



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. Brown,









2018 BCCA 17




Date:
20180108

Docket:
CA43822

Between

Regina

Respondent

And

Viola Helen Brown

Appellant




Before:



The Honourable Mr. Justice Lowry

The Honourable Mr. Justice Willcock

The Honourable Mr. Justice Savage




On appeal from: An order
of the Provincial Court of British Columbia, dated
January 19, 2016 (
R. v. Brown
, Vancouver Registry 236359).

Oral Reasons for Judgment




Counsel for the Appellant:



V.L. Hartney





Counsel for the Respondent:



M.A. Street





Place and Date of Hearing:



Vancouver, British
  Columbia

January 8, 2018





Place and Date of Judgment:



Vancouver, British
  Columbia

January 8, 2018








Summary:

The appellant challenges her conviction for
breaking and entering a dwelling house and committing theft therein. She argues
the trial judge misapprehended the evidence and failed to properly assess the
evidence in accordance with R. v. W.(D.). Held: Appeal dismissed. The judge did
not err in apprehending the substance of the evidence; evidence existed which
reasonably supported her findings. Further, the alleged error with respect to
the evidence surrounding the identification of the owner of the stolen items is
immaterial. While the reasons may be brief, the judge clearly considered the
relevant evidence surrounding the appellants mens rea. R. v. W.(D.) does not
mandate a specific form of analysis. Importantly, the trial judge did not
compromise the Crowns burden of proof and the conviction was not based solely
on a rejection of the appellants evidence.

[1]

WILLCOCK J.A.
: Viola Brown was convicted of breaking and entering
a dwelling house and commission of an indictable offence, theft, therein,
contrary to s. 348(1)(d) of the
Criminal Code
, R.S.C. 1985,
c. C‑46, by Judge Bagnall on 11 December 2015. She appeals her
conviction and seeks an acquittal on the grounds that the trial judge erred in
misapprehending the evidence and by failing to properly assess the evidence in
accordance with the principles of
R. v. W.(D.)
, [1991] 1
S.C.R. 742.

[2]

On 16 August 2014, Caitlyn Pantherbone and her friend returned to Ms. Pantherbones
apartment to find the appellant and her two dogs there. They confronted the
appellant, who insisted the apartment was hers. Ms. Pantherbones friend
called the police, at which point the appellant began to leave. As she did so,
a male friend of Ms. Pantherbones arrived. The appellant then asserted the
apartment was his. It was not.

[3]

Two police officers arrived a few minutes later. After locating the
appellant on the street nearby, one police officer questioned, arrested, and
searched her. She was wearing sunglasses on her head and had some make‑up
in her pocket. At the same time, the other officer spoke with Ms. Pantherbone.
He testified that she noted these items were missing from her apartment and
described them accurately. When they were taken from the appellant and
presented to the complainant she identified them as hers. The police also found
many items in Ms. Pantherbones apartment had been moved and put into bags
and small suitcases.

[4]

At trial, the appellant testified in her own defence. She did not recall
being arrested, being in Ms. Pantherbones apartment, or where she had
been before the events described above. She also said she had mental health
issues in the past, following her sons murder.

[5]

On that basis, defence counsel argued that the judge should have
reasonable doubt as to Ms. Browns
mens rea
.

[6]

The trial judge found no basis for an inference that Ms. Brown
didnt know what she was doing as the events unfolded. She found her behaviour
purposeful and responsive to her surroundings. She did not accept the
appellants assertion that the appellant did not recall the events. The
appellants ongoing distress over her sons death, in the view of the trial
judge, did not provide an explanation for her distraction and inability to
recall the night in question.

[7]

In the judges view, the only rational inference that could be drawn
from the evidence was that the appellant committed both offences charged.

[8]

The appellant says the trial judge erred:

a)

In misapprehending the evidence, resulting in a verdict that is
unreasonable, unsupported by the evidence, and a miscarriage of justice; and

b)

In failing to
properly assess the evidence in accordance with the principles of
R. v. W.(D.).

[9]

The misapprehensions alleged and the evidence said to have been
overlooked are set out in paras. 72‑73 of the factum:

72.       It is respectfully submitted that the trial judge
misapprehended the following material evidence;

i.          finding
that the Appellant left the apartment in response to being told that the police
were being called. The evidence was that even after the police were called, the
Appellant refused to leave, and it took some time for Ms. Pantherbone to
get her to leave. It was not until sometime after Ms. Pantherbone was
screaming profanities at her that she left;

ii.          finding
that the sunglasses and make-up belonged to Ms. Pantherbone. The method of
identification was problematic, and the officers may well have influenced
that identification by showing Ms. Pantherbone the items prior to her
determining whether anything was actually missing. Ms. Pantherbone had
other sunglasses and make-up and the evidence was not sufficient to prove
beyond a reasonable doubt that the items actually belonged to her.

iii.         the
trial judge overlooked other problems with Ms. Pantherbones testimony,
including that:

a.   that she
could not recall and indeed denied, screaming obscenities at the Appellant; (TS,
p. 34, ll. 26-32)

b.   she did
not remember a tape recording of the incident; (TS, p. 35, ll. 6-8)

c.   she could
not recall where the sunglasses had been in the apartment; (TS, p. 23,
ll. 46‑47)

d.   she did
not remember the make of the sunglasses (TS, p. 39, ll. 13 and ll. 39)

e.   her very
clear memory of locking the patio door, was contradicted by what was told to
the police officers at the time about being unsure.

vi.        the
trial judge did not address the Admission of Fact regarding the cost and
availability of the Marcelle make-up. This Admission supported the Appellants
evidence, and was contrary to Ms. Pantherbones testimony;

vii.        the
trial judge misapprehended the evidence as to the Appellants behaviour and
confused mental state. There was extensive evidence about the Appellant
behaviour being non-sensical and unrational, which was not considered by the
trial judge.

73.       The trial judge also
overlooked and did not address other evidence including:

i.          that
it would make no sense to commit a break and enter and theft with two little
off-leash barking dogs in tow;

ii.          the
Appellant did not attempt to flee or evade police;

iii.         she
was opening wearing the allegedly stolen sunglasses;

iv.        when being questioned by the
officer, her responses were non-responsive and focused on her dogs.

[10]

T
his Court, in
R. v. Mann
,
2014
BCCA 231, described the
legal standard for determining when a
conviction will be set aside based on a misapprehension of evidence:

[
138
]    The
legal standard for determining when a conviction will be set aside based on a
misapprehension of evidence was articulated by Justice Doherty in
R. v. Morrissey

(1995),
97 C.C.C. (3d)
193 (O.C.A.)
. He described a misapprehension of evidence as a failure
to consider evidence relevant to a material issue, a mistake as to the
substance of the evidence, or a failure to give proper effect to evidence
(at 218), and concluded that an appellate court has statutory authority
under s. 686(1) of the
Code
to quash a conviction where a
misapprehension of evidence results in a miscarriage of justice (at 219).

[11]

The
appellant alleges both:
a failure to consider evidence relevant
to a material issue; and a mistake as to the substance of the evidence
.

[12]

I
will deal first with the alleged mistakes as to the
substance
of the
evidence.

[13]

The
appellant says the trial judge found that the she left the apartment in
response to being told the police were being called but that the evidence was
that even after the police were called, she refused to leave. The Crown,
correctly in my opinion, points to evidence, particularly the evidence of the
complainant, that the appellant started to leave when she was advised the
police were being called. There does not appear to have been a misapprehension.
There was evidence upon which the judge could reasonably have concluded the
appellant was acting purposively in this regard.

[14]

Second,
the appellant alleges the judge erred in finding the appellant was arrested in
possession of the complainants sunglasses and make‑up. She argues the
method of identification was problematic, and the officers may well have
influenced that identification by showing Ms. Pantherbone the items before
she knew what was missing. In my view, it is not clear that there was a
misapprehension in the trial judges appreciation of the evidence as to
identification of these items. There was evidence (the testimony of Cst. Kim)
consistent with the judges description of events. In any event, there was
other reliable evidence as to the identity of the owner of these items. The
alleged error is not, in my view, material.

[15]

The
alleged failures to consider evidence relate to inconsistencies or shortcomings
in the complainants evidence and the appellants irrational and inexplicable
behaviour.

[16]

In
part, these are complaints with respect to the adequacy of the reasons for
judgment. In substance, both complaints are founded upon the assertion that the
trial judge did not adequately come to grips with the defence that the
appellant did not have the requisite
mens rea
.

[17]

In
my opinion, the inconsistencies or shortcomings in the complainants evidence
were not such as to require explicit reference in the reasons because the
essential facts were not in dispute,.

[18]

Despite the brevity of the reasons, it is apparent that the trial judge
considered the defence submissions with respect to mental health issues (para. 10),
the appellants limited recollection of events (paras. 11‑12), and
her emotional state (para. 13). Having considered those, she held:

[20]      Ms. Hartney
submitted on behalf of the accused that I ought to have a reasonable doubt as
to her
mens rea.
There is, on the evidence, no basis for an
inference that Ms. Brown didn't know what she was doing while the events
unfolded. She was found in another persons dwelling, without permission to be
there, and items owned by the resident and her friend had been packed into
bags. Her behaviour at the time, according to the complainant and her friend
and the investigating officers, was purposeful and responsive to her
surroundings. The only rational inferences that arise on the evidence are that Ms. Brown
committed both of the offences with which she was charged.

[19]

The
appellant has not established that the trial judge failed to appreciate the
effect of the evidence or failed to consider relevant evidence.

[20]

Turning to the argument that the judge failed to engage in the
analysis prescribed by
R. v. W.(D.)
: the appellant argues that
the trial judge made an error of the type described in
R. v. T.(S.)
,
2015 MBCA 36. In that case, the Manitoba Court of Appeal dealt with an
appeal from a judgment described by
Mainella J.A. as follows:

[
3
]        While making reference to the decision in
R. v. W.(D.)
,
[1991] 1 S.C.R. 742
, the judge then immediately
stated his task in assessing the credibility of the two witnesses in this way:
The question is, whose evidence does the Court prefer?

[
4
]        The judge then gave a page and
a half of reasons. He did not undertake a meaningful analysis of the evidence
and the contradictions regarding both witnesses. He simply made the conclusory
statement that he found the accuseds evidence to be unreliable,
untrustworthy, and thus not credible. He then described the complainant to be
compelling, reliable and credible. He briefly addressed deficiencies in her
evidence as to the timing of the incidents and found that they were not
material to her credibility.

[21]

The
case at bar, unlike
R. v. T.(S.)
and
R. v. W.(D.)
,
does not involve diametrically competing versions of events. There was, in
fact, little conflicting evidence. The trial judges conclusion, at para. 20,
that the only rational inferences that can arise on the evidence are that Ms. Brown
committed both of the offences with which she was charged is clearly
not
founded solely upon rejection of the appellants evidence but upon acceptance
of the compelling evidence with respect to the
actus reus
and weighing
of the evidence of
mens rea
.

[22]

As
both the appellant and the Crown have observed,
R. v.
W.(D.)
does not mandate a specific form or
sequence of analysis. As the Supreme Court of Canada noted in
R. v. J.H.S.,
2008 SCC 30,
and this Court noted in
R. v. Mann
,
2010 BCCA 569 at para. 31, not proceeding with the analysis in the
sequence followed in
R. v. W.(D.)
may increase the risk of
error, [but] it is not appropriate for [appellate courts] to instruct trial
judges on how to undertake
W.(D.)
analyses. At the end of the day, this
Court must be satisfied that the analysis was done and that there was no
compromise of the burden of proof that remains throughout on the Crown.

[23]

I
cannot say the burden of proof on the Crown was compromised in this case,
accordingly, I would not accede to the second ground of appeal.

[24]

I would dismiss the appeal.

[25]

LOWRY J.A.
: I agree.

[26]

SAVAGE J.A.
: I agree.

[27]

LOWRY
J.A.
: The appeal is dismissed.

The Honourable Mr. Justice Willcock


