R v JM, 2022 MBCA 25

Citation: R v JM, 2022 MBCA 25 Date: 20220307 Docket: AR21-30-09585 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Diana M. Cameron Madam Justice Janice L. leMaistre Madam Justice Lori T. Spivak BETWEEN: ) J. C. ProberHER MAJESTY THE QUEEN ) for the Appellant ) Respondent ) R. N. Malaviya ) for the Respondent- and - ) ) Appeal heard:J. M. ) December 7, 2021 ) (Accused) Appellant) Judgment delivered: ) March 7, 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. LEMAISTRE JA Introduction [1] The accused appeals his convictions for the offences of sexual assault and sexual interference. He also seeks leave toappeal and, if granted, appeals his five-year sentence of imprisonment for sexual assault. The sexual interference charge wasconditionally judicially stayed (see Kienapple v The Queen, (SCC), [1975] 1 SCR 729). [2] On the conviction appeal, the accused argues that the trial judge erred by admitting the victim’s video statementunder

section 715.1 of the Criminal Code (the Code), and that the verdicts were unreasonable. As for the sentence appeal, he argues thathis sentence was demonstrably unfit. [3] For the reasons that follow, I would dismiss the conviction appeal and deny leave to appeal sentence. Background [4] During an incident that occurred between December 3, 2012 and December 3, 2013, the accused sexually assaultedthe 11-year-old victim, his great niece, by putting his hands down her pants and attempting to touch her “private part.” Later that sameevening, after she fell asleep on the couch, the accused carried her upstairs.

While the accused was carrying her, the victim awoke andthe accused spoke to her. After taking her into her bedroom, he sexually assaulted her a second time, including by having intercoursewith her. [5] Shortly after she was sexually assaulted, the victim began abusing substances, including alcohol, methamphetamineand Xanax. She continued to abuse substances until she was 15 years old.

[ 6 ] In 2015, when the victim was 13 years old and still abusing substances, she disclosed the sexual assaults to her mother, as well as a child and family services worker. The child and family services agency notified the police, who contacted the victim’s mother about obtaining a statement from her regarding the sexual assaults. However, at that point, the victim was not prepared to provide a statement. [ 7 ] In April 2017, when she was 15 years old and had been sober for a while, the victim provided a video statement describing the sexual assaults (the video statement).

During the video statement, the victim identified her assailant as her “mom’s dad’s brother” and referred to him as her “Uncle [J].” She also provided a description of him. However, when she was shown a photograph of the accused taken in 2004 for his driver’s licence (the driver’s licence photo), she said, “that’s not him”. [ 8 ] At the pre-trial conference, the parties discussed the Crown’s intention to file into evidence the video statement under

section 715.1 of the Code . Counsel for the accused (not the same counsel as on the appeal) (trial counsel) indicated that the only issue regarding the admissibility of the video statement was whether it was made within a reasonable time after the offences. According to the pre-trial memorandum, the parties made the following agreement regarding the process for the voir dire : . . .

Counsel have agreed, subject to the approval of the trial judge that, rather than play the video [statement] on the voir dire , they will file an Agreed Statement of Facts based on the information contained in the [video statement] and the evidence taken at the preliminary hearing pertaining to the reasons for the delay.

If the trial judge agrees that, in the circumstances, the delay was reasonable then the [video statement] should be played and, if the [victim] adopts its contents and the judge is satisfied that all of the other criteria are met for admissibility then, the [video statement] will be filed into evidence.

If not, then the Crown will proceed with its case without the benefit of the [video statement]. . . . [ 9 ] At the trial, trial counsel referred to the discussions at the pre-trial conference regarding the process for the voir dire and confirmed that the only issue regarding the admissibility of the video statement was whether it was made within a reasonable time after the offences.

Anticipating that the victim would adopt the video statement as she did at the preliminary hearing, the parties filed an agreed statement of facts and invited the trial judge to determine this “narrow issue” without first watching the video statement. They pointed out that the video statement would be played during the victim’s testimony.

The agreed statement of facts set out the relevant timelines and the explanation for the delay. [ 10 ] After considering the Crown’s written brief and both parties’ oral arguments, the trial judge determined that the video statement was admissible, “assuming that the [victim] adopt[ed] it during the course of her [testimony].” In doing so, she properly instructed herself on the prerequisites for admissibility pursuant to

section 715.1 . [ 11 ] The trial judge reviewed the following factors relevant to the issue of whether the video statement was made within a reasonable time: • the reason for the delay and the impact on the victim’s ability to accurately recall the events; • the age of the victim; • the relationship of the victim to the accused; • the length of time and frequency of the offences; • the seriousness of the offences; • any developmental states the victim may have gone through; and • any evidence of something that might have happened during the time period which may have influenced the video statement or its reliability. [ 12 ] The trial judge found that “questions regarding the making of the [video] statement, witness veracity, overall statement reliability, pre-statement interviews, and contradictions during cross [would] go to the weight of the [video] statement” and were not relevant to its admissibility.

She also observed that “the accused [would] have a full opportunity to cross-examine the [victim]” on her in-court testimony and her evidence in the video statement. [ 13 ] After the victim testified on direct examination and adopted the video statement, it was filed as an exhibit in the trial. The victim was cross-examined on both her in-court testimony and her evidence in the video statement.

Trial counsel cross-examined her at length on her prior substance abuse issues, including the substances she was using, how often she consumed them and the impact they had on her memory. [ 14 ] The key issue at trial was identity. The accused did not dispute that the victim was sexually assaulted. His position

was that she was mistaken that he was the person who sexually assaulted her. He argued that the victim’s failure to identify him in the driver’s licence photo, discrepancies between the testimony of the victim and her mother regarding the accused’s appearance and the circumstances of the victim’s disclosure, and evidence that the accused was never left alone with the victim rendered her testimony unreliable. [ 15 ] The trial judge considered the victim’s evidence in the context of a 17-year-old witness testifying about events which occurred when she was a child.

Importantly, the trial judge found that the victim “remained firm that it was [the accused] who had assaulted her.” [ 16 ] The trial judge concluded that the victim’s evidence was “candid and reliable.” In doing so, she stated the following: . . . . . . [The victim] was clear to admit when she did not know a detail, for example, whether his penis was soft or hard, whether he ejaculated, and the name of the woman who was with [the accused] on the date in question. She repeatedly provided a detailed description of the assault and repeatedly clearly identified who did it without hesitation.

She repeatedly said it was her uncle, [J.M]. She was also forthright about negative details about herself, the heavy alcohol and drug use, the impact that substance abuse had on her memory during the time she was using, her expulsion from school after getting into a fight with a teacher, fights with her mother and taking off from home. She was consistent through her statement and her testimony about the specifics of what happened during the assault.

Although there were some inconsistencies as pointed out about peripheral details, she was not shaken on the fact that she knew [the accused] and that he committed the assault. . . . [T]he what, when, where and how of the incident remained consistent from the time of [the video statement] to her testimony at trial.

More importantly, to the issue of ID, the who remained consistent throughout as well. . . . [ 17 ] Ultimately, the trial judge was satisfied, on the totality of the evidence, that the Crown had proven the accused’s guilt beyond a reasonable doubt. [ 18 ] When sentencing the accused, the trial judge considered a pre-sentence report detailing the accused’s background, reference letters and a victim impact statement prepared by the victim. She also received written briefs filed by both parties and heard oral submissions.

In her reasons, she reviewed the facts of the offences, the background of the accused, the materials provided and the parties’ positions. She also addressed the relevant sentencing principles and guidance provided in R v Friesen , 2020 SCC 9 . Conviction Appeal Issues [ 19 ] The accused raises two issues on his conviction appeal: (1) whether the trial judge erred in admitting the video statement under

section 715.1 of the Code , and (2) whether the verdicts were unreasonable. [ 20 ] The accused argues that the trial judge erred by finding that the video statement was made within a reasonable time after the offences and admitting it into evidence. He says that the length of the delay between the date of the offences and the video statement, and the victim’s substance abuse issues during that period affected her ability to accurately recall the events and ought to have raised concerns regarding threshold admissibility.

In his view, the failure of the victim to identify the accused in the driver’s licence photo should have raised additional concerns regarding the reliability of the video statement. [ 21 ] He also says that it was an error in law for the trial judge to rule on the admissibility of the video statement without having first watched it. He says this demonstrates that she failed to properly assess its reliability prior to admitting it. [ 22 ] Regarding the reasonableness of the verdicts, the accused argues that the evidence was weak, inconsistent, unreliable and incapable of supporting the convictions.

Standard of Review Admissibility of the Video Statement [ 23 ] Before admitting a video statement under

section 715.1 of the Code , a trial judge must determine whether it complies with the legal requirements. When the admissibility of evidence requires the evaluation of certain criteria, the deferential standard of review applies. As explained by Chartier CJM in R v Desjarlais (DG) , 2016 MBCA 69 (at para 13 ): . . . Typically, questions surrounding the admissibility of evidence are questions of law reviewable on the correctness standard.

However, where the admission of evidence requires an evaluation of certain criteria, such as in the case of a

section 715.1 application,the trial judge’s assessment is a discretionary decision and, unless there was misdirection or the decision was so clearly wrong as toamount to an injustice, it is owed significant deference (see R v Regan, 2002 SCC 12 at para 117, [2002] 1 SCR 297). [24] Whether a video statement was made within a reasonable time after the alleged offence is a finding of fact that shouldnot be interfered with absent an “egregious error either by failing to recognize or misinterpreting an important and relevant piece ofevidence or by reaching an erroneous conclusion” (R v L (DO), (SCC), [1993] 4 SCR 419 at 467; see also pp 468-69).

Unreasonable Verdict [25] The test for an unreasonable verdict is whether the verdict was one that a properly instructed jury could reasonably haverendered.

An appellate court may also find a verdict to be unreasonable where a trial judge has drawn an inference or made a finding offact essential to the verdict that (1) is plainly contradicted by the evidence relied on by the trial judge in support of that inference orfinding, or (2) is shown to be incompatible with evidence that has not otherwise been contradicted or rejected by the trial judge (seeR v RP, 2012 SCC 22 at paras 9-10; R v Jovel, 2019 MBCA 116 at para 51; and R v Thorassie, 2021 MBCA 37 at para 33). [26] Determining whether a verdict is unreasonable requires an appellate court to re-examine and, to some extent, reweighand consider the effect of the evidence.

However, absent palpable and overriding error, an appellate court must show deference to a trialjudge’s evaluation of the evidence and findings of fact and credibility (see Jovel at para 52). Discussion

Section 715.1 of the Code [27]

Section 715.1 is intended “to preserve an early account of the child’s complaint in order to assist in the discovery of thetruth and to provide a procedure for the introduction of the child’s story into evidence at the trial” (L (DO) at p 444). It is also intended“to diminish the stress and trauma suffered by child [victims] as a byproduct of their role in the criminal justice system . . . and to removethe need for them to repeat their story many times” (at p 445). [28]

Section 715.1(1) provides as follows: Evidence of victim or witness under 18 715.1(1) In any proceeding against an accused in which a victim or other witness was under the age of eighteen years at the time theoffence is alleged to have been committed, a video recording made within a reasonable time after the alleged offence, in which the victimor witness describes the acts complained of, is admissible in evidence if the victim or witness, while testifying, adopts the contents of thevideo recording, unless the presiding judge or justice is of the opinion that admission of the video recording in evidence would interferewith the proper administration of justice. [29] The Crown must establish the statutory prerequisites for admissibility of a video recording on a balance ofprobabilities.

Ordinarily, a voir dire is conducted, during which the video recording of the victim’s statement is played in court in thepresence of the victim, who is then given the opportunity to adopt its contents. [30] At the trial, the accused did not dispute that the victim was under the age of 18 at the time of the offences or that shedescribed the acts complained of in the video statement. He raised no concerns about the victim’s ability to adopt the contents of thevideo statement or whether its admission would interfere with the proper administration of justice.

The only issue raised by the accusedregarding the admissibility of the video statement was whether it was made within a reasonable time after the offences. [31] Whether a video statement was made within a reasonable time after the alleged offence involves a case-specific analysisthat considers whether there is a satisfactory explanation for the delay and the impact of the delay on the victim’s ability to accuratelyrecall the events (see R v S (P) (2000), (ON CA), 144 CCC (3d) 120 at para 71 (Ont CA); R v WEB, 2012 MBCA 23at para 22; R v RAH, 2017 PECA 5 at para 42; and R v PS, 2019 ONCA 637 at para 22). [32] The factors relevant to this inquiry may include the age of the child; the relationship of the child to the accused; thelength of time, frequency and seriousness of the offences; any developmental stages which the child may have gone through; and anyevidence that something may have influenced the statement or negatively impacted its reliability (see RAH at para 42). [33] At the trial, the accused argued that the length of the delay and the victim’s age and substance abuse issues rendered thedelay unreasonable.

The trial judge concluded that these issues did not affect the victim’s ability to recall the events and that the ultimatereliability of her evidence would be considered after she had testified and been cross-examined. [34] On appeal, the accused impugns the trial judge’s conclusion regarding the effect of the delay and the victim’s substanceabuse issues on the reliability of the video statement, as well as her conclusion that it was made within a reasonable time after theoffences. [35] I am not persuaded that the trial judge failed to recognize or misinterpreted an important and relevant piece of evidenceor reached an erroneous conclusion in finding that the video statement was made within a reasonable time after the offences. [36] In my view, the trial judge conducted a contextual analysis and properly weighed the relevant factors.

Her decision thatthe video statement was made within a reasonable time is in keeping with the purpose of the legislation, as well as the jurisprudence.

Moreover, while a lengthy delay may require greater scrutiny, there are no strict timelines within which the delay will be unreasonable,and the length of the delay is only one factor to be considered (see WEB at para 22; RAH at paras 41-42; and PS at paras 19-22). [37] The accused raises two additional arguments not raised at trial. First, he asserts that the victim’s failure to identify theaccused in the driver’s licence photo ought to have raised concerns regarding threshold reliability of the video statement.

The Crownargues that this evidence was relevant only to the trial judge’s assessment of the ultimate reliability of the victim’s testimony, rather thanthreshold reliability. I agree with the Crown. The law is settled on this issue (see R v F (CC), (SCC), [1997] 3 SCR1183 at para 52). [38] Next, he argues that the trial judge erred by admitting the video statement without first watching it. I agree that,ordinarily, a video statement should be played during a voir dire prior to a ruling on admissibility.

However, in my view, no substantialharm occurred as a result of the trial judge’s failure to view the video statement prior to ruling on its admissibility (see F (CC) at para 54;and RAH at para 23). [39] The only issue on the voir dire was whether the video statement was made within a reasonable time. The trial judgealready had the information necessary to make this determination. Viewing the video statement would not have assisted her inaddressing this issue. The video statement was played during the victim’s testimony, after which she adopted its contents.

Ultimately,the trial judge watched the video statement and was able to satisfy herself that all of the other criteria for admissibility had been met, ashad already been conceded by the accused. Moreover, the procedure agreed to by the parties at the pre-trial conference was that the trialjudge would determine whether the delay was reasonable without first watching the video statement. [40] I am not persuaded that the trial judge made an egregious error in concluding the video statement was made within areasonable time after the offences.

Nor am I convinced that she erred in admitting the video statement into evidence. I would dismissthis ground of appeal. Unreasonable Verdict [41] The accused argues that the identification evidence is “extremely unreliable.” He points to the victim’s testimony thatshe did not open her eyes during the sexual assault, her failure to identify the accused in the driver’s licence photo, and inconsistenciesbetween the testimony of the victim and her mother regarding the accused’s appearance and her disclosure. He also asserts that thevictim admitted that her substance abuse affected her memory of the events.

He says that these factors render the verdicts unreasonable. I disagree. I am not persuaded that the trial judge made any palpable and overriding error in her assessment of credibility and fact-finding. [42] Identity was the main issue at trial. The accused’s arguments on appeal were raised with and carefully considered bythe trial judge. She assessed all of the evidence and gave detailed reasons for accepting the victim’s evidence. She explained why theaccused’s arguments were not persuasive.

Although the trial judge did not specifically address trial counsel’s argument that, because thevictim did not open her eyes, she could not identify who sexually assaulted her, she did consider the victim’s evidence that it was theaccused who carried her upstairs and spoke to her moments before sexually assaulting her. [43] The trial judge found the driver’s licence photo to be “of very poor quality” and, having observed the accused in thecourtroom, stated that she would find it difficult to conclude that the accused was the person in the photo. [44] She considered the relevant principles applicable when assessing the testimony of a witness giving evidence aboutevents that occurred in childhood and was “mindful of the reality that inconsistencies in a child’s evidence may be of less importance inassessing credibility than in the case of a reasonable adult” (R v Ramos, 2020 MBCA 111 at para 61; see also R v B (G), (SCC), [1990] 2 SCR 30 at 54-55; and R v W (R), (SCC), [1992] 2 SCR 122 at 132-34).

She rejected aspects of thetestimony of the victim’s mother, and concluded that the inconsistencies between the testimony of the victim and her mother did not raisedoubts about the credibility and reliability of the victim’s evidence. [45] The trial judge accepted the victim’s testimony that “there are things that she does not remember from the time whenshe was regularly using alcohol and drugs” and that “[i]t did not affect her ability to remember things from when she was younger andbefore she was using.” [46] The trial judge concluded that the victim “repeatedly clearly identified” who sexually assaulted her and that “she wasnot shaken on the fact that she knew [the accused] and that he committed the assault.” [47] In my view, the trial judge’s assessment of the evidence and findings of credibility are reasonably supported by theevidence, and the verdicts were ones that a properly instructed jury could reasonably have rendered.

I am not convinced that the trialjudge reached her decision by an illogical or irrational reasoning process. I would dismiss this ground of appeal. Sentence Appeal [48] On his sentence appeal, the accused contends that the trial judge erred in her assessment of relevant factors andimposed an unfit sentence. In particular, he says that she failed to give sufficient weight to his Gladue factors (see R v Gladue, (SCC), [1999] 1 SCR 688). [49] A judge’s decision on sentence is entitled to deference.

An appellate court should not intervene unless the judge hascommitted an error in principle that had a material impact on the sentence or imposed a sentence that is demonstrably unfit (see Friesenat para 26). The weighing of relevant factors amounts to an error in principle only where the judge’s exercise of discretion isunreasonable (ibid). [50] I am not convinced that the trial judge’s assessment of the relevant sentencing factors was unreasonable or that sheimposed an unfit sentence. The trial judge applied the appropriate sentencing principles and carefully weighed the relevant factors in

imposing a proportionate sentence. She acknowledged the importance of giving “significant weight” to the accused’s Gladue factors and considered the detailed information provided by Probation Services in a Gladue /pre-sentence report. [ 51 ] I see no error in principle and, in my view, the sentence is consistent with the Supreme Court of Canada’s guidance in Friesen regarding the need for greater offender accountability for sexual offences against children. I would deny leave to appeal sentence. Conclusion [ 52 ] The trial judge did not err in admitting the video statement into evidence under

section 715.1 of the Code . The verdicts were ones that a properly instructed jury could reasonably have rendered. The trial judge made no error when imposing the sentence, and the sentence was not demonstrably unfit. I see no basis for appellate intervention. [ 53 ] I would dismiss the conviction appeal and deny leave to appeal sentence. JA I agree: JA I agree: JA