R. v. Shearing (I.), 2000 BCCA 83

JudgeCumming, Rowles and Donald, JJ.A.
CourtCourt of Appeal (British Columbia)
Case DateFebruary 04, 2000
JurisdictionBritish Columbia
Citations2000 BCCA 83;(2000), 133 B.C.A.C. 121 (CA)

R. v. Shearing (I.) (2000), 133 B.C.A.C. 121 (CA);

    217 W.A.C. 121

MLB headnote and full text

Temp. Cite: [2000] B.C.A.C. TBEd. MR.007

Regina (respondent) v. Ivon Shearing (appellant)

(CA024142; 2000 BCCA 83)

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

British Columbia Court of Appeal

Cumming, Rowles and Donald, JJ.A.

February 4, 2000.

Summary:

The accused was charged with 20 counts of sexual offences relating to 11 complain­ants and spanning the years 1965-1990. A jury returned verdicts of guilty on 12 counts involving seven complainants and acquitted the accused of four counts involving four complainants. The Crown entered a stay of proceedings on one count. The trial judge directed verdicts of acquittal on three counts and directed conditional stays on the convic­tions of three counts of gross indecency under the Kienapple principle. The accused appealed the convictions.

The British Columbia Court of Appeal allowed the appeal in part respecting two of the complainants' counts and ordered a new trial.

Editor's Note: For other cases involving this accused and these charges, see [1997] B.C.T.C. Uned. J39; [1997] B.C.T.C. Uned. J40; [1997] B.C.T.C. Uned. I17 and [1998] B.C.T.C. Uned. 697.

Civil Rights - Topic 3133

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right of accused to make full answer and defence - [See Evi­dence - Topic 3300 ].

Criminal Law - Topic 673

Sexual offences, public morals and dis­orderly conduct - Sexual offences - Sex­ual assault - Jury charge - The accused was charged with sexual offences - In the jury charge, the judge did not distinguish between those offences occurring before the 1983 Criminal Code amendment and those arising thereafter - The amendment added the exercise of authority to those factors which could vitiate consent in assault cases - The judge told the jury that they could consider authority as a vitiating element on all charges where consent was an issue - This was incorrect for the pre-amendment counts - The British Columbia Court of Appeal held that the error affected only the indecent assault counts against two complainants - The guilty verdicts on those counts did not influence the jury in convicting on the other counts -See paragraphs 11 to 16, 98 to 109.

Criminal Law - Topic 4352.1

Procedure - Jury charge - Directions regar­ding similar fact evidence - A relig­ious leader was charged with sexual of­fences against some of his young followers - Defence counsel divided the complain­ants into two groups: the two G sisters and those remaining - The trial judge, in ref­using a defence motion to sever the counts accordingly, held that evidence respecting the G counts was admissible as similar fact evidence respecting the remaining com­plainants - The accused complained that the trial judge in his jury charge failed to list the dissimilarities in the similar fact evidence - The British Columbia Court of Appeal held that this flaw in the charge was an imperfection only - The jury here did not need a review of the particular dissimilarities, where both sides thoroughly reviewed the evidence - See paragraphs 54 to 63, 68 to 70.

Criminal Law - Topic 4737.1

Procedure - Information or indictment - Charge or count - Indictable offences - Severing counts in an indictment - [See Criminal Law - Topic 5214 ].

Criminal Law - Topic 5214

Evidence - Witnesses - Admissibility and relevancy - Similar acts - Where indict­ment includes several counts - The accused was charged with 20 counts of sexual offences respecting 11 complainants from 1965-1990 - Defence counsel divided the complainants into two groups: the two G sisters and those remaining - The British Columbia Court of Appeal affirmed the trial judge's refusal of a defence motion to sever the counts relating to these two groups - Since there was sufficient simi­larity between the counts to admit the evidence of one against the other as similar fact evidence, all counts should be heard together - The G sisters' evidence was highly relevant to the fundamental issue respecting the other complainants (consent) - The similar fact evidence could only be used in assessing the com­plainants' credi­bility - See paragraphs 5 to 8, 54 to 67.

Criminal Law - Topic 5416

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

Evidence - Topic 3300

Documentary evidence - Examination of witnesses as to documents - General - A religious leader was charged with sexual offences against some young followers - Defence counsel cross-examined a com­plainant on her diary during an eight month period while she lived with the accused at a religious centre - The accused alleged that defence counsel was unduly inhibited by the trial judge in ex­ploring the question why the complainant made no entry about what the accused was allegedly doing to her - The British Col­umbia Court of Appeal affirmed that the complainant's privacy interests should prevail over the probative value of the disputed line of questioning - The restric­tion on cross-examination did not impede the accused's right to full answer and defence in the Charter, ss. 7 and 11(d) - See paragraphs 9 to 10, 71 to 97.

Evidence - Topic 3474

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

Cases Noticed:

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322; 15 C.C.C.(2d) 524; 26 C.R.N.S. 1; 44 D.L.R.(3d) 351, refd to. [para. 2].

R. v. O'Connor (1998), 14 C.R.(5th) 384 (C.A.), refd to. [para. 12].

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, refd to. [para. 57].

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. 58].

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; [1996] 2 W.W.R. 153; 130 D.L.R.(4th) 235; 103 C.C.C.(3d) 1; 44 C.R.(4th) 1, refd to. [para. 76].

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. [para. 77].

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, consd. [para. 79].

R. v. Potvin, [1989] 1 S.C.R. 525; 93 N.R. 42; 21 Q.A.C. 258; 47 C.C.C.(3d) 289; 68 C.R.(3d) 193, refd to. [para. 79].

R. v. Mills (B.J.) (1999), 248 N.R. 101; 244 A.R. 201; 209 W.A.C. 201 (S.C.C.), refd to. [para. 83].

Vickers v. Rondpre (No. 3) (1994), 48 B.C.A.C. 250; 78 W.A.C. 250; 95 B.C.L.R.(2d) 322 (C.A.), refd to. [para. 88].

R. v. Plant (R.S.), [1993] 3 S.C.R. 281; 157 N.R. 321; 145 A.R. 104; 55 W.A.C. 104, refd to. [para. 91].

R. v. Jobidon, [1991] 2 S.C.R. 714; 128 N.R. 321; 49 O.A.C. 83, refd to. [para. 103].

R. v. L.B. (1998), 106 B.C.A.C. 154; 172 W.A.C. 154 (C.A.), refd to. [para. 104].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 265(3) [para. 98].

Authors and Works Noticed:

LaVacca, Joyce B., Protecting the Contents of a Personal Diary from Unwanted Eyes (1988), 19 Rutgers Law Journal 389, pp. 389, 390 [para. 89].

Counsel:

R.C.C. Peck, Q.C., and M. Tammen and N. Harris, for the appellant;

W. Smart, Q.C., for the respondent.

This appeal was heard at Vancouver, British Columbia, on November 3 and 4, 1999, before Cumming, Rowles and Donald, JJ.A., of the British Columbia Court of Appeal.

On February 4, 2000, Donald, J.A., delivered the following decision for the Court of Appeal.

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9 practice notes
  • R. v. Shearing (I.), (2002) 168 B.C.A.C. 161 (SCC)
    • Canada
    • Canada (Federal) Supreme Court (Canada)
    • July 18, 2002
    ...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 an......
  • R. v. Shearing (I.), (2002) 290 N.R. 225 (SCC)
    • Canada
    • Canada (Federal) Supreme Court (Canada)
    • July 18, 2002
    ...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 an......
  • R. v. E.B., (2002) 154 O.A.C. 167 (CA)
    • Canada
    • Ontario Court of Appeal (Ontario)
    • October 1, 2001
    ...C.R.(5th) 180 (S.C.), refd to. [para. 38]. R. v. Kasook, [2001] 2 W.W.R. 683 (N.W.T.S.C.), refd to. [para. 38]. R. v. Shearing (I.) (2000), 133 B.C.A.C. 121; 217 W.A.C. 121; 143 C.C.C.(3d) 233 (C.A.), leave to appeal granted (2000), 263 N.R. 399; 151 B.C.A.C. 259; 249 W.A.C. 259; 147 C.C.C.......
  • R. v. Ramsay (F.J.), (2001) 203 Sask.R. 53 (CA)
    • Canada
    • Saskatchewan Court of Appeal (Saskatchewan)
    • November 13, 2000
    ...R. v. O'Connor (H.P.) (1998), 105 B.C.A.C. 56; 171 W.A.C. 56; 123 C.C.C.(3d) 487 (C.A.), refd to. [para. 13]. R. v. Shearing (L.) (2000), 133 B.C.A.C. 121; 217 W.A.C. 121; 31 C.R.(5th) 177 (C.A.), refd to. [para. R. v. L.B. (1998), 106 B.C.A.C. 154; 172 W.A.C. 154 (Yuk. C.A.), refd to. [par......
  • Request a trial to view additional results
8 cases
  • R. v. Shearing (I.), (2002) 168 B.C.A.C. 161 (SCC)
    • Canada
    • Canada (Federal) Supreme Court of Canada
    • July 18, 2002
    ...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 an......
  • R. v. Shearing (I.), (2002) 290 N.R. 225 (SCC)
    • Canada
    • Canada (Federal) Supreme Court of Canada
    • July 18, 2002
    ...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 an......
  • R. v. E.B., (2002) 154 O.A.C. 167 (CA)
    • Canada
    • Ontario Court of Appeal (Ontario)
    • October 1, 2001
    ...C.R.(5th) 180 (S.C.), refd to. [para. 38]. R. v. Kasook, [2001] 2 W.W.R. 683 (N.W.T.S.C.), refd to. [para. 38]. R. v. Shearing (I.) (2000), 133 B.C.A.C. 121; 217 W.A.C. 121; 143 C.C.C.(3d) 233 (C.A.), leave to appeal granted (2000), 263 N.R. 399; 151 B.C.A.C. 259; 249 W.A.C. 259; 147 C.C.C.......
  • R. v. Ramsay (F.J.), (2001) 203 Sask.R. 53 (CA)
    • Canada
    • Saskatchewan Court of Appeal (Saskatchewan)
    • November 13, 2000
    ...R. v. O'Connor (H.P.) (1998), 105 B.C.A.C. 56; 171 W.A.C. 56; 123 C.C.C.(3d) 487 (C.A.), refd to. [para. 13]. R. v. Shearing (L.) (2000), 133 B.C.A.C. 121; 217 W.A.C. 121; 31 C.R.(5th) 177 (C.A.), refd to. [para. R. v. L.B. (1998), 106 B.C.A.C. 154; 172 W.A.C. 154 (Yuk. C.A.), refd to. [par......
  • Request a trial to view additional results
1 books & journal articles
  • Tessling on my brain: the future of lie detection and brain privacy in the criminal justice system.
    • Canada
    • Canadian Journal of Criminology and Criminal Justice Vol. 50 No. 3, June 2008
    • June 1, 2008
    ...R. v. Peddle, [2006] N.J. No. 41 (N.L. Prov. Ct.). R. v. Plant, [1993] 3S.C.R. 281. R. v. Rodriguez, [1993] 3S.C.R. 519. R. v. Shearing, 2000 BCCA 83. R. v. Stasiuk (1982), 16 M.V.R. R. v. Tessling, 120031 O.J. No. 186 and 12004] 3 S.C.R. 432. R. v. Tran, 2007 ABPC 90. Ian Kerr Faculty of L......

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