R v DT, 2020 MBCA 88

Citation: R v DT, 2020 MBCA 88 Date: 20200922 Docket: AR19-30-09376 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Janice L. leMaistre Madam Justice Karen I. Simonsen Madam Justice Lori T. Spivak BETWEEN: HER MAJESTY THE QUEEN ) A. R. Hodge ) for the Appellant ) Respondent ) D. C. Sahulka ) for the Respondent- and - ) ) Appeal heard and ) Decision pronounced:D. T. ) September 14, 2020 ) ) Written reasons: (Accused) Appellant ) September 22, 2020 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 2019 MBQB 16 SPIVAK JA (for the Court): [1] The accused appeals his conviction for sexual assault. At the conclusion of the hearing, we dismissed his appeal withreasons to follow. These are those reasons. [2] The accused argues that the trial judge misapprehended the medical evidence and drew conclusions that wereunsupported by expert opinion which led to a shifting of the burden of proof and the misapplication of R v W(D), (SCC),[1991] 1 SCR 742. [3] The accused and the complainant met on social media and agreed to “hang out” on February 11, 2017.

Thecomplainant was 16 and the accused was 19 years old at the time. They attended the apartment of the accused’s friend where the sexualassault was found to have occurred. [4] The complainant’s evidence was that the accused began to touch and kiss her and take off her clothes while she triedto stop him and said no. He later pushed her down on a bed and inserted his fingers and penis into her vagina. She protested and theaccused eventually stopped when she told him she had to go home.

During the evening, the complainant communicated with her friendsthat she wanted to leave and that she should never have been there. [5] The accused testified and denied any physical or sexual contact with the complainant. His evidence was that they justtalked and watched a movie, and that the complainant became upset when she realised it was past her curfew. [6] A sexual assault nurse examiner examined the complainant and found two .5-centimetre tears in the vaginal area. Upon being questioned by the nurse, the complainant advised that she had some slight vaginal bleeding after the incident.

The nursenoted this in the sexual assault protocol (SAP) examination chart.

[7] The trial judge rejected the accused’s testimony. In accepting the complainant’s evidence and convicting theaccused, she found (at para 38): Most significantly, there is the physical evidence of a five centimetre tear and some vaginal bleeding which supports the evidence in hertexts that she lost her virginity and, in the absence of any other explanation, supports her story that there was sexual activity that night.

Certainly it stands in direct contradiction to the accused’s evidence that there was no physical contact whatsoever. [8] For a misapprehension of evidence to amount to a miscarriage of justice entitling the accused to a new trial, the trialjudge must have made an error as to the substance of material parts of the evidence and that error must have played an essential

part inthe reasoning process resulting in the conviction (see R v Morrissey (1995), (ON CA), 97 CCC (3d) 193 (Ont CA);and R v JAW, 2020 MBCA 62). [9] In summarising the evidence in her reasons, the trial judge incorrectly referred to the internal injury as a five-centimetre rather than a .5-centimetre tear. However, considering this reference in the context of the evidence and her reasons as awhole, it is apparent that the trial judge simply misspoke regarding the measurement of the injury.

There was no misapprehension in herfinding that the complainant suffered a tear. [10] Further, we are not persuaded that the trial judge erred in relying on the presence of vaginal bleeding because it washearsay. This information was contained in the SAP chart which was tendered into evidence by consent of defence counsel (not counselon the appeal). The complainant was not challenged on this point, nor was there any defence objection when the Crown relied on thisevidence during submissions.

In the circumstances, this evidence was before the Court by agreement and available for the trial judge’sconsideration. [11] As for the treatment of the nurse’s evidence, it was during cross-examination by defence counsel that the nurse testifiedthat the tears were an indication of trauma that could have been caused by items other than a penis. Though the nurse was notspecifically qualified as an expert, she had extensive training and experience in sexual assault examinations.

The absence of the formalqualification of a witness does not necessarily make admission of that witness’s opinion an error of law (see R v Marquard, (SCC), [1993] 4 SCR 223). [12] It was open to the trial judge to rely on the evidence of the vaginal tear and bleeding as being supportive of thecomplainant’s version of events (see R v Mugabo, 2017 ONCA 323 at para 24).

Similarly, in assessing the discrepancy between the SAPchart, which indicated that there had been no digital penetration, and the complainant’s testimony that this occurred, it was reasonablefor the trial judge to consider the nurse’s testimony that “the neurobiology of trauma” can result in inaccuracies in reporting by thevictim. [13] We are also not convinced that the trial judge improperly shifted the burden of proof or misapplied W(D). Sherecognised that the case turned on credibility and properly instructed herself on the principles enunciated in W(D).

She explained whyshe rejected the accused’s evidence, which included her disbelief of his explanation for why he immediately changed into basketballshorts after arriving at the apartment. We do not read her comment concerning the absence of any other explanation as reversing theburden of proof or putting an obligation on the accused to provide an explanation. Rather, we view it as a comment on the state of theevidence—that there was no evidence of any other explanation for the complainant’s injuries.

Nor do we agree that the trial judge’scomments indicate that she would not have been satisfied beyond a reasonable doubt of the complainant’s lack of consent had that issuebeen the only matter to be determined. [14] The trial judge’s reasons demonstrate that she respected the substance of the W(

D) analysis, did not shift the burden ofproof and correctly applied the principle of reasonable doubt in the context of her credibility assessment. Her credibility findings arereasonably supported by the evidence and are entitled to deference. [15] The accused did not demonstrate any basis to warrant appellate intervention and his appeal was therefore dismissed. JA JA JA