R. v. J.A.H., 2012 NSCA 121

• Judge: Oland, Fichaud and Bryson, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: September 24, 2012
• Jurisdiction: Nova Scotia
• Citations: 2012 NSCA 121;(2012), 323 N.S.R.(2d) 267 (CA)

R. v. J.A.H. (2012), 323 N.S.R.(2d) 267 (CA);

    1025 A.P.R. 267

MLB headnote and full text

Temp. Cite: [2012] N.S.R.(2d) TBEd. DE.017

J.A.H. (appellant) v. Her Majesty the Queen (respondent)

(CAC 365899; 2012 NSCA 121)

Indexed As: R. v. J.A.H.

Nova Scotia Court of Appeal

Oland, Fichaud and Bryson, JJ.A.

December 7, 2012.

Summary:

The accused was convicted of sexual interference, arising out of an incident of sexual touching of his nine-year-old daughter (see [2011] N.S.R.(2d) Uned. 288). He was sentenced to six months incarceration followed by 18 months' probation (see [2011] N.S.R.(2d) Uned. 289). The accused appealed from the conviction, arguing that the trial judge: 1. erred in his application of the burden of proof; 2. misapprehended the evidence of the accused; 3. misapprehended the evidence of the Crown by finding witnesses who gave conflicting testimony on material points to both be credible; 4. erred in his assessment of the complainant's testimony by failing to consider contradictory evidence; and 5. failed to consider the included offences to the ones charged.

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

Courts - Topic 583

Judges - Duties - Re reasons for decisions - [See Criminal Law - Topic 4300 ].

Criminal Law - Topic 4300

Procedure - Trial judge - Duties and functions of - Respecting credibility of witnesses - The accused appealed from his conviction for sexual interference, arising out of an incident of sexual touching of his nine-year-old daughter M.H. - The accused argued that discrepancies between the evidence of M.H. and her aunt, B.N. (to whom M.H. made her initial disclosure) were not resolved by the trial judge and represented contradictory evidence - He submitted that the trial judge's reasons were inadequate - The Nova Scotia Court of Appeal dismissed the appeal - None of the "discrepancies" rendered M.H.'s evidence unreliable, internally inconsistent or contrary to other reliable circumstantial evidence - The alleged conflicts between M.H. and B.N. were not on key issues nor did they relate to facts on which the charges were based or the conviction founded - The judge did not misapprehend this evidence - It was unnecessary to resolve the small discrepancies in evidence between B.N. and M.H., unrelated to the events of the night of the alleged offence - The trial judge's reasons were adequate to explain what he decided and why - See paragraphs 45 to 57.

Criminal Law - Topic 4351

Procedure - Charge or directions - Jury or judge alone - Direction regarding burden of proof and reasonable doubt - The accused appealed from his conviction for sexual interference, arising out of an incident of sexual touching of his nine-year-old daughter - The accused referred to the following statement in the trial judge's decision: "his [the accused's] motivation to deny the very serious allegations of sexual assault and sexual interference of his daughter convince me that where his testimony differs from that of the complainant it is her testimony that should be believed" - The accused submitted that the trial judge's comment reversed the burden of proof and effectively ignored the presumption of innocence - The Nova Scotia Court of Appeal dismissed the appeal - If a trial judge placed too much emphasis on motivation to fabricate by an accused or otherwise assumed that an accused would lie to secure an acquittal, that was an error of law - But consideration of motivation to lie was not usually regarded as an error of law if it was only one of a number of factors cited in rejecting an accused's evidence - Neither the impugned passage nor the trial decision read as a whole disclosed any shifting of the burden of proof or compromise of the presumption of innocence - See paragraphs 7 to 13.

Criminal Law - Topic 4351

Procedure - Charge or directions - Jury or judge alone - Direction regarding burden of proof and reasonable doubt - The accused appealed from his conviction for sexual interference, arising out of an incident of sexual touching of his nine-year-old daughter M.H. - The accused argued that the trial judge's treatment of M.H.'s testimony revealed that he misunderstood the burden of proof - The accused referred to the following comment by the trial judge "The complainant was honest and forthright in presenting her evidence. She had no reason to lie. ..." - The accused said that the trial judge erred because he implied that the accused had to prove that M.H. had a motive to fabricate her story - That shifted the burden to the accused - The Nova Scotia Court of Appeal stated that "It is quite true that the absence of evidence of motive to fabricate on the part of a complainant is not the same as absence of a motive at all. However, it does not follow from this logical proposition that it is impermissible to consider factual evidence on this point when assessing credibility ... This is precisely how the trial judge approached this evidence in this case. Why M.H. reported her father to her aunt was an active issue, commented upon in argument. In those circumstances, it was natural for the judge to mention it and he made no error of law in doing so" - See paragraphs 14 to 18.

Criminal Law - Topic 4351

Procedure - Charge or directions - Jury or judge alone - Direction regarding burden of proof and reasonable doubt - The accused appealed from his conviction for sexual interference, arising out of an incident of sexual touching of his nine-year-old daughter M.H. - The accused faulted the trial judge for the conclusory comments that M.H. was "honest and forthright" - He argued that the judge's reasons for accepting her testimony were lacking and that the judge misapplied R. v. D.W. (S.C.C.) - The Nova Scotia Court of Appeal dismissed the appeal - The court stated that "It is not an error of law to prefer the evidence of the complainant to that of the accused. Rather, the question is whether the trial judge limited his analysis to credibility ... It is apparent from his self instruction on the law, his recitation of the evidence, his credibility findings and his conclusion that the Crown had proved its case 'beyond a reasonable doubt', that the judge did not reverse the burden or misapply W.(D.)" - See paragraphs 19 to 23.

Criminal Law - Topic 4351.2

Procedure - Charge or directions - Judge or jury alone - Directions regarding the presumption of innocence - [See first Criminal Law - Topic 4351 ].

Criminal Law - Topic 4355

Procedure - Charge or directions - Jury or judge alone - Directions regarding included offences - The accused appealed from his conviction for sexual interference, arising out of an incident of sexual touching of his nine-year-old daughter M.H. - The accused argued that the trial judge failed to consider included offences - The accused said that both his evidence and his daughter's were consistent with a potential finding of common assault - The Nova Scotia Court of Appeal dismissed the appeal - The accused did not argue "included offence" at trial - In light of M.H.'s evidence and the accused's denial, it was unnecessary to consider common assault - It was not a live "issue" at trial - The judge did not err in failing to address something not argued and not supported by the evidence - See paragraphs 58 to 59.

Criminal Law - Topic 4377

Procedure - Charge or directions - Jury or judge alone - Directions regarding credibility of witnesses - [See Criminal Law - Topic 4300 ].

Criminal Law - Topic 4684

Procedure - Judgments and reasons for judgment - Reasons for judgment - Sufficiency of - [See Criminal Law - Topic 4300 ].

Evidence - Topic 4732

Witnesses - Examination - Impeaching credibility - Motive for untruthfulness - [See first and second Criminal Law - Topic 4351 ].

Cases Noticed:

R. v. J.W., [2007] B.C.J. No. 1510 (Prov. Ct.), refd to. [para. 10].

R. v. L.B. (1993), 64 O.A.C. 15 (C.A.), refd to. [para. 10].

R. v. Murray (W.) (1997), 99 O.A.C. 103 (C.A.), refd to. [para. 10].

R. v. L.J.D. (1997), 148 Nfld. & P.E.I.R. 72; 464 A.P.R. 72 (P.E.I.C.A.), refd to. [para. 10].

R. v. Briscoe (M.E.) et al., [2010] 1 S.C.R. 397; 400 N.R. 200; 477 A.R. 70; 483 W.A.C. 70; 2010 SCC 12, refd to. [para. 10].

R. v. Laboucan - see R. v. Briscoe (M.E.) et al.

R. v. R.E.M. (2008), 380 N.R. 47; 260 B.C.A.C. 40; 439 W.A.C. 40; 2008 SCC 51, refd to. [para. 12].

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. 12].

R. v. Parnell (G.) (1995), 59 B.C.A.C. 291; 98 W.A.C. 291 (C.A.), refd to. [para. 12].

R. v. Edgar (D.J.) (2010), 269 O.A.C. 171; 2010 ONCA 529, refd to. [para. 12].

R. v. L.L. (2009), 249 O.A.C. 99; 2009 ONCA 413, refd to. [para. 15].

R. v. R.W., [1992] 2 S.C.R. 122; 137 N.R. 214; 54 O.A.C. 164, refd to. [para. 21].

F.H. v. McDougall, [2008] 3 S.C.R. 41; 380 N.R. 82; 260 B.C.A.C. 74; 439 W.A.C. 74; 2008 SCC 53, refd to. [para. 21].

R. v. Gagnon (L.), [2006] 1 S.C.R. 621; 347 N.R. 355; 2006 SCC 17, refd to. [para. 21].

R. v. Burke (J.) (No. 3), [1996] 1 S.C.R. 474; 194 N.R. 247; 139 Nfld. & P.E.I.R. 147; 433 A.P.R. 147, refd to. [para. 21].

R. v. R.P. (2012), 429 N.R. 361; 2012 SCC 22, refd to. [para. 21].

R. v. Chittick (D.S.) (2004), 228 N.S.R.(2d) 81; 723 A.P.R. 81; 2004 NSCA 135, refd to. [para. 23].

R. v. J.M.M. (2012), 319 N.S.R.(2d) 73; 1010 A.P.R. 73; 2012 NSCA 70, refd to. [para. 25].

R. v. Beaudry (A.), [2007] 1 S.C.R. 190; 356 N.R. 323; 2007 SCC 5, refd to. [para. 26].

R. v. Sinclair (T.), [2011] 3 S.C.R. 3; 418 N.R. 282; 268 Man.R.(2d) 225; 520 W.A.C. 225; 2011 SCC 40, refd to. [para. 26].

R. v. Morrissey (R.J.) (1995), 80 O.A.C. 161; 22 O.R.(3d) 514 (C.A.), refd to. [para. 26].

R. v. S.D.D. (2005), 233 N.S.R.(2d) 49; 739 A.P.R. 49; 2005 NSCA 71, refd to. [para. 27].

R. v. Deviller - see R. v. S.D.D.

R. v. Lohrer (A.W.), [2004] 3 S.C.R. 732; 329 N.R. 1; 208 B.C.A.C. 1; 344 W.A.C. 1; 2004 SCC 80, refd to. [para. 27].

R. v. Sheppard (C.), [2002] 1 S.C.R. 869; 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50; 2002 SCC 26, refd to. [para. 50].

R. v. D.D.S. (2006), 242 N.S.R.(2d) 235; 770 A.P.R. 235; 2006 NSCA 34, refd to. [para. 50].

R. v. D.W.S. (2007), 251 N.S.R.(2d) 228; 802 A.P.R. 228; 2007 NSCA 16, consd. [para. 56].

R. v. Braich (A.) et al., [2002] 1 S.C.R. 903; 285 N.R. 162; 164 B.C.A.C. 1; 268 W.A.C. 1, 2002 SCC 27, refd to. [para. 56].

R. v. Gillis (A.H.) (1994), 134 N.S.R.(2d) 119; 383 A.P.R. 119 (C.A.), refd to. [para. 59].

Counsel:

Luke A. Craggs, for the appellant;

Mark Scott, for the respondent.

This appeal was heard at Halifax, N.S., on September 24, 2012, before Oland, Fichaud and Bryson, JJ.A., of the Nova Scotia Court of Appeal. The following judgment of the Court of Appeal was delivered by Bryson, J.A., on December 7, 2012.