R v APL, 2017 MBCA 115

Citation: R v APL, 2017 MBCA 115 Date: 20171121 Docket: AR17-30-08803 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Alan D. MacInnes Mr. Justice Marc M. Monnin Madam Justice Janice L. leMaistre BETWEEN : HER MAJESTY THE QUEEN ) J. L. Ostapiw ) for the Appellant Respondent ) ) C. T. St. Croix - and - ) for the Respondent ) a. p. l. ) Appeal heard and ) Decision pronounced: (Accused) Appellant ) November 21, 2017 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 ). O n appeal from 2016 MBQB 165 MONNIN JA (for the Court): [ 1 ] After hearing this appeal, we dismissed it with reasons to follow. These are the reasons. [ 2 ] The accused appeals from convictions for sexual assault and sexual interference after a trial where the evidence consisted of a videotaped statement from the complainant, the teenaged daughter of the accused’s girlfriend, as well as her supplementary evidence, together with the evidence from the complainant’s mother and the accused himself.

He was found guilty on both counts. [ 3 ] On appeal, the accused raises two grounds. On the first ground, he argues that the trial judge applied a greater degree of scrutiny to the evidence of the accused than to the evidence called by the Crown.

On the second ground, he argues that the trial judge improperly curtailed the cross-examination of the complainant’s mother. [ 4 ] On the first ground, the accused acknowledges that it is a difficult ground to advance and, to succeed, he must convince us that there is something in the reasons of the trial judge or elsewhere in the record that makes it clear that the trial judge has applied different standards in assessing the evidence of the accused and that of the complainant.

As this Court recently stated in R v CAM , 2017 MBCA 70 (at para 37 ): “ The fundamental rule, for purposes of appellate review, is that, if a trial judge’s credibility assessment can be reasonably supported by the record, it cannot be interfered with on appeal (see R v RP , 2012 SCC 22 at para 10 ; and Gagnon [ R v Gagnon , 2006 SCC 17 ] at paras 10, 20).” [ 5 ] The accused argues that the trial judge wrongly favoured the Crown’s evidence over his in a number of respects.

As to the complainant, she acknowledged having lied to the police on at least two occasions and there were unexplained inconsistencies in her testimony. According to the accused, the trial judge minimized the complainant’s lies and inconsistencies. In contrast, he says that what the trial judge perceived as lies or inconsistencies in the accused’s testimony led her to conclude that his testimony was unreliable, thereby leading to an imbalance in the scrutiny applied to the evidence of the Crown and that of the accused.

As well, on this ground of appeal, he argues that the intervention of the trial judge in curtailing cross-examination of the complainant’s mother showed a tendency to favour the Crown’s evidence to the detriment of the accused, leading the trial judge to accept the mother’s evidence although there was some serious question as to its accuracy. [ 6 ] We are all of the view that this ground of appeal must fail as the accused has not met the high threshold required to

warrant appellate intervention. The trial judge’s reasons detail why she accepted the complainant’s evidence despite concerns about its reliability on certain aspects. As to the mother, she found her to be a credible witness which she was entitled to do. Her reasons also explain why she did not accept the accused’s version of events and found him to be untruthful in certain aspects.

On the whole, her assessments are reasonable on the record. [ 7 ] As noted frequently by this Court, it is not necessary for the trial judge’s reasons to indicate how she dealt with every inconsistency in the evidence before her, only that, in the end, it is possible to appreciate the reasoning which led her to her conclusions. [ 8 ] As to the second ground of appeal, it is based on an assertion that, during the cross-examination of the mother, the trial judge intervened to put a stop to an appropriate line of cross-examination. The facts suggest otherwise.

While the trial judge raised a concern as to a line of cross-examination, the exchange between the trial judge and defence counsel indicates the latter had asked all the questions she intended to. In fact, the answers obtained were used as part of defence counsel’s closing

summary. There was no indication she wished to pursue that line of inquiry further having obtained the information she needed. We are of the view that there was no improper curtailing of an appropriate line of cross-examination. [ 9 ] For these reasons, we dismissed the appeal. JA JA JA