R. v. Cones (G.), (2000) 129 O.A.C. 384 (CA)

• Judge: Carthy, Charron and Sharpe, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: December 17, 1999
• Jurisdiction: Ontario
• Citations: (2000), 129 O.A.C. 384 (CA)

R. v. Cones (G.) (2000), 129 O.A.C. 384 (CA)

MLB headnote and full text

Temp. Cite: [2000] O.A.C. TBEd. MR.008

Her Majesty The Queen (respondent) v. Geovanny Cones (applicant/appellant)

(C29661)

Indexed As: R. v. Cones (G.)

Ontario Court of Appeal

Carthy, Charron and Sharpe, JJ.A.

March 2, 2000.

Summary:

The accused appealed his conviction by a judge and jury of criminal negligence caus­ing bodily harm and failure to remain at the scene of an accident.

The Ontario Court of Appeal allowed the appeal, quashed the convictions and ordered a new trial.

Criminal Law - Topic 53

General principles - Protection against self-incrimination - Right to remain silent - [See Criminal Law - Topic 4360 ].

Criminal Law - Topic 136

General principles - Rights of accused - Right to silence - [See Criminal Law - Topic 4360 ].

Criminal Law - Topic 4360

Procedure - Jury charge - Directions re­garding inferences from silence or admis­sions by silence or acquiescence - The accused was convicted of criminal negli­gence causing bodily harm and failure to remain at the scene of an accident after a trial by judge and jury - He appealed, submitting that the trial judge erred in permitting an inference of lack of credi­bility to be drawn from the fact that the accused offered explanation for his conduct at trial and he had not offered these ex­planations to police on his surrender and arrest - The Ontario Court of Appeal held that the trial judge erred - The Crown was entitled to cross-examine the accused and his witnesses as to when the defence was first discussed and what was related at the bail hearing, all directed to the argument of recent fabrication - However, there was no justification for impugning the credi­bility of the accused by reason of silence upon arrest.

Cases Noticed:

R. v. Blackmore et al. (1991), 117 N.B.R.(2d) 339; 295 A.P.R. 339; 67 C.C.C.(3d) 67 (C.A.), refd to. [para. 25].

R. v. Stevenson (1990), 41 O.A.C. 1; 58 C.C.C.(3d) 464 (C.A.), refd to. [para. 26].

R. v. Noble (S.J.), [1997] 1 S.C.R. 874; 210 N.R. 321; 89 B.C.A.C. 1; 145 W.A.C. 1, refd to. [para. 31].

R. v. Chambers, [1990] 2 S.C.R. 1293; 119 N.R. 321, refd to. [para. 32].

R. v. M.B.P., [1994] 1 S.C.R. 555; 165 N.R. 321; 70 O.A.C. 161, refd to. [para. 33].

R. v. Robertson (1975), 21 C.C.C.(2d) 385 (Ont. C.A.), refd to. [para. 34].

Counsel:

Michael Code, for the appellant;

Alex Alvaro, for the respondent.

This appeal was heard on December 16 and December 17, 1999, before Carthy, Charron and Sharpe, JJ.A., of the Ontario Court of Appeal. On March 2, 2000, Carthy, J., released the following judgment for the court.