]

[13] In demanding that the trial judge relate each of the errors in the complainant’s evidence to his ultimate finding that in general she was a credible witness, the Court of Appeal overlooked the central question — did the reasons disclose the basis for the convictions, when considered in light of the issues at trial and the record as a whole?  In my view, the answer to this question is affirmative.

[14] The trial judge had to determine whether the evidence as a whole proved the allegations beyond a reasonable doubt.  This issue turned largely on the trial judge’s findings with respect to the credibility of the complainant and the accused.  It is clear from the trial judge’s reasons for judgment that his verdict resulted from his acceptance of the complainant’s evidence as to whether the incidents occurred, from his rejection of the accused’s defence of lack of opportunity from his finding that the accused was not a credible witness and that the evidence as a whole did not leave him with a reasonable doubt.  It is also clear that the trial judge found the frailties in the complainant’s evidence to be an understandable result of trying to remember events that happened in childhood and were, in any case, related to peripheral, not core, issues.

[15] The trial judge explained his view of why any errors in the complainant’s testimony did not undermine her credibility as to the central issue of whether the offences were committed; he said that much of the testimony was unchallenged, that the inconsistencies and contradictions in her testimony were related to peripheral matters and that frailties in her testimony were attributable to the difficulty of recalling childhood events.  It is thus reasonable to infer from the reasons that, despite any errors in the complainant’s testimony, there remained a body of credible evidence capable of proving the offences beyond a reasonable doubt.  The trial judge’s reasons thus explain the basis for the verdict reached. In meeting this standard, the trial judge’s reasons fulfilled their purposes.  That being so, the Court of Appeal was not entitled to substitute its own view of the complainant’s credibility (specifically, its concerns about her credibility being capable of raising a reasonable doubt) in the guise of impugning the sufficiency of the reasons.

III.  Conclusion

[16] I conclude that the  basis for convicting the accused in this case is intelligible from the trial judge’s reasons for judgment.  Therefore, I would allow the appeal and restore the trial judge’s verdict of guilty on all charges.

Appeal allowed.

Solicitor for the appellant:  Attorney General of British Columbia, Vancouver.

Solicitors for the respondent:  Peck and Company, Vancouver.

Solicitor for the intervener:  Attorney General of Ontario, Toronto.