R. v. Rhodes, 2011 MBCA 98

Citation: R. v. Rhodes, 2011 MBCA 98 Date: 20111202 Dockets: AR 11-30-07534; AR 11-30-07535 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Barbara M. Hamilton Mr. Justice Richard J. Chartier Mr. Justice Alan D. MacInnes BETWEEN: ) A. Y. KotlerHER MAJESTY THE QUEEN ) for the Crown ) Appellant/Respondent ) J. A. Weinstein and ) L. D.

Labossière- and - ) for the Accused ) ) Appeal heard andKENNETH HOWARD CECIL RHODES ) Decision pronounced: ) November 30, 2011 (Accused) Respondent/Appellant ) ) Written reasons: ) December 2, 2011 NOTICE OF RESTRICTION ON PUBLICATION: No one may publish, broadcast or transmit any information that coulddisclose the identity of the complainant(s) (see s. 486.4 of the Criminal Code). HAMILTON J.A. 1 The accused appealed his conviction on one count of sexual assault and the Crown appealed the conditional sentenceof two years less a day imposed on the accused.

At the appeal hearing, after hearing counsel’s submissions and retiring to consider thematter, we allowed the accused’s conviction appeal and ordered a new trial. Thus, the Crown’s sentence appeal became moot. 2 When announcing our decision, we indicated that brief reasons would follow. These are our reasons. 3 The accused raised three grounds of appeal, one of which was that the trial judge erred in failing to properly apply theprinciples articulated by the Supreme Court of Canada in R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742.

The purpose ofthese principles is to ensure that the Crown’s burden of proof beyond a reasonable doubt is properly applied in cases where the verdictturns on credibility, which in turn gives confidence in a criminal conviction. 4 In his factum, and at the appeal hearing, counsel for the Crown properly conceded that, when the trial judge’s reasonsare read as a whole, it cannot be safely concluded that he properly considered and applied these principles. 5 This was a credibility case. As we recently stated in R. v.

W.R.B., 2011 MBCA 17, in such cases, an appellate courtwill review the reasons to satisfy itself that the trial judge did not err by allowing the burden to shift away from the Crown simplybecause the accused was not believed (described by Binnie J. in R. v. J.H.S., 2008 SCC 30 at para. 9, [2008] 2 S.C.R. 152, as the“‘credibility contest’ error”).

As was explained in J.H.S., “[t]he main point is that lack of credibility on the part of the accused does notequate to proof of his or her guilt beyond a reasonable doubt” (at para. 13). 6 Here, the trial judge did not refer to W.(D.) or to the suggested instructions articulated in that case. That, in and ofitself, is not reversible error. As stated in J.H.S., “the W. (D.) instructions need not be given ‘word for word as some magic incantation’”(at para. 13).

However, a substantive analysis of the trial judge’s assessment of the evidence does not demonstrate that he appreciatedhis obligation to consider whether the accused’s evidence raised a reasonable doubt with respect to every element of the offence. To thecontrary, the trial judge’s assessment of the evidence suggests that his credibility findings were conducted on the basis of a credibilitycontest between the complainant and the accused. Two aspects of his reasons demonstrate this.

7 First, nowhere in his reasons does the trial judge mention that the accused’s evidence can raise a reasonable doubt,even if it is rejected. Again, this, in and of itself, is not necessarily reversible error.

However, and second, when we combine this withthe fact that he stated at one point that he accepts the evidence of the complainant “in preference to that of the accused,” we cannot besatisfied that the substance of the W.(D.) analysis was respected, and therefore the trial judge erred at law. 8 In addition, we are of the view that the trial judge’s error was compounded by his “piecemeal” approach to analyzingthe evidence. He dealt with the events of the night in question on an “event-by-event” basis. As he addressed each event, he outlined theevidence from the various witnesses and made factual findings.

A judge can easily fall into error when the evidence is assessed on sucha basis. When making a finding, a judge must consider the cumulative effect of all of the relevant evidence (see R. v. B. (G.), (SCC), [1990] 2 S.C.R. 57, and R. v. J.M.H., 2011 SCC 45). That did not occur here.

For example, the trial judge decidedthe issue of whether or not the complainant had consented to the sex acts (one of the elements of the actus reus of the offence) beforehaving completed his assessment of the accused’s evidence on this issue. 9 In support of its position that the trial judge had erred, the Crown, in its factum stated its concern that the trial judgehad weighed the “evidence according to his impressions of how people ought logically to behave.” In other words, the Crown assertedthat the trial judge engaged in inappropriate stereotyping.

For example, counsel for the Crown referred to the trial judge’s descriptionabout how the complainant and her friend were dressed. While the concern is a legitimate one, in our view, it is not related to thespecific legal error that calls for a new trial. 10 To conclude, we were all of the view that, when the reasons of the trial judge were read in their entire context, therewere a number of fundamental shortcomings in his credibility assessment.

The cumulative effect of these inadequacies is that we haveserious concerns that the trial judge improperly shifted the burden of proof from the Crown to the accused and therefore misapplied theburden of proof beyond a reasonable doubt. It is for that reason that we allowed the accused’s appeal from his conviction and ordered anew trial. J.A. I agree: J.A. I agree: J.A.