R v TAB, 2023 MBCA 81

Citation: R v TAB, 2023 MBCA 81 Date: 20230912 Docket: AR23-30-09889 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Madam Justice Janice L. leMaistre Madam Justice Lori T. Spivak BETWEEN : his majesty the king ) J. F. Rogala ) for the Appellant Respondent ) ) M. E. Carlson - and - ) for the Respondent ) t. a. b. ) Appeal heard and ) Decision pronounced: (Accused) Appellant ) September 12, 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 ). spivak JA (for the Court) : [ 1 ] The accused appeals his conviction for two counts of sexual interference involving the 15-year-old victim. He argues that the trial judge erred in her assessment of the victim’s credibility and thereby failed to apply the standard of proof beyond a reasonable doubt. At the hearing, we dismissed the appeal with reasons to follow. These are those reasons. [ 2 ] The victim lived in a foster home with A.C. and her common-law partner, the accused.

The victim testified that the first incident occurred in June 2020 when the accused was at home, intoxicated, and put his hand up her thigh and tried to digitally penetrate her five times. On the second occasion, which the victim said occurred several weeks later, the accused forced his hand underneath her underwear and inserted his fingers in her vagina. Thereafter, in August 2020, the victim decided to run away. She asked A.C. if she could sleep at a friend’s place but, instead, went to the home of her former boyfriend whom she was not allowed to see, as he was significantly older.

Aware that there were attempts to locate her, the victim messaged A.C. indicating she did not want to return home as she felt unsafe with the accused. [ 3 ] At trial, the victim testified for the Crown and A.C. was called by the defence. The accused argued that the victim had a motive to fabricate the allegations because she did not want to get herself or her ex-boyfriend in trouble for running away to his home, and this undermined her credibility.

In convicting the accused, the trial judge considered A.C.’s evidence to be of limited assistance and found the victim to be credible and straightforward. [ 4 ] We are not persuaded that appellate intervention is warranted. [ 5 ] A trial judge’s credibility assessments are entitled to significant deference absent palpable and overriding error (see R v Nery , 2021 MBCA 48 at para 6 ; and R v Dinardo , 2008 SCC 24 ). It is not for an appellate court to retry the case. In effect, counsel for the accused is arguing that the trial judge reached an unreasonable verdict.

The standard of review for an unreasonable verdict requires an appellant to establish that the verdict is one that a properly instructed trier of fact, acting judicially, could not reasonably have rendered (see R v Sinclair , 2011 SCC 40 at paras 4 , 16; and R v Biniaris , 2000 SCC 15 at para 36 ).

We see no reviewable error in the trial judge’s application of the principle of reasonable doubt in the context of her credibility assessments, which were reasonably supported by the evidence. [ 6 ] The trial judge considered the accused’s position that the victim had a motive to fabricate the allegations and noted the victim’s denial when this was put to her in cross-examination. She also considered the inconsistencies in the victim’s testimony as

pointed out by defence counsel. She understood the accused’s position that all of this was sufficient to raise a reasonable doubt. As she was entitled to do, she found the victim to be “very believable”, “very specific in what happened” and “unshakable”.

While it would have been preferable for the trial judge to have specifically stated that the offences were proven beyond a reasonable doubt, it is apparent from a reading of her reasons as a whole that she was satisfied that the evidence was sufficient to establish the guilt of the accused to the requisite standard. [ 7 ] Ultimately, the accused seeks to have this Court re-examine the evidence and reach a different conclusion, which is not our role. [ 8 ] For these reasons, we dismissed the appeal. JA JA JA