R. v. F.J.U. (1995), 85 O.A.C. 321 (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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F.J.U. (appellant) v. Her Majesty The Queen (respondent)
(24159)
Indexed As: R. v. F.J.U.
Supreme Court of Canada
Lamer, C.J.C., L’Heureux-Dubé, Sopinka, Gonthier, Cory, Iacobucci, and Major, JJ.
October 19, 1995.
Summary:
The accused was convicted by a jury of one count of incest and two counts of sexual touching. He appealed his convictions.
The Ontario Court of Appeal, Houlden, J.A., dissenting, in a decision reported 72 O.A.C. 117, dismissed the appeal. The accused appealed again. At issue was whether the trial judge erred in inviting the jury to compare the complainant’s unadopted prior inconsistent statement with the accused’s unadopted statement to police in determining if the prosecution had established guilt.
The Supreme Court of Canada dismissed the appeal.
Criminal Law – Topic 4375.2
Procedure – Jury charge – Directions regarding prior inconsistent statements – A girl gave police a statement, alleging that her father (the accused) sexually assaulted her – The accused confessed orally to police – At the accused’s trial, the daughter recanted her allegations and the accused denied the sexual relationship – The trial judge allowed the Crown to cross-examine the daughter on her prior inconsistent statement – The jury was instructed that they could compare the daughter’s unadopted prior inconsistent statement to police with the accused’s confession (which he retracted at trial) to determine if the prosecution had established guilt – The Supreme Court of Canada affirmed the accused’s conviction, holding that although the jury was not instructed in accordance with the procedures now set out by the court, there was no wrong or miscarriage of justice.
Evidence – Topic 4751
Witnesses – Examination – Prior inconsistent statements – Use of – A girl gave police a statement, alleging that her father (the accused) sexually assaulted her – The accused orally confessed to police – At the accused’s trial, the daughter recanted her allegations and the accused denied the sexual relationship – The daughter was cross-examined on her prior inconsistent statement – The Supreme Court of Canada affirmed the accused’s conviction, holding that the daughter’s statement was substantively admissible at trial – The daughter was cross-examined respecting her recantation which eliminated the most important danger of hearsay evidence – The accused’s and daughter’s statements contained both a significant number of similarities in detail and a strikingly similar assertion about their latest sexual encounter – There was also sufficient evidence for concluding that there was no opportunity for collusion between the accused and his daughter and that the accused was not improperly influenced by police – See paragraphs 53, 54.
Evidence – Topic 4751
Witnesses – Examination – Prior inconsistent statements – Use of – The Supreme Court of Canada noted that in R. v. K.G.B. (1993) the court modified the orthodox rule regarding permissible uses of prior inconsistent statements to bring the rule in line with the court’s approach to hearsay outlined in R. v. Khan and R. v. Smith – The court reviewed its approach to hearsay and the specific rationale behind the K.G.B. decision, restated the essential points of K.G.B. and discussed situations beyond K.G.B. – See paragraphs 19 to 52.
Evidence – Topic 4751
Witnesses – Examination – Prior inconsistent statements – Use of – The Supreme Court of Canada noted that in R. v. K.G.B. the court held that “when the reliability and necessity criteria were met, prior inconsistent statements of witnesses other than the accused are substantively admissible, provided that they would have been admissible as the witness’s sole testimony” – The court discussed the situations described in K.G.B. for assessing reliability and stated additionally, “… a threshold of reliability can sometimes be established, in cases where the witness is available for cross-examination, by a striking similarity between two statements” – The court thereafter elaborated on how reliability could be established by comparing two similar statements and the procedure to be followed on a voir dire held for that purpose – See paragraphs 28 to 45.
Evidence – Topic 4751
Witnesses – Examination – Prior inconsistent statements – Use of – [See
Criminal Law – Topic 4375.2
].
Cases Noticed:
R. v. Khan (A.), [1990] 2 S.C.R. 531; 113 N.R. 53; 41 O.A.C. 353; 59 C.C.C.(3d) 92; 79 C.R.(3d) 1, refd to. [para. 1].
R. v. Smith (A.L.), [1992] 2 S.C.R. 915; 139 N.R. 323; 55 O.A.C. 321; 75 C.C.C.(3d) 257; 94 D.L.R.(4th) 590, refd to. [para. 1].
R. v. K.G.B., [1993] 1 S.C.R. 740; 148 N.R. 241; 61 O.A.C. 1; 79 C.C.C.(3d) 257; 19 C.R.(4th) 1, refd to. [para. 1].
Mawaz Khan and Amanat Khan v. R., [1967] 1 All E.R. 80 (P.C.), refd to. [para. 13].
R. v. McFall, [1980] 1 S.C.R. 321; 27 N.R. 420, refd to. [para. 13].
Deacon v. R., [1947] S.C.R. 531, refd to. [para. 22].
R. v. Evans (C.D.), [1993] 3 S.C.R. 653; 158 N.R. 278; 145 A.R. 81; 55 W.A.C. 81, refd to. [para. 23].
Wright v. Beckett (1833), 1 Mood. & R. 414; 174 E.R. 143, refd to. [para. 29].
Attorney General v. Hitchcock (1847), 16 L.J. Ex. 259, refd to. [para. 29].
R. v. McInroy and Rouse, [1979] 1 S.C.R. 588; 23 N.R. 589; [1978] 6 W.W.R. 585; 42 C.C.C.(2d) 481, refd to. [para. 29].
Statutes Noticed:
Canada Evidence Act, R.S.C. 1985, c. C-5, sect. 9 [para. 46].
Criminal Code, R.S.C. 1985, c. C-46, sect. 686(1)(b)(iii) [para. 16].
Evidence Act, 1985 – see Canada Evidence Act.
Authors and Works Noticed:
Canada Law Reform Commission, Report on Evidence (1975), p. 70 [para. 37].
McCormick, Handbook on the Law of Evidence (4th Ed. 1992), p. 120 [para. 38].
Wigmore, John Henry, Evidence in Trials at Common Law (Chadbourne Rev. 1974), vol. 5, § 1362, pp. 3, 10 [para. 37].
Counsel:
Bruce Durno, for the appellant;
Renee M. Pomerance, for the respondent.
Solicitors of Record:
Bruce Durno, Toronto, Ontario, for the appellant;
Renee M. Pomerance, Toronto, Ontario, for the respondent.
This appeal was heard on April 26, 1995, before Lamer, C.J.C., L’Heureux-Dubé, Sopinka, Gonthier, Cory, Iacobucci and Major, JJ., of the Supreme Court of Canada. The decision of the court was delivered in both official languages on October 19, 1995, including the following opinions:
Lamer, C.J.C. (Sopinka, Gonthier, Cory, Iacobucci and Major, JJ., concurring) – see paragraphs 1 to 55;
L’Heureux-Dubé, J., concurring reasons – see paragraphs 56 to 60.
