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33952

Franklin Shane Dorfer v. Her Majesty the Queen

(British Columbia) (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.

List of proceedings
Date Proceeding Filed By
(if applicable)
2011-11-08 Transcript received, (40 pages)
2011-11-03 Appeal closed
2011-10-24 Formal judgment sent to the registrar of the court of appeal and all parties
2011-10-24 Judgment on appeal and notice of deposit of judgment sent to all parties
2011-10-21 Judgment on the appeal rendered, CJ LeB F Ro Cro, The appeal from the judgment of the Court of Appeal for British Columbia (Victoria), Number CA036895, 2010 BCCA 440, dated October 12, 2010, was heard on this day and the following judgment was rendered orally:
THE CHIEF JUSTICE — The majority of the Court would dismiss the appeal, LeBel and Fish JJ. dissenting. While we are persuaded that the presiding judge erred in law in his instruction about the limited use of Mr. Babcock’s criminal record, we are of the view that this error did not occasion any substantial wrong or miscarriage of justice, given the fact that propensity reasoning relative to Mr. Babcock’s record was never placed before the jury either implicitly through the examination of witnesses or explicitly through the submissions to the jury, and given the absence of any evidentiary foundation to support a propensity instruction with respect to Mr. Babcock’s record.
LEBEL J. (dissenting) — With respect, I agree with Prowse J. A., dissenting, that the trial judge erred in law in instructing the jury on the use of the criminal record of a third party suspect. More particularly, the judge misdirected the jury in saying that such evidence could be used only to test the credibility of the third party. In my opinion, this error of law cannot be cured by the application of s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46. The evidence against the accused was not overwhelming. The error of law was clear and significant. In the context of this trial, it could not be considered to be harmless. For these reasons, I would allow the appeal, quash the conviction and order a new trial on the same charges.

Dismissed
2011-10-21 General proceeding, Questionnaire following the hearing for the publication ban Her Majesty the Queen
2011-10-21 General proceeding, Questionnaire following the hearing for the publication ban Franklin Shane Dorfer
2011-10-21 Respondent's condensed book, Submitted to the Court (14 copies) Her Majesty the Queen
2011-10-21 Appellant's condensed book, Submitted to the Court (14 copies) Franklin Shane Dorfer
2011-10-21 Acknowledgement and consent for video taping of proceedings, From all parties
2011-10-21 Hearing of the appeal, 2011-10-21, CJ LeB F Ro Cro
Judgment rendered
2011-10-05 Notice of appearance, Timothy Russell will be present at the hearing. Franklin Shane Dorfer
2011-09-13 Notice of appearance, M. Joyce DeWitt-Van Oosten, Q.C. will appear as counsel for the respondent Her Majesty the Queen
2011-08-29 Notice of hearing sent to parties
2011-07-22 Appeal hearing scheduled, 2011-10-21, (start time 9:30am)
Judgment rendered
2011-05-11 Appeal perfected for hearing
2011-04-29 Respondent's book of authorities, Completed on: 2011-04-29 Her Majesty the Queen
2011-04-29 Respondent's record, Completed on: 2011-04-29 Her Majesty the Queen
2011-04-29 Respondent's factum, Completed on: 2011-04-29 Her Majesty the Queen
2011-04-19 Order on motion to extend time
2011-04-19 Decision on motion to extend time, Reg, to serve and file the appellant's factum and book of authorities to March 11/11 and the appellant's record to March 22/11
Granted
2011-04-19 Submission of motion to extend time, Reg
2011-03-23 Response to motion to extend time, email from Kenneth Madsen dated March 23/11, Completed on: 2011-03-23 Her Majesty the Queen
2011-03-22 Motion to extend time, AMENDED to serve and file the appellant's factum and book of authorities to March 11/11 and the appellant's record to March 22/11, Completed on: 2011-03-22 Franklin Shane Dorfer
2011-03-22 Appellant's record, (3 volumes), Completed on: 2011-03-22 Franklin Shane Dorfer
2011-03-11 Appellant's book of authorities, Completed on: 2011-03-11 Franklin Shane Dorfer
2011-03-11 Appellant's factum, Redacted version received on March 24, 2011, Completed on: 2011-03-11 Franklin Shane Dorfer
2011-03-11 Response to motion to extend time, (Letter Form), from Kenneth Madsen dated Feb. 24/11, Completed on: 2011-03-11 Her Majesty the Queen
2011-03-11 Motion to extend time, to serve and file the appellant's factum and book of authorities to March 11/11 (SEE amended motion filed March 22/11), Completed on: 2011-03-11 Franklin Shane Dorfer
2010-12-16 Letter advising the parties of tentative hearing date and filing deadlines (Notice of appeal – As of right)
2010-12-14 Order on motion to extend time to serve and/or file notice of appeal
2010-12-14 Decision on motion to extend time to serve and/or file notice of appeal, Cro, to Nov. 17/10
Granted
2010-12-14 Submission of motion to extend time to serve and/or file notice of appeal submitted, Cro
2010-11-22 Response to motion to extend time to serve and/or file notice of appeal, (Letter Form), from Kenneth Madsen, dated Nov.18-10, Completed on: 2010-11-22 Her Majesty the Queen
2010-11-17 Motion to extend the time to serve and/or file the notice of appeal, to Nov. 17/10, Completed on: 2010-11-17 Franklin Shane Dorfer
2010-11-17 Notice of appeal, Completed on: 2010-11-18 Franklin Shane Dorfer

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

Main parties - Appellants
Name Role Status
Dorfer, Franklin Shane Appellant Active

v.

Main parties - Respondents
Name Role Status
Her Majesty the Queen Respondent Active

Counsel

Party: Dorfer, Franklin Shane

Counsel
Timothy J. Russell
McCullough Blazina Dieno & Gustafson
200-1011 Fort Street
Victoria, British Columbia
V8V 3K5
Telephone: (250) 480-1529
FAX: (250) 480-4910
Email: tr@mbdglaw
Agent
Brian A. Crane, Q.C.
Gowling WLG (Canada) LLP
2600 - 160 Elgin St
Box 466 Station D
Ottawa, Ontario
K1P 1C3
Telephone: (613) 233-1781
FAX: (613) 563-9869
Email: brian.crane@gowlingwlg.com

Party: Her Majesty the Queen

Counsel
M. Joyce DeWitt-Van Oosten
Attorney General of British Columbia
3rd Floor, 940 Blanshard Street
Victoria, British Columbia
V8W 3E6
Telephone: (250) 387-0284
FAX: (250) 387-4262
Agent
Robert E. Houston, Q.C.
Burke-Robertson
70 Gloucester Street
Ottawa, Ontario
K2P 0A2
Telephone: (613) 566-2058
FAX: (613) 235-4430
Email: rhouston@burkerobertson.com

Summary

Keywords

None.

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.

Criminal law - Trial - Charge to jury - Evidence - Criminal record and evidence of bad character - Whether the trial judge erred in failing to properly instruct the jury on the use it could make of a witness’ criminal record and evidence of bad character in deciding whether there was a reasonable doubt as to the appellant’s guilt.

The appellant was convicted of breaking and entering a dwelling house and committing sexual assault. At trial, he admitted to breaking into the house but denied the sexual assault. He argued that he broke into the house with another person, but left as soon as he discovered it was occupied. It was his position that the other person must have committed the sexual assault. However, testifying for the Crown, that individual said he had not been involved in the breaking and entering. Both individuals have criminal records and are persons of disreputable character. On appeal, the appellant argued that the trial judge failed to instruct the jury that it could not use evidence of his bad character as probative of guilt and that it could not used evidence of the other person’s criminal record and bad character to decide whether it had a reasonable doubt as to there having been only one intruder. The majority of the Court of Appeal dismissed the appeal. Prowse J.A., dissenting, would have allowed the appeal and ordered a new trial. In her view, the jury would not have understood from the trial judge’s instructions that it could use the other individual’s criminal record as evidence that he was the sort of person who had the propensity to commit crimes of dishonesty such as the breaking and entering with the appellant. Rather, Prowse J.A. found that the jury would likely have understood that it was only to use the criminal record of the other individual for the limited purpose of assessing credibility.

Lower court rulings

September 13, 2007
Supreme Court of British Columbia


See file

October 12, 2010
Court of Appeal for British Columbia (Victoria)

CA036895, 2010 BCCA 440

See file

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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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.

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Date modified: 2025-05-13