R. v. D.R., H.R. and D.W., (1995) 131 Sask.R. 81 (CA)

JudgeCameron, Vancise and Gerwing, JJ.A.
CourtCourt of Appeal (Saskatchewan)
Case DateMay 10, 1995
JurisdictionSaskatchewan
Citations(1995), 131 Sask.R. 81 (CA)

R. v. D.R. (1995), 131 Sask.R. 81 (CA);

    95 W.A.C. 81

MLB headnote and full text

D.R., H.R. and D.W. (appellants) v. Her Majesty The Queen (respondent)

(Appeal File Nos.: 5984, 5972 and 5976)

Indexed As: R. v. D.R., H.R. and D.W.

Saskatchewan Court of Appeal

Cameron, Vancise and Gerwing, JJ.A.

May 10, 1995.

Summary:

The accused were tried together on an indictment containing numerous counts alleging that between January 1, 1983, and December 31, 1989, they committed a num­ber of offences involving the sexual and physical abuse of three children of the accused D.R. and H.R., a boy and two girls. The trial judge found each of the accused guilty of sexually assaulting each of the children. She also found D.R. guilty of assaulting the two girls, causing them bodily harm. H.R. was also convicted of assaulting the boy, causing him bodily harm and as­saulting him with a knife. D.R. and H.R. were each sentenced to six years' imprison­ment. D.W. was sentenced to three years' imprisonment. The three accused appealed against their convictions and sentences.

The Saskatchewan Court of Appeal, Van­cise, J.A., dissenting, dismissed the appeals.

Criminal Law - Topic 4570

Procedure - Conduct of trial - Re-open­ing of trial to hear additional evidence - An accused (D.W.) was convicted of sex­ually assaulting three children - While awaiting sentence, the accused retained new counsel and applied to give evidence in his own defence - The trial judge dis­missed the application to re-open the trial - On appeal, the accused argued that the trial judge erred because she did not con­sider that she might have found the accused to be a truthful witness and might have been left with a reasonable doubt about his guilt had she heard his evidence - The Saskatchewan Court of Appeal dismissed the ground of appeal - See paragraphs 241 to 244.

Criminal Law - Topic 4865

Appeals - Indictable offences - Grounds of appeal - Verdict unreasonable or un­supported by evidence - Three accused were convicted of offences involving the physical and sexual abuse of the children of two of the accused - The accused appealed their convictions on the ground that the verdicts were unreasonable or unsupported by the evidence (Criminal Code, s. 686(1)(a)(i)) - The principal challenge to the verdicts was that the findings of credibility in relation to the children and their evidence were unrea­sonable - The Saskatchewan Court of Appeal dismissed the ground of appeal - The court was unable to find that the trial judge's findings of credibility were unrea­sonable in the sense that no properly instructed judge or jury acting judicially could reasonably have made such findings - See paragraphs 212 to 233.

Criminal Law - Topic 4970

Appeals - Indictable offences - Powers of Court of Appeal - Receiving fresh evi­dence - General - An accused (H.R.) appealed her convictions for offences involving the physical and sexual abuse of her children - The accused sought to admit fresh evidence consisting of a cer-ti­ficate confirming the conviction of another person for sexually assaulting each of the children while they were in foster care - The accused's counsel argued that the conviction was relevant in view of the expert evidence that the three children exhibited symptoms consistent with having been sexually abused - The Saskatchewan Court of Appeal held that it would not admit the proposed new evidence where it could not have affected the result at trial - See paragraphs 234 to 239.

Criminal Law - Topic 5420

Evidence and witnesses - Witnesses - Out of court statements - An accused (D.R.) appealed his convictions for offences involving physical and sexual abuse of his children - The accused argued that the trial judge erred in admitting out of court statements made by one of the children - The accused contended that since the child had been permitted to testify there was no room for admission of the statements by way of hearsay evidence - The Saskatchewan Court of Appeal rejected the argument - See paragraph 157.

Criminal Law - Topic 5420

Evidence and witnesses - Witnesses - Out of court statements - [See Evidence - Topic 1527 ].

Criminal Law - Topic 5461

Evidence and witnesses - Evidence of children - General - [See Evidence - Topic 4543 ].

Criminal Law - Topic 5883

Sentence - Assault with a weapon or assault causing bodily harm - [See first and second Criminal Law - Topic 5932 ].

Criminal Law - Topic 5932

Sentence - Sexual assault - An accused (D.R.) was convicted of three counts of sexual assault of his three young children between January 1983 and December 1989 - The accused was also convicted of two counts of assault causing bodily harm against two of the children during that time period - The children had been sub­jected to continued sexual and physical abuse which had profoundly affected each of them - The accused was sentenced to six years' imprisonment - The Saskatchewan Court of Appeal affirmed the sentence - See paragraph 245.

Criminal Law - Topic 5932

Sentence - Sexual assault - An accused (H.R.) was convicted of three counts of sexual assault of her three young children between January 1983 and December 1989 - The accused was also convicted of assault causing bodily harm and using a weapon while committing an assault with respect to one of the children during the same time period - The children had been subjected to continued sexual and physical abuse which had profoundly affected each of them - The accused was sentenced to six years' imprisonment - The Saskatchewan Court of Appeal affirmed the sentence - See paragraph 245.

Criminal Law - Topic 5932

Sentence - Sexual assault - An accused (D.W.) was convicted of three counts of sexual assault of the three young children of his common law wife between January 1983 and December 1989 - The children had been subjected to continued abuse which profoundly affected each of them - The accused was sentenced to three years' imprisonment - The Saskatchewan Court of Appeal affirmed the sentence - See paragraph 245.

Evidence - Topic 1527

Hearsay rule - Hearsay rule exceptions and exclusions - Where admission of hearsay necessary and evidence reliable - An accused (D.R.) was charged with sex­ual offences against his children - A foster mother had noticed that following a visit with the accused, the vaginal area of one of the children was irritated and her pan­ties appeared to have blood on them - When asked what happened, the girl replied "My daddy touched me" - The girl also told a doctor the next day that "My deaf daddy spanked my bum, then he put his fingers in my bum. It hurt" - The child was unable to recall the occasion at the trial five years later - The trial judge admitted the out of court statements, hold­ing that they were reasonably necessary and sufficiently reliable - The Saskatchewan Court of Appeal held that the trial judge did not err - See paragraphs 148 to 166.

Evidence - Topic 3092

Documentary evidence - Secondary evi­dence - General - Transcripts - Three accused were charged with offences in­volving sexual abuse of children - A therapist gave evidence concerning the characteristics of sexually abused children - The witness was cross-examined about interviews of the children for which she had been present - Defence counsel had had videotapes of the interviews tran­scribed and the witness was invited to refresh her memory by referring to that "transcript" - The document had not been proved or entered into evidence - The trial judge made a ruling preventing use of the document in cross-examining the witness - On appeal from their subsequent convic­tions, the accused raised various grounds of appeal with respect to the trial judge's ruling - The Saskatchewan Court of Appeal rejected those grounds of appeal - See paragraphs 111 to 131.

Evidence - Topic 4023

Witnesses - General - Credibility - Oath-helping - [See Evidence - Topic 7157 ].

Evidence - Topic 4543

Witnesses - Attendance and oath - Oath - Child of tender years - An accused (D.W.) who was convicted of sexually assaulting three children argued that the trial judge failed to conduct an adequate inquiry under s. 16(1) of the Canada Evidence Act to determine whether the child complain­ants understood the nature of an oath and were able to communicate the evidence - At the time of trial, the children were aged 13, 10 and 10 - Before receiving their evidence, the trial judge had briefly ques­tioned each of them with an eye to s. 16 of the Act and invited suggestions as to fur­ther inquiry - None were made - The children were permitted to testify under oath - The Saskatchewan Court of Appeal held that the children's evidence was prop­erly and appropriately received under oath - See paragraphs 28 to 32 and paragraphs 266 to 271.

Evidence - Topic 4681

Witnesses - Examination - Testimonial recollection or refreshing witness's memory - Refreshing memory - In court - [See Evidence - Topic 3092 ].

Evidence - Topic 5544

Witnesses - Competency and compellability - Competency - Child of tender years - [See Evidence - Topic 4543 ].

Evidence - Topic 7001

Opinion evidence - Expert evidence - General - Qualifications and declaration that a witness is an expert - An accused (D.R.) was convicted of offences involving physical and sexual abuse of children - The accused argued that the trial judge erred in qualifying a general practitioner as an expert witness to give evidence as to the nature and causes of physical injury that might bear upon sexual abuse - The doctor had been practising for about 10 years when he examined the children and had taken a particular interest in sexual abuse of children - He had attended sem­inars and researched the literature and had spoken and testified on the subject - The Saskatchewan Court of Appeal held that the trial judge did not err in qualifying the doctor as she did - See paragraphs 89 to 110.

Evidence - Topic 7001

Opinion evidence - Expert evidence - General - Qualifications and declaration that a witness is an expert - During a trial respecting offences involving physical and sexual abuse of children, the trial judge qualified a therapist as an expert witness to give evidence concerning the behavioral, social and emotional characteristics of sexually abused children - The Saskatchewan Court of Appeal referred to the points that generally there was a low threshold for qualification and that opinion evidence going to the behavioral charac­teristics of sexually abused children was generally admissible - The court held that consider­ing those points and having regard for the education and experience of the witness, the trial judge did not err in qual­ifying the witness as she did - See para­graphs 111 to 124.

Evidence - Topic 7052

Opinion evidence - Expert evidence - Particular matters - Child abuse - [See second Evidence - Topic 7056 and Evi­dence - Topic 7157 ].

Evidence - Topic 7056

Opinion evidence - Expert evidence - Particular matters - Sexual abuse - [See both Evidence - Topic 7001 and Evi­dence - Topic 7157 ].

Evidence - Topic 7056

Opinion evidence - Expert evidence - Particular matters - Sexual abuse - Three accused were charged with offences in­volving physical and sexual abuse of three children - A psychologist testified for the defence - The trial judge stated that she was prepared to accept the witness's theory of and experience with visual and verbal memory, but he could not testify to what the children told him they could or could not visualize, nor to his conclusions - On appeal from their subsequent convictions, the accused argued that the trial judge erred in refusing to hear the results of the witness's examination of the children re­specting their memories and his con­clusions regarding the children's abilities to recollect - The Saskatchewan Court of Appeal rejected the arguments - See para­graphs 174 to 193.

Evidence - Topic 7157

Opinion evidence - Prohibited opinions - Re credibility of witnesses - Three accused were charged with offences in­volving sexual abuse of children - A child psychiatrist was called by the Crown as an expert in "child development" and "the characteristics of abused children" - On appeal from their subsequent convictions, two of the accused (D.R. and D.W.) argued that portions, if not all, of the expert's opinion evidence should not have been received, because it was adduced for the purpose of bolstering the children's credibility in contravention of the rule against oath helping - The Saskatchewan Court of Appeal rejected those grounds of appeal - See paragraphs 132 to 147.

Cases Noticed:

R. v. Nielsen and Stolar, [1988] 1 S.C.R. 480; 82 N.R. 280; 52 Man.R.(2d) 46; 62 C.R.(3d) 313; [1988] 3 W.W.R. 193; 40 C.C.C.(3d) 1, refd to. [para. 21].

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181; 50 C.C.C.(2d) 193, appld. [para. 21].

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351; 36 C.C.C.(3d) 417; 59 C.R.(3d) 108; 17 B.C.L.R.(2d) 1; [1987] 6 W.W.R. 97; 43 D.L.R.(4th) 424, consd. [para. 26].

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; 13 C.R.(4th) 257, consd. [para. 26].

R. v. François (L.), [1994] 2 S.C.R. 827; 169 N.R. 241; 73 O.A.C. 161, consd. [para. 26].

R. v. Marquard (D.), [1993] 4 S.C.R. 223; 159 N.R. 81; 66 O.A.C. 161; 25 C.R.(4th) 1, consd. [para. 31].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241, appld. [para. 90].

R. v. Abbey, [1982] 2 S.C.R. 24; 43 N.R. 30; [1983] 1 W.W.R. 251; 39 B.C.L.R. 201; 138 D.L.R.(3d) 202; 68 C.C.C.(2d) 394; 29 C.R.(3d) 193, appld. [para. 92].

R. v. Burns (R.H.), [1994] 1 S.C.R. 656; 165 N.R. 374; 42 B.C.A.C. 161; 67 W.A.C. 161, refd to. [para. 123].

R. v. G.B. et al. (No. 2), [1990] 2 S.C.R. 30; 111 N.R. 31; 86 Sask.R. 111; 56 C.C.C.(3d) 200; 77 C.R.(3d) 347, consd. [para. 123].

R. v. Béland and Phillips, [1987] S.C.R. 398; 79 N.R. 263; 9 Q.A.C. 293, refd to. [para. 139].

R. v. Khan, [1990] 2 S.C.R. 531; 113 N.R. 53; 41 O.A.C. 353; 59 C.C.C.(3d) 92; 79 C.R.(3d) 1, appld. [para. 148].

R. v. Smith (A.L.), [1992] 2 S.C.R. 915; 139 N.R. 323; 55 O.A.C. 321; 15 C.R.(4th) 133, appld. [para. 152].

Khan v. College of Physicians and Sur­geons (Ont.) (1992), 57 O.A.C. 115; 76 C.C.C.(3d) 10; 9 O.R.(3d) 641; 94 D.L.R.(4th) 193 (C.A.), consd. [para. 158].

R. v. Bevan and Griffith, [1993] 2 S.C.R. 599; 154 N.R. 245; 64 O.A.C. 165, refd to. [para. 166].

R. v. Corbett, [1975] 2 S.C.R. 275; 1 N.R. 258, refd to. [para. 232].

R. v. Osiowy and Osiowy (1989), 80 Sask.R. 14; 52 C.C.C.(3d) 500 (C.A.), refd to. [para. 264].

R. v. H.W.C. (1993), 113 Sask.R. 73; 52 W.A.C. 73 (C.A.), refd to. [para. 264].

McMartin v. R., [1964] S.C.R. 484, refd to. [para. 264].

R. v. McAnsebie (R.B.), [1993] 4 S.C.R. 501; 162 N.R. 155; 68 O.A.C. 185; 86 C.C.C.(3d) 191, refd to. [para. 264].

R. v. Price (S.L.), [1993] 3 S.C.R. 633; 157 N.R. 378; 145 A.R. 231; 55 W.A.C. 231, refd to. [para. 264].

R. v. Bannerman (1966), 48 C.R. 110; 55 W.W.R.(N.S.) 257 (Man. C.A.), refd to. [para. 269].

Ares v. Venner, [1970] S.C.R. 608; 73 W.W.R.(N.S.) 347, refd to. [para. 281].

R. v. Collins (1991), 9 C.R.(4th) 377 (Ont. C.A.), refd to. [para. 285].

R. v. G.F. (1991), 10 C.R.(4th) 93 (Ont. Gen. Div.), refd to. [para. 292].

R. v. Aguilar (E.G.) (1992), 57 O.A.C. 152; 10 O.R.(3d) 266; 77 C.C.C.(3d) 462 (C.A.), refd to. [para. 293].

R. v. McNabb (1979), 1 Sask.R. 47 (C.A.), refd to. [para. 321].

R. v. Cassibo (1982), 70 C.C.C.(2d) 498 (Ont. C.A.), refd to. [para. 321].

R. v. P.L.S., [1991] 1 S.C.R. 909; 122 N.R. 321; 90 Nfld. & P.E.I.R. 234; 280 A.P.R. 234; 5 C.R.(4th) 351; 64 C.C.C.(3d) 193, consd. [para. 325].

R. v. MacDonald, [1977] 2 S.C.R. 665; 9 N.R. 271, refd to. [para. 336].

R. v. Harper, [1982] 1 S.C.R. 2; 40 N.R. 255, refd to. [para. 336].

R. v. Dupuis (1992), 97 Sask.R. 126; 12 W.A.C. 126; 12 C.R.(4th) 185 (C.A.), refd to. [para. 336].

R. v. McLaughlin (1974), 15 C.C.C.(2d) 562; 2 O.R.(2d) 514 (C.A.), refd to. [para. 355].

Smith v. R. (1980), 18 C.R.(3d) 399 (Ont. C.A.), refd to. [para. 355].

R. v. Hunt, [1968] 2 Q.B. 433 (C.A.), refd to. [para. 355].

Statutes Noticed:

Canada Evidence Act, R.S.C. 1985, c. C-5, sect. 16 [para. 28].

Criminal Code, R.S.C. 1985, c. C-46, sect. 267, sect. 271(1)(a), sect. 276(1)(a) [para. 2]; sect. 675(1)(a)(i) [para. 24]; sect. 686(1)(a)(i) [para. 212]; sect. 686(1)(a)(ii) [para. 24]; sect. 686(1)(b)(iii) [para. 166].

Authors and Works Noticed:

Ewart, J. Douglas, Documentary Evidence in Canada (1984), p. 272 [para. 320].

Mewett, A., Editorial-Credibility and Consistency (1991), 33 Crim. L.Q. 385, p. 386 [para. 308].

Sopinka, John, S.N. Lederman and A.W. Bryant, The Law of Evidence in Canada (1992), p. 854 [para. 320].

Counsel:

J.D. Hillson, for H.R.;

R.J. Kergoat, for D.R.;

D.L. MacKinnon, for D.W.;

K.W. MacKay, Q.C., for the Crown.

This appeal was heard on December 14, 1993, before Cameron, Vancise and Gerwing, JJ.A., of the Saskatchewan Court of Appeal.

The judgment of the Court of Appeal was delivered on May 10, 1995, when the fol­lowing opinions were filed:

Cameron, J.A. (Gerwing, J.A., concur­ring) - see paragraphs 1 to 246;

Vancise, J.A., dissenting - see paragraphs 247 to 371.

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