R. v. Jesse (L.W.), (2012) 429 N.R. 158 (SCC)

• Judge: McLachlin, C.J.C., LeBel, Deschamps, Fish, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis, JJ.
• Court: Supreme Court of Canada
• Case Date: April 27, 2012
• Jurisdiction: Canada (Federal)
• Citations: (2012), 429 N.R. 158 (SCC);2012 SCC 21;321 BCAC 49;281 CCC (3d) 145;[2012] 1 SCR 716;429 NR 158

R. v. Jesse (L.W.) (2012), 429 N.R. 158 (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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Temp. Cite: [2012] N.R. TBEd. AP.030

Larry Wayne Jesse (appellant) v. Her Majesty The Queen (respondent)

(33694; 2012 SCC 21; 2012 CSC 21)

Indexed As: R. v. Jesse (L.W.)

Supreme Court of Canada

McLachlin, C.J.C., LeBel, Deschamps, Fish, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis, JJ.

April 27, 2012.

Summary:

An extremely intoxicated woman at a party attended by the accused and others passed out. She woke up to find that she had been sexually assaulted by someone forcing a wine bottle cork into her vagina. No one witnessed the actual assault, but the accused was seen leaving the scene where the woman was passed out at a time when the cork was likely inserted. The accused was charged with sexual assault. The trial judge admitted, as similar fact evidence, the accused's sexual assault conviction by a jury 12 years earlier for forcibly inserting two plastic bags in another woman's vagina. The trial judge found the evidence was probative as to identity and its probative value outweighed its prejudicial effect. The accused appealed his conviction. At issue was admission of the similar fact evidence and the use that could be made of that evidence.

The British Columbia Court of Appeal, in a judgment reported (2010), 284 B.C.A.C. 192; 481 W.A.C. 192, dismissed the appeal. The accused appealed, submitting that the trial judge erred in permitting the Crown to lead the prior conviction as similar fact evidence and erred in not allowing the accused to challenge the conviction on the voir dire (challenge allowed only at trial proper).

The Supreme Court of Canada 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 5212

Evidence and witnesses - Admissibility and relevancy - Similar acts - General (incl. procedure) - [See Criminal Law - Topic 5214.1 ].

Criminal Law - Topic 5214.1

Evidence and witnesses - Admissibility and relevancy - Similar acts - To prove identity of accused - An extremely intoxicated woman passed out at a party attended by the accused and others - While asleep, the woman was sexually assaulted by someone forcing a wine bottle cork into her vagina - No one saw the accused insert the cork, but he fled the scene of the assault at the time it was likely inserted - The trial judge, in convicting the accused of sexual assault, admitted as similar fact evidence the accused's sexual assault conviction by a jury 12 years earlier for forcibly inserting two plastic bags in another woman's vagina - The trial judge found that the probative value of the evidence as to identity outweighed its prejudicial effect - The Supreme Court of Canada affirmed the dismissal of the accused's conviction appeal - On a similar fact application, it was open to the Crown to lead the accused's prior conviction to establish the necessary link, where the accused put identity in issue - The fact that the accused's conviction resulted from a jury conviction, rather than a guilty plea, did not alter its cogency or admissibility - Verdicts by juries, or judges alone, were presumptively reliable - At a minimum, the prior conviction provided "some evidence" that the same person was responsible for both assaults - There was no error in finding that the probative value of the evidence outweighed its prejudicial effect - A prior conviction for a similar act had greater probative value than an unproven allegation - The court stated that "I should not be taken as holding that prior convictions will always be admissible when similar fact evidence is tendered. Each case must be assessed on its own facts and circumstances." - An accused was not "automatically foreclosed" from challenging the prior conviction at the voir dire stage - However, given the low evidentiary threshold (some evidence), a trial judge was entitled to reject an accused's request to call evidence to challenge the admissibility of a prior conviction where "there was no reasonable likelihood that it would impact on the admissibility of the evidence" - At trial, the accused was entitled to challenge the prior conviction - Finally, the trial judge did not err in finding that the same person committed both assaults and that on all of the evidence the accused was guilty of sexually assaulting the woman.

Cases Noticed:

R. v. Arp (B.), [1998] 3 S.C.R. 339; 232 N.R. 317; 114 B.C.A.C. 1; 186 W.A.C. 1, refd to. [para. 14].

R. v. Handy (J.) (2002), 290 N.R. 1; 160 O.A.C. 201; 2002 SCC 56, refd to. [para. 14].

R. v. Duong (T.D.) (1998), 108 O.A.C. 378; 39 O.R.(3d) 161 (C.A.), refd to. [para. 22].

R. v. Mahalingan (R.), [2008] 3 S.C.R. 316; 381 N.R. 199; 243 O.A.C. 199; 2008 SCC 63, refd to. [para. 28].

Hollingworth v. F. Hewthorn & Co., [1943] 1 K.B. 587 (Eng. C.A.), disagreed with [para. 37].

British Columbia (Attorney General) v. Malik et al., [2011] 1 S.C.R. 657; 414 N.R. 332; 303 B.C.A.C. 1; 512 W.A.C. 1; 2011 SCC 18, refd to. [para. 43].

Demeter v. British Pacific Life Insurance Co. et al. (1984), 7 O.A.C. 143; 48 O.R.(2d) 266 (C.A.), refd to. [para. 43].

Del Core v. College of Pharmacists (Ont.) (1985), 10 O.A.C. 57; 51 O.R.(2d) 1 (C.A.), leave to appeal denied, [1986] 1 S.C.R. viii; 70 N.R. 82, refd to. [para. 43].

R. v. Snow (D.A.) (2004), 191 O.A.C. 212; 73 O.R.(3d) 40 (C.A.), refd to. [para. 51].

R. v. Fisher (L.) (2004), 238 Sask.R. 91; 305 W.A.C. 91; 179 C.C.C.(3d) 138; 2003 SKCA 90, leave to appeal denied (2004), 332 N.R. 394; 269 Sask.R. 289; 257 W.A.C. 289, refd to. [para. 51].

R. v. James (B.T.) (2006), 216 O.A.C. 27; 84 O.R.(3d) 227 (C.A.), leave to appeal denied, [2007] 3 S.C.R. x; 378 N.R. 398, refd to. [para. 51].

R. v. Corbett, [1988] 1 S.C.R. 670; 85 N.R. 81, refd to. [para. 52].

R. v. Lising (R.) et al., [2005] 3 S.C.R. 343; 341 N.R. 147; 217 B.C.A.C. 65; 358 W.A.C. 65; 2005 SCC 66, refd to. [para. 63].

R. v. Pires - see R. v. Lising (R.) et al.

Authors and Works Noticed:

Cross and Tapper on Evidence (12th Ed. 2010), pp. 109, 110 [para. 43].

Paciocco, David M., and Stuesser, Lee, The Law of Evidence (Rev. 5th Ed. 2008), pp. 144 to 147 [para. 52].

Counsel:

Gil D. McKinnon, Q.C., and Gregory S. Pun, for the appellant;

Jennifer Duncan and Elizabeth A. Campbell, for the respondent.

Solicitors of Record:

Gil D. McKinnon, Q.C., Vancouver, B.C., for the appellant;

Attorney General of British Columbia, Vancouver, B.C., for the respondent.

This appeal was heard  on December 9, 2011, before McLachlin, C.J.C., LeBel, Deschamps, Fish, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis, JJ., of the Supreme Court of Canada.

On April 27, 2012, Moldaver, J., delivered the following judgment in both official languages for the Court.