R. v. N.A.P. (2002), 167 O.A.C. 176 (CA)
MLB headnote and full text
Temp. Cite: [2002] O.A.C. TBEd. DE.051
Her Majesty the Queen (appellant) v. N.A.P. (respondent)
(C36592)
Indexed As:
R. v. N.A.P.
Ontario Court of Appeal
Doherty, Austin and Armstrong, JJ.A.
December 17, 2002.
Summary:
An accused was charged in a 10 count indictment with various offences against his wife and his 15 year old daughter. The trial judge severed a charge of mischief at the end of the Crown’s case. A jury convicted on a charge of assault involving the daughter and acquitted on the remaining eight charges. The Crown appealed from the acquittals.
The Ontario Court of Appeal dismissed the appeal.
Criminal Law – Topic 4737.1
Procedure – Information or indictment – Charge or count – Indictable offences – Severing counts in an indictment – An accused was charged with various assaults, two charges of uttering threats and one charge of mischief – The victims were the accused’s wife and daughter – The Crown relied on evidence concerning the accused killing the daughter’s cat to prove the mischief charge and to prove ongoing abuse of, and animus towards, the daughter – At the end of the Crown’s case, the trial judge severed the mischief charge on his own motion – The trial judge acquitted the accused on all but one of the remaining counts – The Crown appealed the acquittals, asserting that the trial judge erred in severing the mischief count – The Ontario Court of Appeal held that there was no justification for a severance, particularly one that the accused had not requested – The mischief evidence was part of the narrative – Even if the count was not in the indictment, the evidence was properly admissible – The potential prejudicial effect was relatively minimal and did not outweigh the probative value – However, the error did not warrant ordering a new trial – The case turned on credibility – The evidence could not reasonably have been expected to have had an effect on the credibility assessments – See paragraphs 48 to 52.
Criminal Law – Topic 4958
Appeals – Indictable offences – New trials – Grounds for refusing new trial – [See
Criminal Law – Topic 4737.1
].
Criminal Law – Topic 5436
Evidence – Witnesses – Cross-examination of accused – Character of accused – An accused was charged with various offences against his wife and daughter – At trial, the accused’s testimony respecting his relationship with his children implied that he was a caring, non-violent parent who would not commit the alleged crimes – The accused also depicted himself as a hard working husband who was doing his best to hold the family together in difficult times – The Ontario Court of Appeal affirmed that the accused had not put his character in issue, thereby precluding the Crown from adducing evidence of his criminal record under s. 666 of the Criminal Code – The accused’s family history and the relationships within the family was the focal point of the Crown’s case – The accused was painted as a terrible husband and father – To repudiate this part of the Crown’s case, the accused had to put forward his version of those relationships – To the extent that his evidence took on a moral tone, it was directly responsive to the many allegations of immorality made against him during the Crown’s case – See paragraphs 30 to 47.
Criminal Law – Topic 5437
Evidence – Witnesses – Cross-examination of accused – Prior charges, convictions, etc. – [See
Criminal Law – Topic 5436
].
Criminal Law – Topic 5437
Evidence – Witnesses – Cross-examination of accused – Prior charges, convictions, etc. – An accused applied to prohibit the Crown from cross-examining him on his criminal record (the Corbett application) – The trial judge applied the assessment of probative value and prejudicial effect set out in R. v. L.B. (Ont. C.A.) and excluded the evidence where the probative value, although high, did not outweigh the prejudicial effect – The Ontario Court of Appeal held that the trial judge erred in applying R. v. L.B. – R. v. L.B. involved the admissibility of similar fact evidence – Similar fact evidence was presumptively inadmissible and could be received only if the Crown could demonstrate that the probative value outweighed the potential prejudicial effect – On a Corbett application, the accused seeks to testify while withholding information relevant to assessing credibility – There was no presumption against admissibility and cross-examination on the accused’s criminal record would be the usual course – See paragraphs 17 to 20.
Criminal Law – Topic 5437
Evidence – Witnesses – Cross-examination of accused – Prior charges, convictions, etc. – The accused was charged with various offences against his wife and daughter – The accused applied to prohibit the Crown from cross-examining him on his criminal record pursuant to s. 12 of the Canada Evidence Act (the Corbett application) – His record included convictions in 1975 for theft, three break and enters and dangerous driving – The trial judge excluded the evidence where, although highly probative of the accused’s credibility, the probative value did not outweigh the prejudicial effect – The Ontario Court of Appeal disagreed that the 1975 convictions were highly probative of credibility – The convictions occurred more than 25 years before the trial when the accused was 16 years old – Those convictions, particularly where there were no subsequent crimes of dishonesty, did not shed much light on the accused’s credibility at age 42 – However, no prejudice would result from admitting the evidence – Properly instructed, a jury would limit its consideration of the convictions to the impact, if any, on credibility – The court did not come to any final conclusion where cross-examining the accused on the convictions would not have affected the verdict – See paragraph 22.
Criminal Law – Topic 5437
Evidence – Witnesses – Cross-examination of accused – Prior charges, convictions, etc. – An accused was charged with various assaults and two charges of uttering death threats against his wife and daughter – The accused applied to prohibit the Crown from cross-examining him on his criminal record under s. 12 of the Canada Evidence Act – His record included a 1978 conviction for attempted murder – The Ontario Court of Appeal concluded that a proper exercise of discretion favoured prohibiting cross-examination – There was a real risk, despite the prophylactic effect of a proper limiting instruction, that a jury would conclude that a person who had tried to kill someone was dangerous and would not hesitate to threaten and assault others – Both the potential probative value and prejudicial effect were relatively high – Where, as in the case at bar, credibility was central to the trial’s outcome and the accused had mounted an all-out attack on the Crown witnesses’ credibility and character, the balance might tip in favour of cross-examination – However, without the evidence there was no real danger that the jury would assume that the accused had “an unblemished record” – The Crown had presented a great deal of evidence that the accused had physically, verbally and emotionally abused his wife and children – The jury knew a lot about the accused, most of which was unfavourable – See paragraphs 23 to 29.
Cases Noticed:
R. v. Underwood (G.R.), [1998] 1 S.C.R. 77; 221 N.R. 161; 209 A.R. 276; 160 W.A.C. 276; 121 C.C.C.(3d) 117, refd to. [para. 13].
R. v. Corbett, [1988] 1 S.C.R. 670; 85 N.R. 81; 41 C.C.C.(3d) 385, refd to. [para. 17].
R. v. Saroya (I.S.) (1994), 76 O.A.C. 25; 36 C.R.(4th) 253 (C.A.), refd to. [para. 17].
R. v. G.F.P. (1994), 70 O.A.C. 350; 89 C.C.C.(3d) 176 (C.A.), refd to. [para. 17].
R. v. Halliday (W.L.) (1992), 83 Man.R.(2d) 142; 36 W.A.C. 142; 77 C.C.C.(3d) 481 (C.A.), refd to. [para. 17].
R. v. L.B.; R. v. M.A.G. (1997), 102 O.A.C. 104; 116 C.C.C.(3d) 481 (C.A.), refd to. [para. 19].
R. v. Handy (J.) (2002), 290 N.R. 1; 160 O.A.C. 201; 164 C.C.C.(3d) 481 (S.C.C.), refd to. [para. 19].
R. v. M.P. (2001), 139 O.A.C. 129; 151 C.C.C.(3d) 193 (C.A.), refd to. [para. 26].
R. v. Farrant, [1983] 1 S.C.R. 124; 46 N.R. 337; 21 Sask.R. 271; 4 C.C.C.(3d) 354, refd to. [para. 31].
R. v. Morris, [1979] 1 S.C.R. 405; 23 N.R. 109; 43 C.C.C.(2d) 129, refd to. [para. 31].
R. v. McNamara (No. 1) (1981), 56 C.C.C.(2d) 193 (Ont. C.A.), leave to appeal refused (1981), 37 N.R. 85; 56 C.C.C.(2d) 576 (S.C.C.), refd to. [para. 31].
R. v. L.K.W. (1999), 126 O.A.C. 39; 138 C.C.C.(3d) 449 (C.A.), leave to appeal refused (2000), 264 N.R. 393; 145 O.A.C. 398 (S.C.C.), refd to. [para. 32].
R. v. Deyardin (1997), 119 C.C.C.(3d) 365 (Que. C.A.), refd to. [para. 32].
R. v. D.S.F. (1999), 118 O.A.C. 272; 132 C.C.C.(3d) 97 (C.A.), refd to. [para. 34].
R. v. Litchfield, [1993] 4 S.C.R. 333; 161 N.R. 161; 145 A.R. 321; 55 W.A.C. 321; 86 C.C.C.(3d) 97, refd to. [para. 49].
R. v. Vezeau, [1977] 2 S.C.R. 277; 8 N.R. 235; 28 C.C.C.(2d) 81, refd to. [para. 51].
R. v. Morin, [1988] 2 S.C.R. 345; 88 N.R. 161; 30 O.A.C. 81; 66 C.R.(3d) 1; 44 C.C.C.(3d) 193, refd to. [para. 51].
Statutes Noticed:
Criminal Code, R.S.C. 1985, c. C-46, sect. 666 [para. 30].
Counsel:
Laura Hodgson, for the appellant;
S.J. Von Achten, for the respondent.
This appeal was heard on October 2, 2002, by Doherty, Austin and Armstrong, JJ.A., of the Ontario Court of Appeal. Doherty, J.A., released the following judgment for the court on December 17, 2002.
