R. v. Storheim (S.K.W.), (2015) 315 Man.R.(2d) 162 (CA)

• Judge: MacInnes, Monnin and Burnett, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: October 31, 2014
• Jurisdiction: Manitoba
• Citations: (2015), 315 Man.R.(2d) 162 (CA);2015 MBCA 14

R. v. Storheim (S.K.W.) (2015), 315 Man.R.(2d) 162 (CA);

      630 W.A.C. 162

MLB headnote and full text

Temp. Cite: [2015] Man.R.(2d) TBEd. FE.026

Her Majesty The Queen (respondent) v. Seraphim Kenneth William Storheim (accused/appellant)

(AR 14-30-08208; 2015 MBCA 14)

Indexed As: R. v. Storheim (S.K.W.)

Manitoba Court of Appeal

MacInnes, Monnin and Burnett, JJ.A.

February 5, 2015.

Summary:

The accused priest was found guilty of sexually assaulting an 11 year old altar boy in 1985. The Crown sought a 12 month prison term. The accused submitted that he should receive a conditional sentence.

The Manitoba Court of Queen's Bench, in a decision reported at (2014), 308 Man.R.(2d) 75, sentenced the accused to eight months' imprisonment. The accused appealed the conviction and moved to adduce fresh evidence on the appeal. He also applied for leave to appeal the sentence.

The Manitoba Court of Appeal dismissed the fresh evidence motion and the conviction appeal. The court 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 - Storheim, a priest, was found guilty of sexually assaulting an 11 year old boy (LJR) in 1985 - The trial judge stated that "There is no reason for [LJR] to not tell the truth" and LJR "has no motive to shade his evidence" - Storheim appealed, arguing that the trial judge shifted the burden onto him to provide a motive as to why LJR would lie - The Manitoba Court of Appeal dismissed the appeal, stating "It is that act of requiring the accused to explain the actions of another that is inappropriate, not the consideration of whether the evidence suggests a motive on the part of the witness to lie. It is well established that a witness's credibility may be assessed by asking whether he or she had a reason to embellish or fabricate evidence. This does not constitute a reversal of the burden of proof, but is simply part of the assessment of credibility necessary when conflicting evidence must be resolved." - See paragraphs 36 to 38.

Criminal Law - Topic 4806

Appeals - Indictable offences - General principles - Duty of appellate court - [See Criminal Law - Topic 4866 ].

Criminal Law - Topic 4866

Appeals - Indictable offences - Grounds of appeal - Misapprehension of evidence - Storheim, a priest, was found guilty of sexually assaulting an 11 year old boy in 1985 - He appealed, arguing that the trial judge made numerous findings and inferences that were not supported by the evidence, subjected the defence evidence to a higher degree of scrutiny than the Crown evidence, and favoured the interpretation most favourable to the Crown where an inference was required - The Manitoba Court of Appeal dismissed the appeal - For the most part, Storheim's complaints were not about an error or misapprehension of the evidence, but (a) related to an interpretation or inference drawn by the trial judge from the evidence or the weight to be ascribed to the evidence, or (b) resulted from the dissection, parsing or microscopic examination of the trial judge's reasons, which was a type of forbidden analysis - To the extent that the trial judge might have misapprehended the evidence, such misapprehensions, considered in isolation and cumulatively, related to detail and were peripheral to his decision to convict Storheim - They did not play an essential part and were not a central element in his reasoning process - See paragraphs 46 to 60.

Criminal Law - Topic 4970

Appeals - Indictable offences - Powers of Court of Appeal - Receiving fresh evidence - General - In 2010, Storheim was charged with two counts of sexual assault alleged to have occurred in the summer of 1985 - Storheim was a priest in Winnipeg - The victims (LJR and LAR) were 11 year old brothers from Ontario who took turns visiting Storheim in Winnipeg - Storheim was convicted of the offence respecting LJR and acquitted respecting LAR - Storheim appealed and moved to introduce fresh evidence which included photographs which allegedly depicted LJR in Winnipeg during the summer of 1985, and LAR in Winnipeg during the summer of 1986 - Storheim asserted that this evidence could have affected the trial judge's positive assessment of LJR's credibility, because it showed that LJR was incorrect in his testimony that LAR had visited Winnipeg in 1985 - The Manitoba Court of Appeal dismissed the motion - The evidence was clearly hearsay, the identity of the persons in the photographs was not proven, and the photographs were not authenticated - No explanation was offered for why the photographs could not be produced at trial - The evidence contradicted Storheim's own evidence at trial and did not prove that LAR was not in Winnipeg in 1985 - Even if the fresh evidence did establish that LAR was in Winnipeg in 1986, this would have no impact on LJR's credibility and could not reasonably be expected to have affected the result at trial - See paragraphs 25 to 32.

Criminal Law - Topic 4970

Appeals - Indictable offences - Powers of Court of Appeal - Receiving fresh evidence - General - Storheim, a priest, was found guilty of sexually assaulting an 11 year old boy in 1985 - Kucharczyk was a defence witness - The trial judge found that Storheim and Kucharczyk had contemplated marriage and that their relationship undermined the reliability of Kucharczyk's evidence - Storheim appealed and moved to introduce fresh evidence which included an affidavit from Kucharczyk in which she deposed that she and Storheim never considered marriage - The Manitoba Court of Appeal dismissed the motion - The evidence was not sufficiently cogent to have affected the verdict - The trial judge's misapprehension of the evidence concerning marriage played an insignificant role in his analysis of Kucharczyk's credibility - There was other evidence that she and Storheim had been close acquaintances for a long time - See paragraph 33.

Criminal Law - Topic 5039

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - Effect of error by trial judge - General - [See Criminal Law - Topic 4866 ].

Criminal Law - Topic 5360

Evidence and witnesses - Photographs, movies, videotapes, etc. - General principles - Admissibility - [See first Criminal Law - Topic 4970 ].

Criminal Law - Topic 5848.9

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

Criminal Law - Topic 5932

Sentence - Sexual assault - Storheim, a priest, was convicted in 2014 of sexually assaulting an 11 year old boy (LJR) in 1985 when LJR visited Storheim in Winnipeg for the purpose of being an altar boy - Storheim would walk around naked in front of LJR - One time, when LJR was also naked and under the pretext of giving LJR a sexual education, Storheim briefly put his hands on the area of LJR's penis and had LJR touch Storheim's testicle - The sentencing judge sentenced Storheim to eight months' imprisonment - Storheim applied for leave to appeal the sentence, arguing that the sentencing judge erred in concluding that grooming had been proven, that there was no evidence of genuine remorse, that he had not suffered inordinately, and by placing too much weight on the psychological damage suffered by LJR - The Manitoba Court of Appeal denied leave as the appeal had no realistic chance of success - It was open to the sentencing judge to conclude that there had been grooming and that there was a lack of remorse - The sentencing judge accepted that there had been some negative impact on Storheim - The weighing of factors such as the psychological impact on LJR was a discretionary matter for the sentencing judge - Finally, eight months' imprisonment was within the appropriate range - See paragraphs 67 to 69.

Criminal Law - Topic 6211

Sentencing - Appeals - Variation of sentence - Application for leave to appeal - Grounds - [See Criminal Law - Topic 5932 ].

Cases Noticed:

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181, refd to. [para. 19].

R. v. Henderson (W.E.) (2012), 284 Man.R.(2d) 164; 555 W.A.C. 164; 2012 MBCA 93, leave to appeal refused (2013), 453 N.R. 397 (S.C.C.), refd to. [para. 24].

R. v. R.C.H. (2013), 303 Man.R.(2d) 39; 600 W.A.C. 39; 2013 MBCA 108, refd to. [para. 24].

Truscott, Re (2007), 226 O.A.C. 200; 2007 ONCA 575, refd to. [para. 24].

R. v. J.S.C. (2013), 553 A.R. 81; 583 W.A.C. 81; 2013 ABCA 157, refd to. [para. 25].

R. v. Hay (L.) et al., [2013] 3 S.C.R. 694; 451 N.R. 34; 312 O.A.C. 201; 2013 SCC 61, refd to. [para. 26].

R. v. R.W., [1992] 2 S.C.R. 122; 137 N.R. 214; 54 O.A.C. 164, refd to. [para. 30].

R. v. G.B. et al. (No. 1), [1990] 2 S.C.R. 3; 111 N.R. 1; 86 Sask.R. 81, refd to. [para. 32].

R. v. G.C. (1996), 144 Nfld. & P.E.I.R. 204; 451 A.P.R. 204 (Nfld. C.A.), refd to. [para. 32].

R. v. Smith (J.) (2001), 154 O.A.C. 51 (C.A.), refd to. [para. 34].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 35].

R. v. N.S. et al., [2012] 3 S.C.R. 726; 437 N.R. 344; 297 O.A.C. 200; 2012 SCC 72, refd to. [para. 41].

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; 2013 SCC 22, refd to. [para. 41].

R. v. Gagnon (L.), [2006] 1 S.C.R. 621; 347 N.R. 355; 2006 SCC 17, refd to. [para. 41].

R. v. Lohrer (A.W.), [2004] 3 S.C.R. 732; 329 N.R. 1; 208 B.C.A.C. 1; 344 W.A.C. 1; 2004 SCC 80, refd to. [para. 42].

R. v. Sinclair (T.), [2011] 3 S.C.R. 3; 418 N.R. 282; 268 Man.R.(2d) 225; 520 W.A.C. 225; 2011 SCC 40, refd to. [para. 43].

R. v. J.S.W. (2013), 311 O.A.C. 80; 2013 ONCA 593, refd to. [para. 44].

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. 45].

R. v. Morrissey (R.J.) (1995), 80 O.A.C. 161 (C.A.), refd to. [para. 47].

R. v. Rhodes (K.H.C.), [2011] Man.R.(2d) Uned. 87; 2011 MBCA 98, refd to. [para. 61].

R. v. Dinardo (J.), [2008] 1 S.C.R. 788; 374 N.R. 198; 2008 SCC 24, refd to. [para. 64].

R. v. W.R.B., [2011] Man.R.(2d) Uned. 7; 2011 MBCA 17, refd to. [para. 65].

R. v. Gill (J.S.), [2010] Man.R.(2d) Uned. 67; 2010 MBCA 92, refd to. [para. 69].

Counsel:

J.J. Gindin and K.D. Minuk, for the appellant;

A.Y. Kotler, for the respondent.

This motion, appeal and application were heard on October 31, 2014, before MacInnes, Monnin and Burnett, JJ.A., of the Manitoba Court of Appeal. Burnett, J.A., delivered the following judgment for the court on February 5, 2015.