R. v. McKenzie (P.N.) (1996), 141 Sask.R. 221 (CA);
114 W.A.C. 221
MLB headnote and full text
Her Majesty the Queen (appellant) v. Phillip Nelson McKenzie (respondent)
(Appeal File No. 6360)
Indexed As: R. v. McKenzie (P.N.)
Saskatchewan Court of Appeal
Tallis, Vancise and Sherstobitoff, JJ.A.
April 1, 1996.
Summary:
The accused was convicted of two counts of touching for a sexual purpose and one count each of invitation to touch for a sexual purpose, assault and uttering a threat. He appealed.
The Saskatchewan Court of Appeal allowed the appeal, quashed the conviction and directed a new trial.
Barristers and Solicitors – Topic 1808
The prosecutor – Duty of disclosure – The accused was convicted of two counts of touching for a sexual purpose and one count each of invitation to touch for a sexual purpose, assault and uttering a threat – He appealed, submitting, inter alia, that the Crown’s failure to disclose audio tapes of witnesses’ statements made by police during the investigation, prevented him from making full answer and defence – The Saskatchewan Court of Appeal stated that this ground could be dismissed on the sole basis that defence counsel failed to object at the earliest opportunity as required by Stinchcombe (S.C.C.) – Further, the tapes contained no additional information which could have assisted the defence at trial – See paragraphs 2, 23 to 28.
Criminal Law – Topic 4505
Procedure – Trial – Special duties of Crown – Duty to disclose evidence prior to trial – [See
Barristers and Solicitors – Topic 1808
].
Criminal Law – Topic 4950
Appeals – Indictable offences – New trials – Grounds – Misdirection by trial judge – The accused was convicted of two counts of touching for a sexual purpose and one count each of invitation to touch for a sexual purpose, assault and uttering a threat – The Saskatchewan Court of Appeal allowed the appeal and directed a new trial – The case turned essentially on credibility and reliability of the witnesses – The trial judge failed to provide the meticulous instruction on burden of proof and reasonable doubt called for in such circumstances – The failure of defence counsel to object was not determinative, but was only one factor to be considered in deciding whether the curative provision in s. 686(1)(b)(iii) applied – See paragraphs 3 to 8, 30 to 39.
Criminal Law – Topic 5041
Appeals – Indictable offences – Dismissal of appeal if no prejudice, substantial wrong or miscarriage results – Where jury charge incomplete or in error – [See
Criminal Law – Topic 4950
].
Criminal Law – Topic 5463
Evidence and witnesses – Evidence of children – Corroboration – [See
Criminal Law – Topic 5466
].
Criminal Law – Topic 5466
Evidence and witnesses – Evidence of children – Warning to jury of danger of reliance on – The accused was convicted of sexual offences – The complainants were young girls living in student residences – A fellow student testified that the complainants’ stories were a fabrication – The accused submitted that the trial judge failed to properly instruct the jury concerning the frailty of the children’s evidence and a consequent need for confirmatory evidence – The Saskatchewan Court of Appeal rejected the submission – The court stated that “[o]ne must be careful not to place too much weight on the demeanour of young witnesses. Furthermore, there is no suggestion that the children were subjected to manipulative interrogation or other forms of undue influence. Since children, as a class, are not to be viewed as inherently suspect witnesses I find no need for a ‘Vetrovec’ type of warning in this case.” – See paragraphs 2, 40 to 49.
Evidence – Topic 5231
Witnesses – Corroboration – Evidence of children – General – [See
Criminal Law – Topic 5466
].
Cases Noticed:
R. v. Rose (A.) (1992), 20 B.C.A.C. 7; 35 W.A.C. 7 (C.A.), refd to. [para. 4].
R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [paras. 5, 33, 39].
R. v. Chambers (No. 2), [1990] 2 S.C.R. 1293; 119 N.R. 321, refd to. [para. 7].
R. v. Arcangioli (G.), [1994] 1 S.C.R. 129; 162 N.R. 280; 69 O.A.C. 26, refd to. [para. 7].
R. v. McAnespie (R.B.), [1993] 4 S.C.R. 501; 162 N.R. 155; 68 O.A.C. 185, refd to. [para. 25].
R. v. Hamilton (K.W.), [1995] 1 W.W.R. 711; 125 Sask.R. 8; 81 W.A.C. 8 (C.A.), refd to. [para. 25].
R. v. S.E.S. et al. (1993), 100 Sask.R. 110; 18 W.A.C. 110 (C.A.), refd to. [para. 25].
R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161, refd to. [para. 26].
R. v. O’Connor (H.P.), [1996] 2 W.W.R. 153; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1 (S.C.C.), refd to. [para. 27].
R. v. Marquard (D.) (1993), 159 N.R. 81; 66 O.A.C. 161; 85 C.C.C.(3d) 193 (S.C.C.), refd to. [para. 41].
R. v. Vetrovec; R. v. Gaja (1981), 41 N.R. 606; 67 C.C.C.(2d) 1; 136 D.L.R.(3d) 89 (S.C.C.), refd to. [para. 41].
R. v. R.W. (1992), 137 N.R. 214; 54 O.A.C. 164; 74 C.C.C.(3d) 134 (S.C.C.), refd to. [para. 42].
Counsel:
G. Mitchell, for the Crown;
D. Kovatch, for the accused.
This appeal was heard on November 9, 1995, by Tallis, Vancise and Sherstobitoff, JJ.A., of the Saskatchewan Court of Appeal.
The decision of the Court of Appeal was delivered on April 1, 1996, and the following opinions were filed:
Tallis, J.A. (Sherstobitoff, J.A., concurring) – see paragraphs 1 to 8;
Vancise, J.A. – see paragraphs 9 to 50.
