R. v. J.H.S., 2007 NSCA 12

• Judge: Saunders, Oland and Fichaud, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: January 31, 2007
• Jurisdiction: Nova Scotia
• Citations: 2007 NSCA 12;(2007), 250 N.S.R.(2d) 360 (CA)

R. v. J.H.S. (2007), 250 N.S.R.(2d) 360 (CA);

    796 A.P.R. 360

MLB headnote and full text

Temp. Cite: [2007] N.S.R.(2d) TBEd. JA.059

J.H.S. (appellant) v. Her Majesty The Queen (respondent)

(CAC 266318; 2007 NSCA 12)

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

Nova Scotia Court of Appeal

Saunders, Oland and Fichaud, JJ.A.

January 31, 2007.

Summary:

A jury found the accused guilty of sexually assaulting his step-daughter. He was sentenced to 4.5 years' imprisonment. The accused appealed against conviction, submitting that the trial judge misdirected the jury on the burden of proof and reasonable doubt, erred in admitting evidence of "bad behaviour" by the complainant and, alternatively, if the "bad behaviour" evidence was admissible, erred in failing to properly instruct the jury on the limited use of that evidence.

The Nova Scotia Court of Appeal, Saunders, J.A., dissenting, allowed the appeal on the ground that the trial judge failed to properly instruct the jury on the burden of proof and reasonable doubt as it pertained to credibility. The court ordered a new trial. The court unanimously held that the "bad behaviour" evidence was admissible and that the trial judge properly directed the jury on its limited use.

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 4351

Procedure - Charge or directions - Jury or judge alone - Directions regarding burden of proof and reasonable doubt - A jury found the accused guilty of sexually assaulting his step-daughter - The accused appealed on the ground that the trial judge misdirected the jury on the burden of proof and reasonable doubt - The Nova Scotia Court of Appeal held that the judge properly directed the jury on the Crown's burden of proving guilt beyond a reasonable doubt - However, although the accused and complainant were not the only persons to testify, the jury's assessment of their credibility was critical - The trial judge erred in failing to instruct the jury that reasonable doubt also applied to the assessment of credibility, particularly that they must acquit not only if they believed the accused, but also if they did not believe the accused but still had a reasonable doubt after considering all of the evidence (i.e., R. v. D.W. suggested jury charge) - The court stated that "nowhere did [the judge's jury charge] provide any guidance as to how, in the event they were uncertain or unable to resolve the issue of credibility, they were to proceed with their deliberations" - There was a reasonable likelihood that the jury misapprehended the correct standard and burden of proof respecting credibility - Trial counsel's failure to object to the defective jury charge, although deserving of consideration, was not determinative - The error was of such magnitude and significance that the failure to object at trial did not constitute a waiver of the accused's right to appeal on the jury charge.

Criminal Law - Topic 4379

Procedure - Charge or directions - Jury or judge alone - Direction re evidence of character or credibility of accused - [See Criminal Law - Topic 4351 ].

Criminal Law - Topic 4393

Procedure - Charge or directions - Jury or judge alone - Failure by counsel to object - Effect of - [See Criminal Law - Topic 4351 ].

Criminal Law - Topic 5419.1

Evidence and witnesses - Witnesses - Character evidence respecting - The accused appealed his jury conviction for sexually assaulting his step-daughter on the ground that the trial judge erred in admitting evidence of the complainant's "bad behaviour" - The Nova Scotia Court of Appeal held that there was no basis to exclude the evidence - Authority respecting the inadmissibility of "bad character" evidence respecting the accused (prohibited propensity reasoning) had no application - The Crown elicited testimony from the complainant that she was out of control and would self-mutilate by cutting herself - The accused did not object to the evidence at trial, but used the evidence to try to discredit the complainant and to portray the accused as someone who supported her need for counselling, which would be inconsistent with someone who sexually assaulted her - On appeal, different counsel objected to the "self-mutilation" evidence on the grounds that it offended the rule against "oath helping" and was highly prejudicial - The rule against "oath-helping" was not offended - There was no attempt to bolster the complainant's credibility - Evidence concerning a complainant's behaviour, traits, character or disposition was admissible if relevant to some issue to be decided - The evidence was relevant and its probative value outweighed its prejudicial effect - The court noted that if the evidence had not been admitted, it would undoubtedly have triggered a complaint that the accused was denied an opportunity to make full answer and defence - See paragraphs 32 to 75.

Evidence - Topic 4023

Witnesses - General - Credibility - Oath-helping or oath-attacking - [See Criminal Law - Topic 5419.1 ].

Cases Noticed:

R. v. D.W. (1991), 122 N.R. 277; 46 O.A.C. 352; 63 C.C.C.(3d) 397 (S.C.C.), refd to. [para. 7].

R. v. Lifchus (W.), [1997] 3 S.C.R. 320; 216 N.R. 215; 118 Man.R.(2d) 218; 149 W.A.C. 218; 118 C.C.C.(3d) 1 (S.C.C.), refd to. [para. 11].

R. v. Campbell (C.) (1995), 82 O.A.C. 153; 24 O.R.(3d) 537 (C.A.), refd to. [para. 15].

R. v. Bertucci (C.) (2002), 165 O.A.C. 7; 169 C.C.C.(3d) 453 (C.A.), refd to. [para. 15].

R. v. J.M. (2002), 207 N.S.R.(2d) 262; 649 A.P.R. 262 (C.A.), refd to. [para. 16].

R. v. Lake (P.E.) (2005), 240 N.S.R.(2d) 40; 763 A.P.R. 40; 2005 NSCA 162, refd to. [para. 17].

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; 113 C.C.C.(3d) 1, refd to. [para. 24].

R. v. Boran (D.W.) (1999), 174 N.S.R.(2d) 240; 532 A.P.R. 240 (C.A.), refd to. [para. 25].

R. v. Thériault (1981), 37 N.R. 361, 591; 61 C.C.C.(2d) 102 (S.C.C.), refd to. [para. 36].

R. v. Reddick (1989), 91 N.S.R.(2d) 361; 233 A.P.R. 361 (C.A.), refd to. [para. 36].

R. v. Gagnon (Y.R.J.) (2000), 136 O.A.C. 116 (C.A.), refd to. [para. 36].

R. v. Peters (L.) (2000), 145 B.C.A.C. 249; 237 W.A.C. 249; 2000 BCCA 645, refd to. [para. 36].

R. v. Béland and Phillips (1987), 79 N.R. 263; 9 Q.A.C. 293; 36 C.C.C.(3d) 481 (S.C.C.), refd to. [para. 38].

R. v. F.F.B., [1993] 1 S.C.R. 697; 148 N.R. 161; 120 N.S.R.(2d) 1; 332 A.P.R. 1, refd to. [para. 40].

R. v. Burns (R.H.), [1994] 1 S.C.R. 656; 165 N.R. 374; 42 B.C.A.C. 161; 67 W.A.C. 161, refd to. [para. 40].

R. v. Diu (A.B.) et al. (2000), 133 O.A.C. 201 (C.A.), refd to. [para. 49].

R. v. Sims (1994), 87 C.C.C.(3d) 402 (B.C.C.A.), refd to. [para. 50].

R. v. Watson (K.S.) (1996), 92 O.A.C. 131; 108 C.C.C.(3d) 310 (C.A.), refd to. [para. 51].

R. v. W.B. (2000), 134 O.A.C. 1; 49 O.R.(3d) 321 (C.A.), refd to. [para. 66].

R. v. D.D. (2000), 259 N.R. 156; 136 O.A.C. 201; 2000 SCC 43, refd to. [para. 70].

R. v. R.A.N. (2001), 277 A.R. 288; 242 W.A.C. 288; 152 C.C.C.(3d) 464 (C.A.), refd to. [para. 70].

R. v. Meisner (1992), 110 N.S.R.(2d) 270; 299 A.P.R. 270 (C.A.), refd to. [para. 71].

R. v. O.B. (1995), 146 N.S.R.(2d) 265; 422 A.P.R. 265 (C.A.), refd to. [para. 72].

R. v. G.R.V. (1996), 76 B.C.A.C. 72; 125 W.A.C. 72 (C.A.), refd to. [para. 74].

R. v. W.D.S., [1994] 3 S.C.R. 521; 171 N.R. 360; 157 A.R. 321; 77 W.A.C. 321, refd to. [para. 81].

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, refd to. [para. 84].

R. v. Campbell (C.) (1995), 82 O.A.C. 153 (C.A.), refd to. [para. 84].

R. v. Boucher (E.) (2005), 342 N.R. 42 (S.C.C.), refd to. [para. 84].

Authors and Works Noticed:

McWilliams, Peter K., Canadian Criminal Evidence (4th Ed. 2003), p. 11-14, para. 11:20.50.10 [paras. 38, 40].

Paciocco, David M., and Stuesser, Lee, The Law of Evidence (4th Ed. 2005), pp. 47 [para. 46]; 177 [para. 42].

Counsel:

Joel E. Pink, Q.C., for the appellant;

Daniel A. MacRury, Q.C., for the respondent.

This appeal was heard on September 20, 2006, at Halifax, N.S., before Saunders, Oland and Fichaud, JJ.A., of the Nova Scotia Court of Appeal.

On January 31, 2007, the judgment of the Court of Appeal was delivered and the following opinions were filed:

Oland, J.A. (Fichaud, J.A., concurring) - see paragraphs 1 to 28;

Saunders, J.A., dissenting - see paragraphs 29 to 86.