R. v. Locke, 2015 MBCA 73

Citation: R. v. Locke, 2015 MBCA 73 Date: 20150730 Docket: AR14-30-08242 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Barbara M. Hamilton Madam Justice Holly C. Beard Mr. Justice Marc M. Monnin BETWEEN : HER MAJESTY THE QUEEN ) E. J. Roitenberg ) for the Appellant Respondent ) ) R. D. Lagimodière ) for the Respondent - and - ) ) Appeal heard: ) April 1, 2015 DAVID ROBERT LOCKE ) ) Judgment delivered: (Accused) Appellant ) July 30, 2015 NOTICE OF RESTRICTION ON PUBLICATION: No one may publish, broadcast or transmit any information that could disclose the identity of the complainant(

s) or a witness(es) (see s. 486.4 of the Criminal Code ). HAMILTON J.A. [ 1 ] The accused appeals his convictions for three counts of sexual interference and one count of invitation to sexual touching. He also seeks leave to appeal and, if successful, appeals his sentence of three and one-half years’ incarceration. [ 2 ] The accused was a friend of the complainant’s parents and did repair work at their home. The convictions arise from three encounters, over a period of two weeks, when the accused and the complainant were alone in the house.

They are for touching the complainant’s breasts, having her place the accused’s penis in her mouth, and two incidents of oral sex and vaginal intercourse. The accused was 55 years old and the complainant was 15 and one-half years old. [ 3 ] The complainant testified, as did her mother. The Crown’s case turned on the credibility of the complainant. The trial judge found that she was a credible and reliable witness and that parts of her evidence were supported by her mother’s evidence.

The accused did not testify or call other evidence. [ 4 ] For the reasons that follow, I would dismiss the conviction appeal and deny leave to appeal the sentence. The Conviction Appeal [ 5 ] The accused has four grounds of appeal with respect to his conviction: 1. The trial judge erred in law in the test to be applied to the assessment of the complainant’s evidence. 2. The trial judge erred in failing to scrutinize properly the evidence of the complainant.

3. The trial judge erred in misconstruing the nature of the evidence before him. 4.

The trial judge erred in failing to draw negative inferences where the absence of evidence became an issue. [6] I start with the fourth ground of appeal, as the first three grounds can be dismissed with little comment. [7] The accused asserts that the trial judge erred because he should have drawn a negative inference from the fact that theCrown did not call any forensic evidence regarding items seized by the Winnipeg Police Service from the complainant’s home. [8] The complainant testified that after sexual intercourse during her third encounter with the accused, there was bloodand “white stuff” coming out of her and that, after she got off the bed, she put on a t-shirt and boxers.

This clothing, and a red blanketand bedding from the bed, were turned over to the police the next day. [9] In keeping with their usual procedure, the police sent a request to the RCMP forensic laboratory for these items to beexamined, along with blood and urine samples and vaginal and vulvar swabs. The RCMP lab directed that the boxers, the vulvar swab,the vaginal swab and a blood sample be sent to them for testing. [10] The police disclosed to defence counsel a copy of the request sent to the RCMP laboratory and the RCMP lab reportthat followed. The RCMP lab report was not entered into evidence.

The red blanket became an exhibit. [11] The accused argues that the trial judge erred when he refused to draw an adverse inference against the Crown becauseof the lack of DNA evidence and the lack of evidence about the contents of the RCMP lab report. He asserts that the trial judge failed toapply the analysis mandated in R. v.

Jolivet, 2000 SCC 29, [2000] 1 S.C.R. 751, the leading authority as to when adverse inferences maybe drawn. [12] I am not persuaded that the trial judge erred. [13] The trial judge considered the absence of forensic evidence, the Crown’s acknowledgement that additional testingshould have been done and the defence submission that he should draw a negative inference. He wrote, in part, as follows (2013 MBQB235 at para. 45): …. ...

I have considered whether a negative inference should be drawn against the Crown’s case because no evidence was presented asto the results of the physical testing and because of the Crown’s acknowledgment that additional testing should have been done. I expectthat if the Crown had physical evidence linking the accused to the scene or the samples, it would have been presented to the court as itwould have implicated the accused.

While the absence of such forensic physical evidence does not support the Crown’s case, I do notaccept that the absence of such forensic evidence linking the accused to the alleged offences exculpates the accused. The lack of suchevidence cannot be taken to mean that the alleged incidents did not happen. I have no basis to infer that, in the circumstances, theabsence of these testing results is conclusive of anything.

Ultimately, I consider the absence of the testing results to be neutral. [14] Adverse inferences in a criminal case are the exception rather than the rule, and are subject to many conditions, seeJolivet. Also see The Honourable Mr. Justice S. Casey Hill, Professor David M. Tanovich & Louis P. Strezos, McWilliams’ CanadianCriminal Evidence, 5th ed (Toronto: Canada Law Book, 2015) (loose-leaf release 1) vol 3, ch 33. Whether to draw an adverse inferenceis a matter of discretion for the trial judge.

Unless the trial judge committed a reversible error of fact or law, the ruling is entitled todeference. [15] Jolivet is factually distinguishable from this case. It concerned a jury trial in which Crown counsel indicated in hisopening address that a witness would be called to testify. The witness was never called. Given the Crown’s stated commitment to callthe witness, Binnie J., for the court, identified that the issue was what remedial steps should be taken to address the trial unfairnessarising from the Crown’s commitment to call the witness.

He noted several examples of possible remedies: asking the trial judge to callthe witness, commenting in closing on the witness’ absence or asking the trial judge to comment in the jury instructions. [16] Binnie J. concluded that there was no basis to ask the jury to draw an adverse inference that the witness’ testimonywould have been favourable to the defence, although, in the circumstances of the case, an adverse inference of “unhelpfulness” wouldhave been fair (at para. 30).

As well, defence counsel should have been entitled to comment on the failure of the Crown to call thewitness. [17] In reaching that conclusion, Binnie J. articulated the following principles: 1. The Crown is under no obligation to call a witness it considers unnecessary to the prosecution’s case (at para. 14). 2. Generally, witnesses should be called by the party that wants their evidence (at para. 15). An exception to this would be if awitness was not called for an improper motive, such as a desire to hide exculpatory evidence (at para. 16). also see R. v. Cook, (SCC), [1997] 1 S.C.R. 1113 (at para. 19). 3.

The “adverse inference” principle is derived from ordinary logic and experience and is not intended to punish a party whoexercises its right not to call the witness by imposing an “adverse inference” which a trial judge, in possession of the explanation for thedecision, considers to be wholly unjustified (at para. 24). 4. There is a stronger basis for an adverse inference if the evidence in question can only be accessed through one party (at para.

27). 5. The exact nature of the adverse inference must be precisely stated. There are many reasons for not calling available witnessesand, at most, it may be that the only inference is that the evidence would not have been helpful, not that it was adverse (at para. 28). [18] The accused asserts that there is a distinction to be drawn between the failure to call a particular witness and the failureof a party to produce a piece of physical evidence, arguing that the Crown’s relationship with a witness is subject to change, but that isnot the case for a piece of physical evidence. I disagree.

The following extract from John Henry Wigmore, Evidence in Trials atCommon Law, rev by James H. Chadbourn (Boston: Little, Brown and Company, 1979) vol 2 is pertinent (at p. 192): ….

The failure to bring before the tribunal some circumstances, document, or witness, when either the party himself or his opponentclaims that the facts would thereby be elucidated, serves to indicate, as the most natural inference, that the party fears to do so; and thisfear is some evidence that the circumstances or document or witness, if brought, would have exposed facts unfavorable to the party. …. [emphasis added] This extract has been cited by Canadian appellate courts with approval. See, for example, R. v. Rooke (1988), (BCCA), 22 B.C.L.R. (2d) 145 (C.A.) at p. 172; and R. v.

N.L.P., 2013 ONCA 773 at para. 58, 313 O.A.C. 334. [19] Therefore, as long as the Crown has provided proper disclosure to the defence, it is under no obligation to call a witnessor tender physical evidence it considers unnecessary to the prosecution’s case. Furthermore, the Crown has wide discretion to callwitnesses or evidence.

The effect of a failure to call evidence may impact adversely on the Crown’s case and its ability to prove its casebeyond a reasonable doubt, but does not call for an adverse inference. [20] Here, the Crown explained candidly that there were some things that were not properly done in the investigation. Asubstandard investigation is part of the mix to be considered when addressing the Crown’s onus of proof beyond a reasonable doubt. Defence counsel received timely disclosure of the police request and RCMP lab report.

The accused cross-examined the policewitnesses about the absence of evidence and made submissions to the trial judge about it. Furthermore, the Crown did not control accessto the police or RCMP witnesses and it was open to the defence to call that evidence. [21] The trial judge addressed the defence request for him to draw an adverse inference in his reasons. He noted that the“the absence of such forensic physical evidence does not support the Crown’s case” (at para. 45).

I see no error by the trial judge in hisanalysis of the defence request or in his conclusion that the absence of evidence was a “neutral factor.” I would dismiss the accused’sfourth ground of appeal. [22] As for the other three grounds of appeal, I would also dismiss them. The trial judge’s reasons demonstrate that heunderstood the nature of his task in assessing the credibility and reliability of the complainant’s evidence. His analysis was detailed andcareful.

He addressed the arguments raised by the accused as to why the complainant was not credible and found that “any shortcomingwith respect to her testimony does not detract from her evidence regarding the core issue that these three incidents of a sexual natureoccurred” (at para. 46). He did not err in how he assessed, scrutinized or construed the evidence. Leave to Appeal Sentence [23] I am of the view that the sentence is well within the range for these offences and this offender, and it is neither harshnor excessive.

Furthermore, the trial judge addressed the relevant sentencing principles, including the legislated direction that deterrenceand denunciation are paramount sentencing principles in offences involving child victims. His determinations of the aggravating andmitigating circumstances for sentencing and the weight to be placed on them were within his discretion and are entitled to deference. Iwould dismiss the accused’s application for leave to appeal his sentence. Conclusion [24] I would dismiss the accused’s conviction appeal and dismiss his application for leave to appeal sentence. J.A. I agree: J.A.

I agree: J.A.