R. v. J.P., (2014) 342 N.S.R.(2d) 324 (CA)

JudgeOland, Beveridge and Farrar, JJ.A.
CourtCourt of Appeal of Nova Scotia (Canada)
Case DateMarch 25, 2014
JurisdictionNova Scotia
Citations(2014), 342 N.S.R.(2d) 324 (CA);2014 NSCA 29

R. v. J.P. (2014), 342 N.S.R.(2d) 324 (CA);

    1083 A.P.R. 324

MLB headnote and full text

Temp. Cite: [2014] N.S.R.(2d) TBEd. MR.052

J.P. (appellant) v. Her Majesty the Queen (respondent)

(CAC 412682; 2014 NSCA 29)

Indexed As: R. v. J.P.

Nova Scotia Court of Appeal

Oland, Beveridge and Farrar, JJ.A.

March 25, 2014.

Summary:

The 63 year old accused was convicted of touching for a sexual purpose, invitation to sexual touching and sexual assault (see [2012] N.S.R.(2d) Uned. 253). The offences occurred over a six year period, when the accused was 44-50 years of age and the victim (niece) was 6-12 years of age. The offences involved french kissing, fondling under the niece's clothing, and an unsuccessful attempt to have her touch his exposed penis. The Crown sought 18-24 months' imprisonment. The accused sought a conditional sentence.

The Nova Scotia Supreme Court, in a judgment reported (2013), 327 N.S.R.(2d) 171; 1036 A.P.R. 171, sentenced the accused to concurrent sentences of one year's imprisonment for sexual assault and sexual touching and six months' imprisonment for inviting sexual touching, followed by 18 months' probation. The accused appealed his convictions on the grounds that the trial judge failed to take judicial notice of weather conditions, misapplied the burden of proof, and misapprehended evidence.

The Nova Scotia Court of Appeal allowed the appeal and ordered a new trial. The trial judge did not err in taking judicial notice of the weather. However, he misapplied the burden of proof and misapprehended evidence.

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 4300

Procedure - Trial judge - Duties and functions of - Respecting credibility of witnesses (incl. accused) - [See Criminal Law - Topic 4960 ].

Criminal Law - Topic 4865

Appeals - Indictable offences - Grounds of appeal - Verdict unreasonable or unsupported by evidence - The 63 year old accused was convicted of sexual offences against his niece between 1994 and 2000, starting when she was six years of age - The niece's evidence at trial differed from her statement to the police and her testimony at the preliminary inquiry - The Nova Scotia Court of Appeal rejected the accused's argument that the verdict was unreasonable and unsupported by the evidence - The court stated that "The case was all about credibility in a broad sense. The complainant described acts which, if accepted as truthful and sufficiently reliable to satisfy the criminal burden of proof, made out the offences. The trial judge did not accept the denials of the appellant, and despite contradictions and inconsistencies in the testimony of the complainant, found on the totality of the evidence the offences established. This does not make the verdicts unreasonable. The submissions of the appellant on this ground of appeal amount to an invitation for us to retry the case, and to take a different view of the credibility or reliability of the evidence. ... the verdict is one that a trier of fact could reasonably reach on the evidence." - See paragraphs 50 to 57.

Criminal Law - Topic 4866

Appeals - Indictable offences - Grounds of appeal - Misapprehension of evidence - [See Criminal Law - Topic 4960 ].

Criminal Law - Topic 4957

Appeals - Indictable offences - New trials - Grounds - Misapprehension of evidence - [See Criminal Law - Topic 4960 ].

Criminal Law - Topic 4960

Appeals - Indictable offences - New trials - Grounds - Error respecting burden or standard of proof - An accused appealed his convictions for historical sexual offences against his niece when she was 6-12 years of age - The accused appealed on the ground that the trial judge misapplied the burden of proof and misapprehended evidence - The Nova Scotia Court of Appeal held that the trial judge correctly stated the burden of proof and recognized that the case was not a credibility contest - However, the trial judge erred in stating that because he found the accused's evidence on one point unconvincing, it cast doubt on the credibility of his other evidence - Mere disbelief of exculpatory evidence could not be used to bolster the Crown's case - The court agreed that "the announced analytical path by the trial judge reversed the onus of proof. There is no requirement on an accused to convince the judge by his evidence - all that is needed is for a reasonable doubt to be raised. ... the trial judge found ... his evidence was 'not persuasive' and 'therefore not credible' ... This smacks of a credibility contest between the Crown's witnesses and the appellant" - Further, the trial judge misapprehended evidence "in relation to the central issue of determining the guilt of the appellant based on the judge's resolution of the credibility and reliability of the complainant and appellant. ... I would therefore order a new trial on this basis alone." - The trial judge also erred in finding that the niece's testimony was based on "recovered memory", when it was clearly not, which led him to excuse or overlook discrepancies, contradictions and inconsistencies in her evidence - The trial judge also made fact findings for which there was no evidence - Given that the case stood and fell on the judge's assessment of credibility and reliability, a new trial was required - See paragraphs 58 to 121.

Criminal Law - Topic 5007

Appeals - Indictable offences - Review of verdicts - Where verdict based on findings of credibility - [See Criminal Law - Topic 4960 ].

Evidence - Topic 2249

Special modes of proof - Judicial notice - Particular matters - Climate and weather conditions - The 63 year old accused was convicted of sexual offences against his niece between 1994 and 2000, starting when she was six years of age - The niece's evidence at trial differed from her statement to the police and her testimony at the preliminary inquiry - The niece testified to being driven twice a week over that period to the local cemetery, where she sat on the accused's lap and was inappropriately touched while the accused let her drive - However, she also testified as to being at the cemetery when it was warmer and that she could not remember being there in the winter - An uncontradicted witness testified that he cared for the cemetery during that period, that it was snow-covered during the winter, and that it was not plowed - The accused argued that the trial judge failed to take judicial notice of the snowy winter conditions - The Nova Scotia Court of Appeal held that the accused's complaint was that the trial judge failed to place sufficient significance on winter conditions in assessing the reliability or credibility of the complainant's evidence (i.e., that the alleged inappropriate touching in the cemetery could not have occurred year round) - The court held that the trial judge did not refuse to take judicial notice that there was snow on the ground in the winter - The trial judge declined to take judicial notice that snowy conditions made access to the cemetery impossible during the winter - The trial judge could have drawn an inference that going to the cemetery year round was implausible, but was not required to do so as he did not view the niece's evidence of being there twice a week every week all year long as definitive or literal - The trial judge did not err in failing to take judicial notice of snow cover in the winter and the effects it would have on driving on an unplowed cemetery lane - In fact, the trial judge acknowledged that to be the case - See paragraphs 36 to 49.

Cases Noticed:

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 26].

R. v. Biniaris (J.) (2000), 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161; 2000 SCC 15, refd to. [para. 51].

R. v. R.W., [1992] 2 S.C.R. 122; 137 N.R. 214; 54 O.A.C. 164, refd to. [para. 52].

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. 52].

R. v. Beaudry (A.) (2007), 356 N.R. 323; 2007 SCC 5, refd to. [para. 53].

R. v. Sinclair (T.) (2011), 418 N.R. 282; 268 Man.R.(2d) 225; 520 W.A.C. 225; 2011 SCC 40, refd to. [para. 53].

R. v. R.P. (2012), 429 N.R. 361; 2012 SCC 22, refd to. [para. 53].

R. v. Wilson (B.S.) (2013), 412 N.B.R.(2d) 100; 1070 A.P.R. 100; 2013 NBCA 38, refd to. [para. 56].

R. v. R.E.M., [2008] 3 S.C.R. 3; 380 N.R. 47; 260 B.C.A.C. 40; 439 W.A.C. 40; 2008 SCC 51, refd to. [para. 60].

R. v. D.D.S. (2006), 242 N.S.R.(2d) 235; 770 A.P.R. 235; 2006 NSCA 34, refd to. [para. 61].

R. v. A.P. (2013), 306 O.A.C. 275; 2013 ONCA 344, refd to. [para. 61].

R. v. Wadforth (D.) (2009), 254 O.A.C. 295; 2009 ONCA 716, refd to. [para. 61].

R. v. R.W.B. (1993), 24 B.C.A.C. 1; 40 W.A.C. 1 (C.A.), refd to. [para. 66].

R. v. A.S. (2004), 192 O.A.C. 85; 190 C.C.C.(3d) 496 (C.A.), refd to. [para. 66].

R. v. J.M.M. (2012), 319 N.S.R.(2d) 73; 1010 A.P.R. 73; 2012 NSCA 70, refd to. [para. 66].

R. v. C.L.Y. (2008), 370 N.R. 284; 225 Man.R.(2d) 146; 419 W.A.C. 146; 2008 SCC 2, refd to. [para. 69].

R. v. Morrissey (R.J.) (1995), 80 O.A.C. 161; 22 O.R.(3d) 514; 97 C.C.C.(3d) 193 (C.A.), refd to. [para. 69].

R. v. Hibbert (K.R.) (2002), 287 N.R. 111; 165 B.C.A.C. 161; 270 W.A.C. 161; 2002 SCC 39, refd to. [para. 71].

R. v. O'Connor (P.) (2002), 166 O.A.C. 202; 170 C.C.C.(3d) 365 (C.A.), refd to. [para. 71].

R. v. Martin (G.W.) (2010), 361 N.B.R.(2d) 251; 931 A.P.R. 251; 2010 NBCA 41, refd to. [para. 114].

R. v. J.H. (2009), 284 Nfld. & P.E.I.R. 322; 875 A.P.R. 322; 2009 NLCA 27, refd to. [para. 119].

R. v. Cloutier (B.A.) (2011), 278 O.A.C. 331; 2011 ONCA 484, refd to. [para. 120].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 686(1)(a), sect. 686(1)(b)(iii) [para. 95].

Counsel:

Elizabeth Cusack, Q.C., for the appellant;

Marian Fortune-Stone, Q.C., for the respondent.

This appeal was heard on September 25, 2013, at Halifax, N.S., before Oland, Beveridge and Farrar, JJ.A., of the Nova Scotia Court of Appeal.

On March 25, 2014, Beveridge, J.A., delivered the following judgment for the Court of Appeal.

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    • Canada
    • Court of Appeal of Nova Scotia (Canada)
    • October 27, 2020
    ...errors made in the course of credibility determination on the path to conviction can be fatal (see R. v. C.L.Y., 2008 SCC 2; R. v. P.(J.), 2014 NSCA 29; leave to appeal denied, [2014] S.C.C.A. No. [11] As to the remaining grounds of appeal, the parties agree these are questions of law revie......
  • R v Pelletier, 2019 SKCA 113
    • Canada
    • Court of Appeal (Saskatchewan)
    • November 1, 2019
    ...a mistake as to the substance of the evidence, or a failure to give proper effect to evidence. … (Emphasis added) [115] In R v J.P., 2014 NSCA 29, 342 NSR (2d) 324, Beveridge J.A. [110] The judge misapprehended the evidence. But did it play an essential role in the decision to convict? Asse......
  • R. v. MacLellan, 2019 NSCA 2
    • Canada
    • Court of Appeal of Nova Scotia (Canada)
    • January 18, 2019
    ...at ¶ 36–37; R. v. R.P., 2012 SCC 22 at ¶ 9; R. v. W.H., 2013 SCC 22 at ¶ 25–28; see also R. v. Murphy, 2014 NSCA 91 at ¶ 4‑13; R. v. J.P., 2014 NSCA 29 at ¶ 51–53). Given the complexities highlighted in the first two grounds of appeal and again the low threshold discussed above in paragraph......
  • R. v. Percy, 2020 NSCA 11
    • Canada
    • Court of Appeal of Nova Scotia (Canada)
    • February 12, 2020
    ...2004 SCC 80; R. v. Schrader, 2001 NSCA 20; R. v. Deviller, 2005 NSCA 71; R. v. D.D.S., 2006 NSCA 34; R. v. C.L.Y., 2008 SCC 2; R. v. J.P., 2014 NSCA 29, leave denied, [2014] S.C.C.A. No. [123] But this is a Crown appeal from an acquittal. The parties seem to have assumed that if the trial j......
  • Request a trial to view additional results
19 cases
  • R v Pelletier, 2019 SKCA 113
    • Canada
    • Court of Appeal (Saskatchewan)
    • November 1, 2019
    ...a mistake as to the substance of the evidence, or a failure to give proper effect to evidence. … (Emphasis added) [115] In R v J.P., 2014 NSCA 29, 342 NSR (2d) 324, Beveridge J.A. [110] The judge misapprehended the evidence. But did it play an essential role in the decision to convict? Asse......
  • R. v. Cooke, 2020 NSCA 66
    • Canada
    • Court of Appeal of Nova Scotia (Canada)
    • October 27, 2020
    ...errors made in the course of credibility determination on the path to conviction can be fatal (see R. v. C.L.Y., 2008 SCC 2; R. v. P.(J.), 2014 NSCA 29; leave to appeal denied, [2014] S.C.C.A. No. [11] As to the remaining grounds of appeal, the parties agree these are questions of law revie......
  • R. v. MacLellan, 2019 NSCA 2
    • Canada
    • Court of Appeal of Nova Scotia (Canada)
    • January 18, 2019
    ...at ¶ 36–37; R. v. R.P., 2012 SCC 22 at ¶ 9; R. v. W.H., 2013 SCC 22 at ¶ 25–28; see also R. v. Murphy, 2014 NSCA 91 at ¶ 4‑13; R. v. J.P., 2014 NSCA 29 at ¶ 51–53). Given the complexities highlighted in the first two grounds of appeal and again the low threshold discussed above in paragraph......
  • R. v. Percy, 2020 NSCA 11
    • Canada
    • Court of Appeal of Nova Scotia (Canada)
    • February 12, 2020
    ...2004 SCC 80; R. v. Schrader, 2001 NSCA 20; R. v. Deviller, 2005 NSCA 71; R. v. D.D.S., 2006 NSCA 34; R. v. C.L.Y., 2008 SCC 2; R. v. J.P., 2014 NSCA 29, leave denied, [2014] S.C.C.A. No. [123] But this is a Crown appeal from an acquittal. The parties seem to have assumed that if the trial j......
  • Request a trial to view additional results

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