R. v. Fatunmbi (O.O.), (2014) 306 Man.R.(2d) 158 (CA)

• Judge: Steel, MacInnes and Beard, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: October 23, 2013
• Jurisdiction: Manitoba
• Citations: (2014), 306 Man.R.(2d) 158 (CA);2014 MBCA 53

R. v. Fatunmbi (O.O.) (2014), 306 Man.R.(2d) 158 (CA);

      604 W.A.C. 158

MLB headnote and full text

Temp. Cite: [2014] Man.R.(2d) TBEd. JN.014

Her Majesty The Queen (respondent) v. Olayemi Olaywale Fatunmbi (accused/appellant)

(AR 12-30-07905; 2014 MBCA 53)

Indexed As: R. v. Fatunmbi (O.O.)

Manitoba Court of Appeal

Steel, MacInnes and Beard, JJ.A.

June 5, 2014.

Summary:

The accused was charged with two counts of sexual assault related to two co-workers, K.B. and M.S. He was convicted by a jury on the count related to K.B. and acquitted on the count related to M.S. He appealed his conviction and sentence, raising the following grounds of appeal: (i) the trial judge erred in not including a clear and sharp Vetrovec warning in the jury charge; (ii) the failure to provide a clear and sharp Vetrovec warning resulted in an unreasonable verdict; and (iii) the trial judge erred in classifying this offence as a major sexual assault, resulting in an unfit sentence.

The Manitoba Court of Appeal dismissed the 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 4354

Procedure - Charge or directions - Jury or judge alone - Directions regarding pleas or evidence of witnesses, co-accused and accomplices - The Manitoba Court of Appeal discussed the law regarding Vetrovec/cautionary witness instructions - See paragraphs 26 to 42.

Criminal Law - Topic 4354

Procedure - Charge or directions - Jury or judge alone - Directions regarding pleas or evidence of witnesses, co-accused and accomplices - The Manitoba Court of Appeal stated that "In summary, on an appeal to determine the need for and/or the adequacy of a jury charge regarding inconsistent or unreliable evidence, it is necessary to consider the following factors: (1) the nature and significance of the inconsistencies or other factors that underpin the allegation of unreliability or lack of credibility of the evidence/witness at issue; (2) the importance of the evidence to the outcome of the case and, in particular, to the accused's guilt; (3) whether defence counsel objected to the jury charge on this basis or asked for any type of warning during the trial; and (4) how the impugned evidence was treated in the jury charge, whether there should have been a warning, if there was none, and, if there was, whether it was sufficient." - See paragraph 43.

Criminal Law - Topic 4354

Procedure - Charge or directions - Jury or judge alone - Directions regarding pleas or evidence of witnesses, co-accused and accomplices - The accused was convicted of the sexual assault of KB - He appealed on the basis that the trial judge erred in failing to include a Vetrovec or similar cautionary warning in his jury charge, as a result of the inconsistencies between the versions of events that KB had related on different occasions, sometimes under oath - The Manitoba Court of Appeal dismissed the appeal - The inconsistencies went to details and not the core events - While, at some point, the sheer number of inconsistencies would make the story so unreliable that a warning would have become necessary, it was for the trial judge, exercising his discretion after having heard the evidence, to determine whether the inconsistencies had reached that level - His determination was entitled to deference - While it would have been preferable if the trial judge had given a cautionary warning, his failure to do so was not so clearly wrong as to amount to an injustice - See paragraphs 44 to 66.

Criminal Law - Topic 4950

Appeals - Indictable offences - New trials - Grounds - Misdirection by trial judge - General - [See second and third Criminal Law - Topic 4354 ].

Criminal Law - Topic 5831.1

Sentencing - Considerations on imposing sentence - Offences involving breach of trust - [See Criminal Law - Topic 5932 ].

Criminal Law - Topic 5834

Sentencing - Considerations on imposing sentence - Circumstances tending to increase sentence - [See Criminal Law - Topic 5932 ].

Criminal Law - Topic 5837

Sentencing - Considerations on imposing sentence - Mitigating circumstances - [See Criminal Law - Topic 5932 ].

Criminal Law - Topic 5848.10

Sentencing - Considerations on imposing sentence - Sexual offences - [See Criminal Law - Topic 5932 ].

Criminal Law - Topic 5932

Sentence - Sexual assault - The accused was convicted of the sexual assault of KB and sentenced to three years' imprisonment - The accused appealed, submitting that the trial judge erred by mischaracterizing the offence as a major sexual assault - The Manitoba Court of Appeal dismissed the appeal - Mitigating factors included the absence of a criminal record, an extensive social network and a positive pre-sentence report - Aggravating factors were: the accused was in a position of trust, in that he was responsible for hiring and supervising the staff at the group home where KB was hoping to obtain employment; the sexual assault occurred at the workplace; there was an element of premeditation or "setting up" of KB in having her attend for training late in the evening, which breached the usual protocol; KB suffered emotional, psychological and some physical harm; the accused forcibly removed KB's clothing and persisted in repeated attempts to penetrate her after she made it clear that she was not consenting; and, on the last occasion, KB was attempting to leave the room, and the accused prevented her from doing so - The court held that the fact that the offence took place in the workplace, where a person should be able to feel safe, and that it was perpetrated by a person in authority, which placed the victim at increased vulnerability, increased the seriousness of the offence such that it could be categorized as a major sexual assault - Despite the mitigating factors, and whether or not this was a major sexual assault, three years' incarceration, while perhaps near or at the top end of the range, was not outside of the range such as to make it unreasonable or unfit and, thereby, justify appellate intervention - See paragraphs 68 to 81.

Cases Noticed:

R. v. Vetrovec; R. v. Gaja, [1982] 1 S.C.R. 811; 41 N.R. 606, refd to. [para. 1].

R. v. Richard (D.R.) et al. (2013), 299 Man.R.(2d) 1; 590 W.A.C. 1; 2013 MBCA 105, refd to. [para. 15].

R. v. Korski (C.T.) (2009), 236 Man.R.(2d) 259; 448 W.A.C. 259; 244 C.C.C.(3d) 452; 2009 MBCA 37, refd to. [para. 16].

R. v. Bushie (C.O.) (2012), 280 Man.R.(2d) 236; 548 W.A.C. 236; 2012 MBCA 67 (C.A.), refd to. [para. 16].

R. v. Sauvé (J.) et al. (2004), 182 O.A.C. 58; 182 C.C.C.(3d) 321 (C.A.), refd to. [para. 19].

R. v. Potvin, [1989] 1 S.C.R. 525; 93 N.R. 42; 21 Q.A.C. 258, refd to. [para. 27].

R. v. Winmill (T.E.) (1999), 116 O.A.C. 201; 42 O.R.(3d) 582 (C.A.), refd to. [para. 28].

R. v. Brooks (F.A.), [2000] 1 S.C.R. 237; 250 N.R. 103; 129 O.A.C. 205; 2000 SCC 11, refd to. [para. 29].

R. v. MacDonald (L.R.) (2000), 184 N.S.R.(2d) 1; 573 A.P.R. 1; 2000 NSCA 60, refd to. [para. 30].

R. v. Patrick (C.) (2005), 203 O.A.C. 276 (C.A.), refd to. [para. 31].

R. v. Janvier (W.M.) (2008), 432 A.R. 338; 424 W.A.C. 338; 2008 ABCA 223, dist. [para. 35].

R. v. Chow (S.) (1998), 107 B.C.A.C. 281; 174 W.A.C. 281 (C.A.), refd to. [para. 35].

R. v. Obeng (C.K.) (2006), 391 A.R. 206; 377 W.A.C. 206; 2006 ABCA 197, refd to. [para. 35].

R. v. Innerebner (T.L.) (2013), 539 A.R. 382; 561 W.A.C. 382; 2013 ABCA 9, refd to. [para. 35].

R. v. G.C. (1996), 144 Nfld. & P.E.I.R. 204; 451 A.P.R. 204; 110 C.C.C.(3d) 233 (Nfld. C.A.), refd to. [para. 35].

R. v. Almajidi (K.) (2008), 310 Sask.R. 142; 423 W.A.C. 142; 2008 SKCA 56, refd to. [para. 35].

R. v. Sinclair (J.G.) (2010), 262 Man.R.(2d) 23; 507 W.A.C. 23; 2010 MBCA 105, refd to. [para. 35].

R. v. Khela (G.S.), [2009] 1 S.C.R. 104; 383 N.R. 279; 265 B.C.A.C. 31; 446 W.A.C. 31; 2009 SCC 4, refd to. [para. 40].

R. v. Shropshire (M.T.), [1995] 4 S.C.R. 227; 188 N.R. 284; 65 B.C.A.C. 37; 106 W.A.C. 37, refd to. [para. 70].

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81, refd to. [para. 71].

R. v. Wright (C.D.) (2010), 258 Man.R.(2d) 118; 499 W.A.C. 118; 2010 MBCA 80 (C.A.), refd to. [para. 72].

R. v. G.W.R. (2011), 268 Man.R.(2d) 204; 520 W.A.C. 204; 2011 MBCA 62, refd to. [para. 72].

R. v. W.H., [2013] 2 S.C.R. 180; 442 N.R. 200; 335 Nfld. & P.E.I.R. 1; 1040 A.P.R. 1; 297 C.C.C.(3d) 4; 2013 SCC 22, refd to. [para. 72].

R. v. McDonnell (T.E.), [1997] 1 S.C.R. 948; 210 N.R. 241; 196 A.R. 321; 141 W.A.C. 321, refd to. [para. 73].

R. v. J.A.G. (2008), 228 Man.R.(2d) 99; 427 W.A.C. 99; 2008 MBCA 55, refd to. [para. 73].

R. v. Malik (W.A.), [2012] B.C.T.C. Uned. 502; 2012 BCSC 502, refd to. [para. 75].

R. v. Brewster (E.D.), [2006] Sask.R. Uned. 210; 2006 SKQB 514, refd to. [para. 75].

R. v. Greenhalgh (D.J.) (2012), 322 B.C.A.C. 166; 549 W.A.C. 166; 2012 BCCA 236, refd to. [para. 75].

R. v. Hall (W.T.) (2010), 487 A.R. 182; 495 W.A.C. 182; 2010 ABCA 165, refd to. [para. 75].

Authors and Works Noticed:

Hill, S. Casey, Tanovich, David M., and Strezos, Louis P., eds., McWilliams' Canadian Criminal Evidence (5th Ed. 2013) (Looseleaf), vol. 3, paras. 34:60.10 [paras. 32, 41]; 34:60.30 [para. 38].

Paciocco, David M., and Stuesser, Lee, The Law of Evidence (5th Ed. 2008), pp. 523, 524 [para. 33].

Counsel:

D.M. Sawchuk and A.J. McKelvey-Gunson, for the appellant;

R.N. Malaviya, for the respondent.

This appeal was heard on October 23, 2013, by Steel, MacInnes and Beard, JJ.A., of the Manitoba Court of Appeal. Beard, J.A., delivered the following decision for the court on June 5, 2014.