R. v. P.N.

Date: 20130226 Docket: 11/94 Citation: R. v. P. N., 2013 NLCA 16 Section 486.4 of the Criminal Code respecting the non-publication of the identify of a complainant or of a witness and any information from which they might be identified applies to this judgment. IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN: P. N. APPELLANT AND: HER MAJESTY THE QUEEN RESPONDENT Coram: Green C.J.N.L, Welsh and White JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division (G) 201004G0351 Appeal Heard: October 18, 2012 Judgment Rendered: February 26, 2013 Reasons for Judgment by Welsh J.A. Concurred in by Green C.J.N.L. and White J.A. Counsel for the Appellant: Robby Ash Counsel for the Respondent: Sheldon Steeves Page: 2 Welsh J.A.: [1] P.N. was convicted of one count of sexual assault contrary to section 271 of the Criminal Code and one count of uttering a threat contrary to section 264.1(1). The threat at issue was intended to discourage the complainant from reporting the incident. P.N. appeals on the basis that the trial judge erred in the manner in which he assessed the evidence. BACKGROUND [2] Both P.N. and the complainant testified. The complainant, who was 22 years old at the time of the incident, admitted that she had been addicted to opiates since she was 14 years old and that she was using significant amounts of drugs at the time. The trial judge noted (2011 NLTD(G) 129): [12] In February 2010, the complainant’s maintenance dose was anywhere from six to nine pills a day. The way the complainant described it – this was the amount required to make her feel normal and not an amount that would make her intoxicated. She says that [P.N.] was one of her suppliers. At the time of the alleged assault she owed him $200 to $300 for prior purchases. [3] The complainant habitually crushed pills and inhaled the powder. She purchased drugs using money obtained through social services and the sale of stolen goods. Her criminal record included ten convictions for theft. The trial judge alluded to these facts when considering the complainant’s testimony. [4] The complainant testified that on February 13, 2010, at about 6:00 p.m., she was expecting her seventeen month old child to be returned by his paternal grandmother, but when she answered the door, it was P.N., her uncle. The complainant testified that she was alone at the time, dressed in loose-fitting pajamas. She said P.N. appeared to be intoxicated, but did not smell of alcohol, which led her to believe he might be “putting on an act” (decision of the trial judge, at paragraph 13). The complainant testified that they smoked cigarettes, had a soft drink and ‘did’, that is, crushed and inhaled, two or three percocet pills. She said that when she took the drink glasses to the sink, P.N. followed her “and started to grab her buttocks” (decision of the trial judge, at paragraph 14). She said she did not take P.N.’s advances seriously and moved away from him. Moments later, the child’s grandmother knocked on the door and returned the child to the complainant. The trial judge noted: Page: 3 [14] … The grandmother and her partner stood in the doorway for a minute or two as they dropped off the child, exchanged a few words and then left. They saw nothing suspicious. [5] The complainant testified that she went into the bedroom to get something for the child and that P.N. followed her in and indicated his desire for sex. The complainant said she tried unsuccessfully to discourage him. The trial judge summarized the complainant’s testimony: [15] … [P.N.] lowered his pants to his knees. She asked him to stop but was ignored. He pulled down her pajama pants, pushed her back on the bed and held her hands over her head. He proceeded to have forced vaginal intercourse. The complainant resisted by kicking her legs and trying to move her arms. She was reluctant to resist too aggressively because her infant son was by the bed and she did not want him to get injured. Eventually, [P.N.] withdrew his penis and got off the complainant, saying that he could not continue because the crying baby was interrupting him. … [16] When [P.N.] came out of the bathroom, he gave the complainant a cigarette and a couple of pills. Then he said to her that she was a drug addict, that no one would believe her if she reported what had just happened and that if she did report it, he would come back and break her knees. … [6] P.N.’s testimony was that, although he had gone to the complainant’s apartment, he had not engaged in sexual activity. The trial judge wrote: [17] … [P.N.] believed the complainant had stolen 18 morphine pills from his home four months earlier and was seeking payment from her of the street value ($10 per 30 mg. pill) of the missing drugs. These were drugs he obtained using a valid doctor’s prescription. He decided to stop at the apartment to make an arrangement on collection of the debt. [P.N.] admits that for a period of three to four weeks during the summer of 2009 he was selling illicit narcotic drugs to the complainant but he denies that the debt was related to those older transactions. [7] P.N. testified that he was taking morphine for back pain. The cost of the morphine was covered under the provincial drug plan. P.N. did not report the theft of the pills to the police. He said that he told the complainant he would not press charges if she paid him the street value of $180 for the morphine. In her testimony, the complainant denied stealing the drugs from P.N. [8] P.N. testified that the complainant was “being sexually provocative” and that he decided to leave just before the child’s grandmother knocked on Page: 4 the door (decision of the trial judge, at paragraph 21). The trial judge summarized: [21] … About that same time a knock came on the door. It was the grandmother and her partner returning the complainant’s son. They stood in the doorway and laid the baby on the floor. [P.N.] picked him up and decided to sit back down on the couch with the child. After the grandmother left, [P.N.] says that he stood up again with intent to leave. The complainant asked him for some money and cigarettes. Despite his stated reason for the visit being to collect money, he decided to give her some money. It was not much, just change to buy loose cigarettes. The complainant took the money and asked [P.N.] if he could babysit her infant while she went next door to buy cigarettes. He agreed, sat back down on the couch and played with the baby while she was gone. After she returned, he laid the baby down on the floor and went to the bathroom. On exiting the bathroom he saw five or six loose cigarettes on the table and picked one up and lit it. He went over to the door, for the third time, with intent to leave. [22] This was the moment that he says the complainant assaulted him. While he was near the door with one boot on and the other half on, the complainant came up behind him. She reached around his waist, shoved her hand down inside the front of his pants, and “tried [with the other hand] to get me belt and that undone to get my pants down”. He said his pants ended up slipping down to his boots. … [23] He says he told her “no”, pulled up his pants, put on his boot and then walked out the door. … [24] He estimates that the duration of the visit was no more than 15 or 20 minutes. He denies making any threat and denies sexually assaulting the complainant. [9] The trial judge concluded that he “did not believe the story of [P.N.]” (paragraph 35), and that: [39] The Crown’s case depended on the credibility of the complainant and the reliability of her evidence. Having considered the complainant’s evidence, and tested it in light of all the other evidence presented during the trial, I have accepted it. Her history of theft is a product of her drug addiction and her desperate need to raise money to finance the habit. The criminal record for theft is an obvious black mark on her character but it does not raise a reasonable doubt with me regarding her honesty in the testimony provided on these two charges. [Bold in original.] [40] There were a few inconsistencies in the complainant’s evidence. In my view these related to minor matters of detail or were adequately explained by the complainant. To the extent that there were minor inconsistencies, these are Page: 5 normal and are to be expected. They do not adversely affect my overall assessment of the complainant’s credibility. [Authorities omitted.] [41] On the basis of the evidence which I have accepted, I am convinced beyond a reasonable doubt of [the] guilt of [P.N.] of both counts. The Crown has proven each element of both counts beyond a reasonable doubt. Accordingly, convictions are entered for sexual assault and uttering a threat to cause bodily harm. ISSUE [10] At issue in this appeal is whether the trial judge erred in applying the principles of law engaged where irreconcilable versions of events are described in the evidence proffered by the complainant and the accused. In particular, issues regarding the approach to assessing the credibility of witnesses and taking into account the whole of the evidence are considered. ANALYSIS The Law [11] P.N. submits that the trial judge erred by failing to apply the principles for assessing contradictory evidence as set out in R. v. W. (D.), [1991] 1 S.C.R. 742. Those principles are reiterated in R. v. Avetysan, 2000 SCC 56, [2000] 2 S.C.R. 745, where Major J., for the majority, explained: [18] The appellant takes issue with the jury charge for a second reason: he says it failed to explain properly to the jury how it should assess credibility, in a situation where there were two irreconcilable versions of events described in testimony. [12] Major J. then quoted from the decision in W.(D.): [19] … … Specifically, the trial judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused. Second, if they do not believe the accused’s evidence but still have a reasonable doubt as to his guilt after considering the accused’s evidence in the context of the evidence as a whole. … A trial judge might well instruct the jury on the question of credibility along these lines: Page: 6 First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, 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. [Emphasis in original.] … The question is really whether, in substance, the trial judge’s instructions left the jury with the impression that it had to choose between the two versions of events. [13] Further, Major J. emphasized: [22] … The jury should have been warned not to convict automatically if it found the testimony of the complainant was more credible than that of the appellant and Velitchko. There was some risk that the jury misapprehended the requirement of proof beyond a reasonable doubt in relation to the two irreconcilable versions of events. The admonition to consider “all of the evidence” does not correct this failing: S. (W.D.) [[1994] 3 S.C.R. 521], at p. 535. [14] Similarly, in a judge alone trial, it is not sufficient for the judge simply to state that “all” the evidence was considered. Where it is apparent to the court on appeal that the judge did not, in fact, consider all the relevant evidence, this is a basis for finding error by the trial judge. [15] Finally, in R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, Binnie J., for the majority, cautioned: [65] … The ultimate issue was not whether [the trial judge] believed Ms. Noseworthy or the respondent, or part or all of what they each had to say. The issue at the end of the trial was not credibility but reasonable doubt. [16] The decision of this Court in R. v. J.C.H., 2011 NLCA 8, 304 Nfld. & P.E.I.R. 141, provides additional assistance and addresses issues similar to those raised in this case. In J.C.H., Rowe J.A., for the Court, described a helpful analytical approach consistent with the principles set out in W. (D.): [12] I start with a general observation: the trial judge’s approach to the analysis and assessment of the evidence was potentially problematic. She considered first the testimony of the accused and determined whether it was worthy of belief, which she held it was not. Then she considered the evidence of the complainant Page: 7 and the other witnesses in the knowledge that “the decks had already been cleared”, as it were, of the appellant’s contrary evidence. [13] A trial judge should generally first consider the evidence offered by the Crown in support of the charges especially that of the complainant. That sets out the case that the accused has to meet. Only if there is sufficient strength in that evidence is it necessary to consider the evidence (if any) led by the accused. That sequence accords with the burden of proof resting with the Crown. The danger in considering the evidence of the accused first and determining whether it is worthy of belief before considering the Crown evidence is that it may induce the judge to place too great an emphasis on the remaining evidence, i.e. the Crown evidence, without carefully scrutinizing that evidence in the context of the evidence as a whole to determine whether it can support the charges to the standard of proof required. In effect, it creates a tendency for the judge to consider the evidence in an “either/or” way, thereby departing from the required burden of proof. [14] In this case, disposing first of the accused’s evidence as not worthy of acceptance might well have contributed to the judge’s willingness to accept the contrary version advanced by the complainant by downplaying the significance of the inconsistencies in the complainant’s evidence and accepting it as meeting the required standard of proof. By approaching it as she did and eliminating the accused’s evidence from further consideration, the trial judge, in effect, disabled herself when considering the strength of the complainant’s evidence from analyzing it in the context of all of the other evidence in the case, including that of the accused. [17] As noted in J.C.H., the danger in beginning with the evidence of the accused, without first considering whether the Crown’s evidence is sufficient to establish the offence, is that, if the judge does not believe the accused’s evidence, there may be an inclination to fall into the trap of determining the case on the basis of credibility rather than reasonable doubt, the error pointed out in Sheppard. The three steps set out in W. (D.) are engaged for the purpose of considering the defence evidence after the Crown’s evidence and in the context of the whole of the evidence. [18] I note in passing that a failure by the trial judge to follow the sequence suggested in the above law is not, for that reason, an indication that the judge has erred. However, utilization of the above approach is designed to assist the judge to avoid error. Application of the Law [19] In the case now before this Court, there are several grounds on which P.N. submits that the trial judge erred in his application of the above Page: 8 principles. First, he submits, the trial judge, having concluded that he did not believe P.N.’s evidence, made his determination of guilt on the basis of accepting the testimony of the complainant. In doing this, P.N. submits that the trial judge failed to recognize that the “issue, at the end of the trial, was not credibility but reasonable doubt” (Sheppard, at paragraph 65). [20] While credibility of the accused and the complainant is an important component in assessing whether the charges against P.N. were proven beyond a reasonable doubt, the evidence of each must be considered in light of the whole of the evidence. As noted in J.C.H., at paragraph 13, a “trial judge should generally first consider the evidence offered by the Crown in support of the charges especially that of the complainant. That sets out the case that the accused has to meet.” Regarding the Complainant’s Evidence [21] In this case, P.N. points to inconsistencies in the complainant’s testimony regarding the incident together with questions as to the complainant’s ability to perceive and remember what occurred due to her impairment by drugs. For example, he submits, the complainant testified at the preliminary inquiry that P.N. had kissed her once or twice after the child’s grandmother had left. At trial, her evidence about a kiss was equivocal both as to whether it occurred and, if so, when: “might have kissed me or something like that”, “it was probably when he was having sex with me … probably before [the grandmother] came with my son or it could have been after”. These responses to questions from counsel must be taken in context. When these inconsistencies were raised, the complainant explained: The important details is true. I might have the little details switched up or whatever but the important stuff is all true. [22] Similarly, there were inconsistencies regarding the complainant’s use of drugs on the day in question. Differences occurred in her testimony at trial as well as in comparison with her evidence at the preliminary inquiry. During cross-examination, the complainant’s responses indicated that she considered questions regarding her use of drugs on that day to be a matter of detail which she did not consider to be of importance, and on which she may have gotten mixed up. P.N. submits that the complainant’s drug use was not a matter of a small or irrelevant detail as suggested by the complainant. Page: 9 [23] During direct examination, the complainant testified as to her drug use and its effect on the day in question. She admitted that she had sniffed crushed percocet and ocycontin pills during the day and that by the time P.N. left, she had sniffed at least six pills, three percocets and three onycontin. Nonetheless, she described herself as “sober” and having “a clear memory of everything that happened that evening”. During cross-examination, the complainant testified: Q. Your evidence was that you – you testified that these pills had no effect on you and that you were sober. A. Um-hum. Q. Okay. Now I’m going to refer you to your preliminary transcript again. First I’m going to refer you to page 11, line 5. … A. Okay. [The complainant was invited to read the passage to herself.] Q. Now there you say that you weren’t going to say anything about it until the next day when I [sic] was sober. A. That’s with no pills at all in me when you’re sick jonesing for pills you gets feelings. You starts to feel. When I used to do a couple of pills, like I could do like 10 or 12 per some of a day and not feel nothing off it. You just feel normal as anybody else. Q. I see. But I mean my point was that you gave evidence that you were sober – A. I was. Q. – and that you wouldn’t say anything until you were sober the next day. A. Yeah so that’s nothing [no drugs] in me at all. [24] In pursuing the issue of her drug use, defence counsel then returned to the complainant’s testimony at the preliminary inquiry where she had testified that she told the police P.N. had come to collect money. At the trial, she denied that he had come for that purpose. Regarding this inconsistency, the following exchange took place: Q. Okay and your answer was “Because where it was a couple days after it happened I wasn’t really sure what I was going over exactly and what happened Page: 10 the weekend and I knows now I was on drugs now before but I’m clean now and I knows.” A. Um. Q. So you’re admitting you were on drugs and you didn’t have a clear memory? A. I told you I was on drugs but I remembers everything, probably not the day after but as you know I started by myself thinking about it cause I didn’t really think it happened first because you know its gross [because P.N. is her uncle] but it’s – Q. Well your evidence here today was that you were sober and had a clear memory of everything that happened and you have a clear memory here today. A. Yeah. Q. But question 9 on that page [of the preliminary inquiry transcript] is “so when you gave your statement to the police, I mean were you sober when you gave your statement to the police?” Your answer is “No”. A. No cause I did a couple of [percocets] to straighten me up. I wasn’t wasted. I was only telling the truth. [25] In the factum, counsel for P.N. summarized: In summary, between her testimony at trial and her testimony at the Preliminary Inquiry, [the complainant] testified that: (1) she was sober on the evening in question when [P.N.] left her residence; (2) she planned to wait until she was sober before reporting the incident (implying that she was not sober on the evening in question); (3) she was not sober at the time she gave her statement to police; (4) she was not “sober”, but merely did “a couple of percs” to straighten her up, that she “wasn’t wasted” at the time she gave her statement to police; and (5) she was sober at the time she gave her statement to police. [Italics in original.] [26] The trial judge concluded that the above inconsistencies did not affect the complainant’s credibility in that they would be characterized as minor details and not an indication of dishonesty. However, the trial judge did not address the question of the extent to which the drugs ingested by the complainant may have affected her ability to perceive and recall events. His conclusion that a drugged state was “normal” for the complainant does not resolve this issue. The fact that the complainant had admitted difficulty in recalling details surrounding the incident raises the question as to the extent of this disability. Page: 11 [27] Approaching the analysis as he did resulted in the trial judge focusing on the complainant’s credibility rather than on whether the evidence raised a reasonable doubt as to P.N.’s guilt. Inconsistencies in and difficulties with her evidence were viewed as “minor details” and were not tested in relation to other evidence such as her use of drugs, the testimony of the child’s paternal grandmother and her common-law spouse, and the explanations offered by P.N.’s testimony. These issues are discussed below. Regarding P.N.’s Evidence [28] In assessing P.N.’s testimony, the trial judge focused on whether he considered that evidence to be believable, without reference to the other evidence. He concluded that the testimony was “fabricated” and made “up as he went along” (paragraph 25). In reaching this conclusion, the trial judge gave the following reasons. [29] First, the judge was of the view that it did not make sense that P.N. said his purpose in going to the complainant’s residence was to collect on a debt for morphine that he said the complainant stole from him: [26] … It does not make sense to me that [P.N.] would seek street value reimbursement from a single mother on social assistance for drugs that cost him nothing. It does not add up. The story raises concerns with me about the credibility of [P.N.]. … [30] The judge went on to note that, in fact, P.N. was willing to accept as little as $5. per week, he was not prepared to agree to drive the complainant to Deer Lake to cash her social assistance cheque on the following Monday, and P.N. gave the complainant change so that she could go to buy a few loose cigarettes at the nearby drinking establishment. In the context of the illicit use of drugs and the manner in which they may be obtained, it is not unreasonable to expect that P.N. may have wanted to collect the street value of the morphine he alleged was taken by the complainant even though he had not paid for the drugs himself. In the absence of explanatory evidence, that inference is at least as consistent with human nature as the contrary conclusion which was drawn by the trial judge. In the circumstances, neither was it surprising that P.N. did not report the loss of the morphine to the police. [31] Second, the trial judge concluded that the “story of severe back pain does not reconcile with his admitted activity level” (paragraph 27). Nor did the trial judge accept P.N.’s evidence as to the complainant’s putting her Page: 12 hand inside his pants when he was preparing to leave. These are factors properly taken into account in assessing P.N.’s testimony and, in the absence of a satisfactory explanation by P.N., were conclusions reached by the trial judge to which this Court owes deference. [32] Third, the trial judge considered P.N.’s testimony regarding their being in the complainant’s bedroom: [29] When asked if the complainant went into her bedroom during the visit, he first said he did not recall and then he said he did not think so and then he said no. Having settled on a final answer, he recalled then that the complainant just sat on the couch during the visit. This answer is an example of why I find that [P.N.] was making up this story as he went along. I know from his other testimony that the complainant was not sitting at the couch during the entire visit, so the rationalization for his final answer makes no sense. [33] In assessing this conclusion it is necessary to turn to the transcript. After asking questions surrounding P.N.’s arrest, Crown counsel continued with a different line of questions: Q. Okay, so while you were there did [the complainant] go into the bedroom at all? A. Ah, don’t recall, I don’t think. No, unless she did while I was in the washroom. But, no, she was sitting down on the couch, no, she didn’t go into the bedroom. Q. Okay, so she didn’t go into the bedroom at all? A. No. Q. Are you sure of that now? A. Like I said, as soon as [the child’s grandmother] and them came in, I picked the baby up, they were still talking and I cooped down and picked up the baby, it was hurting so I sat back on the couch with him. And as soon as they left, she just turned around and looked at me and asked me if I’d watch the baby long enough for her to run to the bar to get cigarettes. Q. Did you go into the bedroom at all? A. Pardon? Q. Did you go into the bedroom at all? Page: 13 A. No. [34] The questions then turned to P.N.’s going into the washroom. It is clear from the transcript that the trial judge misapprehended this testimony. There was no suggestion that the complainant sat on the couch during the entire visit. The manner in which P.N. answered the initial question about the bedroom suggests he was simply thinking aloud. This is not an unusual circumstance when a witness is testifying. [35] Finally, regarding the question of P.N.’s back pain, the trial judge noted that no doctor had been called to attest to a medical condition. The judge concluded: [31] …That aspect of his evidence, that he had some level of back pain, may or may not be true. It is not a big factor to me. [36] Given concerns with the trial judge’s assessment of P.N.’s evidence and his complete rejection of that evidence, P.N. submits that it is necessary to compare the manner in which the judge dealt with his evidence and that of the complainant. In particular, he says that a different level of scrutiny was applied to the two witnesses. A similar circumstance was considered in R. v. C. (J.) (2000), 145 C.C.C. (3d) 197 (ONCA). Charron J.A., for the Court, explained: [13] This concern is heightened by the apparent difference in approach adopted by the trial judge in his assessment of the complainant’s testimony. There were a number of inconsistencies in the complainant’s evidence, some of which related not only to peripheral matters but to the central issue of consent, yet the trial judge did not consider this to be a basis for rejecting the totality of the complainant’s testimony as he did with respect to the appellant. Although it is quite open to the trial judge to accept only part of a witness’s testimony, his analysis of the respective testimonies of the appellant and the complainant, when considered in its totality, raises a concern that one standard of scrutiny may have been applied to the evidence of the appellant and another to that of the complainant. [37] In the case before this Court, the trial judge dismissed inconsistencies in the complainant’s testimony as unimportant without reference to the remaining evidence (see paragraph 27, above). On the other hand, as discussed above, some of the judge’s reasons for dismissing P.N.’s evidence as fabricated do not withstand scrutiny. It appears, then, that the trial judge may have applied different standards of scrutiny to the evidence of the two witnesses with the result that the question of reasonable doubt was not properly assessed. Page: 14 [38] A further comment by Charron J.A. in C. (J.) is apposite: [12] … I am mindful of the fact that this court, on appellate review, should not dissect a trial judge’s reasons, nor should it interpret the reasons as necessarily reflecting the precise and complete analytical process followed by the judge in arriving at his conclusion. Nonetheless, these comments, when considered in light of the nature of the inconsistencies in question, do raise a concern that the appellant’s testimony was not given proper consideration. A similar concern is raised in the case before this Court. [39] In addition to a flawed analytical approach to the evidence of P.N. and the complainant as outlined above, the trial judge erred by failing to consider their evidence in light of the testimony of the child’s grandmother and her spouse. Regarding Evidence of Other Witnesses [40] The child’s paternal grandmother, who cared for the child “every week for a night or two nights at a time”, testified as to what she saw when she returned the child on the evening in question. Mr. W., her common-law spouse also testified. While the testimony of the grandmother was generally consistent with that of Mr. W., there were inconsistencies as between their testimony and that of the complainant. These inconsistencies were not referenced in the trial judge’s decision. Under the title, “Facts”, the trial judge had just two subtitles, “Complainant’s Version of Events” and “Accused’s Version of Events”. There was no reference to any other testimony. Indeed, the evidence of the grandmother and her spouse was not adverted to in the analysis of the evidence by the judge. [41] It is necessary, then, to consider the possible effect of the judge’s failure to assess the testimony of the complainant and P.N. taking into account the evidence of the grandmother and her spouse. While the testimony of the latter relates to those issues that the complainant viewed as minor details, the evidence is relevant to assessing particularly the inconsistencies in the complainant’s testimony and their effect on her credibility generally and her ability to recall events. [42] I begin with the complainant’s testimony that P.N. was exhibiting signs of intoxication. She testified under cross-examination on this point twice. Initially, she said: Page: 15 Q. Now you say that on this evening that when [P.N.] came to your house he was pretending to be drunk. Is that correct? A. Yes. Q. Did you know he wasn’t drunk? A. Well I couldn’t smell any beer or liquor off him. Q. So what is your answer? A. But he looked like – if he wasn’t drunk he was pretty stoned because he was wobbling around and his eyes could barely keep open. Q. But you used the words he was pretending to be drunk. A. Yes, because he was wobbling around. I just thought he was. Q. So why did you use the word pretending? A. Cause I couldn’t smell any beer off him. Q. You thought he was faking? Is that correct? A. Yes. Q. And why did you think he was faking? A. Probably if – he could probably use that for an excuse saying he couldn’t remember or. Q. So it was your opinion that he wasn’t drunk? He was only making out? A. Yes. A short time later, the following exchange took place: Q. Now when he – you just testified that when he came into your apartment he was stumbling around and pretending he was intoxicated – A. Yes. Q. – so you knew – it was your opinion that he was pretending? A. Yes. Page: 16 Q. And then you went and got a Pepsi? A. Yes. Q. And you say that he grabbed you a couple of times inside and outside of your clothing? A. Yes. Q. Why is it that you didn’t say anything to him? A. Because I thought he was that drunk that he wouldn’t listen anyway. That’s why I kept moving and changing the topic or. Q. But you just told us you thought he was pretending. A. Yeah cause he was stumbling around. That’s why I kept moving from him so probably he would like just stop and go on with something else. Q. But if you – how can you say that you thought he was pretending but you wouldn’t say anything to him because you thought he was so drunk? A. Because he was wobbling around. He was either drunk or stoned or something. I couldn’t smell no beer or nothing off him. He could have been drunk. I don’t know. Q. Um-hum. [43] The complainant also testified that, when the child was being returned, P.N. was “sitting at the table” and that he “got a fright”. By contrast, both the child’s grandmother and her spouse testified that P.N. was standing by the door. [44] The child’s grandmother testified: Q. Did you make any observations as to whether anyone was under the influence of alcohol? A. No. I didn’t take notice of anything was going on there. Q. Before you entered the apartment, did you hear any noises or anything going on? A. No. Nothing. Q. Did it appear to you that anyone had been frightened by your arrival there? Page: 17 A. No. Well she didn’t show anything or nor did [P.N.]. Not to me. No. [45] Similarly, Mr.W., the grandmother’s common-law spouse, testified that no one appeared frightened or startled upon their arrival and that P.N. did not appear to be intoxicated. In fact, Mr. W. said he thought that the complainant had been laughing or smiling. [46] Further, the complainant testified that she did not see Mr. W. However, Mr. W. testified that he entered the apartment first and that he had been carrying the child, had placed him on the floor, and that P.N. picked the child up and said to him, “oh you’ve been over with poppy”. Mr. W. also testified that P.N. was standing by the door when it was opened and that the complainant was standing in front of P.N. and they were talking. [47] The trial judge made no reference to the testimony of these two witnesses, nor did he attempt to reconcile the different testimony with that of the complainant. Nor did he consider their evidence when assessing P.N.’s testimony. In the circumstances, in considering the evidence as a whole, it was necessary for the trial judge to advert to the testimony of the child’s grandmother and her spouse in order, at a minimum, to indicate why their evidence was irrelevant. [48] It follows from the above that the trial judge erred by failing to properly apply the principles set out in W. (D.), Avetysan, Sheppard and J.C.H. By focusing on whether he found the testimony of the complainant more credible than that of P.N., and by dismissing P.N.’s evidence out of hand as fabricated, the judge failed to consider all of the evidence to determine whether the offences had been proven beyond a reasonable doubt. SUMMARY AND DISPOSITION [49] As set out above, the trial judge erred in the manner in which he analyzed the evidence of P.N. and the complainant. In the result, both convictions must be set aside. [50] I would grant the appeal and order a new trial. ______________________________ B. G. Welsh J.A. Page: 18 I Concur: _______________________________ J. D. Green C.J.N.L. I Concur: ______________________________ C. W. White J.A.