R. v. T. (S.), 2015 MBCA 36

Citation: R. v. T. (S.), 2015 MBCA 36 Date: 20150414 Docket: AR14-30-08260 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Michel A. Monnin Mr. Justice William J. Burnett Mr. Justice Christopher J. Mainella BETWEEN: HER MAJESTY THE QUEEN ) S. T. ) on his own behalf Respondent ) ) C. St. Croix- and - ) for the Respondent ) T. (S.) ) Appeal heard and ) Decision pronounced: (Accused) Appellant ) April 14, 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). MAINELLA J.A. (for the Court): Introduction and Issue [1] The appellant appeals his convictions for sexual interference, sexual exploitation and sexual assault in relation to histeenage step-granddaughter. The principal ground of appeal is whether the judge erred in law as to the application of the burden of proofby convicting the accused simply on the basis of a “credibility contest” (R. v. J.H.S., 2008 SCC 30 at para. 9, [2008] 2 S.C.R. 152). Atthe hearing of the appeal, the court announced the appeal was allowed with reasons to follow.

These are those reasons. Background [2] The judge described the trial as a “he says/she says situation.” The complainant gave evidence that, over one year,while she lived with her grandparents on their farm, the accused fondled or kissed her breasts and buttocks and digitally penetrated hervagina. She provided particulars of nine incidents. The accused categorically denied any touching of a sexual nature occurred andtestified that his relationship with her was always appropriate. [3] While making reference to the decision in R. v.

W.(D.), (SCC), [1991] 1 S.C.R. 742, the judge thenimmediately stated his task in assessing the credibility of the two witnesses in this way: “The question is, whose evidence does the Courtprefer?” [4] The judge then gave a page and a half of reasons. He did not undertake a meaningful analysis of the evidence and thecontradictions regarding both witnesses.

He simply made the conclusory statement that he found the accused’s evidence to be“unreliable, untrustworthy, and thus not credible.” He then described the complainant to be “compelling, reliable and credible.” Hebriefly addressed deficiencies in her evidence as to the timing of the incidents and found that they were not material to her credibility. Discussion

[5] The Crown concedes that the judge made a poor choice in his words regarding the approach to assessing credibilityand his reasons overall are “slim.” It admits that the judge’s comments about deciding whose evidence to “prefer” in the W.(D.)analysis, is problematic at first blush.

However, it argues that this slip of the tongue is not determinative of the appeal because the judgelater said at the end of his reasons that, considering the evidence in its totality and the credibility of the witnesses, he did not believe theevidence of the accused, was not left in reasonable doubt by it, and was satisfied beyond a reasonable doubt of the accused’s guilt. Weare not persuaded by the Crown’s submission. [6] The role of an appellate court is not to take a microscope to a trial judge’s reasons, and to afford a high degree ofdeference to credibility findings.

Trial judges are presumed to know the law, there is no mandatory order they must follow in makingcredibility findings, and they do not have to explain in detail the process they have followed in reaching a verdict so long as the path tothe decision is intelligible (R. v. Vuradin, 2013 SCC 38 at para. 21, [2013] 2 S.C.R. 639; and R. v. R.E.M., 2008 SCC 51 at para. 24,[2008] 3 S.C.R. 3). That said, a trial judge cannot render a verdict in a criminal case by the process of simply deciding which competingnarrative of events he or she prefers; that is the so-called “credibility contest” error (R. v.

S. (W.D.), (SCC), [1994] 3S.C.R. 521 at 533-35; and J.H.S. at para. 9). The burden of proof on the Crown to displace the presumption of innocence is moredemanding. A trial judge must decide, on the whole of the evidence, whether they are left with a reasonable doubt about the guilt of theaccused (R. v.

C.L.Y., 2008 SCC 2 at paras. 6-8, [2008] 1 S.C.R. 5). [7] In our opinion, considering the judge’s reasons in the context of the entire record, we are not satisfied that the judgecorrectly applied the criminal burden of proof beyond a reasonable doubt; his reasons do not adequately articulate the basis for theconvictions (Vuradin at para. 15). His reasoning does not provide insight or the basis for reaching the conclusion he did on what areserious allegations (R. v.

A.J.S., 2011 ONCA 566 at para. 18, 280 O.A.C. 395). [8] The mere fact that the judge made reference to the analysis in W.(D.) is not determinative; the key question is whether“the correct burden and standard of proof were applied, not what words were used in applying them” (C.L.Y. at para. 7). The judge’sreasons do not have the necessary clarity to give us confidence that the verdicts were not based on the manifest error that the case turnedon which of the two competing versions of events he “prefer[ed]” (see R. v.

J.J.R.D. (2006), (ON CA), 218 O.A.C.37 at para. 37, leave to appeal to S.C.C. refused, [2007] S.C.C.A. No. 69 (QL)). A verdict based simply on the comparison of storiesimproperly shifts the burden of proof to the accused and does not respect the principle of reasonable doubt (J.H.S. at para. 13). [9] In the circumstances, this error in law cannot be said to be harmless, nor is the case for the Crown so overwhelmingthat the curative proviso can be applied here to dismiss the appeal. [10] In the result, we would allow the appeal, quash the convictions and order a new trial. J.A. J.A. J.A.