R v Lewin, 2016 MBCA 48

Citation: R v Lewin, 2016 MBCA 48 Date: 20160509 Docket: AR15-30-08509 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Marc M. Monnin Madam Justice Diana M. Cameron Mr. Justice William J. Burnett BETWEEN: HER MAJESTY THE QUEEN ) K. J. Advent ) for the Appellant Respondent ) ) N. P.

Steen- and - ) for the Respondent ) ELI ZACHARY LEWIN ) Appeal heard and ) Decision pronounced: (Accused) Appellant ) May 9, 2016 BURNETT JA (for the Court): [1] This is an appeal from convictions on charges of assault, assault with a weapon and breach of a probation order. [2] Briefly stated, when the accused returned home from work on August 7, 2014, he and his common-law wife becameembroiled in a heated argument.

When it escalated, he choked her, punched her and hit her over the head with tongs. [3] At trial, the Crown called the complainant and a police officer; the defence called the accused’s prior employer. Theaccused did not testify. [4] The accused says that the trial judge erred: 1. in her application of the test set out in R v (W)D, (SCC), [1991] 1 SCR 742 (the W(

D) test), and in particular, byfailing to consider certain comments made by the accused to the complainant; 2. in assessing the testimony and credibility of the prior employer and the complainant, and applying a lesser standard of scrutiny tothe complainant’s evidence than that of the accused. [5] The standard of review for the first issue is correctness (see R v Menow (RA), 2013 MBCA 72 at para 20, 294 ManR(2d) 236). As to the remaining issues, the standard of review for credibility assessments is palpable and overriding error (see R vGagnon, 2006 SCC 17 at para 10, [2006] 1 SCR 621).

However it is an error of law to subject the evidence of the accused to a differentand stricter level of scrutiny than that of the complainant (see R v JSW, 2013 ONCA 593 at para 56, 311 OAC 80). [6] With respect to the first issue, we have not been persuaded that the trial judge failed to correctly apply the W(

D) test.

The trial judge properly related the concept of reasonable doubt to her credibility findings on vital issues (see R v BD, 2011 ONCA 51 atpara 114, 273 OAC 241), and she adequately explained why the complainant was believed and why the evidence of the accused failed toraise a reasonable doubt. [7] As to the remaining issues, once again we have not been persuaded that the trial judge applied different standardswhen assessing the credibility of the witnesses and, in our view, her assessments of credibility can be supported on a reasonable view ofthe evidence. [8] As the accused has failed to demonstrate that the trial judge made an error of law or a palpable and overriding error,there is no basis for appellate intervention. [9] The appeal is therefore dismissed.

JA JA JA