R. v. Burke (J.) (No. 3), (1996) 139 Nfld. & P.E.I.R. 147 (SCC)

• Judge: La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, Iacobucci and Major, JJ.
• Court: Supreme Court (Canada)
• Case Date: March 21, 1996
• Jurisdiction: Canada (Federal)
• Citations: (1996), 139 Nfld. & P.E.I.R. 147 (SCC);[1996] SCJ No 27 (QL);105 CCC (3d) 205;194 NR 247;[1996] ACS no 27;1996 CanLII 229 (SCC);[1996] CarswellNfld 85;433 APR 147;46 CR (4th) 195;139 Nfld & PEIR 147;[1996] 1 SCR 474

R. v. Burke (J.) (1996), 139 Nfld. & P.E.I.R. 147 (SCC);

    433 A.P.R. 147

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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Joseph Burke (appellant) v. Her Majesty The Queen (respondent)

(24071)

Indexed As: R. v. Burke (J.) (No. 3)

Supreme Court of Canada

La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, Iacobucci and Major, JJ.

March 21, 1996.

Summary:

The accused was charged with four counts of indecent assault, three counts of gross indecency and one count of assault causing bodily harm. The charges involved four young males and occurred some 11 to 15 years earlier while the accused had been employed at an orphanage.

The Newfoundland Supreme Court, Trial Division, in a decision reported 92 Nfld. & P.E.I.R. 289; 287 A.P.R. 289, convicted the accused on three counts of indecent assault and one count of assault causing bodily harm. The accused appealed.

The Newfoundland Court of Appeal, Gushue, J.A., dissenting in part, in a deci­sion reported 117 Nfld. & P.E.I.R. 191; 365 A.P.R. 191, dismissed the appeal. The ac­cused appealed.

The Supreme Court of Canada allowed the appeal in part, setting aside the convictions for indecent assault and affirming the con­viction for assault causing bodily harm.

Civil Rights - Topic 3125

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi- criminal proceedings - General - Abuse of process - An accused was charged with seven counts of indecent assault and gross indecency and one count of assault caus­ing bodily harm - The offences took place between 11 and 15 years earlier and in­volved young males who were residents of an orphanage - The Crown declined to prose­cute after the initial investigation 14 years earlier - The accused sought a stay of proceedings on the ground of abuse of process and a breach of s. 7 of the Charter - The accused submitted that the delay in laying the charges prevented him from presenting certain evidence because the witnesses were unable to testify because of either incapacity or death - The Supreme Court of Canada affirmed the trial judge's refusal to stay the proceedings - See paragraphs 2 and 54.

Civil Rights - Topic 3130

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi- criminal proceedings - Delay - [See Civil Rights - Topic 3125 ].

Criminal Law - Topic 255

General principles - Abuse of process - Power of court to prevent an abuse of process and to grant an accused a stay of proceedings - [See Civil Rights - Topic 3125 ].

Criminal Law - Topic 611

Sexual offences - Indecent assault - Gen­eral - An accused was charged with, inter alia, indecently assaulting S.E. and D.C. - The assaults allegedly occurred between 1974 and 1981 when the accused worked at an orphanage at which S.E. and D.C. were resident - The trial judge concluded that S.E. was not a credible witness and required corroboration - The trial judge concluded that D.C. was credible and relied on D.C.'s similar fact evidence to corroborate S.E.'s testimony - The trial judge convicted the accused on both charges - The Supreme Court of Canada set aside the convictions - The trial judge's failure to consider the possibility of collusion or collaboration between S.E. and D.C. (by contact through their com­mon lawyer) when assessed in light of the frailties of D.C.'s evidence, rendered the convictions unreasonable - See paragraphs 8 to 48.

Criminal Law - Topic 611

Sexual offences - Indecent assault - Gen­eral - An accused was charged with, inter alia, indecently assaulting K.L. - The assault allegedly occurred between 1974 and 1981 when the accused worked at an orphanage at which K.L. was resident - During the course of the trial, K.L. was given a photograph which he identified as the accused - The trial judge convicted the accused without making reference to K.L. not identifying the accused in court and the lack of explanation for not asking K.L. to do so - The Supreme Court of Canada concluded that photographic iden­tification was unsatisfactory, where the events in question were alleged to have occurred many years before trial - Given the unsatisfactory nature of K.L.'s evi­dence in general, the unorthodox identifi­cation evidence rendered the conviction unreasonable - See paragraphs 49 to 53.

Criminal Law - Topic 1417

Assaults - Assault causing bodily harm - The accused was convicted for assault causing bodily harm - The offence oc­curred some 14 years earlier - The ac­cused had occupied a position of au­thority at an orphanage - The victim was one of the boys responsible for the library - The accused strapped the victim when a library card was found to be missing - The vic­tim was struck at least six times on the bare buttocks with a strap - The skin was bruised - The accused pleaded lawful au­thority under s. 43 of the Criminal Code - The Supreme Court of Canada affirmed the conviction - See paragraphs 2 and 54.

Criminal Law - Topic 1421

Assaults - Defence - Child correction - [See Criminal Law - Topic 1417 ].

Criminal Law - Topic 4424.01

Procedure - Verdicts - General - Convic­tions - Setting aside - [See all Criminal Law - Topic 4976 ].

Criminal Law - Topic 4976

Appeals - Indictable offences - Powers of Court of Appeal - Appeal from a convic­tion - Section 686(1)(a)(i) of the Criminal Code permitted a court of appeal to allow an appeal against conviction where the court was of the view that the verdict reached was unreasonable in that it could not be supported on the evidence - The Supreme Court of Canada reviewed the standard of review under s. 686(1)(a)(i) - See paragraphs 3 to 7 - The court stated that it was only where a court has con­sidered all of the evidence before the trier of fact and determined that a conviction cannot be reasonably supported by that evidence that the court can invoke s. 686(1)(a)(i) - See paragraph 4.

Criminal Law - Topic 4976

Appeals - Indictable offences - Powers of Court of Appeal - Appeal from a convic­tion - Section 686(1)(a)(i) of the Criminal Code permitted a court of appeal to allow an appeal against conviction where the court was of the view that the verdict reached was unreasonable in that it could not be supported on the evidence - The Supreme Court of Canada stated that de­spite the trial court's "special position" in assessing credibility, a court of appeal retains the power under s. 686(1)(a)(i) to reverse the trial court's verdict where the assessment of credibility made at trial is unsupported by the evidence - Although the appellate court must be conscious of the advantages enjoyed by the trier of fact, reversal for unreasonableness remains available under s. 686(1)(a)(i) where the "unreasonableness" of the verdict rests on a question of credibility - See paragraph 5.

Criminal Law - Topic 4976

Appeals - Indictable offences - Powers of Court of Appeal - Appeal from a convic­tion - Section 686(1)(a)(i) of the Criminal Code permitted a court of appeal to allow an appeal against conviction where the court was of the view that the verdict reached was unreasonable in that it could not be supported on the evidence - The Supreme Court of Canada stated that "... this is a power which an appellate court will exercise sparingly. This is not to say that an appellate court should shrink from exercising the power when, after carrying out its statutory duty, it concludes that the conviction rests on shaky ground and that it would be unsafe to maintain it. In con­ferring this power on appellate courts to be applied only in appeals by the accused, it was intended as an additional and salu­tary safeguard against the conviction of the innocent." - See paragraph 6.

Criminal Law - Topic 5240

Evidence and witnesses - Identification - General - The Supreme Court of Canada stated that "[b]y reason of the many in­stances in which identification has proved erroneous, the trier of fact must be cog­nizant of 'the inherent frailties of iden­tifi­cation evidence arising from the psy­cho­logical fact of the unreliability of human observation and recollection'" - See para­graph 52.

Criminal Law - Topic 5241

Evidence and witnesses - Identification - Eye witness identification - [See second Criminal Law - Topic 611 ].

Criminal Law - Topic 5250

Evidence and witnesses - Identification - Procedure at trial - [See second Criminal Law - Topic 611 ].

Criminal Law - Topic 5250.1

Evidence and witnesses - Identification - Dock identification - [See second Crimi­nal Law - Topic 611 ].

Criminal Law - Topic 5252

Evidence and witnesses - Identification - From photographs - [See second Crimi­nal Law - Topic 611 ].

Criminal Law - Topic 5321

Evidence and witnesses - Corroboration - General - [See first Criminal Law - Topic 611 ].

Evidence - Topic 4025

Witnesses - General - Credibility - Col­lusion or complicity - [See first Criminal Law - Topic 611 ].

Evidence - Topic 4025

Witnesses - General - Credibility - Col­lusion or complicity - Without deciding the issue, the Supreme Court of Canada discussed whether, when the issue of col­lusion or collaboration is raised, evidence of similar acts should be excluded absent a finding by the trial judge that there is no real possibility of collusion or collabo­ration - See paragraphs 39 to 42.

Evidence - Topic 5206

Witnesses - Corroboration - Similar fact evidence as corroboration - [See first Criminal Law - Topic 611 and second Evidence - Topic 4025 ].

Cases Noticed:

R. v. Corbett, [1975] 2 S.C.R. 275; 1 N.R. 258; [1974] 2 W.W.R. 524; 14 C.C.C.(2d) 385; 42 D.L.R.(3d) 142; 25 C.R.N.S. 296, consd. [para. 3].

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351; [1987] 6 W.W.R. 97; 36 C.C.C.(3d) 417; 59 C.R.(3d) 108; 17 B.C.L.R.(2d) 1; 43 D.L.R.(4th) 424, consd. [para. 3].

R. v. P.L.S., [1991] 1 S.C.R. 909; 122 N.R. 321; 90 Nfld. & P.E.I.R. 234; 280 A.P.R. 234; 64 C.C.C.(3d) 193; 5 C.R. (4th) 351, consd. [para. 4].

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; 13 C.R.(4th) 257, consd. [para. 5].

Hoch v. R. (1988), 165 C.L.R. 292 (Aust. H.C.), refd to. [para. 39].

Director of Public Prosecutions v. Board­man, [1975] A.C. 421 (H.L.), consd. [para. 40].

Director of Public Prosecutions v. P., [1991] 2 A.C. 447 (H.L.), consd. [para. 41].

R. v. H., [1995] 2 A.C. 596 (H.L.), consd. [para. 41].

R. v. C.R.B., [1990] 1 S.C.R. 717; 107 N.R. 241; 109 A.R. 81; [1990] 3 W.W.R. 385; 55 C.C.C.(3d) 1; 76 C.R. (3d) 1; 73 Alta. L.R.(2d) 1, refd to. [para. 41].

R. v. Carter, [1982] 1 S.C.R. 938; 47 N.R. 288; 46 N.B.R.(2d) 142; 121 A.P.R. 142; 137 D.L.R.(3d) 387; 67 C.C.C.(2d) 568; 31 C.R.(3d) 97, refd to. [para. 44].

R. v. Evans (C.D.), [1993] 3 S.C.R. 653; 158 N.R. 278; 145 A.R. 81; 55 W.A.C. 81, refd to. [para. 44].

R. v. Sutton, [1970] 2 O.R. 358 (C.A.), consd. [para. 52].

R. v. Spatola, [1970] 3 O.R. 74 (C.A.), consd. [para. 52].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 686(1)(a)(i) [para. 3].

Authors and Works Noticed:

Cross on Evidence (7th Ed. 1990), pp. 364, 365 [para. 39].

Counsel:

Marvin R.V. Storrow, Q.C., Joanne R. Lysyk and Brian Casey, for the appel­lant;

Wayne Gorman, for the respondent.

Solicitors of Record:

Blake, Cassels & Graydon, Vancouver, British Columbia, for the appellant;

Department of Justice, St. John's, New­foundland, for the respondent.

This appeal was heard on May 26, 1995, before La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, Iacobucci and Major, JJ., of the Supreme Court of Canada.

On March 21, 1996, Sopinka, J., delivered the following judgment in both official lan­guages for the Supreme Court of Canada.