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R. v. Fleming, [1999] 3 S.C.R. 662


Her Majesty The Queen                                                                   Appellant




David Patrick Fleming Respondent


Indexed as:  R. v. Fleming


File No.:  27120.


1999:  October 15.


Present:  L’Heureux-Dubé, McLachlin, Iacobucci, Major and Arbour JJ.


on appeal from the court of appeal for newfoundland


Criminal law -- Sexual offences -- Reasonable doubt -- Similar fact evidence -- Accused convicted of sexual offences -- Trial judge’s charge on reasonable doubt and re-charge on use of similar fact evidence containing errors -- Proviso in s. 686(1)(b)(iii) of Criminal Code  inapplicable -- Court of Appeal’s judgment quashing convictions and ordering new trial affirmed.


APPEAL from a judgment of the Newfoundland Court of Appeal (1999), 171 Nfld. & P.E.I.R. 183, 525 A.P.R. 183, [1999] N.J. No. 42 (QL), allowing the accused’s appeal from conviction and ordering a new trial.  Appeal dismissed, L’Heureux-Dubé and McLachlin JJ. dissenting.

Wayne Gorman, for the appellant.


James Lockyer and Jerome P. Kennedy, for the respondent.


The judgment of the Court was delivered orally by


1                                   Iacobucci J. -- We agree with the majority of the Newfoundland Court of Appeal that the conceded errors of the trial judge in his charge dealing with reasonable doubt and in his re-charge on the use of similar fact evidence were such that the proviso in s. 686(1)(b)(iii) of the Criminal Code , R.S.C., 1985, c. C-46 , should not be applied in all the circumstances of this case.  Madame Justice L’Heureux-Dubé and Madam Justice McLachlin, dissenting, would have applied the proviso.


2                                   Accordingly, this appeal as of right is dismissed.


Judgment accordingly.


Solicitor for the appellant:  The Department of Justice, St. John’s.


Solicitors for the respondent:  Simmonds, Kennedy, St. John’s; Pinkofsky, Lockyer, Toronto.


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