R v Cutfeet, 2023 MBCA 83

Citation: R v Cutfeet, 2023 MBCA 83 Date: 20230922 Docket: AR23-30-09903 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Janice L. leMaistre Madam Justice Lori T. Spivak Madam Justice Anne Turner BETWEEN: ) HIS MAJESTY THE KING ) R. T. Amy ) for the Appellant Respondent ) ) ) R. D. Lagimodiere- and - ) for the Respondent ) ) JOHN CUTFEET ) Appeal heard and ) Decision pronounced: (Accused) Appellant ) September 22, 2023 ) 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). LEMAISTRE JA (for the Court): [1] The accused appeals his conviction for sexual assault. He also seeks leave to appeal and, if granted, appeals hissentence of 14 months’ incarceration followed by one year of supervised probation. [2] After the hearing, we dismissed the conviction appeal, granted leave to appeal sentence but dismissed the sentenceappeal with brief reasons to follow. These are those reasons. [3] The victim and the accused were colleagues staying at a hotel in Winnipeg to attend a conference.

The victimtestified that, after she had already gone to bed, the accused came to her hotel room to retrieve his contact lens solution. He stayed to talkand got into the other bed. She fell asleep. While the victim was asleep, the accused got into bed behind her, pulled her pants andunderwear down and put his hand on her breast. When the victim awoke, in addition to feeling the accused’s hand on her breast, shethought that she felt something coming out of her vagina.

She told the accused to stop, got out of bed and left the room. [4] The victim immediately disclosed the incident to another colleague and then to the accused’s “boss” (the employer). The employer testified that, later that day, when he confronted the accused about sexually assaulting the victim, the accused said, “Idon’t know what happened. I don’t remember anything.” [5] The accused denied sexually assaulting the victim.

He agreed that, when confronted by the employer, he said, “Idon’t remember.” However, he explained this meant that he did not remember sexually assaulting the victim, not that he did notremember what happened. [6] On the conviction appeal, the accused acknowledges that the trial judge set out and applied the principles from R vW(D), (SCC), [1991] 1 SCR 742 [W(D)]. However, he argues that the trial judge’s reasons for rejecting the accused’s

evidence and finding that it did not raise a reasonable doubt were inadequate. He says that, although the trial judge gave reasons fordisbelieving the accused, he seized on ambiguous language and conducted no analysis of testimony he found to be inconsistent with theemployer’s evidence, despite other issues with that evidence. [7] The application of the test in W(

D) is a question of law reviewed for correctness (see R v Menow, 2013 MBCA 72 atpara 20). [8] The purpose of the principles in W(D) “is to ensure that the Crown’s burden of proof beyond a reasonable doubt isproperly applied in cases where the verdict turns on credibility, which in turn gives confidence in a criminal conviction” (R v Rhodes,2011 MBCA 98 at para 3). As explained by Chartier JA (as he then was) in R v WRB, 2011 MBCA 17 (at para 2): . . .

In such cases, an appellate court will review the reasons to satisfy itself that the trial judge did not err by allowing the burden to shiftaway from the Crown simply because the accused was not believed (described by Binnie J. in R. v.

J.H.S., 2008 SCC 30, [2008] 2 S.C.R.152 at para. 9 as the “credibility contest error.”) As he explained in J.H.S., “[t]he main point is that lack of credibility on the part of theaccused does not equate to proof of his or her guilt beyond a reasonable doubt” (at para. 13). [9] Deficiencies in reasons will rarely merit appellate intervention (see R v Ramos, 2020 MBCA 111 at para 54[Ramos]). When reviewing a claim of inadequate reasons, an appellate court must take a functional approach (see Ramos at paras 48-55).

The trial judge’s reasons should be read “as a whole, in the context of the evidence, the arguments and the trial, with anappreciation of the purposes or functions for which they are delivered” (R v REM, 2008 SCC 51 at para 16 [REM]). [10] A trial judge’s credibility findings are entitled to deference (see R v Jovel, 2019 MBCA 116 at paras 26-30). [11] We are not persuaded that the trial judge erred in his application of the principles from W(

D) or that his reasons forconviction are inadequate or prevent appellate review. [12] In his reasons, the trial judge thoroughly reviewed the evidence, as well as the parties’ submissions.

He “seized thesubstance of the critical issues on the trial” (REM at para 55) by recognizing that reliability and credibility of the witnesses’ testimonywas at issue and that he needed to “consider the analysis of W.(D.).” Although the trial judge concluded on the evidence that the accusedput his hand down the victim’s pants, he was not satisfied beyond a reasonable doubt that the Crown had proven vaginal penetration. [13] The trial judge was entitled to reject the accused’s denial that he was in the victim’s bed and his testimony regarding hisresponse to the employer when confronted with the sexual assault allegation.

In our view, the trial judge’s conclusion that the accused’stestimony was inconsistent with that of the employer was available on the record. Additionally, we are not convinced that the trial judgeerred by failing to find that the accused’s statement to the employer was ambiguous. [14] As was the case in REM and Ramos, it is clear from the record that the verdict was based on a considered and reasonedacceptance of the victim’s and the employer’s evidence (see Ramos at para 58; and REM at para 66). [15] As for the sentence appeal, the trial judge’s sentencing decision is highly discretionary.

This Court may only interfereif the trial judge made an error in principle that materially impacted the sentence or if the sentence is demonstrably unfit. An error inprinciple includes an error of law, a failure to consider a relevant factor or an erroneous consideration of an aggravating or mitigatingfactor (see R v Friesen, 2020 SCC 9 at para 26; and R v Lacasse, 2015 SCC 64 at paras 41, 43-44, 49, 51). [16] The accused does not assert an error in principle or that the sentence is demonstrably unfit.

The sole ground of appeal isthat the trial judge erred by providing inadequate reasons as to why a conditional sentence was not an appropriate sentence. [17] A fair reading of the trial judge’s reasons demonstrates that he appropriately considered and weighed the relevantfactors and why he concluded that deterrence and denunciation could not be satisfied by a conditional sentence. [18] After considering the Gladue report and recommendations (see R v Gladue, (SCC), [1999] 1 SCR688) [Gladue], the pre-sentence report and the victim impact statement and reviewing the sentencing principles in sections 718-718.2 ofthe Criminal Code, as well as the mitigating and aggravating factors, the trial judge rejected the accused’s request for a conditionalsentence.

In doing so, he concluded that a conditional sentence “would not be consistent with the purpose and principles of sentencingon the facts of this case.” [19] The trial judge’s reasons explain his concern that the offence was serious and that it “has had a considerable impact on[the victim] and her life”; the victim was asleep and, despite the lack of vaginal penetration, it involved a “significant violation of the[victim’s] personal and bodily integrity.” The reasons also demonstrate that the trial judge took into account the accused’s Gladuefactors when declining to impose a conditional sentence. [20] Moreover, the sentence cannot be said to be demonstrably unfit. [21] In the result, the conviction appeal was dismissed and, while leave to appeal sentence was granted, the sentence appealwas dismissed.

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