R v Bonni, 2020 MBCA 64

Citation: R v Bonni, 2020 MBCA 64 Date: 20200618 Docket: AR19-30-09290 IN THE COURT OF APPEAL OF MANITOBA Coram: Chief Justice Richard J. Chartier Mr. Justice Michel A. Monnin Mr. Justice Christopher J. Mainella BETWEEN : HER MAJESTY THE QUEEN ) E. J. Roitenberg ) for the Appellant Respondent ) ) A. C. Bergen - and - ) for the Respondent ) (via videoconference) TYLER WAYNE BONNI ) ) Appeal heard and (Accused) Appellant ) Decision pronounced: ) June 11, 2020 ) ) Written reasons: ) June 18, 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. On appeal from 2019 MBQB 17 CHARTIER CJM (for the Court): [ 1 ] The accused appeals his sexual assault conviction for digitally penetrating the vagina of the complainant and placing her hand on his genitals while she was intoxicated and asleep at a house party. After hearing submissions from counsel, we dismissed the appeal with reasons to follow.

These are those reasons. [ 2 ] The accused argues that the trial judge made four errors, namely: that he applied a higher level of scrutiny to the evidence of the defence as compared to that of Crown witnesses; that he misapprehended the evidence; that he improperly considered the prior relationship between the accused and the complainant; and, that he should not have allowed the Crown to call rebuttal evidence. [ 3 ] In our view, the trial judge did not err and the appeal should be dismissed.

We have dealt with the accused’s second ground (misapprehension of the evidence) in the discussion of grounds one and three. [ 4 ] The essence of the accused’s first ground is that by applying different standards in assessing the credibility of witnesses, the trial judge shifted the burden of proof to the accused. He submits that the trial judge’s reasons show that he moved the burden to the accused by requiring him to refute that the complainant did not consent to the sexual touching because she was asleep.

He also argues that the trial judge misapprehended the evidence on whether she was asleep when the sexual touching occurred. [ 5 ] We are not persuaded that it is clear from the trial judge’s reasons, or the record, that different standards were applied ( R v Jovel , 2019 MBCA 116 at para 38 ). A fair reading of the impugned passage shows that the trial judge was identifying the central issue in the case, not conferring a refutable presumption in favour of the complainant. He recognised that the key fact in dispute was

whether the complainant was asleep when the accused was touching her sexually. She said she was asleep; the accused said she wasnot. The trial judge correctly acknowledged that, “If the complainant was asleep . . . she was not able to consent” (at para 13).

On thetotality of the evidence, it was open to the trial judge to find that the complainant was awoken by the accused’s sexual touching andtherefore had not consented to it. [6] In our view, the trial judge properly instructed himself on the principles enunciated in R v W(D), (SCC), [1991] 1 SCR 742; his credibility assessments were firmly rooted in the evidence; he did not reverse the onus; and he made noreadily obvious error as to the material parts of the evidence regarding the issue of consent. [7] The next ground is that the trial judge improperly considered evidence about the prior relationship between theaccused and the complainant.

The accused cites the recent Supreme Court of Canada decision in R v Goldfinch, 2019 SCC 38, as hisauthority. Goldfinch deals with the exclusionary rules found in

section 276 of the Criminal Code, making evidence of a complainant’ssexual activity, other than the activity caught by the charge before the court, presumptively inadmissible. [8] The complainant and the accused had not previously engaged in any sexual activity; they simply knew each otherfrom being part of the same social circle. The evidence in question relates to Facebook messages, where over a two to three-year periodprior to the offence, the accused made numerous unsolicited and unwelcomed advances to the complainant and she refused all of them. Evidence of a complainant’s refusal to sexual activity is not evidence of sexual activity and is therefore not captured by the

section 276exclusionary rules. The Facebook messages were relevant contextual evidence for the trial judge to weigh, given the accused haddenied, in his video-recorded statement to the police, that he had a prior interest in a romantic or sexual relationship with the complainantand that he had never sent any text messages to her. Moreover, the defence consented to the Facebook messages being admitted intoevidence and attempted to use the evidence to discredit the complainant. [9] The accused’s final ground of appeal is that the trial judge should not have allowed the Crown to call rebuttalevidence.

When arrested, the accused gave a video-recorded statement to the police. At the commencement of the trial, the accusedagreed the statement was voluntary and could be used by the Crown for cross-examination purposes. That statement contained a numberof material assertions that the accused later admitted at trial were untrue. When cross-examined by the Crown on the reason for lying,the accused said that, “at no point did [he] fully understand what was going on” because he had been drinking.

When asked whether hewas “pretty intoxicated” when he attended the police station, he answered: “Sure, yes.” [10] After the defence closed its case, the Crown applied to call the officer who had taken the video-recorded statement ofthe accused to rebut his assertion of intoxication and lack of understanding and to admit the video-recorded statement so that theaccused’s condition at the time of speaking to police could be observed by the judge. The trial judge allowed the rebuttal evidence. Theaccused says that was an error because it undermines trial fairness.

He submits that the Crown made a tactical decision not to call theofficer, or admit the statement, when it put in its case and that it should not have been allowed to split its case. [11] We are not persuaded by this argument. The reason for not calling the officer was that the accused admitted to thevoluntariness of the police video-recorded statement. By claiming, after the Crown had closed its case, that his level of intoxication hadsignificantly affected his ability to understand, the accused called into question the voluntariness of his prior statement.

The Crowncould not have known that the accused would blame material inconsistencies on being “pretty intoxicated” at the police station when hisarrest log-in sheet indicated he was “sober.” The trial judge correctly limited the scope of the officer’s rebuttal evidence, and thecontents of the video-recorded statement, to clarify the operating-mind factor of the voluntariness test; namely, whether the accusedshowed signs of impairment and whether the officer had any concerns about the accused’s ability to understand the questions posed tohim.

We see no error here. [12] In the end, the accused did not demonstrate any basis to warrant appellate intervention and his appeal was thereforedismissed. CJM JA JA