R. v. Parrott (W.), (1999) 175 Nfld. & P.E.I.R. 89 (NFCA)

• Judge: Wells, C.J.N., O'Neill and Green, JJ.A.
• Court: Court of Appeal (Newfoundland)
• Case Date: May 05, 1999
• Jurisdiction: Newfoundland and Labrador
• Citations: (1999), 175 Nfld. & P.E.I.R. 89 (NFCA)

R. v. Parrott (W.) (1999), 175 Nfld. & P.E.I.R. 89 (NFCA);

    537 A.P.R. 89

MLB headnote and full text

Temp. Cite: [1999] Nfld. & P.E.I.R. TBEd. JN.005

Walter Parrott (appellant) v. Her Majesty The Queen (respondent)

(95/84)

Indexed As: R. v. Parrott (W.)

Newfoundland Supreme Court

Court of Appeal

Wells, C.J.N., O'Neill and Green, JJ.A.

May 5, 1999.

Summary:

An accused was charged with kidnapping and sexual assault causing bodily harm. The complainant was severely mentally disabled. The Crown chose not to call her as a witness and sought to adduce hearsay evidence given her testimonial incompetence. The trial judge admitted the hearsay evidence. The accused was convicted of kidnapping and of the lesser offence of assault causing bodily harm. He appealed.

The Newfoundland Court of Appeal, Wells, C.J.N., dissenting, held that the hear­say evidence should not have been admitted. Wells, C.J.N., and Green, J.A., held that the kidnapping charge could nonetheless be sustained. Consequently, the appeal was allowed and a new trial ordered only with respect to the assault charge.

Criminal Law - Topic 5037

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - Evidentiary error - The accused paid a patient at a psychiatric hospital to bring a patient to his car - He took her from the hospital and remained with her for seven hours before they were located in a secluded area - The complain­ant had several bruises - She told police that a "bad man" and a "man in car" had made the bruises - The accused was charged with kidnapping and sexual assault causing bodily harm - The trial judge allowed the Crown to adduce the complainant's hearsay statements given her testimonial incompetency - The accused was convicted of kidnapping and assault causing bodily harm - On appeal, the Newfoundland Court of Appeal held that the trial judge erred in admitting the hear­say statements - Wells, C.J.N., and Green, J.A., held that without the hearsay state­ments, only the kidnapping conviction could be sustained under s. 686(1)(b)(iii) of the Criminal Code - See paragraph 86 to 114 and 185 to 1912.

Criminal Law - Topic 5420

Evidence and witnesses - Witnesses - Out of court statements - [See Evidence - Topic 1527 ].

Evidence - Topic 1527

Hearsay rule - Exceptions and exclusions - Where admission of hearsay necessary and evidence reliable - According to expert testimony, a mentally disabled complain­ant's understanding of spoken English was that of a four year old - She had a poor verbal ability - She might understand a promise to tell the truth - The Crown chose not to call the complainant to testify - Asserting testimonial incompetence, the Crown sought to adduce the complainant's out of court statements as an exception to the hearsay rule - The trial judge, relying only on the expert testimony, admitted the evidence where it was necessary and reli­able - On appeal, the accused asserted that necessity had not been established - The Newfoundland Court of Appeal agreed - In the absence of evidence indicating that it would be traumatic or harmful for the complainant to appear in court, the judge should have questioned the complainant to determine testimonial competence under s. 16 of the Evidence Act - See paragraphs 29 to 85 and 119.

Evidence - Topic 5542

Witnesses - Competency and compellability - Competency - Mental competency - The Newfoundland Court of Appeal stated that: "as a general rule the court must be satisfied that a proposed mentally disabled witness is truly testi­monially incompetent according to the applicable standard relating to communi­cative ability before acceding to the sug­gestion that the person's disability in itself justifies reception of hearsay evidence as a substitute for viva voce testimony. If there is doubt on the issue, it should be resolved in favour of having the witness appear in court for a competence hearing." - See paragraph 61 - "The Crown should, as a condition of obtaining a ruling of necessity based on testimonial incompetence, be required to make the person available as if he or she were being proposed as a witness so that a proper inquiry could be con­ducted by the judge under s. 16 of the [Evidence] Act." - See paragraph 79.

Evidence - Topic 5542

Witnesses - Competency and compellability - Competency - Mental competency - [See Evidence - Topic 1527 ].

Cases Noticed:

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. 5].

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. 27].

R. v. Meaney (A.J.) (1996), 145 Nfld. & P.E.I.R. 306; 453 A.P.R. 306 (Nfld. C.A.), leave to appeal dismissed, [1997] 1 S.C.R. x; 221 N.R. 82; 151 Nfld. & P.E.I.R. 90; 471 A.P.R. 90, refd to. [para. 27].

R. v. Pearson (R.A.) (1994), 82 B.C.A.C. 1; 133 W.A.C. 1; 95 C.C.C.(3d) 365 (C.A.), refd to. [para. 27].

R. v. Rockey (S.E.), [1996] 3 S.C.R. 829; 204 N.R. 214; 95 O.A.C. 134; 110 C.C.C.(3d) 481, refd to. [para. 28].

R. v. Kharsekin (V.N.) (1994), 117 Nfld. & P.E.I.R. 89; 365 A.P.R. 89; 88 C.C.C.(3d) 193 (Nfld. C.A.), refd to. [para. 30].

R. v. K.G.B., [1993] 1 S.C.R. 740; 148 N.R. 241; 61 O.A.C. 1; 79 C.C.C.(3d) 257, refd to. [para. 31].

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. 31].

Khan v. College of Physicians and Sur­geons (Ont.) (1992), 57 O.A.C. 115; 9 O.R.(3d) 641; 76 C.C.C.(3d) 10 (C.A.), refd to. [para. 31].

R. v. Ferguson (L.D.) (1996), 85 B.C.A.C. 33; 138 W.A.C. 33; 112 C.C.C.(3d) 342 (C.A.), refd to. [para. 45].

R. v. Farley (A.W.) (1995), 80 O.A.C. 337; 40 C.R.(4th) 190 (C.A.), refd to. [para. 52].

R. v. Marquard (D.), [1993] 4 S.C.R. 223; 159 N.R. 81; 66 O.A.C. 161; 85 C.C.C.(3d) 193, refd to. [para. 57].

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. 58].

R. v. S.A. (1992), 59 O.A.C. 234; 76 C.C.C.(3d) 522 (C.A.), refd to. [para. 74].

R. v. Haughton (D.), [1994] 3 S.C.R. 516; 179 N.R. 1; 79 O.A.C. 319; 93 C.C.C.(3d) 99, refd to. [para. 90].

R. v. P.L.S., [1991] 1 S.C.R. 909; 122 N.R. 321; 90 Nfld. & P.E.I.R. 234; 280 A.P.R. 234, refd to. [para. 92].

R. v. John, [1985] 2 S.C.R. 476; 63 N.R. 141; 11 O.A.C. 391; 23 C.C.C.(3d) 326, refd to. [para. 93].

R. v. Chartrand (J.), [1994] 2 S.C.R. 864; 170 N.R. 161; 74 O.A.C. 257; 91 C.C.C.(3d) 396, refd to. [para. 97].

R. v. Tremblay (1997), 117 C.C.C.(3d) 86 (Que. C.A.), refd to. [para. 98].

R. v. Gratton (1985), 7 O.A.C. 190; 18 C.C.C.(3d) 462 (C.A.), leave to appeal refused (1985), 60 N.R. 234; 11 O.A.C. 144 (S.C.C.), refd to. [para. 98].

R. v. Metcalfe (1983), 10 C.C.C.(3d) 114 (B.C.C.A.), refd to. [para. 98].

R. v. Brown (1972), 8 C.C.C.(2d) 13 (Ont. C.A.), refd to. [para. 98].

R. v. Johnson (1984), 65 N.S.R.(2d) 54; 147 A.P.R. 54 (C.A.), refd to. [para. 98].

R. v. M.L.M., [1994] 2 S.C.R. 3; 166 N.R. 241; 131 N.S.R.(2d) 79; 371 A.P.R. 79, refd to. [para. 106].

R. v. Gough (1985), 7 O.A.C. 17; 43 C.R.(3d) 297 (C.A.), refd to. [para. 106].

Colpitts v. R. (1965), 47 C.R. 175 (S.C.C.), refd to. [para. 128].

R. v. Hawkins (K.R.) and Morin (C.), [1996] 3 S.C.R. 1043; 204 N.R. 241; 96 O.A.C. 81; 111 C.C.C.(3d) 129, refd to. [para. 166].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 686(1)(b)(iii) [para. 86].

Authors and Works Noticed:

Mewett and Manning, Criminal Law (3rd Ed.), p. 768 [para. 100].

Counsel:

Rob Reid, for the appellant;

Wayne Gorman, for the respondent.

This appeal was heard on November 3, 1998, before Wells, C.J.N., O'Neill and Green, JJ.A., of the Newfoundland Court of Appeal.

On May 5, 1999, the judgment of the Court of Appeal was delivered and the following opinions were filed:

Green, J.A. - see paragraphs 1 to 119;

O'Neill, J.A. - see paragraphs 120 to 129;

Wells, C.J.N., dissenting - see paragraphs 130 to 192.