R. v. R.W. (1992), 54 O.A.C. 164 (SCC)
MLB headnote and full text
[French language version follows English language version]
[La version française vient à la suite de la version anglaise]
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Her Majesty The Queen (appellant) v. R.W. (respondent)
(21820)
Indexed As: R. v. R.W.
Supreme Court of Canada
La Forest, L’Heureux-Dubé, Gonthier, Cory, McLachlin, Stevenson and Iacobucci, JJ.
June 11, 1992.
Summary:
The accused youth was convicted on three counts of indecent assault, one count of gross indecency and one count of sexual assault respecting his conduct with three young girls. The accused appealed.
The Ontario Court of Appeal allowed the appeal and substituted acquittals. The court stated that pursuant to s. 686(1)(a)(i) of the Criminal Code the verdict was unsafe on the evidence given the lack of confirmatory evidence and inconsistencies in the young victims’ evidence. The Crown appealed.
The Supreme Court of Canada allowed the appeal and restored the convictions.
Stevenson, J., did not participate in the judgment.
Criminal Law – Topic 4865
Appeals – Indictable offences – Setting aside verdicts – Verdict unreasonable or unsupported by evidence – The Supreme Court of Canada stated that in reviewing whether a verdict should be set aside as being unreasonable or unsupported by the evidence (Criminal Code, s. 686(1)(a)(i)) a court of appeal must to some extent re-examine and reweigh the evidence – The court stated that this applied to verdicts based on findings of credibility – The test remained whether a jury or judge, properly instructed and acting reasonably, could have rendered the challenged verdict – However, an appellate court should show great deference to findings of credibility at trial – See paragraphs 15 to 21.
Criminal Law – Topic 4973
Appeals – Indictable offences – Powers of Court of Appeal – Power to review and reweigh evidence – [See
Criminal Law – Topic 4865
].
Criminal Law – Topic 5020
Appeals – Indictable offences – Setting aside verdicts – Verdict unreasonable or unsupported by evidence – [See
Criminal Law – Topic 4865
].
Criminal Law – Topic 5461
Evidence – Witnesses – Evidence of children – General – The Supreme Court of Canada discussed how courts should approach the evidence of young children – The court stated that “the repeal of provisions creating a legal requirement that children’s evidence be corroborated does not prevent the judge or jury from treating a child’s evidence with caution where such caution is merited in the circumstances of the case. But it does revoke the assumption formerly applied to all evidence of children, often unjustly, that children’s evidence is always less reliable than evidence of adults. So if a court proceeds to discount a child’s evidence automatically, without regard to the circumstances of the particular case, it will have fallen into an error” – See paragraph 23.
Criminal Law – Topic 5462
Evidence – Witnesses – Evidence of children – Credibility – The Supreme Court of Canada stated that “it may be wrong to apply adult tests for credibility to the evidence of children” – The court stated that credibility of children should be approached on “a ‘common sense’ basis, taking into account the strengths and weaknesses which characterize the evidence offered in a particular case. … In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness. Yet with regard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying” – See paragraphs 24 to 26.
Cases Noticed:
R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351; 36 C.C.C.(3d) 417; 59 C.R.(3d) 108, appld. [para. 16].
R. v. Corbett, [1975] 2 S.C.R. 275; 1 N.R. 258, refd to. [para. 16].
R. v. Howard, [1989] 1 S.C.R. 1337; 96 N.R. 81; 34 O.A.C. 81, refd to. [para. 18].
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, refd to. [para. 18].
White v. The King, [1947] S.C.R. 268, refd to. [para. 20].
R. v. S.H.M., [1989] 2 S.C.R. 446; 100 N.R. 1; 100 A.R. 321; 50 C.C.C.(3d) 503, refd to. [para. 20].
R. v. G.B. et al. (No. 3), [1990] 2 S.C.R. 30; 111 N.R. 62; 86 Sask.R. 142; 77 C.R.(3d) 370, refd to. [para. 24].
Statutes Noticed:
Criminal Code, R.S.C. 1985, c. C-46, sect. 686(1)(a)(i) [para. 1]; sect. 695 [para. 32].
Criminal Code and Canada Evidence Act, An Act to Amend, S.C. 1987, c. 24, sect. 15 [para. 23].
Counsel:
Catherine A. Cooper, for the appellant;
Robert J. Reynolds, for the respondent.
Solicitors of Record:
Attorney General for Ontario, Toronto, Ontario, for the appellant;
Reynolds Kline Selick, Belleville, Ontario, for the respondent.
This appeal was heard on April 2, 1992, before La Forest, L’Heureux-Dubé, Gonthier, Cory, McLachlin, Stevenson and Iacobucci, JJ., of the Supreme Court of Canada.
On June 11, 1992, McLachlin, J., delivered the following judgment in both official languages for the Supreme Court of Canada.
