R. v. Lonegren (K.A.), 2011 BCCA 329

• Judge: Low, D. Smith and Hinkson, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: March 17, 2011
• Jurisdiction: British Columbia
• Citations: 2011 BCCA 329;(2011), 308 B.C.A.C. 267 (CA)

R. v. Lonegren (K.A.) (2011), 308 B.C.A.C. 267 (CA);

    521 W.A.C. 267

MLB headnote and full text

Temp. Cite: [2011] B.C.A.C. TBEd. AU.001

Regina (respondent) v. Kirk Allvar Lonegren (appellant)

(CA038114; 2011 BCCA 329)

Indexed As: R. v. Lonegren (K.A.)

British Columbia Court of Appeal

Low, D. Smith and Hinkson, JJ.A.

July 28, 2011.

Summary:

The British Columbia Supreme Court, in a decision reported at [2008] B.C.T.C. Uned. G52, determined that Lonegren had committed one count of touching B.A. for a sexual purpose and one count of sexual assault of B.A. (counts 3 and 4, respectively). Lonegren was acquitted of the same offences relating to S.B. The court entered a conviction on count 3 and directed a judicial stay of proceedings on count 4. Before sentencing, Lonegren's counsel received a victim impact statement prepared by B.A.'s mother. Lonegren's application for a mistrial was dismissed: [2009] B.C.T.C. Uned. 199. The court imposed a sentence of 45 days, to be served intermittently, followed by probation for one year. Lonegren appealed, seeking acquittals or a new trial on counts 3 and 4.

The British Columbia Court of Appeal dismissed the appeal.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 4353.1

Procedure - Charge or directions - Jury or judge alone - Directions regarding collaboration or collusion - The accused was convicted on one count of touching B.A. for a sexual purpose and one count of sexual assault of B.A. - He was acquitted of the same offences relating to S.B. - Each complainant was nine years old as of the offence date - A ground of appeal was that the trial judge did not adequately address the issue of the opportunity the complainants had to collaborate and the effect of that opportunity on the reliability of B.A.'s evidence - The British Columbia Court of Appeal rejected that ground of appeal - The absence in the trial judge's reasons of a categorical rejection of the collusion argument did not mean that the argument was not considered - In discussing B.A.'s credibility, the trial judge addressed the only possible motive emerging from the evidence for the complainants to make a false complaint - Those comments inferentially laid to rest any suggestion that there was collusion - In any event, there was no requirement that the reasons of a trial judge had to be as detailed as argued here - The trial judge's reasons fully discussed the critical issue of credibility and were responsive to all arguments made against the court accepting the complaint as truthful - See paragraphs 17 to 25.

Criminal Law - Topic 4633

Procedure - Mistrials - Grounds - In the present case, an application for a mistrial was brought after conviction but before sentence - However, discovery of the non-disclosure had occurred during the preliminary hearing - The trial judge stated in his reasons that the analysis on a mistrial application in the circumstances before him was "the same as the analysis that would be followed by an appellate court faced with an appeal based on a similar allegation" of non-disclosure - The British Columbia Court of Appeal stated that the trial judge was correct in that conclusion and in applying, as he did, the analysis set out, in appellate terms, by LeBel, J., in R. v. Taillefer; R. v. Duguay (2003) (SCC) - See paragraphs 35 to 37.

Criminal Law - Topic 4647

Procedure - Mistrials - Review or appeal - The British Columbia Court of Appeal stated that "[d]eclaration of a mistrial is a discretionary remedy. A trial judge should declare a mistrial only in the clearest of cases and there can be appellate interference with the judge's decision only if the judge acted on a wrong principle or if a miscarriage of justice resulted" - See paragraph 40.

Criminal Law - Topic 4647

Procedure - Mistrials - Review or appeal - The accused was convicted on one count of touching B.A. for a sexual purpose and one count of sexual assault of B.A., nine years old as of the offence date - On appeal, the accused argued that the trial judge erred in his post-conviction reasons by failing to declare a mistrial because of the late disclosure of the victim impact statement, prepared by B.A.'s mother on behalf of herself and B.A. - The accused made three points: (1) the statement revealed that the mother had a more pronounced animus toward the accused than the defence was aware of; (2) the statement disclosed that the mother had extensive discussions with B.A. about the event and the dangerousness of the accused; and (3) counsel could have conducted a more probing cross-examination of the mother - The British Columbia Court of Appeal held that the trial judge properly considered those points - There was nothing in the statement that would have caught the defence by surprise - There was no error in the trial judge's finding that the Crown's failure to disclose the statement prior to trial did not affect the reliability of the conviction - Also, the trial judge was correct in considering lack of defence diligence - The accused knew well in advance of trial that the statement existed and that it contained something relevant to the animosity theory of the defence - The fact that the defence did not obtain disclosure of the statement prior to or during trial did not affect the fairness of the trial - See paragraphs 26 to 52.

Criminal Law - Topic 4684

Procedure - Judgments and reasons for judgment - Reasons for judgment - Sufficiency of - [See Criminal Law - Topic 4353.1 ].

Cases Noticed:

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322, refd to. [para. 2].

R. v. Burns (R.H.), [1994] 1 S.C.R. 656; 165 N.R. 374; 42 B.C.A.C. 161; 67 W.A.C. 161, refd to. [para. 23].

R. v. R.E.M., [2008] 3 S.C.R. 3; 380 N.R. 47; 260 B.C.A.C. 40; 439 W.A.C. 40; 2008 SCC 51, refd to. [para. 23].

R. v. J.F., [2003] O.A.C. Uned. 301; 177 C.C.C.(3d) 1 (C.A.), dist. [para. 24].

R. v. Johnston (R.T.), [2005] O.A.C. Uned. 285; 2005 CarswellOnt 2607 (C.A.), refd to. [para. 24].

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161, refd to. [para. 32].

R. v. Taillefer (B.), [2003] 3 S.C.R. 307; 313 N.R. 1; 2003 SCC 70, appld. [para. 35].

R. v. Dixon (S.), [1998] 1 S.C.R. 244; 222 N.R. 243; 166 N.S.R.(2d) 241; 498 A.P.R. 241, appld. [para. 37].

R. v. Paterson (D.R.) (1998), 102 B.C.A.C. 200; 166 W.A.C. 200; 122 C.C.C.(3d) 254 (C.A.), refd to. [para. 40].

R. v. Illes (M.), [2008] 3 S.C.R. 134; 380 N.R. 238; 260 B.C.A.C. 285; 439 W.A.C. 285; 2008 SCC 57, refd to. [para. 47].

Counsel:

Richard C.C. Peck, Q.C., and N. Harris, for the appellant;

Fred Tischler, for the respondent.

This appeal was heard on March 17, 2011, at Vancouver, British Columbia, before Low, D. Smith and Hinkson, JJ.A., of the British Columbia Court of Appeal. In written reasons by Low, J.A., the Court delivered the following judgment, dated July 28, 2011.