R. v. Sylvain (W.), 2014 ABCA 153

• Judge: Fraser, C.J.A., Picard and Slatter, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: May 01, 2014
• Citations: 2014 ABCA 153;(2014), 575 A.R. 59

R. v. Sylvain (W.) (2014), 575 A.R. 59; 612 W.A.C. 59 (CA)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. MY.009

Her Majesty the Queen (respondent) v. Wilguens Sylvain (appellant)

(1301-0038-A; 2014 ABCA 153)

Indexed As: R. v. Sylvain (W.)

Alberta Court of Appeal

Fraser, C.J.A., Picard and Slatter, JJ.A.

May 1, 2014.

Summary:

The accused and victim both consumed significant quantities of alcohol at a bar Christmas party. When the bar closed, they left and had anal intercourse in a park. The victim claimed that the sex act was nonconsensual. The accused was charged with sexual assault.

The Alberta Provincial Court, in a judgment reported [2012] A.R. Uned. 683, found the accused guilty of sexual assault. The accused appealed.

The Alberta Court of Appeal, Slatter, J.A., concurring in the result, dismissed the appeal.

Criminal Law - Topic 5431

Evidence and witnesses - Cross-examination of accused - General (incl. failure to cross-examine) - The accused was convicted of sexual assault - The accused's defence was that the anal intercourse was consensual - On appeal, the accused argued that the Crown only cross-examined him on collateral points - The Alberta Court of Appeal stated that "The purpose of cross-examination is to explore the evidence of the witness, exposing weaknesses, biases, and inaccuracies, and thereby assist in the truth-finding function. ... Counsel have a wide discretion in the content of their cross-examination ... When the defence amounts to a straight denial of the charge or some necessary element of the charge, there is a school of thought that it is counterproductive to cross-examine extensively, thereby allowing the witness just to repeat his denial over and over. ... The strategy of avoiding the creation of opportunities to just repeat a straight denial would apply to defences like alibi, consent, identity ('wasn't me') and the flat-out denial ('I didn't do it'). In those situations, where the accused testifies and has an opportunity to say in chief what he wants to say about his position, there is no obligation on the Crown to cross-examine on those subjects ... Since the accused cannot be surprised by a bare challenge to his bare denial, the rule in Browne v. Dunn ... is not engaged" - See paragraphs 94 to 96.

Criminal Law - Topic 5434

Evidence and witnesses - Cross-examination of accused - Improper or abusive questioning - What constitutes - The accused was convicted of sexual assault - There were discrepancies in his version of the event in a statement to the police and at trial - The accused, whose first language was French, testified through a translator that the discrepancies resulted from his problems with English - The Crown cross-examined the accused on his fluency in English - On appeal, the accused argued that it was improper to cross-examine him on his use of a translator - The Alberta Court of Appeal held that the cross-examination was not improper - The court stated that "Having put his ability to speak English in issue, the Crown was entitled to explore that issue. The trial judge ultimately concluded that language problems would not account for all of the discrepancies between the police statements and his testimony, but did not draw any inference against the appellant for having requested a translator. Even though the Crown's cross-examination may have been somewhat more aggressive than was necessary, no reviewable error is shown." - See paragraphs 99 to 101.

Evidence - Topic 1130

Relevant facts - Relevance and materiality - Relevance of evidence offered - Prior consistent statements - [See Evidence - Topic 1179 ].

Evidence - Topic 1176

Relevant facts - Relevance and materiality - Res gestae (incl. narrative) - General - At issue was the admissibility of a 911 call made by an alleged sexual assault victim as the sexual assault was about to be committed - The Alberta Court of Appeal stated that: "As a general principle, res gestae statements are admissible as an exception to the hearsay rule ... the particular exception involved here relates to 'excited utterances' ... The rationale for admitting a statement in this category for the truth of its contents is that the stress or pressure under which the statement was made can be said to safely discount the possibility of concoction ... To avoid the prospect of fabrication, the statement should be reasonably contemporaneous with the alleged occurrence. However, exact contemporaneity with the event is not required. ... The excited utterances exception under the common law is also consistent with the principled exception to the hearsay rule ... The reliability of 'excited utterances' comes from the absence of an opportunity to concoct a story. It is true that the mere making of a 911 call does not necessarily bring that call within the 'excited utterances' exception. The defence might well argue, as it did here, that the fact the call was made is equally consistent with the fact it was concocted. That is why a trial judge must assess all the relevant evidence relating to the call, including the content , timing and circumstances of a 911 call, and determine whether in light of all the evidence, it properly falls with the 'excited utterances' category." - See paragraphs 30 to 32.

Evidence - Topic 1179

Relevant facts - Relevance and materiality - Res gestae (incl. narrative) - Telephone calls during or following event - The accused and victim both drank heavily at a Christmas party - When the bar closed, they left and had anal intercourse in a park - The victim claimed that she did not consent - The accused's testimony was that he paid her $100 for sex, but that she called the police falsely accusing him of sexual assault after he refused her demand for more money - In the moments leading up to anal intercourse, when the accused was allegedly on top of her, the victim reached her cell phone and placed a 911 call complaining that she was about to be raped - When the police later found the victim walking near the park, she had no money on her - The 911 call was admitted into evidence without a voir dire - The accused did not object - In fact, he used the 911 call to cross-examine the victim - The accused was convicted of sexual assault - On appeal, the accused argued that the trial judge erred in admitting the 911 call for the truth of its contents - The Alberta Court of Appeal dismissed the appeal - The 911 call was admissible as an "excited utterance" under the res gestae exception to the hearsay rule - The contents of the 911 call were admissible as evidence of the victim's emotional state, the sequence of events, and the physical state of the victim at the time of the call - At a minimum the 911 call had probative value beyond mere repetition - The trial judge found the victim credible, but was alive to the reliability of the victim's testimony due to her admitted intoxication - The trial judge did not use the 911 to corroborate a sexual assault, but to help assess her reliability - The court stated that "the trial judge properly placed it on the scale in assessing the reliability of the complainant's in-court testimony as to the circumstances leading to the call" - The court found it unnecessary to deal with the issue of whether the contents of the 911 call were subject to the limitations that applied to prior consistent res gestae statements, as the issue was not fully argued on appeal and, in any event, the 911 call could still be used to add weight to the victim's in-court testimony - See paragraphs 20 to 44.

Cases Noticed:

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 7].

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; 2000 SCC 15, refd to. [para. 17].

F.H. v. McDougall, [2008] 3 S.C.R. 41; 380 N.R. 82; 260 B.C.A.C. 74; 439 W.A.C. 74; 2008 SCC 53, refd to. [para. 17].

R. v. R.W., [1992] 2 S.C.R. 122; 137 N.R. 214; 54 O.A.C. 164, refd to. [para. 17].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 17].

R. v. Cornell (J.M.) (2009), 454 A.R. 362; 455 W.A.C. 362; 6 Alta. L.R.(5th) 203; 2009 ABCA 147, refd to. [para. 17].

R. v. Shepherd (C.), [2009] 2 S.C.R. 527; 391 N.R. 132; 331 Sask.R. 306; 2009 SCC 35, refd to. [para. 18].

R. v. Araujo (A.) et al., [2000] 2 S.C.R. 992; 262 N.R. 346; 143 B.C.A.C. 257; 235 W.A.C. 257; 2000 SCC 65, refd to. [para. 18].

R. v. Blea (A.J.), [2012] A.R. Uned. 17; 66 Alta. L.R.(5th) 163; 287 C.C.C.(3d) 444; 2012 ABCA 41, refd to. [para. 19].

R. v. S.G.T., [2010] 1 S.C.R. 688; 402 N.R. 24; 350 Sask.R. 14; 487 W.A.C. 14; 2010 SCC 20, refd to. [para. 29].

R. v. Khan (1988), 27 O.A.C. 142; 42 C.C.C.(3d) 197 (C.A.), refd to. [para. 30].

R. v. Ratten, [1972] A.C. 378 (P.C.), refd to. [para. 30].

R. v. Klippenstein (1981), 26 A.R. 568; 57 C.C.C.(2d) 393 (C.A.), refd to. [para. 31].

R. v. Clark (1983), 42 O.R.(3d) 609; 7 C.C.C.(3d) 46 (C.A.), refd to. [para. 31].

R. v. Slugoski (1985), 17 C.C.C.(3d) 212; 43 C.R.(3d) 369 (B.C.C.A.), refd to. [para. 31].

R. v. Dakin (W.E.) (1995), 80 O.A.C. 253; 1995 CarswellOnt 4827 (C.A.), refd to. [para. 31].

R. v. Mackenzie (L.E.), [2011] O.T.C. Uned. 6770; 2011 ONSC 6770, refd to. [para. 32].

R. v. Nicholas (E.S.) (2004), 184 O.A.C. 139; 70 O.R.(3d) 1; 182 C.C.C.(3d) 393 (C.A.), refd to. [para. 33].

R. v. Villeda (G.M.) (2011), 502 A.R. 83; 517 W.A.C. 83; 2011 ABCA 85, refd to. [para. 34].

R. v. Hamilton (B.J.) (2011), 306 N.S.R.(2d) 233; 968 A.P.R. 233; 284 C.C.C.(3d) 386; 2011 NSSC 305, refd to. [para. 34].

R. v. Khan, 2010 CarswellOnt 9254; 2010 ONCJ 580, refd to. [para. 34].

R. v. Dessouza (A.), [2012] O.T.C. Uned. 210; 2012 CarswellOnt 980; 2012 ONSC 210, refd to. [para. 34].

R. v. Vukaj (R.), [2012] B.C.T.C. Uned. 1396; 2012 CarswellBC 2975; 2012 BCSC 1396, refd to. [para. 34].

R. v. Freitas (S.), [2010] O.T.C. Uned. 2031; 2010 CarswellOnt 2811; 2010 ONSC 2031, refd to. [para. 34].

R. v. Rahmanzadeh, 2005 CarswellOnt 944, refd to. [para. 34].

R. v. Byrnes (R.), [2012] O.T.C. Uned. 2090; 2012 CarswellOnt 4003; 2012 ONSC 2090, refd to. [para. 34].

R. v. K.G.B., [1993] 1 S.C.R. 740; 148 N.R. 241; 61 O.A.C. 1, refd to. [para. 72].

R. v. Andrews, [1987] A.C. 281; [1987] 1 All E.R. 513 (H.L.), refd to. [para. 72].

R. v. Béland and Phillips, [1987] 2 S.C.R. 398; 79 N.R. 263; 9 Q.A.C. 293, refd to. [para. 74].

R. v. Stirling (B.J.), [2008] 1 S.C.R. 272; 371 N.R. 384; 251 B.C.A.C. 62; 420 W.A.C. 62; 2008 SCC 10, refd to. [para. 74].

R. v. Ellard - see R. v. K.M.E.

R. v. K.M.E., [2009] 2 S.C.R. 19; 389 N.R. 20; 272 B.C.A.C. 1; 459 W.A.C. 1; 2009 SCC 27, refd to. [para. 74].

R. v. Dinardo (J.), [2008] 1 S.C.R. 788; 374 N.R. 198; 2008 SCC 24, refd to. [para. 75].

R. v. D.C.B. (1994), 95 Man.R.(2d) 220; 70 W.A.C. 220; 91 C.C.C.(3d) 357 (C.A.), refd to. [para. 78].

R. v. Page (1984), 12 C.C.C.(3d) 250; 40 C.R.(3d) 85 (Ont. H.C.), refd to. [para. 78].

R. v. J.A. (2006), 227 B.C.A.C. 119; 374 W.A.C. 119; 209 C.C.C.(3d) 423; 2006 BCCA 258, refd to. [para. 83].

R. v. Ay (1994), 59 B.C.A.C. 161; 98 W.A.C. 161; 93 C.C.C.(3d) 456 (C.A.), refd to. [para. 84].

R. v. Lajoie (G.R.) (1993), 64 O.A.C. 213 (C.A.), refd to. [para. 84].

R. v. Stirling (B.J.) (2007), 234 B.C.A.C. 161; 387 W.A.C. 161; 215 C.C.C.(3d) 208; 2007 BCCA 4, refd to. [para. 84].

R. v. Stapleton - see R. v. Smith (R.E.) et al.

R. v. Smith (R.E.) et al. (2003), 185 B.C.A.C. 304; 303 W.A.C. 304; 2003 BCCA 444, refd to. [para. 84].

R. v. P.F.T. (2014), 347 Nfld. & P.E.I.R. 22; 1080 A.P.R. 22; 2014 NLCA 6, refd to. [para. 84].

R. v. Khela (G.S.), [2009] 1 S.C.R. 104; 383 N.R. 279; 265 B.C.A.C. 31; 446 W.A.C. 31; 2009 SCC 4, refd to. [para. 85].

R. v. Couture (D.R.), [2007] 2 S.C.R. 517; 364 N.R. 1; 244 B.C.A.C. 1; 403 W.A.C. 1; 2007 SCC 28, refd to. [para. 85].

R. v. Roks (A.) (2011), 281 O.A.C. 235; 2011 ONCA 526, refd to. [para. 85].

R. v. C.J.L. (2004), 190 Man.R.(2d) 177; 335 W.A.C. 177; 197 C.C.C.(3d) 407; 2004 MBCA 126, refd to. [para. 93].

R. v. Vuradin (F.) (2013), 446 N.R. 53; 553 A.R. 1; 583 W.A.C. 1; 298 C.C.C.(3d) 139; 2013 SCC 38, refd to. [para. 93].

R. v. I.I. (2013), 542 A.R. 52; 566 W.A.C. 52; 2013 ABCA 2, refd to. [para. 94].

R. v. Lyttle (M.G.), [2004] 1 S.C.R. 193; 316 N.R. 52; 184 O.A.C. 1; 2004 SCC 5, refd to. [para. 96].

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181, refd to. [para. 96].

Browne v. Dunn (1893), 6 R 67 (H.L.), refd to. [para. 96].

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, refd to. [para. 100].

Authors and Works Noticed:

Bryant, Alan W., Lederman, Sidney N., and Fuerst, Michelle K., The Law of Evidence in Canada (3rd Ed. 2009), p. 396 [para. 40].

Hill, S. Casey, Tanovich, David M., and Strezos, Louis P., McWilliams' Canadian Criminal Evidence (5th Ed.) (2013 looseleaf), p. 11:40.50 [paras. 40, 77].

Johnston, E.F.B., The Art of Cross-Examination, [1936] 2 D.L.R. 673, p. 675 [para. 96].

Paciocco, David M., and Stuesser, Lee, The Law of Evidence (6th Ed. 2011), pp. 173 [para. 30]; 177 [para. 71]; 496 [para. 40].

Paciocco, David M., The Perils and Potential of Prior Consistent Statements: Let's Get It Right (2013), 17:2 Can. Crim. L. Rev. 181, pp. 182 to 183 [para. 75]; 186 [para. 82]; 192 to 193 [para. 33]; 194 [para. 86].

Younger, I., A Letter in Which Cicero Lays Down the 10 Commandments of Cross-Examination (1977), 3.2 Litigation 18, p. 20 [para. 96].

Counsel:

J.B. Hawkes, for the respondent;

A.L. Serink, for the appellant.

This appeal was heard on November 6, 2013, before Fraser, C.J.A., Picard and Slatter, JJ.A., of the Alberta Court of Appeal.

On May 1, 2014, the judgment of the Court of Appeal was delivered and the following opinions were filed:

Fraser, C.J.A., and Picard, J.A. - see paragraphs 1 to 48;

Slatter, J.A. - see paragraphs 49 to 102.