R. v. S.H.P-P., 2003 NSCA 53

• Jurisdiction: Nova Scotia
• Judge: Saunders, Chipman and Hamilton, JJ.A.
• Neutral Citation: 2003 NSCA 53
• Citation: 2003 NSCA 53,(2003), 215 N.S.R.(2d) 66 (CA),176 CCC (3d) 281,[2003] CarswellNS 182,[2003] NSJ No 171 (QL),215 NSR (2d) 66,57 WCB (2d) 536,675 APR 66,215 NSR(2d) 66,675 A.P.R. 66,(2003), 215 NSR(2d) 66 (CA),[2003] NS.J. No 171 (QL),215 N.S.R.(2d) 66
• Date: 23 May 2003
• Court: Court of Appeal of Nova Scotia (Canada)

R. v. S.H.P-P. (2003), 215 N.S.R.(2d) 66 (CA);

 675 A.P.R. 66

MLB headnote and full text

Temp. Cite: [2003] N.S.R.(2d) TBEd. JN.025

S.H.P-P. (appellant) v. Her Majesty The Queen (respondent)

(CAC 187227; 2003 NSCA 53)

Indexed As: R. v. S.H.P-P.

Nova Scotia Court of Appeal

Saunders, Chipman and Hamilton, JJ.A.

May 23, 2003.

Summary:

The accused appealed his sexual assault conviction on the ground that the trial judge erred in stopping a defence witness from giving character evidence respecting the complainant. The accused also alleged that the trial judge erred, during the accused's cross-examination of the complainant respecting prior statements, in interrupting to question whether s. 9 of the Canada Evidence Act required a voir dire.

The Nova Scotia Court of Appeal allowed the appeal and ordered a new trial.

Criminal Law - Topic 689

Sexual offences - Evidence - Sexual conduct or character of complainant - The accused appealed his sexual assault conviction on the ground that the trial judge erred in stopping a defence witness from giving character evidence respecting the complainant - The Nova Scotia Court of Appeal allowed the appeal and ordered a new trial - The court stated that "the trial judge erred in refusing to allow [the witness] to further testify to see if a foundation could be laid that would allow her to give evidence of the complainant's general reputation for truthfulness in the community. She erroneously relied on s. 278.1 of the Code as preventing [the witness] from further testifying. This section relates to production of documents, not admissibility of evidence, and has no application to the admissibility of [the witness's] character evidence." - See paragraphs 3 to 11.

Criminal Law - Topic 5342

Evidence and witnesses - Confessions and voluntary statements - Cross-examination on - A trial judge interrupted the accused's cross-examination of the complainant in a sexual assault case, raising the application of s. 9 of the Canada Evidence Act where the complainant was being cross-examined on her prior written statement to police - The Nova Scotia Court of Appeal held that the trial judge erred - Section 9 was inapplicable - The intervention curtailed the accused's cross-examination of the complainant and violated his fair trial rights - See paragraphs 16 to 23.

Criminal Law - Topic 5404

Evidence and witnesses - Witnesses - Credibility - The Nova Scotia Court of Appeal stated that "what is somewhat troubling is the trial judge's persistent reference to the 'demeanour' of witnesses as an indicator of their credibility. While demeanour is a legitimate marker in the assessment of the veracity and reliability of someone taking the stand, it is not the only measure and must, I respectfully suggest, always be approached with caution. One is not judging character. The obligation is to ascertain the truthfulness and reliability of a person's testimony. Appearances alone may be very deceptive. A most reprehensible witness may be telling the truth. A polished, well-mannered individual may prove to be a consummate liar. Reasons of intelligence, upbringing, education, race, culture, social status and a host of other factors may adversely affect a witness's demeanour and yet may have little bearing on that person's truthfulness. Consequently, quite apart from that witness's appearance or mood, his or her testimony must be carefully considered for its consistency or inconsistency with all of the other evidence presented at trial before any decision can be made concerning its acceptance, in whole or part, or the weight to be attached to it." - See paragraphs 28 to 30.

Criminal Law - Topic 5419.1

Evidence and witnesses - Witnesses - Character evidence respecting - [See Criminal Law - Topic 689 ].

Evidence - Topic 4760

Witnesses - Examination - Prior inconsistent statements - Cross-examination on prior written statements - [See Criminal Law - Topic 5342 ].

Cases Noticed:

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. 9].

R. v. Shearing (I.) (2001), 290 N.R. 225; 168 B.C.A.C. 161; 275 W.A.C. 161; 165 C.C.C.(3d) 225 (S.C.C.), refd to. [para. 11].

R. v. K.G.B. (1993), 148 N.R. 241; 61 O.A.C. 1; 79 C.C.C.(3d) 257 (S.C.C.), refd to. [para. 19].

Counsel:

Brian Stephens, for the appellant;

Peter Rosinski, for the respondent.

This appeal was heard on May 15, 2003, at Halifax, N.S., before Saunders, Chipman and Hamilton, JJ.A., of the Nova Scotia Court of Appeal.

On May 23, 2003, the judgment of the Court of Appeal was delivered and the following opinions were filed:

Hamilton, J.A. (Saunders and Chipman, JJ.A., concurring) - see paragraphs 1 to 15;

Saunders, J.A. (Chipman, J.A., concurring) - see paragraphs 16 to 30.