R v RMK, 2016 MBCA 63

Citation: R v RMK, 2016 MBCA 63 Date: 20160615 Docket: AR15-30-08446 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Madam Justice Holly C. Beard Mr. Justice Marc M. Monnin BETWEEN: HER MAJESTY THE QUEEN ) E. J. Roitenberg and ) K. D. Minuk Respondent ) for the Appellant ) ) J. M. Mann ) for the Respondent- and - ) ) Appeal heard:R. M. K. ) March 18, 2016 ) (Accused) Appellant ) Judgment delivered: ) June 15, 2016 NOTICE OF RESTRICTION ON PUBLICATION: No one may publish, broadcast or transmit any information that coulddisclose the identity of the complainant(

s) or witness(es) (see

section 486.4 of the Criminal Code). STEEL JA [1] This is an appeal of the accused’s conviction, following a trial by a judge alone, on one count of sexual assaultpursuant to

section 271 of the Criminal Code (the Code) and one count of sexual interference pursuant to

section 151(

a) of the Code. Pursuant to Kienapple v The Queen, (SCC), [1975] 1 SCR 729, the trial judge stayed the sexual assault conviction. Theaccused was sentenced to a term of three years’ incarceration on the count of sexual interference. The sentence is not being appealed. [2] The accused argues several grounds of appeal, but they can be condensed into two broad categories. First, he submitsthat the verdict was unreasonable and cannot be supported by the evidence because the trial judge erred in failing to properly scrutinizethe evidence, the reliability and the credibility of the complainant.

Second, he submits that the trial judge erred in failing to drawnegative inferences in the absence of evidence. [3] The trial judge heard from three Crown witnesses: the complainant, the complainant’s father (the father) and a policeofficer. The accused called no evidence. The trial judge carefully assessed all the evidence, including the evidence of the complainant,and gave detailed reasons for accepting it.

She explained why she would not draw a negative inference from the fact that the Crown didnot call the complainant’s mother (the mother). [4] The trial judge’s findings are entitled to deference by this Court. She explained the path that she followed in comingto her findings and she explained why she rejected the arguments of the accused. I see no grounds for appellate intervention and I woulddismiss the appeal. Facts [5] The complainant’s parents divorced in 2007, and she lived with each on an alternating weekly basis. In the summer of2009, the accused moved in with the complainant and the mother.

The accused’s daughters began to spend more time at their house, andthe complainant became close to them. The father said that she sometimes referred to the accused as “her father” and to his children as“her sisters”.

[ 6 ] In the fall of 2009, the father began to notice a change in his relationship with the complainant, including that she did not want to go to his home. This relationship worsened when the complainant and a friend heard her father and his new partner having sex in February 2010. Around this time, the accused made some unfriendly comments about the father. The complainant was upset and told the mother that she did not want to go to the father’s. The father made a negative comment to the complainant to the effect that the accused was not what he seemed to be.

The complainant’s relationship with the mother deteriorated. [ 7 ] The mother indicated that she was going to begin proceedings to get full custody, and the father hired an investigator to look into the accused’s past. The investigation report was given to the mother in the summer of 2010, and almost immediately she and the complainant moved out of the house they had been living in with the accused. [ 8 ] The mother asked the complainant if the accused had done anything to her, and she said no. In September 2010, the father’s girlfriend asked her a similar question, and she gave the same response.

During 2010, the complainant was seeing a therapist, and she did not disclose any allegations to the therapist. She was not doing well at school and she had been engaging in self-harming behaviour by cutting herself. [ 9 ] Slowly, things seemed to be getting better between the complainant and her father. In February 2011, the complainant and her parents were together when the parents saw a cut on the complainant’s stomach. They questioned her about the accused, and she told them that from January to July 2010, the accused abused her on multiple occasions in her bedroom under the guise of kissing her goodnight.

She testified that he would come to her bedroom at night on a number of occasions and kiss her goodnight longer than usual, kiss her with his tongue, touch her breasts under her clothes and touch her vagina over and under her clothes. She indicated that this had occurred about 10 times, and that the conduct progressed from the kissing to the touching of her breasts to touching her vaginal area. She said that the incidents stopped about a month or less before she and her mother moved out of the house. [ 10 ] Her parents called the police and, on April 13, 2011, the complainant gave a video statement to the police.

The complainant was 16 years old at the time of the trial, 12 years old at the time the statement was taken in 2011 and between 10 and 11 years old at the time of the incidents. The father also gave a statement, but the police did not question or take a statement from either the mother or the father’s girlfriend. Decision of the Trial Judge [ 11 ] The trial judge considered the manner in which the complaint was disclosed, the surrounding circumstances during that period, and whether it impacted on the reliability and credibility of the complainant’s testimony.

She found that the circumstances of the disclosure and the events that led up to it did not undermine the complainant’s evidence.

She concluded that: A deterioration in the attitude of a 10- or 11-year-old daughter towards a parent in the context of a marital separation and changes to the family situation is not surprising . . . [and] is quite different from the alteration of memory or the creation of non-existent events in the mind of the complainant as suggested by the defence. [ 12 ] As well, she rejected defence counsel’s argument that the complainant’s continued association with the accused and her preference for the accused’s residence over her father’s was inconsistent with her allegations.

Such behaviour is one circumstance to be considered in the context of all of the circumstances. In this case, considering the family context at the time, the trial judge held that the actions challenged by the accused did not undermine the credibility of the complainant. Courts have accepted that there is no “normal” way for a sexual assault victim to behave. [ 13 ] The trial judge also declined to draw an adverse inference from the failure of the Crown to call the mother at trial. While the mother was in the house when the incidents occurred, she was in bed and not present in the room.

Moreover, she had not given a statement to police and, while she was present when the complainant disclosed the incidents to her parents, the father was called to testify about that. Consequently, she concluded that: [T]his is a case where the mother’s testimony would likely have been “collateral, peripheral, cumulative or inferior to other evidence called.” Moreover, it is not a case where it can be inferred that the mother’s evidence would have been adverse to the Crown’s case. At the most, all that can be inferred is that it would not have been helpful.

To infer anything further would be speculation. [ 14 ] The accused submits four grounds of appeal, as follows: 1. The trial judge erred in assessing the veracity of the complaint by failing to give appropriate weight to the origin of the complaint and the manner in which it was elicited. 2. The trial judge erred in failing to properly scrutinize the evidence of the complainant. 3. The verdict was unreasonable and cannot be supported by the evidence. 4. The trial judge erred in failing to draw negative inferences where the absence of evidence became an issue in this case.

Analysis and Decision [ 15 ] The accused says that the trial judge made errors in the weight that she gave to the complainant’s evidence with respect

to both reliability and credibility. He submits that the trial judge failed to properly scrutinize the complainant’s evidence and finally,given all of the above, the verdict is unreasonable. In particular, he refers to the facts that: • the complaint was elicited through leading questions on multiple occasions, which should have diminished its weight.

The trialjudge erred in finding that there was no evidence that the inquiries by the parents regarding any inappropriate conduct were “repeated orpressing”, when the evidence showed a “pattern of repeated questioning by her mother, father and his girlfriend over an extended periodof time.” • the complainant denied any inappropriate behaviour on two occasions and did not mention it to her therapist, which shouldhave diminished the weight of her evidence. • the trial judge did not direct herself to “the proper test to be applied to the Complainant’s evidence” when she relied on theSupreme Court of Canada statement in R v DD, 2000 SCC 43, [2000] 2 SCR 275; and R v W (R), (SCC), [1992] 2 SCR122, being that all victims do not immediately report a sexual assault to include other victim behaviour related to a sexual assault. • the trial judge erred in finding that there were no material inconsistencies between the complainant and her father, when theygave different versions of the manner of disclosure and the complainant could not remember the father’s girlfriend asking her about theaccused while the father did.

Accepting the father’s version over that of the complainant was a “material inconsistency”, yet the trialjudge failed to consider this in relation to the complainant’s evidence. [16] In

summary, the accused argues that the trial judge did not properly scrutinize all of the factors as they related to thecomplainant’s credibility and reliability. He argues that the trial judge did not weigh all of these facts together to determine whether theallegations were proved beyond a reasonable doubt and that, as a result, the verdict is unreasonable.

Rather, she dismissed them bysaying, for example, that the complainant liked to spend time with the accused’s children, that the separation and difficulties with herparents explained her behaviour and that the inconsistencies were not material. [17] All of the above arguments concern credibility, factual findings and inferences drawn by the trial judge. The standardof review for unreasonable verdict is whether, on the whole of the evidence, the verdict is one that a properly instructed trier of fact,acting judicially, could reasonably have rendered.

A verdict or conviction is only unreasonable if it cannot be supported on anyreasonable view of the evidence.

R v RP, 2012 SCC 22, [2012] 1 SCR 746; and R v Biniaris, 2000 SCC 15, [2000] 1 SCR 381. [18] When the appeal is from a judge’s decision, as it is here, the appellate court may also find a verdict unreasonable if thetrial judge has drawn an inference, or made a finding of fact essential to the verdict, that is plainly contradicted by the evidence relied onby the trial judge in support of that inference, or the finding is shown to be incompatible with evidence that has not otherwise beencontradicted or rejected by the trial judge.

See R v Sinclair, 2011 SCC 40, [2011] 3 SCR 3. [19] An appellate court must show deference to credibility determinations. The reviewing court may only interfere withfindings of fact and inferences drawn if there is a palpable and overriding error.

See R v Dinardo, 2008 SCC 24, [2008] 1 SCR 788; andR v Flores (RB), 2013 MBCA 4, 288 ManR (2d) 173. [20] In fact, when dealing with whether a verdict is unreasonable in the context of an issue with a witness’s credibility, themajority of the Supreme Court of Canada in RP, added the following comment (at para 10): Whereas the question whether a verdict is reasonable is one of law, whether a witness is credible is a question of fact.

A court of appealthat reviews a trial court’s assessments of credibility in order to determine, for example, whether the verdict is reasonable cannotinterfere with those assessments unless it is established that they “cannot be supported on any reasonable view of the evidence.” [21] It is against this deferential standard of review that this appeal must be assessed. The evidence underlying the trialjudge’s findings as to reliability and credibility were considered by the trial judge when she made her findings of fact and relatedinferences.

She considered each of the accused’s arguments and gave reasons as to why she did not accept them. [22] It was open to the trial judge to find that the two prior inquiries by the father’s girlfriend and the mother, and the finalquestions by both parents that led to the disclosure, were not “repeated or pressing” over an extended period of time. Her conclusion isnot unreasonable. [23] While there was more than one inquiry before the actual disclosure, they were brief, several months apart and relativelymild.

They do not constitute a pattern of repeated questioning over an extended period of time as was the situation in other cases. Withrespect to the actual disclosure, the trial judge was entitled to accept the father’s evidence that it was his recollection that the series ofquestions was asked only once. [24] The trial judge also concluded that the complainant was not “impressionable and vulnerable” such that her parents’manner of questioning impacted the reliability of her evidence or that she simply parroted to the police what she was asked by herparents.

The complainant specifically rejected a suggestion made by her parents and answered “sometimes” to one of the otherquestions. While she provided very little detail to her parents, she provided a detailed and thorough account of the offences in herstatement to police and during the trial. [25] The trial judge did consider the fact that she accepted the father’s version of the manner in which the disclosure tookplace as to the specificity of the questions asked and not that of the complainant.

She concluded that it was a minor inconsistency thatdid not affect the core of the complainant’s evidence, and that there were no material inconsistencies between the evidence of thecomplainant and that of the father, as was argued by the accused. Instead, the trial judge concluded that, “Under a careful and skilled

cross-examination, the complainant did not waiver from her evidence that the accused had touched her as described.” [26] The Saskatchewan cases of R v Sterling (T) (1995), (SK CA), 137 SaskR 1 (CA); and R v TS (1995), (SK CA), 131 SaskR 1 (CA), referred to by the accused, set out the applicable principles, but the outcomes aredistinguishable on their facts.

The children were younger and the tainting was extreme, including showing photos to the children beforethey had referred to the locations in the photos. [27] The accused argues that there is a distinction between reliability and credibility, and the trial judge did not consider theformer, only the latter. I agree there is a distinction. A credible witness can be an unreliable witness.

While the trial judge does notspecifically use the word “reliability”, she did address the suggestion that the complainant’s evidence was not reliable due to the mannerin which her disclosure was made and her impressionability, and concluded that the defence position was “simply not supported by theevidence.” [28] The trial judge also considered all of the arguments raised by the accused as to why the victim was not credible and, inthat regard, she concluded: The complainant’s recollection in this case was quite complete and detailed. Her evidence was internally consistent, coherent, andplausible.

There were no material inconsistencies between her evidence and that of her father. There was no apparent exaggeration orhyperbole. The complainant gave her evidence in a calm and forthright manner, both in her police interview and in court. She wasintelligent and articulate, and I accept her evidence. [29] In evaluating the complainant’s credibility and reliability, the trial judge took into account the age of the complainant atthe time of the incident. The different standard for approaching the evidence of a child does not lessen the standard of proof required ofthe Crown before a person is convicted.

As the trial judge indicated in her reasons, there have been significant changes to the law inrelation to how triers of fact approach the evidence of children, so that adult tests for credibility are no longer applied to the evidence ofchildren. While it is correct that the credibility and reliability of all witnesses must be evaluated carefully, that evaluation must becontextual within the circumstances of the case and the circumstances of the witness.

As McLachlin J (as she then was) pointed out in W(R) (at p 134): Every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed by referenceto criteria appropriate to her mental development. [30] The arguments made by the accused on appeal are similar to those made before the trial judge. She considered them alland gave reasons why she did not accept them.

So, for example, with respect to the argument that the complainant’s behaviour was notconsistent with abuse, she considered the complainant’s explanation that she enjoyed spending time with the accused’s children, thecomplainant’s complex family situation, the age of the complainant at the time of the abuse and the accused’s assumption of a step-fatherrole to the complainant.

The trial judge referred to these issues and explained how she weighed them to conclude that the complainantwas credible. [31] While it may have been open to her to come to other conclusions, she made no errors of law in her treatment of thisevidence, and her findings were not unreasonable. There is evidence that can reasonably support the conviction. It is clearly one that aproperly instructed jury could reasonably render. I would dismiss these grounds of appeal.

Adverse Inference [32] The Supreme Court of Canada, in addressing when adverse inferences may be drawn, has indicated that the Crownmust possess a fair amount of discretion to determine what evidence to call at a trial. The Crown is under no obligation to call a witnessit considers unnecessary to its case. However, in exercising that discretion, it runs the risk that its case will not be proven beyond areasonable doubt. [33] Generally, witnesses should be called by the party that wants their evidence.

Failure to call a witness or produceevidence may lead to an invitation for the trier of fact to draw adverse conclusions where the witness has relevant information pertainingto a material issue. When this issue arises, the court is required to engage in a case-by-case analysis. However, adverse inferences in acriminal case are the exception rather than the rule, and are subject to many conditions. [34] The leading case in this area is the decision of the Supreme Court of Canada in R v Jolivet, 2000 SCC 29, [2000] 1 SCR751.

In that decision, at the opening of a jury trial, and again during the trial, the Crown made reference to a witness who would becalled to testify and who would corroborate a principal witness’s testimony. That witness was never called, and the defence wanted tosuggest to the jury that an adverse inference should be drawn that the testimony of the witness would have been favourable to thedefence.

The Court in that case concluded that there was no basis to ask the jury to draw such a strong inference. [35] What was concerning in that case was that the jury had been told that the witness would be called and he was not. Itwas the potential unfairness to the accused because of the Crown’s statements that led the Court to conclude that one of the ways toremedy that potential unfairness was to invite the jury to draw an adverse inference that the evidence, if called, would have beenunfavourable to the Crown.

[36] In addition, the Court indicated that the party against whom the adverse inference is sought may give a satisfactoryexplanation for the failure to call the witness. It may be that counsel decided that the point had been adequately covered by anotherwitness, or an honest witness had a poor demeanour, or other factors unrelated to the truth of the testimony. For example, in the case ofR v Maxie (B), 2014 SKCA 103, 446 SaskR 72, the Court pointed out (at para 38): Adverse inferences should only be drawn where the witness has relevant information pertaining to a material issue.

A witness need notbe called if his or her evidence is collateral, peripheral, cumulative or inferior to other evidence called. . . . An adverse inference should only be drawn where there is no plausible explanation for the failure to call the witness. [37] Also, one must be precise about the nature of the adverse inference sought to be drawn. In many cases, the most thatcan be inferred is that the testimony would not have been helpful to a party, not necessarily that it would have been adverse. [38] In this case, the accused argues that neither the mother nor the father’s girlfriend was called to testify.

Both had askedthe complainant whether the accused had done anything to her, so, it is submitted, their testimony was relevant to the issue ofquestioning and tainting the complainant’s evidence, which is a component of its reliability. [39] In this case, the Crown offered an explanation as to why the mother and the father’s girlfriend were not called. In theopinion of the Crown, neither witness had any material evidence to add. A statement was not taken from either individual and theparents were both present at the time of the disclosure to them and, for that, the father would be called.

The Crown provided thatexplanation to the Court at the beginning of the trial when defence counsel asked for the names of the witnesses: [G]iven that it’s not evidence of, of the fact [I assume that he means the sexual assaults], but simply evidence of how the report camebefore the, before the court and ultimately to the police, I don’t know that it’s something that everyone who was present for needs to becalled at the trial and it’s not something that the police took a statement from that person about. [40] In addition, the police officer testified that she did not interview, nor did she have any conversation with, the motherexactly because the disclosure was made when both parents were present, so there was only a need to interview one parent. [41] The accused argues that, while the trial judge held that the mother would not have any relevant information, that isinconsistent with the fact that the trial judge did not accept the complainant’s version of the manner in which the disclosure occurred.

Since the trial judge accepted the father’s version instead, that indicates that the mother’s testimony would have been relevant to resolvethis inconsistency. [42] First, I do not think there was a material inconsistency between the complainant and her father. Both testified that it wasduring this time that she disclosed the touching as a result of being questioned by her parents. The father testified that he asked herspecific questions.

The complainant testified that the questioning was general, not specific. [43] Second, even if there was an inconsistency between the two witnesses, I disagree that the result would be an adverseinference. The Crown felt that it could prove its case by calling only the complainant and the father. It took the risk of the trial judgefinding that the complainant was not credible because she told a slightly different version of the questioning that took place than the onethat the trial judge accepted from the father. The Crown was entitled to make that decision.

The trial judge found that difference did notimpact on the complainant’s credibility. I have already indicated that there was evidence which supported her finding in that regard. [44] Moreover, what is the nature of the adverse inference that the accused is asking the Court to draw from the failure tocall the mother? [45] The accused argues that the mother could have testified with respect to the questioning of the complainant, as well asabout the home routine, and how things were going at home with the accused.

But, it is simply speculation to assume that any suchevidence would have been detrimental to the Crown’s case and supportive of the accused. There is nothing to suggest that she had anyinformation that would assist with the prosecution or the defence. It is a fishing expedition that may have produced something, but thereis nothing to indicate that there was any reason to believe that that would occur. A trial judge is not entitled to speculate about mattersthat are not in evidence. See R v Gordon, 2016 SKCA 58 at para 15 . [46] The trial judge applied the factors in Maxie, which set out the law.

See also R v DRL, 2015 MBCA 73, 319 ManR (2d)262. This is the correct law. The trial judge did not make any errors on the facts and the decision is not clearly wrong. Thus, thedecision involves the exercise of discretion, which is entitled to deference by this Court. [47] I would dismiss the appeal. JA

I agree: JA I agree: JA