R. v. Rhodes, 2011 MBCA 90

Citation: R. v. Rhodes, 2011 MBCA 90 Date: 20111110 Docket: AR 11-30-07535 IN THE COURT OF APPEAL OF MANITOBA BETWEEN: HER MAJESTY THE QUEEN ) J. A. Weinstein and ) L. D. Labossière Respondent ) for the Appellant ) ) A. Y. Kotler- and - ) for the Respondent ) ) A. E. M. FenskeKENNETH HOWARD CECIL RHODES ) for the Proposed Intervener ) Women’s Legal Education (Accused) Appellant ) and Action Fund Inc. ) ) Chambers motion heard: ) November 3, 2011 ) ) Decision pronounced: ) November 10, 2011 MICHEL A.

MONNIN J.A. 1 The Women’s Legal Education and Action Fund Inc. (LEAF) seeks leave to intervene in a criminal appeal arising from aconviction for sexual assault following a trial before a judge sitting alone. The Crown appealed the sentence imposed and the accusedcross-appealed the conviction itself. 2 In its factum, the Crown conceded that there was merit to the accused’s appeal, stating: While there was evidence supporting a conviction, both the Accused and the complainant were entitled to have that evidence consideredaccording to the guiding principles that ensure a fair trial.

Where that is not done, rights are placed at risk and public confidence in theverdict suffers. With respect, the Reasons in this case raise a series of concerns in this regard that, considered cumulatively, require anew trial. 3 The court has now been informed that the accused is no longer seeking that his conviction be substituted with an acquittaland agrees that the court should order a new trial.

The Crown has also confirmed that if this court sees fit to grant the new trial, it willnot pursue its sentence appeal. 4 LEAF wishes to be granted leave to intervene in order to argue that the conviction should be maintained. It seeks to arguethat the Crown’s analysis is fundamentally flawed, in that it concedes the case based upon a misapplication of the legal principles thatshould govern it. 5 LEAF wishes to address what it refers to as three systemic issues not raised by the Crown or the accused and which, italleges, are of significant importance to sexual assault prosecutions in Manitoba. These are: (

a) The social context of the pervasiveness of sexual assault and the pervasiveness of discriminatory beliefs which prejudicecomplainants and bring the administration of justice into disrepute. (

b) Racialized and sexualized violence against Aboriginal women and girls and the discriminatory beliefs and stereotypes whichperpetuate intersecting inequalities experienced by Aboriginal women. (

c) The influence of discriminatory beliefs and stereotypes that infect the criminal justice process and result in distortions ofappropriate criminal law principles and procedures, in particular, the defence of mistaken belief in consent and the W.(D.) ( (SCC), [1991] 1 S.C.R. 742) test. 6 In addition, and notwithstanding its position that the conviction should be upheld, LEAF wishes to make submissions withrespect to the presence of discredited beliefs in the trial judge’s reasons by making submissions, as it says in its brief, to “a fulsomeanalysis of and gendered perspective on these errors; the systemic impact and implications of these errors; and the relationship between

these views, mistaken belief in consent and the W.(D.) test.” 7 The Crown’s position with respect to the conviction appeal, and with which the accused agrees, is that the trial judge’sreasons are unclear as to which conclusions of fact he based the conviction. The issue in this case, the Crown argues, is that all of theevidence must be assessed correctly and that the reasons provided by the trial judge make it unclear and problematic whether suchassessment of the evidence was done.

It is more than simply an issue of honest and mistaken belief or the proper application of the W.(D.) principle, although those issues could well be raised in a new trial. 8 On the leave application itself, the Crown argues that the submissions which LEAF wishes to advance do not speak to thematter at issue on the appeal itself and raise the danger of an injustice occurring as a result. 9 The accused, advancing the same position as the Crown, argues that what LEAF is attempting to do is to address all of thecomments made by the trial judge, but, in doing so, is not addressing the fundamental issue that the appeal must address.

That issue is,and remains, whether the trial judge properly assessed all of the evidence before him according to law. That, the accused argues, wasnot done and that is why there should be a new trial and that is not what LEAF proposes to address in its submissions. 10 The test to be met in granting leave to intervene was set out in R. v. Mabior (C.L.), 2009 MBCA 93, 245 Man.R. (2d) 81,where MacInnes J.A. wrote (at paras. 5-7): The factors to be considered by the court in addressing and deciding a motion for intervener status have been judicially considered on anumber of occasions. One such occasion was R. v.

Creekside Hideaway Motel Ltd. et al. (2007), 2007 MBCA 19 , 212Man.R. (2d) 231; 389 W.A.C. 231; 2007 MBCA 19. There, Monnin, J.A., in Chambers, made reference to Sawatzky v. RiverviewHealth Centre Inc. (1998), (MB KB), 133 Man.R. (2d) 41 (Q.B.), wherein Beard, J. (as she then was), confirmedthat the Rules (there the Queen’s Bench Rules) as to intervention in cases where parties did not have a direct interest should not beinterpreted narrowly. Beard, J., set out the factors to consider on an intervener application namely (at para. 36): (

i) the nature of the case; (ii) the issues which arise; and (iii) the likelihood of the applicant being able to make a useful contribution to the resolution of the appeal without causing injustice tothe immediate parties. As well, Beard, J., concluded that when considering an application for intervener status by a public interest group, additional factorsshould be considered respecting the likelihood of the applicant being able to make a useful contribution. The additional factors she listedare (at para. 37): (

a) does the interven[e]r have a real, substantial and identifiable interest in the subject-matter of the proceedings; (

b) does the interven[e]r have an important perspective distinct from the immediate parties; or (

c) is the interven[e]r a well-recognized group with a special expertise and with a broad and identifiable membership base? Monnin, J.A., also referred to CTV Television Inc. v. R. et al. (2005), 2005 MBCA 120 , 201 Man.R. (2d) 38; 366 W.A.C. 38;2005 MBCA 120, wherein Twaddle, J.A., in Chambers, in his analysis of Court of Appeal Rule 46.1 relying [on] Schofield v. Ontario(Minister of Consumer and Commercial Relations) (1980), (ON CA), 112 D.L.R. (3d) 132 (Ont.

C.A.), wrote (atparas. 20-21): Even if the applicants for party or interven[e]r status have an interest in the appeal for the purpose of Court of Appeal Rule 46.1, they areentitled to leave to intervene only if the judge considering the application believes that their submissions will be useful to the court anddifferent from those of the other parties. This indicates that a judge hearing an application for leave to intervene must consider the extent to which the submissions of the

applicants will be useful to the court and different from those of the other parties. 11 The issues that LEAF wishes to raise in this appeal may well be meaningful and appropriate in the general context of sexual assault law, but will not assist the court in addressing the fundamental issue raised by this appeal: whether the trial judge properly assessed the evidence as a whole according to law and whether, as argued by both the Crown and the accused, there should be a new trial. 12 I can well understand that there are comments made by the trial judge, in both his conviction reasons and sentencing reasons, that are troubling and provocative to LEAF and that LEAF believes those comments need to be challenged.

However, doing so in the context of this conviction appeal is not, in my view, the proper forum. 13 LEAF has not persuaded me that it has a real, substantial and identifiable interest in the subject-matter of the proceedings as they now stand or that it can make a useful contribution to the resolution of the appeal without causing potential injustice to the immediate parties. 14 The application for leave to intervene is dismissed. J.A.