R. v. W.A.P., (2009) 460 A.R. 103 (NWTCA)

• Judge: Johnson, Watson and Slatter, JJ.A.
• Court: Court of Appeal (Northwest Territories)
• Case Date: June 16, 2009
• Jurisdiction: Northwest Territories
• Citations: (2009), 460 A.R. 103 (NWTCA)

R. v. W.A.P. (2009), 460 A.R. 103 (NWTCA);

      462 W.A.C. 103

MLB headnote and full text

Temp. Cite: [2009] A.R. TBEd. JL.079

Her Majesty the Queen (respondent) v. W.A.P. (A1AP2008/000004; 2009 NWTCA 7)

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

Northwest Territories Court of Appeal

Johnson, Watson and Slatter, JJ.A.

June 16, 2009.

Summary:

The accused appealed his conviction for sexual assault on his foster daughter.

The Northwest Territories Court of Appeal allowed the appeal and ordered a new trial.

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 4301

Procedure - Trial judge - Duties and functions of - Respecting examination or cross-examination of witnesses - The accused appealed his conviction for sexual assault on his foster daughter - The Northwest Territories Court of Appeal allowed the appeal - The complainant refused to return to court and complete her cross-examination - There were several errors in the way the trial judge dealt with the failure of the complainant to return for cross-examination - First, the trial judge attributed her failure to return to an improper question asked by defence counsel - Secondly, the trial judge gave no meaningful instructions to the jury on the implications of the premature termination of the cross-examination - Thirdly, this problem was compounded by the trial judge's instructions on the use of the complainant's prior statement to the police - See paragraphs 31 to 40.

Criminal Law - Topic 4342

Procedure - Jury - Evidence - Questions by jury - The accused appealed his conviction for sexual assault on his foster daughter - The Northwest Territories Court of Appeal allowed the appeal - The Crown had led evidence of conversations between the complainant and her mother, and the complainant and her sister during which the complainant's emotional condition was described - The jury noted a seeming inconsistency between what the Crown was arguing about the confirmatory nature of the emotional condition and conduct of the complainant 12 days after the alleged offence, and the suggestions that arose elsewhere in the evidence about the complainant's conduct recently after the alleged offence - The jury asked a series of compound questions largely related to this discrepancy, in part asking when the complainant and her sister left the accused's residence and in part relating to when the charge was laid and whether the charge could have been withdrawn after being laid - Essentially, the trial judge's answers to the jury's questions conformed to the Crown's thesis - The jury was effectively told that there was no specific evidence as to when the complainant and her sister moved out of the accused's residence and that speculation about the laying or withdrawing of the charge was immaterial and "we do not apply law to speculation" - To dispense with doubt arising from missing evidence by calling it speculation seriously undermined the defence position overall and thereby the fairness of trial - See paragraphs 16 to 21.

Criminal Law - Topic 4351

Procedure - Charge and directions - Jury or judge alone - Direction regarding burden of proof and reasonable doubt - The accused appealed his conviction for sexual assault on his foster daughter - The Northwest Territories Court of Appeal allowed the appeal - A significant error was a combination of several things, namely inappropriate submissions of Crown counsel and misdirections by the trial judge as to the Crown's burden of proof and as to the lack of evidence by the accused - The Crown's case depended completely on the complainant's evidence - The defence position was that the incident "did not happen" or more precisely that there was a reasonable doubt as to whether it happened - Crown counsel made numerous references to there being "no evidence" to contradict the Crown's case, or "no evidence" to contradict the complainant's testimony - The effect of the Crown submission was to repeatedly invite the jury to draw an adverse inference from the accused's failure to testify and to answer the complainant's version - The trial judge's charge to the jury compounded these references by Crown counsel to the failure of the accused to testify - The trial judge's non-compliance with s. 4(6) of the Canada Evidence Act made things worse - Section 4(6) stated that "the failure of the person charged ... to testify shall not be made the subject of comment by the judge or by counsel for the prosecution." - The trial judge told the jury that the accused was "not required to be subject to the rigors of cross-examination" - In light of the position taken by Crown counsel on the "absence of evidence" to rebut the Crown case, and her further comment that the complainant came to court and had no reason to lie, this instruction by the trial judge put a spotlight on the difference between the Crown's case to the jury and the accused's case - Finally, the Crown stated that "You saw her, you heard her, you saw how difficult this was for her. You've also had the opportunity to observe [the accused] throughout these proceedings. The evidence is clear as to exactly what happened" - This appeared to have been a direct invitation to the jury to find that the accused's demeanor while watching the evidence was inculpatory - The trial judge gave no instructions on this issue - That was an error of law - See paragraphs 22 to 30.

Criminal Law - Topic 4352

Procedure - Charge or directions - Jury or judge alone - Direction on evidence generally - [See Criminal Law - Topic 4342 and Criminal Law - Topic 4351 ].

Criminal Law - Topic 4354

Procedure - Charge or directions - Jury or judge alone - Directions regarding pleas or evidence of witnesses, co-accused or accomplices - The accused appealed his conviction for sexual assault on his foster daughter - The Northwest Territories Court of Appeal allowed the appeal - A significant error in the trial occurred when the Crown counsel elected to respond to some brief questions in cross-examination of the complainant's mother with an improper question on re-examination - "Crown counsel asked, 'When [the complainant] approached you that day and told you what happened, what was your impression about her at that time?' The mother's answer was, 'I knew she wasn't lying.'" - The opinion of the mother was irrelevant - It was not probative of anything that the jury could use - It was clearly inadmissible, consisting of a mixture of hearsay, inadmissible opinion, and oath-helping - Procedurally, the re-examination question and answer were themselves also not justifiable as proper re-examination as they did not arise from the cross-examination nor meet an alternative basis for allowing re-examination - Further, Crown counsel in her submissions to the jury referred to this specific evidence of the mother as confirmation of the testimony of the complainant - The trial judge in his charge ought to have told the jury why it was necessary to disregard both that evidence and the Crown's submissions on it - He ought to have clearly instructed the jury to disregard this as unfair evidence, useless and inadmissible and why it was such - He did not do so - See paragraphs 7 to 15.

Criminal Law - Topic 4360

Procedure - Charge or directions - Jury or judge alone - Directions regarding inferences from silence or admissions by silence or acquiescence - [See Criminal Law - Topic 4351 ].

Criminal Law - Topic 4394

Procedure - Charge or directions - Jury or judge alone - Directions re inferences from failure to call evidence - [See Criminal Law - Topic 4351 ].

Criminal Law - Topic 4399.4

Procedure - Charge or directions - Jury or judge alone - Directions re allegations on cross-examination or improper questions - [See Criminal Law - Topic 4301 ].

Criminal Law - Topic 5035

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - General - The Northwest Territories Court of Appeal stated that "the failure of counsel for an accused person to object to (a) inadmissible evidence, (b) improper arguments by Crown counsel, (c) misdirections to the jury in a charge or (d) answers to jury questions, is a factor often considered in relation to whether s. 686(1)(b)(iii) of the [Criminal] Code should be applied. Failure to object is not determinative. The absence of objection may be relevant if either counsel for the accused specifically waived the objection as a matter of tactics, or counsel for the accused failed to assert the objection because the point was harmless and the remedy would be worse. If the situation is merely that counsel failed to make a timely objection out of error, that is not likely by itself to be of much weight on whether the provision should be applied. Parliament's test asks not what counsel may or may not have done, but whether there was a substantial wrong or miscarriage of justice. This, in turn, may be determined in favour of the Crown only if the error of law was harmless (as trivial or as not prejudicial in its context) or the verdict was inevitable" - See paragraphs 41 to 43.

Criminal Law - Topic 5202

Evidence and witnesses - General - Admissibility - Whether relevant and material - [See Criminal Law - Topic 4354 ].

Evidence - Topic 1504

Hearsay rule - General principles and definitions - What constitutes hearsay - [See Criminal Law - Topic 4354 ].

Evidence - Topic 7157

Opinion evidence - Prohibited opinions - Re credibility of witnesses - [See Criminal Law - Topic 4354 ].

Evidence - Topic 4023

Witnesses - General - Credibility - Oath-helping or oath-attacking - [See Criminal Law - Topic 4354 ].

Counsel:

G.A. Boyd, for the respondent;

C. Wawzonek, for the appellant.

This appeal was heard and decided on June 16, 2009, by Johnson, Watson and Slatter, JJ.A., of the Northwest Territories Court of Appeal. The following memorandum of judgment was filed at Yellowknife, N.W.T., on July 3, 2009.