R. v. Seymour (R.E.), 2005 NSCA 5

• Judge: Saunders, Freeman and Fichaud, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: January 07, 2005
• Jurisdiction: Nova Scotia
• Citations: 2005 NSCA 5;(2005), 229 N.S.R.(2d) 249 (CA)

R. v. Seymour (R.E.) (2005), 229 N.S.R.(2d) 249 (CA);

 725 A.P.R. 249

MLB headnote and full text

Temp. Cite: [2005] N.S.R.(2d) TBEd. JA.030

Richard Elliott Seymour (appellant) v. Her Majesty The Queen (respondent)

(CAC 207668; 2005 NSCA 5)

Indexed As: R. v. Seymour (R.E.)

Nova Scotia Court of Appeal

Saunders, Freeman and Fichaud, JJ.A.

January 7, 2005.

Summary:

Following a jury trial, the accused was convicted of arson and fraud-related offences respecting the destruction of his motel and business by fire and explosion. The accused appealed his convictions on the grounds that (1) the trial judge erred in permitting the Crown, on a Corbett application, to introduce into evidence the accused's prior break and enter conviction; (2) the trial judge erred in failing to disclose the contents of a jury note received during the course of deliberations; and (3) the verdict was unreasonable.

The Nova Scotia Court of Appeal dismissed the appeal.

Criminal Law - Topic 4306

Procedure - Jury - Communications with jury (incl. notes from jury) - After several hours of jury deliberations, the trial judge received a note from the jury indicating that 10 voted guilty and two voted not guilty - The judge did not disclose the contents of the note to counsel, indicating only that the jury was having difficulty reaching a verdict - The judge then delivered a proper jury exhortation instructing the jury that while they need not reach a unanimous verdict, they had a duty to use their best efforts to do so - The jury retired to deliberate and reached a unanimous guilty verdict the next day - The Nova Scotia Court of Appeal held that nondisclosure of the note violated the accused's s. 650 Criminal Code right to be present throughout the whole of his trial - However, this was a procedural error that did not result in a miscarriage of justice - The court invoked s. 686(1)(b)(iv) of the Criminal Code to dismiss the appeal notwithstanding the error - The note did not involve a question by the jury indicating confusion on their part and nondisclosure did not affect the vital interests of the accused to his prejudice - See paragraphs 50 to 81.

Criminal Law - Topic 4375.5

Procedure - Charge or directions - Jury or judge alone - Directions re prior misconduct or convictions - Following a jury trial, the accused was convicted of arson and fraud-related offences respecting the destruction of his motel and business by fire and explosion - The accused appealed on the ground that the trial judge erred in permitting the Crown, on a Corbett application, to introduce into evidence his prior break and enter conviction (nine years earlier) - The accused testified and the Crown was permitted to cross-examine him on his prior conviction to challenge his credibility - The Nova Scotia Court of Appeal held that the trial judge did not err in exercising his discretion and the jury was properly instructed that they could use the evidence only to test the credibility of the accused; that evidence of the prior conviction was not to be used to conclude that the accused was more likely to have committed the offence - The court noted that the accused's counsel did not object to the jury charge - The clear and complete jury instructions obviated any risk of prejudice to the accused - See paragraphs 35 to 49.

Criminal Law - Topic 4391.1

Procedure - Charge or directions - Jury or judge alone - Deadlocked jury exhortation - [See Criminal Law - Topic 4306 ].

Criminal Law - Topic 4487

Procedure - Trial - Attendance of accused -[See Criminal Law - Topic 4306 ].

Criminal Law - Topic 5437

Evidence and witnesses - Cross-examination of accused - Prior charges, convictions, etc. - [See Criminal Law - Topic 4375.5 ].

Cases Noticed:

R. v. Corbett, [1988] 1 S.C.R. 670; 85 N.R. 81, refd to. [para. 40].

R. v. Grosse (1983), 61 N.S.R.(2d) 54; 133 A.P.R. 54; 9 C.C.C.(3d) 465 (C.A.), refd to. [para. 41].

R. v. Mulligan (C.) (1997), 100 O.A.C. 324; 115 C.C.C.(3d) 559 (C.A.), refd to. [para. 44].

R. v. Warriner (D.M.), [2001] O.A.C. Uned. 248 (C.A.), refd to. [para. 44].

R. v. Gayle (C.) (2001), 145 O.A.C. 115; 54 O.R.(3d) 36; 154 C.C.C.(3d) 221 (C.A.), leave to appeal refused (2002), 286 N.R. 199; 160 O.A.C. 1999 (S.C.C.), refd to. [para. 44].

R. v. Tran (Q.D.), [1994] 2 S.C.R. 951; 170 N.R. 81; 133 N.S.R.(2d) 81; 380 A.P.R. 81, dist. [para. 58].

R. v. Fontaine (D.) (2002), 166 Man.R.(2d) 214; 278 W.A.C. 214; 168 C.C.C.(3d) 263 (C.A.), dist. [para. 58].

R. v. Halliday (W.L.) (1992), 83 Man.R.(2d) 142; 236 W.A.C. 142; 77 C.C.C.(3d) 481 (C.A.), refd to. [para. 58].

R. v. Laws (D.) (1998), 112 O.A.C. 353; 128 C.C.C.(3d) 516 (C.A.), dist. [para. 63].

R. v. Vézina - see R. v. Côté and Vézina.

R. v. Côté and Vézina, [1986] 1 S.C.R. 2; 64 N.R. 93, dist. [para. 64].

R. v. Corbett (1973), 1 N.R. 258; 14 C.C.C.(2d) 385 (S.C.C.), refd to. [para. 82].

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351, refd to. [para. 83].

R. v. Biniaris (J.), [2000] 1 S.C.R. 381; 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161, refd to. [para. 83].

R. v. R.W. (1992), 137 N.R. 214; 54 O.A.C. 164; 74 C.C.C.(3d) 134 (S.C.C.), refd to. [para. 84].

R. v. Brain (J.L.) (2003), 179 B.C.A.C. 303; 295 W.A.C. 303; 172 C.C.C.(3d) 203 (C.A.), refd to. [para. 102].

Counsel:

Jim O'Neil, for the appellant;

William D. Delaney, for the respondent.

This appeal was heard on December 6, 2004, at Halifax, N.S., before Saunders, Freeman and Fichaud, JJ.A., of the Nova Scotia Court of Appeal.

On January 7, 2005, Saunders, J.A., delivered the following judgment for the Court of Appeal.