R. v. Assoun (G.E.),

• Jurisdiction: Nova Scotia
• Judge: Roscoe, Hamilton and Fichaud, JJ.A.
• Neutral Citation: 2006 NSCA 47
• Date: 20 April 2006
• Court: Court of Appeal of Nova Scotia (Canada)

R. v. Assoun (G.E.) (2006), 244 N.S.R.(2d) 96 (CA);

    774 A.P.R. 96

MLB headnote and full text

Temp. Cite: [2006] N.S.R.(2d) TBEd. AP.054

Glen Eugene Assoun (appellant) v. Her Majesty The Queen (respondent)

(CAC 159286; 2006 NSCA 47)

Indexed As: R. v. Assoun (G.E.)

Nova Scotia Court of Appeal

Roscoe, Hamilton and Fichaud, JJ.A.

April 20, 2006.

Summary:

The self-represented accused was convicted of second degree murder in the stabbing death of his former girlfriend. The accused appealed his conviction.

The Nova Scotia Court of Appeal dismissed the appeal.

Barristers and Solicitors - Topic 1804

The prosecutor - Standard of conduct (incl. misconduct) - [See Criminal Law - Topic 4414 ].

Civil Rights - Topic 3157

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to just and fair trial - Section 715(1)(a) of the Criminal Code provided that the preliminary inquiry evidence of a witness who died before the trial may be admitted at trial where the evidence was taken in the accused's presence and the accused had a full opportunity to cross-examine the witness - A witness died before trial, but testified and was cross-examined at the preliminary inquiry - The accused submitted that he did not have a full opportunity to cross-examine the witness, because evidence of her psychic visions and an outstanding charge against her when she gave statements to the police surfaced only after the preliminary inquiry and her death - The trial judge agreed that the accused did not have a full opportunity to cross-examine the witness on her psychic visions and full criminal record at the preliminary inquiry - Accordingly, the preliminary inquiry evidence was not admissible under s. 715 - However, the evidence was admissible under the principled exception to the hearsay rule, as both the KGB statement and the preliminary inquiry evidence were both necessary and reliable - The Nova Scotia Court of Appeal held that the trial judge did not err in admitting the evidence under the principled exception - The inadmissibility of the evidence under s. 715 for want of full cross-examination did not preclude admission under the principled exception, as the s. 715 requirement of full cross-examination was not a requirement for admission under the common law principled exception to the hearsay rule - See paragraphs 53 to 75.

Courts - Topic 583

Judges - Duties - Re reasons for decisions - [See Criminal Law - Topic 4687 ].

Criminal Law - Topic 56

General principles - Protection against self-incrimination - Comment at trial respecting accused's failure to testify - Section 4(6) of the Canada Evidence Act provided that an accused's failure to testify "shall not be made the subject of comment by the judge or by counsel for the prosecution" - A self-represented accused convicted of murder was giving his closing argument before the jury when he impermissibly started giving evidence - The accused had not testified at trial - The trial judge interjected to tell the accused that he could not give evidence, noting that "you didn't take the stand and testify" - The Nova Scotia Court of Appeal held that the reference to the accused not testifying did not breach s. 4(6) - The comment did not suggest that the accused's failure to testify was a "cloak for guilt" or the source of an adverse inference - The trial judge was merely explaining that since the accused chose not to give evidence at trial, he could not give evidence in his closing argument to the jury - See paragraphs 286 to 288.

Criminal Law - Topic 128

General principles - Rights of accused - Right to make full answer and defence - A witness at the accused's preliminary inquiry on a murder charge testified and was cross-examined - The witness previously gave a KGB statement to police - The witness died before trial - The evidence was admitted under the principled exception to the hearsay rule - The accused submitted that the trial judge's failure to edit the KGB statement and preliminary inquiry evidence before the trial began violated his right to make full answer and defence, as he did not know the case he had to meet without the editing - The Nova Scotia Court of Appeal held that there was no evidence that the failure to complete editing until the beginning of the third day of the jury trial adversely affected the conduct of the accused's defence - The accused knew the case he had to meet and was not prejudiced - See paragraphs 41 to 45.

Criminal Law - Topic 4294

Procedure - Trial judge - Duties and functions of - Where accused not represented - A self-represented accused convicted of murder sought a new trial on the ground that the trial judge did not fulfill his duty to assist the accused in the conduct of the trial - The accused was represented by counsel at the disclosure stage, through the various voir dires and for the first two days of trial, when nine Crown witnesses testified - Defence counsel then withdrew - The accused was granted multiple adjournments to obtain new counsel, but insisted on representing himself - The Nova Scotia Court of Appeal dismissed this ground of appeal - The trial judge explained the trial process, burden and standard of proof, the questioning of witnesses, objections, the calling of evidence by the defence, the accused's option to testify, the elements of the offence and the trial judge's role to control the trial - The trial judge provided sufficient assistance to ensure that the accused received a fair trial by bringing out his defence with its full force and effect - The trial judge's frequent interventions into how the accused conducted his case were solely to ensure that proper rules of procedure and evidence, as previously and repeatedly explained to the accused, were followed - See paragraphs 246 to 294.

Criminal Law - Topic 4352

Procedure - Charge or directions - Jury or judge alone - Direction on evidence generally - A witness at the accused's preliminary inquiry on a murder charge testified and was cross-examined - The witness previously gave a KGB statement to police - The witness died before trial - The evidence was admitted under the principled exception to the hearsay rule - The accused submitted that the trial judge's jury charge was deficient, because the judge (1) failed to adequately review the evidence with the jury; (2) failed to adequately caution the jury respecting hearsay evidence; and (3) failed to properly convey the defence position to the jury - The Nova Scotia Court of Appeal held that the judge did not err - The jury charge set out the essential aspects of the evidence of the witness and all of the accused's defence evidence - The judge was not required to review all of the evidence and the jury was properly instructed that the judge would refer to some of the evidence but that it was their recollection of the evidence that was important and should be relied on - Any pieces of evidence not reviewed by the judge did not result in reviewable error - The jury was adequately instructed on the hearsay nature of the evidence and the theory of the defence - See paragraphs 78 to 98.

Criminal Law - Topic 4357

Procedure - Charge or directions - Jury or judge alone - Directions regarding defences and theory of the defence - An accused convicted of murder submitted that the trial judge erred in failing to leave the included offence of manslaughter with the jury, because there was sufficient evidence of intoxication and provocation to provide an evidentiary basis for the instruction - The Nova Scotia Court of Appeal held that there was no air of reality to the defences of intoxication and provocation - There was no issue of provocation or intoxication raised at trial - The accused's defence was complete denial, backed up by alibi evidence that he was somewhere else at the time - There was no evidence of intoxication or provocation - See paragraphs 215 to 224.

Criminal Law - Topic 4357

Procedure - Charge or directions - Jury or judge alone - Directions regarding defences and theory of the defence - [See Criminal Law - Topic 4352 ].

Criminal Law - Topic 4386

Procedure - Charge or directions - Jury or judge alone - Judge's duty to determine if defence available on evidence - [See first Criminal Law - Topic 4357 ].

Criminal Law - Topic 4414

Procedure - Opening and closing addresses - Summing up - Counsel - Closing address - Reference to evidence not admitted - The self-represented accused was convicted of second degree murder - The accused submitted that Crown counsel's inappropriate trial conduct denied him a fair trial - Crown counsel objected to how the accused examined witnesses and interjected during the accused's closing argument to the jury when the accused began giving evidence - The Nova Scotia Court of Appeal stated although the Crown's role precluded winning and losing, it was an adversarial process and counsel was permitted to act as an advocate in vigorously pursuing a legitimate result - A self-represented accused was bound by the rules of evidence - The court stated that "the rules of evidence and procedure are safeguards to ensure a fair trial. The Crown's objections to [the accused's] inappropriate questions to witnesses, giving of evidence from the counsel table, and relating facts not in evidence during his closing address, were legitimate efforts by the Crown to see that the trial was fair." - See paragraphs 225 to 245.

Criminal Law - Topic 4687

Procedure - Judgments and reasons for judgment - Reasons for judgment - Time for - Upon the completion of a voir dire, the trial judge gave a one minute oral decision admitting into evidence the KGB statement and preliminary inquiry evidence of a witness who died before trial - Months after the jury found the accused guilty and the accused filed a notice of appeal, the trial judge filed written reasons for admitting the evidence - The accused submitted that, inter alia, the written reasons should be ignored, arguing that the reasons were nothing more than advocacy directed to the Court of Appeal to support the decision on the voir dire (i.e., reasons in response to notice of appeal to buttress the voir dire decision) - The Nova Scotia Court of Appeal held that there was nothing wrong with a trial judge rendering a brief oral decision with written reasons to follow - The trial judge always intended to provide written reasons - This was not a case of a trial judge attempting to buttress his or her decision for the purpose of appeal in light of the issues raised in the notice of appeal - The notice of appeal did nothing to alert the trial judge of any particular matter that needed buttressing for appeal purposes - See paragraphs 46 to 52.

Criminal Law - Topic 4952

Appeals - Indictable offences - New trials - Grounds - Conduct by Crown - [See Criminal Law - Topic 4414 ].

Criminal Law - Topic 4970

Appeals - Indictable offences - Powers of Court of Appeal - Receiving fresh evidence - General - A self-represented accused convicted of murder sought to introduce fresh evidence on his conviction appeal - The Nova Scotia Court of Appeal denied admission of the fresh evidence - Without commenting on whether the due diligence requirement was met, the application failed where the evidence (to show that a third party committed the murder) was inadmissible and could not have affected the result - The tendered evidence was not in admissible form - All of it was hearsay, some "multi-tiered", precluding the testing of the credibility of the evidence - There was no evidence to connect the third parties, who the accused alleged could have committed the murder, to the murder - Admission of the fresh evidence was not warranted on the ground that the accused was denied a fair trial - See paragraphs 295 to 323.

Criminal Law - Topic 5045

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - What constitutes a substantial wrong or miscarriage of justice - [See first Criminal Law - Topic 5209 , second Evidence - Topic 1527 and Evidence - Topic 7112 ].

Criminal Law - Topic 5202

Evidence and witnesses - Admissibility - Whether relevant and material - A witness testified that she overheard a portion of a conversation wherein the accused admitted killing the victim - The accused submitted that the trial judge erred in admitting the evidence, as it was neither relevant nor material absent the contextual words preceding or following the overheard statement - The accused alleged the limited probative value of the evidence was outweighed by its prejudicial effect - The Nova Scotia Court of Appeal held that the trial judge did not err in admitting the evidence - This was not a case of missing contextual words before or after the statement that were needed to ensure that an inculpatory statement was not in fact exculpatory - The accused offered no context in which the overheard statement was other than an admission that he killed the victim - See paragraphs 188 to 196.

Criminal Law - Topic 5202

Evidence and witnesses - Admissibility - Whether relevant and material - The accused was convicted of murder in the stabbing death of his former girlfriend - The trial judge admitted evidence of the abusive relationship between the accused and girlfriend, the accused's possession of a gun, his assaults against the girlfriend and his threats to shoot her - The accused submitted that the evidence of the gun was irrelevant because the murder was committed with a knife - The Nova Scotia Court of Appeal held that the evidence was admissible - The evidence was relevant to the accused's hostile intent, motive and state of mind and relevant to the girlfriend's fear in the face of the accused's possession of a gun and the threats and assaults - The evidence was not admitted to show character or propensity and the trial judge clearly instructed the jury not to use the evidence improperly - Evidence of the girlfriend's state of mind and the state of the relationship between the accused and his girlfriend was relevant to motive and identity - See paragraphs 198 to 201.

Criminal Law - Topic 5209

Evidence and witnesses - Admissibility and relevancy - Prejudicial evidence - An accused convicted of murdering his former girlfriend submitted that the trial judge erred in admitting too many of the girlfriend's hearsay statements, because the sheer volume or repetitive and redundant evidence prejudiced him, and erred in admitting hearsay evidence of two other witnesses respecting statements made to them by the girlfriend - The Nova Scotia Court of Appeal held that given the number of hearsay statements (10), the variety of issues they addressed and the fact that trial counsel did not raise the issue of repetitiveness, the trial judge did not err in admitting too many statements into evidence to the prejudice of the accused - The trial judge erred in admitting the hearsay evidence of the other two witnesses, but applied the curative provision of s. 686(1)(b)(iii) of the Criminal Code to dismiss the appeal notwithstanding the error, as there was no miscarriage of justice - The verdict would necessarily have been the same had the evidence not been admitted - See paragraphs 99 to 115.

Criminal Law - Topic 5209

Evidence and witnesses - Admissibility and relevancy - Prejudicial evidence - The accused was convicted of murdering his former girlfriend - A prostitute testified that the accused admitted killing his girlfriend (inculpatory evidence) - The prostitute also testified as to the context in which the admission was made, which was when the accused sexually assaulted her by forced oral sex and vaginal intercourse (narrative evidence) - The trial judge ruled that both the inculpatory and narrative evidence were admissible, with a caution to the jury not to use the narrative evidence to reason that the accused was the type of person who would commit murder - The Nova Scotia Court of Appeal held that the trial judge did not err in admitting both the inculpatory and narrative evidence - There was no error in finding that the probative value of the narrative evidence outweighed its prejudicial effect - Absent the narrative evidence explaining the context in which the alleged admission was made, the jury would not have been able to give the evidence any weight - See paragraphs 170 to 182.

Criminal Law - Topic 5209

Evidence and witnesses - Admissibility and relevancy - Prejudicial evidence - The accused was convicted of murdering his former girlfriend by stabbing her - The trial judge admitted evidence of a knife with a broken tip found near the murder scene 1.5 years later - One witness had testified that the accused admitted stabbing the girlfriend and that the tip of the knife had broken - Witnesses also testified as to the accused's habit of carrying a knife - The accused submitted that the knife evidence was inadmissible, as its prejudicial effect outweighed its probative value - The Nova Scotia Court of Appeal held that the trial judge did not err in admitting the evidence - The court stated that "the knife itself was real evidence that coincided with the [accused's] description of the murder weapon. The evidence, although circumstantial, if accepted by the jury, was highly relevant to the issue of identity. The evidence of all the witnesses who testified about [the accused's] habit of carrying a knife is similarly relevant to the issues of opportunity and ability to carry out the murder in the manner in which it was committed." - The probative value of the evidence far outweighed its prejudicial effect - See paragraphs 202 to 205.

Criminal Law - Topic 5259

Evidence and witnesses - Admissions - What constitute - [See first Criminal Law - Topic 5202 ].

Criminal Law - Topic 5404

Evidence and witnesses - Witnesses - Credibility - An accused convicted of murder submitted that the trial judge erred in failing to give Vetrovec warnings to the jury respecting the evidence of three Crown witnesses of unsavoury character, including a jailhouse informant - The judge did not give a clear sharp warning cautioning the jury about the dangers of accepting the evidence of any of the disreputable witnesses without some corroborating evidence - Neither counsel raised the issue of a Vetrovec warning - However, the trial judge gave the standard instruction respecting the credibility of witnesses and also advised the jury to consider the criminal records of the witnesses when assessing their credibility - The judge then listed the criminal records of the witnesses - The Nova Scotia Court of Appeal rejected the submission that a Vetrovec warning was required in every case where a jailhouse informant testified - Given the other Crown evidence, there were insufficient difficulties with the credibility of the jailhouse informant to require a Vetrovec warning - The jury was adequately apprised of the characteristics of the informant which detracted from his credibility - The evidence of the second witness was not crucial to the Crown's case and the defects in his credibility would have been obvious to the jury - The third witness, a crack using prostitute, was not an unsavoury or disreputable witness who required a Vetrovec warning - See paragraphs 143 to 168.

Criminal Law - Topic 5420.1

Evidence and witnesses - Witnesses - Admissibility of evidence previously taken where witness unavailable or unable to testify - [See Civil Rights - Topic 3157 ].

Criminal Law - Topic 5494

Evidence and witnesses - Motive or design - Admissibility - [See second Criminal Law - Topic 5202 ].

Evidence - Topic 1176

Relevant facts - Relevance and materiality - Res gestae (incl. narrative) - General - [See second Criminal Law - Topic 5209 ].

Evidence - Topic 1527

Hearsay rule - Hearsay rule exceptions and exclusions - General - Where admission of hearsay necessary and evidence reliable - [See Civil Rights - Topic 3157 ].

Evidence - Topic 1527

Hearsay rule - Hearsay rule exceptions and exclusions - General - Where admission of hearsay necessary and evidence reliable - An accused convicted of murdering his former girlfriend submitted that the trial judge erred in failing to undertake a principled analysis concerning the necessity and reliability of each individual hearsay statement by the girlfriend - The Nova Scotia Court of Appeal held that, assuming that the trial judge erred in failing to consider each hearsay statement separately, the error resulted in no miscarriage of justice because there was no reason why each separate statement would not have been admitted and, in any event, the verdict would necessarily have been the same even if the statements were inadmissible - Accordingly, the court applied the curative provisions of s. 686(1)(b)(iii) of the Criminal Code to dismiss the appeal notwithstanding the error - See paragraphs 116 to 131.

Evidence - Topic 7112

Opinion evidence - Nonexpert evidence - Admissibility - The accused was convicted of murdering his former girlfriend, a prostitute - The girlfriend was seen by a witness getting into a red Blazer or Jimmy - A witness testified that the accused drove a red Chev Scotsdale truck, which looked similar to the Blazer or Jimmy - The accused submitted that the evidence was inadmissible, as the witness was not an expert - The Nova Scotia Court of Appeal held that the evidence, but for relevance, was admissible - The evidence was innocuous, mostly part of the narrative - The court stated that "lay witnesses are entitled to express an opinion about the condition of a person or a thing that they have observed" - Although the evidence may have been irrelevant and inadmissible, the court stated that it would invoke s. 686(1)(b)(iii) of the Criminal Code to dismiss the appeal on the ground that no miscarriage of justice resulted - See paragraphs 206 to 211.

Practice - Topic 6037

Judgments and orders - Reasons for judgment after trial - Effect of giving judgment "with reasons to follow" - [See Criminal Law - Topic 4687 ].

Practice - Topic 9031

Appeals - Evidence on appeal - Admission of "new evidence" - [See Criminal Law - Topic 4970 ].

Cases Noticed:

R. v. Sheppard (C.), [2002] 1 S.C.R. 869; 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50, not appld. [para. 46].

R. v. Quinn (F.P.) (2004), 372 A.R. 223 (Q.B.), refd to. [para. 49].

Crocker v. Sipus (1992), 57 O.A.C. 310; 95 D.L.R.(4th) 360 (C.A.), refd to. [para. 50].

R. v. P.S.B. (2004), 222 N.S.R.(2d) 26; 701 A.P.R. 26; 2004 NSCA 25, refd to. [para. 54].

R. v. Hawkins (K.R.) and Morin (C.), [1996] 3 S.C.R. 1043; 204 N.R. 241; 96 O.A.C. 81, refd to. [para. 57].

R. v. Smith (A.L.), [1992] 2 S.C.R. 915; 139 N.R. 323; 55 O.A.C. 321, refd to. [para. 60].

R. v. Starr (R.D.), [2000] 2 S.C.R. 144; 258 N.R. 250; 148 Man.R.(2d) 161; 224 W.A.C. 161, refd to. [para. 61].

R. v. K.G.B. (1993), 148 N.R. 241; 61 O.A.C. 1; 79 C.C.C.(3d) 257 (S.C.C.), refd to. [para. 68].

R. v. Czibulka (L.) (2004), 190 O.A.C. 1; 189 C.C.C.(3d) 199 (C.A.), refd to. [para. 73].

R. v. MacDonald (L.R.) (2000), 184 N.S.R.(2d) 1; 573 A.P.R. 1 (C.A.), refd to. [para. 76].

R. v. Malott (M.A.), [1998] 1 S.C.R. 123; 222 N.R. 4; 106 O.A.C. 132, refd to. [para. 80].

R. v. Parsons (G.J.) (1996), 146 Nfld. & P.E.I.R. 210; 456 A.P.R. 210 (Nfld. C.A.), dist. [para. 106].

R. v. R.P. (1990), 58 C.C.C.(3d) 334 (Ont. H.C.), refd to. [para. 116].

R. v. M.R., [2005] O.A.C. Uned. 144; 195 C.C.C.(3d) 26 (C.A.), refd to. [para. 135].

R. v. Vetrovec; R. v. Gaja, [1982] 1 S.C.R. 811; 41 N.R. 606, refd to. [para. 144].

R. v. T.L. - see R. v. Landry (T.).

R. v. Landry (T.) (2003), 214 N.S.R.(2d) 229; 671 A.P.R. 229; 2003 NSCA 44, refd to. [para. 144].

R. v. Brooks (F.A.), [2000] 1 S.C.R. 237; 250 N.R. 103; 129 O.A.C. 205, refd to. [para. 152].

R. v. Chandra (R.) (2005), 367 A.R. 290; 346 W.A.C. 290 (C.A.), refd to. [para. 161].

R. v. Sauvé (J.) et al. (2004), 182 O.A.C. 58; 182 C.C.C.(3d) 321 (C.A.), leave to appeal refused (2005), 336 N.R. 195; 204 N.R. 395 (S.C.C.), refd to. [para. 161].

R. v. Pittman (G.W.) (1993), 117 N.S.R.(2d) 271; 324 A.P.R. 271 (C.A.), affd. [1994] 1 S.C.R. 148; 163 N.R. 71; 129 N.S.R.(2d) 81; 362 A.P.R. 81, refd to. [para. 162].

R. v. Handy (J.), [2002] 2 S.C.R. 908; 290 N.R. 1; 160 O.A.C. 201, refd to. [para. 179].

R. v. F.F.B., [1993] 1 S.C.R. 697; 148 N.R. 161; 120 N.S.R.(2d) 1; 332 A.P.R. 1, refd to. [para. 186].

R. v. Ferris (J.M.), [1994] 3 S.C.R. 756; 174 N.R. 158; 162 A.R. 108; 83 W.A.C. 108, affing. (1994), 149 A.R. 1; 63 W.A.C. 1 (C.A.), refd to. [para. 191].

R. v. Hunter (N.) (2001), 146 O.A.C. 390; 155 C.C.C.(3d) 225 (C.A.), refd to. [para. 191].

R. v. Lewis, [1979] 2 S.C.R. 821; 27 N.R. 451, refd to. [para. 200].

R. v. Kinkead (A.) (2003), 176 O.A.C. 271; 178 C.C.C.(3d) 534 (C.A.), refd to. [para. 204].

R. v. Graat, [1982] 2 S.C.R. 819; 45 N.R. 451, refd to. [para. 209].

R. v. Gunning (J.J.) (2005), 333 N.R. 286; 211 B.C.A.C. 51; 349 W.A.C. 51; 2005 SCC 27, refd to. [para. 216].

R. v. Lemky (T.R.) (1996), 194 N.R. 1; 73 B.C.A.C. 1; 120 W.A.C. 1; 105 C.C.C.(3d) 137 (S.C.C.), refd to. [para. 220].

R. v. Regan (G.A.), [2002] 1 S.C.R. 297; 282 N.R. 1; 201 N.S.R.(2d) 63; 629 A.P.R. 63, refd to. [para. 226].

Boucher v. R., [1955] S.C.R. 16, refd to. [para. 226].

R. v. Cook (D.W.), [1997] 1 S.C.R. 1113; 210 N.R. 197; 188 N.B.R.(2d) 161; 480 A.P.R. 161, refd to. [para. 227].

R. v. Wolkins (R.D.) (2005), 229 N.S.R.(2d) 222; 725 A.P.R. 222; 2005 NSCA 2, refd to. [para. 243].

R. v. Halnuck (P.J.) (1996), 151 N.S.R.(2d) 81; 440 A.P.R. 81 (C.A.), affd. (1997), 209 N.R. 4; 158 N.S.R.(2d) 125; 466 A.P.R. 125 (S.C.C.), refd to. [para. 259].

R. v. Phillips (M.A.) (2003), 320 A.R. 172; 288 W.A.C. 172 (C.A.), affd. [2003] 2 S.C.R. 623; 311 N.R. 94; 339 A.R. 50; 312 W.A.C. 50, refd to. [para. 260].

R. v. Hazout (M.) et al. (2005), 201 O.A.C. 235 (C.A.), refd to. [para. 262].

R. v. Snow (D.A.) (2004), 191 O.A.C. 212; 190 C.C.C.(3d) 317 (C.A.), refd to. [para. 265].

R. v. Potvin, [1989] 1 S.C.R. 525; 93 N.R. 42; 21 Q.A.C. 258, refd to. [para. 287].

R. v. R.C.C. (1996), 151 N.S.R.(2d) 34; 440 A.P.R. 34 (C.A.), refd to. [para. 287].

R. v. Diu (A.B.) et al. (2000), 133 O.A.C. 201; 144 C.C.C.(3d) 481 (C.A.), refd to. [para. 287].

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181, refd to. [para. 298].

May et al. v. Ferndale Institution et al. (2005), 343 N.R. 69; 220 B.C.A.C. 1; 362 W.A.C. 1; 2005 SCC 82, refd to. [para. 299].

R. v. Warsing (K.L.), [1998] 3 S.C.R. 579; 233 N.R. 319; 115 B.C.A.C. 214; 189 W.A.C. 214, refd to. [para. 300].

R. v. G.D.B., [2000] 1 S.C.R. 520; 253 N.R. 201; 261 A.R. 1; 225 W.A.C. 1, refd to. [para. 300].

R. v. Owen (T.), [2003] 1 S.C.R. 779; 304 N.R. 254; 173 O.A.C. 285, refd to. [para. 300].

R. v. 1275729 Ontario Inc. et al. (2005), 205 O.A.C. 359 (C.A.), refd to. [para. 300].

R. v. MacMillan - see R. v. McMillan.

R. v. McMillan, [1977] 2 S.C.R. 824; 15 N.R. 20; 23 C.C.C.(2d) 160, refd to. [para. 301].

R. v. Grandinetti (C.H.), [2005] 1 S.C.R. 27; 329 N.R. 28; 363 A.R. 1; 343 W.A.C. 1, refd to. [para. 301].

R. v. Arcangioli (G.), [1994] 1 S.C.R. 129; 162 N.R. 280; 69 O.A.C. 26, refd to. [para. 301].

R. v. O'Brien, [1978] 1 S.C.R. 591; 16 N.R. 271, refd to. [para. 302].

R. v. Dell (C.M.) (2005), 195 O.A.C. 355 (C.A.), refd to. [para. 302].

R. v. Kelly (R.W.) (1999), 213 N.B.R.(2d) 1; 545 A.P.R. 1 (C.A.), refd to. [para. 302].

R. v. Taillefer (B.), [2003] 3 S.C.R. 307; 313 N.R. 1, refd to. [para. 316].

R. v. W.W. and I.W. (1995), 84 O.A.C. 241; 100 C.C.C.(2d) 225 (C.A.), refd to. [para. 316].

R. v. Peepeetch (K.D.) (2003), 238 Sask.R. 14; 305 W.A.C. 14; 2003 SKCA 76, refd to. [para. 316].

R. v. Klymchuk (K.) (2005), 205 O.A.C. 57; 203 C.C.C.(3d) 341 (C.A.), refd to. [para. 324].

Statutes Noticed:

Canada Evidence Act, R.S.C. 1985, c. C-5, sect. 4(6) [para. 286].

Counsel:

Jerome P. Kennedy, Q.C., for the appellant;

Dan Giovannetti, Q.C., for the respondent.

This appeal was heard on January 17, 2006, at Halifax, N.S., before Roscoe, Hamilton and Fichaud, JJ.A., of the Nova Scotia Court of Appeal.

On April 20, 2006, the following judgment was delivered by the Court.