R. v. P.E.L., (2013) 348 B.C.A.C. 131 (CA)

• Judge: Hall, D. Smith and Garson, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: December 18, 2013
• Jurisdiction: British Columbia
• Citations: (2013), 348 B.C.A.C. 131 (CA);2013 BCCA 542

R. v. P.E.L. (2013), 348 B.C.A.C. 131 (CA);

    595 W.A.C. 131

MLB headnote and full text

Temp. Cite: [2014] B.C.A.C. TBEd. JA.020

Regina (respondent) v. P.E.L. (appellant)

(CA040074)

Regina (respondent) v. S.C.L. (appellant)

(CA040136; 2013 BCCA 542)

Indexed As: R. v. P.E.L.

British Columbia Court of Appeal

Hall, D. Smith and Garson, JJ.A.

December 18, 2013.

Summary:

The accused, two brothers, were alleged to have been involved during their teenage years in sexual assaults of younger children. The incidents occurred some 30 years ago and involved eight female complainants and two male complainants.

The British Columbia Provincial Court, in a decision with neutral citation 2011 BCPC 486, found the accused guilty on a number of counts. The accused appealed, arguing that the trial judge erred in his treatment of the similar fact evidence. The accused also argued that they were under the age of capacity at the time of the offences.

The British Columbia Court of Appeal, Garson, J.A., dissenting in part, allowed the appeal. The court rejected the age of capacity arguments. The court found that the trial judge erred in his analytical approach and the application of the similar fact evidence. There was a lack of a clear indication as to just what similar act evidence the trial judge was treating as probative of the allegations against the respective accused. The court held that given the pervasive nature of this error, it was inappropriate to utilize the curative provision in s. 686(1)(b)(iii) of the Criminal Code. In the result, the court set aside three of the convictions registered against each of the accused which were dependent on similar fact evidence and ordered a new trial. One of the convictions against one of the brothers which was not totally dependant on similar act evidence was sustained.

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 (in this case s. 486.4 of the Criminal Code and s. 110(1) of the Youth Criminal Justice Act), Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 201

General principles - Common law defences - General - See paragraphs 10 to 12.

Criminal Law - Topic 5045

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - What constitutes a substantial wrong or miscarriage of justice - See paragraphs 35 to 38.

Criminal Law - Topic 5212

Evidence and witnesses - Admissibility and relevancy - Similar acts - General (incl. procedure) - See paragraphs 14 to 38.

Criminal Law - Topic 5213

Evidence and witnesses - Admissibility and relevancy - Similar acts - When admissible - See paragraphs 14 to 38.

Criminal Law - Topic 8706

Juveniles - General principles - Jurisdiction - Court - Age of youth when offence committed - See paragraphs 10 to 12.

Evidence - Topic 1256

Relevant facts - Relevance and materiality - Similar acts - To prove criminal conduct - See paragraphs 14 to 38.

Cases Noticed:

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 13].

R. v. Harrison (1692), 12 How. St. Tr. 833 (Old Bailey (London)), refd to. [para. 20].

Harrison's Trial - see R. v. Harrison.

R. v. Handy (J.), [2002] 2 S.C.R. 908; 290 N.R. 1; 160 O.A.C. 201; 2002 SCC 56, refd to. [paras. 20, 118].

Makin v. New South Wales (Attorney General), [1894] A.C. 57 (P.C.), refd to. [para. 22].

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. 24].

R. v. Butorac (D.M.) (2013), 344 B.C.A.C. 76; 587 W.A.C. 76; 2013 BCCA 421, refd to. [para. 24].

R. v. C.R.B., [1990] 1 S.C.R. 717; 107 N.R. 241; 109 A.R. 81, refd to. [para. 25].

R. v. Kendall, [1962] S.C.R. 469, refd to. [para. 27].

R. v. Nduwayo (A.S.) (2012), 323 B.C.A.C. 249; 550 W.A.C. 249; 2012 BCCA 281, refd to. [para. 46].

R. v. Sheppard (C.), [2002] 1 S.C.R. 869; 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50; 2002 SCC 26, refd to. [para. 46].

R. v. P., [1991] 3 All E.R. 337; 130 N.R. 306 (H.L.), refd to. [para. 48].

Director of Public Prosecutions v. Kilbourne, [1973] A.C. 729, refd to. [para. 49].

R. v. Trochym (S.J.), [2007] 1 S.C.R. 239; 357 N.R. 201; 221 O.A.C. 281, 2007 SCC 6, refd to. [para. 114].

Counsel:

M.B. Rankin, for the appellant P.E.L.;

B.B. Olthuis and H.E. Cochran, for the appellant S.C.L.;

M.T. Ainslie, Q.C., for the respondent.

This appeal was heard on May 22 and 23, 2013, in Vancouver, B.C., before Hall, D. Smith and Garson, JJ.A., of the British Columbia Court of Appeal. The decision of the court was delivered on December 18, 2013, including the following opinions:

Hall, J.A. (D. Smith, J.A., concurring) - see paragraphs 1 to 38;

Garson, J.A., dissenting in part - see paragraphs 39 to 116.