R. v. ELSON, 2024 NLCA 6, FEBRUARY 12, 2024.

FACTS:  The accused was convicted of the offence of sexual assault and sentenced to a period of five years of incarceration. The offence involved the accused, who was 31 years of age at the time, committing an act of non-consensual sexual intercourse with a 13-year-old child.  The accused appealed from conviction and sentence.

The Court of Appeal described the issues raised as being the following (at paragraphs 4, 5 and 7):

In respect of the conviction, Mr. Elson argues two errors. Firstly, he argues that the trial judge’s conduct during the trial rendered the trial unfair. Secondly, Mr. Elson argues that the trial judge’s reasons for conviction are insufficient and fail to explain how he resolved alleged inconsistencies in the complainant’s testimony.

In respect of the sentence, Mr. Elson argues that the trial judge erred in principle because he failed to consider the mitigating factor of Mr. Elson’s Indigenous circumstances. Mr. Elson argues this failure was an error in principle that resulted in an unfit sentence.

The issues can be framed as follows:

1. Did the conduct of the trial judge render the trial unfair?

2. Did the trial judge err by failing to provide sufficient reasons for conviction?

3. Did the trial judge err by failing to consider Mr. Elson’s circumstances as an Indigenous offender?

HELD: Both appeals were dismissed.  The Court of Appeal conclude that

Did the conduct of the trial judge render the trial unfair?

The accused argued that “the trial judge erred by interfering with [his] counsel’s cross-examination of the complainant” (see paragraph 8).

The Court of Appeal concluded that the “interventions by the trial judge were reasonable and within his proper sphere…the interventions by the trial judge of his own accord were justified because of his concern with the relevance and propriety of particular questions on what he viewed as collateral issues. Ensuring that the questions were relevant and not misleading was within his bailiwick” (at paragraphs 9 and 17).

Did the trial judge err by failing to provide sufficient reasons for conviction?

The Court of Appeal concluded that “the trial judge’s reasons for conviction were sufficient. While succinct, they are clear as to why the trial judge convicted and adequate to enable this Court to review his decision” (at paragraph 23).

Did the trial judge impose an unfit sentence by failing to consider Mr. Elson’s circumstances as an Indigenous offender?

The Court of Appeal indicated that “while the judge’s reasons show that he was alive to his obligation, it would have been helpful for the trial judge to explain how Mr. Elson’s circumstances as Indigenous impacted the determination of the fit sentence, to the extent it was reasonable and justifiable to so do…It is not enough to simply recite the relevant principles. A sentencing judge’s reasons should demonstrate how the principles were applied” (at paragraphs 45 and 46).  

The Court of Appeal noted that “given the details in the [Gladue] report, it is unlikely that Mr. Elson’s circumstances as Indigenous had any substantial mitigating impact on sentence. While the report described turmoil in Mr. Elson’s early life, including witnessing violence by his father upon his mother, and in the lives of his parents and grandparents owing to their Indigenous background, Mr. Elson’s upbringing was, on the whole, positive… While there is no need to establish a causal connection between an offender’s circumstances as Indigenous and the crime committed, there was little in the report, nor was any other evidence tendered that Mr. Elson’s circumstances as an Indigenous offender impacted the sentence for this offence” (at paragraphs 47 and 49).