Court of Appeal

Kolausok v. H.M.T.Q., 2004 NWTCA 01
Date: 20040825
Docket: A-1-AP-2004000006

IN THE COURT OF APPEAL FOR THE NORTHWEST TERRITORIES

IN THE MATTER OF:


EDWIN DEAN KOLAUSOK

     APPELLANT


- vs. -


HER MAJESTY THE QUEEN


     RESPONDENT


Transcript of the Oral Reasons for Judgment by The Honourable Justice J.Z. Vertes, at Yellowknife, in the Northwest Territories, on July 29th, A.D. 2004.


APPEARANCES:

Mr. A. Pringle, Q.C.:  Counsel for the Appellant

Ms. S. Bond:   Counsel for the Respondent


Charge under s. 271 Criminal Code of Canada


Ban on Publication of Complainant/ Witness Pursuant to Section 486 of the Criminal Code.


THE COURT:   The appellant was convicted by a jury on a charge of sexual assault and sentenced to a term of imprisonment of three years. He has filed a Notice of Appeal of both the conviction and sentence and now applies for bail pending the hearing of his appeal.

Section 679(3) of the Criminal Code sets out the conditions under which a judge of the Court of Appeal may release an appellant from custody pending the determination of a conviction appeal. There are three criteria that the appellant must satisfy.

The first criterion is that the appeal is not frivolous. This is a low threshold. It is not necessary to show a likelihood of success. It is simply a requirement to show that there are grounds of appeal that are at least arguable. An appeal that is frivolous is one that has no hope of success. This is not synonymous, however, with a little likelihood of success. The threshold is met if there is at least some prospect of success.

In this case appellant's counsel outlined a number of issues, some of which would require a careful analysis of the trial evidence. For the purpose of this application I need to address only one issue.

During the course of the trial the complainant testified that she told several people, after the assault, what had happened to her. She did not

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apparently testify as to the specifics of what she told each person but only said that she told each what had happened. The trial judge referred to this in his charge during his review of the complainant's evidence: “. . . and she told us that in turn she told each of those persons what had happened the previous night.” Crown counsel advised me that this evidence was tendered as part of the narrative.

As a rule, a witness may not testify to or repeat in court a prior consistent statement which the witness made out of court prior to the trial. There are numerous reasons for this rule. There are also numerous exceptions to the rule. One of these exceptions involves the admissibility of such statements where they are a necessary part of the narrative, that is, to provide chronological cohension to the story. Such evidence may be supportive of the central allegation in the sense of creating a logical framework for its presentation, but it cannot be used as confirmation of the truthfulness of the sworn allegation in the complainant's trial testimony. It is simply enabling the jury to understand the sequence of events. But, a trial judge must tell the jury that the prior consistent statements are not admissible for the truth of their contents. That was not done here.

Now it may be that this will ultimately prove to be not a major problem. As Crown counsel said, there

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were no references to the specific contents of the prior statements. But it seems to me that the same concern could apply where a complainant simply says, “I told them what happened.” Implicitly the jury would think that the complainant repeated to those people the same things she said in court. A very similar issue can thus arise that the jury may use this evidence as proof that the crime was committed, and this becomes particularly problematic in a case that essentially turns on questions of credibility.

In my respectful opinion, the failure to give limiting instructions on the use of this evidence raises an issue that is at least arguable. I am therefore satisfied that the appeal is not frivolous.

The second criterion is that the appellant will surrender himself into custody in accordance with the terms of any order made by this court. The appellant is 41 years old, married, and a life-long resident of this jurisdiction. The Crown has conceded that he is not a flight risk.

The third criterion is that the appellant's detention pending appeal is not necessary in the public interest. Crown counsel has quite properly pointed out that the court, in considering the public interest, has to consider the competing dictates of the enforceability and reviewability of judgments. This includes a consideration of the merits of the appeal

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which, Crown counsel says, are weak. The appellant stands convicted and no longer enjoys the presumption of innocence. However, the Criminal Code provides for a right of appeal and for the availability of release pending appeal.

Bearing all the circumstances in mind, and the nature of the public interest, I am satisfied that the detention of the appellant is not necessary in the public interest. In that regard, I consider particularly the following factors: (1) the Crown alleges no prior criminal record as against the appellant; (2) he was released on bail prior to the trial and he apparently adhered to all the conditions thereof; and (3) the appellant has ties in the community and significant levels of support. Further, there is no specific public interest which the Crown has referred to which would seem to be at jeopardy should the appellant be released. In terms of hardship to the complainant, I believe this can be alleviated to a significant degree by the terms of the release order.

I therefore direct that the appellant be released from custody pending the determination of his appeal upon entering into a recognizance in the amount of $10,000 bail with cash deposit. In addition to the usual statutory conditions that the appellant keep the peace and be of good behaviour and attend at the time

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and place fixed by this court for the hearing of his appeal, I direct that the following additional conditions be included in his recognizance:

(a) he shall reside in the City of Yellowknife, in the Northwest Territories;

(b) he shall report in person to the Royal Canadian Mounted Police in Yellowknife every Friday between the hours of 9 a.m. and 4 p.m.;

(c) he shall have no contact, direct or indirect, with the complainant or any member of her family;

(d) he is not to approach within 50 metres of the complainant's residence or place of employment;

(e) he is not to consume or possess any alcoholic or intoxicating substances;

(f) he is required to submit such samples of his breath as suitable for analysis upon a police officer making a demand for the same if the said peace officer has reasonable and probable grounds to believe that he has been consuming alcoholic substances;

(g) he is not allowed to enter the premises of any bar, tavern, pub, lounge or liquor store licensed to sell alcohol under the Liquor Act.

(h) he is not allowed to supply or provide liquor to any person under the age of nineteen years.

(i) he shall surrender himself into custody at the RCMP detachment in Yellowknife no less than 48

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hours prior to the scheduled time for the hearing of his appeal, and he is to be held in custody until the appeal has been heard and the direction of the Court of Appeal received. If the appellant does not surrender himself into custody as required, a warrant for his arrest will issue forthwith.

Counsel, I will leave it to the two of you to prepare the necessary documentation in consultation with the Clerk of the Court. Once the cash bail is deposited and the recognizance is signed by the appellant, he can be released.

MR. PRINGLE:  Thank you.

THE COURT:   Anything else? Ms. Bond?

MS. BOND:   No, sir.

THE COURT:   Mr. Pringle?

MR. PRINGLE:  Thank you, sir.

THE COURT:   We will adjourn.


(AT WHICH TIME THE PROCEEDINGS CONCLUDED)

Certified to be a true and accurate transcript pursuant to Rules 723 and 724 of the Supreme Court Rules.

Jill MacDonald, CSR(A), RPR
Court Reporter

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