R. v. F.F.B., (1993) 148 N.R. 161 (SCC)

• Judge: Sopinka, Gonthier and Iacobucci, JJ.
• Court: Supreme Court of Canada
• Case Date: Thursday February 25, 1993
• Jurisdiction: Canada (Federal)
• Citations: (1993), 148 N.R. 161 (SCC);[1993] 1 SCR 697;[1993] ACS no 21;332 APR 1;120 NSR (2d) 1;18 CR (4th) 261;148 NR 161;79 CCC (3d) 112;[1993] SCJ No 21 (QL);1993 CanLII 167 (SCC)

R. v. F.F.B. (1993), 148 N.R. 161 (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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F.F.B. (appellant) v. Her Majesty the Queen (respondent)

(22811)

Indexed As: R. v. F.F.B.

Supreme Court of Canada

Lamer, C.J.C., L'Heureux-Dubé,

Sopinka, Gonthier and Iacobucci, JJ.

February 25, 1993.

Summary:

The accused was convicted by a jury on two counts of rape, two counts of causing bodily harm with intent to wound and inde­cent assault. The offences occurred between 1954 and 1964 and related to his niece. The trial judge sentenced the accused to a total of 13 years' imprisonment. The accused appealed the convictions and sentences.

The Nova Scotia Supreme Court, Appeal Division, Jones, J.A., dissenting, in a judg­ment reported 107 N.S.R.(2d) 231; 290 A.P.R. 290, dismissed the appeal. The accused appealed on the ground that evi­dence of the accused's bad character was improperly admitted and that even if the evidence was admissible, the trial judge failed to properly instruct the jury on its use.

The Supreme Court of Canada, L'Heu­reux-Dubé and Gonthier, JJ., dissenting, allowed the appeal and ordered a new trial. The disputed evidence was admissible, but the trial judge's failure to caution the jury on the use of this prejudicial evidence required a new trial. The court stated that this was not a case to invoke the curative provisions of s. 686(1)(b)(iii) of the Criminal Code.

Criminal Law - Topic 4379

Procedure - Jury charge - Directions re evidence of character or credibility of accused - The accused was charged with sexual offences - The trial judge admitted prejudicial evidence respecting the ac­cused's character, because the evidence was relevant and its probative value out­weighed its prejudicial effect - However, the trial judge failed to instruct the jury on the limited use of the evidence - The Supreme Court of Canada stated that a jury must be instructed on the use of evi­dence highly prejudicial to the accused - The court ordered a new trial and refused to invoke the curative provisions of s. 686(1)(b)(iii) to dismiss the appeal not­withstanding the error, because the evi­dence was not so overwhelming that the jury would have inevitably convicted the accused if the jury had been properly instructed - See paragraphs 28 to 37.

Criminal Law - Topic 5045

Appeals - Indictable offences - Dismissal of appeal if error resulted in no miscar­riage of justice - Miscarriage of justice - What constitutes - [See Criminal Law - Topic 4379].

Criminal Law - Topic 5045

Appeals - Indictable offences - Dismissal of appeal if error resulted in no miscar­riage of justice - Miscarriage of justice - What constitutes - Lamer, C.J.C., of the Supreme Court of Canada, discussed the principles to be considered in deciding whether to apply the curative provisions of s. 686(1)(b)(iii) of the Criminal Code - See paragraphs 46 to 51.

Criminal Law - Topic 5209

Evidence - Witnesses - Admissibility and relevancy - Prejudicial evidence - [See Criminal Law - Topic 5212].

Criminal Law - Topic 5212

Evidence - Witnesses - Admissibility and relevancy - Similar acts - The accused was charged with offences involving phys­ical and sexual abuse of his six-16 year old niece from 1954-64 - The incidents were first reported to police in 1990 - The accused cared for the niece and her sib­lings over the 10 year period - Evidence from other children explained the accused's complete control of them through fear and why no one spoke out against the accused until now - The accused's counsel did not object to the evidence - The Supreme Court of Canada affirmed the evidence was admissible - The court stated that "evi­dence which tends to show bad character or a criminal disposition on the part of the accused is admissible if (1) relevant to some other issue beyond disposition or character, and (2) the probative value outweighs the prejudicial effect." - The court held that the evidence met both tests - See paragraphs 17 to 27.

Evidence - Topic 4023

Witnesses - Credibility - Oath-helping - The Supreme Court of Canada stated that "the rule against oath-helping prohibits a party from presenting evidence solely for the purpose of bolstering a witness' credi­bility before that witness' credibility is attacked. This type of evidence is of the sort that would tend to prove the truthful­ness of the witness, rather than the truth of the witness' statements. It includes psy­chiatric evidence that the witness is likely to tell the truth in court, ... evidence of good character called solely to illustrate that a witness is likely telling the truth ... and polygraph evidence." - See paragraph 18.

Cases Noticed:

R. v. Kyselka (1962), 133 C.C.C. 103 (Ont. C.A.), refd to. [para. 18].

R. v. Clarke (1981), 32 A.R. 92; 63 C.C.C.(2d) 224 (C.A.), refd to. [para. 18].

R. v. Béland, [1987] 2 S.C.R. 398; 79 N.R. 263; 9 Q.A.C. 293; 36 C.C.C.(3d) 481; 60 C.R.(3d) 1, refd to. [para. 18].

R. v. Morris, [1983] 2 S.C.R. 190; 48 N.R. 341, refd to. [para. 19].

R. v. C.R.B., [1990] 1 S.C.R. 717; 107 N.R. 241; 109 A.R. 81; 76 C.R.(3d) 1; [1990] 3 W.W.R. 385; 73 Alta. L.R.(2d) 1; 55 C.C.C.(3d) 1, refd to. [para. 26].

R. v. L.E.D., [1989] 2 S.C.R. 111; 97 N.R. 321; 50 C.C.C.(3d) 142; 71 C.R.(3d) 1, refd to. [para. 29].

R. v. P.L.S., [1991] 1 S.C.R. 909; 122 N.R. 321; 90 Nfld. & P.E.I.R. 234; 280 A.P.R. 234; 5 C.R.(4th) 351; 64 C.C.C.(3d) 193, refd to. [para. 36].

R. v. Broyles, [1991] 3 S.C.R. 595; 131 N.R. 118; 120 A.R. 189; 8 W.A.C. 189; 8 C.R.R.(2d) 274; [1992] 1 W.W.R. 289; 9 C.R.(4th) 1; 84 Alta. L.R.(2d) 1; 68 C.C.C.(3d) 308, refd to. [para. 36].

R. v. Colpitts, [1965] S.C.R. 739, refd to. [para. 47].

R. v. Wildman, [1984] 2 S.C.R. 311; 55 N.R. 27; 5 O.A.C. 241, refd to. [para. 47].

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. Mahoney, [1982] 1 S.C.R. 834; 41 N.R. 582, refd to. [para. 50].

R. v. Vézeau, [1977] 2 S.C.R. 277; 8 N.R. 235, refd to. [para. 67].

R. v. Young, [1981] 2 S.C.R. 39; 36 N.R. 463, refd to. [para. 67].

R. v. Demeter (1975), 25 C.C.C.(2d) 417 (Ont. C.A.), refd to. [para. 67].

R. v. Corbett, [1988] 1 S.C.R. 670; 85 N.R. 81; 64 C.R.(3d) 1; 41 C.C.C.(3d) 385; 28 B.C.L.R.(2d) 145, refd to. [para. 68].

R. v. Guenot, Kocsis and Lukacs (1979), 51 C.C.C.(2d) 315 (Ont. C.A.), refd to. [para. 73].

R. v. Fanjoy, [1985] 2 S.C.R. 233; 62 N.R. 253; 11 O.A.C. 381; 21 C.C.C.(3d) 312, refd to. [para. 80].

R. v. Nygaard, [1989] 2 S.C.R. 1074; 101 N.R. 108; 102 A.R. 186; [1990] 1 W.W.R. 1; 70 Alta. L.R.(2d) 1; 72 C.R.(3d) 257; 51 C.C.C.(3d) 417, refd to. [para. 87].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 686(1)(b)(iii) [paras. 7, 46, 78]; sect. 691(1)(a) [para. 7].

Counsel:

Craig M. Garson, for the appellant;

Robert C. Hagell and Robert Lutes, for the respondent.

Solicitors of Record:

Scaravelli & Garson, Halifax, N.S., for the appellant;

Attorney General of Nova Scotia, Halifax, N.S., for the respondent.

This appeal was heard on October 5, 1992, before Lamer, C.J.C., L'Heureux-Dubé, Sopinka, Gonthier and Iacobucci, JJ., of the Supreme Court of Canada.

On February 25, 1993, the judgment of the Supreme Court of Canada was delivered in both official languages and the following opinions were filed:

Iacobucci, J. (Sopinka, J., concurring) - see paragraphs 1 to 43;

Lamer, C.J.C. - see paragraphs 44 to 63;

L'Heureux-Dubé, J., dissenting - see paragraphs 64 to 93;

Gonthier, J., dissenting - see paragraphs 94 to 95.