Gelinas v. R.

Gelinas v. R. Court Supreme Court Date 2024-08-30 Citation 2024 NSSC 250 Docket 522688 Judge/Registrar/Adjudicator Bodurtha, John P. (Honourable Justice) Document Type Decision Decision Content SUPREME COURT OF Nova Scotia Citation: Gelinas v. R., 2024 NSSC 250 Date: 20240830 Docket: 522688 Registry: Halifax Between: Marcel Francois Gelinas Appellant v. His Majesty the King Respondent DECISION Restriction on Publication: By court order made under subsection 486.4 of the Criminal Code, information that may identify the person described in this decision as the complainant may not be published, broadcasted or transmitted in any manner. Judge: The Honourable Justice John Bodurtha Heard: March 1, 2024, in Halifax, Nova Scotia Counsel: Ian D. Hutchinson, for the Appellant Kacie Oliver, for the Respondent By the Court: Background [1] The appellant was convicted of voyeurism and trespassing at night, contrary to ss. 162(1)(a) and 177 of the Criminal Code, with respect to an event that occurred on September 25, 2020. The trial judge found that the appellant had gone to the residence of his ex-intimate partner (J.M.) that evening and watched her engage in sexual activity with another person. [2] The appellant was also charged, and acquitted, of criminal harassment arising from the same set of facts. That decision is not part of this appeal. [3] At trial, the Crown called five witnesses: A.W. and S.S., two of the appellant’s friends to whom the appellant admitted watching J.M. have sexual intercourse; J.M.; B.G. (J.M.’s new intimate partner); and Cst. Chad Power. [4] The appellant did not testify nor call any evidence. [5] The issues raised by the defence were (1) did the appellant in fact make the admissions to A.W. and S.S.; and (2) if he did, were they reliable enough to find him guilty beyond a reasonable doubt given his intoxicated and compromised mental state when he made them? The defence urged the trial judge to find sufficient independent corroborative evidence before finding the appellant’s admissions made to his friends were reliable. The defence did not provide any legal authority to support this request. [6] The trial judge found the appellant did make the statements A.W. and S.S. attributed to him (Appeal Book, Decision, p. 42, lines 10-15; p. 43, lines 8-19). He also found that, while he needed to “consider the reliability of those statements with care”, there was “sufficient corroborating evidence” leading him to “conclude that the statements … [were] reliable” (Appeal Book, Decision, p. 44, lines 1-3). He also considered, and rejected, other possible explanations for the appellant’s “extreme” behaviour, ultimately determining the evidence showed the cause of the appellant’s behaviour was actually seeing his ex-partner have sexual intercourse with another person (Appeal Book, Decision, p. 44, lines 9-20). [7] On March 8, 2023, the appellant was sentenced to a conditional discharge following 24 months of probation. [8] The appellant now seeks to have this Court overturn his convictions. Facts [9] The facts were laid out in the Crown’s factum, and I have reproduced many of them here. [10] The appellant and J.M. were in a relationship that J.M. ended in March 2020 (Appeal Book, Transcript, p. 230, line 6 to p. 231, line 8). The appellant did not want to break up (Appeal Book, Transcript, p. 233, lines 9-17). At first, he would make comments such as “I’ll do whatever it takes” but then would get angry at her for leaving (Appeal Book, Transcript, p. 233, line 9 to p. 234, line 4). When asked if they interacted between the day they separated and the day the police approached her about this incident on September 27, 2020, she explained they had during child exchanges and when he came over to her new house a couple of times (Appeal Book, Transcript, p. 235, line 3 to p. 236, line 6). [11] A.W. testified that on September 26, 2020, he went to the appellant’s house (Appeal Book, Transcript, p. 187, lines 1-6; p. 189, lines 1-6, 16-21) and found the appellant upset and “really, really drunk” (Appeal Book, Transcript, p. 189, line 18 to p. 190, line 13; p. 199, line 14). He testified the appellant said that J.M. “and the guy … were having sex inside and that he seen them having sex, and that upset him a lot” (Appeal Book, Transcript, p. 192, lines 10-17). The appellant said he watched them from the woods behind the house the night before (Appeal Book, Transcript, p. 192, lines 18-21; p. 211, lines 9-13; p. 226, lines 10-15). The appellant further told A.W. that “buddy’s car was out front”, that he went inside the car, and saw the male’s wallet and “that he was in the military” (Appeal Book, Transcript, p. 194, lines 13-21). The appellant was also “talking a lot about hurting himself” and at one point put a noose around, and a knife up to, his neck (Appeal Book, Transcript, p. 198, lines 7-8). [12] S.S. testified that on September 26, 2020, he went to the appellant’s house after A.W. contacted him and found the appellant “quite distraught” (Appeal Book, Transcript, p. 347, line 11 to p. 348, line 10; p. 349, line 3). He testified the appellant was crying, told him what he had done the previous evening, and asked him, “[S.S.], do you know what a creep I’ve become?” (Appeal Book, Transcript, p. 349, lines 7-13). The appellant then explained to him that “he had watched” J.M.’s house “from the woods at around nine o’clock when his children went to bed”. The appellant then told him that “[s]ome man showed up … they went in the house … he told me he, he went up to the window and he, he watched them have sex” (Appeal Book, Transcript, p. 349, lines 14-20). The appellant was also talking about suicide and was in a mental health crisis (Appeal Book, Transcript, p. 351, lines 17-21; p. 370, line 18 to p. 372, line 1). [13] J.M. testified she began dating B.G. in September 2020 and that she never talked to the appellant about who she was dating—despite him asking (Appeal Book, Transcript, p. 231, lines 9-15; p. 236, lines 7-14). She also testified that she and B.G. were at her house on September 25, 2020 (Appeal Book, Transcript, p. 237, line 18 to p. 238, line 18; p. 249, lines 10-19). B.G. confirmed the same when he testified that he went to her house the day before he left for Ontario around September 25, 26, or 28, 2020 (Appeal Book, Transcript, p. 322, line 2 to p. 323, line 20). He left for Ontario on the Saturday morning and he had gone to J.M.’s the evening before—a Friday evening, he thought (Appeal Book, Transcript, p. 322, line 6 to p. 324, line 5). They also both testified B.G. was in the military (Appeal Book, Transcript, p. 238, line 8; p. 321, lines 3-13) and that they had sexual intercourse the evening in question (Appeal Book, Transcript, p. 249, lines 13-19; p. 327, line 1 to p. 328, line 2). [14] J.M. testified that her house was a two-level split-entry semi. Her bedroom was on the second level along with the kitchen, living room, and a bathroom (Appeal Book, Transcript, p. 241, lines 6-10, 14). The kitchen and her bedroom were at the back of the house. There was a patio off her kitchen (Appeal Book, Transcript, p. 242, lines 4-9). When looking directly out of her bedroom window, she would see the backyard and a wooded area and, to her left, the patio (Appeal Book, Transcript, p. 243, lines 1-11). There was a flight of stairs to get onto the deck (Appeal Book, Transcript, p. 286, lines 6-8). The backyard was fenced, but the fence was only about four feet high. The wooded area is behind the backyard (Appeal Book, Transcript, p. 242, lines 10-17). [15] J.M. could not say whether the blinds on her bedroom window were closed or not on the evening in question. However, B.G. evidence was when defence counsel suggested to him that they were shut, he responded “yes” but, after counsel stated “okay”, he then immediately qualified that answer by saying, “[t]hey should, should have been” (Appeal Book, Transcript, p. 335, line 20 to p. 336, line 4). [16] At the conclusion of the trial the appellant was convicted of loitering at night and voyeurism and acquitted of criminal harassment. He was sentenced to a two-year conditional discharge. Issues [17] The issues are as follows: (1) Did the trial judge err in finding that the appellant’s admissions against self-interest were sufficiently reliable to support a finding beyond a reasonable doubt that he had committed the offences? (2) Did the trial judge err by engaging in speculative and/or stereotypical reasoning in concluding that the appellant’s extreme behaviour was caused by seeing his ex-partner and her new partner engage in sexual intercourse? (3) Did the trial judge misapprehend the evidence? Standard of Review [18] In R. v. Stanton, 2021 NSCA 57, the Court of Appeal affirmed the standard of review applicable to summary conviction appeals: 47 This Court in R. v. Pottie, 2013 NSCA 68 identified the two standards of review in play in summary conviction matters: the standard of review to be applied by the SCAC judge reviewing the trial decision, and the standard of review to be applied to the review by this Court of the SCAC judge's decision. Pottie describes these standards of review: [16] The standard of review for the SCAC judge when reviewing the trial judge's decision, absent an error of law or miscarriage of justice, is whether the trial judge's findings are reasonable or cannot be supported by the evidence. In undertaking this analysis the SCAC court is entitled to review the evidence at trial, re-examine it and re-weigh it, but only for the purposes of determining whether it is reasonably capable of supporting the trial judge's conclusions. The SCAC is not entitled to substitute its view of the evidence for that of the trial judge. [19] The above standard applies to questions of fact and is also often referred to as the “overriding and palpable” standard of review (R. v. Davidson, 2022 NSSC 327, paras. 13-14). [20] Similarly, questions of mixed law and fact are also reviewable for “overriding and palpable error” except where the question includes or constitutes a pure error of law (Housen v. Nikolaisen, 2022 SCC 33, paras. 26-37). [21] Questions of law are reviewable for correctness (Housen v. Nikolaisen, para. 8). Analysis Issue 1 - Did the trial judge err in finding that the appellant’s admissions against self-interest were sufficiently reliable to support a finding beyond a reasonable doubt that he had committed the offences? [22] This ground of appeal focuses on the ultimate reliability or truthfulness of the statements, not their admissibility. Whether a statement is true is a question of fact (R. v. Schneider, 2022 SCC 34, para. 43). [23] The appellant challenges the trial judge’s finding that what he told A.W. and S.S. was “sufficiently reliable to support a finding beyond a reasonable doubt that he had committed the offences” (Appellant’s Factum, p. 5), [24] In Schneider the Supreme Court of Canada considered the admissibility of party admissions within the criminal trial process and said: 53 In criminal trials, a party admission will be evidence that the Crown adduces against an accused. As explained in Evans, the common law justifies allowing party admissions into evidence on the basis that a party cannot "complain of the unreliability of his or her own statements" (Evans, at p. 664). Unlike many other exceptions, justification for allowing party admissions does not relate to necessity or reliability (Vauclair and Desjardins, at p. 911). This is one aspect in which party admissions do not conform to general rules. 54 This was confirmed by Charron J. in Khelawon: "Some of the traditional exceptions stand on a different footing, such as admissions from parties .... [T]he criteria for admissibility are not established in the same way" (para. 65). See also Hart, at para. 63; Couture, at para. 75; S.G.T., at para. 20; R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865, at para. 82.s 55 Accordingly, party admissions are admissible without reference to necessity and reliability (R. v. Gordon Gray, 2021 QCCA 882, at paras. 27-28 (CanLII); R. v. Foreman, (2002), 169 C.C.C. (3d) 489 (Ont. C.A.), at para. 37; R. v. Osmar, 2007 ONCA 50, 84 O.R. (3d) 321, at para. 53; R. v. Lo, 2020 ONCA 622, 152 O.R. (3d) 609, at para. 81). Thus, with the exception of the "rare cas[e]" where judges retain discretion to exclude any hearsay evidence on the basis that it is unreliable or unnecessary (Mapara, at para. 15), reliability and necessity are not relevant to the admissibility of a party admission. [25] In R. v. Evans, [1993] 3 S.C.R. 653, the Supreme Court of Canada held that the truthfulness of an admission against self-interest are matters for the trier of fact: 36 In my opinion, this is the correct approach to be applied in respect of the authenticity of admissions. If there is some evidence to permit the issue to be submitted to the trier of fact, the matter must be considered in two stages. First, a preliminary determination must be made as to whether, on the basis of evidence admissible against the accused, the Crown has established on a balance of probabilities that the statement is that of the accused. If this threshold is met, the trier of fact should then consider the contents of the statement along with other evidence to determine the issue of innocence or guilt. While the contents of the statement may only be considered for the limited purpose to which I have referred above in the first stage, in the second stage the contents are evidence of the truth of the assertions contained therein. [26] The parties agree that the statements of the appellant were not made to a person in authority and this Court should not consider principles relating to statements made to a person in authority and should have no concerns regarding the admissibility of the statements. I agree and find that this ground of appeal is properly about the weight or reliability of the appellant’s statements, not their admissibility. [27] The appellant argues that the trial judge erred in finding that the statements made by the appellant were true. They list the following 7 bullets as examples of evidence to the contrary (Appellant’s Factum, p. 7): • A lack of detail in the statements made by the Appellant. • There were no witnesses to the activities in question. • There was no evidence that the Appellant had driven to J.M.’s home i.e. video footage or cell triangulation phone evidence putting the Appellant within the area of the residence. • There was no evidence of anyone having positioned himself in the woods at the rear of J.M.’s property i.e. trampled grass. • There was an absence of clear evidence that the blinds to the bedroom were open. J.M. testified she was uncertain if the blinds were open. B.G. testified the blinds were closed. • There was clear evidence from B.G. that he had locked his car containing his military identification. • There was no forensic evidence establishing the Appellant had been at the property. [28] In addition, the appellant argues that the trial judge relied on the statements without any corroborative evidence. The appellant provided no authority to support this position that corroborative evidence was necessary. In fact, independent confirmatory or corroborative evidence or other circumstantial guarantees of truthfulness, while helpful, are not required to find that statements (which are admissible as a party admission) made by an intoxicated person with mental health issues are true. [29] I find the appellant’s list as “evidence to the contrary” of the truth of the appellant’s statements is not of assistance. Bullets 2-5, and 7 merely identify the absence of some evidence that is available in some prosecutions. To require independent confirmatory and/or corroborative evidence of the nature listed in the appellant’s factum, in these circumstances, finds no basis in law (e.g., forensic evidence is not a requirement to find that someone’s statement is reliable). [30] In any event, there was independent confirmatory and/or corroborative evidence in this case for the trial judge to rely on in reaching the conclusion that the appellant’s statements were true: • There are multiple vantage points of the house from the woods behind J.M.’s yard (Appeal Book, Transcript, p. 298, lines 7-17). • It is physically possible for someone to go up to J.M.’s bedroom window by ascending the flight of stairs leading up to her back patio/deck. • Both J.M. and B.G. testified they were at her residence on the night in question engaging in the very activity the appellant said he witnessed (Appeal Book, Transcript, p. 237, line 18 to p. 238, line 18; p. 249, lines 10-19; p. 322, line 2 to p. 324, line 5; p. 327, line 1 to p. 328, line 2). • This was the last evening before B.G. left the province for work and they did not know when they would see each other again (Appeal Book, Transcript, p. 238, lines 6-13; p. 327, lines 15-19). • The appellant told A.W., B.G. was in fact in the military (Appeal Book, Transcript, p. 238, line 8; p. 321, lines 3-13). The evidence suggested it was highly unlikely the appellant would have known that from a different source (Appeal Book, Transcript, p. 236, line 7 to p. 237, line 9). Thus, his knowledge of B.G.’s profession added weight to his admission to A.W. that he had gone into the other person’s vehicle that evening and discovered he was in the military (Appeal Book, Transcript, p. 194, lines 13-21). • The appellant still loved her, thought she was amazing, didn’t want to lose her (Appeal Book, Transcript, p. 197, lines 19-21), and wanted to know if she was dating anyone (Appeal Book, Transcript, p. 236, lines 10-11). [31] Further, regarding bullet 5 and whether the blinds were closed. B.G. backtracked a bit from his initial response confirming the blinds were closed to the position that they “should have been” closed (Appeal Book, Transcript, p. 335, line 20 to p. 336, line 4). [32] In all the circumstances, coupled with the basic principle that a judge can accept all, none, or some of a witness’s evidence and the fact it is common for witnesses to be mistaken on peripheral matters, the trial judge’s implied finding that the blinds must have been open enough to see in J.M.’s bedroom was reasonably available on the evidence. [33] Regarding bullet 1 the “lack of detail”. These oral utterances were not akin to a fulsome police statement: neither A.W. nor S.S. were trying to obtain information from him. As noted, A.W. was in shock because he could not believe what he was hearing and S.S. expressly stated he “changed the subject pretty quickly” (Appeal Book, Transcript, p. 351, lines 3-4). There is no suggestion that A.W. and S.S. misunderstood what the appellant was saying. [34] Further, S.S. testified that: • Although the appellant was uncharacteristically “very intoxicated”, including falling asleep on the couch at times and slurring his words (Appeal Book, p. 353, lines 16-17; p. 354, lines 6-8; p. 369, line 4 to p. 370, line 12; p. 378, lines 1-13), and in a mental health crisis talking about killing himself (Appeal Book, p. 351, lines 18-21; p. 370, line 18 to p. 372, line 6), they “were able to communicate” and he “could understand everything [the appellant] said” (Appeal Book, p. 354, lines 9-12). • While “it was not common to see him that drunk”, he “wouldn’t say [the appellant was] the most inebriated” he had ever seen him (Appeal Book, p. 377, line 20 to p. 378, line 13). • While it did not make sense to him that the appellant was threatening to kill himself, he still “understood what he was saying” (Appeal Book, p. 372, lines 2-12). • When S.S. commented on the appellant’s nice shed and said he needed a new shed in an attempt to steer the conversation away from suicide, the appellant responded in a way that showed he understood the conversation when he said that S.S. could have it “when he was gone” (Appeal Book, p. 352, lines 3-5). • The appellant referred to himself as a “creep” (Appeal Book, p. 349, lines 12- 13) which indicates he was self-aware at the time. [35] Regarding bullet 6 on the appellant’s list, the trial judge noted B.G.’s evidence that he had locked his car containing his military identification and determined that, given his poor recall, he was “likely wrong” on that point (Appeal Book, Transcript, p. 45, lines 10-13). This was not an unreasonable conclusion reached by the trial judge on this peripheral detail because there was no other way the appellant would have known B.G. was in the military other than going through his car. J.M. was guarded about providing the appellant with details on who she was seeing. It was reasonable for the trial judge to find that the appellant was telling the truth about going through B.G.’s car and that B.G. was mistaken that he locked the car (Appeal Book, Transcript, p. 45, lines 10-18, 19-21; p. 46, lines 1-3). [36] Concerning ultimate reliability, I find that the entire context in which the appellant’s statements came about was enough for the trial judge to reasonably find the statements were true. The trial judge’s finding was entirely reasonable. [37] Finally, it is of note the appellant did not testify at trial. While his silence could not be used by the trial judge to find him guilty beyond a reasonable doubt, the evidence the trial judge had before him clearly convinced him of his guilt, “subject only to the existence of an innocent explanation”. In those circumstances, “the absence of an innocent explanation may be considered … by an appellate court reviewing the [judge’s] decision, in entering or upholding a conviction” (R. v. Noble, [1997] 1 S.C.R. 874 (S.C.C.), para. 103-104; recently affirmed in R. v. George-Nurse, 2019 SCC 12, paras. 1-2). The Supreme Court of Canada accepted the words of the majority of the Court of Appeal in George-Nurse, that this was the “paradigm of a case to meet, far removed from ‘no case to answer’” (para. 1, citing R. v. George-Nurse, 2018 ONCA 515, para. 34). [38] The appellant’s silence is significant in the context of this specific ground of appeal given that the basis for admitting his statements to his friends in the first place is “that a party cannot ‘complain of the unreliability of his or her own statements’” (Schneider, para. 53, citing Evans, p. 664). [39] I find there is no basis to interfere with the trial judge’s finding that the appellant’s statements were sufficiently reliable to be assessed in the body of the evidence. I dismiss this first ground of appeal. Issue 2 - Did the trial judge err by engaging in speculative and/or stereotypical reasoning in concluding that the appellant’s extreme behaviour was caused by seeing his ex-partner and her new partner engage in sexual intercourse? [40] The trial judge found as fact that the appellant’s consumption of alcohol, the deterioration in his mental health and his suicidal ideation was not caused by the break-down in the relationship between the appellant and J.M. Rather the appellant’s reaction was caused by him witnessing J.M. and B.G. engage in sexual intercourse. [41] This issue engages factual causation. As noted above, a trial judge’s factual findings are only reviewable for overriding and palpable error. However, if a judge uses speculative and/or stereotypical reasoning when arriving at those findings, that is an error of law (R. v. J.C., 2021 ONCA 131, paras. 63, 112). That said, using such impermissible reasoning only justifies appellate intervention when it “‘ground[s]’ the relevant inference by playing a material or important role in the impugned conclusion”, as opposed to drawing an impermissible inference about a peripheral matter (J.C., para. 71, cited in R. v. Horne, 2023 NSCA 64, para. 51). [42] The appellant argues that the trial judge’s finding that the appellant’s reaction of being intoxicated, experiencing mental health problems and suicidal ideation was consistent with him having observed J.M. and B.G. engaged in sexual intercourse was based upon stereotypical reasoning as to how an ex-partner would react in these circumstances. [43] The appellant submits that there was no direct evidence that witnessing these events caused the appellant to consume alcohol, have a deterioration in his mental health and suicidal ideation. This was an inference drawn by the trial judge based upon speculation and not grounded in the evidence before the Court which is an error of law. [44] A trier of fact may properly rely on common sense or human experience when deciding which inferences to draw, but the assumptions must be “grounded in the evidence or appropriately supported by judicial notice”. If the assumption is not grounded in one or the other, then it is mere speculation, which is impermissible (Horne, para. 51 citing J.C., paras. 58-60). [45] The rule against stereotypical reasoning means factual findings cannot be based on generalizations about how the trier of fact may expect a member of a defined group to act. However, it is acceptable to draw a factual conclusion that may also reflect a stereotype if that inference is not based on the stereotype “but is, instead, based on the evidence” (Horne, para. 51 citing J.C., paras. 63-65, 68-70). [46] The trial judge did not employ speculative nor stereotypical reasoning about how someone who saw their ex-partner have sexual intercourse with another person would react. His specific finding was that the appellant’s “degree of upset and his level of intoxication are consistent with a person still in love with his ex-partner who has recently witnessed that person have sex with another person” (Appeal Book, Transcript, p. 44, lines 4-7). This finding is grounded in the evidence and is not the only reason for finding the appellant’s reaction was caused by seeing his ex-partner engage in sexual intercourse with another person (Appeal Book, Transcript, p. 44, line 8 to p. 45, line 4). [47] First, there was evidence showing the appellant was “still in love with his ex-partner” and, contrary to the appellant’s assertion, there was evidence of his response to the breakdown of his relationship. In particular, the trial judge correctly noted that: • A.W. testified that, on September 26, 2020, the appellant was still “upset over he and his ex … splitting up” (Appeal Book, Transcript, p. 12, lines 3-5, lines 15-17), that the appellant said “he still loved her, he thought she was amazing, and he didn’t want to lose her” (Appeal Book, Transcript, p. 13, lines 18-21), and that the appellant mentioned he was practicing picking locks and the idea of planting a listening device in J.M.’s house (Appeal Book, Transcript, p. 13, lines 12-14). • A.W. also testified that the appellant told him once that if “[J.M.] was with somebody, sexually or in a relationship, that he would–that that would upset him and he didn’t know what he’d do” (Appeal Book, Transcript, p. 14, lines 5-9; p. 201, lines 5-7). • S.S. testified the appellant “said that he still loved [J.M.], he was distraught that she left, and he wanted his family back” (Appeal Book, Transcript, p. 29, lines 10-12). • J.M. testified that breaking up was her decision and that the appellant “didn’t want to break up” and “instead wanted them to work things out” (Appeal Book, Transcript, p. 16, lines 14-17). • J.M. also testified that when the appellant was at her house on an occasion after the breakup, “he had taken some pictures of text messages on her phone” (Appeal Book, Transcript, p. 16, line 20 to p. 17, line 1). • J.M.’s evidence that the appellant would first act as if he would do anything to make her stay but then became “angry at [her] for making the decision to leave” (Appeal Book, Transcript, p. 233, line 17 to p. 234, line 4). [48] The above evidence shows the appellant was not just any ex-partner who saw his ex-partner have sexual intercourse with someone else: he was an ex-partner who, at the relevant time, was still in love with his ex-partner, still wanted to be with her, wanted to know—and was contemplating ways to find out—who she was dating, and would be so upset if she was with someone else that he would not know what to do. Based on the evidence of how the appellant still felt about J.M. his reaction made sense in the situation. Even though the appellant had suspicion that J.M. may have been dating other people he never responded in this way until that evening. The fact that this reaction was uncharacteristic for him also suggests that some new event caused him to react this way. I interpret the trial judge’s use of the word consistent as saying he finds the appellant’s reaction made sense logically and was consistent based on the evidence before him of the appellant saying he was still in love with J.M., did not know what he would do if she was in love with someone else, and him seeing her actually engaging in sexual intercourse with someone else. [49] These factors lead me to conclude that the trial judge correctly noted all the evidence that was specific to the appellant and that supported the inference that the reason he was so upset and intoxicated was because he saw what he told his friends he saw: the person he still loves and does not want to lose have sexual intercourse with someone else. [50] Second, the trial judge correctly noted from all the evidence that this behaviour was uncharacteristic for the appellant, suggesting that a new event or new information triggered this behaviour. In particular, he noted J.M. testified the “break-up had occurred many months prior” (Appeal Book, Transcript, p. 44, line 11) and the appellant had already suspected J.M. was romantically involved with someone else (Appeal Book, Transcript, p. 44, line 15 to p. 45, line 2). However, A.W. and S.S. had never seen the appellant like that before (Appeal Book, Transcript, p. 44, lines 12-14; p. 45, lines 2-4). [51] Third, the trial judge also considered the corroborating evidence from J.M. confirming she and B.G. were in fact engaging in the very activity on the very day that the appellant claimed (Appeal Book, Transcript, p. 17, lines 5-8; p. 18, lines 4-6; p. 24, line 10 to p. 25, line 14). [52] I conclude that the trial judge did not engage in stereotypical behaviour or reasoning in his decision. The appellant’s argument that the trial judge engaged in stereotypical reasoning because there was “no direct evidence” that the appellant consumed alcohol and wanted to kill himself because of what he had seen is not persuasive. After reviewing the evidence, I find that inference was easily drawn from the circumstances. The trial judge did not engage in impermissible reasoning. Instead, the trial judge grounded his findings on the evidence, and I dismiss this ground of appeal. Issue 3 - Did the trial judge misapprehend the evidence? [53] This ground of appeal involves a two-step inquiry. The first question is whether the trial judge “ma[de] a mistake as to the substance of the evidence, fail[ed] to consider evidence relevant to a material issue, or fail[ed] to give proper effect to the evidence” (R. v. Deepak, 2024 NSCA 12, para. 35). Whether the trial judge misapprehended the evidence is, “at most”, a question of mixed fact and law, unless the trial judge erred “as to the legal effect of found facts” (R. v. Percy, 2020 NSCA 11, para. 125, citing with approval Ewaschuk, Criminal Pleadings and Practice in Canada, 2nd ed., vol. 3, loose-leaf (Toronto: Canada Law Book), § 23:1022). [54] It is true that not every misapprehension is a reversible error. The “misapprehension must have played an essential part in the reasoning process that led to conviction”. A misapprehension in peripheral reasoning is not sufficient (Deepak, para. 35). Appellate “intervention is only justified where a trial judge has made an egregious error” of the nature described above (Deepak, para. 36). [55] An appellate court must also avoid conflating an alleged misapprehension with a request to merely draw different inferences, reconsider the evidence, or arrive at other conclusions (R. v. Murphy, 2022 NSCA 26, para. 50). [56] In R. v. E.A.H., 2023 NSSC 386, Justice Gabriel discussed a misapprehension of the evidence: 16 As to the final issue, there is no real disagreement between the parties. For convenience, I will quote from the Respondent: Misapprehension of evidence has a stringent standard of review. The misapprehension must go to the substance of the evidence, it must be material to the reasoning of the trial judge, and the misapprehension must play an essential part in the reasoning process resulting in a conviction. A misapprehension of evidence can encompass a failure to consider evidence relevant to an issue, a mistake about the substance of an item or items of evidence, or failure to give proper effect to evidence. (Respondent’s Factum, para. 21) [57] The appellant argues that the trial judge misapprehended the evidence by finding that he committed voyeurism specifically by walking up the stairs to the deck behind the house and looking into J.M.’s window when that “was not the evidence at trial” (Appellant’s Factum, p. 11). His finding that “the observations were made by the Appellant from the deck excused the absence of any corroborating evidence that the Appellant had watched from the woods” (Appellant’s Factum, p. 11). [58] This alleged misapprehension does not involve an error of law but rather a complaint that the judge made a mistake as to the substance of the evidence. Therefore, the “overriding and palpable” or “egregious” error standard applies. [59] I note the following paragraphs from the trial judge’s decision in support of my analysis: Although the statements were lacking in detail, the essence of the statements was clear. Mr. Gelinas had done something that he regretted, or at least felt guilty about, and that was that he had gone to [J.M.’s] property on the Friday night, the night before, watched the house from a wooded area behind the house, and proceeded to go up to the deck so that he could look in the bedroom window, where he watched [J.M.] and the man that we now know to be [B.G.] have sexual intercourse (Appeal Book, Transcript, p. 43, lines 8-16). … I find that Mr. Gelinas did not want his presence on the property to be known, that he was taking steps not to be detected as he walked up the stairs to the deck on the back of the house and looked into [J.M.’s] bedroom window … (Appeal Book, Transcript, p. 46, line 21 to p. 48, line 4). [60] I find there was evidence to support the trial judge’s finding that the appellant had engaged in voyeurism from the deck. While A.W. only testified that the appellant said he watched them from the woods, S.S.’s evidence was that he told him that “he went up to window”: … he told me that the previous night he had gone down to the woods at [J.M.’s] house … he had watched from the woods at around nine o’clock when his children went to bed. Some man showed up and he, he watched from the woods and, you know, they went in the house and he had watched up to – he told me he, he went up to the window and he, he watched them have sex (Appeal Book, Transcript, p. 349, lines 14-20). [61] Further, later in response to the Crown’s question about what the appellant said he saw J.M. doing “when he said he went up to the window”, S.S. replied: “[h]e watched her fuck this other guy” (Appeal Book, Transcript, p. 351, lines 10-13). [62] The trial judge correctly noted this part of S.S.’s testimony in his decision (Appeal Book, Transcript, p. 28, lines 8-13; p. 29, lines 2-3; p. 31, lines 9-12). [63] When J.M.’s evidence is considered in its entirety, it becomes clear that to get “up to the window”, the appellant would have had to go onto the deck. She testified her house was a two-level split-entry semi and stairs led up to the second level which contained the kitchen, living room, another bathroom, and her bedroom (Appeal Book, Transcript, p. 241, lines 3-5, 8-10, 14-15). Her bedroom had one large window which was at the back of the house (Appeal Book, Transcript, p. 246, lines 9-15). There was a patio off the kitchen (Appeal Book, Transcript, p. 242, lines 8-9). If she looked directly out her bedroom window, she would be looking into the backyard and the wooded area, but to her left, she would see her patio (Appeal Book, Transcript, p. 243, lines 1-7). [64] In cross-examination, although defence counsel used the term “deck”, I find that “deck” and “patio” were being used interchangeably to refer to the same structure at the back of her house (Appeal Book, Transcript, p. 256, line 14; p. 282, lines 19-21; p. 283, lines 1-3; p. 286, lines 6-8). The trial judge accurately noted J.M.’s evidence on these points (Appeal Book, Transcript, p. 20, lines 7-16). [65] When considering the layout of her house, J.M.’s bedroom was on the second level at the back of the house to the right of the kitchen which has a patio/deck. From the exterior, one could go up a flight of stairs and onto the patio/deck. [66] Based on the evidence the trial judge’s finding that the appellant had gone up onto the deck where he saw J.M. and B.G. having sex through the bedroom window is entirely reasonable. He did not make a mistake as to the substance of the evidence, let alone an egregious one. [67] The trial Judge found that the voyeurism was committed by the appellant walking up the stairs to the deck on the back of the house and looking into J.M.’s window. [68] The appellant has not shown how the trial judge misapprehended the evidence. I find that the trial judge’s inferences were reasonably supported by the evidence, therefore, intervention is not warranted. [69] I dismiss this final ground of appeal. Conclusion [70] After hearing the arguments of the parties, I find that the trial judge did not err in finding the appellant’s admissions were reliable. The trial judge did not engage in stereotypical and/or speculative reasoning and did not misapprehend the evidence. [71] The appeal is dismissed. Bodurtha, J.