R. v. G.A.J., (1993) 120 N.S.R.(2d) 432 (CA)

• Judge: Clarke, C.J.N.S., Chipman and Roscoe, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: January 25, 1993
• Jurisdiction: Nova Scotia
• Citations: (1993), 120 N.S.R.(2d) 432 (CA)

R. v. G.A.J. (1993), 120 N.S.R.(2d) 432 (CA);

  332 A.P.R. 432

MLB headnote and full text

G.A.J. (appellant) v. Her Majesty The Queen (respondent)

(S.C.C. No. 02728)

Indexed As: R. v. G.A.J.

Nova Scotia Court of Appeal

Clarke, C.J.N.S., Chipman and  Roscoe, JJ.A.

March 16, 1993.

Summary:

An accused was convicted of sexual inter­ference contrary to s. 151 of the Criminal Code. The accused appealed.

The Nova Scotia Court of Appeal, Chip­man, J.A., dissenting, dismissed the appeal.

Civil Rights - Topic 4608.1

Right to counsel - Advice of - Under­standing of - An accused was convicted of sexual interference - Before giving a statement to the police, the accused was asked if he wanted to call a lawyer - He responded "No, why?" - During a voir dire to determine the admissibility of the statement, the accused indicated that he understood his civil rights - The statement was admitted - The accused asserted that it should not have been allowed into evi­dence where he had not validly waived his right to counsel - The Nova Scotia Court of Appeal concluded that accused had waived his right to counsel - See para­graphs 27 to 33.

Criminal Law - Topic 5045

Appeals - Indictable offences - Dismissal of appeal if error resulted in no prejudice, substantial wrong or miscarriage of justice - Miscarriage of justice - What constitutes - [See Criminal Law - Topic 5205 ].

Criminal Law - Topic 5205

Evidence - Relevancy - General - An accused was convicted of sexual interfer­ence - The accused appealed, asserting that the trial judge erred by refusing to allow the complainant to be cross-exam­ined on an alleged conversation respecting her age on the basis that it took place three years after the alleged offence - More current evidence had been introduced at trial to challenge the complainant's credi­bility - The Nova Scotia Court of Appeal dismissed the appeal - The ruling was not one of reversible error - No miscarriage of justice resulted within the meaning of s. 686(1)(a)(iii) of the Criminal Code - See paragraphs 15 to 22.

Criminal Law - Topic 5353

Evidence and witnesses - Confessions and voluntary statements - Who is person in authority - An accused was convicted of sexual interference - After being impli­cated, the accused telephoned the detach­ment - A civilian employee transferred him to an officer - The officer obtained a statement - After a voir dire, the statement was admitted into evidence - The officer testified that no other person contacted the accused while in his custody - The accused asserted that the employee should have testified at the voir dire - The Nova Scotia Court of Appeal disagreed where the employee was not a person in authority and did not have evidence relating to the voluntariness of the accused's statement or his understanding of his constitutional rights - See paragraphs 23 to 26.

Criminal Law - Topic 5353.1

Evidence and witnesses - Confessions and voluntary statements - Statements to per­sons not in authority - [See Criminal Law - Topic 5353 ].

Evidence - Topic 1527

Hearsay rule - Exceptions and exclusions - Where admission of hearsay necessary and evidence reliable - An accused was convicted of sexual interference - At the trial the complainant testified that she was born on February 21, 1975, which made her 13.5 years old at the time of the alleged offence - The accused claimed that the testimony was hearsay - The Nova Scotia Court of Appeal disagreed stating that although, strictly speaking, the evi­dence was hearsay, "... it was necessary to prove a fact in issue. Her evidence on such a subject, by taking a common sense approach, deserves to be considered as having an element of reliability and trust­worthiness." - See paragraphs 5 to 13.

Evidence - Topic 1566

Hearsay rule - Exceptions and exclusions - Statements about family history - Wit­ness's age - [See Evidence - Topic 1527 ].

Cases Noticed:

R. v. LaChapelle (1977), 38 C.C.C.(2d) 369 (Que. C.A.), refd to. [para. 11].

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, refd to. [para. 12].

R. v. Smith (A.L.), [1992] 2 S.C.R. 915; 139 N.R. 323; 55 O.A.C. 321; 75 C.C.C.(3d) 257, refd to. [para. 12].

R. v. Bourassa (1991), 38 Q.A.C. 10; 67 C.C.C.(3d) 143 (C.A.), refd to. [para. 18].

R. v. Clarkson, [1986] 1 S.C.R. 383; 66 N.R. 114; 69 N.B.R.(2d) 40; 177 A.P.R. 40; 50 C.R.(3d) 289; 25 C.C.C.(3d) 207; 26 D.L.R.(4th) 493; 19 C.R.R. 209, refd to. [para. 31].

Ares v. Venner, [1970] S.C.R. 608; 73 W.W.R.(N.S.) 347; 14 D.L.R.(3d) 4, refd to. [para. 37].

R. v. K.G.B. (1993), 148 N.R. 241 (S.C.C.), refd to. [para. 37].

R. v. Anderson, [1938] 2 W.W.R. 49; 46 Man. R. 97; [1938] 3 D.L.R. 317; 70 C.C.C. 275 (C.A.), refd to. [para. 44].

R. v. Cassibo (1982), 39 O.R.(2d) 288; 70 C.C.C.(2d) 498 (C.A.), refd to. [para. 45].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 10(b) [para. 27].

Criminal Code, R.S.C. 1985, c. C-46, sect. 150.1(4) [paras. 7, 40]; sect. 151 [para. 1]; sect. 151.1(4) [para. 10]; sect. 686(1)(a)(iii) [para. 21].

Authors and Works Noticed:

McWilliams, Peter K., Canadian Criminal Evidence (3rd Ed. 1989), c. 37, p. 37-25 [para. 43].

Counsel:

Richard W.P. Murphy, for the appellant;

Dana W. Giovannetti, for the respondent.

This appeal was heard on January 25, 1993, before Clarke, C.J.N.S., Chipman and Roscoe, JJ.A., of the Nova Scotia Court of Appeal. The decision of the court was delivered on March 16, 1993, including the following opinions:

Clarke, C.J.N.S. (Roscoe, J.A. concur­ring) - see paragraphs 1 to 34;

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