R. v. D.R.L., 2015 MBCA 73

• Judge: Hamilton, Beard and Monnin, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: July 30, 2015
• Jurisdiction: Manitoba
• Citations: 2015 MBCA 73;(2015), 319 Man.R.(2d) 262 (CA)

R. v. D.R.L. (2015), 319 Man.R.(2d) 262 (CA);

      638 W.A.C. 262

MLB headnote and full text

Temp. Cite: [2015] Man.R.(2d) TBEd. AU.001

Her Majesty The Queen (respondent) v. D.R.L. (accused/appellant)

(AR 14-30-08242; 2015 MBCA 73)

Indexed As: R. v. D.R.L.

Manitoba Court of Appeal

Hamilton, Beard and Monnin, JJ.A.

July 30, 2015.

Summary:

The accused was charged with three counts of sexual assault, three counts of sexual interference, and one count of invitation to sexual touching. The charges arose from three separate incidents alleged to have occurred when the accused and the complainant, then 15 years old, were alone together in her parents' house. The accused was a family friend who was doing work at the house. His position was that the complainant's testimony was not credible and that the complainant fabricated the allegations.

The Manitoba Court of Queen's Bench, in a decision reported at (2013), 297 Man.R.(2d) 204, convicted the accused of the three counts of sexual interference and the charge of invitation to sexual touching. A conditional judicial stay was entered on the counts of sexual assault. The Crown sought a penitentiary sentence of four years. The accused sought a sentence of two years.

The Manitoba Court of Queen's Bench, in a decision reported at (2014), 309 Man.R.(2d) 93, sentenced the accused to three and one-half years' incarceration. The accused appealed his convictions and applied for leave to appeal his sentence.

The Manitoba Court of Appeal dismissed the conviction appeal and the application for leave to appeal sentence.

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 686

Sexual offences - Evidence - General - [See Criminal Law - Topic 4394 ].

Criminal Law - Topic 4394

Procedure - Charge or directions - Jury or judge alone - Directions re inferences from failure to call evidence - The accused appealed his convictions for three counts of sexual interference and one count of invitation to sexual touching - The accused asserted that the trial judge erred because he should have drawn a negative inference from the fact that the Crown did not call any forensic evidence regarding items seized by the police from the complainant's home - The Manitoba Court of Appeal was not persuaded - "[A]s long as the Crown has provided proper disclosure to the defence, it is under no obligation to call a witness or tender physical evidence it considers unnecessary to the prosecution's case. Furthermore, the Crown has wide discretion to call witnesses or evidence. The effect of a failure to call evidence may impact adversely on the Crown's case and its ability to prove its case beyond a reasonable doubt, but does not call for an adverse inference. ...  Defence counsel received timely disclosure of the police request and RCMP lab report. The accused cross-examined the police witnesses about the absence of evidence and made submissions to the trial judge about it. Furthermore, the Crown did not control access to the police or RCMP witnesses and it was open to the defence to call that evidence." - See paragraphs 12 to 21.

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - [See Criminal Law - Topic 4394 ].

Criminal Law - Topic 5311

Evidence and witnesses - Inferences - General - [See Criminal Law - Topic 4394 ].

Criminal Law - Topic 5320

Evidence and witnesses - Inferences - From failure to call witness - [See Criminal Law - Topic 4394 ].

Criminal Law - Topic 5409

Evidence and witnesses - Witnesses - Duty of Crown to call witnesses or adduce certain evidence from a witness - [See Criminal Law - Topic 4394 ].

Criminal Law - Topic 5848.9

Sentencing - Considerations on imposing sentence - Sexual offences against children - [See Criminal Law - Topic 5950 ].

Criminal Law - Topic 5950

Sentence - Sexual interference with young person - The accused was convicted of three counts of sexual interference and one count of invitation to sexual touching - He applied for leave to appeal his sentence of three and one-half years' incarceration - The Manitoba Court of Appeal dismissed the accused's application - "[T]he sentence is well within the range for these offences and this offender, and it is neither harsh nor excessive. Furthermore, the trial judge addressed the relevant sentencing principles, including the legislated direction that deterrence and denunciation are paramount sentencing principles in offences involving child victims. His determinations of the aggravating and mitigating circumstances for sentencing and the weight to be placed on them were within his discretion and are entitled to deference." - See paragraph 23.

Evidence - Topic 502

Presentation of evidence - Duty to offer evidence - [See Criminal Law - Topic 4394 ].

Evidence - Topic 2401

Special modes of proof - Presumptions - Specific presumptions - Inference from failure to call or adduce available evidence - [See Criminal Law - Topic 4394 ].

Cases Noticed:

R. v. Jolivet (D.), [2000] 1 S.C.R. 751; 254 N.R. 1; 2000 SCC 29, dist. [para. 11].

R. v. Cook (D.W.), [1997] 1 S.C.R. 1113; 210 N.R. 197; 188 N.B.R.(2d) 161; 480 A.P.R. 161, refd to. [para. 17].

R. v. Rooke (1988), 22 B.C.L.R.(2d) 145 (C.A.), refd to. [para. 18].

R. v. N.L.P. (2013), 313 O.A.C. 334; 2013 ONCA 773, refd to. [para. 18].

Authors and Works Noticed:

Hill, S. Casey, Tanovich, David M., and Strezos, Louis P., McWilliams' Canadian Criminal Evidence (5th Ed. 2015), Looseleaf Release 1, vol. 3, ch. 33 [para. 14].

Wigmore, John Henry, Evidence in Trials at Common Law, rev. by Chadbourn, James H., (1979), vol. 2, p. 192 [para. 18].

Counsel:

E.J. Roitenberg, for the appellant;

R.D. Lagimodière, for the respondent.

This appeal was heard before Hamilton, Beard and Monnin, JJ.A., of the Manitoba Court of Appeal. In reasons written by Hamilton, J.A., the Court delivered the following judgment, dated July 30, 2015.