R. v. McDonald (R.J.), 2007 ABCA 53

• Judge: Côté, Paperny and Slatter, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: February 08, 2007
• Citations: 2007 ABCA 53;(2007), 412 A.R. 188 (CA)

R. v. McDonald (R.J.) (2007), 412 A.R. 188 (CA);

      404 W.A.C. 188

MLB headnote and full text

Temp. Cite: [2007] A.R. TBEd. JN.056

Her Majesty the Queen (appellant) v. Roland Jason McDonald (respondent)

(0603-0199-A; 2007 ABCA 53)

Indexed As: R. v. McDonald (R.J.)

Alberta Court of Appeal

Côté, Paperny and Slatter, JJ.A.

February 8, 2007.

Summary:

The Crown appealed the accused's acquittal on charges of unlawful confinement and sexual assault of his former common law partner.

The Alberta Court of Appeal allowed the appeal and ordered a new trial.

Evidence - Topic 511

Presentation of evidence - Rebuttal evidence - Criminal cases - The accused and his sister were involved in a fight - Both were charged with aggravated assault - A police officer testified at that trial that the sister had explained to him that she was under family pressure not to testify against the accused and that she would not testify against him in a negative way out of loyalty - In the present case, the accused was charged with unlawful confinement and sexual assault of his former common law partner - The accused asserted that the sexual intercourse was consensual - The sister testified as to the accused's and victim's conduct prior to the events which were consistent with consent - The Crown applied under s. 11 of the Canada Evidence Act to prove the prior oral statements allegedly made by the sister (regarding her unwillingness to testify against her brother) - During cross-examination, the sister denied having made the statement - The Crown applied to enter rebuttal evidence to show the sister's bias - The trial judge dismissed the application and acquitted the accused - The trial judge did not believe the accused's account of the events, but given the corroborating evidence from the sister, he had a reasonable doubt as to the accused's guilt - The Alberta Court of Appeal allowed an appeal and ordered a new trial - The Crown was not interested in "what happened at other trials" but rather was attempting to prove the mental state or motivations of the sister in this trial - The Crown was entitled to call this evidence to show the bias of the sister - It was not obvious that, if the trial judge had considered the tendered evidence of the sister's bias, the result would have inevitably been the same.

Cases Noticed:

R. v. Krause, [1986] 2 S.C.R. 466; 71 N.R. 61, refd to. [para. 11].

Marthaller v. Landsdowne Equity Venture Ltd. (1997), 200 A.R. 226; 146 W.A.C. 226; 52 Alta. L.R.(3d) 329 (C.A.), refd to. [para. 11].

Attorney General v. Hitchcock (1847), 1 Ex. 91; 16 L.J. Ex. 259; 154 E.R. 38, refd to. [para. 12].

R. v. Finnessey (1906), 11 O.L.R. 338; 10 C.C.C. 347, refd to. [para. 12].

R. v. A.S. (2002), 159 O.A.C. 89; 165 C.C.C.(3d) 426 (C.A.), refd to. [para. 12].

R. v. Mohammed (V.A.) (1991), 72 Man.R.(2d) 39 (Q.B.), affd. (1992), 83 Man.R.(2d) 162; 36 W.A.C. 162 (C.A.), refd to. [para. 12].

Anderson v. Harding (1985), 3 C.P.C.(2d) 87 (Ont. Dist. Ct.), refd to. [para. 12].

R. v. D.R., H.R. and D.W., [1996] 2 S.C.R. 291; 197 N.R. 321; 144 Sask.R. 81; 124 W.A.C. 81, refd to. [para. 12].

R. v. Starr (R.D.), [2000] 2 S.C.R. 144; 258 N.R. 250; 148 Man.R.(2d) 161; 224 W.A.C. 161; 2000 SCC 40, refd to. [para. 18].

R. v. Harper, [1982] 1 S.C.R. 2; 40 N.R. 255, refd to. [para. 18].

R. v. Vezeau, [1977] 2 S.C.R. 277; 8 N.R. 235; 28 C.C.C.(2d) 81, refd to. [para. 19].

R. v. Ahenakew (S.D.), [2006] 4 W.W.R. 27; 269 Sask.R. 166; 357 W.A.C. 166; 200 C.C.C.(3d) 527; 2005 SKCA 93, refd to. [para. 19].

Counsel:

J.A. Bowron, for the appellant;

L.L. Garcia, for the respondent.

This appeal was heard and decided on February 8, 2007, by Côté, Paperny and Slatter, JJ.A., of the Alberta Court of Appeal. The following memorandum of judgment was filed on February 22, 2007.