R v EGC, 2023 MBCA 74

Citation: R v EGC, 2023 MBCA 74 Date: 20230901 Docket: AR22-30-09846 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Holly C. Beard Madam Justice Diana M. Cameron Mr. Justice Christopher J. Mainella BETWEEN : his majesty the king ) C. L. Antila ) for the Appellant Respondent ) ) D. Sahulka - and - ) for the Respondent ) e. g. c. ) Appeal heard and ) Decision pronounced: (Accused) Appellant ) September 1, 2023 NOTICE OF RESTRICTION ON PUBLICATION: No one may publish, broadcast or transmit any information that could disclose the identity of the victim(

s) or witness(es) (see

section 486.4 of the Criminal Code ). mainella JA (for the Court) : Introduction [ 1 ] In this appeal, the accused seeks to set aside his convictions for sexual assault, incest and sexual interference. [ 2 ] The allegation of sexual touching underlying the three convictions involved the accused having vaginal intercourse with his sleeping 15-year-old daughter, C.C., when she was at his residence recovering from abusing methamphetamine. [ 3 ] After hearing the appeal, we dismissed it with reasons to follow. These are those reasons.

Background [ 4 ] The trial was a two-witness case consisting of the testimony of C.C., then age 18, and the accused.

In his evidence, the accused said that C.C., who was living a transient lifestyle in unsavoury places, slept over at his residence while detoxing but he denied that any sexual touching occurred during her visit. [ 5 ] In convicting the accused of each of the three counts in the Information, the trial judge rejected the accused’s evidence on the core allegation of sexual touching, as well as his suggestion that C.C., who had a history of delusions and was a heavy drug user, may have “hallucinated the attack.” Despite frailties with C.C.’s evidence, the trial judge accepted it as he was satisfied beyond a reasonable doubt based on her candour as to matters bearing on her credibility, such as being a petty criminal to support her addiction, her detailed account of the sexual touching and the fact that he accepted her evidence that the accused apologized to her about what he had done one week after the sexual touching, saying, “My girl, I’m sorry, I wasn’t thinking.” [ 6 ] The Information alleged an offence date of May 6, 2019 for all three counts.

While the trial judge did not have reasonable doubt that the sexual touching occurred, he did not find C.C.’s evidence as to the timing of it to be sufficiently reliable as she gave several different explanations as to when in 2019 the sexual touching occurred in her video statement to police and her trial testimony. The trial judge addressed this vagary by looking to other evidence. [ 7 ] The accused testified that he only moved into the residence in question in July 2019 but admitted that C.C. stayed with him while detoxing in July or August of 2019.

Based on this evidence, the trial judge found that the sexual touching occurred some time in July or August of 2019. The accused argued that, while C.C.’s mistake as to timing undermined her credibility generally, he conceded that time was not an essential element in terms of the three offences charged (on the sexual interference count, C.C. turned age 15 in

March of 2019) and the discrepancy did not prejudice his defence in any way. Discussion [8] The first ground of appeal is the claim of uneven scrutiny by the trial judge in his assessment of the credibility of theaccused and C.C.

Leaving aside the debate as to whether this ground of appeal is an appropriate analytical tool to ascertain error incredibility findings (see R v Mehari, 2020 SCC 40 at para 1; and R v GF, 2021 SCC 20 at paras 100-101), this is an argument that is verydifficult to make successfully given that our role is not to retry the case but, rather, to review for material error (see R v Jovel, 2019MBCA 116 at paras 25, 38, 48). [9] There is nothing clear from the trial judge’s reasons or the record to suggest that different standards were applied (ibidat para 38).

He identified and assessed the inconsistencies in the evidence of both the accused and C.C. and came to a conclusion on thecritical disputed facts in a manner that was reasonably open to him on the evidence adduced at trial. We are not persuaded that the trialjudge engaged in uneven scrutiny of the evidence. [10] There is no merit to the second ground of appeal that the verdict is unreasonable because a properly instructed trier offact, acting judicially, could not have reasonably found that sexual touching occurred in light of C.C. being unreliable as to the exact dateit occurred (see section 686(1)(a)(

i) of the Criminal Code (the Code)). [11] Apart from whether C.C. was under age 16 in relation to the sexual interference count (which was not in dispute), thetiming of the sexual touching was neither an essential element nor crucial to the defence, such that any variation between the Informationand the evidence could be addressed by an amendment of the Information pursuant to section 601(4.1) of the Code to conform to theevidence (see R v Storheim (SKW), 2015 MBCA 14 at para 32). [12] Additionally, as was noted in R v P (MB), (SCC), [1994] 1 SCR 555, in a case involving a sexualoffence against a child, “absolute precision with respect to the timing of an alleged offence will often be unrealistic and unnecessary” (atp 567). [13] Here, the trial judge displayed appropriate sensitivity to assessing childhood perceptions of C.C. to peripheral matterssuch as time or location.

Given that the time parameters of the sexual touching were established by other evidence at the trial—from theaccused’s evidence as to when he lived at the residence in question and when C.C. visited, which the trial judge accepted—the verdictswere reasonable (see R v SD, 2011 SCC 14; and Storheim at paras 30-31).

Disposition [14] In the result, the appeal is dismissed. [15] While the trial judge amended the Information to conform with the evidence in his reasons pursuant to section 601(4.1)of the Code, there was a harmless oversight as to formally endorsing his order as part of the record as required by section 601(7). It isconceded that the accused has not been misled or prejudiced in his defence or this appeal by this omission.

Accordingly, we order thatthe dates in each of the three counts in the Information be amended from “on or about the 6th day of May in the year 2019” to “betweenthe 1st day of July in the year 2019 and the 31st day of August in the year 2019, both dates inclusive,” (see section 683(1)(g)). JA JA JA