R v JAW, 2020 MBCA 62

Citation: R v JAW, 2020 MBCA 62 Date: 20200610 Docket: AR19-30-09332 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Madam Justice Diana M. Cameron Madam Justice Jennifer A. Pfuetzner BETWEEN : ) Z. M. Jones HER MAJESTY THE QUEEN ) for the Appellant ) (via videoconference) ) Respondent ) A. Klein ) for the Respondent - and - ) (via videoconference) ) ) Appeal heard and J. A. W. ) Decision pronounced: ) June 1, 2020 ) (Accused) Appellant ) Written reasons: ) June 10, 2020 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 ) . COVID-19 NOTICE: As a result of the COVID-19 pandemic and pursuant to r 37.2 of the Manitoba, Court of Appeal Rules , Man Reg 555/88R , all appeals are heard remotely by videoconferencing until further notice. cameron JA (for the Court) : [ 1 ] The accused appeals his conviction for sexual assault (see

section 271 of the Criminal Code ). He also applies for leave to appeal and, if granted, appeals his sentence of 39 months’ imprisonment. At the conclusion of the hearing, we dismissed his conviction appeal, granted him leave to appeal his sentence and dismissed the sentence appeal with reasons to follow. These are those reasons. [ 2 ] The accused was alleged to have sexually assaulted the complainant while she was asleep in his bedroom after a night of partying with friends. It is uncontested that, after she fell asleep, the accused entered his bedroom and locked the door.

The complainant testified that she woke up to discover that her pants were off and the accused was over her with his pants lowered. She stated that she told him to stop but he proceeded to force vaginal intercourse on her despite her repeated protests and attempts to resist. The sexual assault ended when the complainant’s friend (the friend) and other partygoers heard her making noise and banged on the door, yelling at the accused to open it. The friend stated that the accused only unlocked the door after her boyfriend told him that he was going to break it down. [ 3 ] The accused testified.

He denied any sexual contact with the complainant. He stated that he locked the door out of habit, even though he lived alone. After confirming that there were two other bedrooms in his house, he claimed that he did not sleep in them because one of them did not have a bed and he did not sleep in the other because “if anything, [he] just wanted to sleep in [his] own bed.” He claimed that he was merely sleeping beside the complainant in bed when he heard banging on the door. [ 4 ] The trial judge did not believe the accused.

She considered that the Crown had proven its case beyond a reasonable doubt and convicted him.

[5] The accused appeals his conviction on two grounds. First, he claims that the trial judge misapprehended the evidenceas between the complainant and the friend. The complainant testified that, when the friend and the others were initially in the doorwayto the bedroom, her pants were not on but she was able to slip them on. The friend stated that, when she entered the room, thecomplainant’s pants were on. [6] The trial judge considered the alleged conflict, but found that it was possible that the complainant slipped her pants onwhen everyone first entered the room.

While she may have misspoken when she stated who pushed the accused, the trial judge foundthat it was possible that the friend might not have noticed the complainant putting on her pants as she was focussed on the accused whenshe entered the room. [7] The accused argues that the trial judge erred as, in his view, the friend was clear in her testimony that, when the dooropened, she was focussed on the complainant and her well-being, and not on the accused. [8] In order for a misapprehension of evidence to amount to a miscarriage of justice entitling the accused to a new trial,the trial judge must have made an error as to the substance of material parts of the evidence and that error must play an essential

part inthe reasoning process leading to the conviction (see R v Morrissey (1995), (ON CA), 97 CCC (3d) 193 at 221 (OntCA)). A different

interpretation of the evidence is not a misapprehension (see R v Jovel, 2019 MBCA 116 at para 34). [9] In our view, there was no misapprehension of the evidence. When the friend first opened the door, there were threepeople in the doorway—the friend, her boyfriend and another male. There was immediate questioning. A confrontation occurred. Insuch circumstances, it was open to the trial judge to find that the friend may not have noticed the complainant slipping on her pants.

Thetrial judge was not required to interpret the friend’s evidence in the manner the accused suggests. [10] Furthermore, the friend’s evidence demonstrates that her attention was not solely on the complainant, as she was able todescribe how the accused looked and what he was doing when they entered the room. [11] The slipping on of the pants is a single, peripheral detail arising after the sexual assault that would not have changed thedecision of the trial judge, who found that the friend’s testimony was corroborative of the complainant’s as a whole and found thecomplainant to be a credible witness for many reasons.

We are not persuaded that the trial judge misapprehended material evidence thatplayed an essential

part in the reasoning process leading to the accused’s conviction. [12] Secondly, the accused argues that the trial judge subjected his testimony to a higher degree of scrutiny than to that ofthe complainant. In this regard, he argues that the trial judge failed to consider that the complainant agreed in cross-examination that,when she gave her statement, she failed to tell the police

i) the name of the designated driver that the partygoers had used on the eveningin question; ii) that she had kissed another male that evening; and iii) that she had smoked marihuana the night of the incident. He alsoargues that the trial judge failed to consider that the complainant admitted that her memory was impacted by alcohol consumption andthe usage of the marihuana. [13] While applying a stricter or different standard of scrutiny to the evidence of an accused than to that of a Crown witnessis an error of law, an appellate court must be careful not to retry the case.

An evaluation of testimony may only be interfered with whereit cannot be supported on any reasonable view of the evidence (see Jovel at para 38). [14] The trial judge’s reasons demonstrate that she considered the issues raised in her assessment of the complainant’scredibility, but she found that the complainant’s evidence overall was detailed, consistent and compelling.

She simply did not attributethe weight to alleged inconsistencies that the accused urged upon her. [15] Among the reasons for finding that she did not believe the accused, the trial judge found his explanations for lockinghis door and for not sleeping in another room made no sense and were concerning. She did not find his explanations to be plausible orsupported by the evidence. [16] The credibility findings of the trial judge are supported by the record and are entitled to deference.

The accused has notmet the high test required to succeed on the ground that the trial judge applied a stricter standard to his evidence than to that of thecomplainant. [17] The accused was sentenced to 39 months’ incarceration. He argues that the trial judge failed to give proper weight tothe Gladue factors (see R v Gladue, (SCC), [1999] 1 SCR 688) and inappropriately took into consideration that thecomplainant was Indigenous. He asks on appeal that this Court impose a sentence of two to three years’ incarceration. [18] Decisions of sentencing judges are to be afforded deference by appellate courts.

Interference is only permitted where asentencing judge makes an error in principle, fails to consider a relevant factor or erroneously considers an aggravating or mitigatingfactor and where it appears from the sentencing judge’s decision that such an error had an impact on the sentence, or if the sentence isdemonstrably unfit (see R v Lacasse, 2015 SCC 64 at paras 44, 51). [19] Contrary to the accused’s position, the trial judge did take into account the Gladue factors.

However, she focussed ondenunciation and deterrence, and she did not err in doing so (see R v KNDW, 2020 MBCA 52 at para 21). [20] The trial judge noted that the complainant was an Indigenous woman when commenting on the impact that the offencehad on her. She was entitled to do so as it was a circumstance of the complainant. [21] In considering the nature of the offence, the trial judge mentioned that the complainant was Indigenous and specificallystated that “Indigenous women, as all women, deserve our utmost respect” (emphasis added).

The trial judge did not sentence theaccused more harshly because the complainant was Indigenous. [22] This was a serious, premeditated sexual assault committed on a person whom the accused had known for a long time

and whom he knew was particularly vulnerable on the night of the offence. Not only had she been consuming alcohol and marihuana, she was asleep. Moreover, he knew that she was mourning the recent loss of her young child. In all of the circumstances, we are not persuaded that the sentence is demonstrably unfit. [ 23 ] Based on all of the above, the conviction appeal was dismissed. We granted leave to appeal sentence and dismissed the sentence appeal. JA JA JA