R. v. H.P.P., (1996) 113 Man.R.(2d) 271 (CA)

• Judge: Scott, C.J.M., Huband and Philp, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: December 18, 1996
• Jurisdiction: Manitoba
• Citations: (1996), 113 Man.R.(2d) 271 (CA)

R. v. H.P.P. (1996), 113 Man.R.(2d) 271 (CA);

    131 W.A.C. 271

MLB headnote and full text

Her Majesty The Queen (respondent) v. P. (H.P.) also known as R. (H.P.) (appellant/accused)

(Suit No. A.R. 95-30-02419)

Indexed As: R. v. H.P.P.

Manitoba Court of Appeal

Scott, C.J.M., Huband and Philp, JJ.A.

December 18, 1996.

Summary:

An accused was charged with 16 counts of various sexual offences against four com­plainants. The accused applied for the pro­duction of the complainants' therapeutic or medical records currently in the possession of counsellors, therapists or doctors.

The Manitoba Court of Queen's Bench, in a decision reported 104 Man.R.(2d) 312, dismissed the application.

The Manitoba Court of Queen's Bench, in a decision not reported in this series of reports, convicted the accused of nine counts of gross indecency and one count of indecent assault and sentenced the accused to five years' imprisonment concurrent on all charges. The accused appealed the convic­tion, asserting that (1) the failure of the trial judge to order production of private therapy and counselling records warrants a new trial and (2) the trial judge's conduct in question­ing the accused and referring to some of those answers in convicting him created the appearance of an unfair trial. The accused also appealed the sentence.

The Manitoba Court of Appeal dismissed the conviction appeal. The court, Huband, J.A., dissenting, affirmed the sentence.

Criminal Law - Topic 128

Rights of accused - Right to make full answer and defence - [See Criminal Law - Topic 4505 ].

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - An accused was charged with 16 sexual offences involving four complain­ants - He sought production of the com­plainants' therapeutic or medical records currently in the possession of counsellors, therapists or doctors - He argued that the Crown had a duty to disclose evidence prior to trial because of the accused's right to make full answer and defence - The trial judge dismissed the application, con­cluding that the production of records would be an extraordinary event and such applications would ordinarily be dis­allowed - The accused appealed his con­viction on 10 of the counts, asserting that the trial judge imposed too high of a stan­dard on the accused with respect to estab­lishing the "likely relevance" of the record - The Manitoba Court of Appeal rejected the assertion - See paragraphs 3 to 6.

Criminal Law - Topic 4574

Procedure - Conduct of trial - Interven­tions by trial judge - An accused was charged with 16 sexual offences involving four children who were now adult com­plainants - The accused's defence was a simple denial - The trial judge convicted the accused on nine counts of gross inde­cency and one count of indecent assault - The accused appealed, asserting that the trial judge asked him why the complain­ants would make false statements against him, thus placing an unfair onus upon him to establish why the complainants would lie and resulting in the appearance of injustice and an unfair trial - The Manitoba Court of Appeal rejected the assertion - Although it would have been better to avoid the line of questions, it neither resulted in prejudice to the accused sufficient to warrant a new trial nor cre­ated an appearance of unfairness - See paragraphs 7 to 32.

Criminal Law - Topic 4963

Appeals - Indictable offences - New trials - Grounds - Lack of appearance of justice - [See Criminal Law - Topic 4574 ].

Criminal Law - Topic 5404

Evidence and witnesses - Witnesses - Credibility - The Manitoba Court of Appeal stated that "[g]enerally speaking, it is objectionable to ask a witness to express an opinion whether another witness is lying since the opinion of one witness about the veracity of another is simply not relevant ... But, 'While the witness's opin­ion as to the veracity of another witness is irrelevant, the fact that his evidence con­flicts with that of another witness may be highly relevant to the process of determin­ing credibility'" - See paragraph 16.

Criminal Law - Topic 5846.5

Sentencing - Considerations on imposing sentence - Sentence precedents - Starting point principle - A 50 year old accused was convicted of nine counts of gross indecency and one count of indecent assault, relating to incidents that occurred between 1969 and 1976 and involving the accused's two children and two of his wife's sisters - The accused denied the incidents - No remorse - Had since remarried - Operating a successful busi­ness - No further difficulty with the law - Two months' presentence custody - The victims suffered for several years requiring therapy and professional intervention and had resulting recurring problems in adult­hood - The Manitoba Court of Appeal affirmed a sentence of five years' im­prisonment (concurrent) on all charges - The court rejected the assertion that if the sentencing judge had understood the start­ing-point principle, he would have con­sidered the 20 years of exemplary living by the accused and reduced the sentence - See paragraphs 33 to 44.

Criminal Law - Topic 5856

Sentence - Indecent assault - [See Crimi­nal Law - Topic 5846.5 ].

Criminal Law - Topic 5905

Sentence - Gross indecency - [See Criminal Law - Topic 5846.5 ].

Cases Noticed:

R. v. O'Connor (H.P.) (1994), 43 B.C.A.C. 70; 69 W.A.C. 70; 90 C.C.C.(3d) 257 (C.A.), affd. [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1; 103 C.C.C.(3d) 1, consd. [para. 3].

R. v. W.S. (1994), 70 O.A.C. 370; 18 O.R.(2d) 509; 29 C.R.(4th) 143; 90 C.C.C.(3d) 242 (C.A.), consd. [para. 12].

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322; 15 C.C.C.(2d) 524; 26 C.R.N.S. 1; 44 D.L.R.(3d) 351, refd to. [para. 14].

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; 3 C.R.(4th) 302, consd. [para. 14].

Markadonis v. R., [1935] S.C.R. 657, refd to. [para. 16].

R. v. Brown and Murphy (1982), 41 A.R. 69; 1 C.C.C.(3d) 107 (C.A.), affd. [1985] 2 S.C.R. 273; 62 N.R. 241; 65 A.R. 158, consd. [para. 16].

R. v. A.R. (1994), 92 Man.R.(2d) 183; 61 W.A.C. 183 (C.A.), consd. [paras. 18, 49].

R. v. W. (1994), 75 O.A.C. 130; 94 C.C.C.(3d) 441 (C.A.), revd. [1995] 4 S.C.R. 51; 206 N.R. 161; 96 O.A.C. 244; 44 C.R.(4th) 317, consd. [para. 20].

R. v. Brouillard, [1985] 1 S.C.R. 39; 57 N.R. 168; 17 C.C.C.(3d) 193; 44 C.R.(3d) 124; 16 D.L.R.(4th) 447, consd. [para. 23].

R. v. Wallick (1990), 69 Man.R.(2d) 310 (C.A.), refd to. [para. 23].

R. v. R.W.B. (1993), 24 B.C.A.C. 1; 40 W.A.C. 1 (C.A.), refd to. [para. 26].

R. v. Defrancesca (J.) et al. (1995), 82 O.A.C. 35; 104 C.C.C.(3d) 189 (C.A.), leave to appeal refused (1996), 198 N.R. 396; 198 N.R. 397; 90 O.A.C. 320 (S.C.C.), refd to. [para. 30].

R. v. C.D. (1991), 75 Man.R.(2d) 14; 6 W.A.C. 14 (C.A.), refd to. [para. 34].

R. v. M.F.D. (1991), 75 Man.R.(2d) 21; 6 W.A.C. 21 (C.A.), consd. [para. 36].

R. v. Spence (S.); R. v. Fraser (D.L.) (1992), 131 A.R. 301; 25 W.A.C. 301; 78 C.C.C.(3d) 451 (C.A.), consd. [paras. 39, 49].

R. v. McClure (1991), 4 B.C.A.C. 87; 9 W.A.C. 87; 67 C.C.C.(3d) 95 (C.A.), consd. [para. 41].

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81, refd to. [para. 43].

Counsel:

J.J. Gindin, for the appellant;

Marva J. Smith and G.A. Lawlor, for the respondent;

D.D. Yard, Q.C., for the intervenors, L.M.B., J.G.R., M.C.D. and D.H.M.;

L.A. Cherniack, for the intervenor, Klinic Community Health Centre.

This appeal was heard on November 27 and 28, 1996, before Scott, C.J.M., Huband and Philp, JJ.A., of the Manitoba Court of Appeal.

On December 18, 1996, the judgment was delivered for the Court of Appeal and the following opinions were filed:

Scott, C.J.M. (Philp, J.A., concurring) - see paragraphs 1 to 44;

Huband, J.A., dissenting in part - see paragraphs 45 to 52.