R. v. C.G.F., 2003 NSCA 136

• Judge: Roscoe, Cromwell and Saunders, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: October 06, 2003
• Jurisdiction: Nova Scotia
• Citations: 2003 NSCA 136;(2003), 219 N.S.R.(2d) 277 (CA)

R. v. C.G.F. (2003), 219 N.S.R.(2d) 277 (CA);

 692 A.P.R. 277

MLB headnote and full text

Temp. Cite: [2003] N.S.R.(2d) TBEd. DE.014

F.(C.G.) (appellant) v. Her Majesty The Queen (respondent)

(CAC 194257; 2003 NSCA 136)

Indexed As: R. v. C.G.F.

Nova Scotia Court of Appeal

Roscoe, Cromwell and Saunders, JJ.A.

December 10, 2003.

Summary:

The accused was convicted of four charges: sexual touching, sexual assault and two counts of failing to be of good behaviour in breach of two undertakings. The offences arose out of a single sexual incident involving a 13 year old girl. The accused appealed, arguing that all the charges ought to have been judicially stayed because he was arbitrarily detained after his arrest and the trial judge made errors in law concerning the elements of the offences. The accused also argued that the Kienapple principle prevented a conviction for both sexual assault and sexual touching arising out of the same incident and a conviction on two counts of breach of undertaking arising out of the same underlying wrongful act.

The Nova Scotia Court of Appeal allowed the appeal in part. The court set aside the sexual touching conviction and entered a conditional stay on the basis of the Kienapple principle, but held that in the circumstances of this case the accused could theoretically be convicted of two counts of breach of undertaking. The court however, set aside the convictions for breach of undertaking because the judge erred in law by failing to make a reasoned finding on an essential point, namely that the breaches occurred while the undertakings were in force. The court declined to disturb the sexual assault conviction, where the trial judge correctly found that there had been no arbitrary detention and did not make any of the errors of law alleged by the accused with respect to that conviction.

Criminal Law - Topic 80

General principles - Res judicata (multiple convictions for same subject matter precluded) - Circumstances when defence may be raised - The accused was convicted of four charges: sexual touching, sexual assault and two counts of failing to be of good behaviour in breach of two undertakings - The offences arose out of a single sexual incident involving a 13 year old girl - The accused appealed, relying on the Kienapple principle - The Nova Scotia Court of Appeal set aside the sexual touching conviction and entered a conditional stay on the basis of the Kienapple principle - The court noted that there were two distinct undertakings and the convictions for two counts of breach of undertaking, in the circumstances of this case, would not offend the Kienapple principle - See paragraphs 38 to 52.

Criminal Law - Topic 6985

Recognizances and undertakings - Undertakings - Breach - The accused was convicted of four charges: sexual touching, sexual assault and two counts of failing to be of good behaviour in breach of two undertakings - The offences arose out of a single sexual incident involving a 13 year old girl - The accused appealed, arguing that the verdict was unreasonable and not supported by the evidence - The Nova Scotia Court of Appeal set aside the convictions for breach of undertaking where the trial judge erred in law by failing to make a reasoned finding on an essential point, namely that the breaches occurred while the undertakings were in force - See paragraphs 2, 13, 14, 17 and 18.

Criminal Law - Topic 8719.1

Young offenders - Detention - General - The accused was convicted of offences arising out of a single sexual incident involving a 13 year old girl - The accused was 15 at the time of the incident - The accused appealed, arguing that the charges should have been judicially stayed because he was arbitrarily detained after his arrest - Following his arrest while being held in a cell, a justice of the peace read the charges to the accused and remanded him on the request of the police for a show cause hearing four days later (i.e., after the Easter weekend) - The accused claimed that he was illegally remanded without a "meaningful hearing" which made the remand unlawful and his detention arbitrary and contrary to the Charter - The Nova Scotia Court of Appeal rejected the accused's argument, holding that the remand was lawful having regard to ss. 515(1) and 516(1) of the Criminal Code - See paragraphs 4 and 5 and 19 to 34.

Cases Noticed:

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352; 63 C.C.C.(3d) 397; 3 C.R.(4th) 202, refd to. [para. 17].

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, refd to. [para. 18].

R. v. Downey (S.A.) (1996), 157 N.S.R.(2d) 369; 462 A.P.R. 369 (Prov. Ct.), refd to. [para. 27].

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322; 26 C.R.N.S. 1; 15 C.C.C.(2d) 524; 44 D.L.R.(3d) 351, refd to. [para. 38].

R. v. Provo, [1989] 2 S.C.R. 3; 97 N.R. 209; 59 Man.R.(2d) 1; 70 C.R.(3d) 315, refd to. [para. 39].

R. v. Prince, [1986] 2 S.C.R. 480; 70 N.R. 119; 45 Man.R.(2d) 93, refd to. [para. 44].

R. v. Earle (1980), 24 Nfld. & P.E.I.R. 65; 65 A.P.R. 65 (Nfld. C.A.), refd to. [para. 47].

R. v. Pinkerton (1979), 46 C.C.C.(2d) 284 (B.C.C.A.), refd to. [para. 47].

R. v. D.T.M. (1993), 126 N.S.R.(2d) 385; 352 A.P.R. 385 (C.A.), refd to. [para. 49].

R. v. Decker (S.) (1989), 75 Nfld. & P.E.I.R. 314; 234 A.P.R. 314 (Nfld. C.A.), refd to. [para. 49].

R. v. Furlong (L.H.) (1993), 106 Nfld. & P.E.I.R. 199; 334 A.P.R. 199 (Nfld. C.A.), refd to. [para. 51].

R. v. Touchette, [1996] J.Q. No. 5055 (Que. Mun. Ct.), refd to. [para. 51].

R. v. Docherty, [1989] 2 S.C.R. 941; 101 N.R. 161; 78 Nfld. & P.E.I.R. 315; 244 A.P.R. 315; 51 C.C.C.(3d) 1, refd to. [para. 54].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 150.1(2) [para. 9]; sect. 515(1) [para. 22]; sect. 516(1) [para. 21].

Counsel:

Chandrashakhar Gosine, for the appellant;

James Gumpert, Q.C., and Kenda Murphy, for the respondent.

This appeal was heard on October 6, 2003, in Halifax, Nova Scotia, before Roscoe, Cromwell and Saunders, JJ.A., of the Nova Scotia Court of Appeal. Cromwell, J.A., delivered the following judgment for the court on December 10, 2003.