R. v. Baron, 2013 MBCA 92

Citation: R. v. Baron, 2013 MBCA 92 Date: 20131016 Docket: AR 12-30-07840 IN THE COURT OF APPEAL OF MANITOBA Coram: Chief Justice Richard J. Chartier Madam Justice Holly C. Beard Mr. Justice William J. Burnett BETWEEN : HER MAJESTY THE QUEEN ) E. C. Pauls ) for the Appellant Respondent ) ) N. M. Cutler - and - ) for the Respondent ) COLIN MURRAY BARON ) Appeal heard and ) decision pronounced: (Accused) Appellant ) October 16, 2013 NOTICE OF RESTRICTION ON PUBLICATION: No one may publish, broadcast or transmit any information that could disclose the identity of the complainant(

s) or a witness(es) (see s. 486.4 of the Criminal Code ). CHARTIER C.J.M. (for the court): [ 1 ] The accused was charged in 2011 with aggravated sexual assault and uttering threats for an incident that occurred on January 1, 2008. The complainant did not know the accused and, despite the video surveillance which captured part of the sexual assault, the accused was not identified. A vaginal swab was taken from the complainant shortly after the attack.

Three years later, in 2011, the authorities matched the DNA taken from the vaginal swab with the accused’s DNA which had been placed in the DNA databank in 2010. [ 2 ] The accused did not testify at his trial. However, the accused did call another witness to put forward an alibi defence. This alibi defence was only disclosed to counsel for the accused the day before the trial began. The alibi was presented by a friend of the accused, Ms Blyth, who testified that the accused was at their home at the time of the sexual assault against the complainant. The judge rejected Ms Blyth’s alibi evidence.

He acquitted the accused of aggravated sexual assault, but convicted him of sexual assault and uttering threats. The accused was sentenced to a term of imprisonment of five years for the sexual assault, less five months of pre- sentence custody credited on a 1:1 basis. He received a one-year concurrent sentence on the uttering threats count. [ 3 ] The accused appeals the conviction and the amount of pre-sentence custody credit given on his sentence. [ 4 ] While the accused raises a number of issues, the principal issue on appeal is whether the judge erred in his assessment of the alibi evidence.

We do not accede to this ground. The judge gave reasons for rejecting the alibi evidence. Although he alluded to the late disclosure of the alibi, we are satisfied from his reasons, when read as a whole, that he rejected the alibi on the simple basis that he did not believe Ms Blyth. We have not been persuaded that the judge committed a reversible error in his assessment of the alibi evidence. [ 5 ] On a related ground of appeal, the accused argues that the judge erred in dismissing his mistrial application arising from Ms Blyth’s late disclosure of the alibi. We do not agree.

The decision to grant a mistrial is an exercise in judicial discretion and is only to be given in the clearest of cases where no other remedy is reasonably available to prevent a miscarriage of justice ( R. v. Burke , 2002 SCC 55 at para. 75 , [2002] 2 S.C.R. 857 ). In this case, the mistrial application was only made after the Crown had closed its case. The remedy chosen by the judge was to adjourn the matter and to allow the accused to further cross-examine Crown witnesses, should

he choose to do so. We remain unconvinced that his selection of this remedy was clearly wrong or based on some erroneous legal principle. [ 6 ] With respect to the other grounds raised by the accused, we are all of the view that they are without merit. In the end, this was quite simply an overwhelming circumstantial case against the accused and the judge viewed it as such. The Crown had established beyond a reasonable doubt that the accused’s DNA matched the DNA found on the vaginal swab taken from the complainant.

The accused did not testify and presented no evidence to explain the presence of his DNA on the swab. In addition to the DNA match, the judge found support for his finding of guilt in the photos submitted by the defence. Those photos showed the accused was wearing a dark-hooded jacket and light-coloured pants on the night of the assault.

This clothing was similar to what the assailant was wearing in the surveillance video. [ 7 ] In the result, the conviction appeal is dismissed. [ 8 ] With respect to the sentence appeal, while two grounds were raised, the critical issue is whether the judge erred when he found that the amendment to the Criminal Code , pursuant to s. 5 of the Truth in Sentencing Act , S.C. 2009, c. 29, applies to the accused’s sentence, where he committed the offences for which he was sentenced before the amendment came into force, but was charged with them after the amendment came into force. [ 9 ] This issue is identical to the issue which was before the court in R. v.

Clarke , 2013 ONCA 7 , 115 O.R. (3d) 75 . The Ontario Court of Appeal concluded that the amendment applied to situations similar to the one facing this accused (i.e., the amendment came into force after he committed the offence, but before he was charged). Two other appeal courts have decided the issue differently than Clarke (see R. v. Serdyuk (O.S.) , 2012 ABCA 205 , 533 A.R. 199 ; and R. v. A.A.M. , 2013 NLCA 26 , 335 Nfld. & P.E.I.R. 199 ). [ 10 ] A request for leave to appeal to the Supreme Court of Canada has been made with respect to the Clarke matter.

As a result of the above-mentioned divergent appellate court views on this issue, and the leave application to the Supreme Court of Canada with respect to the Clarke matter, we will reserve our decision on the sentence appeal. C.J.M. J.A. J.A.