R. v. Briscoe (M.E.) et al., (2010) 477 A.R. 70 (SCC)

• Judge: McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ.
• Court: Supreme Court (Canada)
• Case Date: December 10, 2009
• Jurisdiction: Canada (Federal)
• Citations: (2010), 477 A.R. 70 (SCC);2010 SCC 12;477 AR 70;AZ-50624688;400 NR 200;[2010] 1 SCR 397;JE 2010-679;[2010] SCJ No 12 (QL);253 CCC (3d) 129;[2010] EXP 1248

R. v. Briscoe (M.E.) (2010), 477 A.R. 70 (SCC);

      483 W.A.C. 70

MLB headnote and full text

[French language version follows English language version]

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

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Temp. Cite: [2010] A.R. TBEd. AP.053

Her Majesty The Queen (appellant) v. Joseph Wesley Laboucan (respondent)

(33010; 2010 SCC 12; 2010 CSC 12)

Indexed As: R. v. Briscoe (M.E.) et al.

Supreme Court of Canada

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

April 8, 2010.

Summary:

A 13 year old girl was sexually assaulted and beaten to death. Laboucan and four other individuals were charged with kidnapping, aggravated sexual assault and first degree murder.

The Alberta Court of Queen's Bench, in a judgment reported at (2007), 413 A.R. 53, found Laboucan guilty of all of the charges. The trial judge disbelieved Laboucan's testimony, in part, on the basis that "he has a very great motive to be untruthful given the consequences of being convicted of the offences charged". Laboucan appealed, arguing that the trial judge erred in his assessment of credibility.

The Alberta Court of Appeal, Rowbotham, J.A., dissenting, in a decision reported at (2009), 446 A.R. 106; 442 W.A.C. 106, held that the trial judge's reference to Laboucan's motive to lie to secure his acquittal undermined the presumption of innocence and the error could not be saved by the curative provision in s. 686(1)(b)(iii) of the Criminal Code. The court allowed the appeal and ordered a new trial. The Crown appealed.

The Supreme Court of Canada allowed the appeal, set aside the order for a new trial and restored the convictions.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Civil Rights - Topic 4909

Presumption of innocence - General principles - Circumstances not infringing presumption - [See first Criminal Law - Topic 4300 ].

Civil Rights - Topic 4947

Presumption of innocence - Evidence and proof - Inferences - Criminal cases - [See first and second Criminal Law - Topic 4300 ].

Criminal Law - Topic 4300

Procedure - Trial judge - Duties and functions of - Respecting credibility of witnesses (incl. accused) - A 13 year old girl was sexually assaulted and beaten to death - Laboucan and four other individuals were charged with kidnapping, aggravated sexual assault and first degree murder - The trial judge found Laboucan guilty of the charges - The trial judge disbelieved Laboucan's testimony, in part, on the basis that "he has a very great motive to be untruthful given the consequences of being convicted of the offences charged" - The Alberta Court of Appeal allowed Laboucan's appeal and ordered a new trial - The court held that the trial judge's reference to Laboucan's motive to lie to secure his acquittal undermined the presumption of innocence - The Supreme Court of Canada set aside the order for a new trial and restored the convictions - The court held that "While the language used by the trial judge in referring to the accused's motive undoubtedly raises concern, it cannot be considered in isolation. When considered in context, I am satisfied that the reasons were responsive to the issues raised in this joint trial, where the testimony of every principal witness was challenged by Mr. Laboucan on the ground that he or she had a motive to fabricate the evidence against him. When the trial judge's reasons are read as a whole, I am satisfied that, on the crucial question of Mr. Laboucan's credibility, he did not proceed on the basis of the impermissible assumption that the accused, because of his status as an accused, would lie to secure an acquittal" - When the reasons were read in their entirety and in the light of the context of the trial as a whole, they revealed that the trial judge properly assessed and weighed the evidence of all the witnesses, including the accused, without undermining the presumption of innocence or the burden of proof.

Criminal Law - Topic 4300

Procedure - Trial judge - Duties and functions of - Respecting credibility of witnesses (incl. accused) - The Supreme Court of Canada stated that "The fact that a witness has an interest in the outcome of the proceedings is, as a matter of common sense, a relevant factor, among others, to take into account when assessing the credibility of the witness's testimony. A trier of fact, however, should not place undue weight on the status of a person in the proceedings as a factor going to credibility ... Regard should be given to all relevant factors in assessing credibility. The common sense proposition that a witness's interest in the proceedings may have an impact on credibility also applies to an accused person who testifies in his or her defence. The fact that the witness is the accused, however, raises a specific concern. The concern arises from the fact that both innocent and guilty accused have an interest in not being convicted. Indeed, the innocent accused has a greater interest in securing an acquittal. Therefore, any assumption that an accused will lie to secure his or her acquittal flies in the face of the presumption of innocence, as an innocent person, presumably, need only tell the truth to achieve this outcome" - See paragraphs 11 to 12.

Criminal Law - Topic 4300

Procedure - Trial judge - Duties and functions of - Respecting credibility of witnesses (incl. accused) - The Supreme Court of Canada declined to adopt an absolute rule against considering an accused's motive to lie in assessing his or her credibility as a witness - The court stated that "In most cases, I would agree with counsel that this factor is simply unhelpful and, as a general rule, triers of fact would be well advised to avoid that path altogether, lest they unwittingly err by making the impermissible assumption that the accused will lie to secure an acquittal. However, I would not adopt an absolute rule as proposed, for the following reasons. An absolute rule prohibiting the trier of fact from considering that an accused may have a motive to lie in order to secure an acquittal, regardless of the circumstances, would artificially immunize the accused in a manner inconsistent with other rules of evidence that provide special protection to the accused. Courts have consistently rejected prohibitive rules that would result in a trier of fact acting upon a misleading view of a case ... whether or not it is appropriate for the trier of fact to consider that the accused may have a motive to lie because of his or her interest in the trial will depend on the evidence and the issues raised at trial. An absolute rule as proposed would also be contrary to established principles of appellate review. It should now be regarded as trite law that a trial judge's reasons should be read as a whole, in the context of the evidence, the issues and the arguments at trial, together with 'an appreciation of the purposes or functions for which they are delivered' ... Consistent with this approach, courts have not held that the trial judge commits an error of law simply by making reference to or taking account of an accused's motive to lie. It all depends on the context" - See paragraphs 14 to 16.

Criminal Law - Topic 4351

Procedure - Charge or directions - Jury or judge alone - Direction regarding burden of proof and reasonable doubt - [See first Criminal Law - Topic 4300 ].

Criminal Law - Topic 4379

Procedure - Charge or directions - Jury or judge alone - Directions re evidence of character or credibility of accused - [See all Criminal Law - Topic 4300 ].

Criminal Law - Topic 5404

Evidence and witnesses - Witnesses - Credibility - [See all Criminal Law - Topic 4300 ].

Evidence - Topic 4732

Witnesses - Examination - Impeaching credibility - Motive for untruthfulness - [See all Criminal Law - Topic 4300 ].

Cases Noticed:

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 7].

R. v. L.B. (1993), 64 O.A.C. 15; 13 O.R.(3d) 796; 82 C.C.C.(3d) 189 (C.A.), refd to. [para. 12].

R. v. McMillan, [1977] 2 S.C.R. 824; 15 N.R. 20, refd to. [para. 15].

R. v. Corbett, [1988] 1 S.C.R. 670; 85 N.R. 81, refd to. [para. 15].

R. v. R.E.M., [2008] 3 S.C.R. 3; 380 N.R. 47; 260 B.C.A.C. 40; 439 W.A.C. 40; 2008 SCC 51, refd to. [para. 16].

R. v. Murray (W.) (1997), 99 O.A.C. 103; 115 C.C.C.(3d) 225 (C.A.), refd to. [para. 16].

R. v. Poitras (J.P.) (2002), 154 O.A.C. 25; 57 O.R.(3d) 538 (C.A.), refd to. [para. 16].

R. v. S.D. (2007), 222 O.A.C. 218; 218 C.C.C.(3d) 323; 2007 ONCA 243, refd to. [para. 16].

R. v. Parnell (G.) (1995), 59 B.C.A.C. 291; 98 W.A.C. 291 (C.A.), refd to. [para. 16].

R. v. Silverquill (D.B.) (1999), 121 B.C.A.C. 126; 198 W.A.C. 126; 1999 BCCA 128, refd to. [para. 16].

R. v. Khuc (T.A.) et al. (2000), 132 B.C.A.C. 139; 215 W.A.C. 139; 142 C.C.C.(3d) 276; 2000 BCCA 20, refd to. [para. 16].

R. v. Green (J.L.D.), [2002] B.C.A.C. Uned. 73; 2002 BCCA 269, refd to. [para. 16].

R. v. Morrissey (R.J.) (1995), 80 O.A.C. 161; 97 C.C.C.(3d) 193 (C.A.), refd to. [para. 17].

R. v. C.L.Y., [2008] 1 S.C.R. 5; 370 N.R. 284; 225 Man.R.(2d) 146; 419 W.A.C. 146; 2008 SCC 2, refd to. [para. 17].

Counsel:

James C. Robb, Q.C., and Tamara Friesen, for the appellant;

Laura K. Stevens, Q.C., for the respondent.

Solicitors of Record:

Attorney General of Alberta, Edmonton, Alberta, for the appellant;

Dawson Stevens & Shaigec, Edmonton, Alberta, for the respondent.

This appeal was heard on December 10, 2009, before McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ., of the Supreme Court of Canada. The following judgment of the Supreme Court was delivered in both official languages by Charron, J., on April 8, 2010.