R. v. Niedermier (B.T.), (2005) 207 B.C.A.C. 171 (CA)

• Judge: Rowles, Hall and Levine, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: January 13, 2005
• Jurisdiction: British Columbia
• Citations: (2005), 207 B.C.A.C. 171 (CA);2005 BCCA 15

R. v. Niedermier (B.T.) (2005), 207 B.C.A.C. 171 (CA);

    341 W.A.C. 171

MLB headnote and full text

Temp. Cite: [2005] B.C.A.C. TBEd. JA.029

Regina (respondent) v. Barry Thomas Niedermier (appellant)

(CA029702; 2005 BCCA 15)

Indexed As: R. v. Niedermier (B.T.)

British Columbia Court of Appeal

Rowles, Hall and Levine, JJ.A.

January 13, 2005.

Summary:

The accused was convicted by a jury of four counts of unlawful confinement, one count of sexual assault, one count of aggravated assault and one count of assault with a weapon. The accused appealed, submitting that (1) the trial judge erred in failing to give the jury a limiting instruction that evidence of similar bad acts by the accused could not be used to conclude that the accused was the type of person who would commit the offences charged and (2) the trial judge erred in instructing the jury that the defence of honest but mistaken belief of fact, as it applied to unlawful confinement, was subject to the same limitations as the defence applied to sexual assault.

The British Columbia Court of Appeal dismissed the appeal with the exception of ordering a new trial on one unlawful confinement conviction. Respecting the latter conviction, the trial judge erred in instructing the jury that the provisions of s. 273.2 of the Criminal Code, concerning limitations on the defence of mistake of fact as it applied to sexual assaults, also applied to a charge of unlawful confinement.

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 1450.3

Unlawful confinement, imprisonment or forcible seizure - Elements of (incl. intention or mens rea) - The British Columbia Court of Appeal referred to the following statement defining unlawful confinement: "physical restraint, contrary to the wishes of the person restrained, but to which the victim submits unwillingly, thereby depriving the person of his or her liberty to move from one place to another, is required in order to constitute unlawful confinement. Such confinement need not be by way of physical application of bindings." - Whether there was a confinement without authority was objective - The lack of consent to being confined was subjective - See paragraphs 42 to 48.

Criminal Law - Topic 1450.5

Unlawful confinement, imprisonment or forcible seizure - Jury charge - The accused was charged with unlawfully confining four different women on separate occasions - The trial judge instructed the jury that the provisions of s. 273.2 of the Criminal Code, which limited the defence of mistake of fact as it applied to sexual assaults, also applied to a charge of unlawful confinement - The British Columbia Court of Appeal held that the limitations of s. 273.2 did not apply to unlawful confinement - The trial judge erred in failing to instruct the jury that an honest, but mistaken belief in consent provided a defence - On the one count where the defence had an air of reality, a new trial was ordered - On the remaining three counts (no air of reality to defence), the error in the jury charge was meaningless and the court applied the curative proviso of s. 686(1)(b)(iii) of the Criminal Code to dismiss the conviction appeals - See paragraphs 63 to 75.

Criminal Law - Topic 4367

Procedure - Charge or directions - Jury or judge alone - Directions regarding separation of evidence respecting several counts - The accused was convicted by a jury of four counts of unlawful confinement, one count of sexual assault, one count of aggravated assault and one count of assault with a weapon - There were four female complainants - The accused appealed, submitting that the trial judge erred in failing to give the jury a limiting instruction that evidence of similar bad acts by the accused could not be used as to conclude that the accused was the type of person who would commit the offences charged - The trial judge had previously refused to admit the evidence of each complainant as similar fact evidence because the evidence lacked sufficient probative value to outweigh its prejudicial effect - The British Columbia Court of Appeal dismissed this ground of appeal - The jury were repeatedly reminded that the accused's bad character could not be used to determine guilt or innocence and that the evidence of one complainant could not be used to determine guilt or innocence on the charges respecting the other complainants - The court held that the trial judge's failure to specifically instruct the jury to ignore the similarities in the complainants' evidence did not result in an unfair trial - Such a direction would have confused the jury and actually emphasized the similarities - See paragraphs 30 to 40.

Criminal Law - Topic 4379

Procedure - Charge or directions - Jury or judge alone - Directions re evidence of character or credibility of accused - [See Criminal Law - Topic 4367 ].

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 1450.5 ].

Cases Noticed:

R. v. L.B.; R. v. M.A.G. (1997), 102 O.A.C. 104; 116 C.C.C.(3d) 481 (C.A.), refd to. [para. 28].

R. v. Rarru (H.S.) (No. 3), [1996] 2 S.C.R. 165; 197 N.R. 310; 77 B.C.A.C. 14; 126 W.A.C. 14; 107 C.C.C.(3d) 53, refd to. [para. 34].

R. v. Gratton (1985), 7 O.A.C. 190; 18 C.C.C.(3d) 462 (C.A.), leave to appeal refused [1985] 1 S.C.R. viii; 60 N.R. 234; 11 O.A.C. 144, refd to. [para. 44].

R. v. Tremblay (1997), 117 C.C.C.(3d) 86 (Que. C.A.), refd to. [para. 45].

R. v. Gough (1985), 7 O.A.C. 17; 18 C.C.C.(3d) 453 (C.A.), refd to. [para. 48].

R. v. Pete (H.G.) (1998), 119 B.C.A.C. 161; 194 W.A.C. 161; 131 C.C.C.(3d) 233 (C.A.), refd to. [para. 52].

Director of Public Prosecutions v. Morgan, [1975] 2 All E.R. 347 (H.L.), refd to. [para. 63].

R. v. Tolson (1889), 23 Q.B.D. 168, refd to. [para. 64].

R. v. Pappajohn, [1980] 2 S.C.R. 120; 32 N.R. 104; 52 C.C.C.(2d) 481; [1980] 4 W.W.R. 187, refd to. [para. 67].

R. v. Beaver, [1957] S.C.R. 531, refd to. [para. 67].

R. v. Osolin (1993), 162 N.R. 1; 38 B.C.A.C. 81; 62 W.A.C. 81; 86 C.C.C.(3d) 481 (S.C.C.), refd to. [para. 70].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 279(2)(a) [para. 43].

Counsel:

S.R.A. Buck and L.M. Sturgess, for the appellant;

B.A. MacLean, for the respondent, Crown.

This appeal was heard at Vancouver, B.C., on June 23, 2004, before Rowles, Hall and Levine, JJ.A., of the British Columbia Court of Appeal.

On January 13, 2005, the following judgment was delivered by the Court.