R v DKM, 2017 MBCA 5

Citation: R v DKM, 2017 MBCA 5 Date: 20170109 Docket: AR16-30-08543 IN THE COURT OF APPEAL OF MANITOBA Coram: Chief Justice Richard J. Chartier Mr. Justice Alan D. MacInnes Madam Justice Janice L. leMaistre BETWEEN : HER MAJESTY THE QUEEN ) J. L. Ostapiw ) for the Appellant Respondent ) ) C. R. Savage - and - ) for the Respondent ) D. K. M. ) Appeal heard and ) Decision pronounced: (Accused) Appellant ) January 9, 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 ). CHARTIER CJM (for the Court): [ 1 ] After hearing submissions, we dismissed the accused’s appeal against conviction with brief reasons to follow. These are those reasons. [ 2 ] The accused was convicted of sexual interference with his daughter. He appealed his conviction on the grounds that the trial judge erred, firstly, in admitting the complainant’s videotaped statement pursuant to

section 715.1 of the Criminal Code (the statement) and, secondly, in admitting similar fact evidence. He did not appeal his three-year sentence of incarceration. [ 3 ] The accused submitted that the statement should not have been admitted into evidence because it was not made within a reasonable time. While it was made on the same day that she disclosed the abuse, it was made one to two years after the abuse actually occurred. After considering the reason for the delay and the impact it had on the complainant’s ability to recall, the trial judge found that the statement met the threshold criteria contemplated by

section 715.1 . Her assessment in this regard is owed deference. In our view, it was open to the trial judge to admit the statement. [ 4 ] The accused also questioned the trial judge’s similar fact evidence finding. He argued that the evidence should not have been admitted since the alleged prior conduct, which related to two incidents involving the complainant’s sister, was not so similar and distinct to establish its probative value.

He further submitted that, even if the incidents were similar, the prejudicial effect greatly outweighed the probative value. [ 5 ] We do not agree. [ 6 ] In her reasons, the trial judge correctly stated the legal principles to be applied and reminded herself that similar fact evidence was presumptively inadmissible.

With respect to her probative value analysis, she relied on four specific similarities that were common to all incidents (it was a father-daughter relationship; the abuse occurred in the family home; other children were sleeping nearby when the abuse occurred; and, the child awoke to find that she was being improperly fondled). In our view, it was open to the trial judge to find that they were not simply generic similarities and that they indeed had probative value. [ 7 ] Moreover, the trial judge correctly addressed the possibility of collusion.

She found there was no evidence of collusion between the mother and the complainant’s older sister or between the complainant and her older sister. Key to her decision as to the former was that the two incidents involving the older sister were reported to the police years before the incident before us occurred. With respect to the latter, the trial judge acknowledged that, while there was evidence of an opportunity to collude with her

sister after her initial disclosure to her mother, there was no evidence that that opportunity had any impact on what the complainant ultimately told the police. Indeed, she found that the initial and ultimate disclosures were the same. We see no reason to interfere. [ 8 ] Finally, after assessing the potential moral and reasoning prejudice and weighing it against the probative value, the trial judge determined that the latter outweighed the former and admitted the similar fact evidence.

When the proper legal principles are applied, such a determination is entitled to substantial appellate deference ( see R v Handy , 2002 SCC 56 at para 153 , [2002] 2 SCR 908 ). In our view, there is no error in principle or misapprehension of fact, and it cannot be said that the decision is so clearly wrong so as to amount to an injustice. [ 9 ] For these reasons, the appeal was dismissed. CJM JA JA