R. v. Lafferty (G.L.), (2012) 539 A.R. 20

• Judge: Hunt, Ritter and Sharkey, JJ.A.
• Court: Court of Appeal (Northwest Territories)
• Case Date: October 16, 2012
• Jurisdiction: Northwest Territories
• Citations: (2012), 539 A.R. 20

R. v. Lafferty (G.L.) (2012), 539 A.R. 20; 561 W.A.C. 20 (NWTCA)

MLB headnote and full text

Temp. Cite: [2012] A.R. TBEd. NO.078

Her Majesty the Queen (respondent) v. Gary Lantz Lafferty (appellant)

(A-1-AP-2012-000001; 2012 NWTCA 11)

Indexed As: R. v. Lafferty (G.L.)

Northwest Territories Court of Appeal

Hunt, Ritter and Sharkey, JJ.A.

October 16, 2012.

Summary:

The accused was convicted of sexual assault and assault causing bodily harm. He appealed.

The Northwest Territories Court of Appeal allowed the appeal, ordering a new trial.

Criminal Law - Topic 53

General principles - Protection against self-incrimination - Right to remain silent - The complainant alleged that the accused had knocked her unconscious and had sex with her - In a voluntary statement to police, the accused acknowledged that he had seen the complainant earlier in the week before the alleged offence, but had only carried her home - He stated that his DNA would not be found on the complainant - A sexual assault vaginal swab revealed the accused's DNA - At trial, the accused asserted that he and the complainant had consensual sex in the week before the alleged offence - Crown counsel cross-examined him on his failure to mention the sexual activity with the complainant to the police - The judge referred to the same point in his jury charge - The accused was convicted of sexual assault and assault causing bodily harm - He appealed, asserting that his right to silence had been compromised - The Northwest Territories Court of Appeal allowed the appeal, ordering a new trial - Even if the cross-examination could have been justified, the judge's failure to give a limiting instruction could not - The judge should have instructed the jury on the right to silence, emphasizing that the accused's guilt could not be determined from his failure to tell the police about the sexual activity or to (in effect) reveal his defence that the sexual activity was consensual - Absent such an instruction, there was a serious risk that the evidence was misused by the jury - As this impinged on trial fairness, a new trial was necessary.

Criminal Law - Topic 136

General principles - Rights of accused - Right to silence - [See Criminal Law - Topic 53 ].

Criminal Law - Topic 673

Sexual offences, public morals and disorderly conduct - Sexual offences - Rape or sexual assault - Jury charge or directions - [See Criminal Law - Topic 53 ].

Criminal Law - Topic 4360

Procedure - Charge or directions - Jury or judge alone - Directions regarding inferences from silence or admissions by silence or acquiescence - [See Criminal Law - Topic 53 ].

Criminal Law - Topic 4950

Appeals - Indictable offences - New trials - Grounds - Misdirection by trial judge - General - [See Criminal Law - Topic 53 ].

Cases Noticed:

R. v. Grandinetti (C.H.) (2003), 339 A.R. 52; 312 W.A.C. 52; 2003 ABCA 307, affd. [2005] 1 S.C.R. 27; 329 N.R. 28; 363 A.R. 1; 343 W.A.C. 1; 2005 SCC 5, refd to. [para. 11].

R. v. Andres (H.H.) (2003), 339 A.R. 334; 312 W.A.C. 334; 2003 ABCA 333, refd to. [para. 11].

R. v. C.R.B., [1990] 1 S.C.R. 717; 107 N.R. 241; 109 A.R. 81, refd to. [para. 11].

R. v. Turcotte (T.), [2005] 2 S.C.R. 519; 339 N.R. 32; 216 B.C.A.C. 1; 356 W.A.C. 1; 2005 SCC 50, refd to. [para. 12].

R. v. Prokofiew (E.) (2012), 435 N.R. 1; 296 O.A.C. 1; 2012 SCC 49, refd to. [para. 12].

R. v. Kwandahor-Mensah (D.) (2006), 380 A.R. 321; 363 W.A.C. 321; 205 C.C.C.(3d) 321; 2006 ABCA 59, refd to. [para. 17].

R. v. Cones (G.) (2000), 129 O.A.C. 384; 47 O.R.(3d) 630 (C.A.), refd to. [para. 17].

R. v. Varga (E.) (1994), 72 O.A.C. 141; 18 O.R.(3d) 784 (C.A.), refd to. [para. 18].

R. v. Abdalla (S.H.) (2006), 225 B.C.A.C. 118; 371 W.A.C. 118; 2006 BCCA 210, refd to. [para. 18].

Counsel:

A.P. Godfrey, for the respondent;

C.B. Davison, for the appellant.

This appeal was heard on October 16, 2012, by Hunt, Ritter and Sharkey, JJ.A., of the Northwest Territories Court of Appeal. On the same date, Hunt, J.A., delivered the following memorandum of judgment for the court from the bench.