R. v. Dinardo (J.), (2008) 374 N.R. 198 (SCC)

• Judge: Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron, JJ.
• Court: Supreme Court (Canada)
• Case Date: January 25, 2008
• Jurisdiction: Canada (Federal)
• Citations: (2008), 374 N.R. 198 (SCC);2008 SCC 24;231 CCC (3d) 177;[2008] 1 SCR 788;77 WCB (2d) 514;AZ-50490788;[2008] CarswellQue 3451;[2008] SCJ No 24 (QL);293 DLR (4th) 375;374 NR 198;JE 2008-1022;57 CR (6th) 48;EYB 2008-133045;[2008] ACS no 24

R. v. Dinardo (J.) (2008), 374 N.R. 198 (SCC)

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: [2008] N.R. TBEd. MY.005

Jean Dinardo (appellant) v. Her Majesty The Queen (respondent)

(31918; 2008 SCC 24; 2008 CSC 24)

Indexed As: R. v. Dinardo (J.)

Supreme Court of Canada

Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron, JJ.

May 9, 2008.

Summary:

The accused was convicted of sexual assault and sexual exploitation of a person with a disability. The complainant was mildly mentally challenged and suffered from Tourette syndrome. The accused appealed his conviction on the grounds that the trial judge misdirected himself on the issue of credibility and failed to provide sufficient reasons to allow for meaningful appellate review.

The Quebec Court of Appeal, Chamberland, J.A., dissenting, dismissed the appeal (2007 QCCA 287). The accused appealed.

The Supreme Court of Canada allowed the appeal and ordered a new trial. The court held that the trial judge erred in law by failing to explain how he resolved the significant issues of credibility concerning the complainant's testimony, particularly in light of the accused's evidence at trial. The court concluded that in the context of the evidence and the issues in the case, the trial judge's reasons were insufficient to allow for meaningful appellate review on the question of credibility. The court also allowed the appeal on the basis that the trial judge erred when he considered the contents of the complainant's prior consistent statements to corroborate her testimony at trial.

Courts - Topic 583

Judges - Duties - Re reasons for decisions - [See Criminal Law - Topic 4300 ].

Criminal Law - Topic 4300

Procedure - Trial judge - Duties and functions of - Respecting credibility of witnesses - The accused was convicted of sexual assault and sexual exploitation of a person with a disability - The complainant was mildly mentally challenged and suffered from Tourette syndrome - The convictions were upheld by the Quebec Court of Appeal - The accused appealed - The Supreme Court of Canada allowed the appeal and ordered a new trial - The trial judge erred in law by failing to explain how he resolved the significant issues of credibility concerning the complainant's testimony, particularly in light of the accused's evidence at trial - The trial judge failed to explain how he reconciled the inconsistencies in the complainant's testimony on the issue of whether she invented the allegations - The defence rested on the overall lack of credibility and reliability of the complainant's testimony and on the accused's own testimony denying her allegations - In that context, it was incumbent upon the trial judge to explain how he resolved those difficulties to reach a verdict beyond a reasonable doubt - In the context of the evidence and the issues in the case, the trial judge's reasons were insufficient to allow for meaningful appellate review on the question of credibility - See paragraphs 24 to 35.

Criminal Law - Topic 4375.3

Procedure - Charge or directions - Jury or judge alone - Directions regarding prior consistent statements - The accused was convicted of sexual assault and sexual exploitation of a person with a disability - The complainant was mildly mentally challenged and suffered from Tourette syndrome - The convictions were upheld by the Quebec Court of Appeal - The accused appealed - The Supreme Court of Canada allowed the appeal and ordered a new trial - The trial judge erred when he considered the contents of the complainant's prior consistent statements to corroborate her testimony at trial - The accused suffered prejudice from the trial judge's improper use of the statements - The trial judge relied heavily on the corroborative value of the complainant's prior statements in convicting the accused - He was clearly of the view that the complainant's consistency in recounting the allegations made her story more credible - See paragraphs 36 to 40.

Criminal Law - Topic 4375.3

Procedure - Charge or directions - Jury or judge alone - Directions regarding prior consistent statements - The Supreme Court of Canada stated that "In some circumstances, prior consistent statements may be admissible as part of the narrative. Once admitted, the statements may be used for the limited purpose of helping the trier of fact to understand how the complainant's story was initially disclosed. The challenge is to distinguish between 'using narrative evidence for the impermissible purpose of "confirm[ing] the truthfulness of the sworn allegation"' and 'using narrative evidence for the permissible purpose of showing the fact and timing of a complaint, which may then assist the trier of fact in the assessment of truthfulness or credibility'" - See paragraph 37.

Criminal Law - Topic 4377

Procedure - Charge or directions - Jury or judge alone - Directions regarding credibility of witnesses - [See Criminal Law - Topic 4300 ].

Criminal Law - Topic 4684

Procedure - Judgments and reasons for judgment - Reasons for judgment - Sufficiency of - [See Criminal Law - Topic 4300 ].

Criminal Law - Topic 4684

Procedure - Judgments and reasons for judgment - Reasons for judgment - Sufficiency of - The Supreme Court of Canada stated that "This Court emphasized in [R. v.] Sheppard that no error will be found where the basis for the trial judge's conclusion is 'apparent from the record, even without being articulated' (para. 55). If the trial judge's reasons are deficient, the reviewing court must examine the evidence and determine whether the reasons for conviction are, in fact, patent on the record. This exercise is not an invitation to appellate courts to engage in a reassessment of aspects of the case not resolved by the trial judge. Where the trial judge's reasoning is not apparent from the reasons or the record, as in the instant case, the appeal court ought not to substitute its own analysis for that of the trial judge" - See paragraph 32.

Criminal Law - Topic 4684

Procedure - Judgments and reasons for judgment - Reasons for judgment - Sufficiency of - The Supreme Court of Canada stated that "At the trial level, reasons 'justify and explain the result' ... Where a case turns largely on determinations of credibility, the sufficiency of the reasons should be considered in light of the deference afforded to trial judges on credibility findings. Rarely will the deficiencies in the trial judge's credibility analysis, as expressed in the reasons for judgment, merit intervention on appeal. Nevertheless, a failure to sufficiently articulate how credibility concerns were resolved may constitute reversible error ... the accused is entitled to know 'why the trial judge is left with no reasonable doubt'" - See paragraph 26.

Criminal Law - Topic 5404

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

Criminal Law - Topic 5406

Evidence and witnesses - Witnesses - Credibility - Physical and mental condition - The accused was convicted of sexual assault and sexual exploitation of a person with a disability - The complainant was mildly mentally challenged and suffered from Tourette syndrome - The convictions were upheld by the Quebec Court of Appeal - The accused appealed - The Supreme Court of Canada allowed the appeal and ordered a new trial - The trial judge erred in law by failing to explain how he resolved the significant issues of credibility concerning the complainant's testimony, particularly in light of the accused's evidence at trial - The court stated, inter alia, that "While I agree that the complainant's testimony must be assessed in the light of her mental disability, this does not lower the standard of proof or absolve the trial judge of his responsibility to explain how he reconciled the complainant's difficult testimony. I do not mean to suggest that a more detailed credibility analysis is required in the case of witnesses with mental disabilities; as with any witness whose evidence presents serious difficulties, however, some explanation is required if the evidence is to form the basis for convicting the accused" - See paragraph 35.

Evidence - Topic 1130

Relevant facts - Relevance and materiality - Relevance of evidence offered - Prior consistent statements - [See both Criminal Law - Topic 4375.3 ].

Cases Noticed:

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352; 63 C.C.C.(3d) 397, refd to. [para. 16].

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. 24].

R. v. J.J.R.D. (2006), 218 O.A.C. 37; 215 C.C.C.(3d) 252 (C.A.), refd to. [para. 25].

R. v. Braich (A.) et al., [2002] 1 S.C.R. 903; 285 N.R. 162; 164 B.C.A.C. 1; 268 W.A.C. 1; 2002 SCC 27, refd to. [para. 26].

R. v. Gagnon (L.), [2006] 1 S.C.R. 621; 347 N.R. 355; 2006 SCC 17, refd to. [para. 26].

R. v. R.W., [1992] 2 S.C.R. 122; 137 N.R. 214; 54 O.A.C. 164, refd to. [para. 33].

R. v. Stirling (B.J.), [2008] 1 S.C.R. 272; 371 N.R. 384; 2008 SCC 10, refd to. [para. 36].

R. v. Fair (J.E.) (1993), 67 O.A.C. 251; 85 C.C.C.(3d) 457 (C.A.), refd to. [para. 37].

R. v. F. (J.E.) - see R. v. Fair (J.E.).

R. v. G.C., [2006] O.A.C. Uned. 274 (C.A.), refd to. [para. 38].

Authors and Works Noticed:

McWilliams, Peter K., Canadian Criminal Evidence (4th Ed. 2003) (2008 Looseleaf Update, Release 10), vol. 1, pp. 11-44, 11-45 [para. 37].

Counsel:

Marco Labrie and Catherine Sheitoyan, for the appellant;

Henri-Pierre La Brie and Magalie Cimon, for the respondent.

Solicitors of Record:

Catherine Sheitoyan, Montréal, Québec; Marco Labrie, Longueuil, Québec, for the appellant;

Poursuites criminelles et pénales du Québec, Longueuil, Québec, for the respondent.

This appeal was heard on January 25, 2008, before Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron, JJ., of the Supreme Court of Canada. The following judgment of the Supreme Court of Canada was delivered by Charron, J., in both official languages, on May 9, 2008.