R. v. Fleming, [1999] 3 S.C.R. 662

Her Majesty The Queen Appellant

v.

David Patrick Fleming Respondent

Indexed as: R. v. Fleming

File No.: 27120.

1999: October 15.

Present: L’Heureux-Dubé, McLachlin, Iacobucci, Major and Arbour JJ.

on appeal from the court of appeal for newfoundland

Criminal law -- Sexual offences -- Reasonable doubt -- Similar fact evidence -- Accused convicted of sexual offences -- Trial judge’s charge on reasonable doubt and re-charge on use of similar fact evidence containing errors -- Proviso in s. 686(1)(b)(iii) of Criminal Code inapplicable -- Court of Appeal’s judgment quashing convictions and ordering new trial affirmed.

APPEAL from a judgment of the Newfoundland Court of Appeal (1999), 1999 CanLII 18921 (NL CA), 171 Nfld. & P.E.I.R. 183, 525 A.P.R. 183, [1999] N.J. No. 42 (QL), allowing the accused’s appeal from conviction and ordering a new trial. Appeal dismissed, L’Heureux-Dubé and McLachlin JJ. dissenting.

Wayne Gorman, for the appellant.

James Lockyer and Jerome P. Kennedy, for the respondent.

The judgment of the Court was delivered orally by

[ 1 ] Iacobucci J. -- We agree with the majority of the Newfoundland Court of Appeal that the conceded errors of the trial judge in his charge dealing with reasonable doubt and in his re-charge on the use of similar fact evidence were such that the proviso in s. 686(1)(b)(iii) of the Criminal Code, R.S.C., 1985, c. C-46, should not be applied in all the circumstances of this case. Madame Justice L’Heureux-Dubé and Madam Justice McLachlin, dissenting, would have applied the proviso.

[ 2 ] Accordingly, this appeal as of right is dismissed.

Judgment accordingly.

Solicitor for the appellant: The Department of Justice, St. John’s.

Solicitors for the respondent: Simmonds, Kennedy, St. John’s; Pinkofsky, Lockyer, Toronto.