R v R.P.: Are Appellate Courts Courting Trouble?

May 18, 2012

Any law student could probably tell you that it is the trial courts that determine matters of fact (who did it, how did he/she do it, when did it happen, etc.), while it is the appellate courts that review cases on matters of law. Whether a verdict is unreasonable is certainly a question of law.

In R v R.P., 2012 SCC 12, the Supreme Court of Canada restored a conviction after deciding that the Court of Appeal incorrectly dismissed the trial judge’s verdict as unreasonably rendered, given the trial judge’s findings of fact and the inferences he drew from them. Justices LeBel and Fish dissented in the case, objecting to the logical (or illogical) connections drawn by the trial judge, particularly related to credibility. So, what was supposedly a question of law really rests on answers to questions of fact; a witness’s credibility can only be established factually. Of course, it is not the facts that make the case stand it--this case further demarcates power in our judiciary, and reveals that those demarcated lines are sometimes blurry.

Facts & Procedural History

The facts of the case, and the trial judge’s subsequent decision, aroused the suspicions of the judges on the Court of Appeal of Quebec from the very beginning. The respondent was convicted of indecently assaulting the complainant, who was the then sister-in-law of the respondent. His trial was held over 30 years after the impugned acts.

The victim was a minor at the time (thirteen years of age). On top of it all, there is no physical evidence. The case is circumstantial, with the credibility of the witnesses essentially determinative.

The victim testified that the sexual assaults took place when she went to babysit for her sister and the accused, sometimes in the house and other times in the accused’s car.

The accused denied this.

Despite some serious problems with the victim’s testimony, the trial judge believed her. According to his decision, he did not believe the respondent or his wife. Even though his wife’s testimony contradicts the victim’s testimony on important facts, such as the dates on which she babysat for the couple, the trial judge did not find the testimony to raise reasonable doubt. The trial judge sets out a number of reasons as to why he found the victim to be more credible. This is what the Court of Appeal took issue with. They found that the trial judge erred in assessing the credibility of the accused’s wife. Thus, they concluded that the verdict was unreasonable and entered an acquittal.

Legislative Background & Case Law

As stated earlier, the question of whether a verdict is unreasonable is a question of law. Specifically, the right of the Court of Appeal of Quebec to intervene in this respect is couched in Section 686(1)(a)(i) of the Criminal Code, RSC 1985, c C-46, which reads:

686. (1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial criminally responsible on account of mental disorder, the court of appeal

(a) may allow the appeal where it is of the opinion that

(i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by evidence.

A trio of cases from the Supreme Court of Canada has offered an interpretation of this section. R v Yebes, [1987] 2 SCR 168, and R v Biniaris, 2000 SCC 15,  held that a verdict is reasonable when a properly instructed jury or judge could have reasonably rendered it. In two further cases, R v Sinclair, 2011 SCC 40, and R v Beaudry, 2007 SCC 5, it was further held that a verdict is unreasonable if the trial judge has drawn an inference or made a finding of fact essential to that verdict that

1. is plainly contradicted by the evidence relied on by the trial judge in support of that inference or finding or
2. is shown to be incompatible with evidence that has not otherwise been contradicted or rejected by the trial judge.

At the heart of the appeal is the question of a witness’s credibility. That is a question of fact, as opposed to a question of law. For an appellate court to interfere with a trial judge’s assessment of the witness’s credibility, it must be determined that the trial judge’s assessment “cannot be supported on any reasonable view of the evidence” (R v Burke, [1996] 1 SCR 474, para 7). In other words, the appellate court is very limited in its power to scrutinize and subsequently override a trial judge’s findings about a witness’s credibility.

Application to the Case

According to Justice Deschamps, writing for the majority of the bench at the Supreme Court of Canada, the appellate court of Quebec overstepped its bounds. They did not have the right to substitute their own assessment of the credibility of the witness for that of the trial judge. It was not sufficient that they considered the trial judge to have not accorded enough weight to the testimony of the respondent’s wife, which at times challenged the credibility of the victim’s testimony. This is not enough to conclude that the verdict is unreasonable and acquit the accused, according to the majority of the bench.  In R v A.G., 2000 SCC 17, Justice Arbour directly addresses the issue at hand:

“As this Court’s s. 686(1)(a)(i) jurisprudence makes clear, the fact that an appeal court judge would have doubt when the trial judge did not is insufficient to justify the conclusion that the trial judge was unreasonable [italics added].”

Any disagreement between the trial court and the appellate court would be merely a disagreement. It would merit intervention if, on a point essential to the verdict, the trial judge made factual findings that were obviously contradictory to and incompatible with the larger body of evidence. But that is not the case here. Justice Deschamps underlines the caution that the trial judge used in examining the credibility of the victim, who was speaking out about a crime that took place thirty-four years ago. That is, the trial judge examined her credibility under a critical lens.

There is also reason to believe that the trial judge was appropriately skeptical of the respondent’s wife’s testimony. The respondent’s wife’s testimony concerned the events that took place on specific days, days that passed some thirty years ago. As the trial judge points out, there was no good reason for the respondent’s wife to have these details from her daily life “fixed” in her memory. Moreover, her testimony vacillated between being too precise and too general. This very contrast between specific details and general expressions supports the trial judge’s finding that the witness did not really remember the specific details. What was taken to be a contradiction in the eyes of the Court of Appeal of Quebec could actually be reconciled. Justice Deschamps and the majority of the court therefore accept the trial judge’s approach as coherent and supported by evidence.

Dissent

Justice Fish wrote a spirited dissent in this case. He seems to be more interested in how a review of the trial court’s verdict can be undertaken, as opposed to when it should be undertaken. He applauds Justice Pelletier on the Court of Appeal of Quebec for dissenting with the majority. Pelletier, J.A. reviewed the evidence in detail. Justice Fish argues that appellate courts must investigate the evidence in full before they can make a conclusion about the reasonableness of a verdict handed down by a lower court. He considers Justice McLachlin, as she was then, to be an important authority on this issue. In R. v. W. (R.), [1992] 2 SCR 122, McLachlin J. states:

“It is thus clear that a court of appeal, in determining whether the trier of fact could reasonably have reached the conclusion that the accused is guilty beyond a reasonable doubt, must re-examine, and to some extent at least, reweigh and consider the effect of the evidence.”

After a careful re-examination, reweighing and re-consideration of the effect of the evidence, Justice Fish agrees with Justice Pelletier that the trial judge erred in excusing the inconsistencies in the victim’s testimony while he brushed aside the testimonies of others, namely victim’s wife and accused’s sister, when they seemed to oppose that of the victim. Thus, the trial judge’s reasons for his decision do not escape scrutiny, even if we are sensitive to the time lapses in this case. With new light shed on the evidence, Justice Fish concludes that no trier of fact could have reasonably concluded that R.P. is guilty beyond a reasonable doubt of the offence with which he is charged.

Concluding Remarks

This case is not about an internal strife within our judiciary; it does not seem as though the case is about a struggle of power among judges. At the heart of the case is a struggle to keep our justice system transparent and the courts accountable for the justice that is served to our community. The reasons that underlie a judge’s decision – a decision that may deprive someone of their freedom – need to be clearly stated. There must an internal logic to the legal reasoning, such that lines can be drawn between a fact, or a set of facts, and a conclusion. Only then can we hold these judges accountable for their decisions. It follows, then, that a more active role can be taken by the appellate-level courts when they review decisions handed down by lower courts. Justices Fish and Lebel may be right then.

On the other hand, lower courts need to have their independence; if lower court decisions were more readily reviewed and evidence scrutinized in full by other courts, their role as fact finders may be usurped. We should be concerned about efficiency, too. Our court system is already plagued by backlogged cases. A highly interventionist approach taken by the appellate courts may lead to a greater backlog.

There are obviously strengths and weaknesses on both sides of the debate. One deciding factor may be the nature of the crime and the punishment. In a case such as R v R.P., where the accused would face incarceration for a number of years, we may benefit from a more active appellate court. The degree of activeness would therefore be directly proportional to the severity of the charge. But there may be an extraordinary case in the future that challenges this rule, and our courts should have the flexibility to take it on as they deem fit. There might be another court that checks that decision anyway.