R v BGG, 2018 MBCA 31

Citation: R v BGG, 2018 MBCA 31 Date: 20180316 Docket: AR17-30-08850 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Michel A. Monnin Mr. Justice Christopher J. Mainella Madam Justice Janice L. leMaistre BETWEEN: HER MAJESTY THE QUEEN ) S. A. Inness ) for the Appellant Respondent) ) J. M. Mann- and - ) for the Respondent ) b. G. G. ) Appeal heard and ) Decision pronounced: (Accused) Appellant) March 16, 2018 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). On appeal from 2016 MBQB 229 Mainella JA (for the Court): [1] After a retrial (see 2015 MBCA 76), the accused was convicted of sexual assault (conditionally stayed pursuant toKienapple v The Queen, (SCC), [1975] 1 SCR 729), sexual interference and invitation to sexual touching of his then 14-year-old cousin (the complainant). The allegations arise from the accused, who was 35 years old at the time, demanding fellatio and thenraping the complainant after he drove her to his home, instead of her residence, following a family party.

Eleven witnesses (including thecomplainant and the accused) testified at the trial; credibility was the key issue.

In his evidence, the accused denied the allegations,saying that he drove the complainant to his house after the party, at her request, because she wanted to discuss with him her personalproblems. [2] The accused raises three grounds of appeal: the judge’s reasons are insufficient because she did not explain why shedid not have a reasonable doubt based on the accused’s evidence, despite rejecting it; the judge misdirected herself on the effect ofinconsistencies in the complainant’s evidence based on her age; and there was an uneven scrutiny of the evidence.

After hearing theappeal, we dismissed it with reasons to follow. These are those reasons. [3] On the first ground of appeal, we were not persuaded that the judge’s reasons are insufficient on the second prong ofthe test set out in R v W(D), (SCC), [1991] 1 SCR 742 at 758.

In her reasons, the judge stated that she “reject[s] [theaccused’s] denials and find[s] that the totality of the defence does not raise a reasonable doubt as to his guilt” (at para 34). [4] The general rule is, that when a trial judge rejects an accused’s testimony, it is implicit that the evidence does notraise a reasonable doubt (see R v Vuradin, 2013 SCC 38 at para 27). Several observations can be made on a functional review of thejudge’s reasons. To begin, she understood the analysis set out in W(D).

She properly summarized the accused’s testimony and then setout six reasons why she disbelieved it on the core allegations. She also explained why some of the evidence of the accused she didbelieve; for example, that approximately two days after the alleged sexual assault the complainant and her mother, without incident, wereat a garage sale at his house, did not give rise to a reasonable doubt. Finally, she explained why the complainant’s evidence satisfied herbeyond a reasonable doubt, despite frailties with her evidence and exculpatory evidence put forward by defence witnesses.

Her reasonsdemonstrate her analysis and permit effective appellate review of the decision. We are satisfied that, in the circumstances, her outrightrejection of the accused’s evidence on the core allegations adequately explains why she was not left in reasonable doubt by his testimony

(see R v D(JJR) (2006), (ON CA), 215 CCC (3d) 252 at para 53 (Ont CA); and R v REM, 2008 SCC 51 at para 25). [5] On the second ground of appeal, we see no error regarding how the judge dealt with some of the inconsistencies ofthe complainant due to her age. It is evident from the record that the complainant was confused when interviewed by police as to themeaning of terms such as erection and ejaculation.

Appropriately, the judge took into account the materiality of inconsistencies arisingfrom the words the complainant used to describe what happened to her, given her age (see R v W(R), (SCC), [1992] 2SCR 122 at 134). We see no error in the judge’s approach. [6] Finally, on the last ground of appeal relating to an uneven scrutiny of the evidence, we see nothing clearly apparent ofsignificance in the judge’s reasons to suggest she used different methodologies to assess the credibility of the Crown’s witnesses asopposed to those of the defence (see R v CAM, 2017 MBCA 70 at para 34).

The uneven scrutiny argument is often made, as is the casehere, on the circular idea that, because a judge believes one witness over another, but credibility could have been assessed in anotherway, different standards of scrutiny have occurred.

That is not the law; much more is required to succeed on this ground of appeal (seeCAM at para 34; R v George, 2016 ONCA 464 at para 36; R v Chanmany, 2016 ONCA 576 at paras 27-29; R v Radcliffe, 2017 ONCA176 at para 24; R v ON, 2017 ONCA 923 at paras 4-5; and R v B-DN, 2018 ONCA 248 at para 14). [7] The role of an appellate court is not to retry the case and microscopically review the evidence attributing weight orsignificance to facts in a different way than a trial judge did. Accordingly, the argument that an uneven scrutiny of the evidence hasoccurred is a difficult one to succeed on (see CAM at para 35).

As was explained in CAM, “The fundamental rule, for purposes ofappellate review, is that, if a trial judge’s credibility assessment can be reasonably supported by the record, it cannot be interfered withon appeal (citations omitted)” (at para 37). [8] That is the situation here. The judge’s reasons are thorough and balanced. It is not suggested that shemisapprehended the evidence in any material way.

The accused admitted to the opportunity to commit the sexual assault and alsoconceded in his testimony that it made no “sense”, given his busy life, for the complainant to come to his house after midnight to discussthe problems of a teenager. The judge found the evidence that supported the credibility of the accused to be peripheral. She alsodisbelieved much of the confirmatory evidence relied on by the Crown, principally from the complainant’s mother. The judge rested herverdicts, as she was entitled to do, on her credibility assessment of the complainant.

The complainant gave a detailed description of howthe sexual assault occurred. She was cross-examined meticulously and at length, but did not waiver on the core allegations. Shedisclosed that she had been sexually assaulted to a friend shortly after the incident. The judge found the complainant’s evidence on thecore allegations to be “consistent, compelling and believable” (at para 58). These circumstances reasonably provide a basis for thejudge’s credibility assessments of the accused and the complainant. We would not accede to this ground of appeal. [9] In the result, the appeal was dismissed. JA JA JA