R. v. Bergstrom

2003BCSC0589 IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Bergstrom, 2003 BCSC 589 Date: 20030417 Docket: 21198 Registry: Vancouver Regina v. Lawrence Dean Bergstrom Before: The Honourable Mr. Justice Bauman Reasons for Judgment Counsel for the Accused M. A. Nathanson Counsel for the Crown G. C. Banning Date and Place of Trial/Hearing: 14 March 2003 Vancouver, B.C. [1] Lawrence Dean Bergstrom appeals from his summary conviction for causing a disturbance and uttering a threat to the police officer driving the police wagon which transported him to jail. [2] The Crown concedes that the conviction for causing a disturbance is unreasonable and unsupported by the evidence and the appeal in that regard is allowed and an acquittal is entered. [3] I turn to the facts surrounding the uttering a threat conviction. [4] In brief compass, it was the evidence of Constable 1767 Neil that she placed the accused and one Blake in the police wagon at the scene of the disturbance. [5] It was her evidence that Mr. Bergstrom was putting up a significant struggle with various police officers at the scene and that it was very difficult for her to move Bergstrom into the police wagon. [6] The police wagon is divided into a number of separate compartments and Constable Neil testified that she placed Mr. Bergstrom in the left rear compartment. She did this, she said, because one is able to peer through the grate into this particular compartment before opening the door (something one cannot do with the forward compartments) and that this was desirable because Bergstrom was being difficult. [7] It was her evidence that she placed the compliant Blake in the front right compartment. [8] Constable Neil testified that she heard yelling, screaming and kicking coming from the compartments while driving the two men to 312 Main Street. [9] She said that on two occasions she pressed the intercom button for the left rear compartment and that she heard the occupant, Bergstrom we are to infer, make the threats to her. [10] Bergstrom gave evidence at trial and he denied uttering the threats. He maintained that he was placed in one of the front compartments of the wagon. Mr. Blake was called in Mr. Bergstrom's defence and he stated that it was he who actually made the threatening comments. [11] There are many other aspects to the evidence at trial which are detailed in the reasons of the learned provincial court judge, but that summary suffices to identify the essential issue of credibility which the trial judge faced. [12] It is the appellant's central submission that the trial judge erred by misapplying R. v. W.(D.) (1991), 63 C.C.C. (3d) 397, [1991] 1 S.C.R. 742, thereby effectively reversing the onus of proof. [13] To place this submission in the context of the trial judge's analysis, it is necessary to quote an extensive portion of the trial judge's reasons on conviction. [14] After her review of the evidence the learned trial judge goes on: [26] The issue that arises on this trial is credibility. The task of finding the facts and of determining what really happened involves the weighing of evidence but is not an exercise in preferring one witness' evidence over that of another. This is because the doctrine of reasonable doubt applies to the issue of credibility as it does to every other issue in a criminal trial. [27] That being so, I instruct myself as follows. If I accept the evidence of the accused, then I must and will acquit him. If I have a reasonable doubt based on the evidence of the accused or on the whole of the evidence, I must and will acquit him. If I cannot decide whether to accept or reject the evidence of the accused, then I must and will dismiss the charge. Triers of fact, whether judges or members of the jury are not able to look into a witness' mind to see whether the witness is speaking the truth, yet we must try to discern if we can where the truth lies. [28] Some aspects of a witness' testimony that I find helpful in this determination are as follows, and these are in no particular order. First, there is the sense of the evidence. When I apply my commonsense to the evidence, is the result that the testimony seems impossible or improbable or unlikely? Second, there is the ability of the witness to originally observe, to record in memory, and to recall the event. It is on occasion important that a witness has consumed alcohol in regard to this factor. Third, there is potential for motive to lie or mislead the court. The use of this factor for an accused assumes guilt, so for an accused's testimony, I simply ignore it. Fourth, there is the internal consistency of the testimony. I ask whether the witness' evidence changes while the witness is testifying. Fifth, there is the external consistency of the evidence. I ask whether the testimony of the witness is consistent with independent evidence which I have accepted in my role as trier of fact. Sixth, there is the existence of prior inconsistent statements or previous occasions when the witness is untruthful. On occasion a criminal record for certain offences may be applicable in regards to this factor. And seventh, and this is probably the least important of the factors, I look at the attitude and demeanour of the witness and I question whether the witness is evasive or belligerent or inappropriate in response. [29] Some or all of these factors, or perhaps the application of just one may lead to the moral certainty that a witness' testimony is not reliable. It is only when that moral certainty is present that an accused's testimony should be rejected, and my review of the testimony that I heard in this trial has kept all of these factors in mind, and in addition, the fact that the onus is on the Crown and that the ultimate burden of proof is beyond a reasonable doubt. [30] It will be apparent from my review of the evidence that I consider it would be unsafe to rely on Mr. Blake's evidence. I have considered Mr. Bergstrom's evidence carefully, and I consider it would be unsafe to rely on his evidence as well. His evidence was nonsensical in some respects. It was internally inconsistent and it was inconsistent with evidence which I do accept such as Constable Neil's description of the interior of the wagon. [31] I have no hesitation in concluding that although it is possible that Constable Neil was mistaken in some of what she said, there's no doubt that her description of the wagon's interior was accurate. Constable Neil's evidence was clear and consistent. She wrote a report to the Crown respecting the event which served as her notes. Her evidence was detailed and she was able to give reasons for all of her actions. I do accept what she said. [32] Mr. Bergstrom, would you stand up, please, sir, so that I can formally give my verdict? With respect to counts 3 and 4 in this Information, I find you guilty as charged, sir. [15] The appellant stresses paragraph 30 of the reasons and submits: 34. In the case at bar, the trial judge's analysis of the testimony of the accused and the other defence witness was flawed in several respects. First, the Court rejected the testimony, stating that, from a review of the evidence, it would be "unsafe" to rely upon it. By importing this improper standard of analysis to the evidence, the Court failed to consider whether the evidence of the defence witnesses raised a reasonable doubt. In addition, there was a failure to determine whether, on all the evidence which was accepted, a reasonable doubt yet existsed [sic]. 35. Moreover, by importing a legal notion of "safety" to the evidence of the defendant and a second defence witness, the trial judge reversed the onus with respect to these pieces of evidence. [16] The Crown of course submits that it is necessary to read the trial judge's reasons as a whole: [that] it is wrong to analyze a trial judge's reasons by dissecting them into small pieces and examining each piece in isolation as if it described, or was intended to describe, a legal principle applied by the trial judge. [R. v. Morrissey [1995] O.J. No. 639 (Ont. C.A.) pp.7-8]. [17] Counsel for the Crown submits: 31. that it is not reasonable to suppose that the Learned Trial Judge's remarks that it was unsafe to rely on the Appellant's evidence (or Mr. Blake's) represented a sudden departure from the principles she had correctly articulated seconds earlier. The Respondent submits that neither is it reasonable to suppose that the Learned Trial Judge suddenly forgot what she evidently knew moments earlier, that the concept of reasonable doubt applies to the issue of credibility. [18] Crown counsel began her submission by acknowledging that the use of the word "unsafe" in paragraph 30 of the reasons of the trial judge was not "felicitous", but counsel's central premise is that the trial judge correctly articulated the applicable principles "seconds earlier". [19] Is that so? Is paragraph 30 simply a slight misstep in an otherwise flawless statement of the principles? [20] It is said that the trial judge correctly paraphrased the incantation in W.(D.), supra. [21] I reproduce Justice Cory's model charge in that case (at C.C.C. 408): First, if you believe the evidence of the accused, obviously you must acquit. Secondly, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Thirdly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [22] To that one should add Justice Wood's fourth point stated in R. v. H.(C.W.) (1991), 68 C.C.C. (3d) 146 (B.C.C.A.): "If, after a careful consideration of all of the evidence, you are unable to decide whom to believe, you must acquit." [23] It will be seen that the trial judge's paraphrase of W.(D.) and C.W.H. is inaccurate in two respects. [24] First, she characterizes the second alternative from W.(D.) as: " If I have a reasonable doubt based on the evidence of the accused ". [25] The trial judge does not expressly recognize, as W.(D.) does, that the reasonable doubt raised by an accused's testimony may arise even where the trier of fact does not believe that testimony. [26] Second, the trial judge misstates Justice Wood's addition to the formula set out in W.(D.), in C.W.H. [27] The trial judge says: " If I cannot decide whether to accept or reject the evidence of the accused, then I must and will dismiss the charge. ". [28] On the contrary, the trial judge should have said: "If after a careful consideration of all the evidence I am unable to decide whom to believe, I must acquit." [Emphasis added.] [29] Justice Wood's formulation is much broader than that of the trial judge. His calls for a consideration of all of the evidence and it is directed to a consideration of whom to believe. [30] The trial judge, however, restricts her consideration to the evidence of only the accused and an inability to "accept or reject" his or her evidence. Conceivably, one could disbelieve an accused's evidence and still be left unable to decide whom to believe among various witnesses called in the case of the Crown and that of the defence. [31] In Brooks v. the Queen (1999), CMAC-426, my colleague Bennett J., sitting as a justice of appeal on the Court Martial Appeal Court of Canada, made the same point in a slightly different context (at ¶ 41): [41] The case law is clear that a trial judge is not obliged to articulate verbatim the language used in R. v. W.(D.) (1991), 63 C.C.C. 93d) 397 S.C.C. However, the analysis of credibility as between two parties must be based on the fact that the Crown throughout has the burden of establishing guilt beyond a reasonable doubt and the trier must consider all of the evidence to determine if all of the evidence leaves him with a reasonable doubt as to the guilt of the accused. That basic principle must be kept in mind throughout the reasoning process. The reasons for judgment in this case indicate that it was not. [32] The first infirmity in the trial judge's paraphrase of W.(D.), is further exacerbated later in her reasons at ¶ 29: [29] Some or all of these factors, or perhaps the application of just one may lead to the moral certainty that a witness' testimony is not reliable. It is only when that moral certainty is present that an accused's testimony should be rejected, and my review of the testimony that I heard in this trial has kept all of these factors in mind, and in addition, the fact that the onus is on the Crown and that the ultimate burden of proof is beyond a reasonable doubt. [33] I will assume, although it is by no means clear, that "not reliable" equates with "disbelieve". Still, the trial judge here is perilously close to the so-called Miller error (R. v. Miller (1991), 68 C.C.C. (3d) 517) (Ont.C.A.)). That is, she talks of rejecting the accused's testimony once she has reached a moral certainty that the testimony is not reliable. [34] This is akin to the Miller misdirection - telling the trier of fact that: "The things that you choose not to accept must not be taken into account when arriving at your verdict". [35] The W.(D.) direction avoids that error, because it tells the trier of fact to consider the accused's testimony, even if it is not believed, for the purpose of deciding whether it nevertheless raises a reasonable doubt. [36] That brings us to paragraph 30 of the trial judge's reasons, where, I respectfully conclude, these errors are compounded. [37] Here the trial judge introduces the criterion of "safe to rely" in the assessment of the testimony of the accused and his witness, Mr. Blake. [38] It is, with respect, a threshold unknown to the law in the context of an accused person and the presumption of innocence. [39] By concluding that it would be unsafe to rely on the evidence of Mr. Bergstrom and that of Mr. Blake, the trial judge can only be suggesting that an accused must meet some evidentiary burden ( of reliability/credibility) before the trier of fact may "rely" on that testimony, that is presumably, before one can accept the evidence as giving rise to a reasonable doubt. [40] That is to cast an onus on the accused which is anathema to our traditions of criminal law. [41] As W.(D.) makes clear, an accused is entitled to an acquittal in our system of justice even if his or her evidence is not believed by the trier of fact if it, however, raises a reasonable doubt as to guilt. [42] In paragraph 30, the trial judge, in my view, repeats the error which I earlier identified. That is, the trial judge no where in paragraph 30 asks herself the question: Notwithstanding my disbelief in the testimony of Bergstrom and Blake does their testimony nevertheless raise a reasonable doubt as to Bergstrom's guilt? [43] Or even in the trial judge's "infelicitous" words: Notwithstanding my conclusion that it would be unsafe to rely on their testimony, does it nevertheless raise a reasonable doubt? [44] The Ontario Court of Appeal has recently had occasion to consider the sufficiency of a trial judge's reasons for judgment in R. v. Brown (2002), 170 C.C.C. (3d) 37. [45] Justice Catzman acknowledged (at ¶ 30) that "this court has gone on record as discouraging the microscopic analysis of a trial judge's reasons for the purpose of finding reversible error: R. v. G.W. (1996), 93 O.A.C. 1, at para. 69." [46] But that did not deter the Ontario Court of Appeal from doing something approaching that in Brown for the reasons there expressed. [47] Here I have analyzed the trial judge's reasons closely, not, I hope, microscopically. And if I have, I have also endeavoured to take a macro view of her general self-charge on the law. [48] In my view, the problem in paragraph 30 of the trial judge's reasons is not to be characterized as an isolated error - a simple case of misspeaking - in an otherwise totally correct charge on the law. [49] It is rather the culmination of a problem which arose at the outset in paragraph 27 of the reasons viz. a failure to acknowledge that disbelief in the testimony of the accused and his witness is not the end of the enquiry, it can still form the basis for a reasonable doubt as to guilt. [50] Mr. Nathanson submits of course that a new trial should be directed if I give effect to his first submission, as I have. [51] However, he goes further and asks that the verdict be set aside as unreasonable and not supported by the evidence. Counsel asks that an acquittal be entered. [52] The test in considering such a submission is set out in R. v. Biniaris, [2000] 1 S.C.R. 381. [53] Quoting from the headnote: The proper test is "whether the verdict is one that a properly instructed jury acting judicially could reasonably have rendered". In embarking on the exercise mandated by s. 686(1)(a)(i), the reviewing court must engage in a thorough re-examination of the evidence and bring to bear the weight of its judicial experience to decide whether, on all the evidence, the verdict was a reasonable one. It is not sufficient for the reviewing court to simply take a different view of the evidence than the trier of fact. Nor is it sufficient for the court of appeal to refer to a vague unease, or a lingering or lurking doubt based on its own review of the evidence. While a "lurking doubt" may be a powerful trigger for thorough appellate scrutiny of the evidence, it is not, without further articulation of the basis for such doubt, a proper basis upon which to interfere with the findings of the trier of fact. Rather, the appeal court, if it is to overturn the verdict, must articulate the basis upon which it concludes that the verdict is inconsistent with the requirements of a judicial appreciation of the evidence. [54] In looking at and weighing the evidence before the trial judge in its entirety, I cannot say here that the verdict is one that a properly instructed trier of fact, acting judicially, could not reasonably have rendered. [55] In the result the appeal is allowed and a new trial is ordered. "R.J. Bauman, J." The Honourable Mr. Justice R.J. Bauman