Confirmation of sex assault conviction explained

Law360 Canada (November 21, 2024, 1:23 PM EST) --

John L. Hill

It has been said that sometimes friendships end, and you have to give up on people — not because you don’t care, but because they don’t. The Manitoba Court of Appeal decision in R. v. Madder, 2024 MBCA 80, deals with the breakup of a friendship that had been ongoing for years and concluded that Christopher Madder, the appellant, did not care enough about the friendship to restrain himself from objectionable conduct.

The Madder family had become friends with the H family and socialized regularly together for years. The families vacationed together and frequently spent time at the H family cabin.

Madder had become adept at providing massages for his wife and daughter. CH asked Madder to give her massages as well. CH also asked that Madder use his skills to help her daughter MH, who had sustained a sports injury. MH’s sibling, SM, who was a transgender man, also wanted to receive massages.

The friendship between the families continued until both MH and SM complained that Christopher Madder had gone too far by touching their buttocks and breasts. The siblings told their mother that these actions had been ongoing for years. They then complained to the RCMP. Charges were laid. After a five-day trial, Madder was convicted of sexually assaulting MH and SM and sentenced to five years imprisonment. The family friendships ended.

On appeal, Madder said the trial judge failed to consider that he had obtained consent from the siblings. MH had told police that she felt the touching was inappropriate in January 2018 when she was 19 years old. The trial court had not considered that a text message sent in January asked Madder to stop by to give her a massage. Madder also had testified that he told MH that if she ever felt uncomfortable, she should speak up, but she failed to do so. Madder expected he had implied consent to continue massages as he had done before.

Even though MH had testified that her original estimate of 15 occasions of inappropriate touching had increased to 40 at trial, the trial judge’s analysis under R. v. W(D), [1991] 1 SCR 742 allowed her to accept the siblings’ evidence and reject Madder’s denial.

On appeal, Madder argued that the trial judge had misapprehended his evidence. However, the appeal court said that a misapprehension of evidence must be a readily obvious error that played an essential part in the reasoning process (R. v. Jovel, 2019 MBCA 116) and not simply a different interpretation of the evidence (R. v. Lee, 2010 SCC 52). It is not up to an appeal court to usurp the function of a trial judge by a microscopic examination of the trial judge’s findings (R. v. Cly, 2008 SCC 2).

Despite Madder’s denial, the trial judge had accepted that when he asked if MH felt uncomfortable, he was not referring to pain. It was an indirect acknowledgement of his desire to do inappropriate touching. Further, the trial judge did not make an adverse finding of MH’s credibility when she said she could have sent a text desiring another massage in January 2018. It was not interpreted as accepting all the touching that had preceded it. The trial judge refused to be drawn into making an improper use of evidence that would involve acceptance of the prohibited myth that a sexual victim would necessarily avoid a perpetrator (R. v. ARD, 2017 ABCA 237, aff’d R. v. ARJD​​​​​​, 2018 SCC 6).

Madder further complained that the trial judge scrutinized his testimony more closely than she did the siblings’. This argument also failed since it cannot be used as a standalone ground of appeal (R. v. Buboire, [2024] M.J. No. 35; R. v. Silaphet, 2024 MBCA 58; R. v. Mehari, 2020 SCC 40). A trial judge’s evaluation must be given deference and only interfered with when any reasonable view of the evidence cannot support it.

The Court of Appeal dismissed the conviction appeal and then looked at the propriety of a five-year sentence.

It was found that MH started receiving massages at age 15, with sexual touching beginning the following year and continuing until she was 19. Sexual touching of SM started when he was 17, intensified when he was 18 and continued until he was 21. Madder was between 41 and 45 years old while the massages were conducted.

A presentence report stated that Madder did not accept responsibility for his actions or empathy towards his victims. Madder was credited with having no criminal record and remained crime-free while on bail. Nonetheless, an appeal of his sentence was denied.

The appeal court agreed that the factors enunciated in R. v. Sidwell, 2015 MBCA 56, were considered correctly: the age disparity between the victims and the perpetrator, breach of a position of trust, the conduct involved, the frequency of offending, whether threats or manipulation were involved and the impact on the victims. A starting point of four to five years was appropriate.

Even if Madder is later found to have been wrongly convicted, no one would dispute that it was time for the family friendships to end.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.

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