R. v. J.M.H. (2011), 283 O.A.C. 379 (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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Temp. Cite: [2011] O.A.C. TBEd. OC.010
J.M.H. (appellant) v. Her Majesty The Queen (respondent) and Director of Public Prosecutions (intervenor)
(33667; 2011 SCC 45; 2011 CSC 45)
Indexed As: R. v. J.M.H.
Supreme Court of Canada
McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ.
October 6, 2011.
Summary:
The accused was acquitted of two counts of sexual assault. The Crown appealed.
The Ontario Court of Appeal, in a decision reported 256 O.A.C. 246, allowed the appeal and ordered a new trial on both counts. The accused appealed.
The Supreme Court of Canada allowed the appeal and restored the acquittals entered at trial.
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. In this instance, the editing was done by the Supreme Court.
Criminal Law – Topic 4860
Appeals – Indictable offences – Grounds of appeal – Question of law or error of law – The accused was acquitted of two counts of sexual assault – The Crown appealed – The Court of Appeal set aside the acquittals and ordered a new trial on the basis that the trial judge erred in law by failing to consider all of the evidence in reaching his conclusion (i.e., he used a piecemeal approach) – The accused appealed – The Supreme Court of Canada allowed the appeal and restored the acquittals, holding that the trial judge did not make the error identified by the Court of Appeal – Notwithstanding that conclusion, the court addressed the broader issue raised on appeal concerning when, in a Crown appeal of an acquittal on an indictable offence, alleged shortcomings in a trial judge’s assessment of the evidence constituted an error of law alone justifying appellate intervention (Criminal Code, s. 676(1)(a)).
Criminal Law – Topic 4868
Appeals – Indictable offences – Grounds of appeal – Failure to consider evidence – [See
Criminal Law – Topic 4860
].
Criminal Law – Topic 4957.1
Appeals – Indictable offences – New trials – Grounds – Failure to consider evidence – [See
Criminal Law – Topic 4860
].
Criminal Law – Topic 4975
Appeals – Indictable offences – Powers of Court of Appeal – Appeal from an acquittal – [See
Criminal Law – Topic 4860
].
Cases Noticed:
R. v. G.B. et al. (No. 3), [1990] 2 S.C.R. 57; 111 N.R. 62; 86 Sask.R. 142, refd to. [para. 11].
R. v. Schuldt, [1985] 2 S.C.R. 592; 63 N.R. 241; 38 Man.R.(2d) 257; 49 C.R.(3d) 136, refd to. [para. 25].
R. v. Lifchus (W.), [1997] 3 S.C.R. 320; 216 N.R. 215; 118 Man.R.(2d) 218; 149 W.A.C. 218, refd to. [para. 25].
R. v. Walker (B.G.), [2008] 2 S.C.R. 245; 375 N.R. 228; 310 Sask.R. 305; 423 W.A.C. 305; 2008 SCC 34, refd to. [para. 26].
R. v. Biniaris (J.), [2000] 1 S.C.R. 381; 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161; 2000 SCC 15, refd to. [para. 27].
R. v. Morin (K.M.), [1992] 3 S.C.R. 286; 142 N.R. 141; 131 A.R. 81; 25 W.A.C. 81; 76 C.C.C.(3d) 193, refd to. [para. 28].
R. v. Wild, [1971] S.C.R. 101, refd to. [para. 30].
R. v. Morin, [1988] 2 S.C.R. 345; 88 N.R. 161; 30 O.A.C. 181, refd to. [para. 31].
Statutes Noticed:
Criminal Code, R.S.C. 1985, c. C-46, sect. 676(1)(a) [para. 12].
Authors and Works Noticed:
Canadian Judicial Council, Model Jury Instructions, Part III Final Instructions, 9.4 Assessment of Evidence (2004) (online: http://www.cjc-ccm.gc.ca/ english/ lawyers_en.asp?selMenu=lawyers_NCJI-Jury-Instruction-Final-2004-02_en.asp#_Toc290368699), generally [para. 25].
Counsel:
Christopher D. Hicks and Misha Feldmann, for the appellant;
Christine Bartlett-Hughes, for the respondent;
James D. Sutton and Ann Marie Simmons, for the intervenor.
Solicitors of Record:
Hicks Adams, Toronto, Ontario, for the appellant;
Attorney General of Ontario, Toronto, Ontario, for the respondent;
Public Prosecution Service of Canada, Gatineau, Quebec, for the intervenor.
This appeal was heard on May 19, 2011, before McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ., of the Supreme Court of Canada. The following decision was delivered for the court, by Cromwell, J., on October 6, 2011.
