Case information
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37021
Nihal Awer v. Her Majesty the Queen
(Alberta) (Criminal) (As of Right)
(Publication ban in case)
Docket
Judgments on applications for leave to appeal are rendered by the Court, but are not necessarily unanimous.
| Date | Proceeding | Filed By (if applicable) |
|---|---|---|
| 2017-01-30 | Appeal closed | |
| 2017-01-25 | Transcript received, 61 pages | |
| 2017-01-18 | Formal judgment sent to the registrar of the court of appeal and all parties | |
| 2017-01-18 | Judgment on appeal and notice of deposit of judgment sent to all parties | |
| 2017-01-17 |
Judgment on the appeal rendered, Mo Ka Wa Br Row, The appeal from the judgment of the Court of Appeal of Alberta (Edmonton), Number 1403-0321-A, 2016 ABCA 128, dated May 9, 2016, was heard on January 17, 2017, and the Court on that day delivered the following judgment orally: MOLDAVER J. — This appeal comes to us as of right from the Court of Appeal of Alberta. A majority of the court concluded that there was no basis for overturning the appellant’s conviction for sexual assault. Justice Berger, dissenting, would have set aside the appellant’s conviction and ordered a new trial. Because we have concluded that a new trial must be ordered, we need not finally decide whether the impugned evidence of the Crown’s DNA expert as to the source of the complainant’s DNA, found on the appellant’s penis, was or was not admissible. If an attempt is made to tender that evidence at the new trial, a voir dire may be required to determine whether it is sufficiently reliable to warrant its reception. It could conceivably amount to circumstantial evidence, derived from the expert’s experience, from which an inference as to the origin of the complainant’s DNA could reasonably be drawn. Alternatively, it might prove to be purely speculative, with little or no scientific foundation. Whatever the case, I note that it differs qualitatively from the impugned evidence in R. v. Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 272, where false logic, devoid of any probative force, was used to infer the state of mind of persons transporting large quantities of illicit drugs across the U.S.-Canada border. In the present case, assuming the impugned evidence of the Crown’s DNA expert was admissible, it was challenged by the defence DNA expert as being speculative, and without any scientific foundation. On its face, there was no way of telling whether it was speculative, scientific or somewhere in between — and defence counsel did not explore this in cross-examination. Unfortunately, even though neither Crown nor defence counsel referred to the impugned evidence in their closing addresses, the learned trial judge accepted it at face value, without subjecting it to any scrutiny, and used it as an important piece of evidence in finding the appellant guilty. At the same time, the trial judge subjected the testimony of the defence DNA expert, who testified that the impugned evidence was speculative and without scientific foundation, to intense scrutiny. In our respectful view, the materially different levels of scrutiny to which the evidence of the two experts was subjected — none for the Crown expert and intense for the defence expert — was unwarranted, and it tended to shift the burden of proof onto the appellant. In these circumstances, we feel obliged to quash the conviction and order a new trial. In so concluding, we note that the Crown did not request that we apply the curative proviso. In any event, given the importance that the trial judge placed on the impugned evidence in finding the appellant guilty, we cannot say that the verdict would necessarily have been the same had she not done so. In the result, we would allow the appeal, quash the conviction and order a new trial. Allowed |
|
| 2017-01-17 | General proceeding, Questionnaire following the hearing concerning the publication ban | Her Majesty the Queen |
| 2017-01-17 | General proceeding, Questionnaire following the hearing concerning the publication ban | Nihal Awer |
| 2017-01-17 | Appellant's condensed book, (Book Form), Submitted in Court (14 copies) | Nihal Awer |
| 2017-01-17 |
Hearing of the appeal, 2017-01-17, Mo Ka Wa Br Row Judgment rendered |
|
| 2017-01-13 | Notice of appearance, Nathan J. Whitling and Amy Lind will be present at the hearing. | Nihal Awer |
| 2017-01-03 | Notice of appearance, Troy Couillard will be present at the appeal and will present oral arguments. | Her Majesty the Queen |
| 2016-11-21 | Notice of hearing sent to parties | |
| 2016-11-16 |
Appeal hearing scheduled, 2017-01-17 Judgment rendered |
|
| 2016-10-05 | Appeal perfected for hearing | |
| 2016-10-03 | Certificate (on limitations to public access) | Her Majesty the Queen |
| 2016-10-03 | Respondent's book of authorities, Completed on: 2016-10-03 | Her Majesty the Queen |
| 2016-10-03 | Respondent's factum, Completed on: 2016-10-03 | Her Majesty the Queen |
| 2016-08-08 | Certificate of counsel (attesting to record), (Book Form), (Electronic version filed on 2016-08-08) | Nihal Awer |
| 2016-08-08 | Appellant's record, (Book Form), (2 volumes), Completed on: 2016-08-08, (Electronic version filed on 2016-08-08) | Nihal Awer |
| 2016-08-08 | Appellant's book of authorities, (Book Form), Completed on: 2016-08-08, (Electronic version filed on 2016-08-08) | Nihal Awer |
| 2016-08-08 | Appellant's factum, (Book Form), Completed on: 2016-08-08, (Electronic version filed on 2016-08-08) | Nihal Awer |
| 2016-05-30 | Letter advising the parties of tentative hearing date and filing deadlines (Notice of appeal – As of right) | |
| 2016-05-26 | Letter acknowledging receipt of a notice of appeal, (File open) | |
| 2016-05-16 | Certificate (on limitations to public access), (Letter Form), (Electronic version filed on 2016-05-16) | Nihal Awer |
| 2016-05-16 | Notice of appeal, (Letter Form), Completed on: 2016-05-26, (Electronic version filed on 2016-05-16) | Nihal Awer |
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 |
|---|---|---|
| Awer, Nihal | Appellant | Active |
v.
| Name | Role | Status |
|---|---|---|
| Her Majesty the Queen | Respondent | Active |
Counsel
Party: Awer, Nihal
Counsel
Amy Lind
300-10110 107 St. N.W.
Edmonton, Alberta
T5J 1J4
Telephone: (780) 421-4766
FAX: (780) 429-0346
Email: whitling@libertylaw.ca
Agent
100- 340 Gilmour Street
Ottawa, Ontario
K2P 0R3
Telephone: (613) 695-8855 Ext: 102
FAX: (613) 695-8580
Email: mfmajor@supremeadvocacy.ca
Party: Her Majesty the Queen
Counsel
3rd Floor, 9833-109 Street
Edmonton, Alberta
T5K 2E8
Telephone: (780) 422-5402
FAX: (780) 422-1106
Email: troy.couillard@gov.ab.ca
Agent
160 Elgin Street
Suite 2600
Ottawa, Ontario
K1P 1C3
Telephone: (613) 786-8695
FAX: (613) 788-3509
Email: lynne.watt@gowlingwlg.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 - Evidence - Expert evidence - Forensic DNA analysis - Whether the trial judge misapprehended the factual matrix presented by the evidence before her - Whether the trial judge mischaracterized the evidence of the defence’s expert witness - Whether the trial judge relied upon anecdotal and unscientific evidence from the Crown’s expert witness - Whether the trial judge relied upon trade journals which had not been admitted for the truth of their contents.
Mr. Awer was convicted of sexual assault by a judge sitting without a jury. The complainant was drugged and sexually assaulted during a party at which six men were present. She identified Mr. Awer as the assailant. He was taken to the police station and agreed to give a penile swab. The penile swab revealed the presence of the complainant’s DNA. The Crown and defence each called one expert witness to interpret the DNA data. Both experts gave opinion evidence regarding what reliable inferences could be drawn about how the complainant’s DNA was transferred to Mr. Awer’s penis. The trial judge preferred the evidence of the Crown’s expert and also found that Mr. Awer was not a credible witness. She concluded that the only reasonable inference to be drawn from the evidence as a whole was that Mr. Awer had non-consensual sexual contact with the complainant. The majority of the Court of Appeal dismissed Mr. Awer’s appeal. Berger J.A., dissenting, would have allowed the appeal and ordered a new trial. He was of the view that the outcome at trial, which was premised largely on the trial judge’s reliance on the expert DNA evidence proffered by the Crown, and the reasons supporting it were flawed.
Lower court rulings
Court of Queen’s Bench of Alberta
130891062Q1
Appellant convicted of sexual assault
Court of Appeal of Alberta (Edmonton)
1403-0321-A, 2016 ABCA 128
Appeal dismissed
Memorandums of argument on application for leave to appeal
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Factums on appeal
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