R. v. Bevan (1993), 64 O.A.C. 165 (SCC)
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[French language version follows English language version]
[La version française vient à la suite de la version anglaise]
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Edward Albert Thomas Bevan (appellant) v. R. (respondent)
(22366)
Barry Gerald Griffith (appellant) v. R. (respondent)
(22389)
Indexed As: R. v. Bevan and Griffith
Supreme Court of Canada
Lamer, C.J.C., L’Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin and Major, JJ.
June 17, 1993.
Summary:
The two accused were convicted of second degree murder by a judge and jury. The main evidence against them was given by two other criminals, resulting in the central issue being one of credibility. They appealed their convictions on the grounds of various errors by the trial judge on evidentiary rulings and her charge to the jury.
The Ontario Court of Appeal, Osborne, J.A., dissenting, in a judgment reported 44 O.A.C. 53; 2 O.R.(3d) 381; 63 C.C.C.(3d) 333; 4 C.R.(4th) 245, dismissed the appeal, ruling that the only error by the trial judge did not result in a miscarriage of justice. The accused appealed.
The Supreme Court of Canada, L’Heureux-Dubé, J., dissenting, allowed the appeal and ordered a new trial. The court held that the trial judge erred in failing to give a Vetrovec warning respecting risks of relying on the evidence of the two Crown witnesses and in failing to instruct the jury on the limited evidentiary use of prior inconsistent statements by the witnesses. The court refused to dismiss the appeals under the curative s. 686(1)(b)(iii) of the Criminal Code, because there was a reasonable possibility that the cumulative effect of the errors resulted in a different verdict from the one which would have been made in the absence of the errors.
Criminal Law – Topic 4354
Procedure – Jury charge – Directions regarding pleas or evidence of witnesses, co-accused or accomplices – Two unsavory witnesses with motives to lie testified against the two accused – They were thoroughly cross-examined on the issue of credibility – The trial judge did not give a Vetrovec warning to the jury about the danger of relying on their testimony; although she was invited to do so by both defence counsel – However, she stressed the importance of credibility in the case and the need for care in assessing the witnesses – Further, giving a caution to the jury with necessary reference to the evidence would also hurt the accused – The Supreme Court of Canada held that the trial judge erred in failing to give a Vetrovec warning to the jury – See paragraphs 16, 25 to 37.
Criminal Law – Topic 4375.2
Procedure – Jury charge – Directions regarding prior inconsistent statements – The Supreme Court of Canada held that a trial judge erred in failing to instruct the jury that the prior inconsistent statements of witnesses, unlike those of an accused, may not be used as substantive evidence of the truth of their contents – See paragraphs 45 to 47.
Criminal Law – Topic 5035
Appeals – Indictable offences – Dismissal of appeal if error resulted in no miscarriage of justice – General – A trial judge erred in failing to give the jury a Vetrovec warning and to instruct the jury on the limited evidentiary use of prior inconsistent statements by witnesses – The Supreme Court of Canada refused to apply the curative s. 686(1)(b)(iii) of the Criminal Code to dismiss the accused’s appeal, because the cumulative effect of the trial judge’s errors raised a reasonable possibility that the verdict would have been different if the errors had not been made – See paragraphs 41 to 48.
Criminal Law – Topic 5041
Appeals – Indictable offences – Dismissal of appeal if error resulted in no miscarriage of justice – Where jury charge incomplete or in error – [See
Criminal Law – Topic 5035
].
Criminal Law – Topic 5404
Evidence and witnesses – Witnesses – Credibility – [See
Criminal Law – Topic 4354
].
Criminal Law – Topic 5510
Evidence and witnesses – Evidence of accomplices and codefendants – Warning to jury of danger of reliance on – [See
Criminal Law – Topic 4354
].
Evidence – Topic 507
Presentation of evidence – Failure to object – Effect of – Counsel for the two accused not only did not object to a witness’ letter going before the jury, but wanted the letter to go in – The Supreme Court of Canada held that on appeal it was too late for the accused to object to admission of the letter, but they were still entitled to a proper instruction to the jury on the limited evidentiary use to which the letter could be put – See paragraphs 38 to 40.
Evidence – Topic 4751
Witnesses – Examination – Prior inconsistent statements – Use of and effect of use of – [See
Criminal Law – Topic 4375.2
].
Cases Noticed:
R. v. Vetrovec; R. v. Gaja, [1982] 1 S.C.R. 811; 41 N.R. 606; [1983] 1 W.W.R. 193; 27 C.R.(3d) 304; 136 D.L.R.(3d) 89; 67 C.C.C.(3d) 1, appld. [para. 2].
R. v. Babinski (R.R.) (1991), 50 O.A.C. 341; 67 C.C.C.(3d) 187 (C.A.), affd. [1992] 3 S.C.R. 467; 143 N.R. 387; 59 O.A.C. 39, appld. [para. 28].
R. v. Sellars, [1980] 1 S.C.R. 527; 32 N.R. 70, appld. [para. 32].
Colpitts v. R., [1965] S.C.R. 739, appld. [para. 42].
R. v. Wildman, [1984] 2 S.C.R. 311; 55 N.R. 27; 5 O.A.C. 241, appld. [para. 42].
R. v. P.L.S., [1991] 1 S.C.R. 909; 122 N.R. 321; 90 Nfld. & P.E.I.R. 234; 280 A.P.R. 234, appld. [para. 42].
R. v. Broyles, [1991] 3 S.C.R. 595; 131 N.R. 118; 120 A.R. 189, appld. [para. 42].
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, appld. [para. 42].
R. v. K.G.B., [1993] 1 S.C.R. 740; 148 N.R. 241; 61 O.A.C. 1, refd to. [para. 48].
R. v. Yanover and Gerol (No. 1) (1985), 9 O.A.C. 93; 20 C.C.C.(3d) 300 (C.A.), consd. [para. 58].
R. v. Hobart (1982), 65 C.C.C.(2d) 518 (Ont. C.A.), consd. [para. 68].
Statutes Noticed:
Criminal Code, R.S.C. 1985, c. C-46, sect. 686(1)(b)(iii) [para. 41].
Counsel:
Michelle Fuerst, for the appellant, Bevan;
Clayton C. Ruby and Shaun Nakatsuru, for the appellant, Griffith;
Scott C. Hutchison and Karen Manarin, for the respondent.
Solicitors of Record:
Gold & Fuerst, Toronto, Ontario, for the appellant, Bevan;
Ruby & Edwardh, Toronto, Ontario, for the appellant, Griffith;
Attorney General for Ontario, Toronto, Ontario, for the respondent.
This case was heard on March 5, 1993, before Lamer, C.J.C., L’Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin and Major, JJ., of the Supreme Court of Canada. The decision of the court was delivered on June 17, 1993, in both official languages, including the following opinions:
Major, J. – see paragraphs 1 to 49;
L’Heureux-Dubé, J., dissenting – see paragraphs 50 to 72.
