R. v. Warkentin et al., (1976) 9 N.R. 301 (SCC)

• Judge: Beetz and de Grandpré, JJ.
• Court: Supreme Court (Canada)
• Case Date: February 06, 1976
• Jurisdiction: Canada (Federal)
• Citations: (1976), 9 N.R. 301 (SCC);[1977] 2 SCR 355;30 CCC (2d) 1;[1976] 5 WWR 1;9 NR 301;1976 CanLII 190 (SCC);70 DLR (3d) 20

R. v. Warkentin (1976), 9 N.R. 301 (SCC)

MLB headnote and full text

R. v. Warkentin et al.

Indexed As: R. v. Warkentin et al.

Supreme Court of Canada

Laskin, C.J.C., Martland, Judson,

Ritchie, Spence, Pigeon, Dickson,

Beetz and de Grandpré, JJ.

July 12, 1976.

Summary:

This case arose out of a charge of rape against four accused. The female complainant alleged that she was forced into a red mustang car and taken to the woods where she was forced to have sexual intercourse with one of the four accused. The trial judge in his charge to the jury referred to "bits of evidence" capable of being corroborative of the girl's story, such as; the four accused being found together within three hours of the alleged offence; the finding of pine needles in the girl's underclothing; evidence of the presence of a red car; the existence of seminal fluid in the girl's vagina; and an admission by the four accused of being together on the evening in question. The trial judge stated that each of the "pieces of evidence by itself is insignificant and does not prove that there has been a crime committed or that the accused committed them but as I say, you must consider them all together . . ." - see paragraph 14. The jury convicted the four accused.

On appeal to the British Columbia Court of Appeal the appeal was dismissed and the convictions of the accused were affirmed.

On appeal to the Supreme Court of Canada the appeal was dismissed and the judgment of the British Columbia Court of Appeal was affirmed. The Supreme Court of Canada stated that the evidence referred to by the trial judge in his charge to the jury when looked at in its entirety was evidence capable of corroborating the complainant's evidence.

Laskin, C.J.C., Spence, Pigeon and Dickson, JJ., dissenting, in the Supreme Court of Canada, would have allowed the appeal and would have ordered a new trial. Dickson, J., stated that the evidence referred to by the trial judge in his charge to the jury was not corroborative evidence because it either lacked independence or did not show that a crime was committed or that the accused committed the crime - see paragraphs 21 to 43.

Criminal Law - Topic 656

Sexual offences - Charge of rape - Corroboration - What constitutes evidence capable of corroborating the complainant's evidence - The trial judge in his charge to the jury referred to "bits of evidence" capable of being corroborative of the girl's story, such as: the four accused being found together within three hours of the alleged offence; the finding of pine needles in the girl's underclothing; evidence of the presence of a red car which the girl was allegedly forced into; the existence of seminal fluid in the girl's vagina; and an admission by the four accused of being together on the evening in question - See paragraphs 14 and 23 - The Supreme Court of Canada affirmed the conviction of the accused - The Supreme Court of Canada stated that corroborative evidence should be looked at in its entirety and should not be broken into fragments - The Supreme Court of Canada held that the evidence referred to by the trial judge in his charge to the jury was evidence capable of corroborating the complainant's evidence.

Criminal Law - Topic 655

Sexual offences - Corroboration - General principles - The Supreme Court of Canada stated that "corroboration" is not a word of art and that corroboration is a matter of common sense - See paragraph 7 - The Supreme Court of Canada stated that corroborative evidence means no more than evidence tending to confirm other evidence - See paragraph 10.

Courts - Topic 3109

Supreme Court of Canada - Jurisdiction of the Supreme Court of Canada respecting criminal appeals from provincial courts - Appeal based on a dissent in a Court of Appeal - Criminal Code, ss. 606, 618(1) - The Supreme Court of Canada stated that the dissent referred to in s. 618(1) need only be specified in the judge's reasons for judgment - The Supreme Court of Canada held that it had jurisdiction to hear an appeal where the formal judgment did not specify the grounds for dissent - See paragraphs 20 and 40 to 42.

Cases Noticed:

Canning v. The King, [1937] S.C.R. 421, folld. [para. 1]; refd to. [para. 42].

Hubin v. The King, [1927] S.C.R. 442, folld. [paras. 5, 29].

Thomas v. The Queen, [1952] 2 S.C.R. 344, folld. [para. 5].

R. v. Parish, [1968] S.C.R. 466, folld. [para. 6].

R. v. Boyce, 7 O.R.(2d) 561, folld. [para. 6].

R. v. Kanester (1966), 48 C.R. 352, folld. [para. 8].

Director of Public Prosecutions v. Hester, [1972] 3 All E.R. 1056, refd to. [paras. 10, 24].

Director of Public Prosecutions v. Kilbourne, [1973] 1 All E.R. 440, refd to. [paras. 10, 24].

R. v. White, Dubeau and McCullough (1974), 27 C.R.N.S. 66, refd to. [paras. 11, 35].

James v. The Queen (1971), 55 Cr. App. R. 299, folld. [para. 26].

Kolnberger v. The Queen, [1969] S.C.R. 213, folld. [para. 28].

R. v. Reardon, [1945] O.R. 85 (C.A.), folld. [para. 30].

R. v. O'Hara (1946), 88 C.C.C. 74 (B.C.C.A.), refd to. [para. 30].

R. v. Ethier (1959), 124 C.C.C. 332, refd to. [para. 31].

R. v. Steele (1923), 33 B.C.R. 197; [1924] 4 D.L.R. 175; 42 C.C.C. 375, folld. [para. 33].

R. v. Redpath (1926), 46 Cr. App. R. 318 (C.C.A.), folld. [para. 33].

R. v. Boucher, [1963] 2 C.C.C. 241, 270 (B.C.C.A.), folld. [para. 34].

R. v. White, Dubeau and McCullough (1974), 16 C.C.C.(2d) 162 (Ont. C.A.), refd to. [para. 35].

R. v. Basken and Kohl (1974), 28 C.R.N.S. 359 (Sask. C.A.), refd to. [para. 35].

R. v. Flannery, [1969] V.R. 586 (S.C.), refd to. [para. 35].

R. v. Boyd (1975), 25 C.R.N.S. 381 (Ont. C.A.), refd to. [para. 35].

R. v. Donners (1972), 5 W.W.R. 1, refd to. [para. 35].

Macdonald v. The King, [1974] S.C.R. 90, folld. [para. 37].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 21 [para. 21]; sect. 142, sect. 606 [para. 40]; sect. 618(1).

Counsel:

G.L. Murray, Q.C. and Peter Messner, for the appellants;

W.G. Burke-Robertson, Q.C., for the respondent.

This appeal was heard by the Supreme Court of Canada at Ottawa, Ontario on February 6, 1976. Judgment was delivered by the Supreme Court of Canada on July 12, 1976 and the following opinions were filed:

de GRANDPRE, J. - see paragraphs 1 to 19.

BEETZ, J. - see paragraph 20.

DICKSON, J. - dissenting, see paragraphs 21 to 43.

MARTLAND, JUDSON and RITCHIE, JJ., concurred with de GRANDPRE, J.

LASKIN, C.J.C., SPENCE and PIGEON, JJ., concurred with DICKSON, JJ.