R. v. Davis (G.N.), (1998) 159 Nfld. & P.E.I.R. 273 (NFCA)

• Judge: O'Neill, Steele and Green, JJ.A.
• Court: Court of Appeal (Newfoundland)
• Case Date: January 29, 1998
• Jurisdiction: Newfoundland and Labrador
• Citations: (1998), 159 Nfld. & P.E.I.R. 273 (NFCA)

R. v. Davis (G.N.) (1998), 159 Nfld. & P.E.I.R. 273 (NFCA);

    492 A.P.R. 273

MLB headnote and full text

Temp. Cite: [1998] Nfld. & P.E.I.R. TBEd. FE.009

Glenn Norman Davis (appellant) v. Her Majesty The Queen (respondent)

(No. 93/176)

Indexed As: R. v. Davis (G.N.)

Newfoundland Supreme Court

Court of Appeal

O'Neill, Steele and Green, JJ.A.

January 29, 1998.

Summary:

An accused was convicted on five counts of sexual assault, one count of extortion and one count of attempted extortion and acquitted on two counts of sexual assault and one count of buggery. The accused appealed.

The Newfoundland Court of Appeal, O'Neill, J.A., dissenting, dismissed the appeal.

Editor's note: For the decision on sentencing see 110 Nfld. & P.E.I.R. 299; 346 A.P.R. 299.

Barristers and Solicitors - Topic 1808

The prosecutor - Duty of disclosure - [See first Civil Rights - Topic 3133 ].

Civil Rights - Topic 3126

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Fair hearing - What constitutes - An accused sought to stay his trial for sexual offences on the basis of inadequate and untimely disclos­ure of the Crown's intention to call expert evidence (Charter, 24(1)) - The trial judge indicated that there was insufficient evi­dence relating to relevance and prejudice and deferred ruling pending further testi­mony - The judge denied a stay and con­victed the accused on seven counts - The Newfoundland Court of Appeal affirmed the denial of a stay - Assuming a Charter breach, a stay was inappropriate - At most the accused was entitled to an adjournment - In any event, the trial judge did not rely on the evidence in convicting the accused - There was no evidence that he did not receive a fair trial or was prevented from making full answer and defence - See paragraphs 8 to 29.

Civil Rights - Topic 3133

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right of accused to make full answer and defence - The New­foundland Court of Appeal reviewed the Crown's duty to make timely disclosure to the defence in a criminal trial, an accused's right to make full answer and defence under ss. 7 and 11(d) of the Charter, Charter remedies for non-disclosure in contravention of ss. 7 and 11(d) and an accused's common law right to a fair trial - See paragraphs 8 to 15.

Civil Rights - Topic 3133

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right of accused to make full answer and defence - [See Civil Rights - Topic 3126 ].

Civil Rights - Topic 3155

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Notice of intention to offer evidence - [See Civil Rights - Topic 3126 ].

Civil Rights - Topic 8367

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - General - [See first Civil Rights - Topic 3133 ].

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - [See Civil Rights - Topic 3126 ].

Civil Rights - Topic 8380.16

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Adjourn­ments - [See Civil Rights - Topic 3126 ].

Civil Rights - Topic 8403

Canadian Charter of Rights and Freedoms - Criminal proceedings - Stay of proceed­ings - [See Civil Rights - Topic 3126 ].

Criminal Law - Topic 82

General principles - Res judicata (multiple convictions for same subject matter pre­cluded) - Bars to raising defence - An accused took compromising photographs of a complainant with her consent - The accused threatened to release the photo­graphs if the complainant did not have sexual relations with him - The complain­ant complied - The accused was convicted for extortion and sexual assault - The accused appealed, asserting that one of the charges should be stayed on the basis of the Kienapple principle - The Newfound­land Court of Appeal held that the Kien­apple principle did not apply where the requirement of a sufficient legal nexus between the offences had not been sat­isfied - The societal interest protected by the criminalization of the acts underlying the two offences were different - See paragraphs 100 to 107.

Criminal Law - Topic 128

General principles - Rights of accused - Right to make full answer and defence - [See first Civil Rights - Topic 3133 ].

Criminal Law - Topic 666

Sexual offences, rape or sexual assault - Consent and extorted consent - Section 265(1) and 265(2) provided that a person committed an assault, including a sexual assault, when he applied force intentionally to another person, directly or indirectly, without the other person's consent - Sec­tion 265(3)(b) provided that no consent was obtained when the complainant sub­mits or does not resist by reason of "threats or fear of the application of force to the complainant or to a person other than the complainant" - The Newfound­land Court of Appeal held that s. 265(3)(b) required that the fear and the threats must relate to the application of force - See paragraph 75.

Criminal Law - Topic 666

Sexual offences, rape or sexual assault - Consent and extorted consent - Sections 265(1) and 265(2) of the Criminal Code provided that a person committed an assault, including a sexual assault, when he applied force intentionally to another per­son, directly or indirectly, without the other person's consent - Section 265(3) listed circumstances where submission as a result of threats did not constitute con­sent - The Newfoundland Court of Appeal, held that categories of vitiation of consent listed under s. 265(3) was not exhaustive and that there could be situ­ations where apparent consent could be shown not to have existed - See para­graphs 77 to 98.

Criminal Law - Topic 666

Sexual offences, rape or sexual assault - Consent and extorted consent - An accused took compromising photographs of a complainant with her consent - The accused threatened to release the photo­graphs if the complainant did not have sexual relations with him - The complain­ant complied - The accused appealed his subsequent conviction for sexual assault, asserting that the complainant had con­sented - Section 265(1) and 265(2) of the Criminal Code provided that a person committed a sexual assault, when he applied force intentionally to another per­son without the other person's consent - Section 265(3) listed circumstances where submission as a result of threats did not constitute consent - The Newfoundland Court of Appeal affirmed the conviction, holding that the complainant had not con­sented, notwithstanding that the threats did not fall within the s. 265(3) categories - See paragraphs 69 to 99.

Criminal Law - Topic 674

Sexual offences, rape or sexual assault - Defences - Mistake of fact - An accused advised the complainant that he was a photographer and misrepresented that he had connections to modelling agencies - The complainant permitted the accused to take compromising photographs of her - While the complainants hands were tied to overhead hooks, the accused fondled her without consent - The complainant indi­cated that the touching was unwanted - The accused stopped - The accused appealed his sexual assault conviction, asserting that the trial judge failed to con­sider the defence that he had an honest belief that the complainant was consenting - The Newfoundland Court of Appeal held that the trial judge was justified in not considering the defence of honest belief, where it had no air of reality - Alterna­tively, given the weakness of the evidence in support of the defence, there was no miscarriage of justice in affirming the conviction - See paragraphs 108 to 131.

Criminal Law - Topic 1422

Assaults - Defence - Consent - [See all Criminal Law - Topic 666 ].

Criminal Law - Topic 1750

Offences against property - Extortion - General - Section 346(1) of the Criminal Code provided that "[e]veryone commits 'extortion' who, without reasonable justifi­cation or excuse and with intent to obtain anything, by threats, accusations, menaces or violence induces or attempts to induce any person, whether or not he is the person threatened, accused or menaced or to whom violence is shown, to do anything or cause anything to be done" - The New­foundland Court of Appeal held that intan­gibles like sexual favours could constitute "anything" for the purpose of s. 346 - See paragraphs 57, 58.

Criminal Law - Topic 1752

Offences against property - Extortion - What constitutes - An accused took com­promising photographs of the complainants with their consent - He subsequently advised the complainants that he would release the photographs if they did not have sexual relations with him - The accused was convicted of extortion and attempted extortion pursuant to s. 346(1) of the Criminal Code - The Newfoundland Court of Appeal affirmed the convictions - There was sufficient evidence to conclude that there was (1) a threat, (2) an intent to obtain sexual favours, (3) an inducement or attempted inducement and (3) the absence of reasonable justification or excuse for the use of the threat and the making of the inducement - See para­graphs 43 to 68.

Criminal Law - Topic 4502

Procedure - Trial - Special duties of Crown - Duty to provide list of Crown witnesses and a summary of their evidence - [See Civil Rights - Topic 3126 ].

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - [See first Civil Rights - Topic 3133 ].

Criminal Law - Topic 5045

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - What constitutes a substantial wrong or miscarriage of justice - [See Criminal Law - Topic 674 ].

Criminal Law - Topic 5213

Evidence and witnesses - Admissibility and relevancy - Similar acts - When admissible - An accused was charged with sexual offences involving seven complain­ants - The trial judge allowed similar fact evidence from each complainant and other witnesses that the accused held himself out as a photographer with connections to modelling agencies - The accused appealed his subsequent convictions, as­serting that the evidence should have been excluded, because its sole purpose was to show that he was "sort of person who would be likely to have committed the offences" - The Newfoundland Court of Appeal rejected the assertion - The preju­dicial effect of admission did not outweigh the probative value - There was no sig­nificant risk that the evidence would have influenced the trial judge to engage in the forbidden line of reasoning based on pro­pensity alone and thereby convict for non-logical reasons - In fact, his judgment indicated that he did not do so - See paragraphs 30 to 42.

Criminal Law - Topic 5214.4

Evidence and witnesses - Admissibility and relevancy - Similar acts - To prove propensity - [See Criminal Law - Topic 5213 ].

Evidence - Topic 1256

Relevant facts - Relevance and materiality - Similar acts - To prove criminal conduct - [See Criminal Law - Topic 5213 ].

Cases Noticed:

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161; [1992] 1 W.W.R. 97; 83 Alta. L.R.(2d) 193; 8 C.R.(4th) 277; 68 C.C.C.(3d) 1, refd to. [para. 6].

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1; 103 C.C.C.(3d) 1, refd to. [para. 9].

R. v. Douglas (E.) et al. (1991), 168 N.R. 2; 71 O.A.C. 74; 5 O.R.(3d) 29 (C.A.), affd. [1993] 1 S.C.R. 893; 168 N.R. 1; 71 O.A.C. 73, refd to. [para. 10].

R. v. Vokey (W.J.) (1992), 102 Nfld. & P.E.I.R. 275; 323 A.P.R. 275 (Nfld. C.A.), refd to. [para. 11].

R. v. Caccamo, [1976] 1 S.C.R. 786; 4 N.R. 133; 21 C.C.C.(2d) 257; 54 D.L.R.(3d) 685; 29 C.R.N.S. 78, refd to. [para. 12].

R. v. Harrer (H.M.) (1995), 186 N.R. 329; 64 B.C.A.C. 161; 105 W.A.C. 161; 42 C.R.(4th) 269 (S.C.C.), refd to. [para. 13].

R. v. Johnston (1991), 47 O.A.C. 66; 5 C.R.(4th) 185 (C.A.), leave to appeal refused (1991), 137 N.R. 80; 55 O.A.C. 396; 67 C.C.C.(3d) vi (S.C.C.), refd to. [para. 22].

R. v. M.H.C., [1991] 1 S.C.R. 763; 123 N.R. 63; 63 C.C.C.(3d) 385; 4 C.R.(4th) 1, refd to. [para. 32].

R. v. C.R.B., [1990] 1 S.C.R. 717; 107 N.R. 241; 109 A.R. 81; [1990] 3 W.W.R. 385; 55 C.C.C.(3d) 1; 76 C.R.(3d) 1; 73 Alta. L.R.(2d) 1, refd to. [para. 32].

R. v. Litchfield, [1993] 4 S.C.R. 333; 161 N.R 161; 145 A.R. 321; 55 W.A.C. 321; 86 C.C.C.(3d) 97; 14 Alta. L.R.(3d) 1; 25 C.R.(4th) 137, refd to. [para. 34].

Director of Public Prosecutions v. P. - see R. v. P.

R. v. P. (1991), 93 Cr. App. Rep. 267 (C.A.), revd. (1991), 130 N.R. 306; 93 Cr. App. Rep. 272 (H.L.), refd to. [para. 34].

Director of Public Prosecutions v. Board­man, [1975] A.C. 421 (H.L.), refd to. [para. 35].

R. v. Kenny (D.) (1996), 142 Nfld. & P.E.I.R. 250; 445 A.P.R. 250 (Nfld. C.A.), refd to. [para. 36].

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, appld. [para. 36].

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; 3 C.R.(4th) 302, refd to. [paras. 50, 281].

R. v. Bird (1969), 9 C.R.N.S. 1 (B.C.C.A.), refd to. [paras. 53, 303].

R. v. Bloch-Hansen (1977), 38 C.C.C.(2d) 143 (Sask. Dist. Ct.), refd to. [para. 57].

R. v. Natarelli et al., [1967] S.C.R. 539, refd to. [para. 61].

R. v. Esau (A.J.) (1997), 214 N.R. 241; 116 C.C.C.(3d) 289 (S.C.C.), refd to. [para. 71].

R. v. M.L.M., [1994] 2 S.C.R. 3; 166 N.R. 241; 131 N.S.R.(2d) 79; 371 A.P.R. 79; 30 C.R.(4th) 153, refd to. [para. 72].

R. v. Guerrero (1988), 27 O.A.C. 244; 64 C.R.(3d) 65 (C.A.), not folld. [para. 76]; refd to. [para. 288].

R. v. Coughlan (G.A.) (1992), 100 Nfld. & P.E.I.R. 326; 318 A.P.R. 326 (Nfld. C.A.), refd to. [paras. 77, 290].

R. v. Caskenette (R.) (1993), 25 B.C.A.C. 217; 43 W.A.C. 217; 80 C.C.C.(3d) 439 (C.A.), refd to. [paras. 79, 292].

R. v. Jobidon, [1991] 2 S.C.R. 714; 128 N.R. 321; 49 O.A.C. 83; 7 C.R.(4th) 233; 66 C.C.C.(3d) 454, refd to. [paras. 79, 294].

R. v. Olugboja, [1982] Q.B. 320 (C.A.), refd to. [para. 90].

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322; 15 C.C.C.(2d) 524; 26 C.R.N.S. 1; 44 D.L.R.(3d) 351, consd. [para. 103].

R. v. Prince, [1986] 2 S.C.R. 480; 70 N.R. 119; 45 Man.R.(2d) 93; 30 C.C.C.(3d) 35; 33 D.L.R.(4th) 724; 54 C.R.(3d) 97, refd to. [para. 104].

R. v. Earle (1980), 24 Nfld. & P.E.I.R. 65; 65 A.P.R. 65 (Nfld. C.A.), refd to. [para. 104].

R. v. Pappajohn, [1980] 2 S.C.R. 120; 32 N.R. 104; [1980] 4 W.W.R. 387; 14 C.R.(3d) 243; 111 D.L.R.(3d) 1; 52 C.C.C.(2d) 481, refd to. [paras. 109, 214].

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; 89 C.C.C.(3d) 193; 29 C.R.(4th) 113, refd to. [para. 110].

R. v. Barrett (D.), [1995] 1 S.C.R. 752; 179 N.R. 68; 80 O.A.C. 1; 96 C.C.C.(3d) 319, refd to. [para. 110].

R. v. D.R., H.R. and D.W., [1996] 2 S.C.R. 291; 197 N.R. 321; 144 Sask.R. 81; 124 W.A.C. 81; 107 C.C.C.(3d) 289, refd to. [para. 111].

R. v. C.D.G. (1995), 128 Nfld. & P.E.I.R. 312; 400 A.P.R. 312 (Nfld. C.A.), refd to. [para. 111].

R. v. Osolin, [1993] 4 S.C.R. 595; 162 N.R. 1; 38 B.C.A.C. 81; 62 W.A.C. 81; 86 C.C.C.(3d) 481; 109 D.L.R.(4th) 478; 26 C.R.(4th) 1; 19 C.R.R.(2d) 93, refd to. [para. 112].

R. v. Park (D.G.), [1995] 2 S.C.R. 836; 183 N.R. 81; 169 A.R. 241; 97 W.A.C. 241, refd to. [para. 112].

R. v. Livermore (C.), [1995] 4 S.C.R. 123; 189 N.R. 126; 87 O.A.C. 81; 43 C.R.(4th) 1, refd to. [paras. 112, 215].

R. v. Haughton (D.), [1994] 3 S.C.R. 516; 179 N.R. 1; 79 O.A.C. 319; 93 C.C.C.(3d) 99, appld. [para. 131].

R. v. Brydon (J.L.), [1995] 4 S.C.R. 253; 188 N.R. 321; 65 B.C.A.C. 81; 106 W.A.C. 81; 101 C.C.C.(3d) 481, refd to. [paras. 133, 345].

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351; [1987] 6 W.W.R. 97; 36 C.C.C.(3d) 417; 59 C.R.(3d) 108; 17 B.C.L.R.(2d) 1; 43 D.L.R.(4th) 424, refd to. [para. 134].

R. v. Mahar (C.) (1987), 63 Nfld. & P.E.I.R. 30; 194 A.P.R. 30 (Nfld. C.A.), refd to. [para. 135].

R. v. Murphy (P.A.) (1994), 114 Nfld. & P.E.I.R. 148; 356 A.P.R. 148 (Nfld. C.A.), refd to. [para. 156].

Makin v. Attorney General for New South Wales, [1894] A.C. 57 (P.C.), refd to. [para. 197].

R. v. Kenny (D.) (1992), 94 Nfld. & P.E.I.R. 181; 298 A.P.R. 181 (Nfld. T.D.), refd to. [para. 197].

R. v. Ward (1979), 31 N.S.R.(2d) 79; 52 A.P.R. 79 (C.A.), refd to. [para. 328].

R. v. Kosh (1964), 44 C.R. 185 (Sask. C.A.), refd to. [para. 328].

R. v. Klein (1956), 24 C.R. 58 (Ont. C.A.), refd to. [para. 329].

R. v. Colpitts (1965), 47 C.R. 175 (S.C.C.), refd to. [para. 343].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 265(3) [para. 75]; sect. 346(1) [para. 52].

Authors and Works Noticed:

Blackstone, Commentaries on the Laws of England (1769), Book IV, p. 210 [para. 95].

Bogart, J.H., Reconsidering Rape: Re­thinking the Conceptual Foundation of Rape Law (1995), 8 Can. J. of Law and Jurisprudence 159, pp. 180, 181 [para. 97].

Boyle, Annotation to R. v. M.L.M. (1994), 30 C.R.(4th) 153, generally [para. 80].

Boyle, Christine, Sexual Assault (1984), pp. 59 to 62 [para. 91].

Bryant, Alan W., The Issue of Consent in the Crime of Sexual Assault (1989), 68 Can. Bar Rev. 94, pp. 100 to 103 [para. 84]; 116 [para. 76].

England, Law Commission, Consent and Offences Against the Person, Consulta­tion Paper No. 134 (1994), p. 53 [para. 88].

England, Law Commission, Consent in the Criminal Law, Consultation Paper No. 139 (1995), p. 73 [para. 89].

Mewett, Alan M., and Manning, Morris, Criminal Law (3rd Ed. 1994), pp. 155, 787, 788 [paras. 81, 83]; 833 [paras. 58, 304]; 834 [para. 58].

Stuart, Don, Canadian Criminal Law: A Treatise (3rd Ed. 1995), p. 520 [paras. 80, 83].

Watt, David J., The New Offences Against The Person: The Provisions of Bill C-127 (1984), p. 217 [para. 76].

Williams, Glanville, Textbook of Criminal Law (2nd Ed. 1983), pp. 550 to 557 [para. 85]; 552 [para. 87].

Counsel:

Robin Reid, for the appellant;

Harold Porter, for the respondent.

This appeal was heard on January 24, 1997, before O'Neill, Steele and Green, JJ.A., of the Newfoundland Court of Appeal.

On January 29, 1998, the judgment was delivered for the Court of Appeal and the following opinions were filed:

Green, J.A. (Steele, J.A., concurring) - see paragraphs 1 to 190;

O'Neill, J.A., dissenting - see paragraphs 191 to 349.