R. v. D.D.S., (2006) 242 N.S.R.(2d) 235 (CA)

• Jurisdiction: Nova Scotia
• Court: Court of Appeal of Nova Scotia (Canada)
• Judge: MacDonald, C.J.N.S., Roscoe and Saunders, JJ.A.
• Neutral Citation: 2006 NSCA 34
• Citation: (2006), 242 N.S.R.(2d) 235 (CA),2006 NSCA 34,207 CCC (3d) 319,[2006] CarswellNS 109,[2006] NSJ No 103 (QL),242 NSR (2d) 235,242 N.S.R.(2d) 235,[2006] NS.J. No 103 (QL),242 NSR(2d) 235,(2006), 242 NSR(2d) 235 (CA)
• Date: 16 March 2006

R. v. D.D.S. (2006), 242 N.S.R.(2d) 235 (CA);

    770 A.P.R. 235

MLB headnote and full text

Temp. Cite: [2006] N.S.R.(2d) TBEd. MR.031

Her Majesty The Queen (respondent) v. D.D.S. (appellant)

(CA 253128; 2006 NSCA 34)

Indexed As: R. v. D.D.S.

Nova Scotia Court of Appeal

MacDonald, C.J.N.S., Roscoe and Saunders, JJ.A.

March 16, 2006.

Summary:

The accused was convicted of sexual assault and touching for a sexual purpose. The victim was his daughter, who was 12 years of age at the time of the offences. The accused appealed his convictions, submitting that the trial judge erred (1) in applying the test respecting the burden of proof and reasonable doubt; (2) in misdirecting himself and failing to apply proper legal principles respecting the reliability and credibility of witnesses; (3) in misusing the daughter's prior statement to persons in authority; (4) in misusing the daughter's prior statement to police; (5) by admitting into evidence, and relying on, an incomplete and inaccurate transcript of the video-taped statement to police; and (6) in misapprehending critical evidence.

The Nova Scotia Court of Appeal allowed the appeal on all six grounds and ordered a new trial. The cumulative effect of the errors fatally flawed the verdict. The court declined to apply the curative provisions of s. 686(1)(b)(iii) of the Criminal Code.

Criminal Law - Topic 4351

Procedure - Charge or directions - Jury or judge alone - Direction regarding burden of proof and reasonable doubt - The accused appealed convictions for sexual offences against his daughter on the ground of misapplication of the burden of proof and reasonable doubt, errors respecting the reliability and credibility of witnesses and misapprehension of evidence - The Nova Scotia Court of Appeal ordered a new trial for the cumulative effect of errors - The trial judge found the daughter credible, then "jumped to a finding of guilt without ever addressing the ultimate issue as to whether [the accused's] guilt had been proved beyond a reasonable doubt" - The judge appeared to decide guilt on the basis of whose evidence was more "consistent" - The trial judge also misapprehended critical evidence on substantive issues - Given inconsistencies in the daughter's testimony compared to that of other witnesses, which the trial judge excused because of her age (15 at trial), "the trial judge was far less sceptical of [her] evidence than he ought to have been" - Further, the judge placed the onus on the accused to satisfy him as to what the daughter's motive would be to lie - The trial judge never did say that he disbelieved the accused - At no time did he refer to the presumption of innocence or to the fundamental issue as to whether, even if he accepted the daughter's testimony, a reasonable doubt existed - See paragraphs 30 to 80.

Criminal Law - Topic 4375.3

Procedure - Charge or directions - Jury or judge alone - Directions regarding prior consistent statements - [See Evidence - Topic 4023 ].

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 4957

Appeals - Indictable offences - New trials - Grounds - Misapprehension of evidence - [See Criminal Law - Topic 4351 ].

Criminal Law - Topic 4960

Appeals - Indictable offences - New trials - Grounds - Error respecting burden or standard of proof - [See Criminal Law - Topic 4351 ].

Evidence - Topic 77

Best evidence rule - Contents of videotape - The accused's statement to police was video-taped and unofficially transcribed - The videotape was not tendered at trial - In cross-examining the accused, the Crown submitted that there was an inconsistency between his trial testimony and his statement to police - The transcript was admitted at trial as an exhibit - The accused's counsel did not object to admissibility and did not seek to have the videotape itself admitted - The Nova Scotia Court of Appeal held that the trial judge erred in admitting the transcript, which was "secondary evidence" - The accused's statement to police was admissible only if he gave "inconsistent" testimony at trial - There was no inconsistency - If an inconsistency did exist, then the "best evidence" (videotape) should have been admitted rather than the transcript, so that "the atmosphere of the interview and all of the [accused's] responses under questioning would be placed in proper context" - See paragraphs 87 to 97.

Evidence - Topic 1031

Relevant facts - Relevance and materiality - Admissibility - Prior consistent statements - [See Evidence - Topic 4023 ].

Evidence - Topic 4023

Witnesses - General - Credibility - Oath-helping or oath-attacking - The accused was convicted of sexual offences against his daughter - The trial judge accepted the daughter's testimony as credible and noted that her trial testimony was consistent with her statements to a social worker and police officer - The Nova Scotia Court of Appeal held that the trial judge erred in using prior consistent statements to persons in authority to bolster the daughter's credibility - What the trial judge permitted was impermissible "oath-helping" - See paragraphs 81 to 85.

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. 26].

R. v. Morrissey (1995), 80 O.A.C. 161; 97 C.C.C.(3d) 193 (C.A.), refd to. [para.32].

R. v. S.D.D. (2005), 233 N.S.R.(2d) 49; 739 A.P.R. 49; 2005 NSCA 71, refd to. [para. 32].

R. v. Minuskin (S.) (2003), 180 O.A.C. 255 (C.A.), refd to. [para. 38].

R. v. Brown (J.R.) (1994), 132 N.S.R.(2d) 224; 376 A.P.R. 224 (C.A.), refd to. [para. 38].

R. v. D.C.S. (2000), 184 N.S.R.(2d) 299; 573 A.P.R. 299 (C.A.), refd to. [para. 38].

R. v. C.J.L. (2004), 190 Man.R.(2d) 177; 335 W.A.C. 177 (C.A.), refd to. [para. 38].

R. v. Saulnier (L.M.) (2005), 231 N.S.R.(2d) 342; 733 A.P.R. 342 (C.A.), refd to. [para. 38].

R. v. Lake (P.E.) (2005), 240 N.S.R.(2d) 40; 763 A.P.R. 40 (C.A.), refd to. [para. 38].

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. 42].

R. v. R.W. (1992), 137 N.R. 214; 54 O.A.C. 164; 74 C.C.C.(3d) 134 (S.C.C.), refd to. [para. 54].

R. v. Gostick (W.) (1999), 121 O.A.C. 355; 137 C.C.C.(3d) 53 (C.A.), refd to. [para. 73].

Faryna v. Chorney, [1952] 2 D.L.R. 354 (B.C.C.A.), refd to. [para. 78].

R. v. R.W.B. (1993), 24 B.C.A.C. 1; 40 W.A.C. 1 (C.A.), refd to. [para. 79].

R. v. Hunter (W.) (2004), 182 O.A.C. 161; 182 C.C.C.(3d) 121 (C.A.), refd to. [para. 83].

R. v. J.S.K., [2005] O.A.C. Uned. 409 (C.A.), refd to. [para. 83].

R. v. Rowbotham et al. (1988), 25 O.A.C. 321; 41 C.C.C.(3d) 1 (C.A.), refd to. [para. 91].

R. v. Boudreau (1991), 105 N.S.R.(2d) 15; 284 A.P.R. 15 (C.A.), refd to. [para. 93].

R. v. K.G.B., [1993] 1 S.C.R. 740; 148 N.R. 241; 61 O.A.C. 1, refd to. [para. 95].

R. v. F.J.U., [1995] 3 S.C.R. 764; 186 N.R. 365; 85 O.A.C. 321, refd to. [para. 95].

R. v. D.C.S. (2000), 184 N.S.R.(2d) 299; 573 A.P.R. 299 (C.A.), refd to. [para. 97].

Authors and Works Noticed:

McWilliams, Peter K., Canadian Criminal Evidence (4th Ed. 2003) (2005 Looseleaf Update), pp. 11-2 [para. 83]; 20-19 [para. 90].

Counsel:

Duncan Beveridge, Q.C., for the appellant;

Kenneth W.F. Fiske, Q.C., for the respondent.

This appeal was heard on February 14, 2006, at Halifax, N.S., before MacDonald, C.J.N.S., Roscoe and Saunders, JJ.A., of the Nova Scotia Court of Appeal.

On March 16, 2006, Saunders, J.A., delivered the following judgment for the Court of Appeal.