R. v. D.M.D., (2016) 612 A.R. 395

• Judge: Fraser, C.J.A., Watson and Schutz, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: March 09, 2016
• Citations: (2016), 612 A.R. 395;2016 ABCA 77

R. v. D.M.D. (2016), 612 A.R. 395; 662 W.A.C. 395 (CA)

MLB headnote and full text

Temp. Cite: [2016] A.R. TBEd. MR.111

Her Majesty the Queen (respondent) v. D.M.D. (appellant)

(1501-0055-A; 2016 ABCA 77)

Indexed As: R. v. D.M.D.

Alberta Court of Appeal

Fraser, C.J.A., Watson and Schutz, JJ.A.

March 24, 2016.

Summary:

The appellant challenged his convictions for uttering a threat to cause death to MS on July 21, 2013 (count 2), sexual assault of MS on July 23, 2013 (count 3) and attempted murder of MS on July 23, 2013 (count 5). The appellant was also convicted of assault of MS on July 4, 2013 (count 1), but he did not appeal that conviction. The appellant also appealed the finding of guilt made against him on count 4, assault with a weapon on MS on July 23, 2013. By consent at trial, the trial judge entered a stay on that count as redundant to count 5 under R v. Kienapple.

The Alberta Court of Appeal affirmed the convictions regarding counts 2 and 3 (sexual assault and uttering a death threat). However, the court held that the trial judge erred in the manner in which he applied the legal test for attempted murder on count 5 to his findings. Nonetheless, the trial judge's finding of guilt on count 4 for the offence of assault with a weapon was unimpaired by this. It constituted a guilty finding "on another count or part of the indictment" for which a conviction could be entered by the court in substitution under s. 686(1)(b)(i) and s. 686(3) of the Criminal Code. The court therefore quashed the conviction on count 5 and entered a conviction on count 4. The court set the matter of sentence over to be spoken to at the next sittings of the court dealing with sentence appeals.

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 1257

Offences against person and reputation - Attempted murder - Elements - The Alberta Court of Appeal quashed the appellant's conviction for attempted murder of MS - The trial judge erred in the manner in which he applied the legal test for attempted murder to his fact findings - The court stated that "The trial judge accepted the Crown's submission that the appellant's stabbing the complainant in the back in the kitchen was in execution of his deliberated plan of attack dating back to the earlier time when he threatened her life. The Crown did not suggest that any other actions that day, including the wrestling on the floor over the butcher knife, constituted attempted murder. ... Clearly the appellant engaged in a cowardly attack on his wife as she was cooking. However, the common-sense inference that a person intends the natural and probable consequences of his acts does not advance the Crown position here because the natural and probable consequences of what the appellant did was not the death of MS. The Crown's theory throughout has been that the only act that day that justified the appellant's conviction for attempted murder was his stabbing MS in the back. But the Crown called no medical evidence that what the appellant did was potentially lethal. Indeed, the opposite is indicated. Put simply, the nature and extent of the injuries that MS sustained are not consistent with an intent to kill. On the fact findings here, the appellant's ongoing intent was abusive domination, not murder, consistent with his pattern as a threatening and abusive bully" - See paragraphs 25 to 30.

Criminal Law - Topic 4300

Procedure - Trial judge - Duties and functions of - Respecting credibility of witnesses (incl. accused) - The appellant challenged his conviction for sexual assault of MS on the thesis that the trial judge's acceptance of MS's evidence about what occurred in relation to that count was the product of moral prejudice - One aspect of the record said to show moral prejudice was the trial judge's reference to the appellant's attitude in these terms: "I am left with the inescapable conclusion that by this point in time, the accused considered the complainant as little more than a receptacle for his penis. The fact that the complainant acquiesced and tolerated without complaint the actions of the accused throughout this time period does nothing to enhance the credibility of the accused. It only speaks to the helplessness of the complainant's situation" - The Alberta Court of Appeal stated that "While these observations might have been worded more felicitously, they do not reflect forbidden reasoning or improper gap-filling. This is an expression of a conclusion based on the evidence, not a misuse of evidence to reach an unjustifiable conclusion. Accordingly, there is no basis on which to impugn the conviction for sexual assault" - See paragraphs 21 to 22.

Criminal Law - Topic 5449

Evidence and witnesses - Evidence respecting the accused - Character of accused (incl. discreditable conduct) - General - The appellant challenged his conviction for sexual assault of MS on the thesis that the trial judge's acceptance of MS's evidence about what occurred in relation to that count was the product of moral prejudice - First, the appellant contended that the trial judge referred to the fact the appellant had a criminal record - The Alberta Court of Appeal stated that "The appellant's counsel led the fact of the appellant's criminal record in evidence. The appellant's direct evidence effectively put his character into issue, as his counsel conceded in argument. The defence also attacked JA [a witness] as to JA's criminal record. The trial judge's reference to the appellant's criminal record did little more than rehearse what the evidence and defence argument about the appellant's criminal record was. In all the circumstances of this case, we find no moral prejudice in this" - See paragraphs 19 to 20.

Cases Noticed:

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322, refd to. [para. 2].

R. v. Kennedy (A.A.) (2016), 323 Man.R.(2d) 265; 657 W.A.C. 265; 2016 MBCA 5, refd to. [para. 2].

R. v. Loyer, [1978] 2 S.C.R. 631; 21 N.R. 181, refd to. [para. 2].

R. v. Rocheleau (M.) (2013), 311 O.A.C. 295; 2013 ONCA 679, refd to. [para. 2].

R. v. Provo, [1989] 2 S.C.R. 3; 97 N.R. 209; 59 Man.R.(2d) 1, refd to. [para. 4].

R. v. Vuradin (F.), [2013] 2 S.C.R. 639; 446 N.R. 53; 553 A.R. 1; 583 W.A.C. 1; 2013 SCC 38, refd to. [para. 15].

R. v. Lohrer (A.W.), [2004] 3 S.C.R. 732; 329 N.R. 1; 208 B.C.A.C. 1; 344 W.A.C. 1; 2004 SCC 80, refd to. [para. 18].

R. v. Fleig (C.M.) (2014), 572 A.R. 161; 609 W.A.C. 161; 2014 ABCA 97, refd to. [para. 18].

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. R.P., [2012] 1 S.C.R. 746; 429 N.R. 361; 2012 SCC 22, refd to. [para. 23].

R. v. Khela (G.S.), [2009] 1 S.C.R. 104; 383 N.R. 279; 265 B.C.A.C. 31; 446 W.A.C. 31; 2009 SCC 4, refd to. [para. 24].

R. v. Ancio, [1984] 1 S.C.R. 225; 52 N.R. 161, refd to. [para. 25].

R. v. Mantley (E.M.) (2013), 327 N.S.R.(2d) 115; 1036 A.P.R. 115; 2013 NSCA 16, refd to. [para. 27].

R. v. Goldberg (D.R.) (2014), 359 B.C.A.C. 209; 615 W.A.C. 209; 316 C.C.C.(3d) 367; 2014 BCCA 313, refd to. [para. 27].

Counsel:

B.R. Graff, for the respondent;

J.L. Ruttan, for the appellant.

This appeal was heard on March 9, 2016, before Fraser, C.J.A., Watson and Schutz, JJ.A., of the Alberta Court of Appeal. The Court of Appeal delivered the following memorandum of judgment on March 24, 2016.