R. v. Cain (J.D.), 2010 ABCA 371

• Judge: Hunt, Costigan and Martin, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: December 02, 2010
• Citations: 2010 ABCA 371;(2010), 502 A.R. 322 (CA)

R. v. Cain (J.D.) (2010), 502 A.R. 322 (CA);

      517 W.A.C. 322

MLB headnote and full text

Temp. Cite: [2010] A.R. TBEd. DE.063

Her Majesty the Queen (appellant) v. Joshua David Cain (respondent)

(0903-0329-A; 2010 ABCA 371)

Indexed As: R. v. Cain (J.D.)

Alberta Court of Appeal

Hunt, Costigan and Martin, JJ.A.

December 13, 2010.

Summary:

The accused was charged with aggravated sexual assault, choking with intent to overcome resistance, and threatening death. A jury acquitted the accused. The Crown appealed.

The Alberta Court of Appeal held that the trial judge erred in his jury charge on consent, in deciding to exclude certain portions of the accused's videotaped statements and in failing to admonish the jury regarding statements made by defence counsel in his address to the jury. Those errors, taken together, might have had a material bearing on the acquittal. The court, therefore, allowed the appeal, quashed the acquittal and ordered a new trial.

Criminal Law - Topic 673

Sexual offences, rape or sexual assault - Jury charge or directions - The accused was charged with aggravated sexual assault - The trial judge advised the jury that if any one juror had a reasonable doubt with respect to any of the alternative ways the Crown could prove the mens rea of the offence, an acquittal was required - A jury acquitted the accused - The Crown appealed - The Alberta Court of Appeal allowed the appeal - The judge's charge was in error in that it suggested that a not guilty verdict would result from the failure of a single juror to be convinced beyond a reasonable doubt about any one of the three avenues for establishing awareness of lack of consent - While the correct instruction was also given, the overall charge was unclear on this point - Nor could the error be remedied by general instructions given by the judge about unanimity, because the jury had been misinformed about its decision path to arrive there - See paragraphs 31 to 34.

Criminal Law - Topic 4351

Procedure - Charge or directions - Jury or judge alone - Direction regarding burden of proof and reasonable doubt - [See Criminal Law - Topic 673 ].

Criminal Law - Topic 4419

Procedure - Opening and closing addresses - Summing up - Counsel - Closing address - Intemperate or improper statements - The accused was charged with aggravated sexual assault, choking with intent to overcome resistance, and threatening death - It was alleged that he choked to unconsciousness a young woman he had just met at a music event and then had sexual intercourse with her - A jury acquitted the accused - The Crown appealed, arguing that the trial judge failed to admonish the jury regarding statements made by defence counsel during his address to the jury - Defence counsel had commented on the complainant's post assault conduct (i.e., allegedly wearing a shirt with a penis on it on the day after the incident) - Defence counsel also commented on the failure of the emergency room doctor to give the complainant an MRI or x-ray on her neck, suggesting that the doctor would have done so if he had believed her allegation of sexual assault - The Alberta Court of Appeal held that defence counsel's comments about the emergency room physician's testimony were improper both factually and legally - The comments on the t-shirt were also improper - This combined with other errors warranted a new trial - See paragraphs 26 to 30.

Criminal Law - Topic 5339.4

Evidence and witnesses - Confessions and voluntary statements - Admissibility - Videotaped confessions or statements - The accused was charged with aggravated sexual assault, choking with intent to overcome resistance, and threatening death - It was alleged that he choked to unconsciousness a young woman he had just met at a music event and then had sexual intercourse with her - A jury acquitted the accused - The Crown appealed, arguing that the trial judge erred in deciding to exclude portions of the videotaped statements that the accused gave to police - The Alberta Court of Appeal noted that the question of admissibility was one of law and, absent an error in principle, the court would be reluctant to interfere with the trial judge's decision - However, in this case, the court agreed with the Crown that the trial judge usurped the jury's function of deciding whether the excised portions constituted damaging admissions - As a result, the jury was left with a misleading impression about the accused's statements - The court allowed the appeal, quashed the acquittal and ordered a new trial - See paragraphs 16 to 20.

Cases Noticed:

R. v. Graveline (R.), [2006] 1 S.C.R. 609; 347 N.R. 268; 2006 SCC 16, refd to. [para. 12].

R. v. Grandinetti (C.H.) (2003), 339 A.R. 52; 312 W.A.C. 52; 2003 ABCA 307, affd. [2005] 1 S.C.R. 27; 329 N.R. 28; 363 A.R. 1; 343 W.A.C. 1; 2005 SCC 5, refd to. [para. 13].

R. v. Andres (H.H.) (2003), 339 A.R. 334; 312 W.A.C. 334; 2003 ABCA 333, refd to. [para. 13].

R. v. C.R.B., [1990] 1 S.C.R. 717; 107 N.R. 241; 109 A.R. 81, refd to. [para. 13].

R. v. Friebus (1992), 97 Sask.R. 106; 12 W.A.C. 106; 15 W.C.B.(2d) 173 (C.A.), refd to. [para. 14].

R. v. Lalande (A.) (1999), 124 O.A.C. 94; 138 C.C.C.(3d) 441 (C.A.), refd to. [para. 14].

R. v. Russell (M.E.), [2000] 2 S.C.R. 731; 261 N.R. 339; 266 A.R. 379; 228 W.A.C. 379; 149 C.C.C.(3d) 66; 2000 SCC 55, refd to. [para. 15].

R. v. Jacquard (C.O.), [1997] 1 S.C.R. 314; 207 N.R. 246; 157 N.S.R.(2d) 161; 462 A.P.R. 161; 143 D.L.R.(4th) 433, refd to. [para. 15].

R. v. Malott (M.A.), [1998] 1 S.C.R. 123; 222 N.R. 4; 106 O.A.C. 132; 121 C.C.C.(3d) 456, refd to. [para. 15].

R. v. Cooper, [1993] 1 S.C.R. 146; 146 N.R. 367; 103 Nfld. & P.E.I.R. 209; 326 A.P.R. 209; 78 C.C.C.(3d) 289, refd to. [para. 15].

R. v. Ay (1994), 59 B.C.A.C. 161; 98 W.A.C. 161; 93 C.C.C.(3d) 456 (C.A.), refd to. [para. 26].

R. v. Smith (T.G.) (2007), 412 A.R. 61; 404 W.A.C. 61; 225 C.C.C.(3d) 278; 2007 ABCA 237, refd to. [para. 26].

R. v. Marquard (D.), [1993] 4 S.C.R. 223; 159 N.R. 81; 66 O.A.C. 161; 85 C.C.C.(3d) 193, refd to. [para. 26].

R. v. Romeo, [1991] 1 S.C.R. 86; 119 N.R. 309; 110 N.B.R.(2d) 57; 276 A.P.R. 57, refd to. [para. 27].

R. v. Rose (J.), [1998] 3 S.C.R. 262; 232 N.R. 83; 115 O.A.C. 201, refd to. [para. 27].

Counsel:

M.J. McGuire, for the appellant;

D.R. Hatch, for the respondent.

This appeal was heard on December 2, 2010, by Hunt, Costigan and Martin, JJ.A., of the Alberta Court of Appeal. The following memorandum of judgment of the court was filed at Edmonton, Alberta, on December 13, 2010.