R. v. G.K.N., 2016 NSCA 29

• Judge: Beveridge, Bryson and Van den Eynden, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: Monday November 30, 2015
• Jurisdiction: Nova Scotia
• Citations: 2016 NSCA 29;(2016), 372 N.S.R.(2d) 363 (CA)

R. v. G.K.N. (2016), 372 N.S.R.(2d) 363 (CA);

    1172 A.P.R. 363

MLB headnote and full text

Temp. Cite: [2016] N.S.R.(2d) TBEd. AP.037

G.K.N. (appellant) v. Her Majesty the Queen (respondent)

(CAC 426699; 2016 NSCA 29)

Indexed As: R. v. G.K.N.

Nova Scotia Court of Appeal

Beveridge, Bryson and Van den Eynden, JJ.A.

April 21, 2016.

Summary:

The accused appealed his convictions for sexual touching and inappropriate sexual behaviour, asserting that the trial judge erred in admitting similar fact evidence and incorrectly instructed the jury respecting that evidence. He further asserted that his trial counsel provided ineffective assistance that caused or compounded the alleged errors of the trial judge.

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 a restriction on publication pursuant to s. 486.4(1) of the Criminal Code and Maritime Law Book's editorial policy.

Barristers and Solicitors - Topic 1552

Relationship with client - Duty to client - General - Duty to follow client's instructions - [See fourth Civil Rights - Topic 3158].

Civil Rights - Topic 3158

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to effective assistance by counsel - The Nova Scotia Court of Appeal reviewed the law applicable to allegations of ineffective assistance of counsel leading to a miscarriage of justice - See paragraphs 39 to 44.

Civil Rights - Topic 3158

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to effective assistance by counsel - The accused appealed his convictions for sexual touching and inappropriate sexual behaviour with M., alleging ineffective assistance from his trial counsel - At trial, the similar fact evidence of E.R. was admitted - The accused asserted that he only pleaded guilty to the E.R. allegations in 1992 to make the matter "go away" and because he could not afford to pay a lawyer at the time - He did not remember what facts he had acknowledged at his sentencing in 1992 - There was no record left from that time - Subsequent investigation shed no light on the issue - The accused criticized his trial counsel for not finding out what those facts were - The Nova Scotia Court of Appeal noted that the accused had led no evidence to suggest what those facts were or whether they were ascertainable - There was no incompetency or material omission by counsel in failing to ascertain what might be unascertainable - See paragraph 48.

Civil Rights - Topic 3158

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to effective assistance by counsel - The accused appealed his convictions for sexual touching and inappropriate sexual behaviour with M., alleging ineffective assistance from his trial counsel - At trial, the similar fact evidence of E.R. was admitted - Two informations were sworn in 1991 against the accused relating to E.R. - Some of the E.R. allegations related to events in O.P., Shelburne County, and others to the Town of Shelburne - The accused was sentenced on the basis of his guilty plea to the O.P. allegations only - He asserted that it was improper for the Crown in this case to adduce any evidence relating to the Shelburne allegations because he was deemed not guilty of those offences and the evidence should not have been relied upon as similar fact evidence here - He asserted that his trial counsel should have argued that the doctrine of issue estoppel prevented the Shelbourne allegations from being revisited because he was acquitted of those offences - The Crown asserted that the Shelburne information charged the accused with indecent assault and E.R.'s trial evidence did not describe an assault in Shelburne - The accused asserted that it was unclear from E.R.'s trial evidence whether the assaults happened only in O.P., or included Shelburne - The Nova Scotia Court of Appeal held that the described activity was same in O.P. and Shelburne - Since the O.P. evidence was admissible, no prejudice arose - The trial judge did not err in admitting the evidence and the accused counsel's failure to argue estoppel did not constitute incompetence - See paragraphs 49 to 54.

Civil Rights - Topic 3158

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to effective assistance by counsel - The accused appealed his convictions for sexual touching and inappropriate sexual behaviour with M., alleging ineffective assistance from his trial counsel - At trial, the similar fact evidence of E.R. was admitted - The accused faulted his counsel for signing an agreed statement of facts which attached E.R.'s 1991 statement to police, together with her preliminary inquiry evidence in that proceedings and the 1991 information - The accused compared this to an admission of guilt on the merits which was a matter of counsel's incompetence going to trial fairness - He added that he had not authorized the agreed statement - His trial counsel contradicted him - The Nova Scotia Court of Appeal rejected the accused's argument - Trial counsel made no such admission of guilt - He agreed for the purposes of the voir dire only that E.R. would testify to the facts alleged in the agreed statement - All that was admitted was what E.R. had previously said - They were not admissions of the truth of what E.R. said - While counsel had to take instructions regarding election and plea and whether or not to testify, the conduct of the case generally did not require client instructions - It might well be the obligation of counsel to resist client instructions where they conflicted with counsel's judgment about the client's best interests - Counsel's decision to admit facts for the purposes of voir dire was within the realm of trial tactics which was for him to decide - He did not require the accused's instructions for doing so - Had he not admitted the E.R. evidence for voir dire purposes, it would have been proved - The admission was reasonable in the circumstances - See paragraphs 55 to 59.

Civil Rights - Topic 3158

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to effective assistance by counsel - The accused appealed his convictions for sexual touching and inappropriate sexual behaviour with M., alleging ineffective assistance from his trial counsel - At trial, the similar fact evidence of E.R. was admitted - The accused faulted his trial counsel for "conceding" the similar fact application without instruction - The Nova Scotia Court of Appeal rejected the argument - Trial counsel's agreement at the voir dire did not concede the admissibility of E.R.'s evidence - He conceded the similarities between E.R.'s evidence and M.'s evidence - That admission was understandable given the obvious similarities between the two complainants - Notwithstanding his concession, he continued to argue that the evidence should not be admitted because its probative value was outweighed by its prejudicial effect - He had previously filed a brief to that effect - Further, the accused had shown no prejudice - He had not shown that the judge would have ruled the evidence inadmissible so that there was a reasonable probability that the trial result would have been different - See paragraphs 60 to 63.

Civil Rights - Topic 3158

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to effective assistance by counsel - The accused (G.K.N.) appealed his convictions for sexual touching and inappropriate sexual behaviour with M., alleging ineffective assistance from his trial counsel - He asserted that his trial counsel failed to refer to the similar fact testimony of E.R. in his closing submissions and did not comment on the use that the jury could make of E.R.'s evidence - The Nova Scotia Court of Appeal stated that "Counsel decided not to challenge an apparently credible witness. He thought more fertile ground was available in M.'s inconsistencies and lies. That was a judgment call for trial counsel to make, and in light of the record, was a reasonable one. It allowed counsel to focus his attack on the weaknesses in the Crown's key witness. That the strategy failed is not evidence of incompetency, let alone a miscarriage of justice. ... Moreover, it is fundamentally the obligation of the trial judge to comment on what use the jury could make of similar fact evidence and, of course, it is more likely that the jury would attend to the trial judge's instruction than that of a lawyer whose client's interests he would be so obviously serving. ... In this case, the jury received instructions on how to treat E.R.'s testimony on at least two occasions from the trial judge. The first immediately followed E.R.'s testimony. The second was during the jury charge. There was no error in the judge's instructions, and so no need to correct or even reiterate them. ... G.K.N. has neither demonstrated trial counsel incompetence nor resulting prejudice." - See paragraphs 64 to 68.

Civil Rights - Topic 3158

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to effective assistance by counsel - The accused (G.K.N.) appealed his convictions for sexual touching and inappropriate sexual behaviour with M., alleging ineffective assistance from his trial counsel - He asserted that his trial counsel failed to adequately cross-examine E.R. who gave similar fact testimony - Trial counsel's reason for his brevity was his impression that E.R. was a credible witness - The Nova Scotia Court of Appeal stated that "Cases which find a miscarriage of justice arising from a failure to cross-examine, often involve the failure to pursue obvious routes of impeaching the witness, usually from prior inconsistent statements ... No such failure is alleged here. G.K.N. does not suggest any topics of cross-examination that would have borne any fruit for him. Indeed, the cross-examination of a strong witness may only serve to cement that witness's testimony with a jury. A decision not to cross-examine in depth was a judgment call for trial counsel." - See paragraphs 70 to 72.

Civil Rights - Topic 3158

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to effective assistance by counsel - The accused (G.K.N.) appealed his convictions for sexual touching and inappropriate sexual behaviour with M., alleging ineffective assistance from his trial counsel - He implicitly argued that his trial counsel failed to question him about the similar fact evidence of E.R. - The Nova Scotia Court of Appeal rejected the argument, stating that "It was always G.K.N.'s instruction and his lawyer's understanding that G.K.N. would deny the evidence regarding the events with E.R. He only pleaded guilty for family and financial reasons. Trial counsel could be faulted for not putting E.R.'s evidence to G.K.N. and obtaining a clear denial of it on the record before the jury. Nor did the jury have the opportunity to hear why he pleaded guilty to the O.P. charges in 1992. But implicit in that explanation is an attack on E.R.'s credibility. ... Whether it was wise to stay away from E.R.'s testimony was a question for trial counsel. Certainly, that was his strategy. He felt - and the record supports him - that M.'s testimony would be a fruitful source of cross-examination. He concluded that cross-examining E.R. herself was of little value, because her perceived credibility may be enhanced. There was some risk to G.K.N. in attacking a witness who had been favourably received by the jury. After all, it was not her evidence on which he could be convicted. He was not being tried for events that occurred thirty years ago, but on M.'s allegations which were problematic as trial counsel tried to show in his cross-examination of her which exposed errors and inconsistencies in that evidence. ... G.K.N. denied M.'s accusations. To succeed on this complaint he must show that there was 'a reasonable probability' that he received an unfair trial because the questions about E.R. were not put to him. At the end of the day, the jury had to decide whether it believed M., disbelieved G.K.N., or retained any reasonable doubt based on of all the evidence. Clearly they did not. G.K.N.'s denial of E.R.'s testimony was unlikely to change the jury's assessment of his credibility regarding M.'s allegations." - See paragraphs 73 to 76.

Civil Rights - Topic 4620.1

Right to counsel - Right to effective assistance by counsel - [See all Civil Rights - Topic 3158].

Courts - Topic 583

Judges - Duties - Re reasons for decisions - Directions regarding similar fact evidence - The accused appealed his convictions for sexual touching and inappropriate sexual behaviour with his step-daughter (M.), asserting that the trial judge erred in admitting the similar fact evidence of E.R. without considering the differences in the acts described by E.R. and M. - He added that in any event, the acts were not distinctive enough to constitute similar fact evidence - He faulted the judge for a "boiler plate" probative-prejudicial effect analysis, without considering the probability and the "unlikelihood of coincidence" - This objection was based on the fact that the analysis was not mentioned in the judge's reasons - The Nova Scotia Court of Appeal rejected the argument - The need for and adequacy of reasons was contextual and depended on the adjudicative setting - More detail might be required to address difficult principles of unsettled law - Regard was given to the "time constraints and general press of business in the criminal courts" - Here, a highly experienced trial judge was applying well-settled law in a voir dire upon which a jury was waiting - The parties made written and oral submissions - The judge knew the law and grasped the issues and evidence - See paragraphs 10 to 18.

Criminal Law - Topic 4352.1

Procedure - Charge or directions - Jury or judge alone - Directions regarding similar fact evidence - [See Courts - Topic 583].

Criminal Law - Topic 4352.1

Procedure - Charge or directions - Jury or judge alone - Directions regarding similar fact evidence - The accused appealed his convictions for sexual touching and inappropriate sexual behaviour with his step-daughter (M.), asserting that the trial judge misapprehended the purpose of the similar fact evidence - He argued that E.R.'s evidence had nothing to do with M.'s testimony; rather the question was whether he had a propensity to engage in specific acts - The Nova Scotia Court of Appeal rejected the argument - In the circumstances, this was a distinction without a difference - Similar fact evidence was admissible to prove actus reus - The Crown identified in its submissions that the issues to which the similar fact evidence was directed at were modus operandi and actus reus - Those issues engaged M.'s credibility - In cases such as this, credibility was inextricably linked to proof of actus reus - The purpose of admitting E.R.'s evidence could also be gleaned from the judge's jury instruction in which he said that the jury could, but did not have to, find a pattern of similar behaviour confirming M.'s testimony that the offences occurred - E.R.'s evidence revealed striking similarities to M.'s evidence regarding location, relationship, age, and events justifying the judge's finding of a similarity warranting admissibility - Given the purpose for which the evidence was admitted, the distinctiveness of the events themselves might have been diminished - The judge understood the issue to which the similar fact evidence was directed - That informed his probative-prejudicial effect conclusion - He recognized that a strong jury directive was required respecting permissible use - He gave that directive - His ruling was reasonable and, on the probative-prejudicial analysis, entitled to deference - See paragraphs 19 to 24.

Criminal Law - Topic 4352.1

Procedure - Charge or directions - Jury or judge alone - Directions regarding similar fact evidence - The accused appealed his convictions for sexual touching and inappropriate sexual behaviour with his step-daughter (M.), asserting that the trial judge mischaracterized the similar fact evidence of E.R. and therefore erred in his instructions to the jury - He asserted that the judge instructed the jury that propensity evidence was something other than propensity evidence, and therefore he failed to recognize it for what it was and failed to keep its dangerous potential "front centre" - He asserted that contrary to the judge's instructions, his alleged propensity had nothing to do with corroboration or confirmation of M.'s testimony - The Nova Scotia Court of Appeal rejected the argument - The trial judge was correct to warn the jury against general propensity reasoning - The law proscribed such reasoning - However, that did not detract from the probative value of a specific propensity to which properly admitted similar fact evidence was directed - The judge correctly focused on the similarities between the events complained of by M. and E.R. - It was those similarities which went beyond a possibility of coincidence that made the propensity evidence admissible, in view of the purpose for doing so - Criticizing the judge for cautioning against general propensity reasoning took those instructions out of context - The judge understood the difference between propensity reasoning from bad character and propensity reasoning arising from specific similar conduct - When instructing a jury on similar fact evidence, particularly the similarity of the accused's conduct in each case, it might be desirable to also draw the jury's attention to any dissimilarities - However, the failure to do so was not fatal - The judge provided both mid-trial and final instructions to the jury concerning the use of E.R.'s evidence - There was nothing wrong with those instructions - The differences in the circumstances between the offences described by E.R. and M. were not significant - The judge did not err by not highlighting them - See paragraphs 25 to 38.

Criminal Law - Topic 4488

Procedure - Trial - Representation of accused - [See all Civil Rights - Topic 3158].

Criminal Law - Topic 4684

Procedure - Judgments and reasons for judgment - Reasons for judgment - Sufficiency of - [See Courts - Topic 583].

Criminal Law - Topic 4852

Appeals - Indictable offences - Grounds of appeal - Miscarriage of justice - [See first Civil Rights - Topic 3158].

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 first, sixth and seventh Civil Rights - Topic 3158].

Criminal Law - Topic 5209

Evidence and witnesses - Admissibility and relevancy - Prejudicial evidence - [See third Civil Rights - Topic 3158].

Criminal Law - Topic 5213

Evidence and witnesses - Admissibility and relevancy - Similar acts - When admissible - [See Courts - Topic 583 and second Criminal Law - Topic 4352.1].

Evidence - Topic 1256

Relevant facts - Relevance and materiality - Similar acts - To prove criminal conduct - [See second and third Criminal Law - Topic 4352.1].

Counsel:

Luke A. Craggs, for the appellant;

Mark Scott, Q.C., for the respondent;

Stacey Gerrard, for Murray Judge.

This appeal was heard on November 30, 2015, by Beveridge, Bryson and Van den Eynden, JJ.A., of the Nova Scotia Court of Appeal. Bryson, J.A., delivered the following judgment for the court on April 21, 2016.