R. v. R.A.W., (2015) 319 Man.R.(2d) 228 (CA)

• Judge: Hamilton, Monnin and Mainella, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: June 02, 2015
• Jurisdiction: Manitoba
• Citations: (2015), 319 Man.R.(2d) 228 (CA);2015 MBCA 69

R. v. R.A.W. (2015), 319 Man.R.(2d) 228 (CA);

      638 W.A.C. 228

MLB headnote and full text

Temp. Cite: [2015] Man.R.(2d) TBEd. JL.020

Her Majesty The Queen (respondent) v. R.A.W. (accused/appellant)

(AR 14-30-08167; 2015 MBCA 69)

Indexed As: R. v. R.A.W.

Manitoba Court of Appeal

Hamilton, Monnin and Mainella, JJ.A.

July 16, 2015.

Summary:

The accused was charged with buggery and indecent assault arising from incidents involving a young child which occurred between 1973 and 1979.

The Manitoba Court of Queen's Bench, in a decision reported at 297 Man.R.(2d) 287, convicted the accused as charged. The matter moved to sentencing.

The Manitoba Court of Queen's Bench, in a decision reported at 305 Man.R.(2d) 23, sentenced the accused to three years of jail for each of the offences to be served concurrently. The accused appealed his conviction and sought leave to appeal the sentence.

The Manitoba Court of Appeal dismissed the conviction appeal and denied leave to appeal the 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 4351

Procedure - Charge or directions - Jury or judge alone - Direction regarding burden of proof and reasonable doubt - The accused, age 72, was convicted of historic incidents of buggery and indecent assault involving a young child - The accused appealed, complaining that the verdicts were unreasonable because the judge erred in her assessment of the credibility and reliability of the witnesses - Further, the judge misapplied the burden of proof by committing the "credibility contest" error in assessing the evidence - The Manitoba Court of Appeal dismissed the appeal - The court was not persuaded that the judge's approach to the evidence was so problematic that appellate intervention was necessary - The court stated that the judge's reasons, when read in light of the record, confirmed that she analyzed the evidence with great care before deciding on the whole of the evidence whether she was left with a reasonable doubt about the guilt of the accused - See paragraphs 14 to 20.

Criminal Law - Topic 4375.3

Procedure - Charge or directions - Jury or judge alone - Directions regarding prior consistent statements - [See fourth Evidence - Topic 1031 ].

Evidence - Topic 1031

Relevant facts - Relevance and materiality - Admissibility - Prior consistent statements - The Manitoba Court of Appeal stated that "A prior consistent statement is a statement given by a witness on another occasion concerning the matter(s) before the court, proven by the witness testifying about their prior statement, or through other evidence. A prior consistent statement is presumptively inadmissible at common law (see R. v. Béland, [1987] 2 S.C.R. 398 at 409-10). Despite the modern trend towards a principled approach in the law of evidence where trial judges assess questions of admissibility in a contextualized way, the law regarding prior consistent statements remains cast in the traditional approach of a rule, with category exceptions and exceptions to exceptions ..." - See paragraph 21.

Evidence - Topic 1031

Relevant facts - Relevance and materiality - Admissibility - Prior consistent statements - The Manitoba Court of Appeal stated that "Trial judges should exercise great caution with the narrative exception to the prior consistent statement exclusionary rule because it can be easily abused. It is not, and cannot become, a Trojan horse for the Crown to introduce anything said out of court by a witness. Such caution is particularly important where, as is the case is here, the prior consistent statement is admissible for multiple purposes thereby increasing the risk it may be used improperly as affirmative proof of the credibility of a witness or of the allegations" - See paragraph 30.

Evidence - Topic 1031

Relevant facts - Relevance and materiality - Admissibility - Prior consistent statements - The Manitoba Court of Appeal stated that "The case law sets out several general principles about the narrative exception [to the prior consistent statement exclusionary rule] that are important to bear in mind. To begin, if the prior consistent statement is not an essential part of the narrative it should not be admitted as evidence ... Even when the prior consistent statement is essential narrative, only those details in the statement necessary to properly explain events are admissible ... Finally, with few exceptions, a trial judge is obligated to instruct the jury on the limited value of such evidence and on both the permissible and non-permissible uses of the prior consistent statement ..." - See paragraph 31.

Evidence - Topic 1031

Relevant facts - Relevance and materiality - Admissibility - Prior consistent statements - The accused, age 72, was convicted of historic incidents of buggery and indecent assault involving a young child - The accused appealed, arguing that the trial judge misused a prior consistent statement by the child (i.e., he had at one point told his mother that the accused had pulled down his pants) - The judge recognized that she was forbidden from using prior consistent statement as corroborative evidence - However, she used the statement as an as additional basis to refute recent fabrication and she said that the statement fell within the narrative exception - The Manitoba Court of Appeal dismissed the appeal - The court was satisfied that the judge gave herself a proper limiting instruction and did not improperly use the prior consistent statement as affirmative evidence of the credibility of the complainant - See paragraphs 21 to 36.

Evidence - Topic 4021

Witnesses - Credibility - General - [See Criminal Law - Topic 4351 ].

Cases Noticed:

R. v. W.D.S., [1994] 3 S.C.R. 521; 171 N.R. 360; 157 A.R. 321; 77 W.A.C. 321; 93 C.C.C.(3d) 1, refd to. [para. 2].

R. v. J.H.S., [2008] 2 S.C.R. 152; 375 N.R. 67; 265 N.S.R.(2d) 203; 848 A.P.R. 203; 2008 SCC 30, refd to. [para. 2].

R. v. R.W., [1992] 2 S.C.R. 122; 137 N.R. 214; 54 O.A.C. 164; 74 C.C.C.(3d) 134, refd to. [para. 15].

R. v. A.G., [2000] 1 S.C.R. 439; 252 N.R. 272; 132 O.A.C. 1; 143 C.C.C.(3d) 46; 2000 SCC 17, refd to. [para. 15].

R. v. R.P., [2012] 1 S.C.R. 746; 429 N.R. 361; 2012 SCC 22, refd to. [para. 15].

R. v. Perrone (C.) (2014), 306 Man.R.(2d) 299; 604 W.A.C. 299; 2014 MBCA 74, affd. (2015), 468 N.R. 82; 315 Man.R.(2d) 220; 630 W.A.C. 220; 2015 SCC 8, refd to. [para. 15].

R. v. Morrissey (R.J.) (1995), 80 O.A.C. 161; 22 O.R.(3d) 514 (C.A.), refd to. [para. 18].

R. v. Beland and Phillips, [1987] 2 S.C.R. 398; 79 N.R. 263, refd to. [para. 21].

R. v. Stirling (B.J.), [2008] 1 S.C.R. 272; 371 N.R. 384; 251 B.C.A.C. 62; 420 W.A.C. 62; 2008 SCC 10, refd to. [para. 21].

R. v. Dinardo (J.), [2008] 1 S.C.R. 788; 374 N.R. 198; 2008 SCC 24, refd to. [para. 21].

R. v. K.M.E., [2009] 2 S.C.R. 19; 389 N.R. 20; 272 B.C.A.C. 1; 459 W.A.C. 1; 2009 SCC 27, refd to. [para. 21].

R. v. D.C.B. (1994), 95 Man.R.(2d) 220; 70 W.A.C. 220; 91 C.C.C.(3d) 357 (C.A.), refd to. [para. 22].

R. v. D.G.S. (2013), 294 Man.R.(2d) 217; 581 W.A.C. 217; 2013 MBCA 69, refd to. [para. 23].

R. v. G.H.B. (1999), 182 Nfld. & P.E.I.R. 296; 554 A.P.R. 296 (P.E.I.C.A.), refd to. [para. 26].

R. v. S.L. (1999), 141 C.C.C.(3d) 93 (Ont. C.A.), refd to. [para. 26].

R. v. Kailayapillai (S.) (2013), 305 O.A.C. 136; 2013 ONCA 248, leave to appeal refused (2014), 473 N.R. 398, refd to. [para. 27].

R. v. J.E.F. (1993), 67 O.A.C. 251; 85 C.C.C.(3d) 457 (C.A.), refd to. [para. 28].

R. v. E.M.W., [2011] 2 S.C.R. 542; 417 N.R. 171; 305 N.S.R.(2d) 1; 966 A.P.R. 1; 2011 SCC 31, refd to. [para. 29].

R. v. Hoffman (A.A.) (1994), 155 A.R. 275; 73 W.A.C. 275 (C.A.), refd to. [para. 31].

R. v. A.E.R. (2001), 151 O.A.C. 105; 43 C.R.(5th) 340; 156 C.C.C.(3d) 335 (C.A.), refd to. [para. 31].

R. v. Le (T.D.) (2011), 270 Man.R.(2d) 82; 524 W.A.C. 82; 275 C.C.C.(3d) 427; 2011 MBCA 83 (C.A.), leave to appeal denied (2012), 434 N.R. 397 (S.C.C.), refd to. [para. 31].

R. v. Louie (T.) (2014), 446 Sask.R. 99; 621 W.A.C. 99; 2014 SKCA 107, refd to. [para. 32].

R. v. M.W. (2008), 279 Nfld. & P.E.I.R. 183; 856 A.P.R. 183; 2008 NLCA 38, refd to. [para. 33].

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. 34].

Authors and Works Noticed:

Canada, Law Reform Commission, Report on Evidence (1977), pp. 73, 93, 94 [para. 22].

Counsel:

M.S. Minuk, for the appellant;

R.D. Lagimodière, for the respondent.

This appeal was heard on June 2, 2015, before Hamilton, Monnin and Mainella, JJ.A., of the Manitoba Court of Appeal. The following decision was delivered for the court by Mainella, J.A., on July 16, 2015.