R. v. Litchfield (1993), 145 A.R. 321 (SCC);
55 W.A.C. 321
MLB headnote and full text
[French language version follows English language version]
[La version française vient à la suite de la version anglaise]
………………..
Her Majesty the Queen (appellant) v. Bryant Floyd Litchfield (respondent)
(22896)
Indexed As: R. v. Litchfield
Supreme Court of Canada
La Forest, L’Heureux-Dubé, Sopinka,
Gonthier, Cory, McLachlin and
Iacobucci, JJ.
November 18, 1993.
Summary:
The accused family physician was acquitted on nine counts of sexually assaulting female patients. The Crown appealed.
The Alberta Court of Appeal, in a decision reported 120 A.R. 391; 8 W.A.C. 391, dismissed the appeal. The Crown appealed.
The Supreme Court of Canada allowed the appeal, set aside the acquittals and ordered a new trial.
Criminal Law – Topic 666
Sexual offences, public morals and disorderly conduct – Sexual offences – Rape or sexual assault – Consent – [See
Criminal Law – Topic 669
].
Criminal Law – Topic 669
Sexual offences, public morals and disorderly conduct – Sexual offences – Rape or sexual assault – Intention or mens rea – A doctor was charged with 14 counts of sexual assault against seven women patients – The Supreme Court of Canada stated that sexual assault was a crime of general intent and the test was an objective test – The courts should not create unnecessary barriers to considering all the circumstances surrounding conduct alleged to constitute sexual assault – All relevant surrounding circumstances were particularly important in assessing whether there was lack of consent in cases such as those involving the doctor-patient relationship – See paragraphs 8 to 12.
Criminal Law – Topic 675
Sexual offences, public morals and disorderly conduct – Sexual offences – Rape or sexual assault – Evidence and proof – Fourteen sexual assault counts by a doctor against seven women patients were severed into three trials depending on the part of the body assaulted – The trial judge ruled unduly prejudicial and inadmissible evidence of the severed counts, evidence from the doctor’s former superior officer in the army and evidence from other patients – The Supreme Court of Canada determined that the evidence of the severed counts and of the superior officer was admissible – The court left the admissibility of other evidence to the discretion of the judge at the new trial that was ordered – See paragraphs 38 to 50.
Criminal Law – Topic 4556
Procedure – Trial – Motions – Motion for nonsuit – A doctor, charged with sexual assaults against seven women patients, was tried by judge alone – The trial judge granted a motion for nonsuit at the close of the Crown’s case after weighing the evidence, drawing inferences from some of the evidence and applying the test of proof beyond reasonable doubt – The Supreme Court of Canada stated that the trial judge erred – In his role as trial judge rather than as trier of fact, the trial judge was required to make a neutral assessment of whether there was some evidence which, if believed by a properly instructed jury acting reasonably, could result in conviction – See paragraphs 51 to 59.
Criminal Law – Topic 4737.1
Procedure – Information or indictment, charge or count, indictable offences – Severing counts in an indictment – A doctor was charged with 14 counts of sexual assault against seven patients – A judge (not the trial judge) ordered severance of the counts for three trials according to the body part assaulted – The Crown appealed the accused’s acquittal on the first trial and, inter alia, sought review of the severance order – The Supreme Court of Canada set aside the severance order – The court declined to apply the rule against collateral attack and held that it had jurisdiction to review the pretrial severance order – The court opined that only the trial judge has jurisdiction to order severance – See paragraphs 14 to 37.
Criminal Law – Topic 5206
Evidence and witnesses – Admissibility and relevancy – Multiple counts – Application of evidence in one count to others – [See
Criminal Law – Topic 5209
].
Criminal Law – Topic 5208
Evidence and witnesses – Admissibility and relevancy – Facts relevant to the theory of the defence – A doctor was charged with 14 counts of sexual assault involving female patients – The doctor’s former superior officer in the army testified about advising him how to conduct intimate examinations of female patients – The trial judge excluded the evidence on the grounds that it was irrelevant and was not accepted by the accused – The Supreme Court of Canada held that the evidence was admissible – It was relevant, where a theory of the defence was good faith despite unorthodox practices – Moreover, the rule respecting acceptance by the accused related to hearsay evidence and the officer’s testimony was not hearsay – See paragraph 44 to 46.
Criminal Law – Topic 5209
Evidence and witnesses – Admissibility and relevancy – Prejudicial evidence – A doctor was charged with 14 counts of sexual assault involving seven patients – A pretrial severance of the counts was ordered, dividing the counts into three categories according to the part of the body involved in the assault – The trial judge excluded evidence going to the severed counts as being irrelevant or too prejudicial – The Supreme Court of Canada held that the trial judge erred, where the evidence was relevant and its probative value outweighed any prejudicial effect – See paragraphs 38 to 43.
Criminal Law – Topic 5212
Evidence and witnesses – Admissibility and relevancy – Similar acts – A doctor was charged with 14 counts of sexual assault against seven patients – Eight other past patients sought to testify about similar assaults by the doctor – After a voir dire, the trial judge ruled that the evidence was inadmissible – The Supreme Court of Canada, having determined that a new trial should be ordered on other grounds, concluded that the admissibility of the similar fact evidence should be determined by the trial judge at the new trial – See paragraphs 47 to 50.
Cases Noticed:
R. v. Chase, [1987] 2 S.C.R. 293; 80 N.R. 247; 82 N.B.R.(2d) 229; 208 A.P.R. 229; 45 D.L.R.(4th) 98; 37 C.C.C.(3d) 97; 59 C.R.(3d) 193, refd to. [para. 9].
Norberg v. Wynrib, [1992] 2 S.C.R. 226; 138 N.R. 81; 9 B.C.A.C. 1; 19 W.A.C. 1, refd to. [para. 11].
R. v. Mills, [1986] 1 S.C.R. 863; 67 N.R. 241; 16 O.A.C. 81; 52 C.R.(3d) 1; 26 C.C.C.(3d) 481; 29 D.L.R.(4th) 161; 21 C.R.R. 76, refd to. [para. 15].
R. v. Wilson, [1983] 2 S.C.R. 594; 51 N.R. 321; 26 Man.R.(2d) 194, refd to. [paras. 16, 63].
British Columbia (Attorney General) v. Mount Currie Indian Band (1991), 54 B.C.L.R.(2d) 129, (S.C.), refd to. [para. 16].
R. v. Pastro (1988), 66 Sask.R. 241; 42 C.C.C.(3d) 485 (C.A.), refd to. [para. 16].
R. v. Meltzer and Laison, [1989] 1 S.C.R. 1764; 96 N.R. 391, refd to. [para. 17].
R. v. Garofoli et al., [1990] 2 S.C.R. 1421; 116 N.R. 241; 43 O.A.C. 1; 60 C.C.C.(3d) 161; 80 C.R.(3d) 317; 50 C.R.R. 206, refd to. [para. 17].
Taylor and Western Guard Party v. Canadian Human Rights Commission, [1990] 3 S.C.R. 892; 117 N.R. 191, refd to. [para. 17].
R. v. Chabot, [1980] 2 S.C.R. 985; 34 N.R. 361; 55 C.C.C.(3d) 385; 18 C.R.(3d) 258; 22 C.R.(3d) 350; 117 D.L.R.(3d) 527, refd to. [paras. 25, 63].
R. v. Deol, Gill and Randev (1979), 20 A.R. 595 (Q.B.), refd to. [paras. 25, 67].
R. v. Martel (1986), 63 Nfld. & P.E.I.R. 39; 194 A.P.R. 39 (P.E.I.S.C.), refd to. [para. 25].
R. v. Barbeau, [1992] 2 S.C.R. 845; 140 N.R. 211; 49 Q.A.C. 220, refd to. [para. 25].
R. v. Watson (1979), 12 C.R.(3d) 259 (B.C.S.C.), refd to. [para. 31].
R. v. Auld (1957), 26 C.R. 266 (B.C.C.A.), refd to. [para. 31].
R. v. Kestenberg (1959), 126 C.C.C. 387 (Ont. C.A.), refd to. [para. 32].
R. v. Christie, [1914] A.C. 545 (H.L.), refd to. [para. 46].
R. v. M.H.C., [1991] 1 S.C.R. 763; 123 N.R. 63, refd to. [para. 48].
R. v. Monteleone, [1987] 2 S.C.R. 154; 78 N.R. 377; 23 O.A.C. 241, refd to. [para. 51].
United States of America v. Shephard, [1977] 2 S.C.R. 1067; 9 N.R. 215; 34 C.R.N.S. 207; 70 D.L.R.(3d) 136; 30 C.C.C.(2d) 424, refd to. [para. 51].
De Yong and Raibmon v. Weeks (1983), 43 A.R. 342 (Q.B.), refd to. [para. 57].
R. v. Brackenbury and Pratt (1981), 31 A.R. 181; 61 C.C.C.(2d) 6 (Q.B.), refd to. [para. 64].
Statutes Noticed:
Criminal Code, R.S.C. 1985, c. C-46, sect. 265(1)(a), sect. 265(2), sect. 265(3)(c), sect. 590(3), sect. 591(3) [para. 6]; sect. 591(4) [para. 30]; sect. 645(5) [paras. 6, 28]; sect. 676(1)(a), sect. 686(4)(a), sect. 686(4)(b)(i), sect. 693(1), sect. 693(1)(b) [para. 6].
Authors and Works Noticed:
McWilliams, Peter K., Canadian Criminal Evidence (3rd Ed. 1993), pp. 9-9 to 9-45 [para. 57].
Salhany, R.E., Canadian Criminal Procedure (5th Ed. 1989), pp. 182 [para. 69]; 189 [para. 25].
Sharpe, Robert J., Injunctions and Specific Performance (1983), generally [para. 17].
Sopinka, Lederman and Bryant, The Law of Evidence in Canada (1992), pp. 533 to 574 [para. 57].
Counsel:
Goran Tomljanovic, for the appellant;
Robert B. White, Q.C., and D. Stam, for the respondent.
Solicitors of Record:
Attorney General for Alberta, Edmonton, Alberta, for the appellant;
Robert B. White, Edmonton, Alberta, for the respondent.
This appeal was heard on June 7, 1993, before La Forest, L’Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin and Iacobucci, JJ., of the Supreme Court of Canada.
The decision of the court was delivered in both official languages on November 18, 1993, and the following opinions were filed:
Iacobucci, J. (La Forest, L’Heureux-Dubé, Sopinka, Gonthier and Cory, JJ., concurring) – see paragraphs 1 to 61;
McLachlin, J. – see paragraphs 62 to 72.
