R. v. Dorfer (F.S.), 2010 BCCA 440

JudgeProwse, Lowry and Frankel, JJ.A.
CourtCourt of Appeal (British Columbia)
Case DateMay 06, 2010
JurisdictionBritish Columbia
Citations2010 BCCA 440;(2010), 293 B.C.A.C. 300 (CA)

R. v. Dorfer (F.S.) (2010), 293 B.C.A.C. 300 (CA);

    496 W.A.C. 300

MLB headnote and full text

Temp. Cite: [2010] B.C.A.C. TBEd. OC.010

Regina (respondent) v. Franklin Shane Dorfer (appellant)

(CA036895; 2010 BCCA 440)

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

British Columbia Court of Appeal

Prowse, Lowry and Frankel, JJ.A.

October 12, 2010.

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, dismissed the appeal.

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.

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 not use evidence of his bad character as probative of guilt - The British Columbia Court of Appeal rejected the argument - Bad character evidence could be used in assessing credibility - When there was no risk of such evidence being misused by a jury, there was no need for it to be given a limiting instruction - This was such a case - The evidence could not have led the jury to conclude that he was the type of person likely to have committed a sexual assault - While that evidence showed him to be a drug-user with a criminal lifestyle, it did not show that he was someone with a propensity to commit sexual offences - There was nothing in Crown counsel's address that invited the jury to convict on the basis of the accused's character - See paragraphs 30 to 41.

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) - He argued that the jury should have been instructed that it was open to it to infer that Babcock was the type of person who committed break and enters, thus lending credence to his evidence that Babcock was the second intruder - 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 - Credibility was the critical issue for the jury - As a matter of common sense, the jury would have taken Babcock's criminal history and lifestyle into consideration in assessing his evidence and in deciding whether there was a reasonable doubt with respect to the accused being the sole intruder - See paragraphs 42 to 44.

Criminal Law - Topic 4377

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

Criminal Law - Topic 4379

Procedure - Charge or directions - Jury or judge alone - Directions re evidence of character or credibility of accused - [See first Criminal Law - Topic 4375.5 ].

Criminal Law - Topic 5450

Evidence and witnesses - Evidence respecting the accused - Character of accused - Jury charge - [See first Criminal Law - Topic 4375.5 ].

Cases Noticed:

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 24].

R. v. Jacquard (C.O.), [1997] 1 S.C.R. 314; 207 N.R. 246; 157 N.S.R.(2d) 161; 462 A.P.R. 161, refd to. [para. 33].

R. v. Brass (D.A.R.) (2007), 304 Sask.R. 20; 413 W.A.C. 20; 226 C.C.C.(3d) 216; 2007 SKCA 94, leave to appeal refused [2009] 1 S.C.R. vi; 395 N.R. 392; 346 Sask.R. 318; 477 W.A.C. 318, refd to. [para. 33].

R. v. MacKinnon (T.N.) et al. (1999), 117 O.A.C. 258; 132 C.C.C.(3d) 545 (C.A.), refd to. [para. 34].

R. v. Chambers (No. 2), [1990] 2 S.C.R. 1293; 119 N.R. 321, refd to. [para. 40].

R. v. Escobar-Benavidez (E.D.) (2005), 211 B.C.A.C. 260; 349 W.A.C. 260; 196 C.C.C.(3d) 459; 2005 BCCA 211, affd. [2005] 3 S.C.R. 386; 342 N.R. 302; 219 B.C.A.C. 42; 361 W.A.C. 42; 2005 SCC 68, refd to. [para. 40].

R. v. Arcangioli (G.), [1994] 1 S.C.R. 129; 162 N.R. 280; 69 O.A.C. 26, refd to. [para. 42].

R. v. Lee (S.B.) - see R. v. Siu (H.K.M.) et al.

R. v. Siu (H.K.M.) et al. (1998), 106 B.C.A.C. 161; 172 W.A.C. 161; 124 C.C.C.(3d) 301 (C.A.), refd to. [para. 42].

Counsel:

J.J. Blazina, for the appellant;

K.D. Madsen, for the respondent.

This appeal was heard on May 6, 2010, before Prowse, Lowry and Frankel, JJ.A., of the British Columbia Court of Appeal.

On October, 12, 2010, the judgment of the Court of Appeal was delivered and the following judgments were filed:

Frankel, J.A. (Lowry, J.A., concurring) - see paragraphs 1 to 45

Prowse, J.A., dissenting - see paragraphs 46 to 52.

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8 practice notes
  • Table of cases
    • Canada
    • Irwin Books The Law of Evidence. Eighth Edition
    • June 25, 2020
    ...542 R v Dooley, 2009 ONCA 910 .............................................................. 609, 658, 666 R v Dorfer, 2010 BCCA 440, aff’d [2011] 3 SCR 366 .............................65, 115, 116 R v Dorsey, 2012 ONCA 185 ........................................................................
  • Character Evidence: Primary Materiality
    • Canada
    • Irwin Books The Law of Evidence. Eighth Edition
    • June 25, 2020
    ...see Chapter 10, Section 5, “The Collateral Facts Rule,” and Chapter 11, “Secondary Materiality and Your Own Witness.” 6 In R v Dorfer , 2010 BCCA 440 at paras 39–40, aff’d [2011] 3 SCR 366 [ Dorfer ], for example, the court recognized that, where the accused led evidence about his own discr......
  • R. v. Pirko,
    • Canada
    • Court of Appeal (British Columbia)
    • March 14, 2023
    ...jury would have acquitted if the required limiting instruction had been given: at para. 42. [217]    In R. v. Dorfer, 2010 BCCA 440, aff’d on other grounds 2011 SCC 50, an appeal from a conviction for breaking and entering a dwelling house and committing therein a......
  • R. v. Dorfer (F.S.), (2013) 337 B.C.A.C. 309 (CA)
    • Canada
    • British Columbia Court of Appeal (British Columbia)
    • May 9, 2013
    ...accused committed the sexual assault. The British Columbia Court of Appeal, Prowse, J.A., dissenting in part, in a judgment reported (2010), 293 B.C.A.C. 300; 496 W.A.C. 300 , dismissed the appeal. The accused The Supreme Court of Canada, LeBel and Fish, JJ., dissenting, in a judgment repo......
  • Request a trial to view additional results
6 cases
  • R. v. Pirko,
    • Canada
    • Court of Appeal (British Columbia)
    • March 14, 2023
    ...jury would have acquitted if the required limiting instruction had been given: at para. 42. [217]    In R. v. Dorfer, 2010 BCCA 440, aff’d on other grounds 2011 SCC 50, an appeal from a conviction for breaking and entering a dwelling house and committing therein a......
  • R. v. Dorfer (F.S.), (2013) 337 B.C.A.C. 309 (CA)
    • Canada
    • British Columbia Court of Appeal (British Columbia)
    • May 9, 2013
    ...accused committed the sexual assault. The British Columbia Court of Appeal, Prowse, J.A., dissenting in part, in a judgment reported (2010), 293 B.C.A.C. 300; 496 W.A.C. 300 , dismissed the appeal. The accused The Supreme Court of Canada, LeBel and Fish, JJ., dissenting, in a judgment repo......
  • R. v. Bhullar (J.S.), (2011) 311 B.C.A.C. 163 (CA)
    • Canada
    • British Columbia Court of Appeal (British Columbia)
    • September 7, 2011
    ...528 , dist. [para. 19]. R. v. Chambers (No. 2), [1990] 2 S.C.R. 1293 ; 119 N.R. 321 , refd to. [para. 29]. R. v. Dorfer (F.S.) (2010), 293 B.C.A.C. 300; 496 W.A.C. 300 ; 262 C.C.C.(3d) 59 ; 2010 BCCA 440 , refd to. [para. R. v. Jacquard (C.O.), [1997] 1 S.C.R. 314 ; 207 N.R. 246 ; 1......
  • R. v. Dorfer (F.S.), (2011) 313 B.C.A.C. 1 (SCC)
    • Canada
    • Canada (Federal) Supreme Court (Canada)
    • October 21, 2011
    ...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 The Supreme Court of Canada, LeBel and Fish, JJ., dissenting, dismissed the appeal. Cri......
  • Request a trial to view additional results
2 books & journal articles
  • Table of cases
    • Canada
    • Irwin Books The Law of Evidence. Eighth Edition
    • June 25, 2020
    ...542 R v Dooley, 2009 ONCA 910 .............................................................. 609, 658, 666 R v Dorfer, 2010 BCCA 440, aff’d [2011] 3 SCR 366 .............................65, 115, 116 R v Dorsey, 2012 ONCA 185 ........................................................................
  • Character Evidence: Primary Materiality
    • Canada
    • Irwin Books The Law of Evidence. Eighth Edition
    • June 25, 2020
    ...see Chapter 10, Section 5, “The Collateral Facts Rule,” and Chapter 11, “Secondary Materiality and Your Own Witness.” 6 In R v Dorfer , 2010 BCCA 440 at paras 39–40, aff’d [2011] 3 SCR 366 [ Dorfer ], for example, the court recognized that, where the accused led evidence about his own discr......

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