R v ERC, 2016 MBCA 74

Citation: R v ERC, 2016 MBCA 74 Date: 20160630 Docket: AR14-30-08114 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Holly C. Beard Mr. Justice William J. Burnett Madam Justice Jennifer A. Pfuetzner BETWEEN: HER MAJESTY THE QUEEN ) Z. Jones ) for the Appellant ) Respondent ) R. N. Malaviya ) for the Respondent- and - ) ) Appeal heard:E. R. C. ) April 22, 2016 ) ) Judgment delivered: (Accused) Appellant ) June 30, 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). BEARD JA I. THE ISSUES [1] The accused is appealing his conviction on two counts of sexual assault under

section 271 of the Criminal Code. Further, he has applied for leave and, if granted, is appealing his sentence of five years’ incarceration. [2] The grounds related to the conviction appeal are:

i) that the trial judge misapprehended the evidence leading to an unreasonable verdict under section686(1)(a)(

i) of the Criminal Code; ii) that the trial judge erred in the application of the test in R v W (D), (SCC), [1991] 1 SCR742, and, in particular, that: - the trial judge applied a different standard to the testimony of the accused than to that of the complainant, including rejecting theaccused’s testimony regarding his recollection of certain events on November 23, 2008, but accepting the complainant’s testimonyregarding the errors in her protection order application; - the trial judge failed to adequately scrutinize the complainant’s description of the events on December 28, 2008, and failed toconsider that it was not possible for the events to have occurred as the complainant described; and - the trial judge was concerned with the accused’s failure to recall some events, while making no mention of the fact that thecomplainant was frequently referencing her written statement while testifying and was, at times, also not able to recall events. [3] The grounds related to the sentence appeal are:

i) that the sentence imposed was outside of the reasonable range; and ii) that the trial judge failed to give effect to the principles relevant to the sentencing of Aboriginaloffenders. [4] The accused filed a motion to adduce new evidence on the appeal. We heard the motion and reserved our decisionpending argument on the appeal.

II. THE FACTS [5] The two counts of sexual assault relate to two specific incidents of sexual intercourse that occurred between the accusedand his wife (the complainant) on November 23, 2008, and December 28, 2008. The only issue at the trial was whether the complainantconsented to have intercourse with the accused and, if not, whether he had an honest but mistaken belief that she had consented.

Theonly witnesses at the trial were the complainant and the accused. [6] The accused testified that they often had rough sex, that the complainant liked to have rough sex and that she hadconsented to the sexual activity on the two days in question, which he described somewhat differently than did the complainant. Thecomplainant testified that, on both days, she had told the accused that she did not want to continue, but he became aggressive and forcedhimself on her. III.

THE FRESH EVIDENCE MOTION [7] The parties agree, as do I, that the applicable test for the admission of new evidence on appeal is the four-step test setout in Palmer et al v The Queen, (SCC), [1980] 1 SCR 759 at 775. [8] The proposed new evidence is the testimony of the complainant taken from an earlier trial related to a common assaultcharge against the accused, which resulted in an acquittal (see 2011 MBQB 77, 263 ManR (2d) 304). The common assault charge arosefrom an incident in which the parties’ young son was having a temper tantrum.

The complainant told the police that the accused grabbedthe child by the arm and dragged him across the kitchen floor, sitting him down on a step.

Later, at the common assault trial, she statedthat the accused did not drag the child, but lifted him by one arm to the step. [9] The accused’s position is that this change by the complainant in her description of this event demonstrates herunreliability and may have affected the trial judge’s conclusion about the complainant’s credibility in this case and, therefore, theoutcome of the current trial. [10] Consistent with the view of the trial judge in the common assault trial, I am of the view that the discrepancy at issue inthat earlier trial was peripheral and was so minor as to be insignificant.

It certainly is not indicative of a change in the complainant’stestimony that could have affected the result of the sexual assault trial, whether taken alone or considered together with the other issuesthat the accused has raised regarding her testimony in this trial. [11] For these reasons, I would dismiss the motion to admit new evidence. IV.

THE CONVICTION APPEAL Standard of Review [12] The standard of review for an appeal on the basis of an unreasonable verdict was explained in R v Lee (CJ), 2010 ABCA1 at paras 6-17, 474 AR 203, which was upheld on appeal, 2010 SCC 52, [2010] 3 SCR 99. (See also R v BDTW, 2015 MBCA 24 atparas 28-32, 315 ManR (2d) 237.) [13] The standard of review for a misapprehension of the evidence was explained in R v Lohrer, 2004 SCC 80 at para 2,[2004] 3 SCR 732.

The misapprehension of the evidence must: (1) go to the substance rather than to the detail; (2) it must be materialrather than peripheral to the reasoning of the trial judge; and (3) it must play an essential part not just in the narrative of the judgment butin the reasoning process resulting in conviction. [14] In reviewing the reasonableness of a verdict, an appellate court must defer to the trial judge’s evaluation of the evidenceand findings of credibility. (See R v W (R), (SCC), [1992] 2 SCR 122 at 131.) This high standard of review wasexplained in R v Gagnon, 2006 SCC 17, [2006] 1 SCR 621 (at paras 19-20): This Court has consistently admonished trial judges to explain their reasons on credibility and reasonable doubt in a way thatpermits adequate review by an appellate court.

Having encouraged these expanded reasons, it would be counterproductive to dissectthem minutely in a way that undermines the trial judge’s responsibility for weighing all of the evidence. A trial judge’s language mustbe reviewed not only with care, but also in context. Most language is amenable to multiple

interpretations and characterizations. Butappellate review does not call for a word-by-word analysis; rather, it calls for an examination to determine whether the reasons, taken asa whole, reflect reversible error. This task is to assess the overall, common sense meaning, not to parse the individual linguisticcomponents. Assessing credibility is not a science. It is very difficult for a trial judge to articulate with precision the complex intermingling ofimpressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events.

That is whythis Court decided, most recently in [HL v Canada (Attorney General), 2005 SCC 25, [2005] 1 SCR 401], that in the absence of apalpable and overriding error by the trial judge, his or her perceptions should be respected. [15] Findings of fact will not be disturbed on appeal unless the trial judge has committed a palpable and overriding error. (SeeGagnon at para 10.) Misapprehension of the Evidence [16] The most significant factual issue raised by the accused has to do with whether the events of December 28, 2008, asdescribed by the complainant, were possible, in part due to the reduced functioning of his left arm.

His position is that this testimony iscontrary to common sense and should have raised a reasonable doubt as to the credibility of the complainant’s testimony on these events

and, therefore, her entire testimony. [17] This argument was raised for the first time on appeal. It was not raised at any time during the trial, either during theexamination of the witnesses or in argument. [18] The general rule is that a new issue may not be raised on appeal.

There are exceptions; however, it should only bepermitted where the interests of justice require it and the court has a sufficient evidentiary record and findings of fact to do so. (SeePerka et al v The Queen, (SCC), [1984] 2 SCR 232 at 240; R v Brown, (SCC), [1993] 2 SCR 918 at923-24, 926-27; R v Rollocks (1994), (ON CA), 19 OR (3d) 448 at 453, (CA); Quan v Cusson, 2009 SCC 62 at paras36-37, [2009] 3 SCR 712; and R v Mian, 2014 SCC 54 at paras 41, 51-53, [2014] 2 SCR 689.) [19] The issue of whether the events of December 28, 2008, were possible is a factual issue and, as such, must be determinedon the evidence.

In this case, there is no evidentiary basis because the matter was not raised during the trial. Any conclusion wouldamount to no more than speculation. For this reason, I am of the view that it does not meet the test for raising a new issue on appeal, andI would reject the argument on that basis. [20] The remaining arguments regarding the misapprehension of the evidence all relate to findings of fact and are to bereviewed on the standard of palpable and overriding error. Having carefully considered the evidence and counsels’ submissions, I amnot persuaded that the trial judge misapprehended the evidence.

The Test in W (D) [21] While the accused argues that the trial judge misapplied the test in W (D), his complaints are really with the trial judge’sassessment of credibility, which was the main issue in the trial, and with the sufficiency of the reasons given for the credibility findings. The Supreme Court of Canada dealt with the sufficiency of reasons in R v REM, 2008 SCC 51, [2008] 3 SCR 3 (at paras 55-56): [The appellate court] must look at the reasons in their entire context. It must ask itself whether, viewed thus, the trial judge appearsto have seized the substance of the critical issues on the trial.

If the evidence is contradictory or confusing, the appellate court should askwhether the trial judge appears to have recognized and dealt with the contradictions. If there is a difficult or novel question of law, itshould ask itself if the trial judge has recognized and dealt with that issue. If the answers to these questions are affirmative, the reasons are not deficient, notwithstanding lack of detail and notwithstandingthe fact that they are less than ideal.

The trial judge should not be found to have erred in law for failing to describe every considerationleading to a finding of credibility, or to the conclusion of guilt or innocence.

Nor should error of law be found because the trial judge hasfailed to reconcile every frailty in the evidence or allude to every relevant principle of law. (See also this Court’s decision in R v NHP, 2013 MBCA 30 at para 21, adopting R v Dinardo, 2008 SCC 24 at para 30, [2008] 1 SCR788.) [22] The accused has also argued that the trial judge applied a different standard to the testimony of the accused than he did tothat of the complainant.

This Court addressed this argument in R v BGG, 2015 MBCA 76, 319 ManR (2d) 306, acknowledging that suchan error would be an error at law (see para 14), but also stating that it is a difficult argument to make successfully (see para 15). [23] The accused’s arguments all relate to the trial judge’s weighing of the evidence and her credibility findings, which arisefrom her assessment of the entire testimony of the parties. In my view, she understood that “the substance of the critical issues” in thecase was credibility (see REM at para 55).

The fact that she found one witness to be credible and not the other does not, without more,mean that she subjected their testimony to different levels of scrutiny. [24] It was open to the trial judge to accept the complainant’s explanation for not remembering some details of the events andto reject the accused’s explanation for recalling events earlier forgotten. The reasons for her findings are discernible from the evidenceand her reasons, and she made no palpable and overriding errors in her evidentiary findings.

It was also her responsibility to weigh thatevidence in coming to her conclusions regarding the credibility of the witnesses. I am of the view that she committed no palpable andoverriding error either in her assessment and weighing of the evidence or in her ultimate credibility findings. V.

THE SENTENCE APPEAL [25] As both parties have acknowledged, the standard of review on a sentence appeal, absent an error in principle, is highlydeferential. (See, for example, R v Lacasse, 2015 SCC 64 at paras 38-41, [2015] 3 SCR 1089.) Wagner J, for the majority in Lacasse,held that “a deviation from a sentencing range is not synonymous with an error of law or an error in principle” (at para 60) and “[a]bsentan error in principle, an appellate court may not vary a sentence unless the sentence is demonstrably unfit” (at para 67).

Finally, he statedthat an error in principle or law will justify appellate intervention only where it appears that the error had an impact on the sentence (seepara 44). (See also R v Lloyd, 2016 SCC 13 at para 52.) [26] The accused requires leave to appeal his sentence.

The test for granting leave was set out in R v Amin (WU), 2010MBCA 15, 251 ManR (2d) 137 (at paras 4-9), being that “[an accused] must demonstrate that his appeal presents an arguable case. . . . [T]his means a case with some merit, and some realistic chance of success” (at para 9). [27] The accused argues, firstly, that the trial judge erred in law by failing to consider Gladue principles (see R v Gladue, (SCC), [1999] 1 SCR 688). [28] In this case, defence counsel at the sentencing waived the preparation of a Gladue report and indicated that it would notbe an overwhelming factor.

He did, however, provide some information as to the accused’s Métis background, and there is nothing in

that information or in any of the evidence at the trial that suggests that a Gladue report would have affected the sentence. Thus, I am ofthe view that the trial judge did not err in principle in failing to take Gladue principles into account. Even if she did so err, I am of theview that the error did not have any impact on the sentence in this case. [29] The parties agreed that the starting point for sentencing is three years, based on R v Sandercock (1985), 1985 ABCA 218, 62 AR 382.

The accused argues, secondly, that the trial judge erred in her assessment of the aggravating and mitigatingfactors, such that the sentence of five years that she imposed for these offences was unfit. [30] I am of the view that the trial judge did not err in her consideration of the aggravating and mitigating factors, so thequestion is whether the sentence is demonstrably unfit.

If the starting point sentence for one sexual assault in this case was three years(with which I agree), then a global sentence of five years for the two sexual assaults, imposed concurrently, is not demonstrably unfit. [31] In my view, the sentence appeal has no realistic chance of success, so I would deny leave to appeal. VI. DECISION [32] For the reasons set out, I would dismiss the conviction appeal and deny leave to appeal the sentence. JA I agree: JA I agree: JA