R. v. G.J.B., 2012 MBCA 43

Citation: R. v. G.J.B., 2012 MBCA 43 Date: 20120509 Docket: AR 11-30-07636 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Michel A. Monnin Madam Justice Freda M. Steel Madam Justice Holly C. Beard BETWEEN: HER MAJESTY THE QUEEN ) S. A. Inness ) for the Appellant Respondent ) ) R. N. Malaviya ) for the Respondent- and - ) ) Appeal heard: ) April 13, 2012B. (G. J.) ) ) Judgment delivered: (Accused) Appellant ) May 9, 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 from his conviction of sexual assault and the sentence imposed of five years’ incarceration. 2 With respect to the conviction appeal, the accused argues, firstly, that the trial judge erred in the manner that heassessed his credibility, resulting in a trial that was fundamentally unfair, and secondly, that the judge’s verdict was unreasonable and,because of the judge’s misapprehension of the evidence, a miscarriage of justice occurred in the finding of guilt. 3 The accused relies on the decisions in R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, and R. v.

Morrissey (1995), (ON CA), 22 O.R. (3d) 514 (C.A.), in support of the submissions he advances. 4 In Lohrer, the Supreme Court of Canada confirmed what had been stated in Morrissey by the Ontario Court ofAppeal. Writing for the court, Binnie J. said (at paras. 1-2): This is an appeal as of right from convictions of the appellant for aggravated assault and uttering a threat. A majority of the B.C. Courtof Appeal affirmed the convictions. Hollinrake J.A. dissented. He found applicable to this case what was said by Doherty J.A. of theOntario Court of Appeal in R. v.

Morrissey (1995), (ON CA), 97 C.C.C. (3d) 193, as follows at p. 221: Where a trial judge is mistaken as to the substance of material parts of the evidence and those errors play an essential

part in thereasoning process resulting in a conviction, then, in my view, the accused’s conviction is not based exclusively on the evidence and isnot a “true” verdict. Later in the same paragraph, Doherty J.A. stated:

If an appellant can demonstrate that the conviction depends on a misapprehension of the evidence then, in my view, it must follow thatthe appellant has not received a fair trial, and was the victim of a miscarriage of justice. This is so even if the evidence, as actuallyadduced at trial, was capable of supporting a conviction. We agree with these observations. Where a miscarriage of justice within the meaning of s. 686(1)(a)(iii) of the Criminal Code, R.S.C.1985, c.

C-46, has been demonstrated an accused appellant is not bound to show in addition that the verdict cannot “be supported by theevidence” within the meaning of s. 686(1)(a)(i). Morrissey, it should be emphasized, describes a stringent standard. The misapprehension of the evidence must go to the substance ratherthan to the detail. It must be material rather than peripheral to the reasoning of the trial judge.

Once those hurdles are surmounted, thereis the further hurdle (the test is expressed as conjunctive rather than disjunctive) that the errors thus identified must play an essential partnot just in the narrative of the judgment but “in the reasoning process resulting in a conviction”. 5 The accused was convicted following a one-day trial in which the Crown called three witnesses, including thecomplainant. The accused testified on his own behalf and denied the allegations made against him.

The offence was alleged to haveoccurred on October 8, 2006, but was not reported to the police until the 25th of October of that year. The trial was held on March 16,2011, and the judge reserved his decision, which was eventually delivered on July 26, 2011. 6 In his written reasons the judge properly set out that his decision was to be guided by the principle set out in R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742. He then proceeded to state that there were problems with the accused’s evidence andthat he found it to be inconsistent.

He then set out in detail four particular areas of that evidence that caused him concern prior toarriving at the following conclusion (at paras. 27-29): In closing argument the Crown submitted that his testimony was evasive and that his intention throughout was to obviscate andmisdirect. I agree. To summarize his evidence, there are significant inconsistencies and contradictions within his trial testimony itself. I also find that histestimony was evasive and frequently attempted to misdirect and cloud the issues he was being questioned about.

Turning to the W.D. test, for the reasons outlined above, I do not believe the evidence of the accused. I reject it. Secondly, theaccused’s testimony does not leave me with a reasonable doubt. 7 The complainant was the accused’s aunt by adoption. They both resided in Leaf Rapids, Manitoba at the time thealleged incident occurred. The complainant often called upon the accused to give her a ride in or about the Town of Leaf Rapids. 8 The Crown alleged that, on the day of the incident, the accused answered the complainant’s call for a ride homearound supper time.

He gave her a ride, but instead of dropping her off at her home, drove her to a secluded area outside of town and hadforcible, non-consensual sexual intercourse on the front seat of his truck. 9 The accused takes issue with the judge’s findings of inconsistencies that led to the rejection of his evidence, arguingthat the judge misapprehended the evidence and that such erroneous findings eventually led to his flawed W.(D.) analysis, bringing abouta miscarriage of justice. 10 The first inconsistency that the judge found was that the accused had failed to testify in his direct examination that hehad said to the complainant, “[D]o you want to go for a ride?” (at para. 14).

But he testified to that effect in cross-examination. Aftersetting out what he considered to be the relevant portions of the evidence, the judge said in his reasons (at para. 15): This is important evidence regarding the accused’s credibility. It corroborates a significant piece of [the complainant’s] story, and showsan internal inconsistency in [the accused’s] testimony. 11 My reading of the evidence demonstrates that the accused readily agreed on cross-examination that he did not make areference to going for a ride in his direct examination.

However, he never denied having said those words and did not at any time testifyto anything inconsistent with them. In his direct evidence he testified that he and the complainant were going down the highway andthen he began testifying about the discussion that he was having with the complainant. His counsel asked questions about thatdiscussion and the accused responded. His counsel told him to “[c]ontinue on.” To which he replied: “We went by” (presumably the

turn-off) and he continues to describe the conversation. He then said: “We went towards the bridge and we took a – a left towards the – the – like the what you call it boat launch.” And he continued to explain where he drove. 12 In cross-examination the Crown asked what they talked about and the accused responded: “I asked her if she wanted to go for a ride down the road.” The Crown asked if he said that and the accused agreed that he had. When asked when he said that, he said: “When I missed the turn.” 13 As stated above, the judge found this to be inconsistent and corroborative of the complainant’s evidence.

In my view, one could just as easily find the converse and that is that the complainant’s evidence corroborates the accused on this point. In any event, I fail to see how this can be found to be an inconsistency, as did the judge, let alone “important evidence regarding [his] credibility” (at para. 15). 14 The second issue that the trial judge raised regarding the accused’s testimony was that he asked if the complainant wanted to “go for a ride down the road” and then only went as far as the bridge and turned around.

The judge said that the accused testified that he turned there “because it was his first opportunity to do so safely” (at para. 17), and that he “offered no explanation as to why he changed his mind and cut the ride short” ( ibid. ). 15 Counsel for the accused argues that the accused did not say anything about a first opportunity or doing anything safely and, in my view, a close reading of the transcript confirms that position.

There is also nothing that suggests that the ride was cut short, and the accused was not asked anything about how long or far he intended to go or whether the ride was cut short. 16 Thus, again, there does not seem to be any inconsistency in this regard. 17 The third issue relates to the accused’s evidence about why the complainant was mad at him. 18 The trial judge focussed mainly on what I consider to be largely irrelevant and questionable testimony about the fishing nets and traps and how the cross-examination in that regard unfolded and the difficulty of getting any information out of the accused.

He concluded at para. 24 of his reasons that the accused’s testimony was concocted to show motivation on the part of the complainant to fabricate the sexual assault. 19 In fact, the accused said more than once that most of his conversation with the complainant related to a hydro settlement and not the nets and traps. He said that the complainant was angry about the money that she would lose if there was no settlement.

Specifically, the accused testified as follows: I only mentioned it [i.e., nets and traps] briefly to her, I didn’t explain I just said I was pissed off about him leaving nets and I was going to do something about it. 20 There then follows 19 pages of cross-examination about the nets and traps, which, in my view, are totally irrelevant to the proceedings and should not have been allowed.

This was again followed by the Crown asking the accused at some length what they were talking about and, again, the accused said: “I was talking about the issue of the hydro issue.” The Crown asks: “Right, for – for quite a while?” and the accused said: “Yeah.” 21 The Crown then put the following question to the accused, the first part of which clearly misstated the evidence: And then you had this conversation about the nets and the – and the lake; and the fishing licences; and your grandfather’s property; and the fact that the traps which were in fact down under your authority apparently, right, and you had that conversation.

Now when my – my learned friend was talking to you he asked you how far it was from that turn to the river and you said it might have been maybe a mile, right, and you turned before the river? You’re nodding yes, is that right? 22 The accused did not have that conversation with the complainant. All of that only came up in cross-examination.

As previously stated, the accused testified that all he said to the complainant regarding the nets was that he mentioned it briefly and that he was “pissed off.” When he nodded “yes” to the above-quoted question, it was in answer to the last part of the question, relating to the distance to the river and that he turned before the river.

He said that he was talking (rambling) about the hydro settlement and said that, if he was successful, she would lose $1,000 per member of her family, and that she was mad about that. 23 The last issue in the trial judge’s decision with which the accused takes exception relates to the cross-examination of the accused regarding the complainant’s pregnancy. In his reasons the judge wrote (at paras. 25-26): During cross examination the Crown had great difficulty in getting a clear answer to direct questions from [the accused].

Several times the Crown had to repeat direct questions to [the accused] on what would seem to have been straight forward matters, such as when he first learned that nets had been left in the water and when he met and raised these issues with DNR. [The accused’s] answers were frequently not responsive and at times evasive. Here is but another example:

Q: And you do agree with me that [the complainant] was five and a half months pregnant at that time, right? A: Probably yeah. Q: Well she was pregnant; you knew she was pregnant at that time, right? A: Yup. Q: She was showing she was pregnant. A: Ah yup. Until pressed, [the accused] would not concede the obvious; that the complainant was visibly pregnant at the time. 24 I have difficulty understanding where it is that there is an inconsistency. The answer “Probably yeah” is in response to the question about the length of the pregnancy, as the accused readily admitted that the complainant was visibly pregnant.

As was pointed out, even the complainant testified that she did not know how far she was into the pregnancy. 25 I am well aware that reasons for judgment should be read as a whole and that an appellate court should refrain from nit- picking through the reasons in order to find errors of little consequence in the totality of the reasons.

In this instance, I have done a detailed review of the reasons dealing specifically with the credibility findings of the judge with respect to the accused because those findings are not incidental to his W.(D . ) analysis, but are a crucial part thereof. 26 The Crown argues that notwithstanding the fact that the judge might have made some errors in assessing the accused’s evidence, there was still more than ample evidence to convict on the basis of the complainant’s evidence alone and that, therefore, this court should not intervene. 27 I cannot agree with the Crown’s submissions.

This is very much a two-witness case, and if a judge has seriously misapprehended the evidence of the accused, as I believe was the case here, it is difficult to accept that the accused received a fair trial. According to the test in W.(D.) , it is only if the judge does not believe the accused or his evidence does not raise a reasonable doubt, that the judge then goes on to consider the complainant’s evidence. This is not a contest of credibility between the accused and the complainant. 28 There was in this case a misapprehension of the accused’s evidence by the judge.

That misapprehension was material to a proper analysis required by the test in W.(D.) . The misapprehensions are not related to issues of irrelevant detail, but of substance, and had a direct effect on the decision made by the judge. 29 The errors noted above constitute a miscarriage of justice for the reasons set out in Lohrer and Morrissey , which are applicable to this case. 30 Accordingly, I would allow the appeal and direct a new trial. J.A. I agree: J.A. I agree: J.A.