R. v. Menow, 2013 MBCA 72

Citation: R. v. Menow, 2013 MBCA 72 Date: 20130807 Docket: AR 12-30-07904 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Michel A. Monnin Madam Justice Barbara M. Hamilton Madam Justice Diana M. Cameron BETWEEN: ) E. J. Roitenberg andHER MAJESTY THE QUEEN ) L. C. Robinson ) for the Appellant ) Respondent ) R. N. Malaviya ) for the Respondent- and - ) ) Appeal heard:ROBERT ALEXANDER MENOW ) June 19, 2013 ) (Accused) Appellant ) Judgment delivered: ) August 7, 2013 CAMERON J.A. [1] After trial in Provincial Court, the accused was convicted of one count of sexual assault.

He appeals that convictionclaiming that the trial judge erred by wrongly applying the method of analysis suggested in R. v. W.(D)., (SCC), [1991]1 S.C.R. 742, that she misapprehended the evidence in her application of the analysis and that she erred in requiring him to providecorroborating evidence. Finally, he argues that the trial judge gave insufficient reasons for convicting him. [2] For the reasons that follow, I conclude that the trial judge did not err in her W.(D.) analysis and that her reasons weresufficient.

Background [3] At the time the allegations arose, the accused and the complainant were part of a group of people working for aconstruction company carrying on business in Norway House. The construction company maintained a camp near the community for itsemployees. The trial concerned what occurred between the accused and the complainant one night at the camp. [4] On the night in question, the accused and the complainant, along with a number of other people, went to a social. After the social, they were driven back to the camp in a pick-up truck driven by a co-worker who dropped them off at a camper occupiedby Mr.

Spring (the General Superintendent of the construction company). The party continued at Mr. Spring’s camper. [5] Shortly after arriving at Mr. Spring’s camper the complainant left the party with Mr. Sinclair. The two went to thecomplainant’s cottage where Mr. Sinclair fell asleep on a recliner chair and the complainant fell asleep while sitting on a chair in thekitchen. [6] The allegations that gave rise to the charge occurred after the complainant fell asleep.

Specifically, the complainanttestified that after falling asleep, she awoke in her bed to find the accused on top of her, having vaginal intercourse with her without herconsent. [7] An independent witness, Mr. Charrier, testified for the Crown. He said that he entered the complainant’s cottage andsaw the complainant and the accused in the kitchen. The complainant was leaning with her upper body over a chair and she appeared tobe sleeping and incoherent. He said that the accused was behind her and that neither of them had their pants on. [8] The accused also testified.

He stated that he went to the complainant’s cottage to borrow some liquor. When heentered the cottage, the complainant was in her bed. He sat beside her and after some brief conversation she started kissing him. He saidtheir amorous interaction continued until both realized that they did not have a condom and then it ended. He denied that he engaged insexual intercourse with the complainant.

[ 9 ] As is obvious, the entire case turned on the question of credibility. The trial judge found the accused not to be credible and, based on all of the evidence that she did accept, she convicted him. Decision of the Trial Judge [ 10 ] In reaching her decision, the trial judge undertook a comprehensive review of all of the evidence. She rightly concluded that she was required to assess the evidence in accordance with W.(D.) . She then considered the accused’s evidence and rejected it. She said (at para. 39): …. There are problems with Mr. Menow’s evidence, specifically:

(1) Mr. Menow testified that he and [the complainant] kissed for the first time for about a minute after she stumbled off the back of the truck and he caught her. This was contrary to [the complainant’s] evidence that she sat in the front of the cab of the truck. There is also no corroborating testimony from any other witness that this incident occurred;

(2) Mr. Menow testified that when the group returned to the cottages after the social, [the complainant] tried to take him back to her cabin but he did not want to go as he wanted to drink some more alcohol. This is somewhat of a contradiction as Mr. Menow testified that [the complainant] had alcohol in her cabin and the sole purpose for going to see her was to “borrow some alcohol”;

(3) Mr. Menow’s evidence testimony [ sic ] that [the complainant] was not wearing a shirt when he went into her bedroom was contradicted by [the complainant] and Mr. Charrier’s evidence that [the complainant’s] pants were down at her ankles. Neither testified that [the complainant’s] shirt was removed;

(4) Mr. Menow testified that Ms. Santina Tait was waiting for him in a vehicle when he went to “borrow a bottle” from [the complainant]. There is no evidence to corroborate this;

(5) Mr. Menow testified that he saw Mr. Charrier come into the room and that Mr. Charrier told him to “hurry up man.” This was contradicted by Mr. Charrier’s evidence that he believed that Mr. Menow did not see him. In addition, Mr. Charrier testified that he did not say anything to [the complainant] or Mr. Menow when he quickly flicked on the switch; and

(6) With respect to [the complainant’s] demeanour the next morning, Mr. Menow testified that he saw [the complainant] and that she looked fine. This was contrary to Mr. Spring’s evidence that he could tell something was wrong with [the complainant] and she looked like she had been crying. [ 11 ] Next, the trial judge considered the evidence of the complainant.

She rejected the argument put forward by counsel for the accused (not the same counsel as appeared in this appeal) that despite the fact that he agreed that the complainant “came across as a – a consistent witness, and she stuck to her story, and she definitely had a – a good demeanor in the courtroom,” the complainant was unbelievable because she did not seek help when the evidence showed that Mr. Sinclair and the complainant’s roommate were in the cottage at the time.

The trial judge accepted the complainant’s explanation that she did not want anyone to know what had happened at that time stating that the complainant was “more than likely confused and not thinking clearly” (at para. 43). The trial judge said that she considered the complainant’s evidence to be sincere. [ 12 ] The trial judge noted that the complainant’s evidence was confirmed in a number of areas by the evidence of Mr. Charrier. She found it noteworthy that Mr. Charrier testified that he got along well with the accused. It is obvious from her reasons that she found Mr.

Charrier to be a credible witness. [ 13 ] She concluded her decision by stating “[w]hen I review the evidence as a whole, I am satisfied that the Crown has proven beyond a reasonable doubt that Mr. Menow sexually assaulted [the complainant]” (at para. 48). The Grounds of Appeal [ 14 ] The accused raised three grounds of appeal: 1. That the trial judge erred in the application of the test set out in W.(D.) ; 2. That the trial judge erred in law by requiring corroborating evidence to be called by the accused; and 3.

That the trial judge failed to give sufficient reasons for not believing the testimony of the accused or why a reasonable doubt was not raised.

Analysis 1. That the trial judge erred in the application of the test set out in W.(D.) . [ 15 ] The accused alleges that the trial judge erred in her application of the test set out in W.(D.) in two ways. First, he alleges that she misapplied the first stage of analysis in W.(D.) by considering his evidence in the context of the case as a whole and by conflating the first and second stages of the analysis. Second, he contends that she materially misapprehended or was mistaken regarding certain evidence that she relied on in her determination that he was not believable.

a) Application of the Test in W.(D.) [ 16 ] Every person is presumed to be innocent until the Crown has proven his or her guilt beyond a reasonable doubt. In W. (D.) , the Supreme Court warned that verdicts of guilt should not be based on “whether [triers of fact] believe the defence evidence or the Crown’s evidence” (at p. 757). Rather, the paramount question is whether, on the whole of the evidence, the trier of fact is left with a reasonable doubt about the guilt of the accused.

To ensure the trier of fact remains focussed on the principle of reasonable doubt, the court suggested that the following analysis be undertaken (at p. 758): First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [ 17 ] In support of his position that the trial judge erred in her application of the test set out in W.(D.) , the accused encourages this court to accept the following method of analysis of the first two prongs of that test: • At the first stage of the analysis the only evidence to be considered by the trier of fact is that of the accused.

The trier of fact must not consider any other evidence called in the trial, but rather, must consider the evidence of the accused in isolation.

Internal inconsistencies in the accused’s evidence or other reasons within that evidence are the only basis on which the trier of fact may determine whether an accused is believed or not. • If the evidence of the accused is disbelieved, the trier of fact then proceeds to consider his or her evidence in the context of all of the evidence called at the trial, including the evidence provided by the Crown to determine whether there exists a reasonable doubt as to guilt. [ 18 ] Based on the above approach, the accused argues that the trial judge erred by considering the evidence of the complainant and Mr.

Charrier when she gave her reasons for concluding that the accused was not believable. He alleges that such an analysis amounts to choosing between the evidence of the accused and that called by the Crown. Further, he contends that consideration of the Crown evidence in the manner and order that she did led the trial judge to err in conflating the first and second steps of the W. (D.) analysis, which resulted in her summarily stating in her decision that she did not believe him and that his evidence did not raise a reasonable doubt.

He contends that such a faulty analysis would not have occurred if she had considered his evidence in isolation, as he suggests. [ 19 ] The position of the Crown is that the analysis in W.(D.) is contextual and that the trier of fact is entitled to consider all of the evidence called at the trial. The trier of fact should not consider the accused’s evidence in isolation. [ 20 ] The manner in which evidence can be considered in the application of the test in W.(D.) is a question of law. Therefore, the parties agree, as do I, that the standard of review is correctness. See R. v.

Jaw , 2008 NUCA 2 at para. 54 , 432 A.R. 297 , R. v. Vuradin (F.) , 2011 ABCA 280 at paras. 46-49 , 515 A.R. 25 , R. v. Liberatore (M.V.) , 2010 NSCA 82 at para. 9 , R. v. McIntosh (J.G.) , 2010 ABCA 352 at para. 2 , 493 A.R. 254 . [ 21 ] The issue of whether or not the evidence of an accused should be analyzed in isolation was specifically considered by the Ontario Court of Appeal in the case of R. v. Hoohing , 2007 ONCA 577 (QL) . In that case, the accused appealed their convictions for sexual assault.

They complained that when instructing the jury, the trial judge explained the first prong of the W.(D.) approach by stating “if you accept the evidence favouring the particular accused … and find it to be factually true when weighed against the contradictory evidence you must acquit that accused on that count” (at para. 12). One of the grounds of appeal was that such an instruction had the effect of suggesting to the jury that they should choose between the evidence of the accused and that of the complainant.

Feldman J.A., writing on behalf of the court, rejected that argument and noted that the trial judge properly told the jury that they were not compelled to choose between the evidence favouring the Crown and the evidence favouring the accused (at para. 14). She then stated (at para. 15): He also properly told the jury that they were to weigh the evidence cumulatively and not in isolation. A jury does not consider an accused’s version of events in isolation as if the Crown had led no evidence. When the jury is applying the first two prongs of the three-

pronged test in W.(D.), they are deciding whether they accept the accused’s version of events or whether it leaves them with a reasonabledoubt. Clearly they can only do that by assessing the accused’s evidence and the other evidence that favours the accused in the contextof all the evidence. See R. v. Hull, (ON CA), [2006] O.J. No. 3177 at para. 5 (C.A.).

The evidence of any witness,including an accused, may be believable standing on its own, but when other evidence is given that is contradictory, or casts doubt on theaccuracy or reliability of the witnesses’ evidence, that evidence may no longer be believable, or in the case of an accused, may no longerraise a reasonable doubt. [22] Feldman J.A. noted that the court had recently considered the same wording as that used by the trial judge and heldthat, although it was not the preferred wording, it did not constitute an error (at para. 16): This court recently considered the same impugned wording in the case of R. v.

Campbell, (ON CA), [2003] O.J. No.1352. Relying on its earlier 1996 decision in R. v. D.L.M., [1996] O.J. No. 3596, the court held that the wording in question did notconstitute an error.

In Campbell, the court acknowledged that “it would have been preferable to describe this step in terms of consideringthe accused’s evidence in the context of the entirety of the evidence, since this steers more clearly away from the risk of simply choosingbetween the accused’s evidence and the complainant’s evidence.” However, the court did not consider the language fatal because it doesnot invite the jury to choose between the two versions but recognizes that the jury can only consider the accused’s evidence in the contextof the other evidence. See also R. v. Requina, [1994] O.J. No. 1133 (C.A.) at paras. 5-6.

See also R. v. Chittick (D.S.), 2004 NSCA 135 at paras. 23-24, 228 N.S.R. (2d) 81, and R. v. Mends, 2007 ONCA 669 at para. 18 (QL). [23] Based on the above, I would reject the method of analysis suggested by the accused. To assess the evidence of theaccused in a vacuum ignores the fact that the whole purpose of the trial is to determine whether or not the accused is guilty of theoffence for which he or she is charged. It is impossible for an accused’s evidence to be considered without a factual or contextualbackdrop for the charge itself.

Furthermore, such a method of analysis would effectively prevent the court from considering evidencefavourable to the accused when deciding whether or not to believe him or her. To ignore evidence favourable to an accused person inassessing his or her credibility is contrary to principles of fundamental justice. [24] The accused maintains that the trial judge also fell into error by analyzing his evidence and finding him unbelievable inthe first stage of her analysis.

He says that this order of analysis caused her to conflate the first and second prongs of the W.(D.) test inthat, having already found him unbelievable, there was nothing left for her to consider in respect of the other evidence called in the trial. [25] In the recent case of R. v. Vuradin, 2013 SCC 38 (released after the oral hearing of this matter) Karakatsanis J. writingon behalf of a unanimous court, clearly rejected such a notion when she stated (at para. 21): ….

The order in which a trial judge makes credibility findings of witnesses is inconsequential as long as the principle of reasonabledoubt remains the central consideration. …. [26] Moreover, contrary to the accused’s assertion that the trial judge conflated the first and second stages of the W.(D.)analysis, failure by the trial judge to specifically analyze the second prong of W.(D.) does not necessarily constitute an error in law. SeeR. v. D.K.B., 2012 MBCA 114 at paras. 5-6, and R. v.

Gagnon, 2006 SCC 17 at para. 11, [2006] 1 S.C.R. 621. [27] In Vuradin, this concept was reinforced by Karakatsanis J. when she stated (at para 27): In the result, the trial judge rejected the appellant’s testimony. In Boucher [2005 SCC 72, [2005] 3 S.C.R. 499], Charron J. (dissenting inpart) stated that when a trial judge rejects an accused’s testimony, “it can generally be concluded that the testimony failed to raise areasonable doubt in the judge’s mind” (para. 59).

Similarly, in R.E.M. [2008 SCC 51, [2008] 3 S.C.R. 3], McLachlin C.J. stated that “theconvictions themselves raise a reasonable inference that the accused’s denial of the charges failed to raise a reasonable doubt” (para. 66). [28] In this case, it is clear that the trial judge rejected the testimony of the accused to such an extent that she was left withno reasonable doubt after conducting the first two stages of the W.(D.) analysis. Therefore, the accused’s argument with respect to themanner in which the trial judge undertook the W.(D.) assessment cannot be sustained.

b) Material Misapprehension of the Facts in the Application of W.(D.)

[ 29 ] Alternatively, with respect to his argument regarding W.(D.) , the accused states that when the reasons cited by the trial judge for disbelieving him are carefully considered, it is apparent that they cannot support the finding that he was unbelievable or that his evidence failed to raise a reasonable doubt. He says that many of the reasons given by the trial judge for not accepting his evidence constituted material misapprehensions of the evidence or did not place it in context. In support of his argument he relies on the decision in R. v. J.C.H. , 2011 NLCA 8 , 304 Nfld. & P.E.I.R. 141 .

In that case, the court held that after careful scrutiny of each of the four reasons given by the trial judge for disbelieving the accused’s evidence, none of them survived because they did not accord with the evidence, and therefore, the trial judge’s assessment of the accused’s credibility was fatally flawed. [ 30 ] The Crown argues that the trial judge only misapprehended one piece of evidence, and that the misapprehension was not determinative of her finding that the accused was not believable in the context of all of the evidence.

Further, the Crown argues that findings of credibility are entitled to a high level of deference. [ 31 ] In reviewing the decision of the trial judge, the court can consider the reasons of the trial judge in the context of the entire record and the evidence as a whole. See R. v. Rocha (S.) , 2009 MBCA 26 at para. 31 , 236 Man.R. (2d) 213 , and R. v. R.E.M . , 2008 SCC 51 at para. 37 , [2008] 3 S.C.R. 3 . [ 32 ] The standard of deference to be accorded to the trial judge’s determinations regarding credibility is high.

As noted by Chartier J.A. (as he then was) in Rocha (at para. 35 ): .… It has been stated repeatedly and recently, that rarely will deficiencies in the trial judge’s credibility analysis warrant appellate intervention. …. [ 33 ] I turn now to the specific points complained of by the accused. First, the accused states that the trial judge misapprehended the evidence in the first problem she identified.

The trial judge said that the accused’s testimony that he and the complainant first kissed when he was helping her out of the back of the pick-up truck was contradicted by the complainant’s testimony that she sat in the front cab of the truck. The accused asserts that, in fact, the complainant testified that she was in the box of the pick-up truck. [ 34 ] I agree that the accused is correct when he states that the trial judge misapprehended the evidence. A review of the transcript shows that the complainant testified that she was in the box of the pick-up truck.

Specifically, she was cross-examined as follows: Q You stated that you went back to the cabins with the truckload of guys, they gave you a ride back. Right? From the – from the social. A Yeah. Q Was Mr. Menow, my client, in the vehicle? A Yes, he was. Q When you got out of the vehicle did you say anything to him or touch him or kiss him in any way whatsoever? A No, because he was in the backseat of the truck and I was in the box of the truck. Q Right. I mean when you got out of the vehicle.

A No. [ 35 ] It is apparent that the trial judge mixed up the complainant’s testimony by reversing the positions of the complainant and the accused in the pick-up truck. In my view, this simple mix up is not material. At the end of the day, the point is the same: the complainant testified that she did not touch or kiss the accused when she got out of the pick-up truck because they were in different parts of the truck.

Most importantly, the complainant did not agree with the accused’s testimony that they were both in the box of the truck and that after he jumped out of the box of the truck he helped her off. [ 36 ] With respect to the second problem identified by the trial judge, the accused argues that she materially misapprehended his evidence when she found that he contradicted himself. Specifically, the accused testified that when the group returned to the camp after the social, the complainant tried to take him back to her cottage. He said that he did not want to go with her because he wanted to drink some more.

Later, he testified that he knew that the complainant had alcohol in her cottage and that the sole reason why he went to her cottage later in the evening was to borrow a bottle of liquor. He states that the trial judge did not consider the context in which the above evidence was given. [ 37 ] A review of the transcript shows that the trial judge did not misstate or misapprehend the evidence.

In my view, she was entitled to find a contradiction in the area she identified and that finding is entitled to deference. [ 38 ] Next, the accused argues that the trial judge was mistaken in the third problem that she identified when she said that the complainant and Mr. Charrier contradicted the accused’s testimony that when he went into the bedroom, the complainant was not wearing a shirt. In making this finding, she noted that neither Mr. Charrier nor the complainant testified that her shirt was removed, but both testified that the complainant’s pants were down.

The accused argues that contrary to the trial judge’s statement, neither the complainant nor Mr. Charrier testified as to whether or not the complainant was wearing a shirt. He argues that because there was no

evidence either way, a contradiction cannot be found to exist. [ 39 ] It is true that neither party was asked whether or not at the material time the complainant was wearing a shirt. However, while the trial judge could have more carefully formulated her reasons, the point is that, again, the accused’s evidence was contradicted by that of the complainant and Mr. Charrier who both testified that the accused and the complainant had their pants off.

This was contrary to the accused’s testimony that he had his pants on at all times during his interaction with the complainant in her house. [ 40 ] Regarding the fifth problem that the trial judge identified, the accused argues that she misapprehended the evidence when she found that the accused’s testimony that he had a conversation with Mr. Charrier in the complainant’s cottage was contradicted by Mr. Charrier’s evidence that he believed that the accused did not see him. [ 41 ] The accused argues that it was wrong for the trial judge to place any weight on Mr.

Charrier’s “belief” or impression that the accused did not see him come into the room. I disagree. Mr. Charrier testified that when he entered the complainant’s cottage he briefly turned on the light and saw the complainant, who appeared to be sleeping, bent over the chair with her pants pulled down and the accused behind her with his pants pulled down. Mr. Charrier was cross-examined on this point as follows: Q You said that you didn’t think that [the accused] knew that you were there. He didn’t notice that all of a sudden the light came on for a second and off again? A No. Q How does somebody not notice that?

A I don’t know. Q So you think he was extremely focused on what he was doing and he didn’t see you? A Could very well be. I can’t – I can’t speak for him. You’d have to ask him that. Q Sure. Of course. But he didn’t look up at you at all? A No. Q There was nothing spoken? A No. [ 42 ] Based on the questions asked and the answers given, there was sufficient explanation for the trial judge to conclude that the accused did not notice Mr. Charrier. Therefore, the trial judge did not misapprehend the evidence when she put weight on Mr. Charrier’s testimony in this regard. Mr.

Charrier’s “belief” was well founded and explained. [ 43 ] Next, the accused argues that the trial judge misapprehended the evidence in the sixth problem she identified. That is, she found that the accused’s testimony about the complainant’s demeanor the morning following the incident was contradicted by the testimony of Mr. Spring. [ 44 ] The accused maintains that the trial judge was wrong to compare Mr. Spring’s evidence respecting the demeanor of the complainant to that of the accused because they saw her at different times. Mr. Spring testified that he arrived at work at about 7:00 a.m.

The complainant testified that she arrived at work at about 7:30 a.m. In direct examination she described the events as they unfolded: A Well when I had got there [work] I went in and grabbed the guys time card and that stuff and [Mr. Sinclair] and [Mr. Spring] knew right by looking at me that something was wrong. So I went to my desk and [Mr. Sinclair] came in there and was asking me what was wrong and stuff like that and then I eventually told him. Q Did you – did you see [the accused] again that day? A Yeah. Q And when did you see him? A I don’t know, maybe a half hour later or something. ….

Q Now after you had told [Mr. Sinclair] and [Mr. Spring] what – what happened where did you go? A After they knew – well, I told [Mr. Sinclair] (inaudible) told [Mr. Spring]. Then they wanted to talk to me. But I was mad that [Mr. Sinclair] had went behind my back. He promised me he wouldn’t say anything and told [Mr. Spring]. So I got in my vehicle and [Mr. Sinclair] jumped in with me and we went back to my cabin. So we talked and I eventually told him who it was and then we went to Thompson. [ 45 ] Mr.

Spring testified that when the complainant came into work “it looked like she had been crying” and that she looked like she was “upset” so he asked Mr. Sinclair to speak to her. He said that he saw the accused that day at around 9:00 a.m. [ 46 ] The accused testified that he headed for work at around 8:00 a.m. He said that when he saw the complainant she looked “fine” and that she “didn’t seem like nothing was wrong with her.” [ 47 ] None of the times testified to were precise.

However, regardless of the exact timeframe, it is clear that the trial judge inferred, based on all of the evidence, that the complainant was upset the morning after the incident and that it was apparent to others. It is also clear that the trial judge was pointing out what she considered to be a contradiction in the evidence of Mr. Spring and that of the accused in the context of the whole of the evidence.

Even if the contradiction was not the strongest, it was one the trial judge could find in her assessment of the accused’s credibility. [ 48 ] The foregoing review of the evidence demonstrates that the trial judge misstated the evidence on only one occasion as described in paras. 33-35 herein. In providing her reasons, the trial judge was emphasizing that the accused’s evidence was contradicted by other evidence which she found to be credible. The trial judge did not have to list every contradiction.

That said, a review of the transcript indicates that the accused’s evidence was contradicted by other evidence called at the trial in many more areas than those listed by the trial judge. [ 49 ] In sum, based on all of the above, I do not find that the trial judge misapprehended the evidence in any material aspect or that any misapprehension played an essential

part in her application of the W.(D. ) analysis. 2. That the trial judge erred in law by requiring corroborating evidence to be called by the accused. [ 50 ] There are two instances where the trial judge mentioned that certain evidence given by the accused was not corroborated and that this was of concern to her. However, contrary to the accused’s suggestion, nowhere in the trial judge’s decision does she suggest that the accused was required to call any evidence or that any such onus existed.

As I read her comments, the trial judge was simply noting that there was no evidence consistent with the evidence of the accused. Moreover, as pointed out by the Crown, the witnesses who were called at the trial could have corroborated, or not, the accused’s testimony. [ 51 ] It is not improper for the trier of fact to consider a lack of evidence in the context of the case as a whole. For example, in R. v. Kozakowski , 2009 MBCA 32 , the accused was charged with aggravated assault and assault. In convicting the accused, the trial judge was aware that the case turned on credibility.

In upholding the trial judge’s finding that the accused was not credible, Chartier J.A. (as he then was) stated (at para. 5): Key to the trial judge’s decision was his finding that the accused’s version of events was not corroborated on a substantive point by a single witness, not even by his friend …. ….

As in this case, a fair reading of the reasons shows that the trial judge was simply stating a fact, that is, that there was no evidence consistent with the evidence of the accused. [ 52 ] In my view, an examination of the two concerns that the trial judge had regarding lack of evidence shows that each involved areas of substance in the accused’s version of events. [ 53 ] First, despite the accused’s testimony that many people were nearby when he and the complainant kissed, nobody else testified that they kissed at that time.

The substantive significance of this evidence to the accused would be to try to encourage a trier of fact to infer that because the complainant was a willing participant in the initial kiss, she was attracted to him and more likely to have interacted with him at her cottage in the manner he described. [ 54 ] Second, the trial judge noted there was no evidence of the fact that the accused’s friend was waiting outside for him to get the liquor from the complainant.

While at first this concern may seem insignificant, it does take on substance when consideration is given to the fact that the accused testified that the only reason he went to the complainant’s cottage was to get liquor for his friend. It was during this time that Mr. Charrier testified that he walked from his cottage to the complainant’s cottage and saw the accused and complainant. In his testimony, Mr. Charrier made no mention of the accused’s friend whatsoever, despite the fact that the accused testified that she originally went to Mr.

Charrier’s cottage. [ 55 ] In consideration of the above, I conclude that the trial judge did not err when she took into account the fact that there was no evidence to support the accused’s testimony regarding the above two points.

3. That the trial judge failed to give sufficient reasons for not believing the testimony of the accused or why a reasonable doubt was not raised. [ 56 ] The accused argued that because each of the reasons given by the trial judge for rejecting his evidence constituted an error, there were no reasons left for the trial judge to make an adverse credibility finding against him and, therefore, her reasons were insufficient. [ 57 ] In the recent case of R. v.

N.H.P. , 2013 MBCA 30 , Hamilton J.A. undertook an analysis of the jurisprudence relating to sufficiency of reasons in cases where credibility is the main issue. She noted at para. 18 that in R.E.M. , the court allowed that while reasons need not be ideal, they must be adequate. She stated (at para. 19): As explained in R.E.M. , the purpose of reasons is to “show why the judge decided as he or she did” (at para. 17).

Reasons will be inadequate if they are found to be insufficient to fulfill their purpose to inform the parties of the basis of the verdict, to provide public accountability and to permit meaningful appeal.

This is to be discerned from a functional approach to the reasons “when looked at in the context of the evidence, the submissions of counsel and the history of how the trial unfolded” (ibid . ). [ 58 ] She continued her review of R.E.M. noting that, in that case, the court relied on its earlier jurisprudence to assert that the reviewing court must determine whether the trial judge appears to have “seized the substance of the issues” (at para. 22) and therefore, show that the trial judge has demonstrated a recognition that credibility was a live issue (at para. 23). [ 59 ] As I earlier mentioned, after the parties argued this appeal, the Supreme Court of Canada released its decision in the case of Vuradin .

That case involved the appeal of a conviction for sexual assault on the basis that the reasons of the trial judge were insufficient and that the trial judge erred in not following the analysis in W.(D.) .

In Vuradin , the court repeated and reinforced its previous reasoning in R.E.M. (at para. 13 ) : In R.E.M. , this Court also explained that a trial judge’s failure to explain why he rejected an accused’s plausible denial of the charges does not mean the reasons are deficient as long as the reasons generally demonstrate that, where the complainant’s evidence and the accused’s evidence conflicted, the trial judge accepted the complainant’s evidence .

No further explanation for rejecting the accused’s evidence is required as the convictions themselves raise a reasonable inference that the accused’s denial failed to raise a reasonable doubt (see para. 66). [emphasis added] [ 60 ] I have already concluded that the trial judge’s reasons for rejecting the accused’s evidence are not wrong in any material aspect. Furthermore, they demonstrate that where the accused’s evidence conflicted with the complainant’s, the trial judge accepted the complainant’s evidence.

In terms of the first two stages of the W.(D.) analysis nothing further was required of her. [ 61 ] Furthermore, for the reasons I have stated at paras. 11-13, the trial judge considered the evidence given by the complainant and gave reasons why she found it credible based on the evidence as a whole. [ 62 ] In sum, reasons are only insufficient insofar as they do not:

i) explain the decision to the parties; ii) provide public accountability; and iii) permit effective appellate review. Here the trial judge explained why she found the accused guilty; she believed the complainant and the other witnesses and she disbelieved the accused. She considered all of the evidence called by the Crown and concluded that it convinced her that the accused was guilty beyond a reasonable doubt. The reasons satisfied all of the above requirements and were not insufficient. Conclusion [ 63 ] In conclusion, I find that none of the grounds raised by the accused convince me that the conviction should be set aside. I would dismiss the appeal. J.A. I agree: J.A. I agree: J.A.