R. v. Lepine (V.), (2013) 566 A.R. 35

• Judge: Côté, Bielby and Veldhuis, JJ.A.
• Court: Court of Appeal (Northwest Territories)
• Case Date: October 22, 2013
• Jurisdiction: Northwest Territories
• Citations: (2013), 566 A.R. 35

R. v. Lepine (V.) (2013), 566 A.R. 35; 597 W.A.C. 35 (NWTCA)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. DE.046

Her Majesty the Queen (respondent) v. Vernon Lepine (appellant)

(A-1-AP-2013-000002; 2013 NWTCA 8)

Indexed As: R. v. Lepine (V.)

Northwest Territories Court of Appeal

Côté, Bielby and Veldhuis, JJ.A.

November 25, 2013.

Summary:

A jury found Lepine guilty of sexual assault. He appealed.

The Northwest Territories Court of Appeal, Bielby, J.A., dissenting in part, dismissed the appeal.

Criminal Law - Topic 4336.5

Procedure - Jury - The law - Questions by jury - [See first Criminal Law - Topic 4391.2 ].

Criminal Law - Topic 4378

Procedure - Charge or directions - Jury or judge alone - Judicial review of - [See second Criminal Law - Topic 4391.2 ].

Criminal Law - Topic 4379

Procedure - Charge or directions - Jury or judge alone - Directions re evidence of character or credibility of accused - [See second Criminal Law - Topic 4391.2 ].

Criminal Law - Topic 4391.2

Procedure - Charge or directions - Jury or judge alone - Directions following questions by jury - Lepine was tried before a jury for sexual assault - After the close of evidence, the jury sent the following question to the judge: "In a situation where the decision comes down to a question of credibility, is lack of credibility on the part of the defence enough to pass the beyond a reasonable doubt test?" - The trial judge stated that she was not going to answer the question right away because the issue would be dealt with in her final charge - In her final charge, the trial judge gave the standard R. v. D.W. three part instruction - Lepine was convicted - On appeal, he asserted, inter alia, that the trial judge had erred by giving only a partial interim answer and deferring the fuller answer to the final charge - The Northwest Territories Court of Appeal dismissed the appeal - The premature jury question was unusual - A jury trial entailed many complicated and sometimes conflicting management considerations - Great deference should be given to timing and management decisions by trial judges, particularly those presiding over jury trials - This was appellate deference to the timing of the answer, rather than the content - The only reason the jury had not received an answer within an hour or two was the defence counsel's motion for a mistrial and then his request for an overnight adjournment - This was proper, but it created inevitable consequences - The trial judge addressed defence counsel's concern regarding a premature decision by the jury - Her answer in the final charge the next day did the same thing - There was nothing more that she could have done to prevent a premature jury conclusion - See paragraphs 24 to 41.

Criminal Law - Topic 4391.2

Procedure - Charge or directions - Jury or judge alone - Directions following questions by jury - Lepine was tried before a jury for sexual assault - After the close of evidence, the jury sent the following question to the judge: "In a situation where the decision comes down to a question of credibility, is lack of credibility on the part of the defence enough to pass the beyond a reasonable doubt test?" - The trial judge stated that she was not going to answer the question right away because the issue would be dealt with in her final charge - In her final charge, the trial judge gave the standard R. v. D.W. three part instruction - Lepine was convicted - On appeal, he asserted, inter alia, that the trial judge had erred by giving the standard instruction as the final charge - The Northwest Territories Court of Appeal dismissed the appeal - Jury charges and answers to jury questions were to be read generously and not in a narrow or technical way nor contra proferentum - The final charge provided the general principles and then applied them to the issues - The defence seemed to suggest that the jury question was about what to make of Lepine's prior criminal record - It was not - The question was about any lack of credibility by the defence and its ultimate effect - There was no error in how the question was answered - The issue was not whether something else could have been said, but whether the trial judge's solution was fair and reasonable - A perfect jury charge was not required and was often almost impossible - An ill-timed jury question did not change that - See paragraphs 42 to 54.

Criminal Law - Topic 5437

Evidence and witnesses - Cross-examination of accused - Prior charges, convictions, etc. - A jury found Lepine guilty of sexual assault - He appealed, asserting, inter alia, that the trial judge had erred by allowing the Crown to cross examine him on his criminal record - The Northwest Territories Court of Appeal dismissed the appeal - The trial judge's written reasons regarding cross-examination identified the factors listed in R. v. Corbett (1988 S.C.C.) and correctly applied and weighted them - The court rejected Lepine's argument that, in the absence of an attack on the complainant's character, admission of his criminal record was barred - That was an incorrect reading of Corbett - An attack on the complainant's character was merely an additional or alternative factor for suggesting admission of the record where it might otherwise not be admitted - Lepine's suggestion that the trial judge should have edited the record or applied different weights to the Corbett factors raised factual issues on which the court owed deference to the trial judge - Her decision to admit the entire criminal record was reasonable - See paragraphs 6 to 14.

Cases Noticed:

R. v. Corbett, [1988] 1 S.C.R. 670; 85 N.R. 81; 41 C.C.C.(3d) 385, refd to. [para. 6].

R. v. Simpson (M.R.) (2004), 348 A.R. 178; 321 W.A.C. 178; 2004 ABCA 146, refd to. [para. 9].

R. v. Paul (A.) (2009), 249 O.A.C. 199; 2009 ONCA 443, refd to. [para. 9].

R. v. Saroya (I.S.) (1994), 76 O.A.C. 25; 36 C.R.(4th) 253 (C.A.), refd to. [para. 9].

R. v. Armstrong (J.) (2011), 285 O.A.C. 339; 280 C.C.C.(3d) 75; 2011 ONCA 709, refd to. [para. 26].

Darville v. R. (1956), 116 C.C.C. 113 (S.C.C.), refd to. [para. 31].

R. v. Emkeit, [1974] S.C.R. 133, refd to. [para. 31].

R. v. Barrette, [1977] 2 S.C.R. 121; 10 N.R. 321; 29 C.C.C.(2d) 189, refd to. [para. 31].

R. v. W.F.M. (1995), 169 A.R. 222; 97 W.A.C. 222; 41 C.R.(4th) 330 (C.A.), refd to. [para. 31].

R. v. Manhas, [1980] 1 S.C.R. 591; 32 N.R. 8; 17 C.R.(3d) 331, refd to. [para. 31].

R. v. Felderhof (J.B.) (2003), 180 O.A.C. 288; 180 C.C.C.(3d) 498 (C.A.), refd to. [para. 31].

R. v. Nixon (O.) (2009), 464 A.R. 1; 467 W.A.C. 1; 246 C.C.C.(3d) 149; 2009 ABCA 269, affd. [2011] 2 S.C.R. 566; 417 N.R. 274; 502 A.R. 18; 517 W.A.C. 18; 271 C.C.C.(3d) 36; 2011 SCC 34, refd to. [para. 31].

R. v. Daley - see R. v. W.J.D.

R. v. W.J.D., [2007] 3 S.C.R. 523; 369 N.R. 225; 302 Sask.R. 4; 411 W.A.C. 4; 226 C.C.C.(3d) 1; 2007 SCC 53, refd to. [para. 43].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352; 63 C.C.C.(3d) 397, refd to. [para. 45].

Counsel:

B. MacPherson, for the respondent;

R.J.A. Gregory, for the appellant.

This appeal was heard on October 22, 2013, by Côté, Bielby and Veldhuis, JJ.A., of the Northwest Territories Court of Appeal. On November 25, 2013, the court released its memorandum of judgment, including the following opinions:

Côté and Veldhuis, JJ.A. - see paragraphs 1 to 55;

Bielby, J.A., dissenting - see paragraphs 56 to 86.