R. v. Harper, 2013 MBCA 80

Citation: R. v. Harper, 2013 MBCA 80 Date: 20130906 Docket: AR 13-30-07920 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Barbara M. Hamilton Mr. Justice Marc M. Monnin Mr. Justice William J. Burnett BETWEEN: HER MAJESTY THE QUEEN ) S. L. Bracken ) for the Appellant Respondent ) ) - and - ) R. N.

Malaviya ) for the Respondent ) ) LAWRENCE ANDREW JAMES HARPER ) Appeal heard and ) Decision pronounced: (Accused) Appellant ) September 6, 2013 HAMILTON J.A. (for the Court): [1] The accused appeals his convictions for robbery and sexual assault after a trial by judge alone, at which the accusedtestified. [2] The victim was attacked one May evening on a downtown street. The assailant demanded money from her and statedthat he had a knife. As the victim handed him 20 loonies, the assailant knocked her to the ground and grabbed at her crotch andattempted to unbutton her jeans.

While she struggled, the assailant hit her several times. The attack ended when a passerby came to thevictim’s rescue. [3] The accused asserts that the judge erred in finding that she was satisfied beyond a reasonable doubt that the accusedwas the assailant.

He also asserts that the judge erred in finding that the grabbing of the crotch and attempt to unbutton the pants was asexual assault, rather than a continuation of the robbery by searching for valuables. [4] Given the deference that must be afforded to the judge, the accused has failed to persuade us on either ground ofappeal. [5] The judge gave detailed oral reasons in which she set out and applied the correct law, carefully considered theevidence and submissions in detail, and addressed the accused’s arguments with respect to the alleged weaknesses pertaining to thevictim’s evidence for identifying the accused and whether the assault violated the victim’s sexual integrity. [6] The judge acknowledged the frailties of identification evidence.

She found that the victim had a good memory of theincident and her assailant and found her to be honest and candid. Among other things, she noted the victim could describe “unusualdescriptor[s]” of her assailant, including badly damaged teeth and a stutter, and that the victim readily identified the accused in a policephoto pack. The judge accepted the victim’s evidence that she recognized the victim from prior dealings at her work over the course of ayear. Therefore, this was not a case where the assailant was a stranger to the victim. See R. v.

Woodard (J.), 2009 MBCA 42, 240Man.R. (2d) 24. [7] There was ample evidence before the judge that entitled her to find that the Crown had proved identity beyond areasonable doubt and to draw the inference that the latter part of the attack on the victim was sexual in nature based on the objective testin the context of all of the circumstances. See R. v. Chase, (SCC), [1987] 2 S.C.R. 293. [8] For these reasons, the appeal is dismissed.

J.A. J.A. J.A.