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EVIDENCE - Witnesses - Credibility

Monday, January 20, 2020 @ 8:32 AM  


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Appeal by the accused from conviction for sexual assault. The appellant, a family doctor, allegedly performed unnecessary internal vaginal examinations, made inappropriate sexual comments while doing so and, ultimately, proposed intercourse while sexually touching the complainant. The appellant categorically denied all the allegations. Spanish was the first language of many witnesses at the trial. The incidents occurred more than 20 years ago. The medical charts had been destroyed, and there was a risk of the contamination of the memories of the witnesses at a professional discipline hearing which occurred before the criminal trial. The appellant was found not guilty at the disciplinary proceedings. He argued that the trial judge misapprehended his evidence, unevenly scrutinised his testimony with that of the complainant, and that the verdict was unreasonable.

HELD: Appeal dismissed. An appellate court could not characterize a trial judge’s interpretation of evidence as a misapprehension simply because it did not agree with it, it raised some unease or concern, or it could be a mistake. It was not the function of this Court to reinterpret the appellant’s evidence more favourably than did the judge based on a minute study of the trial transcript. There was nothing in the judge’s reasons or the record which clearly showed that she used a different lens to assess the testimony of the appellant and the complainant. In assessing credibility, the judge had the right to resolve the frailties with the complainant’s testimony by accepting all, some or none of the testimony, and assign differing weight to the parts of the testimony that she accepted. The judge fairly summarised the evidence she heard. She equally identified and weighed the inconsistencies for both the complainant and the appellant and any explanation for a discrepancy. Based on a functional view of the judge’s reasons, there was nothing to suggest she abdicated her responsibility to critically assess the frailties with the complainant’s evidence and whether they undermined the case for the Crown. It would be inappropriate for this Court to interfere with the judge’s perception and interpretation of the complainant’s evidence of her final appointment. There was no obvious error with the judge’s credibility findings in her reasons. The judge understood the evidence, was alive to the issues, and resolved the relevant factual disputes, mindful of the frailties of the witnesses and the criminal burden of proof. In the absence of a palpable and overriding error, deference must be afforded to her credibility assessment. A properly instructed trier of fact, acting judicially, could reasonably have rendered the verdict reached because the judge’s credibility assessment was reasonably supported on all the evidence. The judge did not engage in an illogical or irrational reasoning process that would vitiate the verdict.

R. v. Jovel, [2019] M.J. No. 312, Manitoba Court of Appeal, F.M. Steel, H.C. Beard and C.J. Mainella JJ.A., November 21, 2019. Digest No. TLD-January202020002