R. v. Pargelen (G.), (1996) 95 O.A.C. 200 (CA)

• Judge: Laskin, Rosenberg and Moldaver, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: December 05, 1996
• Jurisdiction: Ontario
• Citations: (1996), 95 O.A.C. 200 (CA)

R. v. Pargelen (G.) (1996), 95 O.A.C. 200 (CA)

MLB headnote and full text

Her Majesty the Queen (respondent) v. Gordon Pargelen (appellant)

(C19391)

Indexed As: R. v. Pargelen (G.)

Ontario Court of Appeal

Laskin, Rosenberg and Moldaver, JJ.A.

December 5, 1996.

Summary:

The accused was convicted of sexually assaulting his girlfriend's daughter. One of the defence theories was that the complain­ant's mother had put her up to making a false allegation because the accused had spurned the mother. In his testimony, the accused contradicted the mother's evidence that they had sexual intercourse together. A reply witness contradicted the accused. The accused appealed his conviction. He sub­mitted, inter alia, that the reply evidence offended the rule against splitting the Crown's case, offended the collateral fact rule and was inadmissible where the Crown had not complied with s. 11 of the Canada Evidence Act by giving notice of the prior inconsistent statement.

The Ontario Court of Appeal held that the evidence was proper reply evidence which did not offend the rule against splitting the Crown's case or the collateral fact rule. The court held that the Crown's failure to give notice of the prior inconsistent statement offended s. 11 of the Canada Evidence Act, but did not render the evidence inadmissible in this case. Alternatively, the court would have applied s. 686(1)(b)(iii) of the Criminal Code.

Criminal Law - Topic 4516

Procedure - Trial - Special duties of Crown - Splitting Crown's case - The accused was convicted of sexually assault­ing his girlfriend's daughter - One of the defence theories was that the complainant's mother had put her up to making a false allegation because the accused had spurned the mother - In his testimony, the accused contradicted the mother's evidence that they had sexual intercourse - A reply witness contradicted the accused - The accused appealed his conviction, submit­ting, inter alia, that the reply evidence offended the rule against splitting the Crown's case - The Ontario Court of Appeal disagreed - The trial judge had a discretion to admit the evidence where its relevance, at the end of the Crown's case, was only marginal - See paragraphs 20 to 26.

Criminal Law - Topic 5037

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - Evidentiary error -[See second Evidence - Topic 4752 ].

Criminal Law - Topic 5235

Evidence and witnesses - Rebuttal evi­dence - By Crown - Collateral fact rule - The accused was convicted of sexually assaulting his girlfriend's daughter - One of the defence theories was that the com­plainant's mother had put her up to making a false allegation because the accused had spurned the mother - In his testimony, the accused contradicted the mother's evidence that they had had sexual intercourse - A reply witness contradicted him - On ap­peal, the accused submitted, inter alia, that the reply evidence offended the col­lateral fact rule - The Ontario Court of Appeal disagreed - The complainant's motive to falsely charge the accused was central to the defence theory - As the defence de­veloped its case, the relationship between the accused and the mother related to the question of motive and fab­rication - See paragraphs 27, 28.

Evidence - Topic 507

Presentation of evidence - Failure to object - Effect of - [See second Evidence - Topic 4752 ].

Evidence - Topic 4752

Witnesses - Examination - Prior incon­sistent statements - Foun­dation required - The Ontario Court of Appeal discussed ss. 10 and 11 of the Canada Evidence Act, which require notice if prior inconsistent statements are to be used to contradict a witness in cross-examination - The court held that, despite the Act's marginal notes, s. 11 applied to both written and oral statements; failure to comply with s. 11 did not neces­sarily bar admission of the evidence sought to be adduced; and s. 11 applied to admis­sions of parties - The court discussed the history and underlying policy consider­ations of the notice require­ment - See paragraphs 29 to 59.

Evidence - Topic 4752

Witnesses - Examination - Prior incon­sistent statements - Admissibility - Foun­dation required - The Ontario Court of Appeal held that, in a sexual assault trial, the Crown failed to comply with s. 11 of the Canada Evidence Act and give notice that it intended to adduce evidence of prior inconsistent statements - The court held that the evidence was nevertheless admis­sible - The court considered, inter alia, that the defence did not object to the evi­dence at trial and thereby give the trial judge an opportunity to exercise his dis­cretion to permit the evidence to be ad­duced, the accused did not attempt to contradict or explain the evidence, and both parties were essentially given equal opportunity to hear and respond to the other's full submissions - Alternatively, the court would have applied s. 686(1)(b)(iii) of the Criminal Code - See paragraphs 60 to 67.

Evidence - Topic 4753

Witnesses - Examination - Prior incon­sistent statements - Effect of lack of prop­er foundation - [See both Evidence - Topic 4752 ].

Statutes - Topic 1604

Interpretation - Extrinsic aids - General - History - [See first Evidence - Topic 4752 ].

Statutes - Topic 1607

Interpretation - Extrinsic aids - General - Policy of legislation - [See first Evidence - Topic 4752 ].

Statutes - Topic 1845

Interpretation - Intrinsic aids - Titles, headings and section numbers - Headings and marginal notes - [See first Evidence -- Topic 4752 ].

Cases Noticed:

R. v. Krause (1986), 71 N.R. 61; 29 C.C.C.(3d) 385 (S.C.C.), refd to. [paras. 20, 49].

R. v. Chaulk and Morrissette, [1990] 3 S.C.R. 1303; 119 N.R. 161; 69 Man.R.(2d) 161; 62 C.C.C.(3d) 193, refd to. [para. 22].

R. v. Drake (1970), 1 C.C.C.(2d) 396 (Sask. Q.B.), refd to. [para. 22].

Sparrow v. R. (1979), 51 C.C.C.(2d) 443 (Ont. C.A.), refd to. [para. 23].

R. v. Stevenson (1990), 41 O.A.C. 1; 58 C.C.C.(3d) 464 (C.A.), refd to. [para. 23].

R. v. A.W. (1991), 45 O.A.C. 359; 3 O.R.(3d) 171 (C.A.), refd to. [para. 23].

R. v. Campbell (1977), 38 C.C.C.(2d) 6 (Ont. C.A.), refd to. [para. 23].

R. v. Béland and Phillips, [1987] 2 S.C.R. 398; 79 N.R. 263; 9 Q.A.C. 293; 36 C.C.C.(3d) 481, refd to. [para. 24].

R. v. Aalders (1993), 154 N.R. 161; 55 Q.A.C. 161; 82 C.C.C.(3d) 215 (S.C.C.), refd to. [para. 27].

R. v. Busby (1982), 75 Cr. App. Rep. 79 (C.C.A.), refd to. [para. 28].

R. v. Shaw (1888), 15 Cox C.C. 503, refd to. [para. 28].

R. v. G.W.M. (1990), 41 O.A.C. 126; 58 C.C.C.(3d) 349 (C.A.), refd to. [para. 28].

R. v. Derby Magistrates Court; Ex parte B., [1995] 3 W.L.R. 681; 189 N.R. 199 (H.L.), refd to. [para. 32, footnote 1].

R. v. Stratton (1978), 42 C.C.C.(2d) 449 (Ont. C.A.), refd to. [para. 39].

R. v. Corbett, [1988] 1 S.C.R. 670; 85 N.R. 81; 41 C.C.C.(3d) 385, refd to. [para. 39].

R. v. D'Aoust (1902), 3 C.C.C. 407 (Ont. C.A.), refd to. [para. 39].

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161, refd to. [para. 44].

R. v. Mannion (1986), 69 N.R. 189; 75 A.R. 16; 28 C.C.C.(3d) 544 (S.C.C.), refd to. [para. 47].

R. v. Atikian and Atikian (1990), 42 O.A.C. 214; 62 C.C.C.(3d) 357 (C.A.), refd to. [para. 49].

R. v. Krause (1984), 12 C.C.C.(3d) 392 (B.C.C.A.), refd to. [para. 49].

R. v. Black and Mackie, [1966] 3 C.C.C. 187 (Ont. C.A.), refd to. [para. 49].

International Corona Resources Ltd. v. LAC Minerals Ltd. (1986), 8 C.P.C.(2d) 39 (Ont. H.C.), refd to. [para. 50].

St. Pierre v. Harrison (1976), 13 N.B.R.(2d) 527; 13 A.P.R. 527; 71 D.L.R.(3d) 573 (C.A.), refd to. [para. 50].

Stout v. Carter (1965), 54 D.L.R.(2d) 384 (B.C.S.C.), refd to. [para. 50].

Guarantee Co. of North America v. Beasse (1991), 5 C.P.C.(3d) 311 (Alta. Q.B.), refd to. [para. 50].

Bowen v. Hermsen and Manitoba Public Insurance Corp., [1983] 5 W.W.R. 76; 22 Man.R.(2d) 295 (Q.B.), refd to. [para. 50].

R. v. Nissan (A.) (1996), 89 O.A.C. 389 (C.A.), refd to. [para. 56].

R. v. Grant (1989), 58 Man.R.(2d) 281; 49 C.C.C.(3d) 410 (C.A.), refd to. [para. 57].

R. v. MacDonald (J.J.) (1989), 90 N.S.R.(2d) 218; 230 A.P.R. 218; 48 C.C.C.(3d) 230 (C.A.), refd to. [para. 57].

R. v. Demerchant (1991), 116 N.B.R.(2d) 247; 293 A.P.R. 247; 66 C.C.C.(3d) 49 (C.A.), refd to. [para. 57].

Andrews v. Askey (1837), 8 Car. & P. 8, refd to. [para. 57].

R. v. Dussiaume (G.) (1995), 80 O.A.C. 115 (C.A.), refd to. [para. 67].

Statutes Noticed:

Canada Evidence Act, R.S.C. 1985, c. C-5, sect. 10, sect. 11 [para. 31].

Evidence Act - see Canada Evidence Act.

Authors and Works Noticed:

Bryant, The Adversary's Witness: Cross-examination and Proof of Prior Incon­sistent Statements (1984), 62 Can. Bar. Rev. 43, pp. 45 [para. 41]; 67 to 68 [para. 32, footnote 1].

Canada, Federal Rules of Evidence Manual (6th Ed. 1994), p. 988 [para. 55].

Federal Rules of Evidence Manual - see Canada, Federal Rules of Evidence Manual.

Graham, M., Employing Inconsistent Statements for Impeachment and as Substantive Evidence: A Critical Review and Proposed Amendments of Federal Rules of Evidence 801(d)(1)(A), 613, and 607 (1977), 75 Mich. L. Rev. 1565, pp. 1595 [para. 41]; 1606 to 1607 [para. 46].

McCormick, Handbook on the Law of Evidence, pp. 124 to 125 [para. 35].

McWilliams, Peter K., Canadian Criminal Evidence (3rd Ed. 1988) (1990 Loose­leaf), p. 31-5 [para. 22].

Schiff, Stanley A., Evidence in the Litiga­tion Process (Master Edition 1993), pp. 811 to 813 [para. 32, footnote 1]; 811 to 815 [para. 37, footnote 2]; 814 [para. 43].

Wigmore on Evidence, p. 14 [para. 35].

Counsel:

Irwin Koziebrocki, for the accused;

Jay L. Naster, for the Crown.

This appeal was heard on August 27, 1996, by Laskin, Rosenberg and Moldaver, JJ.A., of the Ontario Court of Appeal.

The following decision of the Court of Appeal was delivered on December 5, 1996, by Rosenberg, J.A.