R v MPJ, 2024 ABCA 35

In the Court of Appeal of Alberta Citation: R v MPJ, 2024 ABCA 35 Date: 20240131 Docket: 2303-0027A Registry: Edmonton Between: His Majesty the King Respondent - and - MPJ Appellant 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 By Court Order, information that could identify the victim must not be published, broadcast, or transmitted in any way.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. _______________________________________________________ The Court: The Honourable Chief Justice Ritu Khullar The Honourable Justice Patricia Rowbotham The Honourable Justice Kevin Feth _______________________________________________________ Memorandum of Judgment

Appeal from the Conviction by The Honourable Justice C. Arcand-Kootenay, Convicted on the 27th day of June, 2023 Docket: 180506818Q1 _______________________________________________________ Memorandum of Judgment _______________________________________________________ The Court: [1] The appellant was convicted of two counts of sexual interference and one count of uttering a threat to the 9-year-oldcomplainant. He appeals from those convictions on three grounds.

Improper application of the burden of proof and disregardingexculpatory evidence [2] The appellant contends that the trial judge erred in applying the burden of proof by conducting an “either/or” credibilityanalysis through which the complainant’s version of events was preferred over that of the appellant, rather than considering whether allthe evidence left a reasonable doubt about any element of the offences. Further, he submits the trial judge failed to consider allpotentially exculpatory evidence, including testimony from the complainant’s mother. [3] We find no such errors.

The trial judge expressly confirmed that the burden rests on the Crown throughout the trial to proveeach essential element beyond a reasonable doubt and that the appellant must be acquitted if a reasonable doubt remains. The guidanceprovided by R v W(D), (SCC), [1991] 1 SCR 742, 63 CCC (3d) 397, was expressly mentioned, including that a trialjudge need not entirely believe or disbelieve any witness and that the evidence accepted must prove the accused’s guilt beyond areasonable doubt.

The trial judge acknowledged that she “must consider whether the Crown has met its burden and whether anyevidence, including the evidence of the accused, raises a reasonable doubt.” [4] As this Court has confirmed on many occasions, W(

D) is not a “mandatory formula of talismanic power for decision in all criminal cases”: R v Ryon, 2019 ABCA 36 at para 73, 84 Alta LR (6th) 1. However, the three-stage structure is a helpful analytical tooland can avoid the impression that the evidence of a complainant or an accused person is being assessed in isolation from all the evidenceor that the exercise is a binary choice between two competing versions of events. [5] The trial judge’s initial comments about W(D), which were not a comprehensive

summary of the applicable principles, mustbe contextualized by the balance of her analysis and the entire record.

Taken together, the full reasons and the record do not suggest thatthe trial judge failed to understand and apply all the relevant principles, “namely the location of the burden of proof on the Crown, thestandard of proof beyond a reasonable doubt on the whole of the case, and that mere disbelief (or comparative disbelief) of an accusedperson, or mere acceptance of Crown evidence, does not make up for any shortfall in the trier of fact's confidence as to whether theCrown's case meets the burden and standard of proof”: R v SAS, 2023 ABCA 236 at para 12. [6] The appellant objects to the trial judge evaluating the complainant’s credibility and reliability before reviewing theappellant’s testimony and other potentially exculpatory evidence.

However, the trial judge’s reasons demonstrate that she did not assessthe complainant’s evidence in isolation from the balance of the record. The complainant’s evidence was tested against the evidence ofother witnesses, including the appellant, and cogent reasons were provided for accepting the complainant’s evidence and rejecting theexculpatory evidence. The sequence in which a trial judge makes credibility findings about the witnesses “is inconsequential as long asthe principle of reasonable doubt remains the central consideration”: R v Vuradin, 2013 SCC 38 at para 21, [2013] 2 SCR 639.

The appellant’s evidence was not improperly marginalized through this approach: R v Gerrard, 2022 SCC 13 at para 2, 468 DLR (4th) 389. [7] The trial record shows the trial judge considered the evidence holistically, including potentially exculpatory evidence, inrendering the verdict. The trial judge assessed the complainant’s testimony, including her capacity to observe, remember, and

communicate about the events at both locations where sexual touching occurred. The trial judge found that pauses before answeringwere explained by the difficult subject matter and traumatic events.

The trial judge noted direct and indirect evidence consistent with andsupporting the complainant’s testimony. [8] Turning to whether the Crown had met its burden, and the impact of the appellant’s denials, the trial judge rejected theappellant’s version of events, concluding that his description of sexualized “humping” and “grinding” by the young complainant was “aconcocted story”, did not have an air of reality or plausibility, and that the appellant “created a narrative” based on his knowledge of howoften, when and where he sexually touched the child.

The trial judge listed several reasons for finding the appellant not credible. [9] The appellant complains that the trial judge did not expressly canvas every piece of relevant evidence. However, a trialjudge’s silence about a specific piece of evidence does not mean that the judge failed to consider it. Further, minor “inconsistencies” maybe properly discounted as “peripheral matters” not essential to a trial judge’s reasoning.

A trial judge is not required to ascribe the sameprominence to an apparent inconsistency as an accused person proposes: R v Bowers, 2022 ABCA 149 at para 50. [10] The appellant submits that the trial judge failed to consider potentially exculpatory testimony from the complainant’s mother.However, the trial judge expressly considered an inconsistency between the complainant and her mother about the complainant’slocation in the home after one of the touching incidents, but characterized that inconsistency as not being a “relevant concern.” [11] The appellant contends the trial judge failed to address an inconsistency between the complainant and her mother about thechild participating in “horseplay” with the appellant.

The appellant characterizes the alleged inconsistency as so significant that failing toexpressly address it was an error of law. [12] While a trial judge need not resolve every inconsistency in the evidence, the trial judge “should address and explain how sheor he has resolved major inconsistencies in the evidence of material witnesses”: R v DH, 2016 ONCA 569 at para 35, referring to R vAM, 2014 ONCA 769 at para 14.

Failing to explain how credibility concerns are resolved, especially in the face of significantinconsistencies in a complainant’s testimony, may constitute reversible error: R v Dinardo, 2008 SCC 24 at paras 26-27, [2008] 1 SCR788. [13] The appellant testified that the complainant would jump on him and play “horsey”.

In his statement to the police, beforeknowing the complainant’s allegations or the focus of the police investigation, he volunteered two incidents of playing “horsey” with thecomplainant, suggested to be contemporaneous with the allegations, during which he said the 9-year-old child was “humping” and“grinding” him. He emphasized that evidence in cross-examination.

The complainant denied climbing on top of the appellant and having“horsey rides and things like that”, saying that was “nasty”. [14] The appellant asserts the mother’s evidence contradicted the complainant’s denial and corroborated his account, includingthat the complainant would engage in horseplay with him. He contends that the trial judge was required to discuss and assess thisevidence. [15] Our review of the record does not support the appellant’s assertion that the mother’s evidence amounted to a significantinconsistency.

The mother testified briefly that her two young children, including the complainant, had engaged in “horseplay, like,wrestling and stuff” with the appellant at some time “before”, which the mother had stopped. The specific nature and timing of thishorseplay or wrestling was not explained. [16] During closing argument, the appellant’s trial counsel referred to this type of horseplay as “innocuous” and described theactual inconsistency as an alleged contest between the complainant and her mother about the appellant’s role in disciplining the child.

Infact, the alleged inconsistency about discipline was a mischaracterization of the evidence. The trial judge properly disregarded it. [17] The mother’s understanding of the “horseplay” or “wrestling” was not explored during the trial and she was not asked aboutsexualized horseplay such as “grinding” or “humping” the appellant. The closing argument at trial did not assert that the mother’sevidence about horseplay (as distinct from who disciplined the child) created a significant or major discrepancy. [18] On this record, we are not persuaded that any inconsistency was established.

Accordingly, significant exculpatory evidencewas not ignored. Improper use of demeanour evidence [19] The appellant submits that the trial judge erred in using the complainant’s demeanor at trial and in her videotaped ZebraCenter interview as a factor in accepting her testimony and rejecting the appellant’s evidence.

However, the trial judge was entitled toconsider the complainant’s demeanor in assessing credibility and reliability: R v Flagler, 2022 ABCA 396 at para 29, referencing Whitev The King, (SCC), [1947] SCR 268; Housen v Nikolaisen, 2002 SCC 33 at para 18, [2002] 2 SCR 235; and R v S(N),2012 SCC 72 at paras 22, 26, [2012] 3 SCR 726.

While demeanor alone cannot be determinative, and caution must be exercised not toexcessively rely on it, our judicial system still “places confidence in our triers of fact to make determinations of credibility and reliability,and to consider demeanor in doing so”: Flagler at para 29. [20] The appellant argues that the trial judge engaged in impermissible speculation about why the complainant had difficultyarticulating the words for certain intimate body parts when speaking to police and testifying. [21] We find no merit in this argument.

The trial judge was entitled to consider the complainant’s difficulty discussing sexualmatters in assessing whether the appellant’s evidence had a “ring of truth” to it. The complainant’s discomfort speaking about sexualbody parts and sexualized touching was relevant evidence in deciding whether to reject the appellant’s assertion that the complainant hadbeen inappropriately “humping” and “grinding” on him.

[ 22 ] The trial judge did not engage in impermissible speculation about how a 9-year-old girl would behave. In the factual context of this case, the trial judge drew a common-sense inference from the complainant’s demonstrated shyness when speaking about sexual body parts in her Zebra Centre interview and at trial, which when combined with the other evidence, led the trial judge to conclude that the appellant’s testimony about the complainant humping him on two occasions and being disciplined for that behaviour did not “ring true”.

An unreasonable verdict [ 23 ] The appellant suggests that the verdicts are unreasonable because the trial judge made the allegedly unsupportable findings of credibility raised in the previous grounds of appeal. [ 24 ] A verdict is unreasonable if it is not one that a properly instructed judge could reasonably have rendered, or it is plainly contradicted by the evidence accepted by the trial judge or incompatible with that evidence: R v RP , 2012 SCC 22 at para 9 , [2012] 1 SCR 746. [ 25 ] The trial judge's findings of credibility and fact are owed deference on appeal absent palpable and overriding error.

An appellate court does not reweigh the evidence and retry the case: R v Demedeiros , 2018 ABCA 241 at para 5 , aff'd 2019 SCC 11 , [2019] 1 SCR 568; R v Profeit , 2021 ABCA 379 at paras 67-71 (citing several cases).

The "fundamental rule" is that "if a trial judge's credibility assessment can be reasonably supported by the record, it cannot be interfered with on appeal": R v Quartey , 2018 ABCA 12 at para 42 , affirmed 2018 SCC 59 , [2018] 3 SCR 687. [ 26 ] In our view, the trial judge’s credibility assessment was not afflicted by palpable and overriding error of fact or inference, or by error of law or principle. A properly instructed trier of fact, acting judicially, could reasonably have rendered the verdicts of guilt. [ 27 ] The appeal is dismissed.

Appeal heard on January 11, 2024 Memorandum filed at Edmonton, Alberta this 31st day of January, 2024 Khullar C.J.A. Rowbotham J.A. Feth J.A. Appearances: J.R. Russell for the Respondent K. L. Sitar for the Appellant