Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Cory, Gonthier, McLachlin, Iacobucci and Major JJ.
on appeal from the court of appeal for british columbia
Criminal law ‑‑ Evidence ‑‑ Hearsay ‑‑ Co‑conspirator's exception to hearsay rule ‑‑ Trial judge erring in charge with respect to the co‑conspirator's exception to the hearsay rule ‑‑ Verdict would have been same even absent error ‑‑ No substantial wrong or miscarriage of justice.
Cases Cited
R. v. Carter, [1982] 1 S.C.R. 938.
APPEAL from a judgment of the British Columbia Court of Appeal (1993), 36 B.C.A.C. 223, 58 W.A.C. 223, dismissing an appeal from conviction by Fisher J. sitting with jury. Appeal dismissed.
Donald R. Martin, for the appellant.
William F. Ehrcke, for the respondent.
S. David Frankel, Q.C., and Valerie L. Hartney, for the intervener Attorney General of Canada.
Renee M. Pomerance, for the intervener the Attorney General for Ontario.
//Sopinka J.//
The judgment of the Court was delivered orally by
1 Sopinka J. ‑‑ We see no reason to depart from the jurisprudence of this Court that the co‑conspirator's exception to the hearsay rule applies to substantive offences in which evidence is introduced that acts were done or words spoken in furtherance of a common design to commit the offence.
2 The application of the exception is authoritatively described in R. v. Carter, [1982] 1 S.C.R. 938. With respect to its application here, we agree with Wood J.A., speaking for a unanimous Court of Appeal, that, although the trial judge erred in his instructions to the jury with respect to the co‑conspirator's exception to the hearsay rule, the error did not occasion a substantial wrong or miscarriage of justice. Evidence directly admissible against the appellant to which resort could be had in order to invoke the exception was dependent on the credibility of Amanda Cousins. We agree with Wood J.A. that the jury must have accepted the evidence of Cousins and, therefore, had the proper instruction been given, the verdict would necessarily have been the same.
3 We also agree with Wood J.A. and his reasons that, in the circumstances, there was no error with respect to the instructions to the jury on the doctrine of reasonable doubt.
4 The appeal is dismissed.
Judgment accordingly.
Solicitors for the appellant: Martin & MacLeod, Vancouver.
Solicitor for the respondent: The Attorney General of British Columbia, Vancouver.
Solicitor for the intervener the Attorney General of Canada: George Thomson, Ottawa.
Solicitor for the intervener the Attorney General for Ontario: The Attorney General for Ontario, Toronto.
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