R. v. D.G.S., (2013) 294 Man.R.(2d) 217 (CA)

• Judge: Hamilton, Chartier and Monnin, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: February 12, 2013
• Jurisdiction: Manitoba
• Citations: (2013), 294 Man.R.(2d) 217 (CA);2013 MBCA 69

R. v. D.G.S. (2013), 294 Man.R.(2d) 217 (CA);

      581 W.A.C. 217

MLB headnote and full text

Temp. Cite: [2013] Man.R.(2d) TBEd. AU.002

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

(AR 12-30-07782; 2013 MBCA 69)

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

Manitoba Court of Appeal

Hamilton, Chartier and Monnin, JJ.A.

July 18, 2013.

Summary:

The accused was charged with historic sexual assaults occurring between 1996 and 1999, when the complainant, the accused's stepdaughter, was between the ages of 11 and 14. The defence indicated that, in challenging the complainant's credibility, it would stress the absence of complaint between 1999 and 2009 to family members or persons in authority. In a pretrial motion, the Crown sought a ruling on the admissibility of prior statements by the complainant to two of her friends that the accused had sexually abused her. The disclosure was alleged to have occurred approximately three or four years after the alleged incidents. The Crown indicated that it intended to elicit the fact that the complainant had disclosed that she was sexually abused by the accused, but not the specific details.

The Manitoba Court of Queen's Bench, in a decision reported at (2012), 274 Man.R.(2d) 313, held that the prior consistent statements were admissible as part of the narrative exception to the general exclusionary rule. The accused was convicted. He appealed.

The Manitoba 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 673

Sexual offences, public morals and disorderly conduct - Sexual offences - Rape or sexual assault - Jury charge or directions - [See Criminal Law - Topic 4375.4 ].

Criminal Law - Topic 686

Sexual offences, public morals and disorderly conduct - Sexual offences - Evidence - General - [See both Evidence - Topic 1031 ].

Criminal Law - Topic 4375.4

Procedure - Charge or directions - Jury or judge alone - Directions regarding prior statements - The accused was charged with historic sexual assaults occurring between 1996 and 1999, when the complainant, the accused's stepdaughter, was between the ages of 11 and 14 - The defence indicated that, in challenging the complainant's credibility, it would stress the absence of complaint between 1999 and 2009 to family members or persons in authority - In a pretrial motion, the Crown sought to admit prior statements regarding the abuse by the complainant to two friends - The disclosure was alleged to have occurred three or four years after the incidents - The trial court admitted the statements as part of the narrative exception to the general exclusionary rule and provided a limiting instruction to the jury on their use - The accused was convicted - On appeal, he asserted, inter alia, that the trial judge had erred by instructing the jury that the prior consistent statements could be used to assess the complainant's credibility - The Manitoba Court of Appeal dismissed the appeal - The accused's argument that the evidence could only be used to provide context was not the state of the law - While the jury could not use the narrative evidence to assess the truthfulness of the abuse allegations, it could use it to assess the truthfulness and credibility of the complainant regarding her delay in reporting - The trial judge's instructions conveyed the general sense that the prior consistent statements had no corroborative value regarding whether the accused had committed the offences - See paragraphs 30 to 38.

Criminal Law - Topic 4377

Procedure - Charge or directions - Jury or judge alone - Directions regarding credibility of witnesses - [See Criminal Law - Topic 4375.4 ].

Criminal Law - Topic 4379.2

Procedure - Charge or directions - Jury or judge alone - Directions regarding evidence admissible for limited purpose - [See Criminal Law - Topic 4375.4 ].

Criminal Law - Topic 4393

Procedure - Charge or directions - Jury or judge alone - Failure by counsel to object - Effect of - An accused appealed from convictions for historic sexual assaults - One of the grounds of appeal related to the trial judge's admission of the complainant's prior consistent statements and the instructions to the jury regarding that evidence - In dismissing the appeal, the Manitoba Court of Appeal stated, "Finally, while a lack of objection to a version of a jury charge is neither fatal nor decisive, and while the ultimate responsibility for it rests with the trial judge, 'counsel's failure to object to the charge says something about the overall accuracy of the jury instructions and the seriousness of the alleged misdirection' ... In regard to the case at hand, counsel for the accused not only failed to raise an objection, he specifically endorsed the revised portion of the charge that dealt with the prior consistent statements, saying that he was 'totally content' with it." - See paragraph 36.

Evidence - Topic 1031

Relevant facts - Relevance and materiality - Admissibility - Prior consistent statements - The Manitoba Court of Appeal discussed the admissibility of prior consistent statements in the context of an accused's appeal from convictions for historic sexual assaults - The general rule was that witnesses could not be asked whether they had previously made a statement consistent with their present testimony to another person - These statements were presumptively inadmissible for two reasons - First, when the evidence was given by the maker of the statement, it was viewed as self-serving and lacking in probative value - A statement of fact was not made more probable or trustworthy simply because it had been repeated - Second, when that evidence was given by persons who heard a witness make the statement, it constituted hearsay when adduced for the truth of its contents - As with all rules, there were exceptions, one of which was the narrative exception - This allowed a party to adduce additional facts as part of the narrative - One such circumstance was where the case related to an historic sexual assault against a child - In historic sexual assault cases, the fact that prior consistent complaints were made by the child fell under the narrative exception to the general exclusionary rule - The narrative evidence eliminated gaps, provided a sequential structure and assisted in assessing the complainant's credibility - See paragraphs 13 to 19.

Evidence - Topic 1031

Relevant facts - Relevance and materiality - Admissibility - Prior consistent statements - The accused was charged with historic sexual assaults occurring between 1996 and 1999, when the complainant, the accused's stepdaughter, was between the ages of 11 and 14 - The defence indicated that, in challenging the complainant's credibility, it would stress the absence of complaint between 1999 and 2009 to family members or persons in authority - In a pretrial motion, the Crown sought to admit prior statements regarding the abuse by the complainant to two friends - The disclosure was alleged to have occurred three or four years after the incidents - The trial court admitted the statements as part of the narrative exception to the general exclusionary rule and provided a limiting instruction to the jury on their use - The accused was convicted - On appeal, he asserted, inter alia, that the trial judge had erred in admitting the statements - The Manitoba Court of Appeal dismissed the appeal - The complainant's disclosures to her friends had probative value - They formed part of the narrative, giving chronological cohesion and background to explain the complainant's delay in disclosure - Because the defence had indicated that it would stress the absence of complaint, if the jury did not hear about the prior statements, it would be left with a mistaken view of the facts - The evidence enhanced the truth-seeking function of the court - Limiting instructions to the jury addressed the risk of prejudice to the accused - The trial judge had not erred in allowing the Crown to lead the narrative evidence - See paragraphs 20 to 30.

Evidence - Topic 1176

Relevant facts - Relevance and materiality - Res gestae (incl. narrative) - General - [See both Evidence - Topic 1031 ].

Cases Noticed:

R. v. Ellard - see R. v. K.M.E.

R. v. K.M.E., [2009] 2 S.C.R. 19; 389 N.R. 20; 272 B.C.A.C. 1; 459 W.A.C. 1; 2009 SCC 27, refd to. [para. 13].

R. v. Dinardo (J.), [2008] 1 S.C.R. 788; 374 N.R. 198; 2008 SCC 24, refd to. [para. 13].

R. v. Curto (W.) (2008), 234 O.A.C. 238; 2008 ONCA 161, refd to. [para. 14].

R. v. D.C.B. (1994), 95 Man.R.(2d) 220; 70 W.A.C. 220 (C.A.), refd to. [para. 15].

R. v. G.C. - see R. v. Chisholm (G.).

R. v. Chisholm (G.) (1997), 27 O.T.C. 335; 8 C.R.(5th) 61 (Gen. Div.), refd to. [para. 15].

R. v. O.B. (1995), 146 N.S.R.(2d) 265; 422 A.P.R. 265 (C.A.), refd to. [para. 15].

R. v. Ay (1994), 59 B.C.A.C. 161; 98 W.A.C. 161 (C.A.), refd to. [para. 15].

R. v. F. - see R. v. Fair (J.E.).

R. v. Fair (J.E.) (1993), 67 O.A.C. 251; 16 O.R.(3d) 1 (C.A.), refd to. [para. 15].

R. v. C.B. (2008), 237 O.A.C. 387; 2008 ONCA 486, refd to. [para. 21].

R. v. D.O.L., [1993] 4 S.C.R. 419; 161 N.R. 1; 88 Man.R.(2d) 241; 51 W.A.C. 241, refd to. [para. 24].

R. v. Khelawon (R.), [2006] 2 S.C.R. 787; 355 N.R. 267; 220 O.A.C. 338; 2006 SCC 57, refd to. [para. 24].

R. v. Griffin (J.) et al., [2009] 2 S.C.R. 42; 388 N.R. 334; 2009 SCC 28, refd to. [para. 24].

R. v. Sigmund, Howe, Defend and Curry (1967), 60 W.W.R. 257 (B.C.C.A.), refd to. [para. 25].

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, refd to. [para. 36].

R. v. Nodrick (S.D.) (2012), 280 Man.R.(2d) 223; 548 W.A.C. 223; 2012 MBCA 61, refd to. [para. 36].

Counsel:

P.V. Walsh, Q.C., for the appellant;

D. Rampersad, Q.C., and A.C. Bergen, for the respondent.

This appeal was heard on February 12, 2013, by Hamilton, Chartier and Monnin, JJ.A., of the Manitoba Court of Appeal. On July 18, 2013, Chartier, J.A., delivered the following judgment for the court.