R. v. Tanner (D.W.), (2010) 289 N.S.R.(2d) 128 (SC)

• Judge: McDougall, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: January 28, 2010
• Jurisdiction: Nova Scotia
• Citations: (2010), 289 N.S.R.(2d) 128 (SC);2010 NSSC 82

R. v. Tanner (D.W.) (2010), 289 N.S.R.(2d) 128 (SC);

    916 A.P.R. 128

MLB headnote and full text

Temp. Cite: [2010] N.S.R.(2d) TBEd. MR.032

Donald Warden Tanner (appellant) v. Her Majesty The Queen (respondent)

(Bwt No. 318113; 2010 NSSC 82)

Indexed As: R. v. Tanner (D.W.)

Nova Scotia Supreme Court

McDougall, J.

March 5, 2010.

Summary:

The accused allegedly touched the breast of a 21 year old female cashier at a gas station. The accused was charged with sexual assault.

The Nova Scotia Provincial Court, in a judgment not reported in this series of reports, found the accused guilty and imposed a suspended sentence plus one year's probation. The judge rejected the accused's request for an absolute or conditional discharge. The accused appealed against conviction and sentence.

The Nova Scotia Supreme Court dismissed the appeal.

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

Criminal Law - Topic 4430

Procedure - Verdicts - Discharges and dismissals - Absolute or conditional discharge in lieu of conviction - [See Criminal Law - Topic 5932 ].

Criminal Law - Topic 5932

Sentence - Sexual assault - The accused lightly touched the breast of a 21 year old female gas station cashier - The trial judge imposed a suspended sentence plus one year's probation - The accused and Crown had agreed to one year's probation, but the accused had argued for an absolute or conditional discharge - He appealed on the ground that the judge failed to properly consider whether to grant a discharge - The Nova Scotia Supreme Court dismissed the appeal - The accused's argument appeared to be that "the harm done was minimal and the best interests of the accused would be a discharge" - The court held that the accused's argument failed to consider whether it was in the public interest to grant a discharge - The court agreed that the offence was "a sexual assault where the accused grabbed the victim's breast in her workplace, and made insulting and degrading comments to, and about, her. ... I am satisfied that the sentence was well within the range of acceptable sentences and was not demonstrably unfit. There is no merit to the appeal on sentencing." - See paragraphs 35 to 39.

Evidence - Topic 2401

Special modes of proof - Presumptions - Specific presumptions - Inference from failure to call or adduce available evidence - The accused was found guilty of sexual assault for touching the breast of a 21 year old female cashier at a gas station - The gas station was equipped with a video surveillance system - By the time the cashier reported the incident, any likely recording of the incident would have been recorded over and unavailable - The accused argued that relevant evidence was lost because of the cashier's failure to make a timely complaint - The trial judge declined the accused's request to draw an adverse inference from the "apparently missing tape" - Since the tape had never come into the Crown's possession, there was no basis to draw an adverse inference - The Nova Scotia Supreme Court dismissed the accused's conviction appeal, stating that "the [accused] does not suggest any specific basis upon which the trial judge ought to have drawn the inference he requested; he simply argues (it appears) that the inference follows naturally from the unavailability of the video tape. The trial judge was not convinced of this and addressed the delay (and, inferentially, the loss of the video evidence) in her assessment of the [cashier's] credibility. Her findings were clearly reasoned and supported on the record. There is no merit to this ground of appeal." - See paragraphs 17 to 26.

Cases Noticed:

R. v. Nickerson (W.S.) (1999), 178 N.S.R.(2d) 189; 549 A.P.R. 189; 1999 CarswellNS 203 (C.A.), refd to. [para. 16].

R. v. Heikel et al. (No. 3) (1990), 110 A.R. 161; 1990 CarswellAlta 490 (Q.B.), refd to. [para. 17].

R. v. Carosella (N.), [1997] 1 S.C.R. 80; 207 N.R. 321; 98 O.A.C. 81; 1997 CarswellOnt 85, refd to. [para. 19].

R. v. Solomon (M.), [2002] O.T.C. 1042; 2002 CarswellOnt 4526 (Sup. Ct.), refd to. [para. 22].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352; 1991 CarswellOnt 80, refd to. [para. 33].

R. v. Nimchuk (1977), 33 C.C.C.(2d) 209; 1977 CarswellOnt 980 (C.A.), refd to. [para. 33].

R. v. Walsh (J.F.) (1995), 145 N.S.R.(2d) 77; 418 A.P.R. 77; 1995 CarswellNS 530 (C.A.), refd to. [para. 33].

R. v. Gabriel (R.) (1999), 98 O.T.C. 193; 137 C.C.C.(3d) 1; 1999 CarswellOnt 2105 (Sup. Ct.), refd to. [para. 35].

R. v. Fallofield (1973), 13 C.C.C.(2d) 450; 1973 CarswellBC 184 (C.A.), refd to. [para. 36].

R. v. Adams (J.W.) (2009), 431 A.R. 240; 2009 ABQB 160, refd to. [para. 37].

R. v. Eszczuk, 2009 CarswellAlta 796 (Q.B.), refd to. [para. 37].

R. v. Knickle (N.A.) (2009), 277 N.S.R.(2d) 392; 882 A.P.R. 392; 2009 NSCA 59, refd to. [para. 39].

Counsel:

Michael K. Power, Q.C., for the appellant;

Leigh-Ann Bryson, for the respondent.

This appeal was heard on January 28, 2010, at Bridgewater, N.S., before McDougall, J., of the Nova Scotia Supreme Court, who delivered the following judgment on March 5, 2010.