R. v. W.R.B., 2011 MBCA 17

Citation: R. v. W.R.B., 2011 MBCA 17 Date: 20110201 Docket: AR 10-30-07373 IN THE COURT OF APPEAL OF MANITOBA Coram: Chief Justice Richard J. Scott Mr. Justice Richard J. Chartier Mr. Justice Alan D. MacInnes BETWEEN: HER MAJESTY THE QUEEN ) A. K. Gowenlock ) for the Appellant Respondent ) ) ) C. A. Vanderhooft- and - ) for the Respondent ) ) B. (W.R.) ) Appeal heard and ) Decision pronounced: (Accused) Appellant ) February 1, 2011 NOTICE OF RESTRICTION ON PUBLICATION: No one may publish, broadcast or transmit any information that coulddisclose the identity of the complainant (see s. 486.4 of the Criminal Code).

CHARTIER J.A. (for the Court): 1 The principal ground of appeal is that the trial judge failed to properly apply the first two parts of the test laid down in R. v.W. (D.), (SCC), [1991] 1 S.C.R. 742. The accused argues that the trial judge never considered the evidence of theaccused on its own merits and that once she rejected his evidence, “there was no consideration or reasoning regarding whether hisevidence left a reasonable doubt as to his guilt.” 2 This case turned on credibility.

In such cases, an appellate court will review the reasons to satisfy itself that the trial judgedid not err by allowing the burden to shift away from the Crown simply because the accused was not believed (described by Binnie J. inR. v.

J.H.S., 2008 SCC 30, [2008] 2 S.C.R. 152 at para. 9 as the “credibility contest error.”) As he explained in J.H.S., “[t]he main pointis that lack of credibility on the part of the accused does not equate to proof of his or her guilt beyond a reasonable doubt” (at para. 13). 3 With the case at hand, the trial judge, after correctly stating the W. (D.) test, cautioned herself not to fall into a credibilitycontest error. She stated: …. … I cannot simply compare and address the two versions of events and choose the one I prefer.

I must first begin the evaluation ofthe evidence by considering the evidence of the [accused] in the context of the evidence as a whole. 4 When the accused took the stand, he denied categorically that he had ever sexually touched the complainant. The trialjudge made clear that she did not believe him. She also found that his evidence did not raise a reasonable doubt as to guilt.

From herreasons it is clear that the trial judge, after acknowledging and dealing with inconsistencies in the complainant’s evidence, accepted herevidence and was not left with a reasonable doubt on the whole of the evidence or from the accused’s contradictory denial evidence (see

R. v. R.E.M ., 2008 SCC 51 , [2008] 3 S.C.R. 3 at para. 67 ). 5 In our view, the reasons demonstrate that the trial judge respected the substance of the W. (D.) analysis, did not shift the burden of proof and correctly applied the principle of reasonable doubt in the context of a credibility assessment . 6 The appeal is dismissed. J.A. C.J.M. J.A.