R. v. MacIntosh,

• Jurisdiction: Nova Scotia
• Judge: Hamilton, Beveridge and Bryson, JJ.A.
• Neutral Citation: 2011 NSCA 111
• Citation: (2011), 310 N.S.R.(2d) 274 (CA),2011 NSCA 111,359 DLR (4th) 594,281 CCC (3d) 291,[2011] CarswellNS 843,[2011] NSJ No 660 (QL),100 WCB (2d) 143,310 NSR (2d) 274,983 APR 274,310 NSR(2d) 274,(2011), 310 NSR(2d) 274 (CA),310 N.S.R.(2d) 274,[2011] NS.J. No 660 (QL),983 A.P.R. 274,359 D.L.R. (4th) 594
• Date: 08 June 2011
• Court: Court of Appeal of Nova Scotia (Canada)

R. v. MacIntosh (E.F.) (2011), 310 N.S.R.(2d) 274 (CA);

    983 A.P.R. 274

MLB headnote and full text

Temp. Cite: [2011] N.S.R.(2d) TBEd. DE.017

Ernest Fenwick MacIntosh (appellant) v. Her Majesty the Queen (respondent)

(CAC 338534; CAC 333361; 2011 NSCA 111)

Indexed As: R. v. MacIntosh (E.F.)

Nova Scotia Court of Appeal

Hamilton, Beveridge and Bryson, JJ.A.

December 8, 2011.

Summary:

MacIntosh was charged on three informations with a total of 43 counts of sexual offences against nine complainants in the 1970s. The first information was laid in 1995 and the remaining two in 2001. At the time, MacIntosh was living in India. The Crown sought extradition. MacIntosh was returned to Canada. MacIntosh sought an order prohibiting the Provincial Court from proceeding with the informations.

The Nova Scotia Supreme Court, in a decision reported at (2008), 266 N.S.R.(2d) 121; 851 A.P.R. 121, dismissed the application. MacIntosh appealed the dismissal and asked the Court of Appeal to stay the preliminary inquiry pending the determination of the appeal.

The Nova Scotia Court of Appeal, per Bateman, J.A., in a decision reported at (2008), 268 N.S.R.(2d) 131; 857 A.P.R. 131, dismissed the application. The appeal proceeded.

The Nova Scotia Court of Appeal, in a decision reported at (2008), 72 N.S.R.(2d) 286; 869 A.P.R. 286, dismissed the appeal. MacIntosh applied for a stay of proceedings under ss. 7 and 11(b) of the Charter, asserting unreasonable pre-charge and post-charge delay.

The Nova Scotia Supreme Court, in a decision reported at (2010), 289 N.S.R.(2d) 224; 916 A.P.R. 224, dismissed the application. The trial proceeded on 26 counts regarding three complainants.

The Nova Scotia Supreme Court, in a decision reported at (2010), 292 N.S.R.(2d) 355; 925 A.P.R. 355, convicted MacIntosh on 13 counts and acquitted him on 13 counts. The accused appealed from the dismissal of his application for a stay and from the convictions.

The Nova Scotia Court of Appeal, finding an infringement of the accused's right to be tried within a reasonable period under s. 11(b) of the Charter, allowed the appeal, entering a stay of proceedings. Were it necessary to do so, the court would have quashed the convictions and ordered a new trial.

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.

Civil Rights - Topic 3130

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Delay (Charter, s. 7) - MacIntosh was charged with sexual offences that occurred in the 1970s - The first information was laid in 1995 and the remaining two in 2001 - At the time, MacIntosh was living in India - The Crown sought extradition - MacIntosh was returned to Canada - A trial was scheduled for April 2010 - MacIntosh's application for a stay of proceedings under ss. 7 and 11(b) of the Charter on the basis of unreasonable pre-charge and post-charge delay was dismissed - The Nova Scotia Court of Appeal, finding an infringement of the accused's right to be tried within a reasonable period under s. 11(b) of the Charter, allowed the appeal, entering a stay of proceedings - However, the court found that there was no error in the application judge's analysis and conclusion that MacIntosh had not established on a balance of probabilities that his right to make full answer and defence was prejudiced by the lengthy pre-charge delay - That ground of appeal was dismissed - See paragraphs 13 to 27.

Civil Rights - Topic 3133

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right of accused to make full answer and defence - [See Civil Rights - Topic 3130 and fourth Civil Rights - Topic 3270 ].

Civil Rights - Topic 3264

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Denial of right - [See Civil Rights - Topic 3265 ].

Civil Rights - Topic 3265

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Within a reasonable time - What constitutes - MacIntosh was charged with sexual offences that occurred in the 1970s - The first information was laid in 1995 and the remaining two in 2001 - At the time, MacIntosh was living in India - The Crown sought extradition - MacIntosh was returned to Canada - A trial was scheduled for April 2010 - MacIntosh's application for a stay of proceedings under s. 11(b) of the Charter on the basis of unreasonable post-charge delay was dismissed - The Nova Scotia Court of Appeal allowed the appeal, entering a stay of proceedings - Having found that the application judge had erred in law in not applying the correct principles, it fell to the court to do so - The length of the delay was 14 years, an inordinately long time - MacIntosh had not waived any of the time periods - The inherent time requirements were around four years, including the requirement for extradition - MacIntosh's inaction in not turning himself in and the delay in making fundamental decisions as to mode of election pending proper disclosure from the Crown were not attributable to MacIntosh - The vast majority of the delay was caused by the Crown in delaying pursuit of extradition - This was unexplained - Further, there was a "virtually irrebutable" inference of prejudice or the risk of prejudice - MacIntosh was subject to physical abuse while incarcerated and, even after release, was on very restrictive bail conditions - The delay and circumstances here constituted an infringement of s. 11(b) - The minimum remedy was a stay of proceedings - See paragraphs 106 and 107.

Civil Rights - Topic 3266

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Obligation to avoid unreasonable delay (incl. expediting hearing) - [See second and seventh Civil Rights - Topic 3270 ].

Civil Rights - Topic 3267

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Onus on accused - [See fourth and sixth Civil Rights - Topic 3270 ].

Civil Rights - Topic 3270

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Evidence of prejudice and causes of delay - [See Civil Rights - Topic 3265 ].

Civil Rights - Topic 3270

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Evidence of prejudice and causes of delay - MacIntosh was charged with sexual offences that occurred in the 1970s - The first information was laid in 1995 and the remaining two in 2001 - At the time, MacIntosh was living in India - The Crown sought extradition - MacIntosh was returned to Canada - A trial was scheduled for April 2010 - MacIntosh's application for a stay of proceedings under s. 11(b) of the Charter on the basis of unreasonable post-charge delay was dismissed - The Nova Scotia Court of Appeal allowed the appeal, entering a stay of proceedings - The application judge concluded that the period of time from the laying of charges to extradition (1995 to 2007) was attributable to MacIntosh because an accused who was aware that he would face charges if he returned to the country, yet chose not to return, could not seek to have that time counted against the Crown - This was not correct - The application judge wrongly placed an onus on MacIntosh to turn himself in - In the context of a right to trial within a reasonable time, there was no duty on the accused to bring himself or herself to trial - While actions by an accused that caused or contributed to delay were assessed in examining the overall delay, inaction was not - Inaction could be considered when assessing the degree of prejudice - Here, the extradition package was ready in 2003, but was not forwarded to India until 2006 - That delay was unexplained - There was uncontradicted evidence that the Crown knew in 1996 that MacIntosh would not return voluntarily - There was no evidence as to why it took years to move ahead - No assessment was undertaken by the application judge about this delay beyond attributing it to MacIntosh - The application judge erred in law in doing so - See paragraphs 28 to 74.

Civil Rights - Topic 3270

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Evidence of prejudice and causes of delay - MacIntosh was charged with sexual offences that occurred in the 1970s - The first information was laid in 1995 and the remaining two in 2001 - At the time, MacIntosh was living in India - The Crown sought extradition - MacIntosh was returned to Canada - A trial was scheduled for April 2010 - MacIntosh's application for a stay of proceedings under s. 11(b) of the Charter on the basis of unreasonable post-charge delay was dismissed - The Nova Scotia Court of Appeal allowed the appeal, entering a stay of proceedings - Regarding the period from extradition (June 2007) to trial (October 2009), the application judge erred in attributing 11 months of the delay to MacIntosh - This attribution resulted from misapprehending the evidence which led to a plainly erroneous attribution - The disclosure requests made by MacIntosh from June 2007 to May 2008 were not, as the application judge indicated, "simply seeking material with respect to motions [MacIntosh] wanted to bring to challenge the extradition process and a request for a second bail hearing" - Delay while waiting for the Crown to comply with basic disclosure obligations was attributable to the Crown - After MacIntosh was returned to Canada, over 12 months of the delay to trial was attributable to the Crown - The remainder of the time was attributable to the inherent time requirements of the case - See paragraphs 75 to 86.

Civil Rights - Topic 3270

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Evidence of prejudice and causes of delay - MacIntosh was charged with sexual offences that occurred in the 1970s - The first information was laid in 1995 and the remaining two in 2001 - At the time, MacIntosh was living in India - The Crown sought extradition - MacIntosh was returned to Canada - A trial was scheduled for April 2010 - MacIntosh's application for a stay of proceedings under s. 11(b) of the Charter on the basis of unreasonable post-charge delay was dismissed - The Nova Scotia Court of Appeal allowed the appeal, entering a stay of proceedings - The application judge failed to apply the proper principles in his assessment of prejudice in light of the overall length of delay - He placed an evidentiary burden on MacIntosh to establish that his fair trial rights were impacted by the post-charge delay - While he accepted that it was "probable" that the delay would affect the quality of some evidence, he then simply said, "The trial judge will assess that evidence" - He should have considered the impact of the overall delay on MacIntosh's ability to make full answer and defence in the context of the risk of prejudice on his ability to lead evidence, cross-examine or otherwise raise a defence - See paragraphs 87 to 95.

Civil Rights - Topic 3270

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Evidence of prejudice and causes of delay - MacIntosh was charged with sexual offences that occurred in the 1970s - The first information was laid in 1995 and the remaining two in 2001 - At the time, MacIntosh was living in India - The Crown sought extradition - MacIntosh was returned to Canada - A trial was scheduled for April 2010 - MacIntosh's application for a stay of proceedings under s. 11(b) of the Charter on the basis of unreasonable post-charge delay was dismissed - The Nova Scotia Court of Appeal allowed the appeal, entering a stay of proceedings - In concluding that the post-charge delay did not justify a stay of proceedings, the application judge explained that the "suggested prejudice to [MacIntosh] at trial is nebulous" - It was accepted that MacIntosh suffered little or no prejudice to his liberty and security interests while in India - However, he suffered considerably once he was returned to Canada, including physical abuse while he was incarcerated, extensive and "wildly inaccurate" reporting about the allegations and very restrictive bail conditions once he was on interim release - This was not prejudice that derived "from the laying of the charges rather than delay" - The incarceration and restrictive bail conditions caused significant prejudice to MacIntosh's liberty and security interests which continued, unnecessarily, throughout the 12 month delay caused by the Crown's failure to comply with disclosure obligations - See paragraphs 96 to 99.

Civil Rights - Topic 3270

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Evidence of prejudice and causes of delay - MacIntosh was charged with sexual offences that occurred in the 1970s - The first information was laid in 1995 and the remaining two in 2001 - At the time, MacIntosh was living in India - The Crown sought extradition - MacIntosh was returned to Canada - A trial was scheduled for April 2010 - MacIntosh's application for a stay of proceedings under s. 11(b) of the Charter on the basis of unreasonable post-charge delay was dismissed - The Nova Scotia Court of Appeal allowed the appeal, entering a stay of proceedings - Ordinarily, the balancing of competing interests in considering whether a violation of the right to trial within a reasonable period of time had been infringed was entitled to deference - However, here, the application judge failed to identify and apply the correct legal principles - Most notable was his insistence that MacIntosh was responsible for the "unfortunate delay" - Further, the application judge required MacIntosh to prove actual prejudice caused by the post-charge delay - This was the correct approach where an accused sought a stay of proceedings based on pre-charge delay - While it was also correct to say that an accused had the overall burden of persuasion to establish that his or her right to trial within a reasonable period of time had been infringed with respect to post-charge delay, that did not mean they had the burden of establishing actual prejudice to their ability to make full answer and defence - A risk of prejudice was enough - See paragraphs 100 to 102.

Civil Rights - Topic 3270

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Evidence of prejudice and causes of delay - MacIntosh was charged with sexual offences that occurred in the 1970s - The first information was laid in 1995 and the remaining two in 2001 - At the time, MacIntosh was living in India - The Crown sought extradition - MacIntosh was returned to Canada - A trial was scheduled for April 2010 - MacIntosh's application for a stay of proceedings under s. 11(b) of the Charter on the basis of unreasonable post-charge delay was dismissed - The Nova Scotia Court of Appeal allowed the appeal, entering a stay of proceedings - In light of the very lengthy delay from the laying of the charges to trial, the inference was plainly there to be drawn that MacIntosh would be prejudiced, or there was at least a risk of prejudice in meeting the case to be advanced by the Crown - Even taking into account the increased time inherent in the case due to inaction by MacIntosh in returning to Canada, the length of the delay was extraordinary, particularly in light of the already lengthy pre-charge delay - In cases where there had already been such a delay, there needed to be an added sensitivity and urgency in bringing an accused to trial - There was no such urgency exhibited by the Crown here - The Crown had not proceeded with due diligence - See paragraphs 103 to 105.

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - [See Civil Rights - Topic 3265 ].

Criminal Law - Topic 128

General principles - Rights of accused - Right to make full answer and defence - [See Civil Rights - Topic 3130 and fourth Civil Rights - Topic 3270 ].

Criminal Law - Topic 4377

Procedure - Charge or directions - Jury or judge alone - Directions regarding credibility of witnesses - MacIntosh faced 26 charges of historical (dating to the 1970s) sexual offences (indecent assault and gross indecency) relating to three complainants - The trial court convicted the accused on 13 of the charges involving the complainants JAH and DRS - The Nova Scotia Court of Appeal, having entered a stay of proceedings due to a breach of s. 11(b) of the Charter (unreasonable delay), also indicated that the convictions could not stand - Regarding the counts involving DRS, the court agreed with the Crown that, even taking into account all of the apparent misapprehensions of the evidence by the trial judge, the verdicts were not unreasonable - A properly instructed trier of fact, acting reasonably, could have convicted - However, the trial judge had misapprehended the evidence and had cited that evidence in his reasoning as to why he had resolved the issue of credibility in favour of the Crown and against MacIntosh - The trial judge was mistaken as to the substance and importance of critical evidence - Those errors played an essential part in the reasoning process that led to conviction - In those circumstances, the convictions could not stand - If the court had not entered a stay of proceedings, a new trial would have been ordered on all of the counts on which MacIntosh was convicted - See paragraphs 140 to 172.

Criminal Law - Topic 4377

Procedure - Charge or directions - Jury or judge alone - Directions regarding credibility of witnesses - MacIntosh faced 26 charges of historical (dating to the 1970s) sexual offences (indecent assault and gross indecency) relating to three complainants - The trial court convicted the accused on 13 of the charges - The Nova Scotia Court of Appeal, having entered a stay of proceedings due to a breach of s. 11(b) of the Charter (unreasonable delay), also indicated that the convictions could not stand - Although the trial judge referred to the general principle that a trier of fact could accept some, all, or none of a witness' testimony, he made no mention of the equally important principle that, if a witness was found to have deliberately lied or had made assertions that were demonstrably untrue, that could impact on a trier's assessment of the entirety of the witness' testimony - If a witness asserted that certain detailed criminal acts happened which the trial judge found had not happened and the witness was not mistaken or confused, few alternatives were left - The witness had deliberately lied, demonstrated a marked disregard for the truth or was patently unreliable - On any of those interpretations, the trier of fact had to be alive to the impact that such a finding had on whether the Crown had proven other allegations by that witness - Here, the trial judge did not do so, indicating a failure to apply the proper principles in assessing the credibility of a key Crown witness - That failure did not occur in isolation, but was combined with other misapprehensions of the evidence - If the court had not entered a stay of proceedings, a new trial would have been ordered on all of the counts on which MacIntosh was convicted - See paragraphs 173 to 177.

Criminal Law - Topic 4486

Procedure - Trial - Stay of proceedings - [See Civil Rights - Topic 3265 ].

Criminal Law - Topic 4950

Appeals - Indictable offences - New trials - Grounds - Misdirection by trial judge - General - [See both Criminal Law - Topic 4377 ].

Criminal Law - Topic 4955

Appeals - Indictable offences - New trials - Grounds - Cumulative effect of errors - [See second Criminal Law - Topic 4377 ].

Criminal Law - Topic 4957

Appeals - Indictable offences - New trials - Grounds - Misapprehension of evidence - MacIntosh faced 26 charges of historical (dating to the 1970s) sexual offences (indecent assault and gross indecency) relating to three complainants - The trial court convicted the accused on 13 of the charges involving the complainants JAH and DRS - The Nova Scotia Court of Appeal, having entered a stay of proceedings due to a breach of s. 11(b) of the Charter (unreasonable delay), also indicated that the convictions could not stand - Regarding the counts involving JAH, whose evidence the trial judge accepted, the trial judge had misapprehended the very evidence that he had relied on to make his credibility finding - Further, he failed to consider evidence relevant to a material issue, thereby misapprehending the evidence before him - Nor had he addressed the issue of the potential for collusion as between JAH and DRS, which was evident - The Crown had not invoked the curative proviso (s. 686(3)(1)(b)(iii) of the Criminal Code), but even if it could be invoked to save the conviction, the court would have declined to do so - If the court had not entered a stay of proceedings, a new trial would have been ordered on all of the counts on which MacIntosh was convicted - See paragraphs 108 to 139.

Criminal Law - Topic 4957.1

Appeals - Indictable offences - New trials - Grounds - Failure to consider evidence - [See Criminal Law - Topic 4957 ].

Criminal Law - Topic 5037

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - Evidentiary error - [See Criminal Law - Topic 4957 ].

Criminal Law - Topic 5404

Evidence and witnesses - Witnesses - Credibility - [See both Criminal Law - Topic 4377 ].

Evidence - Topic 4022

Witnesses - General - Credibility - Considerations - [See both Criminal Law - Topic 4377 ].

Cases Noticed:

R. v. Morin, [1992] 1 S.C.R. 771; 134 N.R. 321; 53 O.A.C. 241, appld. [para. 10].

R. v. Askov, Hussey, Melo and Gugliotta, [1990] 2 S.C.R. 1199; 113 N.R. 241; 42 O.A.C. 81, appld. [para. 10].

R. v. R.E.W. (2011), 298 N.S.R.(2d) 154; 945 A.P.R. 154; 2011 NSCA 18, refd to. [para. 28].

Barker v. Wingo (1972), 407 U.S. 514 (S.C.), refd to. [para. 32].

R. v. Godin (M.) (2009), 389 N.R. 1; 252 O.A.C. 377; 2009 SCC 26, appld. [para. 43].

Rice v. Connolly, [1966] 2 All E.R. 649, refd to. [para. 47].

Thomson Newspapers Ltd. v. Director of Investigation and Research, Combines Investigation Act et al., [1990] 1 S.C.R. 425; 106 N.R. 161; 39 O.A.C. 161, refd to. [para. 47].

R. v. Beason (1983), 7 C.C.C.(3d) 20 (Ont. C.A.), refd to. [para. 48].

R. v. Graham (S.) (2009), 284 N.S.R.(2d) 16; 901 A.P.R. 16; 2009 NSSC 196, dist. [para. 62].

R. v. White (H.S.) and Sennet (S.) (1997), 99 O.A.C. 1 (C.A.), dist. [para. 62].

R. v. R.E.M., [2004] B.C.T.C. 987 (S.C.), affd. (2007), 238 B.C.A.C. 176; 393 W.A.C. 176; 2007 BCCA 154, dist. [para. 62].

United States v. Deleon (1983), 710 F.2d 1218 (7th Cir., D.C. Cir.), refd to. [para. 67].

Doggett v. United States (1992), 112 S.Ct. 2686; 505 U.S. 647 (S.C.), refd to. [para. 68].

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. 79].

R. v. R.E.M. (2011), 299 N.S.R.(2d) 258; 947 A.P.R. 258; 2011 NSCA 8, refd to. [para. 100].

R. v. Rahey, [1987] 1 S.C.R. 588; 75 N.R. 81; 78 N.S.R.(2d) 183; 193 A.P.R. 183, refd to. [para. 107].

R. v. Kporwodu (A.) et al. (2005), 196 O.A.C. 272; 75 O.R.(3d) 190 (C.A.), refd to. [para. 107].

R. v. Thomson (L.) (2009), 255 O.A.C. 268; 2009 ONCA 771, refd to. [para. 107].

R. v. Morrissey (R.J.) (1995), 80 O.A.C. 161; 97 C.C.C.(3d) 193 (C.A.), refd to. [para. 110].

R. v. Lohrer (A.W.) (2004), 329 N.R. 1; 208 B.C.A.C. 1; 344 W.A.C. 1; 2004 SCC 80, refd to. [para. 113].

R. v. Schrader (A.B.) (2001), 190 N.S.R.(2d) 142; 594 A.P.R. 142; 2001 NSCA 20, refd to. [para. 113].

R. v. S.D.D. (2005), 233 N.S.R.(2d) 49; 739 A.P.R. 49; 2005 NSCA 71, refd to. [para. 113].

R. v. D.D.S. (2006), 242 N.S.R.(2d) 235; 770 A.P.R. 235; 2006 NSCA 34, refd to. [para. 113].

R. v. Harper, [1982] 1 S.C.R. 2; 40 N.R. 255, refd to. [para. 138].

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; 50 C.R.(5th) 68; 2002 SCC 26, refd to. [para. 138].

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351, refd to. [para. 143].

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. 144].

R. v. R.W., [1992] 2 S.C.R. 122; 137 N.R. 214; 54 O.A.C. 164, refd to. [para. 145].

R. v. François (L.), [1994] 2 S.C.R. 827; 169 N.R. 241; 73 O.A.C. 161, refd to. [para. 145].

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. 145].

R. v. Beaudry (A.), [2007] 1 S.C.R. 190; 356 N.R. 323; 2007 SCC 5, refd to. [para. 146].

R. v. Sinclair (T.) (2011), 418 N.R. 282; 268 Man.R.(2d) 255; 520 W.A.C. 255; 2011 SCC 40, refd to. [para. 148].

R. v. P.E.C. (2005), 332 N.R. 293; 211 B.C.A.C. 48; 349 W.A.C. 48; 2005 SCC 19, refd to. [para. 177].

R. v. J.G.C., [1997] O.A.C. Uned. 253 (C.A.), refd to. [para. 177]

R. v. Haché (A.J.) (1999), 175 N.S.R.(2d) 297; 534 A.P.R. 297; 136 C.C.C.(3d) 285 (C.A.), refd to. [para. 177].

Counsel:

Brian Casey and David Bright, Q.C., for the appellant;

Jennifer A. MacLellan, for the respondent.

This appeal was heard at Halifax, Nova Scotia, on June 8, 2011, by Hamilton, Beveridge and Bryson, JJ.A., of the Nova Scotia Court of Appeal. On December 8, 2011, Beveridge, J.A., delivered the following reasons for judgment for the court.