Supreme Court of Canada

R. v. J.M., 2019 SCC 24, [2019] 2 S.C.R. 396

Parties

Her Majesty The Queen — Appellant

v.

J.M. — Respondent

and

Criminal Lawyers' Association (Ontario) — Intervener

Court Information

Indexed as: R. v. J.M.

Citation: 2019 SCC 24

File No.: 38483

Date: 2019: April 18

Coram: Abella, Karakatsanis, Côté, Rowe and Martin JJ.

Reasons

Reasons for Judgment: (paras. 1 to 3)

Abella J. (Karakatsanis, Côté, Rowe and Martin JJ. concurring)

Headnote

Criminal law — Evidence — Admissibility — Charge to jury — Post-offence conduct — Failure to attend trial — Trial judge permitting Crown to lead evidence at accused's trial that accused failed to attend for his original trial date — Trial judge instructing jury on use it could make of evidence — Accused convicted of sexual assault — Court of Appeal setting aside convictions and ordering new trial — Majority holding that trial judge erred in failing to engage in second step of admissibility inquiry and in his instructions to jury on post-offence conduct — Dissenting judge finding that trial judge's decision to admit evidence entitled to deference and that charge to jury was adequate — Failure to attend trial is not presumptively post-offence conduct and its admissibility must be assessed on case-by-case basis — Convictions restored.

APPEAL from a judgment of the Ontario Court of Appeal (MacPherson, Huscroft and Nordheimer JJ.A.), 2018 ONCA 1054, 144 O.R. (3d) 125, 370 C.C.C. (3d) 458, [2018] O.J. No. 6741 (QL), 2018 CarswellOnt 21543 (WL Can.), setting aside the convictions of the accused for sexual assault and ordering a new trial. Appeal allowed, Abella and Karakatsanis JJ. dissenting.

Counsel

For the appellant: Luke Schwalm and Alexander Alvaro

For the respondent: Michael A. Johnston and Matthew B. Day

For the intervener: Solomon Friedman and Meaghan McMahon

Judgment

The judgment of the Court was delivered orally by

[1] Abella J. — We are all of the view that the failure to attend a trial is not presumptively after-the-fact conduct. Its admissibility must be assessed on a case-by-case basis.

[2] A majority, however, is of the view that the appeal should be allowed substantially for the reasons of Justice Huscroft. Justice Karakatsanis and I would dismiss the appeal for the reasons of Justice Nordheimer.

[3] The appeal is therefore allowed and the convictions are restored.

Judgment accordingly.

Solicitors

Solicitor for the appellant: Attorney General of Ontario, Toronto.

Solicitors for the respondent: Shore Johnston Hyslop Day, Ottawa.

Solicitors for the intervener: Edelson & Friedman, Ottawa.