R. v. C.D., (2000) 132 O.A.C. 331 (CA)
Judge | McMurtry, C.J.O., Morden and Charron, JJ.A. |
Court | Court of Appeal (Ontario) |
Case Date | May 11, 2000 |
Jurisdiction | Ontario |
Citations | (2000), 132 O.A.C. 331 (CA) |
R. v. C.D. (2000), 132 O.A.C. 331 (CA)
MLB headnote and full text
Temp. Cite: [2000] O.A.C. TBEd. MY.044
Her Majesty the Queen (respondent) v. C.D. (appellant)
(C31459)
Indexed As: R. v. C.D.
Ontario Court of Appeal
McMurtry, C.J.O., Morden and Charron, JJ.A.
May 11, 2000.
Summary:
The accused was convicted of four counts involving sexual offences. He appealed his convictions, alleging that the jury charge contained errors regarding the use of evidence and the review of the evidence relating to the position of the defence, relating to "position of trust" and consent, reasonable doubt, similar fact evidence, the reading back of certain evidence to the jury and the conduct of the prosecutor.
The Ontario Court of Appeal allowed the appeal, quashed the convictions and ordered a new trial. The court held that there was validity to each of the grounds of appeal. Looked at individually, the errors might not have been critical; however, given the cumulative effect of the errors, it could not be said that the convictions would have been inevitable had the errors not occurred.
Barristers and Solicitors - Topic 907
Duty to court - Making submissions - Statements of fact not in evidence - [See first Criminal Law - Topic 4419 ].
Criminal Law - Topic 673
Sexual offences - Rape or sexual assault - Jury charge - The accused was convicted of sexual exploitation - The accused appealed, arguing that the trial judge did not correctly explain "position of trust" to the jury - The Ontario Court of Appeal held that the trial judge did err in the charge in this area - See paragraphs 4, 53 to 81.
Criminal Law - Topic 4345
Procedure - Jury - Evidence - Jury request to review evidence or argument - The accused was convicted of four counts involving sexual offences against young women - He appealed, arguing that the trial judge erred in reading back to the jury the evidence of one of the complainants - The trial judge read from the complainant's evidence in-chief only - The accused argued that the judge should also have read from her evidence given on cross-examination with respect to matters covered by the evidence in-chief - The Ontario Court of Appeal held that there was an error in this regard - See paragraphs 4, 93 to 97.
Criminal Law - Topic 4351
Procedure - Jury charge - Directions regarding burden of proof and reasonable doubt - The accused was convicted of four counts involving sexual offences against young women - The accused appealed, arguing that the trial judge erred in the jury charge on the issue of reasonable doubt - The Ontario Court of Appeal held that the trial judge erred in charging the jury that they did not have to be certain to be satisfied beyond a reasonable doubt of the guilt of the accused - See paragraphs 4, 82 to 88.
Criminal Law - Topic 4352.1
Procedure - Jury charge - Directions regarding similar fact evidence - The accused was convicted of four counts involving sexual offences against young women -He appealed, arguing that the trial judge erred in the jury charge regarding similar fact evidence - The Ontario Court of Appeal held that there was an error in this regard - See paragraphs 4, 89 to 92.
Criminal Law - Topic 4357
Procedure - Jury charge - Directions regarding defences and theory of the defence - [See both Criminal Law - Topic 4375.2 ].
Criminal Law - Topic 4364
Procedure - Jury charge - Directions regarding unanimity and disagreement - The accused was convicted of four counts involving sexual offences against young women - The accused appealed, arguing that the trial judge made errors in the jury charge on the issue of unanimity - The Ontario Court of Appeal reviewed the charge and agreed that some jurors might have been confused about their right to disagree - See paragraphs 106 to 112.
Criminal Law - Topic 4375.2
Procedure - Jury charge - Directions regarding prior inconsistent statements - The accused was convicted of four counts involving sexual offences against young women - The accused appealed, arguing that there were errors in the jury charge relating to the use to which certain evidence could be put and in the review of the evidence relating to the position of the defence (in particular prior inconsistent statements) - The position of the defence was that the complaints were fabricated and that there were significant prior inconsistent statements made by Crown witnesses which undermined their credibility -The Ontario Court of Appeal held that there were errors in the charge in this regard - See paragraphs 4, 37 to 52.
Criminal Law - Topic 4375.2
Procedure - Jury charge - Directions regarding prior inconsistent statements - The Ontario Court of Appeal stated that "a trial judge has a duty to instruct the jury on the possible uses of evidence of prior inconsistent statements ... and a general duty to instruct the jury in such a way that they will have a sufficient understanding of the evidence as it relates to the issues they have to consider." - See paragraph 43.
Criminal Law - Topic 4419
Procedure - Opening and closing addresses - Summing up - Counsel - Closing address - Intemperate or improper statements - The accused was convicted of four counts involving sexual offences against young women - He appealed, complaining of certain statements made by the prosecutor -During cross-examination of the accused, the Crown prosecutor alleged that the accused had made a particular statement to a certain witness - The accused claimed that the allegation was not true - Crown counsel had made no attempt to prove the accused's statement when the witness testified for the Crown - The Ontario Court of Appeal stated that counsel may have been entering into a problematic area of ethical responsibility - "It is a breach of professional ethics for counsel to 'knowingly assert something for which there is no reasonable basis in the evidence, or the admissibility of which must first be established'" - See paragraphs 98 to 101.
Criminal Law - Topic 4419
Procedure - Opening and closing addresses - Summing up - Counsel - Closing address - Intemperate or improper statements - The accused was convicted of four counts involving sexual offences against young women - He appealed, complaining of certain statements made by the prosecutor -During the Crown prosecutor's address to the jury the Crown commented that the defence counsel in her address had improperly expressed an opinion regarding the evidence - Crown counsel then said "She is representing [Mr. D.]. It's her job to get him acquitted. [T]hat was improper comment" - The Ontario Court of Appeal held that even if Crown's counsel's assessment of the situation was correct, he should have made his complaint to the judge and not have used it as a basis to attack defence counsel in his address to the jury - See paragraphs 102 to 105.
Cases Noticed:
R. v. MacKinnon (T.N.) et al. (1999), 117 O.A.C. 258; 132 C.C.C.(3d) 545 (C.A.), refd to. [para. 43].
R. v. Brooks, [2000] S.C.J. No. 12, refd to. para. 51].
R. v. Kent, Sinclair and Gode (1986), 40 Man.R.(2d) 160; 27 C.C.C.(3d) 405 (C.A.), refd to. [para. 51].
R. v. Boss (1988), 30 O.A.C. 184; 46 C.C.C.(3d) 523 (C.A.), refd to. [para. 51].
R. v. Sanchez-Flores (1992), 57 O.A.C. 161; 75 C.C.C.(3d) 23 (C.A.), refd to. [para. 51].
R. v. J.E.F. - see R. v. Fair (J.E.).
R. v. Fair (J.E.) (1993), 67 O.A.C. 251; 85 C.C.C.(3d) 457 (C.A.), refd to. [para. 52].
R. v. Jensen (C.M.) (1996), 90 O.A.C. 183; 106 C.C.C.(3d) 430 (C.A.), dist. [para. 73].
R. v. D.B.L. (1995), 83 O.A.C. 374; 101 C.C.C.(3d) 406 (C.A.), refd to. [para. 76].
R. v. Audet (Y.), [1996] 2 S.C.R. 171; 197 N.R. 172; 175 N.B.R.(2d) 81; 446 A.P.R. 81; 106 C.C.C.(3d) 481, refd to. [para. 77].
R. v. Lifchus (W.), [1997] 3 S.C.R. 320; 216 N.R. 215; 118 Man.R.(2d) 218; 149 W.A.C. 218; 118 C.C.C.(3d) 1, refd to. [para. 83].
R. v. Brydon (J.L.), [1995] 4 S.C.R. 253; 188 N.R. 321; 65 B.C.A.C. 81; 106 W.A.C. 81; 101 C.C.C.(3d) 481, refd to. [para. 88].
R. v. L.B.; R. v. M.A.G. (1997), 102 O.A.C. 104; 116 C.C.C.(3d) 481 (C.A.), refd to. [para. 90].
R. v. Olbey, [1980] 1 S.C.R. 1008; 30 N.R. 152; 50 C.C.C.(2d) 257, refd to. [para. 96].
R. v. Bencardino (1973), 15 C.C.C.(2d) 342 (Ont. C.A.), refd to. [para. 99].
Fox v. General Medical Council, [1960] 1 W.L.R. 1017, refd to. [para. 99].
R. v. Naglick (1993), 83 C.C.C.(3d) 526 (S.C.C.), refd to. [para. 107].
Statutes Noticed:
Criminal Code, R.S.C. 1985, c. C-46, sect. 153(1), sect. 273.1(2)(c) [para. 53].
Authors and Works Noticed:
Law Society of Upper Canada, Rules of Professional Conduct, rule 10.2(g) [para. 100].
McWilliams, Peter K., Canadian Criminal Evidence (3rd Ed. 1988), pp. 37-16 to 37-24 [para. 43].
Sopinka, John, The Trial of an Action (2nd Ed. 1998), pp. 96, 97, 98, 126, note 116 [para. 100].
Counsel:
Timothy E. Breen, for the appellant;
Tina Yuen, for the respondent.
This appeal was heard on March 23 and 24, 2000, by McMurtry, C.J.O., Morden and Charron, JJ.A., of the Ontario Court of Appeal. The following decision was delivered for the court by Morden, J.A. and released on May 11, 2000.
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