R. v. Shearing (I.), (2002) 290 N.R. 225 (SCC)

• Judge: McLachlin, C.J.C., L'Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel, JJ.
• Court: Supreme Court (Canada)
• Case Date: July 18, 2002
• Jurisdiction: Canada (Federal)
• Citations: (2002), 290 N.R. 225 (SCC);2002 SCC 58;168 BCAC 161;[2002] SJ No 59 (QL);[2002] 3 SCR 33;[2002] SCJ No 59 (QL);2 CR (6th) 213;AZ-50138668;JE 2002-1354;165 CCC (3d) 225;290 NR 225;214 DLR (4th) 215;[2002] 8 WWR 395;2 BCLR (4th) 201

R. v. Shearing (I.) (2002), 290 N.R. 225 (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: [2002] N.R. TBEd. JL.037

Ivon Shearing (appellant) v. Her Majesty The Queen (respondent) and Attorney General for Ontario, Women's Legal Education and Action Fund and Criminal Lawyers' Association (Ontario) (intervenors)

(27782; 2002 SCC 58; 2002 CSC 58)

Indexed As: R. v. Shearing (I.)

Supreme Court of Canada

McLachlin, C.J.C., L'Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel, JJ.

July 18, 2002.

Summary:

The accused cult leader was charged with 20 counts of sexual offences relating to 11 complainants and spanning the years 1965 to 1990. A jury found the accused guilty on 12 counts involving seven complainants. Five complainants were young female adherents who were led to believe that the sexual conduct between them and the accused was a religious experience. The defence was consent. The other two complainants were the teenaged daughters of the accused's housekeeper, also an adherent. The accused's defence was a denial of any sexual contact with the daughters, who were not adherents. At trial, the evidence on each count had been admitted as similar fact evidence for all counts. The accused appealed.

The British Columbia Court of Appeal, in a judgment reported 133 B.C.A.C. 121; 217 W.A.C. 121, allowed the appeal in part, setting aside the convictions on the counts relating to two of the five adherent com­plainants and ordering a new trial. The convictions respecting the other three ad­herents and the two daughters were affirmed. The accused appealed.

The Supreme Court of Canada, L'Heureux-Dubé and Gonthier, JJ., dissenting in part, allowed the appeal in part. The convictions on the counts respecting one of the two daughters were set aside and a new trial ordered. All other convictions were affirmed.

Civil Rights - Topic 3157

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to just and fair trial - [See Evidence - Topic 3300 ].

Criminal Law - Topic 5204.3

Evidence and witnesses - General - Ad­missibility - Evidence of disposition or propensity of accused - The Supreme Court of Canada stated that "although evidence relating to the accused's disposi­tion will generally be excluded, exceptions to this rule will arise when the probative value of the evidence outweighs its prejudicial effect" - Specifically, the court reiterated the test that "evidence of propensity, while generally inadmissible, may exceptionally be admitted where the probative value of the evidence in relation to an issue in question is so high that it displaces the heavy prejudice which will inevitably inure to the accused where evidence of prior immoral or illegal acts is presented to the jury" - See paragraphs 33 to 34.

Criminal Law - Topic 5209

Evidence and witnesses - Admissibility and relevancy - Prejudicial evidence - [See Criminal Law - Topic 5204.3 ].

Criminal Law - Topic 5212

Evidence and witnesses - Admissibility and relevancy - Similar acts - General - The Supreme Court of Canada stated that "the theory of similar fact evidence turns largely on the improbability of coin­cidence. Collusion, by offering an alter­native explanation for the 'coincidence' of evidence emanating from different wit­nesses, destroys its probative value, and therefore the basis for its admissibility. ... where there is an air of reality to the al­legation of collusion, the trial judge, in assessing the admissibility of the similar fact evidence, must be satisfied on a bal­ance of probabilities that the evidence is not the product of concoction." - See para­graphs 40, 42.

Criminal Law - Topic 5213

Evidence and witnesses - Admissibility and relevancy - Similar acts - When admissible - The Supreme Court of Canada stated that factors to be considered in determining the admissibility of similar fact evidence in­cluded proximity in time of the similar acts, the extent to which the other acts were similar in detail to the charged con­duct, the number of occurrences of the similar acts, the circumstances surrounding or relating to the similar acts, the existence of any distinctive features unifying the incidents of similar acts and intervening events - See paragraphs 51 to 62.

Criminal Law - Topic 5213

Evidence and witnesses - Admissibility and relevancy - Similar acts - When admissible - The Supreme Court of Canada stated that "the cogency of the similar fact evidence in this case is said to arise from the repeti­tive and predictable nature of the [ac­cused's] conduct in closely defined cir­cumstances. There must therefore be shown a persuasive degree of connection between the similar fact evidence and the offence charged in order to be capable of raising the double inferences. The degree of required similarity is assessed in relation to the other evidence in the case. If the cumulative result is simply to paint the [accused] a 'bad person', it is inadmissi­ble." - See paragraph 48.

Criminal Law - Topic 5213

Evidence and witnesses - Admissibility and relevancy - Similar acts - When admissible - The accused cult leader was charged with 20 counts of sexual offences relating to 11 complainants and spanning the years 1965-1990 - A jury found the accused guilty on 12 counts involving seven com­plainants - Five complainants were young female adherents who were led to believe that the sexual conduct between them and the accused was a religious experience - The defence was consent - The other two complainants were the teenaged daughters of the accused's housekeeper, also an adherent - The accused's defence had been a denial of any sexual contact with the daughters, who were not adherents - The Supreme Court of Canada affirmed that the evidence on each count was admissible as similar fact evidence on all counts - Al­though the similar fact evidence had sig­nificant potential to create moral prejudice, the trial judge properly weighed the preju­dicial effect and probative value and did not err in concluding that the probative value prevailed - See paragraphs 28 to 74.

Criminal Law - Topic 5214

Evidence and witnesses - Admissibility and relevancy - Similar acts - Where in­dictment includes several counts - [See all Criminal Law - Topic 5213 ].

Criminal Law - Topic 5416

Evidence and witnesses - Witnesses - Cross-examination of Crown witnesses - [See Evidence - Topic 3300 ].

Evidence - Topic 1257

Relevant facts - Relevance and materiality - Similar acts - To prove course of conduct - [See all Criminal Law - Topic 5213 ].

Evidence - Topic 3300

Documentary evidence - Examination of witnesses as to documents - General - The accused cult leader was charged with 20 counts of sexual offences relating to 11 complainants and spanning the years 1965-1990 - Nine complainants were fe­male adherents - Two complainants were the daughters of the accused's housekeep­er, also an adherent - One of the daughters had kept a diary for eight months during the relevant period - It had been packed away and forgotten - Someone supportive of the accused found the diary by accident and turned it over to the defence without informing the daughter, police or the Crown - The diary made no note of any sexual or physical abuse - After the daughter testified, the accused sought to cross-examine her on the diary, questioning her on the entries and why there were no entries respecting any abuse - The trial judge refused permission to cross-examine on what was "not" in the diary - The Court of Appeal affirmed that the daughter's privacy interests prevailed over the proba­tive value of the disputed line of ques­tioning - The Supreme Court of Canada held that the trial judge erred in applying the O'Connor test (re production of third party documents) to limit the right to cross-examine the daughter on information already lawfully in the accused's posses­sion - The nature and scope of the diary did not raise privacy or other concerns of such importance as to "substantially out­weigh" the accused's fair trial right to cross-examine on the diary (both entries made and entries not made) to test the accuracy and correctness of the daughter's recollection of events 27 years previously -The court rejected the submission that the accused should have returned the diary and sought production under ss. 278.1 to 278.8 of the Criminal Code - See paragraphs 75 to 151.

Evidence - Topic 3474

Documentary evidence - Private documents - Personal papers - Diaries - Cross-exam­ination on - [See Evidence - Topic 3300 ].

Evidence - Topic 4025

Witnesses - General - Credibility - Col­lusion or complicity - [See Criminal Law - Topic 5212 ].

Cases Noticed:

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1, refd to. [paras. 16, 164].

R. v. Seaboyer and Gayme, [1991] 2 S.C.R. 577; 128 N.R. 81; 48 O.A.C. 81; 66 C.C.C.(3d) 321; 7 C.R.(4th) 117; 83 D.L.R.(4th) 193, refd to. [paras. 22, 164].

R. v. Osolin, [1993] 4 S.C.R. 595; 162 N.R. 1; 38 B.C.A.C. 81; 62 W.A.C. 81; 86 C.C.C.(3d) 481; 109 D.L.R.(4th) 478; 26 C.R.(4th) 1; 19 C.R.R.(2d) 93, refd to. [paras. 22, 164].

R. v. Mills (B.J.), [1999] 3 S.C.R. 668; 248 N.R. 101; 244 A.R. 201; 209 W.A.C. 201; 139 C.C.C.(3d) 321; 28 C.R.(5th) 207; [2000] 2 W.W.R. 180; 75 Alta. L.R.(3d) 1, refd to. [paras. 23, 164].

R. v. Handy (J.) (2002), 290 N.R. 1; 160 O.A.C. 201 (S.C.C.), refd to. [para. 30].

R. v. Sweitzer, [1982] 1 S.C.R. 949; 42 N.R. 550; 37 A.R. 294; 68 C.C.C.(2d) 193, refd to. [para. 33].

R. v. C.R.B., [1990] 1 S.C.R. 717; 107 N.R. 241; 109 A.R. 81: 55 C.C.C.(3d) 1; 76 C.R.(3d) 1; [1990] 3 W.W.R. 385; 73 Alta. L.R.(2d) 1, refd to. [para. 33].

R. v. M.H.C., [1991] 1 S.C.R. 763; 123 N.R. 63; 63 C.C.C.(3d) 385, refd to. [para. 35].

R. v. Litchfield, [1993] 4 S.C.R. 333; 161 N.R. 161; 145 A.R. 321; 55 W.A.C. 321; 14 Alta. L.R.(3d) 1; 86 C.C.C.(3d) 97, refd to. [para. 35].

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; 18 C.R.(4th) 261; 79 C.C.C.(3d) 112, refd to. [para. 35].

R. v. Lepage (J.P.), [1995] 1 S.C.R. 654; 178 N.R. 81; 79 O.A.C. 191; 95 C.C.C.(3d) 385; 36 C.R.(4th) 145, refd to. [para. 35].

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; 129 C.C.C.(3d) 321, refd to. [para. 35].

Director of Public Prosecutions v. Board­man, [1975] A.C. 421 (H.L.), refd to. [para. 57].

R. v. L.E.D., [1989] 2 S.C.R. 111; 97 N.R. 321; 50 C.C.C.(3d) 142, refd to. [para. 67].

R. v. Law - see R. v. 2821109 Canada Inc. et al.

R. v. 2821109 Canada Inc. et al. (2002), 281 N.R. 267; 245 N.B.R.(2d) 270; 636 A.P.R. 270 (S.C.C.), refd to. [paras. 88, 159].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291; 14 C.C.C.(3d) 97, refd to. [para. 91].

R. v. Dyment, [1988] 2 S.C.R. 417; 89 N.R. 249; 73 Nfld. & P.E.I.R. 13; 229 A.P.R. 13; 45 C.C.C.(3d) 244; 10 M.V.R.(2d) 1; 66 C.R.(3d) 348; 55 D.L.R.(4th) 503, refd to. [para. 91].

R. v. Colarusso, [1994] 1 S.C.R. 20; 162 N.R. 321; 69 O.A.C. 81; 87 C.C.C.(3d) 321, refd to. [para. 91].

R. v. Morris, [1983] 2 S.C.R. 190; 48 N.R. 341, refd to. [para. 110].

R. v. R.M. (1997), 93 B.C.A.C. 81; 151 W.A.C. 81 (C.A.), refd to. [para. 119].

R. v. D.D., [2000] 2 S.C.R. 275; 259 N.R. 156; 136 O.A.C. 201, refd to. [paras. 121, 173].

R. v. Bevan and Griffith, [1993] 2 S.C.R. 599; 154 N.R. 245; 64 O.A.C. 165; 104 D.L.R.(4th) 180; 82 C.C.C.(3d) 310; 21 C.R.(4th) 277, refd to. [para. 151].

R. v. Jolivet (D.), [2000] 1 S.C.R. 751; 254 N.R. 1, refd to. [para. 151].

R. v. Plant (R.S.), [1993] 3 S.C.R. 281; 157 N.R. 321; 145 A.R. 104; 55 W.A.C. 104; 84 C.C.C.(3d) 203, refd to. [para. 166].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7, sect. 11(d) [para. 12].

Criminal Code, R.S.C. 1985, c. C-46, sect. 265(3), sect. 278.1, sect. 278.2(1) [para. 12].

Authors and Works Noticed:

Brown, Ray Andrews, The Law of Per­sonal Property (2nd Ed. 1955), p. 9 [para. 160].

LaVacca, Joyce B., Protecting the Contents of a Personal Diary from Unwanted Eyes (1988), 19 Rutgers L.J. 389, pp. 389 to 390 [para. 167].

Wigmore, John Henry, Wigmore on Evi­dence (Chadbourn Rev. 1970), vol. IIIA, para. 1042 [para. 119].

Wigmore, John Henry, Wigmore on Evi­dence (Tillers Rev. 1983), vol. 1A, pp. 969, 975 [para. 110].

Counsel:

Richard C.C. Peck, Q.C., David M. Paci­occo and Nikos Harris, for the appellant;

William F. Ehrcke, Q.C., and Jennifer Duncan, for the respondent;

Leslie Paine and Christine Bartlett-Hughes, for the intervenor, Attorney General for Ontario;

Sheilah Martin, Q.C., and Ritu Khullar, for the intervenor, Women's Legal Educa­tion and Action Fund (LEAF);

Frank Addario, for the intervenor, Crim­inal Lawyers' Association (Ontario.).

Solicitors of Record:

Peck and Co., Vancouver, B.C., for the appellant;

Ministry of the Attorney General, Van­couver, B.C., for the respondent;

Ministry of the Attorney General, Toronto, Ontario, for the intervenor, Attorney General for Ontario;

Sheilah Martin, Calgary, Alberta, and Chivers Greckol & Kanee, Edmonton, Alberta, for the intervenor, Women's Legal Education and Action Fund (LEAF);

Sack Goldblatt Mitchell, Toronto, Ontario, for the intervenor, Criminal Lawyers' Association (Ontario).

This appeal was heard on October 9, 2001, before McLachlin, C.J.C., L'Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel, JJ., of the Su­preme Court of Canada.

On July 18, 2002, the judgment of the Supreme Court of Canada was delivered in both official languages and the following opinions were filed:

Binnie, J. (McLachlin, C.J.C., Iacobucci, Major, Bastarache, Arbour and LeBel, JJ., concurring) - See paragraphs 1 to 153;

L'Heureux-Dubé, J. (Gonthier, J., con­curring), dissenting in part - See para­graphs 154 to 186.