Summary

37042

Her Majesty the Queen v. S.B.

(Newfoundland & Labrador) (Criminal) (As of Right)

(Publication ban in case) (Publication ban on party)

Keywords

None.

Summary

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Criminal law - Appeals - Powers of Court of Appeal - New trial - Whether the majority of the Court of Appeal erred in law by applying the wrong test for ordering a new trial in a Crown appeal from an acquittal - Whether the majority of the Court of Appeal erred in law by drawing its own conclusions about the strength and significance of the impugned evidence and improperly excluded rebuttal evidence.

The respondent was acquitted by a jury of one count of careless handling of a firearm, five counts of assault, two counts of sexual assault and one count of assault with a weapon against the complainant, who was his girlfriend and later his wife. He was also acquitted of one count of assault against the complainant’s daughter. Before the trial, the respondent applied pursuant to s. 276 of the Criminal Code to cross-examine the complainant on her prior sexual activity. The trial judge allowed the application in part. The Crown appealed the acquittal to the Court of Appeal on the basis that the trial judge erred in allowing the application in part and in refusing to permit the Crown to lead evidence to rebut the allegations of recent fabrication that arose during the cross-examination. The majority of the Court of Appeal held that the trial judge erred in admitting certain evidence in relation to the complainant’s prior sexual activity and in excluding evidence related to recent fabrication. However, the majority concluded that notwithstanding those errors, the verdict should not be set aside, and it dismissed the appeal. Green C.J.N.L., dissenting, would have allowed the appeal and ordered a new trial. He was of the view that the Crown had established that the verdict might well have been different and that it was inappropriate for an appellate court to draw its own conclusions about the strength and significance of the evidence which was improperly admitted and excluded.