R. v. Sinclair

R. v. Sinclair
Collection
Supreme Court Judgments
Date
2011-07-28
Neutral citation
2011 SCC 40
Report
[2011] 3 SCR 3
Case number
33359
Judges
McLachlin, Beverley; Binnie, William Ian Corneil; LeBel, Louis; Deschamps, Marie; Fish, Morris J.; Abella, Rosalie Silberman; Charron, Louise; Rothstein, Marshall; Cromwell, Thomas Albert
On appeal from
Manitoba
Subjects
Criminal law
Notes
SCC Case Information: 33359
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3
Date: 20110728
Docket: 33359
Between:
Her Majesty The Queen
Appellant
and
Terrence Sinclair
Respondent
- and -
Director of Public Prosecutions of Canada
and Attorney General of Ontario
Interveners
Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.
Reasons Dissenting in Result:
(paras. 1 to 42)
Reasons for Judgment:
(paras. 43 to 63)
Reasons Concurring in Result With Those of LeBel J.:
(paras. 64 to 86)
Reasons Concurring in Result With Those of LeBel J.:
(para. 87)
Fish J. (McLachlin C.J. and Binnie and Cromwell JJ. concurring)
LeBel J. (Deschamps and Rothstein JJ. concurring)
Charron J.
Abella J.
R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3
Her Majesty The Queen Appellant
v.
Terrence Sinclair Respondent
and
Director of Public Prosecutions of Canada
and Attorney General of Ontario Interveners
Indexed as: R. v. Sinclair
2011 SCC 40
File No.: 33359.
2010: December 14; 2011: July 28.
Present: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.
on appeal from the court of appeal for manitoba
Criminal law — Appeals — Powers of Court of Appeal — Unreasonable verdict — Misapprehension of evidence — Accused convicted of manslaughter — Court of Appeal setting aside conviction on basis of trial judge’s misapprehension of evidence — Whether Court of Appeal applied proper test in setting aside conviction — Whether trial judge misapprehended evidence — Criminal Code, R.S.C. 1985, c. C-46, s. 686(1) (a)(i).
A driver observed three males kicking and stomping Adam Lecours on a roadway. They left him lying on the street bleeding. Another driver failed to see Mr. Lecours lying in the road in time to avoid hitting him. Mr. Lecours died from his injuries. The trial judge convicted accused and a co‑accused of manslaughter. The Court of Appeal set aside the conviction on the basis that the trial judge had misapprehended evidence by accepting that there was evidence that the accused had planned to go out to commit a robbery together with his co‑accused and a youth, and by inferring from this evidence that the accused was with his co‑accused at the scene of the crime. In setting aside the conviction, the Court of Appeal partially based its decision on this Court’s decision in R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190.
Held (McLachlin C.J and Binnie, Fish and Cromwell JJ. dissenting): The appeal should be allowed. The order for a new trial should be set aside and the conviction restored.
I. The Beaudry Issue
Per McLachlin C.J. and Binnie, Fish and Cromwell JJ.: R. v. Beaudry has no application to the error committed by the trial judge in this case. This error falls squarely within R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732. Nothing in Beaudry modifies the principles set out in R. v. Yebes, [1987] 2 S.C.R. 168, and R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381. Yebes and Biniaris continue to apply where the issue is whether the verdict could have been reached reasonably by a properly instructed jury or a judge sitting alone. Beaudry serves an important function of limited scope on an appellate review for unreasonableness under s. 686(1) (a)(i) of the Criminal Code . It addresses the reasonableness of the judge’s verdict, notably by scrutinizing the logic of the judge’s findings of fact or inferences drawn from the evidence admitted at trial. A trial judge who is not mistaken as to the evidence but reaches a verdict by an illogical or irrational reasoning process commits an error under Beaudry. A misapprehension of evidence invites appellate scrutiny under Lohrer. To conflate these conceptually distinct errors is to disregard the rationale of Beaudry and the jurisprudential gap it fills.
A verdict reached illogically or irrationally is “unreasonable” because it is not reached judicially, or in accordance with the rule of law. Further, as stated in Beaudry, a verdict that was reached illogically or irrationally is hardly made reasonable by the fact that another judge (who never did and never will try the case) could reasonably have convicted or acquitted the accused. A court of appeal may intervene pursuant to Beaudry where a trial judge draws an inference or makes a finding of fact that is plainly contradicted by the evidence relied on for that purpose by the judge or that is demonstrably incompatible with evidence that is not otherwise contradicted or rejected by the trial judge. Unreasonable verdicts of this sort are rare. But when they do occur, appellate courts are authorized — indeed bound — to intervene.
Per LeBel, Deschamps and Rothstein JJ.: The Court of Appeal erred in law to the extent that it based its judgment on R. v. Beaudry. Beaudry has no application to a mistake as to the substance of the evidence. Rather, errors of this sort are governed by the standard set out in R. v. Lohrer. Beaudry expanded the traditional scope of s. 686(1) (a)(i) of the Criminal Code . Fish J. carried a majority in Beaudry on the question whether a verdict reached “illogically or irrationally” was “unreasonable” within the meaning of s. 686(1) (a)(i) and his reasons in Beaudry represent the state of the law on this point. Furthermore, the reasons of Fish J. in this case correctly reflect the position that was taken by the majority in Beaudry, and there is concurrence with his reasons to that extent.
Per Abella and Charron JJ.: The Court of Appeal should not have rested its judgment on R. v. Beaudry. Beaudry did not change any of the existing tests for appellate review under s. 686(1) (a). Beaudry did, however, effect an expansion of the test for unreasonableness under s. 686(1) (a)(i). The expanded test for unreasonableness is better understood if the focus remains on the verdict reached at trial, rather than on the kind of errors that may have occurred in the appreciation of the evidence or in the fact‑finding process. While the reviewing court may now consider flaws in the reasoning process in the assessment for reasonableness, the focus must remain on the conclusion reached at trial. A verdict‑focussed approach avoids reviewing courts having to make rather fine distinctions between different types of mistakes in order to identify the applicable test. It is also more consistent with the wording, legislative context and history of s. 686(1) (a)(i) of the Criminal Code . Any error in reasoning identified under the Beaudry test must be carefully assessed in context to determine whether it vitiates the verdict. It would be wrong to conclude that whenever there is an error in reasoning, even if of the kind “demonstrably incompatible” with the uncontradicted evidence at trial, the verdict is unreasonable.
Under a s. 686(1) (a)(i) inquiry in judge‑alone trials, the reviewing court should first apply the Yebes/Biniaris test. If the verdict is not one that a properly instructed jury, acting judicially, could reasonably have rendered on the evidence as a whole, the inquiry is over, and an acquittal is entered. If the verdict is available on the evidence, the reviewing court may go on to assess the reasonableness of the verdict under the Beaudry test by scrutinizing the actual findings of fact and inferences made by the trial judge. It is not necessary to conduct this assessment in every case. The Beaudry test may apply in exceptional cases where the reasoning process is so irrational, or so at odds with the evidence, that it vitiates the verdict — even though that verdict is available on the evidence as a whole. In these rare cases where Beaudry applies, a new trial is ordered, as the court will already have determined that the verdict is otherwise available on the evidence.
II. The Application of R. v. Lohrer
Per LeBel, Deschamps, Abella and Rothstein JJ.: The Court of Appeal erred in its application of Lohrer. It failed to identify any error that justified appellate intervention. The trial judge did not find that the accused was involved in a plan to commit a robbery and she did not rely on such evidence to infer that the accused was with his co‑accused throughout the night and was therefore one of the assailants. The trial judge based her finding that the accused was present at the crime scene on other evidence: he was out of the residence at the same time as his co‑accused at time of the assault; he knew that his co‑accused had been stabbed and stormed into the house minutes after the incident; he led efforts to locate his co‑accused; DNA linked the co‑accused to the crime; and the co-accused’s blood was found on the accused’s jeans and hoodie. Nothing supports a finding that she accepted the Crown’s theory of a planned robbery, and her reasoning discloses no mischaracterization of the evidence. Furthermore, the Court of Appeal referred to the trial judge’s “apparent acceptance” of evidence that the accused had planned to commit robbery with his co‑accused. Ordering a new trial based on a misapprehension of evidence requires more than an apparent mistake. The reasons must disclose an actual mistake.
Even if the trial judge did err, the misapprehension was not materially linked to her verdict. The accused was charged with manslaughter, not conspiracy to commit robbery. In light of the circumstantial evidence the trial judge accepted, it cannot seriously be doubted that she would nonetheless have found the accused was at the crime scene at the time of the assault.
Per Charron J.: The trial judge did not misapprehend the evidence. For the reasons set out by LeBel J., the Court of Appeal erred in finding that the trial judge made an error that met the standard set out in R. v. Lohrer.
Per McLachlin C.J. and Binnie, Fish and Cromwell JJ. (dissenting): The trial judge misapprehended the substance of the evidence on a material matter, and the Court of Appeal explicitly and correctly applied the Lohrer test. The Court of Appeal’s reference to the trial judge’s apparent acceptance that there was evidence of the accused and his two co‑accused planning to go and commit another robbery aptly describes an actual mistake. The trial judge’s mistaken view of the evidence coloured her evaluation of the other circumstantial evidence upon which the Crown relied. The supposed plan of the accused and his co‑accused to stay together throughout the night underpinned her inference that the accused was at the scene of the crime. The evidence does not establish the accused’s participation in the assault or his presence at the assault. No DNA evidence links him to the scene. Most importantly, even if his presence at the scene had been established, that would not have proven that he participated in the assault.
Cases Cited
By Fish J. (dissenting)
Applied: R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732; explained: R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190; referred to: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869; R. v. Yebes, [1987] 2 S.C.R. 168; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381; R. v. Morrissey (1995), 97 C.C.C. (3d) 193; R. v. Pittiman, 2006 SCC 9, [2006] 1 S.C.R. 381.
By LeBel J.
Applied: R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732; explained: R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190; referred to: R. v. Yebes, [1987] 2 S.C.R. 168; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381; R. v. O’Brien, 2011 SCC 29, [2011] 2 S.C.R. 485; R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5; R. v. Morrissey (1995), 97 C.C.C. (3d) 193.
By Charron J. (concurring with LeBel J. in the result)
Applied: R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732; explained: R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190; referred to: R. v. Yebes, [1987] 2 S.C.R. 168; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381; R. v. Morrissey (1995), 97 C.C.C. (3d) 193; R. v. Pittiman, 2006 SCC 9, [2006] 1 S.C.R. 381; R. v. Jaw, 2009 SCC 42, [2009] 3 S.C.R. 26.
By Abella J. (concurring with LeBel J. in the result)
Referred to: R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190.
Statutes and Regulations Cited
Criminal Code, R.S.C. 1985, c. C‑46, ss. 686(1) (a), (b).
Authors Cited
Canadian Oxford Dictionary, 2nd ed. Don Mills, Ont.: Oxford University Press, 2004, “apparent”.
APPEAL from a judgment of the Manitoba Court of Appeal (Monnin, Hamilton and Freedman JJ.A.), 2009 MBCA 71, 240 Man. R. (2d) 135, 456 W.A.C. 135, 245 C.C.C. (3d) 331, 69 C.R. (6th) 163, [2009] 8 W.W.R. 581, [2009] M.J. No. 252 (QL), 2009 CarswellMan 342, setting aside the conviction entered by Simonsen J., 2007 MBQB 219, 219 Man. R. (2d) 63, [2007] M.J. No. 324 (QL), 2007 CarswellMan 352, and ordering a new trial. Appeal allowed, McLachlin C.J and Binnie, Fish and Cromwell JJ. dissenting.
Elizabeth A. Thomson and Ami Kotler, for the appellant.
Richard J. Wolson, Q.C., and Evan J. Roitenberg, for the respondent.
James D. Sutton and Carole Sheppard, for the intervener the Director of Public Prosecutions of Canada.
Joan Barrett, for the intervener the Attorney General of Ontario.
The reasons of McLachlin C.J. and Binnie, Fish and Cromwell JJ. were delivered by
Fish J. (dissenting) —
I
[1] Terrence Sinclair was tried and convicted of manslaughter in the Manitoba Court of Queen’s Bench (2007 MBQB 219, 219 Man. R. (2d) 63). The Court of Appeal set aside Mr. Sinclair’s conviction and ordered a new trial (2009 MBCA 71, 240 Man. R. (2d) 135). This is an appeal by the Crown against that judgment, with leave of the Court, and the issue raised concerns the governing test for unreasonable verdicts under s. 686(1) (a)(i) of the Criminal Code, R.S.C. 1985, c. C-46 , pursuant to R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190.
[2] I agree with the Court of Appeal that the appellant’s conviction must be set aside and that a new trial must be had. More particularly, and with respect, I agree that the trial judge misapprehended the substance of the evidence on a material matter and that this error was essential to the trial judge’s reasoning. Finally, I agree that the trial judge’s misapprehension of the evidence is therefore fatal to her verdict.
[3] While a verdict that rests on a mistake as to the substance of the evidence may well be “unreasonable” in the broad sense of that term, Beaudry has no application to errors of this sort. Rather, they are governed by R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732. Nor does Beaudry govern trial court decisions that are rendered inscrutable by an absence of sufficient reasons, as in R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869.
[4] Nothing in Beaudry should be taken as a departure from the well-established principles of appellate review set out in R. v. Yebes, [1987] 2 S.C.R. 168, and R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381. Yebes and Biniaris continue to apply where the issue is whether the verdict could have been reached reasonably by a properly instructed jury or a judge sitting alone. Beaudry, as we shall see, involves a narrower inquiry. Its concern is whether it can be seen from the reasons for judgment that the trial judge’s conclusion ― that is to say, the judge’s verdict ― was reached illogically or irrationally. As Justice Charron puts it, Beaudry is concerned with “fundamental flaws in the reasoning process that led to [the trial judge’s verdict]” (para. 77).
[5] In short, Beaudry serves an important function of limited scope on an appellate review for unreasonableness under s. 686(1)(a)(i) of the Code. And I agree with the Crown that the Court of Appeal, to the extent that it appears in some measure to have done so, should not have rested its judgment in this case on Beaudry. The decisive error it identified does, however, fall squarely within Lohrer, and the Court of Appeal, notably at paras. 94-97 of its judgment, applied the Lohrer test explicitly and correctly. I would affirm the judgment of the Court of Appeal for that reason, and for the reasons that follow.
II
[6] Mr. Sinclair was jointly tried with Dallas Pruden-Wilson on charges of manslaughter and aggravated assault. The trial judge convicted them both of manslaughter. Having concluded that a new trial should be had, I will say no more about the facts than is necessary to explain my conclusion.
[7] Essentially, the trial judge rested her finding of guilt on the circumstantial evidence adduced by the Crown. In her view, that evidence supported the inferences that Mr. Sinclair and the co-accused were together throughout the night and that Mr. Sinclair participated in the assault of the victim, Adam Lecours. It is undisputed that Mr. Lecours was left lying in the street by his assailants, where he was later run over and killed by a passing automobile.
[8] In her reasons for judgment, the trial judge began by noting what she understood as a reference by the Crown to “evidence that, prior to the assault, [Mr.] Pruden-Wilson, [Mr.] Sinclair and [a] youth [separately charged] planned to go out together to commit another robbery” (para. 21). This, along with evidence that the three accused were out of the house at the same time and other apparently incriminating circumstantial evidence, satisfied the trial judge that Mr. Sinclair was guilty of manslaughter (paras. 21-22).
[9] The Court of Appeal set aside the verdict unanimously. In the court’s view, the trial judge’s reasons were generally “clear, comprehensive, cogent and consistent with the evidence” (para. 72), but contained a fatal error. The trial judge, said the court, had misapprehended the evidence on an essential point: She mistook for evidence the Crown’s theory concerning a planned second robbery and Mr. Sinclair’s presence when it was committed (para. 94).
[10] After a thorough review of the entire trial record, the Court of Appeal concluded that no such evidence had been adduced, and that the inference drawn by the trial judge was thus based in part on non-existent testimony. Because there may nonetheless have been “evidence capable of supporting a conviction”, it ordered a new trial (paras. 99-100).
III
[11] The Court of Appeal framed the issue before it this way:
We must, therefore, ask whether in reaching her verdict, the judge relied (and, we would add, on a material matter) on evidence not in the record. If she did, then according to Beaudry, her reasons cannot serve as a basis for the verdict. [Emphasis added; para. 93.]
[12] I agree, of course, that a verdict based on an erroneous understanding of the evidence with regard to a material matter cannot support a finding of guilt. As mentioned earlier, I agree as well that this sort of misapprehension of the evidence may well render the verdict at trial “unreasonable” within the meaning of s. 686(1) (a)(i) of the Criminal Code .
[13] In R. v. Morrissey (1995), 97 C.C.C. (3d) 193 (Ont. C.A.), Doherty J.A. explained that misapprehensions of the evidence include not only a mistake as to the substance of the evidence, but also “a failure to consider evidence relevant to a material issue” and “a failure to give proper effect to evidence” (p. 218). I agree with Justice Doherty that “[i]n cases tried without juries, a finding that the trial judge did misapprehend the evidence can . . . figure prominently in an argument that the resulting verdict was unreasonable” (p. 220).
[14] While a misapprehension of the evidence may help to establish that a verdict is unreasonable within the meaning of Yebes and Biniaris, Beaudry does not govern an error of this sort.
[15] Rather, the Beaudry test addresses the reasonableness of the judge’s verdict, notably by scrutinizing the logic of the judge’s findings of fact or inferences drawn from the evidence admitted at trial. A trial judge who is mistaken as to the evidence admitted at trial misapprehends the evidence, inviting appellate scrutiny under Lohrer, not Beaudry; a trial judge who is not mistaken as to the evidence but reaches a verdict by an illogical or irrational reasoning process commits an error under Beaudry, not Lohrer. These are conceptually distinct errors. To conflate them is to disregard the rationale of Beaudry and the jurisprudential gap it has filled.
[16] An appellate court will thus be justified in intervening, pursuant to Beaudry, where a trial judge draws an inference or makes a finding of fact that is (1) plainly contradicted by the evidence relied on for that purpose by the judge, or (2) demonstrably incompatible with evidence that is not otherwise contradicted or rejected by the trial judge.
[17] In Beaudry, all nine justices agreed that a verdict may be unreasonable even if supported by the evidence. While four members of the Court pointed in this regard only to inconsistent verdicts (R. v. Pittiman, 2006 SCC 9, [2006] 1 S.C.R. 381, at para. 14, cited in Beaudry, at para. 57), five justices characterized as unreasonable, within the meaning of s. 686(1) (a)(i) of the Criminal Code , decisions by a trial judge “reached illogically or irrationally” (my reasons, at para. 97; Binnie J., concurring in substance, at paras. 77-80).
[18] I think it helpful, for the sake of context, to reproduce here this passage from my reasons in Beaudry:
It is important to remember that the unreasonable verdict test has more often than not been described and explained in cases involving jury trials, where particular considerations govern: See, for example, R. v. Yebes, [1987] 2 S.C.R. 168.
Unlike judges, juries are neither required nor even permitted to give reasons. Their reasons, in this country at least, are forever shrouded in the compelled secrecy of their deliberations: Section 649 of the Criminal Code prohibits the disclosure, subject only to narrow exceptions, of any information relating to the proceedings of a jury. Why the jury concluded as it did is thus beyond the ken of the court, both at trial and on appeal.
Appellate courts are no more entitled to speculate about than to know how or why the jury reached its verdict. The jury is presumed to have been composed of reasonable people acting reasonably. It follows that its verdict must be deemed to be reasonable unless no properly instructed jury could reasonably have reached that verdict or, in the words of s. 686(1) (a)(i), it “cannot be supported by the evidence”.
The same, however, cannot be said for the verdict of a judge. The delivery of reasoned decisions is inherent in the judge’s role: R. v. Sheppard, [2002] 1 S.C.R. 869, 2002 SCC 26. And evaluating the reasonableness of those reasons is not a matter of speculation. Moreover, while the necessary degree of detail will vary according to the circumstances of the case, the reasons must be sufficient to permit meaningful review on appeal. There would be no need for this requirement if the sole test of unreasonableness under s. 686(1) (a)(i) is whether there is any evidence capable of supporting the verdict. [Emphasis in original; paras. 90-93.]
[19] Illogical or irrational reasoning can render verdicts unreasonable under s. 686(1)(a)(i) of the Code, in various ways. Beaudry identifies two. First, a verdict is unreasonable where the judge draws an inference or makes a finding of fact essential to the verdict that is “plainly contradicted by the very evidence from which it was drawn” or upon which it has been made to rest (para. 105). In that case, the essential finding is illogical or unreasonable in light of the evidence relied upon in making the finding. Here, the rule of law speaks the language of logic: From accepted evidence “X”, a court cannot lawfully infer “not X”.
[20] I found in Beaudry that the trial judge had committed an error of this sort. The issue in that case was whether the accused had the specific intent to obstruct, pervert or defeat the course of justice when he decided not to take the breath samples needed to charge a fellow officer. In concluding that he did, the trial judge relied on evidence which in my view demonstrated that Mr. Beaudry did not seek to conceal the offence and did not wish to foreclose the possibility of prosecution (para. 111). Accordingly, I found that the judge’s inference that Mr. Beaudry intended to obstruct justice was plainly contradicted by the very evidence from which it was drawn and that his verdict was therefore “unreasonable” within the meaning of s. 686(1) (a)(i).
[21] A verdict is likewise unreasonable where the judge draws an inference or makes a finding of fact essential to the verdict if that inference or finding of fact is “‘demonstrably incompatible’ with evidence that is neither contradicted by other evidence nor rejected by the trial judge” (Beaudry, at para. 79, per Binnie J.). Here, an essential inference that appears compatible with the evidence from which it is drawn implodes on contextual scrutiny. This is so where a trial judge infers from some of the available evidence that an accused had the requisite intent to obstruct justice and this inference is supportable on the evidence relied upon but is not supportable on consideration of other evidence that has been neither contradicted by other evidence nor rejected by the trial judge. Here, too, a verdict of guilt “would lack legitimacy and would properly . . . be treated as ‘unreasonable’” (ibid.).
[22] Fortunately, unreasonable verdicts of either sort are exceedingly rare. But when they do occur, appellate courts are authorized ― indeed, bound ― to intervene.
[23] The remedy will depend on the circumstances of the case. Where the verdict is found to be unreasonable under Beaudry and, in any event, unavailable on the record, an acquittal will ensue pursuant to Biniaris. But where the verdict is found to be unreasonable under Beaudry and the record discloses “evidence capable of supporting a conviction”, a new trial will be ordered (Beaudry, at para. 97).
[24] The rationale for ordering a new trial in the latter case was explained this way in Beaudry:
No one should stand convicted on the strength of manifestly bad reasons . . . on the ground that another judge (who never did and never will try the case) could but might not necessarily have reached the same conclusion for other reasons. A verdict that was reached illogically or irrationally is hardly made reasonable by the fact that another judge could reasonably have convicted or acquitted the accused. [Emphasis in original; para. 97.]
[25] Here, “manifestly bad reasons” refers to the fatal flaw in the reasoning process that underpins the trial judge’s conclusion, not to the insufficiency or inadequacy of the reasons in other respects. As mentioned earlier, Beaudry complements but neither duplicates nor displaces Sheppard, which continues to govern the requirement of adequate reasons to ensure meaningful appellate review. Indeed, in the absence of reasons that are adequate under Sheppard, a reviewing court could hardly assess their reasonableness under Beaudry.
[26] A verdict reached illogically or irrationally is “unreasonable” because it is not reached judicially, or in accordance with the rule of law.
IV
[27] I agree with the Court of Appeal that the record in this case contains “evidence capable of supporting a conviction” (para. 100). Since a properly instructed jury, acting judicially, could reasonably have reached the same conclusion as the trial judge, her verdict is not unreasonable within the meaning of Biniaris. Nor can it be characterized as unreasonable within the more limited scope of Beaudry.
[28] Accordingly, as mentioned at the outset, I agree with the Crown that the Court of Appeal, to the extent that it appears in some measure to have done so, could not rest its judgment in this case on Beaudry. But I think it right to remember that the Court of Appeal did not have the benefit of these reasons, which more fully explain the conceptual distinction between Beaudry and Lohrer.
[29] As I mentioned as well, I believe the Court of Appeal nonetheless reached the right conclusion for substantially the right reason.
[30] Speaking for a unanimous Court in Lohrer, Binnie J. stated:
This is an appeal as of right from convictions of the appellant for aggravated assault and uttering a threat. A majority of the B.C. Court of Appeal affirmed the convictions. Hollinrake J.A. dissented. He found applicable to this case what was said by Doherty J.A. of the Ontario Court of Appeal in R. v. Morrissey (1995), 97 C.C.C. (3d) 193, as follows at p. 221:
Where a trial judge is mistaken as to the substance of material parts of the evidence and those errors play an essential part in the reasoning process resulting in a conviction, then, in my view, the accused’s conviction is not based exclusively on the evidence and is not a “true” verdict.
Later in the same paragraph, Doherty J.A. stated:
If an appellant can demonstrate that the conviction depends on a misapprehension of the evidence then, in my view, it must follow that the appellant has not received a fair trial, and was the victim of a miscarriage of justice. This is so even if the evidence, as actually adduced at trial, was capable of supporting a conviction.
We agree with these observations. Where a miscarriage of justice within the meaning of s. 686(1) (a)(iii) of the Criminal Code, R.S.C. 1985, c. C-46 , has been demonstrated an accused appellant is not bound to show in addition that the verdict cannot “be supported by the evidence” within the meaning of s. 686(1) (a)(i). [para. 1]
[31] The decisive error identified by the Court of Appeal in this case falls squarely within Lohrer, and the court applied the Lohrer test explicitly and correctly, notably at paras. 94-97 of its extensive and unanimous reasons:
The judge appears to have accepted that there was evidence that Sinclair and the other two planned to go out together to commit another robbery. She said that there was evidence that they were out together. She described [these] matters as evidentiary, when they were not. As has been explained above, this was more than factual findings based on inference; this amounted to a mischaracterization or misapprehension of the evidence.
. . .
Since the judge treated as evidentiary that which was not, she did not consider inferences, other than that the three men were out together, that were available to be drawn on the evidence. For example, there was evidence, particularly of Audy relating to the potential use of the phone at the store, that could have led the judge to a different inference about Sinclair’s whereabouts and involvement.
Moreover, these mischaracterizations [in essence, misapprehensions of the evidence] were not on peripheral points. As stated by Binnie, J., for the Supreme Court in R. v. Lohrer . . . (at para. 2): “The misapprehension of the evidence must go to the substance rather than to the detail. It must be material rather than peripheral to the reasoning of the trial judge.” It was obviously a fundamental question whether Sinclair was at the scene of the crime. The two “evidentiary” matters, among other evidence, on which the judge relied to establish that he was indeed at the scene were essential to her ultimate verdict. It cannot be stated with confidence that, had she not mischaracterized the evidence, she would have found as she did.
[32] I believe it important to add that the Court of Appeal, in ordering a new trial, took care to recall expressly that “[a]ppellate courts should not parse and dissect reasons of trial judges as if under a microscope” (para. 72). I agree, of course. In my respectful view, care must likewise be taken not to attribute to a single word in the reasons of the Court of Appeal a fatal significance divorced from its context and contrary to its literal and ordinary meaning.
[33] The Court of Appeal was troubled, as am I, by the trial judge’s “apparent acceptance . . . that there was evidence of Sinclair, Pruden-Wilson and the young person planning to go out together to commit another robbery” (para. 61). According to the Canadian Oxford Dictionary (2nd ed. 2004), at p. 61, the primary meaning of “apparent” is “readily visible or perceivable”. And, in this sense, the judge’s error is indeed apparent ― not speculative, or even imputed by inference.
[34] After noting the Crown’s submission that circumstantial evidence established Mr. Sinclair’s participation in the assault of the victim, the trial judge states: “The Crown refers to the evidence that, prior to the assault, Pruden-Wilson, Sinclair and the youth planned to go out together to commit another robbery” (para. 21 (emphasis added)). With respect for those who read this sentence differently, it seems plain to me that the Court of Appeal’s reference to the trial judge’s “apparent acceptance” of this “evidence” is entirely grounded in the trial judge’s own words. It is, I repeat, hardly “speculative”: It aptly describes an actual mistake.
[35] Moreover, this mistaken view of the evidence appears from the trial judge’s ensuing reasons to have coloured her evaluation of the other circumstantial evidence upon which the Crown relied. Citing an example, the Court of Appeal explained: “Since the judge treated as evidentiary that which was not, she did not consider inferences, other than that the three men were out together, that were available to be drawn on the evidence” (reproduced above, at para. 31).
[36] The supposed plan of the three accused to commit a robbery ― and to stay together for this purpose throughout the night ― underpinned the judge’s inference that Mr. Sinclair was at the scene of the crime. It was the first step of the reasoning that led her to that conclusion. At no point did the judge state explicitly, or even suggest indirectly, that the “evidence” referred to by the Crown simply did not exist.
[37] For the sake of clarity, I reproduce the judge’s words once more: “The Crown refers to the evidence that, prior to the assault, Pruden-Wilson, Sinclair and the youth planned to go out together to commit another robbery” (emphasis added). Bearing in mind the plain and ordinary meaning of these words and the context in which they appear, I see no basis for assuming that the trial judge meant “the Crown submits” when she said the “Crown refers to the evidence”.
[38] Finally, and with respect, I am unable to share Justice LeBel’s view (at para. 60) that the evidence established Mr. Sinclair’s participation in the assault or even his presence at the scene when the crime was committed.
[39] First, there was “no DNA evidence linking [Mr. Sinclair] to the scene” (para. 21 of the trial judge’s reasons). Second, Mr. Sinclair bore no burden to prove that he was not the third “mysterious individual whose identity remains unknown to this day” (para. 60 of Justice LeBel’s reasons). It was for the Crown to prove that he was.
[40] Third, Mr. Sinclair was not bound to explain the undated cuts in his jeans and lacerations of his legs. The evidence in this regard is inconclusive on its own, and unsupported by forensic evidence of any sort. It is no more probative of Mr. Sinclair’s presence at the scene of the crime than the fact that blood of another accused was on the victim’s knife.
[41] Fourth, and perhaps most important, mere presence at the scene of the crime ― even if it had been established ― would not suffice to prove, as a matter of fact or matter of law, that Mr. Sinclair had participated in the assault. Indeed, as Crown counsel conceded on the hearing of this appeal, there was evidence that “earlier in the evening, [Mr. Sinclair] had been present but had not participated in another robbery” (transcript, at p. 32).
V
[42] For all of these reasons, I would dismiss this appeal, affirm the judgment of the Court of Appeal, set aside the respondent’s conviction, and order a new trial.
The judgment of LeBel, Deschamps and Rothstein JJ. was delivered by
[43] LeBel J. — I have had the benefit of reading the reasons of my colleague Fish J. With respect, I cannot agree with him that the Manitoba Court of Appeal was right to order a new trial on the ground that the trial judge had misapprehended the evidence in her reasons and had thus made an error that met the standard set out in R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732. For the reasons that follow, I would allow the appeal and restore the respondent’s conviction.
[44] Before turning to the core of my disagreement with my colleague, I wish to briefly address the legal issues raised by this case. First and foremost, the Court must clarify in this appeal whether Fish J., dissenting in the result in R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190, expanded the “traditional scope” of s. 686(1) (a)(i) of the Criminal Code, R.S.C. 1985, c. C-46 (at para. 77), as delineated in R. v. Yebes, [1987] 2 S.C.R. 168, and R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381. On this point, I agree that, because Binnie J. concurred in substance in Fish J.’s reasons in Beaudry, Fish J. carried a majority on the issue of whether a verdict reached “illogically or irrationally” (para. 97) is “unreasonable” within the meaning of s. 686(1) (a)(i) of the Criminal Code (reasons of Fish J., at para. 17). I also acknowledge that Fish J.’s reasons in Beaudry represent the state of the law on this point.
[45] In light of this conclusion, the second — and more subtle — issue in the case at bar concerns the nature of the error requiring appellate intervention under s. 686(1) (a)(i) that Beaudry purported to identify. Fish J. sets out clearly, in comments with which I fully agree, what Beaudry does not stand for (at paras. 3-4):
While a verdict that rests on a mistake as to the substance of the evidence may well be “unreasonable” in the broad sense of that term, Beaudry has no application to errors of this sort. Rather, they are governed by R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732. Nor does Beaudry govern trial court decisions that are rendered inscrutable by an absence of sufficient reasons, as in R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869.
Nothing in Beaudry should be taken as a departure from the well-established principles of appellate review set out in R. v. Yebes, [1987] 2 S.C.R. 168, and R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381.
Fish J. adds that “the Beaudry test addresses the reasonableness of the judge’s verdict, notably by scrutinizing the logic of the judge’s findings of fact or inferences drawn from the evidence admitted at trial” (para. 15 (emphasis in original)). Despite the fact that I concurred with the opinion of Charron J. in Beaudry, I am convinced that Fish J.’s reasons in the instant case correctly reflect the position that was taken by the majority in that case. Accordingly, I concur with his reasons to that extent.
[46] My disagreement with Fish J. does not therefore pertain to his interpretation of how Beaudry fits into the expanded scope of s. 686(1) (a)(i). Nor does it relate to his opinion that, to the extent that the Manitoba Court of Appeal appears to have based its judgment in the instant case on Beaudry, it erred in law. Rather, the only point on which I disagree with Fish J. relates to the application of Lohrer to the facts of this case. I do not agree that the Court of Appeal identified an error in the trial judge’s reasons that “fall[s] squarely within Lohrer” (reasons of Fish J., at para. 5). In my respectful opinion, the trial judge did not commit an error that justified appellate intervention.
[47] Hamilton and Freedman JJ.A., writing for a unanimous Court of Appeal, held that the trial judge had misapprehended the evidence by asserting that Mr. Sinclair had been involved in a plan to commit a robbery (2009 MBCA 71, 240 Man. R. (2d) 135). In their view, as a result of this misapprehension