R. v. W.E.B., 2012 MBCA 23

Citation: R. v. W.E.B., 2012 MBCA 23 Date: 20120315 Docket: AR 10-30-07375 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Michel A. Monnin Madam Justice Holly C. Beard Mr. Justice Alan D. MacInnes BETWEEN: HER MAJESTY THE QUEEN ) M. S. Bright ) for the Appellant Respondent ) ) R. N. Malaviya and ) A. Y. Kotler- and - ) for the Respondent ) ) Appeal heard:B. (W.

E.) ) January 18, 2012 ) (Accused) Appellant ) Judgment delivered: ) March 15, 2012 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). MONNIN J.A. 1 The accused appeals his convictions and the sentences imposed. 2 The accused was convicted of sexual interference, sexual assault and assault. The complainant was his daughter. Hewas also convicted of assaulting his son.

All of the incidents which gave rise to the convictions occurred between August 1988 andFebruary 1993, when both children were of tender years. Following conviction, a judicial stay was entered respecting the sexual assaultcharge pursuant to the Kienapple principle (Kienapple v. The Queen, (SCC), [1975] 1 S.C.R. 729). 3 Following his trial with respect to these convictions, the accused pled guilty to three counts of breach ofrecognizance. 4 The accused was sentenced to three and one-half years custody on the sexual interference charge; he receivedsentences of six months consecutive on the assault charges.

The accused also received a six-month sentence with respect to one breach,two years consecutive with respect to a second one, and another two-year consecutive sentence with respect to the third breach. The trialjudge, however, acceded to a joint recommendation from counsel that the sentences for the breaches of recognizance be servedconcurrently with the sentences imposed for the offences involving the children. 5 For the reasons that follow, I would dismiss the appeal with respect to the convictions and would deny leave to appealthe sentences imposed.

Grounds of Appeal 6 The accused appeals from his convictions on the grounds that: (1) the verdicts were unreasonable and unsupportedby the evidence; (2) the judge made findings of fact with respect to the accused which were not in evidence and drew inferences fromthose findings that she was not entitled to make; and (3) the judge erred by admitting into evidence the videotaped statement of thedaughter under the provisions of s. 715.1 of the Criminal Code (the Code). Unreasonable Verdict and Factual Errors 7 The first and second grounds of appeal are interrelated and I will treat them as one in these reasons.

8 The trial lasted a total of 44 days including the time spent on a voir dire to establish whether the daughter’svideotaped statement could be admitted into evidence. Many of the witnesses from whom the trial judge heard were doctors,psychologists, teachers and child care workers who dealt with the children either shortly before their apprehension by Child and FamilyServices or post-apprehension.

She also heard from the foster parents for both child complainants. 9 The children were apprehended in early 1993 and eventually became permanent wards of Child and Family Services. 10 After the evidence and arguments were completed, the judge reserved her decision and then provided lengthy anddetailed reasons in which she carefully reviewed and analyzed the evidence that was put before her. She made strong credibility findingsagainst the accused.

She dismissed some of the charges which the accused was facing and found him guilty of those set out earlier inthese reasons. 11 Following are excerpts from the trial judge’s reasons which provide an indication of what she was dealing with andhow she dealt with those issues (at paras. 54, 57, 64, 73, 109-10): This is a case of credibility. The complainants have made allegations against the accused which he denies. The sole issue to bedetermined is whether the Crown has proved the charges beyond a reasonable doubt. The simplicity implied by this last statement,however, is remarkably deceptive.

This was an enormously complex and difficult case. The events in issue occurred between 17 and 20years ago, when the complainants were young children, suffering from significant emotional and developmental deficits. The greatest challenge in this case was understanding and assessing the evidence of D.E.B. [the daughter]. Although she has progressedfar beyond what likely seemed possible at age six, she is very childlike. Far too much attention was paid during the trial to the matter ofher IQ score, but it is, of course, an important factor to understanding her.

She scores, or has scored, in the low 50s in language and low80s in the verbal and comprehension measurements. She completed a modified high school program, with the assistance of an aide. Shecan read, but her comprehension is very limited. She remained in care until she was 21 and is unable to live independently. She has apart-time job as a cleaner in a fast food restaurant, but is only able to perform very basic tasks. She was described by Drs. [J.H.] and[E.E.], and [V.], as extremely fragile, vulnerable, and very suggestible.

In fact, after learning about these proceedings, Ms. [V.] wrote tothe Crown attorney expressing concern about D.E.B.’s ability to withstand the trauma of testifying in court. Dr. [C.F.] also contacted theCrown because he was similarly concerned about her testifying, given her cognitive deficits. As to her testimony generally, D.E.B. is very literal and concrete in her thinking, so when asked simple, direct, open-ended questions, shewas very responsive and would provide specific information, often with a fair amount of detail.

Repeatedly, she demonstrated that herability to recall events was very good, and certainly beyond what would be expected of someone with her cognitive limitations. Herability to recall dates and details related to her or her brothers’ ages, was remarkable. All this seems counterintuitive, but perhaps isexplained by Dr. [E.E.’s] observation that young children who live in unsafe environments are typically hypervigilant and have a highlydeveloped ability to recall, simply as a survival skill. D.E.B. is certainly not an ordinary witness. She is, for all intents and purposes, a child. As was stated in R. v.

Pearson (R.A.), (BC CA), [1994] B.C.J. No. 2828; 82 B.C.A.C. 1; 133 W.A.C. 1; 36 C.R. (4th) 343 (C.A.), where witnesses sufferdisabilities that affect their ability to testify, their evidence is due the same care and attention as a child’s. In the end, my conclusion is that the evidence of the accused lacks credibility and I simply do not believe him. I conclude that his lackof interest in the well being of D.E.B. arises in part, at least, from the fact that he engaged in the behaviours alleged. His evidence alsodoes not raise a reasonable doubt. I turn, then, to the issue of what evidence I do accept.

I am satisfied that D.E.B. was being honest and truthful in her recounting of whatthe accused did to her. When her evidence is examined carefully, I find that her description of what happened was consistent in itsessential components in her videotaped statement, on direct examination and in cross-examination. Any inconsistencies were not central. 12 The test to be applied by an appellate court when considering an allegation of unreasonable verdict has recently beenrevisited by the Supreme Court of Canada in R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3.

In that decision, the court clarified (byreading the combined decisions of Fish, Charron and Abella JJ.) that the R. v. Yebes, (SCC), [1987] 2 S.C.R. 168, and R.v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381 tests still apply to a judge-alone verdict, but that in the case of a judge sitting alone, thereasonableness of the verdict may also be assessed by reviewing the judge’s reasons (at para. 69): While none of the existing tests have been changed, the approach adopted by the majority in Beaudry, and reiterated in this appeal, dideffect an expansion of the test for unreasonableness under s. 686(1)(a)(i).

Under the traditional Yebes/Biniaris test, the reasonableness ofthe verdict is to be measured against the totality of the evidence adduced at trial (R. v. Yebes, (SCC), [1987] 2 S.C.R.

168 ; R. v. Biniaris , 2000 SCC 15 , [2000] 1 S.C.R. 381 ). This test continues to apply. However, where the verdict under review is that of a trial judge without a jury, the reasonableness of the verdict may also be assessed, as Fish J. puts it, “by scrutinizing the logic of the judge’s findings of fact or inferences drawn from the evidence admitted at trial ” (para. 15 (emphasis in original)). …. 13 With respect to the drawing of an inference, this court in R. v. Thomas (R.T.) , 2010 MBCA 91 , 258 Man.R. (2d) 146 , stated , following Housen v.

Nikolaisen , 2002 SCC 33 , [2002] 2 S.C.R. 235 , that the standard of review for a trial judge’s findings of fact and the inferences to be drawn there from is that of palpable and overriding error. 14 There was more than ample evidence on which the trial judge could convict the accused with respect to the assault charges. This was not seriously contested by the accused. 15 What the accused really challenges is his conviction for sexual interference.

On that charge, the trial judge had evidence from the daughter, many of the details of which were corroborated or confirmed by other witnesses that justified the evidentiary and credibility findings that she made. Because the evidence of the daughter was challenged, it does not mean that her evidence is not to be accepted or relied upon. Although susceptible to suggestion, the daughter never recanted or even wavered on the substance of her allegations. Quite to the contrary, her evidence was consistent and unshaken.

The trial judge provided clear and cogent reasons to justify her reliance on that evidence and indicated clearly that such evidence was capable of support by the evidence of other witnesses. 16 The issue of the alleged misapprehension of the evidence by the trial judge must be considered in light of what the Supreme Court of Canada said in its recent decision of Sinclair (at para. 53 ): When reasons are reviewed on appeal, silence should not be taken to mean acceptance ( R. v. O’Brien , 2011 SCC 29 , [2011] 2 S.C.R. 485 , at para. 16 ).

In my opinion, for an appellate court to decide to order a new trial on the basis of a miscarriage of justice resulting from a misapprehension of the evidence, more is needed than an “apparent” mistake (e.g., an error that the trial judge may have committed) in the reasons. A court of appeal should not, in applying the Lohrer [ 2004 SCC 80 , [2004] 3 S.C.R. 732 ] test, order a new trial unless the trial judge has made a real error; its decision cannot be speculative. The plain language or the thrust of the reasons must disclose an actual mistake.

When such errors are in fact committed, appellate courts have no difficulty in explaining why they caused the trial judge’s reasoning process to be fatally flawed and where they may be found in the reasons. In such situations, the errors are readily obvious. 17 As stated earlier, the trial judge provided a thorough, detailed and well-considered review of the evidence. Her assessment of the accused’s testimony and the evidence called on his behalf was balanced and fair.

In addition, I find no fault with the manner in which she dealt with the evidence of the daughter. 18 There is no merit to the allegations that the verdict was unreasonable or that the judge misapprehended the evidence and I would dismiss those grounds of appeal. Admissibility of the Videotaped Evidence 19 In ruling that the daughter’s videotaped statement could be received as evidence, the trial judge said (at paras. 83-85, 91-93): There are three components to the test for admissibility of a statement under s. 715: (

i) the video must have been made within a reasonable time after the alleged offence; (ii) the witness describes the acts complained of in the video; (iii) the witness adopts the contents of the video while testifying. All of these are subject to the overriding discretion of the trial judge to exclude the video if its admission in evidence would interfere with the proper administration of justice. Here, all three grounds were contested by the defence. I am easily satisfied that D.E.B. described the acts complained of, and adopted the contents of her video during her testimony.

The only issue which requires consideration is whether the videotape was made within a reasonable time after the alleged offence. D.E.B. was apprehended in February 1993, so the statement was taken at least nine and a half

years, and as much as 14 years after the events occurred. What amounts to a “reasonable time”, as used in this section, is a question of fact to be determined in all of the circumstances. Thisincludes, of course, the well-known fact that children, for a variety of reasons, often delay reporting unwanted interference with theirbody. I turn, then, to this situation. I do not consider D.E.B.’s acting out in play therapy or her vague references to Dr. [E.E.] about her father in1993 to amount to a disclosure that was capable of being pursued.

I accept the opinion of Dr. [J.H.] and [V.] that her language skills andemotional state would have made it a fruitless exercise with potentially damaging consequences to D.E.B. I also find that the first timeD.E.B. raised the subject was when she spoke to K.E. [her foster mother] in July 2002, expressing concern that she might have contractedAIDS from her father. Given the pressure D.E.B. has been under from the accused and her brothers since the charges were laid, I think it is particularlyimportant that the “snapshot” of D.E.B. when she first chose to speak about the events be before the court.

Similarly, while I amsatisfied that she did not make any disclosures before the summer of 2002, it is not at all clear to me how much or with whom she hasdiscussed any of the details since. I am mindful of Dr. [By.’s] evidence that each time a memory is retrieved and articulated, it will beaffected in some fashion, and is susceptible to being altered.

For all these reasons, I conclude that the video statement was made within a reasonable period of time and is, therefore, admissible unders. 715.1. 20 While it is well settled that the admissibility of evidence is a question of law, the judge’s consideration of whether thevideotaped statement was made within a reasonable period of time is subject to considerable deference. In dealing with this issue, it isuseful to recall what L’Heureux-Dubé J. wrote in R. v. L. (D.O.), (SCC), [1993] 4 S.C.R. 419 (at pp. 467-68): .... What is or is not “reasonable” depends entirely on the circumstances of a case.

The trial judge in this case, taking into considerationall such circumstances, came to the conclusion that the lapse of time in this instance was reasonable. On the voir dire the trial judgestated: But in the end of the day, the test must be, has the Crown proved beyond a reasonable doubt that the videotape was made within areasonable time after the alleged offence? . . . In this case I am satisfied that the, despite the unnecessary delay by the police, the eventual making of the tape in August was within areasonable time after the alleged offence. ...

I simply observe that in this, in this context, [s.] 715.1, where you are dealing with youngchildren, what is reasonable in one case may not be in the other. But the boundaries of reasonableness are indeed almost as variable asthe historical boundaries of Poland. But I do think in this case given the ages, given the age involved, that the tape satisfies the test of[s.] 715.1, and accordingly, the tape, in respect of [R.S.] will be marked Exhibit 1.

As this Court has repeatedly said, a court of appeal should not interfere lightly with findings of fact unless it concludes that the trialjudge has made an egregious error either by failing to recognize or misinterpreting an important and relevant piece of evidence or byreaching an erroneous conclusion (see P. (D.) v. S. (C.), (SCC), [1993] 4 S.C.R. 141; Bank of Montreal v. Bail Ltée, (SCC), [1992] 2 S.C.R. 554, at pp. 572-73; Lapointe v. Hôpital Le Gardeur, (SCC), [1992] 1 S.C.R.351; M. (M.E.) v. L. (P.), (SCC), [1992] 1 S.C.R. 183; R. v. Duguay, (SCC), [1989] 1 S.C.R. 93; andLensen v.

Lensen, (SCC), [1987] 2 S.C.R. 672). In this case, the Court of Appeal did not indicate which such error thetrial judge committed, nor did they state upon which facts they relied in order to reverse the trial judge’s findings of fact. In my view, theCourt of Appeal simply substituted its opinion to that of the trial judge. This, in my view, it was not entitled to do. Beyond the facts of this case, however, what should the determination of the reasonableness of the length of delay take intoconsideration?

In reaching a conclusion as to the reasonableness of time, courts must be mindful of the fact that children, for a number ofreasons, are often apt to delay disclosure. As McLachlin J. wrote in R. v. W. (R.), [ (SCC), [1992] 2 S.C.R. 122] at p.136:

... victims of abuse often in fact do not disclose it, and if they do, it may not be until a substantial length of time has passed. Studies abundantly confirm this fact as part of the child abuse syndrome. (See, among others, R.C. Summit, “The Child Sexual Abuse Accommodation Syndrome” (1983), 7 Child Abuse & Neglect 177, at pp. 181-88; and G. Renaud, “ Judicial Notice of Delayed Reporting of Sexual Abuse: A Reply to Mr.

Rauf” (1993), 20 C.R. (4th) 383 .) 21 And (at pp. 468-69): The reasonableness of the delay in gathering such evidence may further depend on a number of factors which only a case-by-case analysis will be able to determine. This approach is not new. The reasonableness of a search, for example, requires a case-by-case analysis, as do a number of other instances. This case-by-case analysis is the function of the trial judge. In the present case, the trial judge, after reviewing all the circumstances of this case, concluded that the delay in videotaping the child’s evidence was reasonable.

My own reading of the evidence brings me to the same conclusion. Accordingly, since the trial judge correctly directed himself in law and did not err in his assessment of the evidence, it was an error on the part of the Court of Appeal to intervene. 22 In my view, the trial judge was in error when she stated (at para. 92 of her reasons) that the disclosure date was in 2002 as opposed to 1993.

That said, the determination of whether the delay was reasonable must look at the delay for a period of time that starts at the date of the offence and goes to the date of the videotaped statement, not at a period commencing at the date of the disclosure of the offence. In any event, the error is minor in this case because, in reality, the trial judge dealt with the reasonableness of the delay as if it originated in 1993 and not in 2002. Furthermore, a s the Crown has argued, and I agree, the reasonableness of the delay is based not on a time-frame, but on the particular facts of each and every case.

In this particular case, the delay from 1993 to the taking of the videotaped statement, while lengthy, was well explained by the trial judge and supported by a significant amount of expert evidence.

Given the daughter’s developmental delay, as it was in 1993, and the difficulties that she had to overcome to get to a stage where she was both ready and able to deal with these issues, the trial judge’s finding that the videotaped statement was taken within a reasonable time after the alleged offence does not amount to a palpable and overriding error and is, in fact, a reasonable decision. 23 The trial judge did not err in admitting the videotaped statement into evidence, and I would dismiss that ground of appeal.

Sentence 24 The accused has appealed the sentences imposed as being harsh, considering that he was a first offender. It is to be noted that, at the time of the appeal hearing, the accused had already been granted parole. 25 In her reasons, the trial judge set out clearly and reasonably why she was imposing the sentences that she did. She considered the appropriate factors and imposed sentences that were appropriate to the offences and the offender, keeping in mind his c o nduct, his lack of remorse, his limited potential for rehabilitation and his basic disregard for court orders in breaching his recognizances.

The circumstances of the breaches were particularly egregious, as they involved the accused having repeated contact with the children, including the daughter, contrary to the specific terms of several court orders, in a bald attempt to get them to alter their testimony. This type of behaviour strikes at the core of the justice system and its ability to deliver a true and fair verdict. 26 I would deny leave to appeal the sentences imposed. Decision 27 I would dismiss the conviction appeal and deny leave to appeal the sentences imposed. J.A. I agree: J.A. I agree: J.A.