R. v. L.B.; R. v. M.A.G., (1997) 102 O.A.C. 104 (CA)

• Judge: McMurtry, C.J.O., Doherty and Charron, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: July 18, 1997
• Jurisdiction: Ontario
• Citations: (1997), 102 O.A.C. 104 (CA);1997 CanLII 3187 (NS CA);1997 CanLII 3187 (ON CA);35 OR (3d) 35;116 CCC (3d) 481;9 CR (5th) 38;[1997] CarswellOnt 2711;[1997] OJ No 3042 (QL);102 OAC 104

R. v. L.B. (1997), 102 O.A.C. 104 (CA)

MLB headnote and full text

Temp. Cite: [1997] O.A.C. TBEd. AU.013

Her Majesty the Queen (respondent) v. L.B. (appellant)

(C24285)

Her Majesty the Queen (respondent) v. M.A.G. (appellant)

(C21651)

Indexed As: R. v. L.B.; R. v. M.A.G.

Ontario Court of Appeal

McMurtry, C.J.O., Doherty and Charron, JJ.A.

July 18, 1997.

Summary:

L.B. was convicted of sexual assault and sentenced to six years' imprisonment. In unrelated proceedings, M.A.G. was convicted of two counts of indecent assault and one count of sexual assault and was sentenced to two years less a day. Both accused appealed their convictions raising issues concerning the admissibility of similar fact evidence at each of their trials. L.B. also applied for leave to appeal his sentence.

The Ontario Court of Appeal dismissed the conviction appeals. The court granted L.B. leave to appeal his sentence but dismissed the appeal.

Criminal Law - Topic 5213

Evidence and witnesses - Admissibility and relevancy - Similar acts - When admissible - The Ontario Court of Appeal discussed in detail the application of the similar fact evidence rule - See paragraphs 8 to 50.

Criminal Law - Topic 5213

Evidence and witnesses - Admissibility and relevancy - Similar acts - When admissible - The Ontario Court of Appeal stated that appellate courts must show a high degree of deference to a trial judge's decision on the application of the similar fact evidence rule - See paragraph 51.

Criminal Law - Topic 5213

Evidence and witnesses - Admissibility and relevancy - Similar acts - When admissible - L.B. was convicted of sex­ually assaulting his stepdaughter - She claimed to have been repeatedly assaulted when she was between the ages of 8 to 12 - During the relevant time, she lived with the accused and her mother, the accused's second wife - The abuse consisted of numerous inci­dents of fondling and included several acts of penetration - The trial judge admitted evidence from three other women who alleged that they were abused by the accused when they were young girls - Two were his natural daughters by his first marriage and the third was the younger sister of his first wife - The accused appealed arguing that the similar fact evidence was improperly admitted - The Ontario Court of Appeal dismissed the appeal - See paragraphs 1 to 3, 52 to 67.

Criminal Law - Topic 5213

Evidence and witnesses - Admissibility and relevancy - Similar acts - When admissible - M.A.B., a school teacher, was convicted of two counts of indecent assault and one count of sexual assault respecting three complainants (former students) - Similar fact evidence from other students was admitted at trial - The accused appealed arguing that the similar fact evidence should not have been admitted - The Ontario Court of Appeal dismissed the appeal - See paragraphs 4, 5, 73 to 83.

Criminal Law - Topic 5816.3

Sentencing - Sentencing procedure and rights of the accused - On new trial - [See Criminal Law - Topic 5932 ].

Criminal Law - Topic 5932

Sentence - Sexual assault - L.B. was con­victed of sexually assaulting his step­daugh­ter and sentenced to four years' imprison­ment - On appeal, the conviction was set aside and a new trial ordered - Following a new trial, the accused was convicted and sentenced to six years' im­prisonment - The accused appealed the sentence - The Ontario Court of Appeal dismissed the sentence appeal - The court discussed whether it was appropriate for a trial judge to impose a higher sentence following a second trial - See paragraphs 68 to 72.

Evidence - Topic 1256

Relevant facts, relevance and materiality - Similar acts - To prove criminal conduct -[See all Criminal Law - Topic 5213 ].

Cases Noticed:

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322, refd to. [para. 4, footnote 1].

R. v. Lepage (J.P.), [1995] 1 S.C.R. 654; 178 N.R. 81; 79 O.A.C. 191, refd to. [para. 8, footnote 3].

R. v. F.F.B., [1993] 1 S.C.R. 697; 148 N.R. 161; 120 N.S.R.(2d) 1; 332 A.P.R. 1, refd to. [para. 8, footnote 3].

R. v. M.H.C., [1991] 1 S.C.R. 763; 123 N.R. 63, refd to. [para. 8, footnote 3].

R. v. C.R.B., [1990] 1 S.C.R. 717; 107 N.R. 241; 109 A.R. 81, refd to. [para. 8, footnote 3].

R. v. L.E.D., [1989] 2 S.C.R. 111; 97 N.R. 321, refd to. [para. 8, footnote 3].

R. v. Morin, [1988] 2 S.C.R. 345; 88 N.R. 161; 30 O.A.C. 81, refd to. [para. 8, footnote 3].

R. v. Robertson, [1987] 1 S.C.R. 918; 75 N.R. 6; 20 O.A.C. 200, refd to. [para. 8, footnote 3].

Makin v. New South Wales (Attorney General), [1894] A.C. 57 (P.C.), refd to. [para. 8, footnote 4].

R. v. Boardman, [1975] A.C. 421 (H.L.), refd to. [para. 8, footnote 6].

R. v. Seaboyer and Gayme, [1991] 2 S.C.R. 577; 128 N.R. 81; 48 O.A.C. 81, refd to. [para. 9, footnote 8].

R. v. Sweitzer, [1982] 1 S.C.R. 949; 42 N.R. 550; 37 A.R. 294, refd to. [para. 14, footnote 11].

R. v. Corbett, [1988] 1 S.C.R. 670; 85 N.R. 81, refd to. [para. 16, footnote 12].

R. v. Morris, [1983] 2 S.C.R. 190; 48 N.R. 341, refd to. [para. 16, footnote 12].

R. v. Verney (M.) (1993), 67 O.A.C. 279; 87 C.C.C.(3d) 363 (C.A.), refd to. [para. 26, footnote 18].

R. v. Burke (J.) (No. 3), [1996] 1 S.C.R. 474; 194 N.R. 247; 139 Nfld. & P.E.I.R. 147; 433 A.P.R. 147, refd to. [para. 28, footnote 19].

R. v. McNamara (No. 1) (1981), 56 C.C.C.(2d) 193 (Ont. C.A.), refd to. [para. 28, footnote 20].

R. v. Jones (T.J.) (1988), 29 O.A.C. 219; 44 C.C.C.(3d) 248 (C.A.), refd to. [para. 28, footnote 20].

R. v. P., [1991] 2 A.C. 447; 130 N.R. 306 (H.L.), refd to. [para. 34, footnote 26].

R. v. Litchfield, [1993] 4 S.C.R. 333; 161 N.R. 161; 145 A.R. 321; 55 W.A.C. 321, refd to. [para. 38, footnote 30].

R. v. Proctor (1992), 75 Man.R.(2d) 217; 6 W.A.C. 217; 69 C.C.C.(3d) 436 (C.A.), refd to. [para. 40, footnote 32].

R. v. L.B. (1993), 64 O.A.C. 15; 82 C.C.C.(3d) 189 (C.A.), refd to. [para. 52, footnote 41].

R. v. Green, [1988] 1 S.C.R. 228; 82 N.R. 194; 52 Man.R.(2d) 64, refd to. [para. 61, footnote 42].

R. v. R.S.W. (1992), 78 Man.R.(2d) 275; 16 W.A.C. 275; 74 C.C.C.(3d) 1 (C.A.), refd to. [para. 70, footnote 45].

R. v. Garrell (1978), 18 S.A.S.R. 308 (S.C. in banco), refd to. [para. 70, foot­note 46].

Authors and Works Noticed:

Andrews and Hirst, Criminal Evidence (1987), para. 15.37 [para. 43, footnote 35].

Cross on Evidence (8th Ed. 1995), p. 361 [para. 6, footnote 2].

Delisle, Three Recent Decisions of the Supreme Court of Canada Affecting the Law of Similar Fact Evidence (1992), 16 Prov. Judges J. 13, p. 15 [paras. 22, 46, foot­notes 17, 39].

McCormick, Handbook on the Law of Evidence (4th Ed. 1992), pp. 825 to 830 [para. 21, footnote 16].

Paciocco and Stuesser, Essentials of Cana­dian Law: The Law of Evidence, pp. 4 [para. 12, footnote 10]; 19 [para. 16, footnote 14]; 33 [para. 18, footnote 15]; 34 [para. 21, footnote 16]; 37 [para. 43, footnote 34]; 38 [para. 44, footnote 37].

Rosenberg, Similar Acts and Evidence of Other Extrinsic Misconduct, National Criminal Law Program, Criminal Evi­dence (1994), pp. 4 [para. 31, footnote 24]; 14 to 15 [para. 38, footnote 31].

Counsel:

Bruce Duncan, for the appellant;

Jamie Klukach, for the respondent.

These appeals were heard on December 17 and 18, 1996, by McMurtry, C.J.O., Doherty and Charron, JJ.A., of the Ontario Court of Appeal. The following decision of the Court of Appeal was delivered on July 18, 1997, by Charron, J.A.