R. v. N.P.C., 2007 ONCA 457

• Judge: Feldman, Gillese and Armstrong, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: Friday June 22, 2007
• Jurisdiction: Ontario
• Citations: 2007 ONCA 457;(2007), 225 O.A.C. 89 (CA)

R. v. N.P.C. (2007), 225 O.A.C. 89 (CA)

MLB headnote and full text

Temp. Cite: [2007] O.A.C. TBEd. JN.049

Her Majesty the Queen (respondent) v. N.P.C. (appellant)

(C25692; C41266; 2007 ONCA 457)

Indexed As: R. v. N.P.C.

Ontario Court of Appeal

Feldman, Gillese and Armstrong, JJ.A.

June 22, 2007.

Summary:

N.P.C. appealed both his convictions for five sexual offences against his step-daughters and his designation as a dangerous offender.

The Ontario Court of Appeal dismissed the appeals.

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 4351

Procedure - Charge or directions - Jury or judge alone - Direction regarding burden of proof and reasonable doubt - N.P.C. appealed his convictions for five sexual offences against his two step-daughters, asserting, inter alia, that the trial judge's direction that the jury should "feel sure of the guilt of the accused" was contrary to Cory, J.'s, assertion in R. v. Lifchus (1997 S.C.C.) that jurors should not be told to convict if they were "sure" that the accused was guilty before being given a proper definition of reasonable doubt - The Ontario Court of Appeal dismissed the appeal - The instructions were adequate and met the test of substantial compliance with the Lifchus principles for a pre-Lifchus charge - Although it would have been preferable had the judge not directed the jury that they should be "sure" of N.P.C.'s guilt without first properly defining the words "beyond a reasonable doubt", this was an isolated mistake which, considering the repeated references to reasonable doubt and the absence of other misleading terms, had not led to any serious concern that the charge was unfair or that the jury misapprehended the burden of proof - See paragraphs 24 to 33.

Criminal Law - Topic 4367

Procedure - Charge or directions - Jury or judge alone - Directions regarding separation of evidence respecting several counts - N.P.C. appealed his convictions for five sexual offences against his two step-daughters, asserting, inter alia, that the jury may have used each complainant's testimony as support for the other's - N.P.C. pointed out that the Crown had invited the jury to "consider the similarities" - The Ontario Court of Appeal dismissed the appeal - The trial judge instructed the jury to separate the evidence of each complainant - The instruction clearly required the jury to consider the questions of whether N.P.C. assaulted each step-daughter separately - Although no specific reference was made to the Crown's misstatement, the jury was told by both counsel and by the judge that they were to take the law from the judge - The instruction was adequate - See paragraphs 17 to 18.

Criminal Law - Topic 4377

Procedure - Charge or directions - Jury or judge alone - Directions regarding credibility of witnesses - N.P.C. appealed his convictions for five sexual offences against his two step-daughters, asserting, inter alia, that the charge to the jury was confusing because after stating that the evidence of each complainant had to be considered separately, the judge stated that each complainant's evidence that she did not hear or see the assaults on the other could be relevant to credibility - The Ontario Court of Appeal dismissed the appeal - The charge was neither confusing nor incorrect - Each complainant was allegedly present during many of the assaults on the other - Thus, one's testimony about what she perceived during the assaults on the other was direct evidence on the counts concerning the other - The impugned instruction reminded the jury that neither complainant had observed the other being assaulted despite being in the same room - This supported the defence theory that the complainants' evidence was not credible or reliable - See paragraph 21.

Criminal Law - Topic 4377

Procedure - Charge or directions - Jury or judge alone - Directions regarding credibility of witnesses - N.P.C. appealed his convictions for five sexual offences against his two step-daughters, asserting, inter alia, that the trial judge failed to instruct the jury on the proper use of witnesses' prior statements - The Ontario Court of Appeal dismissed the appeal - The trial judge instructed the jury that when assessing the credibility of a witness, they could consider whether the testimony was consistent within itself and whether it was consistent with the other evidence - This made it clear that any inconsistencies might be significant - The judge's failure to provide the specific instructions identified by N.P.C. was not significant in the context of the trial - Further, the fact that counsel was content at the time was a strong indication that there was no perception of unfairness or misunderstanding on the part of the jury - See paragraphs 34 to 39.

Criminal Law - Topic 4379

Procedure - Charge or directions - Jury or judge alone - Directions re evidence of character or credibility of accused - N.P.C. appealed his convictions for five sexual offences against his two step-daughters, asserting, inter alia, that the jury may have made improper use of the complainants' testimony that he had physically abused their mother - N.P.C. argued that the trial judge erred by failing to instruct the jury not to use this bad character evidence to infer that he was likely to commit the offences against his step-daughters - The Ontario Court of Appeal dismissed the appeal - The trial judge's instructions explained to the jury that it could convict only on the basis of the evidence relating to each offence charged - The instructions served the purpose of preventing the jury from inferring guilt from prior bad conduct - Further, the way in which the evidence of spousal abuse was introduced was not inflammatory - See paragraphs 19 to 23.

Criminal Law - Topic 4393

Procedure - Charge or directions - Jury or judge alone - Failure by counsel to object - Effect of - [See second Criminal Law - Topic 4377].

Criminal Law - Topic 5041

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - Where jury charge incomplete or in error - [See Criminal Law - Topic 4351 and second Criminal Law - Topic 4377].

Criminal Law - Topic 5450

Evidence and witnesses - Evidence respecting the accused - Character of accused - Jury charge - [See Criminal Law - Topic 4379].

Criminal Law - Topic 6517

Dangerous or long-term offenders - Detention (incl. common law preventive detention) - General - Appeals - Dismissal of - Where no miscarriage of justice - N.P.C. was convicted for five sexual offences against his step-daughters, declared a dangerous offender and sentenced to an indeterminate period of imprisonment - He appealed the dangerous offender designation, asserting that he was entitled to a new sentencing hearing to consider the long-term offender provisions that came into force after the original hearing - The Ontario Court of Appeal dismissed the appeal - Although the failure to consider the long-term offender provisions was an error, the evidence established that the result would have been the same had the error not occurred - N.P.C. had a truly horrendous pattern of violence and sexual violence - No substantial wrong or miscarriage of justice had occurred - See paragraphs 40 to 54.

Cases Noticed:

R. v. B.M. (1998), 115 O.A.C. 117; 130 C.C.C.(3d) 353 (C.A.), appld. [para. 17].

R. v. F.F.B. (1993), 148 N.R. 161; 120 N.S.R.(2d) 1; 332 A.P.R. 1; 79 C.C.C.(3d) 112 (S.C.C.), refd to. [para. 19].

R. v. D.M. (2000), 135 O.A.C. 365; 148 C.C.C.(3d) 273 (C.A.), dist. [para. 20].

R. v. R.M. and K.M. (1998), 113 O.A.C. 40 (C.A.), appld. [para. 23].

R. v. Lifchus (W.) (1997), 216 N.R. 215; 118 Man.R.(2d) 218; 149 W.A.C. 218; 118 C.C.C.(3d) 1 (S.C.C.), refd to. [para. 26].

R. v. Starr (R.D.) (2000), 258 N.R. 250; 148 Man.R.(2d) 161; 224 W.A.C. 161; 147 C.C.C.(3d) 449 (S.C.C.), refd to. [para. 28].

R. v. Russell (M.E.), [2000] 2 S.C.R. 731; 261 N.R. 339; 266 A.R. 379; 228 W.A.C. 379, refd to. [para. 28].

R. v. Johnson (J.J.) (2003), 308 N.R. 333; 186 B.C.A.C. 161; 306 W.A.C. 161; 177 C.C.C.(3d) 97 (S.C.C.), refd to. [para. 43].

R. v. Walker (W.R.) (2000), 137 O.A.C. 293 (C.A.), refd to. [para. 53, footnote 4].

R. v. Saddlemire (S.R.) (2007), 219 O.A.C. 259; 2007 ONCA 36, appld. [para. 54].

Counsel:

N.P.C., appellant, appearing in person (C25692);

Robert Goddard (C25692) and John Norris (C41266), for the appellant;

Alison Wheeler (C25692) and Leslie Paine (C41266), for the respondent.

These appeals were heard on February 14 and 16, 2007, by Feldman, Gillese and Armstrong, JJ.A., of the Ontario Court of Appeal. Gillese, J.A., released the following decision for the Court on June 22, 2007.