R. v. Ussa, 2014 MBCA 71

Citation: R. v. Ussa, 2014 MBCA 71 Date: 20140717 Docket: AR 14-30-08196 IN THE COURT OF APPEAL OF MANITOBA BETWEEN: ) G. F. WiebeHER MAJESTY THE QUEEN ) for the Applicant ) Respondent ) N. P. Steen ) for the Respondent- and - ) ) ) Chambers motion heard:FRANCISCO ANTONIO USSA ) July 10, 2014 ) (Accused) Applicant ) Decision pronounced: ) July 17, 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). MAINELLA J.A. Introduction and Issue [1] After a trial, the applicant was convicted by a provincial court judge of sexual assault and sentenced to 30 months’imprisonment. He seeks release pending determination of his conviction appeal. The Crown concedes that the appeal is not frivolousand the applicant will surrender into custody in accordance with the terms of a release order. The issue on this application is whether theapplicant has established on balance that his detention is not necessary in the public interest (s. 679(3)(

c) of the Criminal Code). Background [2] Prior to the sexual assault, the applicant and the complainant had a half-year relationship that the complainantdescribed as “friends with benefits.” On July 5, 2012, the two had sexual intercourse in the yard of the complainant’s rooming house. The disputed issue at trial was consent. [3] In his reasons, the judge applied the well-accepted standard of assessing reasonable doubt where credibility isimportant (R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742 at 758).

The judge made strong credibility findings against theapplicant: he failed to agree with reasonable suggestions, his version of events was illogical and his testimony had several internalinconsistencies. The judge found a defence witness who lived in the rooming house to be “highly unreliable,” his evidence wascontradicted by both the complainant and the applicant.

In contrast, the judge found the complainant to be a credible and reliable witnessand any shortcomings with her evidence he determined to be immaterial in the circumstances. [4] The judge found that the applicant was very upset after an argument with the complainant and then demanded sex. Theapplicant tried to grab the complainant’s mobile phone and then pushed her onto to the hood of a car and began to kiss her and touch hergroin. The applicant stopped his attack when a jogger ran down the street. The complainant tried to escape to her residence, but the doorwas locked.

The applicant followed her, pushed her to the ground and forced sexual intercourse by pushing aside her shorts. During theattack, he bit her on the neck. [5] The judge relied on certain circumstantial evidence in making his credibility findings. The sexual assault protocol

exam confirmed the complainant had bite marks on her neck, an abrasion to her back and vaginal tearing. Also relevant was a Facebookmessage of April 13, 2012, from the complainant to the applicant: “I wish I didn’t have my period, I would fuck you so hard.” Thejudge found that the complainant’s practice was not to have sexual intercourse when she was menstruating, which was the case on theday of the incident. [6] The applicant is a 34-year-old first-time offender. He is divorced and has a six-year-old daughter for which he hasvisitation rights.

He currently lives with a new partner who is pregnant and is expecting the couple’s child this September. Theapplicant operates a business of installing granite counter tops. Over the approximate two-year period from his arrest through his trial,the applicant abided by his terms of release. [7] The sole ground of appeal is that the verdict is unreasonable because of errors the judge is alleged to have made inassessing the credibility of witnesses and in weighing the evidence. Analysis and Decision [8] The concept of “public interest” in s. 679(3)(

c) of the Criminal Code addresses both the concern of protection andsafety of the public as well as public confidence in the administration of justice. Maintaining public confidence requires striking thecorrect balance between reviewing the conviction that led to imprisonment for error and enforcing the judgment (R. v. Farinacci (L.W.)et al. (1993), (ON CA), 67 O.A.C. 197 at paras. 41-44). [9] Relevant factors to be cumulatively considered in the assessment of reviewability versus enforceability include: (

i) the seriousness of the offence; (ii) the background of the applicant, particularly any criminal record; (iii) the potential delay of the hearing of the appeal, particularly if the sentence will expire before the appeal is heard; and (iv) the relative strength of the ground(

s) of appeal. [10] Examination of the merits of the appeal to assess its relative strength works on a sliding scale either in favour of, oragainst, the application for release. Often the relative strength of the ground(

s) of appeal is the deciding factor in the assessment ofreviewability versus enforceability (R. v. Roussin (B.), 2011 MBCA 103 at paras. 27-30, 275 Man.R. (2d) 46). [11] The prior good character of the applicant and his release pending trial without incident satisfies me that this is not a casewhere concerns of protection and safety of the public cannot be addressed by some form of release with strict conditions and the twosureties the applicant proposed.

That is not the Crown’s reason for opposition to the applicant’s release; its concern is that publicconfidence in the administration of justice would be undermined by the applicant’s release pending his appeal. [12] I begin my assessment of the factors relevant to reviewability versus enforceability noting that the seriousness of theoffence here favours enforceability. This was a major sexual assault for which the applicant received a significant prison term. Thenature of its commission is disturbing.

The judge found that this was not a case where the applicant was under “any misapprehensionthat the complainant … was consenting.” The applicant attacked the complainant for his personal gratification; the judge found that theapplicant treated the complainant as his “property.” That callous attitude was aggravated by degrading violence, including biting. [13] The applicant’s background and lack of criminal record favours reviewability. [14] The short delay in hearing this appeal favours enforceability. This was a one-day trial.

The appeal can be perfected intime for it to be heard in the upcoming fall term of this court. The appeal will not be rendered nugatory by detention of the applicantuntil then. [15] Finally, while a panel of this court will ultimately determine the merits of the applicant’s appeal when it is fully argued,the limited record presented to me suggests that the applicant faces significant challenges for a successful appeal. The appeal’s relativestrength favours enforceability. [16] The judge delivered nine pages of reasons on a relatively brief and uncomplicated set of events.

In his reasons, thejudge stated the applicant’s theory that this was nothing more than casual, consensual sex, and explained why he was convinced beyonda reasonable doubt that was not the case. [17] Great deference must be shown to a trial judge’s assessment of witness credibility by an appellate court (R. v. W. (R.), (SCC), [1992] 2 S.C.R. 122 at 131). Appellate intervention is limited to situations where a credibility assessment cannotbe supported on any reasonable view of the evidence (R. v.

R.P., 2012 SCC 22 at para. 10, [2012] 1 S.C.R. 746). [18] Counsel for the applicant argued that, when looked at in isolation, certain findings of fact of the judge wereunreasonable. She also suggested the circumstantial evidence was equally consistent with “rough” consensual sex. Finally, in her view,the judge was unbalanced in his approach in scrutinizing the evidence from the Crown and the defence. [19] While I would not say that the applicant’s appeal is doomed to failure, he has a very daunting task to set aside the verdicton the basis of unreasonableness given the standard of appellate review.

The claim that the judge erred in assessing the credibility ofwitnesses and in weighing the evidence are not convincing simply on the basis of counsel critiquing parts of the judge’s reasons inisolation without more, such as directing the court to errors of the judge evident on the record.

[ 20 ] Clear and understandable reasons by a trial judge that are consistent with the proper application of the criminal burden of proof in the context of conflicting testimony cannot be easily impugned merely by counsel arguing that the trial judge should have come to a different factual conclusion ( J.R. v. R. , 2014 QCCA 869 at paras. 36-41 (QL)). [ 21 ] In my view, the applicant has not established that this is a case where, on balance, the interest of reviewability of his conviction outweighs the general rule favouring enforcing of the judgment.

Accordingly, as I have not been satisfied that the applicant’s detention is not necessary in the public interest, his application for release pending appeal is refused. J.A.