R v Volden, 2018 MBCA 91

Citation: R v Volden, 2018 MBCA 91 Date: 20180926 Docket: AR17-30-08937 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice William J. Burnett Mr. Justice Christopher J. Mainella Madam Justice Janice L. leMaistre BETWEEN: HER MAJESTY THE QUEEN ) S. B. Simmonds and ) K. J. Advent ) for the Appellant Respondent ) ) A. C. Bergen ) for the Respondent- and - ) ) Appeal heard and ) Decision pronounced:DARRELL WAYNE VOLDEN ) September 12, 2018 ) (Accused) Appellant ) Written reasons: ) September 26, 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 2017 MBQB 90 leMaistre JA (for the Court): [1] The accused appeals his conviction for sexual assault contrary to

section 271 of the Criminal Code. After thehearing, we dismissed the appeal with brief reasons to follow. These are our reasons. [2] The trial judge found that on the night of the complainant’s 19th birthday, she became extremely intoxicated andwent to bed at her uncle’s home. She was fully clothed and assisted by her girlfriend. Sometime later, the then 41-year-old accused gotinto bed with her. When the complainant awoke the next morning, the accused sexually assaulted her.

The trial judge rejected theaccused’s testimony that during previous encounters with the complainant she flirted with him; that the complainant agreed that he couldget into bed with her; and that she took off her own pants and underwear in order to facilitate intercourse. [3] In light of the DNA evidence and the testimony of the complainant’s girlfriend and uncle, it was uncontested that thecomplainant was extremely intoxicated when she went to bed and that the accused had sexual contact with her in the morning.

The onlyissue at the trial was whether the complainant consented to the sexual contact when it occurred (the accused did not raise the defence ofhonest but mistaken belief in consent). See R v Ewanchuk, (SCC), [1999] 1 SCR 330.

The trial judge concluded thatthe complainant did not consent to the sexual contact. [4] In his factum, the accused argued that the trial judge erred in his application of R v W(D), (SCC),[1991] 1 SCR 742, reversed the burden of proof, improperly intervened during the trial by questioning the accused, afforded a higherlevel of scrutiny to the defence evidence and misapprehended the evidence of intoxication and consent. [5] We have not been persuaded that the trial judge improperly shifted the burden of proof, and we are satisfied that hisfindings are reasonably supported by the evidence (see R v RP, 2012 SCC 22 at para 10).

The trial judge correctly articulated the testfrom W(D), he did not misdirect himself in its application and he properly considered the accused’s evidence in the context of the entirety

of the evidence. The trial judge explained why he rejected the accused’s evidence and addressed discrepancies in the complainant’stestimony. Ultimately, he concluded, “on the basis of the evidence I do accept, I am convinced beyond a reasonable doubt of the guilt ofthe accused” (at para 65). It is evident from his reasons that he accepted the complainant’s testimony as credible and reliable. [6] We have also not been persuaded that the trial judge misapprehended the evidence regarding intoxication andconsent.

The trial judge correctly concluded that the complainant was asleep and could not have consented to the sexual contact whenhe said, “the complainant was unaware of [the accused] being in bed with her until she awoke later in the morning with his fingers in hervagina” (at para 53). [7] Finally, there is no merit to the accused’s argument that the trial judge afforded a higher level of scrutiny to thedefence evidence. Absent palpable and overriding error, a trial judge’s credibility assessment is entitled to deference (see R v Gagnon,2006 SCC 17 at para 20).

It is not the role of an appellate court to reweigh the evidence and, therefore, it is difficult to succeed on anargument that an uneven scrutiny of the evidence has occurred (see R v BGG, 2018 MBCA 31 at para 7).

As explained by Mainella JAin R v CAM, 2017 MBCA 70 (at paras 33, 37): Applying a stricter standard of scrutiny to the evidence of an accused than used to assess the evidence of a Crown witness is an error oflaw that undermines the fairness of a trial and can give rise to a miscarriage of justice (see R v Owen, 2001 CarswellOnt 3852 at para 3(CA); R v HC, 2009 ONCA 56 at para 62; and R v Glays, 2015 MBCA 76 at paras 13-14).

The fundamental rule, for purposes of appellate review, is that, if a trial judge’s credibility assessment can be reasonably supported bythe record, it cannot be interfered with on appeal (see R v RP, 2012 SCC 22 at para 10; and Gagnon at paras 10, 20). [8] The accused asserted the trial judge questioned the accused in a manner that demonstrated an elevated level ofscrutiny and he used different methodologies to assess the credibility of the Crown’s witnesses as opposed to that of the accused. [9] There are limits to the extent to which trial judges may properly question witnesses.

They must not reveal a loss ofneutrality, make it impossible for counsel to present the defence, prevent the accused from telling his story in his own way or activelyobstruct counsel (see Regina v Valley (1986), (ON CA), 26 CCC (3d) 207 (Ont CA), leave to appeal to SCC refused,1986 CarswellOnt 6137). [10] Credibility was the key issue in this case. While the trial judge’s questions to the accused after cross-examination weremore extensive than questions he asked the Crown’s witnesses, each question related to events the complainant described differently inher testimony or said did not happen.

Also, counsel was given the opportunity to ask further questions arising from the trial judge’squestions. Great care must be taken in these circumstances. In the present case, while arguable, we have not been convinced that thetrial judge’s questioning of the accused meets the heavy burden required in order to demonstrate a different level of scrutiny of theevidence rendering the trial unfair (see CAM at para 35). [11] The trial judge did not use different methodologies to assess the credibility of the Crown’s witnesses as opposed to thatof the accused (see CAM at para 34).

At the trial, the accused argued that contextual backdrop relating to prior meetings between theaccused and the complainant was important because it demonstrated the complainant was interested in sexual contact with him. [12] The trial judge’s reasons, when read in the context of the evidence and the issues raised, demonstrate he considered thecontextual evidence and found the accused’s story was not credible. The trial judge rejected the accused’s version as to what happenedin the morning when the accused had sexual contact with the complainant.

He identified inconsistencies regarding the complainant’sevidence and he was clearly aware of the inconsistencies when he concluded the evidence established proof beyond a reasonable doubtof the guilt of the accused. Moreover, the evidence was clear that the sexual assault occurred as the complainant was waking up afterbeing extremely intoxicated on the previous night. In the circumstances, the trial judge’s credibility assessments were reasonablysupported by the record and do not demonstrate an uneven scrutiny of the evidence. [13] One final comment.

Counsel for the accused advanced grounds of appeal in his written and oral arguments outside thenotice of appeal without seeking leave of the Court to do so or moving prior to the appeal to file an amended notice of appeal. This is notpermitted absent exceptional circumstances (see R v EGM, 2004 MBCA 43 at paras 11-13). Formalities aside, the new arguments haveno merit.

We would however take this opportunity to stress the importance of an initiating document clearly and precisely identifying allof the grounds of appeal that an appellant wishes to advance so that the appeal can proceed in a fair and orderly manner and withoutdelay. [14] For these reasons, the appeal was dismissed. JA

JA JA