R. v. P.D.T. (2012), 522 A.R. 297; 544 W.A.C. 297 (CA)
MLB headnote and full text
Temp. Cite: [2012] A.R. TBEd. MR.040
Her Majesty The Queen (respondent) v. P.D.T. (appellant)
(1103-0048-A; 2012 ABCA 68)
Indexed As: R. v. P.D.T.
Alberta Court of Appeal
McFadyen, Berger and O’Ferrall, JJ.A.
March 5, 2012.
Summary:
The accused appealed his convictions for sexual interference and sexual exploitation on the grounds that (1) the trial judge erred in admitting his video-taped statement to police, (2) the trial judge failed to properly apply the principles respecting the burden of proof and reasonable doubt, and (3) the verdict was unreasonable and unsupported by the evidence.
The Alberta Court of Appeal, O’Ferrall, J.A., dissenting, dismissed the appeal. O’Ferrall, J.A., would have allowed the appeal on the ground that the verdict was unreasonable and unsupported by the evidence.
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 4351
Procedure – Charge or directions – Jury or judge alone – Direction regarding burden of proof and reasonable doubt – The accused was convicted of two sexual offences against his step-daughter – He appealed his convictions on the ground that the trial judge misdirected himself on the burden of proof and reasonable doubt by effectively considering the evidence as a credibility contest – The Alberta Court of Appeal dismissed this ground of appeal – The purpose of the R. v. D.W. (SCC) test was to ensure that the Crown proved guilt beyond a reasonable doubt and that the verdict was not based on a credibility contest between the accused and complainant – The assessment of credibility did not always lend itself to “the adoption of the three distinct steps” set out in R. v. D.W. – The trial judge clearly understood and applied the substance of the R. v. D.W. test – The judge considered all of the evidence and, keeping in mind problems with the accused’s statements and the complainant’s evidence, concluded beyond a reasonable doubt that the accused was guilty – See paragraphs 19 to 28.
Criminal Law – Topic 4865
Appeals – Indictable offences – Verdict unreasonable or unsupported by evidence – The accused appealed his convictions for two sexual offences against his step-daughter on the ground that the verdicts were unreasonable and unsupported by the evidence – The Alberta Court of Appeal dismissed the appeal – The court stated that “the standard of review on this ground is whether the verdict is one that a properly instructed jury acting judicially could reasonably have rendered … The complainant’s evidence, combined with the appellant’s confirmatory admissions, was sufficient to support the verdict” – See paragraphs 29 to 31.
Criminal Law – Topic 5355
Evidence and witnesses – Confessions and voluntary statements – Whether statement was made freely and voluntarily – The accused was convicted of two sexual offences against his step-daughter – The accused gave a video-taped statement to police, in which he ultimately admitted some sexual touching had occurred – The accused appealed on the ground that the trial judge erred in admitting the statement without properly considering the effect of the accused’s Fetal Alcohol Spectrum Disorder (FASD) on the voluntariness of his statement – Counsel argued that the accused was a compliant person of limited intelligence who wished to please the investigating officer and basically regurgitated what was said to him by the officer – The Alberta Court of Appeal dismissed the appeal – First, there was no evidence that the accused suffered from FASD – In fact, the accused rejected a suggestion that his functioning was impaired – He was a functioning member of the community, married with children, and maintained employment as a public transit driver – There was nothing oppressive about the questioning, not questionable police conduct, and the accused clearly understood his rights and gave thoughtful responses to questions asked – There was no error in admitting the statement as freely and voluntarily made – See paragraphs 8 to 18.
Cases Noticed:
R. v. Minde (M.B.) (2003), 343 A.R. 371; 2003 ABQB 797, dist. [para. 9].
R. v. Oickle (R.F.), [2000] 2 S.C.R. 3; 259 N.R. 227; 187 N.S.R.(2d) 201; 585 A.P.R. 201; 2000 SCC 38, refd to. [para. 11].
R. v. Szczerbaniwicz (G.), [2010] 1 S.C.R. 455; 401 N.R. 47; 2010 SCC 15, refd to. [para. 21].
R. v. R.E.M., [2008] 3 S.C.R. 3; 380 N.R. 47; 260 B.C.A.C. 40; 439 W.A.C. 40; 2008 SCC 51, refd to. [para. 21].
R. v. C.L.Y., [2008] 1 S.C.R. 5; 370 N.R. 284; 225 Man.R.(2d) 146; 419 W.A.C. 146; 2008 SCC 2, refd to. [para. 22].
R. v. Dinardo (J.), [2008] 1 S.C.R. 788; 374 N.R. 198; 2008 SCC 24, refd to. [para. 23].
R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351, refd to. [para. 31].
Counsel:
M.J. McGuire, for the respondent;
D.R. Hatch, for the appellant.
This appeal was heard on September 6, 2011, before McFadyen, Berger and O’Ferrall, JJ.A., of the Alberta Court of Appeal.
The judgment of the Court was filed on March 5, 2012, when the following memorandums of judgment were filed:
McFadyen, J.A. (Berger, J.A., concurring) – see paragraphs 1 to 32;
O’Ferrall, J.A., dissenting – see paragraphs 33 to 50.
