R. v. Johnson (D.T.), 2015 MBCA 28

Citation: R. v. Johnson (D.T.), 2015 MBCA 28 Date: 20150311 Docket: AR14-30-08178 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Mr. Justice Marc M. Monnin Mr. Justice William J. Burnett BETWEEN: HER MAJESTY THE QUEEN ) M. B. Lazar ) for the Appellant Respondent ) ) A. Y. Kotler- and - ) for the Respondent ) DAMIEN TROY JOHNSON ) Appeal heard and ) Decision pronounced: (Accused) Appellant ) March 11, 2015 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). BURNETT J.A. (for the Court): [1] The accused appeals his conviction for sexual assault and sexual interference with a person under the age of 14 years,contrary to ss. 271 and 151(

a) of the Criminal Code. [2] In the indictment the offences were said to have been committed on or between October 16, 2003 and June 30, 2007. The accused’s 18th birthday was on October 16, 2003. [3] The accused argues that the Youth Justice Court, and not the Court of Queen’s Bench, had exclusive jurisdiction withrespect to the offences because the evidence was unclear as to whether the offences were committed after he attained the age of 18years. In support of this submission, the accused relies upon ss. 14(1), 14(5) and 16(

c) of the Youth Criminal Justice Act (the Act), aswell as the definition of a “young person” in s. 2 of the Act. [4] The accused also submits that the trial judge’s decision as to when the sexual assault and sexual interference occurredis unreasonable; that the differing accounts as to the timing of the incidents had to have raised a reasonable doubt, in particular as towhether the offences occurred when he was a youth or an adult; and that he should have been treated as a youth if there is a reasonabledoubt as to whether an offence occurred before October 16, 2003. [5] The accused acknowledges that the standard of review for findings of fact is palpable and overriding error, but saysthat the reasonableness of the verdict is to be measured against the totality of the evidence and by scrutinizing the logic of the trialjudge’s findings of fact or inferences drawn from the evidence at trial (R. v.

Sinclair, 2011 SCC 40 at para. 69, [2011] 3 S.C.R. 3). [6] In our view, the appeal must be dismissed. [7] We begin with the observation that the standard of review where an unreasonable verdict is asserted was recentlysummarized by the Supreme Court of Canada in R. v. R.P., 2012 SCC 22, [2012] 1 S.C.R. 746, as follows (at paras. 9-10): To decide whether a verdict is unreasonable, an appellate court must, as this Court held in R. v. Yebes, (SCC), [1987]2 S.C.R. 168, and R. v.

Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36, determine whether the verdict is one that a properlyinstructed jury or a judge could reasonably have rendered. The appellate court may also find a verdict unreasonable if the trial judge hasdrawn an inference or made a finding of fact essential to the verdict that (1) is plainly contradicted by the evidence relied on by the trialjudge in support of that inference or finding, or (2) is shown to be incompatible with evidence that has not otherwise been contradicted or

rejected by the trial judge (R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at paras. 4, 16 and 19-21; R. v. Beaudry, 2007 SCC 5, [2007]1 S.C.R. 190). Whereas the question whether a verdict is reasonable is one of law, whether a witness is credible is a question of fact.

A court of appealthat reviews a trial court’s assessments of credibility in order to determine, for example, whether the verdict is reasonable cannotinterfere with those assessments unless it is established that they “cannot be supported on any reasonable view of the evidence” (R. v.Burke, (SCC), [1996] 1 S.C.R. 474, at para. 7). [8] The trial judge was very much alive to the issue of whether the Crown had proven beyond a reasonable doubt that theaccused was 18 at the time of the offences. [9] Both at trial and on appeal, the accused relied heavily on the complainant’s statement to the police and her evidenceat the preliminary inquiry that nothing happened after the accused started dating C.W. in September 2002.

However a careful review ofthe evidence at trial confirms (the Crown’s submission) that while some of the complainant’s prior statements could be read assuggesting that all of the incidents took place prior to his relationship with C.W., her evidence at trial clarified that she had not intendedto give that impression, and that what she meant was that the assaults had ceased during that relationship, only to recommence after itended.

At no point did the complainant suggest that all of the incidents took place before September 2002. [10] The trial judge was aware that the complainant was between 8 and 12 years of age when the incidents were alleged tohave occurred, but he accepted the complainant’s evidence, finding her both credible and reliable. He recognized that “there wereoccasions of inconsistent evidence between the police statement, the preliminary inquiry, and her viva voce testimony,” but concludedthat such inconsistencies were simply innocent mistakes.

In so doing, the trial judge relied upon the Supreme Court of Canada decisionin R. v. W.(R.), (SCC), [1992] 2 S.C.R. 122 at 134-35, which held that when an adult testifies to events that occurred inchildhood, inconsistencies on peripheral matters such as time and location should be considered in the context of the age of the witness atthe time of the events to which she is testifying. We are satisfied that the trial judge’s assessment of the complainant’s credibility isplainly supportable “on any reasonable view of the evidence” (see R. v.

Burke, (SCC), [1996] 1 S.C.R. 474 at para. 7;and R.P. at para. 10). [11] In our view, the trial judge was entitled to find, on the basis of the complainant’s evidence together with the otherevidence which he accepted (such as the timing of foreign student’s visit), that the offences (for which the accused was convicted) werecommitted by him when he was an adult. [12] As we have not been persuaded that the trial judge made any palpable and overriding error, or that the verdict wasunreasonable, the appeal must be dismissed. J.A. J.A. J.A.