R. v. Mezzo, (1986) 68 N.R. 1 (SCC)

• Judge: Dickson, C.J.C., Beetz, Estey, McIntyre, Chouinard, Lamer, Wilson, Le Dain and La Forest, JJ.
• Court: Supreme Court of Canada
• Case Date: Thursday June 26, 1986
• Jurisdiction: Canada (Federal)
• Citations: (1986), 68 N.R. 1 (SCC);[1986] ACS no 40;30 DLR (4th) 161;43 Man R (2d) 161;1986 CanLII 16 (SCC);27 CCC (3d) 97;[1986] SCJ No 40 (QL);[1986] 4 WWR 577;68 NR 1;52 CR (3d) 113;[1986] 1 SCR 802

R. v. Mezzo (1986), 68 N.R. 1 (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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R. v. Mezzo

(17958)

Indexed As: R. v. Mezzo

Supreme Court of Canada

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

June 26, 1986.

Summary:

The accused was charged with rape and tried before a judge and jury. Identification of the accused was in issue. The trial judge granted the accused's motion for a directed verdict of acquittal, notwithstanding that there was some evidence as to the identification of the accused. The Crown appealed.

The Manitoba Court of Appeal, Matas, J.A., dissenting, in a decision reported 22 Man. R. 223, allowed the Crown's appeal, set aside the acquittal and ordered a new trial. The accused appealed.

The Supreme Court of Canada, Lamer and La Forest, JJ., dissenting, dismissed the appeal and affirmed the order for a new trial.

Criminal Law - Topic 4359

Procedure - Jury charge - Directed verdict of "not guilty" - In a rape case identification of the accused was in issue - The trial judge directed a verdict of acquittal, notwithstanding that there was some evidence as to identification - The Supreme Court of Canada affirmed that the judge erred in directing a verdict, where there was some evidence upon which a reasonable jury properly instructed could convict the accused - The Court held that the direct evidence of identification should have been left to the jury with the proper caution - See paragraphs 1 to 17, 23 to 43.

Criminal Law - Topic 4359

Procedure - Jury charge - Directed verdict of "not guilty" - Test for directed verdict - The Supreme Court of Canada held that the test for a directed verdict remains as it was enunciated by the Court in United States of America v. Shephard, 9 N.R. 215: a judge should not direct a verdict of acquittal where there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty - See paragraphs 1 to 43 - The Court held also that a trial judge has no power to weigh or consider the quality of evidence and remove it from the jury's consideration - See paragraph 12.

Criminal Law - Topic 4361

Procedure - Jury charge - Directions regarding identification - In a rape case identification of the accused was in issue - The trial judge directed a verdict of acquittal, notwithstanding that there was some evidence as to identification - The Supreme Court of Canada affirmed that the judge erred in directing a verdict, where there was some evidence upon which a reasonable jury properly instructed could convict the accused - The Court held that the direct evidence of identification should have been left to the jury with the proper caution - See paragraphs 1 to 17, 23 to 43.

Criminal Law - Topic 4361

Procedure - Jury charge - Directions regarding identification - The Supreme Court of Canada discussed how a jury might be cautioned respecting evidence of visual identification of an accused - See paragraphs 15 to 17.

Criminal Law - Topic 4440

Procedure - Verdicts - Directed verdicts - The Supreme Court of Canada set out the proper test to be applied by a trial judge on an application for a directed verdict of acquittal at the close of the Crown's case - See paragraphs 1 to 43.

Criminal Law - Topic 5246

Evidence - Identification - Line-up - General - A rape victim identified her assailant when she was taken to a courtroom to view a number of prisoners as they were brought into court - Two judges of the Supreme Court of Canada held that the line-up was improper, but it was not so improper as to be beyond the power of the jury to handle, given the proper caution - See paragraphs 18 to 63.

Criminal Law - Topic 5249

Evidence - Identification - Role of police - Improper police procedure - Two judges of the Supreme Court of Canada discussed the impact of improper police procedures on identification evidence - The judges concluded, inter alia, that improprieties in a police line-up to identify an accused do not necessarily destroy otherwise good identification evidence, because damage can often be remedied by a proper caution by the judge - See paragraphs 18 to 63.

Criminal Law - Topic 5253

Evidence - Identification - Proof of - In a rape case identification of the accused was in issue - The trial judge directed a verdict of acquittal, notwithstanding that there was some evidence as to identification - The Supreme Court of Canada affirmed that the judge erred in directing a verdict, where there was some evidence upon which a reasonable jury properly instructed could convict the accused - The court held that the direct evidence of identification should have been left to the jury with the proper caution - See paragraphs 1 to 17, 23 to 43.

Cases Noticed:

R. v. Duhamel, [1981] 1 W.W.R. 22; 24 A.R. 215, consd. [paras. 3, 15, 25, 78].

R. v. Turnbull, [1976] 3 All E.R. 549, consd. [paras. 3, 4, 15, 17, 21-25, 37-43, 78].

R. v. Comba, [1938] S.C.R. 396, consd. [paras. 4, 10-14, 25-39, 70, 73, 77, 83].

United States of America v. Shephard, [1977] 2 S.C.R. 1067; 9 N.R. 215, consd. [paras. 6-12, 26-44, 58, 63, 68-84].

R. v. Atwood and Robbins (1788), 1 Leach 464; 168 E.R. 334, consd. [para. 8].

Metropolitan Railway Co. v. Jackson, [1877] 3 A.C. 193, consd. [para. 8].

R. v. Morabito, [1949] S.C.R. 172, consd. [paras. 8, 28, 31].

R. v. Dowsey et al. (1866), 6 N.S.R. 93, consd. [para. 9].

R. v. Lloyd (1890), 19 O.R. 352, consd. [para. 9].

Girvin v. R. (1911), 45 S.C.R. 167, consd. [para. 9].

Fraser v. R., [1936] S.C.R. 1, consd. [para. 11].

R. v. Sawrenko (1971), 4 C.C.C.(2d) 338, consd. [para. 13].

R. v. Paul, [1977] 1 S.C.R. 181; 4 N.R. 435, consd. [paras. 13, 30, 33, 36].

Lavoie v. R., [1977] 1 S.C.R. 193, consd. [paras. 13, 30, 36].

R. v. Cooper, [1978] 1 S.C.R. 860; 14 N.R. 181, consd. [para. 14].

R. v. Hodge (1838), 2 Lewin 227, consd. [paras. 10-14, 29, 30, 36].

John v. R., [1971] S.C.R. 781, refd to. [para. 30].

R. v. Kyling, [1970] S.C.R. 953, consd. [para. 31].

Feeley v. R., [1953] 1 S.C.R. 59, consd. [para. 35].

Commonwealth of Puerto Rico v. Hernandez, [1973] F.C. 1206, consd. [paras. 35, 38, 39, 73, 76, 82].

R. v. Smierciak (1946), 87 C.C.C. 175, consd. [paras. 47, 48, 86].

R. v. Faryna (1982), 18 Man.R.(2d) 185 (C.A.), consd. [paras. 50, 51, 86].

R. v. Sutton, [1970] 2 O.R. 358; 3 C.C.C. 152 (C.A.), consd. [paras. 50, 52, 78].

R. v. Smith (1975), 12 N.S.R.(2d) 289; 6 A.P.R. 289 (C.A.), consd. [paras. 50-53].

R. v. Engel (1981), 9 Man.R.(2d) 279 (C.A.), consd. [paras. 50, 54].

R. v. Simpson (No. 2) (1981), 58 C.C.C.(2d) 122 (Ont. C.A.), consd. [paras. 50, 55-57, 61, 62].

R. v. Marcoux, [1976] 1 S.C.R. 763; 4 N.R. 64, consd. [paras. 59-61].

R. v. Wray, [1971] S.C.R. 272, refd to. [para. 62].

R. v. Spatola, [1970] 4 C.C.C. 241 (Ont. C.A.), refd to. [para. 78].

R. v. Atfield (1983), 42 A.R. 294 (Alta. C.A.), refd to. [para. 78].

R. v. Knox, [1968] 2 C.C.C. 348, consd. [para. 13].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, sect. 24(1) [para. 62].

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 475(1) [para. 6].

Authors and Works Noticed:

Devlin, Lord, Trial by Jury (Revised Ed. 1966), pp. 62, 63 [para. 80].

Fish, Morris, Committal for Trial: Some Evidence is Not Sufficient, 39 R. du B. 607, p. 618 [para. 81].

Wills on Circumstantial Evidence [para. 11].

Counsel:

John Scurfield, for the appellant;

Brian Kaplan, for the respondent.

This appeal was heard on February 20, 1985, before Dickson, C.J.C., Beetz, Estey, McIntyre, Chouinard, Lamer, Wilson, Le Dain and La Forest, JJ., of the Supreme Court of Canada.

The following decision of the Supreme Court of Canada was delivered on June 26, 1986, including the following opinions:

McIntyre, J. (Beetz, Estey, Chouinard and Le Dain, JJ., concurring) - see paragraphs 1 to 17;

Wilson, J., (Dickson, C.J.C., concurring) - see paragraphs 18 to 63;

Lamer, J., dissenting (La Forest, J., concurring) - see paragraphs 64 to 91.