19 October 2016

Rumpole and Reversible Error #nlpoli

Brian Tobin's favourite judge may be on his way to the Supreme Court of Canada but along the way he will probably have to answer a few questions about his decision in the appeal in R v S.B.

The case is on its way to the Supreme Court of Canada and Rowe will have to appear before a House of Commons committee before his appointment is confirmed.

Justice Malcolm Rowe wrote the decision with Justice Charles White concurring.  Chief Justice Derek Green dissented.

In the original case,  S.B. was acquitted by a jury of "two counts of sexual assault upon C.M. in addition to six charges of assault (five against C.M. and one against another complainant), one count of assault with a weapon (against C.M.) and one count of careless use of a firearm." (R. v S.B.,  2014 NLTD(G) 84)

In the appeal,  Rowe wrote that notwithstanding "the serious errors made by the trial judge outlined above, the jury verdict should not be set aside. I have reached this conclusion with reluctance given the unfair manner in which the complainant was dealt with." (2016 NLCA 20)

The Crown's appeal hinges on Rowe's decision to let the original acquittal stand - despite the serious errors - rather than send the case back for a new trial.

In his summary,  Rowe said that the "reading out of the text messages [consenting to an affair and engaging in anal intercourse] ran counter to considerations set out in s. 276 of Criminal Code. Full answer and defence ended with the complainant's admissions that she had an affair and that she was untruthful in her statements to the police concerning this. Because the complainant had already admitted her unfaithfulness, the reading of text had the effect of conjuring up the myth that complainant was likely to have consented to sexual intercourse with SB on occasions as charged because she was a woman of 'easy virtue'. 

"The trial judge was wrong in his analysis and erred in his application of the law of evidence with respect to the sex video. Its probative value in relation to complainant's credibility was questionable. The complainant stated to police that she did not prefer anal intercourse, but that she engaged in it to fulfil the desires of SB. There was no difference between the video showing complainant willingly participating in anal sex and the statement. There was considerable prejudicial effect. The trial judge erred in not permitting Crown to lead evidence to rebut suggestions of recent fabrication. 

"Although the trial judge made these serious errors, it was not appropriate to set aside the verdict. The complainant, by her untruthfulness and the inconsistencies in several areas of her testimony, gravely undermined her credibility. Given that the case turned in a very large measure on the complainant's testimony, this undermining of her credibility properly gave rise to a reasonable doubt. The nexus between the legal errors and the verdict was not shown."  [paragraphed for legibility]

The Attorney General of Newfoundland and Labrador is appealing the decision to the Supreme Court of Canada.  Iain Hollett, a lawyer with the Special Prosecutions Unit wrote the factum for the court.

“In effect,"  wrote Hollett, "the majority of the Court of Appeal transformed itself from the appellate court to the jury.”  Despite having found two serious errors committed by the trial judge,  " the majority of the Newfoundland and Labrador Court of Appeal, refused to order a new trial because C.M.’s impugned credibility 'could' give rise to a reasonable doubt,” Hollett wrote.

According to Legal Feeds, "the Newfoundland Crown [sic] argues that by “weighing” the inconsistencies of the complainant’s testimony, the majority did exactly what the Supreme Court said in R. v. Morin that an appellate court could not do — try to predict with certainty what happened in a jury room."

What would a properly instructed jury do if they didn't have the taint of Stack's errors?

Good question.

According to Rosellen Sullivan - R.B.'s lawyer -  the Crown appeal hasn't met "the high onus of satisfying the court that the trial judge’s errors might reasonably be thought, in the concrete reality of the case, to have had a material bearing on the acquittal."

Should be interesting when the appeal hits the Supremes in March of next year.

And as for Rowe's appointment, we don't need to wonder how Sullivan feels.  There she was, large as life, on the CBC on Monday.  The cutline under her photo in the online story says she thought it was a great day.
 "It's about time," [Sullivan] said. "Obviously, you want to have judges who represent the entire country, and we've never yet had a judge from Newfoundland and Labrador, and I think that's important for all areas of the country, but particularly where we haven't had one yet. It's groundbreaking. History is being made."
Next year might be groundbreaking as well,  if Mac's new friends overturn his decision and send RB back to trial in front of a new jury.  The Supremes don't usually get the chance to give a colleague a kick in the legal goolies right out of the gate.