Case information
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35373
Garry Howard James v. Her Majesty the Queen
(British Columbia) (Criminal) (As of Right)
Docket
Judgments on applications for leave to appeal are rendered by the Court, but are not necessarily unanimous.
| Date | Proceeding | Filed By (if applicable) |
|---|---|---|
| 2014-01-30 |
Transcript received, (24 pages) |
|
| 2014-01-27 | Appeal closed | |
| 2014-01-20 | Formal judgment sent to the registrar of the court of appeal and all parties | |
| 2014-01-20 | Judgment on appeal and notice of deposit of judgment sent to all parties | |
| 2014-01-17 |
Judgment on the appeal rendered, LeB Ro Mo Ka Wa, The appeal from the judgment of the Court of Appeal for British Columbia (Vancouver), Number CA039078, 2013 BCCA 159, dated April 9, 2013, was heard on January 17, 2014, and the Court on that day delivered the following judgment orally: MOLDAVER J. — We agree with the majority of the British Columbia Court of Appeal that there must be a new trial in this matter. In assessing the crucial issue of consent, the trial judge found that the complainant was suffering from some sort of memory loss at the time the appellant claims that “she gave him her consent for sexual relations” (2011 BCSC 612, 86 C.R. (6th) 107, at para. 45). With respect, the appellant gave no such evidence of consent. Only in his statement to the police did he claim that the complainant consented. But that statement was not admitted into evidence and formed no part of the record. At trial, the appellant maintained that he had virtually no recollection of the events on that evening due to alcohol and drug consumption. He did not testify that the complainant consented to sexual relations. In our view, the trial judge’s reliance on evidence that did not form part of the record may have coloured his thinking on the issue of consent, particularly in assessing whether the complainant may have consented to sexual relations but forgot that she had done so due to memory blackout, or, as she claimed, that she was unconscious at all material times and never consented to sexual relations. In addition to this error, in assessing the issue of consent, the trial judge failed to take into account the several occasions throughout the evening when the complainant made it known to the appellant that she was not interested in having sexual relations with him. Her evidence in this regard was confirmed in part by an independent witness found by the trial judge to be credible. Similarly, the trial judge failed to consider the complainant’s distraught condition a short time after the event when she reported the alleged sexual assault to the police. For these reasons, we agree with the majority of the Court of Appeal that a new trial must be ordered. Accordingly, we would dismiss the appeal. Dismissed |
|
| 2014-01-17 | General proceeding, Questionnaire following hearing concerning the publication ban | Her Majesty the Queen |
| 2014-01-17 | General proceeding, Questionnaire following hearing concerning the publication ban | Garry Howard James |
| 2014-01-17 | Respondent's condensed book, Submitted in Court (14 copies) | Her Majesty the Queen |
| 2014-01-17 |
Hearing of the appeal, 2014-01-17, LeB Ro Mo Ka Wa Judgment rendered |
|
| 2014-01-14 | Notice of appearance, Margaret Mereigh will be present at the hearing. | Her Majesty the Queen |
| 2013-11-27 | Notice of appearance, Christopher Darnay and Michelle Poulsen will be present at the hearing. | Garry Howard James |
| 2013-11-21 | Notice of hearing sent to parties | |
| 2013-11-19 |
Appeal hearing scheduled, 2014-01-17 Judgment rendered |
|
| 2013-09-26 | Appeal perfected for hearing | |
| 2013-09-25 | Respondent's book of authorities, Completed on: 2013-09-25 | Her Majesty the Queen |
| 2013-09-25 | Respondent's factum, Completed on: 2013-09-25 | Her Majesty the Queen |
| 2013-08-14 | Supplemental document, (record), Completed on: 2013-08-14 | Garry Howard James |
| 2013-07-31 | Appellant's book of authorities, Completed on: 2013-07-31 | Garry Howard James |
| 2013-07-31 | Appellant's record, Completed on: 2013-07-31 | Garry Howard James |
| 2013-07-31 | Appellant's factum, Completed on: 2013-07-31 | Garry Howard James |
| 2013-05-22 | Letter advising the parties of tentative hearing date and filing deadlines (Notice of appeal – As of right) | |
| 2013-05-08 | Notice of appeal, Completed on: 2013-05-08 | Garry Howard James |
Parties
Please note that in the case of closed files, the “Status” column reflects the status of the parties at the time of the proceedings. For more information about the proceedings and about the dates when the file was open, please consult the docket of the case in question.
Main parties
| Name | Role | Status |
|---|---|---|
| James, Garry Howard | Appellant | Active |
v.
| Name | Role | Status |
|---|---|---|
| Her Majesty the Queen | Respondent | Active |
Counsel
Party: James, Garry Howard
Counsel
Michelle Poulsen
Vancouver, British Columbia
V6C 1A1
Telephone: (778) 829-3814
FAX: (604) 682-0956
Email: darnayc@hotmail.com
Agent
2600 - 160 Elgin Street
P.O. Box 466, Stn. A
Ottawa, Ontario
K1P 1C3
Telephone: (613) 786-0211
FAX: (613) 788-3573
Email: matthew.estabrooks@gowlingwlg.com
Party: Her Majesty the Queen
Counsel
Criminal Appeals & Special Prosecutions
865 Hornby St., 6th floor
Vancouver, British Columbia
V6Z 2G3
Telephone: (604) 660-1126
FAX: (604) 660-1133
Email: margaret.mereigh@gov.bc.ca
Agent
441 MacLaren Street
Suite 200
Ottawa, Ontario
K2P 2H3
Telephone: (613) 236-9665
FAX: (613) 235-4430
Email: rhouston@burkerobertson.com
Summary
Keywords
None.
Summary
Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.
Criminal law - Sexual assault - Elements of the offence - Consent - Whether the trial judge erred in law in his assessment of the evidence based on a wrong legal principle - Whether the Crown proved beyond a reasonable doubt that the complainant did not consent to the sexual activity in question - Criminal Code, R.S.C. 1985, c. C-46, s. 271.
The appellant was acquitted of sexual assault. He and the complainant consumed a significant amount of alcohol and smoked crack cocaine on the day of the alleged assault. That day, the appellant also took a variety of prescribed medications for his various ailments. At trial, the complainant testified that while there were certain aspects of the day that she could not remember, she awoke in the appellant’s motel room to find herself half naked and the accused’s head between her thighs as he performed oral sex on her. She also testified that she pushed him off her and went to the bathroom, after which she went to the motel office, called the police and filed a complaint of sexual assault against the appellant. The investigating officer who attended at the motel described her as upset and crying and the doctor who subsequently examined her found multiple bruises on her thighs, legs and arms. The appellant testified that he had no memory of the statement he gave to the police according to which the complainant had consented to sex, and he stated that he was very intoxicated on the day of the alleged assault and had no memory of what had transpired, particularly with respect to whether or not he had touched the complainant in a sexual manner. The majority of the Court of Appeal allowed the Crown’s appeal and ordered a new trial. Ryan J.A., dissenting, would have dismissed the appeal.
Lower court rulings
Supreme Court of British Columbia
30606-2
See file
Court of Appeal for British Columbia (Vancouver)
CA039078, 2013 BCCA 159
Appeal allowed; new trial ordered
Memorandums of argument on application for leave to appeal
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Factums on appeal
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If you have questions about a factum or want permission to use a factum, please contact the author of the factum directly. Their contact information appears on the first page of each factum.
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