R. v. D.O.B., (2015) 363 N.S.R.(2d) 291 (CA)

• Judge: MacDonald, C.J.N.S., Bryson and Bourgeois, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: June 03, 2015
• Jurisdiction: Nova Scotia
• Citations: (2015), 363 N.S.R.(2d) 291 (CA);2015 NSCA 74

R. v. D.O.B. (2015), 363 N.S.R.(2d) 291 (CA);

    1143 A.P.R. 291

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. JL.050

D.O.B. (appellant) v. Her Majesty the Queen (respondent)

(CA 436352; 2015 NSCA 74)

Indexed As: R. v. D.O.B.

Nova Scotia Court of Appeal

MacDonald, C.J.N.S., Bryson and Bourgeois, JJ.A.

July 29, 2015.

Summary:

The accused was convicted of sexually assaulting his 13 year old niece during a sleepover. He appealed.

The Nova Scotia Court of Appeal dismissed the appeal.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 675

Sexual offences, public morals and disorderly conduct - Sexual offences, rape or sexual assault - Evidence and proof - The accused was convicted of sexually assaulting his 13 year old niece (A.M.) during a sleepover - The Nova Scotia Court of Appeal dismissed the accused's appeal - Several of his grounds were really attacks on the trial judge's unassailable fact findings - The court also rejected his submission that the conviction constituted an unreasonable verdict that could not be supported by the evidence - This was a verdict which a properly instructed jury could reasonably reach - There was ample evidence to support it - One did not have to look any further than A.M.'s evidence, which the judge was fully entitled to accept - Furthermore, there were no defects in the judge's reasoning that led the court to question the verdict - Despite the accused's assertions to the contrary, the judge did address the inconsistencies in A.M.'s testimony, but noted that (a) she was consistent when it came to the crucial facts and (b) she was a child witness - See paragraphs 10 to 28.

Criminal Law - Topic 4300

Procedure - Trial judge - Duties and functions of - Respecting credibility of witnesses (incl. accused) - The accused was convicted of sexually assaulting his 13 year old niece (A.M.) during a sleepover - He appealed, submitting that the trial judge did not issue adequate reasons in dismissing the defence evidence - The Nova Scotia Court of Appeal rejected the submission - The accused knew why he had been convicted - A.M. detailed a sexual assault - The accused denied it - The judge rejected the denial - It did not leave him with a reasonable doubt - Nor did the evidence as a whole - The judge tracked the three-part instructions in R. v. D.W. (1991 S.C.C.) - For essentially the same reasons, the accused was able to advance a meaningful appeal - The only issue in the case was whether the Crown had established beyond a reasonable doubt that the events occurred as A.M. described - This turned on credibility - After assessing the witnesses' credibility, the judge concluded that the burden had been met - Finally, the judge addressed this decisive credibility issue head on - He explained why he rejected the defence evidence and why it did not leave him with a reasonable doubt - The judge simply found it incredible to assert that A.M. was the problem and that she was no longer welcome for sleepovers while, in the context of a closely knit family, this was never raised with A.M.'s mother - Then for the accused's wife (A.M's mother's sister) to assert that the family continued to be close, after all that transpired, was, for the judge, equally incredible - See paragraphs 29 to 40.

Criminal Law - Topic 4351

Procedure - Charge or directions - Jury or judge alone - Directions regarding burden of proof and reasonable doubt - [See Criminal Law - Topic 4300 ].

Criminal Law - Topic 4377

Procedure - Charge or directions - Jury or judge alone - Directions regarding credibility of witnesses - [See Criminal Law - Topic 4300 ].

Criminal Law - Topic 4379

Procedure - Charge or directions - Jury or judge alone - Directions re evidence of character or credibility of accused - [See Criminal Law - Topic 4300 ].

Criminal Law - Topic 4684

Procedure - Judgments and reasons for judgment - Reasons for judgment - Sufficiency of - The Nova Scotia Court of Appeal considered its role in assessing reasons that were said to be inadequate - The court would not overturn a decision solely because reasons might appear to be faulty - It had to be practical and consider the consequences of such a failure in the context of the entire record - See paragraph 31.

Criminal Law - Topic 4684

Procedure - Judgments and reasons for judgment - Reasons for judgment - Sufficiency of - [See Criminal Law - Topic 4300 ].

Criminal Law - Topic 4865

Appeals - Indictable offences - Grounds of appeal - Verdict unreasonable or unsupported by evidence - [See Criminal Law - Topic 675 ].

Criminal Law - Topic 5461

Evidence and witnesses - Evidence of children - [See Criminal Law - Topic 675 ].

Cases Noticed:

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 13].

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; 2002 SCC 26, refd to. [para. 31].

R. v. R.E.M., [2008] 3 S.C.R. 3; 380 N.R. 47; 260 B.C.A.C. 40; 439 W.A.C. 40; 2008 SCC 51, refd to. [para. 33].

Counsel:

Aaron D. Martens, for the appellant;

Mark Scott, for the respondent.

This appeal was heard on June 3, 2015, by MacDonald, C.J.N.S., Bryson and Bourgeois, JJ.A., of the Nova Scotia Court of Appeal. MacDonald, C.J.N.S., delivered the following decision for the court on July 29, 2015.