R. v. John, (1985) 63 N.R. 141 (SCC)

• Judge: Dickson, C.J.C., Beetz, Estey, McIntyre, Chouinard, Lamer and Le Dain, JJ.
• Court: Supreme Court (Canada)
• Case Date: December 10, 1985
• Jurisdiction: Canada (Federal)
• Citations: (1985), 63 N.R. 141 (SCC);49 CR (3d) 57;11 OAC 391;63 NR 141;23 CCC (3d) 326;[1985] SCJ No 72 (QL);1985 CanLII 15 (SCC);24 DLR (4th) 713;[1985] 2 SCR 476

R. v. John (1985), 63 N.R. 141 (SCC)

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R. v. John

Indexed As: R. v. John

Supreme Court of Canada

Dickson, C.J.C., Beetz, Estey, McIntyre, Chouinard, Lamer and Le Dain, JJ.

December 10, 1985.

Summary:

The accused was convicted by a judge and jury of five offences relating to a rape. The accused appealed on the grounds of reversible error in conduct of the trial and that some of the convictions were barred by the Kienapple principle.

The Ontario Court of Appeal dismissed the appeal by applying s. 613(1)(b)(iii) of the Criminal Code, finding that, although there was error, there was no miscarriage of justice. Subsequently, the Court of Appeal in an addendum quashed all the convictions except the conviction for rape because of the rule against multiple convictions. The accused appealed his conviction for rape and the Crown appealed the application of the Kienapple principle.

The Supreme Court of Canada allowed both appeals and ordered new trials on all five counts. The court held that the splitting of the Crown's case at trial severely prejudiced the accused and barred the application of s. 613(1)(b)(iii).

Criminal Law - Topic 4516

Procedure - Trial - Special duties of Crown - Splitting Crown's case - Prohibited - On a charge of rape and related offences the accused testified - The Crown then called rebuttal witnesses, who contradicted the complainant's testimony on the lameness of the accused, resulting in a challenge to the accused's credibility on a collateral manner - The Crown also called the complainant in rebuttal, who raised a new matter - The accused was forced to return to the stand to deal with both issues - The Supreme Court of Canada allowed the accused's appeal from conviction and ordered a new trial, ruling that the Crown's improper splitting of its case and sandwiching the defence created intolerable problems for the accused - The court stated that the accused was entitled to decide whether to testify in full awareness of the Crown's complete case.

Criminal Law - Topic 5045

Procedure - Dismissal of appeal if error resulted in no miscarriage of justice - Miscarriage of justice - What constitutes - On a charge of rape and the related offences the accused testified - The Crown then called rebuttal witnesses, who contradicted the complainant's testimony on the lameness of the accused, resulting in a challenge to the accused's credibility on a collateral manner - The Crown also called the complainant in rebuttal, who raised a new matter - The accused was forced to return to the stand to deal with both issues - The Supreme Court of Canada allowed the accused's appeal from conviction and ordered a new trial, ruling that in the circumstances it would be improper to apply s. 613(1)(b)(iii) of the Criminal Code to dismiss the appeal because there was no miscarriage of justice.

Cases Noticed:

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322, refd to. [para. 2].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 613(1)(b)(iii).

Counsel:

Michael Code, for the appellant;

Damien Frost, for the respondent.

This case was heard on March 6, 1985, at Ottawa, Ontario, before Dickson, C.J.C., Beetz, Estey, McIntyre, Chouinard, Lamer and Le Dain, JJ., of the Supreme Court of Canada.

On December 10, 1985, Estey, and Lamer, JJ., delivered the following judgment for the Supreme Court of Canada: