R. v. Innerebner (T.L.)

• Jurisdiction: Alberta
• Court: Court of Appeal (Alberta)
• Judge: C,Hillier,Watson
• Neutral Citation: 2013 ABCA 9
• Citation: 2013 ABCA 9,(2013), 539 A.R. 382,539 AR 382,(2013), 539 AR 382,539 A.R. 382
• Date: 01 November 2012
• Subject Matter: EVIDENCE,CRIMINAL LAW

R. v. Innerebner (T.L.) (2013), 539 A.R. 382; 561 W.A.C. 382 (CA)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. JA.058

Her Majesty the Queen (respondent) v. Thomas Lee Innerebner (appellant)

(1003-0088-A; 2013 ABCA 9)

Indexed As: R. v. Innerebner (T.L.)

Alberta Court of Appeal

Côté and Watson, JJ.A., and Hillier, J.(ad hoc)

January 9, 2013.

Summary:

A jury convicted the accused of sexual interference (count 1) and sexual assault (count 2) of A.B.; sexual interference (count 3) and sexual assault (count 4) of C.D.; sexual interference (count 5) and sexual assault (count 6) of E.F.; sexual interference (count 9) and sexual assault (count 10) of G.H.; sexual assault (count 11) of I.J.; sexual assault (count 13) and sexual interference (count 14) of K.L.; and sexual assault (count 15) and sexual interference (count 16) of M.N. The complainants were all young girls. With one exception (E.F.), the accused was the complainants' taekwondo instructor. The Crown had proceeded by way of indictment. A minimum term of 45 days' imprisonment was applicable to the sexual interference convictions.

The Alberta Court of Queen's Bench, in a decision reported at 496 A.R. 196, sentenced the accused to a total sentence of seven years and eight months' incarceration. Taking into consideration the totality principle, the court reduced the global sentence to seven years. Other dispositions included orders that the accused provide a sample of his DNA, that he comply with the Sex Offender Information Registration Act, and prohibition orders under ss. 109 and 161 of the Criminal Code. The accused appealed his convictions.

The Alberta 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 law, publication ban, Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 214.6

General principles - Common law defences - Accident - A jury convicted the accused of various sexual offences in relation to seven young girls he had met as a result of his role as a taekwondo instructor - He was also acquitted of some counts - On appeal, the accused asserted that the trial judge failed to adequately instruct the jury about the defence contention that any touching of a sexual part of a complainant's body was accidental and misinterpreted - The Alberta Court of Appeal rejected the submission - Arguably, the defence of accident had no air of reality in relation to six complainants who described incidents of groping underneath their clothing in the areas of their breasts or vaginas which, given where and how they happened, had no real characteristics of accidental conduct - The trial judge also instructed on accident and made clear to the jury that the Crown was obliged to disprove accident beyond a reasonable doubt, and did so in broad terms - The trial judge's comments about the evidence on accident also appeared to have met with defence counsel's approval - See paragraphs 44 to 46.

Criminal Law - Topic 4351

Procedure - Charge or directions - Jury or judge alone - Direction regarding burden of proof and reasonable doubt - A jury convicted the accused of various sexual offences in relation to seven young girls he had met as a result of his role as a taekwondo instructor - He was also acquitted of some counts - On appeal, the accused asserted that the trial judge misdirected the jury on the well-known analysis from R. v. D.W. - The Alberta Court of Appeal rejected this ground of appeal - The court reviewed the trial judge's instruction and found that the trial judge arguably put the point a little more favourable to the accused than it needed to be - The judge put the character witnesses of the defence on par with the actual witnesses to the events insofar as providing a basis for doubt, even hinting that a doubt about any of them might do - This was not ungenerous - The trial judge also later said, "It is not a question of whether or not you believe [the accused's] testimony. If his evidence raises a reasonable doubt in your minds about his guilt, then you must return a verdict of not guilty." - See paragraphs 47 and 48.

Criminal Law - Topic 4352.1

Procedure - Charge or directions - Jury or judge alone - Directions regarding similar fact evidence - A jury convicted the accused of various sexual offences in relation to seven young girls he had met as a result of his role as a taekwondo instructor - He was also acquitted of some counts - On appeal, the accused asserted that the trial judge failed to adequately instruct the jury not to use each complainant's evidence on the counts related to her in a manner that supported conclusions about a different complainant's evidence - The Alberta Court of Appeal rejected the argument - Crown counsel did not invite the jury to consider the accumulation of evidence as supportive of each complainant - Defence counsel's address also included observations about risks of confabulation and influence - Defence counsel carefully took the jury through each complainant's evidence when discussing why the evidence should not form the basis for a guilty finding - In her charge to the jury, the trial judge four more times warned the jury not to blend the evidence - Further, although the jury charge contained appropriate directions that the jury was not bound by any of the trial judge's comments on the evidence, the trial judge acceded to defence counsel's request to remove significant passages - The jury did not need further instructions on evidential separation - In particular, it did not require instructions that defence counsel did not seek - This was especially true where, if anything, defence counsel took away a significant element of the charge which would have manifested the very separation of evidence of counts now claimed to have been inadequately explained - It was one thing to ignore a defence failure to object to an element of a charge and quite another to ignore a deliberate defence position taken for tactical advantage - Either way, failure to object was a factor to consider - See paragraphs 1, 2 and 15 to 31.

Criminal Law - Topic 4353.1

Procedure - Charge or directions - Jury or judge alone - Directions regarding collaboration or collusion - [See Criminal Law - Topic 4352.1 ].

Criminal Law - Topic 4353.1

Procedure - Charge or directions - Jury or judge alone - Directions regarding collaboration or collusion - A jury convicted the accused of various sexual offences in relation to seven young girls he had met as a result of his role as a taekwondo instructor - On appeal, the accused submitted that the trial judge failed to adequately instruct the jury on collusion or confabulation - The Alberta Court of Appeal rejected the submission - The court discussed the present day approach to the evidence of child witnesses - No complaint had been made to the trial judge about the content of the charge on the jury's assessment of the witnesses's testimony - The jury's ability to assess and reach a unanimous conclusion about the reliability of the children's evidence should not be distrusted without a basis - That way would undermine the rationale for the single Constitutionally-guaranteed form of trial, namely trial by jury - Moreover, this jury was astute enough to recognize a defect in what the trial judge said about aspects of the evidence of two complainants and asked questions about those matters - Further, the jury returned not guilty verdicts respecting three complainants - See paragraphs 36 to 43.

Criminal Law - Topic 4357

Procedure - Charge or directions - Jury or judge alone - Directions regarding defences and theory of defence - [See Criminal Law - Topic 214.6 ].

Criminal Law - Topic 4375.2

Procedure - Charge or directions - Jury or judge alone - Directions regarding prior inconsistent statements - A jury convicted the accused of various sexual offences in relation to seven young girls he had met as a result of his role as a taekwondo instructor - He was also acquitted of some counts - On appeal, the accused submitted that the trial judge erred in his charge on inconsistency respecting a complainant's evidence - The Alberta Court of Appeal rejected the submission - The trial judge took pains to mention areas of inconsistency - In general terms, she mentioned that discrepancies in a witness's evidence were for the jury to consider, it being for the jury to decide when a discrepancy existed and, where it did, if it was important - The trial judge discussed the problem of inconsistent statements generally, in addition to detailing the inconsistent statements of complainants - She gave a "special warning" regarding the evidence of certain complainants given the suggestion that statements they made at the preliminary inquiry were inconsistent with statements they made at trial - The trial judge agreed to tweak a sentence in the charge to satisfy defence counsel - In the end, defence counsel arguably gave fewer specifics about inconsistency than the trial judge - See paragraphs 32 to 35.

Criminal Law - Topic 4375.3

Procedure - Charge or directions - Jury or judge alone - Directions regarding prior consistent statements - A jury convicted the accused of various sexual offences in relation to seven young girls he had met as a result of his role as a taekwondo instructor - He was also acquitted of some counts - The Alberta Court of Appeal dismissed the appeal - The court held, inter alia, that no reversible error occurred by the trial judge's failure to refer to the accused's offer, not accepted by the police, to take a polygraph test (prior consistent statement) - See paragraphs 49 to 56.

Criminal Law - Topic 4377.1

Procedure - Charge or directions - Jury or judge alone - Directions regarding reliability of witnesses' testimony - [See second Criminal Law - Topic 4353.1 ].

Criminal Law - Topic 4393

Procedure - Charge or directions - Jury or judge alone - Failure by counsel to object - Effect of - [See Criminal Law - Topic 4352.1 ].

Evidence - Topic 2726

Special modes of proof - Polygraph - Evidence that test taken or not taken - [See Criminal Law - Topic 4375.3 ].

Evidence - Topic 5231

Witnesses - Children (incl. corroboration) - Evidence of children - General - [See second Criminal Law - Topic 4353.1 ].

Cases Noticed:

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

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, refd to. [para. 4].

R. v. J.A.T. (2012), 290 O.A.C. 130; 2012 ONCA 177, refd to. [para. 6].

R. v. deKock (C.R.) (2009), 454 A.R. 102; 455 W.A.C. 102; 2009 ABCA 225, refd to. [para. 18].

R. v. Blea (A.J.), [2012] A.R. Uned. 17; 66 Alta. L.R.(5th) 163; 2012 ABCA 41, refd to. [para. 18].

R. v. Virani (A.) (2012), 524 A.R. 328; 545 W.A.C. 328; 2012 ABCA 155, refd to. [para. 18].

R. v. O'Brien (M.D.), [2011] 2 S.C.R. 485; 417 N.R. 52; 304 N.S.R.(2d) 383; 960 A.P.R. 383; 2011 SCC 29, refd to. [para. 18].

R. v. Last (G.E.), [2009] 3 S.C.R. 146; 394 N.R. 78; 255 O.A.C. 334; 2009 SCC 45, refd to. [para. 19].

R. v. Jaw (S.G.), [2009] 3 S.C.R. 26; 393 N.R. 246; 464 A.R. 149; 467 W.A.C. 149; 2009 SCC 42, refd to. [para. 31].

R. v. Jacquard (C.O.), [1997] 1 S.C.R. 314; 207 N.R. 246; 157 N.S.R.(2d) 161; 462 A.P.R. 161, refd to. [para. 31].

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

R. v. W.J.D., [2007] 3 S.C.R. 523; 369 N.R. 225; 302 Sask.R. 4; 411 W.A.C. 4; 2007 SCC 53, refd to. [para. 31].

R. v. Handy (J.), [2002] 2 S.C.R. 908; 290 N.R. 1; 160 O.A.C. 201; 2002 SCC 56, refd to. [para. 36].

R. v. Kendall, [1962] S.C.R. 469; 132 C.C.C. 216, refd to. [para. 39].

R. v. Brasier (1779), 1 Leach 199; 168 E.R. 202, refd to. [para. 39].

R. v. D.A.I. - see R. v. D.I.

R. v. D.I. (2012), 427 N.R. 4; 288 O.A.C. 1; 2012 SCC 5, refd to. [para. 39].

R. v. Vetrovec; R. v. Gaja, [1982] 1 S.C.R. 811; 41 N.R. 606; 67 C.C.C.(2d) 1, refd to. [para. 40].

R. v. Smith - see R. v. James (W.A.) et al.

R. v. James (W.A.) et al., [2009] 1 S.C.R. 146; 383 N.R. 329; 273 N.S.R.(2d) 388; 872 A.P.R. 388; 2009 SCC 5, refd to. [para. 40].

R. v. Hurley (G.D.), [2010] 1 S.C.R. 637; 401 N.R. 232; 350 Sask.R. 1; 487 W.A.C. 1; 2010 SCC 18, refd to. [para. 40].

R. v. G.B. et al. (No. 1), [1990] 2 S.C.R. 3; 111 N.R. 1; 86 Sask.R. 81, refd to. [para. 41].

R. v. R.W., [1992] 2 S.C.R. 122; 137 N.R. 214; 54 O.A.C. 164; 74 C.C.C.(3d) 134, refd to. [para. 41].

R. v. Marquard (D.), [1993] 4 S.C.R. 223; 159 N.R. 81; 66 O.A.C. 161; 85 C.C.C.(3d) 193, refd to. [para. 42].

R. v. Hanna (K.D.) (1993), 27 B.C.A.C. 42; 45 W.A.C. 42; 80 C.C.C.(3d) 289 (C.A.), leave to appeal denied (1994), 179 N.R. 74 (S.C.C.), refd to. [para. 42].

R. v. Purdy (K.K.) (2008), 252 B.C.A.C. 150; 422 W.A.C. 150; 2008 BCCA 95, refd to. [para. 42].

R. v. Mezzo, [1986] 1 S.C.R. 802; 68 N.R. 1; 43 Man.R.(2d) 161; 27 C.C.C.(3d) 97, refd to. [para. 43].

R. v. Sutherland (D.L.) (1993), 113 Sask.R. 193; 52 W.A.C. 193; 84 C.C.C.(3d) 484 (C.A.), refd to. [para. 45].

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, refd to. [para. 50].

R. v. Pasqua (N.R.) (2009), 457 A.R. 358; 457 W.A.C. 358; 2009 ABCA 247, refd to. [para. 51].

Authors and Works Noticed:

Bala, Nick R.W., More Sensitivity to Child Witnesses (1992), 13 C.R.(4th) 270, p. 271 [para. 39].

Wigmore on Evidence (3rd Ed. 1979), vol. 2, p. 506 [para. 39].

Counsel:

M.J. McGuire, for the respondent;

D.J. Anderson, for the appellant.

This appeal was heard on November 1, 2012, by Côté and Watson, JJ.A., and Hillier, J.(ad hoc), of the Alberta Court of Appeal. The court delivered the following memorandum of judgment on January 9, 2013.