R. v. B.G.G., 2015 MBCA 76

• Judge: MacInnes, Beard and Burnett, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: January 19, 2015
• Jurisdiction: Manitoba
• Citations: 2015 MBCA 76;(2015), 319 Man.R.(2d) 306 (CA)

R. v. B.G.G. (2015), 319 Man.R.(2d) 306 (CA);

      638 W.A.C. 306

MLB headnote and full text

Temp. Cite: [2015] Man.R.(2d) TBEd. SE.004

Her Majesty The Queen (respondent) v. B.G.G. (accused/appellant)

(AR 14-30-08147; 2015 MBCA 76)

Indexed As: R. v. B.G.G.

Manitoba Court of Appeal

MacInnes, Beard and Burnett, JJ.A.

August 20, 2015.

Summary:

The accused was convicted of sexual assault, sexual interference, and invitation to sexual touching. He was sentenced to 4.5 years' imprisonment for sexual assault, 3.5 years concurrrent for sexual interference, and three years concurrent for invitation to sexual touching. He appealed the convictions and sought leave to appeal the sentence.

The Manitoba Court of Appeal allowed the conviction appeal and ordered a new trial. It was therefore unnecessary to deal with the sentence appeal.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 4300

Procedure - Trial judge - Duties and functions of - Respecting credibility of witnesses (incl. accused) - The 35 year old accused was convicted after trial by judge alone of sexual assault, sexual interference and invitation to sexual touching - The complainant was a 15 year old girl and the accused's second cousin - The Manitoba Court of Appeal allowed the accused's conviction appeal - There were several instances where the trial judge applied a more strict and critical view and level of scrutiny to the accused's evidence than the complainant's evidence - This led to a negative assessment of the accused's evidence as compared with the evidence of and on behalf of the complainant - In addition, there were examples which demonstrated that the trial judge misapprehended the evidence which infected his impression of the accused and unfairly impacted the credibility findings that he made - Where the critical issue in this case was credibility as between the accused and the complainant, it would be unsafe to allow the convictions to stand - A new trial was ordered.

Criminal Law - Topic 4377

Procedure - Charge or directions - Jury or judge alone - Directions regarding credibility of witnesses - [See Criminal Law - Topic 4300 ].

Criminal Law - Topic 4379

Procedure - Charge or directions - Jury or judge alone - Directions re evidence of character or credibility of accused - [See Criminal Law - Topic 4300 ].

Criminal Law - Topic 4866

Appeals - Indictable offences - Grounds of appeal - Misapprehension of evidence - [See Criminal Law - Topic 4300 ].

Criminal Law - Topic 4957

Appeals - Indictable offences - New trials - Grounds - Misapprehension of evidence - [See Criminal Law - Topic 4300 ].

Criminal Law - Topic 5007

Appeals - Indictable offences - Review of verdicts - Where verdict based on findings of credibility - [See Criminal Law - Topic 4300 ].

Cases Noticed:

Browne v. Dunn (1893), 6 R. 67 (H.L.), refd to. [para. 8].

R. v. J.S.W. (2013), 311 O.A.C. 80; 2013 ONCA 593, refd to. [para. 14].

R. v. J.H., [2005] O.A.C. Uned. 3; 192 C.C.C.(3d) 480 (C.A.), refd to. [para. 15].

R. v. Lohrer (A.W.), [2004] 3 S.C.R. 732; 329 N.R. 1; 208 B.C.A.C. 1; 344 W.A.C. 1; 2004 SCC 80, refd to. [para. 19].

R. v. Morrissey (R.J.) (1995), 80 O.A.C. 161 (C.A.), agreed with [para. 19].

Counsel:

S.A. Inness, for the appellants;

N.M. Cutler, for the respondent.

This appeal was heard on January 19, 2015, before MacInnes, Beard and Burnett, JJ.A., of the Manitoba Court of Appeal. MacInnes, J.A., delivered the following judgment for the court on August 20, 2015.