Case: R v NBM, 2021 ABCA 14 (CanLII)

Keywords: sexual abuse; delay; standard of review

Synopsis:

The Appellant appeals multiple convictions on two grounds:

  1. The trial judge erred by allowing bad character evidence of NM, as well as the prior sexual history of the child’s mother without an application under s 276 of the Criminal Code. He further argues that the burden of proof was reversed, sexual assault myths and stereotypes were misapplied and applied unevenly, the trial judge applied uneven scrutiny to the evidence, there were inconsistencies and weaknesses in the Crown’s case which were missed and/or ignored, and a reasonable apprehension of bias on the part of both the Crown and the trial judge is evident; and
  2. The trial judge erred in law and in fact in categorizing delay and waiver of delay, which led to an unreasonable conclusion that improperly exempted the Crown from bearing the onus to establish the delay in excess of 30 months was unreasonable.” (See para. 1).

The Court of Appeal dismisses the appeal.

Importance:

At para. 2, the Court of Appeal succinctly summarized the standard of review and principles applicable to the two grounds of appeal advanced by the Appellant.

  • a trial judge’s findings of fact are accorded deference;
  • the trial judge’s analysis of delay pursuant to R v Jordan, 2016 SCC 27 must be reviewed [in Alberta] according to the principles set forth in R v Regan, 2018 ABCA 55;
  • with respect to misapprehension of evidence, an appellate court will intervene where a “readily obvious error is identified that goes to the substance of the material evidence, not simply to its detail, and it played an essential role in the reasoning process that resulted in a conviction, not merely the narrative” (see R v Loher, 2004 SCC 80 at paras 6-9; R v Sinclair, 2011 SCC 40 at para 53);
  • on the issue of bias, an appellate court will intervene only “where a fully informed observer, considering the context of the entire proceedings, would reasonably conclude that the trial judge was not impartial”;
  • “[t]here is a strong presumption that judges will carry out their oath of office to render justice impartially; and
  • [c]ogent evidence is required to displace this high threshold” (see R v S (RD), 1997 CanLII 324 (SCC) at paras 31-33).

With respect to the Appellant’s first ground of appeal, the Court of Appeal found, in this case, the Applicant “failed to identify any specific, palpable and overriding error that would warrant appellate intervention. Rather, he simply seeks a different outcome”. (See para. 7).

Similarly, with respect to the Appellant’s second ground of appeal, the Court of Appeal determined “[g]iven the absence of any allegation of error on the part of the trial judge, it is difficult to justify appellate review”. For the Court of Appeal, despite delay “in excess of 30 months” (see para. 1), there was no demonstrable error in the Trial Judge’s “Jordan analysis or in the application of the exceptional circumstances transitional exception that would warrant appellate intervention in relation to this second ground.” (See para. 17).

Counsel for the Appellant: Efrayim Moldofsky (Efrayim Moldofsky Professional Corporation, Calgary)

Counsel for the Respondent: Julie Morgan (Department of Justice and Solicitor General, Calgary)

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