R. v. R.G.B., 2012 MBCA 5

Citation: R. v. R.G.B., 2012 MBCA 5 Date: 20120118 Docket: AR 10-30-07404 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Martin H. Freedman Mr. Justice Richard J. Chartier Madam Justice Holly C. Beard B E T W E E N : ) HER MAJESTY THE QUEEN ) A. Y. Kotler ) for the Appellant Appellant ) ) M. S.

Bhangu - and - ) for the Respondent ) B. (R.G.) ) Appeal heard: ) February 11, 2011 (Accused) Respondent ) ) Judgment delivered: ) January 18, 2012 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 ). FREEDMAN and CHARTIER JJ.A. INTRODUCTION AND BACKGROUND 1 This case raises jurisdictional issues of appellate court access for the Crown. 2 The Crown has no right of appeal from an acquittal except on a ground that involves a question of law alone (see s. 676(1) (

a) of the Criminal Code (the Code )). The principal issue on this appeal is whether the Crown has the right to appeal against an

acquittal when it alleges shortcomings in a judge’s assessment of the evidence. Put another way, when a judge errs in assessing theevidence, does he or she commit an error in law? 3 The accused faced five charges of sexual assault, two of sexual interference and one of invitation to touch for sexualpurposes. The eight charges relate to five alleged incidents. The complainant was 12 or 13 years old at the time of those incidents. Atthe time of the trial, she was a few days shy of her 16th birthday. The accused was acquitted of all eight charges, after a trial before ajudge sitting alone.

The Crown appeals six of the eight acquittals and seeks a new trial. ISSUES 4 The Crown has raised a number of issues which it alleges constitute legal errors. It contends that the judge erred inlaw:

a) in his assessment and treatment of the child complainant’s evidence:

i) by not complying with the legal requirements in relation to the evidence of children; ii) by misapplying s. 715.1 of the Code; and iii) by relying on discredited myths and stereotypes;

b) by misapplying the rule in Browne v. Dunn (1893), 1893 CanLII 65 (FOREP), 6 R. 67 (H.L.);

c) by failing to consider the second step in R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742; and

d) by basing his decision, in part, on speculation. 5 As already stated, the main ground of appeal is

a) above. THE CROWN’S LIMITED RIGHT TO APPEAL ACQUITTALS 6 The Crown’s right to appeal an acquittal is limited. It can only appeal on a question of law. Although the accused didnot initially challenge the Crown’s right of appeal in this case, given the nature of the questions raised by the Crown, it was importantthat this court satisfy itself that it does have the jurisdiction to consider them.

We so advised the parties and requested and received fromthem supplementary briefs on this fundamental jurisdictional question. 7 The power of an appeal court to interfere with an acquittal is significantly reduced when compared to convictionappeals.

For example, while the Code allows an accused to appeal a conviction on a question of mixed fact and law with leave (see s.675(1)(a)(ii)), it does not provide the Crown with that same right on an acquittal appeal (see s. 676(1)(a)). 8 Similarly, while the Code allows an accused to appeal a conviction on the ground of “unreasonable verdict” (see s.686(1)(a)(i)), the Crown is not permitted to appeal an “unreasonable acquittal” (see R. v. Biniaris, 2000 SCC 15 at para. 33, [2000] 1S.C.R. 381).

In Biniaris it was held that the concept of unreasonable acquittal was “incompatible with the presumption of innocence andthe burden which rests on the prosecution to prove its case beyond a reasonable doubt” (ibid). 9 In addition, while appellate courts may reverse convictions on the basis of unreasonable verdict where the assessmentof credibility is not supported by the evidence, this appellate power does not apply to Crown appeals on acquittal. See R. v. Burke, (SCC), [1996] 1 S.C.R. 474 (at paras. 5-6): ….

Thus, although the appellate court must be conscious of the advantages enjoyed by the trier of fact, reversal for unreasonablenessremains available under s. 686(1)(a)(

i) of the Criminal Code where the “unreasonableness” of the verdict rests on a question ofcredibility. I acknowledge that this is a power which an appellate court will exercise sparingly. This is not to say that an appellate court shouldshrink from exercising the power when, after carrying out its statutory duty, it concludes that the conviction rests on shaky ground andthat it would be unsafe to maintain it.

In conferring this power on appellate courts to be applied only in appeals by the accused, it wasintended as an additional and salutary safeguard against the conviction of the innocent. [emphasis added] 10 As can be seen from the above and as Arbour J. for a unanimous Supreme Court of Canada observed in Biniaris, “thereis no principle of parity of appellate access in the criminal process” (at para. 33). The reason for this lies in the different policyconsiderations that apply in providing the accused’s right to appeal a conviction versus the Crown’s right of appeal against acquittal.

With the former there are wrongful conviction concerns to “safeguard against the conviction of the innocent” (Burke at para. 6). Withthe latter, there are finality and jeopardy concerns which arise when ordering a second trial after an accused has already heard the words“not guilty” from a judge, or from a jury of his or her peers. As Sopinka J. explained for the majority in R. v. Morin, (SCC), [1988] 2 S.C.R. 345 (at p. 374):

.… An accused who has been acquitted once should not be sent back to be tried again unless it appears that the error at the first trial wassuch that there is a reasonable degree of certainty that the outcome may well have been affected by it. …. 11 It is well understood, and as was explained by Major J. in R. v.

Lepage, (SCC), [1995] 1 S.C.R. 654 atpara. 45, that the rationale for this safeguard against wrongful conviction finds its roots in the often-cited statement of the English juristWilliam Blackstone which was originally published in the 1760s that “it is better that ten guilty persons escape than that one innocentsuffer” (later available in Sir William Blackstone, Commentaries on the Laws of England, 23d ed. (London: V. & R. Stevens and G.

S.Norton, 1854) vol. 4 at 474). 12 In addition to these policy considerations, there is another reason for the difference in rules for appellate court access asbetween the accused and the Crown in the criminal process.

It concerns the interplay between the sufficiency of the evidence and thetwo core principles of criminal law referred to in Biniaris at para. 33: the accused’s right to be presumed innocent and the Crown’sobligation to prove its case beyond a reasonable doubt. 13 As the accused has the right to the presumption of innocence, he or she is under no obligation to present an evidentiaryfoundation to raise a reasonable doubt. This is in stark contrast to the burden which rests on the Crown to call the necessary evidence toprove its case beyond a reasonable doubt.

The point being, while it is necessarily an error in law to convict an accused in the absence ofevidence, the reverse is not true. It is not an error in law to acquit an accused where there is some evidence of the offence; if there is anerror, it would be either an error of mixed fact and law or an error of fact. See Lampard v.

The Queen, (SCC), [1969]S.C.R. 373 (at p. 381): In a criminal case (except in the rare cases in which a statutory provision places an onus upon the accused) it can sometimes be said as amatter of law that there is no evidence on which the Court can convict but never that there is no evidence on which it can acquit; there isalways the rebuttable presumption of innocence. See also Sunbeam Corporation (Canada) Ltd. v. The Queen, (SCC), [1969] S.C.R. 221 (at p. 231): “It is well-settledthat the sufficiency of evidence is a question of fact and not a question of law .…” And, as well, Schuldt v.

The Queen, (SCC), [1985] 2 S.C.R. 592 (at p. 611): .… Given the presumption of innocence and the undisplaced burden of proof which rests with the Crown, there is, therefore, someevidence upon which the trial judge could rest his finding [of reasonable doubt] and that finding, if in error, a matter upon which I shallrefrain from expressing any views, would be an error of fact, not of law. 14 As well, see the more recent decision of R. v.

Powell, 2010 ONCA 105, 99 O.R. (3d) 671, where Juriansz J.A. wrote onthe interaction between the sufficiency of the evidence and the presumption of innocence, as well as on what constitutes questions of lawalone on acquittal appeals. He concluded, after considering Lampard, Schuldt and Sunbeam (at para. 55): The presumption of innocence means there is no burden on an accused to place a factual foundation before the trial judge to establish theexistence of reasonable doubt.

The Crown’s appeal, insofar as it attacks the trial judge’s assessment of the credibility, reliability andweighing of the evidence, including the circumstantial similar fact evidence, does not raise questions of law alone. This court is withoutjurisdiction to entertain an appeal on these grounds. [emphasis added] 15 Finally, in the recent decision of the Supreme Court of Canada in R. v.

J.M.H., 2011 SCC 45, 421 N.R. 76, Cromwell J.,for a unanimous court, wrote (at para. 39): .… As I explained earlier, the principle set out in Schuldt (and many other cases) is that a reasonable doubt does not need to be based onthe evidence; it may arise from an absence of evidence or a simple failure of the evidence to persuade the trier of fact to the requisitelevel of beyond reasonable doubt. The Court has twice, in Schuldt and G.B. [ (SCC), [1990] 2 S.C.R. 57], explained theproper basis of the decision in Wild [ (SCC), [1971] S.C.R. 101].

It is only where a reasonable doubt is tainted by alegal error that appellate intervention in an acquittal is permitted. [emphasis added]

16 Based on the foregoing, it may be said that, while it would be an error in law to convict in the absence of an evidentiaryfoundation on any essential element of the offence, it would not be an error in law to acquit in the absence of an evidentiary foundationfor the reasonable doubt.

It can also be said that, while appellate intervention in an acquittal is not permitted when the alleged errorrelates to whether the evidence is sufficient to raise a reasonable doubt (as that is not a question of law alone), it is permitted when it isalleged that the reasonable doubt is tainted by legal error (as that is a question of law). 17 Three more points on the Crown’s limited right to appeal against acquittals: 1) appellate courts must take great care to “avoid seizing on perceived deficiencies in a trial judge’s reasons for acquittal to create aground of ‘unreasonable acquittal’” (R. v.

Walker, 2008 SCC 34 at para. 2, [2008] 2 S.C.R. 245); 2) “unreasonable verdict” and “miscarriage of justice” cases offer little assistance to an appellate court’s determination of whatconstitutes, for s. 676(1)(

a) jurisdictional purposes, an error of law alone (see J.M.H. at para. 35); and 3) acquittals are not lightly overturned (see R. v. Sutton, 2000 SCC 50 at para. 2, [2000] 2 S.C.R. 595). 18 On this last point, it is clear that the test the Crown must meet is onerous. In order to be successful, the Crown mustclear two hurdles. First, as has been explained, the Crown can only appeal an acquittal on a point of law (see s. 676(1)(a)). If the Crownfails here, an appellate court would be without jurisdiction to hear the matter. 19 Second, there must be a nexus between the error in law and the acquittal.

The alleged error must be directly andconcretely related to the acquittal (see R. v. Huot, (MB CA), [1969] 1 C.C.C. 256 (Man. C.A.)). If the legal error hasno bearing on the acquittal, appellate intervention would be unwarranted (see R. v. Barros (R.), 2011 SCC 51 at para. 79, 421 N.R. 270;R. v. Graveline, 2006 SCC 16 at paras. 13-16, [2006] 1 S.C.R. 609; Sutton at para. 2; and Vézeau v. The Queen, (SCC),[1977] 2 S.C.R. 277 at 291-92). Moreover, the degree of certainty required with respect to the nexus hurdle is relatively high.

As wasstated very recently in Barros, the Crown must satisfy the appellate court with “a reasonable degree of certainty” “that had the [legal]errors not occurred, there would not necessarily have been an acquittal” (at para. 79). See also Graveline at para. 14. 20 As a result, the Crown will have to overcome these hurdles for each ground it now raises. If a ground does not raise aquestion of law alone, this court would be without jurisdiction to entertain it.

If it does raise a question of law, the court would enter intoa limited weighing of the evidence to determine whether it is satisfied with a reasonable degree of certainty that, had the judge taken acorrect view of the law, there would not necessarily have been an acquittal. If it is so satisfied, the court would be able to fully considerthat ground on its merits. 21 For the reasons that follow, we have concluded that the Crown has been unable to overcome these s. 676(1)(

a) hurdleson any of the grounds it advanced. As a result, we are of the view that this appeal should be dismissed. ANALYSIS AND DECISION ON JURISDICTION 22 It is against the backdrop of the Crown’s limited right to appeal acquittals that the Crown’s grounds of appeal must beconsidered.

i) Did the judge err in his assessment and treatment of the complainant’s evidence by not complying with the legalrequirements in relation to the evidence of children? 23 It is well settled that questions concerning credibility findings, the weighing of evidence, the sufficiency of evidence toprove guilt and the existence of reasonable doubt generally do not raise questions of law. The crucial issue on this appeal is whether thejudge’s alleged mishandling of the child complainant’s evidence raises a question of law alone.

The Supreme Court of Canada recentlyreviewed the situations in which, on acquittal appeals, alleged shortcomings in a judge’s assessment of the evidence constitute an error oflaw (see J.M.H. at paras. 24-39). Cromwell J., speaking for a unanimous court, set out and explained four situations, noting it may notbe an exhaustive list: 1) It is an error of law to make a finding of fact for which there is no supporting evidence.

However, this principle doesnot, in general, apply to a decision to acquit based on a reasonable doubt because an acquittal is not a finding of fact, but instead aconclusion that the standard of reasonable doubt has not been met. 2) The legal effect of findings of fact or of undisputed facts raises a question of law. 3) An assessment of the evidence based on a wrong legal principle is an error of law.

Failure to appreciate the evidencecannot amount to an error of law unless the failure is based on a “misapprehension of some legal principle” (at para. 29). 4) The judge’s failure to consider all of the evidence in relation to the ultimate issue of guilt or innocence is an error of law. 24 Acquittals will typically come about as a result of the trier of fact not being convinced beyond a reasonable doubt of anaccused’s guilt.

Cromwell J. underscored the jurisdictional difficulties the Crown will face to convince appellate courts that a judge’sassessment of the evidence is an error of law when the appeal is from an acquittal premised on reasonable doubt (at para. 29). He alsounderlined the concurring reasons of McLachlin J. (as she then was) in R. v. B.(G.), (SCC), [1990] 2 S.C.R. 57 at 79 (B.(G.) No. 2), which also dealt with the Crown’s jurisdictional hurdles (J.M.H. at para. 30): …. … “In the absence of . . . misdirection the law is clear that doubts about the reasonableness of the trial judge’s assessment of the

evidence [in the context of a Crown appeal of an acquittal] do not constitute questions of law alone ….” 25 Cromwell J. concluded in J.M.H. (at para. 39) that unless the reasonable doubt is tainted by legal error, any alleged errorin reaching that conclusion will not rise to the level of an error in law.

Moreover, the legal error must be sufficiently serious to satisfy anappeal court with a reasonable degree of certainty that, had the judge taken the correct view of the law, the accused would not have beenacquitted. 26 In determining whether the judge committed such an error of law, it is first necessary to consider the legal principles inrelation to the evidence of children. In R. v. B.(G.), (SCC), [1990] 2 S.C.R. 30 (B.(G.) No. 1), Wilson J. said that acourt “should take a common sense approach when dealing with the testimony of young children” (at p. 54).

She explained that thereshould be a somewhat greater tolerance for inconsistencies and mistakes when assessing the evidence of young children, whilenevertheless not relaxing the standard of proof. 27 In R. v. W.(R.), (SCC), [1992] 2 S.C.R. 122, McLachlin J. (as she then was) stated that a court wouldfall into error if it automatically discounted a child’s evidence without regard to the particular circumstances of the case.

She alsoemphasized that a court should approach a child’s evidence “not from the perspective of rigid stereotypes, but on what Wilson J. called a‘common sense’ basis, taking into account the strengths and weaknesses” in each case (at p. 134). 28 In R. v. F.(C.C.), (SCC), [1997] 3 S.C.R. 1183, the Supreme Court elaborated on how judges shouldtreat the evidence of children and the use of the videotaped statements under s. 715.1 of the Code. Cory J. specifically discussed theeffect of an inconsistency between a child’s viva voce testimony and the videotaped statement.

He explained that the adopted videotapedstatement and the testimony at trial comprise the entire evidence-in-chief of the child. He stated that any questions which ariseconcerning the veracity and reliability of the statement “will be matters for the trier of fact to consider in determining how much weightthe videotaped statement should be given” (at para. 46).

He concluded that any inconsistencies or contradictions between the evidenceand videotaped statement go to the weight, not to the admissibility, of that statement. 29 With these principles in mind, it is next necessary to determine whether the judge committed an error of law in relationto his assessment and treatment of the complainant’s evidence. The Crown makes the point that it is now well settled in criminal casesthat the question of whether the judge properly applied a legal standard to the facts is a question of law (see R. v. Shepherd, 2009 SCC 35at para. 20, [2009] 2 S.C.R. 527).

It submits that, as the judge failed to properly apply the law relating to the treatment of evidence ofchild witnesses, it has raised a question of law. 30 However, simply because the Crown says a question is one of law does not necessarily make it so. While identifying aquestion as one of law may sometimes appear to give this court the jurisdiction to consider it, a closer review of the question may take itaway. See R. v. Odeon Morton Theatres Ltd.

And United Artists Corp. (1974), (MB CA), 45 D.L.R. (3d) 224 (Man.C.A.), where Freedman C.J.M., for the majority, wrote (at p. 226): Manifestly the problem whether the appeal involves a question of law alone is not one to be determined in the abstract but rather againstthe actualities of the record. It is not usually difficult for an experienced Crown counsel to frame an appeal in language suggesting that aquestion of law is there involved. In that way a prima facie basis for the Court’s jurisdiction to hear the appeal is made to appear.

But aground of appeal thus framed may on analysis prove to be without validity, for one of two reasons. It may, in the first place, be whollywithout support in the record – a theoretically good ground poised, as it were, in the air but not rooted in the factual situation facing theCourt. Or, secondly, it may on examination prove to involve questions of fact rather than of law. Its form may give jurisdiction but itssubstance deny it. .... 31 The question remains: Can a judge’s alleged mistreatment of the evidence of a child witness amount to a question oflaw?

Not many courts have had occasion to determine this question in the context of a Crown appeal from an acquittal. In R. v. W.H.M.(1990), (PE SCAD), 87 Nfld. & P.E.I.R. 339 (P.E.I.S.C. (A.D.)), aff’d (SCC), [1992] 1 S.C.R. 984,the Crown appealed the accused’s acquittals on sexual offence charges involving a 14-year-old complainant.

On the question of whetherthe judge erred by misdirecting himself on the law or the application of the law as it relates to the issue of credibility and the testimonyof a child witness in a sexual assault case, the majority of the Prince Edward Island Supreme Court, Appeal Division, dismissed theappeal, stating (at paras. 37-38): I take these comments [by Wilson J. in B.(G.) No. 1] to mean that while the courts should use discretion when assessing the credibility ofyoung children, the ultimate burden of proof beyond a reasonable doubt is still the same whether the court is dealing with child witnessesor adults.

It is important to note, I believe, that Madam Justice Wilson spoke of child witnesses and young children. There is noindication what exactly is meant by these terms in terms of years of age. The complainant in the R. v. G.B. et al. (No. 2) case was sevenyears of age. The complainant in the R. v. G.B. et al. (No. 1) case was five years old at the time of the alleged offence and thecomplainant in the R. v. G.B. et al. (No. 3) case was eight years old at the time of the alleged offence and nine years old at the time ofthe trial.

The complainant in this case was 14 years old at the time of trial and it is not clear from the judgment of Madam Justice Wilsonwhether the comments she made apply to such an age. In any event, I am not satisfied that the trial judge made any error in assessing thecredibility of the complainant in this case. I, therefore, am unable to find that the trial judge misdirected himself on the law or the application of the law as it relates to the issue of

credibility. I dismiss this ground of appeal as well. 32 In dissent, McQuaid J. (ad hoc) held that the trial judge had applied the wrong standard to the complainant’s evidence,in light of the Supreme Court of Canada’s decision in B.(G.) No. 1. As such, he found an error of law and would have ordered a newtrial. On appeal to the Supreme Court of Canada, the court agreed with the majority that the judge made no error in law. It issued thefollowing brief oral judgment: This appeal comes to us as of right. We are all of the view that the appeal should be dismissed.

We agree with the conclusions of themajority of the Appeal Division of the Supreme Court of Prince Edward Island that the trial judge made no error of law with respect tothe standard of proof he applied, the proper consideration of the evidence before him, and the issue of credibility of a child witness. [emphasis added] 33 Another instructive case is the Quebec Court of Appeal’s decision in R. c. Brouillard, 2006 QCCA 1263 . Inthat case, a 37-year-old intellectually disabled patient alleged that a personal care attendant in the hospital where she resided had sexuallyassaulted her.

The accused was acquitted, although the judge had rejected his version of events, because the Crown had failed to satisfythe judge of the accused’s guilt beyond a reasonable doubt. The Crown appealed, alleging that, in light of the complainant’s intellectualdisability, the judge erred in law by applying an elevated standard of proof to her evidence. The appeal court drew an analogy betweenintellectually disabled complainants and child complainants.

It reviewed the reasons of the judge, noting the concerns in regard tocertain inconsistencies and contradictions and the analysis that led to the reasonable doubt acquittal.

The appeal court concluded “quel’erreur soulevée par l’appelante ne porte pas sur une question de droit,” which translates to “that the error alleged by the Crown did notinvolve a question of law” (at para. 102). 34 The facts in the above cases led those appellate courts to conclude that the alleged errors relating to the treatment andassessment of the evidence of child witnesses did not amount to questions of law. 35 The legal principles created by the Supreme Court of Canada regarding child witnesses are more in the nature of aframework for analysis rather than strict legal rules.

They are intended to inform the judge’s weighing of any evidence given by a childwitness. While a judge would err in law if there was a sound basis to conclude that a finding of reasonable doubt leading to an acquittalwas tainted by a misapplication of these principles, appellate courts must show restraint in finding such an error.

Recent case law fromthe Supreme Court of Canada is clear that, when the Crown seeks to appeal an acquittal, appellate courts should be slow to interfere witha judge’s handling of the evidence and credibility findings as they will generally not raise questions of law (see J.M.H. at para. 24; R. v.Côté (A.), 2011 SCC 46 at para. 51, 421 N.R. 112; and R. v.

Katigbak (R.), 2011 SCC 48 at para. 79, 422 N.R. 1). 36 In this case, the Crown argues that the judge placed too much weight on minor inconsistencies in the childcomplainant’s evidence, failed to make the legally required allowances as a result of her being a child and that, as a result, he erred inlaw in assessing her evidence.

For the reasons that follow, we are of the view that the alleged error relating to the treatment andassessment of the evidence of the complainant, if there is error, does not amount to an error of law alone. 37 While it would have been preferable if the judge had adverted to the leading cases regarding child witnesses, it is clearfrom the record that he was made aware of them. In addition, the record clearly shows that the judge knew that the complainant in thiscase was a child.

He stated: “The female complainant, at the time of the trial, was 15 years old, soon to be 16 ….” Common sensedictates that the child testimony concerns raised by the Supreme Court of Canada are typically heightened the younger the child andlessened the closer the child is to adult age. Here, the complainant was not a child of tender years. 38 There is no need to recite here the numerous statements by the judge in his reasons for acquittal to the effect that, basedon all of the evidence, he had a reasonable doubt of the guilt of the accused.

The Crown needed to demonstrate that the judge’sreasonable doubt was sufficiently tainted by legal error to warrant appellate intervention. The Crown has not persuaded us that the judgemisapprehended any legal principle related to child witnesses, or that he failed to take the mandated “common sense” approach to thecomplainant’s testimony. We cannot conclude that the judge misdirected himself. 39 In the result, we would conclude that the Crown has been unable to overcome its s. 676(1)(

a) hurdles on this ground. ii) Did the judge misapply s. 715.1 of the Code? 40 The complainant gave a videotaped statement to the RCMP about the incidents giving rise to the charges in the case atbar. The Crown sought to have the statement admitted into evidence at trial pursuant to s. 715.1(1) of the Code. A voir dire was held. After viewing the videotaped statement in the courtroom, the complainant adopted it, thus fulfilling one of the requirements of s. 715.1.

The judge issued a ruling, admitting the videotape into evidence. 41 The Crown argues that the judge erred in law when he said in his reasons for acquittal, in regards to the videotapedstatement, that “its admissibility is also predicated on the ability of the accused to challenge it on cross-examination.” It is not the law,the Crown argued, that a child complainant must have a viva voce memory of the incident where there is no confirmatory evidence.

42 The judge’s above-mentioned statement is clearly an incorrect statement of the law. Once the videotaped statement metthe requirements of s. 715.1, which the judge found had occurred, and it was admitted into evidence for the truth of its contents, it thenbecame evidence in the cause like all other evidence. If a complainant is unable to testify in court about an incident she spoke of in herstatement, and is thus unable to be cross-examined on it, such inability may go to the weight the judge decides to place on the statement,but it is not relevant to its already-determined admissibility.

See F.(C.C.) at paras. 40-46 and R. v. L. (D.O.), (SCC),[1993] 4 S.C.R. 419 at 456-61. 43 However, when the impugned words are read in the context of the paragraph and the entire record is reviewed, we aresatisfied that the judge simply misspoke when he referred to “admissibility” of the videotaped statement. He had already admitted thestatement after holding a two-day voir dire.

When he said the “admissibility” of the statement, he meant its “reliability.” The followingis the paragraph from which the impugned statement arises: In my judgment, absent some corroborating evidence regarding the second incident, I am not prepared to rely in the comments of thevideo statement unaccompanied by any memory of the event when asked about it on cross-examination.

Although the rationale foradmitting a video statement, in the first place, is to attempt to have a record of events closer to the incident, its admissibility is alsopredicated on the ability of the accused to challenge it on cross-examination. When it is met with a lack of any memory, as distinct fromsome memory, the reliability of the video statement on that issue is questionable, especially when there is no other evidence of theincident. [emphasis added] 44 It is clear from the above that the main focus of his comments was on reliability.

In any event, the key part of hisreasons on this incident stated that, without some corroborating evidence over and above the statement, and in the absence of anymemory by the complainant about the event when questioned in cross-examination, the reliability of the statement was questionable. That was the rationale he gave for acquitting the accused of the charges relating to this incident. Indeed, the judge gave two reasons forquestioning the reliability of the statement on this incident: the absence of corroboration and the lack of any viva voce evidence of theincident by the complainant at trial.

With respect to the first reason, the judge was well aware that corroborating evidence is notrequired. He stated: .… It is important to note that there was very little evidence on the material allegations, other than the evidence of the complainant. There were no witnesses who actually viewed the alleged misconduct. There was no medical evidence to support the fact that sexualactivity occurred. There was no physical evidence which would comfort a court in assessing the reliability of the complainant'sevidence.

Coupled with the lack of such evidence, which I acknowledge is not necessary in law, on its face the conduct of thecomplainant is somewhat inconsistent with the harm which she alleged. [emphasis added] 45 The judge was entitled to look for corroborative or confirmatory evidence, and to have concerns if none was found. Keeping in mind the legal rule (s. 274 of the Code) that such corroboration is not required, a trier of fact in a case such as this is entitledto look for confirmatory evidence. See F.H. v.

McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41 (at para. 80): Corroborative evidence is always helpful and does strengthen the evidence of the party relying on it as I believe Rowles J.A. wasimplying in her comments. However, it is not a legal requirement and indeed may not be available, especially where the allegedincidents took place decades earlier. Incidents of sexual assault normally occur in private. 46 The second reason given for questioning the statement’s reliability on this incident was the complainant’s lack ofmemory about the event at trial. This concern is not inappropriate.

In F.(C.C.), Cory J., after commenting upon the inherent reliabilityof a statement admitted under s. 715.1, specifically addressed the situation where a child complainant who had given a prior videotapedstatement did not recall the events described in the video at the time of trial. He stated (at para. 44): Moreover, where the complainant has no independent memory of the events there is an obvious necessity for the videotaped evidence.

In Meddoui [(1990), (AB CA), 61 C.C.C. (3d) 345], it was recommended that in such circumstances, the trier of factshould be given a special warning (similar to the one given in Vetrovec v. The Queen, (SCC), [1982] 1 S.C.R. 811) ofthe dangers of convicting based on the videotape alone. In my view, this was sage advice that should be followed.

47 Cory J., speaking for a unanimous court, accepted that a cautionary warning is appropriate in such situations. When thecomplainant has no present recollection of the events, the trier of fact should be alive to the danger of convicting on the basis of thevideotaped statement alone, without confirmatory or corroborating evidence. 48 As can be seen from the above, the two reasons the judge gave for questioning the reliability of the statement on thisincident related to the strength of the evidence and the weight he decided to place on it.

The Supreme Court made clear in F.(C.C.) thatit is for the trier of fact to determine how much weight to give a videotaped statement that has been admitted into evidence (at para. 46): After the videotaped evidence has been admitted, any questions which arise concerning the circumstances in which the video was made,the veracity of the witness’ statements, or the overall reliability of the evidence, will be matters for the trier of fact to consider indetermining how much weight the videotaped statement should be given. 49 Here the judge had already admitted the statement after the voir dire.

Thus, the Crown’s argument does not relate to theadmissibility of the evidence, but rather to the manner in which it was treated by the judge in his reasons. Even though the statement wasadmitted under s. 715.1, the judge must still weigh the evidence’s reliability and in doing so he may conclude that it is unreliable orinsufficient. Any error in that regard would not be an error in law. 50 Again we would conclude that the Crown has failed to overcome its s. 676(1)(

a) hurdles. iii) Relying on myths and stereotypes in assessment of evidence 51 A further issue raised by the Crown was that the reasons of the judge seem to reveal two potential myths or stereotypesthat may have improperly influenced his decision: first, that delayed disclosure of a sexual assault negatively impacts complainantcredibility; and second, that a complainant would not return to an environment where she had previously been assaulted. The first,delayed disclosure, is tied to the repealed doctrine of recent complaint (see s. 275 of the Code).

The judge stated that “[s]low reportingand returning to the environment in which the alleged incidents occurred are matters which could be inconsistent with the allegations.” 52 The Crown asserts the above-mentioned words reflect an unacceptable stereotype that has been widely rejected: thatvictims of sexual assault do not return to the place of the assault. The Crown says this is a “rape myth” and points to R. v. E.C.S.P., 2003MBQB 93 at paras. 34-35, as its authority.

The Crown says that, by relying on myths or stereotypes, the judge erred in law. 53 The first question to be addressed is whether or not the judge’s arguably stereotypical comments can ground a Crownappeal under s. 676(1)(a). In R. v.

Ewanchuk, (SCC), [1999] 1 S.C.R. 330, L’Heureux-Dubé J. made it clear that insexual assault cases (at para. 95): .… Complainants should be able to rely on a system free from myths and stereotypes, and on a judiciary whose impartiality is notcompromised by these biased assumptions. …. [emphasis added] 54 In brief concurring reasons, Justice McLachlin (as she then was) stated (at para. 103): I agree with the reasons of Justice Major. I also agree with Justice L’Heureux-Dubé that stereotypical assumptions lie at the heart ofwhat went wrong in this case.

The specious defence of implied consent (consent implied by law), as applied in this case, rests on theassumption that unless a woman protests or resists, she should be “deemed” to consent (see L’Heureux-Dubé J.). On appeal, the ideaalso surfaced that if a woman is not modestly dressed, she is deemed to consent. Such stereotypical assumptions find their roots in manycultures, including our own. They no longer, however, find a place in Canadian law. [emphasis added] 55 In the subsequent case of R. v.

D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, the Supreme Court cautioned against bias orstereotypical assumptions of how persons (particularly children) subjected to sexual abuse should react. The majority made thefollowing statement regarding delayed disclosure (at para. 63): Application of the mistake reflected in the early common law now constitutes reversible error. See R. v. W. (R.), (SCC),

[1992] 2 S.C.R. 122, per McLachlin J. (as she then was) at p. 136: Finally, the Court of Appeal relied on the fact that neither of the older children was “aware or concerned that anything untoward occurredwhich is really the best test of the quality of the acts.” This reference reveals reliance on the stereotypical but suspect view that thevictims of sexual aggression are likely to report the acts, a stereotype which found expression in the now discounted doctrine of recentcomplaint.

In fact, the literature suggests the converse may be true; victims of abuse often in fact do not disclose it, and if they do, it maynot be until a substantial length of time has passed. The significance of the complainant’s failure to make a timely complaint must not be the subject of any presumptive adverse inferencebased upon now rejected stereotypical assumptions of how persons (particularly children) react to acts of sexual abuse: …. [emphasis added] 56 While the above cases, together with R. v. Seaboyer; R. v. Gayme, (SCC), [1991] 2 S.C.R. 577, and R.v.

Osolin, (SCC), [1993] 4 S.C.R. 595, are the leading decisions on the issue of myths and stereotypes, they did notfocus on the interplay between stereotypical assumptions and credibility findings and when deference is owed on appellate review. CoryJ. addressed this interaction in the Supreme Court of Canada’s decision in R. v. S.(R.D.), (SCC), [1997] 3 S.C.R. 484,which was an appeal on an acquittal. While it was not a sexual assault case, Cory J., for the majority, warned judges not to assess awitness’s credibility on the basis of stereotypical assumptions (see para. 120).

He explained (at para. 129): However, it is also the individualistic nature of a determination of credibility that requires the judge, as trier of fact, to be particularlycareful to be and to appear to be neutral. This obligation requires the judge to walk a delicate line. On one hand, the judge is obviouslypermitted to use common sense and wisdom gained from personal experience in observing and judging the trustworthiness of a particularwitness on the basis of factors such as testimony and demeanour.

On the other hand, the judge must avoid judging the credibility of thewitness on the basis of generalizations or upon matters that were not in evidence. [emphasis added] 57 Cory J. added that when judges do not heed that warning, they leave themselves open to allegations of bias (see para.133). It is trite to say that if a reasonable apprehension of bias arises, appellate intervention on a Crown acquittal appeal would bepermitted. However, if the words of a judge do not give rise to an apprehension of bias, deference is owed to the credibility findings.

Heexplained (at paras. 100-101): If a reasonable apprehension of bias arises, it colours the entire trial proceedings and it cannot be cured by the correctness of thesubsequent decision. …. However, if the words or conduct of the judge, viewed in context, do not give rise to a reasonable apprehensionof bias, the findings of the judge will not be tainted, no matter how troubling the impugned words or actions may be.

Therefore, while the appellant is correct that appellate courts have wisely adopted a deferential standard of review in examining factualdeterminations made by lower courts, including findings of credibility, it is somewhat misleading to characterize the issue in this appealas one of credibility alone. If Judge Sparks’ findings of credibility were tainted by bias, real or apprehended, they would be madewithout jurisdiction, and would not warrant appellate deference.

On the other hand, if her findings were not tainted by bias, then the caseturned entirely on her findings of credibility and an appellate court should not interfere with those findings, unless they were clearlyunreasonable or not supported by the evidence. …. [emphasis added] 58 He also added that there must be a “sound basis” for any bias conclusion (at para. 141) or “clear evidence,” asL’Heureux-Dubé J. and McLachlin J. (as she then was) explained in S.(R.D.) when outlining their approach to the test of reasonableapprehension of bias (at para. 49): Before concluding that there exists a reasonable apprehension of bias in the conduct of a judge, the reasonable person would require

some clear evidence that the judge in question had improperly used his or her perspective in the decision-making process; this flows from the presumption of impartiality of the judiciary. …. [emphasis added] 59 To sum up, because credibility findings are questions of fact, the Crown generally has no right to appeal from an acquittal on a ground that alleges an error with respect to such a finding. Similarly, the Crown cannot appeal a judge’s conclusion that there exists a reasonable doubt, as that does not raise a question of law.

Nevertheless, the credibility of a witness should be judged on the evidence before the judge, not on stereotypical assumptions. A judge would err in law if there is a sound basis to conclude, on appellate review, that a credibility finding was not based on a proper evidentiary foundation, but rather on inappropriate judicial stereotyping. 60 The Supreme Court of Canada, in the recent aforementioned decision of J.M.H ., faced a similar situation to the case at hand. It involved an acquittal in a sexual assault case involving a 17-year-old complainant.

In that case, the trial judge had a number of concerns regarding consent. One such concern was tha t the complainant had returned to the accused after the alleged sexual assaults. This caused the trial judge to ask himself “why did [the complainant] insist in going back to the same bed that she had been violated in?” (at para. 9). In the end, the trial judge was not satisfied beyond a reasonable doubt and acquitted the accused.

Ultimately, the Supreme Court of Canada concluded that “a fair reading of the trial judge’s reasons discloses that he had reasonable doubt based on his consideration of all the evidence” (at para. 23) and upheld the acquittals on the sexual assault charges. 61 Unlike the instant case, it does not appear that the Crown in J.M.H . raised a concern over bias or inappropriate judicial stereotyping: that a complainant would not return to an environment where she had previously been assaulted. Speculating on the reason for not doing so would be improper.

Suffice it to say that on the facts in that case, the judge’s words did not attract any comment on appellate review. 62 Returning to our case, to determine whether the judge’s comments reached the level of bias sufficient to allow the Crown to appeal on that ground, i t is necessary to examine the record as a whole and read the comments in context. Below is what the judge said, in his s. 715.1 voir dire reasons, with respect to the complainant’s delayed disclosure and her decision to return to live with her aunt and the accused after the incidents.

He stated: For a young girl with no place left to go, it seems reasonable to me that she would try to keep this to herself at least initially . To disclose it might well threaten the stability that she had obtained, especially her relationship with her aunt, who she admits to being close to. When it continued, she finally left and went back to her mother. But she didn’t disclose the abuse then, probably because life with her mother was problematic.

She went back to the accused’s home again, she had no other place to go. [emphasis added] 63 The following is what the judge stated in his acquittal reasons: Slow reporting and returning to the environment in which the alleged incidents occurred are matters which could be inconsistent with the allegations. . . . . . … That decision is inconsistent with the conduct of the accused that she alleges, since had it occurred, her aunt’s home was surely not a safe place to be. The Crown argues and the complainant testified that she had no place else to go, and I accept they have a point.

Notwithstanding, I must at least acknowledge that it’s possible that she went back because she was safe there. [ emphasis added] 64 As can be seen from the above, his impugned statements are certainly less than unequivocal.

While relying on stereotypes may indicate that a judge has been influenced by a legally improper consideration, when the reasons of the judge are read in their entire context, we are not satisfied that the Crown has established in this case the necessary evidentiary basis to ground a Crown appeal from an acquittal. 65 In the result, we would conclude once again that the Crown has failed to surmount its s. 676(1) (

a) hurdles.

iv) The other alleged errors relating to the evidence 66 The Crown raised additional alleged legal errors. We would not give effect to any of these grounds. 67 First, the Crown states that the judge erred in not ensuring that certain evidence from the accused’s wife, whichcontradicted the complainant on a relatively peripheral point (in our view), was put to the complainant so she had an opportunity torespond to it. The Crown relied on the rule in Browne v. Dunn. The judge exercised his discretion, as he was permitted to do, in notreducing the weight of the evidence led by the accused.

As this court already stated in R. v. Gaultier (P.A.) (1993), (MB CA), 85 Man. R. (2d) 52, a judge’s application of the rule in Browne v. Dunn does not give rise to a question of law alone for thepurpose of s. 676(1)(

a) of the Code. We see no legal error here. 68 Second, the Crown says that the judge did not deal, at least not clearly, with the second step in W.(D.). It is notobligatory for judges to state in express terms each of the steps in W.(D.), or expressly take each of those steps, so long as it is clear thatthe judge does not inadvertently permit the burden of proof to be lifted from the Crown’s shoulders, and so long as the judge ensures thatthe standard to be met by the Crown, of proof beyond a reasonable doubt, is applied.

See F.H. at paras. 83-84. 69 Reading the judgment as a whole, we are of the view that the judge implicitly considered the second step and found thatthe evidence of the accused did not leave him in doubt. He certainly knew about the second step, having just described it, and, had hebeen left in doubt by the accused’s evidence, he would not have moved to step three.

In our view, there was no shifting of the burden ofproof and there was no error, let alone a legal error. 70 Third, the Crown argued that the judge erred in speculating about certain inquiries that he thought would normally havebeen made of the complainant, and in his conclusion that she was less credible, in the Crown’s words, “on the basis of her inability toremember an event no evidence suggested ever took place.” Even if we were to accept that this might be speculative, we see noGraveline nexus between what may be an error and the verdicts.

CONCLUSION 71 This case has underlined the jurisdictional difficulties the Crown must confront in trying to convince this court that ajudge’s assessment of the evidence, on what was essentially a credibility case, is an error of law when the appeal is from an acquittalpremised on reasonable doubt. In the end, the judge had certain misgivings about the complainant’s credibility arising from certaininconsistencies in her evidence. He was not convinced beyond a reasonable doubt of the accused’s guilt, gave him the benefit of thatdoubt and acquitted him.

Whether that acquittal was reasonable or not is of no moment as the Crown, unlike an accused, cannot appealthe reasonableness of the verdict. 72 In our view, none of the Crown’s alleged errors raise questions of law and, if any did, we are not satisfied with areasonable degree of certainty that, had the judge taken a correct view of the law, there would not necessarily have been an acquittal. 73 As a result, we would dismiss the appeal. J.A. J.A. I agree: J.A.