R. v. Larsen (G.), (2012) 533 A.R. 55

• Judge: O'Brien, Slatter and Bielby, JJ.A.
• Court: Court of Appeal (Northwest Territories)
• Case Date: June 04, 2012
• Jurisdiction: Northwest Territories
• Citations: (2012), 533 A.R. 55

R. v. Larsen (G.) (2012), 533 A.R. 55; 557 W.A.C. 55 (CA)

MLB headnote and full text

Temp. Cite: [2012] A.R. TBEd. JN.048

Her Majesty the Queen (respondent) v. Gordon Larsen (appellant)

(A-1-AP-2011-000014; 2012 NWTCA 9)

Indexed As: R. v. Larsen (G.)

Northwest Territories Court of Appeal

O'Brien, Slatter and Bielby, JJ.A.

June 4, 2012.

Summary:

The accused was convicted on three counts of sexual interference for sexually touching three young children between 1989 and 1994. The accused appealed on the grounds that (1) the convictions were unreasonable due to the treatment the trial judge gave to the accused's evidence and (2) the trial judge erred in admitting similar fact evidence because of his circular reasoning in assessing the three complainants' credibility in his similar fact decision.

The Northwest Territories Court of Appeal allowed the appeal on both grounds and ordered a new trial.

Criminal Law - Topic 4957

Appeals - Indictable offences - New trials - Grounds - Misapprehension of evidence - [See Criminal Law - Topic 5020 ].

Criminal Law - Topic 5020

Appeals - Indictable offence - Setting aside verdicts - Verdict unreasonable or unsupported by evidence - The accused allegedly sexually interfered with three young children between four and 13 years of age between 1989 and 1994 - In convicting the accused, the trial judge accepted the children's testimony as credible - The accused, in denying the allegations, testified that he remembered the incident alleged by one of the children (involving the child's nightmare), but had no memory of the allegations by the other two children, as he denied that anything happened with them - The trial judge rejected the accused's evidence because of the incredibility of the accused recalling one incident while having no memory of incidents involving the other two children - There were inconsistencies in the children's testimony, which might have been insufficient to affect their credibility, but those inconsistencies were not even referenced by the trial judge - The Northwest Territories Court of Appeal allowed the accused's conviction appeal and ordered a new trial - Whether the remembered incident was sufficiently unusual to account for the accused's memory of it, while having no memory of the other alleged incidents (which the accused argued never happened), was an issue that the trial judge failed to address, especially where the accused was not shaken on cross-examination and there were only minor inconsistencies in his evidence - Further, the trial judge appeared to overlook inconsistencies in the children's testimony in assessing their credibility - The trial judge's misapprehension of the evidence made the verdicts unreasonable - The trial judge drew an inference or made a fact finding essential to his verdict which was shown to be incompatible with evidence that had not otherwise been contradicted or rejected - See paragraphs 12 to 22.

Criminal Law - Topic 5212

Evidence and witnesses - Admissibility and relevancy - Similar acts - General (incl. procedure) - The accused allegedly sexually interfered with three young children between four and 13 years of age between 1989 and 1994 - In convicting the accused, the trial judge accepted the children's testimony as credible - Mid-trial, in a de facto voir dire, the trial judge admitted the evidence of each child as similar fact evidence - The Northwest Territories Court of Appeal held that it appeared that at the first stage of the similar fact application (whether Crown proved proposed evidence was sufficiently probative) the trial judge's finding that the alleged offences were significantly similar was intended to be a reason for accepting the children's credibility - If so, then the only factor he considered in assessing the children's credibility during the similar fact evidence was the degree of similarity in their evidence - If that was the case, the judge erred in engaging in "circular reasoning" by "concluding that the similar fact evidence was admissible only because of the similar fact evidence" - The error arose because the trial judge failed to "expressly delineate which portions of his conviction decision were in fact further reasons for that initial [similar fact] decision" - Slatter, J.A., dissenting on this issue, disagreed with the finding of circularity, as "where the trial is by judge alone, the trial judge will consider the credibility of the similar fact evidence at both stages" - See paragraphs 23 to 35, 72.

Evidence - Topic 1251

Relevant facts - Relevance and materiality - Similar acts - General - [See Criminal Law - Topic 5212 ].

Cases Noticed:

R. v. Gagnon (L.), [2006] 1 S.C.R. 621; 347 N.R. 355; 2006 SCC 17, refd to. [para. 9].

R. v. Blea (A.J.), [2012] A.R. Uned. 17; 2012 ABCA 41, refd to. [para. 10].

R. v. Buna (M.P.) (2009), 280 B.C.A.C. 42; 474 W.A.C. 42; 249 C.C.C.(3d) 156; 2009 BCCA 536, refd to. [para. 10].

R. v. Norman (D.L.) (1993), 68 O.A.C. 22; 16 O.R.(3d) 295 (C.A.), refd to. [para. 13].

R. v. Tucker (W.C.) (1992), 120 A.R. 393; 8 W.A.C. 393 (C.A.), refd to. [para. 13].

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. Handy (J.), [2002] 2 S.C.R. 908; 290 N.R. 1; 160 O.A.C. 201; 2002 SCC 56, refd to. [para. 24].

R. v. MacCormack (C.J.) (2009), 245 O.A.C. 271; 241 C.C.C.(3d) 516; 2009 ONCA 72, refd to. [para. 24].

R. v. C.R.B., [1990] 1 S.C.R. 717; 107 N.R. 241; 109 A.R. 81, refd to. [para. 34].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 46].

H.L. v. Canada (Attorney General) et al., [2005] 1 S.C.R. 401; 333 N.R. 1; 262 Sask.R. 1; 347 W.A.C. 1; 2005 SCC 25, refd to. [para. 47].

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. 47].

R. v. Morrissey (R.J.) (1995), 80 O.A.C. 161; 97 C.C.C.(3d) 193; 22 O.R.(3d) 514 (C.A.), refd to. [para. 47].

R. v. Biniaris (J.), [2000] 1 S.C.R. 381; 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161, refd to. [para. 48].

R. v. Lee (C.J.) (2010), 474 A.R. 203; 479 W.A.C. 203; 23 Alta. L.R.(5th) 76; 2010 ABCA 1, affd. [2010] 3 S.C.R. 99; 408 N.R. 129; 490 A.R. 202; 497 W.A.C. 202; 2010 SCC 52, refd to. [para. 49].

R. v. R.P. (2012), 429 N.R. 361; 2012 SCC 22, refd to. [para. 49].

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. 49].

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. A.G., [2000] 1 S.C.R. 439; 252 N.R. 272; 132 O.A.C. 1; 2000 SCC 17, refd to. [para. 55].

R. v. M.W. (2008), 279 Nfld. & P.E.I.R. 183; 856 A.P.R. 183; 234 C.C.C.(3d) 159; 2008 NLCA 38, refd to. [para. 64].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 74].

Counsel:

A. Godfrey, for the respondent;

B.A. Beresh, Q.C., for the appellant.

This appeal was heard on April 16, 2012, at Yellowknife, N.W.T., before O'Brien, Slatter and Bielby, JJ.A., of the Northwest Territories Court of Appeal.

On June 4, 2012, the following memorandum of judgment was delivered and the following opinions were filed:

O'Brien, J.A. (Bielby, J.A., concurring) - see paragraphs 1 to 37;

Slatter, J.A. - see paragraphs 38 to 76.