R. v. Dorfer (F.S.), (2013) 337 B.C.A.C. 309 (CA)

• Judge: Kirkpatrick, Groberman and Bennett, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: May 09, 2013
• Jurisdiction: British Columbia
• Citations: (2013), 337 B.C.A.C. 309 (CA);2013 BCCA 223

R. v. Dorfer (F.S.) (2013), 337 B.C.A.C. 309 (CA);

    576 W.A.C. 309

MLB headnote and full text

Temp. Cite: [2013] B.C.A.C. TBEd. MY.028

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

(CA036895; 2013 BCCA 223)

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

British Columbia Court of Appeal

Kirkpatrick, Groberman and Bennett, JJ.A.

May 9, 2013.

Summary:

The accused was convicted by a jury of breaking and entering a dwelling-house and sexually assaulting an 89 year old woman. 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 judgment reported (2010), 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, in a judgment reported (2011), 422 N.R. 245; 313 B.C.A.C. 1; 533 W.A.C. 1, dismissed the appeal. The trial judge, in a judgment reported [2009] B.C.T.C. Uned. 202, had allowed the Crown's application under s. 753 of the Criminal Code to designate the accused to be a dangerous offender. The accused was sentenced to an indeterminate sentence. The accused appealed the dangerous offender designation.

The British Columbia Court of Appeal 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 6552

Dangerous or long-term offenders - Detention - Protection of the public - Pattern of repetitive behaviour - See paragraphs 30 to 62.

Criminal Law - Topic 6553

Dangerous or long-term offenders - Detention - Protection of the public - Brutality of predicate offence - See paragraphs 30 to 62.

Criminal Law - Topic 6558

Dangerous or long-term offenders - Detention - Protection of the public - Dangerous sexual offender - See paragraphs 30 to 62.

Cases Noticed:

R. v. Pedden (B.A.) (2005), 208 B.C.A.C. 303; 344 W.A.C. 303; 194 C.C.C.(3d) 476; 2005 BCCA 121, refd to. [para. 32].

R. v. Currie (R.O.R.), [1997] 2 S.C.R. 260; 211 N.R. 321; 100 O.A.C. 161; 146 D.L.R.(4th) 688, refd to. [para. 32].

R. v. Langevin (1984), 3 O.A.C. 110; 8 D.L.R.(4th) 485; 11 C.C.C.(3d) 336 (C.A.), refd to. [para. 38].

R. v. Neve (L.C.) (1999), 237 A.R. 201; 197 W.A.C. 201; 137 C.C.C.(3d) 97; 1999 ABCA 206, refd to. [para. 38].

R. v. Dow (D.R.) (1999), 120 B.C.A.C. 16; 196 W.A.C. 16; 134 C.C.C.(3d) 323; 1999 BCCA 177, refd to. [para. 42].

R. v. Campbell (J.M.), [2004] O.T.C. 434; 120 C.R.R.(2d) 231; 62 W.C.B.(2d) 215, refd to. [para. 48].

R. v. Carleton, [1981] 6 W.W.R. 148; 32 A.R. 181; 69 C.C.C.(2d) 1 (C.A.), affd. [1983] 2 S.C.R. 58; 47 A.R. 160; 52 N.R. 293, refd to. [para. 53].

Counsel:

J.J. Blazina, for the appellant;

M.J. Brundrett, for the respondent.

This appeal was heard on March 7, 2013, at Vancouver, B.C., before Kirkpatrick, Groberman and Bennett, JJ.A., of the British Columbia Court of Appeal.

On May 9, 2013, Kirkpatrick, J.A., delivered the following judgment for the Court of Appeal.