R. v. P.E.C., 2005 SCC 19, [2005] 1 SCR 290

                                                 SUPREME COURT OF CANADA

Between:

P.E.C.

Appellant

v.

Her Majesty the Queen

Respondent

Coram: McLachlin C.J. and Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ.

______________________________

R. v. P.E.C., [2005] 1 S.C.R. 290, 2005 SCC 19

P.E.C.                                                                                                                Appellant

v.

Her Majesty The Queen                                                                               Respondent

Indexed as:  R. v. P.E.C.

Neutral citation:  2005 SCC 19. 

File No.:  30561.

2005:  April 19.

Present:  McLachlin C.J. and Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ.

on appeal from the court of appeal for british columbia

Criminal law — Evidence — Accused convicted at trial of six counts of sex‑related offences involving two young children — Trial judge considering  evidence relating to other counts against accused when assessing his credibility in respect of particular set of counts — Whether trial judge erred in failing to deal with evidence on each count separately.

APPEAL from a judgment of the British Columbia Court of Appeal (Esson, Southin and Oppal JJ.A.) (2004), 204 B.C.A.C. 122, 333 W.A.C. 122, 189 C.C.C. (3d) 178, [2004] B.C.J. No. 1878 (QL), 2004 BCCA 465, allowing in part the accused’s appeal from a judgment of Smith J., [2000] B.C.J. No. 2806 (QL), 2000 BCSC 1050, convicting him of six counts of sex‑related offences.  Appeal allowed and new trial ordered. 

D. Mitchell Foster, for the appellant. 

Ursula Botz, for the respondent.

The judgment of the Court was delivered orally by

1                                   Charron J. — This appeal comes to this Court as of right on the question of whether the trial judge erred by failing to deal with the evidence on each count separately when she considered the evidence relating to other counts in assessing the credibility of the appellant in respect of a particular set of counts.  In our view, the trial judge made no such error.  The verdict on each count of an indictment must, of course, be based on evidence admissible with respect to that count; in assessing the credibility of each witness, including the accused, the trial judge was entitled, however, to consider the totality of the evidence given by that witness.  In doing so, she did not engage in a prohibited line of reasoning contrary to the rule against similar fact evidence.

2                                   However, the findings of credibility in this case were so intertwined, as evidenced by the very impugned passage in the trial judge’s reasons, that it is difficult to identify the logic that led to the divided result reached by the Court of Appeal.  Because a new trial has been ordered on the counts involving the complainant S.P., an order that has not been appealed before this Court, we are of the view that there should also be a new trial on the counts involving J.C.  For these reasons, the appeal is allowed, the convictions are set aside and a new trial is ordered.

Judgment accordingly.

Solicitors for the appellant:  Johnson Doricic Foster, Vancouver.

Solicitor for the respondent:  Ministry of the Attorney General, Vancouver.