R. v. Glays, 2015 MBCA 76

Citation: R. v. Glays, 2015 MBCA 76 Date: 20150820 Docket: AR14-30-08147 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Alan D. MacInnes Madam Justice Holly C. Beard Mr. Justice William J. Burnett BETWEEN : HER MAJESTY THE QUEEN ) S. A. Inness ) for the Appellant ) Respondent ) N. M. Cutler ) for the Respondent - and - ) ) Appeal heard: BRIAN GARNET GLAYS ) January 19, 2015 ) ) Judgment delivered: (Accused) Appellant ) August 20, 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 ) . MacINNES J.A. [ 1 ] The accused was convicted after trial by judge alone of one count each of sexual assault, sexual interference and invitation to sexual touching. He was sentenced to incarceration for a period of four and one-half years for sexual assault, three and one- half years for sexual interference and three years for invitation to sexual touching, the latter two sentences to be served concurrent to the sentence for sexual assault. The accused appeals his convictions and seeks leave to appeal and, if granted, appeals sentence.

Background [ 2 ] The alleged offences occurred in the early morning of June 25, 2011. The complainant was nearing her 15th birthday and the accused was then 35 years of age. Both had attended a graduation party on the evening of June 24, 2011. The party was an extended family affair to celebrate the high school graduation of a family member. The complainant was a second cousin of the accused, they knew each other, and both she and the accused were related to the graduate. [ 3 ] The complainant and her mother attended the party, arriving sometime after 8:00 p.m.

The accused was present at the party with his two young sons, age nine and five. The complainant’s mother left the party sometime around 10:00 p.m. The complainant remained at the party visiting with her cousins. The accused agreed to drive the complainant home from the party. Sometime shortly after midnight, the accused, his two sons and the complainant left the party to go home. [ 4 ] It is common ground that the accused did not drive the complainant home directly but, rather, drove to his house. The reason for him doing so differed as between the complainant and the accused.

The complainant testified that on the ride home from the party, the accused said his young children were tired, that he wanted to put them to bed and that he would drive her home as soon as his housemate Brendan (who was his cousin) came home that evening. The accused said that on the ride home from the party the complainant began to speak to him about issues she was having at the time living at home with her mother. He said that she wanted to continue to talk about these issues and, as a result, they agreed to drive to his home to do so.

He said that he told her that once he put the children to bed, he would not be able to drive her home until his housemate came home, as he could not leave the children alone. Ultimately, the accused’s housemate came home around 3:00 a.m. and the accused drove the complainant to her residence. [ 5 ] The complainant asserts that, while at the accused’s home, he sexually assaulted her, forcing her to perform fellatio upon him and forcing vaginal intercourse upon her. The accused denies the occurrence of any sexual act or misconduct.

[6] The Crown called several witnesses, including the complainant, her mother, the complainant’s friend Ms C. and apolice detective who conducted a video interview of the complainant and, a few weeks later, of the accused. The video interview of thecomplainant and a transcript of it were admitted as exhibits at trial under

section 715.1(1) of the Criminal Code, the complainant havingadopted the contents of the video while testifying. The video interview of the accused and transcript of it were marked as exhibits foridentification. The accused testified as did his then estranged wife and his housemate.

There was, as well, an agreed statement of factsregarding the evidence of the police officers who spoke to the complainant and her mother on July 12, 2011, in response to the initialcomplaint to the police on July 11, 2011. [7] The judge reserved his decision and then delivered oral reasons for judgment in which he concluded that he did notbelieve the accused nor was he left with any reasonable doubt by reason of the accused’s evidence.

As well, he concluded that, on thebasis of the overall evidence which he accepted, he was convinced beyond a reasonable doubt of the guilt of the accused and,accordingly, convicted him on all charges. The Conviction Appeal [8] The accused advances three grounds of appeal, namely, that the judge erred: 1) in applying a greater degree of scrutiny to the evidence on behalf of the accused compared to the evidence called by theCrown and, in so doing, reversed the burden of proof; 2) in dealing with two alleged breaches of the rule in Browne v.

Dunn, (1893) 1893 CanLII 65 (FOREP), 6 R. 67 HL (Eng); and 3) in finding corroboration in circumstances where there was an opportunity to concoct and without consideration being given towhether the corroborative evidence was truly “independent.” [9] The accused asserts that each ground of appeal raises a question of law for which the standard of review iscorrectness. [10] The Crown agrees that ground one raises a question of law.

However, it argues that the judge’s decision in dealing witha breach of the rule in Browne involves the exercise of discretion such that, unless an error in principle is shown, the standard of reviewis deference. Further, it asserts that the third ground of appeal involves the assessment of credibility for which the standard of review isone of deference. [11] In my view, ground one of the accused’s appeal raises a question of law for which the standard of review is correctness. Ground two raises a question as to the exercise of the judge’s discretion for which the standard of review is one of deference.

Groundthree, in my view, raises a question of mixed fact and law for which the standard of review is that of palpable and overriding error. [12] I turn then to deal with the first ground of appeal. Did the Judge err in Applying a Greater Degree of Scrutiny to the Evidence on Behalf of the Accused Compared to the Evidence Calledby the Crown, thereby Reversing the Burden of Proof? The Law [13] Both the accused and the Crown agree that it is an error of law to subject the evidence of the accused to a different andstricter level of scrutiny than that of the complainant. [14] In R. v.

J.S.W., 2013 ONCA 593, 311 O.A.C. 80, the court wrote (at paras. 55-56): A court should intervene to prevent a miscarriage of justice where the appellant can show that the trial judge applied different standardsin assessing the credibility of the witnesses: R. v. J.H. (2005), (ON CA), 192 C.C.C. (3d) 480 (Ont. C.A.), at paras.58-65. It is an error of law to subject the evidence of the accused to a different and stricter level of scrutiny than that of the complainant. Thaterror of law can lead to a miscarriage of justice within the meaning of s. 686(1)(a)(iii) of the Criminal Code: R. v.

Minuskin (2003), (ON CA), 68 O.R. (3d) 577 (C.A.). [15] However, in R. v. Howe (2005), (ON CA), 192 C.C.C. (3d) 480 (Ont. C.A.), the court observed thatthis is a difficult argument to make successfully. The court wrote (at para. 59): This argument or some variation on it is common on appeals from conviction in judge alone trials where the evidence pits the word ofthe complainant against the denial of the accused and the result turns on the trial judge’s credibility assessments. This is a difficultargument to make successfully.

It is not enough to show that a different trial judge could have reached a different credibility assessment,or that the trial judge failed to say something that he could have said in assessing the respective credibility of the complainant and theaccused, or that he failed to expressly set out legal principles relevant to that credibility assessment. To succeed in this kind of argument,

the appellant must point to something in the reasons of the trial judge or perhaps elsewhere in the record that make it clear that the trialjudge had applied different standards in assessing the evidence of the appellant and the complainant. [16] This case is one wherein, as the judge correctly noted, credibility is the core issue. In dealing with cases of this kind,the trial judge is required to closely consider and review the testimony given by the witnesses. That exercise includes not only theevidence given, but his/her observation of the conduct and demeanor of the witnesses as they testify.

Thus, the trial judge is in a muchpreferred position to that of appellate judges in making credibility findings. For this reason, demeanor conclusions are virtuallyunassailable on appellate review, and deference is owed to trial judges in respect of findings of fact, even more so findings of credibility,and the drawing of inferences based thereon. [17] In cases, as this one is, where credibility is the core issue, the judge is required not only to make findings, but to provideexplanation as to why the findings were made. This often results in comments which are critical and unflattering of one or morewitnesses.

That, however, does not establish a successful ground for appeal. [18] The issue here is whether the accused has established that there is something in the reasons or the record whichdemonstrate clearly that the trial judge applied different standards in assessing the evidence of the accused and the complainant. [19] In R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, Binnie J. (at para. 1) agreed with the observations of Doherty J.A.in R. v. Morrissey (R.J.) (1995), (ON CA), 80 O.A.C. 161, where Doherty J.A. wrote at para. 93: ….

Where a trial judge is mistaken as to the substance of material parts of the evidence and those errors play an essential

part in thereasoning process resulting in a conviction then, in my view, the accused’s conviction is not based exclusively on the evidence and is nota “true” verdict. Later in the same paragraph, he stated: If an appellant can demonstrate that the conviction depends on a misapprehension of the evidence then, in my view, it must follow thatthe appellant has not received a fair trial, and was the victim of a miscarriage of justice. This is so even if the evidence, as actuallyadduced at trial, was capable of supporting a conviction. We agree with these observations.

The Parties’ Positions [20] The accused asserts that a review of the judge’s reasons demonstrates that he dissected the evidence of the accused andhis witnesses to the point where even minor or insignificant omissions or inconsistencies weighed heavily against the accused’scredibility. [21] By comparison, argues the accused, the judge went out of his way to neutralize or minimize inconsistencies in theevidence of the complainant and her mother. Significant contradictions or omissions were not the subject of negative treatment by thejudge.

Rather, says the accused, even where explanations by the complainant were not given, the judge provided his own view ofpossible reasons to account for the deficiencies, all in a manner that was favourable to the evidence of the complainant and her mother. [22] The Crown argues that, early in his judgment, the judge expressed concern with the accused’s testimony, both in whathe said and in the unlikeliness of aspects of his testimony.

He was critical of the demeanor of the accused and said that he found him tobe cross and defiant, to attempt to deflect onto others and to be quite evasive. [23] The Crown asserts that the judge found that much of the accused’s explanation of events did not accord with commonsense or experience and provided some examples from the reasons for decision. [24] The Crown says the judge was equally unimpressed with the accused’s wife’s testimony, finding it choreographed andconcocted. He was likewise critical of her demeanor in cross-examination, saying that she was cocky and flip.

As well, the judgeobserved that much of the testimony of the accused’s roommate simply did not support the testimony of the accused. On the other hand,he was favourably impressed with the complainant’s testimony. He recognized that there were contradictions and inconsistencies in hertestimony, but concluded that they were not those beyond what would be expected of a truthful witness.

In addition, he referred to partsof the complainant’s mother’s testimony, which he found were capable of supporting the testimony of the complainant. [25] Ultimately, the Crown argues that the judge made no error in disbelieving the accused’s evidence, in failing to be left inreasonable doubt by it, and in finding on the evidence which he accepted that the Crown had proved the charges beyond a reasonabledoubt. Discussion and Analysis

[ 26 ] The accused relies on a number of examples to support his position, some of which I will now review. i. The complainant’s mother’s evidence concerning bruising, telephone calls and text messages [ 27 ] The complainant’s mother testified that she observed bruises on the complainant’s wrist within a day or two of the incident. She said that, upon questioning the complainant, the complainant told her that the bruises were the result of her playing baseball at school.

The mother testified that she told this to the police, who attended at their home to take the initial complaint from the complainant. [ 28 ] The complainant’s mother gave her only statement in the matter just four days before the commencement of trial. In it, she said that she had been calling and texting the accused’s phone numerous times during the night when her daughter had not arrived home.

The mother also testified that she told the police and the Crown about such texts and calls sometime prior to giving her statement and that the police told her they would pursue obtaining the records. [ 29 ] There was no clarity as to whom she told at, or associated with, the Crown’s office but nobody from, or associated with, the Crown’s office testified on the issue of texts and calls. [ 30 ] There was no evidence from the police respecting the bruising. However, there was evidence from them respecting the texting and calling.

The officers who took the statement at the complainant’s home provided such evidence by a statement of facts agreed to by Crown and defence counsel.

Their agreed evidence was that the mother did not mention that she had been texting or phoning the accused throughout the night in question. [ 31 ] As well, the officer who took the video statements of the complainant and the accused, and had dealings with the mother, testified on the point, saying that she had no notes or recollection of any such disclosure as to texts or phone calls, nor was she aware of any efforts to obtain any phone records or anything of that nature. [ 32 ] The judge accepted the mother’s evidence as to the bruising and the phone calls and texts.

In his judgment, he concluded that the mother provided corroboration for the complainant’s evidence as to bruising and the receipt of phone calls and texts by the accused. He said: Her mother provides some corroboration although there were certain things that she only brought to the attention of the authorities a short time before trial. One of these things had to do with the bruises on the wrists. The complainant gave a description as to how the accused had held her and the mother’s observations are consistent with that.

It’s interesting, although this is the kind of thing where it’s not clear what was said to the police about that, there is an agreed statement of facts that would indicate that the police didn’t make note of mention of texts or bruising and other things. Oftentimes these statements the police make in their notebooks are only as good as the person who makes the notes. …. [ 33 ] This finding is contrary to the agreed statement of facts. The agreed statement of facts did not pertain to whether the police made notes of the mention of texts or bruising. It said nothing whatsoever about bruising.

It did deal with texting and phoning, but not as regards the taking of notes pertaining to them. Rather, as agreed by Crown and defence counsel, the evidence was that the mother did not mention to the police that she had been texting or phoning the accused throughout the night. [ 34 ] As a result of his misapprehension of this evidence, the judge appears not to have appreciated, or, if he did, chose not to deal with, this inconsistency in the evidence between the mother and the police.

Rather, he accepted her evidence on this point, viewing the issue not as one of credibility, whether she told the police that the texting and calling had occurred, but as to reliability of note-taking by the police. [ 35 ] In my view, the judge’s misunderstanding of the evidence as agreed between the parties led the judge to an erroneous conclusion, one not available to him on the agreed evidence. [ 36 ] His conclusion was relevant not only to the mother’s credibility, but as will be seen, to the complainant’s credibility as well. [ 37 ] Further, instead of inferring that the police would have made notes of such disclosures and followed up on them (had the mother made the statements to the police as she asserted), the judge chose to draw an inference that they did not make notes, an inference favourable to the complainant’s case.

This is in contrast to the manner in which the judge dealt with the evidence of the accused and his witnesses. ii. The complainant’s evidence regarding the cell phone call [ 38 ] The complainant testified that she heard the accused’s cell phone ringing during the course of the sexual assault. She said the phone was amongst the covers on the bed and that the accused told her to ignore it, that it was his estranged wife calling, not her mother. On cross-examination, she admitted that this was the first time she had ever given such testimony.

She agreed that she had not provided this information in her video statement or at the preliminary inquiry. She went on to say that her mother had told her when she got home after the incident that she had been calling and texting the accused. [ 39 ] That evidence, in my view, raises serious credibility issues in respect of the complainant for the following reasons:

a) Her evidence at trial was that she had no discussion with her mother when she got home on the night of the incident other than to say she was home and to say goodnight. The mother’s evidence was to the same effect. She said that ordinarily when her daughter comes home at night, they sit and talk for a short while before going to bed. She said, however, that on the night in question, they did not do so. It was late, her daughter appeared tired, she herself was tired and had to get up early the next morning to go to work. She simply kissed her daughter goodnight and both of them went to bed.

She gave no evidence about any comment or discussion with her daughter concerning phone calls or texts.

b) If the complainant’s evidence at trial on this issue were true, one would expect some explanation as to why that information was not provided to the police in the lengthy video interview of the complainant given shortly after the incident, nor provided by her at the preliminary inquiry. None was given.

The complainant’s testimony at trial related not just to the fact of telephone calls and text messaging but, more particularly, to the fact that the accused’s cell phone was ringing during the course of the sexual assault; that it was on the bed amongst the bed covers; and that the accused told her to ignore the phone, that it was his estranged wife calling. That is a recitation of an occurrence that goes beyond simply phone calls and text messages per se, and increases the need for an explanation as to why this was not mentioned in her video interview or her evidence at the preliminary inquiry.

No such explanation was given and no adverse comment was made by the trial judge in respect of that evidence.

c) There is the additional issue of what the judge’s conclusion may have been concerning the mother’s evidence of the phone calling and texting, had he correctly appreciated the agreed evidence of the police. Clearly, had he accepted that evidence and reflected upon the late disclosure by the mother in her police statement, he may have disbelieved the mother’s evidence on the point, which would also have adversely affected the complainant’s evidence and her credibility. iii. The accused’s basketball playing and eye injury [ 40 ] The accused testified that he saw very little of the complainant at the party.

He said that he spent some time at the party playing basketball and suffered an eye injury doing so. [ 41 ] The judge interpreted this aspect of the accused’s testimony negatively from a credibility perspective, concluding that his evidence concerning the eye injury and the basketball playing was significantly exaggerated “presumably to account for all the time that he was at the party, without having anything to do with the complainant, which I find rather remarkable.” [ 42 ] The judge said: In any event, when he was asked about the party they were at earlier, he hastened to engage in detailed testimony about the basketball game, and offered far more detail than was relevant or even interesting in the context of this trial.

But again, another indication of his trying to side-track the issues in this case and at certain times, to buy himself time when Crown counsel was asking him questions. He talked about, in detail, how he was poked in the eye, and how he walked around for considerable time, trying to invert his eyelid back to its normal configuration. I have a hard time imagining that. We oftentimes would see people, whether it’s to entertain others or not, to flip their eyelids inside out and flip them back. He seemed to, again, engage in this sort of distraction to deflect matters away from himself.

But whether it’s possible for someone to have their eye inverted and to have some difficulty for several minutes to bring it back to its normal stature, I am not going to put too much weight on that. But this is just another example of the manner in which he testified.

He went into great detail regarding the basketball game, as I say, attempting to deal with his eye, presumably to account for all the time that he was at the party without having anything to do with the complainant, which I find rather remarkable. …. [ 43 ] Reference to the evidence of the accused on the point, in my view, does not support the judge’s description of the evidence, or the conclusions which he drew from it. On direct examination, the accused testified: Q Okay. All right. So you’re at the party, you played a lot of basketball.

I understand that something happened during basketball that was significant. Can you describe that for the court, please? A Yeah, my cousin poked me in the eye. Q Okay. Just describe, sort of, how that happened and what the significance of that was? A I believe the game was called donkey, where you line up at the edge of the court and you throw the ball or try to sink it, or something, and if they miss, you run and get the ball. So there’s a big line, like, you’re just in a solid line. And then you shoot and then you try to spell the word.

Anyways, it was my turn, the ball came to me, I ran and my cousin was up against the garage, well, his back was, I don’t know if his arms were like this, or whatever, but –

Q Okay. Which, which cousin was that? A Darren. Q Darren, okay, go on. A Yeah. And I went to run towards the basketball and I was jumping, and he went to block the ball but he poked, he stuck his finger in my eye. Q Okay. And what impact did that have on you? A It was, it hurt, like, I was down for, for however long, but even when I got up, my eyelid was still turned. I was trying to turn my eyelid back around, like, it was up, yeah, it was, it hurt. Q Okay. And did that injury last? A Yes, correct. Q How long did it last for? A Probably a week after. Q Okay.

What, just describe -- THE COURT: You’re, just, you’re saying that your eyelid was turned inside out and you couldn’t put it back normally? THE WITNESS: Yeah, I was trying to get it to flip back and it was just, I don’t know if I was shaking or I was trying too hard, or ‘cause I couldn’t see what was going on. THE COURT: Did you manage to do that? THE WITNESS: Yeah, I did. [ 44 ] The accused also said that someone brought him ice, which he put on his eye, that the next day he got eye drops and that his eye was swollen and very sore for about a week. [ 45 ] The judge’s

interpretation of this evidence and the conclusion that he reached that the accused was “trying to side-track the issues” and that the evidence was given “presumably to account for all the time that he was at the party without having anything to do with the complainant, which I find rather remarkable” is not supported, in my view, by this evidence or the evidence overall. The evidence speaks for itself, but the judge’s

interpretation and conclusion were reached, notwithstanding and without acknowledging that the accused was estranged from the complainant and her mother at the time of the graduation party, that he spent his time visiting with the adults, playing basketball and, from time to time, checking on his young sons, and that the complainant’s evidence, both in her video statement and at trial, was that she did not pay much attention to the accused at the party.

Rather, she said she visited briefly with the adults in attendance when she arrived at the party and thereafter visited with, and played some video games with, her cousins in the basement. All of this explains and supports the accused’s evidence that he did not have anything to do with the complainant at the party.

iv. The Pepsi products [ 46 ] Shortly thereafter in his reasons, the judge made reference to the accused’s receipt of Pepsi products from his cousin. [ 47 ] The complainant testified that, on the drive home from the graduation party, the accused stopped at the Video Cellar where he bought two bottles of 7-Up and some cigarettes.

She said that, shortly after arrival at the accused’s home, he poured her a drink of 7-Up with alcohol which she thought was whiskey. [ 48 ] The accused denied both the stop at the Video Cellar and that he poured her an alcoholic drink at the residence. [ 49 ] The accused testified that, when leaving the graduation party at his cousin’s home, his cousin, who worked for Pepsi, gave him a bag of some Pepsi products which the accused said were for his kids, something his cousin had done on previous visits. [ 50 ] The judge described that evidence as follows: He also conveniently described how, before he left, his cousin, who works for Pepsi, had given him a bagful of Pepsi products, although, to this day, we were not, he didn’t share with us which Pepsi products he was talking about.

He simply injected into his evidence this idea of the Pepsi product. It became obvious later why, because he denied the complainant’s clear evidence that, and I’m not comparing their evidence now, I’m just giving the context within which he gave this testimony, that on the way home, he stopped off at a video store and picked up two bottles of 7-Up and some cigarettes.

But in any event, there it is, the evidence about the Pepsi product. …. [ 51 ] The accused did not deny that the complainant had a drink of 7-Up at his residence, nor did he say that the drink of 7- Up came from the Pepsi product which he was given by his cousin. Nevertheless, the negative inference was drawn by the judge that the evidence of receipt of Pepsi products from his cousin was concocted. v.

The evidence regarding the accused’s roommate [ 52 ] Immediately after dealing with the Pepsi products issue, the judge, in his reasons, said: He says that once he began to drive her home, she didn’t want to go home. He claims that if she were to come home with him, they would have to wait for Brendan, his roommate, to come home. Now, I find this particularly curious. Brendan at that time in his life and he later testified, was what could be fairly described as a hopeless drunk and drug user.

And it’s a sad story because he suffers from a certain condition, the details of which are not important, that led him to do that, to his lot in life at that time. But the fact is that the accused described this fellow as unreliable. He allowed in his testimony that Brendan would come home sometimes at 4:00 or so. And it’s interesting, and I was watching the accused carefully, when he gave this testimony and during the course of his cross-examination when Crown counsel approached this area, coming home at 4:00 or so, the accused became very cautious and very deliberate in his responses.

To allow that Brendan might have come home later than 4:00 or so, would not dovetail all that well with his suggestion that this young girl, who was going to be taken home to his place, would be kept there until Brendan saw fit to make it home that night from one of his binges. And so he drew the line in the sand at 4:00 a.m. Crown counsel suggested that it could be later than that, and the accused was adamant that Brendan would never stay out past 4:00. He became very evasive on this point.

Crown counsel suggested on the basis of objective observations of Brendan’s background, that Brendan was not a model of responsibility. Again, the accused, in the same vein, clearly for the same purpose, refused to acknowledge that and began to talk about his grandmother, which had nothing to do with the line of questioning the Crown counsel had engaged in. [ 53 ] The evidence, which appears to have given rise to the above, came from the accused’s cross-examination.

Crown counsel put to the accused an excerpt from the transcript of his video interview, wherein he had said he told the complainant that if she came over to his home, she would have to wait for a ride to her residence until his cousin, who was living with him, arrived home. He then admitted on cross-examination that his cousin usually came home later at night, that his expectation was his cousin would not be there and that the complainant would have to wait until the roommate came home. [ 54 ] The cross-examination continued as follows: Q Okay.

And, and you would agree with me that he often stayed out late, wouldn’t you? A Pretty much every night. Q Pretty much every night? A Yeah.

Q And by late, I mean, he could have come home at two o’clock, at three o’clock, at four o’clock, even? A You know, there, there’s a good chance, yeah. It was anywhere from, sometimes he came home at 11 o’clock, sometimes he came home at 1:00. Like, there was just a variety of times. Q Right, but -- A There was never a set time where he came home at like, 2:30 every night, kind of thing so … Q No, but he could come home anytime, even past two o’clock or three o’clock, maybe even four o’clock -- A For sure. Q -- even four o’clock. A Yeah, possibly.

Q And, and I’m going to suggest to you, sometimes he, he wouldn’t come home at all. He’d come home the next day, isn’t that fair? A No, that wouldn’t be fair. Q That wouldn’t be fair? A No. Q Okay. All right. But anyway, he could have been out ‘til four o’clock in the morning, for all, all you know? A Yeah. [ 55 ] The cross-examination then proceeded into Brendan’s use of marijuana and then the following questions and answers appeared: Q Okay. And, and just, and, and I want to clarify something because just in my mind, you indicated that Brendan stayed with you over the whole summer? A Yeah, that’s correct.

Q And when did he move out?

A It would be after summer because we were out at the lake and I would bring my grandmother in for her Thursday shower ‘cause home care came, so every Thursday we would come in and then I would go check on Brendan, and the house, and stuff like that. …. [ 56 ] The record demonstrates that the accused merely answered the questions asked of him on cross-examination by the Crown and, in my view, quite concisely. It does not support the conclusion that the judge reached in respect of the accused’s testimony on this issue. The record does not support the fact that he drew the line in the sand at 4:00 a.m.

Nor does it support that the accused was adamant that Brendan would never stay out past 4:00 a.m. [ 57 ] The judge says that the accused refused to acknowledge that Brendan was not a model of responsibility, although he begins the excerpt saying that the accused described Brendan as unreliable. He says that the accused then began to talk about his grandmother, which had nothing to do with the line of questioning the Crown had engaged in.

The brief mention of the grandmother was not for the purpose of distraction or evasion, but simply a reference point to remind himself of his visits home over the summer while Brendan was still living there, thus enabling him to address the Crown’s questions about whether Brendan continued to live in the house over the summer. In my view, the judge’s negative characterization of the accused’s testimony on this issue is not supported by the evidence. vi.

The accused’s text to the complainant’s mother [ 58 ] The complainant’s mother testified that she was calling and texting the accused frequently throughout the evening to inquire when her daughter would be coming home. The accused denied that he received any calls or texts from the mother.

He did testify, however, that as they were leaving his residence to drive the complainant to her residence, he sent a text to her mother to let her know they were on their way. [ 59 ] The judge questioned the accused’s evidence as to how he would so easily be able to text the mother unless he was responding to a text she had sent him. In fact, the judge had found earlier that the accused had the mother’s telephone number. Thus, he would have been able to text her other than in response to a text from her. vii.

The bedroom doorway curtain [ 60 ] The accused testified he was upstairs sleeping with his sons when his roommate came home on the evening of the incident, and that the roommate moved the curtain covering the bedroom doorway and spoke to him. [ 61 ] The accused was cross-examined on that point using an answer from his video statement given August 3, 2011.

There, in response to a question from the interviewing detective about whether the housemate knocked on the accused’s door or whether he just called in to the accused, the accused responded, “Yeah, he calls in ‘cause I don’t have any curtains or anything.” [ 62 ] As the accused’s video statement was simply an exhibit for identification, the judge did not have the transcript of the full statement available to him. He had nothing more pertaining to this point but the one isolated response. However, the accused testified on several occasions at trial that each of the bedrooms had a sheet hanging from the doorframe.

His wife said the same. Indeed, the complainant, who had familiarity with the upstairs of the accused’s home from her babysitting experiences, testified that the bedrooms each had a sheet hanging from the doorframe to cover the doorway. [ 63 ] The judge ignored the totality of the evidence on this point. Rather, he described the accused’s testimony respecting the curtain when compared with the excerpt from his video statement, not as a misstatement by him in his evidence but as “an example of him embellishing as he went through his evidence.” viii.

The cigarettes [ 64 ] The accused testified that he had had a cigarette and went to bed. Later in his testimony, he said that he had two additional cigarettes. Although the judge described this as a minor point, he found it as an example that through the course of his testimony, the accused’s version of the incident “became more and more pliable.” ix. The complainant’s use of alcohol and drugs [ 65 ] The complainant testified that she had been provided with a couple of alcoholic drinks by the accused that night; one at the graduation party and one at the accused’s home.

She denied any drug use. [ 66 ] Her first disclosure of the incident was made to her then best friend, Ms C., within a week of the event.

Ms C. gave a statement to the police shortly thereafter and testified at trial that the complainant told her she had two drinks at the party, that she was “really juiced” and that she had smoked marihuana that night. [ 67 ] When confronted with the friend’s evidence, the complainant confirmed that “juiced” meant drunk, but said that she could not remember telling this to the friend and maintained that she was neither “juiced” nor used marihuana that night. [ 68 ] The complainant, in fact, had testified at the preliminary inquiry that she had had two drinks at the party, and she admitted on cross-examination at trial that she was smoking marihuana in and around the time when this incident occurred.

The accused argues that the complainant gave no explanation as to why she would have said something that was not true or was inaccurate, but the judge provided his own views to explain those deficiencies. [ 69 ] The complainant’s sobriety on the night of the incident is of no moment because both the accused and the complainant’s mother testified that they saw no evidence of impairment on the part of the complainant that evening. The purpose of the example raised by the accused is not to challenge the complainant’s sobriety, but to assert that the judge treated inconsistencies in the

complainant’s evidence far more favourably from the perspective of credibility than he did respecting deficiencies in the accused’s evidence. [ 70 ] While it is true that some of the examples described are of lesser importance than others, I am satisfied, on the evidentiary record, including the examples above-described, that the judge did apply a more strict and critical view and level of scrutiny to the evidence of the accused than to that of the complainant, leading to the negative assessment of the accused’s evidence as compared with the evidence of and on behalf of the complainant. [ 71 ] Moreover, some of the examples given, and others, demonstrate a misapprehension of the evidence on the record which, in my view, infected the judge’s impression of the accused and thus, from the accused’s perspective, unfairly impacted the credibility findings made by the judge. [ 72 ] The critical issue in this case was credibility as between the accused and the complainant.

For the reasons which I have given, I conclude that it would be unsafe to allow the convictions to stand. [ 73 ] In light of the conclusion which I have reached in respect of ground one of the accused’s appeal, there is no need to deal with grounds two or three, the issues relating to Browne and to corroboration. [ 74 ] In conclusion, I would set aside the convictions and direct a new trial in respect of the offences. It will be unnecessary, therefore, to deal with the sentence appeal. J.A. I agree: J.A. I agree: J.A.