R. v. K.W.G., 2014 ABCA 124

R. v. K.W.G. (2014), 572 A.R. 266; 609 W.A.C. 266 (CA)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. AP.020

Her Majesty the Queen (respondent) v. K.W.G. (appellant)

(1301-0007-A; 2014 ABCA 124)

Indexed As: R. v. K.W.G.

Alberta Court of Appeal

Fraser, C.J.A., Conrad and McDonald, JJ.A.

April 1, 2014.

Summary:

The accused was convicted by a jury of sexual touching, contrary to s. 151 of the Criminal Code (see [2010] A.R. Uned. 433). The complainant was his stepdaughter, who was between 10 and 11 years old when the offences took place. The accused appealed, arguing that his trial was unfair as both Crown and defence counsel failed to follow the rules of evidence, and the trial judge erred in his assessment of the accused's credibility.

The Alberta Court of Appeal, in a decision reported at [2012] A.R. Uned. 8, allowed the appeal and ordered a new trial. The accused was convicted again. He appealed, arguing that (1) the trial was rendered unfair by the cumulative effect of the prosecutor's conduct; (2) the trial judge erred in law by failing to declare a mistrial; (3) the trial judge erred in law by failing to present the Crown and defence theories to the jury in a fair and balanced manner; and (4) the trial judge erred in law by instructing the jury that the complainant's videotaped police interview and prior consistent statements could be used to bolster or assess her credibility.

The Alberta Court of Appeal dismissed the appeal.

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 128

General principles - Rights of accused - Right to make full answer and defence - [See Criminal Law - Topic 4505 ].

Criminal Law - Topic 706

Sexual offences, public morals and disorderly conduct - Sexual offences - Particular offences - Sexual interference with young person - [See Criminal Law - Topic 4633 ].

Criminal Law - Topic 4357

Procedure - Charge or directions - Jury or judge alone - Direction regarding defences and theory of the defence - KWG appealed his conviction for sexual touching, arguing that the trial judge failed to present the Crown and defence theories in a balanced manner because (a) her presentation of the Crown's theory covered 84 lines of the transcript while the defence theory covered 34 lines; and (b) the Crown's attack on the credibility of defence witnesses was reiterated and reinforced - The Alberta Court of Appeal dismissed the appeal - The jury instructions were prepared in a collaborative fashion - Counsel were given advance copies of the draft jury charge and invited to summarize their respective theories to be included in the charge - Defence counsel expressed his concern with the length of the Crown's summary and the fact that it included a summary of the evidence of each witness - The trial judge then amended her draft instructions based on the comments from counsel and removed the references to the evidence of each witness proposed by the Crown - Partway through her final charge to the jury, the trial judge adjourned and, in the absence of the jury, asked counsel if anything arose from her charge to that point - Defence counsel did not object to the length or content of the Crown's theory as revised by the trial judge, nor did he request that anything further be added respecting the defence theory - Where counsel had been invited to summarize their positions for inclusion in the charge, vetted a trial judge's instructions, recommended changes, and did not object after having full opportunity to raise any perceived shortcomings, that failure to object had to be given considerable weight on appeal - Equally important, the trial judge warned the jury that nothing turned on the length of each theory and both were to be given equal weight - See paragraphs 60 to 69.

Criminal Law - Topic 4357.1

Procedure - Charge or directions - Jury or judge alone - Directions re Crown theory - [See Criminal Law - Topic 4357 ].

Criminal Law - Topic 4375.3

Procedure - Charge or directions - Jury or judge alone - Directions regarding prior consistent statements - The accused was convicted of sexual touching against his stepdaughter - He appealed, arguing that the trial judge and Crown improperly referred to prior consistent statements made by the stepdaughter to her friends when those friends were never interviewed by the police or called to testify - The Alberta Court of Appeal dismissed the appeal - The impugned comments by the Crown were made to correct an erroneous reference by defence counsel (that the allegations were a recent fabrication by the stepdaughter) - Equally important, the trial judge made it clear to the jury that the statement could not be used for the truth of its contents or to directly confirm the truthfulness of the stepdaughter's evidence - The reference to using the statement indirectly to assess credibility conveyed to the jury the notion that this evidence could be used for the permissible purpose of showing the fact and timing of the complaint which might then assist the jury in assessing the truthfulness or credibility of the stepdaughter - Viewed in context, there was no error in the trial judge's instruction on this issue - See paragraphs 84 to 86.

Criminal Law - Topic 4375.3

Procedure - Charge or directions - Jury or judge alone - Directions regarding prior consistent statements - [See Criminal Law - Topic 4388 and Criminal Law - Topic 5464 ].

Criminal Law - Topic 4388

Procedure - Charge or directions - Jury or judge alone - Directions re addresses by counsel - KWG was convicted of sexual touching against his stepdaughter, who was between 10 and 11 years old when the offence took place - In its opening address to the jury, the Crown, in indicating how the matter came to the attention of the authorities, indicated that the stepdaughter told some school friends about the sexual activity with KWG and they convinced her to tell a teacher - KWG appealed, arguing that these references by the Crown were inadmissible hearsay and prior consistent statements - The Alberta Court of Appeal dismissed the appeal, stating "In her opening remarks, the trial judge had in fact previously instructed the jury that submissions of counsel could not be used as evidence. ... As matters unfolded, the Crown never led the content of any of these conversations. However, defence counsel cross-examined the complainant extensively regarding her disclosure to various individuals. In her final instructions to the jury, which the trial judge had discussed with both Crown and defence at the pre-charge conference, she then again reminded the jury that counsels' submissions were not evidence and she specifically instructed the jury that they could not use any reference to things the complainant said to the guidance counsellor at school or to her friends for the truth of their contents or to directly confirm the truthfulness of the testimony ... Defence counsel made no objection to these instructions when they were discussed pre-charge nor was any objection made after the instructions were given. This argument fails." - See paragraphs 41 to 43.

Criminal Law - Topic 4389

Procedure - Charge or directions - Jury or judge alone - Objections to jury charge - [See Criminal Law - Topic 4357 ].

Criminal Law - Topic 4393

Procedure - Charge or directions - Jury or judge alone - Failure by counsel to object - Effect of - [See Criminal Law - Topic 4357 , Criminal Law - Topic 4388 and Criminal Law - Topic 4505 ].

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - KWG was convicted of sexual touching against his stepdaughter, who was between 10 and 11 years old when the offence took place - At trial, the stepdaughter testified that KWG had French kissed her in the shower twice, and that she had masturbated him in the shower twice - KWG's appeal from conviction was allowed and a new trial was ordered - At the second trial, the stepdaughter testified that KWG had French kissed her in the shower 10 times and she had masturbated him in the shower once (the revised numbers) - She also testified that she had masturbated him two times outside of the shower (the new allegations) - KWG was convicted again - He appealed, arguing that the trial was rendered unfair by the Crown's lack of disclosure respecting the revised numbers and the new allegations - The Alberta Court of Appeal dismissed the appeal - The new allegations were not a disclosure issue, as the Crown only learned of them during the stepdaughter's testimony and could not disclose information it did not have - Respecting the revised numbers, the defence was aware of them during a voir dire and took no exception at that time - When they came up again during the stepdaughter's evidence in chief, defence counsel did not apply for any remedy - Most importantly, the revised numbers did not prevent the defence from making full answer and defence - The defence was able to use the revised numbers for cross-examination purposes at trial - The late disclosure did not affect the reliability of the verdict or render the trial unfair - See paragraphs 15 to 32.

Criminal Law - Topic 4509

Procedure - Trial - Special duties of Crown - Duty respecting questioning of witnesses - [See Criminal Law - Topic 5402.1 ].

Criminal Law - Topic 4633

Procedure - Mistrials - Grounds - KWG was convicted of sexual touching against his stepdaughter, who was between 10 and 11 years old when the offence took place - At trial, the stepdaughter testified that KWG had French kissed her in the shower twice, and that she had masturbated him in the shower twice - KWG's appeal from conviction was allowed and a new trial was ordered - At the second trial, the stepdaughter testified that she had masturbated KWG two times outside of the shower (the new allegations) - KWG was convicted again - He appealed, arguing that the trial judge erred in failing to grant a mistrial based on the new allegations - He argued that they constituted inadmissible similar fact evidence that was highly prejudicial to his character and to his wife's credibility as a key defence witness - The Alberta Court of Appeal dismissed the appeal - First, KWG was not placed in a position where he did not know the jeopardy he faced until the Crown's closing submission - The Crown confirmed that it would not pursue any questions about the new allegations or rely on them to support a conviction - Second, KWG was able to use the new allegations to attack the stepdaughter's credibility without facing any jeopardy from them - The trial judge limited any prejudicial effect from the new allegations by expressly instructing the jury that it could only use them to assess the stepdaughter's credibility - Third, the new allegations were not similar fact evidence - The evidence of when the new allegations occurred was not precise - Even if the time frame covered by the indictment differed from the evidence, this was of no consequence because time was not an essential element in sexual touching, nor was it essential to a specific defence advanced by KWG - See paragraphs 33 to 39.

Criminal Law - Topic 5212

Evidence and witnesses - Admissibility and relevancy - Similar acts - General (incl. procedure) - [See Criminal Law - Topic 4633 ].

Criminal Law - Topic 5402.1

Evidence and witnesses - Witnesses - Objections to questions - KWG was convicted of sexual touching against his stepdaughter for activities that took place while the two showered together - He appealed, arguing that the Crown improperly objected during the cross-examination of the stepdaughter, unfairly accusing defence counsel of misleading the jury and witnesses in the presence of the jury - The impugned objection related to the time frames when the stepdaughter needed help showering and when she started showering instead of bathing - The Alberta Court of Appeal dismissed the appeal - The defence cross-examination prior to the Crown's objection had covered a number of issues without clarifying the time periods in question - When either Crown or defence counsel questioned witnesses, where the ground shifted from one time frame to another, counsel should properly clarify the time frame to which the question related - Otherwise, the potential for unfairness and unnecessary confusion existed for all witnesses and particularly young ones - Further, in her final instructions to the jury, the trial judge instructed the jury that objections and arguments of counsel were not evidence and nothing should be taken from the fact that an objection had been made - See paragraphs 56 to 58.

Criminal Law - Topic 5464

Evidence and witnesses - Evidence of children - Out of court testimony (incl. videotaped statements) - KWG's stepdaughter, who was between 10 and 11 years old, alleged that KWG had sexually abused her - The stepdaughter gave a videotaped statement to police which was subsequently admitted as substantive evidence at trial under s. 715.1 of the Criminal Code - KWG was convicted by a jury of sexual touching - He appealed, arguing that (a) the trial judge erred by instructing the jury that they could consider what the stepdaughter said in the videotape to help decide "whether and how much you will believe or rely upon her evidence", but failed to fully and properly instruct the jury that the videotaped interview could not be used to corroborate the stepdaughter's testimony at trial; and (b) the trial judge's instructions about the use to be made of prior consistent statements to indirectly assist in assessing a witness's credibility was troubling respecting the proper use of videotaped statements under s. 715.1 - The Alberta Court of Appeal dismissed the appeal, stating "This ground of appeal wrongly assumes that videotaped statements under s. 715.1 are subject to the limitations on the use of prior consistent statements. ... Videotaped evidence forms part of the evidence in chief of a complainant. As such, it does not fall within the rule against prior consistent statements. Prior consistent statements are generally inadmissible. However, this is not so for videotaped statements which serve a particular purpose under the Criminal Code including assisting in the search for the truth in cases involving children. As part of a complainant's evidence in chief, the videotape evidence is to be treated in the same manner as other in-court evidence in chief. In other words, as evidence in chief, it is admitted as proof of the truth of its contents. Therefore, while some may consider videotape evidence under s. 715.1 ... to be a statutory exception to the rule against prior consistent statements, the better view may be that it is not a prior consistent statement at all ... Either way, since it is admitted as proof of the truth of its contents, it is not subject to the limitations that apply to the use to be made of prior consistent statements." - See paragraphs 70 to 83.

Evidence - Topic 4716

Witnesses - Examination - Cross-examination - On testimony to be contradicted - KWG was convicted of sexual touching against his stepdaughter - His appeal from conviction was allowed and a new trial was ordered - KWG was convicted again - He appealed, arguing that the Crown impeached his credibility and that of his wife, and alleged collusion, perjury and coaching of other witnesses without expressly putting the allegation to either of them, thereby failing to comply with the rule in Browne v. Dunn - The Alberta Court of Appeal dismissed the appeal - Not every matter of contradicting evidence had to be put to a witness - The Crown was not required to expressly put allegations of collusion to the defence or other witnesses - KWG and other witnesses were appropriately confronted with inconsistencies in their evidence - There could be no suggestion that the defence was surprised by allegations of collusion - Collusion was a live issue at trial since KWG and his wife admitted that they had discussed their testimony, and KWG changed his testimony from the first trial as a result of those discussions - See paragraphs 44 to 49.

Cases Noticed:

R. v. Bjelland (J.C.), [2009] 2 S.C.R. 651; 391 N.R. 202; 460 A.R. 230; 462 W.A.C. 230; 2009 SCC 38, refd to. [para. 11].

R. v. Khan (M.A.), [2001] 3 S.C.R. 823; 279 N.R. 79; 160 Man.R.(2d) 161; 262 W.A.C. 161; 2001 SCC 86, refd to. [para. 11].

R. v. Barrette, [1977] 2 S.C.R. 121; 10 N.R. 321, refd to. [para. 12].

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. 24].

R. v. Dixon (S.), [1998] 1 S.C.R. 244; 222 N.R. 243; 166 N.S.R.(2d) 241; 498 A.P.R. 241, refd to. [para. 25].

R. v. Biscette (S.) (1995), 169 A.R. 81; 97 W.A.C. 81 (C.A.), affd. [1996] 3 S.C.R. 599; 203 N.R. 244; 187 A.R. 392; 127 W.A.C. 392, refd to. [para. 30].

R. v. G.B. et al. (No. 2), [1990] 2 S.C.R. 30; 111 N.R. 31; 86 Sask.R. 111, refd to. [para. 38].

R. v. Drydgen (M.J.) (2013), 338 B.C.A.C. 299; 577 W.A.C. 299; 2013 BCCA 253, refd to. [para. 45].

R. v. Polimac (M.) (2010), 262 O.A.C. 91; 2010 ONCA 346, refd to. [para. 65].

R. v. Royz (E.), [2009] 1 S.C.R. 423; 388 N.R. 1; 251 O.A.C. 397; 2009 SCC 13, refd to. [para. 65].

R. v. Benji (R.K.) (2012), 316 B.C.A.C. 132; 537 W.A.C. 132; 2012 BCCA 55, refd to. [para. 65].

R. v. C.C.F., [1997] 3 S.C.R. 1183; 220 N.R. 362; 104 O.A.C. 321, refd to. [para. 73].

R. v. Toten (W.P.) (1993), 63 O.A.C. 321; 83 C.C.C.(3d) 5 (C.A.), refd to. [para. 74].

R. v. D.O.L., [1993] 4 S.C.R. 419; 161 N.R. 1; 88 Man.R.(2d) 241; 51 W.A.C. 241, refd to. [para. 75].

R. v. J.A. (2006), 227 B.C.A.C. 119; 374 W.A.C. 119; 209 C.C.C.(3d) 423; 2006 BCCA 258, refd to. [para. 75].

R. v. Wing, 2008 ONCA 618, refd to. [para. 76].

R. v. C.B. (2008), 237 O.A.C. 387; 2008 ONCA 486, refd to. [para. 83].

R. v. D.G.S. (2013), 294 Man.R.(2d) 217; 581 W.A.C. 217; 2013 MBCA 69, refd to. [para. 83].

R. v. Dinardo (J.), [2008] 1 S.C.R. 788; 374 N.R. 198; 2008 SCC 24, refd to. [para. 83].

R. v. Stirling (B.J.), [2008] 1 S.C.R. 272; 371 N.R. 384; 251 B.C.A.C. 62; 420 W.A.C. 62; 2008 SCC 10, refd to. [para. 83].

Authors and Works Noticed:

Watt's Manual of Criminal Jury Instructions, p. 216 [para. 78]; generally [paras. 77, 78].

Counsel:

M.C. Stephensen, for the appellant;

J.B. Hawkes, Q.C., for the respondent.

This appeal was heard on September 9, 2013, before Fraser, C.J.A., Conrad and McDonald, JJ.A., of the Alberta Court of Appeal. The following memorandum of judgment was delivered by the court at Calgary, Alberta, on April 1, 2014.