R. v. A.W.C.,

• Judge: Bielby,C,Picard
• Neutral Citation: 2005 ABCA 96
• Date: 02 March 2005
• Court: Court of Appeal (Alberta)

R. v. A.W.C. (2005), 367 A.R. 50 (CA);

    346 W.A.C. 50

MLB headnote and full text

Temp. Cite: [2005] A.R. TBEd. AP.012

Her Majesty the Queen (respondent) v. A.W.C. (appellant)

(0403-0062-A3; 2005 ABCA 96)

Indexed As: R. v. A.W.C.

Alberta Court of Appeal

Côté and Picard, JJ.A., and Bielby, J.(ad hoc)

March 2, 2005.

Summary:

An accused was convicted on charges of sexual assaults and threats respecting the daughter of his former common law spouse and acquitted on charges respecting the spouse's son. The accused appealed the convictions on the basis that when the daughter testified he was unable to see her and, for a portion of her testimony, had trouble hearing her.

The Alberta Court of Appeal allowed the appeal, quashed the convictions and ordered a new trial limited to the counts on which the accused had been convicted.

Criminal Law - Topic 127

General principles - Rights of accused - Right to be present at trial - An accused was charged with, inter alia, sexually assaulting and threatening the child complainant - During the first half-day of the trial, the complainant testified - The accused could not see her and had trouble hearing her - He was unable to get his counsel's attention - After that half day, he told his counsel of his problems - Counsel informed the judge about the hearing problem - That problem was remedied - Some days later, after the complainant's evidence was finished, the trial judge noticed the sight problem and instructed that the courtroom's video camera be used to remedy it - Nothing was done about the evidence heard prior to the problems being remedied - The trial judge rejected the accused's evidence, accepted the complainant's evidence and convicted the accused - The accused appealed based on his virtual absence from the trial - The Alberta Court of Appeal quashed the convictions and ordered a new trial - The accused's right to be present under s. 650 of the Criminal Code extended to seeing and hearing the evidence and witnesses - Given the trial judge's heavy reliance upon the complainant's demeanour, it was inappropriate to apply the curative provisions of s. 686(1)(b)(iii).

Criminal Law - Topic 5049

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - Where accused denied right to be present during whole of trial - [See Criminal Law - Topic 127 ].

Counsel:

D.C. Marriott, for the respondent;

M.T. Duckett, Q.C., for the appellant.

This appeal was heard on March 2, 2005, by Côté, Picard and Bielby, JJ.A., of the Alberta Court of Appeal. Côté, J.A., delivered the following memorandum of judgment orally for the court on the same date.