R. v. E.G.M., (2006) 397 A.R. 264 (CA)

• Judge: McFadyen, Berger and O'Brien, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: Thursday June 08, 2006
• Citations: (2006), 397 A.R. 264 (CA);2006 ABCA 257

R. v. E.G.M. (2006), 397 A.R. 264 (CA);

      384 W.A.C. 264

MLB headnote and full text

Temp. Cite: [2006] A.R. TBEd. SE.090

Her Majesty the Queen (respondent) v. E.G.M. (appellant)

(0503-0377-A; 2006 ABCA 257)

Indexed As: R. v. E.G.M.

Alberta Court of Appeal

McFadyen, Berger and O'Brien, JJ.A.

September 15, 2006.

Summary:

E.G.M. was charged with sexual assault and sexual interference in a trust relationship contrary to ss. 271, 151 and 153(1)(a) of the Criminal Code.

The Alberta Court of Queen's Bench, in a decision reported at [2005] A.R. Uned. 921, convicted E.G.M. on all three counts. E.G.M. appealed.

The Alberta 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 law, publication ban, Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 4866

Appeals - Indictable offences - Grounds of appeal - Misapprehension of evidence - E.G.M. was charged with sexual offences involving his stepdaughter - At trial, an expert testified that in her physical examination of the stepdaughter, she noticed significant abnormalities that were consistent with sexual abuse - In convicting E.G.M., the trial judge's reasons indicated that the expert's opinion was that the abnormalities were "proof of penial vaginal penetration consistent with blunt trauma and abuse" - E.G.M. appealed the conviction, asserting, inter alia, that the trial judge had misconstrued the expert's evidence as suggesting that the abnormalities were conclusive of abuse, rather than consistent with it - The Alberta Court of Appeal dismissed the appeal - When the trial judge's comments were considered in their entirety, it was clear that he had not suggested that the expert's evidence conclusively proved sexual abuse but provided an element of corroboration of the stepdaughter's allegations - While the use of the word "proof" was unfortunate, it did not constitute a reversible error - See paragraphs 12 to 15.

Criminal Law - Topic 4866

Appeals - Indictable offences - Grounds of appeal - Misapprehension of evidence - E.G.M. was charged with sexual offences involving his stepdaughter - At trial, the mother testified that she saw the stepdaughter sitting on E.G.M.'s lap and that E.G.M. explained that he was simply trying to keep her warm - E.G.M. denied any sexual activity having occurred with the stepdaughter or that she had ever sat on his lap - In convicting E.G.M., the trial judge's reasons stated that E.G.M. had acknowledged the one incident that the mother observed - E.G.M. appealed the conviction, asserting, inter alia, that the trial judge had misapprehended E.G.M.'s evidence - The Alberta Court of Appeal dismissed the appeal - Even if the trial judge did incorrectly attribute the acknowledgement to E.G.M., the trial judge clearly appreciated the substance of E.G.M.'s evidence - The error did not have a material impact on the judge's assessment of E.G.M.'s credibility nor was it essential to his reasoning process - Such an error did not therefore amount to a miscarriage of justice or result in an unreasonable verdict - See paragraphs 16 to 21.

Cases Noticed:

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351, refd to. [para. 8].

R. v. Lohrer (A.W.), [2004] 3 S.C.R. 732; 329 N.R. 1; 208 B.C.A.C. 1; 344 W.A.C. 1, refd to. [para. 9].

R. v. Morrissey (R.J.) (1995), 80 O.A.C. 161; 97 C.C.C.(3d) 193 (C.A.), refd to. [para. 9].

R. v. Dixon (M.A.) (1997), 196 A.R. 189; 141 W.A.C. 189 (C.A.), refd to. [para. 9].

R. v. François (L.) (1994), 169 N.R. 241; 73 O.A.C. 161; 91 C.C.C.(3d) 289 (S.C.C.), refd to. [para. 10].

R. v. R.W., [1992] 2 S.C.R. 122; 137 N.R. 214; 54 O.A.C. 164, refd to. [para. 10].

R. v. Sheppard (C.) (2002), 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50; 162 C.C.C.(3d) 298 (S.C.C.), refd to. [para. 11].

R. v. D.W. (1991), 122 N.R. 277; 46 O.A.C. 352; 63 C.C.C.(3d) 397 (S.C.C.), refd to. [para. 20].

R. v. George (W.A.) (2000), 132 O.A.C. 135; 49 O.R.(3d) 144 (C.A.), refd to. [para. 21].

R. v. R.L. (2002), 162 O.A.C. 275 (C.A.), refd to. [para. 21].

R. v. Burns (R.H.) (1994), 165 N.R. 374; 42 B.C.A.C. 161; 67 W.A.C. 161; 89 C.C.C.(3d) 193 (S.C.C.), refd to. [para. 21].

R. v. Lavoie (E.K.) (2000), 271 A.R. 321; 234 W.A.C. 321 (C.A.), refd to. [para. 23].

Counsel:

W. Raponi, for the appellant;

S.D. Hughson, Q.C., for the respondent.

This appeal was heard on June 8, 2006, by McFadyen, Berger and O'Brien, JJ.A., of the Alberta Court of Appeal. The Court filed the following memorandum of judgment on September 15, 2006.