R. v. L.K.W., (1999) 126 O.A.C. 39 (CA)

• Court: Court of Appeal (Ontario)
• Case Date: June 17, 1999
• Jurisdiction: Ontario
• Citations: (1999), 126 O.A.C. 39 (CA)

R. v. L.K.W. (1999), 126 O.A.C. 39 (CA)

MLB headnote and full text

Temp. Cite: [1999] O.A.C. TBEd. SE.090

Her Majesty the Queen (respondent) v. L.K.W. (appellant)

(C25528)

Indexed As: R. v. L.K.W.

Ontario Court of Appeal

Osborne, A.C.J.O., Moldaver, J.A. and Farley, J.(ad hoc)

September 28, 1999.

Summary:

The accused was convicted by a jury of various acts of sexual and physical abuse against two of his stepchildren and three of his biological sons. The convictions included 10 sex-related offences involving his step-children and one count of assault causing bodily harm involving one stepchild. He was also convicted of three counts of ad­minister­ing a noxious substance, unlawful confine­ment and assault in relation to each of his three sons. The accused was sentenced to 18 1/2 years' imprisonment. He appealed his conviction and sentence.

The Ontario Court of Appeal dismissed the appeals.

Criminal Law - Topic 673

Sexual offences - Public morals and disor­derly conduct - Sexual offences - Rape or sexual assault - Jury charge - [See Crim­inal Law - Topic 4367 , Criminal Law - Topic 4375.2 and Criminal Law - Topic 5437 ].

Criminal Law - Topic 4325.1

Procedure - Jury - General - Discharge of juror - Proceeding with reduced number of jurors - After the accused was put in charge of the jury, but prior to his trial, a juror was discharged - The trial proceeded with 11 jurors - The accused was con­victed - He appealed arguing, inter alia, that the trial judge erred in proceeding without 12 jurors - The Ontario Court of Appeal rejected the argument - Section 644(1) of the Criminal Code, which enabled a trial judge in the exercise of their discretion to replace a juror in cases where the jury had not yet begun to hear evidence, was not in force - Accordingly, the trial judge was bound by the earlier s. 644 which stipulated that a trial com­menced when an accused was put in charge of the jury - See paragraphs 57 to 60.

Criminal Law - Topic 4352

Procedure - Charge or directions to jury - Direction on evidence generally - [See Criminal Law - Topic 4367 ].

Criminal Law - Topic 4367

Procedure - Charge or directions to jury - Directions regarding separation of evidence respecting several counts - The accused was convicted of various acts of physical and sexual abuse against family members -He appealed - The accused argued, inter alia, that the trial judge erred in failing to properly instruct the jury on the use to be made of the evidence at large regarding the assaults in assessing the accused's guilt or innocence on a particular count - The Ontario Court of Appeal agreed but relied on the curative provisions in s. 686(1)(b)(iii) of the Criminal Code to dismiss the appeal - While the error was potentially serious, the evidence was so overwhelming that the verdict would in­evitably have been the same had the jury been properly instructed - In reaching the conclusion the court further noted that, in such cases, it was entitled to examine, and to some extent, weigh and consider the effect of the evidence - See paragraphs 85 to 105.

Criminal Law - Topic 4375.2

Procedure - Charge or directions to jury - Directions regarding prior inconsistent statements - The accused was convicted of various acts of physical and sexual abuse against family members - He appealed his conviction arguing, inter alia, that the trial judge erred in failing to give an ap­propriate limiting instruction to the jury regarding the use that could be made of prior inconsistent statements from one of his witnesses - The Ontario Court of Ap­peal rejected this argument - While the trial judge did fail to give the appropriate limiting instruction to the jury regarding the inconsistent statements (i.e., he failed to instruct the jury that prior inconsistent statements could only be considered as original evidence if adopted as truthful by the witness), the error occasioned no harm to the accused - See paragraphs 76 to 84.

Criminal Law - Topic 4375.5

Procedure - Charge or directions to jury - Directions re prior misconduct or convic­tions - [See Criminal Law - Topic 5437 ].

Criminal Law - Topic 4973

Appeals - Indictable offences - Powers of Court of Appeal - Power to review and weigh evidence - [See Criminal Law - Topic 4367 ].

Criminal Law - Topic 5041

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - Where jury charge incomplete or in error - The Ontario Court of Appeal noted that the curative provi­sions set out in s. 686(1)(b)(ii) of the Criminal Code should only be used in rare and exceptional circumstances - Conse­quently, where the Crown was seeking to apply the curative proviso where the jury had not received proper legal instruction, the Crown must establish: "(i) that the error was minor and inconsequential and could not possibly have affected the ver­dict; or (ii) that although the error was potentially serious, the evidence is so overwhelming that the verdict would in­evitably have been the same had the jury been properly instructed" - See paragraphs 94 and 95.

Criminal Law - Topic 5041

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - Where jury charge incomplete or in error - [See Criminal Law - Topic 4367 , Criminal Law - Topic 4375.2 and Criminal Law - Topic 5437 ].

Criminal Law - Topic 5437

Evidence and witnesses - Cross-examina­tion of accused - Prior convictions - The accused was convicted of various acts of sexual and physical abuse against various family members - He appealed - At trial the accused was cross-examined on prior assault convictions - The accused argued, inter alia, that the trial judge erred in failing to give the traditional instruction that his criminal record could only be used to assess his credibility and not to show that he was the type of person likely to commit the crimes with which he was charged - The Ontario Court of Appeal agreed but dismissed the appeal where the error was harmless and occasioned no substantial wrong or miscarriage of justice - See paragraphs 71 to 75.

Criminal Law - Topic 5861

Sentence - Assault (includes common assault) - The accused was convicted of various acts of sexual and physical abuse against two of his stepchildren and three of his biological sons - The convictions in­cluded 10 sex-related offences involving his stepchildren and one count of assault causing bodily harm involving one step-child - He was also convicted of three counts of administering a noxious sub­stance, unlawful confinement and assault in relation to each of his three sons - He was sentenced to 18 1/2 years' imprisonment - The accused appealed sentence - The Ontario Court of Appeal dismissed the appeal - Over the course of two genera­tions, the accused "systematically brutal­ized his stepchildren and natural children, subjecting them to acts of violence, degra­dation and cruelty of unspeakable propor­tions. If ever there was a case of stark horror, this is it" - See paragraphs 106 to 111.

Criminal Law - Topic 5868

Sentence - Forcible confinement - [See Criminal Law - Topic 5861 ].

Criminal Law - Topic 5883

Sentence - Assault with a weapon or as­sault causing bodily harm - [See Criminal Law - Topic 5861 ].

Criminal Law - Topic 5932

Sentence - Sexual assault - [See Criminal Law - Topic 5861 ].

Criminal Law - Topic 5958

Sentence - Administering a noxious thing -[See Criminal Law - Topic 5861 ].

Cases Noticed:

R. v. Varcoe (R.V.) (1996), 88 O.A.C. 127; 104 C.C.C.(3d) 449 (C.A.), refd to. [para. 60].

R. v. Laurier (1983), 1 O.A.C. 128 (C.A.), refd to. [para. 66].

R. v. McNamara et al. (No. 1) (1981), 56 C.C.C.(2d) 193 (Ont. C.A.), refd to. [para. 66].

R. v. Farrant, [1983] 1 S.C.R. 124; 46 N.R. 337; 21 Sask.R. 271, refd to. [para. 66].

R. v. D.S.F. (1999), 118 O.A.C. 272; 132 C.C.C.(3d) 97 (C.A.), refd to. [para. 91].

R. v. Litchfield, [1993] 4 S.C.R. 333; 161 N.R. 161; 145 A.R. 321; 55 W.A.C. 321; 86 C.C.C.(3d) 97, refd to. [para. 91].

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; 79 C.C.C.(3d) 112, refd to. [para. 91].

R. v. C.R.B., [1990] 1 S.C.R. 717; 107 N.R. 241; 109 A.R. 81; 55 C.C.C.(3d) 1, refd to. [para. 91].

R. v. R.K.N. (1997), 97 O.A.C. 299; 114 C.C.C.(3d) 40 (C.A.), refd to. [para. 93].

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. 102].

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81; 105 C.C.C.(3d) 327, refd to. [para. 110].

Counsel:

Damien R. Frost, for the appellant;

W. Graeme Cameron, for the respondent.

These appeals were heard on June 17, 1999, before Osborne, A.C.J.O., Moldaver, J.A., and Farley, J.(ad hoc), of the Ontario Court of Appeal. Moldaver, J.A., delivered the following judgment for the Court of Appeal which was released on September 28, 1999.