R v DNS, 2016 MBCA 27

Citation: R v DNS, 2016 MBCA 27 Date: 20160308 Docket: AR15-30-08338 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Michel A. Monnin Madam Justice Holly C. Beard Madam Justice Jennifer A. Pfuetzner BETWEEN : ) K. E. Smith HER MAJESTY THE QUEEN ) for the Appellant ) Respondent ) R. D. Lagimodière ) for the Respondent - and - ) ) Appeal heard: D. N. S. ) September 30, 2015 ) (Accused) Appellant ) Judgment delivered: ) March 8, 2016 NOTICE OF RESTRICTION ON PUBLICATION: No one may publish, broadcast or transmit any information that could disclose the identity of the complainant(

s) or witness(es) (see

section 486.4 of the Criminal Code ). BEARD JA I. THE ISSUES [ 1 ] The accused is appealing his conviction following a trial by judge alone for sexual assault under section 271(1) of the Criminal Code (as it appeared in April 2012) and sexual interference under

section 151 of the Criminal Code . He was acquitted of the charge of forcible confinement under section 279(2) of the Criminal Code , which has not been appealed. The counts all arise out of events that occurred on April 2 and 3, 2012. [ 2 ] The issues for appeal are: (

i) the trial judge erred in assessing the credibility of the complainant and the accused in a manner that rendered the trial fundamentally unfair; specifically, he corroborated the complainant’s testimony and drew adverse inferences of guilt in ways not supported by the evidence and failed to give effect to inconsistencies within the complainant’s testimony; and (ii) the verdict was unreasonable or, in the alternative, a miscarriage of justice within section 686(1) (

a) of the Criminal Code , based on the trial judge’s misapprehension of the evidence. II. THE FACTS [ 3 ] At the time of the events in question, the accused lived in a house that had been converted into a rooming house, where he had a kitchen and living area but shared a bathroom with other residents. His residence was sparsely furnished, with a table and two chairs in the kitchen and a television, shelving unit and mattress on the floor in the living area. The accused had moved in, in early March 2012, at which time his daughter K.F. and her boyfriend were living there.

They moved out shortly after, and he remained in the residence alone. [ 4 ] The accused has a number of children, although none of them were living with him on April 2, 2012. The complainant, who was 14 years of age at the time of the events in question, was a friend of some of the accused’s teenage daughters, and her brother had dated one of them.

The complainant had visited the accused’s residence on a number of occasions to spend time with his daughters —she estimated that she had been there on about ten prior occasions. [ 5 ] The testimony of the complainant and the accused differed as to the details of the events of that day. Both the

complainant and the accused gave statements to the police, and there were significant discrepancies between those statements and thetestimony of each of them. [6] The complainant testified that she arrived around 4:00 p.m., having made arrangements to have a sleepover with theaccused’s daughter K.S. They watched movies and played cards throughout the evening. At around 2:00 a.m., K.S. decided to leave, butthe complainant decided to stay.

The accused walked K.S. to the bus stop and, on returning, offered the complainant some pills—Restoril—to “help [her] go to sleep.” [7] The complainant said that she awoke some time later to pain in her anus/vagina, and the accused was on top of hertrying to have sex with her. She pushed him off, put on her pants and called her mother (the mother). The accused pulled away thephone, then he went down to the bottom of the stairs and said that she could not leave. She then crawled out the bathroom window andran home. She immediately told her mother that the accused had sexually assaulted her.

Her mother called the police, the complainantwent to the hospital and a sexual assault examination was performed, including taking various samples for testing. Immediatelythereafter, the police took statements from her and her mother. [8] The accused testified that, on April 2, 2012, the complainant called around 9:30 or 10:00 a.m. and asked if she couldcome over and “chill”. He agreed, and she arrived around 12:00-12:30 p.m. He said that K.S. was not over at all on that day. [9] According to the accused, he was in and out of the residence for various reasons.

He said that the complainant visitedwith other residents, watched movies and helped him with some paperwork. Late in the evening, they were watching a movie calledPiranha when, around 2:00 a.m., the complainant suddenly got up and said that she was leaving. He denied having had any sexualcontact with the complainant. [10] While he did not include this in his statement to the police, the accused testified that, during the movie, he was lyingbehind the complainant and masturbated, ejaculating onto the bed.

He explained that he did not disclose this to the police because hewas embarrassed to admit that he had masturbated and because he did not think that anything would have gotten on the complainant. Hesaid that this occurred shortly before the complainant left, although he was not sure whether or not she was aware that he had done that. The accused denied having given Restoril to the complainant. [11] The testimony at the trial consisted of that of the complainant, four police officers, the mother and the accused.

As well,transcripts of the accused’s statements to the police, certain exhibits, photographs of the accused’s residence and the results of severaltests and examinations were filed by consent. Neither K.S. nor any of the residents of the rooming house was called to testify. III.

THE TRIAL JUDGE’S DECISION [12] The trial judge reviewed the evidence of the witnesses, the submissions of the parties, the basic legal principles ofreasonable doubt and the requirement in R v W(D), (SCC), [1991] 1 SCR 742, for analyzing the testimony of an accusedwho has given evidence in court. [13] In turning to the two sexual offence charges, the trial judge found that he did not believe the accused’s version of events,finding his story of masturbating to be concocted and internally inconsistent.

He then found that the accused’s testimony did not raise areasonable doubt as to his guilt, finding him to have been evasive, that his answers were needlessly qualified and sometimes tailored. Asan example, he referred to the accused’s evidence as to how the complainant was lying when she was watching the movie. Further, hepointed to what he called contradictions in his testimony regarding what occurred as the complainant was leaving the accused’sresidence. [14] Finally, he found that he did not believe the accused’s testimony that K.S. was not at the residence that day.

He statedthat it was not plausible that the complainant would stay there all day if K.S. had not been there for the better part of the day, nor that shewould have hung out with other residents at the rooming house. [15] The trial judge went on to consider whether the Crown had proved the charges beyond a reasonable doubt. He stated thathe found the complainant’s evidence to be credible, accepting that she had initially told the police that the sex was vaginal due to herown embarrassment that it had been anal sex.

He also found that she testified in a straightforward manner. [16] The trial judge acknowledged that there was no corroborating evidence regarding the Restoril, noting that samples of thecomplainant’s blood had been taken, but no report was filed. He found comfort in the detailed description that she gave of the pills andaccepted her evidence on that point. [17] The trial judge found that the complainant’s evidence was consistent with that of her mother in terms of time. Thisfinding related to the complainant saying that she left the accused’s residence around 4:00 a.m. and arrived home around 5:00 a.m.

Thetrial judge specifically stated that he accepted the mother’s evidence. [18] He also found that the complainant’s evidence was corroborated by the semen stain on the crotch of her pants, which hecalled “very significant.” The laboratory report regarding the test results was entered into evidence, but the person who performed thetests and prepared the report was not called to testify. IV.

MISCARRIAGE OF JUSTICE BASED ON A MISAPPREHENSION OF THE EVIDENCE The Parties’ Positions [19] The accused’s position on this issue is that the trial judge misapprehended important parts of the evidence on which hethen based his assessment of the credibility of the accused’s testimony and that of the complainant. He argues that thesemisapprehensions resulted in an unfair trial and miscarriage of justice and that, as a result, the convictions should be set aside pursuant tosubsection 686(1)(a)(iii) of the Criminal Code. He argues that the applicable law is that set out in the line of cases that includes Harper

v The Queen, (SCC), [1982] 1 SCR 2; R v Morrissey (RJ) (1995), (ON CA), 80 OAC 161; R vLohrer, 2004 SCC 80, [2004] 3 SCR 732; R v Lang, 2011 ONSC 3822 (QL); and this Court’s decision in R v GJB, 2012 MBCA 43. [20] Some of the evidentiary errors to which the accused refers are: (

i) that the trial judge erred in finding that the accused’s testimony as to whether the complainant was lying on her back or side whilewatching the movie was inconsistent, which erroneous finding was given as the example supporting his conclusion that the accused’sevidence was tailored; (ii) that the trial judge erred in concluding that it was not plausible that the complainant would have remained at the accused’sresidence if K.S. was not there; (iii) that the trial judge erred in his review of the complainant’s explanation for stating that the sex was vaginal and, at trial, changingher allegation to one of anal sex; (iv) that the trial judge erred in his characterization of the complainant’s testimony regarding the Restoril pills; (

v) that the trial judge erred in failing to take into account the significant inconsistencies between the testimony of the complainantand her mother regarding the time that the complainant left the house on April 2, 2012, the time that she arrived at the accused’sresidence, and whom the complainant was going to visit; (vi) that the trial judge erred in his findings as to the significance and corroborative quality of the sperm cell found on thecomplainant’s pants; and (vii) that the trial judge erred in failing to address two lies told by the complainant, being whether the complainant used any streetdrugs other than the Restoril while at the accused’s residence and whether the accused told the complainant’s mother during a telephonecall that the complainant was not at his place. [21] The Crown takes no issue with the applicable law as set out by the accused. [22] The Crown’s position is that there were no misapprehensions of the evidence.

It argues that the accused is really takingissue with the trial judge’s treatment of the evidence and that, absent a palpable and overriding error, it is not the role of an appellatecourt to engage in its own credibility findings or to reassess the evidence. It argues that there were no palpable and overriding errors inthe trial judge’s assessment of evidence, and, as a result, there was no miscarriage of justice.

The Law [23] The accused bases his argument that his convictions should be set aside due to misapprehensions in the evidence leadingto a miscarriage of justice on subsection 686(1)(a)(iii) of the Criminal Code: Powers 686(1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminallyresponsible on account of mental disorder, the court of appeal (

a) may allow the appeal where it is of the opinion that . . . (iii) on any ground there was a miscarriage of justice; [24] The principles related to a miscarriage of justice arising out of a misapprehension of the evidence were set out by DohertyJA in Morrissey (at paras 92-93): In my view, any error, including one involving a misapprehension of the evidence by the trial judge must be assessed by reference toits impact on the fairness of the trial. If the error renders the trial unfair, then s. 686(1)(a)(iii) requires that the conviction be quashed.

When will a misapprehension of the evidence render a trial unfair and result in a miscarriage of justice? The nature and extent ofthe misapprehension and its significance to the trial judge’s verdict must be considered in light of the fundamental requirement that averdict must be based exclusively on the evidence adduced at trial. Where a trial judge is mistaken as to the substance of material partsof the evidence and those errors play an essential

part in the reasoning process resulting in a conviction then, in my view, the accused’sconviction is not based exclusively on the evidence and is not a “true” verdict. Convictions resting on a misapprehension of thesubstance of the evidence adduced at trial sit on no firmer foundation than those based on information derived from sources extraneousto the trial. If an appellant can demonstrate that the conviction depends on a misapprehension of the evidence then, in my view, it mustfollow that the appellant has not received a fair trial, and was the victim of a miscarriage of justice. This is so even if the evidence, as

actually adduced at trial, was capable of supporting a conviction. [emphasis added] [25] This decision has been adopted by the Supreme Court of Canada on many occasions as correctly explaining the law. InLohrer, Binnie J, for the Court, quoted parts of para 93 and then stated (at paras 1-2): We agree with these observations. Where a miscarriage of justice within the meaning of s. 686(1)(a)(iii) of the Criminal Code,R.S.C. 1985, c. C-46, has been demonstrated an accused appellant is not bound to show in addition that the verdict cannot “be supportedby the evidence” within the meaning of s. 686(1)(a)(i).

Morrissey, it should be emphasized, describes a stringent standard. The misapprehension of the evidence must go to the substancerather than to the detail. It must be material rather than peripheral to the reasoning of the trial judge.

Once those hurdles aresurmounted, there is the further hurdle (the test is expressed as conjunctive rather than disjunctive) that the errors thus identified mustplay an essential part not just in the narrative of the judgment but “in the reasoning process resulting in a conviction”. (See also R v CLY, 2008 SCC 2 at para 19, [2008] 1 SCR 5; R v Sinclair, 2011 SCC 40 at paras 13, 56, [2011] 3 SCR 3; R v Mahmood(A), 2011 ONCA 693 at paras 46-48, 284 OAC 94; GJB at para 4; and R v BGG, 2015 MBCA 76 at para 19, 319 ManR (2d) 306.) [26] In Morrissey, Doherty JA explained what constitutes a misapprehension of the evidence (at para 83): A misapprehension of the evidence may refer to a failure to consider evidence relevant to a material issue, a mistake as to thesubstance of the evidence, or a failure to give proper effect to evidence. [27] In CLY, the majority found that there were misapprehensions and mischaracterizations of the evidence similar to somethat are raised in this case.

The majority found that those errors, which led to the convictions, affected the fairness of the trial and metthe stringent test set out in Lohrer, resulting in the convictions being overturned and a new trial being ordered. The Standard of Review [28] Doherty JA addressed the issue of whether a mistaken apprehension of the evidence constitutes an error of law inMorrissey (see para 97). The answer is that it depends on the nature of the mistake. [29] This issue is of more significance in the case of a Crown appeal from an acquittal, as the Crown is limited to appeals thatraise only questions of law.

In R v JMH, 2011 SCC 45, [2011] 3 SCR 197, Cromwell J, for the Court, addressed the question of thecircumstances under which an alleged shortcoming in a trial judge’s assessment of the evidence would constitute an error of law.

Heconcluded as follows (see paras 24-32): - it is an error of law to make a finding of fact for which there is no evidence; - the legal effect of findings of fact or of undisputed facts raises a question of law; - an assessment of the evidence based on a wrong principle of law is an error of law; and - a trial judge’s failure to consider all of the evidence in relation to the ultimate issue of guilt or innocence is an error of law. [30] As Doherty JA stated in Morrissey, a trial judge’s mistaken apprehension of the content of the evidence is not a questionof law where there is no allegation that he or she failed to consider all of the relevant evidence (see para 97). [31] This appeal raises a number of issues that have different standards of review. [32] If the issue raises a question of law, the standard of review is that of correctness.

If the issue raises a question of fact, theapplicable standard is that of palpable and overriding error. (See, for example, R v DAI, 2012 SCC 5 at para 89, [2012] 1 SCR 149; andR v Mian, 2014 SCC 54 at para 40, [2014] 2 SCR 689.) In a criminal context, applying the facts to the law is generally a question of lawwhich is reviewed on the standard of correctness. (See R v Araujo, 2000 SCC 65 at para 18, [2000] 2 SCR 992; R v Biniaris, 2000 SCC15 at para 23, [2000] 1 SCR 381; R v Shepherd, 2009 SCC 35 at para 20, [2009] 2 SCR 527; R v Kubassek (E) (2004), (ON CA), 189 OAC 339 at paras 11-16; R v Farrah (D), 2011 MBCA 49 at para 7, 268 ManR (2d) 112; R v MacKenzie, 2013 SCC 50 atpara 54, [2013] 3 SCR 250; and R v Fenske (HB), 2015 MBCA 113 at paras 13-14.) [33] In this case, the trial judge’s finding of guilt was determined by his findings of credibility.

Absent an underlying error oflaw, findings of credibility are findings of fact, and they are reviewed on the deferential standard of palpable and overriding error. Thisstandard was explained by the Supreme Court of Canada in Housen v Nikolaisen, 2002 SCC 33 at paras 10-18, [2002] 2 SCR 235. (Seealso, for example, R v W (R), (SCC), [1992] 2 SCR 122 at 131; and CLY at para 21.) Analysis

[ 34 ] While there was some additional evidence, this case was, for the most part, based on the testimony of the complainant and the accused, as is common in most sexual assault trials. The main issue was the credibility of their testimony, and the accused has alleged that the trial judge made errors in his assessment of the testimony of each of them to his detriment. [ 35 ] While the trial judge applied the principles in W(

D) and assessed the testimony of the accused first, I will begin by looking at his analysis related to the complainant’s testimony. [ 36 ] The accused and the complainant were not in agreement as to whether K.S. was at the rooming house that day. When the trial judge was analyzing the accused’s testimony in that regard, he stated: I also do not believe his testimony when he says [K.S.] was not in the suite on that day. It is not plausible that the complainant would have stayed all day at his apartment and slept there in the evening had her friend not been present for the better part of the day.

She had slept at his place before one time along with her brother. Nor is it plausible that she would have hung out with others at the rooming house who she barely knew. [ 37 ] While the trial judge made this statement in the context of his analysis of the accused’s testimony that K.S. was never there that day, it applies equally to support the complainant’s contradictory testimony that K.S. was there.

The problem with this inference or conclusion is that it does not accord with the evidence. [ 38 ] The evidence about the accused’s relationship with the other residents of the rooming house was important because they were not strangers. L., to whom reference was made by both the accused and the complainant, was the accused’s stepson from a prior relationship and he was raised by the accused for a period of time. The complainant testified that “L.” had told her that the accused was his stepfather. L.’s father, E., also lived in the residence. Another resident was A., who was 22 or 23 years old.

He had been living with L. when the accused moved into the building, and both A. and L. were friends with the accused’s children. In fact, the accused testified that A. had been to visit him, together with some of his children, when he was at an alcohol treatment centre before he moved into the residence. Most of the residents used the accused’s telephone, so they were often at his place. All of this to say that the residents of the rooming house were not strangers; they were quite friendly. [ 39 ] The complainant testified that she had been to the accused’s residence on approximately ten prior occasions.

Given that he only lived there for about a month prior to the events in question, she was there more than twice per week, which is quite often. When asked whether she was playing Monopoly with A. on the day of the alleged assault, she said, “Sorry, I’m just trying to think of who [A.] is. It may have been the day before”.

This does not accord with the trial judge’s conclusion that it was not plausible that she would have hung out at the rooming house with others that she barely knew. [ 40 ] This conclusion demonstrates a critical error in the trial judge’s appreciation of this evidence, which is related to the important issue of whether K.S. was at the residence that day and, therefore, to the credibility of both the complainant and the accused. [ 41 ] In reviewing the complainant’s testimony, the trial judge mentioned that her testimony was inconsistent with her police statement on the issues of whether the sexual acts were anal or vaginal and whether she had consumed marihuana that day.

The trial judge then made conclusory findings as follows: As to whether the Crown has proved the charges of sexual assault and sexual interference beyond a reasonable doubt, I accept the complainant’s evidence of what occurred. I find her evidence credible. I also accept her testimony that she was embarrassed about the fact that the accused was having anal intercourse with her, which is why she initially said he was having vaginal intercourse with her in her statement to police.

She testified straightforwardly. [ 42 ] He does not address her contradictory evidence on the use of marihuana, for which she provided no explanation. [ 43 ] The complainant’s evidence was fraught with significantly more problems than the two that were mentioned by the trial judge. [ 44 ] First, it must be noted that the two inconsistencies to which the trial judge referred were not mere inconsistencies, they were lies.

According to the complainant’s testimony, she knew that the intercourse was anal and that she had used marihuana that night, but, in both cases, she intentionally told the police something different. [ 45 ] There was a third lie to which she admitted on cross-examination. She agreed that she told the police that her mother had called her at the accused’s house, and that the accused spoke to her and told her that the complainant was not there. She later admitted that she had made that story up and that, when her mother called, she told the complainant to come home, but the complainant refused.

She offered no explanation for this change in her testimony, and this evidence was not addressed by the trial judge. [ 46 ] There were also a number of inconsistencies in the evidence to which the trial judge made no reference: - The complainant’s evidence was inconsistent with that of her mother regarding the time that she left home. The complainant said that she went directly from her home to the accused’s place, arriving there at around 4:00 p.m.

The mother testified that the complainant left the house around 10:00 a.m. and that she called around noon to say that she was going to hang out with K.F. at K.F.’s dad’s place. Thus, there was a six-hour discrepancy between the complainant and her mother as to when the complainant left home and a four-hour discrepancy as to when she arrived at the accused’s place. Consistent with the testimony of the mother, the accused testified that the complainant arrived at his place around noon or 12:30 p.m. - The complainant and her mother also differed as to whom the complainant was going to visit.

The mother testified that the

complainant said that she was going to visit K.F. (not K.S.) and that there were a few other girls there. The complainant maintained that she was going to visit K.S., and she said that there was no one there other than her, K.S. and the accused. The accused said that K.S. was never at his place that day and that she was in St. Vital with her boyfriend. - The complainant said that she had decided to stay overnight at the accused’s place because K.S. was staying. Then she testified that, when K.S. decided to leave, she decided to stay because it was raining.

She then testified that the accused walked K.S. to the bus. She was asked whether it was raining and she said that she did not know. [ 47 ] The trial judge did not address any of these inconsistencies. [ 48 ] It is clear that inconsistencies in a child’s evidence, especially as they relate to details such as time, should not be given the same weight as those in the evidence of an adult. That said, the complainant was not a young child, she was 14 years old. Further, she gave her statement to the police at approximately 10:30 a.m. the next morning, within 24 hours of the events in question.

Thus, it is difficult to see how, for example, she would have been mistaken as to whether she left home at 10:00 a.m. or 4:00 p.m., a difference of six hours, and whether she arrived at the accused’s place at around noon or 4:00 p.m., a difference of four hours. [ 49 ] These lies and inconsistencies brought into question the credibility of the complainant’s testimony in a more significant way than was acknowledged by the trial judge in his reasons.

That said, the trial judge did recognize some of the difficulties with her testimony and looked for support for that testimony. [ 50 ] The trial judge stated that, while there was no corroborating evidence regarding the complainant’s testimony that the accused had given her Restoril, she provided detailed testimony describing the pills, and he found that he believed her.

It should be noted that, while she gave a description of the pills that she took, there was no evidence as to what Restoril pills look like or whether her description was accurate. [ 51 ] The trial judge then considered the testimony of the mother regarding the time at which the complainant arrived at home.

He found that these two witnesses were consistent on that detail and accepted that the mother’s testimony supported that of the complainant. [ 52 ] Finally, the trial judge stated: The complainant’s evidence is also corroborated by the semen stain on the crotch of her pants which is very significant. [ 53 ] The trial judge did not, however, address the very important weaknesses in this evidence.

This may be because the weakness in the DNA evidence and the details of the report were not raised either during the trial or in argument by either counsel. [ 54 ] As I noted earlier, the laboratory reports were entered without calling any expert evidence to explain the findings. Several samples were taken from the complainant, including vaginal and anal swabs and two pieces of fabric from the crotch of her pants (not her panties). No semen was identified on the anal swab, while the vaginal sample and one fabric sample were not suitable for testing.

The only sample that contained any DNA sufficient for testing was one fabric sample, and the report states as follows: A sperm cell was identified in a sample of the crotch area.

It is possible for a small number of spermatozoa to be deposited on clothing through innocuous means such as laundering. [ 55 ] This one sperm cell was found to match the accused’s DNA. [ 56 ] Detective Sergeant Priestley was examined and cross-examined about the samples, and he testified that it had not been possible to determine whether the specimen came from the inside or the outside of the pants because of the thin nature of the pants, such that it could have seeped through from either side. [ 57 ] Having rejected the accused’s evidence that he had masturbated as explaining the source of the sperm cell, the trial judge did not consider the details of the DNA test results, and, specifically, the finding that the one sperm cell could have been deposited by innocuous means, in the context of the complainant’s activities in the residence during the 12 to 16 hours that she was there that day.

Both the accused and the complainant testified that she had been throughout the residence, including watching movies on his bed both during the day and later in the evening. The complainant testified that she was lying under the covers when she was watching the movie at around 2:00 a.m., when she says that K.S. left, and up until 4:00 a.m., when she says that she left. [ 58 ] As noted, the report stated that this one sperm cell could have been deposited by innocuous means.

Given that only one sperm cell was found on the complainant’s pants, together with the many hours that she spent at the accused’s apartment including on and in his bed watching movies, it was a misapprehension of the evidence to say that “the semen stain on the crotch of her pants . . . is very significant.” In fact, the DNA report raised serious questions as to how the sperm cell could have been deposited on the fabric and, therefore, was inconclusive, rather than significant, to the determination of whether there had been any sexual assault.

This misapprehension of the evidence was an error of fact that meets the standard of review of palpable and overriding error. [ 59 ] The evidence regarding the plausibility of the complainant remaining at the residence if K.S. was not there and the significance of the DNA evidence were clearly essential to the trial judge’s conclusion that the complainant’s evidence was credible in spite of its serious weaknesses and inconsistencies.

Where a trial judge draws incorrect conclusions from the evidence and attributes an inappropriate significance to corroborating or supporting evidence that is not, in fact, supportive, there are serious concerns about the reliability of the resulting credibility finding.

[60] I recognize that a trial judge’s credibility finding is to be reviewed on a deferential standard. I adopt the followingstatement by Abella J in CLY (at para 21): In reaching this conclusion, I am keenly aware that a trial judge occupies a singular perch in assessing credibility (R. v. W. (R.), (SCC), [1992] 2 S.C.R. 122, at p. 131; R. v. Gagnon, [2006] 1 S.C.R. 621, 2006 SCC 17, at paras. 20-21).

However,based on the record in this case, it is clear that the trial judge’s bases for disbelieving C.L.Y. rested on misapprehensions of his evidenceand played a critical role in the convictions, rendering them insupportable. Conclusion [61] Given that the credibility of the complainant’s evidence was one of the main issues in the case, the evidence that led tothe finding that she was a credible witness “[played] an essential

part in the reasoning process resulting in [the] conviction” (Morrissey atpara 93). In this case, I would find that the trial judge misapprehended essential evidence that led to his credibility finding. As theconviction depends on a misapprehension of the evidence, it must follow that the accused has not received a fair trial and was the victimof a miscarriage of justice. Thus, I would find that the conviction is not supportable and must be overturned. V.

DECISION [62] Given my finding that the conviction must be overturned due to the trial judge’s misapprehension of the evidence, it is notnecessary to consider the other allegations of misapprehension of the evidence or the remaining grounds of appeal. [63] For these reasons, I would overturn the conviction. As there was evidence upon which another court could find theaccused guilty, I would ordinarily order a new trial.

In this case, however, the accused has already served his entire sentence and, as aresult, the interests of justice would not be served by retrying him. (See R v PL, [1995] OJ No 854 at paras 8-9 (QL) (CA); and R vWright (NA), 2013 MBCA 109 at paras 54-55, 303 ManR (2d) 26.) Therefore, I would not order a new trial. JA I agree: JA I agree: JA