R. v. R.T.H., (2007) 251 N.S.R.(2d) 236 (CA)

• Judge: Cromwell, Saunders and Oland, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: February 09, 2007
• Jurisdiction: Nova Scotia
• Citations: (2007), 251 N.S.R.(2d) 236 (CA);2007 NSCA 18

R. v. R.T.H. (2007), 251 N.S.R.(2d) 236 (CA);

    802 A.P.R. 236

MLB headnote and full text

Temp. Cite: [2007] N.S.R.(2d) TBEd. FE.023

R.T.H. (appellant) v. Her Majesty The Queen (respondent)

(CAC 248144; 2007 NSCA 18)

Indexed As: R. v. R.T.H.

Nova Scotia Court of Appeal

Cromwell, Saunders and Oland, JJ.A.

February 9, 2007.

Summary:

The accused was convicted by a jury of five sexual offences against three female children. The accused was married to the children's sister at the relevant time (1979 to 1985). The accused appealed his convictions, submitting that the verdict was unreasonable. Further, the trial judge allegedly erred in failing to order separate trials, in limiting the scope of a hypothetical question to the defence expert witness, in not ordering that Children's Aid records be produced to the accused, and in failing to properly instruct the jury on the use of evidence on one count in relation to other counts and the use of evidence respecting the accused's uncharged discreditable acts.

The Nova Scotia Court of Appeal dismissed the appeal. The trial judge erred in failing to instruct the jury against propensity reasoning and in failing to order the Children's Aid records produced to the accused. However, the court invoked s. 686(1)(b)(iii) of the Criminal Code to dismiss the appeal as the verdict would necessarily have been the same had the errors not been made.

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 691

Sexual offences - Evidence - Production of complainant's records (incl. medical and counselling) - The accused was convicted of five sexual offences committed between 1979 and 1985 against his then wife's three young sisters - The accused appealed, submitting that the trial judge erred in refusing to order production to the accused of Children's Aid Society records respecting one of the complainants - The trial judge refused production on the basis that the records were not relevant to any issue at trial or the complainant's credibility - The Nova Scotia Court of Appeal held that the trial judge erred - Portions of the records were relevant to issues at trial, including the theory of the defence and the complainant's credibility - Had the salutary and deleterious effects of the records been balanced, production should have been ordered - See paragraphs 46 to 64.

Criminal Law - Topic 4367

Procedure - Charge or directions - Jury or judge alone - Directions regarding separation of evidence respecting several counts - The accused was charged with five sexual offences against three complainants - Similar fact evidence was not relied on - The Nova Scotia Court of Appeal held that there was a risk that the jury might use the evidence on one count as evidence on the other counts and that evidence of uncharged discreditable conduct by the accused (beat his wife and children, etc.) would be used by the jury for the improper purpose of propensity reasoning - The court held that the trial judge properly instructed the jury that evidence on one count could only be used for that count and that guilt on one count could not be used to find guilt on another count - However, the trial judge erred in failing to instruct the jury against propensity based reasoning (i.e., not to use evidence of discreditable conduct to infer that the accused was the type of person who was likely to have committed the offences charged) - See paragraphs 65 to 82.

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 4367 ].

Criminal Law - Topic 4737.1

Procedure - Indictment - Count - Indictable offences - Severing counts in an indictment - The accused was convicted of five sexual offences committed between 1979 and 1985 against his then wife's three young sisters - The accused appealed, submitting that the trial judge erred in failing to sever the three counts respecting one sister from the single counts against the other two sisters - The Nova Scotia Court of Appeal dismissed the appeal - The decision to sever counts was discretionary - Absent a failure to consider proper principles, consideration of improper principles, failure to exercise the discretion reasonably or an injustice, the court could not intervene - The judge made no such reversible error - See paragraphs 38 to 45.

Criminal Law - Topic 5007

Appeals - Indictable offences - Review of verdicts - Where verdict based on findings of credibility - The accused was convicted of five sexual offences committed between 1979 and 1985 against his then wife's three young sisters - The Nova Scotia Court of Appeal dismissed the accused's appeal on the ground that the verdict was unreasonable and unsupported by the evidence - The accused's argument was that the jury's assessment of the complainants' credibility was unreasonable - To succeed, the accused had to show that the credibility findings could not be supported on any reasonable view of the evidence - The accused failed to do so - See paragraphs 34 to 37.

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 - The accused was convicted of five sexual offences committed between 1979 and 1985 against his then wife's three young sisters - The trial judge committed two errors in instructing the jury - First, he failed to instruct to the jury against using acts of discreditable conduct by the accused for propensity based reasoning - Secondly, the trial judge erred in refusing to order production of the Children's Aid Society records respecting one of the three sisters - The Nova Scotia Court of Appeal invoked s. 683(1)(b)(iii) of the Criminal Code to dismiss the appeal notwithstanding the errors, where the verdict would necessarily have been the same had the errors not been made - There was no substantial wrong or miscarriage of justice - See paragraphs 83 to 101.

Criminal Law - Topic 5380

Evidence - Witnesses - Documents and reports - Medical records of witnesses - [See Criminal Law - Topic 691 ].

Cases Noticed:

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. 35].

R. v. Regan (G.A.) (1998), 174 N.S.R.(2d) 268; 532 A.P.R. 268 (S.C.), refd to. [para. 41].

R. v. Litchfield, [1993] 4 S.C.R. 333; 161 N.R. 161; 145 A.R. 321; 55 W.A.C. 321, refd to. [para. 43].

R. v. Savoury (T.) et al. (2005), 201 O.A.C. 40; 200 C.C.C.(3d) 94 (C.A.), refd to. [para. 43].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241, refd to. [para. 56].

R. v. Mills (B.J.), [1999] 3 S.C.R. 668; 248 N.R. 101; 244 A.R. 201; 209 W.A.C. 201, refd to. [para. 59].

R. v. T.C.F. (2006), 243 N.S.R.(2d) 237; 772 A.P.R. 237 (C.A.), refd to. [para. 71].

R. v. F.F.B., [1993] 1 S.C.R. 697; 148 N.R. 161; 120 N.S.R.(2d) 1; 332 A.P.R. 1, refd to. [para. 73].

R. v. Rarru (H.S.) (No. 3), [1996] 2 S.C.R. 165; 197 N.R. 310; 77 B.C.A.C. 14; 126 W.A.C. 14, refd to. [para. 73].

R. v. Jacquard (C.O.), [1997] 1 S.C.R. 314; 207 N.R. 246; 157 N.S.R.(2d) 161; 462 A.P.R. 161, refd to. [para. 78].

R. v. Rhee (D.G.), [2001] 3 S.C.R. 364; 275 N.R. 281; 157 B.C.A.C. 30; 256 W.A.C. 30, refd to. [para. 78].

R. v. Bevan and Griffith, [1993] 2 S.C.R. 599; 154 N.R. 245; 64 O.A.C. 165, refd to. [para. 84].

R. v. Arradi (Z.), [2003] 1 S.C.R. 280; 302 N.R. 367 (S.C.C.), refd to. [para. 84].

R. v. Khan (M.A.), [2001] 3 S.C.R. 823; 279 N.R. 79; 160 Man.R.(2d) 161; 262 W.A.C. 161, refd to. [para. 84].

R. v. Johnson (J.) (2002), 161 O.A.C. 153; 166 C.C.C.(3d) 44 (C.A.), refd to. [para. 100].

Counsel:

Terrance G. Sheppard, for the appellant;

Daniel A. MacRury, Q.C., for the respondent.

This appeal was heard on November 28, 2006, at Halifax, N.S., before Cromwell, Saunders and Oland, JJ.A., of the Nova Scotia Court of Appeal.

On February 9, 2007, Cromwell, J.A., delivered the following judgment for the Court of Appeal.