R. v. Gahan (T.J.),

• Jurisdiction: New Brunswick
• Judge: Drapeau, C.J.N.B., Richard and Green, JJ.A.
• Neutral Citation: 2014 NBCA 18
• Citation: 2014 NBCA 18,(2014), 418 N.B.R.(2d) 104 (CA),418 NBR (2d) 104,[2014] NBJ No 77 (QL),418 N.B.R.(2d) 104,418 NBR(2d) 104,[2014] N.B.J. No 77 (QL),(2014), 418 NBR(2d) 104 (CA)
• Date: 10 September 2013
• Court: Court of Appeal (New Brunswick)

R. v. Gahan (T.J.) (2014), 418 N.B.R.(2d) 104 (CA);

    418 R.N.-B.(2e) 104; 1087 A.P.R. 104

MLB headnote and full text

Sommaire et texte intégral

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2014] N.B.R.(2d) TBEd. AP.020

Renvoi temp.: [2014] N.B.R.(2d) TBEd. AP.020

Travis John Gahan (appellant) v. Her Majesty the Queen (respondent)

(44-13-CA; 2014 NBCA 18)

Indexed As: R. v. Gahan (T.J.)

Répertorié: R. v. Gahan (T.J.)

New Brunswick Court of Appeal

Drapeau, C.J.N.B., Richard and Green, JJ.A.

April 8, 2014.

Summary:

Résumé:

The New Brunswick Provincial Court convicted Gahan of sexual assault (Criminal Code, s. 271(1)(a)). Gahan appealed, raising six grounds of appeal. He submitted that the cumulative effect of a number of errors resulted in a miscarriage of justice. The Attorney General argued that the curative proviso in s. 686(1)(b)(iii) of the Code should be applied (no substantial wrong or miscarriage of justice had occurred), and the appeal dismissed.

The New Brunswick Court of Appeal dismissed the appeal. The judge erred in admitting the impugned Statistics Canada evidence and in referring to it. Nevertheless, the Court dismissed that ground of appeal because the error caused no substantial harm or miscarriage of justice.

Criminal Law - Topic 4298

Procedure - Trial judge - Duties and functions of - To exclude inadmissible evidence - [See Criminal Law - Topic 5039 ].

Criminal Law - Topic 4300

Procedure - Trial judge - Duties and functions of - Respecting credibility of witnesses (incl. accused) - [See first Criminal Law - Topic 4379 ].

Criminal Law - Topic 4301

Procedure - Trial judge - Duties and functions of - Respecting examination or cross-examination of witnesses - The trial judge convicted the accused of sexual assault - On appeal, the accused alleged that the judge intervened after counsel's questioning was completed and asked questions of both the accused and a defence witness in a way that effectively constituted cross-examination - The New Brunswick Court of Appeal held that the judge did not exceed the limits of allowable questioning - The questions to the defence witness could "hardly be characterized as a cross-examination" - Rather, the judge wanted to clarify three aspects of the witness's testimony - "The questions may have led the witness to the areas the judge wanted to explore, but they were not leading questions in the sense of questions that suggest the answer." - The judge's questions on one line of inquiry were designed to provide the witness with an opportunity to explain the discrepancy between what was in his statement to the police and his testimony - As for the inquiries at the close of the re-direct examination of the accused, the questions were extremely brief and focused on the accused's behaviour after the fact - The judge had not assumed the role of an advocate - Looking at the questions posed, either separately or combined, "I simply cannot conceive that any reasonable observer would conclude the trial was unfair or the judge anything but impartial." - See paragraphs 36 to 48.

Criminal Law - Topic 4301

Procedure - Trial judge - Duties and functions of - Respecting examination or cross-examination of witnesses - [See first Criminal Law - Topic 4399.4 ].

Criminal Law - Topic 4351

Procedure - Charge or directions - Jury or judge alone - Direction regarding burden of proof and reasonable doubt - The trial judge convicted the accused of sexual assault - On appeal, the accused submitted that the judge decided the case on the basis of what "a reasonable person" would decide and not on the basis of the standard of proof required for a conviction in a criminal case - The New Brunswick Court of Appeal held that the trial judge's use of the term "reasonable person" was not applied to the standard of proof upon which the conviction was founded - "This case illustrates the wisdom for the direction that reasons for decision must be read as a whole, in the context of the evidence, the argument and the trial." - While the judge might have done a better job of expressing himself, his reference to the "reasonable person" was in relation to the test for making a credibility assessment and not to the ultimate standard of proof - The judge clearly stated he subjected his credibility findings to the standard of proof in a criminal case: proof beyond a reasonable doubt - See paragraphs 72 to 85.

Criminal Law - Topic 4353

Procedure - Charge or directions - Jury or judge alone - Directions regarding corroboration - [See Criminal Law - Topic 4866 ].

Criminal Law - Topic 4379

Procedure - Charge or directions - Jury or judge alone - Directions re evidence of character or credibility of accused - The trial judge convicted the accused of sexual assault - The judge said he listened to the accused's testimony and found it to be "as if somebody gave him a script and he practiced it." - On appeal, the accused argued that the judge unduly focused on his demeanour in making the credibility assessment - The New Brunswick Court of Appeal found no merit to that ground of appeal - The judge merely considered demeanour as one of many factors - The approach espoused in Faryna v. Chorny (1951) (B.C.C.A.) was the very approach the trial judge adopted in determining credibility - The judge had indicated that even if the testimony appeared to be scripted, that did not mean it was not true - More importantly, the trial judge did not anchor his credibility findings on demeanour alone, if at all - He considered the other factors relevant to a credibility assessment, and in particular subjected the complainant and the accused's respective testimonies to an examination of their consistency with the probabilities that surrounded the existing conditions - See paragraphs 79 to 85.

Criminal Law - Topic 4379

Procedure - Charge or directions - Jury or judge alone - Directions re evidence of character or credibility of accused - [See both Criminal Law - Topic 4399.4 ].

Criminal Law - Topic 4399.4

Procedure - Charge or directions - Jury or judge alone - Directions re allegations on cross-examination or improper questions - Relying on several decisions of the Ontario Court of Appeal, the appellant/accused argued that it was improper for the trial judge to have allowed the prosecutor to cross-examine the accused on the fact he had received disclosure of the prosecution's case, and that the error was compounded when the judge then made use of the improper line of questioning in making credibility findings - The New Brunswick Court of Appeal was in general agreement with the principles derived from those Ontario decisions, which the Court summarized as follows: "(1) While not every line of cross-examination involving reference to disclosure is improper, it is generally improper for a prosecutor to try to impugn an accused's credibility because the accused exercised his or her constitutional right to obtain disclosure of the case against him or her; (2) Whether cross-examination of an accused about his or her receipt of and familiarity with prosecutorial disclosure is permissible or improper depends on the circumstances of each case; (3) In a jury trial, where improper cross-examination occurs, the trial judge must properly eradicate it by giving the jury appropriate instructions; (4) Even in cases where the use of the accused's knowledge of disclosure is permissible, it is still improper for a judge to make use of it unless the accused was afforded an opportunity to refute such a suggestion and his counsel had an opportunity to address the point in argument; and (5) In a judge alone case, where it is shown that reference to disclosure was improper and where this reference features prominently in the trial judge's adverse assessment of the accused's credibility, this constitutes an error of law and will likely lead to a new trial." - See paragraphs 15 to 21.

Criminal Law - Topic 4399.4

Procedure - Charge or directions - Jury or judge alone - Directions re allegations on cross-examination or improper questions - The trial judge convicted the accused of sexual assault - On appeal, the accused submitted that the judge relied on improper cross-examination in making his credibility assessment - The Attorney General agreed that it was improper for the prosecutor to suggest that an accused's credibility was diminished as a result of reviewing the disclosure materials, but that the impugned cross-examination did not influence the judge's decision - On the question of demeanour in the witness box, the judge said "it's like as if somebody gave him [the accused] a script and he practiced it, which he testified he practiced his testimony, but he never left the script." - The New Brunswick Court of Appeal did not read into the judge's decision any improper reliance on the impugned cross-examination - The cross-examination on access to the disclosure was closely related to the prosecutor's questions on the testimony being rehearsed or scripted, but the two were nevertheless entirely different matters - See paragraphs 22 to 28.

Criminal Law - Topic 4866

Appeals - Indictable offences - Grounds of appeal - Misapprehension of evidence - The trial judge convicted the accused of sexual assault - A ground of appeal was that the verdict was unreasonable because the judge misapprehended several aspects of the evidence, including: (1) the post-offence conduct; (2) evidence he found corroborated the complainant's evidence (evidence of the complainant's cousin and her friend); and (3) evidence of flirting that tended to corroborate the accused's testimony - The New Brunswick Court of Appeal held that the verdict was one that a properly instructed trier of fact, acting judicially, could reasonably have rendered - As for the alleged misapprehension of the evidence, none of the errors, even collectively, were of an overriding nature - "Credibility findings are questions of fact to which great deference are owed, and I see no error that would justify granting leave to appeal the judge' findings of fact or his determination of questions of mixed law and fact." - Whether evidence constituted corroboration was a question of law - The Court rejected the accused's claim that there were significant differences in the evidence of the three witnesses - The Court found no error of law - See paragraphs 49 to 63.

Criminal Law - Topic 5039

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - Effect of error by trial judge - General - The accused was convicted of sexual assault - At trial, the accused had called as a witness a family doctor - The witness testified that she conducted an examination of the complainant and found "no signs of laceration or bruising" - In cross-examination, the prosecutor asked the witness whether she would agree with "the Statistics Canada results when they state that 60 percent of sexual assaults victims present with no injuries?" - Over the accused's objection, the judge allowed the question, and the witness answered that she "would agree with that statistic" - In his decision, the trial judge expressly referenced that testimony - On appeal, the accused submitted that the statistic was inadmissible as hearsay and should not in any event have been referenced by the witness because she had not been declared an expert witness - The New Brunswick Court of Appeal held that the judge erred - "In the context in which this evidence was adduced, it did not meet any requirement for admissibility and it ought to have been rejected. Moreover, the trial judge erred in relying on the evidence in rendering his decision" - Nevertheless, the Court applied the curative proviso in s. 686(1)(b)(iii) of the Criminal Code because the error was inconsequential - The judge referred to the statistic only in the context of reviewing the essence of the witness's testimony and not in the course of conducting his credibility assessment of the complainant - More importantly, there was no evidence to suggest that visible injuries would be expected in this case, nor did the judge draw an inference from the complainant's description of the incident that one would expect signs of injury - Without such evidence or inference, the witness's finding that there were no signs of laceration or bruising was really of no probative value - See paragraphs 64 to 71.

Droit criminel - Cote 4298

Procédure - Juge de première instance - Devoirs et fonctions - Exclusion de la preuve irrecevable - [Voir Criminal Law - Topic 4298 ].

Droit criminel - Cote 4300

Procédure - Juge de première instance - Devoirs et fonctions - Crédibilité des témoins (y compris l'accusé) - [Voir Criminal Law - Topic 4300 ].

Droit criminel - Cote 4301

Procédure - Juge de première instance - Devoirs et fonctions - Respectant l'interrogatoire ou le contre-interrogatoire des témoins - [Voir Criminal Law - Topic 4301 ].

Droit criminel - Cote 4351

Procédure - Exposé ou directives - Jury ou juge seul - Directives concernant le fardeau de la preuve et le doute raisonnable - [Voir Criminal Law - Topic 4351 ].

Droit criminel - Cote 4353

Procédure - Exposé ou directives - Jury or juge seul - Instructions concernant la corroboration - [Voir Criminal Law - Topic 4353 ].

Droit criminel - Cote 4379

Procédure - Exposé ou directives - Jury ou juge seul - Directives concernant la preuve de la moralité ou de la crédibilité du prévenu - [Voir Criminal Law - Topic 4379 ].

Droit criminel - Cote 4399.4

Procédure - Exposé ou directives au jury - Directives concernant les allégations en cours de contre-interrogatoire ou les questions inconvenantes - [Voir Criminal Law - Topic 4399.4 ].

Droit criminel - Cote 4866

Appels - Actes criminels - Moyens d'appel - Mauvaise interprétation de la preuve - [Voir Criminal Law - Topic 4866 ].

Droit criminel - Cote 5039

Appels - Actes criminels - Rejet de l'appel s'il n'y a eu ni préjudice, ni tort important, ni erreur judiciaire grave - Effet de l'erreur du juge de première instance - Généralités - [Voir Criminal Law - Topic 5039 ].

Cases Noticed:

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 1].

R. v. White (I.) (1999), 117 O.A.C. 246 (C.A.), consd. [para. 16].

R. v. Schell (D.N.) (2000), 136 O.A.C. 163 (C.A.), consd. [para. 17].

R. v. Thain (C.) (2009), 247 O.A.C. 55; 2009 ONCA 223, consd. [para. 18].

R. v. F.E.E. (2011), 286 O.A.C. 109; 2011 ONCA 783, consd. [para. 19].

R. v. Jorgge (J.), [2013] O.A.C. Uned. 384; 2013 ONCA 485, consd. [para. 20].

R. v. Brown and Murphy, [1985] 2 S.C.R. 273; 62 N.R. 241; 65 A.R. 158, refd to. [para. 28].

Jones v. National Coal Board, [1957] 2 All E.R. 155; [1957] 2 K.B. 55 (C.A.), refd to. [para. 30].

Ogwa v. Alli (1972), 4 N.B.R.(2d) 423 (C.A.), refd to. [para. 30].

R. v. Darlyn, [1946] B.C.J. No. 94 (C.A.), refd to. [para. 33].

R. v. Brouillard, [1985] 1 S.C.R. 39; 57 N.R. 168, refd. to. [para. 33].

Boucher v. Doiron (2000), 230 N.B.R.(2d) 247; 593 A.P.R. 247; 2000 NBCA 18, refd to. [para. 34].

Pelletier v. St-Onge (2001), 236 N.B.R.(2d) 128; 611 A.P.R. 128; 2001 NBCA 22, refd to. [para. 34].

R. v. Palosaari (M.P.) (2004), 205 B.C.A.C. 36; 337 W.A.C. 36; 2004 BCCA 595, refd to. [para. 35].

R. v. Konelski, [1989] A.J. No. 615 (C.A.), refd to. [para. 35].

R. v. Morrissey (R.J.) (1995), 80 O.A.C. 161 (C.A.), refd to. [para. 50].

R. v. George (W.A.) (2000), 132 O.A.C. 135 (C.A.), refd to. [para. 50].

R. v. C.L.Y., [2008] 1 S.C.R. 5; 370 N.R. 284; 225 Man.R.(2d) 146; 419 W.A.C. 146; 2008 SCC 2, refd to. [para. 52].

R. v. Sinclair (T.), [2011] 3 S.C.R. 3; 418 N.R. 282; 268 Man.R.(2d) 225; 520 W.A.C. 225; 2011 SCC 40, refd to. [para. 52].

R. v. R.E.M., [2008] 3 S.C.R. 3; 380 N.R. 47; 260 B.C.A.C. 40; 439 W.A.C. 40; 2008 SCC 51, refd to. [para. 56].

R. v. G.B. et al., [1990] 2 S.C.R. 57; 111 N.R. 62; 86 Sask.R. 142, refd to. [para. 60].

Faryna v. Chorny, [1951] B.C.J. No. 152 (C.A.), appld. [para. 80].

Smith v. Agnew (2005), 282 N.B.R.(2d) 95; 738 A.P.R. 95; 2005 NBCA 36, refd to. [para. 81].

R. v. Sheppard (C.), [2002] 1 S.C.R. 869; 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50; 2002 SCC 26, refd to. [para. 83].

Counsel:

Avocats:

Gary A. Miller, Q.C., for the appellant;

Christopher R. Lavigne, for the respondent.

This appeal was heard on September 10, 2013, before Drapeau, C.J.N.B., Richard and Green, JJ.A., of the New Brunswick Court Appeal. In written reasons by Richard, J.A., the Court delivered the following judgment, dated April 8, 2014, in both official languages.