SUPREME COURT OF CANADA

Citation: R. v. Laboucan, 2009 SCC 18, [2009] 1 S.C.R. 620

Date: 20090414 Docket: 33010

Between: Her Majesty The Queen Appellant

and

Joseph Wesley Laboucan Respondent

Coram: Binnie, Fish, Charron, Rothstein and Cromwell JJ.

Reasons for Judgment: (motion to quash an appeal as of right; application for leave to appeal) (paras. 1 to 7)

Binnie J. (Fish, Charron, Rothstein and Cromwell JJ. concurring)

R. v. Laboucan, 2009 SCC 18, [2009] 1 S.C.R. 620

Her Majesty The Queen Appellant

v.

Joseph Wesley Laboucan Respondent

Indexed as: R. v. Laboucan

Neutral citation: 2009 SCC 18.

File No.: 33010.

2009: April 14.

Present: Binnie, Fish, Charron, Rothstein and Cromwell JJ.

motion to quash an appeal as of right

application for leave to appeal

Criminal law — Appeals — Supreme Court of Canada — Appeal as of right — Dissent on question of law — Application for leave to appeal — Curative proviso — Crown’s notice of appeal based on dissent in Court of Appeal on issue of whether trial judge erred in law in his assessment of accused’s credibility — Unnecessary for Crown to seek leave to appeal from refusal of majority of Court of Appeal to apply curative proviso — Error of law and application of curative proviso always intertwined issues.

Cases Cited

Applied: R. v. Keegstra, [1995] 2 S.C.R. 381.

Statutes and Regulations Cited

Criminal Code, R.S.C. 1985, c. C-46, s. 686(1)(b)(iii).

MOTION to quash the appeal as of right and APPLICATION for leave to appeal from a judgment of the Alberta Court of Appeal (Berger, Slatter and Rowbotham JJ.A.), 2009 ABCA 7, 1 Alta. L.R. (5th) 264, 446 A.R. 106, 442 W.A.C. 106, 241 C.C.C. (3d) 315, [2009] 4 W.W.R. 430, [2009] A.J. No. 2 (QL), 2009 CarswellAlta 3. Motion to quash withdrawn and leave to appeal dismissed.

James C. Robb, Q.C., for the appellant (applicant on the application for leave to appeal/respondent on motion to quash).

Laura K. Stevens, Q.C., for the respondent (respondent on application for leave to appeal/applicant on motion to quash).

The judgment of the Court was delivered orally by

[1] Binnie J. — The conviction of the respondent Joseph Wesley Laboucan of first degree murder, aggravated sexual assault, and kidnapping was overturned by a majority decision of the Alberta Court of Appeal, Rowbotham J.A. dissenting: 2009 ABCA 7 , 1 Alta. L.R. (5th) 264 (sub nom. R. v. Briscoe). The Crown urged the Court of Appeal to apply the proviso contained in s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46. The majority considered this not to be a proper case for its application. The dissenting judge concluded that no error of law had been committed and that it was unnecessary to address the proviso, although the appellant contends that she in fact applied it in characterizing the judge’s impugned instruction as harmless. In either event it is clear that the proviso was in play before the Court of Appeal.

[2] The Crown has filed a notice of appeal to this Court based on Rowbotham J.A.’s dissent on “the question of law”, namely whether the trial judge erred in law in his assessment of the credibility of the respondent when, in the context of his reasons as a whole, he noted that the respondent “has a very great motive to be untruthful given the consequences of being convicted of the offences charged”. The dissenting judge held that “the trial judge’s reference to motive” neither “reversed the burden of proof [n]or presumed the [accused’s] guilt” (para. 63).

[3] The respondent, Mr. Laboucan, moved to quash the appeal on the basis that the dissent was not based on a question of law. The Crown brought a cross-motion to seek leave, if leave be necessary, to appeal the refusal of the majority to apply the proviso.

[4] After pre-hearing consultation between counsel for the respondent and counsel for the Crown, the Court was advised at the hearing that the respondent would ask to withdraw the motion to quash. We agree that the motion was not well founded. The appeal’s status as an appeal as of right on the alleged error of law being now uncontested, the question arises as to whether it is necessary for the Crown to seek leave to appeal the refusal to apply the proviso.

[5] In R. v. Keegstra, [1995] 2 S.C.R. 381, Lamer C.J. provided a “clarification of which arguments may be raised by respondents in criminal appeals” (para. 30) and stated that “an appellant who has a narrow right of appeal based on a dissent, or who has been granted leave to appeal on restricted grounds, will be able to address all aspects of the question, even if the court of appeal treated the different aspects separately” (para. 31). One example of this intertwining of issues, he noted, is the question of whether a particular error of law (if established) is so serious that it justifies setting aside the trial verdict:

The provisions for taking account of the severity of errors (s. 686(1)(b)(iii) in the case of convictions, and the threshold set out in Vézeau v. The Queen, [1977] 2 S.C.R. 277, in the case of acquittals) will always be intertwined with any error of law considered by this Court. [Emphasis added; para. 31.]

[6] Accordingly, at the hearing of an appeal the Court will determine, if an error of law is found, whether (assuming that the Crown has invoked the proviso) the error is so serious that it justifies setting aside the trial verdict or whether it can be saved under the provisions of s. 686(1)(b)(iii). It is unnecessary for the Crown to seek leave on the issue of the application of s. 686(1)(b)(iii).

[7] In the result, the motion to quash not being pursued, and the motion for leave to appeal the application of s. 686(1)(b)(iii) of the Criminal Code being unnecessary, the Court permits the withdrawal of the motion to quash and dismisses the application for leave to appeal the application of the proviso as unnecessary.

Judgment accordingly.

Solicitor for the appellant: Attorney General of Alberta, Edmonton.

Solicitors for the respondent: Dawson Stevens & Shaigec, Edmonton.