R. v. Freitas, [1993] 3 S.C.R. 649

Roberto Ambrosio San Vicente Freitas Appellant

v.

Her Majesty The Queen Respondent

Indexed as: R. v. Ruiz

File No.: 23396.

1993: October 15.

Present: La Forest, L'Heureux‑Dubé, Cory, McLachlin and Iacobucci JJ.

on appeal from the court of appeal for new brunswick

Criminal law ‑‑ Evidence ‑‑ Trial judge appearing to draw adverse inference from accused's failure to call witnesses ‑‑ Crown proving its case ‑‑ Conviction upheld.

APPEAL from a judgment of the New Brunswick Court of Appeal (1991), 1991 CanLII 2410 (NB CA), 68 C.C.C. (3d) 500, 10 C.R. (4th) 34, dismissing the accused's appeal from his conviction on a charge of conspiracy to commit prison breach. Appeal dismissed.

Lisa A. Silver, for the appellant.

Graham J. Sleeth, Q.C., for the respondent.

The judgment of the Court was delivered orally by

La Forest J. ‑‑ Notwithstanding the able argument of counsel for the appellant, we are all of the view that the trial judge's conclusions as to guilt operate independently of his discussion of the adverse inference. The trial judge makes it abundantly clear that the Crown has proved its case and that the story proffered by the defendant is completely unbelievable. The discussion of the adverse inference is, in essence, made as an afterthought. It is, therefore, not necessary to deal with the issue of drawing an adverse inference from the failure to call evidence.

The appeal is accordingly dismissed.

Judgment accordingly.

Solicitors for the appellant: Greenspan, Humphrey, Toronto.

Solicitors for the respondent: William J. Corby and Graham J. Sleeth, Fredericton.