R v. Fatunmbi, 2014 MBCA 53

Citation: R v. Fatunmbi, 2014 MBCA 53 Date: 20140605 Docket: AR 12-30-07905 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Mr. Justice Alan D. MacInnes Madam Justice Holly C. Beard BETWEEN: ) D. M. Sawchuk andHER MAJESTY THE QUEEN ) A. J. McKelvey-Gunson ) for the Appellant Respondent ) ) R. N. Malaviya- and - ) for the Respondent ) ) Appeal heard:OLAYEMI OLAYWALE FATUNMBI ) October 23, 2013 ) (Accused) Appellant ) Judgment delivered: ) June 5, 2014 NOTICE OF RESTRICTION ON PUBLICATION: No one may publish, broadcast or transmit any information that coulddisclose the identity of the complainant(

s) or a witness(es) (see s. 486.4 of the Criminal Code). BEARD J.A. I. THE ISSUE [1] The accused was charged with two counts of sexual assault related to two co-workers, K.B. and M.S. He was convictedby a jury on the count related to K.B. and acquitted on the count related to M.S. He has appealed his conviction and sentence, raising thefollowing grounds of appeal: (

i) that the trial judge erred in not including a clear and sharp Vetrovec warning (Vetrovec v. The Queen, (SCC), [1982]1 S.C.R. 811) in the charge to the jury; (ii) that the failure to provide a clear and sharp Vetrovec warning resulted in an unreasonable verdict; and (iii) that the trial judge erred in classifying this offence as a major sexual assault, resulting in an unfit sentence. [2] The Crown has not appealed the acquittal regarding the count related to M.S. II. THE FACTS [3] The accused was an assistant manager at a group home for people with disabilities, being one of several run by thesame organization.

In that position, he was responsible for training and staffing at the group home. All of the group homes provided 24-hour supervision, so workers were required to stay overnight and sleeping accommodation was provided for them. [4] One charge relates to an incident that M.S. alleged took place on July 14, 2008, at the group home. She testified thatthe accused offered her employment at the group home, and she attended there in the evening for training.

She alleged that, while theaccused was giving her a tour of the house, he took her to the basement office where he placed his hands on her knees and kissed herwithout her consent. Later when she was sleeping, he got into bed with her, where he touched her breasts and vagina and tried to get her

to take her pants off, again without her consent. M.S. rejected his advances but took no further action until a number of days later, aftershe had spoken to K.B. [5] The other charge relates to an incident that K.B. testified took place on July 18, 2008, at the same group home. Sheregularly worked at a different group home operated by the same organization. One day, she saw the accused and told him that she wasconsidering leaving her job. He suggested that she come to work at his group home on a casual basis, and she agreed.

They also spokeabout her attending at the group home for training but made no specific arrangements at that time. [6] K.B. went to the group home on July 18, 2008, arriving at about 10:00 p.m., and the accused gave her a tour of theresidence, ending up in the basement office. She testified that they talked, and then the accused pushed her onto the bed and tried to haveintercourse with her, but he was unsuccessful. They both got up, but he again pushed her on to the bed and attempted intercourse withher but was again unsuccessful.

After a third unsuccessful attempt, this time while both were standing and she was leaning against adesk, he left the office. [7] Once the accused left the room, K.B. took her clothes and left the residence. She testified that she was upset and, onceaway from the group home, she pulled over and called her friend, Ms White, with whom she spent the next several days. [8] K.B. returned to work, where she told M.S. what had occurred. The two women then decided to call the police to reporttheir allegations.

Both women gave statements to the police, following which charges were laid. [9] The accused testified, agreeing with K.B.’s version of what happened on July 18, 2008, up until they arrived at theoffice. He said that they talked, and then he left to go to the washroom. When he returned, K.B. was gone with no explanation.

Hedenied that there was any contact or any sexual assault. [10] Both women testified at a preliminary inquiry, as well as testifying at the trial, and, in relation to both, there were anumber of inconsistencies between their descriptions of the events as contained in their police statements, their sworn testimony at thepreliminary inquiry and at the trial. In relation to this appeal, the Crown describes the inconsistencies as minor, while the accused saysthat they are material and that they “cut to the heart of the criminal allegations.” III.

FIRST GROUND OF APPEAL: THE LACK OF A VETROVEC OR CAUTIONARY WARNING IN THE JURY CHARGE (

i) The Issue [11] While the accused, in his factum, refers to the trial judge failing to include a Vetrovec warning in his jury charge, it isclear from both his submissions to the trial judge and to this court that he was and is asking for either a Vetrovec warning or a similarcautionary warning. This is an issue in this case because Vetrovec, and many of the cases in which it has been applied, dealt with what isreferred to as “unsavoury” witnesses – often co-accused, accomplices, jailhouse informants, admitted perjurers and witnesses withsignificant criminal records.

K.B. is clearly not an “unsavoury” witness in this respect. The sole reason for asking for a caution arisesnot as a result of K.B.’s character or prior criminal behaviour but as a result of the inconsistencies between the versions of events that shehas related on different occasions, sometimes under oath. [12] At trial, the accused requested that the trial judge include a special caution in his charge to the jury warning of the dangerin accepting this evidence.

While defence counsel referred to a Vetrovec warning, he ultimately asked the trial judge to warn the jury ofthe “dangers of accepting evidence of witnesses who have, in fact, changed their story on material points from one hearing where they’reunder an oath, to another,” his emphasis being on the importance of lies or inconsistencies when under oath. [13] The Crown agreed that the trial judge could advise the jury of the distinction between inconsistencies under oath andthose not under oath, but he was opposed to any further special warning, arguing that going so far as to caution the jury with a Vetrovecwarning would amount to error in this case. [14] These positions were put forward during a recorded pre-charge conference, and the trial judge did not respond to thearguments of counsel on this point to indicate how, if at all, he would accommodate their concerns.

During a pre-charge conference thenext morning to discuss another draft of the charge, defence counsel did not re-argue his position regarding the special caution, but hedid confirm it by stating: Mr.

Sawchuk: Well, Your Lordship has indicated you’ve made the changes and -- that you’re prepared to make and you have ourposition, I’m not sure if there’s anything else that we can add beyond that. (ii) The Standard of Review [15] This court recently explained the standard of review of an appeal alleging an error related to a Vetrovec warning in R. v.Richard (D.R.) et al., 2013 MBCA 105, 299 Man.R. (2d) 1 (at para. 85): The decision of a trial judge about whether to give a Vetrovec warning, and the nature and extent of the warning, is discretionary andtherefore entitled to deference.

A discretionary decision should be interfered with only “if the trial judge misdirects himself or if hisdecision is so clearly wrong as to amount to an injustice”. (R. v. Regan, 2002 SCC 12 , [2002] 1 S.C.R. 297; 282 N.R. 1; 201

N.S.R. (2d) 63; 629 A.P.R. 63; 2002 SCC 12, at para. 117). In R. v. Brooks (F.A.), 2000 SCC 11 , [2000] 1 S.C.R. 237, 250N.R. 103; 129 O.A.C. 205; 2000 SCC 11, Bastarache J. described the standard of review of a trial judge’s decision about whether or notto give a Vetrovec warning as “[p]rovided there is a foundation for the judge’s exercise of discretion, appellate courts should notinterfere” (at para. 24). See also R. v. C.C.Y. (2001), 2001 SKCA 107 , 213 Sask.R. 120; 260 W.A.C. 120; 2001 SKCA 107, atpara. 20; R. v.

Harriott (A.) (2002), (ON CA), 168 O.A.C. 342; 58 O.R. (3d) 1, 161 C.C.C. (3d) 481 (C.A.), at para.16; R. v. Wood (D.W.) et al. (2007), 2007 BCCA 563 , 248 B.C.A.C. 255; 412 W.A.C. 255; 2007 BCCA 563, at para. 30; andR. v. Truelove (T.), [2010] O.A.C. Uned. 482; 2010 ONCA 608 at para. 6. [16] In R. v. Korski (C.T.), 2009 MBCA 37, 236 Man.R. (2d) 259, the trial judge gave a Vetrovec warning, and, on appeal, theaccused challenged the sufficiency of the warning.

In responding to that ground of appeal, this court stated (at paras. 141-43): The Supreme Court of Canada recently reviewed the nature of the caution that a trial judge should give to the jury in her charge inrespect of unsavoury witnesses. See R. v. Khela (G.S.) (2009), 2009 SCC 4 , 383 N.R. 279; 265 B.C.A.C. 31; 446 W.A.C. 31;238 C.C.C. (3d) 489; 2009 SCC 4, and R. v. James (W.A.) et al. (2009), 2009 SCC 5 , 383 N.R. 329; 273 N.S.R. (2d) 388; 872A.P.R. 388, 238 C.C.C. (3d) 481; 2009 SCC 5.

In those cases, the court warned appellate judges that they should not measure the sufficiency of a caution against the ruler ofperfection.

Intervention on appeal will not be warranted unless a cautionary instruction should have been given but was not, or thecautionary instruction that was given failed to serve its intended purpose. (See Khela, at para. 13.) As the Supreme Court said in R. v.Bevan and Griffith, (SCC), [1993] 2 S.C.R. 599; 154 N.R. 245; 64 O.A.C. 165 (at p. 613): … Because the trial judge is in the best position to assess the atmosphere of the trial and the effect that the evidence or instruction mayhave on a jury hearing the case, the trial judge’s decision on these kinds of issues should not be lightly interfered with on appeal.

In evaluating whether the cautionary instruction that was given failed to serve its intended purpose, the appellate court should onceagain take a functional and realistic approach. That purpose is to warn the jury of the danger of relying on the impugned witnesstestimony without being comforted, by some other evidence, that the witness is telling the truth about the accused’s involvement in thecrime. There is no particular formula. Instead, the trial judge is given flexibility to tailor the caution to the specific facts of the case. (See also R. v.

Bushie (C.O.), 2012 MBCA 67 at para. 3, 280 Man.R. (2d) 236.) [17] This discretionary standard of review applies to both the trial judge’s decision of whether to give any cautionary warningand, if there is to be a warning, the content of that warning. (iii) The Positions of the Parties The Accused [18] The accused’s position is that the requirement to provide a cautionary warning about frailties in a witness’s evidence isnot limited to witnesses who would fit the traditional definition of an unsavoury witness but applies in a wider context to all witnessesregarding whom “the court, based on experience, sees red flags based on tried circumstances and that some education is required for thejury.” In support, he references the following statement in Vetrovec (at p. 831): ….

Because of the infinite range of circumstance which will arise in the criminal trial process it is not sensible to attempt tocompress into a rule, a formula, or a direction the concept of the need for prudent scrutiny of the testimony of any witness. …. [19] His position is that Vetrovec and the cases that have followed have held that there is no exhaustive list of or limit to thetypes of scenarios that will give rise to the need for a caution that provides jurors with the benefit of judicial experience where they maynot have the necessary experience to adequately assess the credibility of these types of witnesses.

For this, he relies on R. v. Sauvé (J.) et

al. (2004), (ON CA), 182 O.A.C. 58 at para. 81. He argues that this is particularly so in relation to explaining theimportance of statements made under oath and the dangers of accepting evidence containing inconsistencies under oath. He submitsthat, while not all inconsistencies would attract a cautionary warning, at some point, the cumulative effect of many inconsistencies acrossthe board or on major points reaches a threshold that requires a judicial warning, even absent a traditionally unsavoury witness.

This, heargues, is particularly so where the inconsistencies arise from statements made under oath. [20] The accused states that, in this case, the only evidence of guilt is that of K.B., making it essential to the Crown’s case.

His position is that, as a result of the numerous important inconsistencies in K.B.’s testimony about important evidence, being thesequence of the steps in the alleged sexual assault as it unfolded which should not be ambiguous, the need for a clear and sharp Vetrovecwarning was high. [21] The accused says that, while the trial judge outlined the inconsistencies, he did not give the required judicial warning thatit would be dangerous to accept this evidence without finding independent supporting evidence or even that the jury should be cautiousin accepting this evidence.

Instead, he gave a “forgiveness” warning to forgive the inconsistent testimony offered by the complainant,rather than alerting the jurors to the dangers of convicting on her evidence alone or directing the jury’s attention to any specific evidencethat required special scrutiny.

That forgiveness warning was as follows: When considering apparently inconsistent answers, consider that the type of question that is asked can affect the answer, as well asthe fact that a person does not usually respond in exactly the same words when asked a similar question by different people on differentoccasions, even if the core of the answer is the same. This is more likely to occur where a person gives more than one statement.

The Crown [22] The Crown points out that, in addition to the standard instructions regarding inconsistent evidence, the jury charge alsoincluded the following: You will recall that both [M.S.] and [K.B.] were referred to their evidence previously given at the preliminary inquiry under oathand also to their previous police statements.

When a witness says one thing in the witness box, but has said something you find to bequite different on an earlier occasion your common sense tells you that the fact that the witness has given different versions may beimportant in deciding whether or how much you believe of, or rely upon, the witness’s testimony. . . . . . …. [Counsel] reminded you that there was no physical or real evidence, only words.

If the comparison of the evidence demonstratedsubstantial and material differences in the evidence from one statement to the next, from one hearing to the next, then it is unsafe toconvict. [23] The Crown argues that a Vetrovec warning is only required for witnesses considered unsavoury, untrustworthy,unreliable, or tainted. It says that this type of warning may negate the evidence, subject to material corroboration, such that thesewarnings are relatively rare.

It argues that K.B. was not an inherently unreliable witness. [24] The Crown further argues that there are many cases in which appellate courts have held that the trial judge committed noerror in not giving a Vetrovec warning even though the witness had told lies and given inconsistent testimony. It also points to thediscretionary nature of the Vetrovec warning.

Finally, it argues that the trial judge dealt appropriately with the inconsistencies in thiscase by drawing the jury’s attention to them and correctly instructing the jurors as to how they may be relevant in assessing acomplainant’s credibility. [25] In responding to that argument, the accused states that the second quotation from the charge set out in para. 22 herein wasnot a warning by the trial judge to the jurors, but a part of the trial judge’s

summary of the position of the defence. He argues that thisdoes not constitute a warning by the court sufficient to meet the requirements of a judicial caution about the risks of accepting theinconsistent evidence of the witness. (iv) The Law Regarding Vetrovec/Cautionary Witness Instructions Which Witnesses/What Evidence Can Be Subject to a Warning

[26] For many centuries, judges have been required to give instructions to juries on the use that can and cannot be made ofdifferent types of evidence and how that evidence is to be weighed. Very specific and detailed rules had developed for instructions inrelation to accomplices, which were the subject of the appeal to the Supreme Court of Canada in Vetrovec.

After looking at the historicalreasons for the rules, Dickson J. (as he then was), speaking for the court, set out an expanded rule for cautionary instructions, stating (atp. 823): None of these arguments can justify a fixed and invariable rule regarding all accomplices. All that can be established is that thetestimony of some accomplices may be untrustworthy. But this can be said of many other categories of witness. There is nothinginherent in the evidence of an accomplice which automatically renders him untrustworthy.

To construct a universal rule singling outaccomplices, then, is to fasten upon this branch of the law of evidence a blind and empty formalism. Rather than attempting to pigeon-hole a witness into a category and then recite a ritualistic incantation, the trial judge might better direct his mind to the facts of the case,and thoroughly examine all the factors which might impair the worth of a particular witness. If, in his judgment, the credit of the witnessis such that the jury should be cautioned, then he may instruct accordingly.

If, on the other hand, he believes the witness to betrustworthy, then, regardless of whether the witness is technically an ‘accomplice’ no warning is necessary. [emphasis added] [27] A few years later in R. v. Potvin, (SCC), [1989] 1 S.C.R. 525, Wilson J., writing for the majority,confirmed this expanded rule (at p. 557): .... Vetrovec, in my view, represents a rejection of formalistic and a priori categories concerning the trustworthiness of evidence bothwith regard to warnings and corroboration.

In every case it is for the trial judge on the basis of his or her appreciation of all thecircumstances and, may I add, on the basis of the application of sound common sense, to decide whether a warning is required. [28] See also R. v.

Winmill (1999), (ON CA), 42 O.R. (3d) 582 (C.A.), in which Osborne J.A., for thecourt, stated that “Dickson J. made it clear in Vetrovec that the purpose of requiring a clear sharp warning is to alert the jury to thedanger of relying on the evidence of a witness who for any reason is untrustworthy” (at p. 607) (emphasis added). [29] The Supreme Court of Canada took another look at cautionary witness instructions in R. v. Brooks, 2000 SCC 11, [2000]1 S.C.R. 237.

Major J., writing for three judges in dissent, but not on this point, reviewed the history of the accomplice warning,acknowledged the changes brought about by Vetrovec (as noted at para. 26 herein) and then stated (at para. 79): I agree with the view expressed in “Developments in the Law of Evidence: The 1992-93 Term” (1994), 5 S.C.L.R. (2d) 421. Theauthor, M. Rosenberg (now Rosenberg J.A.), concluded that Vetrovec and Bevan [ (SCC), [1993] 2 S.C.R. 599] requirethe trial judge to focus on two different elements of the case in determining whether or not a warning is necessary.

At p. 463 he stated: The judge should first in an objective way determine whether there is a reason to suspect the credibility of the witness accordingto the traditional means by which such determinations are made. This would include a review of the evidence to determine whetherthere are factors which have properly led the courts to be wary of accepting a witness’s evidence.

Factors might include involvement ofcriminal activities, a motive to lie by reason of connection to the crime or to the authorities, unexplained delay in coming forward withthe story, providing different accounts on other occasions, lies told under oath, and similar considerations. It is not then whether the trialjudge personally finds the witness trustworthy but whether there are factors which experience teaches that the witness’s story beapproached with caution. Second, the trial judge must assess the importance of the witness to the Crown’s case.

If the witness plays arelatively minor role in the proof of guilt it is probably unnecessary to burden the jury with a special caution and then review theconfirmatory evidence. However, the more important the witness the greater the duty on the judge to give the caution. At some point,as where the witness plays a central role in the proof of guilt, the warning is mandatory. This, in my view, flows from the duty imposedon the trial judge in criminal cases to review the evidence and relate the evidence to the issues. [emphasis added] [30] This expanded rule was confirmed by the Nova Scotia Court of Appeal in R. v.

MacDonald (L.R.), 2000 NSCA 60, 184N.S.R. (2d) 1 (at para. 140): It can be seen from this passage [from Vetrovec, cited at para. 26 herein] that the need to give a caution is not restricted to cases ofaccomplices, but arises whenever the trial judge considers that the credit of a witness is such that a caution should be given. It can also

be seen that a great deal of discretion is necessarily left to the trial judge. In exercising this discretion, the trial judge will be governedby circumstances of the particular case and the particular witness. Decisions since Vetrovec have recognized that while the warning isdiscretionary, there are circumstances where the failure to give a warning can be an error at law. [31] In R. v. Patrick (C.) (2005), (ON CA), 203 O.A.C. 276, the Ontario Court of Appeal confirmed theexpanded application of cautionary witness instructions set out in Vetrovec.

The complainant in Patrick was unsavoury and there weremany inconsistencies between his earlier statements to the police, his testimony at the preliminary inquiry and at trial. The trial judgerefused to give a Vetrovec warning in relation to his testimony on the basis that such a warning applied to the testimony of a witness whowas an accomplice or had something to gain by testifying for the Crown, but did not apply to the testimony of a complainant or victim. Laskin J.A., for the court, stated (at para. 41): I take a different view of the law.

I believe that Dickson, J.’s judgment in Vetrovec itself indicates that no category of witness isexempt from being the subject of a Vetrovec warning. Although giving a Vetrovec warning for the evidence of a complainant or avictim is perhaps unusual, the principles that underlie the warning do not distinguish between complainants or victims and otherwitnesses. [32] In their text McWilliams’ Canadian Criminal Evidence, 5th ed. loose-leaf, vol. 3 (Toronto: Thompson Reuters CanadaLimited, 2013) The Hon. Mr. Justice S. Casey Hill, Prof. David M. Tanovich & Louis P.

Strezos, eds., suggest that any basis that leads tothe conclusion that the witness’s testimony may be unreliable is sufficient to engage a consideration of whether to give a cautionarywarning (at para. 34:60.10): With rejection of the approach of an automatic warning consequent upon identification of a witness falling into an historicallyrecognized suspect evidence category, there must be a case-specific evidential basis for suggesting a particular witness’s testimony maybe unreliable.

This is the antithesis of the routine, mechanical application of a rule of evidence modelled solely on a category-basedscheme bound, in some circumstances, to operate arbitrarily. Is there an “evidential basis for regarding ... [the witness] ... as inherentlyunreliable”? An evidential basis does not include mere suggestions by cross-examining counsel. [33] Similarly, David M. Paciocco & Lee Stuesser, The Law of Evidence, 5th ed. (Toronto: Irwin Law Inc., 2008) state (at pp.523-24): .... Second, the warnings are no longer confined to witnesses who fall within predefined categories.

In any case where there areserious reasons to be concerned about the credibility or reliability of an important witness, a warning may be needed. .... [34] Thus, it is clear that a cautionary witness instruction is not limited to accomplices or those who fit the traditionaldefinition of an unsavoury witness but may be required for witnesses found not credible or unreliable for other reasons.

In determiningwhether to give some form of cautionary warning, the trial judge should focus on the facts that are stated to make the witness or theevidence unreliable or not credible, rather than asking whether a particular category of witness or evidence is at issue. [35] The question of whether to give a cautionary instruction has arisen in cases like the present, where a witness who does notfit the traditional definition of an unsavoury witness is, nevertheless, challenged as being unreliable or untrustworthy as a result ofinternal inconsistencies in his or her evidence and/or inconsistencies between his or her police statement, sworn testimony at thepreliminary inquiry and his or her sworn testimony at the trial or other evidence in the case. (See, for example, R. v.

Janvier (W.M.),2008 ABCA 223, 423 A.R. 338; R. v. Chow (S.) (1998), (BC CA), 107 B.C.A.C. 281; R. v. Obeng (C.K.), 2006ABCA 197, 391 A.R. 206; R. v. Innerebner (T.L.), 2013 ABCA 9, 539 A.R. 382; R. v. G.C. (1996), (NL CA), 144Nfld. & P.E.I.R. 204; R. v. Almajidi (K.), 2008 SKCA 56, 310 Sask.R. 142; and R. v.

Sinclair (J.G.), 2010 MBCA 105, 262 Man.R. (2d)23.) [36] These cases demonstrate that inconsistencies in a witness’s evidence may attract a cautionary warning even if the witnessdoes not fit the traditional definition of an unsavoury witness, but a warning is not required in every case where there areinconsistencies. If that were the case, almost every witness would attract a warning, as defence counsel can usually find someinconsistencies in a witness’s evidence, especially if the witness has given one or more police statements and then testified in an earlierpreliminary inquiry or other proceeding.

When Should a Warning Be Given [37] Major J. summarized the considerations for determining when to give a warning as follows in Brooks (at para. 80): In

summary, two main factors are relevant when deciding whether a Vetrovec warning is necessary: the witness’s credibility, andthe importance of the witness’s testimony to the Crown’s case. No specific threshold need be met on either factor before a warningbecomes necessary. Instead, where the witness is absolutely essential to the Crown’s case, more moderate credibility problems willwarrant a warning. Where the witness has overwhelming credibility problems, a warning may be necessary even if the Crown’s case is astrong one without the witness’s evidence. In short, the factors should not be looked to independently of one another but in combination.

[ 38 ] In McWilliams’ Canadian Criminal Evidence , the guideposts for exercising the discretion as to when to give a warning are stated as follows (at para. 34:60.30): Although a body of jurisprudence suggests that a warning may be unnecessary if the jury could, for itself, figure out that the witness’s testimony required special caution, an emergent view it seems requires a caution even when the presiding trial judge believes the testimonial blemishes are readily apparent to the triers.

Accepting that no category of suspect witness is subject as a matter of course to a Vetrovec warning, and that a discretion exists as to whether such a caution should be given commensurate with the circumstances of a particular trial, can any signposts or trends be identified as to when the failure to give the warning will be considered either nondirection amounting to legal misdirection or a miscarriage of justice? When is a special care caution effectively obligatory?

(1) The witness’s evidence incriminates the accused Where the suspect witness’s testimony does not incriminate the accused in some fashion, the Vetrovec warning is not warranted.

(2) The depth of the taint – the witness’s credibility At a general level, the trial court may have resort to experience with a particular category of witness historically raising reliability concerns and , more importantly, on the evidence of a particular case, must look to the risk of the impugned witness giving unreliable testimony. Is there a manifestly articulable reason to believe this witness has a motive to falsely testify or otherwise is likely to provide suspect evidence? As to the presence of a concatenation of troubling matters, it has been observed that “[t]he likelihood of the trier of fact requiring corroboration will rise as the factors multiply”.

(3) The relative importance of the witness’s testimony to the Crown’s case Where the suspect witness’s testimony not only inculpates the accused but also significantly advances the prosecution case, the circumstances favour a Vetrovec warning. …. [ 39 ] In

summary, a trial judge must weigh the importance of the testimony or the evidence to the determination of guilt and the significance of the credibility problems to determine whether to give a warning. What Form Should the Warning Take [ 40 ] If a cautionary warning is required, what form should it take?

If a Vetrovec warning is required, the following is the suggested practice: - the evidence of the witness is identified as requiring special scrutiny; - the characteristics of the witness that bring his or her evidence into serious question are identified; - the jury is cautioned that although it is entitled to act on the unconfirmed evidence of such a witness, it would be dangerous to do so; and - the jury is instructed to look for other independent evidence which tends to confirm material parts of the evidence of the witness for whom the warning is being given. (See, for example, R. v.

Khela , 2009 SCC 4 at para. 37 , [2009] 1 S.C.R. 104; and Korski at para. 144 .) [ 41 ] In fact, however, trial judges have considerable discretion as to the actual form and wording of the warning.

In McWilliams’ Canadian Criminal Evidence , the authors state (at para. 34:60.10): Within a principled exercise of discretion to assist the triers of fact in evaluating the reliability of evidence, a trial judge may, depending on the circumstances of a specific case, (1) provide no opinion or caution to jurors about a witness’s testimony, (2) give a full Vetrovec warning, a clear and sharp caution against acting on the suspect witness’s evidence without more, (3) give an “equivalent warning” to that required by Vetrovec , or (4) issue a “lesser instruction” alerting jurors to features of the witness’s evidence or background to take into account in assessing the worth of the witness’s evidence.

In many cases, without a strict Vetrovec warning, a jury charge which highlights for the triers a witness’s motivation to lie or other apparent flaw in the prosecution witness’s credibility will sufficiently apprise jurors of the care with which they should assess the witness’s credibility. [ 42 ] Some of the decisions referred to in para. 35 herein provide examples of alternative warnings and cautions found to be acceptable in relation to unreliable evidence or evidence that is shown to contain inconsistencies where the court determines that a warning following the Vetrovec format is not required.

Summary [ 43 ] In

summary, on an appeal to determine the need for and/or the adequacy of a jury charge regarding inconsistent or unreliable evidence, it is necessary to consider the following factors: (1) the nature and significance of the inconsistencies or other factors that underpin the allegation of unreliability or lack of credibility of the evidence/witness at issue; (2) the importance of the evidence to the outcome of the case and, in particular, to the accused’s guilt; (3) whether defence counsel objected to the jury charge on this basis or asked for any type of warning during the trial; and (4) how the impugned evidence was treated in the jury charge, whether there should have been a warning, if there was none, and, if there was, whether it was sufficient. (

v) Application to the Facts of This Case [ 44 ] Regarding the second factor, K.B.’s evidence incriminates the accused and is, in fact, the only evidence that incriminates him. Thus, it is essential to the Crown’s case.

As noted earlier, Major J. stated in Brooks that “where the witness is absolutely essential to the Crown’s case, more moderate credibility problems will warrant a warning” (at para. 80). [ 45 ] Regarding the third factor, while a failure on the part of the defence, at trial, to ask for a warning or to object to a jury charge on the basis that it either does not contain a warning or that the warning is inadequate is not necessarily fatal to an appeal, it is clearly an issue for consideration.

As Major J. stated in Brooks , “it has often been recognized that once non-direction or misdirection has occurred, the absence of a request from counsel to correct it is a factor to be considered in evaluating the prejudice that has been occasioned” (at para. 99). (See, also, the comments of Bastarache J. at paras. 15-19.) [ 46 ] In this case, the defence clearly asked during the first pre-charge conference that the trial judge include a cautionary warning in the jury charge and expressed his concern that a failure to do so would prejudice his client, therefore this factor is not an issue in this appeal. [ 47 ] This appeal is to be determined on the first and fourth factors.

I will first look at the relevant portions of the jury charge. [ 48 ] The jury charge includes what is known as “boilerplate” instructions about weighing and assessing evidence, which includes the following general instructions about inconsistencies: When you go to the jury room to consider the case, use the same common sense that you use every day in deciding whether people know what they are talking about and whether they are telling the truth. There is no magic formula for deciding how much or how little to believe of a witness’s testimony or how much to rely on it in deciding this case.

But here are some questions that you might want to consider. . . . . . Do any inconsistencies in the witness’s evidence make the main points of the testimony more or less believable and reliable? Is the inconsistency about something important, or a minor detail? Does it seem like an honest mistake? Is it a deliberate lie? Is the inconsistency because the witness said something different, or because he or she failed to mention something? Is there any explanation for it?

Does the explanation make sense? [ 49 ] The trial judge later said: You will recall that both [M.S] and [K.B] were referred to their evidence previously given at the preliminary inquiry under oath and also to their previous police statements.

When a witness says one thing in the witness box, but has said something you find to be quite different on an earlier occasion your common sense tells you that the fact that the witness has given different versions may be important in deciding whether or how much you believe of, or rely upon, the witness’s testimony. [ 50 ] The trial judge also included a reference to differences making it unsafe to convict (at para. 22 herein), but that was in the context of a review of the position of the defence.

Thus, the trial judge did not include in the charge either his own special warning as requested by defence counsel or even the more limited instruction regarding inconsistencies under oath to which the Crown agreed. He did, however, include a review of the evidence of the witnesses and of the inconsistencies related to K.B.’s evidence. [ 51 ] The accused’s argument in this case raises issues identical to those found in the Alberta Court of Appeal’s decision in

Janvier . In that case, the court found that the failure to give a cautionary warning constituted an error of law, such that a new trial was required. A closer review of that case is of assistance both in understanding the legal principles and in the application of the principles to the facts. [ 52 ] In Janvier , the accused was charged with murder. He admitted to manslaughter, and the issue was whether the Crown had proven that he had the necessary intent for murder. The evidence of intent rested on the

interpretation of controversial evidence of several teen or pre-teen witnesses, being witness reports of certain comments made by or to the victim and the accused. [ 53 ] The trial judge gave the jury the “boilerplate” charge related to inconsistent evidence, very similar to that in this case.

Despite a request by trial counsel for a cautionary warning about the key witnesses, there was no such warning given, again like in the present matter. [ 54 ] The appellate court in Janvier stated the legal principles as follows (at paras. 7, 9, 10): The charge left it to the jury in general terms to decide what, if any, inconsistency there was, and its effect on credibility. There was no guidance about the effect of inconsistency under oath on crucial evidence.

Inconsistency is not routine when the inconsistency is between present testimony and prior testimony or is between present testimony and prior formalized statements, where the witness should have understood the importance of telling the truth on both occasions [authorities omitted]. The case at bar does not involve a Vetrovec situation as such. Nevertheless, Vetrovec points to a general wisdom in giving warnings to a jury concerning the source, nature or continuity of any evidence when necessary in the case .

It does not fall to a trial judge to replicate in detail the arguments of counsel on points of contention. Nonetheless, the above passage in Brooks [at para. 80] is not merely applicable to cases where a Vetrovec warning may apply. The passage points to two key considerations that should be weighed by trial judges where significant matters of concern really arise respecting any specific testimony, and where the real nature or effect of those concerns will not be appreciated by the jury without some guidance by the trial judge. This is not to assert a broad duty on trial judges to editorialize about evidence.

But some evidential situations - for example, eyewitness identification, or the testimony of prison informers - have been found to involve risks that a jury might not fully see and appreciate because they lack the lens of judicial experience. In this case, we find the charge lacked sufficient guidance to the jury as to the many case-specific concerns about the inconsistent evidence of the youthful Crown witnesses. The appellant’s position before the jury hinged on these witnesses.

The trial judge was, in the unique circumstances of this trial, required to draw to the jury’s attention the nature of those case-specific concerns and why they were significant. He did not do this. The submissions of counsel on these issues were detailed, but they were not objective and were not curative.

As settled by Brooks , such a defect in this particular charge involves error of law. …. [ 55 ] While I would agree with the principles set out in Janvier , the case is of greater assistance as a comparison of the inconsistencies at issue, to assist in determining whether they rise to the level where it can be said that the trial judge’s decision not to give a cautionary warning is so clearly wrong as to amount to an injustice. [ 56 ] The defence counsel in this case reviewed the inconsistencies in K.B.’s evidence in his submissions to the jury as follows: 1.

Timeline : K.B. said that the tour of the residence ended and they arrived at the office at 10:30 p.m., while Ms White said that K.B. called her at 10:30 p.m., which call occurred after K.B. left the residence. This timeline leaves no time for the assault, which K.B. told the police lasted about 45 minutes, but it is consistent with the accused’s position that there was no assault. K.B. testified at the preliminary inquiry that she left the residence between 11:15 p.m. and 11:30 p.m. She changed that at trial to say that she left at around 11:00 p.m. 2.

Prior Contact : On direct examination at the trial, K.B. said that the only contact she had with the accused prior to July 18, 2008 came during shift changes and when he called her to come in for the training. The defence then produced an email from the accused to K.B. confirming their earlier conversations regarding him looking for other employment, which email was dated July 9, 2008, nine days before the alleged assault. 3. Injuries : K.B. told the police that she had a sore back and shoulders, but she told Ms White that she had a sore bottom. 4.

Kisses : K.B. said nothing to the police about the accused kissing or attempting to kiss her. At the preliminary inquiry, K.B. testified that she was on the bed, that the accused leaned over to try to kiss her, that she leaned back to get away, that he got on top of her and that he then proceeded to sexually assault her, which she repeated on cross-examination. At the trial, she reverted to the story she told the police, that there was no kissing and no attempt to kiss. 5. Condom : K.B. told the police that the accused used one condom and that he had it on the whole time.

Defence counsel asked “[w]hy did that evidence change?” At the preliminary inquiry, K.B. testified that the accused put the condom on before he turned the light off, while, at the trial, she said that he put the condom on after the light was turned off and the door was closed.

6. Lights : Her evidence at the preliminary inquiry was “all over the map” as to whether the lights were on or off. She said that the lights in the adjacent recreation room were on and they were sitting on the bed – which would mean that the door was not closed. She then changed her story and said that the lights were not on, but she used her cell phone as a light. 7. Screams : In her first statement to the police, K.B. said that she screamed out loud. In her second statement to the police only 24 hours later, she said that she did not scream. 8.

How the Events Started : Ms White said that K.B. told her that K.B. was on the chair and the accused was on the bed. He asked her to join him and she asked “Why?” Then he grabbed her arm. At the preliminary inquiry, K.B. said that they were both sitting on the bed and he leaned over to kiss her, then she leaned back. At that point, her clothes were on. At the trial, K.B. said that the accused walked to the door, turned off the light, closed the door, put the condom on and came to the bed. She was standing there, he pulled her pants down and then pushed her onto the bed. 9.

Discrepancies Between K.B. and Ms White : K.B. and Ms White had been best friends for 17 years. K.B. testified that she would never have said that she wanted to kill herself and she denied that she and her boyfriend were having any problems, while Ms White testified that that was untrue – she said that there was lots of drama, lots of tears and lots of issues regarding K.B. and her boyfriend.

Secondly, there was the discrepancy regarding injuries – Ms White testifying that K.B. told her, that night, that her bottom was sore and K.B. denying both that she said that and that her bottom was sore. [ 57 ] Two matters put forth by the defence as inconsistencies, being the failure to provide telephone records and K.B. not telling her boyfriend about the training session, did not involve any inconsistencies. [ 58 ] Further to item 6 regarding lights, K.B. testified at the trial for the first time, that her cell phone was in the car and not with her in the office.

She then said that the light in the room was coming from the computer monitor. Defence counsel suggested to her that there was no mention of light from the computer screen at the preliminary inquiry. She agreed and the Crown did not object. The defence argues that this is another inconsistency in her evidence.

In fact, while K.B. did testify at the preliminary inquiry that she had used her cell phone as a light, she later stated that “there must have been light from the monitor then at that time on the computer screen or something, and you could hear it.” The evidence at the preliminary inquiry about the computer screen was missed at the trial by both counsel as well as by K.B.

Thus, contrary to the defence argument, mention of light from a computer screen was not raised for the first time at the trial. [ 59 ] That said, I would agree that there are a number of inconsistencies in K.B.’s evidence and that K.B. agreed that some things that she had said earlier were not correct. Her explanation was that she thought that what she said at the preliminary inquiry was correct at that time, but she received the preliminary inquiry transcripts and police statements in preparation for the trial and, on reviewing them, she realized that there were errors.

She stated clearly and maintained that her testimony at the trial was correct. [ 60 ] The court in Janvier explained the inconsistencies in that case as follows (at para. 4): The Crown’s position as to murder rested mainly on the jury’s

interpretation of controversial evidence, notably reports of certain comments made by or to the victim and the appellant. One witness, Bonnie MacDonald, asserted that she told the group who were beating the victim that he was going to die if they continued to beat him. The versions of two other witnesses, Shana Deltess and Alanna Cardinal suggested that, in response to a remark of the victim to the effect “If you’re going to kill me, just kill me” the appellant made a statement reported in direct evidence as “I’ll kill you, and I really don’t remember” (Cardinal) and “Then I’ll kill you or something” (Deltess).

Other witnesses did not hear the appellant make such a statement. Deltess and Cardinal were not firm even in direct evidence on what was said. In cross examination, Deltess acknowledged that she had been telling the truth when she testified at the preliminary inquiry that she did not hear the appellant say anything when the victim said “just kill me”. She also admitted that she had implicated a fourth person named “Fuji” who had not been there at all, and that those statements were false, saying “I said anything”.

In cross examination, Cardinal admitted being confused, having “a hard time remembering all this stuff”. She did not mention a female being involved to police in a first interview, then implicated her in the second, and then at trial said she did not know what role the female played. After these and other contradictions, she said she was not certain whether any of her trial answers were true or not, including who started the fight. [ 61 ] It is clear that the inconsistencies referred to in Janvier went to the core of the witnesses’ testimony about the key issue of what was said at the time of the killing.

Deltess testified at the trial that the accused made certain incriminating statements, but at the preliminary inquiry said that he said nothing. She also implicated a third person, whom she later admitted was not even there.

Cardinal implicated a female, then said that she was not there, and ended by saying that she was not certain whether any of her trial testimony was true, including who started the fight. [ 62 ] In the present case, a review of the evidence shows that K.B. was consistent in the core facts – she went to the group home for a tour by the accused in preparation for working there; the tour ended in the office, where the furniture included a single bed and a desk; there were three attempts at intercourse, one on the bed with her on her back, a second on the bed with her on her stomach and a third with her standing up and pushed against the desk.

All were without her consent. When the accused left the room, she ran out of the office with her clothes in hand, drove away and then pulled over to call her friend. She was upset and spent a few days with her friend. [ 63 ] A review of the two cases shows that the inconsistencies in this case were qualitatively different from those in Janvier , as they went to details of the events and not to the core events.

While I would agree with defence counsel that, at some point, the sheer number of inconsistencies will make the story so unreliable that a warning becomes necessary, it is for the trial judge, exercising his

discretion after having heard the evidence, to determine whether the inconsistencies have reached that level. His decision in that regardis entitled to deference (see paras. 15-17 herein). While it would have been preferable if the trial judge in this case had given acautionary warning, I do not see that his failure to do so was so clearly wrong as to amount to an injustice. [64] As is often said, a jury charge does not have to be perfect; what is expected is that it is functional and serves its intendedpurpose.

In this case, the jury was required to give verdicts on two counts; it convicted on one and acquitted on the other, whichoutcome makes sense on the facts of the case. There were a number of inconsistencies on the part of both M.S. and K.B. In the case ofM.S., there was no confirmatory evidence and the jury acquitted, while in the case of K.B., there was confirmatory evidence from MsWhite in the form of the early (in fact, immediate) disclosure and her evidence that K.B. was upset upon leaving the group home, and thejury convicted.

These outcomes follow the evidence and support the conclusion that the jury charge was functional. [65] If the trial judge had given a cautionary warning regarding M.S. and K.B., he would have pointed to the evidence thatsupported K.B., being the testimony of Ms White, and could have pointed to no evidence supporting M.S.’s testimony. The outcomeindicates that these are the steps that the jury followed. [66] Looking at the jury charge as a whole, I cannot conclude that the trial judge’s failure to give a cautionary warning was soclearly wrong as to amount to an injustice.

As a result, I would dismiss this ground of appeal. IV. SECOND GROUND OF APPEAL: WAS THERE AN UNREASONABLE VERDICT? [67] The second ground of appeal alleges that the failure to provide a clear and sharp warning resulted in an unreasonableverdict. Having found that the trial judge did not err in not giving a warning, there is no basis for this ground of appeal. Thus, I woulddismiss it as well. V. THIRD GROUND OF APPEAL: THE SENTENCE APPEAL [68] The trial judge sentenced the accused to three years in custody.

The accused has appealed that sentence on the basis thatthe trial judge erred in law by mischaracterizing the offence as a major sexual assault, resulting in the consideration of inappropriatesentencing principles and leading to a sentence that is unduly long and harsh. [69] The Crown argues that the trial judge was entitled to find that the circumstances of this sexual assault were serious andthat he committed no error in determining that three years was an appropriate starting point against which to weigh the relevant factorsand the conduct of the accused. [70] The Supreme Court of Canada has repeatedly underlined the discretionary nature of the sentencing procedure and hasadmonished courts of appeal against interfering with the sentences imposed by trial judges except in the clearest of circumstances.

Thiswas stated clearly by Iacobucci J. in R. v. Shropshire, (SCC), [1995] 4 S.C.R. 227 (at paras. 46, 50): The question, then, is whether a consideration of the “fitness” of a sentence incorporates the very interventionist appellate reviewpropounded by Lambert J.A. With respect, I find that it does not. An appellate court should not be given free reign to modify asentencing order simply because it feels that a different order ought to have been made.

The formulation of a sentencing order is aprofoundly subjective process; the trial judge has the advantage of having seen and heard all of the witnesses whereas the appellate courtcan only base itself upon a written record. A variation in the sentence should only be made if the court of appeal is convinced it is notfit. That is to say, that it has found the sentence to be clearly unreasonable. Unreasonableness in the sentencing process involves the sentencing order falling outside the “acceptable range” of orders .... .... [71] This deferential standard was confirmed the next year in R. v.

M. (C.A.), (SCC), [1996] 1 S.C.R. 500, inwhich Lamer C.J.C., writing for the court, stated (at paras. 90-92): Put simply, absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court ofappeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit. Parliament explicitly vestedsentencing judges with a discretion to determine the appropriate degree and kind of punishment under the Criminal Code. …. ..... ….

The determination of a just and appropriate sentence is a delicate art which attempts to balance carefully the societal goals of

sentencing against the moral blameworthiness of the offender and the circumstances of the offence, while at all times taking into accountthe needs and current conditions of and in the community. The discretion of a sentencing judge should thus not be interfered withlightly. ….

For these reasons, consistent with the general standard of review we articulated in Shropshire, I believe that a court of appealshould only intervene to minimize the disparity of sentences where the sentence imposed by the trial judge is in substantial and markeddeparture from the sentences customarily imposed for similar offenders committing similar crimes. [72] This remains the standard of review to be applied by a court of appeal when reviewing a sentence imposed by asentencing judge. (See also R. v. Wright (C.D.), 2010 MBCA 80 at para. 20, 258 Man.R. (2d) 118; R. v.

G.W.R., 2011 MBCA 62 atparas. 12-13, 268 Man.R. (2d) 204; and R. v. W.H., 2013 SCC 22 at para. 30, [2013] 2 S.C.R. 180.) [73] While the accused argues that the trial judge erred in categorizing this offence as a major sexual assault, it is clear that,even if there is such an error, it would not constitute an error in principle. (See R. v. McDonnell, (SCC), [1997] 1S.C.R. 948 at para. 32; and R. v.

J.A.G., 2008 MBCA 55 at para. 9, 228 Man.R. (2d) 99.) In J.A.G., Monnin J.A. stated (at para. 9): The fact that the sentencing judge made a finding that she was dealing with a major sexual assault is not in and of itself an error inlaw as a mischaracterization of an offence, according to judicially created categories, is not an error in principle nor should it be treated asone. See R. v. McDonnell (T.E.), (SCC), [1997] 1 S.C.R. 948; 210 N.R. 241; 196 A.R. 321; 141 W.A.C. 321.

It,however, invites a review from this court as to whether the sentence imposed was fit because it brought into the sentencing processissues that should not have been present and could easily have skewed what would otherwise be the normal considerations applicable indetermining an appropriate sentence for this offence. …. [74] The question then becomes whether the sentence imposed by the trial judge was unfit – that is, unreasonable or fallingoutside the acceptable range of sentences for this offence and this offender. [75] The accused has provided the court with a number of decisions involving sexual assaults of a generally similar nature tothis case in which the offences were not characterized as major sexual assaults and in which the accused received sentences of two yearsor less. (See McDonnell; R. v.

Malik, 2012 BCSC 502 (QL); R. v. Brewster, 2006 SKQB 514 (QL); R. v. Greenhalgh (D.J.), 2012 BCCA236, 322 B.C.A.C. 166; and R. v. Hall (W.T.), 2010 ABCA 165, 487 A.R. 182.) [76] The Crown disagrees with the defence position that this was not a major sexual assault, arguing that penetration is not arequirement for a major sexual assault. It argues that the circumstances in this case were serious, placing this offence within thecategory of offences for which a three-year sentence was an appropriate starting point.

It argues that the trial judge acknowledged all ofthe mitigating factors, including the absence of a criminal record, an extensive social network and a positive pre-sentence report, but thathe did not err in placing weight on the principles of denunciation and deterrence. [77] I would agree with the Crown that there were a number of aggravating factors: - the accused was in a position of trust, in that he was responsible for hiring and supervising the staff at the group home, where K.B.was hoping to obtain employment; - the sexual assault occurred at the workplace; - there was an element of premeditation or “setting up” of K.B. in having her attend for training late in the evening, which breached theusual protocol; - K.B. suffered emotional, psychological and some physical harm; - the accused forcibly removed K.B.’s clothing and persisted in repeated attempts to penetrate her after she made it clear that she wasnot consenting; - on the last occasion, K.B. was attempting to leave the room, and the accused prevented her from doing so. [78] The fact that the offence took place in the workplace, where a person should be able to feel safe, and that it wasperpetrated by a person in authority, which places the victim at increased vulnerability, increases the seriousness of the offence such thatit could be categorized as a major sexual assault. [79] While precedent cases provide some guidance and assist in determining a range of sentence, they can do no more thanthat because of the factual differences between cases.

As is often said, no two cases are identical. I have reviewed all of the casesprovided by both counsel, but I am not convinced that a sentence of three years is outside of the range of available sentences for this typeof offence in these circumstances. For example, this court sentenced the accused in Wright to three years’ incarceration after finding thatthe offence did not constitute a major sexual assault.

While that case differs from this one due to that accused’s related criminal record,the facts in Wright are also less serious in that the sexual assault involved only one attempt at digital penetration that took only a fewminutes, while in this case there were a number of aggravating circumstances, as already set out. [80] For these reasons, and despite the mitigating factors, I would find that, whether or not this case constitutes a major sexualassault, a sentence of three years’ incarceration, while perhaps near or at the top end of the range, is not outside of the range such as to

make it unreasonable or unfit and, thereby, justify appellate intervention. [ 81 ] For these reasons, I would dismiss the sentence appeal. VI. DECISION [ 82 ] This case involves an appeal by the accused against both his conviction and his sentence.

For the reasons set out herein, I would dismiss the first ground of appeal on the basis that the trial judge did not err in not giving either a Vetrovec or cautionary warning to the jury regarding the inconsistencies between K.B.’s evidence at trial and her prior statements and testimony at the preliminary inquiry. [ 83 ] As the second ground of appeal is premised on the trial judge having erred in his jury charge, I would dismiss this ground of appeal on the basis that there was no such error. [ 84 ] I would also dismiss the third ground of appeal, being the sentence appeal, on the basis that there was no error in principle, failure to consider a relevant factor or overemphasis of the appropriate factors.

Further, I would find that the sentence was within the range of available sentences and, therefore, was not unreasonable or unfit. J.A. I agree: J.A. I agree: J.A.