Docket

40221

B.E.M. v. His Majesty the King

(Alberta) (Criminal) (As of Right)

(Publication ban in case)

Judgments on applications for leave to appeal are rendered by the Court, but are not necessarily unanimous.

Proceedings
Date Proceeding Filed By
(if applicable)
2024-01-02 Transcript received, 69 pages
2023-12-13 General proceeding, Case Sensitivity Questionnaire His Majesty the King
2023-12-13 General proceeding, Case Sensitivity Questionnaire B.E.M.
2023-12-13 Formal judgment sent to the registrar of the court of appeal and all parties
2023-12-13 Judgment on appeal and notice of deposit of judgment sent to all parties
2023-12-08 Judgment on the appeal rendered, Ka Côt Mar Kas Mor, JUDGMENT

The appeal from the judgment of the Court of Appeal of Alberta (Edmonton), Number 2103-0100A, 2022 ABCA 207, dated June 9, 2022, was heard on December 8, 2023, and the Court on that day delivered the following judgment orally:

KASIRER J. — We are all of the view that the appeal should be dismissed.

It is common ground that, in closing submissions to the jury, Crown counsel should not have recounted an anecdote about a personal childhood memory that had no connection to the evidence (see Pisani v. The Queen, [1971] S.C.R. 738, at p. 740). Personal anecdotes have no place in closing submissions and are fundamentally at odds with the role of counsel, and particularly the role of Crown counsel (see Boucher v. The Queen, [1955] S.C.R. 16). But the majority of the Court of Appeal was correct to conclude that this error did not result in an unfair trial or a miscarriage of justice in this case.

Both the majority and the dissent relied on the relevant factors set out in R. v. Stephan, 2017 ABCA 380, 61 Alta. L.R. (6th) 26, rev’d on other grounds 2018 SCC 21, [2018] 1 S.C.R. 633, but disagreed on their application.

At issue before the jury was both the veracity and accuracy of the complainant’s own memory of the events relating to the sexual assaults she allegedly suffered as a child. The defence argued that these events never took place and challenged the complainant’s recollections as uneven. Insofar as this challenged the complainant’s version of events as lacking both credibility and reliability, the improper comments of Crown counsel were potentially serious as they touched on a core issue at the trial.

That said, the context of the anecdote considerably limited its prejudicial effect. First, and unlike Pisani, the personal anecdote was not about an offence or about conduct comparable to the substance of the allegations at issue. Moreover, the anecdote was not a prominent feature of the Crown’s closing address.

Furthermore, while defence counsel did object to other aspects of the Crown’s closing submissions that are not relevant to the appeal, no objection was made to the Crown’s personal anecdote. The failure of defence counsel to object to the anecdote is not of course dispositive, but it is a factor to be considered in measuring the impact on trial fairness on appeal (see R. v. Manasseri, 2016 ONCA 703, 132 O.R. (3d) 401, at para. 107).

The trial judge did caution the jury not to consider what counsel said as evidence. And while the trial judge did not undertake specific remedial steps to alert the jury to the improper comments of the Crown, the judge’s observation that jury members should use their “common sense understanding of how memories operate” (A.R., vol. I, at p. 63) is consonant with the idea that, although improper, the Crown’s anecdote should be read in that light. Nothing would suggest that the charge did not achieve its purpose “to properly equip the jury in the circumstances of the trial to decide the case according to the law and the evidence” (R. v. Abdullahi, 2023 SCC 19, at para. 72).

In sum, we agree with the view that Crown counsel’s improper anecdote did not render the appellant’s trial unfair.

The appeal is dismissed.
Dismissed
2023-12-08 Hearing of the appeal, 2023-12-08, Ka Côt Mar Kas Mor
Judgment rendered
2023-12-06 Certificate (on limitations to public access), 23B His Majesty the King
2023-12-06 Respondent's condensed book, (Book Form), (Printed version filed on 2023-12-07) His Majesty the King
2023-12-06 Certificate (on limitations to public access), 23B Attorney General of Ontario
2023-12-06 Intervener's condensed book, (Book Form) Attorney General of Ontario
2023-12-06 Certificate (on limitations to public access), 23B B.E.M.
2023-12-06 Appellant's condensed book, (Book Form), PUB-BAN B.E.M.
2023-12-04 Notice of Remote Participation by a Judge of the Supreme Court of Canada sent to all parties
2023-11-14 Notice of appearance, Dena Bonnet and Vallery Bayly will appear before the Court via Zoom and Dena Bonnet will present oral argument. Attorney General of Ontario
2023-11-10 Notice of appearance, Alexandra Seaman and Laura Matalas will appear before the Court via Zoom and Alexandra Seaman will present oral argument. Criminal Trial Lawyers' Association
2023-11-10 Notice of appearance, Cheryl Schlecker will appear before the Court in person and will present oral argument.
His Majesty the King
2023-11-10 Notice of appearance, Monique Dion and Alex Bernard will appear before the Court via Zoom and Monique Dion will present oral argument. Director of Public Prosecution
2023-11-10 Notice of appearance, Peter Sankoff and Elsa Wyllie will appear before the Court in person and Peter Sankoff will present oral argument.
B.E.M.
2023-07-28 Certificate (on limitations to public access), (Letter Form), 23B, (Printed version filed on 2023-08-02) Attorney General of Ontario
2023-07-28 Intervener's factum, (Book Form), Completed on: 2023-07-31, (Printed version filed on 2023-08-02) Attorney General of Ontario
2023-07-11 Intervener's factum, (Book Form), Proof of service, Incomplete, (Printed version filed on 2023-07-11) Director of Public Prosecution
2023-06-27 Notice of hearing sent to parties, via email.
2023-06-27 Appeal hearing scheduled, 2023-12-08
Judgment rendered
2023-06-16 Intervener's book of authorities, (Book Form), Completed on: 2023-06-16, (Printed version filed on 2023-06-16) Criminal Trial Lawyers' Association
2023-06-16 Order on motion for leave to intervene, by Justice Côté
2023-06-16 Order on motion to extend time, by Justice Côté (joint with order on intervention)
2023-06-16 Decision on the motion for leave to intervene, Côt,
UPON APPLICATION by the Attorney General of Ontario for an extension of time to serve and file a motion for leave to intervene and for leave to intervene in the above appeal;

AND THE MATERIAL FILED having been read;

IT IS HEREBY ORDERED THAT:

The motion for an extension of time is granted.

The motion for leave to intervene is granted and the intervener shall be entitled to serve and file a single factum not to exceed ten (10) pages in length on or before July 28, 2023.

The intervener is granted permission to present oral arguments not exceeding five (5) minutes at the hearing of the appeal.

The intervener is not entitled to raise new issues or to adduce further evidence or otherwise to supplement the record of the parties.

Pursuant to Rule 59(1)(a) of the Rules of the Supreme Court of Canada, the intervener shall pay to the appellant and the respondent any additional disbursements resulting from their intervention.

Granted
2023-06-16 Decision on motion to extend time, Côt, see decision on intervention
Granted
2023-06-16 Submission of motion for leave to intervene, (AGO), Côt
2023-06-16 Submission of motion to extend time, (AGO), Côt
2023-06-09 Letter advising the parties of tentative hearing date and filing deadlines (Notice of appeal – As of right)
2023-06-05 Response to the motion for leave to intervene, (Letter Form), Completed on: 2023-06-12 His Majesty the King
2023-06-05 Intervener's factum, (Book Form), Completed on: 2023-06-05, (Electronic version filed on 2023-06-14) Criminal Trial Lawyers' Association
2023-06-02 Response to the motion for leave to intervene, (Letter Form), Completed on: 2023-06-12 B.E.M.
2023-06-01 Motion to extend time, (Book Form), (to serve and file a motion for leave to intervene)
, Completed on: 2023-06-16
Attorney General of Ontario
2023-06-01 Motion for leave to intervene, (Book Form), MISSING: Filing Fee, Incomplete Attorney General of Ontario
2023-05-30 Order on motion for leave to intervene, by Justice Côté (sent to all parties by email)
2023-05-30 Order on motion to extend time, by Justice Côté (joint with order on intervention) - sent to all parties by email
2023-05-30 Decision on the motion for leave to intervene, Côt, UPON APPLICATION by the Director of Public Prosecutions for an extension of time to serve
and file a motion for leave to intervene and for leave to intervene in the above appeal;

AND THE MATERIAL FILED having been read;

IT IS HEREBY ORDERED THAT:

The motion for an extension of time is granted.

The motion for leave to intervene is granted and the intervener shall be entitled to serve and file a single factum not to exceed ten (10) pages in length on or before July 10, 2023.

The intervener is granted permission to present oral arguments not exceeding five (5) minutes at the hearing of the appeal.

The intervener is not entitled to raise new issues or to adduce further evidence or otherwise to supplement the record of the parties.

Pursuant to Rule 59(1)(a) of the Rules of the Supreme Court of Canada, the intervener shall pay to the appellant and the respondent any additional disbursements resulting from their intervention.


Granted
2023-05-30 Decision on motion to extend time, Côt
Granted
2023-05-30 Submission of motion for leave to intervene, Côt
2023-05-30 Submission of motion to extend time, Côt
2023-05-12 Response to motion to extend time, (Letter Form), (Included in the response to the motion for leave to intervene), Completed on: 2023-05-16 B.E.M.
2023-05-12 Response to the motion for leave to intervene, (Letter Form), Completed on: 2023-05-16 B.E.M.
2023-05-11 Motion to extend time, (Letter Form), to serve and file a motion for leave to intervene, Completed on: 2023-05-15, (Printed version filed on 2023-05-11) Director of Public Prosecution
2023-05-11 Motion for leave to intervene, (Letter Form), Completed on: 2023-05-15, (Printed version filed on 2023-05-11) Director of Public Prosecution
2023-04-27 Correspondence received from, In light of Justice Côté’s ruling, and subject to the Court’s direction to the contrary, the
Respondent confirms that, in relation to paragraphs 16-17 and 62-92 of the Appellant’s
Factum, it continues to rely on the submissions contained in its Amended Motion to
Strike and Amended Memorandum of Argument.
His Majesty the King
2023-04-24 Order on motion for leave to intervene, by Justice Côté (sent to parties by email)
2023-04-24 Order on motion to strike out, by Justice Côté (sent to parties by email)
2023-04-24 Decision on the motion for leave to intervene, Côt, UPON APPLICATION by the Criminal Trial Lawyers’ Association for leave to
intervene in the above appeal;

AND THE MATERIAL FILED having been read;

IT IS HEREBY ORDERED THAT:

The motion for leave to intervene is granted and the intervener shall be entitled to serve and file a single factum not to exceed ten (10) pages in length on or before June 5, 2023.

The intervener is granted permission to present oral arguments not exceeding five (5) minutes at the hearing of the appeal.

The intervener is not entitled to raise new issues or to adduce further evidence or otherwise to supplement the record of the parties.

Pursuant to Rule 59(1)(a) of the Rules of the Supreme Court of Canada, the intervener shall pay to the appellant and the respondent any additional disbursements resulting from their intervention.

Granted
2023-04-24 Decision on motion to strike out, Côt, UPON APPLICATION by the respondent for an order to strike parts of the appellant’s factum;

AND THE MATERIAL FILED having been read;

IT IS HEREBY ORDERED THAT:

The motion to strike is dismissed.

Dismissed
2023-04-24 Submission of motion for leave to intervene, Côt
2023-04-24 Submission of motion to strike out, Côt
2023-04-14 Certificate (on limitations to public access), 23B His Majesty the King
2023-04-14 Respondent's factum, (Book Form), Completed on: 2023-04-18, (Printed version filed on 2023-04-14) His Majesty the King
2023-04-14 Correspondence received from, Cheryl A. Schlecker, Re: scheduling of the appeal hearing His Majesty the King
2023-04-14 Correspondence received from, Peter Sankoff, Re: scheduling of the appeal hearing B.E.M.
2023-03-31 Response to the motion for leave to intervene, (Letter Form), Completed on: 2023-04-03 His Majesty the King
2023-03-24 Motion for leave to intervene, (Book Form), MISSING: Filing Fee (rec'd 2023-03-27), Completed on: 2023-03-27 Criminal Trial Lawyers' Association
2023-03-22 Certificate (on limitations to public access), (Letter Form), 23B - Response to Motion to Strike, (Printed version filed on 2023-03-23) B.E.M.
2023-03-22 Response to motion to strike out, (Letter Form), Completed on: 2023-03-27, (Printed version filed on 2023-03-23) B.E.M.
2023-03-20 Motion to strike out, (Book Form), Amended Notice filed on March 30, 2023
MISSING: Filing Fee, Completed on: 2023-04-17, (Printed version filed on 2023-03-21)
His Majesty the King
2023-02-27 Certificate of counsel (attesting to record), (Letter Form), (Printed version filed on 2023-02-27) B.E.M.
2023-02-27 Certificate (on limitations to public access), (Letter Form), 23B, (Printed version filed on 2023-02-27) B.E.M.
2023-02-27 Appellant's record, (Book Form), (3 volumes), Completed on: 2023-03-10, (Printed version filed on 2023-02-27) B.E.M.
2023-02-27 Appellant's factum, (Book Form), Completed on: 2023-03-10, (Printed version filed on 2023-02-27) B.E.M.
2023-02-02 Copy of formal judgment sent to Registrar of the Court of Appeal and all parties
2023-02-02 Judgment on leave sent to the parties
2023-02-02 Judgment of the Court on the application for leave to appeal, The application for leave to appeal from the judgment of the Court of Appeal of Alberta (Edmonton), Number 2103-0100A, 2022 ABCA 207, dated June 9, 2022, is dismissed.
Dismissed
2022-11-28 All materials on application for leave submitted to the Judges, for consideration by the Court
2022-10-12 Certificate (on limitations to public access), (Letter Form), 23B, (Printed version due on 2022-10-19) B.E.M.
2022-10-12 Applicant's reply to respondent's argument, (Letter Form), Completed on: 2022-11-01, (Printed version due on 2022-10-19) B.E.M.
2022-10-03 Certificate (on limitations to public access), (Letter Form), 23A & 23B, (Printed version due on 2022-10-11) His Majesty the King
2022-10-03 Respondent's response on the application for leave to appeal, (Book Form), Completed on: 2022-10-03, (Printed version filed on 2022-10-03) His Majesty the King
2022-09-08 Letter acknowledging receipt of a complete application for leave to appeal
2022-09-07 Certificate (on limitations to public access), (Letter Form), 23B-Application, (Printed version filed on 2022-09-07) B.E.M.
2022-09-07 Application for leave to appeal, (Book Form), Completed on: 2022-09-08, (Printed version filed on 2022-09-07) B.E.M.
2022-08-02 Order on motion to extend time, by CHIEF JUSTICE
2022-08-02 Decision on motion to extend time, CJ, UPON APPLICATION by the appellant for an order extending the time to serve and file his factum, record and book of authorities, if any, to four (4) weeks after the Court has rendered its decision on the application for leave to appeal expected to be filed in this matter;

AND THE MATERIAL FILED having been read;

AND NOTING the consent of the respondent;

IT IS HEREBY ORDERED THAT:

The motion is granted.

Granted
2022-08-02 Submission of motion to extend time, CJ
2022-07-27 Response to motion to extend time, (Letter Form), Completed on: 2022-07-27, (Printed version due on 2022-08-04) His Majesty the King
2022-07-26 Certificate (on limitations to public access), (Letter Form), 23B - Motion for an extension of time, (Printed version filed on 2022-07-27) B.E.M.
2022-07-26 Motion to extend time, (Letter Form), Missing: Filing Fee (Rec'd 2022-07-28), Completed on: 2022-07-29, (Printed version filed on 2022-07-27) B.E.M.
2022-06-20 Letter acknowledging receipt of a notice of appeal, FILE OPENED 2022-06-20
2022-06-10 Certificate (on limitations to public access), 23B B.E.M.
2022-06-10 Certificate (on limitations to public access), 23A B.E.M.
2022-06-10 Notice of appeal, (Letter Form), Completed on: 2022-06-10, (Printed version filed on 2022-06-10) B.E.M.