R. v. J.A., [2011] N.R. TBEd. AP.021

• Judge: McLachlin, C.J.C., Binnie, Deschamps, Fish, Charron, Rothstein and Cromwell, JJ.
• Court: Supreme Court (Canada)
• Case Date: April 08, 2011
• Jurisdiction: Canada (Federal)
• Citations: [2011] N.R. TBEd. AP.021;2011 SCC 17;275 OAC 6;[2011] 1 SCR 628;[2011] EXP 1192;84 CR (6th) 42;JE 2011-642;413 NR 1;332 DLR (4th) 235;[2011] CarswellOnt 2237;94 WCB (2d) 331;[2011] SCJ No 17 (QL);268 CCC (3d) 135

R. v. J.A. (SCC) - Criminal law - Appeals - "Fresh evidence" - Admissibility

MLB being edited

Currently being edited for N.R. - judgment temporarily in rough form.

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

Temp. Cite: [2011] N.R. TBEd. AP.021

J.A.A. (appellant) v. Her Majesty The Queen (respondent)

(33782; 2011 SCC 17; 2011 CSC 17)

Indexed As: R. v. J.A.

Supreme Court of Canada

McLachlin, C.J.C., Binnie, Deschamps, Fish, Charron, Rothstein and Cromwell, JJ.

April 8, 2011.

Summary:

The accused was convicted of sexual assault and sexual assault with a knife. The alleged victim was his wife. The accused appealed his conviction, submitting that the trial judge improperly relied on the wife's post-event demeanour and improperly rejected his evidence at trial. In convicting the accused, the trial judge noted that the wife testified that she bit the accused's finger during the assault and that the police noted a mark on his finger. On appeal, the accused sought to admit fresh evidence, being testimony by a forensic dentist with expertise in bite mark analysis, who proposed to testify that the injury was not a bite mark.

The Ontario Court of Appeal, Winkler, C.J.O., dissenting, in a judgment reported (2010), 265 O.A.C. 304,dismissed the appeal. The post-event evidence of the wife's distraught emotional state was admissible in support of the sexual assault allegation and the trial judge did not overemphasize that evidence. There was no error in rejecting the accused's version of events. The fresh evidence was inadmissible, because it could have been adduced at trial with due diligence and, in any event, the evidence could not reasonably be expected to have affected the result. Winkler, C.J.O., would have allowed the appeal, quashed the conviction and ordered a new trial on the ground that the fresh evidence was admissible, the trial judge improperly admitted the bite mark evidence and demeanour evidence, and the trial judge misapplied the requirements of R. v. D.W. (SCC) respecting the burden of proof and reasonable doubt. The accused appealed as of right.

The Supreme Court of Canada, Deschamps and Rothstein, JJ., dissenting, allowed the appeal and ordered a new trial on the ground that the fresh evidence should have been admitted on 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 675

Sexual offences - Rape or sexual assault - Evidence and proof - The Supreme Court of Canada, per Rothstein and Deschamps, JJ., held that "evidence of the demeanour of a sexual assault victim can be used as circumstantial evidence to corroborate the complainant's version of events" - See paragraphs 40, 60.

Criminal Law - Topic 4970

Appeals - Indictable offences - Powers of Court of Appeal - Receiving fresh evidence - General - The accused was convicted of sexually assaulting his wife - The wife testified that during the assault she bit one of the accused's fingers - A police officer testified that he noted what appeared to be a bite mark on the accused's finger and photographed it - The officer, in cross-examination, admitted to not being an expert in bite marks - The accused did not call a bite mark expert witness - The trial judge accepted the wife's version of events based on her demeanour, the internal consistency of her evidence, etc. - The judge also commented on five factors corroborating her version of the event, including the bite mark evidence - On his conviction appeal, the accused sought to introduce new evidence from a forensic dentist with expertise in bite mark analysis - The proposed evidence was that the injury to the accused's finger was not consistent with a bite mark - The Crown conceded that the evidence would be both relevant and reasonably capable of belief - The accused conceded that with due diligence the evidence could have been introduced at trial - The Ontario Court of Appeal declined to admit the new evidence - Apart from the lack of due diligence, the court found that the new evidence, if believed, could not reasonably be expected to have affected the result, because "the other evidence adduced at trial still compels the convictions entered by the trial judge" - The Supreme Court of Canada allowed the accused's appeal and ordered a new trial - The court disagreed that the fresh evidence could not reasonably be expected to have affected the result - The trial judge viewed the case as a close one - He found the wife credible, but also commented favourably on the accused's testimony - Part of reason for resolving credibility in the wife's favour was the bite mark evidence - If there was no bite mark, it would be unsafe to uphold the convictions on the strength of the remaining factors the trial judge considered supportive of his conclusion - See paragraphs 1 to 16.

Practice - Topic 9031

Appeals - Evidence on appeal - Admission of "new evidence" or "fresh evidence" - [See Criminal Law - Topic 4970 ].

Cases Noticed:

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181, refd to. [para. 7].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 23].

R. v. McBirnie (P.S.) (1992), 59 O.A.C. 1; 77 C.C.C.(3d) 402 (C.A.), refd to. [para. 25].

R. v. P.S.M. - see R. v. McBirnie (P.S.).

R. v. Murphy et al., [1977] 2 S.C.R. 603; 9 N.R. 329, refd to. [para. 40].

Counsel:

[Not disclosed.]

Solicitors of Record:

Henein & Associates, Toronto, Ontario, for the appellant;

Attorney General of Ontario, Toronto, Ontario, for the respondent.

This appeal was heard on February 22, 2011, before McLachlin, C.J.C., Binnie, Deschamps, Fish, Charron, Rothstein and Cromwell, JJ., of the Supreme Court of Canada.

On April 8, 2011, the judgment of the Court was delivered in both official languages and the following opinions were filed:

Charron, J. (McLachlin, C.J.C., Binnie, Fish and Cromwell, JJ., concurring) - see paragraphs 1 to 16;

Rothstein, J. (Deschamps, J., concurring), dissenting - see paragraphs 17 to 68.