R. v. Rouse, 2021 NSCA 51

Nova Scotia Court of Appeal Citation: R. v. Rouse, 2021 NSCA 51 Date: 20210623 Docket: CAC 480811 Registry: Halifax Between: Darrin Phillip Rouse Appellant v. Her Majesty the Queen Respondent Restriction on Publication: s. 486.4 of the Criminal Code Judge: The Honourable Justice Carole A. BeatonAppeal Heard: May 31, 2021, in Halifax, Nova ScotiaStatutes Considered: Criminal Code, R.S.C. 1985, c. C-46, s. 151; s. 152Cases Considered: R. v. Villaroman, 2016 SCC 33; R. v. Coburn, 2021 NSCA 1; R. v. Brady, 2017 NSCA 41; R. v.R.V., 2021 SCC 10; R. v. Clark, 2005 SCC 2; R. v. Wolff, 2019 SKCA 103; Palmer v.

The Queen, (SCC), [1980] 1 S.C.R. 759Subject: Criminal; Criminal – Inconsistent verdicts; Criminal – unreasonable verdict; Evidence; Evidence –fresh evidence motion; Motion; Motion – fresh evidence; Verdict – unreasonable verdictSummary: Mr. Rouse was convicted of an offence contrary to s. 151 (sexual interference) but acquitted on acharge contrary to s. 152 (sexual touching). Both charges related to the same complainant and thesame timeframe. He appealed on the basis the verdicts were inconsistent, and as such, theconviction on the s. 151 charge constituted an unreasonable verdict. Mr.

Rouse also made a motionto adduce fresh evidence on the s. 151 conviction.Issues: 1. Did the conviction on the s. 151 offence constitute an inconsistent, and therefore unreasonableverdict? 2. Should the fresh evidence motion be granted?Result: The trial judge’s decision properly distinguished between the essential elements of each of the s.151 and 152 charges. The judge explained why the evidence put before the court left her with areasonable doubt on the s. 152 charge, which doubt was properly reached in favour of the accused. The verdicts are not inconsistent.

The fresh evidence sought to be adduced cannot meet the test in Palmer v. The Queen, (SCC), [1980] 1 S.C.R. 759. It cannot be said to be evidence that was not available to be adducedat trial. Furthermore, it does not constitute evidence which if believed could reasonably beexpected to have affected the trial result. The appeal is dismissed. The motion to adduce fresh evidence is dismissed. This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet. The full courtjudgment consists of 9 pages. Nova Scotia Court of Appeal Citation: R. v.

Rouse, 2021 NSCA 51 Date: 20210623

Docket: CAC 480811 Registry: Halifax Between: Darrin Phillip Rouse Appellant v. Her Majesty the Queen Respondent Restriction on Publication: s. 486.4 of the Criminal Code Judges: Beveridge, Hamilton and Beaton JJ.A. Appeal Heard: May 31, 2021, in Halifax, Nova Scotia Held: Appeal dismissed, per reasons for judgment of Beaton J.A.; Beveridge and Hamilton JJ.A. concurring Counsel: Raymond Kuszelewski, for the appellant Mark A. Scott, Q.C., for the respondent Order restricting publication — sexual offences 486.4

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (

i) if it occurred on or after that day; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). Reasons for judgment: [ 1 ] In April 2018 the appellant Mr. Rouse was convicted of sexual touching contrary to s. 151 of the Criminal Code , following a trial in the Supreme Court of Nova Scotia before the Honourable Justice Mona Lynch (“the judge”). He was later sentenced to five years incarceration. Mr. Rouse appeals the conviction and moves to adduce fresh evidence. For the reasons that follow, I would dismiss both the appeal and the motion. [ 2 ] By way of background, in 2016 Mr.

Rouse was accused of a series of offences alleged to have occurred during the period 2005–2008. Those allegations all related to the same complainant, who alleged historical contact of a sexual nature involving Mr. Rouse, commencing when she was 13 years old and continuing until she was 15 years old. [ 3 ] There were five charges before the judge: sexual interference contrary to s. 151 , invitation to sexual touching contrary to s. 152, and two charges of sexual touching contrary to s. 153. A charge of sexual assault was disposed of by the judge following a motion for a directed verdict.

Of the remaining four matters, the ss. 151 and 152 charges were both alleged to have occurred between November 2005 and November 2006. The significance of those dates will be discussed later. At this point I note there was no dispute before the judge that in November 2005 the complainant was 13 years old and by November 2006 she was 14 years old. [ 4 ] For reasons not germane to the issues raised in this appeal, the judge acquitted Mr. Rouse on the two s. 153 charges. She also

acquitted Mr. Rouse on the s. 152 charge. Mr. Rouse says the judge’s decision to convict on the s. 151 charge is inconsistent with hernot guilty finding on the s. 152 charge, and therefore the conviction on the s. 151 offence constitutes an unreasonable verdict. Was the verdict unreasonable? [5] Mr. Rouse argues the verdict on the s. 151 charge is unreasonable because it is inconsistent with the verdict on the s. 152charge. The principle of inconsistent verdicts was recently discussed by the Supreme Court of Canada in R. v. R.V., 2021 SCC 10.

There, the accused was convicted by a jury of sexual interference and invitation to sexual touching, but acquitted of sexual assault basedon the same evidence. That decision was overturned by the Ontario Court of Appeal because the convictions were inconsistent andtherefore unreasonable. The Supreme Court of Canada restored the convictions and stayed the sexual assault charge. For the majority,Moldaver J. wrote: [28] The Criminal Code does not expressly identify inconsistent verdicts as a ground for setting aside a conviction.

For an appellatecourt to interfere with a conviction on the ground that it is inconsistent with an acquittal, the court must find that the guilty verdict isunreasonable (R. v. Pittiman, 2006 SCC 9, [2006] 1 S.C.R. 381, at para. 6, citing Criminal Code, s. 686(1)(a)(i)).

The accused bears theburden of establishing that a verdict is unreasonable (Pittiman, at para. 6). [29] In an appeal involving inconsistent verdicts, the applicable test to determine whether a verdict of a jury is unreasonable is: “Arethe verdicts irreconcilable such that no reasonable jury, properly instructed, could possibly have rendered them on the evidence?”(Pittiman, at para. 10).

Put another way, a conviction is unreasonable and must be set aside where the verdicts cannot be reconciledon any rational or logical basis and no properly instructed jury, acting reasonably, could have rendered the verdicts it did based on theevidence (R. v. McShannock (1980), (ON CA), 55 C.C.C. (2d) 53 (Ont. C.A.), at p. 56; Pittiman, at paras. 6-7). […] [31] The ultimate inquiry for appellate courts then is whether the verdicts are actually inconsistent.

Apparently inconsistent verdictscan be reconciled on the basis that the offences themselves are “temporally distinct, or are qualitatively different, or dependent onthe credibility of different complainants or witnesses” (Pittiman, at para. 8). […] (Emphasis added) [6] Assessing the verdict requires more than glossing over any superficial distinction in the wording between a charge that allegessexual interference by touching contrary to s. 151 and a charge that alleges an invitation to sexual touching, contrary to s. 152.

It requiresa closer look at what the judge concluded in relation to each charge, on the evidence before her. [7] In reaching her decision on the ss. 151 and 152 charges, the judge identified the elements of each offence required to be provedby the Crown beyond a reasonable doubt. Next, she canvassed the evidence provided by the witnesses. She then made findings of fact,including assessments of credibility. [8] The judge was satisfied the complainant was a credible witness, in terms of what she testified had occurred between her andMr. Rouse.

The judge also accepted there were certain details the complainant could not recall when giving evidence about events fromat least a decade earlier. The judge attributed the lack of specific recall on certain peripheral details as indicative of both the passage oftime and the complainant’s youthful age at the relevant time. By contrast, the judge provided reasons why she was not assured of thesame level of reliability in the evidence of the defence witnesses, including Mr. Rouse. [9] Mr.

Rouse asserts the judge ignored other available evidence that “tended to suggest” the events surrounding the s. 151 chargehappened in the summer of 2007, not in the summer of 2006 as the complainant testified. He argues the judge placed too muchemphasis on the complainant’s recall of details that went to establishing a timeline. The dates were significant because in 2006 thecomplainant was 13, below the legal age of consent (as it was at that time).

By 2007, she was 14 which, had the judge accepted theevents concerned occurred then, would have left the Crown unable to establish an essential element of the s. 151 charge—whether theperson sexually interfered with was someone “under the age of fourteen years”. [10] With the facts as she determined them, the judge then considered whether the evidence she accepted met the Crown’s burden.

To do so, she proceeded to consider each count, as set out in the wording of the indictment: THAT between the 12th day of November 2005 and the 11th day of November A.D. 2006, at or near Port Williams, Kings County, NovaScotia did: Count 4: for a sexual purpose, touch [K.] a person under the age of Fourteen years, directly or indirectly, with a part of the body to wit:his penis, contrary to s. 151 of the Criminal Code […] and further did, Count 5: for a sexual purpose invite, counsel or incite [K.], a person under the age of fourteen years to touch, directly or indirectly, with apart of her body to wit: her hands, any part of the body of Darrin Philip [sic] Rouse contrary to s. 152 of the Criminal Code […] [11] On the s. 151 charge, the judge’s reasons made plain she had before her evidence, which she accepted, that in 2006 when thecomplainant was 13 years of age, she had a sexual encounter with Mr.

Rouse in a vehicle at a sandpit. The complainant describedintercourse occurred when Mr. Rouse put his penis inside her vagina. The complainant’s consent was irrelevant given her age.

Therewas no dispute that in 2006, 14 was the threshold age of consent. [12] Turning to the s. 152 charge, the judge made the following determinations: S. 152, the elements of the offence are that [K.] was under the age of 14 years at the time of the offence, that Darrin Rouseinvited, counseled, or incited [K.] to touch, directly or indirectly, with her hands any part of Darrin Rouse's body and that the touching,that Darrin Rouse invited, counseled, or incited, was for a sexual purpose. On her direct evidence, [K.] was asked about touching Darrin Rouse. The Crown asked about other sexual, or other contact,

other physical contact between the two of them. However, my review of the evidence does not give a time period for that. She wasasked whether or not there was other physical contact, whether she touched him with her hands everywhere, and whether he touched hereverywhere, but the timeframe was not clear, that ... I don't find that the evidence describes a sexual ... a touching of Darrin Rouse withher hands for a sexual purpose that was clearly before turning 14.

The general question was asked about touching him with her hand on every part of his body but the evidence was not clear thatthat was before she was 14, and so I'm not satisfied in relation to that beyond a reasonable doubt, that he invited, counseled, or incited[K.] to touch him with her hands prior to, when she was under the age of 14, and so I will entering [sic] an acquittal on the 152 count. [13] On that charge, the judge’s reasons revealed the whole of the evidence put before her did not persuade her beyond a reasonabledoubt the timeframe for the events testified to by the complainant was as alleged; that is, they had occurred in the time before the complainant’s 14th birthday.

The judge found the evidence about the events the Crown relied upon in relation to that charge lackedspecificity with respect to dates and times. [14] There were additional problems with the evidence concerning the s. 152 charge. The judge concluded there was no evidenceoffered on one of the essential elements of the charge, that of inviting, counselling or inciting by Mr. Rouse. In doing so, the judge firstaddressed the elements of the offence, before considering the credibility of the witnesses.

In short, the Crown had not led evidencesufficient to persuade the judge on the actus reus of the allegation. [15] The judge’s reasons are compatible with the evidence put before the court. The s. 151 charge concerned whether there wastouching of the complainant, of a sexual nature, by Mr. Rouse; the s. 152 charge concerned whether Mr. Rouse invited, counselled orincited the complainant to touch him for a sexual purpose.

The evidence led in relation to the age of the victim at the time of the actsgermane to the s. 152 charge left the judge with a reasonable doubt as to whether the complainant was under 14 when those actsoccurred. In addition, and of equal import, the judge was not satisfied on the s. 152 charge the Crown had led evidence of Mr. Rouseinviting, counselling or inciting the complainant to touch him. [16] The judge’s doubts were resolved in favour of Mr. Rouse regardless of her credibility findings. This does not amount toinconsistency in the verdicts.

It was open to the judge to distinguish the evidence on each count in the manner in which she did. Theconviction on one and not the other illustrates the judge was alive to the essential but distinct elements of each charge. The offences areeasily seen as “temporally distinct” (R.V., supra, at para. 31) and “qualitatively different” (R. v. Brady, 2017 NSCA 41 at para. 45). [17] I am not persuaded the two verdicts are unreasonable as inconsistent. As argued by the Crown, the difference between the twoverdicts may be reconciled on a logical and rational basis. Should the fresh evidence be admitted? [18] Mr.

Rouse seeks to adduce fresh evidence which he asserts will show he suffered a miscarriage of justice owing to theineffective assistance of trial counsel. He submits had the evidence been adduced at trial, it could have affected the trial result. [19] The evidence filed in support of the motion consists of the affidavit of Mr. Rouse’s aunt as to the 2007 timeline concerningrenovations to the home of Mr. Rouse’s now deceased mother. Mr.

Rouse maintains the timing of the renovations relates to thecomplainant’s credibility in relation to the s. 151 offence occurring in the sandpit. [20] Under cross-examination by the Crown, the witness was clear Mr. Rouse’s mother had acquired mortgage funds in late 2006, aportion of which were earmarked for funding home renovations. The renovations took place in 2007; the witness could recall specifictasks performed by her own husband and by Mr. Rouse in relation to the renovations.

The witness also agreed she had no knowledge asto whether other repairs or renovations might have taken place at the home in 2006. [21] The decision to allow the admission of fresh evidence is guided by the principles set out in Palmer v. The Queen, (SCC), [1980] 1 S.C.R. 759:

i) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial; ii) The evidence must be relevant; iii) The evidence must be credible; iv) The evidence, if believed, could reasonably be expected to have affected the trial result. [22] Mr. Rouse submits the evidence is relevant because it could have impacted the complainant’s evidence as to why she was at the sandpit with Mr. Rouse in the summer of 2006, before her 14th birthday.

He maintains the witness could not have been correct aboutthat event having occurred in 2006 because the renovations took place in 2007. [23] The only evidence before the judge about the reason the complainant and Mr. Rouse were at the sandpit was found in thecomplainant’s direct evidence. She described: “We were working on something at his mother’s house. And I believe we needed sandfor something and that’s why we went there”. That evidence does not, on any reading of it, tie into the matter of home renovationsconducted in 2007. Mr.

Rouse argues the events at the sandpit could not have occurred in 2006, as the complainant testified, because hismother’s home renovations occurred in 2007. This conflates the complainant’s evidence. The complainant indicated the parties were“working on something”, not that Mr. Rouse was engaged in renovating a home. [24] The judge mirrored the complainant’s description in stating her findings. Nowhere does the record suggest the events in thesandpit coincided with or were tied to the timing of renovations to Mr. Rouse’s mother’s home. The evidence of Mr.

Rouse’s auntcannot exclude any number of possibilities associated with the purpose for being at the sandpit, including that it was not for any purposerelated to the home renovations to which she testified. While the proposed fresh evidence may be credible, the same cannot be said for

its relevance. [25] As to his argument of ineffective assistance of trial counsel, it must be recognized Mr. Rouse’s trial defence was a blanketdenial—that is, he testified the acts as alleged by the complainant had never occurred. In the face of those denials, it would have beenpointless for Mr. Rouse’s trial counsel to elicit evidence to contradict the complainant’s timeframes and her age at a particular time—going to the issue of consent—when Mr.

Rouse denied the events had ever occurred at all. [26] In applying the first criteria of the Palmer test—due diligence—in a criminal case, the Court must take a flexible approach toassessing diligence on a fresh evidence motion. R. v. Rajmoolie, 2020 ONCA 791 discussed the need for flexibility: [40] However, the due diligence requirement is no barrier to the admission of the fresh evidence in this case.

The Supreme Court hasrepeatedly stated that the due diligence requirement “is not an essential requirement of the fresh evidence test, particularly in criminalcases” and that this “criterion must yield where its rigid application might lead to a miscarriage of justice”: R. v. G.D.B., 2000 SCC 22,[2000] 1 S.C.R. 520, at para. 19, citing R. v. M.(P.S.) (1992), (ON CA), 77 C.C.C. (3d) 402, [1992] O.J. No. 2410(Ont. C.A.) per Doherty J.A. The failure to meet the due diligence criterion should not “override accomplishing a just result”: R. v.Warsing, (SCC), [1998] 3 S.C.R. 579, at para. 56, citing R. v.

C.(R.) (1989), 47 C.C.C. (3d) (Ont. C.A.), at p. 87, perCarthy J.A. The Supreme Court confirmed this flexible approach in R. v. Hay, 2013 SCC 61, [2013] 3 S.C.R. 694, at para. 64. [27] There is no satisfactory explanation before us as to why the availability of this evidence was not raised by Mr. Rouse beforeMarch 2020, the date his aunt testified she was first contacted about the matter of 2007 renovations. As asserted by the Crown, therewas ample opportunity for Mr.

Rouse to raise the matter of the timing of the home renovations in his own evidence before the judge; hedid not do so. [28] Even assuming for the moment the first three elements of the Palmer test could be said to be met in this case, I am notpersuaded on the fourth criterion—that the evidence could reasonably be expected to have impacted the judge’s decision. In my view, itis not evidence of a nature or significance directly tied to the question of whether Mr. Rouse sexually interfered with the complainant.

Atbest, the reason or excuse why the parties were at the sandpit is evidence peripheral to the events comprising the essential elements ofthe offence described by the complainant. [29] Mr. Rouse would have the Court accept the proposed fresh evidence extends a fatal blow to the complainant’s credibility. With respect, the significance of the evidence does not possess that degree of impact, particularly in light of the reasons the trial judgearticulated in reaching her credibility findings concerning both the complainant and Mr. Rouse.

I am not persuaded the proposed freshevidence could have influenced the trial result in the manner Mr. Rouse suggests. [30] In

summary, as argued by the Crown, the proposed fresh evidence cannot be seen to impact the trial outcome nor impugn theconduct of trial counsel, and I would not admit it. [31] I would dismiss both the appeal and the motion to adduce fresh evidence. Beaton J.A. Concurred in: Beveridge J.A. Hamilton J.A.