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EVIDENCE - Credibility of witnesses

Monday, April 06, 2020 @ 9:49 AM  

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Appeal by the accused from the dismissal of his appeal from conviction for sexual assault and sexual interference. The offences were allegedly committed during a bonfire party. At one point during the evening in question, both the appellant and the complainant were away from the bonfire party for a lengthy period and then seen to return together. The Crown alleged that was when the appellant put his hands under the complainant’s clothing, fondled one of her nipples and rubbed her genitalia. The appellant denied the allegation. He claimed he was only alone with the complainant when he took her to his motorhome to use the bathroom at the request of one of the female adults at the bonfire party. The Crown did not raise any objection as to the rule in Browne v. Dunn being breached by the appellant’s testimony. Without alerting counsel and giving them an opportunity to address the issue, in her reasons for decision, the trial judge found a breach of the rule and, as a remedy, she drew two negative inferences against the appellant for the failure to cross-examine either of the female adults about asking him to take the complainant to the motorhome bathroom. The complainant was not sexually touched at the time the appellant took her to the bathroom. The appeal judge rejected the submission that the fairness of the trial was compromised because of a procedural error by the trial judge in applying the rule in reaching her verdicts in the absence of an objection by the Crown and without any input from counsel.

HELD: Appeal allowed. New trial ordered. The procedure the trial judge used to find a breach of the rule and to remedy the consequences of the breach, without objection by the Crown and any input from counsel, compromised the fairness of the trial. Because the fairness of the trial was compromised, the appeal judge erred in deferring to the trial judge’s exercise of discretion. The Crown’s silence should have given pause to the trial judge before she invoked the rule in the way that she did. While it was entirely appropriate for the trial judge to raise with counsel a potential breach of the rule on her own motion, it was problematic that the first time the parties learned about the application of a legal rule against the appellant being relevant to the trial judge’s findings of fact was when she delivered her reasons for decision.

R. v. Dowd, [2020] M.J. No. 49, Manitoba Court of Appeal, C.J. Mainella, J.A. Pfuetzner and L.T. Spivak JJ.A., February 20, 2020. Digest No. TLD-April62020002