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R. v. S.H.

2020 SCC 3 [2020] 1 SCR 12 Court SCC Decision date 2020-02-19 Heard 2020-02-19 Docket 38827 English

PartiesS.H. Appellant·Her Majesty The Queen Respondent·Criminal Lawyers’ Association (Ontario) Intervener

Counsel (2)
Solicitor for the respondent: Public Prosecution Service of Canada, Toronto.
Solicitors for the intervener: Stockwoods, Toronto.

Judges Abella, Rosalie Silberman; Moldaver, Michael J.; Côté, Suzanne; Brown, Russell; Martin, Sheilah

Delivered by Brown J.

On appeal from Ontario

Contents

Dissent Read By — Brown J.

Moldaver J. — A majority of the Court is of the view that the evidence adduced by the Crown after the re-opening was essentially confirmatory of the evidence that had already been adduced by the Crown showing that the appellant had constructive possession of the drugs in question. We agree with the majority of the Court of Appeal that the evidence led prior to the re-opening was overwhelming.
In these circumstances, we are satisfied that the Court of Appeal did not err in applying the curative proviso to sustain the convictions.
Accordingly, we would dismiss the appeal.

The reasons of Brown and Martin JJ. were delivered orally by

Brown J. (dissenting) — We would allow the appeal and order a new trial. In our view, the trial judge’s error in allowing the Crown to split its case led to an unfair trial, which miscarriage of justice cannot be cured: R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at para. 27.

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