R. v. Meer (J.D.), (2015) 600 A.R. 66

• Judge: Berger, Slatter and Wakeling, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: April 17, 2015
• Citations: (2015), 600 A.R. 66;2015 ABCA 141

R. v. Meer (J.D.) (2015), 600 A.R. 66; 645 W.A.C. 66 (CA)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. AP.072

Her Majesty the Queen (respondent) v. Jonathan David Meer (appellant)

(1103-0029-A; 2015 ABCA 141)

Indexed As: R. v. Meer (J.D.)

Alberta Court of Appeal

Berger, Slatter and Wakeling, JJ.A.

April 17, 2015.

Summary:

The 48 year old accused businessman was a party to two civil suits commenced by his lawyer and the Royal Bank. In a judgment reported [2010] A.R. Uned. 847, the accused was convicted of two counts of arson, two counts of extortion, conspiracy to commit arson, conspiracy to commit extortion and conspiracy to commit an assault. The court found that over a one year period, the accused intimidated and terrorized the lawyer, a bank official and the person conducting the receivership of a company he had an interest in. The purpose was to have them abandon the claims against him. The accused directed his son and his friends to commit acts of violence and intimidation. The lawyer's summer home and his principal residence were both burned to the ground. The latter fire was set while the lawyer, his wife and his sister were in their beds. The lawyer was seriously burned and hospitalized. Windows in the homes of all three persons were broken and an unsuccessful assault attempt was made on one of them. The accused was a successful businessman who enjoyed a luxurious lifestyle. The offences were committed when business failures, and the resulting litigation, jeopardized the accused's wealth and lifestyle.

The Alberta Court of Queen's Bench, in a judgment reported (2011), 507 A.R. 365, sentenced the accused as follows: five years' imprisonment for arson, seven years' imprisonment (consecutive) for the second arson count, 3.5 years' imprisonment (concurrent) for conspiracy to commit arson, 18 months' imprisonment (consecutive) for extortion, 12 months' imprisonment (consecutive) for the second extortion count, nine months' imprisonment (concurrent) for conspiracy to commit extortion and six months' imprisonment (consecutive) for conspiracy to commit assault. After 5.5 years' credit for 2.75 years' pre-trial custody, the net sentence to be served was 9.5 years. The accused appealed his convictions, arguing that: (1) he was denied a fair trial because of incompetent representation by trial counsel; (2) spousal communications were improperly admitted into evidence; (3) the trial judge engaged in prohibited propensity reasoning; (4) the trial judge erred in conducting his own handwriting analysis without expert evidence; (5) the trial judge improperly relied on the evidence of unsavoury witnesses; (6) evidence was admitted in violation of the co-conspirator's exception to the hearsay rule; (7) the trial judge's reasons for judgment were insufficient; and (8) the verdicts were unreasonable.

The Alberta Court of Appeal, Berger, J.A., dissenting, dismissed the appeal.

Civil Rights - Topic 4620.1

Right to counsel - General - Right to effective assistance by counsel - The accused's trial counsel (Juneja) was his fifth lawyer - The accused knew that Juneja was facing disciplinary proceedings related to dishonesty and incompetency respecting real estate matters - The Law Society suspended Juneja, but permitted him to represent the accused - A custodian was appointed - The accused and trial judge were so advised - The accused insisted that Juneja continue to represent him - The Crown unsuccessfully applied to have Juneja removed - The trial proceeded - The accused was convicted - The accused obtained new counsel and appealed - Competence of counsel was not raised as a ground of appeal - Three years later, allegations of incompetence were first made respecting decisions made or not made at trial by Juneja (e.g, failure to identify or raise the issue of "spousal privilege") - The accused refused to waive privilege, refusing to disclose exactly what advice he received - The Alberta Court of Appeal held that the accused failed to prove incompetence - Generally, privilege had to be waived to prove incompetence - The Crown was prevented from challenging the accused's bald assertions about what he knew, what happened at trial, what instructions he gave Juneja, and why some trial decisions were made - It was not now open to the accused to argue that the trial judge, in spite of his insistence on Juneja representing him, should have removed Juneja as counsel - The accused was "precluded from raising the 'incompetence of counsel' argument because he is attempting to change a tactical decision he made at trial, he has not waived privilege, some of the issues are moot, and the inadequate record fails to prove incompetence" - Alternatively, the record did not disclose incompetence, much less a level of incompetence that would affect the verdict - The accused had a fair trial and there was no miscarriage of justice - See paragraphs 12 to 66.

Civil Rights - Topic 4620.1

Right to counsel - General - Right to effective assistance by counsel - A convicted accused appealed on the ground of incompetence representation at trial by counsel - The accused had successfully resisted a Crown attempt to remove the lawyer as counsel because of disciplinary action taken by the Law Society that involved the lawyer's honesty and competence in real estate transactions - The Alberta Court of Appeal stated that "Canadian criminal law is quite generous in allowing a convicted person to overcome errors and omissions made at trial. A failure to object to a jury charge is not fatal ... A failure to object to an inflammatory jury address by the Crown is not a bar to a successful appeal ... A failure to recognize inadmissible evidence or impermissible lines of testimony can be overlooked ... This is one reason why 'incompetence of counsel' arguments are relatively rare in Canada, as compared to in the United States. But the same is not true of tactical decisions made by the accused at trial. Such decisions can easily 'come to be seen as erroneous in the cold light of a conviction' ... If an accused elects to mount his defence in a particular way, because he perceives that route to be most advantageous to him, he will not be allowed to resile from that choice on appeal ... Having resisted attempts to disqualify his counsel, the convicted appellant is not entitled to a second trial to see if a different tactic will work better." - See paragraphs 31 to 32.

Civil Rights - Topic 4620.1

Right to counsel - General - Right to effective assistance by counsel - The Alberta Court of Appeal stated that "'Incompetence of counsel' is best analyzed as a component of the right to a fair trial, and the right to make full answer and defence to the charges ... An accused who waives the right to counsel, or refuses to have the assistance of counsel, is still entitled to a fair trial. A demonstration of incompetence is obviously a necessary foundation to this argument, but proving incompetence in the abstract is insufficient ... 'The standard of counsel competence to which an accused is entitled is therefore grounded in the results : was there a miscarriage of justice resulting from procedural unfairness or lack of "reliability of the trial's result" brought about by a level of representation that was below reasonable professional judgment.'" - An accused must establish a link between the demonstrated incompetence of counsel and prejudice resulting in a miscarriage of justice - The court stated that "The legal test for 'incompetence of counsel' is strict ... There is a strong presumption that counsel is competent, and that he or she made decisions during the trial for good reason ... Defence counsel must often choose between alternative approaches to evidence or issues, and it is not sufficient to say (with hindsight) that some other counsel might have made a different choice." - See paragraphs 43 to 44.

Criminal Law - Topic 4860

Appeals - Indictable offences - Grounds of appeal - Question of law or error of law - [See Practice - Topic 8820 ].

Criminal Law - Topic 4865

Appeals - Indictable offences - Grounds of appeal - Verdict unreasonable or unsupported by evidence - [See Practice - Topic 8820 ].

Criminal Law - Topic 5045

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - What constitutes a substantial wrong or miscarriage of justice - [See second Evidence - Topic 4181 ].

Criminal Law - Topic 5505

Evidence and witnesses - Evidence of accomplices, co-defendants, informants, etc. - General principles - The Alberta Court of Appeal stated that "Hearsay evidence is presumptively inadmissible, but the rule is subject to numerous exceptions. One well-established exception is the 'co-conspirator's exception'. The exception is engaged where a conspiracy is proven beyond a reasonable doubt, and it is proven on a balance of probabilities based on evidence directly admissible against the accused that the accused is likely a participant in the conspiracy ... Once that threshold is reached, acts and declarations in furtherance of the conspiracy done or made by one of the conspirators are admissible against any co-conspirators." - The court dismissed the accused's conviction appeal for error respecting application of the co-conspirator's hearsay rule exception, stating that "There was ample evidence on which the trial judge could find a conspiracy beyond a reasonable doubt, and find on a balance of probabilities that the appellant was involved. That made the declarations by the co-conspirators admissible in this trial. The appellant has not demonstrated any reviewable error on this point." - See paragraphs 93 to 97.

Evidence - Topic 4181

Witnesses - Privilege - Husband and wife - General - Under s. 4(3) of the Canada Evidence Act, a spouse was not compellable to disclose any communication to his or her spouse during the marriage - However, a spouse who testified was compellable to answer any question about what they saw or knew, apart from communications with the other spouse - Spousal privilege extended only to the recipient spouse, not a communicating spouse - The Alberta Court of Appeal stated that "The privilege is engaged when the spouse testifies in court. The spousal privilege is a testimonial privilege, and does not make the underlying information privileged ... It extends to communications between the spouses prior to trial that are intercepted under the Criminal Code provisions ... However, it does not extend to communications which the spouses knew or could not reasonably believe were confidential ... Thus, communications between the spouses at a busy dinner table, or otherwise within obvious earshot of other persons, are not privileged. If the spouses communicate in public, requiring them to repeat those conversations while testifying is not within the purpose of the privilege. Disclosing communications that are already public cannot reasonably affect the marital relationship." - See paragraphs 69 to 70.

Evidence - Topic 4181

Witnesses - Privilege - Husband and wife - General - An accused appealed his convictions on the ground that the trial judge improperly admitted into evidence two privileged communications with his wife while he was incarcerated at the Remand Centre - The Alberta Court of Appeal held that since the accused and his wife knew the phone conversations were being intercepted, they were not confidential and the spousal communications privilege did not apply - In any event, privilege attached only to the recipient (wife) and the same evidence was available from other sources - The court stated that "even if the conversations should not have been put to the appellant's wife, ... there was no miscarriage of justice because the evidence was otherwise admissible. It was in fact placed on the record through the evidence of the appellant himself ... To repeat, the statements themselves are not privileged, and the appellant has no privilege; the Evidence Act grants a privilege only to the recipient spouse ... In the alternative, the exclusion from the evidence of these two brief conversations could not reasonably have made any difference in the outcome of the trial" and the court would have invoked s. 686(1)(b)(iii) of the Criminal Code to dismiss the appeal notwithstanding the error - See paragraphs 67 to 80.

Evidence - Topic 5603

Witnesses - Competency and compellability - Compellability - Particular persons - Spouses - [See both Evidence - Topic 4181 ].

Evidence - Topic 7069

Opinion evidence - Expert evidence - Particular matters - Handwriting analysis - Who was the author of entries in a daytimer belonging to the accused was critical circumstantial evidence - The trial judge, without expert handwriting analysis evidence, compared the handwriting in the daytimer with an authenticated sample of the accused's handwriting, and determined that the accused was the author of the daytimer entries - The accused appealed his conviction on the ground that the trial judge erred in conducting his own analysis without the benefit of expert evidence - The Alberta Court of Appeal held that although it might be better to have expert evidence, a judge had the ability "to make findings about the authorship of handwriting without expert evidence, through a comparison of the disputed writing to a known sample ... Trial judges routinely examine pieces of real evidence, and it is artificial to say this turns them into 'witnesses'. There is also no requirement for trial judges to give the parties notice that they propose to examine and weigh all the evidence on the record. The procedure and analysis adopted by the trial judge does not reveal any reviewable error." - See paragraphs 84 to 88.

Practice - Topic 8800

Appeals - Duty of appellate court regarding findings of fact by a trial judge - [See Practice - Topic 8820 ].

Practice - Topic 8820

Appeals - General principles - Duty of appellate court re findings of credibility by trial judge - The Alberta Court of Appeal stated that "Trial judges have considerable leeway in their appreciation of the evidence and the proper inferences to be drawn therefrom, in their assessment of whether the Crown's case is made out, overall, beyond a reasonable doubt ... A trial judge's findings of credibility and of fact are entitled to great deference, and should only be interfered with on appeal if they are unreasonable, or in other words if they display palpable and overriding error ... Questions of law, including the interpretation of the Criminal Code, are reviewed for correctness ... While the trial judge's factual findings are entitled to deference, the application of a legal standard to the facts of the case is a question of law ... To decide if a verdict is unreasonable, an appellate court must determine whether the verdict is one that a properly instructed jury or a judge could reasonably have rendered. Under the test in R. v. R.P. [SCC] ... a verdict of a trial judge: (a) is unreasonable if it is not one that a properly instructed jury or a judge could reasonably have rendered, or (b) may be unreasonable if it is based on an inference or finding that: (i) is plainly contradicted by the evidence relied on by the trial judge in support of that inference or finding, or (ii) is shown to be incompatible with evidence that has not otherwise been contradicted or rejected by the trial judge." - See paragraphs 8 to 10.

Cases Noticed:

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; 2000 SCC 15, refd to. [para. 8].

F.H. v. McDougall, [2008] 3 S.C.R. 41; 380 N.R. 82; 260 B.C.A.C. 74; 439 W.A.C. 74; 2008 SCC 53, refd to. [para. 8].

R. v. R.W., [1992] 2 S.C.R. 122; 137 N.R. 214; 54 O.A.C. 164, refd to. [para. 8].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 8].

R. v. Gagnon (L.), [2006] 1 S.C.R. 621; 347 N.R. 355; 2006 SCC 17, refd to. [para. 8].

R. v. Shepherd (C.), [2009] 2 S.C.R. 527; 391 N.R. 132; 331 Sask.R. 306; 460 W.A.C. 306; 2009 SCC 35, refd to. [para. 9].

R. v. Goulet (T.L.) (2011), 510 A.R. 315; 527 W.A.C. 315; 2011 ABCA 230, refd to. [para. 9].

R. v. Araujo (A.) et al., [2000] 2 S.C.R. 992; 262 N.R. 346; 143 B.C.A.C. 257; 235 W.A.C. 257; 2000 SCC 65, refd to. [para. 9].

R. v. R.P., [2012] 1 S.C.R. 746; 429 N.R. 361; 2012 SCC 22, refd to. [para. 10].

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351, refd to. [para. 10].

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181, refd to. [para. 14].

R. v. W.W. and I.W. (1995), 84 O.A.C. 241; 25 O.R.(3d) 161; 100 C.C.C.(3d) 225 (C.A.), refd to. [para. 14].

R. v. Widdifield - see R. v. W.W. and I.W.

R. v. Fraser (A.) (2011), 306 N.S.R.(2d) 201; 968 A.P.R. 201; 273 C.C.C.(3d) 276; 2011 NSCA 70, refd to. [para. 14].

R. v. Aulakh (B.S.) (2012), 326 B.C.A.C. 177; 554 W.A.C. 177; 295 C.C.C.(3d) 315; 2012 BCCA 340, refd to. [para. 14].

R. v. Dunbar (A.A.) et al. (2003), 191 B.C.A.C. 223; 314 W.A.C. 223; 2003 BCCA 667, leave to appeal refused (2004), 332 N.R. 396; 211 B.C.A.C. 320; 349 W.A.C. 320 (S.C.C.), refd to. [para. 14].

R. v. R.W.A. (2005), 203 O.A.C. 56; 202 C.C.C.(3d) 60 (C.A.), refd to. [para. 26].

R. v. Archer - see R. v. R.W.A.

R. v. G.D.B., [2000] 1 S.C.R. 520; 253 N.R. 201; 261 A.R. 1; 225 W.A.C. 1; 2000 SCC 22, refd to. [para. 27].

R. v. Swain, [1991] 1 S.C.R. 933; 125 N.R. 1; 47 O.A.C. 81, refd to. [para. 29].

R. v. Wolkins (R.D.) (2005), 229 N.S.R.(2d) 222; 725 A.P.R. 222; 192 C.C.C.(3d) 378; 2005 NSCA 2, refd to. [para. 29].

R. v. Garofoli et al. (1988), 27 O.A.C. 1; 41 C.C.C.(3d) 97 (C.A.), refd to. [para. 31].

R. v. F.F.B., [1993] 1 S.C.R. 697; 148 N.R. 161; 120 N.S.R.(2d) 1; 332 A.P.R. 1, refd to. [para. 31].

R. v. A.T. (2015), 330 O.A.C. 360; 2015 ONCA 65, refd to. [para. 31].

R. v. Bero (C.) (2000), 137 O.A.C. 336; 151 C.C.C.(3d) 545 (C.A.), refd to. [para. 31].

R. v. G.D.B. (1999), 232 A.R. 307; 195 W.A.C. 307; 1999 ABCA 104, refd to. [para. 32].

R. v. Bevan and Griffith, [1993] 2 S.C.R. 599; 154 N.R. 245; 64 O.A.C. 165, refd to. [para. 32].

R. v. White (H.S.) and Sennets (S.) (1997), 99 O.A.C. 1; 114 C.C.C.(3d) 225; 32 O.R.(3d) 722 (C.A.), refd to. [para. 32].

R. v. McAnespie (R.B.), [1993] 4 S.C.R. 501; 162 N.R. 155; 68 O.A.C. 185, refd to. [para. 32].

R. v. Biscette (S.) (1995), 169 A.R. 81; 97 W.A.C. 81; 99 C.C.C.(3d) 326 (C.A.), refd to. [para. 33].

Wentworth v. Lloyd (1864), 10 H.L. Cas. 589; 11 E.R. 1154, refd to. [para. 36].

Errico v. British Columbia Electric Railway Co., [1917] 2 W.W.R. 238; 23 B.C.R. 468 (C.A.), refd to. [para. 36].

R. v. Alcantara (J.R.) et al. (2013), 544 A.R. 379; 567 W.A.C. 379; 77 Alta. L.R.(5th) 217; 2013 ABCA 163, refd to. [para. 36].

R. v. Graham (D.) (2014), 324 O.A.C. 97; 2014 ONCA 566, refd to. [para. 36].

R. v. Styles (K.T.) (2009), 448 A.R. 339; 447 W.A.C. 339; 2009 ABCA 98, refd to. [para. 43].

R. v. L.C.B. (1996), 88 O.A.C. 81; 27 O.R.(3d) 686; 104 C.C.C.(3d) 353 (C.A.), refd to. [para. 43].

R. v. Ryan (D.) (2012), 318 Nfld. & P.E.I.R. 15; 989 A.P.R. 15; 281 C.C.C.(3d) 352; 2012 NLCA 9, refd to. [para. 43].

R. v. Prebtani (A.) (2008), 243 O.A.C. 207; 240 C.C.C.(3d) 237; 2008 ONCA 735, leave to appeal refused [2009] 2 S.C.R. viii; 400 N.R. 384; 262 O.A.C. 400, refd to. [para. 44].

R. v. T.P. (2002), 160 O.A.C. 118; 165 C.C.C.(3d) 281; 59 O.R.(3d) 577 (C.A.), refd to. [para. 44].

R. v. Short (K.J.) (2012), 399 Sask.R. 192; 552 W.A.C. 192; 2012 SKCA 85, refd to. [para. 44].

R. v. Newman (R.B.) (1993), 61 O.A.C. 267; 12 O.R.(3d) 481; 79 C.C.C.(3d) 394 (C.A.), refd to. [para. 44].

R. v. Cheng (W.M.) (2014), 360 B.C.A.C. 281; 617 W.A.C. 281; 2014 BCCA 342, refd to. [para. 44].

R. v. Seepersad (J.R.) (2005), 198 O.A.C. 33 (C.A.), leave to appeal refused [2006] 1 S.C.R. xiv; 353 N.R. 193; 217 O.A.C. 396, refd to. [para. 44].

R. v. Bjelland (J.C.), [2009] 2 S.C.R. 651; 391 N.R. 202; 460 A.R. 230; 462 W.A.C. 230; 2009 SCC 38, refd to. [para. 55].

R. v. Joanisse (R.) (1995), 85 O.A.C. 186; 102 C.C.C.(3d) 35 (C.A.), leave to appeal refused (1997), 208 N.R. 79; 99 O.A.C. 79 (S.C.C.), refd to. [para. 58].

R. v. W.E.B., [2014] 1 S.C.R. 34; [2014] N.R. Uned. 2; 2014 SCC 2, affing. [2012] O.A.C. Uned. 636; 309 C.C.C.(3d) 44; 2012 ONCA 776, refd to. [para. 62].

R. v. Siniscalchi (F.) (2010), 291 B.C.A.C. 14; 492 W.A.C. 14; 257 C.C.C.(3d) 329; 2010 BCCA 354, refd to. [para. 68].

R. v. Couture (D.R.), [2007] 2 S.C.R. 517; 364 N.R. 1; 244 B.C.A.C. 1; 403 W.A.C. 1; 2007 SCC 28, refd to. [para. 69].

Rumping v. Director of Public Prosecutions, [1964] A.C. 814; [1962] 3 All E.R. 256 (H.L.), refd to. [para. 69].

R. v. Lloyd and Lloyd, [1981] 2 S.C.R. 645; 39 N.R. 474; 64 C.C.C.(2d) 169, dist. [para. 70].

R. v. Jean and Piesinger (1979), 15 A.R. 147; 46 C.C.C.(2d) 176 (C.A.), affd. [1980] 1 S.C.R. 400; 31 N.R. 410; 20 A.R. 360, refd to. [para. 70].

R. v. Hawkins (K.R.) and Morin (C.), [1996] 3 S.C.R. 1043; 204 N.R. 241; 96 O.A.C. 81, refd to. [para. 70].

State v. Christian (2004), 841 A.2d 1158; 267 Conn. 710, refd to. [para. 70].

Parkhurst v. Lowten (1819), 2 Swans. 194; 36 E.R. 589 (Ch.), refd to. [para. 72].

A.M. v. Ryan, [1997] 1 S.C.R. 157; 207 N.R. 81; 85 B.C.A.C. 81; 138 W.A.C. 81, refd to. [para. 73].

R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; 58 N.R. 81; 60 A.R. 161, refd to. [para. 73].

R. v. Drader (A.N.) et al. (2012), 535 A.R. 185; 77 Alta. L.R.(5th) 410; 2012 ABQB 469, refd to. [para. 75].

R. v. Cunsolo (R.), [2011] O.T.C. Uned. 1349; 277 C.C.C.(3d) 435; 2011 ONSC 1349, refd to. [para. 85].

R. v. Abdi (N.) (1997), 101 O.A.C. 271; 116 C.C.C.(3d) 385; 34 O.R.(3d) 499 (C.A.), refd to. [para. 88].

R. v. Cunsolo (R.) (2014), 319 O.A.C. 278; 2014 ONCA 364, refd to. [para. 88].

R. v. Flynn (C.J.), [2010] O.A.C. Uned. 290; 2010 ONCA 424, refd to. [para. 88].

R. v. C.F. - see R. v. Flynn (C.J.)

R. v. N.C.B. (2012), 536 A.R. 26; 559 W.A.C. 26; 69 Alta. L.R.(5th) 106; 2012 ABCA 238, refd to. [para. 88].

R. v. Bolianatz - see R. v. N.C.B.

R. v. Kehler (R.A.), [2004] 1 S.C.R 328; 317 N.R. 30; 346 A.R. 19; 320 W.A.C. 19; 2004 SCC 11, refd to. [para. 90].

R. v. Khela (G.S.), [2009] 1 S.C.R. 104; 383 N.R. 279; 265 B.C.A.C. 31; 446 W.A.C. 31; 2009 SCC 4, refd to. [para. 90].

R. v. Carter, [1982] 1 S.C.R. 938; 47 N.R. 288; 46 N.B.R.(2d) 142; 121 A.P.R. 142; 67 C.C.C.(2d) 568, refd to. [para. 93].

R. v. Barrow, [1987] 2 S.C.R. 694; 81 N.R. 321; 87 N.S.R.(2d) 271; 222 A.P.R. 271; 38 C.C.C.(3d) 193, refd to. [para. 93].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 98].

R. v. M.J.E.B. (2012), 524 A.R. 213; 545 W.A.C. 213; 66 Alta. L.R.(5th) 68; 2012 ABCA 119, refd to. [para. 100].

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; 2002 SCC 26, refd to. [para. 101].

R. v. C.L.Y., [2008] 1 S.C.R. 5; 370 N.R. 284; 225 Man.R.(2d) 146; 419 W.A.C. 146; 227 C.C.C.(3d) 129; 2008 SCC 2, refd to. [para. 101].

R. v. Davis (G.N.), [1999] 3 S.C.R. 759; 248 N.R. 44; 182 Nfld. & P.E.I.R. 78; 554 A.P.R. 78, refd to. [para. 101].

R. v. Stirling (B.J.), [2008] 1 S.C.R. 272; 371 N.R. 384; 251 B.C.A.C. 62; 420 W.A.C. 62; 229 C.C.C.(3d) 257; 2008 SCC 10, refd to. [para. 101].

R. v. Melnychuk (C.E.) (2008), 432 A.R. 290; 424 W.A.C. 290; 2008 ABCA 189, refd to. [para. 101].

R. v. Dinardo (J.), [2008] 1 S.C.R. 788; 374 N.R. 198; 2008 SCC 24, refd to. [para. 101].

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. 101].

R. v. Hudson (J.N.) (1993), 88 Man.R.(2d) 150; 51 W.A.C. 150 (C.A.), refd to. [para. 108].

R. v. Carduso, [1995] O.J. No. 4410 (C.J. Prov. Div.), refd to. [para. 108].

R. v. Romanowicz (J.) (1999), 124 O.A.C. 100; 45 O.R.(3d) 506 (C.A.), refd to. [para. 120].

R. v. M.B. (2009), 251 O.A.C. 81; 192 C.R.R.(2d) 135; 2009 ONCA 524, refd to. [para. 122].

R. v. Boudreau (A.) (1987), 81 N.B.R.(2d) 148; 205 A.P.R. 148 (C.A.), refd to. [para. 137].

Statutes Noticed:

Canada Evidence Act, R.S.C. 1985, c. C-5, sect. 4(1), sect. 4(3) [para. 69].

Authors and Works Noticed:

DePrez, Anne N., Pillow Talk, Grimgribblers and Connubial Bliss: The Marital Communication Privilege (1980-1981), 56 Ind. L.J. 121, pp. 128 to 129, 131, 133 to 135 [para. 74].

Haun, Pamela A., The Marital Privilege in the Twenty-First Century (2001-2002), 32 U. Mem. L. Rev. 137, pp. 159 to 160 [para. 74].

Phipson on Evidence (18th Ed. 2013), p. 279, s. 9-25 [para. 68].

Wigmore on Evidence (3rd Ed. McNaughton Rev. 1961), vol. 8, p. 211, para. 2336 [para. 73]; s. 2227 [para. 68].

Counsel:

M.J. McGuire, for the respondent;

D.M. Knisley, for the appellant.

This appeal was heard on September 4, 2014, before Berger, Slatter and Wakeling, JJ.A., of the Alberta Court of Appeal.

On April 17, 2015, the following memorandum of judgment was filed, including the following opinions:

Slatter and Wakeling, JJ.A. - see paragraphs 1 to 110;

Berger, J.A., dissenting - see paragraphs 111 to 154.