R. v. W.R.B., 2010 MBCA 116

Citation: R. v. W.R.B., 2010 MBCA 116 Date: 20101206 Docket: AR10-30-07373 IN THE COURT OF APPEAL OF MANITOBA Coram: Chief Justice Richard J. Scott Mr. Justice Richard J. Chartier Mr. Justice Alan D. MacInnes BETWEEN : ) A. K. Gowenlock HER MAJESTY THE QUEEN ) for the Applicant ) Respondent ) C. A.

Vanderhooft ) for the Respondent ) - and - ) Motion heard: ) October 14 and ) November 30, 2010 B. (W.R.) ) ) Decision pronounced: (Accused) Applicant ) November 30, 2010 ) ) Written reasons: ) December 6, 2010 NOTICE OF RESTRICTION ON PUBLICATION: No one may publish, broadcast or transmit any information that could disclose the identity of the complainant (see s. 486.4 of the Criminal Code ). MacINNES J.A. 1 The accused has appealed his conviction for sexual assault and sexual interference. Preliminary to the hearing of the conviction appeal, the accused applied for the introduction of fresh evidence.

The intended evidence was that of the complainant’s mother, who at the material time was also the accused’s partner. 2 We received written material in respect of the application from both the accused’s counsel and the Crown. During oral argument, we received and considered both a statement and a subsequent affidavit from the intended witness. We adjourned the application at the Crown’s request to permit cross-examination of the intended witness on her affidavit. Following the cross-examination and brief re-examination by the accused’s counsel, we heard supplementary submissions from both counsel.

After considering all of the written material received, the evidence given viva voce by the intended witness and the submissions of counsel, we dismissed the application with brief reasons to follow. These are the reasons. 3 Section 683(1) of the Criminal Code (the Code ) provides that this court, where it considers it in the interests of justice, may receive the evidence of any witness. In Palmer et al. v. The Queen , 1979 CanLII 8 (SCC) , [1980] 1 S.C.R. 759 , McIntyre J. made clear that as the

section states, the overriding consideration is “the interests of justice” (at p. 775), but that special grounds must be shown to justify the exercise by the appellate court of this power given under s. 683(1) of the Code . 4 We are mindful of the comments of Doherty J.A. in R. v. M. (P.S.) (1992), 1992 CanLII 2785 (ON CA) , 77 C.C.C. (3d) 402 (Ont. C.A.) , that “the interests of justice” referred to in s. 683 of the Code include the integrity of the criminal justice system and that

“[f]inality and order are essential to that integrity” (at p. 411): …. Section 683(1) (

d) of the Code recognizes that the appellate function can be expanded in exceptional cases, but it cannot be that the appellate process should be used routinely to augment the trial record. Were it otherwise, the finality of the trial process would be lost and cases would be retried on appeal whenever more evidence was secured by a party prior to the hearing of the appeal.

For this reason, the exceptional nature of the admission of “fresh” evidence on appeal has been stressed …. 5 McIntyre J., in Palmer then enunciated the criteria to be applied when considering applications for the admissibility of fresh evidence. He wrote (at p. 775): .... From these and other cases, many of which are referred to in the above authorities, the following principles have emerged:

(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases ….

(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

(3) The evidence must be credible in the sense that it is reasonably capable of belief, and

(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result. 6 The criminal proceedings here were extant for some period of time prior to the accused’s trial and conviction, including a preliminary inquiry. Accused’s then counsel, on several occasions prior to and during the trial, sought to discuss the matter with the intended witness, but she refused, saying she did not want to choose between her daughter and the accused. The accused was convicted following trial on December 2, 2009. He was sentenced on April 29, 2010.

Following his sentence of four years’ incarceration and in connection with a bail application pending appeal, the intended witness met with the accused’s then counsel and on May 13, 2010 completed a written statement for use in the bail application.

Subsequently, on September 29, 2010, she affirmed an affidavit consistent with the contents of the statement, which affidavit sets forth the fresh evidence which the accused seeks to have admitted in connection with his conviction appeal. 7 In her statement and affidavit the intended witness explained that she would not discuss the matter because a Child and Family Services (CFS) worker (whose name she did not know) told her that if she sided with the accused CFS would take away her children. 8 Two CFS workers provided affidavits.

Both stated that they had dealings with the intended witness in respect of this matter. Each denied having made such a statement saying that it was neither their nor the agency’s practice to make such a statement. Both said they did caution her that if the accused did not move out of the home the agency would have serious protection concerns for the children. One of the workers repeatedly requested that she be supportive of her daughter. 9 On cross-examination the intended witness admitted that the workers did not say that if she sided with the accused the agency would take away her children.

She testified she could not recall what the workers said, but regardless of their words that was her impression of what they had said. 10 Of note, however, is that the intended witness was interviewed by the probation officer who prepared the pre-sentence report dated March 16, 2010.

She reported that “[s]he advised that CFS has told her that her children would be taken away if [the accused] did not move out.” There is nothing in the probation officer’s report as to the intended witness telling her that CFS had told her that if she sided with the accused they would take away her children. 11 It would seem ironic that if she could not recall what the CFS workers told her, as she testified, but only her impression of what they told her, that she would not have related that impression to the probation officer.

Instead she told the probation officer the essence of the exact message from the CFS workers. 12 One of the four Palmer criteria is that “[t]he evidence must be credible in the sense that it is reasonably capable of belief” (at p. 775). This of course requires that the witness is credible. 13 We understand that this criterion speaks to threshold and not ultimate credibility.

Nevertheless, having observed the cross- examination and re-examination of the intended witness and having considered all of the circumstances of her after-the-fact willingness to come forward and offer testimony, together with the other evidence adduced on the application, in particular the information which

she provided to the probation officer as reported in the pre-sentence report, we are not satisfied that the witness and thus her evidence are credible in the sense that the evidence is reasonably capable of belief. 14 In light of the failure to meet criterion (3), we need not consider the other Palmer criteria. The application for admission of fresh evidence is dismissed. J.A. I agree: C.J.M. I agree: J.A.