R. v. Walker, 2015 MBCA 69

Citation: R. v. Walker, 2015 MBCA 69 Date: 20150716 Docket: AR14-30-08167 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Barbara M. Hamilton Mr. Justice Marc M. Monnin Mr. Justice Christopher J. Mainella BETWEEN: HER MAJESTY THE QUEEN ) M. S. Minuk ) for the Appellant Respondent ) ) R. D. Lagimodière ) for the Respondent- and - ) ) Appeal heard: ) June 2, 2015ROBERT ARTHUR WALKER ) ) Judgment delivered: (Accused) Appellant ) July 16, 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. Introduction and Issues [1] The appellant was tried by a judge without a jury and convicted of the historic sexual offences of buggery and indecentassault on a male. The offences took place in the 1970s and involved the repeated sexual abuse of a child who was a neighbour. Theappellant was sentenced to three years’ imprisonment, concurrent on both offences. He appeals his convictions and seeks leave toappeal, and if granted, the sentence imposed. [2] Three issues arise in the conviction appeal.

The appellant argues that the verdicts are unreasonable because of errorsby the judge in her assessment of the credibility and reliability of the witnesses. He also says that the judge misapplied the burden ofproof by committing the “credibility contest” error in assessing the evidence (see R. v. S. (W.D.), (SCC), [1994] 3S.C.R. 521 at 533-35; and R. v. J.H.S., 2008 SCC 30 at para. 9, [2008] 2 S.C.R. 152). Finally, he submits that the judge misdirectedherself as to the permitted use(

s) of a prior consistent statement from the complainant to his mother in the 1970s. [3] In his sentence appeal the appellant says his sentence is unfit taking into account his current personal circumstancessuch as his advanced age (74), poor health, and the fact he is the sole caregiver for his wife, who is nine years older, in poor health andconfined to a wheelchair. [4] For the following reasons, I would dismiss the conviction appeal and deny leave to appeal sentence.

Background [5] The underlying circumstances of this appeal, based on the uncontested facts and findings of the judge, are as follows. [6] In November 1973 the complainant, age four, his younger sister and their parents moved into a house in Thompson,

Manitoba. The appellant lived next door with his wife and three stepsons. [7] Soon after arriving in his new home the complainant was invited over to see the appellant’s aquariums in the basement. Once there, the appellant forced the complainant to touch the appellant’s penis. [8] Thereafter, the appellant sexually abused the complainant in the appellant’s basement on a weekly basis. The sexualabuse took the form of oral and anal sex. The appellant made the complainant stand on a step stool while the appellant anally penetratedhim until ejaculation.

On one occasion the complainant described being led blindfolded by the appellant into his basement. Thecomplainant was then the subject of anal intercourse on the step stool in the presence of others. The appellant then led the complainantout of his house and removed the blindfold. [9] In May 1975 the complainant and his family moved to a different house on the same street.

The sexual abusecontinued for another three to four years until the complainant was able to take a different route to school which would not bring himinto contact with the appellant. [10] The complainant did not tell his parents about the sexual abuse because the appellant regularly threatened him that hisfamily would be hurt if anyone found out what was happening. [11] During the period of sexual abuse, the complainant’s parents observed the complainant acting oddly. At the dinner tablethe complainant was fidgety and repeatedly went to the bathroom.

The complainant testified that the reason he constantly had to go tothe bathroom was because of the pain and discomfort he experienced from anal intercourse. Matters got so bad that the complainant’sfather eventually tied the complainant’s legs to his chair during supper. Also, the complainant had frequent and severe nightmares andwould go into his parents’ bedroom.

The complainant’s father eventually had to put a lock on the bedroom door so that the complainantcould not enter the bedroom. [12] After the sexual abuse stopped, over 30 years passed without the complainant disclosing the sexual abuse to his family,ex-wife, girlfriend or anyone else. Then the complainant, now a police officer, had a personal set back as he and his girlfriend began toconsider separating. He decided to compose a seven-page journal about the sexual abuse he suffered as a child. On January 6, 2009, heemailed the journal to his parents and a trusted colleague.

This disclosure ultimately led to the prosecution. The complainant testifiedthat the delay in disclosing the sexual abuse until 2009 was because of personal embarrassment and to avoid his mother feeling guilty. [13] The complainant’s mother testified that when the sexual abuse was occurring, the complainant did disclose to her, onone occasion between 1973 and 1975 when the family lived next door to the appellant, that the appellant was acting inappropriately.

The complainant told his mother that he had been at the appellant’s house and the appellant “had pulled his pants down.” Thecomplainant did not provide any further details. The complainant’s mother spoke about the disclosure to her husband and a priest, butdid not confront the appellant or complain to police. The complainant testified that he had no recollection of this conversation with hismother.

Discussion The Judge’s Assessment of the Evidence [14] The appellant’s first two submissions as to the reasonableness of the verdicts and the misapplication of the burden ofproof by commission of the credibility contest error, both relate to how the judge assessed the evidence. Therefore, I will deal with thesetwo grounds of appeal together. [15] Trial judges enjoy the advantage of hearing and seeing witnesses, therefore, deference is owed to their factualdeterminations, particularly where adequate reasons are given on the key factual disputes in a case (R. v. W. (R.), (SCC),[1992] 2 S.C.R. 122 at 131; and R. v.

A.G., 2000 SCC 17 at para. 29, [2000] 1 S.C.R. 439). A court of appeal reviewing a trial judge’sassessment of either the credibility or reliability of a witness, for the purpose of examining whether a verdict is reasonable, cannotinterfere with that assessment unless it cannot be supported on any reasonable view of the evidence (R. v. R.P., 2012 SCC 22 at para. 10,[2012] 1 S.C.R. 746; and R. v. Perrone (C.), 2014 MBCA 74, 306 Man.R. (2d) 299, aff’d 2015 SCC 8). [16] I have not been persuaded that the judge’s approach to the evidence was so problematic that appellate intervention isnecessary.

To the contrary, the judge’s reasons, when read in light of the record, confirm she analyzed the evidence with great carebefore deciding on the whole of the evidence whether she was left with a reasonable doubt about the guilt of the appellant. A fewexamples from her reasons are illustrative. [17] The judge explained why she rejected the appellant’s denials of not even knowing the complainant, let alone notsexually abusing him. She addressed why the appellant’s wife’s evidence about the limited opportunity that the appellant would havehad in a busy household to commit the crimes, did not raise a reasonable doubt.

She articulated why she accepted the complainant’smother’s evidence about the odd behaviour of the complainant at home and the prior consistent statement occurring in the 1970s, despitethe frailties with that evidence identified by defence counsel.

Finally she provided clear justification as to why she believed that thecomplainant’s evidence was both credible and reliable despite being over three decades after the events in question. [18] I am also not convinced that the judge failed to recognize that the complainant’s evidence lacked adequate particularityto be sufficiently reliable given the considerable passage of time. In her reasons, the judge directed herself on the distinction between awitness’s credibility and reliability particularly when dealing with historic offences (see R. v. Morrissey (1995), (ONCA), 22 O.R. (3d) 514 at 526 (C.A.)).

The judge took appropriate care to scrutinize the reliability of the complainant’s evidence giventhe frailties of testifying to distant events, but did so with a “common sense” approach mindful that any frailty on a non-peripheralmatter, such as a time or a mundane detail of everyday life, did not undermine the overall reliability of his evidence as to childhoodevents (W. (R.) at pp. 133-34). [19] When the evidence as a whole is re-examined, to some extent reweighed, and the effects of the evidence are considered,

I am satisfied that a properly instructed judge could reasonably have rendered the verdicts (R.P. at para. 9). [20] I am also satisfied that the judge properly applied the burden of proof and did not commit the credibility contest error. Her reasons confirm that she did not arrive at her verdicts by simply deciding which competing version of events she preferred. Therefore, I would not accede to either ground of appeal relating to her assessment of the evidence. The Evidence of the Complainant’s Prior Consistent Statement [21] A prior consistent statement is a statement given by a witness on another occasion concerning the matter(

s) before thecourt, proven by the witness testifying about their prior statement, or through other evidence. A prior consistent statement ispresumptively inadmissible at common law (see R. v. Béland, (SCC), [1987] 2 S.C.R. 398 at 409-10). Despite themodern trend towards a principled approach in the law of evidence where trial judges assess questions of admissibility in acontextualized way, the law regarding prior consistent statements remains cast in the traditional approach of a rule, with categoryexceptions and exceptions to exceptions (see R. v. Stirling, 2008 SCC 10 at para. 5, [2008] 1 S.C.R. 272; R. v.

Dinardo, 2008 SCC 24 atparas. 36-37, [2008] 1 S.C.R. 788; and R. v. Ellard, 2009 SCC 27 at paras. 31-32, [2009] 2 S.C.R. 19). [22] This court’s suggestion in R. v. D.C.B. (1994), (MB CA), 95 Man.R. (2d) 220, to abandon, in cases ofa child’s complaint of sexual abuse, the complicated maze that is the law of prior consistent statements in favour of a common senseapproach based on a contextual balancing of the competing principles in a given case has not yet carried the day.

It is, however,noteworthy that since D.C.B. was decided two decades ago, more common law jurisdictions have abandoned the traditional approach toprior consistent statements in favour of one based on contextual balancing (for example, see Criminal Justice Act, 2003 (UK), c. 44, s.120; and Evidence Act 2006 (NZ), 2006/69, s. 35).

The irony of the current state of the law is not lost on me in that the Law ReformCommission of Canada recommended in 1975 that the “existing inflexible rule” regarding prior consistent statements be “abolished” infavour of a more liberalized approach as to admissibility and use of such evidence (Law Reform Commission of Canada, Report onEvidence, (Ottawa: Minister of Supply and Services Canada, 1977) at 94 (see also pp. 73, 93)). [23] Under the traditional category exceptions to the exclusionary rule regarding prior consistent statements, such evidence isadmissible for a limited use in discrete situations, including where the statement rebuts a previous allegation of recent fabrication againsta witness, or when the statement is necessary narrative for the trier of fact to properly understand the context of a case to assist in makingan assessment of credibility (see Stirling at para. 5; Dinardo at paras. 36-37; Ellard at paras. 31-33; and R. v.

D.G.S., 2013 MBCA 69,294 Man.R. (2d) 217). [24] The judge recognized that she was forbidden from using the evidence of the complainant’s prior consistent statement tohis mother about the appellant pulling down his pants as corroborative evidence. She gave herself the following limiting instruction (atpara. 52): .… Clearly, this evidence is not admissible as proof of the truth of the complainant’s statement, and, therefore, does not corroborate hisevidence about any acts on the part of the accused. [25] The judge then went on to use the prior consistent statement for two limited purposes.

She said it was “an additionalbasis upon which to refute any suggestion that [the complaint’s] allegations were fabricated in 2009” (at para. 53). She also said theprior consistent statement fell within the narrative exception. She stated (at para. 54): As for narrative, evidence of a complaint, or lack thereof, is relevant and admissible for the purpose of assessing the complainant’scredibility with respect to his conduct during the delay in reporting.

Here, the evidence of the report to the mother supports thecredibility of the complainant’s story as to why it took so long to make disclosure or report matters to the police (D.G.S., paras. 32-35). [26] Despite her limiting instruction and her stated restricted uses of the prior consistent statement, the appellant says that thejudge committed a reversible error by using the prior consistent statement as corroboration of the complainant (see R. v. G.H.B. (1999), (PE SCAD), 182 Nfld. & P.E.I.R. 296 at para. 3 (P.E.I. C.A.); R. v. L. (S.) (1999), (ON CA), 141C.C.C. (3d) 93 at 95 (Ont.

C.A.); and Dinardo at para. 40). Misdirection on the use of a prior consistent statement raises a question oflaw; the standard of review is therefore correctness (see D.G.S. at para. 10). (

i) Recent Fabrication [27] When assessing the credibility of the complainant, the judge was entitled to use the prior consistent statement from the1970s to rebut defence counsel’s explicit allegation during cross-examination that the complainant had fabricated the sexual abuseallegation in 2009 in his journal to “manipulate others to feel sorry” for him over his relationship breakup and to garner sympathy thatmight assist him in getting a loan to buy out his girlfriend’s equity in their house (see Stirling at para. 5; Ellard at paras. 33-34; and R. v.Kailayapillai (S.), 2013 ONCA 248 at para. 43, 305 O.A.C. 136, leave to appeal to S.C.C. ref’d, [2014] S.C.C.A.

No. 35 (QL)). (ii) Narrative [28] The purpose of the narrative exception is to provide necessary context or “chronological cohesion” for the trier of fact as

to how the charge arose, if that is relevant (R. v. Fair (J.E.) (1993), (ON CA), 67 O.A.C. 251 at para. 37; and Dinardoat para. 37). As Finlayson J.A. explained in Fair (at para. 32): …. It seems to me that the court should look to narrative as an exception to the rule against the admission of previous consistentstatements for a more hopeful approach to this vexing problem of the evidence of children in sexual assault cases.

It must be a part ofthe narrative in the sense that it advances the story from offence to prosecution or explains why so little was done to terminate the abuseor bring the perpetrator to justice. Specifically, it appears to me to be part of the narrative of a complainant’s testimony when sherecounts the assaults, how they came to be terminated, and how the matter came to the attention of the police.

See also D.G.S.; and D.C.B. at para. 25. [29] The important, but subtle, distinction between using a prior consistent statement to establish the context of a complaintof sexual abuse to assist in the assessment of the credibility of a witness, which is permissible, and using that statement to confirm thetruthfulness of a witness’s testimony, which is impermissible, is important to whether or not a reversible error has been committed (seeDinardo at para. 37; and R. v.

E.M.W., 2011 SCC 31 at para. 7, [2011] 2 S.C.R. 542). [30] Trial judges should exercise great caution with the narrative exception to the prior consistent statement exclusionary rulebecause it can be easily abused. It is not, and cannot become, a Trojan horse for the Crown to introduce anything said out of court by awitness.

Such caution is particularly important where, as is the case is here, the prior consistent statement is admissible for multiplepurposes thereby increasing the risk it may be used improperly as affirmative proof of the credibility of a witness or of the allegations. [31] The case law sets out several general principles about the narrative exception that are important to bear in mind. Tobegin, if the prior consistent statement is not an essential part of the narrative it should not be admitted as evidence (R. v. Hoffman (A.A.)(1994), 1994 ABCA 254 , 155 A.R. 275 at para. 13 (C.A.)).

Even when the prior consistent statement is essential narrative,only those details in the statement necessary to properly explain events are admissible (R. v. A.E.R. (2001), (ONCA), 151 O.A.C. 105 at para. 15; and D.G.S. at paras. 27-28). Finally, with few exceptions, a trial judge is obligated to instruct the juryon the limited value of such evidence and on both the permissible and non-permissible uses of the prior consistent statement (Fair atpara. 41; Ellard at paras. 42-43; R. v. Le (T.D.), 2011 MBCA 83 at para. 252, 270 Man.R. (2d) 82, leave to appeal to S.C.C. ref’d, [2011]S.C.C.A.

No. 526 (QL); and D.G.S. at paras. 28, 33-35). [32] In a case such as this, involving serious historical allegations, the relevance of why the disclosure of the sexual abusetook so long to get before the courts was a relevant concern for the judge (see D.G.S. at para. 15). In addressing the appellant’ssubmission of misdirection by the judge, her reasons as to the use of the prior consistent statement of the complainant to his mother mustbe examined in context (E.M.W. at para. 7; and R. v. Louie (T.), 2014 SKCA 107 at paras. 12-16, 446 Sask.R. 99, leave to appeal toS.C.C. ref’d, [2014] S.C.C.A.

No. 559 (QL)). [33] At trial, Crown counsel (not the same counsel as on appeal), called the complainant’s prior consistent statement to hismother a “smoking gun,” that the judge could use to corroborate his trial testimony that he was sexually abused by the appellant in the1970s. That unfortunate, and not so subtle submission, if it had been accepted by the judge, would have been a reversible error given theimportance of the credibility of the complainant (Dinardo at para. 37; and R. v.

M.W., 2008 NLCA 38 at paras. 22-23, 279 Nfld. &P.E.I.R 183). [34] The judge’s reasons are adequate for appellate review and, unlike the situation in Louie, when the reasons areconsidered in context, they are not ambiguous as to what use she made of the prior consistent statement (see R. v. R.E.M., 2008 SCC 51at para. 16, [2008] 3 S.C.R. 3). In my view, the judge could have expressed herself better as to why the prior consistent statementassisted her in assessing the credibility of the complainant’s story as to the delay in disclosure of the sexual abuse.

As well, her use ofthe word “supports” (at para. 54), if read in isolation could be construed as using the prior consistent evidence as affirmative proof ofcredibility, which is not permitted. [35] However, when the judge’s reasons are analyzed, mindful of the fact that she gave herself a proper limiting instructionas to how not to use the prior consistent statement, and the Crown’s invitation to commit reversible error with the evidence, which sheproperly declined, I am satisfied she did not improperly use the prior consistent statement as affirmative evidence of the credibility of thecomplainant. (iii) Conclusion [36] The parties properly accepted the prior consistent statement to be admissible in its entirety.

Upon consideration of thejudge’s reasons, read in the context of the entire case, I am satisfied that the judge did not misdirect herself as to the permitted uses inthis case of the prior consistent statement from the complainant to his mother in the 1970s. The Sentence Appeal [37] Notwithstanding the current personal and family circumstances of the appellant, in light of the judge’s findings of fact asto the length and magnitude of the sexual abuse that occurred, in my view, there is no arguable case that would warrant leave to appealsentence being granted.

Conclusion [38] In the result, I would dismiss the conviction appeal and deny leave to appeal the sentence.

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