R. v. R.M.S., (2015) 602 A.R. 362

• Judge: Berger, Watson and McDonald, JJ.A.
• Court: Court of Appeal (Northwest Territories)
• Case Date: April 21, 2015
• Jurisdiction: Northwest Territories
• Citations: (2015), 602 A.R. 362

R. v. R.M.S. (2015), 602 A.R. 362; 647 W.A.C. 362 (NWTCA)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. JL.060

Her Majesty the Queen (respondent) v. R.M.S. (appellant)

(A1-AP-2013-000-003; 2015 NWTCA 5)

Indexed As: R. v. R.M.S.

Northwest Territories Court of Appeal

Berger, Watson and McDonald, JJ.A.

June 26, 2015.

Summary:

The accused appealed his conviction for breaking and entering and committing a sexual assault.

The Northwest Territories Court of Appeal dismissed the appeal.

Editor's Note: For a decision on the accused's appeal from sentence see (2015), 602 A.R. 371; 647 W.A.C. 371.

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 a restriction on ban under s. 486.4 of the Criminal Code and Maritime Law Book's editorial policy.

Criminal Law - Topic 1801

Offences against property - Breaking and entering - Intention - The accused appealed his conviction for the offence of breaking and entering and committing a sexual assault, asserting that he should have been convicted of the lesser and included offence of sexual assault as the Crown had not established that he committed a breaking and entering into the complainant's apartment - The Northwest Territories Court of Appeal dismissed the appeal - The argument assumed that there was some form of lawful justification or excuse for the accused being in the apartment - On the facts as found by the trial judge, there was no such lawful justification or excuse - It was unnecessary to prove entry intent for the specific offence charged although it would have been a reasonable inference that there was entry intent - The trial judge did not have to find precisely how the accused got in the apartment - Neither of the options of the door having been left open or the accused having been able to get in through a window were disproven - Reasonable doubt about the way of entry was of no consequence as reasonable doubt did not apply to individual issues of fact - Indeed, the presumption in s. 350(b)(ii) of the Criminal Code addressed this element of the actus reus - The judge's reasons conformed with the Code - See paragraphs 26 to 28.

Criminal Law - Topic 1816

Offences against property - Breaking and entering - Evidence and proof - [See Criminal Law - Topic 1801 ].

Criminal Law - Topic 4375.5

Procedure - Charge or directions - Jury or judge alone - Directions re prior misconduct or convictions - The accused appealed his conviction for breaking and entering and committing a sexual assault, asserting that the Crown in cross-examination was wrongly allowed to introduce bad character evidence about him that prejudiced the trial - The impugned questions commenced with the Crown referencing a remark that the accused made to the investigating officer that every time he drank he got into trouble with the law - When the Crown asked what that meant, the accused testified that in actuality he only got into "fights" sometimes when drinking - The Crown put to the accused that he was admittedly quite drunk at the time in question and that he might have done something with the complainant that she did not want to do - The accused denied the suggestion, saying that their contact was "all consensual" - The Crown then moved onto questions about how good the accused's memory was when he drank - The exchange took less than a minute - The Northwest Territories Court of Appeal stated that the failure of the accused's counsel to object was a material factor in assessing the significance of the questions on the trial, although it was not dispositive - The record made it clear that the trial judge did not use the evidence for an impermissible purpose of determining guilt on the basis of propensity, and properly instructed herself in that respect - There was no miscarriage of justice and any error was without legal effect - See paragraphs 13 to 25.

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 4375.5 ].

Criminal Law - Topic 4393

Procedure - Charge or directions - Jury or judge alone - Failure by counsel to object - Effect of - [See Criminal Law - Topic 4375.5 ].

Criminal Law - Topic 4458.2

Procedure - Verdicts - Included offences - Inclusion in break and enter and commit sexual assault - [See Criminal Law - Topic 1801 ].

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 4375.5 ].

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 4375.5 ].

Criminal Law - Topic 5204.3

Evidence and witnesses - General - Admissibility - Evidence of disposition or propensity of accused - [See Criminal Law - Topic 4375.5 ].

Criminal Law - Topic 5402.1

Evidence and witnesses - Witnesses - Objections to questions - [See Criminal Law - Topic 4375.5 ].

Criminal Law - Topic 5436

Evidence and witnesses - Cross-examination of accused - Character of accused - [See Criminal Law - Topic 4375.5 ].

Cases Noticed:

R. v. Jaw (S.G.), [2009] 3 S.C.R. 26; 393 N.R. 246; 464 A.R. 149; 467 W.A.C. 149; 2009 SCC 42, refd to. [para. 15].

R. v. Corbett, [1988] 1 S.C.R. 670; 85 N.R. 81; 41 C.C.C.(3d) 385, refd to. [para. 22].

R. v. S.G.G., [1997] 2 S.C.R. 716; 214 N.R. 161; 94 B.C.A.C. 81; 152 W.A.C. 81, refd to. [para. 25].

R. v. Lucas, [1963] 1 C.C.C. 1 (S.C.C.), refd to. [para. 25].

R. v. Chambers (No. 2), [1990] 2 S.C.R. 1293; 119 N.R. 321, refd to. [para. 25].

R. v. Farbridge (1984), 57 A.R. 292; 15 C.C.C.(3d) 521 (C.A.), refd to. [para. 27].

R. v. Todorov, 2015 QCCA 812, refd to. [para. 27].

R. v. J.M.H., [2011] 3 S.C.R. 197; 421 N.R. 76; 283 O.A.C. 379; 2011 SCC 45, refd to. [para. 28].

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. 29].

R. v. Gagnon (L.), [2006] 1 S.C.R. 621; 347 N.R. 355; 2006 SCC 17, refd to. [para. 31].

R. v. R.E.M., [2008] 3 S.C.R. 3; 380 N.R. 47; 260 B.C.A.C. 40; 439 W.A.C. 40; 2008 SCC 51, refd to. [para. 31].

R. v. R.P., [2012] 1 S.C.R. 746; 429 N.R. 361; 2012 SCC 22, refd to. [para. 31].

R. v. Wilcox (J.S.), [2014] N.R. Uned. 179; [2014] 3 S.C.R. 616; 2014 SCC 75, refd to. [para. 31].

R. v. Burke (J.) (No. 3), [1996] 1 S.C.R. 474; 194 N.R. 247; 139 Nfld. & P.E.I.R. 147; 433 A.P.R. 147, refd to. [para. 31].

Counsel:

B. McPherson, for the respondent;

C.B. Davison, for the appellant.

This appeal was heard on April 21, 2015, by Berger, Watson and McDonald, JJ.A., of the Northwest Territories Court of Appeal. The following memorandum of judgment was delivered by the court on June 26, 2015.