R. v. R.D.W.

2022 BCCA 373 R. v. R.D.W.

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. R.D.W., 2022 BCCA 373 Date: 20221101 Docket: CA47762 Between: Rex Respondent And R.D.W. Appellant Restriction on Publication: A publication ban has been mandatorily imposed under s. 486.4 of the Criminal Code restricting the publication, broadcasting or transmission in any way of evidence that could identify a complainant or witness, referred to in this judgment by the initials "J.W.". This publication ban applies indefinitely unless otherwise ordered. Before: The Honourable Justice Marchand (In Chambers) On appeal from: Orders of the Supreme Court of British Columbia, dated May 1, 2021 (conviction) and August 27, 2021 (sentence) (R. v. R.D.W., 2021 BCSC 1851 (sentence), New Westminster Docket X082031). Oral Reasons for Judgment The Appellant, appearing in person (via videoconference): R.D.W. Counsel for the Respondent: M. Richards Place and Date of Hearing: Vancouver, British Columbia October 25, 2022 Place and Date of Judgment: Vancouver, British Columbia November 1, 2022 Summary: A jury convicted the applicant of sexually and physically assaulting his daughter between 1989 and 1998. She was under 18 years of age at the time. The trial judge sentenced the applicant to eight years' imprisonment. The applicant, now self-represented, has filed a notice of appeal against conviction and an application for leave to appeal against

sentence. He now applies under s. 684 of the Criminal Code for the appointment of counsel to assist him with his appeals. Held: Counsel is appointed on a limited basis. On the existing record, the applicant's appeals appear to lack merit. However, all relevant information may not be before the Court. Counsel is appointed for the limited purposes of: (1) evaluating the applicant's proposed ineffective assistance of counsel grounds of appeal with respect to his conviction appeal; (2) if counsel considers this proposed ground of appeal to have sufficient merit, preparing and arguing a "full" s. 684 application on applicant's behalf; and (3) if counsel considers it necessary to evaluate the viability of the proposed ineffective assistance of counsel ground of appeal, ordering additional transcripts as necessary. Reasons for Judgment of the Honourable Justice Marchand: Introduction [1] On May 1, 2021, a jury convicted the applicant, R.D.W., of sexually and physically assaulting his daughter, J.W., between 1989 and 1998. She was under 18 years of age at the time. On August 27, 2021, the trial judge sentenced him to eight years' imprisonment: R. v. R.D.W., 2021 BCSC 1851. [2] R.D.W. has filed a notice of appeal against conviction, an application for leave to appeal against sentence, an appeal book and transcripts, all with the assistance of counsel. For reasons that are subject to

solicitor/client privilege, counsel is no longer acting for him. He now applies under s. 684 of the Criminal Code, R.S.C. 1985, c. C‑46 for the appointment of counsel to assist him with his appeals. Background [3] At trial, the complainant was the only witness for the Crown. She testified that her father, R.D.W., first sexually assaulted her when she was less than four years old. Between kindergarten and grade three, she estimated that her father penetrated her anally and vaginally with his penis, approximately three times per week. The sexual assaults were painful and caused bleeding. The complainant also testified that her father repeatedly physically assaulted her during these years by kicking her, hitting her, twisting her ankle and forcing her head under water in the bathtub. She said her father threatened to kill her if she told anyone. [4] According to the complainant, the abuse stopped when her father left the home when she was in grade three. He returned when she was in grade seven and sexually assaulted her at least twice when she was in grade seven or eight. [5] R.D.W. testified in his own defence. He denied that he physically or sexually abused the complainant but the jury convicted him on both counts. As mentioned, he was sentenced on August 27, 2021. [6] R.D.W. filed his notice of appeal on September 22, 2021. After his counsel withdrew, he applied for but was

refused legal aid. The refusal was not for financial reasons. Legal Framework [7] Section 684 of the Code provides: 684 (1) A court of appeal or a judge of that court may, at any time, assign counsel to act on behalf of an accused who is a party to an appeal or to proceedings preliminary or incidental to an appeal where, in the opinion of the court or judge, it appears desirable in the interests of justice that the accused should have legal assistance and where it appears that the accused has not sufficient means to obtain that assistance. [Emphasis added.] [8] The leading authority on s. 684 applications is R. v. Silcoff, 2012 BCCA 463. It provides: [21] Appointment of counsel under s. 684 is subject to a two-part test, generally considered in the following order: 1. The accused must have insufficient means to obtain legal assistance; and 2. Appointment of counsel must be in the interests of justice. [22] [A]pplicants should generally be able to show that 1) they cannot afford to retain counsel for the appeal; and 2) they applied to the Legal Services Society for legal aid and were refused. [23] The factors to be considered under the requirement of "interests of justice" were summarized in International Forest Products Ltd. v. Wolfe, 2001 BCCA 632 at para. 6 and 13, 94 B.C.L.R. (3d) 67 (Levine J.A. in Chambers). They are as follows: a. The points to be argued on appeal; b. The

complexity of the case; c. Any point of general importance in the appeal; d. The applicant's competency to present the appeal; e. The need for counsel to find facts, research law or make argument; f. The nature and extent of the penalty imposed; and g. The merits of the appeal. [24] As to the merits of the appeal, the threshold requirement is an arguable appeal: R. v. Donald, 2008 BCCA 316 at para. 15, 258 B.C.A.C. 117 (Saunders J.A. in Chambers). [25] In determining whether an appeal is arguable, regard must be had to the applicable standard of review on the proposed appeal: Lin v. British Columbia (Adult Forensic Psychiatric Services), 2008 BCCA 518 at paras. 17-18 (Frankel J.A. in Chambers). [26] Even where other factors favour the appointment of counsel, it will not be in the interests of justice to appoint counsel where an appeal has no merit: R. v. Hoskins, 2012 BCCA 51 at paras. 30-32, 315 B.C.A.C. 238 (Garson J.A. in Chambers). [27] The Court may consider the opinion of the Legal Services Society that an appeal has no prospect of success, however, the opinion of the Legal Services Society is only one factor: R. v. Chan, 2001 BCCA 138 at para. 8 (Finch J.A., as he was then, in Chambers); R. v. Butler, 2006 BCCA 476 at paras. 7 and 10 (Rowles J.A. in Chambers). See also R. v. Myles, 2020 BCCA 143 at para. 37; R. v. Fox, 2021 BCCA 308 at para. 27. [9] Where an applicant is

incarcerated (like R.D.W.), a court should consider the factors identified in Wolfe having regard to the applicant's incarceration. This is because the applicant's incarceration can affect their ability to prepare for the appeal, especially if the legal issues are complex or the appeal would require the applicant to access materials that an inmate would not generally be able to access: R. v. Sharpe, 2005 BCCA 236 (Chambers); R. v. L.V.R., 2013 BCCA 176 at para. 17 (Chambers); R. v. Butler, 2006 BCCA 476 at para. 20; R v. Williams, 2011 BCCA 85; R. v. Berntsen, 2012 BCCA 224 at para. 13 (Chambers). However, a court should not grant a s. 684 application simply because the practical and security considerations of incarceration constrain an applicant's ability to prepare their appeal: R. v. Parchment, 2011 BCCA 174 at para. 32 (Chambers). Analysis Means to Retain Counsel [10] There is no dispute that R.D.W. meets the financial criteria for a s. 684 order appointing counsel. Further, R.D.W. has provided a letter from Legal Aid BC indicating that it has denied his application for legal aid to pursue his proposed appeals. R.D.W. informed me during submissions that he applied to Legal Aid BC for a reconsideration but his reconsideration application was denied. Interests of Justice The points to be argued on appeal [11] The notice of appeal, as drafted by counsel, alleges the trial

judge erred when she provided an inadequate corrective instruction to the jury in response to the Crown's closing submissions. It also alleges the sentence imposed is demonstrably unfit. [12] Since the filing of the appeal, R.D.W., without the assistance of counsel, has filed a 14-page document in support of his application for the appointment of counsel. He has set out a number of additional grounds of appeal. The Crown has distilled them into the following points, which I agree fairly reflect the points raised: 1. The verdict was unreasonable because the complainant was not credible and there was no corroboration; 2. The judge permitted hearsay evidence to be before the jury; 3. The appellant was not permitted to ask questions about the complainant's previous sexual history; 4. There was no evidence to corroborate the complainant's testimony; 5. The complainant's counselling records and a "twin myth booklet" ought to have been before the jury; 6. The fact of and reason for a previous mistrial was not before the jury; 7. COVID-19 interfered with having a "just" trial; 8. Defence counsel did not represent the appellant, in the way he wanted to be represented; and 9. The trial judge provided an inadequate instruction to the jury in response to the Crown's closing submissions. The complexity of the case [13] In some respects, the Crown is correct that there was nothing

particularly complex about R.D.W.'s case. It was a credibility case. The only witnesses were the complainant, R.D.W. and R.D.W.'s co-accused. The parties made closing submissions. The judge instructed the jury, including a correction of something said by the Crown in its closing submission. The jury weighed the evidence and found R.D.W. guilty. [14] On the other hand, sexual assault trials, including "oath versus oath" trials, often raise highly technical legal issues that even experienced counsel and judges sometimes struggle with. In my view, R.D.W.'s grounds of appeal against his conviction involve complex legal issues, including the production of third-party documents and the admissibility of sexual history evidence. [15] R.D.W.'s proposed sentence appeal is more straightforward. The judge made findings of fact and gave clear reasons in support of the sentence she imposed. Any point of general importance in the appeal [16] The conviction and sentence appeals are unique, specific and important to R.D.W. but do not appear to raise any point of general importance. The applicant's competency to present the appeal [17] Intending no disrespect to R.D.W., a review of his materials demonstrates his lack of legal background and understanding. R.D.W. will likely find it challenging to bring his own appeal, particularly because he is incarcerated. There is little doubt that an

appellate lawyer would be helpful. The need for counsel to find facts, research law or make argument [18] This factor links closely to my view of the merits of R.D.W.'s appeals. Based on my review of R.D.W.'s material, it appears that counsel may be needed to explore the availability and admissibility of fresh evidence as well as whether R.D.W. received effective legal assistance. The merits of the conviction appeal Unreasonable verdict [19] As mentioned, the case before the jury was relatively straightforward. It consisted of the testimony of three witnesses and three exhibits. Amongst the exhibits was a book of documents with copies of occasion cards, and emails and texts between R.D.W. and the complainant. [20] The use of the exhibits does not appear to have been problematic. For example, the use of the book of documents appears to have been properly limited to challenging the credibility and reliability of the complainant, rather than perpetuating myths regarding how a victim of sexual abuse should act. [21] During his closing address to the jury, R.D.W.'s lawyer made extensive submissions regarding credibility issues, including by highlighting the absence of any evidence to corroborate the complainant's version of events. [22] During the Crown's closing address to the jury, the Crown made a problematic submission regarding the complainant's lack of motivation to fabricate

her allegations. The issue was identified and addressed by the judge. [23] The charge to the jury was prepared with the input of counsel and was put to the jury without objection. There were clear instructions regarding the assessment of credibility, including that the complainant's testimony could be accepted in the absence of corroboration. I can discern no obvious errors in the charge. [24] As the Crown notes, the verdict was available to the jury. While R.D.W. may be dissatisfied with the verdict, the Supreme Court of Canada has been clear: an appellate court must not act as a "13th juror" or "give effect to vague unease or lurking doubt based on its own review of the record, or find a verdict is unreasonable simply because the reviewing court has a reasonable doubt based on its review of the record": R. v. W.H., 2013 SCC 22 at para. 26. [25] On the existing record, R.D.W.'s argument that the jury reached an unreasonable verdict appears to lack merit. Absence of corroboration [26] R.D.W. repeatedly notes throughout his filed materials that there was no corroboration of the complainant's allegations, either through medical records, or her doctors or teachers. As noted by the Crown, some sexual assault prosecutions are supported by corroborative evidence but many are not. The legal requirement for corroboration in sexual assault cases was abrogated long ago by s. 274 of the

Code. The absence of corroboration is not a standalone ground of appeal. On the existing record, there is no merit to this ground of appeal. Hearsay [27] R.D.W. claims the trial judge erred by permitting the Crown to rely on "hearsay" evidence. R.D.W. appears to be operating under the mistaken understanding that the complainant's testimony was hearsay because it was not corroborated. [28] Hearsay is an out of court statement that is offered in evidence for its truth. Often, it involves a witness repeating what someone else told them and the party who called the witness asking the trier of fact to find that what the witness was told is true. [29] In this case, the Crown relied only on the direct testimony of the complainant regarding what happened to her. This was not hearsay. There is no merit to this ground of appeal. Previous sexual history [30] Under s. 276 of the Code, evidence of a complainant's sexual history is not admissible to support an inference that, by reason of the sexual nature of that activity, the complainant: (1) is more likely to have consented to the sexual activity that forms the subject-matter of the charge; or (2) is less worthy of belief. These statutorily prohibited lines of reasoning are referred to as "twin myths reasoning" because they are rooted in sexist and harmful myths and stereotypes about women. [31] An accused seeking to adduce sexual history

evidence of the complainant must apply for permission to do so. The applicant must satisfy the judge that the evidence: (1) is not being adduced for the purpose of supporting a prohibited inference; (2) is relevant to an issue at trial; (3) is of specific instances of sexual activity; and (4) has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice. [32] In this case, the complainant testified that she was sexually assaulted by another person and that incident made her realize her father's actions were "rape" rather than a form of discipline. R.D.W. complains that his counsel was not permitted to cross-examine the complainant about this other event. In his oral submissions, R.D.W. went further to suggest that the complainant has a history of making false allegations of sexual abuse and that that history should have been before the jury. R.D.W. relies on R. v. Anstey, 2002 NFCA 7 (CanLII) in support of his submission. [33] In Anstey, the Court of Appeal for Newfoundland and Labrador set aside the accused's conviction and ordered a new trial. The Court held that his lawyer ought to have been permitted to cross-examine the complainant regarding the details of "strikingly similar" allegations of sexual assault she had made against eight men, including the accused, in a very small community. The Court

reasoned that the questioning did not invoke prohibited lines of reasoning but rather was intended to explore the improbability that such similar acts would have occurred. [34] Assuming without deciding that Anstey reflects the law in this jurisdiction, there is nothing before me to suggest that the complainant has made "strikingly similar" allegations of sexual abuse against anyone else. I am therefore unable to discern how allegations of sexual abuse the complainant may have made against others would have any bearing on her allegations against her father. Further, there is no evidence that R.D.W.'s trial counsel made an application under s. 276 of the Code to allow him to cross-examine the complainant on her history of having been sexually abused by others. Accordingly, on the existing record, this ground of appeal appears to lack merit. Counselling records and "twin myth booklet" [35] Under s. 278.2 of the Code, any record relating to a complainant is not disclosable unless the accused demonstrates the likely relevance of the record. Section 278.3(4) lists a number of assertions that are not sufficient on their own to establish that a record is likely relevant. These include assertions that the record relates to: the credibility of the complainant; counselling the complainant has received or is receiving; allegations of sexual abuse of the complainant by another person; or

the sexual activity of the complainant with any person, including the accused. [36] In this case, R.D.W. applied for production of the complainant's counselling and/or hospital records. His application was not successful. His materials do not identify any basis for production of the specific records at issue. On the existing record, this ground of appeal appears to lack merit. [37] R.D.W. also references something he calls the "twin myth booklet". He asserts the outcome of his trial would have been different if the jury had the booklet. In oral submissions, R.D.W. explained his understanding of a "twin myth" to be akin to "crying wolf", namely that if a complainant repeatedly makes up complainants of sexual abuse, at a certain point, they will no longer be believed. R.D.W.'s understanding of the term "twin myth" is mistaken. [38] As outlined above, the term "twin myths" refers to the reasoning prohibited by s. 276 of the Code, namely that the sexual history of the complainant cannot be used to establish that the complainant: (1) is more likely to have consented to the sexual activity that forms the subject-matter of the charge; or (2) is less worthy of belief. [39] In any event, it is apparent that R.D.W.'s argument about the "twin myth booklet" is simply a restatement of his sexual history argument. For the reasons already given, on the existing record, this ground of appeal

appears to lack merit. The mistrial [40] R.D.W. had an earlier trial that resulted in a mistrial. The reason for the mistrial is not clear. At the re-trial, in cross-examination of the complainant, R.D.W.'s trial counsel referenced her previous testimony from the preliminary inquiry and the first trial. After consultation with the parties, the judge instructed the jury on what use could be made of that previous testimony. [41] R.D.W. suggests that the jury should have been told about the first trial and why it resulted in a mistrial. He submits that this should have occurred at the outset of the re-trial. Whatever the reason for the mistrial, I cannot think of why that would have been an appropriate instruction. Indeed, R.D.W.'s trial counsel participated in developing the direction to the jury regarding the first trial and raised no complaint about the instruction given. This ground of appeal lacks merit. Impact of COVID-19 [42] R.D.W.'s trial took place during the COVID-19 pandemic when various courtroom restrictions were in place, including distancing and masking requirements. R.D.W. submits the jury was hostile towards him from the outset and focused on the pandemic rather than the trial. He also questions the "mood" of the jury and says there was a "jury fight" during deliberations. He suggests that the complainant's physician and his sister were not "summoned" to testify

due to COVID-19 travel restrictions. I am not sure what evidence R.D.W.'s sister could have provided but R.D.W. believes the complainant's physician could have testified regarding whether he observed any injuries on the complainant when she was a child. [43] There is nothing in the material before me to conclude that the COVID-19 pandemic had any impact on the outcome of the trial. [44] There is nothing to demonstrate that the jury was hostile towards R.D.W., was in an inappropriate "mood" to discharge their functions or was not focused on R.D.W.'s case due to the pandemic, or otherwise. [45] The court and sheriffs accommodated the jury's request to be together to discuss the case during lunch and after court. The judge assisted with an apparent conflict in the jury room by reminding the jurors that they should be polite and calm in their deliberations and that everyone is entitled to their own view of the case. The jury then deliberated for two further hours before returning with their verdict. [46] There were no restrictions on compelling material witnesses to testify during the pandemic. In fact, many means of accommodating witnesses were available for use. [47] Finally, I have no reason to think that either the complainant's sister or the complainant's doctor would have given evidence of assistance to R.D.W. I do not know what the complainant's sister may have had to say.

Presumably, R.D.W. wished to call the complainant's doctor to testify that he did not observe any injuries consistent with the complainant's testimony but R.D.W.'s counsel had emphasized the absence of any corroborative evidence in his closing address to the jury in any event. [48] This ground of appeal lacks merit. Ineffective assistance of counsel [49] R.D.W. says that his lawyer did not represent him in the way he wanted to be represented. In his written argument, R.D.W. raises concerns about the scope of counsel's cross-examination of the complainant. He also complains that counsel was busy on his phone during the breaks, lost his temper and did not provide feedback to the trial judge about what to instruct the jury on the mistrial. [50] There is a strong presumption that counsel acted in a reasonably professional manner: R. v. G.D.B., 2000 SCC 22 at para.

27. Respectfully, R.D.W.'s grievances fall short of the type of conduct that would warrant intervention on appeal. [51] R.D.W. has not identified anything that I would classify as an error in the scope of his lawyer's cross-examination of the complainant. The fact that defence counsel may have been busy on his phone or lost his temper does not establish he gave R.D.W. ineffective assistance. Further, it is not true that R.D.W.'s trial counsel did not provide feedback to the judge regarding the instruction to the jury regarding the mistrial. In fact, R.D.W.'s counsel's input was incorporated into the judge's instruction to the jury on the point. [52] In oral submissions, it became apparent that R.D.W. has other concerns about his lawyer's performance, namely his failure to obtain relevant third-party documents, seek permission to cross-examine the complainant on other historic allegations of sexual abuse and call material witnesses. As indicated above, there is nothing in the materials before me to establish that third party records ought to have been produced, the complainant could have been cross-examined on other allegations of sexual abuse she may have made, or the complainant's sister or the complainant's doctor should have been called. [53] It appears that R.D.W. did not clearly identify ineffective assistance of counsel as a potential ground of appeal in support of his

request for legal aid and there is no indication that Legal Aid BC examined the issue. [54] On the existing record, this ground of appeal appears to lack merit. The judge provided an inadequate instruction to the jury in response to the Crown's closing submission [55] During the Crown's closing argument, the Crown said the following: The Crown submits that [the complainant] was a credible, forthright, and honest witness. She has no motive to deceive you, and she has no reason to go through everything she's gone through, including disclosing the most personal and painful memories of her life to a group of strangers here, to a number of police officers in the past, other than for the reason she told you, to see her parents be held accountable for their actions. [56] Counsel for R.D.W.'s co-accused raised a concern with this aspect of the Crown's closing address and proposed a remedy based on R. v. M.B., 2011 ONCA 76. R.D.W.'s counsel echoed the concerns raised by counsel for R.D.W.'s co-accused. After some discussion, all counsel and the judge agreed to the following corrective charge: You should not assume that a person who complains of sexual assault is telling the truth or would not go to trial unless they were telling the truth. Because a person's motives can be hidden, there is a difference between absence of apparent motive and proven absence of motive. Although the defence

raised some possible motives for [the complainant] to fabricate her evidence, depending on your view of the evidence, it is open to you to find an absence of apparent motive for [the complainant] to fabricate. It is only one of the many factors for you to consider in assessing credibility. Regardless of your view of the evidence of a motive of fabricate, the defence is under no obligation to prove a motive to fabricate. The onus is on the Crown at all times to prove its case beyond a reasonable doubt. [Emphasis added.] [57] The underlined passage from the charge comes essentially directly from a suggested charge in M.B. at para. 32 to address the very concern raised by counsel for R.D.W. and his co-accused. [58] If the Crown's closing submission improperly led the jury to believe there was an onus on R.D.W. to prove motive to lie or improperly invited the jury to engage in stereotypical reasoning about the complainant's credibility, that was remedied by the final charge to the jury. This ground of appeal lacks merit. The merits of the proposed sentence appeal [59] I have reviewed the reasons for sentence carefully. The judge imposed a heavy sentence but expressed valid reasons for doing so. Given the egregious nature of the facts the judge found had been proven beyond a reasonable doubt, the sentence was within the range of sentences contemplated by the leading authorities on

sentencing in cases involving child sexual abuse, including R. v. Friesen, 2020 SCC 9. I say this with full awareness that at least part of the offending conduct occurred before the maximum sentence for sexual assault of a child was increased from 10 to 14 years' imprisonment. [60] R.D.W. has not identified any error in principle that had an impact on sentence nor any reason to conclude that the sentence imposed is demonstrably unfit. This ground of appeal appears to lack merit. Conclusion and Disposition [61] R.D.W. meets the financial criteria for an appointment of counsel under s. 684 of the Code. Further, some factors suggest that it may be in the interests of justice to appoint counsel. In particular, if counsel is not appointed, R.D.W. will have to prepare and file a factum and make oral submissions himself. This would be a difficult task, especially since R.D.W. is incarcerated and has no legal training. In addition, R.D.W. is serving a lengthy sentence for a serious crime: R. v. Madrusan, 2004 BCCA 194 at paras. 12-13 (Chambers); R. v. Costello, 2021 BCCA 59 at para. 26. [62] On the other hand, the appeals do not raise novel issues of general importance. Further, Legal Aid BC has examined many of R.D.W.'s proposed grounds of appeal and appears to have concluded, like me, that they lack merit. [63] The one issue that was not reviewed by Legal Aid BC is whether R.D.W.

received ineffective assistance of counsel. On the existing record, there are no grounds to conclude that R.D.W.'s counsel provided ineffective assistance but I am not satisfied that all relevant information is before me. [64] In these circumstances, I consider it appropriate to order that counsel be appointed pursuant to s. 684 for the limited purposes of: 1. Evaluating R.D.W.'s proposed ineffective assistance of counsel grounds of appeal with respect to his conviction appeal; 2. If counsel considers this proposed ground of appeal to have sufficient merit, preparing and arguing a "full" s. 684 application on R.D.W.'s behalf; and 3. If counsel considers it necessary to evaluate the viability of the proposed ineffective assistance of counsel ground of appeal, ordering additional transcripts as necessary. [65] I dismiss R.D.W.'s application for court-appointed counsel to assist him with his other proposed grounds of appeal. [66] I thank R.D.W. and Ms. Richards for their helpful submissions. "The Honourable Justice Marchand"