R v GBFB, 2018 MBCA 39

Citation: R v GBFB, 2018 MBCA 39 Date: 20180410 Docket: AR17-30-08805 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. J. Soldier ) for the Appellant Respondent) ) S. L. Thomas and- and - ) R. D. Lagimodière ) for the RespondentG. B. F. B. ) ) Appeal heard and(Accused) Appellant) Decision pronounced: ) April 10, 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). LEMAISTRE JA (for the Court): [1] The accused was convicted of sexual interference for acts involving the daughter of his girlfriend when she wasbetween six and seven years old and they were living together as a family.

Additional charges of sexual assault and invitation to sexualtouching were judicially stayed pursuant to Kienapple v The Queen, (SCC), [1975] 1 SCR 729. [2] The accused argued two grounds of appeal: 1) the trial judge misapprehended the evidence resulting in adversecredibility findings against the accused; and 2) the verdict was unreasonable. [3] After reviewing the factums and the record and hearing submissions for the accused, we did not find it necessary tocall on the Crown and we dismissed the accused’s conviction appeal with brief reasons to follow.

These are those reasons. [4] On the first ground of appeal, the accused argued that the trial judge drew inferences that caused him to disbelievethe accused when he should have interpreted the evidence differently and in a manner that supported the credibility of the accused. [5] In R v Whiteway (BDT) et al, 2015 MBCA 24, Mainella JA pointed out that “[d]isagreeing with a trial judge’sfindings on appeal by suggesting a different possible

interpretation of the evidence does not amount to a misapprehension of the evidencefor the purposes of appellate review” (at para 61). He explained what constitutes a misapprehension of the evidence (at para 32): A misapprehension of evidence may refer to a mistake as to the substance of evidence, a failure to consider evidence relevant to amaterial issue or a failure to give proper effect to evidence (R. v. Morrissey (R.J.) (1995), (ON CA), 80 O.A.C. 161 atpara. 83; and R. v. Sinclair, 2011 SCC 40 at para. 13, [2011] 3 S.C.R. 3). A misapprehension of the evidence is not to be confused with adifferent

interpretation of the evidence than the one adopted by the trial judge (R. v. Lee, 2010 SCC 52 at para. 4, [2010] 3 S.C.R. 99). Itis insufficient that the judge may have misapprehended the evidence; the error must be readily obvious (Sinclair at para. 53). [6] The accused testified that the complainant moved out when he became upset with her for sneaking a boy into thehouse and having marijuana paraphernalia in her bedroom. The trial judge found this “bizarre” in light of his evidence that he gave the

complainant money for a drug debt and that, at the time of trial, he was serving a sentence for trafficking in marijuana. [7] The accused argued that the trial judge ought to have interpreted this evidence differently, particularly in light ofother evidence as to the nature of the accused’s relationship with the complainant (that he was a concerned parent), and that thisconstituted a misapprehension of the evidence. [8] The accused also argued that the trial judge should not have made an adverse credibility finding regarding thecontradictions between his statement to police and his testimony in court. [9] The trial judge considered the totality of the evidence and had concerns beyond those the accused says could havebeen interpreted differently when he rejected the accused’s evidence.

In finding that the accused’s evidence did not raise a reasonabledoubt, the trial judge explained that the issues with his testimony “severely undermine[d] his credibility”. [10] We were not satisfied that the trial judge misapprehended the evidence or that there were any obvious errors in themanner in which the trial judge dealt with the evidence on these points.

His findings were reasonable based on an overall assessment ofthe evidence. [11] On the second ground of appeal, the accused asserted that the verdict was unreasonable because the trial judge drewfactual conclusions based on speculation and erred in his assessment of the credibility of the accused by misapprehending the evidenceabout the nature of the relationship between the accused and the complainant. [12] The trial judge’s reasons demonstrate that his factual findings were based on reasonably drawn inferences and that heunderstood the nature of the relationship between the accused and the complainant.

He carefully assessed the evidence and recognizedthat he needed to bear in mind that the complainant was testifying about events which occurred ten years previously, when she wasbetween six and seven years old (see R v W (R), (SCC), [1992] 2 SCR 122 at 134-35). [13] In our view, the accused failed to demonstrate that the trial judge’s assessment of the evidence “cannot be supported onany reasonable view of the evidence” (R v RP, 2012 SCC 22 at para 10, citing R v Burke, (SCC), [1996] 1 SCR 474 atpara 7). [14] In the result, the appeal was dismissed. JA JA JA