R. v. R.C., (1996) 145 Nfld. & P.E.I.R. 271 (NFCA)

• Judge: Gushue, C.J.N., Marshall and Steele, JJ.A.
• Court: Court of Appeal (Newfoundland)
• Case Date: October 21, 1996
• Jurisdiction: Newfoundland and Labrador
• Citations: (1996), 145 Nfld. & P.E.I.R. 271 (NFCA)

R. v. R.C. (1996), 145 Nfld. & P.E.I.R. 271 (NFCA);

    453 A.P.R. 271

MLB headnote and full text

R.C. (appellant) v. Her Majesty The Queen (respondent)

(1988 No. 166)

Indexed As: R. v. R.C.

Newfoundland Supreme Court

Court of Appeal

Gushue, C.J.N., Marshall and Steele, JJ.A.

October 21, 1996.

Summary:

An accused was convicted of sexually assaulting his son and daughter. The Crown applied to have the accused declared a dan­gerous offender and confined to a peniten­tiary for an indeterminate period.

The Newfoundland Supreme Court, Trial Division, in a decision reported 71 Nfld. & P.E.I.R. 332; 220 A.P.R. 332, allowed the application, declared the accused to be a dangerous offender and sentenced him to detention in a penitentiary for an indetermi­nate period. The accused appealed his con­victions and sentence.

The Newfoundland Court of Appeal dis­missed the conviction appeal, set aside the indeterminate sentence and ordered a new hearing.

Criminal Law - Topic 4572.1

Procedure - Conduct of trial - Seating of witnesses - An accused was convicted of sexually assaulting his son and daughter - The accused appealed, objecting to the trial judge's ruling to permit one of the com­plainants to sit next to the trial judge on the bench while testifying - The New­foundland Court of Appeal stated that this was not a practice to be encouraged, but held that there was no suggestion that the event jeopardized a fair trial - See para­graph 19.

Criminal Law - Topic 4684

Procedure - Judgments and reasons for judgment - Reasons for judgment - Suffi­ciency of - An accused appealed his sex­ual assault convictions on the grounds that the trial judge erred in failing to adequate­ly review the evidence, properly apply the principle of proof beyond a reasonable doubt and properly consider the accused's testimony - At issue was the insufficiency of stated reasons (1.5 pages) - The New­foundland Court of Appeal rejected the grounds of appeal - The accused's position at trial was a simple denial - The issue was solely one of credibility and the ac­cused's position did not include a complex explanation or defence that demanded careful analysis and complete reasons - Although reasons for judgment may have contributed to a more comprehensive explanation, this was not a situation where a full explanation was needed - See para­graphs 2 to 14.

Criminal Law - Topic 5035

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - General - An accused appealed his sexual assault con­victions - The Crown conceded that the trial judge erred by permitting Crown counsel to cross-examine the accused on certain statements and a letter without holding a voir dire to determine admissi­bility - The statements and letter were to a psychiatrist nominated by the Crown in the context of a dangerous offender appli­cation - Counsel for the accused also expressed concern over the nature of the examination-in-chief of the complainants - The Newfoundland Court of Appeal held that the accused had raised valid objec­tions, but that it was proper to dismiss the grounds of appeal, where there was no substantial wrong or miscarriage of justice (Criminal Code s. 686(1)(b)(iii)) - See paragraphs 15 to 29.

Criminal Law - Topic 6502

Dangerous offenders - Detention - Condi­tions precedent - The Newfoundland Court of Appeal, in discussing dangerous offender applications, stated that "[s]ection 688(b) [now s. 753(b) of the Criminal Code] states that the offender must have been convicted of a serious personal injury offence as described in s. 687(b) [now s. 752(b)] and that means of course that the con­viction for any sexual assault will suffice, regardless of how serious it may be. I believe it fair to say however, that usually the predicate offence that instigates a dangerous offender appli­cation is one that is very serious. Ordinar­ily the predi­cate offence is by an individ­ual with a history of violent conduct, sexual or other­wise, who commits an offence of such a magni­tude that the Crown has a duty to seek a declaration of dangerous offender status and an indeter­minate sentence." - See paragraph 89.

Criminal Law - Topic 6510

Dangerous offenders - Detention - Powers of judge - The Newfoundland Court of Appeal stated that "[i]f the Crown proves beyond a reasonable doubt the statutory criteria, it is difficult to imagine circum­stances that negate a declaration of dan­gerous offender. If that prospect for some reason concerns the trial judge hearing the application, he has the discretion - option - to forego an indeterminate sentence and simply sentence the offender for the offence for which he has been convicted. In this connection, the cases have consist­ently held that upon a finding of dangerous offender the trial judge does have the discretion not to impose an indeterminate sentence" - See paragraph 81.

Criminal Law - Topic 6512

Dangerous offenders - Detention - Evi­dence - The Newfoundland Court of Appeal stated that "... the trial judge in determining whether an accused is a dan­gerous offender is not entitled to take into account the probability of a cure. Response to treatment and probability of a cure is, nevertheless, a relevant consideration in the exercise of a judge's discretion to impose a fixed term or an indeterminate sentence." - See paragraph 82.

Criminal Law - Topic 6516

Dangerous offenders - Detention - Appeals - Scope of - The Newfoundland Court of Appeal reviewed the law respect­ing a dangerous offender's right of appeal from an indeterminate sentence and against the dismissal of a dangerous offender application (Criminal Code, s. 759), stating that "[i]t is not possible to adequately assess the appropriateness of an indetermi­nate sentence without evaluating and re­flecting on the evidence and conclusions of the trial judge hearing the dangerous offender application. The provisions of the Code in question do not sanction an appeal from the trial judge's finding of dangerous offender, but in hearing an appeal against the indeterminate sentence, 'on any ground of law or fact or mixed law and fact', it is inevitable that the Court of Appeal exam­ine the regularity of the finding of danger­ous offender. If in the opinion of the Court of Appeal the finding of dangerous offender is unsound or flawed, s. 694 allows the court to quash the sentence and impose any sentence that might have been imposed in respect of the predicate offence or, alternatively, order a new hearing." - See paragraphs 37, 38.

Criminal Law - Topic 6558

Dangerous offenders - Detention - Pro­tection of the public - Dangerous sexual offender - An accused convicted of sex­ually assaulting his son and daughter was declared a dangerous offender and sen­tenced to an indeterminate sentence - The Newfoundland Court of Appeal set aside the indeterminate sentence and ordered a new hearing, where the trial judge (1) gave little consideration to the predicate of­fences which were of a minor nature and considered almost exclusively the accused's criminal past and sexual assaults on women with whom he had had relation­ships; (2) did not consider that the evi­dence showed a strong probability that the accused's behaviour was directed towards "family" and not the general public; and (3) did not provide reasons for accepting the testimony of the psychiatrist nominated by the Crown (which testimony labelled the accused a dangerous offender) and rejecting the contrary testimony of the accused's psychiatrist - See paragraphs 30 to 82.

Criminal Law - Topic 6558

Dangerous offenders - Detention - Sen­tencing - Sentence - [See Criminal Law - Topic 6512 ].

Evidence - Topic 4611

Witnesses - Examination - Leading ques­tions - An accused was charged with sexually assaulting his three children (ages 10, eight and six) - He was convicted for sexually assaulting two of the children - He appealed, asserting that his right to a fair trial was breached by Crown counsel's improper statements and questions, and particularly by leading questions during all stages of the children's testimony - The Newfoundland Court of Appeal held that the evidence of the sexual assaults was derived form the children's testimony and not elicited improperly by the involvement of Crown counsel - Although there were irregularities in the Crown's examination of the children, the irregularities did not bring into question the trustworthiness of the testimony of the sexual assaults - See paragraphs 16 to 20.

Cases Noticed:

R. v. Burns (R.H.), [1994] 1 S.C.R. 656; 165 N.R. 374; 42 B.C.A.C. 161; 67 W.A.C. 161; 89 C.C.C.(3d) 193; 29 C.R.(4th) 113, consd. [para. 13].

R. v. Barrett (D.), [1995] 1 S.C.R. 752; 179 N.R. 68; 80 O.A.C. 1; 96 C.C.C.(3d) 319, consd. [para. 13].

R. v. G.B. et al. (No. 2), [1990] 2 S.C.R. 30; 111 N.R. 31; 86 Sask.R. 111; 56 C.C.C.(3d) 200; 77 C.R.(3d) 347, consd. [para. 16].

R. v. Huot (C.), [1994] 3 S.C.R. 827; 174 N.R. 311; 75 O.A.C. 322, consd. [para. 24].

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, consd. [para. 24].

R. v. Boutilier (J.H.) (1995), 144 N.S.R.(2d) 293; 416 A.P.R. 293; 101 C.C.C.(3d) 1 (C.A.), consd. [para. 37].

R. v. Carleton, [1983] 2 S.C.R. 58; 52 N.R. 293; 47 A.R. 160; 36 C.R.(3d) 393; 6 C.C.C.(3d) 480, affing. (1981), 32 A.R. 181; 23 C.R.(3d) 129; 69 C.C.C.(2d) 1 (C.A.), consd. [para. 71].

R. v. Lyons, [1987] 2 S.C.R. 309; 80 N.R. 161; 82 N.S.R.(2d) 271; 207 A.P.R. 271; 37 C.C.C.(3d) 1; 61 C.R.(3d) 1; 44 D.L.R.(4th) 193, consd. [para. 72].

R. v. J.Y. (1996), 141 Sask.R. 132; 114 W.A.C. 132; 104 C.C.C.(3d) 512 (C.A.), consd. [para. 77].

R. v. Moore (1985), 7 O.A.C. 33; 16 C.C.C.(3d) 328; 44 C.R.(3d) 137; 49 O.R.(2d) 1 (C.A.), consd. [para. 78].

R. v. Crosby (1982), 1 C.C.C.(3d) 233 (Ont. C.A.), refd to. [para. 79].

R. v. Poutsoungas (1989), 49 C.C.C.(3d) 388 (Ont. C.A.), leave to appeal refused (1992), 138 N.R. 418; 56 O.A.C. 159; 70 C.C.C.(3d) vi (S.C.C.), refd to. [para. 79].

R. v. Newman (1994), 115 Nfld. & P.E.I.R. 197; 360 A.P.R. 197 (Nfld. C.A.), consd. [para. 88].

R. v. Currie (R.O.R.) (1995), 86 O.A.C. 143; 103 C.C.C.(3d) 281 (C.A.), leave to appeal granted (1996), 201 N.R. 240; 93 O.A.C. 160 (S.C.C.), consd. [para. 90].

R. v. Towne Cinema Theatres Ltd., [1985] 1 S.C.R. 494; 59 N.R. 101; 61 A.R. 35; 45 C.R.(3d) 1; 18 D.L.R.(4th) 1; 18 C.C.C.(3d) 193, consd. [para. 102].

Statutes Noticed:

Criminal Code, R.S.C. 1970, c. C-34, sect. 687(a), sect. 687(b) [para. 32]; sect. 688(a) [para. 31]; sect. 688(b) [paras. 31, 34]; sect. 690 [para. 35]; sect. 692 [para. 36]; sect. 694 [para. 37].

Criminal Code, R.S.C. 1985, c. C-46, sect. 686(1)(b)(iii) [para. 23]; sect. 752 [para. 32]; sect. 753 [para. 31]; sect. 755 [para. 35]; sect. 757 [para. 36]; sect. 759(1), sect. 759(3) [para. 37].

Authors and Works Noticed:

Ewaschuk, Eugene G., Criminal Pleadings and Practice in Canada (2nd Ed.), vol. 1, para. 18:3480 [para. 79]; vol 2, para. 23:8070 [para. 24].

Ruby, Clayton, Sentencing (4th Ed. 1994), p. 119 [para. 79].

Salhany, Roger E., Canadian Criminal Procedure (6th Ed. 1994), p. 8-58, para. 8.1710 [paras. 79, 81].

Counsel:

Jerome Kennedy, for the appellant;

Wayne Gorman, for the respondent.

This appeal was heard on November 20, 1995, before Gushue, C.J.N., Marshall and Steele, JJ.A., of the Newfoundland Court of Appeal.

Steele, J.A., delivered the following judg­ment for the Court of Appeal on October 21, 1996.