Case information

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Criminal law - Evidence - Admissibility - Confessions - Respondent convicted of sexually assaulting his adopted daughter - Respondent sending email apology to ex-wife after being charged with the offences - Respondent’s lawyer raising no objection to admission of email into evidence at trial - Whether the Saskatchewan Court of Appeal erred by holding that the trial judge’s failure to conduct a voir dire to determine the admissibility of the email was a reversible error of law.

The Respondent was charged with sexually assaulting his adopted daughter when she was between the ages of 11 and 14. The Respondent married the girl’s mother in 1997 when the girl was six and later that year, their son was born. The Respondent adopted the daughter shortly before the couple separated in 2000. Although the separation was an acrimonious one, the Respondent and his wife agreed to joint custody and that the Respondent would have the children two days a week plus alternate weekends. This custodial arrangement continued until the spring of 2003, when the girl told her mother that she was uncomfortable staying at the Respondent’s residence. After questioning by her mother, the girl revealed that the Respondent had touched her private parts on three occasions. Approximately a year later, she also told her guidance counsellor at school, who reported the matter to the police. During the ensuing interrogation by police officers, the Respondent was assured that his alleged offence was “not a big deal” and that if he just apologized the matter might not proceed. He expressed concern that he might lose his son and his job but was assured that this would not happen. He then wrote out his apology. Approximately four weeks later, he was charged with sexual assault. Five days after that, he sent an email to his ex-wife in which he expressed his concern about being able to travel with his son and about losing his job. He also made an apology for an unexplained reason in connection with the daughter. At trial, the judge concluded in a voir dire that the apology obtained by the police was inadmissible, finding that it had been induced or coerced by police. The Crown asked to enter the email into evidence and defence counsel indicated that he had no objection. Both the Respondent and his daughter testified. The Respondent denied that he touched the complainant inappropriately. The trial judge considered the email crucial in determining the Respondent’s lack of credibility and in corroborating the daughter’s story.