R. v. M.W.S., 2015 MBQB 192

• Judge: McKelvey, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: December 15, 2015
• Jurisdiction: Manitoba
• Citations: 2015 MBQB 192;(2015), 325 Man.R.(2d) 43 (QB)

R. v. M.W.S. (2015), 325 Man.R.(2d) 43 (QB)

MLB headnote and full text

Temp. Cite: [2016] Man.R.(2d) TBEd. FE.033

Her Majesty The Queen v. M.W.S. (accused)

(CR 14-01-33424; 2015 MBQB 192)

Indexed As: R. v. M.W.S.

Manitoba Court of Queen's Bench

Winnipeg Centre

McKelvey, J.

December 15, 2015.

Summary:

The accused faced six sexually-based criminal charges with respect to the complainants, his two stepdaughters, "C.A.B." and "D.B.". At the time of the alleged incidents, the complainants were under the age of 16 years. C.A.B. was now 19, while D.B. was 22. Just prior to the allegations, the accused had been charged with assaulting the complainants' mother. The accused testified that he at no time engaged in sexual contact with either C.A.B. or D.B., and that the complainants were motivated by their desire to break up his relationship with their mother.

The Manitoba Court of Queen's Bench entered an acquittal on all charges, substantially on the fourth criterion of R. v. D.W.; i.e., after a careful consideration of all the evidence, the Court was unable to decide who to believe.

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 675

Sexual offences, public morals and disorderly conduct - Sexual offences, rape or sexual assault - Evidence and proof - The accused faced six sexually-based criminal charges with respect to the complainants, his two stepdaughters, "C.A.B." and "D.B." - At the time of the alleged incidents, the complainants were under the age of 16 years - C.A.B. was now 19, while D.B. was 22 - Just prior to the allegations, the accused had been charged with assaulting the complainants' mother - The accused testified that he at no time engaged in sexual contact with either C.A.B. or D.B., and that the complainants were motivated by their desire to break up his relationship with their mother - The Manitoba Court of Queen's Bench entered an acquittal on all charges, substantially on the fourth criterion of R. v. D.W.; i.e., after a careful consideration of all the evidence, the Court was unable to decide who to believe - See paragraphs 41 to 61.

Criminal Law - Topic 4300

Procedure - Trial judge - Duties and functions of - Respecting credibility of witnesses (incl. accused) - [See Criminal Law - Topic 675 ].

Criminal Law - Topic 5462

Evidence - Witnesses - Evidence of children - Credibility - The accused faced sexually-based criminal charges with respect to the complainants, his two stepdaughters, "C.A.B." and "D.B." - At the time of the alleged incidents, the complainants were under the age of 16 years - C.A.B. was now 19, while D.B. was 22 - The Manitoba Court of Queen's Bench, in assessing credibility of the complainants, stated that "[t]he testimony, provided by now adult witnesses of circumstances that were alleged to have occurred when they were children, must be considered on a commonsense basis. The same exacting standard impressed upon an adult witness should not, in all the circumstances, be expected. A child may not be able to recount details with the same exacting precision as an adult. That does not necessarily equate with a conclusion that the child has misconceived what transpired. The context of the evidence of a child requires significant attention to factors such as age, an ability to observe and recall, an ability to understand questions and to respond to them, as well as an appreciation of the responsibility of being honest. The intelligence, behaviour, and experience of a young witness must also be considered." - See paragraph 39.

Cases Noticed:

R. v. G.B. et al. (No. 2), [1990] 2 S.C.R. 30; 111 N.R. 31; 86 Sask.R. 111, refd to. [para. 37].

R. v. R.W., [1992] 2 S.C.R. 122; 137 N.R. 214; 54 O.A.C. 164, refd to. [para. 37].

R. v. Starr (R.D.), [2000] 2 S.C.R. 144; 258 N.R. 250; 148 Man.R.(2d) 161; 224 W.A.C. 161; 2000 SCC 40, refd to. [para. 38].

R. v. Lifchus (W.), [1997] 3 S.C.R. 320; 216 N.R. 215; 118 Man.R.(2d) 218; 149 W.A.C. 218, refd to. [para. 38].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, appld. [para. 40].

R. v. Menow (R.A.) (2013), 294 Man.R.(2d) 236; 581 W.A.C. 236; 300 C.C.C.(3d) 415; 2013 MBCA 72 (C.A.), refd to. [para. 40].

Counsel:

Kerry L. UnRuh, for the Crown;

Wendy Y. Martin White, for the accused.

This trial was heard before McKelvey, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment and reasons, dated December 15, 2015.