Criminal Law: Sexual Assault; R. v. (W.)D.; Similar Fact Evidence

R. v. Gul, 2020 QCCA 15572021 SCC 14 (39414) 

The Chief Justice (Moldaver and Kasirer JJ. concurring): “The appellant appeals as of right from a decision in which a majority of the Quebec Court of Appeal upheld a verdict of guilty entered by the trial judge. A majority of judges of this Court would, for the reasons of Savard C.J.Q. and Schrager J.A., and in particular for the reasons set out at para. 44 of the Court of Appeal’s decision, dismiss the appeal.”

Rowe J. (Brown J. concurring): “The Crown acknowledges, and we agree with the Quebec Court of Appeal, that the trial judge erred in characterizing a prior event as [translation] “probative evidence of past misconduct” (2018 QCCQ 7257, at para. 21 (CanLII)). However, unlike our colleagues, we are of the view that the curative proviso set out in s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46 , cannot apply. At para. 21 of his reasons, the trial judge explained that the evidence in question was probative to “demonstrate similarity of conduct, determine the credibility of the accused, establish the identity of the offender and enhance the credibility of the complainant, because her version is contradicted by that of the accused”. In our view, because the assessment of the credibility of the accused and of the complainant was central to the case, this is not a situation in which the Crown’s evidence was overwhelming and conviction was inevitable. As this Court held in R. v. Trochym, 2007 SCC 6, [2007] 1 S.C.R. 239, at para. 82, whether the evidence against an accused is overwhelming is a higher standard than the requirement that the Crown prove its case beyond a reasonable doubt. For these reasons, we would therefore have allowed the appeal and ordered a new trial on the same charges.”