R. v. MacNeil (G.W.), (1998) 171 N.S.R.(2d) 343 (CA)

• Judge: Glube, C.J.N.S., Hallett and Bateman, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: November 25, 1998
• Jurisdiction: Nova Scotia
• Citations: (1998), 171 N.S.R.(2d) 343 (CA)

R. v. MacNeil (G.W.) (1998), 171 N.S.R.(2d) 343 (CA);

    519 A.P.R. 343

MLB headnote and full text

Temp. Cite: [1999] N.S.R.(2d) TBEd. JA.023

Gary Wayne MacNeil (appellant) v. Her Majesty The Queen (respondent)

(C.A.C. No. 145389)

Indexed As: R. v. MacNeil (G.W.)

Nova Scotia Court of Appeal

Glube, C.J.N.S., Hallett and

Bateman, JJ.A.

November 25, 1998.

Summary:

The accused was convicted of touching a boy under the age of 14 for a sexual pur­pose contrary to s. 151 of the Criminal Code. The Crown applied under s. 753 for a declaration that the accused was a dangerous offender and should be sentenced to an indeterminate period of incarceration.

The Nova Scotia Provincial Court, in a judgment reported 164 N.S.R.(2d) 380; 491 A.P.R. 380, found the accused to be a dan­gerous offender and sentenced him to an indetermi­nate period of detention. The accused appealed against conviction and sentence and sought to admit fresh evi­dence on the appeal (i.e., two witnesses who did not testify at trial).

The Nova Scotia Court of Appeal denied leave to admit the fresh evidence and dis­missed the appeal.

Criminal Law - Topic 4865

Appeals - Indictable offences - Grounds of appeal - Verdict unreasonable or un­sup­ported by evidence - The accused appealed his conviction for a sexual offence against a young male, submitting, inter alia, that the trial judge should not have accepted the evidence of the young witnesses as credible - The Nova Scotia Court of Ap­peal held that the verdict, based on all of the evidence, was not un­reason­able - The trial judge properly cautioned him­self respecting the testimony of children - Credibility was a question of fact and was appropriately determined by a trial judge where he alone had the op­portunity to see and hear the witnesses - The court must show deference to a trial judge when deal­ing with credibility - See paragraphs 11 to 20.

Criminal Law - Topic 4970

Appeals - Indictable offences - Powers of Court of Appeal - Receiving fresh evi­dence - General - An accused convicted of a sexual offence and found to be a dangerous offender appealed against con­viction and sentence - The accused sought to admit into evidence the testimony of two witnesses who did not testify at trial - The accused did not state who the witnesses were or what they would say - The Nova Scotia Court of Appeal denied leave to admit the evidence, stating that "without any indication of what the evi­dence might be, the court cannot evaluate its relevance, whether it is capable of belief and whether it could have affected the outcome of the trial. These are all factors which the court is obliged to con­sider before granting a motion to allow fresh evidence." - See paragraphs 21 to 25.

Criminal Law - Topic 5950

Sentence - Sexual interference with young person - [See Criminal Law - Topic 6558 ].

Criminal Law - Topic 6552

Dangerous offenders - Detention - Pro­tection of the public - Pattern of repetitive behaviour - [See Criminal Law - Topic 6558 ].

Criminal Law - Topic 6558

Dangerous offenders - Detention - Pro­tection of the public - Dangerous sexual offender - The accused was found guilty of touching a young boy for a sexual purpose (Criminal Code, s. 151) - Accused 51 to 55 years of age - Abused as a child - Institutionalized most of his life - Functioned at "mentally deficient" range of intelligence - Accused a homo­sexual paedophile who preyed on young boys - Previous convictions for indecent assault, gross indecency, sexual assault, etc. - History of aggressive anti-social behaviour - Committed offence months after release from four years' incarceration for previous sexual assault on a boy - Accused refused treatment, denying that he had a problem - Two psychiatrists opined that there was little hope of controlling the accused's sexual tendencies - The trial judge declared the accused to be a danger­ous offender (Cri­minal Code, s. 753), given the pattern of repetitive behav­iour of sexual offences against young boys and the pres­ent likeli­hood that he would reoffend and cause injury or psychological damage to others by failing to restrain his behav­iour - The trial judge imposed an indeter­minate period of detention where the accused could not be properly treated within a determinate period authorized by law - The Nova Scotia Court of Appeal held that the trial judge did not err.

Criminal Law - Topic 6575

Dangerous offenders - Detention - Sen­tencing - Sentence - [See Criminal Law - Topic 6558 ].

Practice - Topic 8820

Appeals - Duty of appellate court re find­ings of credibility by trial judge - [See Criminal Law - Topic 4865 ].

Cases Noticed:

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

R. v. Corbett, [1975] 2 S.C.R. 275; 1 N.R. 258, refd to. [para. 12].

R. v. François (L.), [1994] 2 S.C.R. 827; 169 N.R. 241; 73 O.A.C. 161, refd to. [para. 12].

R. v. R.W., [1992] 2 S.C.R. 122; 137 N.R. 214; 54 O.A.C. 164, refd to. [para. 14].

R. v. Noble (S.J.), [1997] 1 S.C.R. 874; 210 N.R. 321; 89 B.C.A.C. 1; 145 W.A.C. 1, refd to. [para. 18].

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181, refd to. [para. 24].

Counsel:

Gary Wayne MacNeil, on his own behalf;

Kenneth W.F. Fiske, Q.C., for the respon­dent.

This appeal was heard on November 16, 1998, before Glube, C.J.N.S., Hallett and Bateman, JJ.A., of the Nova Scotia Court of Appeal.

On November 25, 1998, Glube, C.J.N.S., delivered the following judgment for the Court of Appeal.