R. v. Ndyat, 2014 MBCA 68

Citation: R. v. Ndyat, 2014 MBCA 68 Date: 20140620 Docket: AR 12-30-07751 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Michel A. Monnin Madam Justice Diana M. Cameron Mr. Justice William J. Burnett BETWEEN: HER MAJESTY THE QUEEN ) R. M. Beamish ) for the Appellant ) Respondent ) R. N. Malaviya ) for the Respondent- and - ) ) Appeal heard and ) Decision pronounced:TSHIBANDA HILAIRE NDYAT ) June 17, 2014 ) ) Written reasons: (Accused) Appellant ) June 20, 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) CAMERON J.A. [1] The accused appealed his conviction for sexual assault and sought leave to appeal his sentence of four years’incarceration. At the hearing of the matter, he abandoned his sentence appeal and his conviction appeal was dismissed with shortreasons to follow. These are those reasons. [2] At the outset, it is important to note that the trial was conducted in French. However, on appeal, the accused retaineddifferent counsel than he had at trial and elected to proceed in English.

Copies of the trial transcript were translated to English for use inthis appeal. [3] The grounds of appeal listed in his notice of appeal are that the judge erred in his consideration of the evidence as itrelated to the credibility of the complainant and the accused. Further, that the trial judge erred in his application of R. v.

W.(D.), (SCC), [1991] 1 S.C.R. 742, and that he erred in failing to consider the whole of the evidence. [4] The Supreme Court of Canada, as well as this court, have repeatedly stated that, absent a palpable and overridingerror, a trial judge’s assessment of credibility is to be reviewed with deference. For a few recent examples, see R. v. W.H., 2013 SCC 22at paras. 30-31, [2013] 2 S.C.R. 180, R. v. Vuradin, 2013 SCC 38 at para. 11, [2013] 2 S.C.R. 639; R. v. Wright (N.A.), 2013 MBCA 109at para. 30, 303 Man.R. (2d) 26; R. v. Menow (R.A.), 2013 MBCA 72 at para. 32, 294 Man.R. (2d) 236; R. v.

N.H.P., 2013 MBCA 30 atpara. 20; and R. v. Flores (R.B.), 2013 MBCA 4 at para. 20, 288 Man.R. (2d) 173. [5] At the hearing of the matter, the accused stated that he was not attacking the credibility findings of the trial judge.

Rather, he argued that the trial judge did not give sufficient reasons for his findings. More precisely, he strenuously argued that the trialjudge’s reasons for disbelieving his evidence were either not articulated or were not grounded in the evidence. [6] The standard of review with respect to the sufficiency or insufficiency of reasons was explained in R. v. Oddleifson(J.N.), 2010 MBCA 44, 255 Man.R. (2d) 68 (leave to appeal to S.C.C. refused, [2010] S.C.C.A. No. 244 (QL)) (at para. 30): The standard of review with respect to the insufficiency of reasons is the standard of adequacy.

Reasons will not be inadequate if, whenread in their entire context, they fulfill the threefold purpose of informing the parties of the basis of the verdict, providing publicaccountability and permitting meaningful appeal (see R. v. R.E.M., 2008 SCC 51 , [2008] 3 S.C.R. 3; 380 N.R. 47; 260B.C.A.C. 40; 439 W.A.C. 40; 2008 SCC 51). See also Wright at para. 29 and Flores at para. 19. [7] The accused argues that the reasons provided did not meet the threefold purpose identified in R. v. R.E.M., 2008 SCC51, [2008] 3 S.C.R. 3. I disagree. [8] The trial judge commenced his reasons with a thorough review of the evidence.

He properly cited the test in W.(D.)and continued to properly define reasonable doubt. [9] Following his recital of W.(D.), the trial judge considered the evidence of the accused. He said he did not believe theaccused when he said that the complainant sexually assaulted him. Next, the trial judge provided six reasons for disbelieving theaccused. He said: The testimony of the accused is not credible. I do not believe it. His version of the facts is unlikely for the following reasons. The accused said that it was he who was sexually assaulted and not he who sexually assaulted the complainant.

I find this version of thefacts unlikely, especially given the fact that the accused is physically more imposing than the complainant. There was the evidence thathe weighs or weighed 140 pounds at the time of the incident, whereas the complainant only weighed between 100 and 110 pounds. He isalso taller than the complainant, who is only five feet tall. The accused is five feet ten. According to the accused, just before the sexual intercourse, it was the complainant who jumped on the accused. He was in his bedroomto think. It was the complainant who followed him. However, that is where he found the condom.

He then had a moment of weaknessand had sexual intercourse as he described it. Again that strikes me as unlikely. According to him, he was apparently traumatised by the incident, especially due to the fact that he had anal sexual intercourse with thecomplainant, something that is taboo in his African culture. Despite that, he tried to contact the complainant by telephone four timesafter the incident. He explained that he did so because he was looking for the condom that he couldn’t find in his apartment thefollowing evening. He was afraid that the complainant had used the condom to have his sperm to have a child.

I find this pretextunlikely. Firstly, why would the complainant have helped the accused put the condom on his penis if it was her intention to have a childwith the accused? Why would she have put his penis in her anus, if again the purpose was to have children? It is quite simply unlikely. In the version of facts given by the accused, the incident involving sexual intercourse took place immediately after the complainant’sarrival at the accused’s apartment, long before, even in his own version, the accused took the complainant back to her apartment around7:30.

According to his version of the facts, the complainant was only at his place for an hour, or an hour and a half. Once again, hisversion of the facts is flawed. In my opinion, the testimony of the accused did not have the ring of truth. The accused was often evasive in his answers. For example,he doesn’t remember whether he had an erection. He didn’t remember whether he had ejaculated. He said that he hadn’t seen thecomplainant before March 21, but in cross-examination, he said that it is possible he had seen her before.

Finally, there were contradictions between his statement of April 18 and his statement to Constable Prestayko and his testimony at trialthat I noted in the evidence about who put the condom on the accused -- on the penis of the accused, and whether there was analpenetration or not. I do not accept the accused’s explanation that the contradictions between his testimony and his statement toConstable Prestayko in his written statement of April 18 are due to his poor English. The contradictions are on simple, but principal,facts.

[10] The above is a translation of the trial judge’s reasons from French to English. The accused argued that the use of theword “unlikely” was not a sufficient basis for rejecting his evidence. However, it was noted in the Crown’s factum and reinforced by thecourt that, the French to English translation of the word “invraisemblable,” the word actually used by the trial judge, can also betranslated as “unbelievable” “implausible,” “incredible” or, more literally, “not resembling the truth.” [11] A review of the record evidences that each of the findings made by the trial judge was available to him on theevidence.

At the hearing of this appeal, there was a concern raised with the finding by the trial judge that the accused testified thatsexual intercourse took place immediately after he and the complainant arrived at his residence. Both the complainant and the accusedtestified that they drank beer and watched a cultural video prior to the incident.

In my view, in the context of the trial judge’s reasons fordecision, he was simply pointing out that the testimony of the accused was flawed concerning the length of time he was with thecomplainant that evening and not the exact time the incident occurred. [12] In his factum, the accused pointed out a few minor inconsistencies between the complainant’s evidence and that of theother witnesses called by the Crown.

A review of the transcript leads to the conclusion that many of the inconsistencies complained ofby the accused are not inconsistencies at all when the evidence of the complainant is viewed as a whole and in context. Despite this, thecredibility of the complainant and any inconsistencies in her evidence was hotly contested at the trial.

The trial judge acknowledgedsome inconsistencies, but found that there was no contradiction or confusion on the principal facts. [13] In fact, a review of the evidence provided by the complainant’s roommate, the nurse who performed the sexual assaultprotocol examination of her, the complainant’s supervisor at work and a co-worker of the complainant, substantially confirms herevidence. [14] In any event, the trial judge carefully considered the complainant’s evidence in the context of all of the evidence andfound her to be credible. He held: ….

She testified without hesitation and she was clear and precise in her testimony. She did not try to embellish her story. She remainedcollected during her cross-examination. It is for those reasons that I find her credible. [15] Even if he did not list every inconsistency as alleged by the accused, he was not required to do so (Flores at para. 52). The inconsistencies, as few as they were, between her evidence and that of the other witnesses were not “significant, unexplainedinconsistencies” nor “irreconcilable contradictions” such as were the case in R. v.

Popiel (R.G.) (1999), 1999 ABCA 55 , 228A.R. 351 (at para. 6) (C.A.). [16] Regarding the accused’s argument on sufficiency of reasons, in the recent case of Vuradin, Karakatsanis J., writing onbehalf of a unanimous court, paraphrased the test in the context of a sexual assault case based on credibility as (at para. 15): The core question in determining whether the trial judge’s reasons are sufficient is the following: Do the reasons, read in context, showwhy the judge decided as he did …. [17] She continued (at para. 19): I conclude that the reasons were sufficient – they allow for meaningful appellate review because they tell the appellant why the trialjudge decided as he did.

The trial judge found the complainant’s evidence compelling, the problems in her evidence inconsequential,and the appellant’s concoction theories speculative. The reasons reveal that the trial judge accepted the complainant’s evidence where itconflicted with the appellant’s evidence. No further explanation for rejecting the appellant’s evidence was required. [18] In my view, the circumstances in this case are no different. [19] Finally, the accused argues that the trial judge did not properly apply the test in W.(D.) in that he did not consider thewhole of the evidence.

This argument is based on the fact that the trial judge did not analyze and compare all of the accused’s evidenceagainst that of the complainant. This argument is founded on the same complaints as his arguments regarding credibility, and myconclusion is the same. That is, a careful review of the record and the reasons of the trial judge does not evidence any error in hisapplication of W.(D). [20] Therefore, based on all of the above, the appeal is dismissed. J.A.

I agree: J.A. I agree: J.A.