R. v. Johnson, 2004 NSCA 91
[53] I will deal first with the appellant’s submission that evidence of motive and opportunity, unless it is exclusive opportunity, is not enough to sustain a conviction. The appellant relies upon R. v. Ferainz, 1962 CanLII 884 (ON CA), [1962] O.W.N. 40, 37 C.R. 37 (Ont. C.A.) which was followed in R. v. Yebes (1987), 1987 CanLII 17 (SCC), 36 C.C.C. (3d) 417. However, his submission is based on an incomplete reading of Yebes. After citing passages from Ferianz and other case authority, the Supreme Court of Canada stated in Yebes at p. 432:
It may then be concluded that where it is shown that a crime has been committed and the incriminating evidence against the accused is primarily evidence of opportunity, the guilt of the accused is not the only rational inference which can be drawn unless the accused had exclusive opportunity. In a case, however, where evidence of opportunity is accompanied by other inculpatory evidence, something less than exclusive opportunity may suffice. This was the view expressed by Lacourciere J.A. in R. v. Monteleone (1982), 1982 CanLII 2162 (ON CA), 67 C.C.C. (2d) 489 at p. 493, 137 D.L.R. (3d) 243 at p. 247, 38 O.R. (2d) 651 (Ont. C.A.), where he said: "It is not mandatory for the prosecution to prove that the respondent had the exclusive opportunity in a case where other inculpatory circumstances are proved." It is also supported by further comments of Martin J.A. in R. v. Stevens (1984), 1984 CanLII 3481 (ON CA), 11 C.C.C. (3d) 518 at p. 534 et seq., and see, as well, Imrich v. The Queen (1977), 1977 CanLII 27 (SCC), 34 C.C.C. (2d) 143 at p. 147, 75 D.L.R. (3d) 243 at pp. 247-8, [1978] 1 S.C.R. 622 at p. 627, per Ritchie J. (Emphasis added)
This court relied upon those reasons in R. v. Francis, [1994] N.S.J. No. 14 (N.S.C.A.) for the proposition that where evidence of opportunity is accompanied by other inculpatory evidence, something less than exclusive opportunity may suffice.
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