R. v. Napope (L.J.), 2015 ABCA 27

• Judge: Bielby, O'Ferrall and Brown, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: November 27, 2014
• Citations: 2015 ABCA 27;(2015), 593 A.R. 349

R. v. Napope (L.J.) (2015), 593 A.R. 349; 637 W.A.C. 349 (CA)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. JA.174

Her Majesty the Queen (respondent) v. Larry Joseph Napope (appellant)

(1303-0306-A; 2015 ABCA 27)

Indexed As: R. v. Napope (L.J.)

Alberta Court of Appeal

Bielby, O'Ferrall and Brown, JJ.A.

January 22, 2015.

Summary:

Napope appealed from his conviction by a judge sitting without a jury of touching for a sexual purpose of the body of a person under 16 years of age. The key issue at trial was "whether or not Mr. Napope had a sexual relationship with [the complainant] prior to her 16th birthday, knowing that she was less than 16 at the time". Napope argued that the trial judge erred in admitting a videotaped statement given to the police by the complainant and the complainant's sworn testimony at the preliminary inquiry, under the principled exception to the hearsay rule (necessary and sufficiently reliable). The complainant had recanted critical parts of the evidence in her trial testimony. See [2013] A.R. Uned. 669. Napope also argued that the trial judge misapprehended material evidence, being what the complainant's father told Napope's mother about the complainant's age, and the evidence of a neighbour to the Napopes as to when he began to observe the complainant living at the Napope residence. Finally, Napope argued that he was denied procedural fairness because, after the trial judge admitted the hearsay evidence for one purpose, he applied it for another, and because one of the reasons given for his decision to convict had not been raised at trial.

The Alberta 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 687

Sexual offences - Evidence - Hearsay - Napope was convicted by a judge sitting without a jury of touching for a sexual purpose of the body of a person under 16 years of age - The trial judge had admitted a videotaped statement given to the police by the complainant and the complainant's sworn testimony at the preliminary inquiry, under the principled exception to the hearsay rule (necessary and sufficiently reliable) - The complainant had recanted critical parts of the evidence in her trial testimony - On appeal, Napope's counsel argued that the trial was unfair because the judge decided to convict based on evidence he had earlier indicated he would not consider, with the result that Napope's trial counsel could have been misled about the case he had to answer - She submitted that the trial judge misled defence counsel by stating in his oral voir dire decision that he would not consider any portion of the hearsay evidence relating to Napope's assaults on the complainant nor of his drug trafficking activities, but then went on to use this evidence in his ultimate assessment of the complainant's credibility - She submitted that trial counsel might have led other evidence, and certainly would have made different credibility arguments, if he had understood that this evidence would be taken into account in any way - The Alberta Court of Appeal rejected the argument - The trial judge's ruling was delivered in the context that counsel knew he might well look at the hearsay evidence of assault and drug trafficking as bearing on credibility in making his ultimate decision - Further, the Crown referred to Napope's assaults and drug trafficking as bearing on the complainant's credibility during final submissions, without protest by defence counsel - Indeed, in an attempt to undermine the complainant's credibility, defence counsel himself referred to her hearsay evidence of Napope's assaults on her - See paragraphs 63 to 66.

Criminal Law - Topic 687

Sexual offences - Evidence - Hearsay - [See fifth Evidence - Topic 1527 ].

Criminal Law - Topic 706

Sexual offences - Particular offences - Sexual interference with young person - Napope was convicted by a judge sitting without a jury of touching for a sexual purpose of the body of a person under 16 years of age - The trial judge found that the complainant began living with Napope in his home in mid-January 2011 when she was 15 years old - The night they met she told him she would soon be turning 18 - Their relationship evolved into a sexual one before her 16th birthday in June 2011 - On appeal, Napope argued that the trial judge misapprehended material evidence, being what the complainant's father told Napope's mother about the complainant's age, and the evidence of a neighbour to the Napopes as to when he began to observe the complainant living at the Napope residence, and this led him to err in concluding that he had no reasonable doubt that the complainant was under 16 when he engaged in a sexual relationship with her - The Alberta Court of Appeal rejected the argument and dismissed the appeal - See paragraphs 5 to 8 and 52 to 62.

Criminal Law - Topic 4866

Appeals - Indictable offences - Grounds of appeal - Misapprehension of evidence - The Alberta Court of Appeal stated that "The standard of review of a trial judge's decision to admit hearsay evidence is that of correctness ... . Findings of facts that ground a trial judge's admissibility determination are entitled to deference from appellate courts. Absent an error in principle, a trial judge's determination of threshold reliability is entitled to deference on appeal ... . Absent palpable and overriding error, a determination of credibility is one of fact, not law, and is entitled to deference ... . When considering whether a verdict is unreasonable based upon credibility considerations, an appellate court should not intervene unless the record reveals an error of law or principle, or a clear and manifest error in the appreciation of evidence ... . A misapprehension of evidence may arise where the trial judge failed to consider relevant evidence, made 'a mistake as to the substance of the evidence', or failed to give proper effect to the evidence ... . Misapprehension of evidence may also arise where the trial judge misdirected himself or herself on the law with a resulting misapprehension of the legal impact of the evidence. However, not every alleged misapprehension results in a miscarriage of justice ... . Rather, the standard is stringent: those errors must have formed an essential part in the trial judge's reasoning process ... . If the stringent standard is met, and there has been a miscarriage of justice, then a new trial is warranted regardless of whether the evidence was capable of supporting a conviction, or the verdict was reasonable ... . Where a fundamental procedural error has been made, possibly depriving the accused of a fair trial, a typical standard of review analysis is not appropriate. Rather, such an error is fatal to the proceedings and must result in a new trial." - See paragraphs 21 to 25.

Criminal Law - Topic 4957

Appeals - Indictable offences - New trials - Grounds - Misapprehension of evidence - [See Criminal Law - Topic 4866 ].

Criminal Law - Topic 5037

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - Evidentiary error - [See Criminal Law - Topic 4866 and fourth Evidence - Topic 1527 ].

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 4866 ].

Evidence - Topic 1527

Hearsay rule - Hearsay rule exceptions and exclusions - General - Where admission of hearsay necessary and evidence reliable - [See Criminal Law - Topic 4866 ].

Evidence - Topic 1527

Hearsay rule - Hearsay rule exceptions and exclusions - General - Where admission of hearsay necessary and evidence reliable - The Alberta Court of Appeal reviewed the law respecting the principled exception to the hearsay rule - See paragraphs 21 to 34.

Evidence - Topic 1527

Hearsay rule - Hearsay rule exceptions and exclusions - General - Where admission of hearsay necessary and evidence reliable - Napope appealed from his conviction by a judge sitting without a jury of touching for a sexual purpose of the body of a person under 16 years of age - Napope argued that the trial judge erred in admitting two pieces of evidence, namely a videotaped statement given to the police by the complainant and the complainant's sworn testimony at the preliminary inquiry, under the principled exception to the hearsay rule (necessary and sufficiently reliable) - The complainant recanted the evidence at trial - Napope argued that the trial judge erred in admitting the entirety of the complainant's police interview because some of the evidence it contained was otherwise available - The Alberta Court of Appeal rejected the argument - See paragraph 36.

Evidence - Topic 1527

Hearsay rule - Hearsay rule exceptions and exclusions - General - Where admission of hearsay necessary and evidence reliable - Napope appealed from his conviction by a judge sitting without a jury of touching for a sexual purpose of the body of a person under 16 years of age - The key issue at trial was "whether or not Mr. Napope had a sexual relationship with [the complainant] prior to her 16th birthday, knowing that she was less than 16 at the time" - Napope argued that the trial judge erred in admitting two pieces of evidence, namely a videotaped statement given to the police by the complainant and the complainant's sworn testimony at the preliminary inquiry, under the principled exception to the hearsay rule (necessary and sufficiently reliable) - Napope argued that "necessity" was not established regarding both types of hearsay evidence because, inter alia, she directly testified to the same events at trial - While she later recanted, it was arguably unnecessary to admit portions of the hearsay evidence under the principled exception to the hearsay rule because it was already before the trial judge in the form of her evidence-in-chief, either directly or by way of her adopting as true portions of her preliminary inquiry testimony - What faced him was a credibility issue, given the subsequent recantation, not necessity - The Alberta Court of Appeal dismissed the appeal - "To the extent that it may have been unnecessary given the complainant's testimony to the same effect at trial, the effect was inconsequential. The direct evidence, prior to the recantation, was identical to the content in the hearsay evidence, and thus by relying on the hearsay evidence, the trial judge was merely relying on the same evidence that was otherwise available to him and could be relied on to reach the same conclusion. Therefore, even if the admission of portions of the hearsay evidence was not strictly necessary, any such admission has not resulted in a miscarriage of justice; see s 686(1)(b)(iii) Criminal Code of Canada." - See paragraphs 38, 39 and 50.

Evidence - Topic 1527

Hearsay rule - Hearsay rule exceptions and exclusions - General - Where admission of hearsay necessary and evidence reliable - Napope appealed from his conviction by a judge sitting without a jury of touching for a sexual purpose of the body of a person under 16 years of age - The key issue at trial was "whether or not Mr. Napope had a sexual relationship with [the complainant] prior to her 16th birthday, knowing that she was less than 16 at the time" - Napope argued that the trial judge erred in admitting two pieces of evidence, namely a videotaped statement given to the police by the complainant and the complainant's sworn testimony at the preliminary inquiry, under the principled exception to the hearsay rule (necessary and sufficiently reliable) - Napope argued that "necessity" was not established regarding both types of hearsay evidence because, inter alia, she directly testified to the same events at trial - While she later recanted, it was arguably unnecessary to admit portions of the hearsay evidence under the principled exception to the hearsay rule because it was already before the trial judge in the form of her evidence-in-chief, either directly or by way of her adopting as true portions of her preliminary inquiry testimony - What faced him was a credibility issue, given the subsequent recantation, not necessity - Further, the evidence was not reliable - The Alberta Court of Appeal dismissed the appeal - The court observed that "... to accept defence counsel's argument on the admission of the hearsay evidence would be to accept that a recanting witness can once again defeat the public's interest in prosecuting criminal behaviour, and hold the court hostage by simply refusing to answer questions at trial about the accuracy of statements earlier made" - See paragraphs 37 to 51.

Practice - Topic 8800

Appeals - General principles - Duty of appellate court regarding findings of fact by a trial judge - [See Criminal Law - Topic 4866 ].

Practice - Topic 8820

Appeals - General principles - Duty of appellate court re findings of credibility by trial judge - [See Criminal Law - Topic 4866 ].

Cases Noticed:

R. v. P.S.B. (2004), 222 N.S.R.(2d) 26; 701 A.P.R. 26; 183 C.C.C.(3d) 399; 2004 NSCA 25, refd to. [para. 21].

R. v. Youvarajah (Y.), [2013] 2 S.C.R. 720; 447 N.R. 47; 308 O.A.C. 284; 2013 SCC 41, refd to. [para. 21].

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. 21].

R. v. François (L.), [1994] 2 S.C.R. 827; 169 N.R. 241; 73 O.A.C. 161; 91 C.C.C.(3d) 289, refd to. [para. 22].

R. v. Cardinal (T.D.), [2007] A.R. Uned. 11; 2007 ABCA 43, refd to. [para. 22].

R. v. R.W., [1992] 2 S.C.R. 122; 137 N.R. 214; 54 O.A.C. 164; 74 C.C.C.(3d) 134, refd to. [para. 22].

R. v. Morrissey (R.J.) (1995), 80 O.A.C. 161; 22 O.R.(3d) 514; 97 C.C.C.(3d) 193 (C.A.), refd to. [para. 23].

R. v. Sinclair (T.), [2011] 3 S.C.R. 3; 418 N.R. 282; 268 Man.R.(2d) 225; 520 W.A.C. 225; 2011 SCC 40, refd to. [para. 23].

R. v. César-Nelson, 2014 QCCA 1129, refd to. [para. 23].

R. v. Mann (R.S.) (2014), 357 B.C.A.C. 87; 611 W.A.C. 87; 310 C.C.C.(3d) 143; 2014 BCCA 231, refd to. [para. 23].

R. v. Carr (J.J.) (2010), 493 A.R. 223; 502 W.A.C. 223; 2010 ABCA 386, refd to. [para. 24].

R. v. Lohrer (A.W.), [2004] 3 S.C.R. 732; 329 N.R. 1; 208 B.C.A.C. 1; 344 W.A.C. 1; 2004 SCC 80, refd to. [para. 24].

R. v. Harris (N.A.), [2014] A.R. Uned. 34; 2014 ABCA 61, refd to. [para. 24].

R. v. Pappas (B.J.) (2012), 533 A.R. 294; 557 W.A.C. 294; 2012 ABCA 221, affd. [2013] 3 S.C.R. 452; 450 N.R. 37; 561 A.R. 228; 594 W.A.C. 228; 2013 SCC 56, refd to. [para. 24].

Fraser v. Fraser (1994), 157 A.R. 98; 77 W.A.C. 98 (C.A.), refd to. [para. 25].

R. v. Graham (D.G.) (2007), 404 A.R. 300; 394 W.A.C. 300; 2007 ABCA 153, refd to. [para. 25].

R. v. Al-Fartossy (S.) (2007), 425 A.R. 336; 418 W.A.C. 336; 2007 ABCA 427, refd to. [para. 25].

R. v. Khan, [1990] 2 S.C.R. 531; 113 N.R. 53; 41 O.A.C. 353; 59 C.C.C.(3d) 92, refd to. [para. 26].

R. v. Smith (A.L.), [1992] 2 S.C.R. 915; 139 N.R. 323; 55 O.A.C. 321; 75 C.C.C.(3d) 257, refd to. [para. 26].

R. v. Khelawon (R.), [2006] 2 S.C.R. 787; 355 N.R. 267; 220 O.A.C. 338; 2006 SCC 57, refd to. [para. 27].

R. v. W.J.F., [1999] 3 S.C.R. 569; 247 N.R. 62; 180 Sask.R. 161; 205 W.A.C. 161; 138 C.C.C.(3d) 1, refd to. [para. 28].

R. v. Devine (R.A.), [2008] 2 S.C.R. 283; 376 N.R. 297; 433 A.R. 380; 429 W.A.C. 380; 2008 SCC 36, refd to. [para. 28].

R. v. Baldree (C.), [2013] 2 S.C.R. 520; 445 N.R. 247; 306 O.A.C. 1; 2013 SCC 35, refd to. [para. 30].

R. v. Goodstoney (G.E.) (2007), 404 A.R. 60; 394 W.A.C. 60; 2007 ABCA 88, leave to appeal dismissed [2007] 3 S.C.R. iv; 380 N.R. 400; 460 A.R. 269; 463 W.A.C. 269, refd to. [para. 32].

R. v. F.J.U., [1995] 3 S.C.R. 764; 186 N.R. 365; 85 O.A.C. 321; 101 C.C.C.(3d) 97, refd to. [para. 33].

R. v. Glowatski (W.P.) (2001), 160 B.C.A.C. 127; 261 W.A.C. 127; 160 C.C.C.(3d) 525; 2001 BCCA 678, refd to. [para. 47].

R. v. K.G.B., [1993] 1 S.C.R. 740; 148 N.R. 241; 61 O.A.C. 1, refd to. [para. 51].

R. v. Dionne (J.F.) (2004), 357 A.R. 376; 334 W.A.C. 376; 193 C.C.C.(3d) 228; 2004 ABCA 400, refd to. [para. 51].

R. v. Persaud (A.R.), [1996] O.J. No. 4736 (Gen. Div.), affd. (1999), 123 O.A.C. 392 (C.A.), refd to. [para. 51].

R. v. Lambert (1974), 28 C.R.N.S. 238 (Que. C.A.), refd to. [para. 51].

R. v. Fleet (E.J.) (2001), 198 N.S.R.(2d) 228; 621 A.P.R. 228; 163 C.C.C.(3d) 177; 2001 NSCA 158, refd to. [para. 51].

Counsel:

J.C. Robb, Q.C., for the respondent;

A. Simic, for the appellant.

This appeal was heard on November 27, 2014, by Bielby, O'Ferrall and Brown, JJ.A., of the Alberta Court of Appeal, who delivered the following memorandum of judgment on January 22, 2015.