R. v. G.N.S., (2013) 544 A.R. 80

• Judge: Johnson, J.A.
• Court: Nunavut Court of Appeal (Canada)
• Case Date: February 12, 2013
• Jurisdiction: Nunavut
• Citations: (2013), 544 A.R. 80;2013 NUCA 5

R. v. G.N.S. (2013), 544 A.R. 80; 567 W.A.C. 80 (NUCA)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. MR.091

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

(08-11-007-CAS; 2013 NUCA 5)

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

Nunavut Court of Appeal

Johnson, J.A.

March 1, 2013.

Summary:

The accused appealed his conviction for sexual assault. The accused argued that the trial judge erred in admitting evidence of the accused's drinking history without a voir dire because it was in the nature of bad character evidence. The error was compounded when the trial judge misstated the evidence given by the accused or drew improper inferences from it.

The Nunavut Court of Appeal, per Johnson, J.A., allowed the appeal and ordered a new trial.

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 5037

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - Evidentiary error - [See Criminal Law - Topic 5449 ].

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 5449 ].

Criminal Law - Topic 5214.9

Evidence and witnesses - Admissibility and relevance - Voir dire - General - [See Criminal Law - Topic 5449 ].

Criminal Law - Topic 5449

Evidence and witnesses - Evidence respecting the accused - Character of accused (incl. discreditable conduct) - General - The accused was convicted of sexually assaulting the complainant between January and September 2006 - The complainant could not remember if the accused was under the influence of alcohol - Nevertheless, the Crown led evidence about the accused's drinking history without objection by defence counsel - The accused was cross-examined about his drinking history and admitted he was an alcoholic - The Nunavut Court of Appeal, per Johnson, J.A., allowed the accused's conviction appeal and ordered a new trial - The Crown should have asked the trial judge to make a ruling in a voir dire before calling the evidence of the accused's drinking history - The Crown would then have been required to establish that the accused's drinking history was relevant to an issue in the trial - The trial judge's failure to hold a voir dire was an error of law - Further, the trial judge inferred that the accused's memory was suspect from the fact that he was an alcoholic who had experienced a blackout at some time during his drinking days and who may have been drinking on the evening in question - The trial judge engaged in speculation - It was not a logical probability and the trial judge erred in making that inference - The error could be classified as a misapprehension of the evidence and was an error of law - The impact of the inadmissible evidence was significant - It was probable that the trial judge's "WD" analysis on that evidence would have resulted in a reasonable doubt and an acquittal - The errors were serious enough to render the trial unfair - There was a miscarriage of justice so as to exclude the application of s. 686(1)(b)(iii) of the Criminal Code.

Evidence - Topic 200

Inferences and weight of evidence - Inferences - Whether reasonable inference or speculation - [See Criminal Law - Topic 5449 ].

Cases Noticed:

R. v. Sinclair (T.), [2011] 3 S.C.R. 3; 418 N.R. 282; 268 Man.R.(2d) 225; 520 W.A.C. 225; 270 C.C.C.(3d) 421; 2011 SCC 40, refd to. [para. 8].

R. v. Morrissey (R.J.) (1995), 80 O.A.C. 161; 97 C.C.C.(3d) 193; 22 O.R.(3d) 514; 38 C.R.(4th) 4 (C.A.), refd to. [para. 8].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 211 D.L.R.(4th) 577; 2002 SCC 33, refd to. [para. 9].

R. v. Bishop (C.) (2013), 542 A.R. 166; 566 W.A.C. 166; 2013 NUCA 3, refd to. [para. 11].

R. v. Halliday (S.B.) (1995), 82 O.A.C. 150; 100 C.C.C.(3d) 574 (C.A.), refd to. [para. 11].

R. v. Villeda (G.M.) (2010), 493 A.R. 279; 502 W.A.C. 279; 265 C.C.C.(3d) 433; 2010 ABCA 351, refd to. [para. 23].

R. v. S.G.G., [1997] 2 S.C.R. 716; 214 N.R. 161; 94 B.C.A.C. 81; 152 W.A.C. 81; 116 C.C.C.(3d) 193, refd to. [para. 27].

R. v. Rockey (S.E.) (1995), 82 O.A.C. 1; 99 C.C.C.(3d) 31 (C.A.), refd to. [para. 33].

R. v. Munoz (L.), [2006] O.T.C. 112; 86 O.R.(3d) 134 (Sup. Ct.), refd to. [para. 38].

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, refd to. [para. 40].

Tose v. First Pennsylvania Bank, N.A., [1981] USCA3 469; 648 F 2d 879 (3rd Cir.), refd to. [para. 51].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 686(1)(b)(iii) [para. 7].

Authors and Works Noticed:

Paciocco, David M., The Law of Evidence, pp. 42, 43 [para. 28]; 45, 46 [para. 29].

Counsel:

Peter Harte, for the appellant;

C. Lirette, for the respondent.

This appeal was heard on February 12, 2013, before Johnson, J.A., of the Nunavut Court of Appeal, who delivered the following reasons for judgment on March 1, 2013.