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ᓄᓇᕘᒥ ᐅᓐᓂᓗᖅᓴᖅᑐᓄᑦ ᐃᖅᑲᖅᑐᐃᕕᒃ

Nunavunmi Apiqhuidjutainut Uuktuffaarutit


Nunavut Court of Appeal
Cour d'appel du Nunavut

Citation: R v HQ, 2019 NUCA 02

Date: 20190410
Docket: 11-17-10-CAP
Registry: Iqaluit
Between:

Her Majesty the Queen


Respondent

- and -

HQ
Appellant

Restriction on Publication
Identification Ban – See the Criminal Code, section 486.4.
By Court Order, information that may identify the victim must not be published,
broadcast, or transmitted in any way.
NOTE: This judgment is intended to comply with the identification ban.

_______________________________________________________

The Court:
The Honourable Madam Justice Shannon Smallwood
The Honourable Mr. Justice Thomas W. Wakeling
The Honourable Madam Justice Michelle Crighton
_______________________________________________________

Memorandum of Judgment

Appeal from the Conviction by


The Honourable Madam Justice B. Tulloch sitting with a Jury
Convicted on the 17th day of November, 2016
(Docket: 11-15-129)
_______________________________________________________

Memorandum of Judgment
_______________________________________________________

The Court:

I. Introduction

[1] A jury convicted the appellant of sexually assaulting his sister. He appeals this conviction.

[2] We dismiss the appeal.

II. Questions Presented

A. Discreditable Conduct Issue

[3] The Crown led evidence that the appellant sexually assaulted his sister’s partner moments
before he sexually assaulted his sister.

[4] Experienced defence counsel neither objected to the admissibility of this evidence nor
asked the trial judge to warn the jury about the limited use it may make of this evidence.

[5] Did defence counsel make these decisions for sound tactical reasons?

[6] Did the trial judge err in admitting this discreditable conduct evidence without first
assessing whether it was more prejudicial than probative notwithstanding that defence counsel did
not object to its admissibility? The appellant does not assert the ineffective assistance of counsel.

[7] Did the trial judge err by failing to warn the jury about the limited use it may make of the
discreditable conduct evidence?

B. Nondisclosure Issue

[8] Shortly before the appellant’s trial for sexually assaulting his sister commenced the Crown
came into possession of a report about the complainant that through oversight it failed to notify the
appellant’s counsel about until his trial had been concluded.

[9] The Crown concedes that it had a duty under s. 278.2(3) of the Criminal Code 1 to notify the
appellant that it had the report in its possession.

[10] Defence counsel was aware that this report was in the process of being prepared. Should
defence counsel have asked the Crown about the status of this report before the appellant’s trial
commenced?

1
R.S.C. 1985, c. C-46.
Page: 2

[11] If the Crown had an obligation to disclose the existence of this report to defence counsel,
did its failure contravene the norm set out in The Queen v. Dixon 2 – an accused’s right to make full
answer and defence may be impermissibly abridged if there is a “reasonable possibility” that the
nondisclosure impacted the trial outcome or overall fairness of the trial process.

[12] Is there a reasonable possibility that the nondisclosure adversely affected the trial?

C. Reasonable Apprehension of Bias Issue

[13] The jury chair spoke outside the courtroom with the Crown’s two witnesses – the
complainant and her partner – a couple of times during the trial. These conversations were public,
of short duration and did not relate to the trial.

[14] There is no doubt about the impropriety of these contacts. But would a reasonable and
right-minded person properly informed of all the facts conclude that it was more likely than not
that the jury chair was partial?

III. Brief Answers

A. Discreditable Conduct Issue

[15] Defence counsel had good reasons not to object to the admission of the discreditable
conduct evidence. It was an essential part of the narrative. Its prejudicial nature, in these
circumstances was limited, if not nonexistent. The appellant was on trial for sexually assaulting his
sister. Defence counsel focussed on the related incident and cross-examined the complainant about
her obviously suspect account of her role in the attack on her partner.

[16] The trial judge did not err in admitting evidence that the appellant sexually assaulted the
complainant’s partner moments before the appellant assaulted his sister. This evidence was
undoubtedly part of the narrative and its prejudicial effect clearly did not exceed its probative
value.

[17] Not only did defence counsel not object, she explained the reasons she was not objecting.
Indeed, defence counsel used this evidence effectively to diminish the credibility of the
complainant’s evidence about what happened on December 14, 2013. In that context, the trial
judge would have fairly concluded that defence counsel was satisfied it was in her client’s interest
to have this evidence before the jury and she was entitled to place significant weight on defence
counsel’s decision not to object to that having been done.

[18] Under the circumstances, the trial judge was justified in not warning the jury about the
limited use it may make of this evidence. She was entitled to rely on the very experienced defence

2
[1998] 1 S.C.R. 244.
Page: 3

counsel’s decision not to object to the admission of this evidence and not to ask for a jury
instruction.

B. Nondisclosure Issue

[19] Defence counsel was aware that another lawyer had commissioned the contested report
about the complainant and should have made further inquiries about its status if she thought it may
be of any assistance to her client.

[20] The Crown did not breach its duty to disclose. It reasonably assumed that defence counsel
was aware of the report’s existence.

[21] Even if the Crown breached its duty, there is no basis to conclude that its nondisclosure had
any impact the trial outcome or the overall fairness of the trial process. The report provided no
insights that would have benefitted defence had the report been disclosed to the defence.

C. Reasonable Apprehension of Bias Issue

[22] No reasonable and right-minded person in the community informed of the content and
duration of the conversations between the jury chair and the complainant and her partner adopting
a realistic and practical perspective would have concluded on a balance of probabilities that the
jury chair was partial and unable to discharge her duty to be impartial.

[23] This is a very small isolated community – 1600 residents – and contact between its
members of the kind that occurred here must be an everyday occurrence.

IV. Statement of Facts

A. The Indictments

[24] An indictment charged the appellant with sexually assaulting his sister on or about
December 14, 2013 in contravention of ss. 155 and 271 of the Criminal Code. 3 It also charged him
with a contravention of these Criminal Code provisions in 1997.

[25] The Crown also indicted the appellant for the aggravated sexual assault of his sister’s
partner on December 14, 2013.

[26] An indictment charged the complainant in this case with aggravated sexual assault of her
partner.

3
R.S.C. 1985, c. C-46.
Page: 4

B. The RCMP Investigation

[27] The events leading up to the indictments involved two complaints.

[28] MA alleged that the appellant assaulted him on December 14, 2013.

[29] SQ was the second complainant. She is the appellant’s sister and MA’s partner. She alleged
that the appellant sexually assaulted her on December 14, 2013.

[30] SQ had consumed large amounts of alcohol and had blacked out before the appellant
attacked her. When the Royal Canadian Mounted Police first interviewed her in 2014 she had no
recollection of the events of December 14, 2013. This changed over time. She eventually recalled
that the appellant had assaulted her on December 14, 2013 and also sometime in 1997. She also
recalled that she participated in the December 14, 2013 assault on her partner perpetrated by her
brother.

C. The Psychologist’s Draft Report

[31] SQ’s counsel had severe reservations about the reliability of her confession.

[32] He retained a psychologist to prepare a draft report on the frailities of memory.

[33] He forwarded this draft report to the Crown before November 14, 2016, the start date of the
appellant’s trial for sexually assaulting SQ. He hoped that it would cause the Crown to withdraw
the sodomy charge against his client.

[34] The Crown did not consider it helpful and decided to press on with the charge against SQ.

[35] By inadvertence, the Crown failed to disclose the existence of this report to Ms. Crowe, the
appellant’s counsel.

D. The Appellant’s November 14-17, 2016 Trial

[36] The appellant’s trial started on November 14, 2016 and concluded on November 17, 2016.

[37] Ms. Crowe, a very experienced criminal law practitioner in the north, represented the
appellant. She had conducted between eighty to one hundred jury trials in the north.

[38] The Crown led evidence through MA that the appellant had sexually assaulted him
moments before he assaulted his sister.

[39] Defence counsel did not object to the admissibility of this discreditable-conduct evidence.
She was satisfied that it was an unavoidable part of the narrative and that everybody in the
community would have heard about it.
Page: 5

[40] SQ gave evidence for the Crown. She testified that the appellant had sexually assaulted her
on December 14, 2013 and sometime in 1997.

[41] Defence counsel cross-examined SQ extensively and effectively.

[42] She acknowledged that she was unsure if she actually assaulted her partner or only dreamt
about it or absorbed it into her memory because her mother told her it had happened. This would
have caused the jurors to consider whether the same conditions may have accounted for her
evidence that the appellant sexually assaulted her.

[43] SQ admitted that she never told the investigators about the appellant’s assault on her until
she gave them her third statement. It was also around this time that SQ recalled that she and the
appellant had sodomized MA with a broomstick on December 14, 2013.

[44] Defence counsel did not ask the trial judge to warn the jury about the limited use that may
be made of the discreditable-conduct evidence and the trial judge did not do so on her own
initiative.

[45] The jury convicted the appellant of sexually assaulting his sister on December 14, 2013 and
acquitted him of the alleged 1997 assault.

E. Post-Trial Developments

1. Jury Tampering Allegation

[46] On November 18, 2016 JQ, the appellant’s brother, informed Ms. Crowe that on November
16 and 17, 2016 he had observed the jury chair converse with his sister, the complainant, at the
Co-op.

[47] Ms. Crowe reported to the RCMP what the appellant’s brother had told her.

[48] No charges were laid.

2. The Crown Withdrew the Charge Against SQ

[49] The Crown lawyers responsible for the prosecution of the sodomy charge against SQ
concluded in July 2017 that there was no reasonable prospect of conviction and recommended to
the senior Crown prosecutor that the charge against her be stayed. The psychologist’s draft report
was not a factor that led to this conclusion.

[50] The senior Crown prosecutor accepted this recommendation and the Crown stayed the
charge against SQ.
Page: 6

V. Key Criminal Code Provisions

[51] Sections 278.2(1) and (3) of the Criminal Code 4 are as follows:

278.2 (1) Except in accordance with sections 278.3 to 278.91, no record relating to
a complainant or a witness shall be produced to an accused in any proceedings in
respect of any of the following offences ... :

(a) an offence under section ... 155 ... [and] 271 ... .

(3) In the case of a record in respect of which this section applies that is in the
possession or control of the prosecutor, the prosecutor shall notify the accused that
the record is in the prosecutor’s possession but, in doing so, the prosecutor shall not
disclose the record’s contents.

VI. Analysis

A. Defence Counsel Did Not Object to the Admission of the Discreditable Conduct
Evidence for Sound Tactical Reasons

[52] The Crown led evidence that the appellant sexually assaulted MA moments before the
sexual assault on SQ. The appellant acknowledges that defence counsel failed to object to the
admission of this evidence or to the lack of a limiting instruction to the jury. However, he says her
failure to object is not determinative of the analysis. He argues counsel’s lapse here was not an
intentional strategy and could not have conferred a tactical advantage on the defence. Potential
misuse of this evidence could only have prejudiced him.

[53] The decision by a very experienced northern counsel not to raise the discreditable conduct
issue was clearly a sound tactical decision. SQ’s inconsistent and confusing statements about
whether she assaulted MA were a major part of counsel’s cross-examination and submissions.
Counsel effectively used the alleged assault on MA to undermine SQ’s credibility and discredit her
reliability to the jury, and to suggest SQ was motivated by guilt to make false allegations against
the appellant to cover up her own responsibility.

[54] Counsel chose not to ask for a limiting instruction, and as a result the jury focussed on the
appellant’s cross-examination and the emphasis on SQ’s confusion over whether she assaulted her
partner to impugn her credibility and suggest a motive for her evidence against the appellant.

4
R.S.C. 1985, c. C-46.
Page: 7

[55] The appellant concedes on the appeal that “[b]oth alleged offences occurred in the course
of the same incident” and the “proceedings [concern] what amounts to a single incident.” 5

[56] In these circumstances the jury had to be made aware of the allegation that the appellant,
not SQ, sexually assaulted SQ’s spouse. Otherwise the jury would have been left with a false
impression.

B. The Trial Judge Did Not Err by Admitting the Discreditable Conduct
Evidence and by Failing To Warn the Jury About the Limited Use It May
Make of the Discreditable Conduct Evidence

[57] The appellant denies that the evidence he sexually assaulted MA emerged incidentally or
briefly as part of the narrative. Rather, he asserts that the Crown specifically referred to this
evidence in the opening statement, questioned MA on it and elicited details of it in
examination-in-chief.

[58] The appellant denied the allegation he sexually assaulted his sister. He says that since the
case turned on credibility and the jury’s primary task was to assess the credibility of the witnesses,
the jury may well have used the evidence in a prohibited way. The potential moral prejudice or
prejudicial reasoning was that the jury may have concluded the appellant deserved to be punished
for the assault on MA. This may have manifested itself in one of several ways. It may have caused
the jury to refrain from applying the presumption of innocence. Or the jury may have used the
evidence as a basis to conclude the appellant was the type of person who would sexually assault a
woman and conclude he committed the sexual assault on his sister that same night.

[59] The appellant suggests this prejudicial and troubling evidence was simply left with the jury
and the detailed description elicited by the Crown jeopardized his right to a fair trial. The trial
judge should have instructed the jury not to reach a conclusion based on general propensity, moral
prejudice or other prohibited reasoning.

[60] As conceded by the appellant, the alleged assault on MA and the assault on SQ were parts
of a single incident. It would not have been possible for witnesses to give their evidence without
mentioning the allegation of the assault on MA. For example, SQ’s evidence that the appellant
said: “I’m going to have her instead” as he pulled her closer would have made no sense. Nor would
it have made sense that SQ was interviewed twice before she remembered the assaults on herself
and on her partner. As described in Part VI.A above, the appellant emphasized in
cross-examination that it was SQ who assaulted MA.

[61] Therefore, the probative value of the evidence clearly exceeded any prejudicial effect. The
appellant was on trial for a serious sexual assault on his sister. The assault on MA was alleged to

5
Appellant’s factum, ¶¶ 2 & 55.
Page: 8

have occurred mere moments before the assault on SQ. This was not a situation where an
allegation of an historical assault may create an impression of bad character. In fact, here the jury
acquitted the appellant of the charges relating to the alleged assault on SQ in 1997.

C. Defence Counsel Should Have Asked About the Status of a Report that She
Knew Was Forthcoming if She Thought It Might Assist the Defence

[62] The Crown came into possession of an expert’s report on the complainant on October 19,
2016, approximately one month before trial. The Crown did not provide formal notice to the
defence that it was in receipt of the report until September 2017. The Crown concedes it had a duty
under s. 278.2(3) of the Criminal Code to notify the appellant it had the report in its possession. A
special commissioner found the Crown’s failure to disclose the report was inadvertent. 6

[63] The report concerned SQ’s memory, and specifically the effects of alcohol blackout and
repeated recollection on memory. The author of the report did not speak to SQ. He reviewed some
but not all of her statements.

[64] The appellant argues that no matter the cause of the failure to disclose was inadvertence, he
was deprived of critical information that would have informed his decisions in the conduct of his
defence. At trial, the report would have been used in cross-examination to further demonstrate that
SQ herself questioned the reliability and accuracy of her account. The withheld information could
have affected the jury’s conclusions on the only real issue at trial – the credibility and reliability of
SQ.

[65] The appellant suggests the test in The Queen v. Dixon 7 is met because he did not have the
report before his trial. He concedes his counsel was on notice about a pending report as early as
May 2016. His counsel requested an adjournment on May 2, 2016 because a report “on the effects
of alcohol blackout, which is central to the allegations in this matter”, was being obtained. The
appellant’s counsel admitted she did not follow up with her agent about an August 8, 2016
appearance at which imminence of the report was discussed. The Crown expressly advised the
court that the report could have a significant impact on the appellant’s trial.

[66] The Crown reasonably assumed the appellant’s counsel was aware of the pending report’s
existence. The appellant’s counsel should have inquired about the status of a report she clearly
knew was forthcoming.

6
The Nunavut Court of Appeal appointed a special commissioner to inquire into matters arising in this appeal.
Criminal Code, R.S.C. 1985, c. C-46, s. 683(1)(e). Report of Special Commissioner Paul S. Rouleau ¶ 84 (filed July
13, 2018) (“There is no evidence of bad faith on the part of the Crown in the failure to disclose the report. The failure
to disclose was inadvertent and I accept Mr. Nault’s explanation”).
7
[1998] 1 S.C.R. 244.
Page: 9

[67] However, even if the Crown had breached its duty to disclose the report, the contents of the
report demonstrate that the outcome of the trial could not have been affected, nor was overall trial
fairness affected.

[68] The report contained only observations about memory which are matters of common
experience. It stated there was a substantial time gap between events and SQ’s recollection of
them; that repeated recounting provides more opportunities to incorporate inaccurate details and
further contaminate the memory; and that consumption of large quantities of alcohol compromises
the accuracy of memory, and blackouts result in no memory at all. Further, the report said that
discussing the events, particularly with those who participated, provides additional opportunities
to unwittingly incorporate new and possibly inaccurate information into one’s own memory; and
confidence in memory does not correlate closely with accuracy.

[69] The jury would not have needed an expert to explain these observations. In any event, a
careful review of the record indicates that these same points were made through the evidence,
counsel’s submissions and the trial judge’s instructions. The problems with SQ’s memory were
evident. There were no other lines of inquiry the appellant could have pursued based on the report.

D. No Reasonable Person in the Community Aware of the Important Facts


Would Have Concluded on a Balance of Probabilities that the Jury Chair Was
Partial

[70] Shortly after the jury’s verdict was delivered, the appellant’s brother JQ reported a concern
of jury tampering to Ms. Crowe. He alleged that on November 16 and 17, 2016 while the trial was
ongoing, he observed discussions between SQ and the jury chair at the Co-op. Ms. Crowe reported
the events to the RCMP. The RCMP carried out an investigation. They obtained statements from
all those allegedly involved. The investigation closed without any charges being laid.

[71] The special commissioner’s report stated that SQ, MA and the jury chair all testified
before him that they did speak at some point during the trial but did not speak about the trial. 8 The
special commissioner acknowledged inconsistencies in their evidence but accepted their
testimony. 9 He gave no weight to JQ’s testimony. 10

[72] The special commissioner said the contact was “certainly inadvisable” 11 but accepted there
were no discussions related to the trial while it was ongoing. He said that in this community there
are few gathering places and a total avoidance of contact is virtually impossible. 12

8
Special Commissioner’s Report ¶ 64 (July 13, 2018).
9
Id. ¶ 67.
10
Id. ¶¶ 69 & 84.
11
Id. ¶ 83.
Page: 10

[73] The appellant says that although the evidence heard in the context of the special
commission did not reveal evidence of impropriety in the nature of actual influence on jury
deliberations, actual prejudice is not necessary to find irregularities in jury conduct. Inappropriate
jury contact can lead to a miscarriage of justice by undermining the appearance of justice and
fairness. He suggests the circumstances surrounding the exchanges between the Crown witnesses
and the juror in this case when considered as a whole are sufficient to meet that test. A
well-informed, reasonable person considering the whole of the circumstances would conclude the
process followed appears unfair.

[74] The appellant points out there were only two Crown witnesses and the jury chair had
conversations with both of them during the trial and at different times. He emphasizes these
aspects of the evidence. The conversations were more than a quick exchange in passing. The jury
chair had conversations with SQ on more than one occasion during the trial. The jury chair
engaged in animated conversation with MA at the Co-op restaurant that went beyond mere
acknowledgement of acquaintanceship. Further, this was a very short trial and not a situation
where lengthy proceedings meant that regular contact between jurors and witnesses would be
inevitable. The conversation between MA and the jury chair took place immediately before the
jury was charged, and MA and SQ were not in the habit of socializing with the jury chair.

[75] The presumption that jurors are impartial is only displaced by clear evidence. The test for
reasonable apprehension of bias is objective and focuses on what a properly informed person,
viewing the matter realistically and practically and having thought the matter through, would
conclude. 13

[76] The special commissioner accepted that the jury chair, SQ and MA did not discuss the case
during their conversations. 14 He said that absent the evidence of JQ, which he rejected in its

12
Id. ¶¶ 55 & 56.
13
Yukon Francophone School Board, Education Area #23 v. Yukon Territory, 2015 SCC 25, ¶ 21; [2015] 2 S.C.R.
282, 296 (“This test – what would a reasonable, informed person think – has consistently been endorsed and clarified
by this Court”); Wewaykum Indian Bank v. Canada, 2003 SCC 45, ¶ 60; [2003] 2 S.C.R. 259, 288-89 (the Court
adopted the test recorded in Committee for Justice and Liberty v. National Energy Board); The Queen v. S., [1997] 3
S.C.R. 484, 505 (“The presence or absence of an apprehension of bias is evaluated through the eyes of the reasonable,
informed, practical and realistic person who considers the matter in some detail ... . The person postulated is not ‘a
very sensitive or scrupulous person’, but rather a right-minded person familiar with the circumstances of the case. It
follows that one must consider the reasonable person’s knowledge and understanding of the judicial process and the
nature of judging as well as of the community in which the alleged crime occurred”) & Committee for Justice and
Liberty v. National Energy Board, [1978] 1 S.C.R. 369, 394 (“the apprehension of bias must be a reasonable one, held
by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required
information. In the words of the Court of Appeal, that test is ‘what would an informed person viewing the matter
realistically and practically – and having thought the matter through – conclude. Would he think that it is more likely
than not that Mr. Crowe, whether consciously or unconsciously, would not decide fairly”).
14
Special Commissioner’s Report ¶¶ 64 & 67 (July 13, 2018).
Page: 11

entirety, 15 there was no reliable basis to conclude otherwise. The special commissioner referred to
the context of the trial, that it took place in a small isolated community in which it is likely people
involved in the trial will on occasion come into contact with others involved in the trial. 16

[77] A reasonable person who understood the circumstances of life in a small isolated northern
community, knowing that the jury chair did not discuss the trial with MA and SQ, would conclude
on a balance of probabilities that this contact did not create a reasonable apprehension of bias.
There is no clear or cogent evidence here to displace the presumption of impartiality.

VII. Conclusion

[78] This appeal is dismissed.

[79] Mr. Q must surrender into custody at the Royal Canadian Mounted Police detachment in
Pond Inlet, Nunavut no later than 1:00 p.m. Monday, April 15, 2019.

Appeal heard on February 12, 2019

Memorandum filed at Iqaluit, Nunavut


this 10th day of April, 2019

Authorized to sign for Smallwood J.A.

Wakeling J.A.

Authorized to sign for Crighton J.A.

15
Id. ¶¶ 69 & 84.
16
Id. ¶ 55.
Page: 12

Appearances:

S. Siebert
for the Appellant

D. Littlefield
X. Proestos
for the Respondent