R. v. Lee (C.J.), (2010) 474 A.R. 203 (CA)

• Judge: McFadyen, Berger and Slatter, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: February 01, 2010
• Citations: (2010), 474 A.R. 203 (CA);2010 ABCA 1

R. v. Lee (C.J.) (2010), 474 A.R. 203 (CA);

      479 W.A.C. 203

MLB headnote and full text

Temp. Cite: [2010] A.R. TBEd. FE.005

Her Majesty The Queen (respondent) v. Christopher John Lee (appellant/accused)

(0803-0163-A; 2010 ABCA 1)

Indexed As: R. v. Lee (C.J.)

Alberta Court of Appeal

McFadyen, Berger and Slatter, JJ.A.

February 1, 2010.

Summary:

The accused and complainant were strangers. The complainant said she approached the accused outside of a nightclub attempting to sell personal items for cab fare home. The accused's version was that she asked about drugs. The accused got angry. He began ranting and swearing, and chased her. Although the accused and complainant had different versions of what transpired next, within 10 minutes the complainant was performing oral sex on the accused. The accused alleged that it was consensual, that she offered oral sex in exchange for a place to stay that night. The complainant alleged that the accused forced her to perform oral sex at knifepoint. The trial judge convicted the accused of sexual assault. The accused appealed, submitting that the trial judge misapprehended evidence which was central to his reasoning process, rendering the verdict unreasonable (i.e., error in weighing the evidence)

The Alberta Court of Appeal dismissed the appeal. The verdict was not unreasonable and there were no errors of law disclosed on the record. Berger, J.A., dissenting, would have allowed the appeal and ordered a new trial on the ground that the trial judge failed to consider relevant evidence, relied on inadmissible evidence and failed to give proper effect to other evidence, all errors paying an essential part in her reasoning process.

Criminal Law - Topic 4351

Procedure - Charge or directions - Jury or judge alone - Direction regarding burden of proof and reasonable doubt - [See Criminal Law - Topic 4865 ].

Criminal Law - Topic 4865

Appeals - Indictable offences - Grounds of appeal - Verdict unreasonable or unsupported by evidence - The accused and complainant were strangers - The complainant said she approached the accused outside of a nightclub attempting to sell personal items for cab fare home - The accused's version was that she asked about drugs - The accused got angry - He began ranting and swearing, and chased her - Although the accused and complainant had different versions of what transpired next, within 10 minutes the complainant was performing oral sex on the accused - The accused alleged that it was consensual, that she offered oral sex in exchange for a place to stay that night - The complainant alleged that the accused forced her to perform oral sex at knife point - The trial judge accepted the complainant's testimony as credible, disbelieved the accused, and convicted the accused of sexual assault on the basis that the whole of the evidence established guilt beyond a reasonable doubt - The accused appealed, submitting that the trial judge misapprehended evidence which was central to her reasoning process, rendering the verdict unreasonable (i.e., error in weighing the evidence) - The Alberta Court of Appeal dismissed the appeal - The court stated that the appropriate test was the Biniaris test (S.C.C.), namely "whether the verdict is one that a properly instructed jury acting judicially could reasonably have rendered" not the test respecting misapprehension of evidence - A verdict was not unreasonable merely because a different trier of fact may have interpreted the evidence differently and found the accused not guilty - That possibility did not render the verdict unreasonable - The court rejected the submission that the trial judge found the accused guilty merely because he believed the complainant and disbelieved the accused - The trial judge properly applied the principles respecting the burden of proof and reasonable doubt in R. v. D.W. (S.C.C.) - See paragraphs 1 to 40.

Criminal Law - Topic 4866

Appeals - Indictable offences - Grounds of appeal - Misapprehension of evidence - [See Criminal Law - Topic 4865 ].

Evidence - Topic 7000.3

Opinion evidence - Expert evidence - General - Opinion evidence - What constitutes - [See Evidence - Topic 7112.2 ].

Evidence - Topic 7112.2

Opinion evidence - Nonexpert evidence - Admissibility - Weight - A police officer who was a dog handler testified as to his opinion respecting footprint patterns found at the scene of an alleged sexual assault - The effect was that (1) there were two sets of footprints walking to the scene (large/accused and small/complainant) indicating "just two people walking" and (2) there was one set of footprints (large) leaving the scene spread out in a manner suggesting that the accused ran from the scene - The evidence was not objected to at trial, no voir dire was held, and the officer's opinion was not challenged on cross-examination - On appeal, the accused argued that the footprint evidence was expert evidence by a witness not qualified as an expert and that it was "novel science" requiring special scrutiny - The Alberta Court of Appeal rejected the submission - The evidence was not "expert evidence", much less "novel science" - It was a common sense inference from observed facts that any ordinary witness could give an opinion respecting - The court stated that "there is no risk that the evidence overwhelmed or distracted the judge. ... The trial judge was well positioned to assess the reliability of his observations, as well as the weight to be given to the inferences he drew from them" - Berger, J.A., dissenting, opined that this was "expert" evidence by a person not qualified to give such evidence (i.e., not permissible layperson opinion) and the evidence should have been ruled inadmissible - See paragraphs 25 to 33; 52 to 57.

Cases Noticed:

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; 2000 SCC 15, refd to. [para. 7].

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351, refd to. [para. 7].

R. v. Beaudry (A.), [2007] 1 S.C.R. 190; 356 N.R. 323; 2007 SCC 5, refd to. [para. 7].

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. 8].

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. 8].

R. v. S.D.D. (2005), 233 N.S.R.(2d) 49; 739 A.P.R. 49; 2005 NSCA 71, refd to. [para. 12].

R. v. J.R.S. (2008), 425 A.R. 306; 418 W.A.C. 306; 2008 ABCA 41, refd to. [para. 13].

R. v. C.L.Y., [2008] 1 S.C.R. 5; 370 N.R. 284; 225 Man.R.(2d) 146; 419 W.A.C. 146; 2008 SCC 2, refd to. [para. 14].

R. v. Pasqua (N.R.) (2009), 457 A.R. 358; 457 W.A.C. 358; 2009 ABCA 247, refd to. [para. 15].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241, refd to. [para. 25].

R. v. Graat, [1982] 2 S.C.R. 819; 45 N.R. 451, refd to. [para. 30].

R. v. Powell (M.K.), [2006] A.R. Uned. 448; 2006 ABCA 267, refd to. [para. 30].

R. v. Foley (1873), Stevens' Digest (3rd Ed.) 360 (N.B.), refd to. [para. 30].

White v. State (1979), 375 So.2d 622 (Fla. App. 4th Dist.), refd to. [para. 30].

R. v. Abbey (W.N.) (2009), 254 O.A.C. 9; 2009 ONCA 624, refd to. [para. 33].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 34].

R. v. A.K. and N.K. (1999), 125 O.A.C. 1; 27 C.R.(5th) 226 (C.A.), refd to. [para. 54, footnote 1].

R. v. Marquard (D.), [1993] 4 S.C.R. 223; 159 N.R. 81; 66 O.A.C. 161, refd to. [para. 56].

Authors and Works Noticed:

Bryant, Alan W., Lederman, Sidney N., and Fuerst, Michelle K., Sopinka, Lederman & Bryant: The Law of Evidence in Canada (3rd Ed. 2009), paras. 12.4, 12.11-2 [para. 31].

Gold, Alan D., Expert Evidence in Criminal Law: The Scientific Approach (2nd Ed. 2009), p. 45 [para. 54].

Counsel:

T.L. Couillard, for the respondent;

D.R. Hatch, for the appellant.

This appeal was heard on September 4, 2009, before McFadyen, Berger and Slatter, JJ.A., of the Alberta Court of Appeal.

The following memorandums of judgment were filed on February 1, 2010, including the following opinions:

McFadyen and Slatter, JJ.A. - see paragraphs 1 to 40;

Berger, J.A., dissenting - see paragraphs 41 to 73.