R. v. Smith, [2004] 3 S.C.R. 507, 2004 SCC 71
Stewart Roy Smith Appellant
v.
Her Majesty The Queen Respondent
Indexed as: R. v.
Smith
Neutral citation: 2004 SCC 71.
File No.: 30049.
2004: November 12.
Present: McLachlin C.J. and Major, LeBel, Deschamps, Fish,
Abella and Charron JJ.
on appeal from the court of appeal for alberta
Criminal law — Sexual assault — Evidence —
Misapprehension by trial judge of DNA evidence — Accused conviction vacated and
new trial ordered.
APPEAL from a judgment of the Alberta Court of Appeal
(2003), 339 A.R. 106, 312 W.A.C. 106, [2003] A.J.
No. 1320 (QL), 2003 ABCA 308, upholding the accused’s conviction
for sexual assault. Appeal allowed.
Brian E. Devlin, Q.C., for the appellant.
David C. Marriott, for the respondent.
The judgment of the Court was
delivered orally by
1
Fish J. — The trial judge
and, indeed, counsel for both sides, assumed that the complainant’s DNA on
cutting 6-1 was found on the inside of the appellant’s trousers. It now
appears that there is nothing in the record to support the trial judge’s
finding in this regard.
2
Moreover, it appears from the reasons of the trial judge that, but for
the presumed presence of complainant’s DNA on the inside of the appellant’s
trousers, he would have been left with a reasonable doubt as to the
appellant’s guilt.
3
Berger J.A., dissenting in the Court of Appeal, would have allowed
the appeal largely on account of the trial judge’s misapprehension of the DNA
evidence, and he would have ordered a new trial. We share that view of the
matter.
4
Accordingly, the appeal is allowed; the judgment of the Court of Appeal
is set aside; the appellant’s conviction is vacated; and a new trial is
ordered.
Appeal allowed.
Solicitors for the appellant: O’Brien Devlin Markey MacLeod,
Calgary.
Solicitor for the respondent: Alberta Justice, Edmonton.
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