NOVA SCOTIA COURT OF APPEAL
Citation: R. v. G.C.C., 2004 NSCA 128
Date: 20041022
Docket: CAC 211018
Registry: Halifax
Between:
G.C.C.
Appellant
v.
Her Majesty the Queen
Respondent
Judges: Glube, C.J.N.S.; Chipman and Cromwell, JJ.A.
Appeal Heard: October 12, 2004, in Halifax, Nova Scotia
Held: Appeal dismissed per reasons for judgment of Cromwell, J.A.; Glube, C.J.N.S. and Chipman, J.A. concurring.
Counsel: Chandrashakhar Gosine, for the appellant
James Gumpert, Q.C., for the respondent
Reasons for judgment:
[1] G.C.C. appeals his conviction by a Youth Court Judge on one count of sexual assault arising out of a series of unwanted touchings of a fellow student. The appellant argues that the trial judge erred in law by allowing two 13 year old witnesses to give sworn testimony, by misapplying the standard of proof to the evidence and by convicting in the absence of evidence that the appellant assaulted the victim “with sexual intent”. It is also alleged that the verdict is unreasonable and the reasons for judgment are inadequate.
[2] In my view, the appeal must be dismissed. There was ample evidence, including evidence from the accused himself, reasonably supporting a finding of guilt. The answers given in response to the judge’s inquiry under s. 16 of the Canada Evidence Act, R.S. 1985, c. 19 (3rd Supp.), as amended, adequately addressed the elements of the witnesses’ understanding of the moral obligation to tell the truth as set out in R. v. Bannerman (1966), 48 C.R. 110 at 138, aff’d [1966] S.C.R. v, (1966), 50 C.R. 76 and R. v. Leonard (1990), 54 C.C.C. (3d) 225 at pp. 227 - 228. Accordingly I see no error in the judge’s decision that both 13 year old witnesses could give sworn testimony.
[3] The judge found, primarily on the basis of the accused’s own evidence at trial, that the touchings to which he admitted, which he himself characterized as having been sexual in nature and with respect to which he admitted no permission from the alleged victim had been sought or granted, were sufficient to sustain a finding of guilt. I see no error in this conclusion. The judge’s reasons for decision meet the functional test in R. v. Sheppard, [2002] 1 S.C.R. 869.
[4] The judge went on to consider the evidence in relation to other touchings and made certain findings in that regard relating to the credibility of the Crown witnesses and the accused respectively. On this branch of his reasons, the judge did not expressly instruct himself with respect to R. v. W.D., [1991] 1 S.C.R. 742 and remarked that he preferred the evidence of the two young Crown witnesses. Assuming without deciding that the judge did not properly apply W.D. on this branch of his decision, such error was irrelevant to the finding of guilt. As noted, the judge found that the accused’s own evidence in relation to certain of the touchings justified a conviction on the charge and I see no error in that conclusion.
[5] The appellant argues in his factum that the evidence did not show that he had acted with sexual intent. However, this submission is misconceived. The accused need not be proved to have acted with sexual intent: R. v. Chase, [1987] 2 S.C.R. 293, R. v. Litchfield, [1993] 4 S.C.R. 333 and R. v. Ewanchuk, [1999] 1 S.C.R. 330. Here, the appellant admitted touching the complainant in a sexual fashion.
[6] I would dismiss the appeal.
Cromwell, J.A.
Concurred in:
Glube, C.J.N.S.
Chipman, J.A.