R. v. R.W.B., (1993) 24 B.C.A.C. 1 (CA)

• Judge: McEachern, C.J.B.C., Toy and Rowles, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: April 08, 1993
• Jurisdiction: British Columbia
• Citations: (1993), 24 B.C.A.C. 1 (CA)

R. v. R.W.B. (1993), 24 B.C.A.C. 1 (CA);

    40 W.A.C. 1

MLB headnote and full text

Regina (respondent) v. R.W.B. (appellant)

(CA015042)

Indexed As: R. v. R.W.B.

British Columbia Court of Appeal

McEachern, C.J.B.C., Toy and Rowles, JJ.A.

April 8, 1993.

Summary:

The accused was convicted of sexual touching contrary to s. 151 of the Criminal Code and was sentenced to a suspended sentence plus one year's probation. The alleged victim was the accused's common law wife's 12 year old niece. The accused appealed the conviction, claiming, inter alia, that the trial judge misdirected himself on the evidence respecting credibility and failed to properly apply the test of reasonable doubt.

The British Columbia Court of Appeal allowed the appeal, set aside the conviction and ordered a new trial.

Criminal Law - Topic 706

Sexual offences - Sexual interference with young person - The accused was convicted for sexually touching a 12 year old girl - The girl testified - The accused denied the incident - The trial judge greatly empha­sized that the girl had no reason to lie and accepted her testimony as true - The trial judge ignored or dismissed as inconse­quential relevant evidence concerning the girl's credibility - He misconstrued defence evidence directed not only to the girl's credibility, but also to whether the Crown proved its case beyond a reasonable doubt - The trial judge erred in choosing the victim's version over the accused's contradictory version, without determining whether guilt was proved beyond a rea­sonable doubt - The trial judge also con­sidered irrelevant evidence in deter­mining credibility - The British Columbia Court of Appeal ordered a new trial.

Criminal Law - Topic 4960

Appeals - Indictable offences - New trials - Grounds - Error respecting burden of proof - [See Criminal Law - Topic 706 ].

Criminal Law - Topic 5221

Evidence - Witnesses - Burden of proof - Proof of guilt beyond a reasonable doubt - [See Criminal Law - Topic 706 ].

Criminal Law - Topic 5404

Evidence - Witnesses - Credibility - [See Criminal Law - Topic 706 ].

Criminal Law - Topic 5462

Evidence - Witnesses - Evidence of children - Credibility - [See Criminal Law - Topic 706 ].

Cases Noticed:

R. v. Poirier (1992), 45 Q.A.C. 1; 71 C.C.C.(3d) 426 (C.A.), refd to. [para. 20].

R. v. Smith (D.A.) (1989), 95 A.R. 304 (C.A.), affd. (1990), 111 N.R. 144; 109 A.R. 160 (S.C.C.), refd to. [para. 22].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352; 63 C.C.C.(3d) 397; 3 C.R.(4th) 302, refd to. [para. 22].

R. v. Waters (A.J.) (1992), 14 B.C.A.C. 216; 26 W.A.C. 216 (C.A.), refd to. [para. 22].

R. v. Harper, [1982] 1 S.C.R. 2; 40 N.R. 255, refd to. [para. 25].

R. v. Markadonis, [1935] S.C.R. 657, refd to. [para. 43].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 151 [para. 1].

Counsel:

B.H. Johnstone, for the respondent;

Richard C.C. Peck, Q.C., for the appellant.

This appeal was heard on February 1, 1993, at Vancouver, B.C., before McEach­ern, C.J.B.C., Toy and Rowles, JJ.A., of the British Columbia Court of Appeal.

On April 8, 1993, Rowles, J.A., delivered the following judgment for the Court of Appeal.