R. v. S.E.H., (1994) 54 B.C.A.C. 9 (CA)

• Judge: Legg, Goldie and Rowles, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: December 06, 1994
• Jurisdiction: British Columbia
• Citations: (1994), 54 B.C.A.C. 9 (CA)

R. v. S.E.H. (1994), 54 B.C.A.C. 9 (CA);

    88 W.A.C. 9

MLB headnote and full text

Regina (respondent) v. S.E.H. (appellant)

(CA018360)

Indexed As: R. v. S.E.H.

British Columbia Court of Appeal

Legg, Goldie and Rowles, JJ.A.

December 28, 1994.

Summary:

The accused was convicted by a judge and jury of indecent assault, illicit sexual inter­course and sexual assault. All charges related to the accused's stepdaughter. The accused appealed from conviction.

The British Columbia Court of Appeal dismissed the appeal.

Criminal Law - Topic 4351

Procedure - Jury charge - Direction re­garding burden of proof and reasonable doubt - As part of his initial jury charge, the trial judge explained the fundamental principles of the presumption of innocence, the onus of proof and the standard of proof - Immediately following, the judge instructed the jury on the application of the standard of proof to the issue of credibility - The British Columbia Court of Appeal held that in view of the initial instructions, there was no merit to the accused's argu­ment that the trial judge did not relate the issue of credibility to the concept of rea­sonable doubt - See paragraphs 14 to 15.

Criminal Law - Topic 4351

Procedure - Jury charge - Direction re­garding burden of proof and reasonable doubt - A trial judge instructed the jury that when faced with "entirely conflicting pieces of evidence" it "must try to resolve those conflicts" by rejecting "one or the other" - The British Columbia Court of Appeal held that this short direction, while "clearly erroneous", could not have misled the jury, based on the instructions throughout the charge which accorded with the law, including a lengthy instruction which immediately followed the impugned instruction - See paragraphs 22 to 26.

Criminal Law - Topic 4970

Appeals - Indictable offences - Powers of Court of Appeal - Receiving fresh evi­dence - General - An accused charged with sexual offences against his step­daughter failed to provide his counsel before trial with the names of friends and family who would be willing to give char­acter evidence - He claimed embarrass­ment in exposing the existence of the charges and expected to be acquitted - On appeal from conviction, the accused sought to introduce character evidence - The British Columbia Court of Appeal held that although relevant, the fresh evidence was not conclusive and its cogency was not such that it "overbore" the lack of due diligence in presenting it at trial - See paragraphs 29 to 58.

Criminal Law - Topic 5449

Evidence - Witnesses - Testimony re­specting the accused - Character of accused - General - The British Columbia Court of Appeal referred to the general rule that extrinsic evidence as to character was limited to evidence of the accused's reputation in the community - See para­graphs 36 to 46.

Cases Noticed:

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352; 63 C.C.C.(3d) 397; 3 C.R.(4th) 302, refd to. [para. 14].

R. v. Morin, [1988] 2 S.C.R. 345; 88 N.R. 161; 30 O.A.C. 81; 44 C.C.C.(3d) 193; 66 C.R.(3d) 1, refd to. [para. 25].

R. v. Challice (1979), 45 C.C.C.(2d) 546 (Ont. C.A.), refd to. [para. 25].

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181; 14 C.R.(3d) 22; 50 C.C.C.(2d) 193, refd to. [para. 33].

R. v. Tarrant (1981), 63 C.C.C.(2d) 385 (Ont. C.A.), refd to. [para. 35].

R. v. Rowton (1865), 10 Cox. C.C. 25; 169 E.R. 1497 (C.C.A.), refd to. [para. 44].

Michelson v. United States, 335 U.S. 469 (S.C.), refd to. [para. 45].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241, refd to. [para. 46].

R. v. McBirnie (P.S.) (1992), 59 O.A.C. 1 (C.A.), refd to. [para. 50].

R. v. Buick (1991), 1 B.C.A.C. 30; 1 W.A.C. 30 (C.A.), refd to. [para. 51].

R. v. McAnespie (R.B.), [1993] 4 S.C.R. 501; 162 N.R. 155; 68 O.A.C. 185, refd to. [para. 52].

R. v. Kanaly (T.L.) (1994), 42 B.C.A.C. 288; 67 W.A.C. 288 (C.A.), refd to. [para. 52].

R. v. Profit (K.G.), [1993] 3 S.C.R. 637; 159 N.R. 395; 68 O.A.C. 37; 85 C.C.C.(3d) 232, consd. [para. 53].

R. v. Yadollahi (1987), 19 O.A.C. 392; 36 C.C.C.(3d) 478 (C.A.), refd to. [para. 55].

R. v. Smith (1985), 8 O.A.C. 241; 19 C.C.C.(3d) 115, leave to appeal to the S.C.C. refused (1985), 61 N.R. 266; 11 O.A.C. 17 (S.C.C.), refd to. [para. 55].

R. v. R.J.S. - see R. v. Smith.

R. v. C.W.H. (1991), 3 B.C.A.C. 205; 7 W.A.C. 205; 68 C.C.C.(3d) 146 (C.A.), refd to. [para. 55].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 683 [para. 32]; sect. 683(1) [paras. 2, 29, 47, 57].

Authors and Works Noticed:

Sopinka, J., Lederman, S., and Bryant, A., The Law of Evidence in Canada (1992), pp. 445, 446 [para. 45].

Counsel:

C.R. Penty, for the appellant;

W. Rubin, for the respondent.

This appeal was heard in Vancouver, British Columbia, on December 6, 1994, before Legg, Goldie and Rowles, JJ.A., of the British Columbia Court of Appeal. The decision of the court was delivered by Rowles, J.A., on December 28, 1994.