R v JJGL, 2017 MBCA 19

Citation: R v JJGL, 2017 MBCA 19 Date: 20170127 Docket: AR16-30-08600 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Diana M. Cameron Mr. Justice William J. Burnett Madam Justice Janice L. leMaistre BETWEEN : HER MAJESTY THE QUEEN ) S. A. Inness ) for the Appellant Respondent ) ) J. M. Mann and - and - ) C. T. St. Croix ) for the Respondent J. J. G. L. ) ) Appeal heard and (Accused) Appellant ) Decision pronounced: ) January 27, 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 ). CAMERON JA (for the Court): [ 1 ] The accused appealed his convictions for sexual interference and invitation to sexual touching (the offences). He also applied for leave to appeal and appealed the portion of his sentence that consisted of an order made pursuant to section 161(1) (

c) of the Criminal Code (the Code ). At the hearing of the matter, we dismissed the conviction appeal. With the consent of the Crown, we granted leave to appeal and allowed his sentence appeal, thereby striking the order made against the accused pursuant to section 161(1) (

c) of the Code . At the time, we indicated that brief reasons would follow. These are those reasons. Background [ 2 ] The complainant is the accused’s niece. When the complainant was eight years old she disclosed to her mother (the accused’s sister) that the accused had touched her genitals. The next day, the accused was advised of the allegations. He denied them. A family meeting was held between the complainant’s mother, grandparents and the accused.

At one point, the complainant’s grandfather spoke privately with the complainant, advising her that the allegations she was making were serious and that people went to jail for such things. He suggested that she might be mistaken about what had happened. Following that conversation, the complainant said that she was confused about what she had alleged. According to the accused, this ended the conversation.

According to the complainant, after saying she was confused, she continued to maintain that the touching had occurred. [ 3 ] Immediately after the family meeting, the accused and the mother met with the complainant’s father at his residence and told him what had transpired. At that time, the complainant’s parents were separated.

Aside from telling the father, no further action was taken as a result of the allegations. [ 4 ] The accused was not charged with the offences until a number of years later when the complainant disclosed to a guidance counsellor that the accused had committed repeated significant sexual acts against her, including vaginal sexual intercourse, when she was between six and eight years of age. [ 5 ] The accused testified at his trial and denied the allegations. The trial judge held that he did not believe the accused’s evidence nor did it raise a reasonable doubt.

He accepted the evidence of the complainant and convicted the accused. Grounds of Appeal and Analysis

[6] The accused appealed his convictions on three grounds. [7] First, he argued that the trial judge misapprehended evidence that played an essential

part in the reasoning processresulting in his convictions. See R v Lohrer, 2004 SCC 80, [2004] 3 SCR 732. [8] In direct examination, the accused testified that he and the mother went to tell the father “what [the complainant]said.” In cross-examination, the Crown asked the accused why it was necessary to tell the father about the allegations if, as the accusedhad testified, the complainant had immediately retracted them.

The accused responded that he went to tell the father because there were“accusations” and he needed the father to know about them. [9] In rejecting the evidence of the accused regarding the meeting with the father, the trial judge stated that the accusedand the mother went to the father’s house to tell him about the “recantation” of the complainant. The accused contends that the evidenceonly supported a finding that he went to tell the father about the accusations and not the recantation. [10] We disagree.

In our view, there was evidence from which the trial judge could and did infer that the accused’s intentionwas to tell the father the totality of what he claimed was said by the complainant, including the recantation. This inference is subject tothe standard of review of palpable and overriding error. See R v MacLeod (JM) et al, 2013 MBCA 48 at para 16, 294 ManR (2d) 90.

We see no such error and no misapprehension of the evidence. [11] In any event, whether the trial judge had stated that the accused went to tell the father of the allegation, as opposed tothe recantation, would not have affected his overall finding that the accused was not credible. There were a number of reasons why hedisbelieved the accused’s testimony regarding the meeting with the father.

Furthermore, it would not have affected the trial judge’sinference that the reason the accused told the father about the allegations was to “get ahead of the story” and “do some damage control”. [12] Regarding the second ground of appeal, we disagree that the trial judge erred by preventing the accused from cross-examining the complainant on her failure to tell others about the abuse during the time between her first disclosure to her family and herlater disclosure to her guidance counsellor. [13] At one point during the cross-examination, counsel for the accused suggested to the complainant that, after making thefirst disclosure, she did not “go back to school the next week and tell any of the teachers this happened”.

After the complainant answeredthat question, defence counsel repeated essentially the same question. The trial judge interjected and expressed his concern that defencecounsel was attempting to use the delay between the disclosures to undermine the complainant’s credibility.

In attempting to justify thisline of questioning defence counsel stated that “the circumstances of [the first disclosure], doesn’t that suggest given her reactions thatmaybe there should have been a, would have been a further disclosure at that point?” [14] It should be noted that the trial judge did allow the accused to question the complainant about the fact that she did nottell anyone about the abuse when it was going on, and the fact that she waited five years between the first and second disclosures. [15] The Supreme Court of Canada has been clear that, since the abrogation of the rule of recent complaint, the timing of adisclosure will not give rise to an adverse inference against the credibility of the complainant.

Adverse inferences of such a nature arebased on stereotypical but suspect views of how victims of sexual assault should behave. See R v DD, 2000 SCC 43 at paras 59-63,[2000] 2 SCR 275; and R v W(R), (SCC), [1992] 2 SCR 122 at 136-37. Further, the Court has recognized that, while theadversarial process allows for wide latitude to be given to cross-examiners, some restrictions on cross-examination are appropriate insexual assault cases where such cross-examination is based on improper stereotypes.

On the other hand, where defence counsel candemonstrate the relevance of the questioning without resort to stereotypical lines of reasoning, such questioning will be allowed. See R vShearing, 2002 SCC 58 at paras 121-22, [2002] 3 SCR 33. In our view, the justification offered for the question asked by defencecounsel in this case failed to demonstrate such relevance. [16] The theory of the accused was that each of the disclosures occurred at a time when the complainant was feelingabandoned and when her life was in turmoil.

He argued that the fact that she gave few details in her initial disclosure supported histheory that the first disclosure was fabricated and that is why she recanted it. He maintained that the second disclosure was a recentfabrication. He said, “I’m going to submit that this wasn’t a secret that was burning a hole in her for five years.” [17] The trial judge rejected this theory.

He held that the complainant received no emotional support whatsoever when shedisclosed “as an eight-year-old child”, that her grandfather “brought immediate and forceful psychological pressure on her to recant”, thatshe “saw her mother disintegrate emotionally in front of her” and no one believed her. [18] The decision to intervene in cross-examination is discretionary and entitled to deference. A review court may onlyintervene where the trial judge misdirects himself or if his or her decision is so clearly wrong as to amount to an injustice. See R vBellusci, 2012 SCC 44 at paras 17-18, [2012] 2 SCR 509.

In the context of this case, we see no such error in the trial judge disallowingthe proposed question. [19] Finally, the accused asserts that the trial judge erred in applying a greater degree of scrutiny to his evidence ascompared to that of the complainant. The accused acknowledges that this is a difficult argument to make. See R v AF, 2016 ONCA 263at para 6 ; and R v BGG, 2015 MBCA 76 at para 15, 319 ManR (2d) 306. [20] In finding the accused incredible, the trial judge relied on two key aspects of the accused’s evidence:

i) his descriptionof the father’s reaction when told about the allegation/recantation; and ii) whether there was a television in his bedroom where thealleged assaults occurred. The accused argues that he placed too much weight on these points. [21] The trial judge found it incredible that the accused could not recall much about the two-hour conversation that he hadwith the complainant’s father, except that the father was angry and expressed disbelief. After that, the accused said that they calmlytalked about house renovations and hunting.

[ 22 ] The trial judge gave a number of reasons why he did not believe the accused regarding the conversation that he had with the father, one of them being that he found it unlikely that the father would engage in mundane conversations about renovations and hunting after learning of the allegations.

Taken in the context of his reasons, we do not agree that he over-scrutinized the evidence in this regard. [ 23 ] Next, the accused claims that the trial judge put too much weight on the fact that the accused denied that there was a television in his bedroom at the time of the alleged offences, contrary to the evidence of the complainant and that of his ex-girlfriend who shared the bedroom with him. We do not see an error in this regard.

The evidence regarding whether there was a television in the bedroom played an important role in the trial and in the assessment of credibility. [ 24 ] The trial judge gave thoughtful reasons indicating why he was rejecting the arguments put forward that would undermine the complainant’s credibility and explaining why he believed the complainant. [ 25 ] In our view, the trial judge’s assessment of credibility was entirely reasonable in light of the record and is subject to deference. See R v Menow (RA) , 2013 MBCA 72 , 294 ManR (2d) 236 .

We disagree that he applied a greater degree of scrutiny to the accused’s evidence as opposed to the complainant’s evidence. [ 26 ] Thus, for all of the above reasons, the convictions appeal was dismissed. As earlier stated, leave to appeal sentence was granted and the sentence varied to the extent that the order made pursuant to section 161(1) (

c) of the Code was struck. JA JA JA