R. v. Sue, 2011 BCCA 91

The issue on this appeal was whether the trial judge’s misapprehension that the accused had testified through an interpreter was sufficient to constitute a miscarriage of justice. The accused was charged with possession of cocaine and heroin for the purpose of trafficking. He and several other men were arrested after police raided a Vancouver apartment in which he was present. A large amount of drugs was found in plain view in the kitchen, and a firearm in one of the bedrooms. Documents in his name were found in various locations in the apartment, and he was found to have a key to one of its doors. The accused testified at trial, and denied the charges. He alleged that he lived in Toronto, and was only staying with the man who rented the suite while visiting Vancouver. Although his first language was not English, he testified without the assistance of an interpreter.

The trial judge disbelieved his testimony, and, based on his connection with the apartment, found that he was in possession of the drugs. She convicted him on both counts. However, in her reasons, she erroneously stated that he had testified with the assistance of an interpreter. The appellant argued on appeal that this was a material misapprehension of the evidence that supported a setting aside of the verdict on the basis that a miscarriage of justice had occurred. The majority of the Court of Appeal agreed with the accused’s position. Because the case against the accused was strong, the case depended entirely on the trial judge’s assessment of his credibility. The majority concluded that a reasonable person outside the justice system could not consider the accused to have been properly convicted where the judge could not even recall the manner in which he testified. The judge had clearly begun her assessment of credibility from an incorrect platform, and, in the majority’s view, this created the appearance of a sufficiently flawed and unfair process so as to constitute a miscarriage of justice. The verdict was set aside, and a new trial ordered.

 Lowry J.A., dissenting, felt that the trial judge had simply misspoken, and that it was unlikely that her error had affected her ability to perceive the accused’s demeanour. In any event, he was of the view that the accused’s testimony was nonsensical, and could not be rendered sensible and credible through the manner in which it was adduced. As a result, her error could not have affected the fairness of the trial.

March 2, 2011
Link to Decision

Julia Wilkes