R. v. Green (C.D.), (1996) 142 Nfld. & P.E.I.R. 341 (NFTD)

• Judge: L.D. Barry, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: June 13, 1996
• Jurisdiction: Newfoundland and Labrador
• Citations: (1996), 142 Nfld. & P.E.I.R. 341 (NFTD)

R. v. Green (C.D.) (1996), 142 Nfld. & P.E.I.R. 341 (NFTD);

    445 A.P.R. 341

MLB headnote and full text

Her Majesty The Queen v. Calvin Derrick Green

(1993 St. J. No. 3520)

Indexed As: R. v. Green (C.D.)

Newfoundland Supreme Court

Trial Division

L.D. Barry, J.

June 13, 1996.

Summary:

The accused was charged with seven counts of sexual assault. The central issue was the credibility of the complainants because of (1) delay in reporting the inci­dents and (2) because of the discrepancies between testimony at trial and that at the preliminary inquiry and a previous trial. Certain charges arose in the context of "date rape" situations. The defence submitted that there was reasonable doubt because of the complainants' initial consent. One count was dismissed because of an acquittal at a previ­ous trial.

The Newfoundland Supreme Court, Trial Division, convicted the accused on five counts.

Note: the subsequent sentencing in this matter is reported at 142 Nfld. & P.E.I.R. 62; 445 A.P.R. 62.

Criminal Law - Topic 666

Sexual offences - Sexual assault - Con­sent and extorted consent - Green was charged with seven counts of sexual assault - One charge involved L.S. (now aged 20) - L.S. alleged that when she was 14, she and a friend entered Green's par­ents' home on the way home from swim­ming - The friend went with Green into his bedroom for 20 minutes - The friend then returned and stated that "he is a fucking asshole" - L.S. then entered the bedroom - Green kissed her and she kissed back - Green put his hand inside her shirt - L.S. indicated that she wanted Green to stop - Green continued - Green allowed her to leave the bedroom after 15 minutes - L.S. changed her testimony from a prior trial regarding digital penetra­tion - Green was seven to 10 years older than L.S. - The Newfoundland Supreme Court, Trial Division, acquitted Green on L.S.'s complaint - See paragraphs 14 to 25.

Criminal Law - Topic 666

Sexual offences - Sexual assault - Con­sent and extorted consent - Green was charged with seven counts of sexual assault - One charge involved T.D. (now aged 19) - T.D. alleged that when she was 15, she attended a party where Green pushed her into a bedroom onto a bed - Green began kissing her and rubbing her between the legs - He undid one button on her jeans - She told him to leave her alone and threatened to scream - T.D. did not report the incident until she was approached by the police seven months later in the course of investigating other complaints - A male friend testified that he saw T.D. crying during the party - The Newfoundland Supreme Court, Trial Divi­sion, convicted Green on the count dealing with T.D. - See paragraphs 26 to 31

Criminal Law - Topic 666

Sexual offences - Sexual assault - Con­sent and extorted consent - Green was charged with seven counts of sexual assault - One charge involved M.R. (now aged 19) - M.R. alleged that when she was 15, she stayed overnight at the home of S.H. - M.R. telephoned Green to see what he was doing - M.R. alleged that S.H. had informed her that she had been involved sexually with Green - Green picked them up at S.H.'s home - Later, Green attempted to kiss M.R. and touch her breasts - M.R. said "no" and tried to push him away - Green then undid her pants - She was still saying "no" - Green pulled his pants down and, inter alia, attempted to put M.R.'s hand on his penis - S.H. sat up in the back seat and asked Green to leave M.R. alone - Two weeks later, M.R. reported the matter - The Newfoundland Supreme Court, Trial Divi­sion, convicted Green in regard to M.R.'s complaint - See paragraphs 32 to 53.

Criminal Law - Topic 666

Sexual offences - Sexual assault - Con­sent and extorted consent - Green was charged with seven counts of sexual assault - One charge involved E.B. (now aged 20) - The first incident happened in the truckers' lounge of an Irving service station - Green grabbed her arm and wanted her to put her hand in his pants and give him "a hand job" - She refused - Green then put his hand inside her shirt - She struggled - Green pushed her away when her friend returned - Another time she accepted a drive from Green - She refused to go parking - Green grabbed her and put one hand up her shirt and the other down her pants - She struggled and got the door open - She reported the incidents later when she learned that another girl had charged Green with sexual assault - E.B.'s friend corroborated her testimony regarding the Irving incident - The New­foundland Supreme Court, Trial Division, convicted Green in regard to E.B.'s com­plaint - See paragraphs 54 to 58.

Criminal Law - Topic 666

Sexual offences - Sexual assault - Con­sent and extorted consent - Green was charged with seven counts of sexual assault - Two charges involved N.S. (now aged 23) - Her stepfather was Green's uncle - The first incident occurred when she was 14 - N.S. delivered some Kool Aid to Green's home - Green showed her the Christmas gifts and invited her to his bedroom to see another gift - She told him she was leaving - Green picked her up and placed her on the bed - She told him she wanted to go home - Green pinned her to the bed and forced intercourse - N.S.'s mother then knocked on the bed­room door - Her mother was upset - At home she met her stepfather in the kitchen - She denied any sexual involvement with Green because she was afraid of her step­father's possible reaction - However, she told a male friend that night - The New­foundland Supreme Court, Trial Division, convicted Green in regard to N.S.'s com­plaint - See paragraphs 59 to 64 and 66 to 69.

Criminal Law - Topic 666

Sexual offences - Sexual assault - Con­sent and extorted consent - Green was charged with seven counts of sexual assault - Two charges involved N.S. (now aged 23) - Her stepfather was Green's uncle - The second incident happened when she was 16 - Her mother asked Green to drive N.S. to another community - On the way, Green stated that he wanted to go parking - N.S. refused - Green parked on the side of the road and began kissing and fondling her without her con­sent - Over 20 minutes, he touched her breasts and undid her pants - She became upset and wrestled with him - Green stopped and they continued on their jour­ney - The Newfoundland Supreme Court, Trial Division, convicted Green in regard to the charges concerning N.S. - See paragraphs 65 to 69.

Criminal Law - Topic 5420.1

Evidence and witnesses - Witnesses - Admissibility of evidence previously taken where witness unavailable or unable to testify - Green was charged with seven counts of sexual assault - At trial, one witness (a minor) was unavailable because of illness - Earlier she had given a statement to the police in which she stated that she had seen her sister, one of the complainants, upset on the night of the alleged sexual assault - The Crown wanted to admit her statement to corroborate the testimony of another witness and rebut an allegation of recent fabrication - The statement was signed by the witness and a social worker - The Newfoundland Supreme Court, Trial Division, declined to admit the statement - See paragraphs 71 and 76.

Evidence - Topic 1130

Relevant facts, relevance and materiality - Relevance of evidence offered - Prior consistent statements - Green was charged with seven counts of sexual assault - Two charges involved N.S. (now aged 23) - The first incident occurred when she was 14 and involved forced intercourse - When she returned home, she denied that anything happened - However, she told a male friend that night - She reported the incident to the police six years later - At trial Green objected to the admissibility of evidence concerning a prior consistent statement made by N.S. shortly after the alleged incident - Green submitted that there had been no questions on cross-examination which raised the allegation of recent fabrication - The Newfoundland Supreme Court, Trial Division, dismissed Green's objection and ordered a voir dire - See paragraphs 80 to 89.

Evidence - Topic 4760

Witnesses - Examination - Prior incon­sistent statements - Cross-examination on prior written statements - Transcript from prior trial - Green was charged with seven counts of sexual assault - At trial, the Crown objected to Green's use during cross-examination of the transcript of one of the complainant's testimony from a prior trial - Green submitted that ss. 10 and 11 of the Canada Evidence Act provided for cross-examination as to previous state­ments made in writing "or reduced to writing" - The Newfoundland Supreme Court, Trial Division, dismissed the Crown's objection - See paragraphs 77 to 79.

Cases Noticed:

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 6].

R. v. P.L.S., [1991] 1 S.C.R. 909; 122 N.R. 321; 90 Nfld. & P.E.I.R. 234; 280 A.P.R. 234, refd to. [para. 6].

R. v. Tyhurst (J.S.) (1992), 21 B.C.A.C. 218; 37 W.A.C. 218; 79 C.C.C.(3d) 238 (C.A.), refd to. [para. 6].

R. v. Chan (1989), 100 A.R. 133; 52 C.C.C.(3d) 184 (C.A.), leave to appeal refused (1990), 107 N.R. 280; 107 A.R. 160; 75 C.R.(3d) xxvii (S.C.C.), refd to. [para. 7].

R. v. R.W.B. (1993), 24 B.C.A.C. 1; 40 W.A.C. 1 (C.A.), refd to. [para. 8].

R. v. Bittern (1989), 56 Man.R.(2d) 215; 48 C.C.C.(3d) 71 (C.A.), refd to. [para. 9].

R. v. J.N.B. - see R. v. Bittern.

R. v. Saulnier (1989), 89 N.S.R.(2d) 208; 227 A.P.R. 208; 48 C.C.C.(3d) 301 (C.A.), refd to. [para. 9].

R. v. Camp (1977), 36 C.C.C.(2d) 511 (Ont. C.A.), refd to. [para. 9].

R. v. M.H.C., [1991] 1 S.C.R. 763; 123 N.R. 63; 63 C.C.C.(3d) 385; 4 C.R.(4th) 1, refd to. [para. 11].

R. v. Khan, [1990] 2 S.C.R. 531; 113 N.R. 53; 41 O.A.C. 353; 59 C.C.C.(3d) 92; 79 C.R.(3d) 1, consd. [para. 72].

R. v. F.J.U. (1995), 186 N.R. 365; 85 O.A.C. 321; 101 C.C.C.(3d) 97 (S.C.C.), consd. [para. 72].

R. v. K.G.B. (1993), 148 N.R. 241; 61 O.A.C. 1; 79 C.C.C.(3d) 257 (S.C.C.), dist. [para. 72].

R. v. Smith (A.L.) (1992), 139 N.R. 323; 55 O.A.C. 321; 15 C.R.(4th) 133 (S.C.C.), consd. [para. 74].

R. v. Parks (C.) (1993), 65 O.A.C. 122; 24 C.R.(4th) 81 (C.A.), leave to appeal dismissed (1994), 175 N.R. 321; 72 O.A.C. 159; 28 C.R.(4th) 403 (S.C.C.), refd to. [para. 78].

R. v. Keegstra (J.) (1994), 157 A.R. 1; 77 W.A.C. 1; 92 C.C.C.(3d) 505 (C.A.), folld. [para. 78].

R. v. Béland and Phillips, [1987] 2 S.C.R. 398; 79 N.R. 263; 9 Q.A.C. 293; 36 C.C.C.(3d) 481; 60 C.R.(3d) 1, refd to. [para. 81].

Fox v. General Medical Council, [1960] 3 All E.R. 225 (P.C.), consd. [para. 82].

R. v. Ay (1994), 59 B.C.A.C. 161; 98 W.A.C. 161; 93 C.C.C.(3d) 456 (C.A.), consd. [para. 82].

R. v. O'Connor (P.) (1995), 84 O.A.C. 113; 100 C.C.C.(3d) 285 (C.A.), consd. [para. 83].

R. v. Ferguson (1990), 105 A.R. 135; 55 C.C.C.(3d) 286 (C.A.), refd to. [para. 83].

R. v. H.F. - see R. v. Ferguson.

R. v. Page (1984), 12 C.C.C.(3d) 250 (Ont. H.C.), refd to. [para. 83].

R. v. Hoffman (A.A.) (1994), 155 A.R. 275; 73 W.A.C. 275; 32 C.R.(4th) 396 (C.A.), dist. [para. 84].

R. v. Campbell (1977), 1 C.R.(3d) 309 (Ont. C.A.), refd to. [para. 84].

R. v. Evans (B.J.) (1993), 153 N.R. 212; 28 B.C.A.C. 81; 47 W.A.C. 81; 82 C.C.C.(3d) 338 (S.C.C.), refd to. [para. 84].

R. v. Cole (1992), 102 Nfld. & P.E.I.R. 328; 323 A.P.R. 328; 16 C.R.(4th) 258 (Nfld. C.A.), refd to. [para. 84].

Statutes Noticed:

Canada Evidence Act, R.S.C. 1985, c. C-5, sect. 9(2), sect. 10, sect. 11 [para. 78].

Criminal Code, R.S.C. 1985, c. C-46, sect. 246.1(1)(a), sect. 271(1) [para. 2]; sect. 274 [para. 9].

Evidence Act (Can.) - see Canada Evi­dence Act.

Authors and Works Noticed:

Boilard, Jean-Guy, Guide To Criminal Evidence (Revised Ed. 1996), c. 2, gen­erally [para. 78].

Cox, Harold J., Criminal Evidence Hand­book (1994), p. 152 [para. 86].

Ferguson, Gerry A., and Bouck, John C., Canadian Criminal Jury Instructions (Revised 3rd Ed. 1995), vol. 1, pp. 4.12-4 to 4.12-5 [para. 10].

McWilliams, Peter K., Canadian Criminal Evidence (3rd Ed. 1988) (1996 Supp.), vol. 2, pp. 12-5, 12-15 [para. 86]; 37-8 [para. 78].

Counsel:

Harold Porter, for Her Majesty The Queen;

Thomas Burke, for Calvin Derrick Green.

This case was heard on May 21-24 and 28-30, 1996, before L.D. Barry, J., of the Newfoundland Supreme Court, Trial Divi­sion, who delivered orally the following judgment on June 13, 1996, which was filed on August 9, 1996.