R. v. Dowe (M.G.), (2007) 260 N.S.R.(2d) 306 (CA)

• Judge: Bateman, Cromwell and Fichaud, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: December 19, 2007
• Jurisdiction: Nova Scotia
• Citations: (2007), 260 N.S.R.(2d) 306 (CA);2007 NSCA 128

R. v. Dowe (M.G.) (2007), 260 N.S.R.(2d) 306 (CA);

    831 A.P.R. 306

MLB headnote and full text

Temp. Cite: [2007] N.S.R.(2d) TBEd. DE.035

Her Majesty The Queen (appellant) v. Michael Gordon Dowe (respondent)

(CAC 279500; 2007 NSCA 128)

Indexed As: R. v. Dowe (M.G.)

Nova Scotia Court of Appeal

Bateman, Cromwell and Fichaud, JJ.A.

December 19, 2007.

Summary:

The accused was acquitted of break and enter. The Crown appealed.

The Nova Scotia Court of Appeal, Cromwell, J.A., dissenting, allowed the appeal and ordered a new trial.

Criminal Law - Topic 4951

Appeals - Indictable offences - New trials - Grounds - Misdirection by trial judge - Appeal by Crown from acquittal - [See Criminal Law - Topic 5515 ].

Criminal Law - Topic 5510

Evidence and witnesses - Evidence of accomplices, co-defendants, informants, etc. - Warning to jury of danger of reliance on - [See Criminal Law - Topic 5515 ].

Criminal Law - Topic 5515

Evidence and witnesses - Evidence of accomplices, co-defendants, informants, etc. - What constitutes corroboration - The accused was acquitted of break and enter where the only evidence implicating him was that of an alleged accomplice who had pleaded guilty to the offence, but had yet to be sentenced - The trial judge found no corroborating evidence directly implicating the accused - Although there was evidence that the accused was at the scene, with the accomplice, the trial judge accepted that he had a reason to be there (girlfriend lived in the building) - The stolen monies were collected and stored in a locked office by the accused's father - The Nova Scotia Court of Appeal allowed the Crown's appeal and ordered a new trial where, but for the trial judge's errors, the verdict would not necessarily have been the same - The trial judge erred in stating that the accomplice's prior consistent statement to police (implicating the accused) would have been admissible to corroborate the accomplice's trial evidence - It was implied from the trial judge's reasons that only evidence directly implicating the accused could constitute corroboration and that he could not convict based on the accomplice's evidence absent such corroborating evidence - That was an error of law and precluded the trial judge from properly assessing the accomplice's evidence - Evidence not directly implicating the accused could corroborate the accomplice's testimony - Although the trial judge was entitled to acquit the accused if he had a reasonable doubt as to his involvement, he was only entitled to do so after evaluating the evidence upon proper principles - See paragraphs 11 to 34.

Evidence - Topic 5203

Witnesses - Corroboration - General principles - What constitutes corroboration - [See Criminal Law - Topic 5515 ].

Cases Noticed:

R. v. Graveline (R.), [2006] 1 S.C.R. 609; 347 N.R. 268; 2006 SCC 16, refd to. [para. 10].

R. v. Vetrovec; R. v. Gaja, [1982] 1 S.C.R. 811; 41 N.R. 606, refd to. [para. 12].

R. v. Baskerville, [1916] 2 K.B. 658, refd to. [para. 12].

R. v. Kehler (R.A.), [2004] 1 S.C.R. 328; 317 N.R. 30; 346 A.R. 19; 320 W.A.C. 19; 2004 SCC 11, refd to. [para. 15].

R. v. Evans (B.J.), [1993] 2 S.C.R. 629; 153 N.R. 212; 28 B.C.A.C. 81; 47 W.A.C. 81, refd to. [para. 20].

R. v. Couture (D.R.) (2007), 364 N.R. 1; 244 B.C.A.C. 1; 403 W.A.C. 1; 220 C.C.C.(3d) 289; 2007 SCC 28, refd to. [para. 21].

R. v. Gagnon (Y.R.J.) et al. (2000), 136 O.A.C. 116; 147 C.C.C.(3d) 193 (C.A.), refd to. [para. 26].

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. 28].

R. v. Morrissey (R.J.) (1995), 80 O.A.C. 161; 97 C.C.C.(3d) 193; 22 O.R.(3d) 514 (C.A.), refd to. [para. 28].

R. v. Williams (1974), 21 C.C.C.(2d) 1 (C.M.A.C.), refd to. [para. 42].

United States of America v. Shephard, [1977] 2 S.C.R. 1067; 9 N.R. 215, refd to. [para. 42].

United States of America v. Shulman, [2001] 1 S.C.R. 616; 268 N.R. 115; 145 O.A.C. 201, refd to. [para. 42].

Counsel:

Peter Rosinski, for the appellant;

Stephanie Hillson, for the respondent.

This appeal was heard on December 5, 2007, at Halifax, N.S., before Bateman, Cromwell and Fichaud, JJ.A., of the Nova Scotia Court of Appeal.

On December 19, 2007, the judgment of the Court of Appeal was delivered and the following opinions were filed:

Bateman, J.A. (Fichaud, J.A., concurring) - see paragraphs 1 to 34;

Cromwell, J.A., dissenting - see paragraphs 35 to 48.