Docket

39401

Her Majesty the Queen v. Mark Anthony Smith

(British Columbia) (Criminal) (As of Right)

(Publication ban in case)

Judgments on applications for leave to appeal are rendered by the Court, but are not necessarily unanimous.

Proceedings
Date Proceeding Filed By
(if applicable)
2021-05-10 Appeal closed
2021-05-05 Transcript received, 42 pages
2021-04-23 Formal judgment sent to the registrar of the court of appeal and all parties
2021-04-23 Judgment on appeal and notice of deposit of judgment sent to all parties
2021-04-22 General proceeding, (Letter Form), Case Sensitivity Questionnaire, (Printed version due on 2021-04-29) Mark Anthony Smith
2021-04-22 General proceeding, (Letter Form), Case Sensitivity Questionnaire, (Printed version due on 2021-04-29) Her Majesty the Queen
2021-04-22 Judgment on the appeal rendered, Mo Ka Br Row Kas, The appeal from the judgment of the Court of Appeal for British Columbia (Vancouver), Number CA45680, 2020 BCCA 271, dated October 8, 2020, was heard on April 22, 2021, and the Court on that day delivered the following judgment orally:

BROWN J. — We would allow the appeal, set aside the order for a new trial and restore the respondent’s conviction for sexual assault, substantially for the reasons of Dickson J.A. In particular, we agree with Dickson J.A. that the trial judge’s failure to deal properly with the prior inconsistent statements does not mean that she failed to consider or give effect to them (R. v. Burns, [1994] 1 S.C.R. 656, at p. 665). Further, and even if the trial judge did not consider the statements in assessing the complainant’s credibility and reliability, that error did not cause a miscarriage of justice.

Determining whether a misapprehension of evidence has caused a miscarriage of justice requires that the appellate court assess the nature and extent of the error and its significance to the verdict (R. v. Morrissey (1995), 97 C.C.C. (3d) 193 (Ont. C.A.), at p. 221). It is a stringent standard, met only where the misapprehension could have affected the outcome (R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 7). While testimonial inconsistencies may be relevant when assessing a witness’s credibility and reliability, only some are of such significance that failing to consider them will meet this standard.

In this case, we agree with Dickson J.A. that the inconsistencies — assuming they are inconsistencies — between the complainant’s statements to her friend shortly after the assault and her trial testimony are not significant. While it may have been preferable for the trial judge to address them, her failure to do so does not cast doubt on her assessment of the complainant’s credibility and reliability or the safety of the conviction. Consequently, the threshold for a miscarriage of justice has not been met.
Allowed
2021-04-22 Hearing of the appeal, 2021-04-22, Mo Ka Br Row Kas
Judgment rendered
2021-04-19 Certificate (on limitations to public access), Form 23B - Condensed book Her Majesty the Queen
2021-04-19 Appellant's condensed book, (Book Form), (Printed version filed on 2021-04-20) Her Majesty the Queen
2021-04-12 Correspondence received from, Counsel for the Appellant intends to refer to a decision not referenced in its written materials, ie. Waxman v. Waxman, 2004 CanLII 39040 (Ont. C.A.) paragraphs 343-345. Her Majesty the Queen
2021-04-09 Notice of Remote Participation by a Judge of the Supreme Court of Canada sent to all parties, (sent by email)
2021-03-30 Notice of appearance, Eric Purtzki, Garth Barriere to appear before the Court ; Erick Purtzki to present oral argument
Mark Anthony Smith
2021-03-29 Notice of appearance, Mila Shah, John R.W. Caldwell to appear before the Court ; Milah Shah to present oral argument

rec'd amended notice of appearance 2021-04-01
Her Majesty the Queen
2021-03-26 Certificate (on limitations to public access), (Letter Form), 23B, (Printed version due on 2021-04-06) Mark Anthony Smith
2021-03-26 Certificate (on limitations to public access), (Letter Form), 23A, (Printed version due on 2021-04-06) Mark Anthony Smith
2021-03-26 Respondent's factum, (Book Form), Completed on: 2021-03-31, (Printed version filed on 2021-03-26) Mark Anthony Smith
2021-03-24 Order on motion to extend time, by Acting Registrar
2021-03-24 Decision on motion to extend time, DeRg, UPON APPLICATION by the appellant, Her Majesty the Queen, for an order extending the time to file its factum, record and book of authorities to January 29, 2021;
AND THE MATERIAL FILED having been read;
AND NOTING the consent of the respondent;
IT IS HEREBY ORDERED THAT:
The motion is granted.


Granted
2021-03-24 Submission of motion to extend time, DeRg
2021-02-18 Notice of hearing sent to parties
2021-02-18 Appeal hearing scheduled, 2021-04-22
Judgment rendered
2021-02-02 Letter advising the parties of tentative hearing date and filing deadlines (Notice of appeal – As of right), by email - 2021-02-03
2021-01-29 Motion to extend time, (Book Form), to serve and file the Appellant's factum
Filing fees missing, Incomplete, (Printed version due on 2021-02-05)
Her Majesty the Queen
2021-01-29 Appellant's book of authorities, (Book Form), Completed on: 2021-02-03, (Printed version due on 2021-02-05) Her Majesty the Queen
2021-01-29 Appellant's factum, (Book Form), Completed on: 2021-02-03, (Printed version filed on 2021-01-29) Her Majesty the Queen
2021-01-15 Certificate (on limitations to public access), (Letter Form), 23B - Record, (Printed version due on 2021-01-22) Her Majesty the Queen
2021-01-15 Certificate of counsel (attesting to record), (Letter Form), (Printed version due on 2021-01-22) Her Majesty the Queen
2021-01-15 Appellant's record, (Book Form), (4 volumes), Completed on: 2021-01-21, (Printed version filed on 2021-01-15) Her Majesty the Queen
2020-11-26 Letter acknowledging receipt of a notice of appeal, FILE OPENED 11/26/20
2020-11-09 Certificate (on limitations to public access), (Letter Form), 23B Her Majesty the Queen
2020-11-09 Certificate (on limitations to public access), (Letter Form), 23A Her Majesty the Queen
2020-11-09 Notice of appeal, (Letter Form), Completed on: 2020-11-09 Her Majesty the Queen
 

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