Case information
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40221
B.E.M. v. His Majesty the King
(Alberta) (Criminal) (As of Right)
(Publication ban in case)
Docket
Judgments on applications for leave to appeal are rendered by the Court, but are not necessarily unanimous.
| 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. |
Parties
Please note that in the case of closed files, the “Status” column reflects the status of the parties at the time of the proceedings. For more information about the proceedings and about the dates when the file was open, please consult the docket of the case in question.
Main parties
| Name | Role | Status |
|---|---|---|
| B.E.M. | Appellant | Active |
v.
| Name | Role | Status |
|---|---|---|
| His Majesty the King | Respondent | Active |
Other parties
| Name | Role | Status |
|---|---|---|
| Criminal Trial Lawyers' Association | Intervener | Active |
| Director of Public Prosecution | Intervener | Active |
| Attorney General of Ontario | Intervener | Active |
Counsel
Party: B.E.M.
Counsel
Peter Sankoff
Sankoff Criminal Law
Ritchie Mill
10171 Saskatchewan Dr NW #414
Edmonton, Alberta
T6E 4R5
Telephone: (780) 655-1611
Email: peter@sankoffcriminallaw.com
Ritchie Mill
10171 Saskatchewan Dr NW #414
Edmonton, Alberta
T6E 4R5
Telephone: (780) 655-1611
Email: peter@sankoffcriminallaw.com
Agent
Moira Dillon
Supreme Law Group
440 Laurier Ave. West
Suite 200
Ottawa, Ontario
K1R 7X6
Telephone: (613) 691-1224
FAX: (613) 691-1338
Email: mdillon@supremelawgroup.ca
440 Laurier Ave. West
Suite 200
Ottawa, Ontario
K1R 7X6
Telephone: (613) 691-1224
FAX: (613) 691-1338
Email: mdillon@supremelawgroup.ca
Party: His Majesty the King
Counsel
Cheryl Schlecker
Alberta Justice Appeal Branch
9833-109 Street
3rd Flr., Bowker Building
Edmonton, Alberta
T5K 2E8
Telephone: (780) 644-1844
FAX: (780) 422-1106
Email: cheryl.schlecker@gov.ab.ca
9833-109 Street
3rd Flr., Bowker Building
Edmonton, Alberta
T5K 2E8
Telephone: (780) 644-1844
FAX: (780) 422-1106
Email: cheryl.schlecker@gov.ab.ca
Agent
D. Lynne Watt
Gowling WLG (Canada) LLP
160 Elgin Street
Suite 2600
Ottawa, Ontario
K1P 1C3
Telephone: (613) 786-8695
FAX: (613) 788-3509
Email: lynne.watt@gowlingwlg.com
160 Elgin Street
Suite 2600
Ottawa, Ontario
K1P 1C3
Telephone: (613) 786-8695
FAX: (613) 788-3509
Email: lynne.watt@gowlingwlg.com
Party: Criminal Trial Lawyers' Association
Counsel
Alexandra Seaman
Laura Matalas
Laura Matalas
Dawson Duckett Garcia & Johnson
9924 - 106 Street, Suite 300
Edmonton, Alberta
T5K 1C4
Telephone: (780) 424-9058
FAX: (780) 425-0172
Email: aseaman@dsscrimlaw.com
9924 - 106 Street, Suite 300
Edmonton, Alberta
T5K 1C4
Telephone: (780) 424-9058
FAX: (780) 425-0172
Email: aseaman@dsscrimlaw.com
Party: Director of Public Prosecution
Counsel
Monique Dion
Public Prosecution Service of Canada
700, 10423 - 101 Street
Edmonton, Alberta
T5H 0E7
Telephone: (780) 495-2633
FAX: (780) 495-6940
Email: monique.dion@ppsc-sppc.gc.ca
700, 10423 - 101 Street
Edmonton, Alberta
T5H 0E7
Telephone: (780) 495-2633
FAX: (780) 495-6940
Email: monique.dion@ppsc-sppc.gc.ca
Agent
François Lacasse
Director of Public Prosecutions of Canada
160 Elgin Street
12th Floor
Ottawa, Ontario
K1A 0H8
Telephone: (613) 957-4770
FAX: (613) 941-7865
Email: francois.lacasse@ppsc-sppc.gc.ca
160 Elgin Street
12th Floor
Ottawa, Ontario
K1A 0H8
Telephone: (613) 957-4770
FAX: (613) 941-7865
Email: francois.lacasse@ppsc-sppc.gc.ca
Party: Attorney General of Ontario
Counsel
Dena Bonnet
Katherine Beaudoin
Katherine Beaudoin
Attorney General of Ontario
Crown Law Office Criminal
720 Bay Street, 10th floor
Toronto, Ontario
M7A 2S9
Telephone: (416) 326-4600
FAX: (416) 326-4656
Email: EserviceCLOC@ontario.ca
Crown Law Office Criminal
720 Bay Street, 10th floor
Toronto, Ontario
M7A 2S9
Telephone: (416) 326-4600
FAX: (416) 326-4656
Email: EserviceCLOC@ontario.ca
Summary
Keywords
Criminal law — Charge to jury — Miscarriage of Justice — Trial fairness — Crown submissions made to jury — Whether the trial judge failed to instruct the jury to ignore improper submissions made by the Crown on matters not in evidence.
Summary
Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.
(PUBLICATION BAN IN CASE)
The appellant, B.E.M., was convicted by jury of historical sexual assault and sexual interference offences against his stepdaughter. The only two witnesses at the trial were the complainant and appellant. Credibility was a key issue. In closing submissions, Crown counsel gave a lengthy address to the jury in which he offered a personal anecdote.
On appeal, the appellant argued, amongst other, that the trial judge erred in the charge to the jury by failing to instruct the jury to ignore the Crown’s improper submissions on matters not in evidence. A majority of the Court of Appeal, per Slatter and Schutz JJ.A., dismissed the appeal. In their view, there was no risk that the Crown’s reference to the personal anecdote in its closing submissions resulted in any miscarriage of justice. In dissent, Veldhuis J.A. would have allowed the conviction appeal. In her view, the Crown’s closing submissions to the jury were not egregious but were on a key issue and the trial judge did not provide a specific limiting instruction to the jury, thus rendering the trial unfair.
Lower court rulings
February 11, 2021
Court of Queen’s Bench of Alberta
151054590Q1
Court of Queen’s Bench of Alberta
151054590Q1
Conviction for sexual interference and sexual assault
June 9, 2022
Court of Appeal of Alberta (Edmonton)
2022 ABCA 207, 2103-0100A
Court of Appeal of Alberta (Edmonton)
2022 ABCA 207, 2103-0100A
Appeal dismissed
Memorandums of argument on application for leave to appeal
The memorandums of argument on an application for leave to appeal will be posted here 30 days after leave to appeal has been granted unless they contain personal information, information that is subject to a publication ban, or any other information that is not part of the public record. You may also obtain copies of the memorandum by filing out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613‑996‑7933 or at 1‑888‑551‑1185.
If you have questions about a memorandum of argument or want to use a memorandum of argument, please contact the author of the memorandum of argument directly. Their name appears at the end of the memorandum of argument. The contact information for counsel is found in the “Counsel” tab of this page.
Downloadable PDFs
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Related links
Factums on appeal
The factums of the appellant, the respondent and the intervener will be posted here at least 2 weeks before the hearing unless they contain personal information, information that is subject to a publication ban, or any other information that is not part of the public record. You may also obtain copies of factums by filling out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613‑996‑7933 or at 1‑888‑551‑1185.
If you have questions about a factum or want permission to use a factum, please contact the author of the factum directly. Their contact information appears on the first page of each factum.
Downloadable PDFs
Not available
Related links
Date modified: 2024-11-19