R. v. C.L.Y. (2008), 370 N.R. 284 (SCC)

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]


Temp. Cite: [2008] N.R. TBEd. JA.001

C.L.Y. (appellant) v. Her Majesty the Queen (respondent)

(31811; 2008 SCC 2; 2008 CSC 2)

Indexed As: R. v. C.L.Y.

Supreme Court of Canada

Bastarache, Binnie, Deschamps, Fish, Abella, Charron and Rothstein, JJ.

January 25, 2008.


The accused was convicted of two counts of sexual assault. He appealed from the convictions.

The Manitoba Court of Appeal, Twaddle, J.A., dissenting, in a decision reported at 208 Man.R.(2d) 202; 383 W.A.C. 202, dismissed the appeal. The accused appealed.

The Supreme Court of Canada, per Abella, Bastarache, Charron and Rothstein, JJ., allowed the appeal on the basis of a misapprehension of the evidence by the trial judge. Binnie, Deschamps and Fish, JJ., agreed with the majority regarding the trial judge’s misapprehension of the evidence, but would also have allowed the appeal on the basis that the trial judge misapplied the burden of proof. The accused’s convictions were set aside and a new trial was ordered.

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, Maritime Law Book’s editorial policy or otherwise.

Criminal Law – Topic 4351

Procedure – Charge or directions – Jury or judge alone – Direction regarding burden of proof and reasonable doubt – The accused appealed two sexual assault convictions, asserting that the trial judge had erred in, inter alia, missapplying the R. v. D.W. test by assessing the complainant’s credibility first, resulting in an unreasonable verdict – The Supreme Court of Canada rejected this ground of appeal – There was no error in the trial judge’s failure to follow the steps articulated in R. v. D.W. as a catechism – Her reasons reveal that she understood that a finding that the complainant was credible did not mean that the onus shifted to the accused to show that he was not guilty – The sequence in which the trial judge set out her findings of credibility could not be said to have undermined her articulated and correct statement of the law or to have demonstrated that she lost sight of a paramount legal principle such as reasonable doubt – See paragraphs 6 to 12.

Criminal Law – Topic 4377

Procedure – Charge or directions – Jury or judge alone – Directions regarding credibility of witnesses – [See
Criminal Law – Topic 4351

Criminal Law – Topic 4957

Appeals – Indictable offences – New trials – Grounds – Misapprehension of evidence – The accused was convicted of two counts of sexual assault – In concluding that the accused’s evidence did not raise a reasonable doubt as to his guilt, the trial judge relied on two primary features of the accused’s evidence: (i) his reluctance to admit to any tickling at all of the complainant, a young girl, and (ii) his recall of a “surprising amount of detail” surrounding the events – The Supreme Court of Canada allowed the accused’s appeal – The trial judge’s bases for disbelieving the accused rested on misapprehensions of his evidence, rendering the convictions unsupportable – The transcript showed that the accused readily acknowledged that he may have tickled the girl, but insisted that he had never tickled her inappropriately – Further, on at least 20 occasions, the accused testified that he was uncertain or unable to remember certain details – Where, as here, a trial judge attributed an inappropriate capacity for recollection of detail to a witness who in fact revealed no such capacity, there remained serious concerns regarding the reliability of the judge’s credibility finding – The convictions were set aside and a new trial ordered – See paragraphs 13 to 22.

Criminal Law – Topic 5020

Appeals – Indictable offences – Setting aside verdicts – Verdict unreasonable or unsupported by evidence – [See
Criminal Law – Topic 4957

Cases Noticed:

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [paras. 3, 24].

R. v. Morin, [1988] 2 S.C.R. 345; 88 N.R. 161; 30 O.A.C. 81, refd to. [para. 6].

R. v. W.D.S., [1994] 3 S.C.R. 521; 171 N.R. 360; 157 A.R. 321; 77 W.A.C. 321, refd to. [para. 7].

R. v. Challice (1979), 45 C.C.C.(2d) 546 (Ont. C.A.), refd to. [para. 8].

R. v. MacKenzie, [1993] 1 S.C.R. 212; 146 N.R. 321; 118 N.S.R.(2d) 290; 327 A.P.R. 290, refd to. [para. 8].

R. v. Levasseur (J.) (1994), 89 C.C.C.(3d) 508 (Que. C.A.), revd. [1994] 3 S.C.R. 518; 205 N.R. 389, refd to. [para. 8].

R. v. Boucher (E.), [2005] 3 S.C.R. 499; 342 N.R. 42; 2005 SCC 72, refd to. [para. 9].

R. v. Minuskin (S.) (2003), 180 O.A.C. 255; 68 O.R.(3d) 577 (C.A.), refd to. [para. 9].

R. v. Chittick (D.S.) (2004), 228 N.S.R.(2d) 81; 723 A.P.R. 81; 2004 NSCA 135, refd to. [para. 9].

R. v. Morrissey (R.J.) (1995), 80 O.A.C. 161; 97 C.C.C.(3d) 193 (C.A.), refd to. [paras. 11, 29].

R. v. Lohrer (A.W.), [2004] 3 S.C.R. 732; 329 N.R. 1; 208 B.C.A.C. 1; 344 W.A.C. 1; 2004 SCC 80, refd to. [para. 19].

R. v. R.W., [1992] 2 S.C.R. 122; 137 N.R. 214; 54 O.A.C. 164; 2006 SCC 17, refd to. [para. 21].

R. v. Gagnon (L.), [2006] 1 S.C.R. 621; 347 N.R. 355; 2006 SCC 17, refd to. [para. 21].


Alan J. Semchuk, for the appellant;

Richard A. Saull and Brian R. Bell, for the respondent.

Solicitors of Record:

Johnston & Company, Dauphin, Manitoba, for the appellant;

Attorney General of Manitoba, Winnipeg, Manitoba, for the respondent.

This appeal was heard on November 6, 2007, by Bastarache, Binnie, Deschamps, Fish, Abella, Charron and Rothstein, JJ., of the Supreme Court of Canada. On January 25, 2008, the judgment of the court was delivered in both official languages with the following opinions:

Abella, J. (Bastarache, Charron and Rothstein, JJ., concurring) – see paragraphs 1 to 22;

Fish, J. (Binnie and Deschamps, JJ., concurring) – see paragraphs 23 to 34.


R. v. C.L.Y.

[2008] 1 SCR 5

Supreme Court of Canada
Reading Time:
16 minutes
Abella, Bastarache, Binnie, Charron, Deschamps, Fish, Rothstein 

Abella, J.
: C.L.Y. was a teenager charged with three counts of sexual assault. The charges arose out of allegations of inappropriate touching when he was babysitting. At the time of the incidents, he was between the ages of around 16 to 18. The girl was between 6 and 8 years old. C.L.Y. denied any inappropriate touching.

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