R v Markwick, 2022 MBCA 20

Citation: R v Markwick, 2022 MBCA 20 Date: 20220209 Docket: AR21-30-09634 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Diana M. Cameron Mr. Justice William J. Burnett Madam Justice Lori T. Spivak BETWEEN: HER MAJESTY THE QUEEN ) B. Walker ) for the Appellant Respondent ) ) R. N. Malaviya and- and - ) J. E.

Briard ) for the RespondentBRIGHTON ALEXANDER MARKWICK ) ) Appeal heard and (Accused) Appellant ) Decision pronounced: ) February 9, 2022 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. SPIVAK JA (for the Court): [1] The accused appeals his conviction for assault causing bodily harm and forcible confinement.

He argues that the trialjudge unevenly scrutinized the evidence. [2] The accused was alleged to have confined and assaulted the victim, his girlfriend, in his apartment in a building thathe managed. [3] Credibility was the key issue at trial. The victim testified that the accused prevented her from leaving the apartmentand beat her, which caused her to vomit repeatedly and left her with injuries. During the incident, she texted a friend who contacted thepolice. As a result, the police conducted a well-being check and spoke with the accused, as the building manager, who denied knowingthe victim.

When the accused left the apartment to speak with police, the victim escaped to a nearby gas station. At trial, the accuseddenied assaulting or confining the victim. He testified that he misheard the police when he spoke with them. [4] We see no basis for appellate intervention. [5] The burden of establishing a claim of uneven scrutiny is a heavy one and a trial judge’s credibility findings are owedgreat deference (see R v Jovel, 2019 MBCA 116 at paras 37-38; and R v Abbasi, 2020 MBCa 119 at para 20). An appellate court mustnot overstep its role and retry the case.

An evaluation of testimony may only be interfered with where it cannot be supported on anyreasonable view of the evidence (see R v CAM, 2017 MBCA 70 at paras 34-37; and Jovel at para 38). [6] We are not persuaded that it is clear from the trial judge’s reasons, or the record, that the trial judge subjected theaccused’s testimony to a higher degree of scrutiny than to that of the victim (see Jovel at para 38).

Moreover, there is no reversible errorin the trial judge’s credibility findings (see R v GF, 2021 SCC 20 at para 100). [7] The trial judge fairly summarized the evidence of the victim and the accused and assessed the frailties with each. Heproperly instructed himself on the principles enunciated in R v W(D), (SCC), [1991] 1 SCR 742, and his credibilityassessments were rooted in the evidence. As he was entitled to do, he rejected the accused’s testimony as incredible, explaining that itwas inconsistent with other evidence and finding that the accused lied to the police about not knowing the victim to thwart their

investigation. He specifically addressed the inconsistencies in the victim’s testimony and her “combative” and “sarcastic” demeanor, as argued by the accused, but accepted her evidence as to what occurred. In doing so, he noted that the victim’s evidence was corroborated by the texts to her friend and the evidence of the police, who described her as traumatized, injured and in pain, with vomit in her hair, when they found her at the gas station. [ 8 ] The trial judge’s evaluation of the evidence and credibility assessments were open to him to make and are supported on a reasonable view of the evidence. [ 9 ] For these reasons, we dismiss the appeal. JA JA JA