R. v. D.A.R., 2012 NSCA 31

• Judge: Saunders, Beveridge and Bryson, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: January 26, 2012
• Jurisdiction: Nova Scotia
• Citations: 2012 NSCA 31;(2012), 314 N.S.R.(2d) 331 (CA)

R. v. D.A.R. (2012), 314 N.S.R.(2d) 331 (CA);

    994 A.P.R. 331

MLB headnote and full text

Temp. Cite: [2012] N.S.R.(2d) TBEd. MR.055

D.A.R. (appellant) v. Her Majesty the Queen (respondent)

(CAC 354647; 2012 NSCA 31)

Indexed As: R. v. D.A.R.

Nova Scotia Court of Appeal

Saunders, Beveridge and Bryson, JJ.A.

March 22, 2012.

Summary:

The accused was charged with indecent assault and gross indecency (Criminal Code, ss. 156 and 157). The alleged offences occurred at Truro between June 1978 and December 1980. Despite the accused's objections that it was prejudicial evidence of bad character that should not be admitted, the trial judge admitted evidence of sexual activity between the accused and the complainant, during the same period, in Prince Edward Island (P.E.I.). The trial judge convicted the accused. See [2011] N.S.R.(2d) Uned. 142. The accused appealed, arguing that: (1) the trial judge erred in admitting the evidence of sexual activity in P.E.I.; (2) alternatively, he should have limited its use to the purpose for which it had been admitted; and (3) he erred in assessing the accused's credibility.

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 688

Sexual offences, public morals and disorderly conduct - Sexual offences - Evidence - Previous or contemporaneous sexual assaults - The accused was charged with indecent assault and gross indecency - He had been hired by the complainant's father to assist in renovating the family home in Truro and a family cottage in Prince Edward Island (P.E.I.) - The alleged offences occurred at Truro between June 1978 and December 1980 - Despite the accused's objections that it was prejudicial evidence of bad character that should not be admitted, the trial judge admitted evidence of sexual activity between the accused and the complainant in P.E.I. during the same period - The trial judge convicted the accused - The accused appealed, arguing that the trial judge erred in admitting the evidence of sexual activity in P.E.I. and, alternatively, he should have limited its use to the purpose for which it had been admitted - The Nova Scotia Court of Appeal dismissed the appeal - The accused's evidence and submissions made innocent association and accident issues - The trial judge admitted the evidence of alleged acts in P.E.I. during the time period covered in the indictment as part of the narrative to provide context as to the relationship between the complainant and the accused when the alleged sexual abuse started - In argument, the Crown conceded the general rule that evidence of discreditable conduct was prima facie inadmissible - The need to show that the proposed evidence was relevant and material, that the probative value had to outweigh prejudicial effect, were all canvassed - The judge acknowledged the Crown's submission that the P.E.I. evidence could not be used to confirm the truthfulness of the alleged events in Truro - While the judge's ruling did not explicitly balance probative value against prejudicial effect, it was clear that he was aware of the governing principles, crucially that the P.E.I. evidence could not be used by him to infer guilt from disposition - Without the P.E.I. evidence, the court would have had no context or explanation for what had allegedly transpired in Truro - It showed that the accused had become a trusted family friend who stayed with them and helped explain why the complainant did not complain immediately - Further, nothing in the judge's decision indicated that he relied upon evidence of discreditable, similar acts in P.E.I. or inferred guilt from evidence of bad character which could be implied from the accused's prior misconduct - Nor did he use the P.E.I. evidence to conclude that the complainant was credible and the accused was not - However, narrative and contextual evidence could be used and relied upon for the issue of the complainant's credibility - See paragraphs 21 to 36.

Criminal Law - Topic 4352.1

Procedure - Charge or directions - Jury or judge alone - Directions regarding similar fact evidence - [See Criminal Law - Topic 688 ].

Criminal Law - Topic 4377

Procedure - Jury charge - Directions regarding credibility of witnesses - [See Criminal Law - Topic 688 ].

Criminal Law - Topic 4379

Procedure - Charge or directions - Jury or judge alone - Directions re evidence of character or credibility of - [See Criminal Law - Topic 688 ].

Criminal Law - Topic 4684

Procedure - Judgments and reasons for judgment - Reasons for judgment - Sufficiency of - The accused, in a conviction appeal, complained of the brevity of the trial judge's reasons - The Nova Scotia Court of Appeal stated that "... judges are not obliged to refer to every fact or principle upon which they have relied in the writing of their decision provided that they address key issues ..." - See paragraph 31.

Criminal Law - Topic 5020

Appeals - Indictable offences - Setting aside verdicts - Verdict unreasonable or unsupported by evidence - The accused was convicted of indecent assault and gross indecency - The Nova Scotia Court of Appeal rejected the accused's argument that the trial judge had engaged in illogical reasoning - The criticism ascribed a conclusion to the trial judge which he did not express and apparently did not reach - The accused's argument assumed the conclusion it wished to reach, namely that because he testified to many details, he was therefore credible and reliable - It was not illogical to say that the complainant's evidence was more believable notwithstanding that it was vague owing to the passage of time because the complainant was then a child - The trial judge's reasoning was not plainly contradicted by the evidence that he relied upon, nor was it demonstrably incompatible with evidence that was otherwise uncontradicted or rejected by the trial judge - See paragraphs 43 to 47.

Criminal Law - Topic 5209

Evidence and witnesses - Admissibility and relevancy - Prejudicial evidence - [See Criminal Law - Topic 688 ].

Criminal Law - Topic 5213

Evidence and witnesses - Admissibility and relevancy - Similar acts - When admissible - [See Criminal Law - Topic 688 ].

Criminal Law - Topic 5214.9

Evidence and witnesses - Admissibility and relevance - Voir dire - General (incl. time for) - The accused was charged with indecent assault and gross indecency - He had been hired by the complainant's father to assist in renovating the family home in Truro and a family cottage in Prince Edward Island (P.E.I.) - The alleged offences occurred at Truro between June 1978 and December 1980 - Despite the accused's objections that it was prejudicial evidence of bad character that should not be admitted, the trial judge admitted evidence of sexual activity between the accused and the complainant, during the same period, in P.E.I. - The trial judge convicted the accused - The accused appealed, arguing, inter alia, that the trial judge erred in admitting the evidence of sexual activity in P.E.I. - On appeal, the accused first raised the need for a voir dire - The Nova Scotia Court of Appeal noted that the Crown had made the nature of the evidence clear - The court held that this was sufficient for the court to consider admissibility in light of the governing legal principles - See paragraphs 14 to 20.

Criminal Law - Topic 5449

Evidence and witnesses - Evidence respecting the accused - Character of accused (incl. discreditable conduct) - General - [See Criminal Law - Topic 688 ].

Evidence - Topic 1176

Relevant facts - Relevance and materiality - Res gestae (incl. narrative) - General - [See Criminal Law - Topic 688 ].

Evidence - Topic 1256

Relevant facts - Relevance and materiality - Similar acts - To prove criminal conduct - [See Criminal Law - Topic 688 ].

Cases Noticed:

R. v. Handy (J.), [2002] 2 S.C.R. 908; 290 N.R. 1; 160 O.A.C. 201; 2002 SCC 56, refd to. [para. 12].

R. v. C.J. (2011), 307 N.S.R.(2d) 200; 975 A.P.R. 200; 2011 NSCA 77, refd to. [para. 12].

R. v. Kennedy, [1993] N.S.J. No. 339 (S.C.), refd to. [para. 16].

R. v. Truscott - see Truscott, Re.

Truscott, Re (2006), 216 O.A.C. 217 (C.A.), refd to. [para. 18].

R. v. Hodgson (M.C.) - see R. v. M.C.H.

R. v. M.C.H., [1998] 2 S.C.R. 449; 230 N.R. 1; 113 O.A.C. 97, refd to. [para. 19].

R. v. Mafi (K.) (1998), 114 B.C.A.C. 161; 186 W.A.C. 161 (C.A.), refd to. [para. 19].

R. v. Tran (Q.D.) (2001), 190 N.S.R.(2d) 18; 594 A.P.R. 18; 2001 NSCA 2, refd to. [para. 19].

R. v. S.G.T., [2010] 1 S.C.R. 688; 402 N.R. 24; 350 Sask.R. 14; 487 W.A.C. 14; 2010 SCC 20, refd to. [para. 19].

R. v. Magloir (D.C.) (2003), 216 N.S.R.(2d) 257; 680 A.P.R. 257; 178 C.C.C.(3d) 310; 2003 NSCA 74, refd to. [para. 23].

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

R. v. Fair (J.E.) (1993), 67 O.A.C. 251; 85 C.C.C.(3d) 457 (C.A.), refd to. [para. 23].

R. v. O.B. (1995), 146 N.S.R.(2d) 265; 422 A.P.R. 265 (C.A.), refd to. [para. 23].

R. v. Assoun (G.E.) (2006), 244 N.S.R.(2d) 96; 774 A.P.R. 96; 2006 NSCA 47, refd to. [para. 23].

R. v. T.E.H. (2011), 310 N.S.R.(2d) 348; 983 A.P.R. 348; 2011 NSCA 117, refd to. [para. 31].

R. v. J.M. (2010), 258 O.A.C. 81 (C.A.), refd to. [para. 33].

R. v. D.S.F. (1999), 118 O.A.C. 272; 132 C.C.C.(3d) 97 (C.A.), refd to. [para. 34].

R. v. L.B.; R. v. M.A.G. (1997), 102 O.A.C. 104; 116 C.C.C.(3d) 481 (C.A.), refd to. [para. 35].

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351, refd to. [para. 42].

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. 43].

R. v. Beaudry (A.), [2007] 1 S.C.R. 190; 356 N.R. 323; 216 C.C.C.(3d) 353; 2007 SCC 5, refd to. [para. 43].

R. v. Sinclair (T.) (2011), 418 N.R. 282; 268 Man.R.(2d) 225; 520 W.A.C. 225; 2011 SCC 40, refd to. [para. 43].

R. v. B.W., [2012] N.S.R.(2d) Uned. 24; 2012 NSCA 13, refd to. [para. 43].

R. v. Veinot (K.A.) (2011), 311 N.S.R.(2d) 267; 985 A.P.R. 267; 2011 NSCA 120, refd to. [para. 43].

R. v. MacIntosh (E.F.) (2011), 310 N.S.R.(2d) 274; 983 A.P.R. 274; 2011 NSCA 111, refd to. [para. 43].

R. v. Abourached (N.) (2007), 259 N.S.R.(2d) 379; 828 A.P.R. 379; 2007 NSCA 109, refd to. [para. 48].

R. v. R.W., [1992] 2 S.C.R. 122; 137 N.R. 214; 54 O.A.C. 164; 74 C.C.C.(3d) 134, refd to. [para. 51].

R. v. Burke (J.) (No. 3), [1996] 1 S.C.R. 474; 194 N.R. 247; 139 Nfld. & P.E.I.R. 147; 433 A.P.R. 147, dist. [para. 53].

Counsel:

Craig M. Garson, Q.C., and Cory Roberts, for the appellant;

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

This appeal was heard at Halifax, N.S., on January 26, 2012, by Saunders, Beveridge and Bryson, JJ.A., of the Nova Scotia Court of Appeal. Bryson, J.A., delivered the following decision for the court on March 22, 2012.