Present: La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin and Iacobucci JJ.
on appeal from the court of appeal for ontario
Criminal law ‑‑ Appeals ‑‑ Powers of Court of Appeal ‑‑ Accused convicted of sexual offences -- Similar fact evidence admitted at trial -- Convictions upheld on appeal -- No substantial wrong or miscarriage of justice resulting from admission of similar fact evidence -- Trial judge convinced that each count proved beyond reasonable doubt before proceeding to analyze similar fact evidence -- Properly instructed jury could not reasonably have come to different conclusion if similar fact evidence had not been admitted -- Criminal Code, R.S.C., 1985, c. C‑46, s. 686(1) (b)(iii).
Held: The appeal should be dismissed.
Cases Cited
By Sopinka J.
Followed: R. v. Haughton, [1994] 3 S.C.R. 516.
Statutes and Regulations Cited
Criminal Code , R.S.C., 1985, c. C‑46 , s. 686(1) (b)(iii) [am. 1991, c. 43, s. 9 (sch., item 8(1)].
APPEAL from a judgment of the Ontario Court of Appeal (1993), 16 O.R. (3d) 214, 66 O.A.C. 155, dismissing the accused's appeal from his conviction on charges of indecent assault and buggery. Appeal dismissed.
Gabriel Lapointe and Josée D'Aoust, for the appellant.
James K. Stewart, for the respondent.
English version of the judgment of La Forest, Sopinka, Cory, McLachlin and Iacobucci JJ. delivered by
Sopinka J. ‑‑ This appeal as of right is based on the dissent of Lacourcière J.A. of the Ontario Court of Appeal: (1993), 16 O.R. (3d) 214, 66 O.A.C. 155. His dissent was limited to the application of s. 686(1)(b)(iii) of the Criminal Code , R.S.C., 1985, c. C‑46 . In the recent case R. v. Haughton, [1994] 3 S.C.R. 516, at p. 516-17, this Court stated as follows:
The application of s. 686(1)(b)(iii) of the Criminal Code , R.S.C., 1985, c. C‑46 , requires the Court to consider whether a jury properly instructed could, acting reasonably, have come to a different conclusion absent the error. In applying this test the findings of the jury in the case under appeal may be a factor in determining what the hypothetical reasonable jury would have done, provided those findings are not tainted by the error.
In the case at bar we agree with Arbour J.A. that the trial judge found that each count had been proved beyond a reasonable doubt, before proceeding to analyze the similar fact evidence. Charron J. said the following:
[translation] The testimony of the two complainants convinces me with respect to the alleged offences and the testimony of the accused does not raise a reasonable doubt in my mind.
([1992] O.J. No. 1380 (QL), at para. 58.)
We are of the view that this conclusion was not vitiated by any error. Given the importance of this factor in the context of the evidence in this case, we conclude that a properly instructed jury could not, acting reasonably, have come to a different conclusion if the similar fact evidence had not been admitted.
In view of this conclusion it is not necessary to consider the alternative question of the admissibility of similar facts. At the conclusion of the hearing the Court rendered judgment from the bench dismissing the appeal.
English version of the reasons of L'Heureux-Dubé and Gonthier JJ. delivered by
Gonthier J. ‑‑ While I agree that this appeal should be dismissed for the reasons given by Justice Sopinka, I am also of the view that the trial judgment contains no clear and manifest error of law or error of fact, whether in the treatment of the evidence as a whole or in the assessment of similar facts, and that accordingly there is no basis for reviewing that judgment on appeal. I would also dismiss the appeal on this ground.
Appeal dismissed.
Solicitors for the appellant: Lapointe, Schachter, Champagne & Talbot, Montreal.
Solicitor for the respondent: The Attorney General for Ontario, Toronto.
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