Her Majesty The Queen Appellant v. E.M.W., 2011 SCC 31

SUPREME COURT OF CANADA Citation: R. v. E.M.W., 2011 SCC 31 , [2011] 2 S.C.R. 542 Date: 20110617 Docket: 33930 Between: Her Majesty The Queen Appellant and E.M.W. Respondent Coram: McLachlin C.J. and Binnie, Deschamps, Fish, Abella, Charron and Cromwell JJ. Reasons for Judgment: (paras. 1 to 11) Dissenting Reasons: (paras. 12 to 13) McLachlin C.J. (Binnie, Deschamps, Abella, Charron and Cromwell JJ. concurring) Fish J. R. v. E.M.W., 2011 SCC 31, [2011] 2 S.C.R. 542 Her Majesty The Queen Appellant v. E.M.W. Respondent Indexed as: R. v. E.M.W. 2011 SCC 31 File No.: 33930. 2011: May 20; 2011: June 17.

Present: McLachlin C.J. and Binnie, Deschamps, Fish, Abella, Charron and Cromwell JJ. on appeal from the court of appeal for nova scotia

Criminal law — Appeals — Powers of Court of Appeal — Reasonable verdict — Jurisdiction of a court of appeal to considerwhether there was a miscarriage of justice — Whether there was a miscarriage of justice. E.M.W. was convicted of sexual assault. A majority of the Court of Appeal allowed an appeal and ordered a new trial. Itheld that the trial judge had improperly used pre-trial statements by the complainant in ways that assisted the Crown’s case, and thatCrown counsel’s questioning and conduct had rendered the trial unfair.

Held (Fish J. dissenting): The appeal should be allowed and the respondent’s conviction should be restored. Per McLachlin C.J. and Binnie, Deschamps, Abella, Charron and Cromwell JJ.: A failure to raise miscarriage of justice as adistinct ground in a Notice of Appeal does not deprive a court of appeal of jurisdiction to consider whether there was a miscarriage ofjustice. The shortcomings in the trial did not result in a miscarriage of justice. The trial judge’s reasons do not support an inference thatthe complainant’s pre-trial statements were used improperly.

Crown counsel did not ask impermissible leading questions. Crowncounsel’s conduct did not affect the trial judge’s appreciation of the evidence or render the proceedings unfair. Per Fish J. (dissenting): The trial was unsatisfactory. Crown counsel’s cross-examination was inappropriate andprejudicial. Defence counsel did not attenuate the prejudicial effect of Crown counsel’s cross-examination. Nor did the trial judge’sdetailed and thoughtful reasons set things right. Statutes and Regulations Cited Criminal Code, R.S.C. 1985, c. C-46, s. 693(1)(a).

APPEAL from a judgment of the Nova Scotia Court of Appeal (Fichaud, Beveridge and Farrar JJ.A.), 2010 NSCA 73, 295N.S.R. (2d) 141, 263 C.C.C. (3d) 136, 935 A.P.R. 141, [2010] N.S.J. No. 515 (QL), 2010 CarswellNS 650, setting aside the accused’sconviction for sexual assault entered by Campbell Prov. Ct. J., 2009 NSPC 33, [2009] N.S.J. No. 329 (QL), 2009 CarswellNS 396, andordering a new trial. Appeal allowed, Fish J. dissenting. James A. Gumpert, Q.C., and Mark A. Scott, for the appellant. Donald C. Murray, Q.C., and Roger A. Burrill, for the respondent.

The judgment of McLachlin C.J. and Binnie, Deschamps, Abella, Charron and Cromwell JJ. was delivered by [1] The Chief Justice — This is an appeal as of right pursuant to s. 693(1)(

a) of the Criminal Code, R.S.C. 1985, c. C-46. For the reasons that follow, we would allow the appeal and affirm the conviction of E.M.W. [2] After a trial before judge alone, E.M.W. was convicted of sexual assault of his daughter, who at the trial was 12years old (2009 NSPC 33 ). A majority of the Court of Appeal (Beveridge and Farrar JJ.A.) allowed E.M.W.’s appeal fromconviction and ordered a new trial, on the ground of miscarriage of justice (2010 NSCA 73, 295 N.S.R. (2d) 141).

Fichaud J.A.dissented, on the view that the grounds relied on by the majority were not raised in the Notice of Appeal, and that in any event, amiscarriage of justice was not established. [3] In this Court, three points were argued. Jurisdiction to Consider the Issue of Miscarriage of Justice [4] The first question is whether the majority of the Court of Appeal erred in allowing the appeal, given that the issuesof miscarriage of justice and admissibility of the evidence were not raised in the Notice of Appeal.

We agree with the respondent thatthe failure to expressly raise miscarriage of justice as a distinct ground of appeal does not deprive a court of appeal of jurisdiction toconsider that issue. A potential miscarriage of justice is always something a court must be able to consider. However, the fact remainsthat the rules require that the grounds that the appellant relies on be set out. This ensures that the opposite party has notice of what willbe raised. More broadly, it ensures that the court receives full submissions on all the issues that will be raised.

Where additionalgrounds come to light after filing, good practice requires that the grounds be amended. If the court wishes to explore an issue that hasnot been raised, it may be necessary to grant an adjournment to ensure a full and fair hearing. [5] The respondent argues that despite the economy of the Notice of Appeal, the appeal hearing was full and fair. Weneed not linger over this question.

Suffice to say that the Court of Appeal had jurisdiction to hear submissions on whether there had beena miscarriage of justice, and the issues were fully canvassed before this Court, whatever may have been the case below. Improper Use of Prior Statements [6] The complainant had made statements to a friend and to the police on the matter, before testifying at the trial.

Themajority of the Court of Appeal was of the view that these statements had been improperly used or alluded to, in ways that bolstered theevidence of the complainant or otherwise assisted the Crown. [7] In our view, the majority of the Court of Appeal was wrong to seize on the trial judge’s reference to the content ofthe complainant’s disclosures to show that he had improperly used the evidence about these disclosures. The trial judge’s careful andthorough reasons when read as a whole in light of the trial record do not support the inference drawn by the majority of the Court ofAppeal.

Did the Conduct of the Trial Constitute a Miscarriage of Justice? [8] This trial was far from perfect. At times, questions were asked or statements made that were tasteless, indeedunsavoury. Crown counsel’s soliloquizing on personal matters was unnecessary. However, we are not satisfied that these defects,

however unfortunate, affected the trial judge’s appreciation of the evidence or rendered the proceedings unfair, so as to give rise to amiscarriage of justice. [9] We do not agree with the majority of the Court of Appeal that Crown counsel asked impermissible leadingquestions of the complainant. Leading questions are questions that suggest an answer or assume a state of facts that is in dispute. Herethe questions put by Crown counsel to the complainant in examination-in-chief did not cross this threshold.

Crown counsel, in meetingthe challenge of a child reluctant to respond, asked binary questions that gave her a choice between alternatives. They did not, however,suggest an answer. The main components of the offence were elicited from the complainant by non-leading questions. We are notsatisfied that her evidence, viewed as a whole, was improperly obtained by leading questions. [10] We do not find it necessary to go into detail on the other allegations of failings in the trial.

The trial judge’s reasonsshow that he was alive to the concerns raised by inappropriate aspects of the trial, and took them into account in his careful and detailedreasons. The shortcomings of the trial therefore did not, in this case, result in a miscarriage of justice. Conclusion [11] We would allow the appeal and restore the conviction.

The following are the reasons delivered by [12] Fish J. (dissenting) — With respect for those who are of a different view, I have concluded that the respondent’strial was unsatisfactory ― notably because of the inappropriate and prejudicial cross-examinations of the respondent and N.L., thecomplainant’s grandmother, who was an important defence witness. The failure of defence counsel to object hardly attenuates theprejudicial effect of the impugned cross-examinations.

Nor do defence counsel’s inexplicable questions regarding the respondent’srefusal to submit to a polygraph test justify the Crown’s persistent cross-examination suggesting that the respondent’s reason for refusingto do so can only be explained by his guilt. Finally, I recognize that the trial judge delivered detailed and thoughtful reasons forconcluding as he did (2009 NSPC 33 ).

In my respectful view, however, they cannot set right the unsatisfactory nature of thetrial. [13] Accordingly, without endorsing in their entirety the reasons of the majority in the Court of Appeal (2010 NSCA 73,295 N.S.R. (2d) 141), I agree that the respondent is entitled to a new trial and would therefore dismiss the Crown’s appeal to this Court. Appeal allowed, Fish J. dissenting. Solicitor for the appellant: Public Prosecution Service of Nova Scotia, Halifax. Solicitor for the respondent: Dartmouth Professional Centre, Dartmouth.