Her Majesty The Queen Appellant v. J.M., 2019 SCC 24

SUPREME COURT OF CANADA Citation: R. v. J.M., 2019 SCC 24, [2019] 2 S.C.R. 396 Appeal Heard: April 18, 2019 Judgment Rendered: April 18, 2019 Docket: 38483 Between: Her Majesty The Queen Appellant and J.M. Respondent - and - Criminal Lawyers’ Association (Ontario) Intervener Coram: Abella, Karakatsanis, Côté, Rowe and Martin JJ. Reasons for Judgment: (paras. 1 to 3) Abella J. (Karakatsanis, Côté, Rowe and Martin JJ. concurring) R . v. J.M. , 2019 SCC 24, [2019] 2 S.C.R. 396 Her Majesty The Queen Appellant v. J.M. Respondent

and Criminal Lawyers’ Association (Ontario) Intervener Indexed as: R . v. J.M. 2019 SCC 24 File No.: 38483. 2019: April 18.

Present: Abella, Karakatsanis, Côté, Rowe and Martin JJ. on appeal from the court of appeal for ontario Criminal law — Evidence — Admissibility — Charge to jury — Post-offence conduct — Failure to attend trial — Trial judge permitting Crown to lead evidence at accused’s trial that accused failed to attend for his original trial date — Trial judge instructing jury on use it could make of evidence — Accused convicted of sexual assault — Court of Appeal setting aside convictions and ordering new trial — Majority holding that trial judge erred in failing to engage in second step of admissibility inquiry and in his instructions to jury on post-offence conduct — Dissenting judge finding that trial judge’s decision to admit evidence entitled to deference and that charge to jury was adequate — Failure to attend trial is not presumptively post-offence conduct and its admissibility must be assessed on case-by-case basis — Convictions restored.

APPEAL from a judgment of the Ontario Court of Appeal (MacPherson, Huscroft and Nordheimer JJ.A.), 2018 ONCA 1054 , 144 O.R. (3d) 125, 370 C.C.C. (3d) 458, [2018] O.J. No. 6741 (QL), 2018 CarswellOnt 21543 (WL Can.), setting aside the convictions of the accused for sexual assault and ordering a new trial. Appeal allowed, Abella and Karakatsanis JJ. dissenting. Luke Schwalm and Alexander Alvaro , for the appellant. Michael A. Johnston and Matthew B. Day , for the respondent.

Solomon Friedman and Meaghan McMahon , for the intervener. The judgment of the Court was delivered orally by [ 1 ] Abella J. — We are all of the view that the failure to attend a trial is not presumptively after-the-fact conduct. Its admissibility must be assessed on a case-by-case basis. [ 2 ] A majority, however, is of the view that the appeal should be allowed substantially for the reasons of Justice Huscroft. Justice Karakatsanis and I would dismiss the appeal for the reasons of Justice Nordheimer. [ 3 ] The appeal is therefore allowed and the convictions are restored. Judgment accordingly.

Solicitor for the appellant: Attorney General of Ontario, Toronto. Solicitors for the respondent: Shore Johnston Hyslop Day, Ottawa. Solicitors for the intervener: Edelson & Friedman, Ottawa.