R. v. D.R., H.R. and D.W., (1996) 144 Sask.R. 81 (SCC)

• Judge: Lamer, C.J.C., L'Heureux-Dubé, Sopinka, Cory, McLachlin, Iacobucci and Major, JJ.
• Court: Supreme Court (Canada)
• Case Date: January 30, 1996
• Jurisdiction: Canada (Federal)
• Citations: (1996), 144 Sask.R. 81 (SCC)

R. v. D.R. (1996), 144 Sask.R. 81 (SCC);

    124 W.A.C. 81

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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D.R., H.R. and D.W. (appellants) v. Her Majesty The Queen (respondent)

(24766)

Indexed As: R. v. D.R., H.R. and D.W.

Supreme Court of Canada

Lamer, C.J.C., L'Heureux-Dubé, Sopinka, Cory, McLachlin, Iacobucci and Major, JJ.

January 30, 1996.

Summary:

The accused were tried together on an indictment containing numerous counts alleging that between January 1, 1983, and December 31, 1989, they committed a num­ber of offences involving the sexual and physical abuse of the three children of the accused D.R. and H.R. D.R. was convicted of three counts of sexual assault and two counts of assault causing bodily harm. He was acquitted of two counts of incest, three counts of gross indecency and two counts of assault. H.R. was convicted of three counts of sexual assault and two counts of assault causing bodily harm. She was acquitted of one count of incest, three counts of gross indecency and four counts of assault. D.W. was convicted of three counts of sexual assault and acquitted of two counts of gross indecency and one count of assault. D.R. and H.R. were each sentenced to six years' im­prison­ment. D.W. was sentenced to three years' imprisonment. The three accused appealed against their convictions and sen­tences.

The Saskatchewan Court of Appeal, Van­cise, J.A., dissenting, in a decision reported at 131 Sask.R. 81; 95 W.A.C. 81, dismissed the appeals. The accused appealed.

The Supreme Court of Canada, L'Heur­eux-Dubé, J., dissenting, and Cory and Iacobucci, JJ., dissenting in part, allowed the appeal. The court entered an acquittal with respect to D.W. and ordered a new trial for D.R. and H.R.

Courts - Topic 583

Judges - Duties - Re reasons for decisions - The Supreme Court of Canada stated that "[d]epending on the circumstances of a particular case, it may be desirable that trial judges explain their conclusions. Where the reasons demonstrate that the trial judge has considered the important issues in a case, or where the record clear­ly reveals the trial judge's reasons, or where the evidence is such that no reasons are necessary, appellate courts will not interfere. Equally, in cases such as this, where there is confused and contradictory evidence, the trial judge should give rea­sons for his or her conclusions" - See paragraph 55.

Criminal Law - Topic 675

Sexual offences, public morals and dis­orderly conduct - Sexual offences - Rape or sexual assault - Evidence and proof - [See Criminal Law - Topic 4438 ].

Criminal Law - Topic 4438

Procedure - Verdicts, discharges and dismissals - Inconsistent verdicts - The accused were charged with sexual offences against three children - The trial judge accepted the children's testimony regarding the sexual acts performed on them by the accused, but had a reasonable doubt about whether the children were forced to per­form sexual acts on the accused - She convicted the accused of sexual assault, but acquitted them of gross indecency - The Supreme Court of Canada directed a new trial on the sexual assault charges - Major, J. (Lamer, C.J.C., and Sopinka, J., concurring), held that the inconsistent findings resulted when the trial judge erred in law by failing to apply her findings of credibility in a uniform manner - See paragraphs 48 to 50 - McLachlin, J., held that the trial judge erred in law in finding that the medical and psychological evi­dence was capable of supporting the infer­ence that the accused were the perpetrators of the sexual assaults - See paragraphs 115 to 121.

Criminal Law - Topic 4684

Procedure - Judgments and reasons for judgment - Reasons for judgment - Suf­ficiency of - The accused were convicted of charges of, inter alia, assault causing bodily harm - The victims were the ac­cused's three children - The Supreme Court of Canada held that the trial judge committed an error of law necessitating a new trial where she failed to address the confusing and contradictory evidence and failed to identify the evi­dence on which she based the convictions - See paragraphs 51 to 55.

Criminal Law - Topic 4861

Appeals - Indictable offences - Grounds of appeal - Sufficiency of evidence - Three accused (D.R., H.R. and D.W.) were convicted of sexually assaulting the three children of D.R. and H.R. - The evidence at trial established that the children had been sexually abused - The children's testimony about the abuse they suffered by the different accused was often identical - The Supreme Court of Canada stated that "[w]hile identical evidence is not necessar­ily unreliable, similarity of evidence is a factor to be considered when assessing its weight. This is particularly true in the circumstances of this case, where questions had arisen regarding the possible verbal repetition on the memories of the children. The other evidence supporting the convic­tion of D.W. for sexual assault was similar to that described above and, on the facts of this case, was incapable of sustaining a conviction" - See paragraph 47.

Criminal Law - Topic 4944

Appeals - Indictable offences - New trials - When available - General - [See Crim­inal Law - Topic 4438 and Criminal Law - Topic 4684 ].

Criminal Law - Topic 5253

Evidence and witnesses - Identification - Proof of - [See Criminal Law - Topic 4438 ].

Criminal Law - Topic 5420

Evidence and witnesses - Witnesses - Out of court statements - D.R. was convicted of offences involving physical and sexual abuse of his children - A foster mother had noticed that following a visit with D.R., one of the children's underpants had blood on them - When asked what hap­pened, the child replied "daddy touched me" - The next day the child told a doctor that "my deaf daddy spanked my bum and then he put his fingers in my bum, it hurt" - The child was unable to remember the incident at trial - The Supreme Court of Canada held that the trial judge erred in admitting the out of court statements where the statements were not sufficiently reliable - There was evidence suggesting that the child's brother may have assaulted her and the child's statements were as consistent with the hypothesis that she was protecting her brother as they were with her having been sexually assaulted by D.R. - See paragraphs 32 to 35.

Evidence - Topic 1527

Hearsay rule - Hearsay rule exceptions and exclusions - Where admission of hearsay necessary and evidence reliable - [See Criminal Law - Topic 5420 ].

Evidence - Topic 3092

Documentary evidence - Secondary evi­dence - General - Transcripts - The accused were charged with offences in­volving the physical and sexual abuse of three children - A therapist had been present during videotaped interviews of the children by police - The accused sought to cross-examine the therapist on the inter­view techniques employed using unproved copies of the transcripts of those inter­views to refresh her memory - They were seeking to discredit the child witnesses or prove that they had been coached or ma­nipulated - The trial judge ruled that the transcripts could not be used in the cross-examination - She was concerned that if the evidence was to be used to show that there had been coaching or manipulation, it was collateral - The Supreme Court of Canada held that the accused should have been allowed to cross-examine the thera­pist using the transcripts - The children's credibility was a central issue and the trial judge erred in restricting the cross-exam­ination - See paragraphs 41 to 45.

Evidence - Topic 7052

Opinion evidence - Expert evidence - Particular matters - Child abuse - [See Evidence - Topic 7056 ].

Evidence - Topic 7056

Opinion evidence - Expert evidence - Particular matters - Sexual abuse - Three accused were charged with offences in­volving physical and sexual abuse of three children - The defence called an expert in the area of child development and the characteristics of child abuse who testified that children have two types of memory, visual memory and verbal memory - The trial judge prevented the expert from tes­tifying about his conclusions on the relia­bility of the children's memories of speci­fic events, finding that to do so would usurp the court's function in making find­ings of credibility - The Supreme Court of Canada held that the children's credibility was central to the disposition of the case and that the expert's testimony should have been admitted as an evidentiary basis upon which the children's credibility could have been judged - See para­graphs 36 to 40.

Evidence - Topic 7157

Opinion evidence - Prohibited opinions - Re credibility of witnesses - [See Evi­dence - Topic 7056 ].

Cases Noticed:

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181, refd to. [para. 25].

R. v. Khan (A.), [1990] 2 S.C.R. 531; 113 N.R. 53; 41 O.A.C. 353; 59 C.C.C.(3d) 92; 79 C.R.(3d) 1, refd to. [para. 33].

R. v. Smith (A.L.), [1992] 2 S.C.R. 915; 139 N.R. 323; 55 O.A.C. 321, refd to. [para. 34].

R. v. Marquard (D.), [1993] 4 S.C.R. 223; 159 N.R. 81; 66 O.A.C. 161, refd to. [para. 38].

R. v. Burns (R.H.), [1994] 1 S.C.R. 656; 165 N.R. 374; 42 B.C.A.C. 161; 67 W.A.C. 161, refd to. [para. 39].

Attorney General v. Hitchcock (1847), 1 Exch. 91; 154 E.R. 38, refd to. [para. 42].

R. v. Osolin, [1993] 4 S.C.R. 595; 162 N.R. 1; 38 B.C.A.C. 81; 62 W.A.C. 81, refd to. [para. 44].

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. 44].

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351; 36 C.C.C.(3d) 417; 59 C.R.(3d) 108; 17 B.C.L.R.(2d) 1; [1987] 6 W.W.R. 97; 43 D.L.R.(4th) 424, refd to. [para. 50].

R. v. K.G.B., [1993] 1 S.C.R. 740; 148 N.R. 241; 61 O.A.C. 1, refd to. [para. 68].

Kelliher (Village) v. Smith, [1931] S.C.R. 672, refd to. [para. 75].

R. v. Abbey, [1982] 2 S.C.R. 24; 43 N.R. 30; [1983] 1 W.W.R. 251; 39 B.C.L.R. 201; 138 D.L.R.(3d) 202; 68 C.C.C.(2d) 394; 29 C.R.(3d) 193, refd to. [para. 75].

R. v. Lavallee, [1990] 1 S.C.R. 852; 108 N.R. 321; 67 Man.R.(2d) 1; 55 C.C.C.(3d) 97; 76 C.R.(3d) 329; [1990] 4 W.W.R. 1, refd to. [para. 75].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241, refd to. [para. 75].

R. v. G.B. (1988), 65 Sask.R. 134 (C.A.), affd. [1990] 2 S.C.R. 30; 111 N.R. 31; 86 Sask.R. 111; 56 C.C.C.(3d) 200; 77 C.R.(3d) 347, refd to. [para. 75].

R. v. Cargill, [1913] 2 K.B. 271 (C.C.A.), refd to. [para. 79].

R. v. Hrechuk (1950), 10 C.R. 132 (Man. C.A.), refd to. [para. 79].

R. v. Rafael (1972), 7 C.C.C.(2d) 325 (Ont. C.A.), refd to. [para. 79].

R. v. Latour, [1978] 1 S.C.R. 361; 14 N.R. 216, refd to. [para. 79].

R. v. Cassibo (1982), 70 C.C.C.(2d) 498 (Ont. C.A.), refd to. [para. 79].

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, refd to. [para. 84].

R. v. Morin (K.M.), [1992] 3 S.C.R. 286; 142 N.R. 141; 131 A.R. 81; 25 W.A.C. 81; 76 C.C.C.(3d) 193, refd to. [para. 93].

R. v. Mulvaney (1988), 27 O.A.C. 318 (C.A.), refd to. [para. 93].

R. v. Thomas (M.E.) (1993), 32 B.C.A.C. 209; 53 W.A.C. 209; 24 C.R.(4th) 249 (C.A.), refd to. [para. 93].

R. v. Peterson, [1996] O.J. No. 714 (C.A.), refd to. [para. 93].

Koury v. R., [1964] S.C.R. 212, refd to. [para. 94].

R. v. McLaughlin (1974), 2 O.R.(2d) 514 (C.A.), refd to. [para. 94].

R. v. McShannock (1980), 55 C.C.C.(2d) 53 (Ont. C.A.), refd to. [para. 94].

R. v. McIntrye (R.L.) (1992), 81 Man.R.(2d) 131; 30 W.A.C. 131; 40 M.V.R.(2d) 178 (C.A.), refd to. [para. 94].

R. v. Giovannetti, [1991] O.J. No. 47 (C.A.), refd to. [para. 94].

R. v. Hynes (T.L.P.) (1994), 134 N.S.R.(2d) 134; 383 A.P.R. 134 (C.A.), refd to. [para. 94].

R. v. Yuen (C.T.) (1996), 70 B.C.A.C. 122; 115 W.A.C. 122 (C.A.), refd to. [para. 94].

R. v. Smith (D.A.), [1990] 1 S.C.R. 991; 111 N.R. 144; 109 A.R. 160, affing. (1989), 95 A.R. 304 (C.A.), refd to. [para. 100].

R. v. Barrett (D.), [1995] 1 S.C.R. 752; 179 N.R. 68; 80 O.A.C. 1, refd to. [para. 100].

R. v. Shropshire (M.T.), [1995] 4 S.C.R. 227; 188 N.R. 284; 65 B.C.A.C. 37; 106 W.A.C. 37, refd to. [para. 100].

R. v. McMaster (R.A.) et al., [1996] 1 S.C.R. 740; 194 N.R. 278; 181 A.R. 199; 116 W.A.C. 199, refd to. [para. 100].

R. v. MacDonald, [1977] 2 S.C.R. 665; 9 N.R. 271, refd to. [para. 100].

R. v. R.C., [1993] 2 S.C.R. 226; 153 N.R. 241; 55 Q.A.C. 63, refd to. [para. 100].

R. v. Tortone, [1993] 2 S.C.R. 973; 156 N.R. 241; 65 O.A.C. 81, refd to. [para. 100].

R. v. Harper, [1982] 1 S.C.R. 2; 40 N.R. 255, refd to. [para. 103].

R. v. D.O.L., [1993] 4 S.C.R. 419; 161 N.R. 1; 88 Man.R.(2d) 241; 51 W.A.C. 241, refd to. [para. 107].

Authors and Works Noticed:

Ewaschuk, Eugene G., Criminal Pleadings and Practice in Canada (2nd Ed. 1987, Loose-Leaf), vol. 1, para. 16:12010 [para. 79].

McGillivray, Anne, Abused Children in the Courts: Adjusting the Scales After Bill C-15 (1990), 19 Man. L.J. 549, pp. 550, 551, 572 [para. 107].

Mewett, Alan W., Witnesses (1991, Loose-Leaf), paras. 11.1(a), 11.1(b) [para. 79].

Paciocco, David M., The Evidence of Children: Testing the Rules Against What We Know (1996), 21 Queen's L.J. 345, pp. 377 [para. 71]; 346 [para. 107].

Phipson on Evidence (14th Ed. 1990), p. 263 [para. 79].

Sopinka, John, and Gelowitz, Mark A., The Conduct of an Appeal (1993), p. 4 [para. 103].

Sopinka, John, Lederman, Sydney N., and Bryant, Alan W., The Law of Evidence in Canada (1992), pp. 883, 884 [para. 79].

Counsel:

Roger J. Kergoat, for the appellant, D.R.;

John D. Hillson, for the appellant, H.R.;

Donald L. MacKinnon, for the appellant, D.W.;

Kenneth W. MacKay, Q.C., for the re­spon­dent.

Solicitors of Record:

Ebert, Sim, Crookshanks & Associates, Saskatoon, Saskatchewan, for the appel­lant, D.R.;

Hillson, Lawrence, Cooper & Soder, North Battleford, Saskatchewan, for the appel­lant, H.R.; Quon Ferguson MacKinnon Walters, Saskatoon, Saskatchewan, for the appel­lant, D.W.;

The Office of the Attorney General for Saskatchewan, Regina, Saskatchewan, for the respondent.

This appeal was heard on January 30, 1996, before Lamer, C.J.C., L'Heureux-Dubé, Sopinka, Cory, McLachlin, Iacobucci and Major, JJ., of the Supreme Court of Canada.

The judgment of the court was delivered by Lamer, C.J.C., on January 30, 1996, and the following reasons were delivered in both official languages on June 20, 1996, includ­ing the following opinions:

Major, J. (Lamer, C.J.C. and Sopinka, JJ., concurring) - see paragraphs 1 to 59;

L'Heureux-Dubé, J., dissenting - see paragraphs 60 to 112;

Cory and Iacobucci, JJ., dissenting in part - see paragraphs 113 to 114;

McLachlin, J. - see paragraphs 115 to 121.