R. v. T.W., 2016 NLCA 3

IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL Citation : R. v. T.W. , 2016 NLCA 3 Date : January 27, 2016 Docket : 201401H0030 Restriction on Publication : Section 110(1) of the Youth Criminal Justice Act respecting non-publication of the identity of a person as having been dealt with under this Act applies to this judgment. Section 111(1) of the Youth Criminal Justice Act respecting non-publication of the identity of a child or young person as being a victim or witness in connection with an offence alleged to have been committed by a young person applies to this judgment. BETWEEN : T. W.

APPELLANT AND : HER MAJESTY THE QUEEN RESPONDENT Coram : Welsh, Rowe and Harrington JJ.A. Court Appealed From : Provincial Court of Newfoundland and Labrador Appeal Heard: January 21, 2016 Judgment Rendered : January 27, 2016 Reasons for Judgment by Welsh J.A. Concurred in by Harrington J.A. Separate Concurring Reasons by Rowe J.A. Counsel for the Appellant : Karen Rehner Counsel for the Respondent : Lisa Stead Welsh J.A.: [ 1 ] This is an appeal by T.W. who was convicted of three counts of sexual assault under the Criminal Code . He was dealt with

under the Youth Criminal Justice Act. The Crown concedes that the convictions must be set aside due to institutional error; that is, therecording device failed to operate for a portion of the trial. In the circumstances, this failure affected T.W.’s ability to make fullargument on appeal. [2] Counsel for T.W. concedes that this is not a circumstance in which an acquittal is available because there was evidence onwhich a trier of fact could reasonably have convicted.

In the result, the only option would be for the Court to order a new trial (section686(2) of the Criminal Code). [3] I accept both of the above concessions. Accordingly, I would quash the convictions and order a new trial. The only remainingissue is whether the Court should order a stay of proceedings as requested by T.W.

The Crown submits that the discretion to stay aprosecution is reserved to the Crown and that this Court has no jurisdiction to make that order. [4] In response, T.W.’s counsel points to section 686(8) of the Criminal Code which authorizes the court to make additionalorders where, as here, an order for a new trial is made under subsection (2): Where a court of appeal exercises any of the powers conferred by subsection (2), (4), (6) or (7), it may make any order, in addition, thatjustice requires. [5] That provision has been relied upon by this Court to order a stay of proceedings in appropriate circumstances.

In R. v. A.J.B.(1994), (NL CA), 120 Nfld. & P.E.I.R. 147 (Nfld. C.A.), Steele J.A., for the Court, concluded that an order for a newtrial would be “pointless and unjust” in the circumstances (paragraph 61). In Elliott v.

R., (SCC), [1978] 2 S.C.R. 393,Ritchie J., for the Court, wrote, at pages 431 to 432: In my view when Parliament authorized the Court of Appeal, in the exercise of its power, to order a new trial, to “make any order, inaddition, which justice requires” it must be taken as having authorized that Court under those circumstances to make any additionalorder which the ends of justice require whether the order for a new trial is dependent upon the additional order or not.

I do not think thatthe wide powers conferred on the Court of Appeal by s. 613(8) are to be narrowly construed but rather that they are designed to ensurethat the requirements of the ends of justice are met, and are to be liberally construed in light of that overriding consideration. [Italics inoriginal.] See also: R. v.

Smith, 2004 SCC 14, [2014] 1 S.C.R. 385, at paragraph 22. [6] In A.J.B., Steele J.A. wrote: [71] Having come to the conclusion that an acquittal is not appropriate or warranted and that a retrial would not meet the ends ofjustice as it would constitute a patent abuse of the legal process, accordingly, I would quash the conviction, order a new trial, and enter astay of proceedings. [7] In this case, if a new trial is ordered, T.W. has specifically requested that the Court grant a stay preventing another trial fromproceeding.

The sentence imposed under the Youth Criminal Justice Act pursuant to a joint submission of Crown and defence counselhas been served. T.W., born in 1996, was a young teenager at the time of the incidents alleged to have occurred between April 2009 andAugust 2010. He and the complainant were close in age and were living in the same home as foster children at the time. T.W. will turn20 years of age this year.

His conduct since the convictions indicates that he has been rehabilitated and is becoming a productivemember of society. [8] The Crown advised that the objective in holding a new trial would be to confirm the convictions. There is no indication thecomplainant supports that position. He, too, is nearing the end of his teenage years. The reason for T.W.’s inability to pursue his appeal,and the resulting need for a second trial, is an institutional failure by the justice system.

These factors are properly considered in theglobal assessment of the circumstances peculiar to this case. [9] Finally, but of significant importance, from the Youth Criminal Justice Act, sections 117 to 129 regarding access to and thesealing, use, destruction and disclosure of youth criminal records, it is clear that Parliament recognizes that children, including teenagersless than eighteen years of age, are developing and may make poor choices which may result in criminal proceedings.

In appropriatecircumstances, the Act provides a young person with the opportunity to begin life as an adult with a clean slate. [10] In all the circumstances of this case, while the Criminal Code requires that a new trial be ordered, proceeding with the trialwould be unfair, not in the interests of justice, and would, in fact, constitute an abuse of process.

This is a situation in which this Courtshould make the additional order under section 686(8) staying further proceedings, rather than leaving the decision to proceed with asecond trial to the discretion of the Crown. [11] Accordingly, I would quash the convictions, order a new trial, and enter a stay of proceedings. ____________________________________ B. G. Welsh J.A. I Concur: ____________________________________ M. F. Harrington J.A.

Rowe J.A. (Separate Concurring Reasons): [ 12 ] I have read the reasons of my sister Welsh with which I agree. I would add a further point, one dealt with in the facta, but not dealt with in oral argument. As such, it may be read as obiter . [ 13 ] As noted in paragraph 1, the Crown conceded that a new trial should be ordered, as the recording device failed to operate for part of the trial.

There is an additional basis on which I would order a new trial, based on an error by the trial judge. [ 14 ] There was inconsistent evidence as to the ages of the complainant and the accused at the time of the alleged sexual assaults. Some evidence, if it had been accepted, would have brought their ages within the range dealt with in s. 150.1(2) , of the Criminal Code , which reads:

(2) When an accused is charged with an offence under …

section 271 in respect of a complainant who is 12 years of age or more but under the age of 14 years, it is a defence that the complainant consented to the activity that forms the subject-matter of the charge if the accused (

a) is less than two years older than the complainant; and (

b) is not in a position of trust or authority towards the complainant, is not a person with whom the complainant is in a relationship of dependency and is not in a relationship with the complainant that is exploitative of the complainant. [ 15 ] The accused admitted he had sexual contact with the complainant, but said that it was consensual. (This was denied by the complainant.) [ 16 ] The trial judge stated that, pursuant to s. 150.1(1), the complainant could not legally consent, as he was under the age of 16 years at the time of the sexual assaults.

He said that s. 150.1(2) did not apply. [ 17 ] The trial judge erred in that he failed to deal with a series of questions: (1) what were the ages of the complainant and the accused at the time of the alleged sexual assaults; (2) if the complainant was under 12, that would have closed off the defence under s. 150.1(2), whereas if the complainant was between 12 and 14, then the defence would have been available; (3) in the latter instance, the trial judge would have had to decide whether the complainant had consented to the sexual activity with respect to each of the three counts. [ 18 ] By failing to address the potential defence upon which the accused sought to rely, the trial judge erred in law, such that a new trial would have to be ordered. ____________________________________ M.

H. Rowe J.A.