R. v. Haug,

• Jurisdiction: Saskatchewan
• Judge: Vancise, Smith and Hunter, JJ.A.
• Neutral Citation: 2008 SKCA 23
• Court: Court of Appeal (Saskatchewan)
• Date: 10 January 2008
• Citation: 2008 SKCA 23,(2008), 307 Sask.R. 1 (CA),229 CCC (3d) 132,[2008] SJ No 100 (QL),307 Sask R 1,417 WAC 1,[2008] S.J. No 100 (QL),307 Sask.R. 1,417 W.A.C. 1,307 SaskR 1,(2008), 307 SaskR 1 (CA)

R. v. Haug (D.W.) (2008), 307 Sask.R. 1 (CA);

      417 W.A.C. 1

MLB headnote and full text

Temp. Cite: [2008] Sask.R. TBEd. FE.010

Daryle William Haug (appellant) v. Her Majesty the Queen (respondent)

(No. 973)

Her Majesty the Queen (appellant) v. Daryle William Haug (respondent)

(No. 1182; 2008 SKCA 23)

Indexed As: R. v. Haug (D.W.)

Saskatchewan Court of Appeal

Vancise, Smith and Hunter, JJ.A.

January 10, 2008.

Summary:

The accused was convicted on two counts of sexual assault. The Crown applied to have him declared a dangerous offender pursuant to s. 753(1)(b) of the Criminal Code.

The Saskatchewan Court of Queen's Bench, in a decision reported at 278 Sask.R. 28, found the accused to be a long-term offender, sentenced the accused to 30 months' imprisonment for each offence (consecutive) less 36 months' credit for 32 months of remand, made a 10 year supervision order, made a DNA order, imposed a lifetime firearms prohibition and ordered that the accused comply with the Sex Offender Information Registration Act. The accused appealed the conviction and sentence. The Crown appealed the dismissal of its dangerous offender application.

The Saskatchewan Court of Appeal dismissed the accused's appeal and allowed the Crown's appeal. The designation of the accused as a long-term offender and the determinate sentence were set aside. The accused was declared a dangerous offender and an indeterminate sentence was imposed.

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.

Civil Rights - Topic 3133

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right of accused to make full answer and defence - The accused was convicted of sexually assaulting two sisters (ages 8 and 12) in the Barbie doll aisle of a Wal-Mart - He appealed, arguing that his right to make full answer and defence was infringed because the police failed to seize and preserve video tapes from Wal-Mart's security cameras that might have shown that he was not present in the toy aisle at the time of the alleged offences - Also he complained that the interviews of the victims by the police and subsequently by the Crown prosecutor were not video-taped and no record was maintained of the exact questions put to them - The Saskatchewan Court of Appeal rejected the argument - As no security tapes were seized by the police, there were no tapes in the possession of the Crown for disclosure or preservation - The only inference to be drawn was that the police did not perceive any surveillance tapes as relevant evidence - As the accused had admitted to a Wal-Mart employee that he had, indeed, been present in the toy department at the relevant time, it was unlikely that the surveillance tapes would have proved the contrary - The victims' accounts did not vary significantly from the initial disclosure to their mother to their testimony at trial - Both victims were subject to cross-examination at the trial and there was ample opportunity to cross-examine them on prior inconsistent statements, such as they were - See paragraphs 6 to 13.

Civil Rights - Topic 3136

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to be informed of alleged offence (Charter, s. 11(a)) - The accused was arrested on August 1, 2003, and charged with two counts of sexual interference (Criminal Code, s. 151) - He was denied bail - He later pled not guilty and elected trial by Provincial Court judge alone - A trial date was set - On December 1, 2003, the Crown withdrew the s. 151 charges and filed a new information charging two counts of sexual assault (s. 271) - The accused argued that his right pursuant to s. 11(a) of the Charter to be immediately informed of the specific offence with which he was charged was infringed - The Saskatchewan Court of Appeal rejected the argument - The right to be informed of the specific offence did not arise unless and until a person was charged with that offence - There was no unreasonable delay, in this case, between laying the charge pursuant to s. 271 and informing the accused of the charge - See paragraph 18.

Criminal Law - Topic 128

Rights of accused - Right to make full answer and defence - [See Civil Rights - Topic 3133 ].

Criminal Law - Topic 131

Rights of accused - Right to just conduct of trial - The accused was convicted on two counts of sexual assault - He appealed, arguing that his right to a fair trial was infringed because his criminal record was disclosed to the trial judge prior to the trial resulting in a miscarriage of justice - The accused brought a number of applications alleging, inter alia, arbitrary detention due to his pre-trial detention, abuse of process, etc., before the trial judge prior to the trial - In the course of these applications, it was disclosed that the Crown would be seeking a dangerous offender designation respecting the accused and that he had a serious related record - The Saskatchewan Court of Appeal rejected the argument - This evidence was clearly relevant to the applications before the judge and was not led for the purpose of proving the accused's propensity to commit the offences with which he was charged - The trial judge was alive to the issue of possible prejudice to the accused - It was the duty of a trial judge to set aside such information as irrelevant to the verdict to be rendered - In this case, there was no indication that the trial judge improperly used the accused's criminal record when he determined the verdict - See paragraphs 23 to 29.

Criminal Law - Topic 2845

Jurisdiction - Consent jurisdiction - Elections and re-elections - Election by accused - General - The accused was charged with two counts of sexual interference (Criminal Code, s. 151) - He elected trial by Provincial Court judge alone - A trial date was set - On December 1, 2003, the Crown withdrew the s. 151 charges and filed a new information charging two counts of sexual assault (s. 271) - The accused's lawyer withdrew due to conflicts with his client - The accused's next lawyer (Bodnar) indicated to the court that the accused might be seeking another lawyer in relation to the election because he did not accept Bodnar's advice that the accused elect trial by Queen's Bench judge alone - The presiding judge strongly urged the accused to give the matter very careful consideration before rejecting Bodnar's advice or replacing Bodnar as counsel - Bodnar indicated that he would continue to represent the accused only if he elected trial by Queen's Bench judge alone - After considerable discussion, the accused agreed to accept Bodnar's advice and authorized Bodnar to enter an election for a Queen's Bench trial - Bodnar waived the reading of the election and made this election on behalf of the accused - On appeal, the accused argued that there was no true, voluntary, election in these circumstances and that, in any case, the trial judge did not comply with the mandatory direction of s. 536 that the election must be put to the accused in the terms set out in that section - The Saskatchewan Court of Appeal held that the accused agreed to accept Bodnar's advice - At no point in the following months was there any attempt to change this election - The reading of the election was expressly waived by Bodnar after he had been authorized to act for the accused in that regard - See paragraphs 14 to 22.

Criminal Law - Topic 2857

Jurisdiction - Consent jurisdiction - Elections and re-elections - Waiver of procedural requirements - [See Criminal Law - Topic 2845 ].

Criminal Law - Topic 4225

Procedure - Pleas - Plea of autrefois acquit - The accused was initially charged with two counts of sexual interference contrary to s. 151 of the Criminal Code - He was denied bail - He later pled not guilty and elected trial by Provincial Court judge alone - A trial date was set - The Crown withdrew the s. 151 charges and filed a new information charging two counts of sexual assault pursuant to s. 271 - At trial, the accused unsuccessfully attempted to enter a plea of autrefois acquit, arguing that, as the court had permitted the Crown to withdraw the s. 151 charges after a plea had been entered, this constituted a judicial dismissal of charges, which were based on exactly the same facts that formed the basis of the s. 271 charges - The Saskatchewan Court of Appeal stated that the plea of autrefois acquit was available where an accused showed that he was placed in jeopardy in the same matter on an earlier occasion before a court of competent jurisdiction and that there was a disposition in his favour resulting in an acquittal or dismissal of the charges - In this case, there was a disposition on the charges in the accused's favour when the Crown withdrew those charges, prior to the date set for trial, and charged the appellant under s. 271 - See paragraphs 14 to 17.

Criminal Law - Topic 4852

Appeals - Indictable offences - Grounds of appeal - Miscarriage of justice - [See Criminal Law - Topic 131 ].

Criminal Law - Topic 5353

Evidence and witnesses - Confessions and voluntary statements - Who is a person in authority - Two young sisters were allegedly sexually assaulted in the Barbie doll aisle of a Wal-Mart - The girls told their mother, who in turn told the store manager - The manager got a description of the perpetrator, searched the store and approached the accused - He asked the accused if he had met any girls in the toy department and the accused admitted that he had - The accused was eventually convicted of sexual assault - The accused appealed, arguing that the trial judge erred in admitting the admission, as no voir dire was held to determine whether the admission was voluntary - He alleged that the manager was a person in authority as he was wearing a uniform and was investigating the alleged offence - The Saskatchewan Court of Appeal rejected the argument - The manager was not a person in authority and a voir dire to demonstrate the voluntariness of the statement was therefore not, strictly speaking, required - The accused did not believe that the manager was acting on behalf of the police or prosecuting authorities - Had he believed this, that belief would not have been reasonable - Alternatively, the evidence clearly supported the voluntariness of the statement - See paragraphs 30 to 37.

Criminal Law - Topic 5355

Evidence and witnesses - Confessions and voluntary statements - Whether statement was made freely and voluntarily - [See Criminal Law - Topic 5353 ].

Criminal Law - Topic 5416.3

Evidence and witnesses - Witnesses - Cross-examination of child witness - The accused was convicted of sexually assaulting two young sisters - One month before trial, the accused discharged his counsel (Chovin) - Section 486(2.3) of the Criminal Code provided that a person accused of committing sexual assault could not personally cross-examine a witness under the age of 18 unless the court was satisfied that the proper administration of justice required personal cross-examination - The section also directed the court in such circumstances to make an order appointing counsel to conduct cross-examination - The trial judge appointed Chovin to act in this regard and the accused gave a list of questions to Chovin and was given several adjournments during the examinations to confer with Chovin - On appeal, the accused argued that the trial judge improperly exercised his discretion in choosing to appoint Chovin for this task, because the accused had fired Chovin and clearly no longer had confidence in him - The Saskatchewan Court of Appeal rejected the argument - This was clearly a matter that was within the discretion of the trial judge pursuant to s. 486(2.3) - He did not exercise that discretion improperly - His primary concern was the proper administration of justice and to insure that the accused had every opportunity to put appropriate questions to the children - He did that "admirably" - See paragraphs 38 to 42.

Criminal Law - Topic 5848.9

Sentencing - Considerations - Sexual offences against children - [See Criminal Law - Topic 5932 ].

Criminal Law - Topic 5932

Sentence - Sexual assault - The accused paedophile sexually assaulted two sisters (ages 8 and 12) in the Barbie doll aisle of a Wal-Mart - The assault consisted of touching in the butt, crotch and breast areas - He was convicted on two counts of sexual assault - The offences occurred less than one month after being suspended from a sex offender treatment program and while he was on probation for sexual offences - He had been convicted of a total of seven separate sexual offences incidents involving young girls below the age of consent since 1990 - Difficult childhood - Steadily employed - He was unable to control his sexual impulses - Any leeway given in sentencing or probation enforcement in the past had been taken as a weakness in the system to be exploited or abused - The Crown applied to have him declared a dangerous offender - The trial judge found the accused to be a long-term offender - The Saskatchewan Court of Appeal allowed the Crown's appeal, declared that the accused was a dangerous offender and imposed an indeterminate sentence - The trial judge erred in holding that it was not sufficient for him to conclude that control of the risk in the community was improbable and that the Crown bore the onus of proving that the accused was "intractable" or "one for whom hope is forever lost" - There was no reasonable possibility of the eventual control in the community of the accused's risk of re-offending - See paragraphs 66 to 131.

Criminal Law - Topic 6503

Dangerous or long-term offenders - Detention - General - Dangerous offender - Defined - [See Criminal Law - Topic 5932 ].

Criminal Law - Topic 6503.1

Dangerous or long-term offenders - Detention - General - Long-term offender - Defined - [See Criminal Law - Topic 5932 ].

Criminal Law - Topic 6506.1

Dangerous or long-term offenders - Detention - General - Application - Consent of Attorney General - At issue was whether the formal requirements of s. 754 of the Criminal Code dealing with applications respecting dangerous or long-term offenders, including a formal notice setting out the basis for the application and the consent of the Attorney General, had to be filed prior to the hearing of an application for an assessment of an accused by an expert pursuant to s. 752.1 - The Saskatchewan Court of Appeal held that the consent of the Attorney General was not required before the court heard an application under s. 752 - Section 754(1)(b) contemplated that the Attorney General possess documentation supporting the basis for the application - This would include the results of the psychological assessment ordered under s. 752.1 - If consent were required before the assessment was ordered, the evidence required for the decision of the Attorney General would be incomplete - See paragraphs 50 to 63.

Cases Noticed:

R. v. Grimes (D.W.) (1998), 209 A.R. 360; 160 W.A.C. 360; 122 C.C.C.(3d) 331 (C.A.), refd to. [para. 10].

R. v. Petersen, [1982] 2 S.C.R. 493; 44 N.R. 92; 18 Sask.R. 162, refd to. [para. 16].

R. v. Selhi (1985), 38 Sask.R. 90; 18 C.C.C.(3d) 131 (C.A.), affd. [1990] 1 S.C.R. 277; 110 N.R. 318; 86 Sask.R. 253, refd to. [para. 17].

R. v. M.C.H., [1998] 2 S.C.R. 449; 230 N.R. 1; 113 O.A.C. 97, refd to. [para. 34].

R. v. Imming, [1999] Q.J. No. 1029 (Sup. Ct.), refd to. [para. 59].

R. v. A.U., 2007 NUCJ 11, refd to. [para. 61].

R. v. Johnson (J.J.), [2003] 2 S.C.R. 357; 308 N.R. 333; 186 B.C.A.C. 161; 306 W.A.C. 161; 2003 SCC 46, refd to. [para. 68].

R. v. G.L.L. - see R. v. Lemaigre (G.L.).

R. v. Lemaigre (G.L.), [2005] Sask.R. Uned. 120; [2005] 7 W.W.R. 52; 2004 SKCA 125, refd to. [para. 72].

R. v. Pedden (B.A.) (2005), 208 B.C.A.C. 303; 344 W.A.C. 303; 194 C.C.C.(3d) 476 (C.A.), refd to. [para. 78].

R. v. Wormell (W.J.) (2005), 213 B.C.A.C. 223; 352 W.A.C. 223; 198 C.C.C.(3d) 252; 2005 BCCA 328, refd to. [para. 79].

R. v. F.E.D. (2007), 222 O.A.C. 253; 222 C.C.C.(3d) 373; 2007 ONCA 246, refd to. [para. 81].

R. v. Otto (M.E.) (2006), 279 Sask.R. 182; 372 W.A.C. 182; 2006 SKCA 52, refd to. [para. 86].

R. v. Goforth (M.A.) (2007), 302 Sask.R. 265; 411 W.A.C. 265; 2007 SKCA 144, refd to. [para. 86].

R. v. Allen (2007), 221 C.C.C.(3d) 261; 2007 ONCA 421, refd to. [para. 91].

Counsel:

Dhugal Whitbread, for Mr. Haug;

W. Dean Sinclair, for the Crown.

These appeals and cross-appeal were heard on January 9-10, 2008, by Vancise, Smith and Hunter, JJ.A., of the Saskatchewan Court of Appeal. The decision of the court was delivered orally on January 10, 2008, and the following written reasons were filed by Smith, J.A., on February 15, 2008.