Reasons for Judgment — McLachlin C.J. (Rothstein and Cromwell JJ. concurring)
The Chief Justice — The majority of the Court would dismiss the appeal, LeBel and Fish JJ. dissenting. While we are persuaded that the presiding judge erred in law in his instruction about the limited use of Mr. Babcock’s criminal record, we are of the view that this error did not occasion any substantial wrong or miscarriage of justice, given the fact that propensity reasoning relative to Mr. Babcock’s record was never placed before the jury either implicitly through the examination of witnesses or explicitly through the submissions to the jury, and given the absence of any evidentiary foundation to support a propensity instruction with respect to Mr. Babcock’s record.
The reasons of LeBel and Fish JJ. were delivered orally by
Dissenting Reasons — LeBel J. (Fish J. concurring)
LeBel J. (dissenting) — With respect, I agree with Prowse J.A., dissenting, that the trial judge erred in law in instructing the jury on the use of the criminal record of a third party suspect. More particularly, the judge misdirected the jury in saying that such evidence could be used only to test the credibility of the third party. In my opinion, this error of law cannot be cured by the application of s. 686(1)(b)(iii) of the Criminal Code , R.S.C. 1985, c. C-46 . The evidence against the accused was not overwhelming. The error of law was clear and significant. In the context of this trial, it could not be considered to be harmless. For these reasons, I would allow the appeal, quash the conviction and order a new trial on the same charges.