MSV v Alberta, 2023 ABKB 481

Court of King’s Bench of Alberta Citation: MSV v Alberta, 2023 ABKB 481 Date: 20230822 Docket: 210796280S1 Registry: Edmonton Between: MSV Appellant - and - His Majesty the King Respondent Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify the victim must not be published, broadcast, or transmitted in any way. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. Corrected judgment: A corrigendum was issued on September 1, 2023; the corrections have been made to the text and the corrigendum is appended to this judgment.

Corrected judgment: A corrigendum was issued on August 28, 2023; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Judgment of the Honourable Justice N.J. Whitling _______________________________________________________

I. Introduction and Overview [ 1 ] The Appellant, “MSV”, appeals his conviction for sexual assault entered by the Hon. Judge Brandt of the Provincial Court of Alberta on August 31, 2022. That offence was found to have been committed in the summer of 1988, being 34 years before the trial. The applicable offence provision at the time was s. 246.1(1) of the Criminal Code , R.S.C. 1985 c.

C-46 . [ 2 ] The Appellant raises a single ground of appeal, namely that the learned trial judge erred and reversed the burden of proof by drawing an adverse inference against the Appellant based upon his failure to call medical records or additional witnesses in support of his own version of events. [ 3 ] In response, the Crown submits that the learned trial judge did not reverse the applicable burden of proof, and that the adverse inference drawn against the Appellant was not drawn in error.

Further, and in the alternative, the Crown submits that any error committed by the trial judge cannot be said to have affected the guilty verdict. II. Factual Background [ 4 ] The Crown called a single witness in support of its case at the trial, being the Complainant R.G. In very brief overview, R.G. testified that in the summer of 1988 when she was 10 years of age, the Appellant touched her vagina while she was lying on a foam mattress in the basement of the Appellant’s home in Edmonton.

She testified that this event occurred when R.G. and some of her family members were visiting the Appellant and some of his family members. The Appellant and R.G. are first cousins. [ 5 ] The Appellant testified in his own defence and denied the occurrence of the incident.

He also testified that in March of 1988, he had fallen off a roof and injured his pelvis, which injury rendered him unable to walk up or down the stairs of his house, such that he was essentially immobilized on a sofa on the main floor. [ 6 ] The Crown’s cross examination of the Appellant commenced with the following exchange: Q: I take it you have medical records to confirm this injury? A: Yes. I don’t have them on me but the lawyer has a copy. Q: Okay. So you did try to get medical records to corroborate this? A: Yeah. He has the record and he also provided. Q: Okay.

And so this would have been in March of 1988 that you fall? [ 7 ] A: Yes. [ 8 ] The learned trial judge found the Appellant’s testimony to be lacking in credibility. In doing so, he provided the following reasons which are the main focus of this appeal: With respect to the sexual assault allegations themselves, his evidence amounted to an adamant flat denial. He said he had not sexually assaulted Ms. R.G. Aside from that, I did not[e] several issues with [the Appellant’s] testimony that called his credibility into question in my view.

First, I noted that MSV was somewhat inconsistent with his account of his own injury. Initially, he said he could not walk for one or one-and-a-half years after March of 1988. Then in cross-examination he said that he had started walking with crutches after a month or so. This would have put him on crutches months before Ms. R.G.’s arrival at the Mill Woods house. It also calls into question the course of [the Appellant’s] recovery. Second, [the Appellant’s] evidence of the course of his recovery is compounded by the lack of medical evidence. [The Appellant] himself testified that such evidence did exist.

The onus of proof, of course, is always with the Crown. The accused needs to prove nothing. However, the absence of this readily available corroborating evidence does not assist [the Appellant’s] credibility. Likewise, from the evidence of both Ms.

R.G. and [the Appellant] there were a number of family members present at the Mill Woods house at the time, yet, the Court was not provided with any evidence with respect to those witnesses. [ 9 ] Although not the focus of the present appeal, the learned trial judge also proceeded to identify a third ground for disbelieving the Appellant’s testimony, namely that the Appellant would not be expected to have such a good memory of the details of events that had occurred 34 years earlier: Next, [the Appellant’s] testimony with respect to his interaction with the 10-year old Ms. R.G. is illogical and incredible. Ms.

R.G. testified that she was around the Mill Woods house for much of that summer. [The Appellant] described interacting with other relatives in the house, including children; however, he was adamant that despite his permanent positioning on the sofa in the living room – very central location – he had absolutely no interaction with Ms. R.G. Even after the passage of some 34 years since the allegations, he could say with certainty that he had no interaction with Ms. R.G. during the summer of 1988, and that is despite his evidence that nothing happened of note between himself and Ms. R.G.

He was still very adamant that this had not happened, that it was not possible that it had happened, and this strains credulity. III. Ground of Appeal [ 10 ] The Appellant raises a single ground of appeal, namely that the learned trial judge reversed the burden of proof by drawing an

adverse inference from the Appellant’s failure to lead medical records in support of his injuries or to call family members as witnesses toconfirm his version of events. IV.

Standard of Review [11] An appellate court should show great deference to findings of credibility made at trial and only interfere where suchassessments cannot be supported on any reasonable view of the evidence: R v Burke, (SCC), [1996] 1 SCR 474 at para5-7; R v RP, 2012 SCC 22 at para 10; R v Clarkson, 2023 ABCA 212 at para. 11. [12] Since a trial judge’s decision to draw an adverse inference is discretionary, the applicable standard of review is palpable andoverriding error: Pfeifer v Westfair Foods, 2004 ABCA 422 at para. 20. V.

The Adverse Inference [13] The case law which considers the propriety of an adverse inference emphasizes that it will rarely be appropriate for a trier offact to draw an adverse inference from the defence’s failure to call evidence. Such inferences are dangerous since there may exist validreasons for the defence’s decision to not call the evidence, and those reasons are often unknowable to the trier of fact.

In R v Jolivet,2000 SCC 29, Binnie J. addressed these concerns at para. 39: It is clear from these authorities that it will rarely be “appropriate” for the trial judge to comment on the failure of the Crown to call aparticular witness, and even more rare to do so with respect to the defence. As Brooke J.A. went on to say in Zehr, [(1980), (ON CA), 54 C.C.C. (2d) 65 (Ont. C.A.)], at pp. 68-69: There are many reasons why counsel may choose not to call a witness, and our Courts will rarely question the decision of counsel, forthe system proceeds on the basis that counsel conducts the case.

Often a witness is not called, and if the reason was known it would notjustify an instruction that an adverse inference might be drawn from the witness not being called. Of importance under our system,counsel is not called upon, or indeed permitted, to explain his conduct of a case [to the jury]. [14] Given that there may exist valid reasons for a party’s decision not to call certain evidence, a trier of fact must consider anypotential explanation for the absence of the evidence before drawing an adverse inference.

In R v Koffman (1985), (ON CA), 20 CCC (3d) 232 (Ont CA), Martin J.A. wrote: Comment on the failure to call a witness, although permissible in some circumstances, should be exercised with caution: see R. v. Zehr(1981) (ON CA), 54 C.C.C. 2d 65 at p. 68; R. v. Charrette (1982), (ON CA), 67 C.C.C. 2d 357 atp. 359.

Even where it is appropriate for the trial judge to comment on the failure of an accused to call a particular witness it is incumbentupon the trial judge to instruct the jury that there is no obligation on the defence to call a particular witness and that there may have beena perfectly valid reason for not calling the witness: see R. v. Zehr (supra) at pp. 72-73; R. v.

Gallagher [1974] 3 All E.R. 118 at p. 123.Even where a comment on the failure to call a witness is appropriate, the failure to call a witness should not be given undue prominenceand a comment should only be made where the witness is of some importance in the case. [Emphasis added] [15] Similarly, in R v D(JC) (1995), (ON CA), 98 CCC (3d) 496 (Ont CA), Osborne J.A. wrote: If the trial judge were to conclude that the appellant’s failure to call one or more of the witnesses was capable of supporting an adverseinference, the trial judge should have told the jury that, although it was open to it to draw an adverse inference from the appellant’sfailure to call some, or all, of the witnesses, it should do so only with the greatest of caution and after taking into account the testimony inwhich the appellant attempted to explain why the witnesses would not be called.

See R. v. Charette (1982), (ON CA),67 C.C.C. (2d) 357 (Ont. C.A.). [Emphasis added] [16] Applying the above principles to the present case, I must conclude that the trial judge committed palpable and overriding errorby drawing an adverse inference from the Appellant’s failure to tender medical records or to call other family members as witnesses toconfirm his own version of events.

There are many valid explanations as to why the defence may have chosen not to lead any suchevidence, and the learned trial judge did not turn his mind to those possible explanations. [17] The most obvious potential explanation for the defence’s decision to not call family members as witnesses is that they maynot have any memory of events that occurred some 34 years earlier.

Indeed, given the passage of time, it would be surprising if anyoneelse in the home had any useful evidence to give at the time of the trial. [18] With respect to the medical records, it may be that the defence decided not to rely upon them since they were illegible,indecipherable, ambiguous or otherwise unhelpful. Or, it may have been impossible for the defence to prove the preconditions to theiradmissibility as business records given the passage of time. [19] The trial judge did not identify or consider the potential explanations for the defence’s decision not to call the absentevidence.

In all the circumstances of this case, notably the passage of some 34 years since the events at issue, it was, in my view,unreasonable to draw an adverse inference against the Appellant for his failure to lead such evidence. [20] With the greatest of respect to the learned trial judge, I must conclude that the adverse inference drawn against the Appellantfor his failure to lead medical records or testimony from other persons in the residence constituted palpable and overriding error.

Thereare many potential explanations for the defence’s decision not to lead such evidence, including those arising from the passage of some34 years since the events at issue. The trial judge did not identify or consider those potential explanations. By discounting theAppellant’s credibility on the basis of a failure to lead evidence, the trial judge effectively reversed the burden of proof, and engaged inspeculation as to the reasons why the evidence was not called by the defence.

[ 21 ] Before leaving this subject, I will add that I respectfully disagree with Crown counsel’s submission that the adverse inference in the present case was drawn in accordance with the principles recognized in R v P(NL) , 2013 ONCA 773 . That case holds that an adverse inference may be drawn where the accused is the party who first raises and relies upon the absent evidence as corroborative of his own narrative of events. The Appellant in the present case did not testify in chief that his relatives or his medical records would corroborate his version of events.

The absent medical records were first raised by the Crown in cross-examination. VI. The Curative Proviso [ 22 ] During oral argument, Crown counsel fairly acknowledged that the adverse inference drawn by the trial judge was problematic given the possible explanations for the defence’s decision not to lead any such evidence. However, the Crown also submitted that any such error does not necessitate a new trial. This issue is governed by the curative proviso contained in s. 686(1)(b)(iii) of the Criminal Code .

In R v Jaw , 2009 SCC 42 , Lebel J. summarized the test applicable to this provision at para. 42: This Court reviewed the law on the curative proviso in R. v. Khan , 2001 SCC 86 , [2001] 3 S.C.R. 823 (see also R. v. Trochym , 2007 SCC 6 , [2007] 1 S.C.R. 239). In essence, this provision allows a court to uphold a conviction despite an error of law if no substantial wrong or miscarriage of justice occurred as a result of the error.

The Crown must demonstrate to the court either (1) that the error was so harmless, and so insignificant, that it could not have affected the verdict; or (2) that the error, while serious, did not result in a miscarriage of justice or a substantial wrong, because the case against the accused was so overwhelming that a conviction would have been inevitable even if the error had not been made. [ 23 ] Applying the above test from Jaw , I conclude that the Crown has not demonstrated that the error committed by the trial judge was harmless. Credibility was the central issue in the Appellant’s trial.

The trial judge identified three bases for discounting the Appellant’s credibility, and stated that the second basis (the adverse inference), “compounded” the concerns arising from the first basis. Given the significance of the adverse inference to his overall credibility analysis, it cannot be said that the error could not have affected the verdict in the sense that the verdict would necessarily have been the same. [ 24 ] Consequently, the curative proviso is inapplicable to the error identified in this appeal and a new trial must be ordered. VII.

Conclusion and Order Granted [ 25 ] I conclude that the learned trial judge committed palpable and overriding error by drawing an adverse inference against the Appellant for his failure to lead medical records or testimony from other family members in support of his narrative of events. It cannot be said that this error could not have affected the guilty verdict. [ 26 ] The appeal is allowed and a new trial is ordered. Heard on the 13 th day of June, 2023. Dated at the City of Edmonton, Alberta this 22 nd day of August, 2023. N.J. Whitling J.C.K.B.A.

Appearances: Stephen Brophy Pringle Law for the Appellant Rayne Thompson Alberta Justice for the Respondent

_______________________________________________________ Corrigendum of the Reasons for Judgment of The Honourable Justice N.J. Whitling _______________________________________________________ Citation Name corrected to reflect MSV v Alberta. _______________________________________________________ Corrigendum of the Reasons for Judgment of The Honourable Justice N.J. Whitling _______________________________________________________ Paragraph 8 – Name removed and replaced with MSV.