R. v. Charland (D.), (1996) 187 A.R. 161 (CA)

• Court: Court of Appeal (Alberta)
• Case Date: September 24, 1996
• Citations: (1996), 187 A.R. 161 (CA);1996 CanLII 7284 (AB CA);187 AR 161;43 Alta LR (3d) 364;110 CCC (3d) 300;2 CR (5th) 318;[1996] AJ No 819 (QL);127 WAC 161;39 CRR (2d) 100

R. v. Charland (D.) (1996), 187 A.R. 161 (CA);

    127 W.A.C. 161

MLB headnote and full text

Her Majesty The Queen (respondent) v. Daniel Charland (accused/appellant)

(Appeal No. 9503-0441-A)

Indexed As: R. v. Charland (D.)

Alberta Court of Appeal

Kerans and McFadyen, JJ.A.,

and Perras, J.(ad hoc)

September 24, 1996.

Summary:

The accused was charged with sexual assault, causing bodily harm during a sexual assault and two counts of threatening to cause bodily harm. The accused had a lengthy criminal record, the two most recent convictions being in 1989 for sexual assault. The issue at trial was consent. The trial judge permitted the Crown to cross-examine the accused on his full record, including the sexual assaults. The trial judge cautioned the jury that the evidence was admissible solely on the issue of the accused's credibility. The jury found the accused guilty of sexual assault, causing bodily harm while commit­ting a sexual assault and one count of threatening to cause bodily harm. The accused appealed, submitting that the trial judge erred in permitting cross-examination on his record.

The Alberta Court of Appeal, Kerans, J.A., dissenting, dismissed the appeal. The trial judge applied the correct test in weighing the probative value of the evidence against its prejudicial effect. The jury was adequately warned as to the limited use of the cross-examination evidence. Kerans, J.A., dissent­ing, agreed that the accused could properly be cross-examined on all prior convictions except the sexual assault convictions and stated that the prejudicial effect of this evidence could not be overcome by a warn­ing to the jury. The court agreed that the accused had no right to an advance ruling on the admissibility of his criminal record before he made a decision whether or not to testify.

Criminal Law - Topic 5209

Evidence and witnesses - Admissibility and relevancy - Prejudicial evidence - [See second Criminal Law - Topic 5437 ].

Criminal Law - Topic 5436

Evidence and witnesses - Cross-exami­nation of accused - Character of accused - [See second Criminal Law - Topic 5437 ].

Criminal Law - Topic 5437

Evidence and witnesses - Cross-exami­nation of accused - Prior convictions - The accused was charged with sexual assault and related offences - The sole issue was consent - The accused had a lengthy criminal record, including two 1989 con­victions for sexual assault - The trial judge permitted the Crown to cross-exam­ine the accused on his entire record and cautioned the jury on the limited use of the evidence (i.e., limited solely to assessing credibility) - The Alberta Court of Appeal held that the trial judge applied the proper test and did not err in exercis­ing his dis­cretion to admit the evidence - The trial judge found that the evidence was relevant and that its probative value outweighed its prejudicial effect - The trial judge proper­ly warned the jury as to the limited use of the evidence - See paragraphs 1 to 41.

Criminal Law - Topic 5437

Evidence and witnesses - Cross-exami­nation of accused - Prior convictions - The Alberta Court of Appeal stated that the Supreme Court of Canada cases re­specting "the admissibility of evidence of bad char­acter for limited purposes, require only that the trial judge be satisfied that the evi­dence is relevant on some identifi­able issue and that its substantial probative value outweighs the prejudicial effect. If the trial judge determines that the evidence is admissible, then he or she is obliged to charge the jury as to the limited permis­sible use of the evidence and must caution the jury not to use the evidence as indica­tive that the accused is the type of person who is disposed to commit the offence or of­fences generally. Relevant evidence can only be excluded where the probative value of the evidence is outweighed by the prejudicial effect." - See paragraph 5.

Criminal Law - Topic 5437

Evidence and witnesses - Cross-exami­nation of accused - Prior convictions - The Alberta Court of Appeal stated that "while an attack by an accused on the credibility of prosecution witnesses or an attempt to establish his own good character are not prerequisites to finding that evi­dence of the accused's previous convictions is admissible, an attack on a Crown witness's credibility substantially increases the probative value of previous criminal con­victions of the accused. The failure to permit the cross-examination of the accused's previous convictions could mis­lead the jury into a belief that, while Crown witnesses were disreputable, the accused was a person of good character. ... Generally, previous convictions for violent offences such as sexual assault do not directly reflect on honesty and truthfulness and, depending on the circumstances of the case, have limited probative value in assessing credibility. However, particularly in the context of a lengthy criminal record, such prior convictions have probative value that is greater than trifling because a jury could reasonably conclude that the convictions reflect a disregard for the laws and rules of society, making it more likely that the person who harbours such attitudes would lie." - See paragraphs 35 to 36.

Criminal Law - Topic 5437

Evidence and witnesses - Cross-exami­nation of accused - Prior convictions - The Alberta Court of Appeal stated that an accused had no right to an advance ruling on the admissibility of his criminal record before he made a decision whether or not to testify - The court stated that "I appreciate that an accused would like to know the ruling before making a decision to testify, and I have no great quarrel with a judge who seeks, conditionally or other­wise, to accommodate him. I do not know, however, that he has any right to an advance ruling." - See paragraphs 2, 53.

Cases Noticed:

R. v. Corbett, [1988] 1 S.C.R. 670; 85 N.R. 81; 41 C.C.C.(3d) 385; 64 C.R.(3d) 1, appld. [para. 3].

R. v. Saroya (I.S.) (1994), 76 O.A.C. 25; 36 C.R.(4th) 253 (C.A.), refd to. [para. 6].

State v. Duke (1956), 123 A.2d 745 (N.H.), refd to. [para. 9].

R. v. Harrer (H.M.), [1995] 3 S.C.R. 562; 186 N.R. 329; 64 B.C.A.C. 161; 105 W.A.C. 161; 42 C.R.(4th) 269, refd to. [para. 15].

R. v. F.F.B., [1993] 1 S.C.R. 697; 148 N.R. 161; 120 N.S.R.(2d) 1; 322 A.P.R. 1; 79 C.C.C.(3d) 112, refd to. [para. 16].

R. v. Morris, [1983] 2 S.C.R. 190; 48 N.R. 341; 7 C.C.C.(3d) 97, refd to. [para. 16].

R. v. L.E.D., [1989] 2 S.C.R. 111; 97 N.R. 321; 50 C.C.C.(3d) 142, refd to. [para. 16].

R. v. G.F.P. (1994), 70 O.A.C. 350; 29 C.R.(4th) 315 (C.A.), refd to. [para. 25].

R. v. Halliday (W.L.) (1992), 83 Man.R.(2d) 142; 77 C.C.C.(3d) 481 (C.A.), refd to. [para. 27].

R. v. Brand (A.) (1995), 80 O.A.C. 396; 98 C.C.C.(3d) 477 (C.A.), refd to. [para. 28].

R. v. Dahlbeck (C.W.) (1994), 45 B.C.A.C. 23; 72 W.A.C. 23 (C.A.), refd to. [para. 29].

R. v. Ramirez (O.) (1995), 57 B.C.A.C. 224; 94 W.A.C. 224; 97 C.C.C.(3d) 353 (C.A.), refd to. [para. 30].

R. v. Trudel (S.) (1994), 60 Q.A.C. 138; 90 C.C.C.(3d) 318 (C.A.), refd to. [para. 31].

R. v. Wray, [1971] S.C.R. 272, refd to. [para. 52].

R. v. Hoffman (A.A.) (1994), 155 A.R. 275; 73 W.A.C. 275; 32 C.R.(4th) 396 (C.A.), refd to. [para. 53].

R. v. Wood (1987), 82 A.R. 32; 39 C.C.C.(3d) 212 (C.A.), refd to. [para. 56].

R. v. Scopelliti (1981), 63 C.C.C.(2d) 481 (Ont. C.A.), refd to. [para. 56].

R. v. D.B.T. (1994), 71 O.A.C. 233; 89 C.C.C.(3d) 466 (C.A.), refd to. [para. 63].

Statutes Noticed:

Canada Evidence Act, R.S.C. 1985, c. C-5, sect. 12 [para. 7].

Canadian Charter of Rights and Freedoms, 1982, sect. 11(d) [para. 7].

Authors and Works Noticed:

Carter, P.B., Forbidden Reasoning Per­missible: Similar Fact Evidence a Dec­ade After Boardman el (1985), 48 Mod. L. Rev. 29, p. 29 [para. 56].

Delisle, R.J., Annotation (1994), 29 C.R.(4th) 318, generally [para. 34].

Counsel:

P.G. Lister, Q.C., for the appellant;

Jack Watson, Q.C., for the respondent.

This appeal was heard before Kerans and McFadyen, JJ.A., and Perras, J.(ad hoc), of the Alberta Court of Appeal.

On September 24, 1996, the judgment of the Court of Appeal was delivered and the following opinions were filed:

McFadyen, J.A. (Perras, J.(ad hoc), con­curring) - see paragraphs 1 to 42;

Kerans, J.A., dissenting - see paragraphs 43 to 71.