R. v. Dorfer (F.S.), (2011) 313 B.C.A.C. 1 (SCC)

• Judge: McLachlin, C.J.C. and LeBel, Fish, Rothstein and Cromwell, JJ.
• Court: Supreme Court (Canada)
• Case Date: October 21, 2011
• Jurisdiction: Canada (Federal)
• Citations: (2011), 313 B.C.A.C. 1 (SCC);2011 SCC 50

R. v. Dorfer (F.S.) (2011), 313 B.C.A.C. 1 (SCC);

    533 W.A.C. 1

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: [2011] B.C.A.C. TBEd. NO.056

Franklin Shane Dorfer v. Her Majesty the Queen

(33952; 2011 SCC 50; 2011 CSC 50)

Indexed As: R. v. Dorfer (F.S.)

Supreme Court of Canada

McLachlin, C.J.C. and LeBel, Fish, Rothstein and Cromwell, JJ.

October 21, 2011.

Summary:

The accused was convicted by a jury of breaking and entering a dwelling-house and committing sexual assault. At trial, he admitted breaking into the house but denied being involved in the sexual assault. He alleged that he had an accomplice for the break-in, Babcock, who must have committed the sexual assault. Babcock testified for the Crown and denied any involvement. The accused appealed, arguing that the trial judge erred in failing to specifically instruct the jury that it: (a) could not use evidence of his bad character as probative of guilt, and (b) could use evidence of Crown witness Babcock's criminal record and bad character in deciding whether it had a reasonable doubt as to there having been only one intruder (the accused) and that the accused committed the sexual assault.

The British Columbia Court of Appeal, Prowse, J.A., dissenting in part, in a decision reported at 293 B.C.A.C. 300; 496 W.A.C. 300, dismissed the appeal. The accused appealed.

The Supreme Court of Canada, LeBel and Fish, JJ., dissenting, dismissed the appeal.

Criminal Law - Topic 4375.5

Procedure - Charge or directions - Jury or judge alone - Directions re prior misconduct or convictions - The accused was convicted by a jury of breaking and entering a dwelling- house and committing sexual assault - At trial, he admitted breaking into the house but denied being involved in the sexual assault - He alleged that he had an accomplice for the break-in, Babcock, who must have committed the sexual assault - Babcock testified for the Crown and denied any involvement - The accused appealed, arguing that the trial judge erred in failing to specifically instruct the jury that it could use evidence of Crown witness Babcock's criminal record and bad character in deciding whether it had a reasonable doubt as to there having been only one intruder (the accused) - The British Columbia Court of Appeal rejected the argument - There was no need for the trial judge to give a specific direction respecting Babcock's criminal history and lifestyle - The Supreme Court of Canada dismissed the accused's appeal - The trial judge erred in law in his instruction about the limited use of Babcock's criminal record - However, the error did  not  occasion any substantial wrong or miscarriage of justice - Propensity reasoning relative to Babock's record was never placed before the jury - Also, there was no evidentiary foundation to support such a propensity instruction.

Criminal Law - Topic 4377

Procedure - Charge or directions - Jury or judge alone - Directions regarding credibility of witnesses - [See Criminal Law - Topic 4375.5 ].

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 4375.5 ].

Counsel:

Timothy J. Russell, for the appellant;

Joyce DeWitt-Van Oosten, Q.C., for the respondent.

Solicitors of Record:

[None disclosed].

This appeal was heard on October 21, 2011, before McLachlin, C.J.C., LeBel, Fish, Rothstein and Cromwell, JJ., of the Supreme Court of Canada. The judgment of the Supreme Court of Canada was delivered orally in both official languages on that date, and the following opinions were filed:

McLachlin, C.J.C. (Rothstein and Cromwell, JJ., concurring) - see paragraph 1;

LeBel, J. (Fish, J., concurring) dissenting - see paragraph 2.