Case information
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39874
Andre Aaron Gerrard v. Her Majesty the Queen
(Nova Scotia) (Criminal) (As of Right)
Docket
Judgments on applications for leave to appeal are rendered by the Court, but are not necessarily unanimous.
| Date | Proceeding | Filed By (if applicable) |
|---|---|---|
| 2022-05-05 | Appeal closed | |
| 2022-05-04 | Transcript received, 55 Pages | |
| 2022-04-19 | Formal judgment sent to the registrar of the court of appeal and all parties | |
| 2022-04-19 | Judgment on appeal and notice of deposit of judgment sent to all parties | |
| 2022-04-19 |
Judgment on the appeal rendered, Mo Ka Row Kas Ja, The appeal from the judgment of the Nova Scotia Court of Appeal, Number CAC 501626, 2021 NSCA 59, dated July 27, 2021, was heard on April 19, 2022, and the Court on that day delivered the following judgment orally: MOLDAVER J. — Mr. Gerrard appeals his 13 domestic violence-related convictions to this Court, as of right, based upon a dissenting opinion at the Nova Scotia Court of Appeal. A majority of the Court of Appeal rejected his submissions that the trial judge erred both in her application of R. v. W.(D.), [1991] 1 S.C.R. 742, and her assessment of the complainant’s credibility. We would dismiss the appeal. On the first issue, the trial judge instructed herself correctly on the W.(D.) test and its application. It is immaterial that the trial judge assessed the complainant’s credibility before the accused’s; this does not automatically demonstrate that she reversed the burden of proof (R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, at para. 21). Rather, the trial judge’s reasons demonstrate that she did not evaluate the complainant’s evidence in isolation, but properly tested it against the evidence of other witnesses — including the accused — and offered cogent reasons for finding that the complainant’s evidence was credible without improperly marginalizing that of Mr. Gerrard’s or any of the other witnesses. Trial judges’ reasons must be read generously, as a whole, and with the presumption that the judge knows the law (R. v. G.F., 2021 SCC 20, at paras. 69 and 74). We see no reason to interfere with her analysis. On the second issue, we do not accept Mr. Gerrard’s submission that the trial judge made improper credibility findings about the complainant regarding lack of motive to lie, lack of embellishment, and reluctance to report to the police and testify. The trial judge properly considered each of these factors in assessing the complainant’s credibility as a direct response to Mr. Gerrard’s defence at trial, namely that the complainant had long threatened to report him to the police and finally followed through with this threat by fabricating allegations because he made a derogatory comment about her to her daughter. Put another way, he alleged that she had a motive to lie and was, in fact, lying. Credibility findings are owed significant deference on appeal (G.F., at para. 81). The trial judge’s reasons were responsive to live issues at trial — raised by Mr. Gerrard — and reveal no error justifying intervention. Two of these factors warrant a few additional comments. Lack of evidence of a complainant’s motive to lie may be relevant in assessing credibility, particularly where the suggestion is raised by the defence (R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, at paras. 10-11; R. v. Ignacio, 2021 ONCA 69, 400 C.C.C. (3d) 343, at paras. 38 and 52). Absence of evidence of motive to lie, or the existence of evidence disproving a particular motive to lie, is a common sense factor that suggests a witness may be more truthful because they do not have a reason to lie. That said, when considering this factor, trial judges must be alive to two risks: (1) the absence of evidence that a complainant has a motive to lie (i.e. there is no evidence either way) cannot be equated with evidence disproving a particular motive to lie (i.e. evidence establishing that the motive does not exist), as the latter requires evidence and is therefore a stronger indication of credibility — neither is conclusive in a credibility analysis; and (2) the burden of proof cannot be reversed by requiring the accused to demonstrate that the complainant has a motive to lie or explain why a complainant has made the allegations (R. v. Swain, 2021 BCCA 207, 406 C.C.C. (3d) 39, at paras. 31-33). Lack of embellishment may also be relevant in assessing a complainant’s credibility and often arises in response to suggestions that the complainant has a motive to lie. But, unlike absence of evidence of motive to lie, or the existence of evidence disproving a particular motive to lie, lack of embellishment is not an indicator that a witness is more likely telling the truth because both truthful and dishonest accounts can be free of exaggeration or embellishment. Lack of embellishment cannot be used to bolster the complainant’s credibility — it simply does not weigh against it. It may, however, be considered as a factor in assessing whether or not the witness had a motive to lie. For these reasons, we would dismiss the appeal. Dismissed |
|
| 2022-04-19 |
Hearing of the appeal, 2022-04-19, Mo Ka Row Kas Ja Judgment rendered |
|
| 2022-04-13 | Respondent's condensed book, (Book Form), (Printed version due on 2022-04-22) | Her Majesty the Queen |
| 2022-04-13 | Appellant's condensed book, (Book Form), (Printed version due on 2022-04-22) | Andre Aaron Gerrard |
| 2022-04-07 | Correspondence (sent by the Court) to, Correspondence re: upcoming hearing | |
| 2022-03-31 | Correspondence (sent by the Court) to, Letters of direction regarding the upcoming hearing sent to parties | |
| 2022-03-21 |
Notice of appearance, (Letter Form), Jennifer A. MacLellan, Q.C. and Mark Scott, Q.C. will appear before the Court. Jennifer A. MacLellan, Q.C. will present oral argument. , (Printed version due on 2022-03-28) |
Her Majesty the Queen |
| 2022-03-21 | Notice of appearance, (Letter Form), Jonathan T. Hughes will be appearing and presenting oral argument. , (Printed version due on 2022-03-28) | Andre Aaron Gerrard |
| 2022-02-28 | Certificate (on limitations to public access) | Her Majesty the Queen |
| 2022-02-28 | Respondent's factum, (Book Form), Completed on: 2022-03-07, (Printed version filed on 2022-04-06) | Her Majesty the Queen |
| 2022-02-04 | Notice of hearing sent to parties | |
| 2022-02-04 |
Appeal hearing scheduled, 2022-04-19 Judgment rendered |
|
| 2021-12-30 | Letter advising the parties of tentative hearing date and filing deadlines (Notice of appeal – As of right) | |
| 2021-12-22 | Certificate of counsel (attesting to record), (Letter Form), (Printed version due on 2021-12-31) | Andre Aaron Gerrard |
| 2021-12-22 | Appellant's record, (Book Form), (5 volumes), Completed on: 2021-12-23, (Printed version filed on 2021-12-22) | Andre Aaron Gerrard |
| 2021-12-22 | Appellant's factum, (Book Form), Completed on: 2021-12-23, (Printed version filed on 2021-12-22) | Andre Aaron Gerrard |
| 2021-11-08 | Order on motion to extend time to serve and/or file notice of appeal, by Justice Moldaver (sent by email) | |
| 2021-11-08 |
Decision on motion to extend time to serve and/or file notice of appeal, Mo, UPON APPLICATION by the appellant for an order granting an extension of time to serve and file his notice of appeal as of right to October 27, 2021; AND THE MATERIAL FILED having been read; IT IS HEREBY ORDERED THAT: The motion is granted. Granted |
|
| 2021-11-08 | Submission of motion to extend time to serve and/or file notice of appeal submitted, Mo | |
| 2021-11-02 | General proceeding, FILE NUMBER HAS BEEN ASSIGNED AT THIS TIME FOR THE SOLE PURPOSE OF PREPARING AN ORDER RELATING TO THE MOTION FILED BY ANDRE AARON GERRARD. | Andre Aaron Gerrard |
| 2021-10-27 | Response to motion to extend time to serve and/or file notice of appeal, Completed on: 2021-11-05 | Her Majesty the Queen |
| 2021-10-27 | Certificate (on limitations to public access), (Letter Form), (Printed version filed on 2021-11-08) | Andre Aaron Gerrard |
| 2021-10-27 | Motion to extend the time to serve and/or file the notice of appeal, (Letter Form), Completed on: 2021-11-02, (Printed version filed on 2021-11-08) | Andre Aaron Gerrard |
| 2021-10-27 |
Notice of appeal, (Letter Form), Information included Trial Court Order require, Incomplete, (Printed version filed on 2021-11-08) |
Andre Aaron Gerrard |
Parties
Please note that in the case of closed files, the “Status” column reflects the status of the parties at the time of the proceedings. For more information about the proceedings and about the dates when the file was open, please consult the docket of the case in question.
Main parties
| Name | Role | Status |
|---|---|---|
| Gerrard, Andre Aaron | Appellant | Active |
v.
| Name | Role | Status |
|---|---|---|
| Her Majesty the Queen | Respondent | Active |
Counsel
Party: Gerrard, Andre Aaron
Counsel
PO Box 128
Halifax, Nova Scotia
B3J 2M4
Telephone: (902) 410-2660
FAX: (902) 407-5447
Email: jonathan@jthlaw.ca
Agent
100- 340 Gilmour Street
Ottawa, Ontario
K2P 0R3
Telephone: (613) 695-8855 Ext: 102
FAX: (613) 695-8580
Email: mfmajor@supremeadvocacy.ca
Party: Her Majesty the Queen
Counsel
Mark Scott, Q.C.
Nova Centre
700 - 1625 Grafton Street
Halifax, Nova Scotia
B3J 0E8
Telephone: (902) 424-4923
FAX: (902) 424-8440
Email: jennifer.maclellan@novascotia.ca
Agent
160 Elgin Street
Suite 2600
Ottawa, Ontario
K1P 1C3
Telephone: (613) 786-8695
FAX: (613) 788-3509
Email: lynne.watt@gowlingwlg.com
Summary
Keywords
Criminal law — Evidence — Credibility — Whether the trial judge erred in her application of the test in R. v. W.(D.), [1991] 1 S.C.R. 742 — Whether the trial judge erred in assessing the credibility of the Crown witness, the complainant.
Summary
Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.
The appellant was convicted after trial before a judge alone of thirteen counts relating to various offences committed against his common law spouse. Applying the principles set out in R. v. W.(D.), [1991] 1 S.C.R. 742, the trial judge concluded that the complainant had not been motivated to lie, and that the evidence did not give rise to such an inference. The trial judge accepted the complainant’s evidence and found that it did not raise a reasonable doubt, and she rejected the appellant’s evidence and concluded that it also did not raise a reasonable doubt.
A majority of the Nova Scotia Court of Appeal dismissed the appellant’s appeal and upheld the convictions. In the majority’s view, the trial judge did not misapply W.(D.) and she did not err in assessing the complainant’s credibility. In dissent, Bryson J.A. would have allowed the appeal and ordered a new trial.
Lower court rulings
Nova Scotia Court of Appeal
2020 NSCA 85, CAC 501626
See file
Nova Scotia Court of Appeal
2021 NSCA 59, CAC 501626
Appeal dismissed.
Memorandums of argument on application for leave to appeal
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Downloadable PDFs
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Related links
Factums on appeal
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If you have questions about a factum or want permission to use a factum, please contact the author of the factum directly. Their contact information appears on the first page of each factum.
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