R. v. Menow (R.A.),

• Jurisdiction: Manitoba
• Judge: Monnin, Hamilton and Cameron, JJ.A.
• Neutral Citation: 2013 MBCA 72
• Citation: (2013), 294 Man.R.(2d) 236 (CA),2013 MBCA 72,300 CCC (3d) 415,[2013] MJ No 275 (QL),294 Man R (2d) 236,294 Man.R.(2d) 236,294 ManR(2d) 236,[2013] M.J. No 275 (QL),(2013), 294 ManR(2d) 236 (CA)
• Date: 19 June 2013
• Court: Court of Appeal (Manitoba)

R. v. Menow (R.A.) (2013), 294 Man.R.(2d) 236 (CA);

      581 W.A.C. 236

MLB headnote and full text

Temp. Cite: [2013] Man.R.(2d) TBEd. AU.013

Her Majesty The Queen (respondent) v. Robert Alexander Menow (accused/appellant)

(AR 12-30-07904; 2013 MBCA 72)

Indexed As: R. v. Menow (R.A.)

Manitoba Court of Appeal

Monnin, Hamilton and Cameron, JJ.A.

August 7, 2013.

Summary:

The accused appealed his conviction for sexual assault. He argued that the trial judge (1) erred in her application of the test set out in D.W. (1991 SCC ); (2) erred in law by requiring the accused to provide corroborating evidence; and (3) gave insufficient reasons for convicting him.

The Manitoba Court of Appeal dismissed the appeal.

Criminal Law - Topic 4300

Procedure - Trial judge - Duties and functions of - Respecting credibility of witnesses (incl. accused) - Menow was charged with sexual assault - The complainant, Menow and an independent witness each gave a different version of what had happened - The trial judge did not find Menow to be credible and convicted him - Menow appealed, arguing that the trial judge erred in her application of the D.W. test (1991 SCC) - He submitted that she materially misapprehended or was mistaken regarding certain evidence that she relied on in her determination that he was not believable - The Manitoba Court of Appeal dismissed the appeal - A review of the transcript showed that the trial judge did not misstate or misapprehend the evidence in any material respect or that any misapprehension played an essential part in her application of the D.W. analysis - Several aspects of Menow's evidence were contradicted by other evidence called at the trial - See paragraphs 29 to 49.

Criminal Law - Topic 4351

Procedure - Charge or directions - Jury or judge alone - Directions regarding burden of proof and reasonable doubt - Menow was charged with sexual assault - The complainant, Menow and an independent witness each gave a different version of what had happened - The trial judge did not find Menow to be credible and convicted him - Menow appealed, arguing that the trial judge erred in her application of the D.W. test (1991 SCC) - He submitted that she misapplied the first stage of the test by failing to consider his evidence in isolation and by conflating the first and second stages of analysis - The Manitoba Court of Appeal dismissed the appeal - To assess an accused's evidence in a vacuum ignored the fact that the whole purpose of a trial was to determine whether an accused was guilty of the offence charged - It was impossible for an accused's evidence to be considered without a factual or contextual backdrop for the charge itself - Such a method of analysis would effectively prevent the court from considering evidence favourable to an accused when deciding whether to believe him - To ignore evidence favourable to an accused in assessing his credibility was contrary to the principles of fundamental justice - It was clear that the trial judge rejected Menow's testimony to such an extent that she was left with no reasonable doubt after conducting the first two stages of the D.W. analysis - See paragraphs 16 to 28.

Criminal Law - Topic 4351

Procedure - Charge or directions - Jury or judge alone - Directions regarding burden of proof and reasonable doubt - [See Criminal Law - Topic 4300 ].

Criminal Law - Topic 4353

Procedure - Charge or directions - Jury or judge alone - Directions regarding corroboration - Menow was charged with sexual assault - The complainant, Menow and an independent witness each gave a different version of what had happened - The trial judge did not find Menow to be credible and convicted him - Menow appealed, arguing that the trial judge erred in law by requiring him to call corroborating evidence - The Manitoba Court of Appeal dismissed the appeal - Although there were two instances where the trial judge mentioned that Menow's evidence was not corroborated and that this was of concern to her, nowhere did she suggest that he was required to call any evidence or that any such onus existed - The trial judge simply noted that there was no evidence consistent with Menow's evidence - It was not improper for her to consider a lack of evidence in the context of the case as a whole - See paragraphs 50 to 55.

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 4684

Procedure - Judgments and reasons for judgment - Reasons for judgment - Sufficiency of - Menow was charged with sexual assault - The complainant, Menow and an independent witness each gave a different version of what had happened - The trial judge did not find Menow to be credible and convicted him - Menow appealed, arguing that each of the trial judge's reasons for rejecting his evidence constituted an error - Given this, there were no reasons left for her to make an adverse credibility finding against him and therefore her reasons were insufficient - The Manitoba Court of Appeal dismissed the appeal - The trial judge's reasons for rejecting Menow's evidence were not wrong in any material aspect - She explained why she found Menow guilty: she believed the complainant and other witnesses and disbelieved Menow - She considered all of the evidence called by the Crown and concluded that it convinced her that Menow was guilty beyond a reasonable doubt - The reasons were not insufficient - See paragraphs 56 to 62.

Cases Noticed:

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

R. v. Jaw (S.G.) (2008), 432 A.R. 297; 424 W.A.C. 297; 2008 NUCA 2, refd to. [para. 20].

R. v. Vuradin (F.) (2011), 515 A.R. 25; 532 W.A.C. 25; 2011 ABCA 280, refd to. [para. 20].

R. v. Liberatore (M.V.) (2010), 299 N.S.R.(2d) 53; 947 A.P.R. 53; 2010 NSCA 82, refd to. [para. 20].

R. v. McIntosh (J.G.) (2010), 493 A.R. 254; 502 W.A.C. 254; 2010 ABCA 352, refd to. [para. 20].

R. v. Hoohing, 2007 ONCA 577, refd to. [para. 21].

R. v. Chittick (D.S.) (2004), 228 N.S.R.(2d) 81; 723 A.P.R. 81; 2004 NSCA 135, refd to. [para. 22].

R. v. Mends (L.F.), [2007] O.A.C. Uned. 370; 2007 ONCA 669, refd to. [para. 22].

R. v. Vuradin (F.) (2013), 446 N.R. 53; 2013 SCC 38, refd to. [para. 25].

R. v. D.K.B., [2012] Man.R.(2d) Uned. 56; 2012 MBCA 114, refd to. [para. 26].

R. v. Gagnon (L.), [2006] 1 S.C.R. 621; 347 N.R. 355; 2006 SCC 17, refd to. [para. 26].

R. v. J.C.H. (2011), 304 Nfld. & P.E.I.R. 141; 944 A.P.R. 141; 2011 NLCA 8, refd to. [para. 29].

R. v. Rocha (S.) (2009), 236 Man.R.(2d) 213; 448 W.A.C. 213; 2009 MBCA 26, refd to. [para. 31].

R. v. R.E.M., [2008] 3 S.C.R. 3; 380 N.R. 47; 260 B.C.A.C. 40; 439 W.A.C. 40; 2008 SCC 51, refd to. [para. 31].

R. v. Kozakowski (T.N.), [2009] Man.R.(2d) Uned. 31; 2009 MBCA 32, refd to. [para. 51].

R. v. N.H.P., [2013] Man.R.(2d) Uned. 13; 2013 MBCA 30, refd to. [para. 57].

Counsel:

E.J. Roitenberg and L.C. Robinson, for the appellant;

R.N. Malaviya, for the respondent.

This appeal was heard on June 19, 2013, before Monnin, Hamilton and Cameron, JJ.A., of the Manitoba Court of Appeal. Cameron, J.A., delivered the following judgment for the court on August 7, 2013.