R. v. VanEindhoven (A.), (2012) 533 A.R. 38

• Judge: Berger, Costigan and McDonald, JJ.A.
• Court: Nunavut Court of Appeal (Canada)
• Case Date: February 14, 2012
• Jurisdiction: Nunavut
• Citations: (2012), 533 A.R. 38;2012 NUCA 5

R. v. VanEindhoven (A.) (2012), 533 A.R. 38; 557 W.A.C. 38 (CA)

MLB headnote and full text

Temp. Cite: [2012] A.R. TBEd. JL.060

Her Majesty the Queen (respondent) v. Adrian VanEindhoven (appellant)

(18-07-001-CAP; 2012 NUCA 5)

Indexed As: R. v. VanEindhoven (A.)

Nunavut Court of Appeal

Berger, Costigan and McDonald, JJ.A.

March 8, 2012.

Summary:

The accused was convicted of second degree murder in the stabbing death of his partner. He appealed.

The Nunavut Court of Appeal allowed the appeal, ordering a new trial.

Criminal Law - Topic 4953

Appeals - Indictable offences - New trials - Grounds - Admission of prejudicial evidence - [See Criminal Law - Topic 5214.4 ].

Criminal Law - Topic 5037

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - Evidentiary error - [See Criminal Law - Topic 5214.4 ].

Criminal Law - Topic 5204.3

Evidence and witnesses - General - Admissibility - Evidence of disposition or propensity of accused - [See Criminal Law - Topic 5214.4 ].

Criminal Law - Topic 5209

Evidence and witnesses - Admissibility and relevancy - Prejudicial evidence - [See Criminal Law - Topic 5214.4 ].

Criminal Law - Topic 5212

Evidence and witnesses - Admissibility and relevancy - Similar acts - General (incl. procedure) - [See Criminal Law - Topic 5214.4 ].

Criminal Law - Topic 5214.4

Evidence and witnesses - Admissibility and relevancy - Similar acts - To prove propensity - The accused was convicted of second degree murder in the stabbing death of his partner - The evidence at trial included information regarding the accused's prior abuse of the victim and his participation in a spousal abuse program - The Nunavut Court of Appeal allowed the accused's appeal, ordering a new trial - The trial judge erred in the admission of the "propensity evidence" - While the judge correctly stated the test for admission, he erred in the application of the test in that he failed to identify or acknowledge the additional prejudicial effect of the evidence - The disputed evidence "merely amounted to additional evidence of 'bad character'" and was inadmissible - While the trial judge did state that the evidence was probative to the issues of hostile intent, deliberate act and context, he failed to compare the degree to which the evidence was probative to its substantial prejudice - The evidentiary ruling was a serious error that prejudiced the accused and could well have affected the verdict - The curative proviso (s. 686(1)(b)(iii) of the Criminal Code) did not apply - The proviso could not be invoked "by an appellate court with anything approaching reality to retry a case to assess the worth of residual evidence after improperly adduced evidence has been extracted" - A new trial was required.

Criminal Law - Topic 5449

Evidence and witnesses - Evidence respecting the accused - Character of accused (incl. discreditable conduct) - General - [See Criminal Law - Topic 5214.4 ].

Evidence - Topic 1026

Relevant facts - Relevance and materiality - Admissibility - Prejudicial evidence - [See Criminal Law - Topic 5214.4 ].

Evidence - Topic 1257

Relevant facts - Relevance and materiality - Similar acts - To prove course of conduct - [See Criminal Law - Topic 5214.4 ].

Cases Noticed:

R. v. J.G.C. (2006), 207 O.A.C. 216; 204 C.C.C.(3d) 449 (C.A.), refd to. [para. 11].

R. v. Chapman - see R. v. J.G.C.

R. v. Cudjoe (R.) (2009), 251 O.A.C. 163; 2009 ONCA 543, refd to. [para. 11].

R. v. W.B. (2000), 134 O.A.C. 1; 145 C.C.C.(3d) 449; 49 O.R.(3d) 321 (C.A.), refd to. [para. 11].

R. v. Batte - see R. v. W.B.

R. v. Van Osselaer (P.) (2002), 172 B.C.A.C. 58; 282 W.A.C. 58; 167 C.C.C.(3d) 225 (C.A.), leave to appeal denied (2003), 313 N.R. 199; 192 B.C.A.C. 160; 315 W.A.C. 1 (S.C.C.), refd to. [para. 11].

R. v. Handy (J.), [2002] 2 S.C.R. 908; 290 N.R. 1; 160 O.A.C. 201; 2002 SCC 56, refd to. [para. 24].

R. v. C.R.B., [1990] 1 S.C.R. 717; 107 N.R. 241; 109 A.R. 81, refd to. [para. 25].

R. v. Villeda (G.M.) (2010), 493 A.R. 279; 502 W.A.C. 279; 2010 ABCA 351, refd to. [para. 26].

R. v. Charlebois (P.), [2000] 2 S.C.R. 674; 261 N.R. 239; 2000 SCC 53, refd to. [para. 30].

R. v. P.L.S., [1991] 1 S.C.R. 909; 122 N.R. 321; 90 Nfld. & P.E.I.R. 234; 280 A.P.R. 234, refd to. [para. 30].

R. v. John, [1985] 2 S.C.R. 476; 63 N.R. 141; 11 O.A.C. 391, refd to. [para. 31].

Counsel:

M.E. Bryant and J. Gevikoglu, for the respondent;

L.K. Stevens, Q.C., for the appellant.

This appeal was heard on February 14, 2012 and decided on March 8, 2012, by Berger, Costigan and McDonald, JJ.A., of the Nunavut Court of Appeal. On July 11, 2012, the court filed the following written reasons for judgment.