Canada Judgment

Supreme Court of Canada

R. v. Cortes Rivera

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Professional case brief

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Source document

01

Holding and result

Although the trial judge erred in dismissing the s.276.1 application to cross-examine the complainant, the error did not produce a miscarriage of justice because the remaining evidence was overwhelming and conviction was inevitable; the curative proviso in s.686(1)(b) applies and the appeal is dismissed.

Court disposition

Appeal dismissed; conviction upheld

Orders

  • Appeal dismissed
  • Conviction affirmed

02

Material facts

Parties

Joaquin Alfredo Cortes Rivera

Appellant Counsel: Deborah R. Hatch

Her Majesty The Queen

Respondent Counsel: Keith A. Joyce

Criminal Lawyers' Association of Ontario

Intervener Counsel: Megan Savard

03

Procedural history

  1. Posture

    Criminal Appeal / Appeal to Supreme Court of Canada; Judgment Rendered

04

Questions and positions

Legal issues

Party arguments

Applicant
Appellant argued the trial judge erred in refusing authorization under s.276.1 to cross-examine the complainant about prior sexual activity and that the error required setting aside the conviction or ordering a new trial.
Respondent
Respondent accepted that the trial judge erred but argued the error did not cause a miscarriage of justice and that the curative proviso in s.686(1)(b) should be applied to uphold the conviction; both parties and the intervener opposed Slatter J.A.'s s.683(1) approach.

05

Court’s reasoning

  1. 01

    Criminal Code, R.S.C. 1985, c. C-46, s.276.1

    Limits on cross-examination about a complainant's prior sexual activity are governed by statutory procedures and protections

  2. 02

    Criminal Code, R.S.C. 1985, c. C-46, s.686(1)(b)

    An appellate court may apply the curative proviso to dismiss an appeal despite trial error when the error did not result in a miscarriage of justice because the conviction was inevitable

  3. 03

    Criminal Code, R.S.C. 1985, c. C-46, s.683(1) and appellate practice

    Appellate remedies under s.683(1) require appropriate invocation and were not endorsed in this case

06

Ratio, limits and disposition

Ratio decidendi

Although the trial judge erred in dismissing the s.276.1 application to cross-examine the complainant, the error did not produce a miscarriage of justice because the remaining evidence was overwhelming and conviction was inevitable; the curative proviso in s.686(1)(b) applies and the appeal is dismissed.

Obiter and limits

  • The Court declined to endorse Slatter J.A.'s application of s.683(1) as neither party sought that remedy before the Court of Appeal and both parties and the intervener urged its rejection
  • The error was acknowledged but characterized as harmless given the strength of the other evidence

Court disposition

Appeal dismissed; conviction upheld

  • Appeal dismissed
  • Conviction affirmed

Source and reliance status

Supreme Court of Canada · 11 December 2020

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Judgment reading view

Judgment text

The complete available source text.

Source document

Supreme Court of Canada

Judgment· 11 December 2020

2020 SCC 44

R. v. Cortes Rivera Collection Supreme Court Judgments Date 2020-12-11 Neutral citation 2020 SCC 44 Report [2020] 3 SCR 906 Case number 39084 Judges Abella, Rosalie Silberman; Karakatsanis, Andromache; Rowe, Malcolm; Martin, Sheilah; Kasirer, Nicholas On appeal from Alberta Notes SCC Case Information Decision Content

SUPREME COURT OF CANADA Citation: R. v. Cortes Rivera, 2020 SCC 44, [2020] 3 S.C.R. 906 Appeal Heard: December 11, 2020 Judgment Rendered: December 11, 2020 Docket: 39084 Between: Joaquin Alfredo Cortes Rivera Appellant and Her Majesty The Queen Respondent - and - Criminal Lawyers’ Association of Ontario Intervener Coram: Abella, Karakatsanis, Rowe, Martin and Kasirer JJ. Unanimous Judgment Read By: (paras. 1 to 2) Abella J. r. v. cortes rivera Joaquin Alfredo Cortes Rivera Appellant v. Her Majesty The Queen Respondent and Criminal Lawyers’ Association of Ontario Intervener Indexed as: R. v. Cortes Rivera 2020 SCC 44 File No.: 39084. 2020: December 11. Present: Abella, Karakatsanis, Rowe, Martin and Kasirer JJ. on appeal from the court of appeal for alberta Criminal law — Evidence — Admissibility — Complainant’s sexual activity — Trial judge dismissing accused’s application to cross-examine complainant on prior sexual activity — Accused convicted of sexual assault — Court of Appeal holding that trial judge erred in dismissing application — Majority of Court of Appeal applying curative proviso to affirm conviction — Dissenting judge would have ordered that complainant’s evidence be supplemented — Conviction upheld. Statutes and Regulations Cited Criminal Code , R.S.C. 1985, c. C-46, ss. 276.1 , 683(1) , 686(1) (b). APPEAL from a judgment of the Alberta Court of Appeal (Slatter,

Bielby and O’Ferrall JJ.A.), 2020 ABCA 76, 457 C.R.R. (2d) 223, 453 D.L.R. (4th) 387, [2020] A.J. No. 235 (QL), 2020 CarswellAlta 330 (WL Can.), affirming the conviction entered by Goss J., 2017 ABQB 593, [2017] A.J. No. 1026 (QL), 2017 CarswellAlta 1808 (WL Can.). Appeal dismissed. Deborah R. Hatch, for the appellant. Keith A. Joyce, for the respondent. Megan Savard, for the intervener. The following is the judgment delivered orally by [1] The Court — We would dismiss the appeal. The parties did not dispute that the trial judge erred in dismissing the accused’s application under s. 276.1 of the Criminal Code , R.S.C. 1985, c. C-46 , to cross‑examine the complainant. In our view, this error did not lead to a miscarriage of justice and falls within the curative proviso under s. 686(1)(b) because the evidence was otherwise overwhelming and a conviction was inevitable. [2] We do not endorse Slatter J.A.’s application of s. 683(1). Neither party sought this remedy before the Court of Appeal, and in this Court, both parties as well as the intervener urged us to reject his approach. Judgment accordingly. Solicitors for the appellant: Deborah Hatch Law Office, Edmonton. Solicitor for the respondent: Alberta Crown Prosecution Service, Appeals, Education & Prosecution Policy Branch, Edmonton. Solicitors for the intervener: Addario Law Group, Toronto.

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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Criminal Code, R.S.C. 1985, c. C-46, s.276.1

Legislation

Legislation referenced in the available case record.

Criminal Code, R.S.C. 1985, c. C-46, s.683(1)

Legislation

Legislation referenced in the available case record.

Criminal Code, R.S.C. 1985, c. C-46, s.686(1)(b)

Legislation

Legislation referenced in the available case record.

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