R. v. N.A., (2015) 609 A.R. 41

• Judge: Costigan, Martin and Watson, JJ.A.
• Court: Court of Appeal (Northwest Territories)
• Case Date: October 20, 2015
• Jurisdiction: Northwest Territories
• Citations: (2015), 609 A.R. 41

R. v. N.A. (2015), 609 A.R. 41; 656 W.A.C. 41 (CA)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. NO.002

Her Majesty the Queen (respondent) v. N.A. (appellant)

(A1-AP-2014-000012; 2015 NWTCA 8)

Indexed As: R. v. N.A.

Northwest Territories Court of Appeal

Costigan, Martin and Watson, JJ.A.

October 27, 2015.

Summary:

The accused was found guilty by jury on counts of indecent assault and sexual assault, relating to the period from September 27, 1980 to December 31, 1985. The complainant was the accused's son, who testified that he was abused from around age four until age nine. The accused appealed, asserting that the trial verdict was a miscarriage of justice (Criminal Code, s. 686(1)(a)(iii)). The grounds of appeal centred on alleged unfair and misleading statements to the jury made by the Crown during closing submissions. Related to this was the trial judge's decision not to declare a mistrial, but to issue corrective instructions to the jury in response to the impugned statements. The accused asserted that no such corrective instructions could have overcome the prejudice and, in any event, the instructions given by the judge did not.

The Northwest Territories 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 693

Sexual offences - Evidence - Recent fabrication of complaint - The accused was charged with counts of indecent assault and sexual assault, relating to the period from September 27, 1980 to December 31, 1985 - The complainant was the accused's son, who testified that he was abused from around age four until age nine - During the closing submissions, the Crown questioned whether it made sense that the complainant made up a story of sexual assault because he was angry at his father for being kicked out of the house and asked why the complainant would have gone through the process of making two police statements and testifying at the preliminary inquiry and trial if it were not true (the comments) - The trial judge raised concerns about the comments and issued corrective instructions - The accused appealed his conviction, asserting that the curative instructions did not overcome the prejudice and that there should have been a specific direction that the complainant's involvement in the system was not to be considered in weighing the complainant's evidence, citing R. v. Abdullah (G.) et al. (2010, Man. C.A.)) - The Northwest Territories Court of Appeal stated that "Abdullah is essentially authority for the Jeremy Bentham notion that the Courts are entitled to everyone's evidence. The argument of Crown counsel here was not inconsistent with that. It was to the effect that the jury should ask themselves why the complainant would go through the process if he had just made up this story to get back at his father for the slights asserted in cross-examination, and then later argued for the defence. This element of the Crown submissions, in our respectful view, was essentially responsive to the cross-examination and predictive of the defence argument. ... The Crown did not suggest that the participation of the complainant in the process was itself makeweight. The Crown was responding to the argument that the complainant's disclosure of what happened to him after so many years was the product of recent animosity - in other words, an argument of recent fabrication. ... the context in which the impugned conduct of the Crown arose may explain or at least diminish the impact of what might, in another situation, be prejudicial. Similarly, in R v Gahan [2014, N.B.C.A.], one looks at the language used in its context to see how the jury would appreciate the point being made. We do not see that the jury was asked to do much more than consider the logic of the defence argument." - See paragraphs 39 to 41.

Criminal Law - Topic 4375.3

Procedure - Charge or directions - Jury or judge alone - Directions regarding prior consistent statements - The accused was charged with counts of indecent assault and sexual assault, relating to the period from September 27, 1980 to December 31, 1985 - The complainant was the accused's son, who testified that he was abused from around age four until age nine - During the closing submissions, the Crown questioned whether it made sense that the complainant made up a story of sexual assault because he was angry at his father for being kicked out of the house and asked why the complainant would have gone through the process of making two police statements and testifying at the preliminary inquiry and trial if it were not true (the comments) - The trial judge raised concerns about the comments and issued corrective instructions - The accused appealed his conviction, asserting that the curative instructions did not overcome the prejudice - The accused challenged the comments on the basis that there was an indirect implication that the complainant had made prior consistent statements and prior consistent testimony at the preliminary inquiry - The Northwest Territories Court of Appeal stated that the facts as to how the complainant came forward was admissible as narrative - The likelihood that the jury thought that the complainant had been consistent in his statements and at the preliminary inquiry such as to some how fortify his current evidence was remote to the vanishing point - The court stated that "As to the words that asked why the complainant 'would go through all of that if it wasn't true?', they spoke not to consistency of statement, but to perseverance of conduct, at their highest. This was not an improper argument. The jury saw the demeanour of the complainant in the witness box. They were addressed by a defence submission about delayed and unreliable complaint. Crown counsel invited the jury to consider if the process which stretched from 2010 to the date of trial in September, 2014, involved conduct by the complainant that would be the product of a long ago dispute since overtaken by the complainant and his father living together even recently. The point might have been phrased differently, but we are unable to see the harm in it. It would be common sense for the jury to think about the same point. It was a defence point. ... generic references by Crown counsel responding to a defence argument that the post-events conduct of a complainant is not consistent with the complaint may be correct under the circumstances." - See paragraphs 42 to 44.

Criminal Law - Topic 4388

Procedure - Charge or directions - Jury or judge alone - Directions re addresses by counsel - At the accused's trial for sexual offences, the trial judge raised concerns about the comments by the Crown during closing submissions and issued corrective instructions - The accused appealed his conviction, asserting that the curative instructions did not overcome the prejudice and the trial verdict was a miscarriage of justice (Criminal Code, s. 686(1)(a)(iii)) - The Northwest Territories Court of Appeal stated that "... the central question here that ultimately determines all elements of the appeal is whether the comments were such that the jury charge by the trial judge failed to overcome any realistic prospect of prejudicial thinking by the jury. The test in s 686(1)(a)(iii) of the Code in this regard does not turn on a 'lurking doubt' as to the potential impact of arguably wrong submissions of counsel. The appeal court should consider whether it is realistic to conclude that the jury's reasoning was incurably distorted in a prejudicial manner. Not every misstatement of counsel in a jury address is sufficient wrongly to require correction and even if correction is needed the content of the correction is within the discretion of the trial judge, here being a highly experienced and attentive judge who raised the issues before counsel did." - See paragraph 34.

Criminal Law - Topic 4415

Procedure - Opening and closing addresses - Summing up - Counsel - Closing address - Respecting evidence of witnesses - [See Criminal Law - Topic 693 ].

Criminal Law - Topic 4419

Procedure - Opening and closing addresses - Summing up - Counsel - Closing address - Intemperate or improper statements - [See Criminal Law - Topic 693 and Criminal Law - Topic 4375.3 ].

Criminal Law - Topic 4420

Procedure - Opening and closing addresses - Summing up - Counsel - Closing address - Rectification of errors - [See Criminal Law - Topic 4388 ].

Criminal Law - Topic 4420

Procedure - Opening and closing addresses - Summing up - Counsel - Closing address - Rectification of errors - The accused was charged with counts of indecent assault and sexual assault, relating to the period from September 27, 1980 to December 31, 1985 - The complainant was the accused's son, who testified that he was abused from around age four until age nine - During the closing submissions, the Crown questioned whether it made sense that the complainant made up a story of sexual assault because he was angry at his father for being kicked out of the house and asked why the complainant would have gone through the process of making two police statements and testifying at the preliminary inquiry and trial if it were not true (the comments) - The trial judge raised concerns about the comments and issued corrective instructions - The accused appealed his conviction, asserting that the curative instructions did not overcome the prejudice and the trial verdict was a miscarriage of justice (Criminal Code, s. 686(1)(a)(iii)) - The Northwest Territories Court of Appeal stated that "In the end, there was no harm done in what Crown counsel said. Consequently, it was not necessary for the trial judge to give what she felt were curative instructions. Her exercise of discretion to do so as she did, accordingly, was not in itself unjust to the appellant. As for the content of what she told the jury, we are not persuaded that what she told the jury would be misunderstood and leave open a forbidden reasoning route. She told the jury in no uncertain terms not to use the comments of the Crown in the manner which is now criticized as hazardous. Assuming, without deciding that it was necessary to do so, there is no basis to intervene on this ground." - See paragraph 45.

Criminal Law - Topic 5043

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - Where address by counsel inflammatory or in error - [See Criminal Law - Topic 4388 and second Criminal Law - Topic 4420 ].

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 Criminal Law -Topic 4388 and second Criminal Law - Topic 4420 ].

Evidence - Topic 1185

Relevant facts - Relevance and materiality - Res gestae (incl. narrative) - Evidence to show context and background - [See Criminal Law - Topic 4375.3 ].

Cases Noticed:

R. v. Kusk (D.P.) (1999), 232 A.R. 270; 195 W.A.C. 270; 1999 ABCA 49, refd to. [para. 13].

R. v. Smith (P.R.) (2006), 404 A.R. 393; 394 W.A.C. 393; 2007 NWTCA 2, refd to. [para. 13].

R. v. R.T.K. (2014), 575 A.R. 51; 612 W.A.C. 51; 2014 ABCA 167, refd to. [para. 15].

R. v. T.E.M. (1996), 187 A.R. 273; 127 W.A.C. 273; 1996 ABCA 312, leave to appeal refused (1997), 216 N.R. 240; 212 A.R. 26; 168 W.A.C. 1 (S.C.C.), refd to. [para. 16].

R. v. Jaw (S.G.), [2009] 3 S.C.R. 26; 464 A.R. 149; 467 W.A.C. 149; 2009 SCC 42, refd to. [para. 25].

R. v. Brown and Murphy (1982), 41 A.R. 69; 1 C.C.C.(3d) 107 (C.A.), affd. [1985] 2 S.C.R. 273; 62 N.R. 241; 65 A.R. 158, refd to. [para. 25].

Pisani v. R., [1971] S.C.R. 738, refd to. [para. 26].

R. v. Mullings (D.) (2014), 327 O.A.C. 256; 319 C.C.C.(3d) 1; 2014 ONCA 895, refd to. [para. 26].

R. v. West (W.F.) (2010), 288 N.S.R.(2d) 293; 914 A.P.R. 293; 252 C.C.C.(3d) 23; 2010 NSCA 16, refd to. [para. 28].

R. v. Carrière (P.) (2004), 191 O.A.C. 233; 190 C.C.C.(3d) 164 (C.A.), leave to appeal dismissed (2006), 350 N.R. 193; 215 O.A.C. 398 (S.C.C.), refd to. [para. 29].

R. v. W.J.D., [2007] 3 S.C.R. 523; 369 N.R. 225; 302 Sask.R. 4; 411 W.A.C. 4; 2007 SCC 53, refd to. [para. 29].

R. v. Daley - see R. v. W.J.D.

R. v. Rodgerson (J.) (2015), 473 N.R. 1; 334 O.A.C. 1; 2015 SCC 38, refd to. [para. 29].

R. v. Mezzo, [1986] 1 S.C.R. 802; 68 N.R. 1; 43 Man.R.(2d) 161, refd to. [para. 30].

R. v. Birmingham Overseers (1861), 1 B. & S. 763, refd to. [para. 30].

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. Corbett, [1988] 1 S.C.R. 670; 85 N.R. 81, refd to. [para. 31].

R. v. Morningchild (L.G.) (2011), 510 A.R. 369; 527 W.A.C. 369; 2011 ABCA 215, refd to. [para. 31].

R. v. Forknall (P.C.) (2003), 176 B.C.A.C. 284; 290 W.A.C. 284; 172 C.C.C.(3d) 61; 2003 BCCA 43, leave to appeal refused (2004), 329 N.R. 196; 209 B.C.A.C. 159; 345 W.A.C. 1 (S.C.C.), refd to. [para. 32].

R. v. Merceus, 2014 QCCA 1766, leave to appeal denied [2015] SCCA No. 10, refd to. [para. 32].

R. v. James (W.A.) et al. (2007), 251 N.S.R.(2d) 255; 802 A.P.R. 255; 216 C.C.C.(3d) 490; 2007 NSCA 19, affd. [2009] 1 S.C.R. 146; 383 N.R. 329; 273 N.S.R.(2d) 388; 872 A.P.R. 388; 2009 SCC 5, refd to. [para. 33].

R. v. Vermette, [1988] 1 S.C.R. 985; 84 N.R. 296; 14 Q.A.C. 161, refd to. [para. 33].

R. v. Hubbert (1975), 29 C.C.C.(2d) 279 (Ont. C.A.), affd. [1977] 2 S.C.R. 267; 15 N.R. 139, refd to. [para. 33].

Canadian Broadcasting Corp. v. Dagenais et al., [1994] 3 S.C.R. 835; 175 N.R. 1; 76 O.A.C. 81, refd to. [para. 33].

R. v. Suzack (C.V.) (2000), 128 O.A.C. 140; 141 C.C.C.(3d) 449 (C.A.), leave to appeal denied (2001), 270 N.R. 193; 150 O.A.C. 197 (S.C.C.), refd to. [para. 33].

R. v. Khan (1998), 126 C.C.C.(3d) 353 (Man. C.A.), refd to. [para. 35].

R. v. Welsh (J.) (2013), 304 O.A.C. 201; 296 C.C.C.(3d) 483; 2013 ONCA 190, leave to appeal denied (2013), 469 N.R. 398 (S.C.C.), refd to. [para. 35].

R. v. Gray (B.F.) (2012), 522 A.R. 374; 544 W.A.C. 374; 2012 ABCA 51, leave to appeal denied (2012), 439 N.R. 394 (S.C.C.), refd to. [para. 36].

R. v. MacKay (K.D.) (2004), 241 Sask.R. 238; 2004 SKCA 24, affd. [2005] 3 S.C.R. 607; 343 N.R. 398; 275 Sask.R. 40; 365 W.A.C. 40; 2005 SCC 75, refd to. [para. 37].

R. v. Sangster (H.A.L.) (2009), 337 Sask.R. 191; 464 W.A.C. 191; 2009 SKCA 99, refd to. [para. 37].

R. v. Barnes (J.) (1999), 117 O.A.C. 371 (C.A.), refd to. [para. 37].

R. v. Hawkins (H.J.) (2011), 298 N.S.R.(2d) 22; 945 A.P.R. 22; 265 C.C.C.(3d) 472; 2011 NSCA 6, refd to. [para. 38].

R. v. Abdullah (G.) et al. (2010), 258 Man.R.(2d) 89; 499 W.A.C. 89; 259 C.C.C.(3d) 193; 2010 MBCA 79, refd to. [para. 40].

R. v. F.E.E. (2011), 286 O.A.C. 109; 282 C.C.C.(3d) 552; 2011 ONCA 783, refd to. [para. 41].

R. v. Gahan (T.J.) (2014), 418 N.B.R.(2d) 104; 1087 A.P.R. 104; 2014 NBCA 18, refd to. [para. 41].

R. v. Caesar (J.) (2015), 588 A.R. 392; 626 W.A.C. 392; 2015 NWTCA 4, refd to. [para. 44].

Counsel:

Kindra Lakusta, for the respondent;

Charles. B. Davison, for the appellant.

This appeal was heard on October 20, 2015, by Costigan, Martin and Watson, JJ.A., of the Northwest Territories Court of Appeal. The following memorandum of judgment of the court was filed at Yellowknife, Northwest Territories, on October 27, 2015.