R. v. Desjarlais (D.G.), 2016 MBCA 69

• Judge: Chartier, C.J.M., Beard and Monnin, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: January 22, 2016
• Jurisdiction: Manitoba
• Citations: 2016 MBCA 69;(2016), 330 Man.R.(2d) 298 (CA)

R. v. Desjarlais (D.G.) (2016), 330 Man.R.(2d) 298 (CA);

      675 W.A.C. 298

MLB headnote and full text

Temp. Cite: [2016] Man.R.(2d) TBEd. OC.001

Her Majesty The Queen (respondent) v. Denis Gary Desjarlais (accused/appellant)

(AR 14-30-08296; 2016 MBCA 69)

Indexed As: R. v. Desjarlais (D.G.)

Manitoba Court of Appeal

Chartier, C.J.M., Beard and Monnin, JJ.A.

June 23, 2016.

Summary:

The accused was charged with several counts of sexual assault and sexual exploitation which allegedly took place between July 1, 2007 and February 28, 2008. The Crown sought to tender in evidence a videotaped statement the complainant made to police concerning the alleged assaults on April 8, 2008. Although the complainant was 15 years old at the time of the alleged assaults, the Crown did not initially seek to tender the videotape as part of the complainant's evidence at trial, nor was the video tendered at the preliminary inquiry. Crown counsel said that the importance of the video was not clear to her until after the complainant and her best friend had testified at trial. Although the Crown had not yet closed its case, the issue was whether the admission of the video at this stage, namely after the complainant and her best friend had both testified and been cross-examined, would interfere with the proper administration of justice.

The Manitoba Court of Queen's Bench, in a decision reported at 295 Man.R.(2d) 196, admitted the video into evidence.

The Manitoba Court of Queen's Bench, in a decision reported at 301 Man.R.(2d) 280, convicted the accused of both sexual assault and sexual exploitation.

The Manitoba Court of Queen's Bench, in a decision reported at 311 Man.R.(2d) 194, sentenced the accused to two years less a day to be followed by three years' probation, a term of which included that he not engage in the practice of aboriginal healing. The court imposed ancillary orders. The accused appealed his conviction.

The Manitoba Court of Appeal dismissed the appeal.

Criminal Law - Topic 5461

Evidence and witnesses - Evidence of children - General - The accused was convicted of both sexual assault and sexual exploitation - The complainant was between 18 to 20 years old when she testified - The trial judge accepted that the complainant suffered from a learning disability that made it difficult for her to express herself - She stated that, "because of [the complainant's] limitations, she must be viewed more as a child than as an adult" - The accused appealed, submitting, inter alia, that the trial judge erred by applying the standard of a reasonable child, as opposed to that of a reasonable person - The Manitoba Court of Appeal rejected the submission - The court stated that "The trial judge used a common-sense approach which recognizes that the assessment of credibility does not require a judge to treat a witness exclusively as a child or as an adult. This approach was encouraged in R. v. W.(R.), [1992] 2 S.C.R. 122, where the Supreme Court of Canada stated that, when assessing credibility, a court should 'tak[e] into account the strengths and weaknesses which characterize the evidence offered in the particular case'" - See paragraphs 35 and 36.

Criminal Law - Topic 5464

Evidence and witnesses - Evidence of children - Out of court testimony (incl. videotaped statements) - The accused was charged with several counts of sexual assault and sexual interference which allegedly took place between July 1, 2007 and February 28, 2008 - The Crown sought to tender in evidence a videotaped statement the complainant made to police concerning the alleged assaults on April 8, 2008 - Although the complainant was 15 years old at the time of the alleged assaults, the Crown did not initially seek to tender the videotape as part of the complainant's evidence at trial, nor was the video tendered at the preliminary inquiry - Crown counsel said that the importance of the video was not clear to her until after the complainant and her best friend had testified at trial - Although the Crown had not yet closed its case, the issue was whether the admission of the video at this stage, namely after the complainant and her best friend had both testified and been cross-examined, would interfere with the proper administration of justice - The trial judge stated that, had the Crown sought to introduce the video as part of the complainant's original evidence, it would have had no trouble admitting it - However, introducing it at this stage was tantamount to recalling a witness - The court admitted the videotaped statement - The defence had not yet been called upon to "meet the case" - It would not interfere with the proper administration of justice to allow the Crown to tender the complainant's video statement at this time - If he chose, defence counsel could "re-open" the cross-examination of the complainant and her friend - The Manitoba Court of Appeal held that the trial judge did not err with respect to either her decision to permit the Crown to recall the complainant or her decision to admit the video statement into evidence - See paragraphs 15 to 33.

Evidence - Topic 4615

Witnesses - Examination - General principles - Recalling of witnesses - [See Criminal Law - Topic 5464 ].

Evidence - Topic 5231

Witnesses - Children (incl. corroboration) - Evidence of children - General - [See Criminal Law - Topic 5461 ].

Counsel:

W.Y. Martin White, for the appellant;

C.R. Savage, for the respondent.

This appeal was heard on January 22, 2016, by Chartier, C.J.M., Beard and Monnin, JJ.A., of the Manitoba Court of Appeal. Chartier, C.J.M., delivered the following decision for the court on June 23, 2016.