Docket: CACR2176 J.C.B. Appellant - v. -, 2012 SKCA 108

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA 108 Date: 2012-11-07 Between: Docket: CACR2176 J.C.B. Appellant - and - Her Majesty the Queen Respondent Restriction on Publication: An order has been made in accordance with s. 486.4(1) of the Criminal Code directing that any information identifying the complainant shall not be published. Coram: Jackson, Richards and Herauf JJ.A. Counsel: Kevin B. Lieslar for the appellant

W. Dean Sinclair for the respondent Appeal: From: 2012 SKQB 129 Heard: November 7, 2012 Disposition: Appeal dismissed (orally) Written Reasons: November 16, 2012 By: The Honourable Mr. Justice Herauf In Concurrence: The Honourable Madam Justice Jackson The Honourable Mr. Justice Richards Herauf J.A. [1] The appellant, J.C.B., was convicted of sexual assault under s. 271 of the Criminal Code and received a four year incarceralsentence. The appellant appealed both the conviction and sentence but abandoned the sentence appeal. The conviction appeal wasdismissed from the bench with written reasons to follow.

These are those reasons. [2] The complainant alleged the appellant had sexual relations with her on three occasions in 2008 when she was 13 and 14 years ofage. The first incident occurred at a birthday celebration at her grandparents’ acreage. The complainant and the appellant, who was 22years of age at the time, had both consumed alcohol. Near the end of the evening the appellant invited the complainant for a walk. Theappellant took the complainant to a van where he had her touch his penis and then removed her clothing and had intercourse with her.

Later that same evening, the appellant followed the complainant to the bathroom, locked the door, removed her clothing, placed her onthe floor and had intercourse with her. On the third occasion, a few months later, they had intercourse in the basement of thecomplainant’s grandparents’ home. A few months after the last incident, the complainant disclosed the incidents to a social worker, whonotified the police. The appellant denied that the incidents ever took place. See R. v. J.C.B., 2012 SKQB 129, 394 Sask.

R. 312 for afull version of the facts. [3] The trial judge properly instructed himself on the issue of reasonable doubt (R. v. Lifchus, (SCC), [1997] 3S.C.R. 320) and reasonable doubt as it applies to credibility since the appellant testified (R. v.

W.(D.), (SCC), [1991] 1S.C.R. 742). [4] The trial judge identified the essential elements of the offence while acknowledging consent could not have been an issue sincethe complainant was under the age of 16 years. [5] In his analysis, the trial judge set out his reasons: why he did not find the appellant credible in his denial that the sexual assaultsoccurred; why he believed the complainant that the sexual assaults did occur; why the three defence witnesses did not shed any light onhis determination of the essential elements of the offence; why the suggestion that the complainant and other Crown witnesses colludedin bringing forth the allegation against the appellant was not substantiated by the evidence; and, why he did not accept the defencecontention that the bathroom where the second sexual assault took place was too small for sexual intercourse to occur with thecomplainant perhaps lying flat on the floor.

Based upon all of the evidence, the trial judge was satisfied that the essential elements ofsexual assault had been proven beyond a reasonable doubt and found the accused guilty. [6] From this finding, the appellant appealed on essentially three grounds, some of which tend to overlap.

The grounds are: (1) the trial judge misapprehended material evidence, drew inferences that were incorrect and made errors in his finding of fact, allof which render the verdict unreasonable; (2) the trial judge applied a stricter standard of scrutiny to the evidence of the defence than that of the Crown; and (3) the reasons of the trial judge are insufficient.

(1) Misapprehension of Evidence and Unreasonable Verdict [7] Reference can be made to R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, para. 4, and R. v. Yebes, (SCC),[1987] 2 S.C.R. 168, para. 25, for the standard of review to be exercised by appellate courts when considering material misapprehensionand unreasonable verdict. [8] It was acknowledged that the trial judge erred when he stated that certain witnesses had testified that they observed the appellantgiving alcohol to the complainant. The appellant admitted in cross-examination that he and his sisters gave alcohol to the complainant.

He denied that he had done so in examination-in-chief. The trial judge fairly used the initial denial as one of the pieces of evidence thatreflected adversely on the credibility of the appellant. This was the only misapprehension of evidence on the part of the trial judge but itcertainly was not a material misapprehension. The other findings of the trial judge challenged by the appellant on this footing were, inour view, not a misapprehension of the evidence. Properly construing evidence in a way unfavourable to an accused does not constitute amisapprehension of the evidence.

[ 9 ] With respect to the unreasonable verdict, the trial judge gave reasons for his findings of fact, including an analysis of the conflicting witness positions and his findings of credibility and reasons for such findings. [ 10 ] There was probative evidence to support all of the material points and as such we would show deference to these findings. In addition, the trial judge acknowledged certain inconsistencies but indicated that they were minor and were not in relation to the particulars of the offence.

A trial judge is not required to set out every consideration leading to a finding of credibility and that reasonable inferences need not be spelled out. See: R. v. M.(R.E.) , 2008 SCC 51 , [2008] 3 S.C.R. 3 at para. 56 .

(2) Stricter Standard of Scrutiny to Defence Evidence [ 11 ] The trial judge did not reject the evidence of the defence witnesses out of hand as suggested by the appellant. He set out, as he was required to do, why the testimony of the defence witnesses did not raise a reasonable doubt. The trial judge carefully set out his analysis concerning his findings as to why the evidence of the defence witnesses did not shed any light upon the critical issues since they were not present at the relevant time frames. As well, his conclusions concerning the issue of collusion and the ability to have sexual relations or intercourse in a small bathroom were supported by the evidence.

(3) Insufficient Reasons [ 12 ] Once again, the reasons of the trial judge set out: the essential elements of the offence; clearly state his credibility findings with respect to the complainant and the appellant; and, explained why he accepted the complainant’s evidence and rejected the appellant’s. The trial judge also explained why he was convinced the appellant was guilty beyond a reasonable doubt. Reference can be made to paras. 52 - 57 of R. v.

M.(R.E.) , supra , for the role of appellate courts in assessing the sufficiency of the reasons. [ 13 ] For these reasons, we did not give effect to any of the grounds of appeal. As a result, the appeal against conviction was dismissed and the sentence appeal was dismissed as abandoned.