R v Grieves, 2018 MBCA 30

Citation: R v Grieves, 2018 MBCA 30 Date: 20180323 Docket: AR17-30-08791 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Holly C. Beard Madam Justice Diana M. Cameron Mr. Justice William J. Burnett BETWEEN : her majesty the queen ) ) G. F. Wiebe ) for the Appellant Respondent ) ) R. N. Malaviya - and - ) for the Respondent ) HOWARD KIRBY GRIEVES ) Appeal heard and ) Decision pronounced: ) March 23, 2018 (Accused) Appellant ) 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 ). BEARD JA (for the Court): [ 1 ] At the conclusion of the hearing of this appeal, the panel indicated that the appeal would be granted and an acquittal entered with brief reasons to follow. These are those reasons. [ 2 ] The accused was acquitted of sexual interference (

section 151 of the Criminal Code ) and sexual assault (

section 271 of the Criminal Code ) but convicted of the included offence of common assault ( sections 265(1) (a), 266 of the Criminal Code ). He is appealing that conviction on two grounds: (

i) that, having been left with a reasonable doubt as to the character of the contacts that formed the subject matter of the charges, the trial judge erred in finding that the contacts met the elements of the offence of assault; and (ii) that the trial judge erred in failing to consider the de minimus nature of the contacts that formed the subject matter of the charges. [ 3 ] There were only two witnesses, the complainant and the accused. [ 4 ] The complainant was 13 years old and in Grade 8 at the time of the events in question, and the accused was the guidance counsellor at her school.

The accused met with the complainant to discuss problems that she was having, and, during the meeting, she became emotional and was crying. The complainant testified that the contact that occurred during that meeting, which the trial judge found was one touch in the shoulder area and one touch on one knee, was done in the context of the accused comforting her when she was crying. [ 5 ] The accused acknowledged that, during the meeting, he came in contact with the complainant twice; the issue for trial was whether that contact constituted either an assault or a sexual assault.

The trial judge found that he had a reasonable doubt as to the sexual element of the offences. [ 6 ] The trial judge noted that, while there were inconsistencies in the complainant’s evidence, he believed her evidence, for the most part. He then stated that “[i]n the end, [the accused] did admit to the two incidents of touching, and to that extent, there’s common ground between him and the complainant.” [ 7 ] This is a misapprehension and a mischaracterization of the accused’s evidence. What he said was that he stood up at

one point during the meeting to respond to a knock at the door and his knee hit something, which could have been her knee. This touching would have been accidental and, therefore, not confirmatory of an intentional touching. Likewise, the contact with her shoulder, as he described it, was fleeting. In our view, the trial judge erred in finding that the accused’s description of these contacts was consistent with that of the complainant. [ 8 ] Based on the evidence and the trial judge’s findings, we are of the view that the appeal should be allowed and an acquittal entered. Given this finding, it is not necessary to address the second ground of appeal. JA JA JA