R. v. White (R.J.), 2015 ABQB 613

• Judge: Graesser, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: Friday September 11, 2015
• Citations: 2015 ABQB 613;[2015] A.R. TBEd. OC.027

R. v. White (R.J.), [2015] A.R. TBEd. OC.027

MLB being edited

Currently being edited for A.R. - judgment temporarily in rough form.

Temp. Cite: [2015] A.R. TBEd. OC.027

Her Majesty the Queen (Crown) v. Ryan James White (accused)

(120103692Q3; 2015 ABQB 613)

Indexed As: R. v. White (R.J.)

Alberta Court of Queen's Bench

Judicial District of Edmonton

Graesser, J.

September 14, 2015.

Summary:

White was charged with a number of offences relating to five complainants (AH, TK, SH, KV and CB), including sexual assault, unlawful confinement, choking and robbery. He applied to sever six counts, all of which related to CB.

The Alberta Court of Queen's Bench, in a decision reported at 597 A.R. 71, allowed the application. One of the mains reasons for severance was White's stated intention to testify in relation to incidents involving CB, but not the other complainants. The counts in relation to CB proceeded to a jury trial. Ultimately, the accused did not testify in that trial and he was found guilty of two offences. Applications were commence to determine "1. Whether the counts relating to KV should be severed; 2. Whether counsel for Mr. White should be permitted to question the complainants as to their prior sexual history as an exception to the application of s 276 of the Criminal Code, and if so, to what extent; 3. The timing of voir dires relating to the Crown's application for the use of similar fact evidence; and 4. Issues relating to disclosure of information concerning attempts to secure the attendance of KV and TK for the trial of CB which was held in Edmonton in September, 2014." White's supporting affidavit relating to severance deposed that he intended to testify in relation to the counts involving KV as he denied any involvement with her. He regretted not testifying in the CB trial and felt that he should testify in relation to the KV matters, but not with respect to the charges relating to SH, AH and TK.

The Alberta Court of Queen's Bench provided brief reasons in which the court ruled as follows: "1.The counts relating to KV were severed from the indictment; a new 11-count indictment number 6 was created relating to the complainants SH, TK and AH; 2. Mr. White's counsel would not be permitted to question the complainants as to their prior sexual history as a general ruling, recognizing that issues might arise during examination-in-chief where such questioning might become appropriate; 3. There would be no pre-trial voir dire relating to similar fact evidence of the three remaining complainants, AH, TK and SH. Instead, they would testify in-chief before the jury. After examination-in-chief of a complainant, we would move into a voir dire in the absence of the jury. There, defence counsel would be permitted to cross-examine the complainant on issues relating to similar fact, most notably (but not necessarily limited to) collusion. After completion of that cross-examination, the voir dire would be adjourned. The jury would be recalled and defence counsel would cross-examine the complainant. That way, defence counsel would not be required to cross-examine the complainant before the jury on similar fact issues, unless he chose to do so. The same process would be followed with each of the complainants. At the close of the Crown's case and before the defence was put to its election, we would complete the voir dire and determine whether or not the Crown would be permitted to argue similar fact evidence and, if so, to what extent. Since the counts relating to KV had been severed, a similar fact voir dire would be held specifically relating to her evidence before she could testify at all before the jury. 4. No further disclosure was ordered. I determined that questions relating to the Crown's motives in not calling SH and KV at the September 2014 trial were privileged and need not be answered. The subpoenas were not relevant. The affidavits of service were not relevant except to the extent they may disclose difficulties with locating and serving SH and KV or either of them. Since it was not expected that either SH or KV would testify before September 17, I directed Crown counsel to make inquiries as to the existence of any affidavits of service and to provide me with copies of the same so that I could review them for relevance." The court indicated that it would deliver more fulsome reasons at the late date.

The Alberta Court of Queen's Bench delivered reasons for its prior judgment. With respect to the affidavits of service, the court had no doubt that litigation privilege existed in favour of the Crown in at lease some aspects of witness management. The court was satisfied that the Crown's reason for calling a particular witness, or calling off a particular witness was part of privilege, and directed that those response did not have to be provided.

Criminal Law - Topic 689

Sexual offences - Evidence - Sexual conduct or character of complainant - See paragraphs 69 to 74.

Criminal Law - Topic 692

Sexual offences - Evidence - Admissibility hearing - Evidence of complainant's sexual activity - See paragraphs 69 to 74.

Criminal Law - Topic 4352.1

Procedure - Charge or directions - Jury or judge alone - Directions regarding similar fact evidence - See paragraphs 51 to 65.

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - See paragraphs 75 to 86.

Criminal Law - Topic 4737.1

Procedure - Information or indictment, charge or count - Indictable offences - Severing counts in an indictment - See paragraphs 25 to 50.

Criminal Law - Topic 5213

Evidence and witnesses - Admissibility and relevancy - Similar acts - When admissible - See paragraphs 51 to 65.

Counsel:

Avril Inglis (Alberta Justice), for the Crown;

Brian Beresh, Q.C., and Ian Ross (Beresh Aloneissi O'Neill Hurley O'Keeffe), for the accused.

These applications were heard on September 11, 2015, by Graesser, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered judgment orally on September 14, 2015, and the following written reasons on September 30, 2015.