R v AJS, 2019 MBCA 93

Citation: R v AJS, 2019 MBCA 93 Date: 20190909 Docket: AR18-30-09184 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Barbara M. Hamilton Mr. Justice William J. Burnett Madam Justice Karen I. Simonsen BETWEEN : ) S. W. Brennan and HER MAJESTY THE QUEEN ) J. E. Smith ) for the Appellant ) Respondent ) D. C. Sahulka and ) A. Y. Kotler - and - ) for the Respondent ) A. J. S. ) Appeal heard and ) Decision pronounced: ) September 3, 2019 (Accused) Appellant ) ) Written reasons: ) September 9, 2019 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 ) . Hamilton JA (for the Court): [ 1 ] The accused appeals his convictions for the offences of sexual interference, invitation to sexual touching and making available sexually explicit material to a person under 16 years of age. The complainant is his granddaughter, who was 11 years old at the time of the offences. [ 2 ] The accused raises two grounds of appeal: 1. The trial judge erred in the test that he applied when declining to reopen the trial to call a witness after the close of evidence and submissions. 2.

The trial judge misapprehended the evidence by relying on the complainant’s lack of embellishment to bolster her credibility. [ 3 ] At the appeal hearing, we dismissed the appeal with brief reasons to follow. These are our reasons.

Reopening the Evidence [ 4 ] At trial, the complainant’s videotaped statement was admitted into evidence and she testified. [ 5 ] The complainant testified that she saw the accused every weekend when she visited her father, who was living with the accused, and that while her father, her uncle and her father’s girlfriend (the girlfriend) were also at the house when she was there, they were not in the same room when the accused committed the offences. [ 6 ] The Crown also called the father, the complainant’s mother and the police officer who interviewed her for the videotaped statement.

The father testified that the girlfriend was in the house during the weekend visits with the complainant.

[7] The accused elected not to testify or call any witnesses. [8] After the Crown and defence counsel made final submissions, the case adjourned to the next day. [9] When court reconvened, defence counsel advised the trial judge that the girlfriend, who had been sitting in thecourtroom during the evidence and submissions, approached both counsel and advised that she wanted to testify “with respect to herwhereabouts during the relevant period of time.” [10] After hearing argument, the trial judge declined to reopen the case to hear the girlfriend’s evidence.

He noted that herproposed evidence that she was at the house was largely already before the Court through other witnesses and given the nature of theallegations that the complainant was alone with the accused when he committed the offences, the proposed evidence was largelyperipheral.

The trial judge also noted that the girlfriend was a person known to defence counsel and the Crown prior to the trial, and heexpressed concern that she sat through the evidence and submissions and that calling her “would be tantamount to [calling] her as arebuttal witness”. [11] The parties agree that R v Hayward (1993), (ON CA), 86 CCC (3d) 193 (Ont CA) sets out thefactors to be considered on an application by a party to reopen its case.

The factors are: • whether the evidence is relevant to a material issue in the case; • the potential prejudice to the other party, if reopening is permitted; and • the effect of permitting reopening on the orderly and expeditious conduct of the trial. [12] Whether to reopen a case is a matter of discretion to be exercised judicially. Absent an error in principle, the trialjudge’s decision is entitled to deference (see R v Scott, (SCC), [1990] 3 SCR 979 at 1001; and Hayward at p 197). [13] The accused asserts that the trial judge did not apply the test set out in Hayward and therefore committed an error oflaw.

In particular, he says that the trial judge was wrong to conclude that the evidence was tainted because the girlfriend sat in thecourtroom during the trial and that calling her “would be tantamount to [calling] her as a rebuttal witness”. He argues that there was noprejudice to the Crown. [14] While the evidence may have been relevant, the accused did not set out the specific nature of the proposed evidence. There was no witness statement to the police or a “will say”, as was provided in Hayward (ibid).

The trial judge understandablyconcluded that the evidence was “peripheral”, given that there already was evidence that the girlfriend was present at the accused’shouse at the material time. [15] Furthermore, the accused did not explain why the evidence was not led by the defence during the trial.

This was not awitness, like in Hayward, who did not attend court after being served with a subpoena. [16] Finally, the trial judge was appropriately concerned that the girlfriend had sat through the evidence and submissionsand he was entitled to consider that the weight to be given to the evidence of the proposed witness would be affected by this. [17] We see no error in principle by the trial judge and we agree with the Crown that the trial judge’s decision declining toreopen the trial to hear further evidence is entitled to deference.

Credibility [18] The accused argues that the trial judge misapprehended the evidence when he noted several times in his reasons thatthe complainant did not embellish the truth. [19] Overemphasis of a lack of embellishment may constitute an error in principle justifying appellate intervention when it isa “key factor” in a trial judge’s credibility findings (R v RAG, 2008 ONCA 829 at para 20). [20] Here, the accused is challenging the trial judge’s credibility findings and the reasons for them. As is well known, atrial judge’s credibility findings are entitled to deference.

See, for example, R v Gagnon, 2006 SCC 17 at para 20; and R v NHP, 2013MBCA 30 at para 20. [21] The trial judge did mention several times that the complainant did not embellish her evidence by making “the accused’sconduct appear worse to someone else”. These references were not the “key factor” for his findings that the complainant’s evidence wascredible and reliable.

The trial judge reviewed the complainant’s evidence in detail; commented on her demeanour in the video andwhile testifying; and noted the consistency between her answers on direct and in cross-examination, her responsiveness to the questionsasked, the lack of motive to fabricate and the understandable reason for her delayed disclosure. [22] We agree with the Crown that the trial judge’s references to the complainant’s lack of embellishment were made in thecontext of these other important considerations and simply indicated that the complainant’s evidence “did not suffer from a problem ofexaggeration or embellishment that would have diminished its weight” (R v Kiss, 2018 ONCA 184 at para 54).

As stated in Kiss (at para53): [T]here is nothing wrong with a trial judge noting that things that might have diminished credibility are absent. As long as it is not beingused as a makeweight in favour of credibility, it is no more inappropriate to note that a witness has not embellished their evidence than itis to observe that there have been no material inconsistencies in a witness’ evidence, or that the evidence stood up to cross-examination.

Conclusion [ 23 ] The trial judge’s decision not to reopen the trial to hear further evidence and his finding that the evidence of the complainant is credible and reliable are entitled to deference. [ 24 ] For these reasons, we dismissed the appeal. JA JA JA