R. v. Brenton, (1990) 80 Nfld. & P.E.I.R. 247 (NFPC)

JudgeHandrigan, P.C.J.
CourtNewfoundland and Labrador Provincial Court (Canada)
Case DateJanuary 04, 1990
JurisdictionNewfoundland and Labrador
Citations(1990), 80 Nfld. & P.E.I.R. 247 (NFPC)

R. v. Brenton (1990), 80 Nfld. & P.E.I.R. 247 (NFPC);

    249 A.P.R. 247

MLB headnote and full text

R. v. Eugene Robert Brenton

(1989 G.B. No. 462)

Indexed As: R. v. Brenton

Newfoundland Provincial Court

Judicial Centre of Grand Bank

Handrigan, P.C.J.

January 4, 1990.

Summary:

The accused was charged with sexually assaulting an eight year old boy. The boy complained that the accused lured him to his apartment under a pretext of giving him a cap gun and fondled him. The accused denied the assault.

The Newfoundland Provincial Court convicted the accused upon believing the boy's testimony.

Criminal Law - Topic 655

Sexual offences - General rules - Corroboration - The Newfoundland Provincial Court stated that although the legal requirement for corroboration in sexual cases was removed by s. 274 of the Criminal Code, a trial judge should in appropriate circumstances instruct himself or the jury about the inherent frailties of such evidence and the desirability of corroborative evidence - Similarly, the uncorroborated, unsworn testimony of children should be treated with caution - See paragraphs 23 to 30.

Criminal Law - Topic 5212

Evidence - Relevancy - Similar acts - [See Evidence - Topic 1256].

Criminal Law - Topic 5463

Evidence - Evidence of children - Corroboration - [See Criminal Law - Topic 655].

Criminal Law - Topic 5466

Evidence - Evidence of children - Warning to jury of danger of reliance on - [See Criminal Law - Topic 655].

Evidence - Topic 1256

Relevant facts - Relevance and materiality - Similar acts - To prove criminal conduct - The Newfoundland Provincial Court set out the three-step process for determining whether similar fact evidence should be admitted, as follows: (1) to determine whether the evidence is relevant to an issue in the case; (2) to determine whether the circumstances of the case are sufficiently similar to be powerfully probative on that issue; and (3) to determine whether the probative value outweighs the potential prejudicial effect upon the accused, if such evidence is admitted - On a charge of sexual assault against an eight year old boy evidence of another boy, aged 12 (the complainant against the accused in an incident a few days earlier), was admitted - See paragraphs 31 to 40.

Evidence - Topic 4543

Witnesses - Attendance and oath - Oath - Child of tender years - The Newfoundland Provincial Court allowed the testimony of two male complainants in sexual assault cases, aged eight and 11, to testify upon promising to tell the truth (where it was determined that neither understood an oath or affirmation) - The court went on to state that uncorroborated evidence of such witnesses should be treated with caution, notwithstanding the removal of the requirement of corroboration in s. 274 of the Criminal Code - See paragraphs 23 to 30.

Cases Noticed:

R. v. Chase, [1987] 2 S.C.R. 293; 80 N.R. 247; 82 N.B.R.(2d) 229; 208 A.P.R. 229; 37 C.C.C.(3d) 97, consd. [para. 20].

R. v. Saulnier (1989), 89 N.S.R.(2d) 208; 227 A.P.R. 208; 48 C.C.C.(3d) 301, appld. [para. 29].

R. v. Tennant and Naccarato (1975), 23 C.C.C.(2d), appld. [para. 29].

R. v. Derouet (1989), 73 Nfld. & P.E.I.R. 320; 229 A.P.R. 320, consd. [para.33].

R. v. Dobbin (1987), 65 Nfld. & P.E.I.R. 354; 199 A.P.R. 354 (Nfld. S.C.T.D.), consd. [para. 33].

R. v. Pottle (1978), 16 Nfld. & P.E.I.R. 372; 42 A.P.R. 372 (Nfld. C.A.), affing. 16 Nfld. & P.E.I.R. 388; 42 A.P.R. 388, consd. [para. 33].

R. v. Green, [1988] 1 S.C.R. 228; 82 N.R. 194; 52 Man.R.(2d) 64; 40 C.C.C.(3d) 354, reving. 42 Man.R.(2d) 81; 40 C.C.C.(3d) 333, appld. [para. 35].

Statutes Noticed:

Canada Evidence Act, R.S.C. 1985, c. C-5, sect. 16 [para. 26].

Criminal Code, R.S.C. 1985, c. C-46, sect. 271(1) [para. 1]; sect. 274 [para. 29].

Evidence Act (Canada) - see Canada Evidence Act.

Authors and Works Noticed:

McWilliams, Canadian Criminal Evidence (3rd Ed.) [para. 34].

Counsel:

Terry D. White, for the Crown;

Donald A. MacBeath, for the accused.

This case was heard before Handrigan, P.C.J., of the Newfoundland Provincial Court, Judicial Centre of Grand Bank, who delivered the following judgment on January 4, 1990:

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