Case information

Criminal law - Appeals - Curative proviso - Evidence - Similar fact evidence - Identification evidence - Credibility - Whether majority of Court of Appeal erred in concluding that probative value of evidence originally characterized as similar fact evidence greatly exceeded its prejudicial effect - Whether majority of Court of Appeal erred in placing too much emphasis on identification - Whether majority of Court of Appeal erred in concluding that there was no possibility that judge or properly instructed jury would have acquitted appellant had it not been for error made - Whether majority of Court of Appeal erred in finding that trial judge had separated similar fact evidence from his analysis of complainant’s testimony regarding identification of her assailant - Whether majority of Court of Appeal erred in finding that trial judge did not have to undertake intrinsic analysis of witnesses’ credibility and reliability.

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(PUBLICATION BAN IN CASE)

At trial before the Court of Québec, the appellant, Mr. Gul, was found guilty of sexual assault (s. 271(a) of the Criminal Code, R.S.C. 1985, c. C-46) and breaking and entering with intent to commit an indictable offence (s. 348(1)(a)(d)).

The appellant appealed his convictions. Savard C.J.Q and Schrager J.A., for the majority, dismissed the appeal. They agreed with Ruel J.A. that the trial judge erred in characterizing a previous incident of the appellant entering the complainant’s apartment as similar fact evidence, but disagreed as to the effect of such error on the outcome of the case. In the majority’s opinion, even absent the so-called similar fact evidence, the guilty verdict would have ensued and it therefore applied the curative proviso in s. 686(1)(b)(iii) of the Criminal Code. None of the other grounds raised by the appellant convinced the majority that intervention was warranted.

In dissent, Ruel J.A. would have allowed the appeal and ordered a new trial. He held that the trial judge made errors of law in applying the framework in R. v. W.(D.), [1991] 1 S.C.R. 742, and in characterizing the past event as similar fact evidence in order to demonstrate the similarity of the appellant’s conduct and to enhance the credibility of the complainant with respect to the offence of sexual assault. This was a serious legal error and it could not be cured by s. 686(1)(b)(iii), because it was not possible to say that the verdict would have been the same but for the error.