R. v. S.M.R., (2004) 190 O.A.C. 271 (CA)

• Judge: Doherty, Laskin and Juriansz, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: August 26, 2004
• Jurisdiction: Ontario
• Citations: (2004), 190 O.A.C. 271 (CA)

R. v. S.M.R. (2004), 190 O.A.C. 271 (CA)

MLB headnote and full text

Temp. Cite: [2004] O.A.C. TBEd. OC.009

Her Majesty The Queen (respondent) v. S.M.R. (applicant/appellant)

(C35708; C38206)

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

Ontario Court of Appeal

Doherty, Laskin and Juriansz, JJ.A.

September 29, 2004.

Summary:

The accused was convicted of several offences. A jury convicted him of assault, sexual assault and two counts of unlawful confinement. The Crown applied to have the accused declared a dangerous offender.

The Ontario Superior Court, in a decision reported at [2002] O.T.C. 136, held that the accused was a dangerous offender and imposed an indeterminate sentence. The accused appealed his conviction and the imposition of an indeterminate sentence.

The Ontario Court of Appeal allowed the appeal in part. The court quashed the convictions on the two unlawful confinement charges, but upheld the convictions for assault and sexual assault. The court affirmed the imposition of an indeterminate sentence.

Editor's note: certain names in the following case have been initialized or the case other-wise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 4323

Procedure - Jury - General - Unanimity or disagreement among jurors - The accused appealed his conviction for, inter alia, sexually assaulting A.M. - A.M. had testified that the accused had confined her in her house for an hour and half and during that time sexually assaulted her in the kitchen and in the bedroom - The accused argued that the trial judge erred in his instruction on the unanimity requirement - The instruction indicated that the jury could convict the accused even if all twelve did not rely on the same distinct act to establish the requisite sexual assault - The Ontario Court of Appeal upheld the jury instruction - "Given the definition of sexual assault and the wording of the sexual assault charge, it was a matter of 'legal indifference' where in the house A.M. was assaulted or which of the various acts occurred" - It was open to the jury to reach different factual conclusions concerning the act that constituted the sexual assault as long as the act was within the four corners of the indictment - A unanimous finding that the accused sexually assaulted A.M. at some point in time during the incident described by her fulfilled the purpose underlying the unanimity requirement - See paragraphs 55 to 85.

Criminal Law - Topic 4364

Procedure - Charge or directions - Jury or judge alone - Directions regarding unanimity and disagreement - [See Criminal Law - Topic 4323 ].

Criminal Law - Topic 4633

Procedure - Mistrials - Grounds - The accused was charged with several offences, including the unlawful confinement and sexual assault of A.M. - In an outburst at the end of her cross-examination, A.M. alleged that the accused had sexually assaulted other women - The Ontario Court of Appeal held that the trial judge did not err in denying the accused's request for a mistrial - The statement was made during a long and rambling emotional outburst delivered in a low and heavily accented voice - The trial judge had observed that the jury had no apparent reaction to the statement - He was entitled to take his observations into consideration in deciding whether an instruction to ignore the outburst would adequately address the accused's concerns - He delivered powerful instructions on more than one occasion clearly telling the jury that A.M.'s outburst was not relevant to their deliberations - See paragraphs 14 and 15.

Evidence - Topic 1527

Hearsay rule - Exceptions and exclusions - Where admission of hearsay necessary and evidence reliable - The accused was convicted of, inter alia, assaulting A.M. and unlawfully confining A.M. and her eight year old son J.M. - The trial judge admitted out of court statements made by J.M. - A child psychologist (Hurley) gave general evidence about the potential negative effects testifying might have on children - However, Hurley had only spoken to J.M. for two to three minutes and could not offer an individualized assessment about J.M. - The trial judge held that the admission of the statements was necessary because J.M. would suffer trauma if required to testify - The Ontario Court of Appeal held that the trial judge erred in admitting J.M.'s statements - Absent an evidentiary link between Hurley's general evidence and specific evidence about J.M.'s emotional and psychological state, it was not open to the trial judge to rely on Hurley's evidence to find that requiring J.M. to testify would "add considerable harm to" him - See paragraphs 16 to 54.

Evidence - Topic 1751

Hearsay rule - Exceptions and exclusions - Children's statements - [See Evidence - Topic 1527 ].

Cases Noticed:

R. v. Khan, [1990] 2 S.C.R. 531; 113 N.R. 53; 41 O.A.C. 353; 59 C.C.C.(3d) 92, refd to. [para. 16].

R. v. Rockey (S.E.), [1996] 3 S.C.R. 829; 204 N.R. 214; 95 O.A.C. 134; 110 C.C.C.(3d) 481, refd to. [para. 41].

Khan v. College of Physicians and Surgeons of Ontario (1992), 57 O.A.C. 115; 76 C.C.C.(3d) 10 (C.A.), refd to. [para. 41].

R. v. Parrott (W.), [2001] 1 S.C.R. 178; 265 N.R. 304; 198 Nfld. & P.E.I.R. 260; 595 A.P.R. 260; 150 C.C.C.(3d) 449, refd to. [para. 42].

R. v. Olsen (L.) and Podnewicz (M.) (1999), 116 O.A.C. 357; 131 C.C.C.(3d) 355 (C.A.), refd to. [para. 43].

R. v. R.R. (2001), 151 O.A.C. 1; 159 C.C.C.(3d) 11 (C.A.), affd. (2003), 300 N.R. 230; 169 O.A.C. 180; 171 C.C.C.(3d) 575 (S.C.C.), refd to. [para. 43].

R. v. W.J.F., [1999] 3 S.C.R. 569; 247 N.R. 62; 180 Sask.R. 161; 205 W.A.C. 161; 138 C.C.C.(3d) 1, refd to. [para. 45].

R. v. O'Connor (P.) (2002), 166 O.A.C. 202; 170 C.C.C.(3d) 365 (C.A.), refd to. [para. 49].

R. v. Bouvier (1984), 1 O.A.C. 302; 11 C.C.C.(3d) 257 (C.A.), affd. [1985] 2 S.C.R. 485; 64 N.R. 321; 11 O.A.C. 185; 22 C.C.C.(3d) 576, refd to. [para. 59].

R. v. Morin, [1988] 2 S.C.R. 345; 88 N.R. 161; 30 O.A.C. 81; 44 C.C.C.(3d) 193, folld. [para. 59].

R. v. Brown (1983), 79 Cr. App. Rep. 115 (C.A.), consd. [para. 61].

R. v. More (1986), 86 Cr. App. Rep. 234 (H.L.), refd to. [para. 63, footnote 1].

K.B.T. v. R. (1997), 72 A.L.R.J. 116 (Aust. H.C.), refd to. [para. 63, footnote 1].

R. v. Boreman, [2000] 1 All E.R. 307 (C.A.), refd to. [para. 63].

R. v. Carr, [2000] 2 Cr. App. Rep. 149 (C.A.), refd to. [para. 63].

R. v. Thatcher, [1987] 1 S.C.R. 652; 75 N.R. 198; 57 Sask.R. 113; [1987] 4 W.W.R. 193; 32 C.C.C.(3d) 481, folld. [para. 68].

R. v. Dool, [1987] O.J. No. 564 (C.A.), folld. [para. 74].

R. v. Pearson (E.) (1994), 60 Q.A.C. 103; 89 C.C.C.(3d) 535 (C.A.), folld. [para. 75].

R. v. G.L.M. (1999), 128 B.C.A.C. 102; 208 W.A.C. 102; 138 C.C.C.(3d) 383 (C.A.), folld. [para. 78].

R. v. Mead and Molloy, [2001] NZCA 228 (C.A.), refd to. [para. 81].

R. v. Johnson (J.J.) (2003), 308 N.R. 333; 186 B.C.A.C. 161; 306 W.A.C. 161; 177 C.C.C.(3d) 97 (S.C.C.), dist. [para. 86].

Authors and Works Noticed:

Archbold, Criminal Pleading, Evidence and Practice (2004), pp. 474, 475, 476 [para. 63, footnote 1].

Smith, Satisfying the Jury, [1988] Crim. L.R. 335, p. 342 [para. 65].

Counsel:

Christopher Hicks and Victor Giourgas, for the appellant;

Howard Leibovich and Joan Barrett, for the respondent.

This appeal was heard on August 26, 2004, by Doherty, Laskin and Juriansz, JJ.A., of the Ontario Court of Appeal. The following judgment of the court was delivered by Doherty, J.A., on September 29, 2004.