R. v. Gallie (G.A.), (2015) 361 N.S.R.(2d) 52 (CA)

Judge:Fichaud, Bryson and Bourgeois, JJ.A.
Court:Nova Scotia Court of Appeal
Case Date:April 01, 2015
Jurisdiction:Nova Scotia
Citations:(2015), 361 N.S.R.(2d) 52 (CA);2015 NSCA 50
 
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R. v. Gallie (G.A.) (2015), 361 N.S.R.(2d) 52 (CA);

    1137 A.P.R. 52

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Temp. Cite: [2015] N.S.R.(2d) TBEd. MY.032

Gordon Arthur Gallie (appellant) v. Her Majesty the Queen (respondent)

(CAC 432264; 2015 NSCA 50)

Indexed As: R. v. Gallie (G.A.)

Nova Scotia Court of Appeal

Fichaud, Bryson and Bourgeois, JJ.A.

May 20, 2015.

Summary:

The accused was convicted by judge and jury of sexual offences involving two girls, aged nine and 10. With respect to one count of sexual assault, he was convicted of the included offence of assault. The accused appealed, asserting that the jury's assessment of credibility was compromised by the Crown's improper cross-examination of the accused, inadmissible character evidence, un-cautioned prior consistent statements and the trial judge's confusing jury instructions. He further asserted that the judge wrongly declined to allow the jury to consider the defence of removing trespassers.

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 under s. 486 of the Criminal Code and Maritime Law Book's editorial policy.

Criminal Law - Topic 234

General principles - Statutory defences or exceptions - Defence of property - The accused was convicted by judge and jury of sexual offences involving two girls, aged nine and 10 - With respect to one count of sexual assault, he was convicted of the included offence of assault - The accused appealed, asserting that the trial judge erred by not instructing the jury with respect to the justification of the use of force to remove a trespasser from a dwelling-house (Criminal Code, s. 41(1)) - The Nova Scotia Court of Appeal rejected the assertion - The accused denied that he touched the complainants' buttocks - He testified that, after he found them looking through his wallet in his bedroom, he escorted them to the hall, where one of the complainants started to cry and asked him not to tell her mother, and he then put his hand on the small of their backs, told them that it was time to go and escorted them out - Taking the accused's testimony at face value, his wallet was safely back in the drawer and the girls had left his bedroom - His property was out of harm's way - At no point did the girls decline to leave the home - They were entitled to a reasonable opportunity to leave the home before the use of force - The fact that one of them started crying and pleading did not mean that they had aborted that reasonable opportunity and it did not entitle the accused to apply "necessary force" to defend his well secured property from a 10 year old girl - The court agreed with the trial judge that there was no air of reality to the defence - See paragraphs 62 to 70.

Criminal Law - Topic 4301

Procedure - Trial judge - Duties and functions of - Respecting examination or cross-examination of witnesses - The accused was convicted by judge and jury of sexual offences involving two girls, aged nine and 10 - He appealed, asserting that the trial judge erred by failing to provide adequate and timely instructions to the jury regarding the use of evidence derived from the Crown's improper cross-examination when they asked the accused to comment on the veracity of the complainants - The Nova Scotia Court of Appeal rejected the assertion - The exchange in question occurred at the end of the accused's cross-examination - His explanation on re-direct coherently related the defence theory that his counsel later put to the jury in her closing address - He was the last witness - Next was a discussion with counsel and a mistrial motion in the jury's absence, then closing addresses and the jury charge - The jury charge directed that, according to "set law", the Crown's question "ought not" to have been asked - The directions explained the reasons: that the question could undermine the presumption of innocence and burden of proof, and operate prejudicially to the accused - The trial judge was better positioned than was the court to appraise the prejudice - The judge's direction canvassed the elements of an appropriate corrective message - The jury got the point and the court assumed that they reasonably acted on it - The improper questioning did not impair trial fairness - See paragraphs 29 to 40.

Criminal Law - Topic 4351

Procedure - Charge or directions - Jury or judge alone - Direction regarding burden of proof and reasonable doubt - [See Criminal Law - Topic 4301 ].

Criminal Law - Topic 4351

Procedure - Charge or directions - Jury or judge alone - Direction regarding burden of proof and reasonable doubt - The accused was convicted by judge and jury of sexual offences involving two girls, aged nine and 10 - He appealed, asserting that the trial judge erred in his jury instructions by stating that "If ... you are sure that [the accused] did not commit an offence ... you should find him not guilty ..." and "If you are not satisfied beyond a reasonable doubt of each of these essential elements in either count number one or count number four, you must find [the accused] guilty of sexual assault on count number one and/or count number four." - The Nova Scotia Court of Appeal concluded that, standing alone, the directions were erroneous - However, in the context of the whole charge, there was no reasonable possibility that the jury was misled about the Crown's burden - The jury did not retire with the understanding that they could acquit only if the were "sure" the accused was innocent - The jury did not deliberate with the counterintuitive impression that, if they were "not satisfied" the offence was proven, then they had to find the accused guilty - See paragraphs 52 to 61.

Criminal Law - Topic 4351.2

Procedure - Charge or directions - Jury or judge alone - Directions regarding the presumption of innocence - [See Criminal Law - Topic 4301 ].

Criminal Law - Topic 4375.2

Procedure - Charge or directions - Jury or judge alone - Directions regarding prior inconsistent statement - The accused was convicted by judge and jury of sexual offences involving two girls, aged nine and 10 - He appealed, asserting that the trial judge erred by failing to caution or instruct the jury about the limited usage of a prior consistent statement - One complainant (K.A.) testified that the other complainant (J.C.) tried to persuade K.A. to accede to the accused's request for oral sex by saying "It's okay, I've done it before. It's fine. I've done it plenty of times." - The Nova Scotia Court of Appeal rejected the assertion - The Crown did not offer K.A.'s statement as proof of the underlying fact (J.C.'s earlier sexual contact with the accused) - The defence doggedly re-elicited, expanded, then relied on J.C.'s statement to K.A. to support the defence theory - It was difficult to see how K.A.'s recitation of J.C.'s statement bolstered J.C.'s reliability as J.C. and K.A. were at odds over the statement - J.C. refused to say that she had even made the statement - The statement meant that the reliability of one or the other was suspect - The accused's counsel neither objected nor requested a limiting instruction on the matter - See paragraphs 71 to 85.

Criminal Law - Topic 4375.2

Procedure - Charge or directions - Jury or judge alone - Directions regarding prior inconsistent statement - The accused was charged with sexual offences involving two girls, aged nine and 10 - A jury trial ensued - The father (B.M.) of one of the complainants (K.A.) testified that he spoke to the other complainant (J.C.) and told her that K.A. had told him that things had happened and he asked J.C. if those things were true and whether or not the accused had touched her or done anything inappropriate with her - The accused's counsel objected - The Crown indicated that the evidence was just to establish narrative not for the truth of its contents - The trial judge stated that the testimony constituted hearsay and advised what the appropriate substituted questioning was - B.M.'s examination continued without B.M. reciting what J.C. had told him of the accused's conduct - The accused asserted that the judge erred by not cautioning or instructing the jury about the limited usage of the prior consistent statement - The Nova Scotia Court of Appeal stated that the trial judge did not admit the evidence - The jury had not retired during the objection and heard the exchange between the judge and the Crown - The judge did not tell the jury that the hearsay was struck and should be disregarded, but that disposition was obvious - This was not an admitted prior consistent statement that required a limiting instruction on its usage - See paragraphs 86 to 92.

Criminal Law - Topic 4393

Procedure - Charge or directions - Jury or judge alone - Failure by counsel to object - Effect of - [See first Criminal Law - Topic 4375.2 ].

Criminal Law - Topic 5204.3

Evidence and witnesses - General - Admissibility - Evidence of disposition or propensity of accused - The accused was convicted by judge and jury of sexual offences involving two girls, aged nine and 10 - He appealed, asserting that the trial judge erred by failing to properly instruct the jury respecting the prohibition against the use of bad character evidence derived from a Crown witness's direct testimony regarding pornography usage - The Nova Scotia Court of Appeal rejected the assertion - The accused was indicted that "between the 15th day of June, 2009, and the 12th day of September, 2010" he committed offences including that he "did for a sexual purpose touch [J.C.]" and that he "did for a sexual purpose, invite [J.C.] ... to touch" him - The Crown was entitled to lead evidence to support the allegations that, on those occasions, the accused's "sexual purpose" and "invitation" could be inferred from his attempted grooming of J.C. by showing her pornography - That was evidence of a fact in issue, not propensity - The trial judge properly instructed the jury that there was no pornography charge against the accused - No further limiting instruction was required - See paragraphs 41 to 51.

Criminal Law - Topic 5434

Evidence and witnesses - Cross-examination of accused - Improper or abusive questioning - What constitutes - [See Criminal Law - Topic 4301 ].

Criminal Law - Topic 5449

Evidence and witnesses - Evidence respecting the accused - Character of accused (incl. discreditable conduct) - General - [See Criminal Law - Topic 5204.3 ].

Criminal Law - Topic 5450

Evidence and witnesses - Evidence respecting the accused - Character of accused - Jury charge - [See Criminal Law - Topic 5204.3 ].

Evidence - Topic 4609

Witnesses - Examination - General principles - Questions respecting veracity of other witnesses - [See Criminal Law - Topic 4301 ].

Cases Noticed:

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322, refd to. [para. 24].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 32].

R. v. Markadonis, [1935] S.C.R. 657, refd to. [para. 33].

R. v. Rose (E.) (2001), 143 O.A.C. 163 (C.A.), refd to. [para. 33].

R. v. Brown and Murphy (1982), 41 A.R. 69 (C.A.), affd. [1985] 2 S.C.R. 273; 62 N.R. 241; 65 A.R. 158, refd to. [para. 33].

R. v. Henderson (R.R.) (1999), 120 O.A.C. 99 (C.A.), refd to. [para. 33].

R. v. Vandenberghe, [1995] O.J. No. 243 (C.A.), refd to. [para. 33].

R. v. Kusk (D.P.) (1998), 232 A.R. 270; 195 W.A.C. 270 (C.A.), refd to. [para. 33].

R. v. Corbett, [1988] 1 S.C.R. 670; 85 N.R. 81, refd to. [para. 38].

R. v. Elkins (M.R.) (1995), 86 O.A.C. 125 (C.A.), refd to. [para. 38].

R. v. Suzack (C.V.) et al. (2000), 128 O.A.C. 140 (C.A.), refd to. [para. 38].

R. v. Carrière (P.J.) (2001), 151 O.A.C. 115 (C.A.), refd to. [para. 38].

R. v. Ward (S.C.) (2011), 307 N.S.R.(2d) 216; 975 A.P.R. 216; 2011 NSCA 78, refd to. [para. 38].

R. v. Greenwood (L.D.) (2014), 350 N.S.R.(2d) 315; 1105 A.P.R. 315; 2014 NSCA 80, refd to. [para. 38].

R. v. C.J. (2011), 307 N.S.R.(2d) 200; 975 A.P.R. 200; 2011 NSCA 77, refd to. [para. 46].

R. v. Handy (J.), [2002] 2 S.C.R. 908; 290 N.R. 1; 160 O.A.C. 201, refd to. [para. 48].

R. v. Mahalingan (R.), [2008] 3 S.C.R. 316; 381 N.R. 199; 243 O.A.C. 252, refd to. [para. 48].

R. v. Fitzgerald (G.H.) (1980), 42 N.S.R.(2d) 301; 77 A.P.R. 301 (C.A.), refd to. [para. 50].

R. v. C.C. (2015), 329 O.A.C. 272; 2015 ONCA 59, refd to. [para. 50].

R. v. Van Dyke (B.J.) (2014), 348 B.C.A.C. 292; 595 W.A.C. 292; 2014 BCCA 3, refd to. [para. 50].

R. v. W.J.D., [2007] 3 S.C.R. 523; 369 N.R. 225; 302 Sask.R. 4; 411 W.A.C. 4, refd to. [para. 54].

R. v. Daley - see R. v. W.J.D.

R. v. Brydon (J.L.), [1995] 4 S.C.R. 253; 188 N.R. 321; 65 B.C.A.C. 81; 106 W.A.C. 81, refd to. [para. 55].

R. v. K.M.E., [2009] 2 S.C.R. 19; 389 N.R. 20; 272 B.C.A.C. 1; 459 W.A.C. 1, refd to. [para. 60].

R. v. Ellard - see R. v. K.M.E.

R. v. Gauthier (C.), [2013] 2 S.C.R. 403; 445 N.R. 97, refd to. [para. 66].

R. v. Doiron (P.) (2013), 405 N.B.R.(2d) 22; 1050 A.P.R. 22; 2013 NBCA 31, refd to. [para. 67].

R. v. Stirling (B.J.), [2008] 1 S.C.R. 272; 371 N.R. 384; 251 B.C.A.C. 62; 420 W.A.C. 62, refd to. [para. 71].

R. v. Dinardo (J.), [2008] 1 S.C.R. 788; 374 N.R. 198, refd to. [para. 71].

Counsel:

Roger A. Burrill, for the appellant;

Mark Scott, for the respondent.

This appeal was heard at Halifax, Nova Scotia, on April 1, 2015, by Fichaud, Bryson and Bourgeois, JJ.A., of the Nova Scotia Court of Appeal. Fichaud, J.A., delivered the following reasons for judgment for the court on May 20, 2015.

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