R. v. T.I.E., 2014 MBCA 40

Citation: R. v. T.I.E., 2014 MBCA 40 Date: 20140501 Docket: AR 13-30-08009 IN THE COURT OF APPEAL OF MANITOBA Coram: Chief Justice Richard J. Chartier Mr. Justice Michel A. Monnin Mr. Justice William J. Burnett BETWEEN : ) S. B. Simmonds and HER MAJESTY THE QUEEN ) R. P. Rolston ) for the Appellant Respondent ) ) R. N. Malaviya and ) N. P. Steen - and - ) for the Respondent ) ) Appeal heard: E. (T. I.) ) March 26, 2014 ) (Accused) Appellant ) Judgment delivered: ) May 1, 2014 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 ) .

MONNIN and BURNETT JJ.A. [ 1 ] This is an appeal by the accused from convictions for three sexual assaults against two teenage boys. [ 2 ] The Crown also sought leave to appeal the sentence imposed on the accused, alleging that the judge erred when she failed to order that the probation period following the accused’s incarceration for two years less a day should be supervised. [ 3 ] Following oral submissions, we denied the Crown’s application for leave to appeal the sentence imposed and reserved our decision on the conviction appeal. [ 4 ] For the reasons that follow, we would dismiss the appeal against conviction. [ 5 ] The accused was convicted of two counts of sexual assault involving a teenage boy, R.C.E., and one count of sexual assault involving another teenage boy, B.S.R.

He was acquitted of two counts of sexual assault involving a third boy, R.E.V., and three counts of sexual exploitation. For a detailed review of the facts see paras. 4-53 of 2012 MBQB 239 , 283 Man.R. (2d) 200 . [ 6 ] The accused appealed his convictions on three grounds; namely: 1. that the judge failed to consider whether the similar fact evidence was tainted; 2. that the judge placed the onus upon the accused to show that the witnesses colluded as to the similar fact evidence; and, 3. that the judge applied a greater degree of scrutiny to the testimony of the accused than to that of the prosecution witnesses.

[7] At trial, the judge admitted as similar fact evidence, the evidence of the three complainants as well as the evidence ofC.S.J., S.H. and B.R.

The judge gave oral reasons admitting the similar fact evidence and advised that she would supplement them in herfinal decision, which she did (see paras. 58-81). [8] The accused submits that the proposed similar fact evidence was called for the purpose of establishing propensity,that such evidence is generally inadmissible, and that the onus was on the Crown to demonstrate, on a balance of probabilities, that theprobative value of the evidence outweighed its potentially prejudicial effect.

According to the accused, the judge became focussed uponthe nature and number of similar allegations made by the complainants, all of whom were known to each other; she came to believe thatthey must be telling the truth; she failed to properly consider whether their evidence was the product of their collective conscience, andas a result, she failed to properly analyse the significant inconsistencies that should have been detrimental to those witnesses’ credibility. [9] The accused further argues that, as a result of admitting the similar fact evidence, the judge became distracted fromher ultimate responsibility to assess the direct evidence applicable to each offence.

He also argues that in accepting the totality of thesimilar fact evidence, she ignored material inconsistencies with respect to the individual evidence of the complainants. [10] The accused says that the first two grounds of appeal raise questions of law and that the standard of review iscorrectness. The Crown agrees, but says that the decision to admit similar fact evidence is highly discretionary, and that significantdeference is owed to a trial judge’s decision to admit similar fact evidence (R. v.

Handy, 2002 SCC 56 at para. 153, [2002] 2 S.C.R. 908). [11] To a certain extent, both the accused and the Crown are correct on the issue of the applicable standard of review whendealing with an evidentiary question. The appropriate standard is, in our view, well set out in reasons authored by Jackson J.A. of theSaskatchewan Court of Appeal in R. v.

Poon (E.), 2012 SKCA 76, 399 Sask.R. 89, where she wrote (at paras. 71-72): It is trite law that, in the criminal context, the standard of review for questions of law is correctness and that the admissibility of evidenceis usually a question of law, and therefore evaluated against that standard. Where the admission of evidence demands an evaluation ofprobative and prejudicial strength, however, the standard of review is a considerably deferential one. In R. v.

B. (C.R.), (SCC), [1990] 1 S.C.R. 717, McLachlin J. (as she then was), writing for herself and four others(Lamer and Sopinka JJ. dissenting) noted at pp. 733-34: A third feature of this Court’s treatment of the similar fact rule since Boardman [Director of Public Prosecutions v. Boardman, [1975]A.C. 421] is the tendency to accord a high degree of respect to the decision of the trial judge, who is charged with the delicate process ofbalancing the probative value of the evidence against its prejudicial effect.

In Morris [ (SCC), [1983] 2 S.C.R. 190], theCourt affirmed that the task of determining whether the evidence possesses sufficient probative value is that of the trial judge. Similarly,in Guay [ (SCC), [1979] 1 S.C.R. 18], Robertson [ (SCC), [1987] 1 S.C.R. 918], Morin [(SCC), [1988] 2 S.C.R. 345], and D. (L.E.) [ (SCC), [1989] 2 S.C.R. 111] this Court affirmed the decision of the trialjudge with respect to similar fact evidence.

This deference to the trial judge may in part be seen as a function of the broader, morediscretionary nature of the modern rule at the stage where the probative value of the evidence must be weighed against its prejudicialeffect. As a consequence of the rejection of the category approach, the admissibility of similar fact evidence since Boardman is a matterwhich effectively involves a certain amount of discretion. As pointed out in Morris, the weight to be given to evidence is a question forthe trier of fact.

Generally, where the law accords a large degree of discretion to a trial judge, courts of appeal are reluctant to interferewith the exercise of that discretion in the absence of demonstrated error of law or jurisdiction. . . . . . Where a trial judge has properly addressed these concerns and, after weighing the evidence and its potential prejudice, arrived at aconclusion as to its admissibility, appellate courts will not lightly intervene. [Emphasis added] This statement, regarding the deferential standard of review, has been followed in subsequent decisions of the Supreme Court, includingR. v.

Arp, (SCC), [1998] 3 S.C.R. 339 at para. 42, R. v. Handy, supra at para. 153 and R. v. Shearing, 2002 SCC 58,[2002] 3 S.C.R. 33 at para. 73. Issue 1 – Whether the Similar Fact Evidence was Tainted [12] The accused’s position that the similar fact evidence was not reasonably capable of belief because it was the result ofcollusion or tainting was first raised with the judge prior to trial in the context of a motion to sever the counts pertaining to R.C.E.

See,for example, paras. 6, 18-28 of her reasons concerning that motion. [13] In her reasons for conviction, the judge correctly stated the legal principles to be applied on a motion to admit similar

fact evidence. She went through an analysis of the allegations of each of the parties and specifically turned her mind to the balancing of the evidence’s probative value as compared to its prejudicial effect (see R. v. T.I.E. , 2012 MBQB 239 , 283 Man.R. (2d) 200 ). The judge found that while the evidence did show that there was some talk among the witnesses, the exchanges between them “was limited, of a general nature and lacking in detail” (at para. 65).

She observed that witnesses talking to each other is neither unusual, nor categorically fatal to their credibility, but that it is a factor to consider and weigh. Ultimately, the judge concluded that the evidentiary record did not support the argument that there was collusion among the witnesses, and we see no reason to interfere with that conclusion. Issue 2 – Whether the Onus Shifted [ 14 ] On this issue, we agree with the Crown that nowhere in her reasons did the judge suggest that the accused must establish collusion or tainting.

To the contrary, in her reasons relating to the severance motion, the judge stated that, “[w]here the Crown seeks to introduce evidence as similar fact, it must establish on a balance of probabilities that the evidence is not tainted with collusion” (at para. 26). Issue 3 – Whether the Judge Applied a Greater Degree of Scrutiny to the Accused’s Evidence [ 15 ] We would also decline to allow the appeal on the third ground raised by the accused. W e agree with the Crown’s submission that the judge’s assessment of credibility is entirely reasonable in light of the record.

In her reasons for conviction, the judge herself observed that when assessing witnesses credibility, the court should not apply a greater degree of scrutiny to the testimony of the accused than to that of the prosecution witnesses. The judge provided detailed reasons, she concluded that the accused was totally lacking in credibility, and she provided an explanation as to why she believed the complainants.

The standard of deference accorded to the judge’s determination regarding credibility is high, and this court has previously observed that deficiencies in a trial judge’s credibility analysis will rarely warrant appellate intervention ( R. v. Menow (R.A.) , 2013 MBCA 72 at para. 32 , 294 Man.R. (2d) 236 ). [ 16 ] The trial judge provided detailed, comprehensive and considered reasons with respect to all aspects of the trial before her; namely, an application to sever; an application to allow similar fact evidence; and, finally, an explanation of how she arrived at her verdict and why.

She was alive to the possibility of collusion and tainting throughout the trial. When the possibility of tainting was identified in one instance, she acquitted on that charge.

It is also clear that she was aware of certain inconsistencies in some of the evidence that she heard, but it is just as clear in our view that she came to a conclusion of guilt based on direct evidence that she accepted and not, as the accused suggests, after being overwhelmed by evidence of similar facts. [ 17 ] Consequently, we have not been persuaded that the judge committed reversible error in arriving at her verdicts of guilt and we would, as stated earlier in these reasons, dismiss the appeal. J.A. J.A. I agree: C.J.M.