R.S.L. v. R.,

• Jurisdiction: New Brunswick
• Judge: Turnbull, Daigle and Richard, JJ.A.
• Neutral Citation: 2006 NBCA 64
• Citation: (2006), 300 N.B.R.(2d) 24 (CA),2006 NBCA 64,300 NBR (2d) 24,209 CCC (3d) 1,40 CR (6th) 180,[2006] NBJ No 226 (QL),(2006), 300 NBR(2d) 24 (CA),[2006] N.B.J. No 226 (QL),300 NBR(2d) 24,300 N.B.R.(2d) 24
• Date: 13 September 2005
• Court: Court of Appeal (New Brunswick)

R. v. R.S.L. (2006), 300 N.B.R.(2d) 24 (CA);

    300 R.N.-B.(2e) 24; 782 A.P.R. 24

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2006] N.B.R.(2d) TBEd. JN.008

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

(152/04/CA; 162/04/CA; 2006 NBCA 64)

Indexed As: R. v. R.S.L.

New Brunswick Court of Appeal

Turnbull, Daigle and Richard, JJ.A.

June 1, 2006.

Summary:

A jury found the accused guilty of sexual assault.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision not reported in this series of reports, sentenced the accused to two years less a day, to be served in the community. The court also ordered the accused to provide DNA samples and to pay the victim $4,336.41 in restitution for counselling and other services. The accused appealed the conviction. The Crown applied for leave to appeal the sentence.

The New Brunswick Court of Appeal allowed the accused's appeal, quashed the conviction and ordered a new trial.

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 673

Sexual offences - Rape or sexual assault - Jury charge or directions - At a sexual assault trial, credibility was pivotal - The complainant testified that in the aftermath of the assault, she feared the accused - The trial judge admitted evidence of sexual activity between the complainant and the accused that the complainant said occurred a few weeks after the assault - The New Brunswick Court of Appeal allowed the accused's conviction appeal - The trial judge failed to instruct the jury as to the proper limits on the use of the evidence of the subsequent sexual activity - He also erred in instructing the jury that the evi­dence could not be used in assessing the complainant's credibility - Credibility was the sole basis for its admission - He should have conveyed to the jury that the evi­dence could only be used to assess the complainant's credibility in relation to the specific events forming the subject matter of the charge - He then could have in­structed them that the evidence could not, however, be used to support an inference that, by reason of the activity's sexual nature, the complainant was more likely to have consented to the activity that formed the subject matter of the charge or that she was less worthy of belief - The court ordered a new trial - See paragraphs 57 to 72.

Criminal Law - Topic 689

Sexual offences - Evidence - Sexual con­duct or character of complainant - Evi­dence of complainant's sexual activity - [See Criminal Law - Topic 673 ].

Criminal Law - Topic 689.1

Sexual offences - Evidence - Post-assault conduct of complainant - [See Criminal Law - Topic 673 ].

Criminal Law - Topic 4304.4

Procedure - Trial judge - Duties and func­tions of - Inappropriate comments - A complainant asserted that the accused raped her in the back seat of a vehicle and that the vehicle's driver sexually assaulted her - The trial judge instructed the jury that if they accepted only that the driver had sexually assaulted the complainant, they could not convict the accused for having passively sat in the vehicle, even if they found his behaviour to be "abhorrent and repulsive" - The accused was convicted - He appealed, asserting that the trial judge's characterization of his conduct as "abhor­rent and repulsive" unfairly favoured the Crown - The New Brunswick Court of Appeal rejected the assertion - The jury charge as a whole was fairly neutral in putting forth the theories of the Crown and the defence - While the trial judge's phraseology might have been more careful­ly crafted to remove any indicia of per­sonal characterization of the accused's behaviour, the instruction had to be read in conjunction with his earlier directives that the jury was not "bound to follow" any of his expressed or implied opinions - See paragraphs 73 to 76.

Criminal Law - Topic 4351

Procedure - Charge or directions - Jury or judge alone - Direction regarding burden of proof and reasonable doubt - Although an accused did not testify at his sexual assault trial, his denial that he assaulted the victim was put before the jury in the form of a surreptitious tape recording adduced by the Crown - The accused appealed his conviction, asserting that the trial judge erred in charging the jurors that they could only use evidence if they believed it be­yond a reasonable doubt while failing to charge them that they could consider the taped statement as evidence capable of raising a reasonable doubt - The New Brunswick Court of Appeal agreed - The exculpatory statement of an accused that was adduced by the Crown should be treated the same as evidence adduced by the defence - The trial judge should have given instructions akin to hose formulated in R. v. D.W. (S.C.C.) - He failed to do so and there were no other instructions in the balance of the charge that corrected the failure - The court ordered a new trial - See paragraphs 83 to 104.

Criminal Law - Topic 4354

Procedure - Charge or directions - Jury or judge alone - Directions regarding pleas or evidence of witnesses, co-accused and accomplices - At the accused's jury trial, a Crown witness accepted as true a statement he had given to the police - The statement contained factual assertions helpful to the Crown - Later, he claimed to have no recollection of those details - Later, he recanted those portions of statement and testified favourably for the defence - The accused was convicted - The accused appealed, asserting that the trial judge erred in giving a Vetrovec caution respect­ing the witness - The New Brunswick Court of Appeal stated that, considering that the testimony was more favourable to the defence than it was to Crown, it would not have given a Vetrovec warning - How­ever, given the high degree of deference expected of appellate courts, it was not prepared to hold that the trial judge erred - The judge's warning repeatedly empha­sized that the witness's evidence might be unreliable to convict on but that it might nevertheless give rise to a reasonable doubt - See paragraphs 34 to 56.

Criminal Law - Topic 4357

Procedure - Charge or directions - Jury or judge alone - Directions regarding defences and theory of the defence - [See Criminal Law - Topic 4304.4 ].

Criminal Law - Topic 4377.1

Procedure - Charge or directions - Jury or judge alone - Directions regarding relia­bility of witnesses' testimony - [See Crim­inal Law - Topic 4354 ].

Criminal Law - Topic 4961

Appeals - Indictable offences - New trials - Grounds - Abusive or improper cross-examination by Crown - In cross-examin­ing an adverse witness at the accused's trial, Crown counsel stated "you wouldn't know the truth if you tripped over it" - The accused's counsel objected and Crown counsel, without hesitation, apologized - The trial judge agreed that the remark as inappropriate but did not otherwise instruct the jury - Crown counsel agreed with the characterization and again apologized - The accused appealed his conviction, as­serting that the trial judge should have commented on the remark during his jury charge - The New Brunswick Court of Appeal agreed that the remark was inap­propriate - However, there was no error in the manner in which the trial judge ad­dressed it - Moreover, even if the trial judge should have instructed the jury re­garding the remark, the failure did not result in a substantial wrong or a miscar­riage of justice - The repeated apologies and trial judge's immediate charac­terization of the comment as inappropriate would have left no doubt in a reasonable jury's mind that it should be ignored - See paragraphs 77 to 82.

Evidence - Topic 4781

Witnesses - Examination - Impeaching own witness - General - The New Bruns­wick Court of Appeal stated that "The law governing the impeachment of one's own witness, either upon a declaration of hostil­ity or adversity or with leave pursuant to s. 9(2) of the Canada Evidence Act, is de­scribed in McWilliams' Canadian Criminal Evidence ... as obscure and unsatisfactory and in need of reform. The circumstances of any particular case may raise any num­ber of questions, the answers to which are not readily apparent in the jurisprudence." - The court set out questions that arose in the case before the court - See paragraph 49.

Cases Noticed:

R. v. Milgaard (1971), 2 C.C.C.(2d) 206 (Sask. C.A.), leave to appeal refused (1971), 4 C.C.C.(2d) 566 (S.C.C.), refd to. [para. 39].

R. v. McInroy and Rouse, [1979] 1 S.C.R. 588; 23 N.R. 589, refd to. [para. 39].

R. v. Higgins (1979), 28 N.B.R.(2d) 20; 63 A.P.R. 20 (C.A.), refd to. [para. 49].

R. v. Vetrovec; R. v. Gaja, [1982] 1 S.C.R. 811; 41 N.R. 606, refd to. [para. 52].

R. v. Brooks (F.A.), [2000] 1 S.C.R. 237; 250 N.R. 103; 129 O.A.C. 205, refd to. [para. 53].

R. v. Bevan and Griffith, [1993] 2 S.C.R. 599; 154 N.R. 245; 64 O.A.C. 165, refd to. [para. 56].

R. v. Joyce (K.R.) (1998), 203 N.B.R.(2d) 1; 518 A.P.R. 1 (C.A.), refd to. [para. 56].

R. v. Eatman (P.L.) (1999), 222 N.B.R.(2d) 120; 570 A.P.R. 120 (C.A.), refd to. [para. 56].

R. v. Seaboyer and Gayme, [1991] 2 S.C.R. 577; 128 N.R. 81; 48 O.A.C. 81, refd to. [para. 64].

R. v. Darrach (A.S.), [2000] 2 S.C.R. 443; 259 N.R. 336; 137 O.A.C. 91, refd to. [para. 64].

R. v. Crosby (W.S.), [1995] 2 S.C.R. 912; 183 N.R. 22; 143 N.S.R.(2d) 57; 411 A.P.R. 57, refd to. [para. 66].

R. v. Harris (W.G.) (1997), 102 O.A.C. 374; 118 C.C.C.(3d) 498 (C.A.), refd to. [para. 67].

R. v. Potvin (1998), 124 C.C.C.(3d) 568 (Que. C.A.), refd to. [para. 68].

R. v. Logiacco (1984), 2 O.A.C. 177; 11 C.C.C.(3d) 374 (C.A.), refd to. [para. 80].

R. v. Fanjoy, [1985] 2 S.C.R. 233; 62 N.R. 253; 11 O.A.C. 381, refd to. [para. 81].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 90].

R. v. Campbell (C.) (1995), 82 O.A.C. 153; 24 O.R.(3d) 537 (C.A.), refd to. [para. 92].

R. v. Haroun (J.), [1997] 1 S.C.R. 593; 209 N.R. 6, refd to. [para. 97].

R. v. Brown (P.C.) (2002), 166 O.A.C. 112 (C.A.), refd to. [para. 99].

R. v. Miller (1991), 50 O.A.C. 282; 68 C.C.C.(3d) 517 (C.A.), refd to. [para. 101].

R. v. Johnson (J.J.) (1997), 88 B.C.A.C. 134; 144 W.A.C. 134 (C.A.), refd to. [para. 102].

R. v. Allen (S.G.) (1999), 122 B.C.A.C. 286; 200 W.A.C. 286 (C.A.), refd to. [para. 102].

R. v. Bush (J.) (1999), 128 B.C.A.C. 97; 208 W.A.C. 97; 136 C.C.C.(3d) 569 (C.A.), refd to. [para. 102].

Authors and Works Noticed:

Ferguson, Gerry A., and Bouck, John C., Canadian Criminal Jury Instructions (3rd Ed.) (1999 Looseleaf Update), vol. 1, s. 4.20, para. 9 [para. 93].

McWilliams, Peter K., Canadian Criminal Evidence (4th Ed. 2003) (2005 Looseleaf Update), vol. 2, paras. 18:50.30.30 [para. 49]; 31:80:30 [para. 54].

Watt, David, Ontario Specimen Jury In­structions (Criminal) (2003), Final In­struction 024A, paras. 5, 6 [para. 94].

Counsel:

Marc A. Bourgeois, for the appellant;

Nicole Poirier, for the respondent.

This appeal was heard on September 13, 2005, by Turnbull, Daigle and Richard, JJ.A., of the New Brunswick Court of Ap­peal. Richard, J.A., delivered the following judgment for the court, in both official languages, on June 1, 2006.