R. v. R.A.D., 2022 MBKB 228

Origin: On appeal from a conviction by a Provincial Court Judge delivered on July 6, 2021, and a sentence delivered on November 16, 2021. Date: 20221212 Docket: CR 21-01-38834 (Winnipeg Centre) Indexed as : R. v. R.A.D. Cited as: 2022 MBKB 228 COURT OF KING’S BENCH OF MANITOBA B E T W E E N: ) HIS MAJESTY THE KING, ) Renee D. Lagimodière ) for the Crown - and - ) ) Sarah A.

Inness R.A.D., ) for the appellant ) (Accused) appellant, ) ) JUDGMENT DELIVERED: ) December 12, 2022 Restriction on Publication : Pursuant to s. 486.4 of the Criminal Code , any information that could identify the complainant or the accused shall not be published in any document or broadcast or transmitted in any way in proceedings in respect of this offence. McCARTHY J. INTRODUCTION [ 1 ] The appellant was convicted of sexual interference and sexual assault following trial.

The conviction for sexual interference was stayed pursuant to the Kineapple principle and on November 16, 2021, he was sentenced to 18 months in custody for the sexual assault. [ 2 ] The appellant had previously been convicted of sexual assault for the same offence and sentenced to 12 months in custody. That conviction was overturned by the Manitoba Court of Appeal and sent back to trial. The sentence appeal was dismissed by the Court of Appeal. [ 3 ] The appellant raises several issues on this appeal from conviction: (

i) that the verdict is unreasonable as it is based on reasons that are illogical on their face and contrary to the evidence at trial; (ii) that the learned trial judge erred in disbelieving the appellant’s evidence based on ungrounded common sense inferences, speculative and stereotypical reasoning and a misapprehension of the evidence; (iii) that the learned trial judge misapprehended the appellant’s evidence regarding the positioning of his arms around the complainant and her brother as he described in his police statement; and (iv) that the learned trial judge applied and uneven scrutiny in analysing the evidence of the appellant and the evidence of the complainant, thereby reversing the burden of proof. [ 4 ] The appellant raises the following ground on his sentence appeal:

(

i) that the learned trial judge erred in imposing a longer period of incarceration than was imposed at the first trial, thereby penalizing the appellant for a successful appeal. STANDARD OF REVIEW [ 5 ] The appellant relies upon section 686(1) (a)(

i) of the Criminal Code , R.S.C., 1985, c. C-46 (the “ Code ”), which permits an appeal where the verdict is unreasonable or not supported by the evidence. The standard of review is whether the verdict is one that a properly instructed jury could reasonably have rendered. (see R. v. Biniaris , 2000 SCC 15 ) [ 6 ] The standard of review with respect to a finding of mixed fact and law, a finding of fact, or an inference drawn from a proven fact is a palpable and overriding error. (see R. v. CAM , 2017 MBCA 70 and R. v. MacLeod (J.M.) et al., 2013 MBCA 48 at para. 16 ).

FACTUAL BACKGROUND [ 7 ] The complainant in this case, who was nine years of age at the time, alleges that on September 26, 2014, while visiting the appellant’s campsite with her father and 11-year-old brother, she was sexually assaulted by the appellant. [ 8 ] This occasion was the first time that the complainant, her father or her brother had met the appellant. They had met him earlier that day when they arrived to the camping area and stopped to visit a couple who were also camping in the area (“mutual friends”).

At that time they were introduced to the appellant and invited by the mutual friends to attend the appellant’s campsite that evening for a bonfire. [ 9 ] That evening, the complainant, her father and brother, the mutual friends, and a couple who were camping next to the appellant’s motorhome (“neighbours”), were in attendance. [ 10 ] The complainant at one point later in the evening was noticed to be missing from the bonfire. Her father testified that he called her name and sent her brother to look for her.

The evidence of her brother was that when he found her she was walking in the grass near the appellant who was walking on the gravel driveway directly to the north of the motorhome. Other witnesses testified that they saw the complainant, the appellant, and the complainant’s brother returning from the northerly direction toward the bonfire after she was called by her father. Almost immediately the complainant and her family left.

It is alleged that in the vehicle on the way back to their campsite, and in response to her father’s questions, she disclosed that the appellant had inappropriately touched her. [ 11 ] A sexual assault was reported and the complainant and her father attended for an interview with the R.C.M.P. at approximately 1:08 a.m. on September 27, 2014. [ 12 ] At trial, two videotaped statements from the complainant were entered into evidence.

The complainant, who was 15 years of age at the time of trial, also testified. [ 13 ] It was the complainant’s evidence that she only recalled going stargazing with the appellant on one occasion on the evening in question. Evidence from other witnesses indicated that the appellant had invited several of them to go stargazing and that the complainant, her brother and one of the mutual friends attended. The father claimed that he was also present, although the trial judge did not make that finding.

The appellant denied that he was ever alone with the complainant while stargazing. [ 14 ] It was the appellant’s evidence that earlier in the evening while sitting around the bonfire, one of the two women at the fire had asked him to take the complainant to his motorhome to use the washroom. The appellant testified that he did not offer, but was asked to do so. Neither of the female witnesses were able to recall, but the neighbour agreed that it is possible that she asked him to do so.

This information was not mentioned in the appellant’s original police statement, but he was also not asked about that specifically, or about everything that had happened that evening. [ 15 ] The evidence is consistent that the parties were sitting around the bonfire located at the backend of the appellant’s motorhome. To the north side of his motorhome, there were vehicles parked, with his truck being parked parallel to the motorhome near the bonfire. To the north of the bonfire area was a gravel driveway. The only door to the motorhome was on the south side of the motorhome toward the front end.

The distance from the motorhome door to the bonfire was only about three quarters of the length of the motorhome. [ 16 ] The evidence was that when the four or five individuals went stargazing earlier in the evening, they had gone down the driveway to the north of the motorhome toward or onto the gravel road that the driveway came off of. [ 17 ] The complainant had very little recollection of going to the washroom in the appellant’s motorhome. She was unable at the time of trial to recall going into the motorhome to use the washroom, where she went after, or who she left with.

She did confirm that it had occurred, even though it had not been mentioned in her original police statements. There were no allegations that anything inappropriate happened inside the motorhome. [ 18 ] The appellant testified that he took the complainant to the motorhome, showed her how to use the camper toilet, and then waited by the motorhome door until she was finished. He then indicated that when she came out of the washroom he left the motorhome and went to the north and east toward the wood pile and that he later returned to the fire.

He was not able to say with any more specificity what he did at various times in the evening, but listed a number of things that he had done throughout the evening. [ 19 ] The trial judge determined that he accepted the evidence of the complainant and that he did not accept the evidence of the appellant, or have a reasonable doubt as to his guilt.

Accordingly, the appellant was convicted. [ 20 ] On sentencing, the trial judge increased the sentence from the one year sentence the appellant had received on a previous trial to 18 months on the basis that a more lengthy sentence was appropriate in light of the intervening guidance of the Supreme Court of Canada

on child sexual abuse sentencing cases in R. v. Friesen, 2020 SCC 9. ANALYSIS [21] I will consider the first two grounds of appeal together as they relate to the same evidence and finding of the trial judge. Are the trial judge’s reasons illogical on their face and contrary to the evidence at trial resulting in an unreasonable verdict?

Did the trial judge err in disbelieving the appellant’s evidence based upon ungrounded common-sense inferences, speculative andstereotypical reasoning and a misapprehension of his evidence? [22] In this case the trial judge correctly identified that the guilt or innocence of the appellant came down to an assessment ofcredibility. He also correctly identified that the proper framework for the credibility analysis was set out in R. v.

W.(D.), (SCC), [1991] 1 SCR 742 and he was mindful that in making his credibility assessments he was required to consider the totality ofthe evidence. [23] As expressed in his oral reasons for decision, he found the evidence of the complainant to be credible and reliable and found theevidence of the appellant to lack credibility. He disbelieved the appellant and found nothing in his evidence served to raise a reasonabledoubt as to his guilt.

Based upon his acceptance of the complainant’s evidence he found that the Crown had proven the offences beyonda reasonable doubt. [24] With respect to the trial judge’s credibility assessments he expressed two bases for finding that the appellant’s evidence lackedcredibility. Both related to his evidence on issues collateral to the circumstances of the assault itself. [25] Firstly, he found that the appellant’s evidence that he did not know where the complainant went after he took her to thewashroom was not believable.

He based this conclusion upon a finding that the appellant’s evidence that he had taken the complainantto the washroom in his motorhome, and waited for her, but then took no further steps to ensure her safety “defied common sense andlogic”. He made several assumptions that he viewed as common sense. [26] Those assumptions included that by taking the complainant to the washroom and waiting, the appellant had assumedresponsibility for her supervision. Secondly, that by taking responsibility he would not have let the complainant go back to the firealone.

Thirdly, that as a grandfather and police officer he would not have left the complainant to return unsupervised to the fire. Andfinally, that there were only open fields and darkness in the vicinity, and therefore, no place the complainant could have chosen to goother than the fire. [27] On the basis of these assumptions and what he considered common sense inferences he found that he could not believe theappellant’s assertion that he let her leave the motorhome to go back to the fire on her own.

The trial judge stated that his inability tobelieve this evidence, coupled with the appellant’s testimony about whether, or how, he had placed his arms around the children duringstargazing, rendered him unable to accept any of his evidence. [28] The appellant argued that the reasoning giving rise to the trial judge’s inferences with respect to the appellant’s credibility wasillogical and irrational based upon the evidence heard at trial. He argued that per R. v.

Beaudry, 2007 SCC 50, such flawed reasoningresulted in a decision that cannot be supported by the evidence. [29] The appellant also argued that the law does not permit inferences to be drawn from stereotypes, or generalized assumptions abouthuman behaviour which rely upon speculative reasoning (R. v. JC, 2021 ONCA 131, at paras. 58 – 73). To do so, he argued, is an errorin law (at paras. 73 – 74). [30] The prohibition set out in JC applies equally to inferences applied to credibility findings, and findings about how a complainant,or an accused person, are expected to act.

The law prohibits inferences that are based on stereotypes or “prejudicial generalizations” (atparas. 65 – 67). [31] Further the R. v.

Roth, 2020 BCCA 240, decision stated: “[I]n assessing the credibility of testimony, a trial judge is entitled todraw inferences that ‘flow logically and reasonably from established facts’” (at para. 73). [32] The appellant argued that in the absence of any evidence as to why the appellant did not pay attention to the complainant aftershe used the washroom, the learned trial judge erred in inferring that his behaviour “defied common sense and logic”. [33] There was no evidence from the appellant, and no questions asked on cross-examination, as to why he waited in his motorhomeuntil she finished using the washroom, or why he did not accompany her upon leaving the motorhome.

The evidence was that he hadjust met the complainant and her family for the first time that day, and that the bonfire where the other guests and the complainant’sfather and brother were sitting was only a few feet from the motorhome door. The evidence was that the bonfire was at the rear of themotorhome and would have been visible once stepping outside the motorhome. He argued that there was no evidence to conclude thatthere was nowhere around the campsite other than fields, where the complainant could have gone to play.

There was evidence that thecomplainant was an independent child and that there was an area to the north of the campsite where there was a driveway which was litby a streetlight. [34] The appellant argued that the trial judge’s conclusion on credibility was also based upon a generalized stereotype about how agrandfather and R.C.M.P. officer would be expected to behave in the same circumstances. He argued that this conclusion is not basedupon any trial evidence capable of establishing that the appellant was acting in a way that was unlikely or unreasonable.

[35] The appellant also contended that there was no evidence capable of being interpreted to conclude that the appellant wasundertaking a supervisory role to ensure the safety and security of the complainant as the trial judge had found. Rather, he argued thatthe trial judge’s conclusion is contrary to the uncontradicted evidence of the appellant that he had been asked by another guest to take thecomplainant to the washroom and had simply obliged in doing so. The assertion was that the trial judge drew inferences from evidencethat was not reasonably capable of supporting those inferences.

It was argued that in the absence of the appellant being asked to providean explanation for his actions, there was no factual basis for the trial judge to draw his own conclusions and use those conclusions tonegate the appellant’s credibility. [36] The conclusion by the trial judge, on this point was one of two very strong credibility findings against the appellant, resulting inthe trial judge disbelieving all of his evidence. [37] As stated by the court in JC: [61] Properly understood, the rule against ungrounded common-sense assumptions does not bar using human experience about humanbehaviour to interpret evidence.

It prohibits judges from using “common-sense” or human experience to introduce new considerations,not arising from evidence, into the decision-making process, including considerations about human behaviour. [62] It was therefore an error in R. v. J.L., 2018 ONCA 756, 143 O.R. (3d) 170, at paras. 46-47, for the trial judge to infer that acomplainant would not have consented to sex outside on the dirt, gravel and wet grass where the sexual act occurred, in mid-December. This conclusion was not a permissible logical inference drawn from the evidence.

It was, instead, an additional factor for considerationintroduced impermissibly into the deliberation process based on an untethered generalization about human behaviour.

Had there beenevidence from the complainant that she was careful or concerned about her appearance, her clothing, or her physical comfort, theimpugned inference would have been grounded in evidence and would have been permissible. [38] Further, the court went on to say that: [65] First, like the rule against ungrounded common-sense assumptions, the rule against stereotypical inferences does not bar allinferences relating to behaviour that are based on human experience. It only prohibits inferences that are based on stereotype or“prejudicial generalizations”: R. v.

A.R.D., 2017 ABCA 237, 422 D.L.R. (4th) 471, at paras. 6-7, aff’d 2018 SCC 6, [2018] 1 S.C.R. 218. [66] For example, it is a myth or stereotype that a complainant would avoid their assailant or change their behaviour towards theirassailant after being sexually assaulted, and it is an error to employ such reasoning: A.R.D., at paras. 57-58; A.B.A. at paras. 6, 8 - 10; R.v. Caesar, 2015 NWTCA 4, 588 A.R. 392, at para. 6. Similarly, it is a stereotype that women would not behave in a sexually aggressivemanner, or that men would be interested in sex.

Reasoning that is based on such inferences is not permitted: Cepic, at paras. 14-16;Quartey, at para. 21. [67] By contrast, no stereotype or prejudicial generalization is offended by inferring, where a man drives a resisting woman to asecluded location before touching her sexually, that she did not consent and that he intended to touch her without her consent.

Hence,such inferences are appropriate. [39] Further, the importance of trial judges avoiding speculative reasoning is laid out in Roth as follows: [73] In assessing the credibility of testimony, a trial judge is entitled to draw inferences that “flow logically and reasonably fromestablished facts”: R. v. MacIsaac, 2015 ONCA 587 at para. 46. When inferences reflect conjecture and speculation, based onstereotypical reasoning, a generalization about a particular role or type of individual, unfounded assumptions or otherwise, it amounts tolegal error: MacIsaac at para. 46, citing R. v.

Morrissey (1995), (ON CA), 22 O.R. (3d) 514 (Ont. C.A.) at 530–531;R. v. Pilkington, 2019 BCCA 374 at paras. 20–21. In my view, that is what occurred here and it tainted the judge’s credibilityassessment. [40] In my view, the trial judge erred in applying an inference, in the absence of evidence to support it, to the detriment of theappellant. The appellant was not cross-examined on his conduct in this regard and, therefore, was unable to offer an explanation, thecredibility of which could have been assessed by the trial judge.

Instead the trial judge made findings based upon his own assumptions,and on generalizations and stereotype based reasoning. [41] The line between permissible and impermissible reasoning is sometimes a very fine one, but always an important one. This isparticularly the case if the impermissible reasoning is key to the outcome of the case.

Procedural fairness and resolving inferences infavour of the accused in circumstantial cases are paramount principles of criminal law. [42] The trial judge, in my view, went beyond the permissible basis for drawing inferences in his assessment of the appellant’scredibility on this particular issue. It was an assumption about how a person would be expected to act that was not founded in evidenceand could easily be based on a myth. There was nothing in the evidence that grounds a common sense inference that the appellant wouldnot have allowed the complainant to find her way back to the fire a few feet away.

The evidence of the complainant was that she does

not know where she went upon leaving the motorhome. There was no evidence to contradict the evidence of the appellant and no evidence from the appellant on this issue upon which his credibility could be assessed.

The only basis for finding that the appellant was not telling the truth was the application of an inference based upon application of an assumption, generalization or stereotype as to how one would have expected him to act. [ 43 ] There is also some incongruence in the judge’s reasoning in finding that a grandfather and police officer would not have allowed a child to be unsupervised at his campsite, and then finding that the same police officer and grandfather lured her out of sight and assaulted her.

That is not to say that the conclusion that there was an assault was incorrect, but rather that the finding that the attributes of being a police officer and a grandparent can only lead to one conclusion, being that he would have supervised and protected the complainant. There is an internal inconsistency to this reasoning. [ 44 ] I, therefore, find that the trial judge’s findings on this issue resulted from flawed reasoning and the improper application of speculative and presumptive reasoning that is not supported by the evidence.

Did the trial judge misapprehend the appellant’s evidence regarding the positioning of his arms around the complainant and her brother as he described in his police statement? [ 45 ] While the first issue on this appeal is dispositive of the matter, I believe that it is preferable to address each of the grounds of appeal. [ 46 ] The second credibility finding against the appellant was with respect to evidence he gave at trial about whether or not he put his arms around the children while stargazing earlier in the evening.

Specifically, the trial judge found that the appellant’s evidence that he did not have his arms around the children was contradicted by his descriptions and demonstrations given during his initial police statement. [ 47 ] The trial judge found that the appellant’s evidence at trial on this point lacked credibility, both because it was a change from his earlier evidence, and because it was seen as an obvious attempt to distance himself from any contact with the children. The trial judge stated that (Transcript dated July 6, 2021 (”Transcript”), p.

T6 lines 36 – 39): … He took great pains to say that he was positioned in a very awkward position behind the kids to shield them from the wind while not touching them.

However, when presented at length with evidence to the contrary in his video statement, he denied ever having his arms around them... [ 48 ] The appellant argues that in finding that his evidence at trial was contradicted by his evidence in his videotaped police statement, the trial judge misapprehended the appellant’s evidence in his police statement. [ 49 ] The appellant argues that this misapprehension of the evidence was material because it comprised the second reason for the rejection of the appellant’s denial, even though it was collateral to the sexual assault allegation. [ 50 ] The appellant urged me to find that the trial judge’s findings in this regard were based upon a misapprehension of the evidence because contradictions do not, in fact, exist between the appellant’s statement and his testimony at trial.

Further, he argued that the trial judge’s finding on this point is contrary to the evidence of the appellant and the complainant about the appellant kneeling and being close behind her during stargazing.

He also argued that if his goal was to distance himself from any physical contact with the children one would expect that he would not have offered the evidence in his initial statement, and at trial, that he knelt directly behind them and may have had incidental contact with them during stargazing. [ 51 ] The difficulty with this argument is the trial judge is clear in his reasons that his credibility finding against the appellant with respect to this evidence resulted from the way the appellant addressed the questions on cross-examination and not whether or not he had in fact knelt near or with his arms around the children.

He specifically stated that “[W]hile a person trying to shield younger kids from a cold wind is understandable, the way he addressed the questions about this, was not.” (Transcript, p. T6 lines 35 – 36) [ 52 ] The appellate court must be mindful when reviewing the credibility findings of a trial judge not to substitute its own findings for those of the trial judge. It is recognized that the trial judge is present at the court hearing and assessing the evidence and the demeanour of the witness directly.

For that reason the trial judge is in the best position to make credibility assessments. [ 53 ] In R v Peters , 2020 MBCA 17 at para. 6 , quoting R v Jovel , 2019 MBCA 116 (at para. 52 ), the Manitoba Court of Appeal emphasized the standard as follows: [6] .... Ultimately, an evaluation of testimony may only be interfered with where it cannot be supported on any reasonable view of the evidence ....

In particular, when a conclusion on a disputed fact turns on an assessment of the credibility of witnesses, it will be only in the rarest of instances where that assessment cannot be supported on any reasonable view of the evidence ... [Emphasis in Original] [ 54 ] Having said that, if the appeal court finds that the trial judge misapprehended the evidence in arriving at that credibility finding the appeal court may more readily intervene in the finding.

A misapprehension of the evidence is an error in law and the standard of the review is correctness. [ 55 ] Upon review of the transcript of the appellant’s evidence at trial on this point, and upon considering the portions of the appellant’s videotaped police statement, which were viewed by the trial judge as part of that impeachment process, I find that his finding

as to the appellant’s lack of credibility on this area of questioning is not a misapprehension of the evidence. The trial judge’s

interpretation of the evidence in the appellant’s police statement and his finding that it is different than the description he gave at trial, particularly under cross-examination, is not a mistake or a misunderstanding of the evidence. Rather it is an

interpretation of the evidence which was available for him to make. Further, his finding that the way the appellant answered the questions on cross-examination seemed contrived to him was also a credibility assessment which is entitled to deference. [ 56 ] I do not find that the trial judge made an error of law in this regard as his credibility finding was not unsupportable on a reasonable view of the evidence.

Did the trial judge apply uneven scrutiny in analyzing the evidence of the appellant and the evidence of the complainant, thereby reversing the burden of proof? [ 57 ] In assessing the credibility of the witnesses, the appellant argued that the trial judge applied different weight and scrutiny to the evidence of the complainant versus the appellant. [ 58 ] The appellant argued that the trial judge applied inferences which were based upon stereotypes, or which were unfounded based upon the evidence, to discredit the evidence of the appellant, while also using speculative reasoning to explain away difficulties with the complainant’s evidence. [ 59 ] In particular, he argues that the trial judge used speculation not based on fact to explain why the complainant’s failure to recall more than one stargazing event did not adversely affect her credibility, and with respect to whether her evidence had been influenced or tainted by questioning by her father, or by his presence at her initial police interview. [ 60 ] With respect to the judge’s finding that the complainant’s inability to recall more than one stargazing incident did not affect her credibility, this, in my view, was a finding that the trial judge was entitled to make.

He stated clearly that he considered the entirety of the complainant’s evidence and the specific considerations that apply when assessing the testimony of the child. One such consideration articulated by the trial judge was that children’s perceptions of time, and their memories, may differ from adults. He found that the complainant’s failure to recall more than one stargazing event was likely attributable to the fact that she was a child, and that the most memorable event of the evening was the only one that she remembered.

There was no evidence to suggest that she was trying to cover something up by excluding that evidence and no internal inconsistencies were noted in her evidence. The trial judge did not, in my view, apply any improper inferences based upon myths or stereotypes to his findings on this issue. The trial judge was entitled to make assessments about whether missing or forgotten acts or events, on the whole of the evidence, affect the credibility or the reliability of a witness’s evidence.

He made no error in doing so. [ 61 ] The appellant also argued that while the court was careful not to attribute any significance to the evidence that the complainant was acting “normal” following the alleged assault, the trial judge relied upon the evidence that the complainant’s behaviour in the car suggested to her father that something was wrong, and, therefore, justified his questioning of her about whether she was inappropriately touched. [ 62 ] The appellant argued that allowing the Crown to rely upon evidence of the complainant’s demeanour after the alleged assault, and not allowing the appellant to, is a double standard and that fairness dictates that the rules operate evenly to protect the rights of the accused person. [ 63 ] With respect to evidence which the appellant argued at trial had the capacity to influence, or taint, the evidence of the young complainant, the trial judge acknowledged those arguments in his decision and found that, while the questioning by the father, and his presence in the initial police interview, could have had the effect of influencing the complainant, he was satisfied that, in this case, it did not.

The trial judge gave specific examples of the child’s evidence which satisfied him as to her honesty and the reliability of her evidence, including an example where she corrected the officer’s statement as to what was true. He also found a question which she asked the female officer to be evidence of the authenticity of her allegation. [ 64 ] It is not for the appellate judge to determine whether he or she would have interpreted the evidence in the same way and made the same findings of credibility and reliability.

The issue to be determined is whether there were any errors committed by the trial judge that had the effect of reversing the onus which must remain upon the Crown at all times. [ 65 ] I find that the trial judge was alive to the issues which could have affected the reliability of the complainant’s evidence and applied appropriate scrutiny in that regard. [ 66 ] With respect to the trial judge’s finding that no inference could be drawn from the complainant’s apparently normal behaviour upon the return to the fire after the alleged assault, I find that his care in avoiding myths and stereotypes that suggest that how the complainant acts is evidence of whether assault occurred, was appropriate.

The courts have long recognized and cautioned against invoking any assumptions that the victim of a sexual assault should present in a certain manner, and that failure to do so is suggestive that an assault did not occur. The trial judge carefully and appropriately cautioned himself in this regard and drew no conclusions from the complainant’s presentation following the alleged assault. [ 67 ] This is not to be confused with the evidence of the father which was that, based upon his observations of his own daughter on the drive home, he believed that something was wrong.

This was evidence of the personal observations of a witness which informed his subsequent actions. It was appropriate evidence of the father’s state of mind at the time and there is no indication that the trial judge considered this evidence as proof that an assault had in fact occurred. Rather, the trial judge commented on this evidence only as it related to the conduct of the father in questioning his daughter.

While the trial judge commented that he did not fault the complainant’s father for asking her questions, he did necessarily consider whether by doing so, and attending the police interview, influenced her evidence. He concluded that it did not. This is an assessment of the evidence that he was entitled to make and which is entitled to deference. [ 68 ] I find, based upon the above, that the trial judge did not improperly scrutinize the evidence in a manner that had the effect of

reversing the burden of proof. CONCLUSION ON VERDICT APPEAL [69] I have found that the trial judge committed an error when he concluded that the appellant was not telling the truth about hisinteraction with the complainant when she left his motorhome based upon flawed reasoning and impermissible inferences not based inthe evidence.

He then went on to find that this conclusion, combined with a finding that the appellant was not credible with respect tohaving his arm around the children earlier in the evening, discredited the entire testimony of the appellant to the extent that none of hisevidence could be accepted where it was inconsistent with that of the complainant. [70] Specifically, the trial judge concluded (Transcript, p.T7 lines 3 – 7): When the evidence of [R.A.D.] is looked at collectively and carefully, I have concluded that I have serious concerns about [R.A.D.]’scredibility. These concerns are serious and far-reaching.

They are enough that I simply cannot rely on his evidence where it differsfrom that of the complainant. I have simply found him to lack credibility. (initializing added) [71] The trial judge’s error on the first ground of appeal led to one of two adverse credibility findings against the appellant. Thisfinding was, therefore, integral to the overall assessment of the appellant’s credibility and the W.(D.) analysis of the evidence.

The errortherefore calls into question the trial judge’s finding that he did not believe the appellant’s denial that a sexual assault or sexualinterference had occurred. [72] In addition, had the trial judge not applied the improper reasoning or inferences to the appellant’s evidence on the issue ofwhether the complainant left the motorhome by herself, this may have changed his conclusion on the second step of the W.(D.) analysis.

If the evidence of the appellant that the complainant left on her own and the appellant went in a different direction, was not disbelievedthis may have had a bearing on whether the evidence of the appellant raised a reasonable doubt as to his guilt. [73] The trial judge’s analysis of whether the appellant’s version was capable of belief, or whether it raised a doubt as to his guilt,may have changed had he not made the earlier credibility finding. [74] As stated by the Ontario Court of Appeal in JC: [73] As a matter of principle, an error is “based” on a stereotype or improper inference when that stereotype or improper inferenceplayed a material or important role in explaining the impugned conclusion.

Where it did so, even if the trial judge offered other reasonsfor the impugned conclusion, it cannot safely be said that the trial judge would have reached the same conclusion without the error. Where the erroneous reasoning does not play a material or important role in reaching the impugned conclusion, and was only incidental,the accused will not have been prejudiced by it and no reversible error occurs. [74] One final point. In argument before us, the Crown emphasized the importance of deferring to credibility determinations made bytrial judges.

I acknowledge this important practice, but where a trial judge contravenes the rules I have just described, resulting in amaterial effect on the impugned finding, an error of law has occurred: A.B.A., at paras. 4-5; A.R.D., at para. 28. The error will bereversible, unless the curative proviso in the Criminal Code, R.S.C. 1985, c.

C-46, s. 686(1)(b)(iii), is successfully invoked by theCrown. [75] The trial judge’s findings on this issue clearly played a “material or important role in explaining the impugned conclusion”, assuch, because I am unable to safely determine that the verdict would have been the same had the trial judge not made an error, the mattermust be sent back for trial.

SENTENCE APPEAL Did the trial judge err in imposing a longer period of incarceration than was imposed following the first trial? [76] While I have ordered that this matter must go back to trial, I am also going to make a determination on the sentence appeal issue. [77] The appellant argued that pursuant to R. v. R.S.W. (MB CA), deference was owed to the originally imposedsentence following the retrial of the matter. [78] The appellant argued that by imposing a greater sentence in this case the trial judge effectively punished him for havingsuccessfully appealed the prior verdict.

He also argued that the Manitoba Court of Appeal previously upheld the original sentence asappropriate and that, therefore, the trial judge should have been bound by that sentence. [79] The Crown argued that while deference is owed to the original sentence, this was an exceptional circumstance as in the interimthe Supreme Court of Canada decision of Friesen effectively “reset” sentencing principles as they apply to sexual assault and sexualinterference against children. [80] While I agree that the Supreme Court in Friesen gave explicit direction to the courts that the objectives of denunciation anddeterrence are paramount with respect to child sexual assault, and can only be accomplished through significant periods of incarceration,I also accept the appellant’s argument that there were several other factors which also had to be considered in this case.

[ 81 ] In my view, it was not adequate to simply say that Friesen had increased the range of appropriate sentences, and, therefore, impose the maximum sentence available for this offence. [ 82 ] As stated by the Manitoba Court of Appeal in R.S.W. , which is binding authority in Manitoba, “… where a person has been convicted of an offence a second time after a retrial, the sentencing judge should first consider the fitness of the original sentence” (at pp. 25 – 26).

In my view, this case requires that the judge must, as the first step, make a determination that the original sentence was unfit and provide reasons for that finding. [ 83 ] In this case, the trial judge made no finding that the original trial judge had not adequately considered the objectives of denunciation and deterrence, or the harm to a child complainant, as required by Friesen , or that the sentence was inordinately low. [ 84 ] In addition, it is not clear that the trial judge adequately considered that the specifics of the assault as found at the second trial were somewhat less, not more, aggravating than those found at the first trial. [ 85 ] The Crown at the initial sentencing hearing had sought a higher sentence of 15 months, and after considering submissions, the first trial judge imposed 12 months.

That sentence was appealed by the appellant and upheld by the Manitoba Court of Appeal. [ 86 ] And finally, as stated by the Manitoba Court of Appeal in R.S.W. where (at p. 26): .... the judge does not accept the fitness of the original sentence, either because it was inordinately low or because new facts have emerged, he may impose a longer sentence.

But, where no new facts have emerged, he should avoid imposing a sentence which is so much longer than the first as to cause the average person standing at The Forks to think that the accused was penalized for his successful appeal. [ 87 ] After the retrial, the trial judge increased the sentence by 50%. [ 88 ] In this particular case, the delay in time from the charge to the sentence, which is the subject of this appeal, was seven years. During this time there was significant delay occasioned by an appeal to the Court of Queen’s Bench and a subsequent successful appeal to the Manitoba Court of Appeal.

There was also delay occasioned by a pandemic. I accept the appellant’s argument that had the system been functioning in the normal course he would have likely been sentenced prior to the Friesen decision. [ 89 ] I, therefore, find that, in the absence of any finding that the prior sentencing judge had not adequately considered the factors and objectives set out in Friesen , and considering the perception that the appellant has been penalized for delays in the system and a successful appeal, the original sentence should have been imposed following conviction.

CONCLUSION [ 90 ] The appeal is granted and the matter remitted back to trial. __________________________ J.