R. v. D.R.S., (2013) 542 A.R. 92

• Judge: Watson, Slatter and Bielby, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: December 07, 2012
• Citations: (2013), 542 A.R. 92;2013 ABCA 18

R. v. D.R.S. (2013), 542 A.R. 92; 566 W.A.C. 92 (CA)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. JA.093

Her Majesty the Queen (applicant/respondent) v. D.R.S. (respondent/appellant)

(1003-0019-A; 2013 ABCA 18)

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

Alberta Court of Appeal

Watson, Slatter and Bielby, JJ.A.

January 21, 2013.

Summary:

The accused was convicted of sexual assault and related offences in 1995, and sentenced to eight years' imprisonment. His appeal was dismissed in 1996. In 2001 he applied to the Minister of Justice under s. 696.1 of the Criminal Code for ministerial review of his conviction on the grounds of a possible miscarriage of justice, as the complainant had recanted his allegations. Although the Parole Board was aware that the complainant's retractions were then being examined, the accused was denied early release because the Board believed he presented a risk of offending further. He served his entire sentence. After an investigation, the Minister of Justice brought the following reference under s. 696.3 of the Criminal Code: "In the circumstances of this case, would any or all of the recantations of [the complainant] be admissible as fresh evidence on appeal to the Court of Appeal?" The Minister further directed that if the recantations were admissible, the Court of Appeal should consider and decide the appeal on the basis of the new record, as contemplated by s. 696.3(3). The Crown conceded the admissibility of the fresh evidence, and once admissibility was admitted, also conceded that the convictions were unsafe.

The Alberta Court of Appeal, in answer to the Minister's reference, held that the evidence should be admitted as fresh evidence. The court allowed the appeal and directed a verdict of acquittal (Code, s. 686(2)(a)).

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 4965.2

Appeals - Indictable offences - New trials - Where sentence served or partially served - In 1995, the accused was convicted of sexually assaulting his common law partner's nine year old son - The complainant testified at the preliminary hearing and trial that the assaults occurred - He was cross-examined on evidence that he had recanted some of his allegations, but held firm - The accused testified and denied that the assaults occurred - At the time of the alleged assaults, the complainant's parents were engaged in a custody battle - In 2000, after the complainant had returned to live with his mother, he recanted the allegations - He now said that he made the allegations because his father threatened him with a knife - The accused applied for a Ministerial review of his conviction - A reference for a review of the conviction under s. 696.3 of the Criminal Code followed - The Alberta Court of Appeal allowed the appeal and directed a verdict of acquittal under s. 686(2)(a) - It would be unfair to direct another trial - Eighteen years had passed since the conviction; 13 since the recantation - The accused had served his entire sentence - It was clearly more probable than not that he would be acquitted at a new trial - See paragraphs 12 to 19.

Criminal Law - Topic 4970

Appeals - Indictable offences - Powers of Court of Appeal - Receiving fresh evidence - General - In 1995, the accused was convicted of sexually assaulting his common law partner's nine year old son - The complainant testified at the preliminary hearing and trial that the assaults occurred - He was cross-examined on evidence that he had recanted some of his allegations, but held firm - The accused testified and denied that the assaults occurred - At the time of the alleged assaults, the complainant's parents were engaged in a custody battle - In 2000, after the complainant had returned to live with his mother, he recanted the allegations - He now said that he made the allegations because his father threatened him with a knife - After an investigation, the Minister of Justice brought a reference under s. 696.3 of the Criminal Code to determine whether any or all of the complainant's recantations would be admissible as fresh evidence on appeal - The Alberta Court of Appeal held that the evidence should be admitted as fresh evidence - See paragraphs 1 to 11.

Criminal Law - Topic 5058

Appeals - Indictable offences - Substitution of verdict - Substitution of verdict of acquittal - [See Criminal Law - Topic 4965.2 ].

Cases Noticed:

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181, appld. [para. 9].

R. v. Jack (B.G.), [1997] 2 S.C.R. 334; 214 N.R. 294; 118 Man.R.(2d) 168; 149 W.A.C. 168, refd to. [para. 12].

R. v. N.M. et al. (2007), 404 A.R. 327; 394 W.A.C. 327; 2007 NWTCA 3, refd to. [para. 12].

R. v. Phillion (R.J.) (2009), 246 O.A.C. 317; 241 C.C.C.(3d) 193; 2009 ONCA 202, dist. [para. 13].

R. v. M.H.C., [1991] 1 S.C.R. 763; 123 N.R. 63, refd to. [para. 13].

R. v. Mullins-Johnson (W.) (2007), 231 O.A.C. 64; 228 C.C.C.(3d) 505; 2007 ONCA 720, refd to. [para. 15].

Truscott, Re (2007), 226 O.A.C. 200; 225 C.C.C.(3d) 321; 2007 ONCA 575, appld. [para. 15].

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. 16].

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. 16].

R. v. Duguay - see R. v. Taillefer (B.).

R. v. Taillefer (B.), [2003] 3 S.C.R. 307; 313 N.R. 1; 2003 SCC 70, refd to. [para. 18].

R. v. McArthur (R.L.) (1999), 232 A.R. 349; 195 W.A.C. 349; 1999 ABCA 119, refd to. [para. 18].

Counsel:

M.J. McGuire, for the applicant/respondent;

T.P. Glancy, for the respondent/appellant.

This appeal was heard by way of written submissions filed on October 30 and December 7, 2012, and January 2, 2013, by Watson, Slatter and Bielby, JJ.A., of the Alberta Court of Appeal. The Court of Appeal delivered the following memorandum of judgment on January 21, 2013.