R. v. Cortes Rivera

Supreme Court of Canada

2020 SCC 44 | File No.: 39084

Appeal Heard and Judgment Rendered: December 11, 2020

Parties

Joaquin Alfredo Cortes Rivera — Appellant

Her Majesty The Queen — Respondent

Criminal Lawyers' Association of Ontario — Intervener

Indexed as: R. v. Cortes Rivera

On appeal from the Court of Appeal for Alberta

Coram

Abella, Karakatsanis, Rowe, Martin and Kasirer JJ.

Unanimous Judgment Read By: Abella J. (paras. 1 to 2)

Subject Matter

Criminal law — Evidence — Admissibility — Complainant's sexual activity — Trial judge dismissing accused's application to cross-examine complainant on prior sexual activity — Accused convicted of sexual assault — Court of Appeal holding that trial judge erred in dismissing application — Majority of Court of Appeal applying curative proviso to affirm conviction — Dissenting judge would have ordered that complainant's evidence be supplemented — Conviction upheld.

Statutes and Regulations Cited

Criminal Code, R.S.C. 1985, c. C-46, ss. 276.1, 683(1), 686(1)(b).

History

APPEAL from a judgment of the Alberta Court of Appeal (Slatter, Bielby and O'Ferrall JJ.A.), 2020 ABCA 76, 457 C.R.R. (2d) 223, 453 D.L.R. (4th) 387, [2020] A.J. No. 235 (QL), 2020 CarswellAlta 330 (WL Can.), affirming the conviction entered by Goss J., 2017 ABQB 593, [2017] A.J. No. 1026 (QL), 2017 CarswellAlta 1808 (WL Can.). Appeal dismissed.

Counsel

Deborah R. Hatch, for the appellant.

Keith A. Joyce, for the respondent.

Megan Savard, for the intervener.

Judgment

The following is the judgment delivered orally by

[1] The Court — We would dismiss the appeal. The parties did not dispute that the trial judge erred in dismissing the accused's application under s. 276.1 of the Criminal Code, R.S.C. 1985, c. C-46, to cross‑examine the complainant. In our view, this error did not lead to a miscarriage of justice and falls within the curative proviso under s. 686(1)(b) because the evidence was otherwise overwhelming and a conviction was inevitable.

[2] We do not endorse Slatter J.A.'s application of s. 683(1). Neither party sought this remedy before the Court of Appeal, and in this Court, both parties as well as the intervener urged us to reject his approach.

Judgment accordingly.

Solicitors

Solicitors for the appellant: Deborah Hatch Law Office, Edmonton.

Solicitor for the respondent: Alberta Crown Prosecution Service, Appeals, Education & Prosecution Policy Branch, Edmonton.

Solicitors for the intervener: Addario Law Group, Toronto.