R. v. Currie (E.R.), 2008 ABCA 374

JudgeCôté, Hunt and Ritter, JJ.A.
CourtCourt of Appeal (Alberta)
Case DateNovember 06, 2008
Citations2008 ABCA 374;(2008), 446 A.R. 41 (CA)

R. v. Currie (E.R.) (2008), 446 A.R. 41 (CA);

      442 W.A.C. 41

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. NO.031

Her Majesty The Queen (respondent) v. Edward R. Currie (appellant)

(0703-0195-A; 2008 ABCA 374)

Indexed As: R. v. Currie (E.R.)

Alberta Court of Appeal

Côté, Hunt and Ritter, JJ.A.

November 6, 2008.

Summary:

The complainant voluntarily accompanied the accused to his apartment after consensual sexual intercourse. The complainant alleged that when she wished to end the evening and leave, the accused beat her, confined her to his apartment, sexually assaulted her and pursued her when she managed to flee. The accused alleged that the complainant assaulted him when he asked her to leave, that he struck her in self-defence and that she left of her own accord. The trial judge accepted the complainant's version of events and convicted the accused of aggravated sexual assault and unlawful confinement. The accused appealed the convictions, submitting that the trial judge erred in effectively choosing between the complainant's and accused's version of events (credibility), in permitting inappropriate cross-examination on the accused's criminal record and in starting the trial in the absence of defence counsel.

The Alberta Court of Appeal dismissed the appeal.

Civil Rights - Topic 8584

Canadian Charter of Rights and Freedoms - Practice - Time for raising Charter issues - The accused was convicted of aggravated sexual assault and unlawful confinement after a long trial where he was represented through most of the trial by counsel - A month after conviction, when the court convened for sentencing, the self-represented accused sought to bring a Charter motion for a stay of proceedings, claiming that his arrest without warrant in someone else's apartment violated his Charter rights - No notice was given to the Crown and no reasons were given for not raising the Charter issue at trial - The Alberta Court of Appeal held that it could not entertain the Charter motion at this late date, especially where no notice had been given to the Crown and consideration of the Charter issue would require a new trial - In any event, there was no merit to the Charter issue - Only the lessee could complain of a violation of Charter rights respecting entry into the apartment where the accused was arrested, and she gave police express consent to enter to arrest the accused - Even if the Charter argument had merit, there was no harm to the accused, other than he was arrested earlier than the police might otherwise have been able to do - There was no evidence to exclude and granting a stay of proceedings would be "unthinkable" - See paragraphs 37 to 60.

Criminal Law - Topic 4351

Procedure - Charge or directions - Jury or judge alone - Direction regarding burden of proof and reasonable doubt - The accused was convicted of aggravated sexual assault and unlawful confinement - The accused and complainant gave different versions of the event forming the basis of the charges - The accused submitted that although the trial judge properly directed himself on the burden of proof and reasonable doubt as to credibility, he nonetheless erred by effectively choosing the complainant's version of events over that of the accused - The Alberta Court of Appeal dismissed the accused's appeal - The trial judge gave reasons for finding the accused's evidence incredible, whether viewed in isolation or in light of objective real evidence and evidence independent of the complainant - The trial judge also suggested that the accused's evidence was fabricated - There was no impermissible comparison of the two versions or choosing of one version over the other and no error in assessing the credibility of the accused and the complainant - See paragraphs 7 to 26.

Criminal Law - Topic 4377

Procedure - Charge or directions - Jury or judge alone - Directions regarding credibility of witnesses - [See Criminal Law - Topic 4351 ].

Criminal Law - Topic 4488

Procedure - Trial - Representation of accused - The accused was charged with aggravated sexual assault and unlawful confinement - He had been represented off and on by counsel, several of whom withdrew with leave of the court - When the trial commenced, after many adjournments, the accused was between counsel and appeared unrepresented - He did not seek an adjournment or object to having to proceed - He remained unrepresented for the first several days of trial, when the Crown presented its case - The accused effectively cross-examined the complainant - When the reserved time for trial was exhausted, the trial was adjourned for several months - When the trial resumed, the accused was again represented by counsel - Not only was the accused entitled to call evidence, by consensus he was entitled to call the complainant as an adverse witness, effectively giving him an opportunity to cross-examine her again - The Alberta Court of Appeal held that the trial judge did not err in permitting the trial to commence without the accused being represented by counsel - No adjournment was sought and, in any event, none would have been warranted given the accused's lack of diligence in obtaining counsel - Further, the court would not intervene where the resulting trial was not unfair - See paragraphs 61 to 106.

Criminal Law - Topic 5437

Evidence and witnesses - Cross-examination of accused - Prior charges, convictions, etc. - An accused convicted of aggravated sexual assault and unlawful confinement submitted that the trial judge erred in respect of the cross-examination of the accused on his prior criminal record - The accused submitted that cross-examination was limited to the offence, where it was committed and the sentence imposed, but that the trial judge permitted cross-examination on details of the offences - The Alberta Court of Appeal held that assuming the Crown was so restricted on cross-examination, the "details" complained of were volunteered by the accused in an attempt to minimize his criminal record and not in response to questions by the Crown - The court noted that "cross-examining counsel cannot be required to prevent a witness from saying things which counsel did not ask for" - See paragraphs 27 to 36.

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, refd to. [para. 11].

R. v. C.L.Y., [2008] 1 S.C.R. 5; 370 N.R. 284; 225 Man.R.(2d) 146; 419 W.A.C. 146; 289 D.L.R.(4th) 1; 2008 SCC 2, refd to. [para. 11].

R. v. M.S. et al. (2008), 240 O.A.C. 229; 2008 ONCA 616, refd to. [para. 11].

R. v. R.E.M. (2008), 380 N.R. 47; 2008 SCC 51, refd to. [para. 12].

R. v. Morin, [1988] 2 S.C.R. 345; 88 N.R. 161; 30 O.A.C. 81, refd to. [para. 20].

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351; 43 D.L.R.(4th) 424, refd to. [para. 23].

R. v. Biniaris (J.), [2000] 1 S.C.R. 381; 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161; 2000 SCC 15, refd to. [para. 23].

R. v. Bricker (J.E.) (1994), 71 O.A.C. 383; 90 C.C.C.(3d) 268 (C.A.), leave to appeal denied (1994), 180 N.R. 399; 82 O.A.C. 400 (S.C.C.), refd to. [para. 33].

R. v. Geddes (1979), 2 Man.R.(2d) 339; 52 C.C.C.(2d) 230 (C.A.), refd to. [para. 33].

R. v. Thomas (A.F.), [1998] 3 S.C.R. 535; 233 N.R. 266; 115 B.C.A.C. 161; 189 W.A.C. 161, refd to. [para. 48].

Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; 92 N.R. 110; 75 Sask.R. 82; 57 D.L.R.(4th) 231, refd to. [para. 52].

Thorson v. Canada (Attorney General), [1975] 1 S.C.R. 138; 1 N.R. 225; 43 D.L.R.(3d) 1, refd to. [para. 52].

McNeil v. Nova Scotia Board of Censors, [1976] 2 S.C.R. 265; 5 N.R. 43; 12 N.S.R.(2d) 85; 6 A.P.R. 85; 55 D.L.R.(3d) 632, refd to. [para. 52].

R. v. Edwards (C.), [1996] 1 S.C.R. 128; 192 N.R. 81; 88 O.A.C. 321, refd to. [para. 52].

Canada (Minister of Citizenship and Immigration) v. Tobiass et al., [1997] 3 S.C.R. 391; 218 N.R. 81, refd to. [para. 58].

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. 58].

R. v. White (K.E.) (1995), 55 B.C.A.C. 68; 90 W.A.C. 68 (Yuk. C.A.), dist. [para. 79].

R. v. Sidor (1982), 39 A.R. 541 (Q.B.), dist. [para. 79].

R. v. Tsvenar (1991), 126 A.R. 104 (Q.B.), dist. [para. 79].

R. v. Rae (T.D.) (2005), 367 A.R. 199; 346 W.A.C. 199; 2005 ABCA 210, dist. [para. 79].

R. v. Barrette, [1977] 2 S.C.R. 121; 10 N.R. 321, refd to. [para. 80].

R. v. Bruneau (1983), 44 A.R. 289 (C.A.), refd to. [para. 80].

R. v. Hardy (1991), 120 A.R. 151; 8 W.A.C. 151 (C.A.), refd to. [para. 80].

R. v. Halnuck (P.J.) (1996), 151 N.S.R.(2d) 81; 440 A.P.R. 81; 107 C.C.C.(3d) 401 (C.A.), affd. [1997] 1 S.C.R. 533; 209 N.R. 4; 158 N.S.R.(2d) 125; 466 A.P.R. 125, refd to. [para. 80].

R. v. Rain (M.M.) (1997), 223 A.R. 359; 183 W.A.C. 359; 1998 ABCA 315, refd to. [para. 80].

R. v. Phillips (M.A.) (2003), 320 A.R. 172; 288 W.A.C. 172; 2003 ABCA 4, affd. [2003] 2 S.C.R. 623; 311 N.R. 94; 339 A.R. 50; 312 W.A.C. 50, refd to. [para. 80].

R. v. Biscette (S.) (1995), 169 A.R. 81; 97 W.A.C. 81; 99 C.C.C.(3d) 326 (C.A.), affd. [1996] 3 S.C.R. 599; 203 N.R. 244; 187 A.R. 392; 127 W.A.C. 392, refd to. [para. 88].

Counsel:

D.C. Marriott, for the respondent;

S.A. Beaver and A. Simic, for the appellant.

This appeal was heard on September 3, 2008, before Côté, Hunt and Ritter, JJ.A., of the Alberta Court of Appeal.

On November 6, 2008, Côté, J.A., delivered the following judgment for the Court of Appeal.

To continue reading

Request your trial
25 practice notes
  • R. v. Campbell (K.A.), (2015) 599 A.R. 142
    • Canada
    • Court of Appeal (Alberta)
    • February 3, 2015
    ...McLachlin J (as she then was), 128 DLR (4th) 98; R. v. Bjelland , 2009 SCC 38 at para 22, Rothstein J, [2009] 2 SCR 651; R. v. Currie , 2008 ABCA 374 at para 101 (and discussion at paras 92-105), 446 AR 41. [64] Schell concluded at paras 21-28 on this point by stating: "In the end, the appe......
  • R. v. Schell (P.J.),
    • Canada
    • Court of Appeal (Alberta)
    • January 7, 2013
    ...Bjelland (J.C.), [2009] 2 S.C.R. 651; 391 N.R. 202; 460 A.R. 230; 462 W.A.C. 230; 2009 SCC 38, refd to. [para. 4]. R. v. Currie (E.R.) (2008), 446 A.R. 41; 442 W.A.C. 41; 2008 ABCA 374, refd to. [para. R. v. Rejzek (A.K.) (2009), 464 A.R. 388; 467 W.A.C. 388; 2009 ABCA 393, leave to appeal ......
  • R v Bay,
    • Canada
    • Provincial Court of Alberta (Canada)
    • October 15, 2021
    ...v Le, 2008 ABPC 257; and R v SIC, 2011 ABPC 261. [14]        As stated in the decision of R v Currie, 2008 ABCA 374; R v Ryon, 2019 ABCA 36 and R v CJL, [2004] MJ No 410, in assessing credibility the Court must first consider the evidence of the accused wh......
  • R. v. R.K.D., (2012) 546 A.R. 168 (PC)
    • Canada
    • Provincial Court of Alberta (Canada)
    • July 19, 2012
    ...44]. R. v. C.L.Y. (2008), 370 N.R. 284; 225 Man.R.(2d) 146; 419 W.A.C. 146; 2008 SCC 2, refd to. [para. 45]. R. v. Currie (E.R.) (2008), 446 A.R. 41; 442 W.A.C. 41; 2008 ABCA 374, refd to. [para. 45]. R. v. Lake (P.E.) (2005), 240 N.S.R.(2d) 40; 763 A.P.R. 40; 2005 NSCA 162, refd to. [para.......
  • Request a trial to view additional results
25 cases
  • R. v. Campbell (K.A.), (2015) 599 A.R. 142
    • Canada
    • Court of Appeal (Alberta)
    • February 3, 2015
    ...McLachlin J (as she then was), 128 DLR (4th) 98; R. v. Bjelland , 2009 SCC 38 at para 22, Rothstein J, [2009] 2 SCR 651; R. v. Currie , 2008 ABCA 374 at para 101 (and discussion at paras 92-105), 446 AR 41. [64] Schell concluded at paras 21-28 on this point by stating: "In the end, the appe......
  • R. v. Schell (P.J.),
    • Canada
    • Court of Appeal (Alberta)
    • January 7, 2013
    ...Bjelland (J.C.), [2009] 2 S.C.R. 651; 391 N.R. 202; 460 A.R. 230; 462 W.A.C. 230; 2009 SCC 38, refd to. [para. 4]. R. v. Currie (E.R.) (2008), 446 A.R. 41; 442 W.A.C. 41; 2008 ABCA 374, refd to. [para. R. v. Rejzek (A.K.) (2009), 464 A.R. 388; 467 W.A.C. 388; 2009 ABCA 393, leave to appeal ......
  • R v Bay,
    • Canada
    • Provincial Court of Alberta (Canada)
    • October 15, 2021
    ...v Le, 2008 ABPC 257; and R v SIC, 2011 ABPC 261. [14]        As stated in the decision of R v Currie, 2008 ABCA 374; R v Ryon, 2019 ABCA 36 and R v CJL, [2004] MJ No 410, in assessing credibility the Court must first consider the evidence of the accused wh......
  • R. v. R.K.D., (2012) 546 A.R. 168 (PC)
    • Canada
    • Provincial Court of Alberta (Canada)
    • July 19, 2012
    ...44]. R. v. C.L.Y. (2008), 370 N.R. 284; 225 Man.R.(2d) 146; 419 W.A.C. 146; 2008 SCC 2, refd to. [para. 45]. R. v. Currie (E.R.) (2008), 446 A.R. 41; 442 W.A.C. 41; 2008 ABCA 374, refd to. [para. 45]. R. v. Lake (P.E.) (2005), 240 N.S.R.(2d) 40; 763 A.P.R. 40; 2005 NSCA 162, refd to. [para.......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT