R. v. B.M., (1998) 115 O.A.C. 117 (CA)

• Judge: Morden, A.C.J.O., Weiler and Rosenberg, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: October 27, 1998
• Jurisdiction: Ontario
• Citations: (1998), 115 O.A.C. 117 (CA);1998 CanLII 13326 (ON CA);42 OR (3d) 1;130 CCC (3d) 353;21 CR (5th) 324;[1998] CarswellOnt 4243;[1998] OJ No 4359 (QL);115 OAC 117;40 WCB (2d) 116

R. v. B.M. (1998), 115 O.A.C. 117 (CA)

MLB headnote and full text

Temp. Cite: [1998] O.A.C. TBEd. NO.015

Her Majesty The Queen (respondent) v. B.M. (appellant)

(Docket: C26830)

Indexed As: R. v. B.M.

Ontario Court of Appeal

Morden, A.C.J.O., Weiler and Rosenberg, JJ.A.

October 27, 1998.

Summary:

The accused was charged in a 49 count indictment, which included allegations of indecent assault, gross indecency, buggery, incest, assault causing bodily harm, weapons offences and bestiality. The charges spanned a 39 year period from 1955 to 1994 and related to four daughters, one spouse, a stepson, a babysitter, a family friend, a cousin and two dogs. He was convicted of 33 counts. The accused appealed his convic­tions.

The Ontario Court of Appeal allowed the appeal and ordered a new trial on those counts for which the accused was convicted. The court held that the determinative issue on the appeal was the trial judge's failure to adequately instruct the jury on the use to be made of the evidence of the different counts and, in particular, the trial judge's failure to instruct the jury to deal with each count separately.

Criminal Law - Topic 4357

Procedure - Jury charge - Directions re­garding defence and theory of the defence - The accused was charged in a 49 count indictment, including allegations of in­decent assault, gross indecency, bug­gery, incest etc. - The charges related to four daughters among others - He was con­victed of 33 counts - The accused ap­pealed, arguing that the trial judge's in­structions to pay little attention to evi­dence respecting a civil law suit com­menced against the accused by his daugh­ters under­mined the defence theory that the daughters had conspired against him to obtain money in the civil suit - The Ontario Court of Appeal held that there was a misdirection respecting the civil suit but since the appeal was allowed for other reasons, the court did not decide whether the misdirection resulted in any substantial wrong - See paragraphs 46 to 54.

Criminal Law - Topic 4367

Procedure - Jury charge - Directions re­garding separation of evidence respecting several counts - The accused was charged in a 49 count indictment, including allega­tions of indecent assault, gross indecency, buggery, incest, assault causing bodily harm, weapons offences and two counts of bestiality - The charges spanned a 39 year period from 1955 to 1994 and related to four daughters, one spouse, a stepson, a babysitter, a family friend, a cousin and two dogs - He was convicted of 33 counts - The accused appealed - The Ontario Court of Appeal allowed the appeal where the trial judge failed to adequately instruct the jury as to the use to be made of the evidence of the different counts and, in particular, failed to instruct the jury to deal with each count separately - See para­graphs 31 to 43.

Criminal Law - Topic 4367

Procedure - Jury charge - Directions re­garding separation of evidence respecting several counts - [See Criminal Law - Topic 4737.1 ].

Criminal Law - Topic 4737.1

Procedure - Information or indictment - Charge or count - Indictable offences - Severing counts in an indictment - The accused was charged in a 49 count indict­ment, including allegations of indecent assault, gross indecency, buggery, incest, assault causing bodily harm, weapons offences and two counts of bestiality - He was convicted on 33 counts, including one bestiality count - He appealed, arguing that the trial judge erred in dismissing his application at the opening of the trial to sever the bestiality counts - The trial judge dismissed the application because of delay and because he did not believe the jury would be any more inflamed by the besti­ality allegations than by the allega­tions of abuse of the accused's children - The Ontario Court of Appeal held that the trial judge erred in refusing to sever the besti­ality count and in failing to give a limiting instruction on the use of this evidence - See paragraphs 22 to 30.

Criminal Law - Topic 5383

Evidence and witnesses - Documents and reports - Telephone records - The accused was charged with numerous counts, in­cluding allegations of indecent assault, gross indecency, buggery, incest etc. - The accused alleged that the complainants had deliberately conspired against him and sought production of their long distance telephone records - The trial judge refused the production order - The accused ap­pealed, arguing that the trial judge erred in following the procedure for production of records set out in R. v. O'Connor (S.C.C.) and in applying too strict a test for produc­tion of records - The Ontario Court of Appeal held that the trial judge was correct to apply the O'Connor pro­cedure but that the records met the O'Connor test for production of records - However, the trial judge's ruling oc­casioned no substantial wrong or miscar­riage of justice - See paragraphs 55 to 63.

Evidence - Topic 7053

Opinion evidence - Expert evidence - Psychiatric or psychological evidence - The accused was charged in a 49 count indictment, including allegations of inde­cent assault, gross indecency, buggery, incest etc. - The charges related to four daughters among others - He was con­v­icted of 33 counts - The accused appealed, arguing that the trial judge erred in refus­ing to permit a certain psychologist to give evidence for the defence about mem­ory - The Ontario Court of Appeal held that the trial judge erred in excluding all the psychologist's evidence - Although a new trial was ordered on other grounds, the court discussed the issue of the psy­chologist's evidence for the assistance of the judge at the new trial, including the issues of whether the evidence was a prop­er subject for an expert opinion and the reliability and necessity of the evidence - See paragraphs 64 to 103.

Evidence - Topic 7056

Opinion evidence - Expert evidence - Sexual abuse - Memory - [See Evidence - Topic 7053 ].

Cases Noticed:

R. v. Cuthbert (D.A.) (1996), 72 B.C.A.C. 227; 119 W.A.C. 227; 106 C.C.C.(3d) 28 (C.A.), affd. (1997), 208 N.R. 303; 86 B.C.A.C. 81; 142 W.A.C. 81; 112 C.C.C.(3d) 96 (S.C.C.), refd to. [para. 25].

R. v. Cross (R.) (1996), 112 C.C.C.(3d) 410 (Que. C.A.), leave to appeal refused (1997), 215 N.R. 160; 114 C.C.C.(3d) vi (S.C.C.), refd to. [para. 25].

R. v. R. (1994), 74 O.A.C. 363; 94 C.C.C.(3d) 168 (C.A.), refd to. [para. 26].

R. v. B.(F.F.) - see R. v. F.F.B.

R. v. F.F.B., [1993] 1 S.C.R. 697; 148 N.R. 161; 120 N.S.R.(2d) 1; 322 A.P.R. 1, refd to. [para. 28].

R. v. L.E.D., [1989] 2 S.C.R. 111; 97 N.R. 321; 50 C.C.C.(3d) 142; 71 C.R.(3d) 1, refd to. [para. 28].

R. v. Cuthbert (D.A.) (1997), 208 N.R. 303; 86 B.C.A.C. 81; 142 W.A.C. 81; 112 C.C.C.(3d) 96 (S.C.C.), refd to. [para. 29].

R. v. Rarru (H.S.)(No. 3), [1996] 2 S.C.R. 165; 197 N.R. 310; 77 B.C.A.C. 14; 126 W.A.C. 14; 107 C.C.C.(3d) 53, refd to. [para. 38].

R. v. R.W., [1992] 2 S.C.R. 122; 137 N.R. 214; 54 O.A.C. 164; 74 C.C.C.(3d) 134, refd to. [para. 45].

Demeter v. British Pacific Life Insurance Co. et al. (1983), 43 O.R.(2d) 33 (H.C.), affd. (1984), 7 O.A.C. 143; 48 O.R.(2d) 266 (C.A.), refd to. [para. 53].

R. v. Duong (T.D.) (1998), 108 O.A.C. 378; 124 C.C.C.(3d) 392 (C.A.), refd to. [para. 53].

R. v. O'Connor (H.P.) (1995), 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1; 103 C.C.C.(3d) 1 (S.C.C.), refd to. [para. 56].

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161; 68 C.C.C.(3d) 1, refd to. [para. 59].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241; 89 C.C.C.(3d) 402, refd to. [para. 66].

R. v. Russell (W.D.) (1994), 77 O.A.C. 59; 95 C.C.C.(3d) 190 (C.A.), refd to. [para. 71].

R. v. Marquard (D.), [1993] 4 S.C.R. 223; 159 N.R. 81; 66 O.A.C. 161; 85 C.C.C.(3d) 193, refd to. [para. 71].

R. v. McIntosh (O.) and McCarthy (P.) (1997), 102 O.A.C. 210; 117 C.C.C.(3d) 385 (C.A.), refd to. [para. 72].

R. v. Norman (D.L.) (1993), 68 O.A.C. 22; 87 C.C.C.(3d) 153 (C.A.), refd to. [para. 73].

R. v. D.R., H.R. and D.W. (1996), 197 N.R. 321; 144 Sask.R. 81; 124 W.A.C. 81; 107 C.C.C.(3d) 289 (S.C.C.), refd to. [para. 75].

R. v. Seaboyer and Gayme, [1991] 2 S.C.R. 577; 128 N.R. 81; 48 O.A.C. 81; 66 C.C.C.(3d) 321, refd to. [para. 79].

R. v. Bell (1997), 115 C.C.C.(3d) 107 (N.W.T.C.A.), refd to. [para. 89].

R. v. D.R., H.R. and D.W. (1995), 131 Sask.R. 81; 95 W.A.C. 81; 98 C.C.C.(3d) 353 (C.A.), revd. (1996), 197 N.R. 321; 144 Sask.R. 81; 124 W.A.C. 81; 107 C.C.C.(3d) 289 (S.C.C.), refd to. [para. 92].

R. v. Terceira (J.) (1998), 107 O.A.C. 15; 123 C.C.C.(3d) 1 (C.A.), refd to. [para. 93].

R. v. Corbett, [1988] 1 S.C.R. 670; 85 N.R. 81; 41 C.C.C.(3d) 385; 64 C.R.(3d) 1, refd to. [para. 93].

R. v. Lavallee, [1990] 1 S.C.R. 852; 108 N.R. 321; 67 Man.R.(2d) 1; 55 C.C.C.(3d) 97, refd to. [para. 97].

Authors and Works Noticed:

Paciocco, D.M., Judicial Notice in Criminal Cases: Potential and Pitfalls (1997), 40 Crim. L.Q. 35, generally [para. 105].

Sopinka, Lederman & Bryant, The Law of Evidence in Canada (1992), pp. 1042 to 1045 [para. 53].

Counsel:

Alan D. Gold, David W. Schermbrucker and James E. Weppler, for the appellant;

Gray T. Trotter, for the respondent.

This case was heard on June 3 and 4, 1998, before Morden, A.C.J.O., Weiler and Rosenberg, JJ.A., of the Ontario Court of Appeal. Rosenberg, J.A., delivered the following judgment for the Court of Appeal on October 27, 1998.