



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Button, 2019 ONCA 1024

DATE: 20191227

DOCKET: C66318

Feldman, Tulloch and Jamal JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Nicholas Button

Respondent

Vallery Bayly, for the appellant

Gordon S. Campbell and William G.
    Stephenson, for the respondent

Heard: December 4, 2019

On appeal from the acquittal entered on November
    23, 2018 by Justice Nathalie Champagne of the Superior Court of Justice,
    sitting without a jury.

Feldman J.A.:

Introduction

[1]

The Crown appeals from the respondents
    acquittal of the charges of assault with a weapon, breaking and entering,
    robbery and aggravated assault. The appeal is brought under s. 676(1)(a) of the
Criminal Code
,
R.S.C., 1985, c. C-46,

on the basis of a question of law alone: that the trial judge
    approached the evidence piecemeal and failed to consider how each piece of the
    evidence, when viewed together, built on the strength of the case. The Crown
    argues that, in so doing, the trial judge unjustifiably discounted or ignored
    material evidence in assessing reasonable doubt.

[2]

While I agree with the Crown that the trial
    judge erred in law, I would nevertheless dismiss the appeal because the victim,
    a Crown witness who knew the respondent, testified that she was certain he was
    not her attacker. With that evidence that raised a reasonable doubt, the Crown
    has not met its onus to satisfy the court to a reasonable degree of certainty
    that without the trial judges error, the verdict would not necessarily have
    been the same.

The positions at trial

[3]

The Crown presented a compelling circumstantial
    case against the respondent. A break-in and assault occurred at the home of Michael
    Brown in Alexandria, Ontario. The assault victim, Cynthia Desmarais was the sister-in-law
    of Mr. Brown, and rented a room from him in the basement of his home. The
    respondent is married to Angela Brown, Michael Browns sister.

[4]

The break-in took place on the evening of the
    annual Santa Claus parade. Ms. Desmarais and her boyfriend missed the parade
    and arrived home while it was still going on. When she went downstairs, she saw
    a light on in Mr. Browns office. A masked man emerged, blinded her with a
    flashlight, then smashed her head with a prybar. She fell, hit her head on the
    floor, and did not remember much after that. Her boyfriend came downstairs and
    struggled with the intruder. The intruder started up the stairs, then demanded
    they hand him a thin bag from the basement floor, making a gesture akin to
    holding a gun. He grabbed the bag and fled. The victim needed eight or nine
    stitches to her head.

[5]

The boyfriend called the police, who arrived
    quickly. They found a prybar and two flashlights in the basement. They also
    conducted a canine search of the backyard where nothing was found. However, the
    next day, Mr. Brown found a toque in the backyard. The prybar and the toque
    contained the respondents DNA.

[6]

The Crowns circumstantial case included the
    following components:

·

the respondents DNA was found on more than one
    item at the crime scene;

·

because the respondent said in a police
    interview that his wife was on bad terms with her brother, the homeowner, the Crown
    argued that the respondent had a motive to commit the crime;

·

the respondent had prior knowledge about the
    residence, which, the Crown argued, helped him commit the crime;

·

the respondent filed an online theft report to
    the police dated the morning after the attack, stating that he had been robbed
    of pry bars two nights before, although in his police interview he said he
    had the date wrong;

·

the respondent provided inaccurate information
    to the police in an interview, including inconsistent statements about his
    whereabouts on the night of the attack;

·

signals from the respondents cellphone activity
    on the evening of the attack indicated he was in Alexandria;

·

the respondents phone records indicated that he
    was constantly texting his wife on the evening of the attack, with a gap of
    approximately 10 minutes aligning almost precisely with the timing of the assault
    on the victim; and

·

text messages surrounding the date of the attack
    had been deleted from the respondents phone.

[7]

The respondent did not testify or call a
    defence. However, the Crown led two pieces of evidence that were potentially
    exculpatory of the respondent. One was an alternate suspect, a 16-year old
    observed by the police in Alexandria about 40 minutes after the break-in,
    wearing a toque. They searched his home and found a mask similar to the mask
    described in the search warrant. There was no other evidence linking the
    suspect to the crime scene.

[8]

More significantly, the victim, who was a Crown
    witness and knew the respondent very well, testified that she was certain that
    the intruder was not him. Although he wore a mask so that she did not see his
    face, he had a different voice, different height and different build. The Crown
    did not impugn the victims credibility, although regarding reliability, in
    closing the Crown referred to the dark and terrifying circumstances of the
    assault.

The error of law

[9]

The Crown submits, correctly, that where a trial
    judge assesses the evidence in a piecemeal fashion and not in its totality,
    that can be an error of law that allows the Crown to appeal an acquittal:
R.
    v. J.M.H.
,
2011 SCC 45, [2011] 3 S.C.R. 197, at para. 31. The Crown
    places significant reliance on this courts decision in
R. v. Rudge
,
    2011 ONCA 791, 108 O.R. (3d) 161, leave to appeal refused, [2012] S.C.C.A. No.
    64, where the court set aside an acquittal because the trial judges reasoning
    was flawed, including because he considered each component of the case
    separately, so that the persuasive effect of the totality of the evidence 
    the strength of the Crowns case  was taken out of play: at para. 66.

[10]

In this case, the trial judge took the same
    approach, and respectfully, made the same error as in
Rudge
. She
    assessed each piece of potentially inculpatory evidence separately, and
    rejected it on its own, without considering it in light of other potentially
    inculpatory evidence.

[11]

For example, the respondent reported that his
    tools had been stolen including prybars. This online theft report is dated the
    day after the attack. The coincidence of the timing of the report was relied on
    by the Crown to demonstrate that the respondents report of the theft should
    not be accepted. When taken together with his claim that he was home sick in
    Maxville, Ontario on the night of the attack, despite cellphone tower data
    which indicated his cellphone was in Alexandria, the Crown argued that the respondent
    was effectively trying to establish a false alibi.

[12]

This concern about the validity of the tool
    theft report and the respondents whereabouts on the night of the attack was
    compounded by other comments the respondent made in his police interview a few
    months after the attack. In that interview the respondent acknowledged that he had
    submitted an online report of the theft of his tools dated Monday, November 30,
    which indicated his tools had been stolen on Saturday, November 28. He also
    told the officer that he and his wife discovered the tools had been stolen from
    their car when they went out for a drive on Sunday night. However, that
    timing was incompatible with the respondents statement that he was home sick on
    the night of the attack, Sunday, November 29. When the officer confronted the
    respondent with the inconsistency, he said he must have got the date wrong,
    that the tools were stolen earlier and he must have written down the wrong date
    in the report of the theft.

[13]

In considering the evidence regarding the tool
    theft report, the trial judge found that the timing was certainly suspicious,
    but accepted the respondents explanation as reasonable, and gave the
    evidence little weight. However, the explanation that the tools may have been
    stolen earlier did not in any way explain the coincidence of the timing of the
    online report that tools, including pry bars, had been stolen, which report is
    dated the day after the attack.

[14]

Furthermore, as the Crown submits, the trial
    judge accepted the explanation without considering the evidence of the timing
    of the report in the context of all of the other pieces of evidence that linked
    the respondent to the crime, including his DNA at the scene, his alleged motive
    and the deletion of his contemporaneous text messages. While in isolation the
    respondents explanation could have been viewed as reasonable, evaluating his
    explanation in isolation was an error.

The test for setting aside an acquittal

[15]

While the trial judges approach to the evidence
    amounted to an error of law, such an error does not necessarily require or
    allow the court on appeal to set aside the acquittal. In
R. v. Graveline
,
2006 SCC 16, [2006] 1 S.C.R. 609, the Supreme Court reiterated the test the
    Crown must meet, at paras. 14-16:

It is the duty of the Crown in order to obtain
    a new trial to satisfy the appellate court that the error (or errors) of the
    trial judge might reasonably be thought, in the concrete reality of the case at
    hand, to have had a material bearing on the acquittal. The Attorney General is
    not required, however, to persuade us that the verdict would necessarily have
    been different.

This burden on the Crown, unchanged for more
    than half a century (see
Cullen v. The King
, [1949] S.C.R. 658), was explained this way by Sopinka J., for the
    majority, in
R. v. Morin
, [1988] 2 S.C.R. 345:

I am prepared to accept that the onus is a
    heavy one and that the Crown must satisfy the court with a reasonable degree of
    certainty. An accused who has been acquitted once should not be sent back to be
    tried again unless it appears that the error at the first trial was such that
    there is a reasonable degree of certainty that the outcome may well have been
    affected by it. Any more stringent test would require an appellate court to
    predict with certainty what happened in the jury room. That it cannot do. [p.
    374]

Speaking more recently for a unanimous court
    in
R. v. Sutton
,
    [2000] 2 S.C.R. 595, 2000 SCC 50, the Chief Justice stated:

The parties
    agree that acquittals are not lightly overturned. The test as set out in
Vézeau v. The Queen
, [1977] 2 S.C.R.
    277, requires the Crown to satisfy the court that the verdict would not
    necessarily have been the same had the errors not occurred. In
R. v. Morin
, [1988] 2 S.C.R. 345, this
    Court emphasized that

the onus is a heavy one and that the Crown must satisfy the court
    with a reasonable degree of certainty

(p. 374). [para. 2]

See also:
R. v. Goldfinch
,
2019 SCC 38, 435 D.L.R. (4th) 1, at para. 135;
R. v. Barton
,
2019
    SCC 33, 435 D.L.R. (4th) 191, at para. 160.

[16]

The question for this court, therefore, is
    whether the Crown has demonstrated to a reasonable degree of certainty that if
    the trial judge had not made the error in her piecemeal approach to the
    analysis of the evidence, the verdict would not necessarily have been the same.

[17]

In this case, I am not able to make that finding.
    This case is distinguishable from
Rudge

and other key cases
    relied on the Crown such as
R. v. Curry
,
2014 ONCA 174, 317
    O.A.C. 329, leave to appeal refused, [2014] S.C.C.A. No. 185, and
R. v.
    Knezevic
,
2016 ONCA 914, because in this case, there was
    independent evidence that raised a reasonable doubt.

[18]

At the end of her reasons, the trial judge
    pointed to two exculpatory pieces of evidence that raised a reasonable doubt for
    her about the guilt of the respondent. One was the alternative suspect. Because
    the evidence implicating him was weak, I could discount that evidence as a
    factor in the analysis.

[19]

However, the second was the testimony of the
    victim. She knew the respondent both socially and through the auto shop where
    he worked. While she was not asked any questions in examination in chief by Crown
    counsel about the identity of the attacker or whether he was or could have been
    the respondent, in cross-examination she agreed that she did not know who the
    attacker was, but she was certain that the attacker was not the respondent. That
    evidence raised a reasonable doubt, and while it could be discounted by a trier
    of fact, it would be difficult to do so.

[20]

In the face of that evidence, the Crown has not
    met its onus to satisfy the court to a reasonable degree of certainty that without
    the trial judges error, the verdict would not necessarily have been the same.

[21]

I would therefore dismiss the appeal.

Released: K.F. December 27, 2019

K. Feldman
    J.A.

I agree. M.
    Tulloch J.A.

I agree. M. Jamal J.A.


