A Nanaimo man convicted of breaking into the home of an 89-year-old woman and sexually assaulting her had his appeal dismissed by the Supreme Court of Canada last Friday.
Franklin Shane Dorfer admitted to breaking into the woman’s house in 2005, but denied being involved in the sexual assault, which he said was committed by another man he claimed was with him during the break-in.
The other man denied participating in the break and enter and only Dorfer’s fingerprints were found at the scene.
Dorfer was convicted in 2007. The B.C. Court of Appeal dismissed his appeal about a year ago in a 2-1 decision.
Dorfer’s grounds for appeal were that the trial judge failed to instruct the jury it could not use evidence of Dorfer’s bad character as demonstrating his guilt and that it could consider the evidence of the other man’s criminal record and bad character in deciding whether there was reasonable doubt there was only one intruder.
Three Supreme Court of Canada judges found the trial judge erred in law in his instruction about the limited use of the other man’s criminal record, but ruled the error did not result in a miscarriage of justice.
Two judges dissented, noting the evidence against the accused was not overwhelming and the “error of law was clear and significant.”
Dorfer was declared a dangerous offender in 2009 due to the nature of the offence, as well as his previous history, which included a previous conviction for break and enter and sexual assault.