R. v. Taweel (S.N.), 2015 NSCA 107

• Jurisdiction: Nova Scotia
• Court: Court of Appeal of Nova Scotia (Canada)
• Judge: Beveridge, Saunders and Van den Eynden, JJ.A.
• Citation: 2015 NSCA 107,(2015), 367 N.S.R.(2d) 208 (CA)
• Date: 26 November 2015

R. v. Taweel (S.N.) (2015), 367 N.S.R.(2d) 208 (CA);

    1157 A.P.R. 208

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. NO.043

Stephen Nicholas Taweel (appellant) v. Her Majesty the Queen (respondent)

(CAC 430344; 2015 NSCA 107)

Indexed As: R. v. Taweel (S.N.)

Nova Scotia Court of Appeal

Beveridge, Saunders and Van den Eynden, JJ.A.

November 26, 2015.

Summary:

The accused, in a judgment reported [2014] N.S.R.(2d) Uned. 49, was found guilty of sexually assaulting a 14 year old girl in 1991. The now 55 year old accused pursued a vulnerable, socially inept girl and had sexual intercourse with her on three occasions. The accused sought a conditional sentence. The Crown sought 3-4 years' imprisonment.

The Nova Scotia Supreme Court, in a judgment reported (2014), 349 N.S.R.(2d) 280; 1101 A.P.R. 280, emphasizing the need for denunciation and deterrence respecting sexual assaults against children, held that a conditional sentence would be inappropriate. The accused was sentenced to 28 months' imprisonment. The accused appealed against conviction and sentence.

The Nova Scotia Court of Appeal allowed the appeal and ordered a new trial. The trial judge erred in admitting "questionable" similar fact evidence for "narrative" and "context", then improperly using that evidence to discredit the accused's testimony. The court found it unnecessary to determine the accused's application to introduce "fresh evidence" on the appeal, as that evidence had no bearing on the outcome of 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 5209

Evidence and witnesses - Admissibility and relevancy - Prejudicial evidence - [See Criminal Law - Topic 5213 ].

Criminal Law - Topic 5213

Evidence and witnesses - Admissibility and relevancy - Similar acts - When admissible - In 2014, the accused was convicted of sexually assaulting a 14 year old girl in 1991 in Dartmouth - The trial judge accepted the girl's testimony that the accused had non-consensual sexual intercourse with her on three occasions - The trial judge admitted "similar fact" evidence of alleged earlier sexual encounters between the two in Prince Edward Island (P.E.I.) for the limited purposes of "narrative" and "context", acknowledging that the evidence could not be admitted for the truth of its contents - No charges ever arose respecting the alleged P.E.I. encounters - Notwithstanding the limited use admission, the trial judge used the "similar fact" evidence to discredit the accused's credibility - The accused testified that they met only once in Dartmouth and that there was no sexual activity - The Nova Scotia Court of Appeal opined that the "similar fact" evidence should not have been admitted, but found it unnecessary to decide the issue because, even if the evidence was properly admitted, the trial judge erred in using that evidence improperly to discredit the accused's testimony - The trial judge, while acknowledging that the P.E.I. evidence could not be used for the truth of its contents, did just that by rejecting the accused's evidence denying sexual assault "based on a substantive comparison of the details of the PEI evidence given by the appellant and the complainant" - The PEI evidence was irrelevant and unnecessary where the accused admitted that he met and had sexual encounters with the girl in P.E.I. - The P.E.I. evidence was not needed to provide "narrative" or "context" - The court stated that "the judge sifted through the PEI evidence that described in copious detail events for which the appellant had never been charged, in a searching comparison of the accounts given by the complainant and the appellant, pulling out statements the judge perceived as 'contradictions' and 'inconsistencies'. The judge then applied those findings to discredit the whole of the appellant's evidence and to find him guilty of the offence in Nova Scotia for which he had been prosecuted" - The court set aside the conviction and ordered a new trial - See paragraphs 68 to 167.

Criminal Law - Topic 5449

Evidence and witnesses - Evidence respecting the accused - Character of accused (incl. discreditable conduct) - General - [See Criminal Law - Topic 5213 ].

Practice - Topic 8804

Appeals - General principles - Duty of appellate court regarding discretionary orders - The Nova Scotia Court of Appeal discussed the standard of review of a trial judge's discretionary decision to admit similar fact evidence and the use to which that evidence was put - The court referred to the following: "Appellate courts will defer to the trial judge's assessment of where the balance falls between probative value and prejudicial effect unless an appellant can demonstrate that the result of the analysis is unreasonable, or is undermined by a legal error or a misapprehension of material evidence" - The court stated that the use of similar fact evidence "does not involve the exercise of discretion. It requires the proper application of legal principles. The misapplication of the rules governing the use of similar fact evidence raises an issue of law and is reviewable for correctness" - See paragraphs 63 to 66.

Cases Noticed:

R. v. Handy (J.) (2002), 290 N.R. 1; 160 O.A.C. 201; 2002 SCC 56, refd to. [para. 31].

R. v. Stubbs (S.) (2013), 309 O.A.C. 114; 2013 ONCA 514, refd to. [para. 64].

R. v. C.J. (2011), 307 N.S.R.(2d) 200; 975 A.P.R. 200; 2011 NSCA 77, refd to. [para. 65].

R. v. D.A.R. (2012), 314 N.S.R.(2d) 331; 994 A.P.R. 33; 2012 NSCA 31, dist. [para. 124].

Counsel:

Brian H. Greenspan and Robin K. McKechney, for the appellant;

Timothy O'Leary, for the respondent.

This appeal was heard on June 17-18, 2015, at Halifax, N.S., before Beveridge, Saunders and Van den Eynden, JJ.A., of the Nova Scotia Court of Appeal.

On November 26, 2015, Saunders, J.A., delivered the following judgment for the Court of Appeal.