R. v. B.(J.N.), [1991] 1 SCR 66

R. v. B.(J.N.), [1991] 1 S.C.R. 66

J.N.B.                                                                                                                                Appellant

v.

Her Majesty The Queen    Respondent

indexed as:  R. v. B.(J.N.)

File N^o.:  21386.

1991:  January 23.

Present:  Sopinka, Gonthier, Cory, McLachlin and Stevenson JJ.

on appeal from the court of appeal for manitoba

    Criminal law ‑‑ Sexual assault ‑‑ Evidence ‑‑ Credibility ‑‑ Trial judge convicting accused on basis of complainant's testimony ‑‑ Whether conviction can be supported by the evidence ‑‑ Whether conviction unreasonable ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 686(1) (a)(i).

Statutes and Regulations Cited

Criminal Code , R.S.C., 1985, c. C‑46 , s. 686(1) (a)(i).

    APPEAL from a judgment of the Manitoba Court of Appeal (1989), 56 Man. R. (2d) 215, [1989] 3 W.W.R. 86, 48 C.C.C. (3d) 71, 68 C.R. (3d) 145, 41 C.R.R. 361, affirming the accused's convictions on charges of indecent assault and sexual assault.  Appeal dismissed.

    Joe Aiello and Dave Phillips, for the appellant.

    G. Lawlor, for the respondent.

//Sopinka J.//

    The judgment of the Court was delivered orally by

    Sopinka J. ‑‑ It will not be necessary to call on you Mr. Lawlor.  We are prepared to give judgment in this appeal.

    Having reviewed and considered the evidence and the findings of the trial judge we are of the opinion that the judgment of the trial judge is not unreasonable and is not one that cannot be supported by the evidence within the meaning of s. 686(1) (a)(i) of the Criminal Code , R.S.C., 1985, c. C‑46 .

    The trial judgment was based substantially on an express finding of credibility with respect to the evidence of the complainant.  There is nothing in the record to indicate that there was any inherent improbability in her evidence or any other basis which would justify interference by an appellate court with the findings of the trial judge.  Moreover there was some support for her testimony in other evidence which was accepted by the trial judge.

    In view of this conclusion it is unnecessary to consider whether it was appropriate for the Court of Appeal to take into account the failure of the accused to testify and we do not do so.

    Accordingly the appeal is dismissed.

    Judgment accordingly.

    Solicitors for the appellant:  Dobrowolski, Clay, Aiello & Phillips, Winnipeg.

    Solicitor for the respondent:  The Attorney General of Manitoba, Winnipeg.