R. v. Bosley (M.), (1992) 59 O.A.C. 161 (CA)

• Judge: Lacourcière, McKinlay and Doherty, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: December 15, 1992
• Jurisdiction: Ontario
• Citations: (1992), 59 O.A.C. 161 (CA);1992 CanLII 2838 (ON CA);18 CR (4th) 347;[1992] OJ No 2656 (QL);18 WCB (2d) 179;59 OAC 161

R. v. Bosley (M.) (1992), 59 O.A.C. 161 (CA)

MLB headnote and full text

Her Majesty The Queen (respondent) v. Michael Bosley (appellant)

(File No. C9519)

Indexed As: R. v. Bosley (M.)

Ontario Court of Appeal

Lacourcière, McKinlay and Doherty, JJ.A.

December 15, 1992.

Summary:

The accused businessman was convicted of two counts of forgery, two counts of uttering a forged document, fraud and threatening bodily harm. The accused appealed his convictions.

The Ontario Court of Appeal allowed the appeal in part. The court quashed the con­viction for threatening bodily harm, but affirmed the other convictions.

Civil Rights - Topic 3262

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Ac­cused's right to - Waiver of right - The Ontario Court of Appeal stated that "ac­quiescence in judge-generated delay does not constitute waiver" of the accused's right to be tried within a reasonable time (Charter, s. 11(b)) - See paragraph 24.

Civil Rights - Topic 3265

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Ac­cused's right to - "Within a reasonable time" - What constitutes - The accused was charged with fraud and related offen­ces - The evidence was completed on December 19, 1988 - The Crown requested an adjournment until a transcript of the evidence was prepared - On March 13, 1989, when the transcript was com­plete, the matter was adjourned to June 5, 1989 for oral submissions - On June 5, the matter was further adjourned awaiting judgment - On November 3, 1989, the accused was found guilty with written reasons to follow - Written reasons were dated January 12, 1990 and released on April 30 - The accused was finally sen­tenced on May 17, 17 months after evi­dence was completed - The greatest por­tion of the delay (six months) was attributed to the trial judge's failure to provide a verdict and reasons in a timely manner - The Ontario Court of Appeal held that the accused's right to be tried within a reasonable time (Charter, s. 11(b)) was not denied - See paragraphs 14 to 43.

Criminal Law - Topic 1965

Offences against property - Forgery - Corroboration - Section 367(2) of the Criminal Code provided that no one could be convicted of forgery on the evidence of one witness unless that evidence was corroborated in a material particular by evidence that implicated the accused - The accused was convicted for forging two leases - He argued that s. 367(2) applied and there was no corroborating evidence - The Ontario Court of Appeal stated that assuming s. 367(2) applied, corroborating evidence was present - See paragraphs 58 to 70.

Criminal Law - Topic 5045

Appeals - Indictable offences - Dismissal of appeal if error resulted in no substantial wrong or miscarriage of justice - Substan­tial wrong or miscarriage of justice - What constitutes - [See Criminal Law - Topic 5212 ].

Criminal Law - Topic 5212

Evidence - Witnesses - Admissibility and relevancy - Similar acts - The accused was charged with threatening bodily harm - A Crown witness testified that the accused had threatened her five years earlier - The trial judge admitted the evidence, over the accused's objection, as similar fact evidence - The Ontario Court of Appeal held that the evidence was inadmissible - The evidence had no con­nection to the transaction which was the subject matter of the charge - The evi­dence had no probative value and some prejudicial potential - The court refused to invoke s. 686(1)(b)(iii) of the Criminal Code to dismiss the appeal, where the verdict would not necessarily have been the same had the inadmissible evidence been excluded - See paragraphs 50 to 57.

Cases Noticed:

R. v. Rabba (1991), 46 O.A.C. 120; 3 O.R.(3d) 238; 64 C.C.C.(3d) 445 (C.A.), refd to. [para. 17].

R. v. Rahey, [1987] 1 S.C.R. 588; 75 N.R. 81; 78 N.S.R.(2d) 183; 193 A.P.R. 183; 33 C.C.C.(3d) 289; 57 C.R.(3d) 289; 39 D.L.R.(4th) 481, refd to. [para. 20].

R. v. Conway, [1989] 1 S.C.R. 1659; 96 N.R. 241; 34 O.A.C. 165; 49 C.C.C.(3d) 289; 70 C.R.(3d) 209, refd to. [para. 26].

R. v. Kalanj; R. v. Pion, [1989] 1 S.C.R. 1594; 96 N.R. 191; 48 C.C.C.(3d) 459, refd to. [para. 26].

R. v. Morin, [1992] 1 S.C.R. 771; 134 N.R. 321; 53 O.A.C. 241; 71 C.C.C.(3d) 1, refd to. [para. 27].

R. v. Bennett (1991), 46 O.A.C. 99; 3 O.R.(3d) 193; 64 C.C.C.(3d) 449 (C.A.), affd. [1992] 2 S.C.R. 168; 138 N.R. 388; 54 O.A.C. 350, refd to. [para. 27].

R. v. Tortone (1992), 57 O.A.C. 13; 9 O.R.(3d) 161 (C.A.), refd to. [para. 38].

R. v. Cooper (No. 2) (1977), 35 C.C.C.(2d) 35; 4 C.R.(3d) S-10 (Ont. C.A.), refd to. [para. 43].

R. v. C.R.B., [1990] 1 S.C.R. 717; 107 N.R. 241; 109 A.R. 81; 76 C.R.(3d) 1; [1990] 3 W.W.R. 385; 73 Alta. L.R.(2d) 1; 55 C.C.C.(3d) 1, refd to. [para. 51].

R. v. Leblanc, [1989] 1 S.C.R. 1583; 96 N.R. 240; 99 N.B.R.(2d) 449; 250 A.P.R. 449, reving. 90 N.B.R.(2d) 63; 228 A.P.R. 63; 44 C.C.C.(3d) 18; 66 C.R.(3d) 134 (C.A.), refd to. [para. 53].

R. v. G.B. et al. (No. 1), [1990] 2 S.C.R. 30; 111 N.R. 1; 86 Sask.R. 81; 56 C.C.C.(3d) 161; 70 C.R.(3d) 347, refd to. [para. 63].

R. v. Thind (1991), 64 C.C.C.(3d) 301 (B.C.C.A.), refd to. [para. 64].

R. v. Esposito (1985), 12 O.A.C. 350; 49 C.R.(3d) 193; 24 C.C.C.(3d) 88 (C.A.), refd to. [para. 65].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7, sect. 11(b) [para. 14].

Courts of Justice Act, R.S.O. 1990, c. C-43, sect. 123(5) [para. 36].

Criminal Code, R.S.C. 1985, c. C-46, sect. 367(2) [para. 58]; sect. 686(1)(b)(iii) [para. 55].

Authors and Works Noticed:

Federal/Provincial Task Force, Report on Uniform Rules of Evidence (1982), pp. 365-368 [para. 61].

Sopinka, Lederman and Bryant, The Law of Evidence in Canada (1992), pp. 899, 900 [para. 61].

Wakeling, Corroboration in Canadian Law (1977), pp. 128-131 [para. 61].

Counsel:

Brian H. Greenspan and Lisa A. Silver, for the appellant;

Catherine A. Cooper and Susan L. Reid, for the respondent.

This appeal was heard on October 1 and 2, 1992, before Lacourcière, McKinlay and Doherty, JJ.A., of the Ontario Court of Appeal.

The judgment of the Court of Appeal was delivered by Doherty, J.A., and was released on December 15, 1992.