R v TPR, 2022 MBCA 14

Citation: R v TPR, 2022 MBCA 14 Date: 20220131 Docket: AR21-30-09610 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Diana M. Cameron Mr. Justice Christopher J. Mainella Madam Justice Jennifer A. Pfuetzner BETWEEN: her majesty the queen ) A. R. Hodge ) for the Appellant Respondent ) ) J. M. Mann and- and - ) M. E. Carlson ) for the RespondentT. P. R. ) ) Appeal heard and (Accused) Appellant ) Decision pronounced: ) January 31, 2022 NOTICE OF RESTRICTION ON PUBLICATION: No one may publish, broadcast or transmit any information that coulddisclose the identity of the victim(

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 MB, Court of Appeal Rules, MR555/88R, this appeal was heard remotely by videoconference. On appeal from 2020 MBQB 41 mainella JA (for the Court): [1] After a trial by judge alone, the accused was convicted of sexual interference in relation to his then 12-year-old sister(his conviction for sexual assault was conditionally stayed (see Kienapple v The Queen, (SCC), [1975] 1 SCR 729)). He appeals his conviction arguing that the judge erred by (

i) refusing to order production of the victim’s therapy records; (ii) admittinginto evidence a prior consistent statement of the victim; and (iii) scrutinizing the evidence of the accused and that of the victim unevenly. [2] The allegations of sexual abuse were historical and said to have occurred in the summer of 2006 when the accusedwas age 25. On several occasions, the victim said the accused sexually touched her, including her breasts and vagina, in their parents’basement, typically while the two were watching movies.

The victim disclosed the sexual abuse to a friend when she was age 17 andlater, in 2017, reported the matter to police. The accused testified at trial and said that, while the two had engaged in “play fighting”,there was no inappropriate sexual touching. [3] We see no error in the judge concluding that the accused had not established an adequate evidentiary basis forproduction of the victim’s therapy records with her psychologist (see

section 278.5(1)(

b) of the Criminal Code (the Code); and R v Mills, (SCC), [1999] 3 SCR 668 at para 45). The statutory relevance threshold set by Parliament serves the importantpurpose of countering “speculative myths, stereotypes and generalized assumptions” as to sexual assault victims and private records insexual assault trials (R v McNeil, 2009 SCC 3 at para 31). Accordingly, the provisions are “strict” for a successful productionapplication (R v Hanslip, 2015 MBCA 114 at para 33). [4] Here, there was no evidence adduced by the accused that the records were “likely relevant to an issue at trial” (section278.5(1)(

b) of the Code); to the contrary, all that was before the judge was the victim’s testimony at the preliminary inquiry where shesaid she did not discuss the sexual abuse with a therapist or counsellor. The bare assertions that the victim’s credibility was at issue or

there might be something relevant to her credibility in the therapeutic records were not sufficient reasons “on their own” to violate her privacy (

section 278.3(4) of the Code ; see also R v GPJ , 2001 MBCA 18 at para 9 ; and Hanslip at para 33 ). [ 5 ] The prior consistent statement of the victim to her friend was properly admissible as narrative to provide context to the chronology of events (see R v Walker , 2015 MBCA 69 at paras 23 , 28-32).

What is important is that it is clear from the judge’s reasons for conviction that he did not misuse this prior consistent statement as “affirmative proof of credibility” (at para 34). [ 6 ] Finally, we are not persuaded that the judge evaluated the evidence of the accused and that of the victim by different standards.

The issue in cases such as these is not whether credibility could have been assessed differently, as the accused argues here, but, rather, the more fundamental question of “whether there is reversible error in the trial judge’s credibility findings” ( R v GF , 2021 SCC 20 at para 100 ; see also R v CAM , 2017 MBCA 70 at para 37 ). [ 7 ] In our view, the judge provided cogent and detailed reasons reviewing the evidence and setting out his findings (and the rationale for them).

There is nothing clear from his reasons or the record to support the accused’s position that the judge made a reversible error in his credibility analysis. In particular, we note that, in his reasons, the judge considered and rejected the accused’s submission that frailties with the victim’s evidence as to her repressing her memory of the sexual abuse for some time before disclosing events to her friend undermined the reliability of her narrative of events.

In our view, the judge’s assessment of the evidence can be reasonably supported on the record and, accordingly, this argument fails ( ibid ; and R v Jovel , 2019 MBCA 116 at para 38 ). [ 8 ] In the result, the appeal is dismissed. JA JA JA