R. v. O'Brien (M.D.), [2011] N.R. TBEd. JN.018

• Judge: McLachlin, C.J.C., Binnie, LeBel, Deschamps, Abella, Rothstein and Cromwell, JJ.
• Court: Supreme Court (Canada)
• Case Date: June 09, 2011
• Jurisdiction: Canada (Federal)
• Citations: [2011] N.R. TBEd. JN.018;2011 SCC 29;417 NR 52;[2011] 2 SCR 485;304 NSR (2d) 383;[2011] SCJ No 29 (QL);85 CR (6th) 216;JE 2011-1013;[2011] CarswellNS 350;335 DLR (4th) 94;[2011] EXP 1828;270 CCC (3d) 450;95 WCB (2d) 553;EYB 2011-191582

R. v. O'Brien (M.D.) (SCC) - Criminal law - Bad character evidence re accused

MLB being edited

Currently being edited for N.R. - judgment temporarily in rough form.

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

Temp. Cite: [2011] N.R. TBEd. JN.018

Her Majesty The Queen (appellant) v. Marty David O'Brien (respondent)

(33817; 2011 SCC 29; 2011 CSC 29)

Indexed As: R. v. O'Brien (M.D.)

Supreme Court of Canada

McLachlin, C.J.C., Binnie, LeBel, Deschamps, Abella, Rothstein and Cromwell, JJ.

June 9, 2011.

Summary:

In 2004, a store was robbed at knifepoint by a person wearing a mask. The mask was recovered and a DNA sample was obtained. Years later, the DNA profile matched that of the accused, an incarcerated prisoner. The accused was charged with robbery, being masked while committing an indictable offence, and possession of a weapon for the purpose of committing an offence. The accused was tried by judge alone and did not testify. At trial, the investigating police officer testified as to how the accused's DNA sample was obtained and his extensive criminal record and history of incarceration (i.e., highly prejudicial bad character evidence). The accused's lawyer did not object to admission of this evidence and the trial judge made no comment on it.

The Nova Scotia Supreme Court, in a judgment reported (2009), 279 N.S.R.(2d) 157; 887 A.P.R. 157, found the accused guilty on all counts. The accused was subsequently sentenced to a total of six years and six months' imprisonment (see 279 N.S.R.(2d) 162; 887 A.P.R. 162). The only real issue was whether the circumstantial evidence (mask and DNA) proved beyond a reasonable doubt that the accused was the person who committed the robbery. The court was satisfied that it did. The accused appealed against conviction and sentence, submitting that the verdict was unreasonable or unsupported by the evidence. The accused submitted that the evidence of his criminal record and reputation was highly prejudicial and inadmissible, the trial judge did not properly disabuse himself of this knowledge and the only appropriate remedy was a new trial.

The Nova Scotia Court of Appeal, Fichaud, J.A., dissenting, in a judgment reported (2010), 293 N.S.R.(2d) 78; 928 A.P.R. 78, allowed the conviction appeal and ordered a new trial. The bad character evidence was highly prejudicial and patently inadmissible. The evidence made the inference of guilt a foregone conclusion. Although the verdict was not unreasonable or unsupported by the evidence, it was not appropriate to apply s. 686(1)(b)(iii) of the Criminal Code to dismiss the appeal notwithstanding the error. The Crown did not argue that the result would have inevitably been the same but for the error. The trial judge did not expressly disabuse himself of the bad character evidence and did not state that it played no role in his judgment. Fichaud, J.A., dissenting, would have applied s. 686(1)(b)(iii) to dismiss the appeal notwithstanding the inadmissible evidence, as it was clear from the trial judge's reasons that the improper evidence could not have affected the result. Fichaud, J.A., having dismissed the conviction appeal, would have also dismissed the sentence appeal. The Crown appealed the court's failure to apply s. 686(1)(b)(iii) to dismiss the appeal notwithstanding the error in admitting the inadmissible bad character evidence.

The Supreme Court of Canada, Binnie and LeBel, JJ., dissenting, allowed the appeal and restored the convictions. The court agreed with Fichaud, J.A., that the admission of the improper character evidence was a harmless error of law which resulted in no miscarriage of justice. Since the verdict would necessarily have been the same but for the admission of the bad character evidence, it was appropriate to apply s. 686(1)(b)(iii) to dismiss the appeal notwithstanding the error.

Criminal Law - Topic 4953

Appeals - Indictable offences - New trials - Grounds - Admission of prejudicial evidence - [See Criminal Law - Topic 5037 ].

Criminal Law - Topic 5037

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - Evidentiary error - The accused was tried for robbery and other offences before a judge alone - The Crown's evidence was circumstantial, including DNA evidence from a mask used in the robbery - The accused did not testify - Inexplicably, the Crown elicited evidence from a police officer respecting the accused's history of incarceration, his extensive criminal record, and that he was known to be an "active criminal" in the community where the robbery was committed - The accused's counsel did not object to admission of the bad character evidence, the trial judge did not exclude it on his own motion, and there was no mention in the trial judge's reasons for convicting the accused that he relied on the evidence or disabused himself of it - At issue was whether, in a judge alone trial where the verdict was not unreasonable or unsupported by the evidence, the court should apply s. 686(1)(b)(iii) of the Criminal Code to dismiss the appeal notwithstanding the patent evidentiary error - The Nova Scotia Court of Appeal stated that "where the trial judge who has heard inadmissible prejudicial evidence, disabuses herself from the evidence, or the reviewing court is satisfied that the impugned evidence played no part in the reasons that led to conviction, and there was no impact on trial fairness, the proviso may be relied upon." - The court declined to apply s. 686(1)(b)(iii), stating that "if the trial judge had disabused himself of this evidence, either in his reasons, or arrived at his conclusion by expressly relying on evidence untainted by the impugned evidence, or otherwise made it plain that the impugned evidence could play no part in the process, I might be inclined to take a different view. But none of these factors are present." - The Crown failed to establish that the impugned evidence could not have consciously or unconsciously influenced the judge's decision - The Supreme Court of Canada allowed the Crown's appeal and restored the convictions - Section 686(1)(b)(iii) should have been applied to dismiss the appeal notwithstanding the error in admitting the bad character evidence, which played no part in the convictions - No substantial wrong or miscarriage of justice resulted from the harmless error, because the verdict would necessarily have been the same - See paragraphs 1 to 20.

Criminal Law - Topic 5045

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - What constitutes a substantial wrong or miscarriage of justice - [See Criminal Law - Topic 5037 ].

Criminal Law - Topic 5449

Evidence and witnesses - Evidence respecting the accused - Character of accused (incl. discreditable conduct) - General - [See Criminal Law - Topic 5037 ].

Cases Noticed:

R. v. Leaney and Rawlinson, [1989] 2 S.C.R. 393; 99 N.R. 345; 99 A.R. 291, refd to. [para. 15].

R. v. Khan (M.A.), [2001] 3 S.C.R. 823; 279 N.R. 79; 160 Man.R.(2d) 161; 262 W.A.C. 161; 2011 SCC 86, refd to. [para. 15].

R. v. Sheppard (C.), [2002] 1 S.C.R. 869; 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50; 2002 SCC 26, refd to. [para. 17].

R. v. Suzack (C.V.) et al. (2000), 128 O.A.C. 140; 141 C.C.C.(3d) 449 (C.A.), refd to. [para. 26].

R. v. Handy (J.), [2002] 2 S.C.R. 908; 290 N.R. 1; 160 O.A.C. 201; 2002 SCC 56, refd to. [para. 27].

Colpitts v. R., [1966] S.C.R. 739, refd to. [para. 33].

R. v. Jolivet (D.), [2000] 1 S.C.R. 751; 254 N.R. 1; 2000 SCC 29, refd to. [para. 33].

R. v. Van (D.), [2009] 1 S.C.R. 716; 388 N.R. 200; 251 O.A.C. 295; 2009 SCC 22, refd to. [para. 33].

R. v. Mars (M.) (2006), 206 O.A.C. 387; 205 C.C.C.(3d) 376 (C.A.), refd to. [para. 39].

R. v. D.D.T. (2009), 257 O.A.C. 258; 2009 ONCA 918, refd to. [para. 20].

R. v. Samuels (S.R.), [2009] O.A.C. Uned. 471; 2009 ONCA 719, refd to. [para. 39].

R. v. Rahm (T.E.) (2006), 384 A.R. 341; 367 W.A.C. 341; 2006 ABCA 111, refd to. [para. 43].

Counsel:

Kenneth W.F. Fiske, Q.C., and William D. Delaney, for the appellant;

Robert Gagnon and Pavel Boubnov, for the respondent.

Solicitors of Record:

Public Prosecution Service of Nova Scotia, Halifax, N.S., for the appellant;

Nova Scotia Legal Aid, Amherst, N.S., for the respondent.

This appeal was heard on February 23, 2011, before McLachlin, C.J.C., Binnie, LeBel, Deschamps, Abella, Rothstein and Cromwell, JJ., of the Supreme Court of Canada.

On June 9, 2011, the judgment of the Supreme Court of Canada was delivered in both official languages and the following opinions were filed:

Abella, J. (McLachlin, C.J.C., Deschamps, Rothstein and Cromwell, JJ., concurring) - see paragraphs 1 to 20;

Binnie, J. (LeBel, J., concurring), dissenting - see paragraphs 21 to 49.